Preview
FILED
11/21/2023 4:42 PM
FELICIA PITRE
DISTRICT CLERK
DALLAS CO., TEXAS
Jenifer Trujillo DEPUTY
CAUSE NO. DC-20-1 1175
MICHAEL WILLIAMS IN THE DISTRICTCOURT 0F
§§§§§§§§§§§
Plaintlffi
V.
TXI OPERATIONS, L.P., TEXAS
INDUSTRIES, INC., MARTIN MARIETTA, DALLAS COUNTY, TEXAS
MARTIN MARIETTA MATERIALS, INC.,
AND MARTIN MARIETTA MATERIALS
SOUTHWEST, L.L.C.,
Defendants. 134TH JUDICIAL DISTRICT
PLAINTIFF’S PRETRIAL OBJECTIONS TO DEFENDANTS’ EXHIBIT LIST
Plaintiff Michael Williams hereby makes the following objections to Defendants’
Preliminary List of Exhibits filed with the Court on November 6, 2023:
3B Dozer DWQ Documents
Defendants’ List of Exhibits include 125 pages of business record documents that
Plaintiff’ s employer, 3B Dozer, produced in response to a deposition by written questions.
Defendants mischaracterize these documents as “Plaintiff’s employment records from 3B
Dozer.” Any characterization that these documents are part of Plaintiff’s employment file is
simply not true. Nowhere in the written questions for these documents does it seek or suggest
records of Plaintiff’s employment records.
Defendants apparently seek to take these business records (an otherwise inadmissible out
of court statement), and assert them as being Plaintiff’ s employment records (i.e., the truth
asserted), creating classic hearsay within hearsay admissibility to which Plaintiff objects.
For example, these 125 pages of business records contain Q MSHA Site-Specific Hazard
Awareness Training Program, not necessarily Site-Specific Training that Plaintiff’ s employer
provided to him specific to Defendants’ mine (see excerpts of 3B Dozer’s business records at
PLT 0113 — PLT 0115 attached as Exhibit A). The actual deposition by written questions make
clear that the site-specific training “concerning Plaintiff” and “concerning 3B Dozer” were “done
onsite, through Martin Marietta” (see Exhibit A, PLT 0014 at Questions 4 and 5). Instead, the
entire set of training documents produced by 3B Dozer were part of their general “MSHA
Training Plans” (see Exhibit A, PLT 0014 at Questions 7, 9 and 12). The only documents
particular to Plaintiff within those general “MSHA Training Plans” are a “New Miner” training
certificate for Plaintiff dated May 8, 2018 (see Exhibit A, PLT 0014 at Question 6 and PLT
0091). Notably, “New Miner” training is substantively different than “Site-Specific” training that
is unique to each mine.
Simply stated, Defendants are seeking to use business records that are responsive to very
specific written deposition questions and offer them as Plaintiff’ s employment records which
they are not. Not only are these records inadmissible hearsay within hearsay, as demonstrated
above, these records are inadmissible pursuant to Tex. R. Evid. 403 because their relevancy is
substantially outweighed by the danger of confusing and/or misleading the jury.
In addition, the 3B Dozer business records contain “Insurance Requirements” in the
contract between Defendant and Plaintiff’s Employer (see Exhibit A at page PLT 102). Plaintiff
objects that this document does not meet the relevancy standard of Tex. R. Evid. 401. Further,
Plaintiff objects that that any such relevancy of page PLT 102 is substantially outweighed by the
danger of unfair prejudice and/or misleading the jury. “That it is error to inject the subject of
insurance coverage into a jury trial is well settled.” Starler Hotels v. Herbert Rosenthal Jewelry
Corp, 351 S.W.2d 579, 585 (Tex. Civ. App—Dallas 1961, writ ref’d n.r.e.)
PLAINTIFF’S OBJECTIONS TO DEFENDANTS’ EHXIBIT LIST
Page 2 of 7
Plaintiff’s Medical Expense Affidavits and Records
I. Summafl
Plaintiff Michael Williams does not seek damages for past medical treatment. Still,
Defendants seek to introduce hundreds of pages of medical billing records on that very point.
