On July 29, 2022 a Motion,Ex Parte was filed involving a dispute between Ackin, Len, Adjei, Ella, Anderson, Preshas, Belmorris, Joshua, Berry, Ernest, Boozer, Antwuan, Bradix, Dorothy, Brewer, Chautaugua, Brown, Alvin, Brown, Katrina, Brown, Kenneth, Brown, Lauren, Bustillos, Orlando, Carnell, Johnny, Chester, Kjatha, Cisse, Sekou, Cisses, Sekou, Crawford, September, Crosley, Tyler, Davis, Kimberly, Diggs, Jake, Duncan, Ronnie, Elhadi, Jihad Abd, Ferguson, Lily, Fisher, Rudolph, Fisher, Sheila, Fonteno, Bobby, Ii, Gaston, Lastesha, Gates, Rondalus, Green, Ashley, Greene, Pamela, Harris, Jaquan, Harrison, Carol, Harrison, Charles, Harrison, Edward, Harrison, Joyce M., Harrison, Latasha, Harrison, Latoya, Harrison, Sharon, Henry, Donmonique, Howard, Rafael, Issah, Willie, Jackson, Marcus, Johnson, Robert, Johnson, Trenton, Jones, Brandon, Jones, Cedric, Jones, Cheryl, Jones, Edward, Jones, Toshi, Jones, Valencia, Kelley, Mildred, Kelley, Raven, Knight-Trigg, Tamara, Lara, Ephraim, Lard, Lazerick, Lee, Jada, Lee, Laquesha, Lee, Mariah, Lester, Ella, Luckey, Angela, Martinez, Jose, Mccray, Cornelius, Mcpherson, Aaron, Mcqueen, Dominika, Mims, Stacey, Mitchell, Benjamin, Montgomery, Jaqueisha, Mosley, Phyllis, Muoka, Margaret, Nixon, Latoya, Nzioka, Joseph, Oldacre, Donald, Oldacre, Glory, Olivarez, Gloria, Pena, Epifani, Pipkins, Sherry, Porter, Michelle, Purifoy, Wakeisha, Rodriguez, Amber, Rodriguez, Jazun, Ross, Edward, Scott, Benjamin, Scott, Hasani, Shelby, Kenneth, Smith, Jermaine, Smith, Sabrina, Stoker, Lester, Swope, Janice, Talley, Kelvin, The Estate Of Cheryl Jones, Tienda, Alexa, Tittel, Michael, Walker, Latasha, Ware, Addonais, Ware, Tara, Ware, T'Ara, Washington, Eartha, Wells, Kristy, West, Laquita, White, Carolyn, White, Darla, Whitemon, Bobby, Whitemon, Dorothy, White, Quinton, White, Sandra, Williams, Calap, Iii, Williams, Jackie, Jr, Woodard, Vickie, Young, Ariel, Young, Pamela, and Brewer, Chautaugua, Davis, Kimberly, Mars Partners, Ltd, Oncor Electric Delivery Company Llc, Oncor Electric Delivery Company, Llc, Poly-America Gp, Llc, Poly America Inc, Poly-America Inc, Poly-America International Inc., Poly-America Lp, for PROPERTY in the District Court of Dallas County.
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FILED 3/11/2024 9:12 AM FELICIA PITRE DISTRICT CLERK DALLAS CO., TEXAS Jenifer Trujillo DEPUTY CAUSE NO. DC-22-08610 LEN ACKLIN, INDIVIDUALLY, et al., IN THE DISTRICT COURT §§§§§§§§§§§§§§§ Plaintiffs, vs. 191“ 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; Defendants. DALLAS COUNTY, TEXAS DEFENDANTS’ RESPONSE TO PLAINTIFFS’ MOTION FOR LEAVE AND MOTION TO STRIKE PLAINTIFFS’ EXPERTS COME NOW, Defendants in the above cause and make and file this Response to Plaintiffs’ Motion for Leave to Extend Deadline for Plaintiffs’ Designation of Expert Witnesses, Filing of Expert Reports, Plaintiffs’ Request for Motion for Continuance of Initial Trial Setting and Entry of New Scheduling Order and Defendants’ Motion to Strike Plaintiffs’ Experts, and in support thereof would show the Court as follows: I. BACKGROUND This case has been pending for approximately 18 months. The Court held the first in a series of Status Conferences in September 2023 to develop a plan to move the litigation forward. At that time, the Court ordered Plaintiffs to choose 5 Plaintiffs and Defendants to choose 5 Plaintiffs to go to trial in June 2024, which the parties promptly did. Plaintiffs then proposed, and the Court signed, a Scheduling Order setting various pretrial deadlines for these “Class l” Plaintiffs, including a deadline for Plaintiffs to designate expert witnesses with written reports and in accordance with Rules 194 and 195 of the Texas Rules of Civil Procedure by February 6, 2024. RESPONSE TO MOTION FOR LEAVE AND MOTION TO STRIKE 1 Plaintiffs chose this expert designation deadline and told the Court at the initial Status Conference that their experts were already “lined up.” In several subsequent Status Conferences (the most recent on January 26, 2024) and in all of their communications with Defendants’ counsel over the last several months, Plaintiffs have not said one word about any difficulty in complying with their deadline or any request to extend it. When Plaintiffs’ deadline came and went with silence on their part, Defendants promptly