Preview
Electronically Filed
11/12/2020 3:36 PM
Hidalgo County District Clerks
Reviewed By: Aaron Castaneda
CAUSE NO. C-5246-19-D
RAUL J. CANALES and EZEQUIEL § 1N THE DISTRICT COURT 0F
ROSALES GONZALEZ §
Plaintiff §
§
v § HIDALGO COUNTY, TEXAS
§
Ms TRANSPORTATION, LLC AND §
SEBASTIAN s. MACIAS §
Defendants. §
206th JUDICIAL DISTRICT
PLAINTIFFS’ RESPONSE TO DEFENDANTS’ MOTION
TO COMPEL INDEPENDENT MEDICAL EXAMINATION
TO THE HONORABLE JUDGE OF SAID COURT:
COME NOW, Plaintiffs Raul J.Canales and Ezequiel Rosales Gonzalez, and file this, their
Response t0 Defendants’ Motion t0 Compel Independent Medical Examination. In support thereof,
Plaintiffs would respectfully show this Court as follows:
I. SUMMARY 0F THE ARGUMENT & RELIEF REQUESTED
Defendants seek “independent” medical examinations 0f Plaintiffs Raul J. Canales and
Ezequiel Rosales Gonzalez in this personal injury case pursuant t0 Texas Rule 0f Civil Procedure
204.1 Under this rule, such exams can be justified if Plaintiffs’ physical conditions are “in
controversy” and “good cause” is shown. See Tex. R. CiV. P. 204.1(0). But while Plaintiffs agree
their physical conditions are in controversy, Defendants have not satisfied the second, essential
requirement for the relief they seek. Instead, they rely 0n conclusory allegations supported by
Virtually none 0f the facts and details demanded by the rules. Plaintiffs therefore oppose
1
The Court Will note that “independent” is a bit 0f a
misnomer. It appears nowhere in the text 0f Rule 204, and What
Defendants more likely seek is a partisan examination by a physician subject t0 their control.T0 be clear, a partisan
exam is also authorized under Rule 204, but the attendant possibility 0f mischief isprecisely Why this Court must
more
include specific, written restrictions for that exam, as discussed in detailbelow. See Tex. R. CiV. P. 204.1(d).
PLAINTIFFS’ RESPONSE To DEFENDANTS’ MOTION TO
COMPEL INDEPENDENT MEDICAL EXAMINATION PAGE |
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Electronically Filed
11/12/2020 3:36 PM
Hidalgo County District Clerks
Reviewed By: Aaron Castaneda
participating in Rule 204 examinations without adequate protections. Defendants’ motion as-
written must be denied.
II. ARGUMENT & AUTHORITIES
Rule 204 plainly states that the Court “may issue an order for examination only for good
cause shown,” and further states that any such order “must be in writing and must specify the time,
place, manner, conditions, and scope 0f the examination and the person 0r persons by whom it is
t0 be made.” Tex. R. CiV. P. 204.1(0), (d). Here, Defendants have failed t0 include the parameters
clearly delineating the “scope” 0f the proposed exams 0rthe time, place, manner, and conditions
of these exams in their Motion. This renders it impossible for this Court t0 draft the narrowly-
crafted order required by the rules. It also fatally undermines Defendants’ ability t0 show “good
cause” for the exam itself, which requires Defendants t0 “demonstrate that the desired information
cannot be obtained by less intrusive means.” In re H.E.B. Grocery C0., 492 S.W.3d 300, 303 (Tex.
2016); see also Defs.’ Mot at 3 (Sec. VI).
Defendants fail t0 disclose the scope 0f these examinations and thereby request a license
to examine Plaintiffs however they want for as long as they want, so long as it relates t0 the
conditions in controversy. Without justification 0r explanation, Defendants request “X-rays, bone
scans, MRIs and any other tests and procedures that may be deemed necessary 0r desirable for a
complete examination 0f the alleged conditions in controversy.” However, Defendants must show
that itwould “not be possible t0 obtain the information sought by less intrusive means and that
absent the examination [they] will not be able t0 obtain a fair trial.” In re Ten Hagen Excavating,
Ina, 435 S.W.3d 859, 869 (Tex. App.—Dallas 2014, orig. proceeding). If approved by this Court,
a license to examine Plaintiffs like the one Defendants seek here would allow them t0 d0 any “tests
and procedures...deemed ...desirable,” which is entirely without constraint and unjustifiable.
PLAINTIFFS’ RESPONSE To DEFENDANTS’ MOTION TO
COMPEL INDEPENDENT MEDICAL EXAMINATION PAGE 2
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Electronically Filed
11/12/2020 3:36 PM
Hidalgo County District Clerks
Reviewed By: Aaron Castaneda
Notably, Defendants’ don’t claim that they cannot obtain a fair trial without these examinations,
only that they are “necessary t0 determine the severity 0f Plaintiffs alleged injuries.” See Defs.’