The Court should exclude such evidence as irrelevant and likely only to complicate the trial and
confuse the jury. As shown below, the trial court has discretion in refusing to allow past medical
bills to avoid the introduction of irrelevant evidence that would only confuse a jury. Plaintiff asks
the Court to do so here.
II. Past medical bills should not be admitted and would only confuse the iurv.
A trial court properly refuses to admit past medical bills when the plaintiff does not seek
a recovery of medical expenses. Gordon v. Redelsperger, No. 02-17- 0046l-CV, 2019 Tex. App.
LEXIS 1121 (Tex. App—Fort Worth Feb. 14, 2019, no pet.) (affirming trial court’s exclusion of
medical bills because plaintiff did not seek economic damages and his medical bills would likely
confuse the jury); Press Energ/ Servs., LLC v. Ruiz, 650 S.W.3d 23, 36 (Tex. App—El Paso
2021, no pet.) (addressing similar issue—admissibility of medical bills—and excluding the
evidence).
In Gordon, for example, the trial court excluded evidence of past medical billing because
the records were “not relevant,” to any claim in dispute. 2019 Tex. App. LEXIS 1121, at *19
(plaintiff did not seek recovery of medical expenses). Further, the evidence would be “confusing
to the jury because the jury would not answer any questions regarding the amount of medical
expenses.” Id. (noting that the “trial court’s concern about the confusion...was valid.”), citing
TEX. R. EVID. 401, 403.
And the Gordon court torpedoed the defendant’s suggestion about why it needed the
PLAINTIFF’S OBJECTIONS TO DEFENDANTS’ EHXIBIT LIST
Page 3 of 7
bills. The purpose was to try to argue that the plaintiff‘s injuries were minor or that the treatment
needed was not extensive. Id. at *22. (“Presumably, Defendant would have used the amount of
the medical bills as a benchmark to urge that the jury tie...” damages to the amount of medical
bills). But as the court noted, the defendant has several ways to make that very point, including
by cross-examining or eliciting questions on treatment generally. Id. at *20-21.
The same is true here. If Defendants want to argue that Plaintiff’s injuries are less
extensive than asserted or challenge the amount of medical treatment necessary in the future,
they’re free to do so. But embarking on a mini-trial on the reasonableness and necessity of past
medical bills—which a jury will not be asked to assess—creates far more confusion than benefit.
Excluding such evidence also avoids tackling tangential issues such as the reasonableness and
necessity, whether such bills were paid or incurred, and the effect on insurance to the adjusted or
unadjusted amount of bills. As a result, the Court should exclude such evidence.
III. Supreme Court of Texas authority calls for such result.
Nor did the holding in Gordon spring from a void; instead, as the court explained,
Supreme Court of Texas authority compels such a result. Id. at *21-22; see also Press Energy,
650 S.W.3d at 36 (“[w]e are guided here by the controlling authority of Haygood. . ..”).
The Supreme Court of Texas previously considered whether all evidence of medical
” to
expenses—whether recoverable or not—“should be admissible as a benchmar guide the jury
in setting damages. Id. at *21-22, citing Haygood v. DeEscabedo, 356 S.W.3d 390, 398 (Tex.
2011). The Supreme Court of Texas rejected this argument by noting that non-recoverable
economic damages—damages the jury could not award—“were not relevant” because the
admission would be “substantially outweighed by the confusion it is likely to generate.”
Haygood, 356 S.W.3d at 398.
PLAINTIFF’S OBJECTIONS TO DEFENDANTS’ EHXIBIT LIST
Page 4 of 7
Thus, the Gordon court noted the concern that a jury would become confused in hearing
evidence of medical billing when not having to answer any charge question about the same; this
concern is the “same expressed in Haygood.” Gordon, 2019 Tex.App. LEXIS 1121, at *22. In
short, bolstering exclusion or evidence was the “fear that the introduction of evidence on a matter
that the jury would not be asked to decide would confuse the jury on how it should use that
evidence in determining the awards it was asked to make.” Id.
