Preview
Cause No. 20 06632
JEFFERY C. LAMBERT, MD IN THE DISTRICT COURT OF
§
v. § MONTROMERY COUNTY, TEXAS
§
LEONARD MUEHR JUDICIAL DISTRICT
DEFENDANT LEONARD MUEHR’S MOTION FOR LEAVE
AND MOTION TO COMPEL RULE 204 EXAMINATION
TO THE HONORABLE COURT:
Defendant LEONARD MUEHR, requests leave of Court to file the following Motion
to Compel Plaintiff to submit to a Rule 204 examination by Defendant’s expert
neuropsychologist. I support thereof, Defendant would respectfully show the Court as
follows:
INTRODUCTION
This case a prime example of when a Rule 204 medical examination is
appropriateThis Court should order 1) Plaintiff to appear for defense medical
examination, and 2) Order Plaintiff designated neuropsychologist Larry Pollack, PhD, to
forward his file and raw test data directly to Defendant retained expert Gilbert Martinez,
PhD, ABPP because:
Plaintiff has placed his neuropsychological condition at issue by
claiming traumatic brain injury and by designating his own
retained neuropsychologist;
Plaintiff seeks damages for future medical care recommended by
his attorney referred physicians,
Good cause is present because Defendant ha no less intrusive
means of obtaining the information sought and ithout the
1
examination, Defendant will be prejudiced in his defense of this
case; and
Pursuant to Rule 204(c)(2), this Court may order the examination
when the Plaintiff has designated a psychologist as a testifying
expert for use at trial, which is exactly what has occurred in this
case.
Plaintiff claims he sustained a traumatic brain injury the motor vehicle accident
made the basis of this lawsuit. e has undergone medical treatment for that alleged injur
claims he will never fully recover, and seeks damages for future medical care.
Texas courts have repeatedly held that when a plaintiff claims the need for future
medical care as Plaintiff does here, “fundamental fairness dictates” that both parties’
experts be allowed to examine the claimant, lest one side “be at a severe disadvantage
in the battle of the experts.”
Plaintiff’ counsel has refused to produce their client for examination, and without
the examination, Defendant’ ability to defend themselves in this case will be severely
prejudiced. Defendant’ expert has testified that he needs to examine Plaintiff in person
to:
(1) properly evaluate Plaintiff’s current symptoms in relation to the alleged
mechanism of injury,
(2) form complete opinions regarding the validity of Plaintiff’s past and future
medical damages and alleged cognitive impairment and
(3) determine Plaintiff’s ability to return to his pre accident condition
Laub v. Millard, 925 S.W.2d 363, 365 (Tex. App.Houston [1st Dist.] 1996, orig. proceeding); Sherwood
Lane Assocs. v. O'Neill, 782 S.W.2d 942, 945 (Tex. App.Houston [1st Dist.] 1990, orig. proceeding).
ithout the requested examination, Defendant’s expert will be vulnerable to unfair
impeachment at trial simply because he was not provided with the same opportunities as
Plaintiff’s testifying, expert neuropsychologist.
Texas courts have repeatedly held that a Rule 204 examination is warranted under
such circumstances Defendants therefore seek this Court’s assistance in compelling
Rule 204 examination.
MOTION FOR LEAVE
Rule 204 provides that a party may to compel a examination no later than
30 days before the end of the discovery period. IV. P. 204(a). This Motion is
being brought less than 30 days before the end of the discovery period, August 17, 2021,
due to circumstances beyond Mr. Muehr’s control.
On June 21, 2021, Plaintiff disclosed Larry Pollock, Ph.D., as retained, testifying
expert neuropsychologist. Defendant accordingly had a little more than three weeks until
July 17, 2021 to move for a neuropsychological examination. Unfortunately, during that
same period, Defendant’s original counsel withdrew and the attorneys who substituted
to represent him failed to run a conflicts check. Those attorneys discovered the
problem and withdrew on August 2, 2021. That same day, current defense counsel
substituted in as counsel for Mr. Muehr.
Current defense counsel has therefore been in possession of this case and the file
for little more than a week. Upon realizing that (1) a defense neuropsychological
examination should have been requested, and (2) either of Defendant’s two previous
attorneys had requested one, counsel immediately prepared and filed the instant motion
Defendant requests leave of Court to bring this Motion to Compel. The requested
examination is vital to Defendant’s defense in this case. Plaintiff has sued for damages
exceeding $1 million and intends to seek exemplary damages as well, and the majority
of Plaintiff’s alleged damages are based on his alleged traumatic brain injury. Mr. Muehr
is not at fault for failing to request the examination sooner, and he should not be made to
pay for the mistakes of his previous attorneys. Moreover, trial in this case is not until
November 15, 2021, and therefore Plaintiff will not be prejudiced by allowing the
requested examination to go forward.
Defendant accordingly requests leave of Court to bring this Motion to Compel a
Rule 204 Examination.
BACKGROUND FACTS
This case arises out of an incident that occurred on February 8, 2020, between
Plaintiff’s vehicle Defendant’s vehicle and four other vehicles. Plaintiff alleges that he
was driving at or near the intersection of FM 1488 and Old Hockley Road. Plaintiff was
stopped for traffic in front of him. Plaintiff alleges that Defendant was a distracted driver
looking at his cell phone, and that Defendant and smashed into the rear of Plaintiff’s
vehicle. Plaintiff’s vehicle was push into the vehicle in front of him, and so on until five
(5) vehicles were damaged.
Plaintiff alleges that he injured his head in the collision and his physicians have
diagnosed him with a traumatic rain njury.
Defendant retained Gilbert Martinez .D., ABPP to prepare
neuropsychological and medical causation expert opinions in this case. Dr. Martinez is
certified in Clinical Neuropsychology by the American Board of Professional Psychology
experienced in conducting neuropsychological and psychological assessment and
intervention with individuals suffering from a broad range of neurological, behavioral, and
emotional disorders, with a subspecialty in head trauma rehabilitation
Dr. Martinez reviewed Plaintiff’s medical records but advised that he needed to
examine aintiff to complete his expert opinions Dr. Martinez stated that without
neuropsychological examination, cannot fully evaluate Plaintiff’s mental health
condition, clinical symptoms, impairment, and need for future medical care, if any
Defendant ha twice requested that Dr. Martinez be allowed to examine Plaintiff.
Plaintiff’s counsel refused, and Defendant accordingly seek this Court’s assistance in
obtaining the requested examination.
RGUMENT AND AUTHORITIES
Good Cause Exists for Ordering the Examination.
Under Rule 204 an examination by a qualified physician is warranted when (1)
the party has placed her physical condition in controversy, and (2) “good cause” exists
for the examination. IV. P. 204.1(c)(1). plaintiff in a negligence action who
claims physical injury as the result of a party’s negligence places “physical injury
clearly in controversy and provides the defendant with good cause for an examination to
determine the existence and extent of such asserted injury.” See Schlagenhauf v. Holder
9 U.S. 104, 119 (1964) . Plaintiff seeks damages for alleged injuries to his head as a
Exhibit , Affidavit of Dr. Martinez
Exhibit August 2, 2021 Email Correspondence; Exhibit August 3, 2021 Correspondence.
result of the subject accident. e has accordingly placed h physical condition in
controversy.
To establish “good cause” for the examination, Defendants must:
(1) show that the requested examination is relevant to issues in
controversy and will produce or likely lead to relevant evidence,
(2) establish a reasonable nexus between the requested examination
and the condition in controversy, and
(3) demonstrate that the desired information cannot be obtained by less
intrusive means.
In H.E.B. Grocery Co., 492 S.W.3d 300, 303 (Tex. 2016). ll three elements are
present here.
The requested examination is relevant to the issues in controversy
and will lead to relevant evidence.
The first element is self evident. At the heart of Plaintiff’s case lies claim that
due to Defendants’ alleged negligence, he suffered “serious injuries” including “mental
anguish and pain and suffering,” and “will likely continue to suffer these damages in the
future.” In addition, Plaintiff has identified neuropsychologist expertwho examine
Plaintiffas an expert witness with knowledge of Plaintiff’s condition and treatment
One of Defendant’ primary defenses in this case concerns the alleged severity of
Plaintiff’s claimed injuries. Plaintiff contends he sustained life altering injuries that require
future medical care; Defendant contends he did not. The requested examination is
accordingly relevant to the issues in controversy and will lead to relevant evidence.
See Plaintiff’s Original Petition, ¶¶5, 7.
Exhibit Plaintiff’s Responses to Defendants’ Requests for Disclosure.
In general, and particularly where the intended examination is not intrusive,
invasive or unnecessarily physically uncomfortable, parties are permitted to explore
matters not covered by the opposing party s examinations, make their own observations,
and attempt to discover facts that may contradict the opinions of the opposing party
expert witnesses.” In re Ten Hagen Excavating, Inc., 435 S.W.3d 859, (Tex. App.
