Motion,Ex Parte: LEN ACKIN, et al vs. POLY-AMERICA INTERNATIONAL INC., et al

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                                FILED
                                                                                                           11/2/2023 12:08 PM
                                                                                                                FELICIA PITRE
                                                                                                             DISTRICT CLERK
                                                                                                          DALLAS CO., TEXAS
                                                                                                     Cassandra Walker DEPUTY


LEN ACKLIN, Individually, et a1.,                                            IN THE DISTRICT COURT




                                                            §§§§§§§§§§§§
           Plaintifiv,

VS.
                                                                                 1915‘   JUDICIAL DISTRICT
POLY-AMERICA INTERNATIONAL INC,
POLY-AMERICA, INC, POLY-AMERICA
GP, LLC, POLY-AMERICA LP, ONCOR
ELECTRIC DELIVERY COMPANY, LLC;
AND MARS PARTNERS, LTD,
                                                                            DALLAS COUNTY, TEXAS
          Defendants.

        DEFENDANT POLY-AMERICA LP’S MOTION T0 COMPEL DISCOVERY

         COMES NOW, Defendant Poly-America LP (hereinafter “Defendant”)                         and files this

Motion to Compel against Plaintiffs and would respectfully show the Court as follows:

                                                  I-

1.    Plaintiffs filed a lawsuit against Defendants on July 29, 2022, more than one year ago. Plaintiffs

      are alleging a variety   of injuries   as a result   of a fire that occurred at the premises of Poly-

      America at 2000 W. Marshall Drive, Grand Prairie, Texas 75051, on August 18—19, 2020.

2.    A brief timeline of the dates relevant to this motion are as follows:
             o   January 24, 2023: Defendant Poly-America LP served discovery requests on all

                 Plaintiffs.

             o   May 5, 2023: Defendant sent a letter to Plaintiffs’ counsel addressing deficiencies

                 in Plaintiffs’ responses. Plaintiffs’ counsel did not respond to Defendant’s letter.

             o   September 20, 2023: The court ordered the parties to select a trial group of ten

                 Plaintiffs for the first trial setting of June 3, 2024. Chautauqua Brewer, Johnny

                 Camell, Latasha Harrison, Latoya Harrison, Robert Johnson, Ephraim Lara, Angela

                 Luckey-Vaughn, Stacy Mims, Wakeisha Purifoy, and Amber Rodriguez



DEFENDANT POLY-AMERICA LP’S MOTION TO COMPEL DISCOVERY — PAGE                1
                (hereinafter collectively referred to as, “Plaintiffs”) were chosen as the first trial

                group.

            o   October 20, 2023: Defendant sent Plaintiffs’ counsel a second letter requesting full

                and complete discovery. Despite multiple efforts, Plaintiffs have still not provided

                full and complete discovery responses.

3.   Plaintiffs filed their lawsuit on July 29, 2022, over a full year ago. Plaintiffs have had ample

     time to provide complete responses to the basic discovery requests and have failed to do so.

     Plaintiffs are wrongfully withholding information relevant to their claims in this lawsuit.

4.   The trial for this case is scheduled to begin on June 3, 2024. To ensure a fair and equitable

     legal process, Defendants must receive complete discovery responses well before that date.

     The substantial deficiencies in Plaintiffs' discovery responses have significantly compromised

     Defendant’s ability to provide a comprehensive defense. Without the necessary information

     and documents, Defendants are severely disadvantaged in preparing their case. What

     Defendants are requesting in the discovery responses is information and documents to which

     they are legally entitled, further underscoring the necessity for timely and complete responses.

5.   Defendants have made multiple attempts to secure this information. Plaintiffs have had ample

     time to gather the requested information, considering they filed their lawsuit almost sixteen

     (16) months ago with allegations of injuries from a fire that occurred three (3) years ago. This

     extended period should have allowed ample time for plaintiffs to investigate and produce

     necessary documentation.

6.   Furthermore, TEX. R. CIV. PRO. 193.5 creates an ongoing duty to supplement discovery

     responses when the responses were, among other things, incomplete or incorrect when made.

7.   Specifically, Defendant seeks fiill and complete responses to the following discovery requests.



DEFENDANT POLY-AMERICA LP’S MOTION TO COMPEL DISCOVERY — PAGE 2
                                    II.   INTERROGATORIES
8.   Interrogatory No. 1: “State the following information pertaining to Plaintiff: (a) full

     name; (b) date of birth; (c) current residence address; (d) residence address on August

     19-20, 2020; (e) social security number; (f) driver’s license and/0r other government-

     issued ID number; (g) date of death     (if applicable); (h) cause of death (if applicable); (i)
     exact physical locations from 10:00 pm on August 19, 2020 to 6:00 pm on August 20,

     2020.” Plaintiffs provided invalid objections and failed to provide a complete answer. Plaintiff

     Chautauqua Brewer (Brewer), Johnny Carnell (Camell), Latasha Harrison, Lotoya Harrison,

     Angela Luckey-Vaughn (Luckey-Vaughn), Stacy Mims (Mims), and Amber Rodriguiez

     (Rodriguiez) failed to provide a social security number and a full driver’s license number.

