Preview
Filed: 2/14/2023 9:00 AM
JOHN D. KINARD - District Clerk
Galveston County, Texas
Envelope No. 72730247
By: Shailja Dixit
2/14/2023 9:24 AM
CAUSE NO. 22-CV-0729
Plaintiffs IN THE DISTRICT COURT OF
RICHARD VILLNAVE
DARIUS STEWART GALVESTON COUNTY, TEXAS
VS.
Defendant
ENCORE DREDGING 10TH JUDICIAL DISTRICT
PARTNERS, LLC
MEMORANDUM IN SUPPORT OF
MOTION FOR SANCTIONS
MAY IT PLEASE THE COURT:
Encore Dredging Partners, LLC (“Encore”) requests that this Court require Richard
Villnave to pay $2,000.00 to Encore as reimbursement for Dr. Orth’s fee for Mr. Villnave’s
independent medical examination. Mr. Villnave was tardy, rude, and disruptive, all resulting in the
cancellation of his appointment with Dr. Orth. Such disruption has no place in the litigation
process, and as a result, Mr. Villnave should be sanctioned for his behavior and abuse of the
discovery process. Encore also requests an order requiring Mr. Villnave to attend a medical
examination, to be performed by a physician of Encore’s choosing, as well as all costs and
expenses incurred by Encore in filing this Motion.
FACTUAL BACKGROUND
Mr. Villnave contends that he was injured on January 14, 2022 while operating his duck
boat in the West Galveston Bay. Mr. Villnave allegedly struck the discharge line of the dredge
RANGER, a dredge owned and operated by Encore, while traveling at over 30 mph in the dark.
However, Mr. Villnave could not confirm at the time of his incident what his boat struck because
it was in the pre-dawn hours. He instead continued on with his hunt for almost five hours before
reporting his boat damage to Encore.1 He did not, however, report any personal injuries.
Three days after the incident, Mr. Villnave provided Encore with a Witness Questionnaire,
stating that he was lucky he was not injured.2 He also communicated with Encore for several
months about repairing his boat damage, never once mentioning his injuries.
Mr. Villnave eventually filed litigation against Encore claiming serious personal injuries.
As part of his deposition, Mr. Villnave contended that he suffers from hip and shoulder pain, with
his hip pain radiating into his lower back.3 He is treating with Dr. Kenneth Berliner to address
these complaints.
To further investigate Mr. Villnave’s claims, Encore retained Dr. Scott Orth to perform an
independent medical examination. Mr. Villnave’s examination, by agreement of counsel, was
scheduled for January 19, 2023 at 9:30 a.m.
On the date of his scheduled exam, Mr. Villnave was nearly an hour late.4 When he arrived,
he refused to fill out any routine paperwork and was rude and combative with Dr. Orth’s staff.
Then, when Dr. Orth could not see him immediately because Mr. Villnave was so late, Mr.
Villnave created a scene in the waiting room and left Dr. Orth’s office.5
After Mr. Villnave left Dr. Orth’s office, counsel attempted to work with each other to
secure another appointment time for Mr. Villnave. However, Dr. Orth’s office declined to
reschedule Mr. Villanve for an appointment because of his behavior.6 Such behavior has no place
in the litigation process and inhibits the routine course of discovery. As such, Mr. Villnave should
1
Exhibit 1, Excerpt from the Deposition of Richard Villnave, at pp. 47:14-52:22.
2
Id., at p. 68:3-10; Exhibit 2, Witness Questionnaire dated January 17, 2022.
3
Id., at pp. 80:4-10; 82:2-4.
4
Exhibit 3, Correspondence between Dr. Orth’s office and Staines, Eppling, and Kenney, LLC.
5
Id.
6
Id.