Dallas 2014, no pet.). Defendant entitled to have his expert, Dr. Martinez, explore the
opinions and facts behind Plaintiff’s past medical care for h alleged injuries and
Plaintiff’s alleged need for future medical care and cognitive rehabilitation See In re
Advanced Powder Sol’ns, 496 S.W.3d 838 (Tex. App.Houston [1 st Dist.] 2016, no pet.)
(independent medical exam is warranted when plaintiff intends to prove future medical
expenses).
The examination will enable Dr. Martinez to draw his own observations and
discover facts that may contradict the opinions of Plaintiff’s treating doctors See id.
Without the examination, Dr. Martinez will have no other opportunity to explore and
develop evidence that contradicts the opinions espoused by Plaintiff’s experts
The requested examination is accordingly relevant to Plaintiff’s claimed injuries, to
alleged future medical needs, to h experts’ opinions, and to Defendant’ defense of
this case.
A reasonable nexus exists between the requested examination and the
condition in controversy.
The nexus element is easily satisfied: Plaintiff is claiming a head injur from the
accident that required past medical care and will require future medical care, and due to
which he is claiming diagnoses of Major Cognitive Disorder and Posttraumatic Stress
Disorder. Dr. Martinez examination will pertain to those alleged injuries and need for
future care. The requested examination is therefore directly related to Plaintiff’s alleged
damages in this case.
The desired information cannot be obtained by less intrusive means.
Defendant ha no less intrusive means obtaining the formation sought Simply
reviewing Plaintiff’s the medical records is not a substitute for examining h , for several
reasons.
First, as Dr. Martinez explains in his affidavit, he cannot form full and complete
opinions in this case without examining Plaintiff; his review of Plaintiff’s medical records
does not provide him with all the needed information examination will allow Dr.
Martinez to evaluate Plaintiff’s alleged injuries as compared to the mechanism of injury,
current symptoms and limitations, and to form his own opinions regarding Plaintiff’s
diagnoses of Major Cognitive Disorder and Posttraumatic Stress Disorder. In short, Dr.
Martinez states that the examination is necessary, as he cannot offer fully formed
opinions without examining Plaintiff.
Second Defendant will be placed at a significant disadvantage if his expert is not
permitted to examine Plaintiff. When plaintiff’s expert has examined h , “fundamental
fairness” dictates that the defendant’s expert should also have the opportunity to
determine facts that could contradict opinions of plaintiff’s experts. See Laub v. Millard
925 S.W.2d 363, 365 (Tex. App.Houston [1st Dist.] 1996, orig. pro ceeding) Sherwood
Lane Assocs. v. O'Neill, 782 S.W.2d 942, 945 (Tex. App.Houston [1st Dist.] 1990, orig.
Exhibit Affidavit of Dr. Martinez
proceeding) (granting mandamus because without examination, defendant’s expert’s
analysis would be limited to reviewing the records and testimony from plaintiff’s experts,
putting defendant at a severe disadvantage in the “battle of the experts.”).Similarly,
en one party s expert offers opinions on future medical expenses, the other party often
has no opportunity to explore and develop evidence that supports theories that contradict
the theories espoused by that expert, absent an independent medical examination. In
re Advanced Powder Sol’ns, 496 S.W.3d 838 (Tex. App.Houston [1 st Dist.] 2016, no
pet.) (quoting Ten Hagen, 435 S.W.3d at 871).
Without an opportunity to examine Plaintiff, Dr. Martinez can be undermined in
front of the jury with the simple argument that ver laid eyes on Plaintiff. In contrast,
Plaintiff can point to the records and testimony treating doctors, all of whom have
had the opportunity to examine h at least once, and some more than once The inability
to examine Plaintiff would accordingly place Defendants “at a severe disadvantage in the
battle of the experts” at trial.
side from an examination, Dr. Martinez has no other mean of evaluating
Plaintiff’s potential need for future care and developing any evidence that would contradict
this opinion. As such, there is no substitute for the requested neuropsychological
examination.
Defendant accordingly request neuropsychological examination of Plaintiff so
that Dr. Martinez can provide opinions related to Plaintiff’s alleged injuries and anticipated
future medical treatment. See Ten Hagen, 435 S.W.3d 868 (affirming order compelling
physical examination because plaintiff placed his physical condition in controversy by
claiming physical injuries and damages for future surgery) see also Coates v.
Whittington, 758 S.W.2d 749, 753 (Tex. 1988) If, however, a plaintiff intends to use
expert medical testimony to prove his or her alleged mental condition, that condition is
placed in controversy and the defendant would have good cause for an examination
under Rule 167a [predecessor to Rule 204.1].”).
Rule 204 Expressly Authorizes Psychological Evaluations.
Rule 204 states that “an examination by a psychologist may be ordered when the
party responding to the motion has designated a psychologist as a testifying expert or
has disclosed a psychologist’s records for possible use at trial.” IV. P.
204.1(c)(2). The circumstances of this case fall directly within the ambit of this rule.
Plaintiff has designated an expert neuropsychologist as a testifying witness. Defendant is
therefore entitled to have his own neuropsychologist evaluate Plaintiff.
IV. CONCLUSION
Defendant ha satisfied the requirements in Rule 204 for obtaining a
neuropsychological examination. Defendant accordingly request that Plaintiff be
compelled to present for a neuropsychological examination by Defendant’
neuropsychologist, Dr. Martinez and Order Plaintiff’s designated neuropsychologist Larry
Pollack, PhD, to forward his file and raw test data directly to Defendant retained expert
Gilbert Martinez, PhD, ABPP
WHEREFORE, PREMISES CONSIDERED, Defendant, LEONARD MUEHR
pray that the foregoing Motion to Compel be granted, that Plaintiff be ordered to present
for a neuropsychological examination on a certain date and time, and for all such other
and further relief to which Defendant may show himself justly entitled.
Email: ttaylor@jandflaw.com
1456 First Colony Boulevard
Sugar Land, Texas 77479
313 5000
MIKE JOHANSON VICKI L. DALEY
RANDY L. FAIRLESS * JOCELYN A. HOLLAND
TODD TAYLOR * KEVIN KYSER
BART BASDEN * GREG LAUGHLIN
KELLEY J. FRIEDMAN KIMBERLY M.A. NIETING
CHRIS M. VOLF BETH A. RAHWAN
TIMOTHY J. NISBET
oard Certified in Personal Injury Trial Law
Texas Board of Leg pecialization
____________
DD TAYLOR
RECT DIAL 281
EMAIL: ttaylor@jandflaw.com
st , 2021
File 11.1
Eric D. Nielsen
The Nielson Law Firm
via email
9800 Northwest Freeway, Suite 314
Houston, TX 77092
: Cause No. 20 06632; Jeffery C. Lambert, MD vs. Leonard Muehr; In the
284th Judicial District Court of Montgomery County, Texas
Nielsen:
ollowing up on yesterday’s email, accept this as our formal written request to
instruct Dr. Poll ck to forward his file material and raw data” testing results to our
neuropsychologist expert, Gilbert Martinez.
n order to accomplish this, your client, Je ery Lambert, will need to sign
authorization instructing Dr. Pollock to forward the requested materials. Dr. Pollock will
have the appropriate form for his needs.
urther, pursuant to TRCP 204, Defendant formally requests physical and mental
examination of Dr. Lambert to be performed by neuropsychologist Martinez to complete a
independent physical and mental assessment and administer a comprehensive
neuropsychological evaluation. Please provide dates in mid to late August or early
Septe er when Dr. Lambert would be available.
CAUSE NO. 06632
JEFFREY C. LAMBERT, MD IN THE DISTRICT COURT OF
VS. MONTGOMERY COUNTY, TEXAS
LEONARD MUE JUDICIAL DISTRICT
RESPONSE TO DEFENDANT’S REQUEST FOR DISCLOSURE
TO: Defendant, LEONARD MUEHR , by and throu attorney of record, Alan J. Yee,
Law Offices of Brad A. Allen, 200 Concord Plaza Drive, Suite 650, San Antonio, T xas
COMES NOW, Plaintif JEFFREY C. LAMBERT, MD, and serves Response to
Defendant, LEONARD MUEHR Request for Disclosure pursuant to the Texas Rules of Civil
Procedure.
Respectfully submitted,
THE NIELSEN LAW FIRM, P.C.
/s/ Eric D Nielsen
Eric D. Nielsen
State Bar
9800 Northwest Freeway, Suite 314
uston, Texas 77092
Tel: (713) 524
Fax: (888) 587
service@nielsentriallaw.com
COUNSEL FOR PLAINTIFF
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the foregoing instrument was served upon
all counsel of record pursuant to Rule 21a of the Texas Rules of Civil Procedure on this the 31st
day of July 2020.