     Plaintiff Robert Johnson (Johnson) failed to provide a full social security number, a driver’s

     license and/or other government-issued ID number, and their exact physical location during

     the date and time   of the fire. Plaintiffs Ephraim Lara (Lara) and Wakeisha Purifoy (Purifoy)

     failed to provide a social security number or a driver’s license and/or other government-issued

     ID number.

9.   Interrogatory No. 2: “State the following injury information pertaining to Plaintiff: (a)

     the injury or injuries plaintiff claims were caused as a result of the Incident in question;

     (b) The first date of diagnosis of Plaintiff’s injury or injuries identified in Interrogatory

     No.2(a); (c) Name and address 0f the physician/health care provider(s) who rendered the

     diagnosis or diagnoses.” Plaintiffs provided baseless objections and merely referred

     Defendant to Disclosures but have not identified the specific “injury or injuries plaintiff claims

     were caused as a result of the Incident in question,” the first date of diagnosis of that injury,

     and the physician/health care provider who rendered the diagnosis. Plaintiffs are claiming




DEFENDANT POLY-AMERICA LP’S MOTION TO COMPEL DISCOVERY — PAGE 3
      personal injuries, and each plaintiff must identify the specific injuries he or she alleges are

      made the basis of his/her claims.      Simply referring to medical records in disclosures that

      document unrelated medical conditions,     z'.e.,   mammograms, diabetes, dental caries, vaccines,

      Covid-19, etc., is insufficient.

10.   Interrogatory No. 3: “Identify all doctors, hospitals and other health care providers or

      facilities that have ever treated Plaintiff at any time during the preceding ten (10) years,

      to include: (a) The approximate dates of treatment; (b) The names and current addresses

      of the doctors, hospitals or other healthcare providers; and (c) The reason for the

      treatment and diagnosis. (d) State whether you have received or been made aware of any

      medical diagnosis that supports the contention that the condition for which treatment

      was sought was caused by the Fire.” Plaintiffs lodged baseless objections and merely referred

      Defendant to Disclosures but have not identified all doctors, hospitals and other health care

      providers or facilities that have ever treated plaintiff at any time during the preceding ten years,

      dates   of that treatment, diagnosis, and whether plaintiff has been made aware of any medical

      diagnosis that supports the contention the condition for which treatment was sought was caused

      by the fire. As Plaintiffs are claiming personal injuries in this lawsuit, their medical conditions

      and treatment for same are relevant or reasonably calculated to lead to the discovery             of

      admissible evidence.

11.   Interrogatory No. 4: “State Plaintiff’s tobacco use history; including quantity, product

      smoked, and when started and stopped.” Plaintiff Johnson has objected and failed to provide

      his tobacco use history. The absence of this information is significant, as it pertains to the

      issues   of causation and contributory factors concerning Johnson's alleged injuries,    as well as

      the assessment   of damages.



DEFENDANT POLY-AMERICA LP’S MOTION TO COMPEL DISCOVERY — PAGE 4
12.   Interrogatory N0. 5: “State Plaintiff’s employment history for the past ten years, to

      include: (a) Name of employer; 0)) Address of job location; (c) Salary and/or hourly rate

      of pay; (d) job title.” Plaintiff Johnson has objected and failed to answer except to state, “Will

      Supplemen .”

13.   Interrogatory No. 6:   “If Plaintiff is currently married, please state the spouse’s name      and

      address, the date of marriage and the name and address of the spouse’s employer. With

      respect to any and all prior spouses,    if any, state, as to each prior spouse: (a) Name and
      date of marriage, and (b) whether that marriage was terminated by divorce, separation,

      annulment, or death, and the date of such termination.” Plaintiff Johnson has objected and

      failed to answer except to state, “Will Supplement.”

14.   Interrogatory No. 7: “State the present name, age, date of birth and current address of each

      of Plaintiff’s children, and of any person who in any way is financially dependent upon the

      Plaintiff for support, including, but not limited to, parents, in-laws, relatives, or other people;

      for each such person, including children, state the extent to which such person is dependent

      upon the plaintiff for financial support or maintenance.” Plaintiffs Camell, Latasha Harrison,

      Lotoya Harrison, Johnson, Lara, Luckey-Vaugh, Mims, and Purifoy objected to this Interrogatory

      and failed to provide any answer. These plaintiffs have not identified information regarding

      children and/or financial dependents, which is relevant to the issue of damages.