2
be sanctioned because he has deprived Encore of its choice of physician and has led to the loss of
$2,000 for Dr. Orth’s fee.7
LAW AND ANALYSIS
As a preliminary consideration, this is not a traditional motion to compel a medical
examination under Rule 204.1. There is no dispute over good cause or whether Mr. Villnave’s
physical condition is in controversy. Indeed, Mr. Villnave’s participation in this type of medical
examination is a matter of fundamental fairness necessary to prevent Encore from being “at a
severe disadvantage in the ‘battle of experts.’” In re Advanced Powder Sols., Inc., 496 S.W.3d
838, 851 (Tex. App.2016). Mr. Villnave’s conduct has flown in the face of fairness by preventing
Encore from evaluating his physical condition and alleged need for additional treatment. While
the parties are attempting to amicably reschedule Mr. Villnave’s evaluation with another
physician, Encore is being charged a cancellation fee by Dr. Orth because of Mr. Villnave’s
conduct. Also, and despite the parties efforts, an order requiring Villnave to attend a medical
examination will only solidify Encore’s rights to proper discovery in this matter.
By being tardy, rude, and disruptive, Mr. Villnave has abused the discovery process by
forcing the cancellation of his evaluation by Dr. Orth. This type of conduct should be sanctioned.
This Court is vested with “broadest discretion in imposing sanctions” for such abuses of the
discovery process. Chem. Exch. Indus., Inc. v. Vasquez, 709 S.W.2d 257, 260 (Tex.
App.1986), writ granted (July 16, 1986), rev'd in part, 721 S.W.2d 284 (Tex.1986). Sanctions, as
discussed by Rule 215.2 of the Texas Rules of Civil Procedure, are available when a party fails to
comply with a proper discovery request, and can include “an order charging all or any portion of
the expenses of discovery or taxable court costs or both against the disobedient party or the attorney
7
Exhibit 4, Dr. Orth’s billing for Mr. Villnave’s medical examination.
3
advising him.” Levasseur v. Avezzano, 10-17-00145-CV, 2019 WL 3801599, at *2–3 (Tex. App.
Aug. 7, 2019), citing TEX. R. CIV. P. 215.2 (b).
When issuing a discovery sanction, this Court must satisfy a two-pronged test to ensure
that the sanction is just. Id. First, the sanction must be related to the discovery abuse, such that it
is “directed against the abuse and toward remedying the prejudice caused.” Id. The sanction must
also take into account the actor, either the party or his counsel, as the appropriate person to bear
the sanction. Id. Second, the sanction should “no more severe than necessary to satisfy its
legitimate purposes.” Id. As the Levasseur court noted, citing the old adage, the punishment should
fit the crime. Id.
Here, Mr. Villnave’s conduct resulted in a $2,000 cost to Encore for Dr. Orth’s fee. This is
unfair to Encore, and it should not bear this expense because Mr. Villnave could not act civilly
during his medical examination. Also, Mr. Villnave’s conduct deprived Encore of its choice of
physician to evaluate Mr. Villnave’s alleged injuries. Rule 215.2 allows this Court to sanction Mr.
Villnave in a just and appropriate manner. Ordering Mr. Villnave to attend a medical examination
performed by a physician of Encore’s choosing and requiring him to pay this cancellation fee based
on his abuse of the discovery process would be just and fair. The requested sanctions are justified
as they are the minimum required to reasonably and sufficiently remedy the consequences of Mr.
Villnave’s disruptive conduct
CONCLUSION
For the foregoing reasons, Mr. Villnave’s combative and disruptive conduct should be
sanctioned. By being so disruptive and abruptly leaving Dr. Orth’s office, Mr. Villnave has
prevented Encore from evaluating the nature and extent of his alleged injuries. This is the
equivalent of obstructing discovery. Further, this conduct resulted in Encore being charged a
4
cancellation fee for Mr. Villnave’s departure from Dr. Orth’s office before being seen.
Accordingly, Mr. Villnave should be sanctioned, and Encore requests that this Court order him to
pay $2,000.00 for Dr. Orth’s fee and to attend a medical examination performed by a physician of
Encore’s choosing. Encore further prays for all costs and expenses, including attorneys’ fees, in
bringing this Motion.
