                                                                                 ACCEPTED
                                                                             04-15-00553-CV
                                                                 FOURTH COURT OF APPEALS
                                                                      SAN ANTONIO, TEXAS
                                                                       9/15/2015 12:02:12 AM
                                                                              KEITH HOTTLE
                                                                                      CLERK

                                No. 04-15-00553-CV

                                                            FILED IN
                      IN THE COURT OF APPEALS   4th COURT OF APPEALS
                                                 SAN ANTONIO, TEXAS
                 FOR THE FOURTH DISTRICT OF TEXAS
                                               09/15/2015 12:02:12 AM
                            SAN ANTONIO           KEITH E. HOTTLE
                                                             Clerk


                         IN RE: RUBEN GONZALEZ,

                                                 Relator.



         RESPONSE TO PETITION FOR WRIT OF MANDAMUS



Counsel for Real Parties in Interest:


David L. Ortega
State Bar No. 00791377
Stephen D. Navarro
State Bar No. 00792712

NAMAN HOWELL, SMITH & LEE, PLLC
10001 Reunion Place, Ste. 600
San Antonio, TX 78216
Tel: 210-731-6351
Facsimile: 210-785-2951
Email: dortega@namanhowell. com
Email: snavarro@namanhowell. com
                      REQUEST FOR ORAL ARGUMENT

       Real Parties in Interest respectfully request oral argument to assist the Court
in determining the issues presented in this original proceeding. Tex. R. App. P
39.1


                    EXPLANATION OF ABBREVIATIONS

     The abbreviations used herein are those referred to by relator in the Petition
for Writ of Mandamus. A reference to the mandamus record is abbreviated as
"(MR)".

       A reference to the record from the hearing on Real Parties in Interest
Renewed Motion to Conduct Medal Examination is referred to as "(RR)".
                                TABLE OF CONTENTS

Request for Oral Argument.                                                       .   11


Explanation of abbreviations                                                         .   11


Table of Contents ..                                                            .. Ill


Index of Authorities..                                                         ...V


Statement of the Case.                                                              .. VI


Issues Presented.                                                               .    Vll


Statement of Facts.                                                             ...I

Argument. ...                                                                            .3

      I.     Mandamus Standard........... ...... ...... ....... .........3

      II.    Respondent did not abuse her discretion by
             concluding good cause was shown and ordering
             the medical examination to determine the
             condition of Gonzalez' spine and whether
             he would benefit from surgery...................................^

             A.       Standard for granting medical examination. ...............4

             B.       Lessor intrusive means requirement has b^en satisfied. ..4

      III.   Respondent did not abuse her discretion by ordering
             the medical examination given that Gonzalez'
             providers are at odds with each other regarding
             the surgery allegedly required.....................................?

             A.       The exam is necessary to draw a clear picture of Gonzalez'
                      spine................................................7

Conclusion. ..


                                                iii
Prayer.                                                                      .9

TRAP 9. 4(i)(3) Certificate. ........................ ..... ..... ......      10

TRAP 52. 3Q) Certificate.                                                  ... 11

Certificate of Service. .                                                   .. 11




                                          IV
                            INDEX OF AUTHORITIES

CASES                                                                     PAGE(s)

CSR Ltd v. Link, 925 S. W. 2d 591 (Tex. 1996) (orig. proceeding) .... ..... 3

Walker v. Packer, 827 S. W. 2d 833 (Tex. 1992) (orig. proceeding)........ . ......3

Prudential Ins. Co. of America, 148 S. W. 3d 12 (Tex. 2004). ............. ....3

Re Colonial Pipeline Co., 968 S.W. 2d 938 (Tex. 1998) (orig. proceeding).....3

Canadian Helicopters, Ltd. V. Wittig, 876 S.W. 2d 304... ... .. ..... . .4
       (Tex. 1994) (orig. proceeding)

Coates v. Whittington, 758 S.W. 2d 749 (Tex. 1988). . ... .. ... .... .4

Transwestern Publishing Company, 96 S. ^W. 3d 501... ... ..... . . ... . 4
       (Tex. App. - Fort Worth 2002, orig. proceeding)

Exxon Corp. V. Starr, 790 S.W.2d 883.
       (Tex. App. - Tyler 1990, orig. proceeding)

Sherwood Lane Assocs. v. O'Neil, ^'lS. W. '1^9^2 ..... .... ........ . ...7
       (Tex. App. - Houston [1stDist. ] 1990, no writ.

Ten Hagen Excavating, Inc., 435 S. W. 3d 859.                                           .7
      (Tex. App. - Dallas 2014, orig. proceeding)


RULES OF PROCEDURE

Texas Rule of Civil Procedure 204. 1(C).... ....... .... ... . .............4

Texas Rule of Appellate Procedure 9. 4(i)(3).. ...                              .       10

Texas Rule of Appellate Procedure 52. 3(J).                                             10

Texas Rule of Appellate Procedure 9. 5...                                           .
                                                                                        10
                      STATEMENT OF THE CASE

      Nature ofthe Underlying Proceeding: The underlying dispute is a suit

for damages following a collision involving a vehicle being driven by
Relater Ruben Gonzalez and a tractor-trailer being driven by Martin Garcia,

a former Plaintiff. (MR 95).

