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Electronically Submitted
10/26/2017 2:27 PM
Hidalgo County Clerks Office
Accepted by: Jacquelyn Perez
CAUSE NO.:
CL-17-4375-A
ROBERTO ORLANDO ZUNIGA, § IN THE COUNTY COURT OF
Plaintiff, §
§
V. § AT LAW NO.
§
SOSTENS ROSENBAUM, JR. §
Defendant. § OF HIDALGO COUNTY, TEXAS
PLAINTIFF'S ORIGINAL PETITION AND FIRST SET OF DISCOVERY
REQUESTS TO DEFENDANT SOSTENS ROSENBAUM, JR.
TO THE HONORABLE JUDGE AND JURY OF SAID COURT:
NOW COMES, Roberto Orlando Zuniga, (hereinafter sometimes referred to as
"Plaintiff), complaining of Sostens Rosenbaum, Jr., (hereinafter sometimes referred to as
"Defendant") for cause of action shows unto the Court the following:
I. DISCOVERY CONTROL PLAN & MONETARY CLAIM FOR RELIEF
1.1 Plaintiff intend to conduct discovery under Level 3 of Texas Rule of Civil
Procedure 190.4 because this suit involves monetary relief of over $200,000.00 but not
more than $750,000.00, including damages of any kind, penalties, court costs, expenses,
prejudgment interest.
1.2 Plaintiffhave suffered losses and damages in a sum within the jurisdictional
limits of the Court and for which this lawsuit is brought. Plaintiff seek monetary relief of
over $200,000.00 but not more than $750,000.00 and nonmonetary relief, Tex.R.Civ.P.
47(c)(5). Plaintiffreservethe right to either file a trial amendment or an amended pleading
on the issue of damages if subsequent evidence shows that the range of damages is either
too high or too low.
Plaintiffs Second Amended Original Complaint Page 1
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CL-17-4375-A
11. PARTIES AND SERVICE
2.1 Plaintiff, Roberto Orlando Zimiga, are individuals who are residents of
Hidalgo County, Texas.
2.2 Defendant, Sostens Rosenbaum, Jr. is an individual who resides in Live
Oak, County, Texas and said Defendant may be served with process at his place of
residence at the following address: 125 Kerry Dr., George West, Texas 78022. Service of
said Defendant as described above can be effected by personal delivery.
III. JURISDICTION AND VENUE
3.1 Jurisdiction is appropriate in this Court in that this is a lawsuit seeking
damages in excess of the minimum jurisdictional limits of the district courts ofthe State of
Texas, and this Court has personal jurisdiction over Defendant as set out above. Plaintiff
seek damages in excess of the minimum jurisdictional limits of this court.
3.2 Jurisdiction would not be proper in federal court as there is no diversity of
citizenship between the Plaintiffand the Defendant in this case for the reasonthat Plaintiff
resides in the State of Texas. Moreover, Plaintiff is not asserting any claims or causes of
action based on federal statutes, treaties, or laws at this time. Moreover, this lawsuit asserts
no claims against the United States, nor does it involve any claims based on maritime law.
3.3 Plaintiff moves this Court and would show that venue is proper in Hidalgo
County, Texas, pursuant to Section 15.002(a)(1) of the Texas Civil Practices & Remedies
Code, in that Hidalgo County is the county in which all or a substantial part of the events
or omissions giving rise to the claim occurred. Further, Hidalgo County is the proper in
that this venue is more suited to the convenience of the Plaintiff and witnesses and the
needs of justice. Moreover, the Plaintiffhimself also resides in the Hidalgo County, Texas,
Plaintiffs Second Amended Original Complaint Page2
Electronically Submitted
10/26/2017 2:27 PM
Hidalgo County Clerks Office
Accepted by: Jacquelyn Perez
CL-17-4375-A
rather than Live Oak County Texas. Thus, Hidalgo County Texas would
be more convenient for this litigation and that the additional travel would increase the cost
to all witnesses involved.
IV. FACTUAL BASIS OF CLAIM
4.1 This motor vehicle crash occurred on or about 11/29/2016, at the
intersection of 1200 block of N. Nueces/Hwy 281 and 600 Chappelle Dr. in George West
Texas. At the time of this crash. Plaintiff was traveling southbound 1200 block of N.
Nueces/Hwy 281, as he was traveling through the intersection. Defendant, Sostens
Rosenbaum, Jr., suddenly and without warning, entered the intersection attempting to make
a left turn unto N. Nueces/Hwy 281. As a result of Defendant's negligence by failing to
yield the right of way from a stop sign. Defendant caused this motor vehicle collision.
Plaintiff suffered serious personal injuries and damages as a result of the magnitude and
force of the impact.
4.2 These are violations of the motor vehicle transportation laws of the State of
Texas. Defendant failed and breached a standard of conduct that a reasonably prudent
operator in the same or similar circumstances would have done in operating Defendant's
vehicle.
V. PLAINTIFF*S CLAIM OF NEGLIGENCE AGAINST DEFENDANT.
SOSTENS ROSENBAUM. JR.
5.1 Defendanthad a duty to exercisethe degree of care that a reasonably careful
and prudentperson would use to avoid harm to others under circumstances similar to those
described herein.
5.2 Plaintiffs injuries and damages were proximately caused by Defendant's
negligence, careless and reckless disregard and breach of their individual respective legal
Plaintiffs Second Amended Original Complaint Page 3
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Hidalgo County Clerks Office
Accepted by: Jacquelyn Perez
CL-17-4375-A
duties, said duties, which consisted of, but are not limited to, the following acts and
omissions:
a) In that Defendant failed to keep a proper lookout for Plaintiffs safety that
would have been maintained by a person of ordinary prudence under the same
or similar circumstances;
b) In that Defendant failed to exercise ordinary care to protect Plaintiff;
c) In that Defendant was negligent by failing to yield the right of way - stop sign;
d) In that Defendant was negligent by driving recklessly and inattentive;
e) In that Defendant was operating Defendant's vehicle at an unsafe speed to
negotiate the surrounding traffic in an effort to avoid the crash event made the
basis of this suit;
f) In that the Defendant failed to be attentive to his surroundings;
g) In that the Defendant failed to maintain a proper lookout; and
h) In that Defendant failed to take proper evasive action in an attempt to avoid the
collision in question.