15.   Interrogatory No. 8:   “If Plaintiff has ever been arrested, charged, or convicted of a felony
      or crime involving moral turpitude, state the date, location and nature of each criminal


      charge or conviction, including the case number and jurisdiction, and the result of each

      such arrest, charge, or conviction; and specifically identify any time period and location

      of incarceration.” Plaintiffs Camell, Lotoya Harrison, and Johnson objected to this

      Interrogatory and have failed to provide any answer.

DEFENDANT POLY-AMERICA LP’S MOTION TO COMPEL DISCOVERY — PAGE 5
16.   Interrogatory N0. 9: “State Plaintiff’s income and the source(s) of income for each year

      of the last five years.   If Plaintiff’s spouse is employed or   has been employed, state his or

      her income for each year of the last five years.” Plaintiff Johnson objected to this

      Intelrogatory and failed to answer except to say,   “Will Supplement.” Plaintiff Lara objected to

      this Interrogatory and failed to answer except to say, “please see Plaintiff’ s response to

      Interrogatory 9” Defendant is entitled to a full and complete answer to this Interrogatory.

17.   Interrogatory No. 10: “Please list all medical expenses, if any, incurred as a result of any

      injury or injuries alleged as a result of the Incident in question and the approximate date

      such expenses were incurred. “Medical expenses” includes but is not limited to, all

      charges for care, treatment or diagnosis by a physician, nurse, or other health care

      specialist; all hospital costs, charges, and expenses; and all medication expenses.”

      Plaintiffs Brewer, Camel], Latasha Harrison, Lotoya Harrison, Johnson, Lara, Luckey-

      Vaughn, Mims, Purifoy, and Rodriguiez objected to this Interrogatory and failed to provide a

      complete answer. These plaintiffs merely referred Defendant to Disclosures and did not

      identify all medical expenses incurred as a result of any injury alleged as a result of the Incident

      in question.

18.1nterrogatory No. 11:          “If Plaintiff is   making a claim for lost wages or lost earning

      capacity, either past or future, from any injury or injuries alleged as a result of the

      Incident in question, please identify the factual basis for such a claim and the monetary

      amount claimed by Plaintiff to have been lost in the past or which he/she estimates will

      be lost in the future.” Plaintiff Johnson objected to this Interrogatory and failed to answer

      except to say,   “Will Supplement.” Plaintiff Lara objected      to this Interrogatory and failed to

      answer except to say, “please see Plaintiff’ s response to Interrogatory 9”. Defendant is entitled




DEFENDANT POLY-AMERICA LP’S MOTION TO COMPEL DISCOVERY — PAGE 6
      to a full and complete answer to this InteITogatory.

19.   Interrogatory No. 12:     “If Plaintiff is making a claim of property    damage as a result of

      the Incident in question, please identify the factual basis for such claim and the monetary

      amount claimed by Plaintiff as a result of the alleged property damage, including the

      exact physical location of said property from 10:00 pm on August 19, 2020 until 6:00 pm

      on August 20, 2020.” Plaintiff Johnson objected to this Interrogatory and failed to answer

      except to state,   “Will Supplement.” Plaintiff Johnson failed   to answer this Interrogatory as


      required by TEX. R. CIV. PRO. 197.1 which states,      “An interrogatory may inquire whether       a


      party makes a specific legal or factual contention and may ask the responding party to state the

      legal theories and to describe in general the factual bases for the party’s claims or defenses.”

20 . Interrogatories Nos. 13—25 are as follows:

21. Interrogatory No. 13:       “If you contend Defendant failed to perform operations in       a safe,

      reasonable, and prudent manner as a reasonable person would have under the same or

      similar circumstances, state the legal theories and describe the factual bases for Plaintiff’s

      contention.”

22. Interrogatory No. 14:       “If you    contend Defendant failed to maintain, follow or enforce

      policies, procedures, and/or regulations necessary for safe plastics operations, state the

      legal theories and describe the factual bases for Plaintiff’s contention.”

23. Interrogatory No. 15:      “If you contend Defendant failed to adequately warn       of or correct

      dangers or conditions of which Defendant had actual knowledge, state the legal theories

      and describe the factual bases for Plaintiff’s contention.”