      Respondent: The Honorable Monica Z. Notzon, Judge of the 111th
Judicial District Court ofWebb County, Texas.

      P^espondent's Action from V,7hich Relief is Sought: Respondent

entered an order compelling Ruben Gonzalez to undergo a medical

examination for the purpose of determining the current condition of Mr.

Gonzalez' cervical spine and whether he would benefit from cervical disk

surgery. (RR 10; MR 41, 82-83).




                               {03561007.DOCX/}V1
                           ISSUE PRESENTED

                               ISSUENO. 1

Did Respondent abuse her discretion by: (1) concluding the Real Parties in
Interest showed good cause for the medical examination of Ruben Gonzalez
and (2) entering an order compelling Ruben Gonzalez to undergo the
medical examination to detennine the current condition of his cervical spine
andwhether he would benefit from cervical disc surgery?

                               ISSUE NO. 2

Did Respondent abuse her discretion by entering an order compelling Ruben
Gonzalez to undergo the medical examination given the pending four disc
surgery recommended by Dr. Gerardo Zavala and the single disk surgery
recently performed by Dr. Alejandro J. Betancourt?




                              {03561007. DOCX/}V11
                             STATEMENT OF FACTS

I. The underlying suit.

      This is an auto accident case occurring on Febmary 14, 2012 whereby

Relator, Ruben Gonzalez ("Gonzalez") alleges he suffered severe mental, physical
injuries and damages following a collision between his vehicle and the vehicle

being driven by former Plaintiff, Martin Garcia. (MR 95). Gonzalez subsequently

filed a cross-claim against Real Parties in Interest. (MR 3, 94).

      Gonzalez and his designated testifying expert and treating provider. Dr.

Gerardo Zavala("Dr. Zavala") allege injury to Gonzalez' cervical spine requiring a
four level cervical disc surgery. (MR 54, 71-72, 82). Furthermore, Gonzalez has

testified that he does not think he is physically qualified to work. (MR 73).

Subsequent to his deposition testimony, however, Gonzalez has been videotaped
on two occasions at the business of D&H Oil and Gas Services, LLC in Laredo,

Texas, apparently working. Gonzalez' expert, Dr. Gerardo Zavala, viewed the

videotapes during his deposition and testified, "it appears that he was working."
(MR 76-78). In addition, Dr. Zavala testified that although Gonzalez complains of

pain every time he examines him; in the video Gonzalez did not appear to be in

pain and looked comfortable. (MR 75-76).

      Real Parties in Interest filed their Renewed Motion to Conduct Medical

Examination on July 22, 2015. (MR 38, 66). On August 25, 2015, Respondent, the

                              {03561004. DOCX/ H03561004. DOCX/ }1
Honorable Monica Z. Notzon, signed an order granting the motion and requiring
Gonzalez to submit to a medical examination to be performed on September 9,

2015 by Dr. Gilbert R. Meadows ("Dr. Meadows"). (MR 41-42).

II. Gonzalez undergoes a different surgery performed by a doctor who was
     not previously disclosed.

       After Real Parties in Interest filed their Renewed Motion for Medical Exam,

Gonzalez disclosed on August 21, 2015, that he had undergone cervical disk

surgery on July 14, 2015. (MR 57). Such surgery, however, was not performed by

Gonzalez' designated expert, Dr. Zavala, who had been previously deposed on

February 23, 2015, but was perfonned by Dr. Alejandro J. Betancourt ("Dr.

Betancourt"), who had not been disclosed prior to the surgery or the filing of the
renewed motion. (MR 43, 54, 57; RR 13). Furthermore, Dr. Betancourt performed

a one level disk surgery as opposed to the four level surgery recommended by Dr.
Zavala. (RR 9; MR 54, 71-72, 82). Although Gonzalez informed Real Parties in

Interest on May 22, 2015 and May 26, 2015 that he would be moving "forward

with surgery", Gonzalez never advised when the surgery would take place, that the

surgery was going to be performed by a different doctor, nor that he would be

undergoing a different surgery. (MR 79-80). Thus far, Gonzalez hasnot provided
the medical records from Dr. Betancourt or Cornerstone Regional Hospital to Real
Parties in Interest. (MR 54). More importantly. Dr. Zavala's recommendation for

the four level cervical disk surgery is still pending. (RR 9; MR 54, 71-72, 82).
                              {03561004. DOCX/ }{03561004. DOCX/ }2
                                     ARGUMENT

I.     Mandamus Standard


      Mandamus is an extraordinary remedy that is available only in limited

circumstances.    CSR Ltd. v. Link, 925 S.W.2d 591, 596 (Tex. 1996) (orig.

proceeding) (citing Walker v. Packer, 827 S. W.2d 833, 840 (Tex. 1992) (orig.

proceeding)). To obtain mandamus relief, the relator must show that: (1) the trial

court clearly abused its discretion; and (2) the relator has no adequate appellate

remedy. In re Prudential Ins. Co. of America, 148 S.W.3d 124, 135-36 (Tex.