5.3 These are violations of the motor vehicle laws of the State of Texas and
operating safety precautions and warnings issued by the Texas Department of
Transportation. Defendant failed and breached a standard of conduct that a reasonably
prudent operator would have done under the same or similar circumstances in operating a
commercial motor vehicle.
VI. PLAINTIFF*S CLAIM OF NEGLIGENCE
PER SE AGAINST DEFENDANT SOSTENS ROSENBAUM. JR.
6.1 Defendant, Sostens Rosenbaum, Jr., conduct described herein constitutes an
unexcused breach of duty imposed by Texas Transportation Code Section 545.151.
6.2 Plaintiff are members of the class that Texas Transportation Code Section
545.151 wasdesigned to protect. Defendant, Sostens Rosenbaum, Jr., unexcused breach of
Plaintiffs Second Amended Original Complaint Page4
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Hidalgo County Clerks Office
Accepted by: Jacquelyn Perez
CL-17-4375-A
the duty imposed by Texas Transportation Code Section 545.151 proximately caused the
Plaintiff injuries described herein.
VIL DAMAGES FOR PLAINTIFF - ROBERTO ZUNIGA
7.1 As a direct and proximate cause of the occurrence made the basis of this
lawsuit. Plaintiff was caused to suffer personal injuries, and to incur the following
damages:
a) Reasonable medical care and expenses paid and incurred in the past. Plaintiff
incurred these expenses for the necessary care and treatment of the injuries
resulting from the accident complained of herein and such charges are
reasonable and were usual and customary charges for such services;
b) Reasonable and necessary medical care and expenses, which will in all
reasonable probability will be incurred in the future;
c) Physical pain and suffering in the past;
d) Physical pain and suffering in the future;
e) Physical impairment in the past;
f) Physical impairment, which, in all reasonable probability, will be suffered in
the future;
g) Mental anguish in the past; and,
h) Mental anguish in the future.
7.2 Said elements of damages as set forth above were proximately caused by
the negligence of the Defendant and said negligence was a substantial factor in bringing
about the harm, injury and damages sustained by Plaintiff herein.
VIII. PRE- AND POST-JUDGMENT INTEREST
8.1 Plaintiff seek recovery of such pre-judgment and post-judgment interest as
permitted by law.
Plaintiffs SecondAmended Original Complaint Page 5
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10/26/2017 2:27 PM
Hidalgo County Clerks Office
Accepted by: Jacquelyn Perez
CL-17-4375-A
IX. RESERVATION OF RIGHTS
9.1 Plaintiff reserve the right to prove the amount of damages at trial. Plaintiff
reserves the right to amend this petition to add additional counts upon further discovery
and as this investigation continues.
X. REOUEST FOR JURY TRIAL
10.1 Plaintiff, in accordance with Rule 216 of the Texas Rules of Civil
Procedure, request a trial by jury and hereby tender a jury fee with this filing.
XI. CONDITIONS PRECEDENT
11.1 Pursuant to Rule 54 of the Texas Rules of Civil Procedure, all conditions
precedent to Plaintiffs right to recover herein have been performed or have occurred.
XII. REOUESTS FOR DISCLOSURE TO DEFENDANT
12.1 Under Texas Rule ofCivil Procedure 194, Plaintiffrequests that Defendant,
Sostens Rosenbaum, Jr., disclose within fifty days (50) of service of this request, the
information or materials described in Rule 194.2 of the Texas Rules of Civil Procedure.
XIV. PLAINTIFF'S FIRST REOUEST FOR PRODUCTION TO DEFENDANT.
SOSTENS ROSENBAUM. JR.
14.1 Pursuant to the provisions of Rule 196 of the Texas Rules of Civil
Procedure, you are hereby requested to produce the below designated "documents" which
shall include, but are not limited to, papers, books, accounts, writings, drawings, graphs,
charts, photographs, emails, electronic data, meta dataor any other form of recordings and
otherdatacompilations from which information canbe obtained, translated, or reproduced,
if necessary by you, your agents or attorneys, through appropriate devices into reasonably
usable form, and to produce the below designated tangible things which constitute or
contain matters which are in the possession, custody or control ofyou, your agents, servants
Plaintiffs Second Amended Original Complaint Page 6
Electronically Submitted
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Hidalgo County Clerks Office
Accepted by: Jacquelyn Perez
CL-17-4375-A
or attorneys, for inspection, sampling, testing, photographing and/or copying on the first
business day after the expiration of fifty (50) days after service of these Requests for
Production, at 4900 North 10th Street, Suite F-3, McAllen, Texas 78504 pursuant to Rule
196.2(a) Tex.R,Civ.Proc. You are advised that pursuant to Rule 196, you must make a
written response that shall state with respect to each item or category of items that
inspection will be permitted as requested and that you will comply with this Request,
except to the extent that objections are made, stating specific reasons why such discovery
will not be allowed.
INSTRUCTIONS
1. Answer each request for documents separately by listing the documents and by
describingthem as defined below. If documents are numberedfor production, in each
response provideboth the informationthat identifiesthe documentand the document's
number.
2. For each document or other requested information that you assert is privileged or for
any reason excludable from discovery, identify that document or other requested
information. State the specific grounds for the claim of privilege or otherground for
exclusion. Also, for each document, state the date of the document, the name, job
title, andaddress of the person who prepared it;the name, address, andjob title of the
person to whom it was addressed or circulated or who sawit; the name, job title, and
address of the person now in possession of the document; and a description of the
subject matter ofthe document.
3. For any requested information about a document that no longer exists or cannot be
located, identify the document, state how and when it passed out of existence, and
when it could no longer be located, and the reason(s) for the disappearance. Also,
identify each person having knowledge about thedisposition or loss and identify each
document evidencing the existence or nonexistence of each document that cannot be
located.