reached out (the next day) to ask about Plaintiffs plan to comply. It was only then that Plaintiffs began claiming some vague need for an extension. In fact, their Motion for Leave is devoid of any legal authority, omits several important facts which prove that any difficulty they now face is of their own making, and ignores their inability to meet the true legal standard for the relief they seek. II. N0 LEGAL OR EQUITABLE GROUNDS FOR EXTENSION 1. No authority cited In a barely 2-page Motion, Plaintiffs cite absolutely no authority for the relief they seek. They cite no cases, and the only Rule cited (T.R.C.P. 500.5) applies solely to small claim actions pending in Justice Courts. The actual legal standard is found in Rules 251 and 252 of the Texas Rules of Civil Procedure which require a sworn motion supported by sufficient cause. Taherzadeh v. Ghaleh-Assadz', 108 S.W.3d 927, 928 (Tex. App.- Dallas 2003, pet. denied). Plaintiffs’ Motion is not sworn and contains no sufficient cause. Further, if the request is based on the alleged need to obtain additional evidence or testimony (which is apparently what Plaintiffs are claiming), Rule 252 requires the motion to: (1) describe the specific discovery sought; (2) describe the procedure the party intends to use to obtain the discovery; (3) state the substance of the evidence or testimony needed, and what the party RESPONSE TO MOTION FOR LEAVE AND MOTION TO STRIKE 2 expects to prove from the witness’s testimony; (4) show that the party used due diligence to obtain the discovery before requesting a continuance; (5) and explain Why the party was unable to obtain the discovery earlier. Wal—Mart Stores Tex., LP v. Crosby, 295 S.W.3d 346, 356 (Tex. App. — Dallas 2009, pet. denied); State v. Wood Oil Distrib., 751 S.W.2d 863, 865 (Tex. 1988); J.E.M Fidelity & Cas. C0,, 928 S.W.2d 668, 676 (Tex. App. — Houston [1“ Dist] 1996, no writ); Risner v. McDonald Is Corp., l8 S.W.3d 903, 909 (Tex. App. — Beaumont 2000, pet. denied). Plaintiffs’ Motion does not even attempt to meet any of these elements. 2. Omission of key facts Plaintiffs’ Motion makes the nonsensical assertions that they have been faced with a “small time Window matched with the extensive amount of work” and are “only seeking this extension due to the large volume of documents being produced in a small time period.” They also trot out their repeated excuse that their local counsel is a small firm with one attorney (ignoring the much larger firm also representing Plaintiffs). Missing from Plaintiffs’ entire discussion are the true facts. They chose their own deadline. It was not imposed upon them. As the deadline approached and passed, they said nothing to the Court, nothing to Defendants’ counsel, and neither requested nor noticed any depositions allegedly necessary to meet their deadline. Since the Scheduling Order was signed in December 2023, Plaintiffs have not requested a single Oncor deposition (despite Oncor previously identifying multiple personnel with knowledge of relevant facts) and first requested a deposition from Poly- America on January 19 with the admission that they were not seeking to even schedule this deposition until after their designation deadline had passed. RESPONSE TO MOTION FOR LEAVE AND MOTION TO STRIKE 3 Defendants are also unaware of the “large volume” of documents to which Plaintiffs refer. Defendants produced documents months and months ago. No motions to compel additional documents have been filed or heard. If Plaintiffs are referring to their own medical records, Defendants have certainly not prevented them from requesting and obtaining them and having them reviewed by medical and causation experts of their choosing over the last several years. III. MOTION TO STRIKE EXPERTS Plaintiffs have wholly failed to meet their expert designation obligations, and their late- named experts (and any subsequently late-named) experts should be stricken. After their deadline passed, Plaintiffs identified two liability experts, Frank Moriss and James Stallcup (See Exhibit “A”). They do not even attempt to comply the Rules or their obligations under the Scheduling Order to designate these experts. Further, as was explained to them and acknowledged by them months and months ago, this type of toxic exposure case they are pursuing requires a litany of