/s/ Eric D. Nielsen
Eric D. Nielsen
PLAINTIFF’S RESPONSES TO DEFENDANT’S REQUEST FOR DISCLOSURE
a. Provide the correct names of the parties to this lawsuit.
RESPONSE:
To Plaintiff’s knowledge, the parties have been correctly named.
b. Provide the name, address and telephone number of any potential parties.
RESPONSE:
Plaintiff knows of no other potential parties at this time.
c. Provide the legal theories and, in general, the factual bases of your claims or defenses.
RESPONSE:
On or about February 6, 2020, Plaintiff was driving east on FM 1488 near the
intersection of FM 1488 and Old Hockley Road in Montgomery County, Texas. At that
time, Defendant was also driving east on FM 1488 near the intersection of FM 1488 and
Old Hockley Road. Plaintiff was stopped for traffic in front of him. Defendant was a
distracted driver, looking at his cell phone and smashed into the rear of Plaintiff’s vehicle.
The force of this collision was great that is pushed Plaintiff’s vehicle into the vehicle in front
of Plaintiff’s vehicle, and so on until five (5) vehicles were damaged. As a result of this
collision, Plaintiff was seriously injured.
NEGLIGENCE AND GROSS NEGLIGENCE
On the occasion in question, Defendant LEONARD MUEHR was negligent and grossly
negligent in one or more of the following respects:
a) failing to keep a proper lookout;
b) failing to brake to avoid the collision;
c) failing to apply his brakes in a timely manner;
d) driving at a rate of speed in excess of the speed that a reasonably prudent
person in the same or similar circumstances would have driven;
e) failing to control his speed;
f) failing to steer to avoid the collision;
g) failing to leave an assured clear distance between Defendant’s vehicle and
the vehicle in front of Defendant;
h) texting while driving; and
i) looking at his cell phone instead of the road and vehicles in front of Defendant.
Each of the foregoing acts, alone or in combination with the others, constitutes negligence
and gross negligence and a violation of Defendant LEONARD MUEHR’S duty of care to
Plaintiff, which proximately caused the occurrence in question, and Plaintiffs’ damages.
ACTUAL DAMAGES
As a proximate result of the negligence and gross negligence of Defendant LEONARD
MUEHR, Plaintiff was injured. Further, to the extent, if any, that Plaintiff suffered from
any pre-existing condition, if any, the collision aggravated the pre-existing condition to the
point that it became symptomatic or more symptomatic than it was before the collision.
The negligence and gross negligence of Defendant LEONARD MUEHR has proximately
caused Plaintiff to suffer the following elements of damages in the past and Plaintiff will, in
all reasonable probability, continue to suffer such elements of damage in the future:
1) physical and mental pain and anguish;
2) loss of wage earning capacity;
3) physical impairment;
4) disfigurement;
5) medical expenses.
Plaintiff has suffered damages from Defendant’s wrongful conduct described herein. As
discussed in this Petition, Plaintiff has suffered not only easily quantifiable economic
damages but also other forms of damages such as mental anguish and pain and suffering
and will likely continue to suffer these damages in the future. Both the Constitution of the
United States and the Constitution of the State of Texas provide Plaintiff with the
inalienable fundamental right to have his case heard and decided by a jury of his peers at
trial. In accordance with these fundamental rights it will ultimately be the responsibility
and province of a jury of Plaintiff’s peers to decide the economic value of the damages
Plaintiff has suffered as a result of Defendant’s wrongful actions and omissions which
form the basis of this lawsuit. However, as Plaintiff is required by law to state the
maximum amount of damages he is seeking, Plaintiff believes that when the totality of
the his damages are considered, along with the wrongful nature of Defendant’s conduct,
it is possible that a jury may ultimately decide that Plaintiff’s damages exceed one
million dollars. Plaintiff therefore sues for a sum in excess of 1,000,000 to be determined
by the jury in its sole discretion.
EXEMPLARY DAMAGES
At the time of the collision, Defendant LEONARD MUEHR was grossly negligent in texting
while driving and/or looking at his cell phone instead of the road and vehicles in front of
him. The conduct of Defendant LEONARD MUEHR was “grossly negligent” as the term
“gross neglgience” is defined by Chapter 41 of the Texas Civil Practice and Remedies
Code because it constituted an act or omission,
(i) which when viewed objectively from the standpoint of the actor at the time of
its occurrence involves an extreme degree of risk, considering the probability
and magnitude of the potential harm to others; and
(ii) of which the actor has actual, subjective awareness of the risk involved, but
nevertheless proceeds with conscious indifference to the rights, safety, or
welfare of others.
Plaintiff therefore sues for exemplary damages in a sum in excess of the jurisdictional limits
of the Court to be determined by the jury in its sole discretion.
d. Provide the amount and any method of calculating economic damages.
RESPONSE:
The amount of Plaintiff’s “economic” damages is calculated by adding Plaintiff’s past
medical bills and expenses in the past and in the future to Plaintiff’s lost wages and/or
wage-earning capacity in the past and in the future. Plaintiff’s past medical bills and
expenses which have been proven or will be proven by affidavit are as follows:
Houston Methodist The Woodlands
Woodlands Emergency Physicians
Houston Methodist TMC
Springwoods Family Medicine
TOTAL PAST MEDICALS
Plaintiff also seeks to recover medical expenses in the future at the trial of this case. The
amount of Plaintiff’s future medical expenses may be determined by the jury in its sole
discretion, with or without expert testimony. Any expert testimony of future medical
expenses, if any, will be elicited from one or more of Plaintiff’s treating physicians, who are
identified in Plaintiff’s most recent response to Request for Disclosure.
Plaintiff also intends to offer evidence of loss of wage earning capacity in the future at the
trial of this case. The amount of Plaintiff’s future loss of wage earning capacity may be
determined by the jury in its sole discretion, with or without expert testimony, not to
exceed the sum of $250,000.
Plaintiff reserves the right to supplement this response.
e. Provide the name, address, and telephone number of persons having knowledge of
relevant facts, and a brief statement of each identified person's connection with the case.
RESPONSE:
Jeffrey C. Lambert, MD
By and through his attorney of record
Eric D. Nielsen
The Nielsen Law Firm, P.C.
9800 Northwest Freeway, Suite 314
Houston, Texas 77092
Tel: (713) 524-4800
Fax: (888) 587-9443
Connection to case: Plaintiff
Leonard Muehr
By and through his attorneys of record
Alan J. Yee
Law Offices of Brad A. Allen
200 Concord, Suite 650
San Antonio, Texas 78216
TL 210-829-5566
Connection to case: Defendant
Skip Cristo Waters
11031 Gallant Flag Drive
Tomball, Texas 77375
T: Unknown
Connection to case: Driver of other vehicle involved in the incident made the basis of this
lawsuit
Juan Lucio Solis-Torres
13855 Sandy Spring Road
Conroe, Texas 77302
T: Unknown
Connection to case: Driver of other vehicle involved in the incident made the basis of this
lawsuit
Ryan S. White
12418 Colt Court
Magnolia, Texas 77354
T: Unknown
Connection to case: Driver of other vehicle involved in the incident made the basis of this
lawsuit
Officer Matthew Sweeney
Badge No. 4P1027
Montgomery County Sheriff’s Office
#1 Criminal Justice Drive
Conroe, Texas 77301
T: 935-760-5800
Connection to case: This individual is the police officer who investigated the collision at
issue as part of his duties with the Montgomery County Sheriff’s Office. He has personal
knowledge of relevant facts and may also be called upon to give expert testimony regarding
his investigation of the collision.
Houston Methodist The Woodlands Hospital and Custodian(s) of Medical and Billing
Records
Dr. Michael V. Nguyen
Dr. Jonathan Neal Levine
Dr. Vasant Garg
Dr. Michael Donaldson Luck
17201 Interstate 45 S.
Shenandoah, Texas 77385
T: 936-270-2000
All employees, officers, physicians, and other medical personnel who had any involvement
with the treatment of Plaintiff or charges for such treatment. Please see medical records
for names of all of Plaintiff’s treating healthcare providers.
Connection to case: Plaintiff’s healthcare provider. Will address Plaintiff’s past treatment
and expenses, as well as the amount and necessity of Plaintiff’s future medical and
treatment expenses and health care costs
Woodlands Emergency Physicians and Custodian(s) of Medical and Billing Records
Libby A. George, MD
P.O. Box 2487
Houston, Texas 77252
T: 281-274-7000
All employees, officers, physicians, and other medical personnel who had any involvement
with the treatment of Plaintiff or charges for such treatment. Please see medical records
for names of all of Plaintiff’s treating healthcare providers.
Connection to case: Plaintiff’s healthcare provider. Will address Plaintiff’s past treatment
and expenses, as well as the amount and necessity of Plaintiff’s future medical and
treatment expenses and health care costs
Houston Methodist Hospital and Custodian(s) of Medical and Billing Records
Dr. Rob Parrish
6565 Fannin Street
Houston, Texas 77030
T: 713-790-3311
All employees, officers, physicians, and other medical personnel who had any involvement
with the treatment of Plaintiff or charges for such treatment. Please see medical records
for names of all of Plaintiff’s treating healthcare providers.