4. Counsel is hereby notified that the response "these documents are available to be
reviewed in the Defendant' attorney office and/or are available at your expense" or
similar responses to the above requests are unacceptable unless stated otherwise fora
particular request. Counsel is hereby guaranteed its reasonable reproduction costs of
these documents upon production.
Plaintiffs Second Amended Original Complaint Page7
Electronically Submitted
10/26/2017 2:27 PM
Hidalgo County Clerks Office
Accepted by: Jacquelyn Perez
CL-17-4375-A
ADDITIONAL INSTRUCTIONS REGARDING REQUEST FOR PRODUCTION
OF ELECTRONICALLY STORED INFORMATION
1. Any documents that exist in electronic form are specifically requested to be
produced in native or near-native formats, pursuant to Rule 196.4 of the Texas
Rules of Civil Procedure and should not be converted to an imaged format (e.g.
.PDF) unless such document must be redacted to remove privileged content or the
document does not exist in a native electronic format, in which case a privilege log
is requested.
2. Native format requires production in the same format in which the information was
customarily created, used and stored by you. Examples ofthe native or near-native
forms in which specific types of electronically stored information (ESI) should be
produced are as follows for each ESI Source:
a) Microsoft Word documents - .DOC, .DOCX.
b) Microsoft Excel Spreadsheets - .XLS, .XLSX.
c) Microsoft PowerPoint Presentations - .PPT, .PPTX.
d) Microsoft Access Databases - .MDB.
e) WordPerfect documents - .WPD.
f) Adobe Acrobat Documents - .PDF.
g) Photographs - .JPG.
h) E-mail Messages - should be produced so as to preserve and supply
the source RFC 2822 content of the communication and attachments in a
fielded, electronically-searchable format. For Microsoft Exchange or
Outlook messaging, .PST format will suffice. Single message production
formats like .MSG or .EML may be furnished, if source foldering data is
preserved and produced. If your workflow requires that attachments be
extractedand produced separatelyfrom transmitting messages,attachments
should be produced in their native forms with parent/child relationships to
the message and container(s) preserved and produced.
i) Databases (excluding e-mail svstems) - Unless the entirecontents of
a database are responsive, extract responsive content to a fielded and
electronically searchable format preserving keys and field relationships. If
doing so is infeasible, please identify the database and supply information
concerning the scheme and query language of the database, along with a
detailed description of its export capabilities, so as to facilitate Plaintiff
crafting a query to extract and export responsive data.
3. Examplesof responsive forms of items set out in these instructions or in any request
should not be construed to limit the scope of the request(s).
4. Documents that do not exist in a native electronic format or which require redaction
of privileged content are hereby requested to be produced in searchable .PDF
format with logical unitization preserved.
Plaintiffs Second Amended Original Complaint Page8
Electronically Submitted
10/26/2017 2:27 PM
Hidalgo County Clerks Office
Accepted by: Jacquelyn Perez
CL-17-4375-A
5. Production should be made using a flash/thumb drive or a portable extemal hard
drive. If flash/thumb drives or portable extemal hard drive are not available to
Defendant, Plaintiff will provide to Defendant upon request.
6. Documents produced should be Bates numbered by naming the file produced to
conform to the Bates number assigned to that file, supplying the original file name
data in the delimited load file described below. .PDF production of documents that
do not exist in a native electronic format may be Bates numbered on each page in
a manner that does not obscure content by embossing the Bates number of the file
followed by a dash and the page number. Respond to each request for documents
by listing the Bates numbers of responsive documents produced
7. Production should include a delimited load file supplying relevant system metadata
field values for each document by Bates number. The field values supplied should
include (as applicable):
a) Source file name;
b) Source file path;
c) Last modified date;
d) Last modified time;
e) Custodian or source;
f) Document type;
g) MD5 hash value;
h) Redacted flag; and,
i) Hash de-duplicated instances (by full path).
8. Documents should be vertically de-duplicated by custodian using each document's
hash value. Near-deduplication should not be employed so as to suppress different
versions of a document, notations, comments, tracked changes or application
metadata.
DEFINITIONS
The followingterms have the followingmeanings:
1. "Person" includes any individual, corporation, partnership, group association,
governmental entity, or any otherorganization.
2. "You" or "your" refers to Sostens Rosenbaum, Jr., and all other persons acting or
purportingto act on behalf of Sostens Rosenbaum, Jr..
3. "Document" means any written, printed, typed, or other graphic or photographic
matter of anynature andanyaudio or video recordings in your possession, custody or
control, or known by Defendant to exist or to have existed. All copies of documents
thatcontain anyalterations or annotations or thatdiffer in anyway from the originals
or copies referred to in the preceding sentence are deemed separate documents from
the originals or copies.
Plaintiffs Second Amended Original Complaint Page 9
Electronically Submitted
10/26/2017 2:27 PM
Hidalgo County Clerks Office
Accepted by: Jacquelyn Perez
CL-17-4375-A
4. "Communicate" or "communication" means everymanner of disclosure or exchange,
and every disclosure or exchange, of information, whether orally or by document or
whether face-to-face, by telephone, mail, personal delivery, or otherwise.
5. "Identify" used in reference to an individual personmeans to state(a) the person's full
name and present or last known address and Social Security number, (b) the person's
present or last known position and business affiliation, and (c) the person's position
and business affiliation at the time in question. "Identify" used in reference to any
other person means to state (a) the person's full name and present or last known
address, (b) type of identity and (c) the names of the individual persons who are or
were principals, agents or employees and who have knowledge of relevant facts.
6. "Identify" used in reference to a document means to state (a) the date, (b) the author
or addressor, (c) addressee and recipients of all copies, (d) type of documents (for
example, recipients of all copies, and (e) its present location or custodian. If any
document was, but no longer is in your possession or subject to your control, state
what disposition was made of it and the identity ofthe person you reasonably believe
to be the present custodian. Instead of the identification, you may furnish the
document for inspection and copying at the time you serve your responses.
7. "Identify" used in reference to a communication means to state (a) its date, (b) the
place where it occurred, (c) the type of communications (for example, telephone
conversation, meeting), (d) its substance, (e) the identity of the personwho made it,
(f) the identity of each person who received it and of all other persons who were
present.