CERTIFICATE OF SERVICE Respectfully submitted,
I hereby certify that a copy of the STAINES, EPPLING & KENNEY
above and foregoing pleading has been
served on all counsel of record via the /s/ Corey P. Parenton
service method indicated below: ___________________________________
COREY P. PARENTON (#24095858)
[ ] U.S. Mail JASON R. KENNEY (PRO HAC VICE)
[ ] Facsimile MICHAEL W. MALDONADO
[ ] Hand Delivery 3500 North Causeway Boulevard
Suite 820
[x ] ECF Filing Metairie, Louisiana 70002
Telephone: (504) 838-0019
This 14th day of February, 2023 Facsimile: (504) 838-0043
Counsel Encore Dredging Partners, LLC
/s/ Corey P. Parenton
_______________________________
5
Automated Certificate of eService
This automated certificate of service was created by the efiling system.
The filer served this document via email generated by the efiling system
on the date and to the persons listed below. The rules governing
certificates of service have not changed. Filers must still provide a
certificate of service that complies with all applicable rules.
Corey Parenton on behalf of Corey Parenton
Bar No. 24095858
corey@staines-eppling.com
Envelope ID: 72730247
Status as of 2/14/2023 9:24 AM CST
Case Contacts
Name BarNumber Email TimestampSubmitted Status
Caroline Adams cadams@txattorneys.com 2/14/2023 9:00:06 AM SENT
Anthony G.Buzbee tbuzbee@txattorneys.com 2/14/2023 9:00:06 AM SENT
Jesse Rubio jrubio@txattorneys.com 2/14/2023 9:00:06 AM SENT
Daedra Minigan dminigan@txattorneys.com 2/14/2023 9:00:06 AM SENT
Amanda Dees adees@txattorneys.com 2/14/2023 9:00:06 AM SENT
Associated Case Party: Encore Dredging Partners, LLC
Name BarNumber Email TimestampSubmitted Status
Corey PParenton corey@seklaw.com 2/14/2023 9:00:06 AM SENT
Preview
Filed: 2/14/2023 9:00 AM JOHN D. KINARD - District Clerk Galveston County, Texas Envelope No. 72730247 By: Shailja Dixit 2/14/2023 9:24 AM CAUSE NO. 22-CV-0729 Plaintiffs IN THE DISTRICT COURT OF RICHARD VILLNAVE DARIUS STEWART GALVESTON COUNTY, TEXAS VS. Defendant ENCORE DREDGING 10TH JUDICIAL DISTRICT PARTNERS, LLC MEMORANDUM IN SUPPORT OF MOTION FOR SANCTIONS MAY IT PLEASE THE COURT: Encore Dredging Partners, LLC (“Encore”) requests that this Court require Richard Villnave to pay $2,000.00 to Encore as reimbursement for Dr. Orth’s fee for Mr. Villnave’s independent medical examination. Mr. Villnave was tardy, rude, and disruptive, all resulting in the cancellation of his appointment with Dr. Orth. Such disruption has no place in the litigation process, and as a result, Mr. Villnave should be sanctioned for his behavior and abuse of the discovery process. Encore also requests an order requiring Mr. Villnave to attend a medical examination, to be performed by a physician of Encore’s choosing, as well as all costs and expenses incurred by Encore in filing this Motion. FACTUAL BACKGROUND Mr. Villnave contends that he was injured on January 14, 2022 while operating his duck boat in the West Galveston Bay. Mr. Villnave allegedly struck the discharge line of the dredge RANGER, a dredge owned and operated by Encore, while traveling at over 30 mph in the dark. However, Mr. Villnave could not confirm at the time of his incident what his boat struck because it was in the pre-dawn hours. He instead continued on with his hunt for almost five hours before reporting his boat damage to Encore.1 He did not, however, report any personal injuries. Three days after the incident, Mr. Villnave provided Encore with a Witness Questionnaire, stating that he was lucky he was not injured.2 He also communicated with Encore for several months about repairing his boat damage, never once mentioning his injuries. Mr. Villnave eventually filed litigation against Encore claiming serious personal injuries. As