24. Interrogatory No. 16:        “If you   contend Defendant failed to properly train, supervise,

      monitor, and/or retain employees, agents, contractors and/or subcontractors, state the



DEFENDANT POLY-AMERICA LP’S MOTION TO COMPEL DISCOVERY — PAGE 7
   legal theories and describe the factual bases for Plaintiff’s contention.”

25. Interrogatory No. 17:   “If you contend Defendant failed to use ordinary care   a reasonable

   person would under the same or similar circumstances, state the legal theories and

   describe the factual bases for Plaintiff’s contention.”

26. Interrogatory No. 18:   “If you contend Defendant failed to properly isolate, control and

   prevent the escape and ignition of chemicals and contaminants into the air, water, real

   property, and surrounding area near the site of the explosion site, state the legal theories

   and describe the factual bases for Plaintiff’s contention.”

27. Interrogatory No. 19:   “If you   contend Defendant failed to take reasonable measures to

   prevent a chemical leak and explosion, state the legal theories and describe the factual

   bases for Plaintiff’s contention.”

28. Interrogatory No. 20:   “If you   contend Defendant was grossly negligent, state the legal

   theories and describe the factual bases for Plaintiff’s contention.”

29. Interrogatory No. 21:   “If you contend the injuries, harm, and damages were    incurred by

   Plaintiff as a result of the use of the machinery and other dangerous devices by

   Defendant’s employees and/or agents in a negligent and reckless manner, which because

   of the background, inexperience, and prior actions, Defendant knew, or had reason to

   know was likely and involved an unreasonable risk of harm to others, state the legal

   theories and describe the factual bases for Plaintiff’s contention.”

30. Interrogatory No. 22:   “If you contend Defendant’s conduct amounts to violations of the
   Texas Health and Safety Code §§ 341.002 et al., 361.001 et al., 382.002 et al., 753.002 et

   al., as well as violations of the Texas Water Code § 26.001 et al., state the legal theories

   and describe the factual bases for Plaintiff’s contention, and describe how the alleged



DEFENDANT POLY-AMERICA LP’S MOTION TO COMPEL DISCOVERY — PAGE 8
   violations caused damage to you.”

31. Interrogatory No. 23:   “If you contend the responsible actions for the fire and subsequent
   contamination were from those under the management and control of the Defendant,

   state the legal theories and describe the factual bases for Plaintiff’s contention.”

32. Interrogatory No. 24:   “If you contend Defendant’s employees and/or agents were            acting

   Within the scope of their employment, state the legal theories and describe the factual

   bases for Plaintiff’s contention.”

33. Interrogatory No. 25: “State the legal theories and describe the factual bases for

   Plaintiff’s By stander claims.”

34. In answering Interrogatories 13—24, Plaintiffs merely presented invalid objections and

   provided no answer. Plaintiffs objected that “providing the information requested in detail

   would essentially require Plaintiff to reiterate the pleadings and discovery documents on file

   in this matter, the contents of any depositions taken, or to be taken in this matter, and in essence

   to disclose Plaintiff’s trial strategy”. Plaintiffs failed to answer any   of the Interrogatories   as


   required by TEX. R. CIV. PRO. 197.1, which states,     “An interrogatory may inquire whether         a


   party makes a specific legal or factual contention and may ask the responding party to state the

   legal theories and to describe in general the factual bases for the party’s claims or defenses.”

35. Interrogatories Nos. 26—32 are as follows:

36. Interrogatories No. 26: “State the legal theories and describe the factual bases for

   Plaintiff’s Nuisance claims.”

37. Interrogatories No. 27: “State the legal theories and describe the factual bases for

   Plaintiff’s Premises Liability claims, including but not limited to: a) Identify whether

   Plaintiff entered Defendant’s premises in response to Defendant’s invitation and for their



DEFENDANT POLY-AMERICA LP’S MOTION TO COMPEL DISCOVERY — PAGE 9
   mutual benefit, the date of entry, and the reason for such entrance 0n the premises; b)

   Identify whether Plaintiff was on the Defendant’s premises for employment or business-

   related reasons, the dates of employment or entry on the premises for business-related

   reasons, and the nature of the business-related reason for entry on Defendant’s

   premises.”

38. Interrogatories No. 28: “State the legal theories and describe the factual bases for

   Plaintiff’s claims of Battery.”

39. Interrogatories No. 29: “State the legal theories and describe the factual bases for

   Plaintiff’s claims of Intentional Infiiction of Emotional Distress.”

40. Interrogatories No. 30: “State the legal theories and describe the factual bases for

   Plaintiff’s wrongful death and/or survivorship claims.”

41. Interrogatories No. 31:   “If you contend you are at an increased risk of developing cancer,
   which will eventually result in death, state the legal theories and describe the factual bases

   for your contention.”