Connection to case: Plaintiff’s healthcare provider. Will address Plaintiff’s past treatment
and expenses, as well as the amount and necessity of Plaintiff’s future medical and
treatment expenses and health care costs
Springwoods Village Family Medicine and Custodian(s) of Medical and Billing Records
Dr. Arlean Michelle Bullard
2255 E. Mossy Oaks Road, Suite 320
Spring, Texas 77389
T: 832-534-7860
All employees, officers, physicians, and other medical personnel who had any involvement
with the treatment of Plaintiff or charges for such treatment. Please see medical records
for names of all of Plaintiff’s treating healthcare providers.
Connection to case: Plaintiff’s healthcare provider. Will address Plaintiff’s past treatment
and expenses, as well as the amount and necessity of Plaintiff’s future medical and
treatment expenses and health care costs
Plaintiff hereby cross-designates any expert witness identified by Defendants and reserve
the right to present parts or all of the testimony of said expert witnesses, live at trial or by
deposition at trial, even if Defendant attempts to de-designate any such expert witness.
Plaintiff reserves the right to designate additional experts and/or call other rebuttal experts
at trial, if their testimony and/or the necessity therefor cannot reasonably be anticipated at
this time.
f. Provide the following for any testifying expert:
(1) the expert's name, address, and telephone number;
Officer Matthew Sweeney
Badge No. 4P1027
Montgomery County Sheriff’s Office
#1 Criminal Justice Drive
Conroe, Texas 77301
T: 935-760-5800
Connection to case: This individual is the police officer who investigated the collision at
issue as part of his duties with the Montgomery County Sheriff’s Office. He has personal
knowledge of relevant facts and may also be called upon to give expert testimony regarding
his investigation of the collision.
The following individuals and/or facilities provided Plaintiff with reasonable and necessary
medical treatment for injuries and/or damages sustained by Plaintiff. The individuals
named herein are not retained experts but they may be called to provide expert testimony
regarding the medical treatment Plaintiff received, the medical reasonableness and
necessity of that treatment, causation, examinations, findings, the costs of the treatment,
the reasonableness and necessity of the costs of Plaintiff’s treatment, Plaintiff’s medical
condition and injuries, Plaintiff’s improvement, if any, resulting from the treatment
Plaintiff received, Plaintiff’s current medical condition, Plaintiff’s future medical
prognosis, including any possible medical treatment Plaintiff may need in the future,
treatment, diagnosis, prognosis, and medical records of Plaintiff, and the cause, extent and
effect of the injuries sustained by Plaintiff, and any other issue regarding causation and
damages relevant to the incident made the basis of this lawsuit, as well as reasonable and
necessary medical expenses and usual and customary fees in the vicinity where medical
services were provided to Plaintiff. The mental impressions, opinions, records and reports
of these medical experts are contained within each medical expert’s medical records of
Plaintiff. The records have been reduced to writing and are on file with this Court or will
be filed with this Court. Any records reviewed by the medical experts are listed and/or
otherwise noted in each expert’s records.
In addition, if necessary, these same experts will offer testimony regarding Plaintiff’s past,
present and future injuries and damages; past, present and future disability, pain and
suffering and mental pain and anguish past, present and future accompanying this type of
injury, and all information contained in the medical records. Further, these medical
experts may testify as to Plaintiff’s previous medical condition(s), give their opinions as to
their effect, if any, on Plaintiff given the nature of his current condition(s). The opinions
and testimony of these medical experts shall be based on their examination and treatment
of Plaintiff, as well as on the medical records of Plaintiff which have been produced in this
case.
These experts may also offer testimony as to the medical and billing records of Plaintiff.
The mental impressions and opinions of the experts are contained within the billing,
medical and other types of records relevant to the incident made the basis of this lawsuit, as
well as the reasonableness and necessity of those same medical expenses. The records have
been reduced to writing and are on file with this Court or will be filed with this Court.
They have been produced to counsel for Defendant.
Houston Methodist The Woodlands Hospital and Custodian(s) of Medical and Billing
Records
Dr. Michael V. Nguyen
Dr. Jonathan Neal Levine
Dr. Vasant Garg
Dr. Michael Donaldson Luck
17201 Interstate 45 S.
Shenandoah, Texas 77385
T: 936-270-2000
All employees, officers, physicians, and other medical personnel who had any involvement
with the treatment of Plaintiff or charges for such treatment. Please see medical records
for names of all of Plaintiff’s treating healthcare providers.
Connection to case: Plaintiff’s healthcare provider. Will address Plaintiff’s past treatment
and expenses, as well as the amount and necessity of Plaintiff’s future medical and
treatment expenses and health care costs
Woodlands Emergency Physicians and Custodian(s) of Medical and Billing Records
Libby A. George, MD
P.O. Box 2487
Houston, Texas 77252
T: 281-274-7000
All employees, officers, physicians, and other medical personnel who had any involvement
with the treatment of Plaintiff or charges for such treatment. Please see medical records
for names of all of Plaintiff’s treating healthcare providers.
Connection to case: Plaintiff’s healthcare provider. Will address Plaintiff’s past treatment
and expenses, as well as the amount and necessity of Plaintiff’s future medical and
treatment expenses and health care costs
Houston Methodist Hospital and Custodian(s) of Medical and Billing Records
Dr. Rob Parrish
6565 Fannin Street
Houston, Texas 77030
T: 713-790-3311
All employees, officers, physicians, and other medical personnel who had any involvement
with the treatment of Plaintiff or charges for such treatment. Please see medical records
for names of all of Plaintiff’s treating healthcare providers.
Connection to case: Plaintiff’s healthcare provider. Will address Plaintiff’s past treatment
and expenses, as well as the amount and necessity of Plaintiff’s future medical and
treatment expenses and health care costs
Springwoods Village Family Medicine and Custodian(s) of Medical and Billing Records
Dr. Arlean Michelle Bullard
2255 E. Mossy Oaks Road, Suite 320
Spring, Texas 77389
T: 832-534-7860
All employees, officers, physicians, and other medical personnel who had any involvement
with the treatment of Plaintiff or charges for such treatment. Please see medical records
for names of all of Plaintiff’s treating healthcare providers.
Connection to case: Plaintiff’s healthcare provider. Will address Plaintiff’s past treatment
and expenses, as well as the amount and necessity of Plaintiff’s future medical and
treatment expenses and health care costs
Plaintiff hereby cross-designates any expert witness identified by Defendants and reserve
the right to present parts or all of the testimony of said expert witnesses, live at trial or by
deposition at trial, even if Defendant attempts to de-designate any such expert witness.
Plaintiff reserves the right to designate additional experts and/or call other rebuttal experts
at trial, if their testimony and/or the necessity therefor cannot reasonably be anticipated at
this time.
(2) the subject matter on which the expert will testify;
The foregoing police officer will testify concerning his training and experience in
investigating vehicular collisions, his observations of the scene of the collision, his
observations and conversations with the drivers involved, and his opinions as to the
negligence of Defendant, the lack of negligence on the part of Plaintiff, and who was at fault
for causing this collision.
The foregoing healthcare providers will testify concerning the nature and extent of
Plaintiff’s injuries, the proximate cause thereof, their examination and treatment of
Plaintiff, Plaintiff’s prognosis, and the reasonableness and necessity of her medical bills,
chiropractic treatments, as well as the amount and necessity of Plaintiff’s future medical,
chiropractic and treatment expenses and health care costs.
(3) the general substance of the expert's mental impressions and opinions and
a brief summary of the basis for them, or if the expert is not retained by,
employed by, or otherwise subject to your control, documents reflecting such
information;
Please refer to the officer’s police report for this information.
Please refer to the medical records and bills of the foregoing healthcare providers for this
information. The foregoing healthcare providers will testify concerning the nature and
extent of Plaintiff’s injuries, the proximate cause thereof, their examination and treatment
of Plaintiff, Plaintiff’s prognosis, and the reasonableness and necessity of their medical
bills, chiropractic treatments, as well as the amount and necessity of Plaintiff’s future
medical, chiropractic and treatment expenses and health care costs.
(4) if the expert is retained by, employed by, or otherwise subject to your
control:
(a) all documents, tangible things, reports, models, or data
compilations that have been provided to, reviewed by, or prepared
by or for the expert in anticipation of the expert's testimony; and
(b) the expert's current resume and bibliography
Not applicable.
g. Provide any indemnity and insuring agreements described in Rule 192.3(f).
RESPONSE:
Not applicable.
h. Provide any settlement agreements described in Rule 192.3(g).
RESPONSE:
Not applicable.
i. Provide any witness statements described in Rule 192.3(h).