highly specialized medical and causation experts. They have named none. Defendants have been pursuing various forms of dispositive relief since the outset of this litigation and have openly challenged Plaintiffs’ ability to procure the necessary medical and causation testimony. The Court has previously recognized Plaintifis’ burden in this regard and has given them more than ample opportunity to meet that burden, which they have wholly failed to do. Plaintiffs have not articulated, nor could they, any good cause for failing to pursue evidence and testimony Within their exclusive control, and giving them baseless and indefinite extensions is unfairly prejudicial to Defendants. See T.R.C.P. 193.6. Accordingly, Plaintiffs’ experts should be stricken. RESPONSE TO MOTION FOR LEAVE AND MOTION TO STRIKE 4 WHEREFORE, PREMISES CONSIDERED, the parties pray that Plaintiffs’ Motion for Leave be denied, that their Motion to Strike be granted and for such other and further relief to which they may be justly entitled. Respectfully submitted, COBB MARTINEZ WOODWARD PLLC By: /s/ Lance C. Travis Lance C. Travis State Bar No. 00797568 Cobb Martinez Woodward PLLC 1700 Pacific Ave, Suite 3100 Dallas, TX 75201 214-220-5236 (phone) 214-220-5299 (fax) ltravis@cobbmartinez.com and John C. Stewart State Bar No. 19211525 Daniel G. Altman State Bar No. 00793255 777 Main, Suite 747 Fort Worth, Texas 76101 (817) 215-5885 (Telephone) (817) 215-6360 (Facsimile) JOhIl.StCW&I't @0HCOI‘.COI’II Attorneys for Defendant Oncor Electric Delivery Company LLC RESPONSE TO MOTION FOR LEAVE AND MOTION TO STRIKE 5 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 pwilliamsdeehayeom ATTORNEYS FOR DEFENDANTS POLY-AMERICA INTERNATIONAL INC., POLY- AMERICA GP, LLC., POLYAMERICA LP, and MARS PARTNERS, LTD CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the above and foregoing document has been forwarded to all known counsel of record Via e-file on this 11th day of March, 2024. /s/ Lance C. Travis Lance C. Travis RESPONSE TO MOTION FOR LEAVE AND MOTION TO STRIKE 6 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. Anacorina Andrade on behalf of Lance Travis Bar No. 797568 aandrade@cobbmartinez.com Envelope ID: 85397328 Filing Code Description: Response Filing Description: DEFENDANTS/ TO PLAINTIFFS MOTION FOR LEAVE & TO STRIKE EXPERTS Status as of 3/11/2024 9:23 AM CST Associated Case Party: LEN ACKIN Name BarNumber Email TimestampSubmitted Status Jennifer Kinder 787837 jkinder@justcallkinder.net 3/11/2024 9:12:32 AM SENT ROCIO CASTRO RCASTRO@JUSTCALLKINDER.NET 3/11/2024 9:12:32 AM SENT FRED NESSLER fwn@nesslerlaw.com 3/11/2024 9:12:32 AM SENT Griffin McMiIIin gmcmillin@justca|lkinder.net 3/11/2024 9:12:32 AM SENT Damian Sullivent dsullivent@nessler|aw.com 3/11/2024 9:12:32 AM SENT Case Contacts Name BarNumber Email TimestampSubmitted Status John CStewart john.stewart@oncor.com 3/11/2024 9:12:32 AM SENT Angie Ranton angela.ranton@oncor.com 3/11/2024 9:12:32 AM SENT Pamela J.Wi||iams pwilliams@dehay.com 3/11/2024 9:12:32 AM SENT Cris Page cpage@dehay.com 3/11/2024 9:12:32 AM SENT Diane Hallmark diane.hallmark@oncor.com 3/11/2024 9:12:32 AM SENT Christine Harvey charvey@dehay.com 3/11/2024 9:12:32 AM SENT Adam Bell AdamB@poly-america.com 3/11/2024 9:12:32 AM SENT Madison Pyle mpyle@dehay.com 3/11/2024 9:12:32 AM SENT Sherri Robinson sherri.robinsoncsr@gmail.com 3/11/2024 9:12:32 AM SENT Ruark Mershon RuarkM@poly-america.com 3/11/2024 9:12:32 AM SENT Alexis Quezada alexisq@poly-america.com 3/11/2024 9:12:32 AM SENT Lance Travis LTravis@cobbmartinez.com 3/11/2024 9:12:32 AM SENT Anacorina Andrade aandrade@cobbmartinez.com 3/11/2024 9:12:32 AM SENT 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. Anacorina Andrade on behalf of Lance Travis Bar No. 797568 aandrade@cobbmartinez.com Envelope ID: 85397328 Filing Code Description: Response Filing Description: DEFENDANTS/ TO PLAINTIFFS MOTION FOR LEAVE & TO STRIKE EXPERTS Status as of 3/11/2024 9:23 AM CST Case Contacts Anacorina Andrade aandrade@cobbmartinez.com 3/11/2024 9:12:32 AM SENT Landon Dutra ldutra@cobbmartinez.com 3/11/2024 9:12:32 AM SENT Gary DElliston gelliston@dehay.com 3/11/2024 9:12:32 AM SENT Associated Case Party: POLY-AMERICA LP Name BarNumber Email TimestampSubmitted Status Christine Harvey deservice@dehay.com 3/11/2024 9:12:32 AM SENT