Preview
CAUSE NO. 2019 34904
STACY SOLOMON, IN THE DISTRICT COURT OF
Plaintiff,
HARRIS COUNTY, T
W VELASQUEZ, LLC, WILFREDO
DUARTE VELASQUEZ AND ALLSTATE
COUNTY MUTUAL INSURANCE
COMPANY,
Defendants. 333RD JUDICIAL DISTRICT
DEFENDANT SECOND SUPPLEMENTAL RESPONSE TO
PLAINTIFF’S REQUESTS FOR DISCLOSUREAND
DESIGNATION OF EXPERT WITNESSES
TO: STACY SOLOMON, Plaintiff, by and through his attorneys of record, Langdon Smith
and Frank W. Robertson, Jim S. Adler & Associates, 1900 West Loop South, 20 Floor,
Houston, Texas 77027
COME NOW, WILFREDO DUARTE VELAZQUEZ AND W VELASQUEZ,
LLC, two of the Defendants in the above styled and numberedcause, and serve their Second
Supplemental Response to Plaintiffs Request for Disclosure and Designation of Expert
Witnesses.
Respectfully submitted,
LANZA LAW FIRM, P.C.
NICK LANZA
TBA No. 11941225
VIRGINIA O. PEDERSON
TBA No. 24060401
vpederson@lanzalawfirm.com
eservice@lanzalawfirm.com
2502 Algerian Way
Houston, Texas 77098
713 432 9090
713 668 6417 fax
ATTORNEYS FOR DEFENDANT
W VELAZQUEZ LLC AND
WILFREDO DUARTE VELAZQUEZ
CERTIFICATE OF SERVICE
I certify that a true and correct copy of this document was sent to all known counsel
of record on the 30-day of September , 2020 as indicated:
Via Electronic Service
Langdon Smith lsmith@jimadler.com
Frank W. Robertson frobertson jimadler.com
IMS. DLER SSOCIATES
1900 West Loop South, 20
Houston, Texas 77027
Attorneys for Plaintiff
VIRGINIA O. PEDERSON
DEFENDANTS SECOND SUPPLEMENTAL RESPONSE
TO PLAINTIFF’S REQUESTS FOR DISCLOSURE
R.194.2(a).: tate the correct names of the parties to the lawsuit.
RESPONSE:
DefendantsW Velazquez LLC and Wilfredo Duarte Velazquez are correctly
Named. Defendants presume the other partiesbeen correctly named.
R.194.2(b).: State the name, address, and telephone number of any potential parties.
RESPONSE:
Defendants have no knowledge of any unnamed potential parties at this time
R.194.2(c).: State the legal theories and, in general, the factual bases for your claims
or defenses.
RESPONSE:
General Denial. The Defendant asserts a general denial as authorized by Rule
92 of the Texas Rules of Civil Procedure and respectfully request that Plaintiff
be required to prove the charges and allegations made against him by a
pteponderance of the evidence as required by the Constitution and the laws of
the State of Texas.
Plaintiff's Own Negligence. The incident complained of in Plaintiff's Original
Petition was caused by the negligence and carelessness on the part of the
Plaintiff, and this was the sole cause or at least a proximate cause of the incident
made the basis of this lawsuit.
Limitations on Liability for Medical Expenses. For further answer, Defendants’
liability, if any, for Plaintiff's medical expenses is limited to the amount actually
paid or incurred by or on behalf of the Plaintiff in accordance with Section
41.0105 of the Texas Civil Practice and Remedies Code.
Preexisting Injuries /Medical Conditions. Plaintiffs claims are barred, in whole
or in part, because Plaintiff's injuries and/or medical conditions, if any, were
either preexisting or not proximately caused by the accident made the basis of
this suit.
Failure to Mitigate. Plaintiffs claims are barred, in whole or in part, by
Plaintiffs failure to mitigate her damages including, but not limited to, medical
expenses incurred under a Letter of Protection far in excess of reasonable and
necessaty expenses and Plaintiffs failure to utilize available health insurance.
Comparative Fault. The incident complained of in Plaintiffs’ Original Petition
was caused by the negligence and carelessness on the part of Plaintiff and this
was the sole cause or at least a proximate cause of the incident made the basis
of this lawsuit.
Third Party Negligence. Defendants would further show that the accident
and/or incident made the basis of this suit was caused solely by the acts and/or
omissions of thirdparties or inst rumentalities that are in no way connected with
this Defendants, or alternatively, that the acts and/or omissions of third parties
or instrumentalities other than this Defendants contributed to proximately
cause the incidents in question.
Limitation on Recovery of Medical or Healthcare Expenses. The Defendants
state that, pursuant to § 41.0105 of the Texas Civil Practice and Remedies Code,
Plaintiff's recovery of medical or health care expenses, if any, is limited to the
amount actually paid or incurred by or on behalf of Plaintiff.
Failure to Mitigate. Further, Plaintiff claims are barred, in whole or in part, by
any failure to mitigate damages.
Limitation on Recovery of Loss of Earnings. Further, Defendants state that
pursuant to §18.091 of the Texas Civil Practice and Remedies Code, if Plaintiff
is seeking recovery for loss of earnings, loss of earning capacity, or loss of
contributions of a pecuniary value, any evidence to prove the alleged loss must
be presented in the form of a net loss after reduction for income tax payments
or unpaid tax liability pursuant to any federal income tax law.
Punitive Damages. For further answer, in the alternative and without waiving
any of the foregoing, Defendants plead that Plaintiff's claim for punitive
damages is in violation of the Texas and United States Constitutions and
violates dueprocess rights as well as constitutional guarantees of fundamental
fairness, in that:
An award of punitive damages would violate the rights of Defendants to
due process and equal protection of the laws, as guaranteed by the United
States Constitution and its 14th Amendment, and similar protection
afforded by the Texas Constitution;
Subjecting Defendants to a trial on punitive damages allegations
regarding this incident would constitute double jeopardy;
Texas Law provides no constitutionally adequate or meaningful
standards to guide a jury in imposing a punitive award, or to give the
public, including Defendants, the reasonable and constitutionally
required notice of the kind of conduct, which may subject it to sanctions,
ot of the likely amount of such sanctions. Since scienter is an
indispensable element of a criminal charge, Defendants should not be
subjected to the risk of punishment for an alleged offense as to which
scienter is impossible because there are no ascertainable standards other
than the whim of a jury.