42. Interrogatories No. 32: “State all facts supporting the allegation that the Fire or the

   smoke from the Fire was toxic.”

43. In answering Interrogatories 26—32, Plaintiffs raised an objection based on Tex. R. Civ. Pro.

    190.3, which imposes a cap of twenty-five (25) interrogatories per asking party. Defendant

   respectfully requests the court to consider compelling Plaintiffs to provide answers to these

   interrogatories, as doing so would serve the interests of judicial efficiency. Alternatively,

   another defendant in this case will propound discovery      of these Interrogatories. Further,

   Defendant is entitled to a full and complete answer pursuant to TEX. R. CIV. PRO. 197.1.




DEFENDANT POLY-AMERICA LP’S MOTION TO COMPEL DISCOVERY — PAGE      10
                          III.    REQUESTS FOR PRODUCTION
44. Request for Production No. 5: “Produce Plaintiff’s detailed Social Security earnings

   records, as supplied by the Social Security Administration.” Plaintiffs objected to this

   request but failed to respond. Plaintiffs did not provide social security earnings records, which

   are relevant as Plaintiffs are claiming lost wages. Further, Plaintiffs failed to provide signed

   authorizations allowing Defendant to obtain these records.

45. Request for Production Nos. 6 & 7 are as follows:

46. Request for Production No. 6: “Produce payroll and employment records relating to

   employment identified in Plaintiff’s work history to present time, including military

   service records.”

47. Request for Production No. 7: “Produce Plaintiff’s income tax returns for the preceding

   five (5) years.”

48. In responding to Requests for Production Nos. 6     &    7, Plaintiffs Brewer, Camell, Latasha

   Harrison, Lotoya Harrison, Lara, and Purifoy objected but failed to respond except to state,

   “will supplement.” This lawsuit   has been on file for more than a year, and the fire occurred

   three years ago. The information requested in these Requests for Production is relevant and

   Plaintiffs must produce responsive documents. Plaintiffs further failed to provide signed

   authorizations allowing Defendant to obtain these records. Further, the requested information

   is relevant as Plaintiffs are claiming economic losses.

49 .Request for Production No. 9: “Produce any and all documents that support the

   contention that Plaintiff lost wages or incurred lost earning capacity as a result of the

   matters alleged in the petition in this case.” Plaintiff Brewer, Camel], Latasha Harrison,

   Lotoya Harrison, Johnson, Lara, and Purifoy objected to this Request but failed to respond



DEFENDANT POLY-AMERICA LP’S MOTION TO COMPEL DISCOVERY — PAGE ll
   except to state, “will supplement.” The infomation sought in this request is relevant and

   reasonably calculated to lead to the discovery of admissible evidence, as Plaintiffs are making

   claims of economic damages.

50. Request for Production N0. 10, “Produce any and all medical records and diagnosing

   letters or reports, relating to the alleged injury from the Incident in question regardless

   of when received, and medical records relating to any prior medical treatment received

   by Plaintiff during the past ten (10) years.” Plaintiffs provided inapplicable and invalid

   objections and failed to provide a complete response. Plaintiffs merely referred to Disclosures

   but failed to produce medical records relating to any medical treatment received by Plaintiffs

   during the past ten years. The requested information is relevant as Plaintiffs are claiming

   personal injuries in this lawsuit. Plaintiffs further failed to provide signed authorizations

   allowing Defendant to obtain these records.

51. Requests for Production Nos.   ll &   12 are as   follows:

52. Request for Production No. 11:          If   you are asserting a claim of cancer or other

   malignancy,   if no   pathological materials are readily available from medical providers,

   (as referenced in Request N0. 10), an agreement stating that any pathological material

   may be obtained for independent evaluation at the election of Defendant. Plaintiff must

   notify Defendant of any procedure that may result in the collection of pathology or other

   diagnostic materials and any testing done by Plaintiff or his experts.”

53. Request for Production No. 12: “Produce any reports or letters from any physical,

   medical providers, or any expert concerning Plaintiff or his/her medical condition.”

54. In responding to Requests Nos. 11   &   12, Plaintiffs merely referred to Disclosures and reserved

   their right to supplement their response. To the extent Plaintiffs allege a claim of cancer or




DEFENDANT POLY-AMERICA LP’S MOTION TO COMPEL DISCOVERY — PAGE          12
   other malignancy, defendant is entitled to pathology materials for independent evaluation      of

   the medical claims to refute any report or letter concerning their medical condition.