RESPONSE:
None.
j. In a suit alleging physical or mental injury and damages from the occurrence that is the
subject of the case, provide all medical records and bills that are reasonably related to the
injuries or damages asserted or, in lieu thereof, an authorization permitting the disclosure
of such medical records and bills.
RESPONSE:
Please see attached medical authorizations and medical/billing records provided and the
medical/billing records filed or to be filed with the Court.
k. In a suit alleging physical or mental injury and damages from the occurrence that is the
subject of the case, provide all medical records and bills you have obtained by virtue of
an authorization furnished by the requesting party;
RESPONSE:
Not applicable.
l. Provide the name, address and telephone number of any person who may be designated
as a responsible third party.
RESPONSE:
None known to Plaintiff at this time.
Preview
Cause No. 20 06632 JEFFERY C. LAMBERT, MD IN THE DISTRICT COURT OF § v. § MONTROMERY COUNTY, TEXAS § LEONARD MUEHR JUDICIAL DISTRICT DEFENDANT LEONARD MUEHR’S MOTION FOR LEAVE AND MOTION TO COMPEL RULE 204 EXAMINATION TO THE HONORABLE COURT: Defendant LEONARD MUEHR, requests leave of Court to file the following Motion to Compel Plaintiff to submit to a Rule 204 examination by Defendant’s expert neuropsychologist. I support thereof, Defendant would respectfully show the Court as follows: INTRODUCTION This case a prime example of when a Rule 204 medical examination is appropriateThis Court should order 1) Plaintiff to appear for defense medical examination, and 2) Order Plaintiff designated neuropsychologist Larry Pollack, PhD, to forward his file and raw test data directly to Defendant retained expert Gilbert Martinez, PhD, ABPP because: Plaintiff has placed his neuropsychological condition at issue by claiming traumatic brain injury and by designating his own retained neuropsychologist; Plaintiff seeks damages for future medical care recommended by his attorney referred physicians, Good cause is present because Defendant ha no less intrusive means of obtaining the information sought and ithout the 1 examination, Defendant will be prejudiced in his defense of this case; and Pursuant to Rule 204(c)(2), this Court may order the examination when the Plaintiff has designated a psychologist as a testifying expert for use at trial, which is exactly what has occurred in this case. Plaintiff claims he sustained a traumatic brain injury the motor vehicle accident made the basis of this lawsuit. e has undergone medical treatment for that alleged injur claims he will never fully recover, and seeks damages for future medical care. Texas courts have repeatedly held that when a plaintiff claims the need for future medical care as Plaintiff does here, “fundamental fairness dictates” that both parties’ experts be allowed to examine the claimant, lest one side “be at a severe disadvantage in the battle of the experts.” Plaintiff’ counsel has refused to produce their client for examination, and without the examination, Defendant’ ability to defend themselves in this case will be severely prejudiced. Defendant’ expert has testified that he needs to examine Plaintiff in person to: (1) properly evaluate Plaintiff’s current symptoms in relation to the alleged mechanism of injury, (2) form complete opinions regarding the validity of Plaintiff’s past and future medical damages and alleged cognitive impairment and (3) determine Plaintiff’s ability to return to his pre accident condition Laub v. Millard, 925 S.W.2d 363, 365 (Tex. App.Houston [1st Dist.] 1996, orig. proceeding); Sherwood Lane Assocs. v. O'Neill, 782 S.W.2d 942, 945 (Tex. App.Houston [1st Dist.] 1990, orig. proceeding). ithout the requested examination, Defendant’s expert will be vulnerable to unfair impeachment at trial simply because he was not provided with the same opportunities as Plaintiff’s testifying, expert neuropsychologist. Texas courts have repeatedly held that a Rule 204 examination is warranted under such circumstances Defendants therefore seek this Court’s assistance in compelling Rule 204 examination. MOTION FOR LEAVE Rule 204 provides that a party may to compel a examination no later than 30 days before the end of the discovery period. IV. P. 204(a). This Motion is being brought less than 30 days before the end of the discovery period, August 17, 2021, due to circumstances beyond Mr. Muehr’s control. On June 21, 2021, Plaintiff disclosed Larry Pollock, Ph.D., as retained, testifying expert neuropsychologist. Defendant accordingly had a little more than three weeks until July 17, 2021 to move for a neuropsychological examination. Unfortunately, during that same period, Defendant’s original counsel withdrew and the attorneys who substituted to represent him failed to run a conflicts check. Those attorneys discovered the problem and withdrew on August 2, 2021. That same day, current defense counsel substituted in as counsel for Mr. Muehr. Current defense counsel has therefore been in possession of this case and the file for little more than a week. Upon realizing that (1) a defense neuropsychological examination should have been requested, and (2) either of Defendant’s two previous attorneys had requested one, counsel immediately prepared and filed the instant motion Defendant requests leave of Court to bring this Motion to Compel. The requested examination is vital to Defendant’s defense in this case. Plaintiff has sued for damages exceeding $1 million and intends to seek exemplary damages as well, and the majority of Plaintiff’s alleged damages are based on his alleged traumatic brain injury. Mr. Muehr is not at fault for failing to request the examination sooner, and he should not be made to pay for the mistakes of his previous attorneys. Moreover, trial in this case is not until November 15, 2021, and therefore Plaintiff will not be prejudiced by allowing the requested examination to go forward. Defendant accordingly requests leave of Court to bring this Motion to Compel a Rule 204 Examination. BACKGROUND FACTS This case arises out of an incident that occurred on February 8, 2020, between Plaintiff’s vehicle Defendant’s vehicle and four other vehicles. Plaintiff alleges that he was driving at or near the intersection of FM 1488 and Old Hockley Road. Plaintiff was stopped for traffic in front of him. Plaintiff alleges that Defendant was a distracted driver looking at his cell phone, and that Defendant and smashed into the rear of Plaintiff’s vehicle. Plaintiff’s vehicle was push into the vehicle in front of him, and so on until five (5) vehicles were damaged. Plaintiff alleges that he injured his head in the collision and his physicians have diagnosed him with a traumatic rain njury. Defendant retained Gilbert Martinez .D., ABPP to prepare neuropsychological and medical causation expert opinions in this case. Dr. Martinez is certified in Clinical Neuropsychology by the American Board of Professional Psychology experienced in conducting neuropsychological and psychological assessment and intervention with individuals suffering from a broad range of neurological, behavioral, and emotional disorders, with a subspecialty in head trauma rehabilitation Dr. Martinez reviewed Plaintiff’s medical records but advised that he needed to examine aintiff to complete his expert opinions Dr. Martinez stated that without neuropsychological examination, cannot fully evaluate Plaintiff’s mental health condition, clinical symptoms, impairment, and need for future medical care, if any Defendant ha twice requested that Dr. Martinez be allowed to examine Plaintiff. Plaintiff’s counsel refused, and Defendant accordingly seek this Court’s assistance in obtaining the requested examination. RGUMENT AND AUTHORITIES Good Cause Exists for Ordering the Examination. Under Rule 204 an examination by a qualified physician is warranted when (1) the party has placed her physical condition in controversy, and (2) “good cause” exists for the examination. IV. P. 204.1(c)(1). plaintiff in a negligence action who claims physical injury as the result of a party’s negligence places “physical injury clearly in controversy and provides the defendant with good cause for an examination to determine the existence and extent of such asserted injury.” See Schlagenhauf v. Holder 9 U.S. 104, 119 (1964) . Plaintiff seeks damages for alleged injuries to his head as a Exhibit , Affidavit of Dr. Martinez Exhibit August 2, 2021 Email Correspondence; Exhibit August 3, 2021 Correspondence. result of the subject accident. e has accordingly placed h physical condition in controversy. To establish “good cause” for the examination, Defendants must: (1) show that the requested examination is relevant to issues in controversy and will produce or likely lead to relevant evidence, (2) establish a reasonable nexus between the requested examination and the condition in controversy, and (3) demonstrate that the desired information cannot be obtained by less intrusive means. In H.E.B. Grocery Co., 492 S.W.3d 300, 303 (Tex. 2016). ll three elements are present here. The requested examination is relevant to the issues in controversy and will lead to relevant evidence. The first element is self evident. At the heart of Plaintiff’s case lies claim that due to Defendants’ alleged negligence, he suffered “serious injuries” including “mental anguish and pain and suffering,” and “will likely continue to suffer these damages in the future.” In addition, Plaintiff has identified neuropsychologist expertwho examine Plaintiffas an expert witness with knowledge of Plaintiff’s condition and treatment One of Defendant’ primary defenses in this case concerns the alleged severity of Plaintiff’s claimed injuries. Plaintiff contends he sustained life altering injuries that require future medical care; Defendant contends he did not. The requested examination is accordingly relevant to the issues in controversy and will lead