Texas law leaves the determination of the fact and amount of punitive
damages to the arbitrary discretion of the trier of fact, without providing
adequate or meaningful limits to the exercise of that direction. This
constitutes a taking without due process of law.
No provision of Texas law provides adequate procedural safeguards
consistent with the criteria set forth in Matthews v. Eldridge, 424 U.S. 319
(1976), for the imposition of a punitive award.
The concept of punitive damages, whereby an award is made to private
Plaintiffs, not as compensation, but as a windfall incident to the
punishment of a Defendant, represents a taking of property without due
process of law.
G. Any punitive damages award in this case, and particularly one of the
magnitude sought by Plaintiff, would violate the prohibitions against
excessive finds enunciated in the Magna Carta, which is part of the
common law of the United States and Texas, and the Eighth Amendment
to the United States Constitution.
Because punitive damages ate qua criminal in nature, application of
the discovery provisions of the Texas Rules of Civil Procedure would be
inappropriate because those rules are not intended to be applied in a
criminal proceeding. Defendants therefore moves that the Court limit
discovery requests which relate in any way to the Plaintiff's request for
punitive damages to that type of discovery which is permitted to be taken
from a criminal Defendant pursuant to the Texas Rules of Criminal
Procedure.
There is a total lack of uniformity, consistency, and predictability in the
award of punitive damages. The award is an unfettered, destructive force
which erodes any economic stability of society. The public policy against
such an award far outweighs any reasonable notion of punishment or
deterrents.
The threat of punitive damages is a method by which Plaintiff seeks to
intimidate Defendants into excessive and unreasonable settlements. This
approach clearly violates public policy.
Plaintiff is using the threat of punitive damages to inflame and prejudice
the jury. This approach clearly violates public policy.
Should the court decide that punitive damages may be awarded, Plaintiff should
be required to show that he entitled to such damages by a burden of proof of
"beyond a teasonable doubt" rather than by a "preponderance of the
evidence." Punitive damages are intended to punish, and it is not appropriate
for Plaintiff to be allowed to recover such damages by the lower standard of the
burden of proof.
Should the court decide that punitive damages should be awarded in this case,
Plaintiff should be required to show that he entitled to such damages by
"clear and convincing evidence" rather than by a "preponderance of the
evidence." Punitive damages are intended to punish, and it is not appropriate
for Plaintiff to be allowed to recover such damages by the lower standard of the
burden of proof.
Should the court decide that punitive damages should be awarded, the damages
must be based on a finding on intention, malicious, and conscious criminal
conduct by Defendants.
R.194.2(d).: State the amount and any method of calculating economic damages.
RESPONSE:
Defendants are not asserting any claim for economic damages at this time.
Defendants reserve the right to contest Plaintiff's damage calculations.
R.194.2(e).: State the name, address, and telephone number of persons having
knowledge of relevant facts, and a brief statement of each identified person's
connection with the case.
RESPONSE:
Stacy Solomon
c/o Langdon Smith
Frank W. Robertson
JIM S. ADLER & ASSOCIATES
1900 West Loop South, 20th FI,
Houston, Texas 77027
713735 2114
Plaintiff
Allstate Northbrook Indemnity Company
c/o Benjamin J. Reviere
Jay W. Craddock
BENCKENSTEIN, NORVELL & NATHAN, LLP
15333 John F. Kennedy Blvd., Suite 200
Houston, TX 77051
713871 8081
Defendant
W Velasquez, LLC
Wilfredo Duarte Velasquez
c/o Nick Lanza
Virginia O. Pederson
LANZA LAW FIRM
2502 Algerian Way
Houston, Texas 77098
(713) 4329090
Defendants
G. Villareal, ID No. 8163
Houston Police Department
1200 Travis Street
Houston, Texas 77002
Investigating Officer
G. Villarreal, ID #8163
Investigating Officer and/or Custodian
of Records for:
Houston Police Department
1200 Travis Street
Houston, Texas 77002
Mitch Brown, Custodian of Medical
Records
Dayna Morara, Custodian of Billing
Records
Forest Bridges, III., Custodian of
Radiology Records
Sandeep Amesur, MD
Rubin Bashir, MD
Physicians, physician assistants, nurses,
technicians, and/or custodians of
records for:
Advanced Diagnostics HealthCare
8305 Knight Road
Houston, Texas 77054
(713) 7901666
Rubin Bashir, MD
T. Freeman, RN
C. Stone, ST
Sandeep Amesur, MD
Teneric Davis, LSA
BerenissNavarro, Custodian of
Billing Records
Forest Bridges, Custodian of
Radiology Records
Annette Dewease, Custodian of
Medical Records
Physicians, physician assistants, nurses,
technicians, and/or custodians of
records for:
Advanced Diagnostic Hospital East
Houston
12950 East Freeway
Houston, Texas 77015
(713) 3303887
Ali Akhlaghi, Custodian of Medical
and Billing Records
Physicians, physician assistants, nurses,
technicians, and/or custodians of
records for:
Progressive Medicine Associates
8811 Westheimer Road, Suite 101
Houston, Texas 77063
(713) 9786337
Dr. Theresa Pham, D.O., Custodian
of Billing and Medical Records
Physicians, physician assistants, nurses,
technicians, and/or custodians of
records for:
Midtown Chiropractic and
Rehabilitation
2117 Chenevert Street, SuiteJ
Houston, Texas 77003
(713) 6506656
Carina Buenavista, Custodian of
Medical and Billing Records
Christina Itata, M.D.