part of his deposition, Mr. Villnave contended that he suffers from hip and shoulder pain, with his hip pain radiating into his lower back.3 He is treating with Dr. Kenneth Berliner to address these complaints. To further investigate Mr. Villnave’s claims, Encore retained Dr. Scott Orth to perform an independent medical examination. Mr. Villnave’s examination, by agreement of counsel, was scheduled for January 19, 2023 at 9:30 a.m. On the date of his scheduled exam, Mr. Villnave was nearly an hour late.4 When he arrived, he refused to fill out any routine paperwork and was rude and combative with Dr. Orth’s staff. Then, when Dr. Orth could not see him immediately because Mr. Villnave was so late, Mr. Villnave created a scene in the waiting room and left Dr. Orth’s office.5 After Mr. Villnave left Dr. Orth’s office, counsel attempted to work with each other to secure another appointment time for Mr. Villnave. However, Dr. Orth’s office declined to reschedule Mr. Villanve for an appointment because of his behavior.6 Such behavior has no place in the litigation process and inhibits the routine course of discovery. As such, Mr. Villnave should 1 Exhibit 1, Excerpt from the Deposition of Richard Villnave, at pp. 47:14-52:22. 2 Id., at p. 68:3-10; Exhibit 2, Witness Questionnaire dated January 17, 2022. 3 Id., at pp. 80:4-10; 82:2-4. 4 Exhibit 3, Correspondence between Dr. Orth’s office and Staines, Eppling, and Kenney, LLC. 5 Id. 6 Id. 2 be sanctioned because he has deprived Encore of its choice of physician and has led to the loss of $2,000 for Dr. Orth’s fee.7 LAW AND ANALYSIS As a preliminary consideration, this is not a traditional motion to compel a medical examination under Rule 204.1. There is no dispute over good cause or whether Mr. Villnave’s physical condition is in controversy. Indeed, Mr. Villnave’s participation in this type of medical examination is a matter of fundamental fairness necessary to prevent Encore from being “at a severe disadvantage in the ‘battle of experts.’” In re Advanced Powder Sols., Inc., 496 S.W.3d 838, 851 (Tex. App.2016). Mr. Villnave’s conduct has flown in the face of fairness by preventing Encore from evaluating his physical condition and alleged need for additional treatment. While the parties are attempting to amicably reschedule Mr. Villnave’s evaluation with another physician, Encore is being charged a cancellation fee by Dr. Orth because of Mr. Villnave’s conduct. Also, and despite the parties efforts, an order requiring Villnave to attend a medical examination will only solidify Encore’s rights to proper discovery in this matter. By being tardy, rude, and disruptive, Mr. Villnave has abused the discovery process by forcing the cancellation of his evaluation by Dr. Orth. This type of conduct should be sanctioned. This Court is vested with “broadest discretion in imposing sanctions” for such abuses of the discovery process. Chem. Exch. Indus., Inc. v. Vasquez, 709 S.W.2d 257, 260 (Tex. App.1986), writ granted (July 16, 1986), rev'd in part, 721 S.W.2d 284 (Tex.1986). Sanctions, as discussed by Rule 215.2 of the Texas Rules of Civil Procedure, are available when a party fails to comply with a proper discovery request, and can include “an order charging all or any portion of the expenses of discovery or taxable court costs or both against the disobedient party or the attorney 7 Exhibit 4, Dr. Orth’s billing for Mr. Villnave’s medical examination. 