55. Request for Production No. 13: “Produce signed authorizations, including authorizations

   in compliance with the Health Insurance Portability and Accountability Act (“HIPPA”),

   to enable Defendant to reasonably obtain other discoverable records.         (A complete set to
   be attached to these requests).” Plaintiffs objected and failed to respond. Defendant is

   entitled to obtain records relevant to Plaintiffs’ claims of medical and economic injuries in this

   case.

56. Request for Production No. 17: “Produce the complete file of each consulting expert

   Whose mental impressions or opinions have been reviewed by a testifying expert in this

   lawsuit.” Plaintiffs objected to this Request, directed Defendant to their Disclosures and stated

   that they   “will supplement” their response. Defendant is entitled    to information regarding


   consulting experts Whose mental impressions or opinions have been reviewed by a testifying

   expert, in accordance with TEX. R. CIV. PRO. 195.5.

57. Request for Production No. 20: “Produce any and all documents (including, but not

   limited to, log books, notes, calendars diaries, or like materials) prepared or kept by

   Plaintiff/decedent and all documents in the nature of memoranda, notes, or recordings

   of statements made by Plaintiff in connection with (a) any work history; (b) the Incident

   in question; (c) any conduct of Defendant with respect to the Incident; (d) any injury,

   disease, or treatment related to the Incident in question; or (e) any elements of actual

   damages resulting from Plaintiff’s claimed injury.” Plaintiff Brewer, objected and failed to

   respond except to say,   “will supplemen .”

58. Requests for Production Nos. 21—39   & 41    are as follows:




DEFENDANT POLY-AMERICA LP’S MOTION TO COMPEL DISCOVERY — PAGE l3
59. Request for Production No. 21: “Produce any and all documents evidencing or

   supporting Plaintiff’s contention that Plaintiff, Plaintiff’s personal property, or

   Plaintiff’s real property was exposed to the Incident in question.”

60. Request for Production No. 22: “Produce any and all documents evidencing or

   supporting Plaintiff’s contention that Defendant failed to perform its operations in a safe,

   reasonable, and prudent manner as a reasonable person would have under the same or

   similar circumstances.”

61. Request for Production No. 23: “Produce any and all documents evidencing or

   supporting Plaintiff’s contention that Defendant failed to maintain, follow, or enforce

   policies, procedures, and/or regulations necessary for safe operations.”

62. Request for Production No. 24: “Produce any and all documents evidencing or

   supporting Plaintiff’s contention that Defendant failed to adequately warn of, or correct

   dangers or conditions of which Defendant had actual knowledge.”

63. Request for Production No. 25: “Produce any and all documents evidencing or

   supporting Plaintiff’s contention that Defendant failed to properly train, supervise,

   monitor, and/or retain employees, agents, contractors and/or subcontractors.”

64. Request for Production No. 26: “Produce any and all documents evidencing or

   supporting Plaintiff’s contention that Defendant failed to use the ordinary care a

   reasonable person under the same or similar circumstances would have used.”

65. Request for Production No. 27: “Produce any and all documents evidencing or

   supporting Plaintiff’s contention that Defendant failed to properly isolate, control and

   prevent the escape and ignition of chemicals and contaminants into the air, water, real

   property, and surrounding area near the Incident.”



DEFENDANT POLY-AMERICA LP’S MOTION TO COMPEL DISCOVERY — PAGE    14
66. Request for Production No. 28: “Produce any and all documents evidencing or

   supporting the plaintiff’s contention that Defendant failed to take reasonable measures

   to prevent a chemical leak and explosion.”

67. Request for Production No. 29: “Produce any and all documents evidencing or

   supporting Plaintiff’s contention that Defendant was grossly negligent.”

68. Request for Production No. 30: “Produce any and all documents evidencing or

   supporting Plaintiff’s contention that the injuries, harm, and damages were incurred by

   Plaintiff as a result of the use of the machinery and other dangerous device by

   Defendants’ employees and/or agents in a negligent and reckless manner, which because

   of the background, inexperience, and prior actions, Defendants knew, or had reason to

   know was likely and involved an unreasonable risk of harm to others.”

69. Request for Production No. 31: “Produce any and all documents evidencing or

   supporting Plaintiff’s contention that Defendant’s conduct amounts to violations of the

   Texas Health and Safety Code §§ 341.002 et al., 361.001 et al., 382.002 et al., 753.002 et

   al., as well as violations of the Texas Water Code § 26.001 et a1.”

70. Request for Production No. 32: “Produce any and all documents evidencing or

   supporting Plaintiff’s contention that the responsible actions for the fire and subsequent

   contamination were from those under the management and control of the Defendant.”

71. Request for Production No. 33: “Produce any and all documents evidencing or

   supporting Plaintiff’s contention that any employee(s) of Defendant was acting within the

   scope of his/her employment relating to the cause of the fire.”