to relevant evidence. See Plaintiff’s Original Petition, ¶¶5, 7. Exhibit Plaintiff’s Responses to Defendants’ Requests for Disclosure. In general, and particularly where the intended examination is not intrusive, invasive or unnecessarily physically uncomfortable, parties are permitted to explore matters not covered by the opposing party s examinations, make their own observations, and attempt to discover facts that may contradict the opinions of the opposing party expert witnesses.” In re Ten Hagen Excavating, Inc., 435 S.W.3d 859, (Tex. App. Dallas 2014, no pet.). Defendant entitled to have his expert, Dr. Martinez, explore the opinions and facts behind Plaintiff’s past medical care for h alleged injuries and Plaintiff’s alleged need for future medical care and cognitive rehabilitation See In re Advanced Powder Sol’ns, 496 S.W.3d 838 (Tex. App.Houston [1 st Dist.] 2016, no pet.) (independent medical exam is warranted when plaintiff intends to prove future medical expenses). The examination will enable Dr. Martinez to draw his own observations and discover facts that may contradict the opinions of Plaintiff’s treating doctors See id. Without the examination, Dr. Martinez will have no other opportunity to explore and develop evidence that contradicts the opinions espoused by Plaintiff’s experts The requested examination is accordingly relevant to Plaintiff’s claimed injuries, to alleged future medical needs, to h experts’ opinions, and to Defendant’ defense of this case. A reasonable nexus exists between the requested examination and the condition in controversy. The nexus element is easily satisfied: Plaintiff is claiming a head injur from the accident that required past medical care and will require future medical care, and due to which he is claiming diagnoses of Major Cognitive Disorder and Posttraumatic Stress Disorder. Dr. Martinez examination will pertain to those alleged injuries and need for future care. The requested examination is therefore directly related to Plaintiff’s alleged damages in this case. The desired information cannot be obtained by less intrusive means. Defendant ha no less intrusive means obtaining the formation sought Simply reviewing Plaintiff’s the medical records is not a substitute for examining h , for several reasons. First, as Dr. Martinez explains in his affidavit, he cannot form full and complete opinions in this case without examining Plaintiff; his review of Plaintiff’s medical records does not provide him with all the needed information examination will allow Dr. Martinez to evaluate Plaintiff’s alleged injuries as compared to the mechanism of injury, current symptoms and limitations, and to form his own opinions regarding Plaintiff’s diagnoses of Major Cognitive Disorder and Posttraumatic Stress Disorder. In short, Dr. Martinez states that the examination is necessary, as he cannot offer fully formed opinions without examining Plaintiff. Second Defendant will be placed at a significant disadvantage if his expert is not permitted to examine Plaintiff. When plaintiff’s expert has examined h , “fundamental fairness” dictates that the defendant’s expert should also have the opportunity to determine facts that could contradict opinions of plaintiff’s experts. See Laub v. Millard 925 S.W.2d 363, 365 (Tex. App.Houston [1st Dist.] 1996, orig. pro ceeding) Sherwood Lane Assocs. v. O'Neill, 782 S.W.2d 942, 945 (Tex. App.Houston [1st Dist.] 1990, orig. Exhibit Affidavit of Dr. Martinez proceeding) (granting mandamus because without examination, defendant’s expert’s analysis would be limited to reviewing the records and testimony from plaintiff’s experts, putting defendant at a severe disadvantage in the “battle of the experts.”).Similarly, en one party s expert offers opinions on future medical expenses, the other party often has no opportunity to explore and develop evidence that supports theories that contradict the theories espoused by that expert, absent an independent medical examination. In re Advanced Powder Sol’ns, 496 S.W.3d 838 (Tex. App.Houston [1 st Dist.] 2016, no pet.) (quoting Ten Hagen, 435 S.W.3d at 871). Without an opportunity to examine Plaintiff, Dr. Martinez can be undermined in front of the jury with the simple argument that ver laid eyes on Plaintiff. In contrast, Plaintiff can point to the records and testimony treating doctors, all of whom have had the opportunity to examine h at least once, and some more than once The inability to examine Plaintiff would accordingly place Defendants “at a severe disadvantage in the battle of the experts” at trial. side from an examination, Dr. Martinez has no other mean of evaluating Plaintiff’s potential need for future care and developing any evidence that would contradict this opinion. As such, there is no substitute for the requested neuropsychological examination. Defendant accordingly request neuropsychological examination of Plaintiff so that Dr. Martinez can provide opinions related to Plaintiff’s alleged injuries and anticipated future medical treatment. See Ten Hagen, 435 S.W.3d 868 (affirming order compelling physical examination because plaintiff placed his physical condition in controversy by claiming physical injuries and damages for future surgery) see also Coates v. Whittington, 758 S.W.2d 749, 753 (Tex. 1988) If, however, a plaintiff intends to use expert medical testimony to prove his or her alleged mental condition, that condition is placed in controversy and the defendant would have good cause for an examination under Rule 167a [predecessor to Rule 204.1].”). Rule 204 Expressly Authorizes Psychological Evaluations. Rule 204 states that “an examination by a psychologist may be ordered when the party responding to the motion has designated a psychologist as a testifying expert or has disclosed a psychologist’s records for possible use at trial.” IV. P. 204.1(c)(2). The circumstances of this case fall directly within the ambit of this rule. Plaintiff has designated an expert neuropsychologist as a testifying witness. Defendant is therefore entitled to have his own neuropsychologist evaluate Plaintiff. IV. CONCLUSION Defendant ha satisfied the requirements in Rule 204 for obtaining a neuropsychological examination. Defendant accordingly request that Plaintiff be compelled to present for a neuropsychological examination by Defendant’ neuropsychologist, Dr. Martinez and Order Plaintiff’s designated neuropsychologist Larry Pollack, PhD, to forward his file and raw test data directly to Defendant retained expert Gilbert Martinez, PhD, ABPP WHEREFORE, PREMISES CONSIDERED, Defendant, LEONARD MUEHR pray that the foregoing Motion to Compel be granted, that Plaintiff be ordered to present for a neuropsychological examination on a certain date and time, and for all such other and further relief to which Defendant may show himself justly entitled. Email: ttaylor@jandflaw.com 1456 First Colony Boulevard Sugar Land, Texas 77479 313 5000 MIKE JOHANSON VICKI L. DALEY RANDY L. FAIRLESS * JOCELYN A. HOLLAND TODD TAYLOR * KEVIN KYSER BART BASDEN * GREG LAUGHLIN KELLEY J. FRIEDMAN KIMBERLY M.A. NIETING CHRIS M. VOLF BETH A. RAHWAN TIMOTHY J. NISBET oard Certified in Personal Injury Trial Law Texas Board of Leg pecialization ____________ DD TAYLOR RECT DIAL 281 EMAIL: ttaylor@jandflaw.com st , 2021 File 11.1 Eric D. Nielsen The Nielson Law Firm via email 9800 Northwest Freeway, Suite 314 Houston, TX 77092 : Cause No. 20 06632; Jeffery C. Lambert, MD vs. Leonard Muehr; In the 284th Judicial District Court of Montgomery County, Texas Nielsen: ollowing up on yesterday’s email, accept this as our formal written request to instruct Dr. Poll ck to forward his file material and raw data” testing results to our neuropsychologist expert, Gilbert Martinez. n order to accomplish this, your client, Je ery Lambert, will need to sign authorization instructing Dr. Pollock to forward the requested materials. Dr. Pollock will have the appropriate form for his needs. urther, pursuant to TRCP 204, Defendant formally requests physical and mental examination of Dr. Lambert to be performed by neuropsychologist Martinez to complete a independent physical and mental assessment and administer a comprehensive neuropsychological evaluation. Please provide dates in mid to late August or early Septe er when Dr. Lambert would be available. CAUSE NO. 06632 JEFFREY C. LAMBERT, MD IN THE DISTRICT COURT OF VS. MONTGOMERY COUNTY, TEXAS LEONARD MUE JUDICIAL DISTRICT RESPONSE TO DEFENDANT’S REQUEST FOR DISCLOSURE TO: Defendant, LEONARD MUEHR , by and throu attorney of record, Alan J. Yee, Law Offices of Brad A. Allen, 200 Concord Plaza Drive, Suite 650, San Antonio, T xas COMES NOW, Plaintif JEFFREY C. LAMBERT, MD, and serves Response to Defendant, LEONARD MUEHR Request for Disclosure pursuant to the Texas Rules of Civil Procedure. Respectfully submitted, THE NIELSEN LAW FIRM, P.C. /s/ Eric D Nielsen Eric D. Nielsen State Bar 9800 Northwest Freeway, Suite 314 uston, Texas 77092 Tel: (713) 524 Fax: (888) 587 service@nielsentriallaw.com COUNSEL FOR PLAINTIFF CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing instrument was served upon all counsel of record pursuant to Rule 21a of the Texas Rules of Civil Procedure on this the 31st day of July 2020. /s/ Eric D. Nielsen Eric D. Nielsen PLAINTIFF’S RESPONSES TO DEFENDANT’S REQUEST FOR DISCLOSURE a. Provide the correct names of the parties to this lawsuit. RESPONSE: To Plaintiff’s knowledge, the parties have been correctly named. b. Provide the name, address and telephone number of any potential parties. RESPONSE: Plaintiff knows of no other potential parties at this time. c. Provide the legal theories and, in general, the factual bases of your claims or defenses. RESPONSE: On or about February 6, 2020, Plaintiff was driving east on FM 1488 near the intersection of FM 1488 and Old Hockley Road in Montgomery County, Texas. At that time, Defendant was also driving east on FM 1488 near the intersection