8. "Anticipation of litigation" shall mean the date on which Plaintiff received written
communicationthat Defendant was represented by an attorney and anticipatedfiling
a lawsuit in connection with the incident made the basis of this lawsuit.
9. With respect to anydocuments forwhich youclaim a privilege, identify thedocument,
state the privilege involved, and state the factual and legal basis for the claimed
privilege. Identify the document by stating (a) the type of document (letter, memo,
and so forth), (b) the identity of the author, (c) the date written or originated, (d) the
identity of each person to whom the original or a copy was addressed or delivered,
and (e) the identity of every other person who has ever had possession of the
document.
REQUESTS FOR PRODUCTION
1) Persons with Knowledge: Any and all documents which reflect the names and
present or last known location of any and all persons known to you, your attorney,
or any other persons acting on your behalf who were witnesses to the occurrence,
present at the scene of the occurrence or might have knowledge of facts relevant to
the occurrence made the basis of this suit or damages claimed by you.
Plaintiffs Second Amended Original Complaint Page 10
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Hidalgo County Clerks Office
Accepted by: Jacquelyn Perez
CL-17-4375-A
2) Photos in case: Any and all photographs, videotapes or films in your possession,
the possession of your attorney, your experts, or any other person acting on your
behalf pertaining to the incident, the damage any property involved in the incident,
the scene of the incident, or any other fact or matter that is the subject, or related to
the subject, of this suit, whether or not expected to be introduced into evidence at
trial.
3) Statements of Plaintiff: Any and all recordings of conversations with Plaintiff or
any of Plaintiffss agents, servants or employees.
4) Witness Statements: Any and all recordings and statements of any witness,
including the defendant or expert witness in this case.
5) Auto Repairs: Any and all repair estimates, appraisals, invoices and receipts for
damage repair concerning any and all vehicle damaged in this accident.
6) Insurance: Copies of any and all insurance policies which would cover and/or
include liability for injuries and/or damages arising out of the incident forming the
basis ofthis lawsuit. This should include the amount ofthe policy limits and a copy
of the declaration sheet. This request includes all private or commercial insurance
policies and all liability or umbrella policy
7) Driver's License: A copy of the front and back copy of your driver's license.
8) General Investigation: Any and all investigative reports including adjuster notes
pertaining to the incident madethe basisof this suit, which were compiled prior to
an anticipation of litigation. Axelson v. Mcllhany, 798 S.W.2d 550, 552-3 (Tex.
1990).
9) Earlv Investigation: A complete copy of your insurance companies' file from the
date of this accident until it first received PlaintifTss notice of representation,
pursuant to Dunn Eauin.. Inc. v. Gavle. 725 S.W.2d 372 (Tex. App. - Houston [14^
Dist.] 1987, orig. proceeding).
lOiAnticipation Investigation: A complete copy of your insurance companies' file
from the date of this accident until the date suit was file, pursuant to Dunn Equip..
Inc. V. Gavle. 725 S.W.2d 372 (Tex. App. - Houston [14^ Dist.] 1987, orig.
proceeding).
IT)Claim Files: A copy of the Defendant's insurance company's claims file. In Re
Ford Motor Co. 988 S.W. 2"^^ 714,7119 (Tex 1998)and Dunn Equip.V. Gayle, 725
S.W.2d 372, 374-5 (Tex. App. Houston [14^^ Dist.] 1987, orig. proceeding).
121 Medical Records: Copies of all medical records you incurred for treatment of any
injuries you may have sustained as a result of this incident made the basis of this
Plaintiffs Second Amended Original Complaint Page 11
Electronically Submitted
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Hidalgo County Clerks Office
Accepted by: Jacquelyn Perez
CL-17-4375-A
suit.
13) Settlements: Copies of all releases, letters, memoranda or other documents that
reflect, refer to or in any way set forth the terms of any agreement between you and
any defendant, cross plaintiff, counter plaintiff, or pre litigation claimant in this suit
to settle any part or all of the claims that you may have arising from the incident
made the basis of this suit.
14) Medical Authorization: A signed, notarized authorization permitting the full
disclosure to this plaintiffand/or Plaintiffss attorney of any and all medical records
that are reasonably related to your ability to drive under those conditions as they
were on the date of the loss.
15) Emplovment Authorization: A signed, notarized authorization permitting the full
disclosure to this plaintiff and/or Plaintiffss attorney of any and all personnel
records that are reasonably related to your course and scope of employment on the
date of the loss.
16)Expert Reports: Copies of all reports, compilations of data and other material
prepared or used by an expert witness Plaintiff may call to testify on the issues of
either liability or damages, and of all consulting experts whose work has been
reviewed by an expert who may be called to testify.
17) Expert References: Anv and all treatises, periodicals and pamphlets that you may
offer or use in the trial of this cause under Rule 803(18) of the Texas Rules of
Evidence.
18)Expert Reports anddocuments: Copies of all reports, physical models, compilations
of data, photographs and other material prepared by an expert or for an expert in
anticipation of the expert's deposition and/or trial testimony, including material
prepared by an expertused for consultation if it forms a basis, eitherin whole or in
part, of the opinions of an expert who may be called as a witness.
19)Expert Opinions: Copies of all documents reflecting and/or constituting mental
impressions and opinions held by an expert and facts known to the expert which
relate to or form the basis ofthe mental impressionsand opinions held by the expert,
including any expert used for consultation if the expert's work product forms a
basis, either in whole or in part, of the opinions of an expert who may be called as
a witness.
20)List of Experts OtherCases: A list of all other cases in which any retained experts
has testified as an expert, at trial or by deposition, withinthe last four yearsand the
amount of money paid for each case.
21) Expert Financial Records: All financial records which show that amount of money
earnedby all retained expertswithinthe last four years. If you are unableto produce
Plaintiffs Second Amended Original Complaint Page 12
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Hidalgo County Clerks Office
Accepted by: Jacquelyn Perez
CL-17-4375-A
such documents, please provide the retained experts tax retums for the last four
years.