72. Request for Production No. 34: “Produce any and all documents evidencing or

   supporting Plaintiff’s Bystander claims.”



DEFENDANT POLY-AMERICA LP’S MOTION TO COMPEL DISCOVERY — PAGE    15
73. Request for Production No. 35: “Produce any and all documents evidencing or

   supporting Plaintiff’s Nuisance claims.”

74. Request for Production No. 36: “Produce any and all documents evidencing or

   supporting Plaintiff’s Premise Liability claims.”

75. Request for Production No. 37: “Produce any and all documents evidencing or

   supporting Plaintiff’s Battery claims.”

76. Request for Production No. 38: “Produce any and all documents evidencing or

   supporting the Plaintiff’s Intentional Infliction of Emotional Distress claims.”

77. Request for Production No. 39: “Produce any and all documents evidencing or

   supporting Plaintiff’s wrongful death and/or survivorship claims.”

78. Request for Production No. 41: “Produce any and all documents supporting Plaintiff’s

   allegation that the Fire or the smoke from the Fire was toxic.”

79. In responding to Requests for Production Nos. 21—39   & 41 Plaintiffs objected “on the grounds

   that Defendant cannot force the Plaintiff to marshal its evidence prior to trial”.   Plaintiffs

   referred to their pleadings and reserved the right to supplement. The information sought in

   these requests is relevant and reasonably calculated to lead to the discovery    of admissible

   evidence. Plaintiffs must produce documents that support their contentions in this case. As

   this case has been on file for more than a year and the fire occurred three years ago, Plaintiffs

   have had ample time to discover such information and must produce any responsive

   documents.

80. Request for Production Nos. 42—43 are as follows:

81. Request for Production No. 42: “Produce any and all documents evidencing or

   supporting what Plaintiff claims caused and/or ignited the underlying fire in this



DEFENDANT POLY-AMERICA LP’S MOTION TO COMPEL DISCOVERY — PAGE       16
   lawsuit.”

82. Request for Production No. 43: “Produce any and all documents evidencing or

   supporting who Plaintiff claims caused and/or ignited the underlying fire in this lawsui .”

83. In responding to Requests Nos. 42— 43, Plaintiffs objected but failed to respond.     If Plaintiffs

   are disputing the findings    of the Grand Prairie Fire Department investigation which concluded

   the fire was caused by an unknown arsonist, Defendant is entitled to any documents that

   Plaintiffs have in their possession supporting their position and identifying who or what caused

   the fire. The information requested is relevant and reasonably calculated to lead to the


   discovery of admissible evidence.

84. Request for Production N0. 44, “Produce any and all documents evidencing or


   supporting what toxins or contaminants Plaintiff claims were in the smoke from the

   underlying fire in this lawsuit.” Plaintiffs objected but failed to respond. Plaintiffs’ entire

   lawsuit is based on their alleged exposures to toxins/contaminants they claim were in the

   underlying fire. Defendant is entitled to any documents that Plaintiffs have in their possession

   that purport to identify any toxins or contaminants   (if any) in the fire or the smoke.
                          IV.      ARGUMENT AND AUTHORITIES

85. The purpose of discovery is to allow the parties to obtain fiill knowledge   of the issues and facts

   of the lawsuit before trial. West v. Solito, 563 S.W.2d 240, 243 (Tex. 1978). Discovery may be

   obtained about any non-privileged matter relevant to the subject matter      of the case. TEX. R.

   CIV. P. 192.3(a). Information is discoverable    as long as it appears “reasonably calculated to

   lead to the discovery of admissible evidence.” Id. The “relevant to the subject matter” and

   “reasonably calculated to lead to admissible evidence” tests are liberally construed to allow

   litigants to obtain the fullest knowledge of the facts and issues prior to trial. Axelson, Inc. v.



DEFENDANT POLY-AMERICA LP’S MOTION TO COMPEL DISCOVERY — PAGE         17
      McIlhany, 798 S.W. 2d 550, 553 (Tex. 1990). Texas Rule of Civil Procedure 193.1 requires a

      party to make a complete response, based on all information reasonably available to the

      responding party or its attorney at the time the response is made.

86.   A court may compel a party to respond to discovery requests if the party fails to serve, answer,
      or object to discovery requests.   TEX. R. CIV. P. 215.1(b).

87. To date, Plaintiffs still have not provided full and complete discovery responses as required by

      the Texas Rules   of Civil Procedure. Plaintiffs have had ample time to answer discovery and

      are required under the Texas rules to provide full and complete responses.