IV. The Court should reiect Defendants’ attempt to tether future medical to past bills.
Defendants here—like those above—want to present evidence of Plaintiff’s past medical
to suggest the extent or necessity of medical treatment in the future. Defendants seem to suggest
that not being allowed to introduce past medical billing records would deprive them of a
necessary guidepost of future medical expense and treatment. And yet, both parties have
extensive expert testimony and evidence on precisely this point. The jury will hear, at length,
expert medical opinions about the need for future medical treatment and the anticipated cost. The
attempt to tether such future damages to past medical bills is improper and prejudicial.
V. The trial court has discretion over the exclusion or admission of evidence.
“Evidentiary rulings are committed to the trial court's sound discretion.” UHaul Intern,
Inc. v. Waldrip, 380 S.W.3d 118, 132 (Tex. 2012); DeAnder & Felhaber, LP v. Montgomery,
615 S.W.3d 352, 356 (Tex. App—El Paso 2020, pet. denied). In determining the relevance and
admissibility of such records, the trial court is vested with broad discretion to facilitate the
expedient and efficient trial of this case.
Dr. Sutton LOP Verification
Dr. Blake Sutton is a pain management physician with Integrated Pain Associates (IPA)
who treated and continues to treat Plaintiff. In connection with Dr. Sutton’s deposition, he
PLAINTIFF’S OBJECTIONS TO DEFENDANTS’ EHXIBIT LIST
Page 5 of 7
produced a single page “Letter of Protection (LOP) Verification.” That single page form lists a
number of “minimum requirements” for LOP. This document is inadmissible for a number of
reasons.
First, it makes a number of references to insurance. Plaintiff objects that this document
does not meet the relevancy standard of Tex. R. EVid. 401. Further, Plaintiff objects that that any
such relevancy of this document is substantially outweighed by the danger of unfair prejudice
and/or misleading the jury. “That it is error to inject the subject of insurance coverage into a
jury trial is well settled.” Starler Hotels v. Herbert Rosenthal Jewelry Corp., 351 S.W.2d 579,
585 (Tex. Civ. App—Dallas 1961, writ ref’ d n.r.e.)
Second, pursuant to Tex. R. Evid. 107 (the “Rule of Optional Completeness), when a
party introduces part of a writing, an adverse party may introduce any other writing that is
necessary to allow the jury to fully understand the party offered by the opponent. Here, the
proferred LOP Intake document is not the LOP itself (see the LOP itself attached hereto as
Exhibit B). In a vacuum, the contents of the LOP would need to be considered by the jury to
understand the context of the LOP Verification that Defendants seek to admit into evidence.
However, the LOP itself is even more prejudicial to Plaintiff by discussing the realities of
insurance that would even further confuse the jury putting Plaintiff between a rock and a hard
place. This further highlights why both the LOP Verification and the LOP itself should be
excluded from evidence.
Respectfully submitted,
THE CARLSON LAW FIRM, P.C.
11606 North Interstate Highway 35
Austin, Texas 7875 3
Phone: (512) 346-5688
Fax: (512) 719-4362
PLAINTIFF’S OBJECTIONS TO DEFENDANTS’ EHXIBIT LIST
Page 6 of 7
By: William G. Rossick
/s/
WILLIAM G. ROSSICK
SBN: 00789597
billrossickefi1e@carlsonattornevs.com
ATTORNEY FOR PLAINTIFF
CERTIFICATE OF SERVICE
I certify that a true and correct copy of the foregoing was served in accordance with Rule
21 and 21a, Texas Rules of Civil Procedure on this the 215‘ day of November, 2023, to all
counsel of record, as follows:
Via E-service: mark@st19dlevlgwfirm.c0m
Mark E. Stradley
THE STRADLEY LAW FIRM
9330 LBJ Freeway, Suite 1185
Dallas, Texas 75243
Attorney for Defendants
Via E-service: Qgrahamficsb. com
Parker Graham
SLOMAN & BLUMENTHAL, L.L.P.