22) Materials Used bv the Expert: Copies of all documents, tangible things, physical
models, report compilations of data or other material provided to, reviewed by, or
prepared or for the retained testifying expert in anticipation of trial TRCP
Preview
Electronically Submitted 10/26/2017 2:27 PM Hidalgo County Clerks Office Accepted by: Jacquelyn Perez CAUSE NO.: CL-17-4375-A ROBERTO ORLANDO ZUNIGA, § IN THE COUNTY COURT OF Plaintiff, § § V. § AT LAW NO. § SOSTENS ROSENBAUM, JR. § Defendant. § OF HIDALGO COUNTY, TEXAS PLAINTIFF'S ORIGINAL PETITION AND FIRST SET OF DISCOVERY REQUESTS TO DEFENDANT SOSTENS ROSENBAUM, JR. TO THE HONORABLE JUDGE AND JURY OF SAID COURT: NOW COMES, Roberto Orlando Zuniga, (hereinafter sometimes referred to as "Plaintiff), complaining of Sostens Rosenbaum, Jr., (hereinafter sometimes referred to as "Defendant") for cause of action shows unto the Court the following: I. DISCOVERY CONTROL PLAN & MONETARY CLAIM FOR RELIEF 1.1 Plaintiff intend to conduct discovery under Level 3 of Texas Rule of Civil Procedure 190.4 because this suit involves monetary relief of over $200,000.00 but not more than $750,000.00, including damages of any kind, penalties, court costs, expenses, prejudgment interest. 1.2 Plaintiffhave suffered losses and damages in a sum within the jurisdictional limits of the Court and for which this lawsuit is brought. Plaintiff seek monetary relief of over $200,000.00 but not more than $750,000.00 and nonmonetary relief, Tex.R.Civ.P. 47(c)(5). Plaintiffreservethe right to either file a trial amendment or an amended pleading on the issue of damages if subsequent evidence shows that the range of damages is either too high or too low. Plaintiffs Second Amended Original Complaint Page 1 Electronically Submitted 10/26/2017 2:27 PM Hidalgo County Clerks Office Accepted by: Jacquelyn Perez CL-17-4375-A 11. PARTIES AND SERVICE 2.1 Plaintiff, Roberto Orlando Zimiga, are individuals who are residents of Hidalgo County, Texas. 2.2 Defendant, Sostens Rosenbaum, Jr. is an individual who resides in Live Oak, County, Texas and said Defendant may be served with process at his place of residence at the following address: 125 Kerry Dr., George West, Texas 78022. Service of said Defendant as described above can be effected by personal delivery. III. JURISDICTION AND VENUE 3.1 Jurisdiction is appropriate in this Court in that this is a lawsuit seeking damages in excess of the minimum jurisdictional limits of the district courts ofthe State of Texas, and this Court has personal jurisdiction over Defendant as set out above. Plaintiff seek damages in excess of the minimum jurisdictional limits of this court. 3.2 Jurisdiction would not be proper in federal court as there is no diversity of citizenship between the Plaintiffand the Defendant in this case for the reasonthat Plaintiff resides in the State of Texas. Moreover, Plaintiff is not asserting any claims or causes of action based on federal statutes, treaties, or laws at this time. Moreover, this lawsuit asserts no claims against the United States, nor does it involve any claims based on maritime law. 3.3 Plaintiff moves this Court and would show that venue is proper in Hidalgo County, Texas, pursuant to Section 15.002(a)(1) of the Texas Civil Practices & Remedies Code, in that Hidalgo County is the county in which all or a substantial part of the events or omissions giving rise to the claim occurred. Further, Hidalgo County is the proper in that this venue is more suited to the convenience of the Plaintiff and witnesses and the needs of justice. Moreover, the Plaintiffhimself also resides in the Hidalgo County, Texas, Plaintiffs Second Amended Original Complaint Page2 Electronically Submitted 10/26/2017 2:27 PM Hidalgo County Clerks Office Accepted by: Jacquelyn Perez CL-17-4375-A rather than Live Oak County Texas. Thus, Hidalgo County Texas would be more convenient for this litigation and that the additional travel would increase the cost to all witnesses involved. IV. FACTUAL BASIS OF CLAIM 4.1 This motor vehicle crash occurred on or about 11/29/2016, at the intersection of 1200 block of N. Nueces/Hwy 281 and 600 Chappelle Dr. in George West Texas. At the time of this crash. Plaintiff was traveling southbound 1200 block of N. Nueces/Hwy 281, as he was traveling through the intersection. Defendant, Sostens Rosenbaum, Jr., suddenly and without warning, entered the intersection attempting to make a left turn unto N. Nueces/Hwy 281. As a result of Defendant's negligence by failing to yield the right of way from a stop sign. Defendant caused this motor vehicle collision. Plaintiff suffered serious personal injuries and damages as a result of the magnitude and force of the impact. 4.2 These are violations of the motor vehicle transportation laws of the State of Texas. Defendant failed and breached a standard of conduct that a reasonably prudent operator in the same or similar circumstances would have done in operating Defendant's vehicle. V. PLAINTIFF*S CLAIM OF NEGLIGENCE AGAINST DEFENDANT. SOSTENS ROSENBAUM. JR. 5.1 Defendanthad a duty to exercisethe degree of care that a reasonably careful and prudentperson would use to avoid harm to others under circumstances similar to those described herein. 5.2 Plaintiffs injuries and damages were proximately caused by Defendant's negligence, careless and reckless disregard and breach of their individual respective legal Plaintiffs Second Amended Original Complaint Page 3 Electronically Submitted 10/26/2017 2:27 PM Hidalgo County Clerks Office Accepted by: Jacquelyn Perez CL-17-4375-A duties, said duties, which consisted of, but are not limited to, the following acts and omissions: a) In that Defendant failed to keep a proper lookout for Plaintiffs safety that would have been maintained by a person of ordinary prudence under the same or similar circumstances; b) In that Defendant failed to exercise ordinary care to protect Plaintiff; c) In that Defendant was negligent by failing to yield the right of way - stop sign; d) In that Defendant was negligent by driving recklessly and inattentive; e) In that Defendant was operating Defendant's vehicle at an unsafe speed to negotiate the surrounding traffic in an effort to avoid the crash event made the basis of this suit; f) In that the Defendant failed to be attentive to his surroundings; g) In that the Defendant failed to maintain a proper lookout; and h) In that Defendant failed to take proper evasive action in an attempt to avoid the collision in question. 5.3 These are violations of the motor vehicle laws of the State of Texas and operating safety precautions and warnings issued by the Texas Department of Transportation. Defendant failed and breached a standard of conduct that a reasonably prudent operator would have done under the same or similar circumstances in operating a commercial motor vehicle. VI. PLAINTIFF*S CLAIM OF NEGLIGENCE PER SE AGAINST DEFENDANT SOSTENS ROSENBAUM. JR. 6.1 Defendant, Sostens Rosenbaum, Jr., conduct described herein constitutes an unexcused breach of duty imposed by Texas Transportation Code Section 545.151. 