88.   As such, Defendant requests that the Court overrule Plaintiffs’ baseless objections and enter

      an order compelling Plaintiffs to respond to Defendant’s Interrogatories and Requests for

      Production, fully and completely by providing substantive responses and producing all

      documents responsive to Defendant’s document requests by no later than seven days from the

      date this Motion is granted.

                                              V.    PRAYER
89. Defendant Poly-America LP respectfully requests that the Court grant this motion and enter an

      Order compelling Plaintiffs to respond to Interrogatories and Requests for Production,

      completely and fiilly by providing substantive responses and producing all documents

      responsive to Defendant’s document requests by no later than seven days after the signing of

      the Order. Defendant also prays for all such other and further relief, at law and in equity, to

      which it may be justly entitled.




DEFENDANT POLY-AMERICA LP’S MOTION TO COMPEL DISCOVERY — PAGE          18
                                                   Respectfully Submitted,
                                                  DEHAY & ELLISTON, L.L.P.

                                                  By: /s/ Pamela J. Williams
                                                       GARY D. ELLISTON
                                                       Texas State Bar No. 6584700
                                                       PAMELA J. WILLIAMS
                                                       Texas State Bar No. 00791936
                                                       3500 Bank of America Plaza
                                                       901 Main Street Dallas, TX 75202-3736
                                                       Telephone: (214) 210-2400
                                                       Fax: (214) 210-2500
                                                       pwilliams@dehay.com

                                                       ATTORNEYS FOR DEFENDANT
                                                       POLY-AMERICA LP
                                CERTIFICATE OF CONFERENCE
        Counsel for movant has personally attempted to contact the counsel for respondent to
resolve the matters presented as follows:

       Certified the   2nd   day of November 2023, by

                                                       /s/ Pamela J . Williams
                                                       PAMELA J. WILLIAMS



                                   CERTIFICATE OF SERVICE
      I HEREBY CERTIFY that on November 2, 2023, a true and correct copy of the foregoing
Motion to Compel has been served on all counsel of record in accordance with the Texas Rules of
Civil Procedure.


                                                  /s/ Pamela J. Williams
                                                  PAMELA J. WILLIAMS




DEFENDANT POLY-AMERICA LP’S MOTION TO COMPEL DISCOVERY — PAGE l9
                         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.

LaKesha Burrus on behalf of Pamela Williams
Bar No. 791936
lburrus@dehay.com
Envelope ID: 81239004
Filing Code Description: Motion - Compel
Filing Description:
Status as of 11/2/2023 5:42 PM CST

Case Contacts

Name                 BarNumber     Email                        TimestampSubmitted      Status
John CStewart                     john.stewart@oncor.com        11/2/2023 12:08:33 PM   SENT
Angie Ranton                       angela.ranton@oncor.com      11/2/2023 12:08:33 PM   SENT
Pamela J.Williams                  pwilliams@dehay.com          11/2/2023 12:08:33 PM   SENT
Cris Page                          cpage@dehay.com              11/2/2023 12:08:33 PM   SENT
Diane Hallmark                     diane.hallmark@oncor.com     11/2/2023 12:08:33 PM   SENT
Christine Harvey                   charvey@dehay.com            11/2/2023 12:08:33 PM   SENT
Adam Bell                          AdamB@poly-america.com       11/2/2023 12:08:33 PM   SENT
Madison Pyle                       mpyle@dehay.com              11/2/2023 12:08:33 PM   SENT
Lance Travis                       LTravis@cobbmartinez.com     11/2/2023 12:08:33 PM   SENT
Ruark Mershon                      RuarkM@poly-america.com      11/2/2023 12:08:33 PM   SENT
Alexis Quezada                     alexisq@poly-america.com     11/2/2023 12:08:33 PM   SENT
Anacorina Andrade                  aandrade@cobbmartinez.com    11/2/2023 12:08:33 PM   SENT
Landon Dutra                       ldutra@cobbmartinez.com      11/2/2023 12:08:33 PM   SENT


Associated Case Party: LEN ACKIN

Name                BarNumber    Email                               TimestampSubmitted        Status
Jennifer Kinder     787837       jkinder@justcallkinder.net          11/2/2023 12:08:33 PM     SENT
ROCIO CASTRO                     RCASTRO@JUSTCALLKINDER.NET 11/2/2023 12:08:33 PM SENT
Damian Sullivent                 dsullivent@nesslerlaw.com           11/2/2023 12:08:33 PM     SENT
FRED NESSLER                     fwn@nesslerlaw.com                  11/2/2023 12:08:33 PM     SENT
Griffin McMillin                 gmcmillin@justcallkinder.net        11/2/2023 12:08:33 PM     SENT