Omar D. Vidal, M.D.
Physicians, physician assistants, nurses,
technicians, and/or custodians of
records for:
Complete Pain Solutions
1241 Campbell Road
Houston, Texas 77055
(713) 4613399
Vineeta Dharmaraj, Custodian of
Billing Records
Rubin Bashir, MD
Amesur Sandeep, MD
Physicians, physician assistants, nurses,
technicians, and/or custodians of
records for:
AD Hospital East
12950 East Freeway
Houston, Texas 77015
(713) 3303887
Carina Buenavista,
Custodian of Billing, Medical and
Radiology Records
Chad Porter, M.D.
Theresa H. Pham, DC
Physicians, physician assistants, nurses,
technicians, and/or custodians of
records for:
Memorial MRI & Diagnostic
1241 Campbell Road
Houston, Texas 77055
(713) 4613399
Rubin Bashir, M.D.
Physicians, physician assistants, nurses,
technicians, and/or custodians of
records for:
Advanced Medical Group
8305 Knight Road
Houston, Texas 77054
(713) 7901666
Rubin Bashir, MD
Christina Itata, MD
Chad Porter, MD
Amesur Sandeep, MD
Larry Gonzales, Custodian of
Medical Records
Dianna Delgardillo, Custodian of
Billing Records
Physicians, physician assistants, nurses,
technicians, and/or custodians of
records for:
Advanced Surgeons and Physicians
Network, Inc.
12950 East Freeway
Houston, Texas 77015
(281) 9848799
Jill Bosch
Physicians, physician assistants, nurses,
technicians, and/or custodians of
records for:
The Walgreen Company
P.O. Box 4039
Danville, IL 61834
(217) 5548949
6 R.194.2().: For any testifying expert, state:
1 the expert's name, address, and telephone number;
2. the subject matter on which the expert will testify;
the general substance of the expert's mental impressions and a brief
summary of the basis for them, or if the expert is not retained by,
employed by, or otherwise subject to your control, documents reflecting
such information;
if the expert is retained by, employed by, or otherwise subject to your
control:
produce all documents, tangible things, reports, models, or data
compilations that have been provided to, reviewed by, or
ptepated by or for the expert in anticipation of the expert's
testimony; and
10
produce the expert's current resume and bibliography.
RESPONSE:
Retained Experts and/or Experts Under the Control of Defendant
Dr. Andrew P. Kant
KSF Orthopaedic Center, P.A.
17270 Red Oak Drive, Suite 200
Houston, Texas 77090
(281) 4406980
Dr. Kant is a boardcertified orthopedic surgeon. It is anticipated that he will
offer testimony regarding Plaintiff's medical condition before the accident and
after the accident and the effect of the accident, or lack thereof, on his medical
condition. Dr. Kant will also likely evaluate Plaintiff through an independent
medical examination. His opinions are based upon his review of records
ptoduced by the parties, as well as his experience, education, and training. His
experience, education, and training are generally delineated in his curriculum
vitae See previously produced CV. Please see Dr. Kant’s supplemental
narratives, attached hereto as Exhibit “B” and Exhibit “C.”
Dr. Kant has been provided the following documents:
Medical records
Plaintiff's discovery responses with document production
Defendants’ discovery responses with document production
Plaintiff's expert designation
Live pleadings
All deposition transcripts
All ounter ffidavits filed by Allstate
Nicholas J. Lanza
Virginia O. Pederson
Lanza Law Firm
2502 Algerian Way
Houston, Texas 77098
(713) 4329090
Although Defendants dispute that Plaintiff has made any claims that entitle h
to recover attorneys’ fees, out of an abundance of caution, Defendants identify
11
Mr. Lanza and/or Ms. Pederson to testify regarding the reasonableness and
necessity of attorneys’ fees and the usual and customary fees by attorneys in the
State of Texas pertaining to litigation and/or arbitration similar to the case at
bar. Their resumes may be obtained and/or viewed at www.lanzalawfirm.com
Medical Providers and Non Retained Expert Witnesses
Each of the physicians listed below are treating physicians and/or medical
providers in the above entitled and numbered cause. Defendants hereby also
designate the Custodian of Medical and/or Patient Account Records for each
physician and/or medical provider as a fact witness. Each of these people may
be called upon to give testimony regarding Plaintiffs condition before, after or
during the incident made the basis of this suit. Each of these people may be called
upon to give testimony regarding the reasonableness of the medical bills incurred
and the nature and necessity of the medical services rendered. Defendants hereby
designate all of the treating physicians as fact and expert witnesses. Each of the
listed physicians may be called upon to give opinions regarding the diagnosis,
prognosis, cause and treatment of any medical condition of Plaintiff. Some of the
opinions that will be expressed by these witnesses will be found in the medical
records. Defendants hereby incorporate all of such medical records and medical
bills stating what the testimony of the stated health care providers will be. Some
of the physicians listed below will be deposed and Defendants hereby incorporate
the deposition transcripts by reference in stating what the testimony of the stated
health care providers will be.
All doctors, physicians, therapists, nurses, technicians, agents, representatives,
employees, and custodians of records for all medical providers of Plaintiff,
whether identified herein or otherwise, specifically including those listed below:
Mitch Brown, Custodian of Medical
Records
Dayna Morara, Custodian of Billing
Records
Forest Bridges, III., Custodian of
Radiology Records
Sandeep Amesur, MD
Rubin Bashir, MD
Physicians, physician assistants, nurses,
technicians, and/or custodians of
records for:
12
Advanced Diagnostics HealthCare
8305 Knight Road
Houston, Texas 77054
(713) 7901666
Rubin Bashir, MD
T. Freeman, RN
C. Stone, ST
Sandeep Amesur, MD
Teneric Davis, LSA
BerenissNavarto, Custodian of
Billing Records
Forest Bridges, Custodian of
Radiology Records
Annette Dewease, Custodian of
Medical Records
Physicians, physician assistants, nurses,
technicians, and/or custodians of
records for:
Advanced Diagnostic Hospital East
Houston
12950 East Freeway
Houston, Texas 77015
(713) 3303887
Ali Akhlaghi, Custodian of Medical
Billing and Radiology Records
Physicians, physician assistants, nurses,
technicians, and/or custodians of
records for:
Progressive Medicine Associates
8811 Westheimer Road, Suite 101
Houston, Texas 77063
(713) 9786337
Dr. Theresa Pham, D.O., Custodian
of Billing and Medical Records
Physicians, physician assistants, nurses,
technicians, and/or custodians of
records for:
13
Midtown Chiropractic and
Rehabilitation
2117 Chenevert Street, SuiteJ
Houston, Texas 77003
(713) 6506656
Carina Buenavista, Custodian of
Medical and Billing Records
Christina Itata, M.D.