901 Main Street, Suite 5500
Dallas, Texas 75202
Attorney for Defendants
William G. Rossick
/s/
William G. Rossick
PLAINTIFF’S OBJECTIONS TO DEFENDANTS’ EHXIBIT LIST
Page 7 of 7
Preview
FILED 11/21/2023 4:42 PM FELICIA PITRE DISTRICT CLERK DALLAS CO., TEXAS Jenifer Trujillo DEPUTY CAUSE NO. DC-20-1 1175 MICHAEL WILLIAMS IN THE DISTRICTCOURT 0F §§§§§§§§§§§ Plaintlffi V. TXI OPERATIONS, L.P., TEXAS INDUSTRIES, INC., MARTIN MARIETTA, DALLAS COUNTY, TEXAS MARTIN MARIETTA MATERIALS, INC., AND MARTIN MARIETTA MATERIALS SOUTHWEST, L.L.C., Defendants. 134TH JUDICIAL DISTRICT PLAINTIFF’S PRETRIAL OBJECTIONS TO DEFENDANTS’ EXHIBIT LIST Plaintiff Michael Williams hereby makes the following objections to Defendants’ Preliminary List of Exhibits filed with the Court on November 6, 2023: 3B Dozer DWQ Documents Defendants’ List of Exhibits include 125 pages of business record documents that Plaintiff’ s employer, 3B Dozer, produced in response to a deposition by written questions. Defendants mischaracterize these documents as “Plaintiff’s employment records from 3B Dozer.” Any characterization that these documents are part of Plaintiff’s employment file is simply not true. Nowhere in the written questions for these documents does it seek or suggest records of Plaintiff’s employment records. Defendants apparently seek to take these business records (an otherwise inadmissible out of court statement), and assert them as being Plaintiff’ s employment records (i.e., the truth asserted), creating classic hearsay within hearsay admissibility to which Plaintiff objects. For example, these 125 pages of business records contain Q MSHA Site-Specific Hazard Awareness Training Program, not necessarily Site-Specific Training that Plaintiff’ s employer provided to him specific to Defendants’ mine (see excerpts of 3B Dozer’s business records at PLT 0113 — PLT 0115 attached as Exhibit A). The actual deposition by written questions make clear that the site-specific training “concerning Plaintiff” and “concerning 3B Dozer” were “done onsite, through Martin Marietta” (see Exhibit A, PLT 0014 at Questions 4 and 5). Instead, the entire set of training documents produced by 3B Dozer were part of their general “MSHA Training Plans” (see Exhibit A, PLT 0014 at Questions 7, 9 and 12). The only documents particular to Plaintiff within those general “MSHA Training Plans” are a “New Miner” training certificate for Plaintiff dated May 8, 2018 (see Exhibit A, PLT 0014 at Question 6 and PLT 0091). Notably, “New Miner” training is substantively different than “Site-Specific” training that is unique to each mine. Simply stated, Defendants are seeking to use business records that are responsive to very specific written deposition questions and offer them as Plaintiff’ s employment records which they are not. Not only are these records inadmissible hearsay within hearsay, as demonstrated above, these records are inadmissible pursuant to Tex. R. Evid. 403 because their relevancy is substantially outweighed by the danger of confusing and/or misleading the jury. In addition, the 3B Dozer business records contain “Insurance Requirements” in the contract between Defendant and Plaintiff’s Employer (see Exhibit A at page PLT 102). Plaintiff objects that this document does not meet the relevancy standard of Tex. R. Evid. 401. Further, Plaintiff objects that that any such relevancy of page PLT 102 is substantially outweighed by the danger of unfair prejudice and/or misleading the jury. “That it is error to inject the subject of insurance coverage into a jury trial is well settled.” Starler Hotels v. Herbert Rosenthal Jewelry Corp, 351 S.W.2d 579, 585 (Tex. Civ. App—Dallas 1961, writ ref’d n.r.e.) PLAINTIFF’S OBJECTIONS TO DEFENDANTS’ EHXIBIT LIST Page 2 of 7 Plaintiff’s Medical Expense Affidavits and Records I. Summafl Plaintiff Michael Williams does not seek damages for past medical treatment. Still, Defendants seek to introduce hundreds of pages of medical billing records on that very point. The Court should exclude such evidence as irrelevant and likely