of FM 1488 and Old Hockley Road. Plaintiff was stopped for traffic in front of him. Defendant was a distracted driver, looking at his cell phone and smashed into the rear of Plaintiff’s vehicle. The force of this collision was great that is pushed Plaintiff’s vehicle into the vehicle in front of Plaintiff’s vehicle, and so on until five (5) vehicles were damaged. As a result of this collision, Plaintiff was seriously injured. NEGLIGENCE AND GROSS NEGLIGENCE On the occasion in question, Defendant LEONARD MUEHR was negligent and grossly negligent in one or more of the following respects: a) failing to keep a proper lookout; b) failing to brake to avoid the collision; c) failing to apply his brakes in a timely manner; d) driving at a rate of speed in excess of the speed that a reasonably prudent person in the same or similar circumstances would have driven; e) failing to control his speed; f) failing to steer to avoid the collision; g) failing to leave an assured clear distance between Defendant’s vehicle and the vehicle in front of Defendant; h) texting while driving; and i) looking at his cell phone instead of the road and vehicles in front of Defendant. Each of the foregoing acts, alone or in combination with the others, constitutes negligence and gross negligence and a violation of Defendant LEONARD MUEHR’S duty of care to Plaintiff, which proximately caused the occurrence in question, and Plaintiffs’ damages. ACTUAL DAMAGES As a proximate result of the negligence and gross negligence of Defendant LEONARD MUEHR, Plaintiff was injured. Further, to the extent, if any, that Plaintiff suffered from any pre-existing condition, if any, the collision aggravated the pre-existing condition to the point that it became symptomatic or more symptomatic than it was before the collision. The negligence and gross negligence of Defendant LEONARD MUEHR has proximately caused Plaintiff to suffer the following elements of damages in the past and Plaintiff will, in all reasonable probability, continue to suffer such elements of damage in the future: 1) physical and mental pain and anguish; 2) loss of wage earning capacity; 3) physical impairment; 4) disfigurement; 5) medical expenses. Plaintiff has suffered damages from Defendant’s wrongful conduct described herein. As discussed in this Petition, Plaintiff has suffered not only easily quantifiable economic damages but also other forms of damages such as mental anguish and pain and suffering and will likely continue to suffer these damages in the future. Both the Constitution of the United States and the Constitution of the State of Texas provide Plaintiff with the inalienable fundamental right to have his case heard and decided by a jury of his peers at trial. In accordance with these fundamental rights it will ultimately be the responsibility and province of a jury of Plaintiff’s peers to decide the economic value of the damages Plaintiff has suffered as a result of Defendant’s wrongful actions and omissions which form the basis of this lawsuit. However, as Plaintiff is required by law to state the maximum amount of damages he is seeking, Plaintiff believes that when the totality of the his damages are considered, along with the wrongful nature of Defendant’s conduct, it is possible that a jury may ultimately decide that Plaintiff’s damages exceed one million dollars. Plaintiff therefore sues for a sum in excess of 1,000,000 to be determined by the jury in its sole discretion. EXEMPLARY DAMAGES At the time of the collision, Defendant LEONARD MUEHR was grossly negligent in texting while driving and/or looking at his cell phone instead of the road and vehicles in front of him. The conduct of Defendant LEONARD MUEHR was “grossly negligent” as the term “gross neglgience” is defined by Chapter 41 of the Texas Civil Practice and Remedies Code because it constituted an act or omission, (i) which when viewed objectively from the standpoint of the actor at the time of its occurrence involves an extreme degree of risk, considering the probability and magnitude of the potential harm to others; and (ii) of which the actor has actual, subjective awareness of the risk involved, but nevertheless proceeds with conscious indifference to the rights, safety, or welfare of others. Plaintiff therefore sues for exemplary damages in a sum in excess of the jurisdictional limits of the Court to be determined by the jury in its sole discretion. d. Provide the amount and any method of calculating economic damages. RESPONSE: The amount of Plaintiff’s “economic” damages is calculated by adding Plaintiff’s past medical bills and expenses in the past and in the future to Plaintiff’s lost wages and/or wage-earning capacity in the past and in the future. Plaintiff’s past medical bills and expenses which have been proven or will be proven by affidavit are as follows: Houston Methodist The Woodlands Woodlands Emergency Physicians Houston Methodist TMC Springwoods Family Medicine TOTAL PAST MEDICALS Plaintiff also seeks to recover medical expenses in the future at the trial of this case. The amount of Plaintiff’s future medical expenses may be determined by the jury in its sole discretion, with or without expert testimony. Any expert testimony of future medical expenses, if any, will be elicited from one or more of Plaintiff’s treating physicians, who are identified in Plaintiff’s most recent response to Request for Disclosure. Plaintiff also intends to offer evidence of loss of wage earning capacity in the future at the trial of this case. The amount of Plaintiff’s future loss of wage earning capacity may be determined by the jury in its sole discretion, with or without expert testimony, not to exceed the sum of $250,000. Plaintiff reserves the right to supplement this response. e. Provide the name, address, and telephone number of persons having knowledge of relevant facts, and a brief statement of each identified person's connection with the case. RESPONSE: Jeffrey C. Lambert, MD By and through his attorney of record Eric D. Nielsen The Nielsen Law Firm, P.C. 9800 Northwest Freeway, Suite 314 Houston, Texas 77092 Tel: (713) 524-4800 Fax: (888) 587-9443 Connection to case: Plaintiff Leonard Muehr By and through his attorneys of record Alan J. Yee Law Offices of Brad A. Allen 200 Concord, Suite 650 San Antonio, Texas 78216 TL 210-829-5566 Connection to case: Defendant Skip Cristo Waters 11031 Gallant Flag Drive Tomball, Texas 77375 T: Unknown Connection to case: Driver of other vehicle involved in the incident made the basis of this lawsuit Juan Lucio Solis-Torres 13855 Sandy Spring Road Conroe, Texas 77302 T: Unknown Connection to case: Driver of other vehicle involved in the incident made the basis of this lawsuit Ryan S. White 12418 Colt Court Magnolia, Texas 77354 T: Unknown Connection to case: Driver of other vehicle involved in the incident made the basis of this lawsuit Officer Matthew Sweeney Badge No. 4P1027 Montgomery County Sheriff’s Office #1 Criminal Justice Drive Conroe, Texas 77301 T: 935-760-5800 Connection to case: This individual is the police officer who investigated the collision at issue as part of his duties with the Montgomery County Sheriff’s Office. He has personal knowledge of relevant facts and may also be called upon to give expert testimony regarding his investigation of the collision. Houston Methodist The Woodlands Hospital and Custodian(s) of Medical and Billing Records Dr. Michael V. Nguyen Dr. Jonathan Neal Levine Dr. Vasant Garg Dr. Michael Donaldson Luck 17201 Interstate 45 S. Shenandoah, Texas 77385 T: 936-270-2000 All employees, officers, physicians, and other medical personnel who had any involvement with the treatment of Plaintiff or charges for such treatment. Please see medical records for names of all of Plaintiff’s treating healthcare providers. Connection to case: Plaintiff’s healthcare provider. Will address Plaintiff’s past treatment and expenses, as well as the amount and necessity of Plaintiff’s future medical and treatment expenses and health care costs Woodlands Emergency Physicians and Custodian(s) of Medical and Billing Records Libby A. George, MD P.O. Box 2487 Houston, Texas 77252 T: 281-274-7000 All employees, officers, physicians, and other medical personnel who had any involvement with the treatment of Plaintiff or charges for such treatment. Please see medical records for names of all of Plaintiff’s treating healthcare providers. Connection to case: Plaintiff’s healthcare provider. Will address Plaintiff’s past treatment and expenses, as well as the amount and necessity of Plaintiff’s future medical and treatment expenses and health care costs Houston Methodist Hospital and Custodian(s) of Medical and Billing Records Dr. Rob Parrish 6565 Fannin Street Houston, Texas 77030 T: 713-790-3311 All employees, officers, physicians, and other medical personnel who had any involvement with the treatment of Plaintiff or charges for such treatment. Please see medical records for names of all of Plaintiff’s treating healthcare providers. Connection to case: Plaintiff’s healthcare provider. Will address Plaintiff’s past treatment and expenses, as well as the amount and necessity of Plaintiff’s future medical and treatment expenses and health care costs Springwoods Village Family Medicine and Custodian(s) of Medical and Billing Records Dr. Arlean Michelle Bullard 2255 E. Mossy Oaks Road, Suite 320 Spring, Texas 77389 T: 832-534-7860 All employees, officers, physicians, and other medical personnel who had any involvement with the treatment of Plaintiff or charges for such treatment. Please see medical records for names of all of Plaintiff’s treating healthcare providers. Connection to case: Plaintiff’s healthcare provider. Will address Plaintiff’s past treatment and expenses, as well as the amount and necessity of Plaintiff’s future medical and treatment expenses and health care costs Plaintiff hereby cross-designates any expert witness identified by