3 advising him.” Levasseur v. Avezzano, 10-17-00145-CV, 2019 WL 3801599, at *2–3 (Tex. App. Aug. 7, 2019), citing TEX. R. CIV. P. 215.2 (b). When issuing a discovery sanction, this Court must satisfy a two-pronged test to ensure that the sanction is just. Id. First, the sanction must be related to the discovery abuse, such that it is “directed against the abuse and toward remedying the prejudice caused.” Id. The sanction must also take into account the actor, either the party or his counsel, as the appropriate person to bear the sanction. Id. Second, the sanction should “no more severe than necessary to satisfy its legitimate purposes.” Id. As the Levasseur court noted, citing the old adage, the punishment should fit the crime. Id. Here, Mr. Villnave’s conduct resulted in a $2,000 cost to Encore for Dr. Orth’s fee. This is unfair to Encore, and it should not bear this expense because Mr. Villnave could not act civilly during his medical examination. Also, Mr. Villnave’s conduct deprived Encore of its choice of physician to evaluate Mr. Villnave’s alleged injuries. Rule 215.2 allows this Court to sanction Mr. Villnave in a just and appropriate manner. Ordering Mr. Villnave to attend a medical examination performed by a physician of Encore’s choosing and requiring him to pay this cancellation fee based on his abuse of the discovery process would be just and fair. The requested sanctions are justified as they are the minimum required to reasonably and sufficiently remedy the consequences of Mr. Villnave’s disruptive conduct CONCLUSION For the foregoing reasons, Mr. Villnave’s combative and disruptive conduct should be sanctioned. By being so disruptive and abruptly leaving Dr. Orth’s office, Mr. Villnave has prevented Encore from evaluating the nature and extent of his alleged injuries. This is the equivalent of obstructing discovery. Further, this conduct resulted in Encore being charged a 4 cancellation fee for Mr. Villnave’s departure from Dr. Orth’s office before being seen. Accordingly, Mr. Villnave should be sanctioned, and Encore requests that this Court order him to pay $2,000.00 for Dr. Orth’s fee and to attend a medical examination performed by a physician of Encore’s choosing. Encore further prays for all costs and expenses, including attorneys’ fees, in bringing this Motion. CERTIFICATE OF SERVICE Respectfully submitted, I hereby certify that a copy of the STAINES, EPPLING & KENNEY above and foregoing pleading has been served on all counsel of record via the /s/ Corey P. Parenton service method indicated below: ___________________________________ COREY P. PARENTON (#24095858) [ ] U.S. Mail JASON R. KENNEY (PRO HAC VICE) [ ] Facsimile MICHAEL W. MALDONADO [ ] Hand Delivery 3500 North Causeway Boulevard Suite 820 [x ] ECF Filing Metairie, Louisiana 70002 Telephone: (504) 838-0019 This 14th day of February, 2023 Facsimile: (504) 838-0043 Counsel Encore Dredging Partners, LLC /s/ Corey P. Parenton _______________________________ 5 Automated Certificate of eService This automated certificate of service was created by the efiling system. The filer served this document via email generated by the efiling system on the date and to the persons listed below. The rules governing certificates of service have not changed. Filers must still provide a certificate of service that complies with all applicable rules. Corey Parenton on behalf of Corey Parenton Bar No. 24095858 corey@staines-eppling.com Envelope ID: 72730247 Status as of 2/14/2023 9:24 AM CST Case Contacts Name BarNumber Email TimestampSubmitted Status Caroline Adams cadams@txattorneys.com 2/14/2023 9:00:06 AM SENT Anthony G.Buzbee tbuzbee@txattorneys.com 2/14/2023 9:00:06 AM SENT Jesse Rubio jrubio@txattorneys.com 2/14/2023 9:00:06 AM SENT Daedra Minigan dminigan@txattorneys.com 2/14/2023 9:00:06 AM SENT Amanda Dees adees@txattorneys.com 2/14/2023 9:00:06 AM SENT Associated Case Party: Encore Dredging Partners, LLC Name BarNumber Email TimestampSubmitted Status Corey PParenton corey@seklaw.com 2/14/2023 9:00:06 AM SENT