Omar D. Vidal, M.D.
Physicians, physician assistants, nurses,
technicians, and/or custodians of
records for:
Complete Pain Solutions
1241 Campbell Road
Houston, Texas 77055
(713) 4613399
Vineeta Dharmataj, Custodian of
Billing Records
Rubin Bashir, MD
Amesur Sandeep, MD
Physicians, physician assistants, nurses,
technicians, and/or custodians of
records for:
AD Hospital East
12950 East Freeway
Houston, Texas 77015
(713) 3303887
Carina Buenavista,
Custodian of Billing, Medical and
Radiology Records
Chad Porter, M.D.
Theresa H. Pham, DC
Physicians, physician assistants, nurses,
technicians, and/or custodians of
records for:
Memorial MRI & Diagnostic
1241 Campbell Road
Houston, Texas 77055
(713) 4613399
14
Rubin Bashir, M.D.
Physicians, physician assistants, nurses,
technicians, and/or custodians of
records fo
Advanced Medical Group
8305 Knight Road
Houston, Texas 77054
(713) 7901666
Rubin Bashir, MD
Christina Itata, MD
Chad Porter, MD
Amesur Sandeep, MD
Larry Gonzales, Custodian of
Medical Records
Dianna Delgardillo, Custodian of
Billing Records
Physicians, physician assistants, nurses,
technicians, and/or custodians of
records for:
Advanced Surgeons and Physicians
Network, Inc.
12950 East Freeway
Houston, Texas 77015
(281) 9848799
Jill Bosch
Physicians, physician assistants, nurses,
technicians, and/or custodians of
records for:
The Walgreen Company
P.O. Box 4039
Danville, IL 61834
(217) 5548949
Fact Witnesses
The following are persons with knowledge of relevant facts. They have not been
specifically retained by and are not subject to the control of these Defendants
with the obvious exception of the parties to this lawsuit They may be called
upon to give testimony regarding knowledge of relevant facts.
15
Stacy Solomon
c/o Langdon Smith
Frank W. Robertson
JIM S. ADLER & ASSOCIATES
1900 West Loop South, 20th FI,
Houston, Texas 77027
713735 2114
Plaintiff
Allstate Northbrook Indemnity Company
c/o Benjamin J. Reviere
Jay W. Craddock
BENCKENSTEIN, NORVELL & NATHAN, LLP
15333 John F. Kennedy Blvd., Suite 200
Houston, TX 77051
713871 8081
Defendant
W Velasquez, LLC
Wilfredo Duarte Velasquez
c/o Nick Lanza
Virginia O. Pederson
LANZA LAW FIRM
2502 Algerian Way
Houston, Texas 77098
(713) 4329090
Defendants
G. Villareal, ID No. 8163
Houston Police Department
1200 Travis Street
Houston, Texas 77002
Investigating Officer
G. Villarreal, ID #8163
Investigating Officer and/or Custodian
of Records for:
Houston Police Department
1200 Travis Street
Houston, Texas 77002
16
IV.
Expert Witnesses Retained by Other Partie:
© preserve the right to use their testimony during the trial of this cause
Defendants designate expert witnesses retained by other parties, if any. These
witnesses have not been retained by this party, nor are they under the control of
this party. These witnesses are either independent of any party to this suit, or
they have been previously designated and/or identified by other parties to this
suit. If reports and documents exist which contain or describe the opinions of
these witnesses, these documents have been generated by and received from
other parties to this suit. Defendants have no ability to obtain originals of such
documents or have theopinions of these witnesses reduced to writing.
Reservation of Rights
Defendants reserve the right to call undesignated rebuttal expert witnesses
whose testimony cannot be reasonably foreseen until the presentation of the
evidence against the Defendants.
Defendants reserve the right to withdraw the designation of any expert to aver
positively that any such previously designated expert will not be called as a
witness at trial, and to redesignate same as a consulting expert, who cannot be
calledby opposing counsel.
In the event a present or future party designates an expert but then is dismissed
for any reason from this suit or fails to call any designated expert, Defendants
reserve the right to designate and/or call any such patty or any such expert
previously designated by any party.
Defendants offer this designation in supplementation of all interrogatories,
requests for production, deposition questions, and other discovery devices
seeking information regarding Defendants’ expert witnesses and persons with
knowledge of relevant facts.
Defendants reserve the right to name and call as a witness any of Plaintiffs
treating physicians whom Plaintiff has not yet identified.
R.194.2(g).: Produce any indemnity and insuring agreements as described in Rule
192.3(f).
RESPONSE:
Please refer to Defendants’ insurance policy, previously produced.
17
R.194.2(h).: Produce any settlement agreements as described in Rule 192.3(g).
RESPONSE:
None.
R.194.2(i).: Produce any witness statements as described in Rule 192.3(h).
RESPONSE:
Noneother than the police report.
10 R.194.2(j).: If this is a suit alleging physical or mental injury and damages from the
occurrence that is the subject of the case, produce all medical records and bills that are
reasonably related to the injuries or damages asserted or, in lieu thereof, an
authorization permitting the disclosure of such medical records and bills.