6.2 Plaintiff are members of the class that Texas Transportation Code Section 545.151 wasdesigned to protect. Defendant, Sostens Rosenbaum, Jr., unexcused breach of Plaintiffs Second Amended Original Complaint Page4 Electronically Submitted 10/26/2017 2:27 PM Hidalgo County Clerks Office Accepted by: Jacquelyn Perez CL-17-4375-A the duty imposed by Texas Transportation Code Section 545.151 proximately caused the Plaintiff injuries described herein. VIL DAMAGES FOR PLAINTIFF - ROBERTO ZUNIGA 7.1 As a direct and proximate cause of the occurrence made the basis of this lawsuit. Plaintiff was caused to suffer personal injuries, and to incur the following damages: a) Reasonable medical care and expenses paid and incurred in the past. Plaintiff incurred these expenses for the necessary care and treatment of the injuries resulting from the accident complained of herein and such charges are reasonable and were usual and customary charges for such services; b) Reasonable and necessary medical care and expenses, which will in all reasonable probability will be incurred in the future; c) Physical pain and suffering in the past; d) Physical pain and suffering in the future; e) Physical impairment in the past; f) Physical impairment, which, in all reasonable probability, will be suffered in the future; g) Mental anguish in the past; and, h) Mental anguish in the future. 7.2 Said elements of damages as set forth above were proximately caused by the negligence of the Defendant and said negligence was a substantial factor in bringing about the harm, injury and damages sustained by Plaintiff herein. VIII. PRE- AND POST-JUDGMENT INTEREST 8.1 Plaintiff seek recovery of such pre-judgment and post-judgment interest as permitted by law. Plaintiffs SecondAmended Original Complaint Page 5 Electronically Submitted 10/26/2017 2:27 PM Hidalgo County Clerks Office Accepted by: Jacquelyn Perez CL-17-4375-A IX. RESERVATION OF RIGHTS 9.1 Plaintiff reserve the right to prove the amount of damages at trial. Plaintiff reserves the right to amend this petition to add additional counts upon further discovery and as this investigation continues. X. REOUEST FOR JURY TRIAL 10.1 Plaintiff, in accordance with Rule 216 of the Texas Rules of Civil Procedure, request a trial by jury and hereby tender a jury fee with this filing. XI. CONDITIONS PRECEDENT 11.1 Pursuant to Rule 54 of the Texas Rules of Civil Procedure, all conditions precedent to Plaintiffs right to recover herein have been performed or have occurred. XII. REOUESTS FOR DISCLOSURE TO DEFENDANT 12.1 Under Texas Rule ofCivil Procedure 194, Plaintiffrequests that Defendant, Sostens Rosenbaum, Jr., disclose within fifty days (50) of service of this request, the information or materials described in Rule 194.2 of the Texas Rules of Civil Procedure. XIV. PLAINTIFF'S FIRST REOUEST FOR PRODUCTION TO DEFENDANT. SOSTENS ROSENBAUM. JR. 14.1 Pursuant to the provisions of Rule 196 of the Texas Rules of Civil Procedure, you are hereby requested to produce the below designated "documents" which shall include, but are not limited to, papers, books, accounts, writings, drawings, graphs, charts, photographs, emails, electronic data, meta dataor any other form of recordings and otherdatacompilations from which information canbe obtained, translated, or reproduced, if necessary by you, your agents or attorneys, through appropriate devices into reasonably usable form, and to produce the below designated tangible things which constitute or contain matters which are in the possession, custody or control ofyou, your agents, servants Plaintiffs Second Amended Original Complaint Page 6 Electronically Submitted 10/26/2017 2:27 PM Hidalgo County Clerks Office Accepted by: Jacquelyn Perez CL-17-4375-A or attorneys, for inspection, sampling, testing, photographing and/or copying on the first business day after the expiration of fifty (50) days after service of these Requests for Production, at 4900 North 10th Street, Suite F-3, McAllen, Texas 78504 pursuant to Rule 196.2(a) Tex.R,Civ.Proc. You are advised that pursuant to Rule 196, you must make a written response that shall state with respect to each item or category of items that inspection will be permitted as requested and that you will comply with this Request, except to the extent that objections are made, stating specific reasons why such discovery will not be allowed. INSTRUCTIONS 1. Answer each request for documents separately by listing the documents and by describingthem as defined below. If documents are numberedfor production, in each response provideboth the informationthat identifiesthe documentand the document's number. 2. For each document or other requested information that you assert is privileged or for any reason excludable from discovery, identify that document or other requested information. State the specific grounds for the claim of privilege or otherground for exclusion. Also, for each document, state the date of the document, the name, job title, andaddress of the person who prepared it;the name, address, andjob title of the person to whom it was addressed or circulated or who sawit; the name, job title, and address of the person now in possession of the document; and a description of the subject matter ofthe document. 3. For any requested information about a document that no longer exists or cannot be located, identify the document, state how and when it passed out of existence, and when it could no longer be located, and the reason(s) for the disappearance. Also, identify each person having knowledge about thedisposition or loss and identify each document evidencing the existence or nonexistence of each document that cannot be located. 4. Counsel is hereby notified that the response "these documents are available to be reviewed in the Defendant' attorney office and/or are available at your expense" or similar responses to the above requests are unacceptable unless stated otherwise fora particular request. Counsel is hereby guaranteed its reasonable reproduction costs of these documents upon production. Plaintiffs Second Amended Original Complaint Page7 Electronically Submitted 10/26/2017 2:27 PM Hidalgo County Clerks Office Accepted by: Jacquelyn Perez CL-17-4375-A ADDITIONAL INSTRUCTIONS REGARDING REQUEST FOR PRODUCTION OF ELECTRONICALLY STORED INFORMATION 1. Any documents that exist in electronic form are specifically requested to be produced in native or near-native formats, pursuant to Rule 196.4 of the Texas Rules of Civil Procedure and should not be converted to an imaged format (e.g. .PDF) unless such document must be redacted to remove privileged content or the document does not exist in a native electronic format, in which case a privilege log is requested. 