only to complicate the trial and confuse the jury. As shown below, the trial court has discretion in refusing to allow past medical bills to avoid the introduction of irrelevant evidence that would only confuse a jury. Plaintiff asks the Court to do so here. II. Past medical bills should not be admitted and would only confuse the iurv. A trial court properly refuses to admit past medical bills when the plaintiff does not seek a recovery of medical expenses. Gordon v. Redelsperger, No. 02-17- 0046l-CV, 2019 Tex. App. LEXIS 1121 (Tex. App—Fort Worth Feb. 14, 2019, no pet.) (affirming trial court’s exclusion of medical bills because plaintiff did not seek economic damages and his medical bills would likely confuse the jury); Press Energ/ Servs., LLC v. Ruiz, 650 S.W.3d 23, 36 (Tex. App—El Paso 2021, no pet.) (addressing similar issue—admissibility of medical bills—and excluding the evidence). In Gordon, for example, the trial court excluded evidence of past medical billing because the records were “not relevant,” to any claim in dispute. 2019 Tex. App. LEXIS 1121, at *19 (plaintiff did not seek recovery of medical expenses). Further, the evidence would be “confusing to the jury because the jury would not answer any questions regarding the amount of medical expenses.” Id. (noting that the “trial court’s concern about the confusion...was valid.”), citing TEX. R. EVID. 401, 403. And the Gordon court torpedoed the defendant’s suggestion about why it needed the PLAINTIFF’S OBJECTIONS TO DEFENDANTS’ EHXIBIT LIST Page 3 of 7 bills. The purpose was to try to argue that the plaintiff‘s injuries were minor or that the treatment needed was not extensive. Id. at *22. (“Presumably, Defendant would have used the amount of the medical bills as a benchmark to urge that the jury tie...” damages to the amount of medical bills). But as the court noted, the defendant has several ways to make that very point, including by cross-examining or eliciting questions on treatment generally. Id. at *20-21. The same is true here. If Defendants want to argue that Plaintiff’s injuries are less extensive than asserted or challenge the amount of medical treatment necessary in the future, they’re free to do so. But embarking on a mini-trial on the reasonableness and necessity of past medical bills—which a jury will not be asked to assess—creates far more confusion than benefit. Excluding such evidence also avoids tackling tangential issues such as the reasonableness and necessity, whether such bills were paid or incurred, and the effect on insurance to the adjusted or unadjusted amount of bills. As a result, the Court should exclude such evidence. III. Supreme Court of Texas authority calls for such result. Nor did the holding in Gordon spring from a void; instead, as the court explained, Supreme Court of Texas authority compels such a result. Id. at *21-22; see also Press Energy, 650 S.W.3d at 36 (“[w]e are guided here by the controlling authority of Haygood. . ..”). The Supreme Court of Texas previously considered whether all evidence of medical ” to expenses—whether recoverable or not—“should be admissible as a benchmar guide the jury in setting damages. Id. at *21-22, citing Haygood v. DeEscabedo, 356 S.W.3d 390, 398 (Tex. 2011). The Supreme Court of Texas rejected this argument by noting that non-recoverable economic damages—damages the jury could not award—“were not relevant” because the admission would be “substantially outweighed by the confusion it is likely to generate.” Haygood, 356 S.W.3d at 398. PLAINTIFF’S OBJECTIONS TO DEFENDANTS’ EHXIBIT LIST Page 4 of 7 Thus, the Gordon court noted the concern that a jury would become confused in hearing evidence of medical billing when not having to answer any charge question about the same; this concern is the “same expressed in Haygood.” Gordon, 2019 Tex.App. LEXIS 1121, at *22. In short, bolstering exclusion or evidence was the “fear that the introduction of evidence on a matter that the jury would not be asked to decide would confuse the jury on how it should use that evidence in