Mot at 3 (Sec. IV). But Plaintiffs have already undergone objective testing, including X-rays and
MRIs, as well as numerous physical examinations over a two-year period. These objective results
show Plaintiffs’ injuries after the incident, support the diagnoses from the treating physicians, and
are available t0 Defendants for their experts t0 review and form their own opinions t0 aid in the
“preparation 0f Defendants’ defense.” See Defs.’ Mot at 2 (Sec. IV). Defendants don’t even
attempt t0 share why these studies and tests are insufficient, why such testing needs t0 be done
again, what other tests are needed, and most importantly, what procedures Defendants intend t0
put Plaintiffs through at this examination. Defendants have not even attempted t0 explain why
deposing Plaintiffs’ physicians and reviewing Plaintiffs’ medical records will not suffice here. See
Ten Hagen, 435 S.W.3d at 870 (collecting cases with less intrusive measures).
In the end, Plaintiffs point is simple. Plaintiffs deny a Rule 204 is appropriate, but if Court
disagrees, the Court should order an examination take place only under the following conditions:
o Defendants must identify the time, place, manner, and scope 0f the examination
in advance;
o N0 radiology 0r invasive testing is t0 occur;
o The examinations must be limited in scope t0 the substance 0f the physical
conditions Plaintiffs have claimed in connection with this suit;
o Plaintiffs must not be interviewed beyond the questions required in any
physical examination; nor will Plaintiffs be required t0 fill out any forms;
o Defendants must bear the costs 0f the examinations, plus Plaintiffs’
reasonable travel expenses (e.g., the IRS mileage rate for travel from
Plaintiffs’ home);
PLAINTIFFS’ RESPONSE To DEFENDANTS’ MOTION TO
COMPEL INDEPENDENT MEDICAL EXAMINATION PAGE |
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Electronically Filed
11/12/2020 3:36 PM
Hidalgo County District Clerks
Reviewed By: Aaron Castaneda
o A11 underlying data developed 0r recorded during each examination will be
produced t0 Plaintiffs’ counsel within 7 days 0f said examination;
o A copy 0f each expert’s detailed, written report, consistent with Rule 204.2,
will be supplied t0 Plaintiffs’ counsel free 0f charge within 14 days 0f the
examination;
o The examination must be recorded by audio in its entirety, t0 enable
independent verification 0f its scope and t0 ward-off any undue fishing
expeditions; and
o A copy 0f the audio recording will be produced t0 Plaintiffs’ counsel within
14 days 0f the examination.
These conditions are necessary t0 ensure any “independent” examination is objectively neutral and
not harassment 0r an abuse 0f discovery.
III. PRAYER
WHEREFORE, PREMISES CONSIDERED, Plaintiffs respectfully pray that the Court
deny Defendants’ Motion t0 Compel Independent Medical Examination as—written. If the court
disagrees and orders the examinations 0f Plaintiffs t0 proceed, the Court should enter an Order
consistent with Rule 204 t0 be performed only under the conditions identified herein. Plaintiffs
further pray that the Court grant them any and allother relief, whether general 0r special, at law 0r
in equity, t0 which they may be justly entitled.
PLAINTIFFS’ RESPONSE To DEFENDANTS’ MOTION TO
COMPEL INDEPENDENT MEDICAL EXAMINATION PAGE 4
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Electronically Filed
11/12/2020 3:36 PM
Hidalgo County District Clerks
Reviewed By: Aaron Castaneda
Respectfillly submitted,
JIM S. AD R & ASSOCIATES
Lkajgdon “Trgr” Smith
State Bar N0. 00797456
lsmith 'imadler.com
Michael Gomez
State Bar N0. 24029578
mgomez@jimadler.com
Nicholas A. Monroe
State Bar N0. 24108917
nmonroe@jimadler.com
1900 West Loop South, 20th Floor
Houston, Texas 77027
Tel: (713) 735-21 14
Fax: (713) 781—2514
ATTORNEYS FOR PLAINTIFF
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the foregoing request was served in
accordance with Rules 21 and 21a of the Texas Rules of Civil Procedure, 0n this the 12th day of
November, 2020 t0 all known counsel 0f record as follows:
Via E—Service
Douglas E. Chaves/ SBN: 04161400
dchaves@crrlawfirm.com
Aidan Perales/ SBN: 24027604
fl
aperales@crrlawfirm.com
CHAVES, OBREGON & PERALES, L.L.P.