2. Native format requires production in the same format in which the information was customarily created, used and stored by you. Examples ofthe native or near-native forms in which specific types of electronically stored information (ESI) should be produced are as follows for each ESI Source: a) Microsoft Word documents - .DOC, .DOCX. b) Microsoft Excel Spreadsheets - .XLS, .XLSX. c) Microsoft PowerPoint Presentations - .PPT, .PPTX. d) Microsoft Access Databases - .MDB. e) WordPerfect documents - .WPD. f) Adobe Acrobat Documents - .PDF. g) Photographs - .JPG. h) E-mail Messages - should be produced so as to preserve and supply the source RFC 2822 content of the communication and attachments in a fielded, electronically-searchable format. For Microsoft Exchange or Outlook messaging, .PST format will suffice. Single message production formats like .MSG or .EML may be furnished, if source foldering data is preserved and produced. If your workflow requires that attachments be extractedand produced separatelyfrom transmitting messages,attachments should be produced in their native forms with parent/child relationships to the message and container(s) preserved and produced. i) Databases (excluding e-mail svstems) - Unless the entirecontents of a database are responsive, extract responsive content to a fielded and electronically searchable format preserving keys and field relationships. If doing so is infeasible, please identify the database and supply information concerning the scheme and query language of the database, along with a detailed description of its export capabilities, so as to facilitate Plaintiff crafting a query to extract and export responsive data. 3. Examplesof responsive forms of items set out in these instructions or in any request should not be construed to limit the scope of the request(s). 4. Documents that do not exist in a native electronic format or which require redaction of privileged content are hereby requested to be produced in searchable .PDF format with logical unitization preserved. Plaintiffs Second Amended Original Complaint Page8 Electronically Submitted 10/26/2017 2:27 PM Hidalgo County Clerks Office Accepted by: Jacquelyn Perez CL-17-4375-A 5. Production should be made using a flash/thumb drive or a portable extemal hard drive. If flash/thumb drives or portable extemal hard drive are not available to Defendant, Plaintiff will provide to Defendant upon request. 6. Documents produced should be Bates numbered by naming the file produced to conform to the Bates number assigned to that file, supplying the original file name data in the delimited load file described below. .PDF production of documents that do not exist in a native electronic format may be Bates numbered on each page in a manner that does not obscure content by embossing the Bates number of the file followed by a dash and the page number. Respond to each request for documents by listing the Bates numbers of responsive documents produced 7. Production should include a delimited load file supplying relevant system metadata field values for each document by Bates number. The field values supplied should include (as applicable): a) Source file name; b) Source file path; c) Last modified date; d) Last modified time; e) Custodian or source; f) Document type; g) MD5 hash value; h) Redacted flag; and, i) Hash de-duplicated instances (by full path). 8. Documents should be vertically de-duplicated by custodian using each document's hash value. Near-deduplication should not be employed so as to suppress different versions of a document, notations, comments, tracked changes or application metadata. DEFINITIONS The followingterms have the followingmeanings: 1. "Person" includes any individual, corporation, partnership, group association, governmental entity, or any otherorganization. 2. "You" or "your" refers to Sostens Rosenbaum, Jr., and all other persons acting or purportingto act on behalf of Sostens Rosenbaum, Jr.. 3. "Document" means any written, printed, typed, or other graphic or photographic matter of anynature andanyaudio or video recordings in your possession, custody or control, or known by Defendant to exist or to have existed. All copies of documents thatcontain anyalterations or annotations or thatdiffer in anyway from the originals or copies referred to in the preceding sentence are deemed separate documents from the originals or copies. Plaintiffs Second Amended Original Complaint Page 9 Electronically Submitted 10/26/2017 2:27 PM Hidalgo County Clerks Office Accepted by: Jacquelyn Perez CL-17-4375-A 4. "Communicate" or "communication" means everymanner of disclosure or exchange, and every disclosure or exchange, of information, whether orally or by document or whether face-to-face, by telephone, mail, personal delivery, or otherwise. 5. "Identify" used in reference to an individual personmeans to state(a) the person's full name and present or last known address and Social Security number, (b) the person's present or last known position and business affiliation, and (c) the person's position and business affiliation at the time in question. "Identify" used in reference to any other person means to state (a) the person's full name and present or last known address, (b) type of identity and (c) the names of the individual persons who are or were principals, agents or employees and who have knowledge of relevant facts. 6. "Identify" used in reference to a document means to state (a) the date, (b) the author or addressor, (c) addressee and recipients of all copies, (d) type of documents (for example, recipients of all copies, and (e) its present location or custodian. If any document was, but no longer is in your possession or subject to your control, state what disposition was made of it and the identity ofthe person you reasonably believe to be the present custodian. Instead of the identification, you may furnish the document for inspection and copying at the time you serve your responses. 7. "Identify" used in reference to a communication means to state (a) its date, (b) the place where it occurred, (c) the type of communications (for example, telephone conversation, meeting), (d) its substance, (e) the identity of the personwho made it, (f) the identity of each person who received it and of all other persons who were present. 8. "Anticipation of litigation" shall mean the date on which Plaintiff received written communicationthat Defendant was represented by an attorney and anticipatedfiling a lawsuit in connection with the incident made the basis of this lawsuit. 