RESPONSE:
N/A as to these parties.
11 R.194.2(k).: If this is a suit alleging physical or mental injury and damages from the
occurrence that is the subject of the case, produce all medical records and bills obtained
by you by virtue of an authorization furnished by Plaintiffs.
RESPONSE:
Medical records and bills pertaining to Plaintiff, if any, will be made available
for inspection and copying at the following address:
Lanza Law Firm
2502 Algerian Way
Houston, Texas 77098
12 R.194.2().: Produce the name, address, and telephone number of any person who
may be designated as a responsible third party.
RESPONSE:
N/A.
18
Preview
CAUSE NO. 2019 34904 STACY SOLOMON, IN THE DISTRICT COURT OF Plaintiff, HARRIS COUNTY, T W VELASQUEZ, LLC, WILFREDO DUARTE VELASQUEZ AND ALLSTATE COUNTY MUTUAL INSURANCE COMPANY, Defendants. 333RD JUDICIAL DISTRICT DEFENDANT SECOND SUPPLEMENTAL RESPONSE TO PLAINTIFF’S REQUESTS FOR DISCLOSUREAND DESIGNATION OF EXPERT WITNESSES TO: STACY SOLOMON, Plaintiff, by and through his attorneys of record, Langdon Smith and Frank W. Robertson, Jim S. Adler & Associates, 1900 West Loop South, 20 Floor, Houston, Texas 77027 COME NOW, WILFREDO DUARTE VELAZQUEZ AND W VELASQUEZ, LLC, two of the Defendants in the above styled and numberedcause, and serve their Second Supplemental Response to Plaintiffs Request for Disclosure and Designation of Expert Witnesses. Respectfully submitted, LANZA LAW FIRM, P.C. NICK LANZA TBA No. 11941225 VIRGINIA O. PEDERSON TBA No. 24060401 vpederson@lanzalawfirm.com eservice@lanzalawfirm.com 2502 Algerian Way Houston, Texas 77098 713 432 9090 713 668 6417 fax ATTORNEYS FOR DEFENDANT W VELAZQUEZ LLC AND WILFREDO DUARTE VELAZQUEZ CERTIFICATE OF SERVICE I certify that a true and correct copy of this document was sent to all known counsel of record on the 30-day of September , 2020 as indicated: Via Electronic Service Langdon Smith lsmith@jimadler.com Frank W. Robertson frobertson jimadler.com IMS. DLER SSOCIATES 1900 West Loop South, 20 Houston, Texas 77027 Attorneys for Plaintiff VIRGINIA O. PEDERSON DEFENDANTS SECOND SUPPLEMENTAL RESPONSE TO PLAINTIFF’S REQUESTS FOR DISCLOSURE R.194.2(a).: tate the correct names of the parties to the lawsuit. RESPONSE: DefendantsW Velazquez LLC and Wilfredo Duarte Velazquez are correctly Named. Defendants presume the other partiesbeen correctly named. R.194.2(b).: State the name, address, and telephone number of any potential parties. RESPONSE: Defendants have no knowledge of any unnamed potential parties at this time R.194.2(c).: State the legal theories and, in general, the factual bases for your claims or defenses. RESPONSE: General Denial. The Defendant asserts a general denial as authorized by Rule 92 of the Texas Rules of Civil Procedure and respectfully request that Plaintiff be required to prove the charges and allegations made against him by a pteponderance of the evidence as required by the Constitution and the laws of the State of Texas. Plaintiff's Own Negligence. The incident complained of in Plaintiff's Original Petition was caused by the negligence and carelessness on the part of the Plaintiff, and this was the sole cause or at least a proximate cause of the incident made the basis of this lawsuit. Limitations on Liability for Medical Expenses. For further answer, Defendants’ liability, if any, for Plaintiff's medical expenses is limited to the amount actually paid or incurred by or on behalf of the Plaintiff in accordance with Section 41.0105 of the Texas Civil Practice and Remedies Code. Preexisting Injuries /Medical Conditions. Plaintiffs claims are barred, in whole or in part, because Plaintiff's injuries and/or medical conditions, if any, were either preexisting or not proximately caused by the accident made the basis of this suit. Failure to Mitigate. Plaintiffs claims are barred, in whole or in part, by Plaintiffs failure to mitigate her damages including, but not limited to, medical expenses incurred under a Letter of Protection far in excess of reasonable and necessaty expenses and Plaintiffs failure to utilize available health insurance. Comparative Fault. The incident complained of in Plaintiffs’ Original Petition was caused by the negligence and carelessness on the part of Plaintiff and this was the sole cause or at least a proximate cause of the incident made the basis of this lawsuit. Third Party Negligence. Defendants would further show that the accident and/or incident made the basis of this suit was caused solely by the acts and/or omissions of thirdparties or inst rumentalities that are in no way connected with this Defendants, or alternatively, that the acts and/or omissions of third parties or instrumentalities other than this Defendants contributed to proximately cause the incidents in question. Limitation on Recovery of Medical or Healthcare Expenses. The Defendants state that, pursuant to § 41.0105 of the Texas Civil Practice and Remedies Code, Plaintiff's recovery of medical or health care expenses, if any, is limited to the amount actually paid or incurred by or on behalf of Plaintiff. Failure to Mitigate. Further, Plaintiff claims are barred, in whole or in part, by any failure to mitigate damages. Limitation on Recovery of Loss of Earnings. Further, Defendants state that pursuant to §18.091 of the Texas Civil Practice and Remedies Code, if Plaintiff is seeking recovery for loss of earnings, loss of earning capacity, or loss of contributions of a pecuniary value, any evidence to prove the alleged loss must be presented in the form of a net loss after reduction for income tax payments or unpaid tax liability pursuant to any federal income tax law. Punitive Damages. For further answer, in the alternative and without waiving any of the foregoing, Defendants plead that Plaintiff's claim for punitive damages is in violation of the Texas and United States Constitutions and violates dueprocess rights as well as constitutional guarantees of fundamental fairness, in that: An award of punitive damages would violate the rights of Defendants to due process and equal protection of the laws, as guaranteed by the United States Constitution and its 14th Amendment, and similar protection afforded by the Texas Constitution; Subjecting Defendants to a trial on punitive