Defendants and reserve the right to present parts or all of the testimony of said expert witnesses, live at trial or by deposition at trial, even if Defendant attempts to de-designate any such expert witness. Plaintiff reserves the right to designate additional experts and/or call other rebuttal experts at trial, if their testimony and/or the necessity therefor cannot reasonably be anticipated at this time. f. Provide the following for any testifying expert: (1) the expert's name, address, and telephone number; Officer Matthew Sweeney Badge No. 4P1027 Montgomery County Sheriff’s Office #1 Criminal Justice Drive Conroe, Texas 77301 T: 935-760-5800 Connection to case: This individual is the police officer who investigated the collision at issue as part of his duties with the Montgomery County Sheriff’s Office. He has personal knowledge of relevant facts and may also be called upon to give expert testimony regarding his investigation of the collision. The following individuals and/or facilities provided Plaintiff with reasonable and necessary medical treatment for injuries and/or damages sustained by Plaintiff. The individuals named herein are not retained experts but they may be called to provide expert testimony regarding the medical treatment Plaintiff received, the medical reasonableness and necessity of that treatment, causation, examinations, findings, the costs of the treatment, the reasonableness and necessity of the costs of Plaintiff’s treatment, Plaintiff’s medical condition and injuries, Plaintiff’s improvement, if any, resulting from the treatment Plaintiff received, Plaintiff’s current medical condition, Plaintiff’s future medical prognosis, including any possible medical treatment Plaintiff may need in the future, treatment, diagnosis, prognosis, and medical records of Plaintiff, and the cause, extent and effect of the injuries sustained by Plaintiff, and any other issue regarding causation and damages relevant to the incident made the basis of this lawsuit, as well as reasonable and necessary medical expenses and usual and customary fees in the vicinity where medical services were provided to Plaintiff. The mental impressions, opinions, records and reports of these medical experts are contained within each medical expert’s medical records of Plaintiff. The records have been reduced to writing and are on file with this Court or will be filed with this Court. Any records reviewed by the medical experts are listed and/or otherwise noted in each expert’s records. In addition, if necessary, these same experts will offer testimony regarding Plaintiff’s past, present and future injuries and damages; past, present and future disability, pain and suffering and mental pain and anguish past, present and future accompanying this type of injury, and all information contained in the medical records. Further, these medical experts may testify as to Plaintiff’s previous medical condition(s), give their opinions as to their effect, if any, on Plaintiff given the nature of his current condition(s). The opinions and testimony of these medical experts shall be based on their examination and treatment of Plaintiff, as well as on the medical records of Plaintiff which have been produced in this case. These experts may also offer testimony as to the medical and billing records of Plaintiff. The mental impressions and opinions of the experts are contained within the billing, medical and other types of records relevant to the incident made the basis of this lawsuit, as well as the reasonableness and necessity of those same medical expenses. The records have been reduced to writing and are on file with this Court or will be filed with this Court. They have been produced to counsel for Defendant. Houston Methodist The Woodlands Hospital and Custodian(s) of Medical and Billing Records Dr. Michael V. Nguyen Dr. Jonathan Neal Levine Dr. Vasant Garg Dr. Michael Donaldson Luck 17201 Interstate 45 S. Shenandoah, Texas 77385 T: 936-270-2000 All employees, officers, physicians, and other medical personnel who had any involvement with the treatment of Plaintiff or charges for such treatment. Please see medical records for names of all of Plaintiff’s treating healthcare providers. Connection to case: Plaintiff’s healthcare provider. Will address Plaintiff’s past treatment and expenses, as well as the amount and necessity of Plaintiff’s future medical and treatment expenses and health care costs Woodlands Emergency Physicians and Custodian(s) of Medical and Billing Records Libby A. George, MD P.O. Box 2487 Houston, Texas 77252 T: 281-274-7000 All employees, officers, physicians, and other medical personnel who had any involvement with the treatment of Plaintiff or charges for such treatment. Please see medical records for names of all of Plaintiff’s treating healthcare providers. Connection to case: Plaintiff’s healthcare provider. Will address Plaintiff’s past treatment and expenses, as well as the amount and necessity of Plaintiff’s future medical and treatment expenses and health care costs Houston Methodist Hospital and Custodian(s) of Medical and Billing Records Dr. Rob Parrish 6565 Fannin Street Houston, Texas 77030 T: 713-790-3311 All employees, officers, physicians, and other medical personnel who had any involvement with the treatment of Plaintiff or charges for such treatment. Please see medical records for names of all of Plaintiff’s treating healthcare providers. Connection to case: Plaintiff’s healthcare provider. Will address Plaintiff’s past treatment and expenses, as well as the amount and necessity of Plaintiff’s future medical and treatment expenses and health care costs Springwoods Village Family Medicine and Custodian(s) of Medical and Billing Records Dr. Arlean Michelle Bullard 2255 E. Mossy Oaks Road, Suite 320 Spring, Texas 77389 T: 832-534-7860 All employees, officers, physicians, and other medical personnel who had any involvement with the treatment of Plaintiff or charges for such treatment. Please see medical records for names of all of Plaintiff’s treating healthcare providers. Connection to case: Plaintiff’s healthcare provider. Will address Plaintiff’s past treatment and expenses, as well as the amount and necessity of Plaintiff’s future medical and treatment expenses and health care costs Plaintiff hereby cross-designates any expert witness identified by Defendants and reserve the right to present parts or all of the testimony of said expert witnesses, live at trial or by deposition at trial, even if Defendant attempts to de-designate any such expert witness. Plaintiff reserves the right to designate additional experts and/or call other rebuttal experts at trial, if their testimony and/or the necessity therefor cannot reasonably be anticipated at this time. (2) the subject matter on which the expert will testify; The foregoing police officer will testify concerning his training and experience in investigating vehicular collisions, his observations of the scene of the collision, his observations and conversations with the drivers involved, and his opinions as to the negligence of Defendant, the lack of negligence on the part of Plaintiff, and who was at fault for causing this collision. The foregoing healthcare providers will testify concerning the nature and extent of Plaintiff’s injuries, the proximate cause thereof, their examination and treatment of Plaintiff, Plaintiff’s prognosis, and the reasonableness and necessity of her medical bills, chiropractic treatments, as well as the amount and necessity of Plaintiff’s future medical, chiropractic and treatment expenses and health care costs. (3) the general substance of the expert's mental impressions and opinions and a brief summary of the basis for them, or if the expert is not retained by, employed by, or otherwise subject to your control, documents reflecting such information; Please refer to the officer’s police report for this information. Please refer to the medical records and bills of the foregoing healthcare providers for this information. The foregoing healthcare providers will testify concerning the nature and extent of Plaintiff’s injuries, the proximate cause thereof, their examination and treatment of Plaintiff, Plaintiff’s prognosis, and the reasonableness and necessity of their medical bills, chiropractic treatments, as well as the amount and necessity of Plaintiff’s future medical, chiropractic and treatment expenses and health care costs. (4) if the expert is retained by, employed by, or otherwise subject to your control: (a) all documents, tangible things, reports, models, or data compilations that have been provided to, reviewed by, or prepared by or for the expert in anticipation of the expert's testimony; and (b) the expert's current resume and bibliography Not applicable. g. Provide any indemnity and insuring agreements described in Rule 192.3(f). RESPONSE: Not applicable. h. Provide any settlement agreements described in Rule 192.3(g). RESPONSE: Not applicable. i. Provide any witness statements described in Rule 192.3(h). RESPONSE: None. j. In a suit alleging physical or mental injury and damages from the occurrence that is the subject of the case, provide all medical records and bills that are reasonably related to the injuries or damages asserted or, in lieu thereof, an authorization permitting the disclosure of such medical records and bills. RESPONSE: Please see attached medical authorizations and medical/billing records provided and the medical/billing records filed or to be filed with the Court. k. In a suit alleging physical or mental injury and damages from the occurrence that is the subject of the case, provide all medical records and bills you have obtained by virtue of an authorization furnished by the requesting party; RESPONSE: Not applicable. l. Provide the name, address and telephone number of any person who may be designated as a responsible third party. RESPONSE: None known to Plaintiff at this time.