determining the awards it was asked to make.” Id. IV. The Court should reiect Defendants’ attempt to tether future medical to past bills. Defendants here—like those above—want to present evidence of Plaintiff’s past medical to suggest the extent or necessity of medical treatment in the future. Defendants seem to suggest that not being allowed to introduce past medical billing records would deprive them of a necessary guidepost of future medical expense and treatment. And yet, both parties have extensive expert testimony and evidence on precisely this point. The jury will hear, at length, expert medical opinions about the need for future medical treatment and the anticipated cost. The attempt to tether such future damages to past medical bills is improper and prejudicial. V. The trial court has discretion over the exclusion or admission of evidence. “Evidentiary rulings are committed to the trial court's sound discretion.” UHaul Intern, Inc. v. Waldrip, 380 S.W.3d 118, 132 (Tex. 2012); DeAnder & Felhaber, LP v. Montgomery, 615 S.W.3d 352, 356 (Tex. App—El Paso 2020, pet. denied). In determining the relevance and admissibility of such records, the trial court is vested with broad discretion to facilitate the expedient and efficient trial of this case. Dr. Sutton LOP Verification Dr. Blake Sutton is a pain management physician with Integrated Pain Associates (IPA) who treated and continues to treat Plaintiff. In connection with Dr. Sutton’s deposition, he PLAINTIFF’S OBJECTIONS TO DEFENDANTS’ EHXIBIT LIST Page 5 of 7 produced a single page “Letter of Protection (LOP) Verification.” That single page form lists a number of “minimum requirements” for LOP. This document is inadmissible for a number of reasons. First, it makes a number of references to insurance. Plaintiff objects that this document does not meet the relevancy standard of Tex. R. EVid. 401. Further, Plaintiff objects that that any such relevancy of this document is substantially outweighed by the danger of unfair prejudice and/or misleading the jury. “That it is error to inject the subject of insurance coverage into a jury trial is well settled.” Starler Hotels v. Herbert Rosenthal Jewelry Corp., 351 S.W.2d 579, 585 (Tex. Civ. App—Dallas 1961, writ ref’ d n.r.e.) Second, pursuant to Tex. R. Evid. 107 (the “Rule of Optional Completeness), when a party introduces part of a writing, an adverse party may introduce any other writing that is necessary to allow the jury to fully understand the party offered by the opponent. Here, the proferred LOP Intake document is not the LOP itself (see the LOP itself attached hereto as Exhibit B). In a vacuum, the contents of the LOP would need to be considered by the jury to understand the context of the LOP Verification that Defendants seek to admit into evidence. However, the LOP itself is even more prejudicial to Plaintiff by discussing the realities of insurance that would even further confuse the jury putting Plaintiff between a rock and a hard place. This further highlights why both the LOP Verification and the LOP itself should be excluded from evidence. Respectfully submitted, THE CARLSON LAW FIRM, P.C. 11606 North Interstate Highway 35 Austin, Texas 7875 3 Phone: (512) 346-5688 Fax: (512) 719-4362 PLAINTIFF’S OBJECTIONS TO DEFENDANTS’ EHXIBIT LIST Page 6 of 7 By: William G. Rossick /s/ WILLIAM G. ROSSICK SBN: 00789597 billrossickefi1e@carlsonattornevs.com ATTORNEY FOR PLAINTIFF CERTIFICATE OF SERVICE I certify that a true and correct copy of the foregoing was served in accordance with Rule 21 and 21a, Texas Rules of Civil Procedure on this the 215‘ day of November, 2023, to all counsel of record, as follows: Via E-service: mark@st19dlevlgwfirm.c0m Mark E. Stradley THE STRADLEY LAW FIRM 9330 LBJ Freeway, Suite 1185 Dallas, Texas 75243 Attorney for Defendants Via E-service: Qgrahamficsb. com Parker Graham SLOMAN & BLUMENTHAL, L.L.P. 901 Main Street, Suite 5500 Dallas, Texas 75202 Attorney for Defendants William G. Rossick /s/ William G. Rossick PLAINTIFF’S OBJECTIONS TO DEFENDANTS’ EHXIBIT LIST Page 7 of 7