damages allegations regarding this incident would constitute double jeopardy; Texas Law provides no constitutionally adequate or meaningful standards to guide a jury in imposing a punitive award, or to give the public, including Defendants, the reasonable and constitutionally required notice of the kind of conduct, which may subject it to sanctions, ot of the likely amount of such sanctions. Since scienter is an indispensable element of a criminal charge, Defendants should not be subjected to the risk of punishment for an alleged offense as to which scienter is impossible because there are no ascertainable standards other than the whim of a jury. Texas law leaves the determination of the fact and amount of punitive damages to the arbitrary discretion of the trier of fact, without providing adequate or meaningful limits to the exercise of that direction. This constitutes a taking without due process of law. No provision of Texas law provides adequate procedural safeguards consistent with the criteria set forth in Matthews v. Eldridge, 424 U.S. 319 (1976), for the imposition of a punitive award. The concept of punitive damages, whereby an award is made to private Plaintiffs, not as compensation, but as a windfall incident to the punishment of a Defendant, represents a taking of property without due process of law. G. Any punitive damages award in this case, and particularly one of the magnitude sought by Plaintiff, would violate the prohibitions against excessive finds enunciated in the Magna Carta, which is part of the common law of the United States and Texas, and the Eighth Amendment to the United States Constitution. Because punitive damages ate qua criminal in nature, application of the discovery provisions of the Texas Rules of Civil Procedure would be inappropriate because those rules are not intended to be applied in a criminal proceeding. Defendants therefore moves that the Court limit discovery requests which relate in any way to the Plaintiff's request for punitive damages to that type of discovery which is permitted to be taken from a criminal Defendant pursuant to the Texas Rules of Criminal Procedure. There is a total lack of uniformity, consistency, and predictability in the award of punitive damages. The award is an unfettered, destructive force which erodes any economic stability of society. The public policy against such an award far outweighs any reasonable notion of punishment or deterrents. The threat of punitive damages is a method by which Plaintiff seeks to intimidate Defendants into excessive and unreasonable settlements. This approach clearly violates public policy. Plaintiff is using the threat of punitive damages to inflame and prejudice the jury. This approach clearly violates public policy. Should the court decide that punitive damages may be awarded, Plaintiff should be required to show that he entitled to such damages by a burden of proof of "beyond a teasonable doubt" rather than by a "preponderance of the evidence." Punitive damages are intended to punish, and it is not appropriate for Plaintiff to be allowed to recover such damages by the lower standard of the burden of proof. Should the court decide that punitive damages should be awarded in this case, Plaintiff should be required to show that he entitled to such damages by "clear and convincing evidence" rather than by a "preponderance of the evidence." Punitive damages are intended to punish, and it is not appropriate for Plaintiff to be allowed to recover such damages by the lower standard of the burden of proof. Should the court decide that punitive damages should be awarded, the damages must be based on a finding on intention, malicious, and conscious criminal conduct by Defendants. R.194.2(d).: State the amount and any method of calculating economic damages. RESPONSE: Defendants are not asserting any claim for economic damages at this time. Defendants reserve the right to contest Plaintiff's damage calculations. R.194.2(e).: State the name, address, and telephone number of persons having knowledge of relevant facts, and a brief statement of each identified person's connection with the case. RESPONSE: Stacy Solomon c/o Langdon Smith Frank W. Robertson JIM S. ADLER & ASSOCIATES 1900 West Loop South, 20th FI, Houston, Texas 77027 713735 2114 Plaintiff Allstate Northbrook Indemnity Company c/o Benjamin J. Reviere Jay W. Craddock BENCKENSTEIN, NORVELL & NATHAN, LLP 15333 John F. Kennedy Blvd., Suite 200 Houston, TX 77051 713871 8081 Defendant W Velasquez, LLC Wilfredo Duarte Velasquez c/o Nick Lanza Virginia O. Pederson LANZA LAW FIRM 2502 Algerian Way Houston, Texas 77098 (713) 4329090 Defendants G. Villareal, ID No. 8163 Houston Police Department 1200 Travis Street Houston, Texas 77002 Investigating Officer G. Villarreal, ID #8163 Investigating Officer and/or Custodian of Records for: Houston Police Department 1200 Travis Street Houston, Texas 77002 Mitch Brown, Custodian of Medical Records Dayna Morara, Custodian of Billing Records Forest Bridges, III., Custodian of Radiology Records Sandeep Amesur, MD Rubin Bashir, MD Physicians, physician assistants, nurses, technicians, and/or custodians of records for: Advanced Diagnostics HealthCare 8305 Knight Road Houston, Texas 77054 (713) 7901666 Rubin Bashir, MD T. Freeman, RN C. Stone, ST Sandeep Amesur, MD Teneric Davis, LSA BerenissNavarro, Custodian of Billing Records Forest Bridges, Custodian of Radiology Records Annette Dewease, Custodian of Medical Records Physicians, physician assistants, nurses, technicians, and/or custodians of records for: Advanced Diagnostic Hospital East Houston 12950 East Freeway Houston, Texas 77015 (713) 3303887 Ali Akhlaghi, Custodian of Medical and Billing Records Physicians, physician assistants, nurses, technicians, and/or custodians of records for: Progressive Medicine Associates 8811 Westheimer Road, Suite 101 Houston, Texas 77063 (713) 9786337 Dr. Theresa Pham, D.O., Custodian of Billing and Medical Records Physicians, physician assistants, nurses, technicians, and/or custodians of records for: Midtown Chiropractic and Rehabilitation 2117 Chenevert Street, SuiteJ Houston, Texas 77003 (713) 6506656 Carina Buenavista, Custodian of Medical and Billing Records Christina Itata, M.D. Omar