802 N. Carancahua, Suite 2100
Corpus Christi, TX 78470
ATTORNEYS FOR DEFENDANTS
\_/
Langdon grey” Smith
PLAINTIFFS’ RESPONSE TO DEFENDANTS, MOTION TO
COMPEL INDEPENDENT MEDICAL EXAMINATION PAGE I
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Preview
Electronically Filed 11/12/2020 3:36 PM Hidalgo County District Clerks Reviewed By: Aaron Castaneda CAUSE NO. C-5246-19-D RAUL J. CANALES and EZEQUIEL § 1N THE DISTRICT COURT 0F ROSALES GONZALEZ § Plaintiff § § v § HIDALGO COUNTY, TEXAS § Ms TRANSPORTATION, LLC AND § SEBASTIAN s. MACIAS § Defendants. § 206th JUDICIAL DISTRICT PLAINTIFFS’ RESPONSE TO DEFENDANTS’ MOTION TO COMPEL INDEPENDENT MEDICAL EXAMINATION TO THE HONORABLE JUDGE OF SAID COURT: COME NOW, Plaintiffs Raul J.Canales and Ezequiel Rosales Gonzalez, and file this, their Response t0 Defendants’ Motion t0 Compel Independent Medical Examination. In support thereof, Plaintiffs would respectfully show this Court as follows: I. SUMMARY 0F THE ARGUMENT & RELIEF REQUESTED Defendants seek “independent” medical examinations 0f Plaintiffs Raul J. Canales and Ezequiel Rosales Gonzalez in this personal injury case pursuant t0 Texas Rule 0f Civil Procedure 204.1 Under this rule, such exams can be justified if Plaintiffs’ physical conditions are “in controversy” and “good cause” is shown. See Tex. R. CiV. P. 204.1(0). But while Plaintiffs agree their physical conditions are in controversy, Defendants have not satisfied the second, essential requirement for the relief they seek. Instead, they rely 0n conclusory allegations supported by Virtually none 0f the facts and details demanded by the rules. Plaintiffs therefore oppose 1 The Court Will note that “independent” is a bit 0f a misnomer. It appears nowhere in the text 0f Rule 204, and What Defendants more likely seek is a partisan examination by a physician subject t0 their control.T0 be clear, a partisan exam is also authorized under Rule 204, but the attendant possibility 0f mischief isprecisely Why this Court must more include specific, written restrictions for that exam, as discussed in detailbelow. See Tex. R. CiV. P. 204.1(d). PLAINTIFFS’ RESPONSE To DEFENDANTS’ MOTION TO COMPEL INDEPENDENT MEDICAL EXAMINATION PAGE | 1 Electronically Filed 11/12/2020 3:36 PM Hidalgo County District Clerks Reviewed By: Aaron Castaneda participating in Rule 204 examinations without adequate protections. Defendants’ motion as- written must be denied. II. ARGUMENT & AUTHORITIES Rule 204 plainly states that the Court “may issue an order for examination only for good cause shown,” and further states that any such order “must be in writing and must specify the time, place, manner, conditions, and scope 0f the examination and the person 0r persons by whom it is t0 be made.” Tex. R. CiV. P. 204.1(0), (d). Here, Defendants have failed t0 include the parameters clearly delineating the “scope” 0f the proposed exams 0rthe time, place, manner, and conditions of these exams in their Motion. This renders it impossible for this Court t0 draft the narrowly- crafted order required by the rules. It also fatally undermines Defendants’ ability t0 show “good cause” for the exam itself, which requires Defendants t0 “demonstrate that the desired information cannot be obtained by less intrusive means.” In re H.E.B. Grocery C0., 492 S.W.3d 300, 303 (Tex. 2016); see also Defs.’ Mot at 3 (Sec. VI). Defendants fail t0 disclose the scope 0f these examinations and thereby request a license to examine Plaintiffs however they want for as long as they want, so long as it relates t0 the conditions in controversy. Without justification 0r explanation, Defendants request “X-rays, bone scans, MRIs and any other tests and procedures that may be deemed necessary 0r desirable for a complete examination 0f the alleged conditions in controversy.” However, Defendants must show that itwould “not be possible t0 obtain the information sought by less intrusive means and that absent the examination [they] will not be able t0 obtain a fair trial.” In re Ten Hagen Excavating, Ina, 435 S.W.3d 859, 869 (Tex. App.—Dallas 2014, orig. proceeding). If approved by this Court, a license to examine Plaintiffs like the one Defendants seek here would allow them t0 d0 any “tests and procedures...deemed ...desirable,” which is entirely without constraint and unjustifiable. PLAINTIFFS’ RESPONSE To DEFENDANTS’ MOTION TO COMPEL INDEPENDENT MEDICAL EXAMINATION PAGE 2 | Electronically Filed 11/12/2020 3:36 PM Hidalgo County District Clerks Reviewed By: Aaron Castaneda Notably, Defendants’ don’t claim that they cannot obtain a fair trial without these examinations, only that they are “necessary t0 determine the severity 0f Plaintiffs alleged injuries.” See Defs.’ Mot at 3 (Sec. IV). But Plaintiffs have already undergone objective testing, including X-rays and MRIs, as well as numerous physical examinations over a two-year period. These objective results show Plaintiffs’ injuries after the incident, support the diagnoses from the treating physicians, and are available t0 Defendants for their experts t0 review and form their own opinions t0 aid in the “preparation 0f Defendants’ defense.” See Defs.’ Mot at 2 (Sec. IV). Defendants don’t even attempt t0 share why these studies and tests are insufficient, why such testing needs t0 be done again, what other tests are needed, and most importantly, what procedures Defendants intend t0 put Plaintiffs through at this examination. Defendants have not even attempted t0 explain why deposing Plaintiffs’ physicians and reviewing Plaintiffs’ medical records will not suffice here. See Ten Hagen, 435 S.W.3d at 870 (collecting cases with less intrusive measures). In the end, Plaintiffs point is simple. Plaintiffs deny a Rule 204 is appropriate, but if Court disagrees, the Court should order an examination take place only under the following conditions: o Defendants must identify the time, place, manner, and scope 0f the examination in advance; o N0 radiology 0r invasive testing is t0 occur; o The examinations must be limited in scope t0 the substance 0f the physical conditions Plaintiffs have claimed in connection with this suit; o Plaintiffs must not be interviewed beyond the questions required in any physical examination; nor will Plaintiffs be required t0 fill out any forms; o Defendants must bear the costs 0f the examinations, plus Plaintiffs’ reasonable travel expenses (e.g., the IRS mileage rate for travel from Plaintiffs’ home); PLAINTIFFS’ RESPONSE To DEFENDANTS’ MOTION TO COMPEL INDEPENDENT MEDICAL EXAMINATION PAGE | 3 Electronically Filed 11/12/2020 3:36 PM Hidalgo County District Clerks Reviewed By: Aaron Castaneda o A11 underlying data developed 0r recorded during each examination will be produced t0 Plaintiffs’ counsel within 7 days 0f said examination; o A copy 0f each expert’s detailed, written report, consistent with Rule 204.2, will be supplied t0 Plaintiffs’ counsel free 0f charge within 14 days 0f the examination; o The examination must be recorded by audio in its entirety, t0 enable independent verification 0f its scope and t0 ward-off any undue fishing expeditions; and o A copy 0f the audio recording will be produced t0 Plaintiffs’ counsel within 14 days 0f the examination. These conditions are necessary t0 ensure any “independent” examination is objectively neutral and not harassment 0r an abuse 0f discovery. III. PRAYER WHEREFORE, PREMISES CONSIDERED, Plaintiffs respectfully pray that the Court deny Defendants’ Motion t0 Compel Independent Medical Examination as—written. If the court disagrees and orders the examinations 0f Plaintiffs t0 proceed, the Court should enter an Order consistent with Rule 204 t0 be performed only under the conditions identified herein. Plaintiffs further pray that the Court grant them any and allother relief, whether general 0r special, at law 0r in equity, t0 which they may be justly entitled. PLAINTIFFS’ RESPONSE To DEFENDANTS’ MOTION TO COMPEL INDEPENDENT MEDICAL EXAMINATION PAGE 4 | Electronically Filed 11/12/2020 3:36 PM Hidalgo County District Clerks Reviewed By: Aaron Castaneda Respectfillly submitted, JIM S. AD R & ASSOCIATES Lkajgdon “Trgr” Smith State Bar N0. 00797456 lsmith 'imadler.com Michael Gomez State Bar N0. 24029578 mgomez@jimadler.com Nicholas A. Monroe State Bar N0. 24108917 nmonroe@jimadler.com 1900 West Loop South, 20th Floor Houston, Texas 77027 Tel: (713) 735-21 14 Fax: (713) 781—2514 ATTORNEYS FOR PLAINTIFF CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing request was served in accordance with Rules 21 and 21a of the Texas Rules of Civil Procedure, 0n this the 12th day of November, 2020 t0 all known counsel 0f record as follows: Via E—Service Douglas E. Chaves/ SBN: 04161400 dchaves@crrlawfirm.com Aidan Perales/ SBN: 24027604 fl aperales@crrlawfirm.com CHAVES, OBREGON & PERALES, L.L.P. 802 N. Carancahua, Suite 2100 Corpus Christi, TX 78470 ATTORNEYS FOR DEFENDANTS \_/ Langdon grey” Smith PLAINTIFFS’ RESPONSE TO DEFENDANTS, MOTION TO COMPEL INDEPENDENT MEDICAL EXAMINATION PAGE I 5