9. With respect to anydocuments forwhich youclaim a privilege, identify thedocument, state the privilege involved, and state the factual and legal basis for the claimed privilege. Identify the document by stating (a) the type of document (letter, memo, and so forth), (b) the identity of the author, (c) the date written or originated, (d) the identity of each person to whom the original or a copy was addressed or delivered, and (e) the identity of every other person who has ever had possession of the document. REQUESTS FOR PRODUCTION 1) Persons with Knowledge: Any and all documents which reflect the names and present or last known location of any and all persons known to you, your attorney, or any other persons acting on your behalf who were witnesses to the occurrence, present at the scene of the occurrence or might have knowledge of facts relevant to the occurrence made the basis of this suit or damages claimed by you. Plaintiffs Second Amended Original Complaint Page 10 Electronically Submitted 10/26/2017 2:27 PM Hidalgo County Clerks Office Accepted by: Jacquelyn Perez CL-17-4375-A 2) Photos in case: Any and all photographs, videotapes or films in your possession, the possession of your attorney, your experts, or any other person acting on your behalf pertaining to the incident, the damage any property involved in the incident, the scene of the incident, or any other fact or matter that is the subject, or related to the subject, of this suit, whether or not expected to be introduced into evidence at trial. 3) Statements of Plaintiff: Any and all recordings of conversations with Plaintiff or any of Plaintiffss agents, servants or employees. 4) Witness Statements: Any and all recordings and statements of any witness, including the defendant or expert witness in this case. 5) Auto Repairs: Any and all repair estimates, appraisals, invoices and receipts for damage repair concerning any and all vehicle damaged in this accident. 6) Insurance: Copies of any and all insurance policies which would cover and/or include liability for injuries and/or damages arising out of the incident forming the basis ofthis lawsuit. This should include the amount ofthe policy limits and a copy of the declaration sheet. This request includes all private or commercial insurance policies and all liability or umbrella policy 7) Driver's License: A copy of the front and back copy of your driver's license. 8) General Investigation: Any and all investigative reports including adjuster notes pertaining to the incident madethe basisof this suit, which were compiled prior to an anticipation of litigation. Axelson v. Mcllhany, 798 S.W.2d 550, 552-3 (Tex. 1990). 9) Earlv Investigation: A complete copy of your insurance companies' file from the date of this accident until it first received PlaintifTss notice of representation, pursuant to Dunn Eauin.. Inc. v. Gavle. 725 S.W.2d 372 (Tex. App. - Houston [14^ Dist.] 1987, orig. proceeding). lOiAnticipation Investigation: A complete copy of your insurance companies' file from the date of this accident until the date suit was file, pursuant to Dunn Equip.. Inc. V. Gavle. 725 S.W.2d 372 (Tex. App. - Houston [14^ Dist.] 1987, orig. proceeding). IT)Claim Files: A copy of the Defendant's insurance company's claims file. In Re Ford Motor Co. 988 S.W. 2"^^ 714,7119 (Tex 1998)and Dunn Equip.V. Gayle, 725 S.W.2d 372, 374-5 (Tex. App. Houston [14^^ Dist.] 1987, orig. proceeding). 121 Medical Records: Copies of all medical records you incurred for treatment of any injuries you may have sustained as a result of this incident made the basis of this Plaintiffs Second Amended Original Complaint Page 11 Electronically Submitted 10/26/2017 2:27 PM Hidalgo County Clerks Office Accepted by: Jacquelyn Perez CL-17-4375-A suit. 13) Settlements: Copies of all releases, letters, memoranda or other documents that reflect, refer to or in any way set forth the terms of any agreement between you and any defendant, cross plaintiff, counter plaintiff, or pre litigation claimant in this suit to settle any part or all of the claims that you may have arising from the incident made the basis of this suit. 14) Medical Authorization: A signed, notarized authorization permitting the full disclosure to this plaintiffand/or Plaintiffss attorney of any and all medical records that are reasonably related to your ability to drive under those conditions as they were on the date of the loss. 15) Emplovment Authorization: A signed, notarized authorization permitting the full disclosure to this plaintiff and/or Plaintiffss attorney of any and all personnel records that are reasonably related to your course and scope of employment on the date of the loss. 16)Expert Reports: Copies of all reports, compilations of data and other material prepared or used by an expert witness Plaintiff may call to testify on the issues of either liability or damages, and of all consulting experts whose work has been reviewed by an expert who may be called to testify. 17) Expert References: Anv and all treatises, periodicals and pamphlets that you may offer or use in the trial of this cause under Rule 803(18) of the Texas Rules of Evidence. 18)Expert Reports anddocuments: Copies of all reports, physical models, compilations of data, photographs and other material prepared by an expert or for an expert in anticipation of the expert's deposition and/or trial testimony, including material prepared by an expertused for consultation if it forms a basis, eitherin whole or in part, of the opinions of an expert who may be called as a witness. 19)Expert Opinions: Copies of all documents reflecting and/or constituting mental impressions and opinions held by an expert and facts known to the expert which relate to or form the basis ofthe mental impressionsand opinions held by the expert, including any expert used for consultation if the expert's work product forms a basis, either in whole or in part, of the opinions of an expert who may be called as a witness. 20)List of Experts OtherCases: A list of all other cases in which any retained experts has testified as an expert, at trial or by deposition, withinthe last four yearsand the amount of money paid for each case. 21) Expert Financial Records: All financial records which show that amount of money earnedby all retained expertswithinthe last four years. If you are unableto produce Plaintiffs Second Amended Original Complaint Page 12 Electronically Submitted 10/26/2017 2:27 PM Hidalgo County Clerks Office Accepted by: Jacquelyn Perez CL-17-4375-A such documents, please provide the retained experts tax retums for the last four years. 22) Materials Used bv the Expert: Copies of all documents, tangible things, physical models, report compilations of data or other material provided to, reviewed by, or prepared or for the retained testifying expert in anticipation of trial TRCP