D. Vidal, M.D. Physicians, physician assistants, nurses, technicians, and/or custodians of records for: Complete Pain Solutions 1241 Campbell Road Houston, Texas 77055 (713) 4613399 Vineeta Dharmaraj, Custodian of Billing Records Rubin Bashir, MD Amesur Sandeep, MD Physicians, physician assistants, nurses, technicians, and/or custodians of records for: AD Hospital East 12950 East Freeway Houston, Texas 77015 (713) 3303887 Carina Buenavista, Custodian of Billing, Medical and Radiology Records Chad Porter, M.D. Theresa H. Pham, DC Physicians, physician assistants, nurses, technicians, and/or custodians of records for: Memorial MRI & Diagnostic 1241 Campbell Road Houston, Texas 77055 (713) 4613399 Rubin Bashir, M.D. Physicians, physician assistants, nurses, technicians, and/or custodians of records for: Advanced Medical Group 8305 Knight Road Houston, Texas 77054 (713) 7901666 Rubin Bashir, MD Christina Itata, MD Chad Porter, MD Amesur Sandeep, MD Larry Gonzales, Custodian of Medical Records Dianna Delgardillo, Custodian of Billing Records Physicians, physician assistants, nurses, technicians, and/or custodians of records for: Advanced Surgeons and Physicians Network, Inc. 12950 East Freeway Houston, Texas 77015 (281) 9848799 Jill Bosch Physicians, physician assistants, nurses, technicians, and/or custodians of records for: The Walgreen Company P.O. Box 4039 Danville, IL 61834 (217) 5548949 6 R.194.2().: For any testifying expert, state: 1 the expert's name, address, and telephone number; 2. the subject matter on which the expert will testify; the general substance of the expert's mental impressions and a brief summary of the basis for them, or if the expert is not retained by, employed by, or otherwise subject to your control, documents reflecting such information; if the expert is retained by, employed by, or otherwise subject to your control: produce all documents, tangible things, reports, models, or data compilations that have been provided to, reviewed by, or ptepated by or for the expert in anticipation of the expert's testimony; and 10 produce the expert's current resume and bibliography. RESPONSE: Retained Experts and/or Experts Under the Control of Defendant Dr. Andrew P. Kant KSF Orthopaedic Center, P.A. 17270 Red Oak Drive, Suite 200 Houston, Texas 77090 (281) 4406980 Dr. Kant is a boardcertified orthopedic surgeon. It is anticipated that he will offer testimony regarding Plaintiff's medical condition before the accident and after the accident and the effect of the accident, or lack thereof, on his medical condition. Dr. Kant will also likely evaluate Plaintiff through an independent medical examination. His opinions are based upon his review of records ptoduced by the parties, as well as his experience, education, and training. His experience, education, and training are generally delineated in his curriculum vitae See previously produced CV. Please see Dr. Kant’s supplemental narratives, attached hereto as Exhibit “B” and Exhibit “C.” Dr. Kant has been provided the following documents: Medical records Plaintiff's discovery responses with document production Defendants’ discovery responses with document production Plaintiff's expert designation Live pleadings All deposition transcripts All ounter ffidavits filed by Allstate Nicholas J. Lanza Virginia O. Pederson Lanza Law Firm 2502 Algerian Way Houston, Texas 77098 (713) 4329090 Although Defendants dispute that Plaintiff has made any claims that entitle h to recover attorneys’ fees, out of an abundance of caution, Defendants identify 11 Mr. Lanza and/or Ms. Pederson to testify regarding the reasonableness and necessity of attorneys’ fees and the usual and customary fees by attorneys in the State of Texas pertaining to litigation and/or arbitration similar to the case at bar. Their resumes may be obtained and/or viewed at www.lanzalawfirm.com Medical Providers and Non Retained Expert Witnesses Each of the physicians listed below are treating physicians and/or medical providers in the above entitled and numbered cause. Defendants hereby also designate the Custodian of Medical and/or Patient Account Records for each physician and/or medical provider as a fact witness. Each of these people may be called upon to give testimony regarding Plaintiffs condition before, after or during the incident made the basis of this suit. Each of these people may be called upon to give testimony regarding the reasonableness of the medical bills incurred and the nature and necessity of the medical services rendered. Defendants hereby designate all of the treating physicians as fact and expert witnesses. Each of the listed physicians may be called upon to give opinions regarding the diagnosis, prognosis, cause and treatment of any medical condition of Plaintiff. Some of the opinions that will be expressed by these witnesses will be found in the medical records. Defendants hereby incorporate all of such medical records and medical bills stating what the testimony of the stated health care providers will be. Some of the physicians listed below will be deposed and Defendants hereby incorporate the deposition transcripts by reference in stating what the testimony of the stated health care providers will be. All doctors, physicians, therapists, nurses, technicians, agents, representatives, employees, and custodians of records for all medical providers of Plaintiff, whether identified herein or otherwise, specifically including those listed below: Mitch Brown, Custodian of Medical Records Dayna Morara, Custodian of Billing Records Forest Bridges, III., Custodian of Radiology Records Sandeep Amesur, MD Rubin Bashir, MD Physicians, physician assistants, nurses, technicians, and/or custodians of records for: 12 Advanced Diagnostics HealthCare 8305 Knight Road Houston, Texas 77054 (713) 7901666 Rubin Bashir, MD T. Freeman, RN C. Stone, ST Sandeep Amesur, MD Teneric Davis, LSA BerenissNavarto, Custodian of Billing Records Forest Bridges, Custodian of Radiology Records Annette Dewease, Custodian of Medical Records Physicians, physician assistants, nurses, technicians, and/or custodians of records for: Advanced Diagnostic Hospital East Houston 12950 East Freeway Houston, Texas 77015 (713) 3303887 Ali Akhlaghi, Custodian of Medical Billing and Radiology Records Physicians, physician assistants, nurses, technicians, and/or custodians of records for: Progressive Medicine Associates 8811 Westheimer Road, Suite 101 Houston, Texas 77063 (713) 9786337 Dr. Theresa Pham, D.O., Custodian of Billing and Medical Records Physicians, physician assistants, nurses, technicians, and/or custodians of records for: 13 Midtown Chiropractic and Rehabilitation 2117 Chenevert Street, SuiteJ Houston, Texas 77003 (713) 6506656 Carina Buenavista, Custodian of Medical and Billing Records Christina Itata, M.D. Omar D. Vidal, M.D. Physicians, physician assistants, nurses, technicians, and/or custodians of records for: Complete Pain Solutions 1241 Campbell Road Houston, Texas 77055 (713) 4613399 Vineeta Dharmataj, Custodian of Billing Records Rubin Bashir, MD Amesur Sandeep, MD Physicians, physician assistants, nurses, technicians, and/or custodians of records for: AD Hospital East 12950 East Freeway Houston, Texas 77015 (713) 3303887 Carina Buenavista, Custodian of Billing, Medical and Radiology Records Chad Porter, M.D. Theresa H. Pham, DC Physicians, physician assistants, nurses, technicians, and/or custodians of records for: Memorial MRI & Diagnostic 1241 Campbell Road Houston, Texas 77055 (713) 4613399 14 Rubin Bashir, M.D. Physicians, physician assistants, nurses, technicians, and/or custodians of records fo Advanced Medical Group 8305 Knight Road Houston, Texas 77054 (713) 7901666 Rubin Bashir, MD Christina Itata, MD Chad Porter, MD Amesur Sandeep, MD Larry Gonzales, Custodian of Medical Records Dianna Delgardillo, Custodian of Billing Records Physicians, physician assistants, nurses, technicians, and/or custodians of records for: Advanced Surgeons and Physicians Network, Inc. 12950 East Freeway Houston, Texas 77015 (281) 9848799 Jill Bosch Physicians, physician assistants, nurses, technicians, and/or custodians of records for: The Walgreen Company P.O. Box 4039 Danville, IL 61834 (217) 5548949 Fact Witnesses The following are persons with knowledge of relevant facts. They have not been specifically retained by and are not subject to the control of these Defendants with the obvious exception of the parties to this lawsuit They may be called upon to give testimony regarding knowledge of relevant facts. 15 Stacy Solomon c/o Langdon Smith Frank W. Robertson JIM S. ADLER & ASSOCIATES 1900 West Loop South, 20th FI, Houston, Texas 77027 713735 2114 Plaintiff Allstate Northbrook Indemnity Company c/o Benjamin J. Reviere Jay W. Craddock BENCKENSTEIN, NORVELL & NATHAN, LLP 15333 John F. Kennedy Blvd., Suite 200 Houston, TX 77051 713871 8081 Defendant W Velasquez, LLC Wilfredo Duarte Velasquez c/o Nick Lanza Virginia O. Pederson LANZA LAW FIRM 2502 Algerian Way Houston, Texas 77098 (713) 4329090 Defendants G. Villareal, ID No. 8163 Houston Police Department 1200 Travis Street Houston, Texas 77002 Investigating Officer G. Villarreal, ID #8163 Investigating Officer and/or Custodian of Records for: Houston Police Department 1200 Travis Street Houston, Texas 77002 16 IV. Expert Witnesses Retained by Other Partie: © preserve the right to use their testimony during the trial of this cause Defendants designate expert witnesses retained by other parties, if any. These witnesses have not been retained by this party, nor are they under the control of this party. These witnesses are either independent of any party to this suit, or they have been previously designated and/or identified by other parties to this suit. If reports and documents exist which contain or describe the opinions of these witnesses, these documents have been generated by and received from other parties to this suit. Defendants have no ability to obtain originals of such documents or have theopinions of these witnesses reduced to writing. Reservation of Rights Defendants reserve the right to call undesignated rebuttal expert witnesses whose testimony cannot be reasonably foreseen until the presentation of the evidence against the Defendants. Defendants reserve the right to withdraw the designation of any expert to aver positively that any such previously designated expert will not be called as a witness at trial, and to redesignate same as a consulting expert, who cannot be calledby opposing counsel. In the event a present or future party designates an expert but then is dismissed for any reason from this suit or fails to call any designated expert, Defendants reserve the right to designate and/or call any such patty or any such expert previously designated by any party. Defendants offer this designation in supplementation of all interrogatories, requests for production, deposition questions, and other discovery devices seeking information regarding Defendants’ expert witnesses and persons with knowledge of relevant facts. Defendants reserve the right to name and call as a witness any of Plaintiffs treating physicians whom Plaintiff has not yet identified. R.194.2(g).: Produce any indemnity and insuring agreements as described in Rule 192.3(f). RESPONSE: Please refer to Defendants’ insurance policy, previously produced. 17 R.194.2(h).: Produce any settlement agreements as described in Rule 192.3(g). RESPONSE: None. R.194.2(i).: Produce any witness statements as described in Rule 192.3(h). RESPONSE: Noneother than the police report. 10 R.194.2(j).: If this is a suit alleging physical or mental injury and damages from the occurrence that is the subject of the case, produce all medical records and bills that are reasonably related to the injuries or damages asserted or, in lieu thereof, an authorization permitting the disclosure of such medical records and bills. RESPONSE: N/A as to these parties. 11 R.194.2(k).: If this is a suit alleging physical or mental injury and damages from the occurrence that is the subject of the case, produce all medical records and bills obtained by you by virtue of an authorization furnished by Plaintiffs. RESPONSE: Medical records and bills pertaining to Plaintiff, if any, will be made available for inspection and copying at the following address: Lanza Law Firm 2502 Algerian Way Houston, Texas 77098 12 R.194.2().: Produce the name, address, and telephone number of any person who may be designated as a responsible third party. RESPONSE: N/A. 18