2004). A trial court clearly abuses its discretion when it reaches a decision so

arbitrary and unreasonable as to amount to a clear and prejudicial error of law.

Walker v. Packer, 827 S. W.2d 833, 839 (Tex. 1992)(orig. proceeding). In making
the determination of whether the trial court abused its discretion, appellate courts

are mindftil that the purpose of discovery is to seek the truth so that disputes may

be decided by what the facts reveal, not by what facts are concealed.          In Re

Colonial Pipeline Co., 968 S. W. 2d 938, 941 (Tex. 1998) (orig. proceeding). With

respect to the resolution of factual issues or matters committed to the trial court's

discretion, an appellate court may not substitute its judgment for that of the trial

court unless the relator establishes that the trial court could reasonably have

reached only one decision and that the trial court's decision is arbitrary and



                              {03561004.DOCX/ }{03561004.DOCX/ }3
unreasonable. Id. at 839-840. This burden is a heavy one. Canadian Helicopters,

 Ltd. V. Wittig, 876 S. W. 2d 304, 305 (Tex. 1994) (orig. proceeding).

II.     Respondent did not abuse her discretion by concluding good cause was
        shown and ordering the medical examination to determine the
        condition of Gonzalez' spine and whether he would benefit from
        surgery.

        A.    Standard for granting medical examination.

       Rule 204 of the Texas Rules of Civil Procedure provides the standard for

granting a medical examination. A court will order a physical examination only

for good cause and only when the person's mental or medical condition is in

controversy. Tex. R. Civ. P. 204.l(c); Coates v. Whittmgton, 758 S. W. 2d 749,

751 (Tex. 1988). Gonzalez concedes that his medical condition is in controversy.
(RR 6-7).

       Good cause requires the showing of three elements. First, the examination

must be relevant to issues genuinely in controversy and produce, or likely lead to,
relevant evidence. Second, the movant must show there is a reasonable nexus

between the condition in controversy and the examination sought. Third, the

movant must show it is not possible to obtain the information through less intmsive

means. In re Transwestem Publishing Company, 96 S.W. 3d 501, 505 (Tex. App.

- Fort Worth 2002, orig. proceeding).

        B.   Lessor intrusive means requirement has been satisfied.



                              {03561004. DOCX/ }{03561004. DOCX/ }4
       On the requirement of good cause, Gonzalez only raises an issue with the

third requirement; thatthe movant show it is not possible to obtain the information

through less intmsive means. Gonzalez suggests that the Real Parties in Interest

have not met this requirement because they have not deposed Dr. Betancourt who

performed Gonzalez' surgery, have not deposed any ofGonzalez' treating doctors,

and have not conducted post-surgery discovery.                      Gonzalez' position is

disingenuous; first. Dr. Betancourt was not disclosed by Gonzalez until after the

Real Parties in Interest filed the renewed motion. (MR 43, 54, 57; RR 13). As

such, there was no opportunity to depose Dr. Betancourt prior to the surgery or

prior to filing the motion. Second, Real Parties in Interest would have no need to

depose Gonzalez' other treating providers, as the real issue at hand is the

condition of Gonzalez' cervical spine and whether he would benefit from cervical

disc surgery. Prior to Gonzalez' surgery, the only doctor known to Real Parties in

Interest who extensively treated Gonzalez, and recommended cervical disc

surgery, was Dr. Zavala whom Real Parties in Interest deposed on Febmary 23,

2015. (MR 58). Third, Gonzalez suggests that Real Parties in Interest conduct

post-surgery discovery, however, Gonzalez chose not to disclose his surgery or

the identity of Dr. Betancourt until weeks after Real Parties in Interest filed the

renewed motion. More importantly, it has been two months since Gonzalez'

surgery and he still has not produced the records from Dr. Betancourt and

                            {03561004. DOCX/ }{03561004. DOCX/ }5
Cornerstone Regional Hospital in connection with the surgery. (MR 54). As

such, Gonzalez' suggestion ofpost surgery discovery is clearly not a viable option

given the delay and lack of information provided by Gonzalez related following

the surgery.

      Dr. Meadows has clearly indicated that he has reviewed Gonzalez MRI

films. Dr. Zavala's surgical recommendation and the surveillance video.                 In

addition,   he notes    that   Gonzalez'        EMG       and nerve   conduction   studies

demonstrated no neural pathology related to the cervical spine and that it has been

documented that Gonzalez has a significant component of symptom

magnification. Finally, he states that it is highly unlikely that Gonzalez will have a

positive outcome from surgery. (MR 81-82).

     The protocol suggested by Dr. Meadows includes reviewing all pertinent

documents, x-rays and imaging, obtaining a history from Gonzalez, having

Gonzalez fill out a history form and pain diagram, performing a physical exam of

the involved anatomical areas, including a neurological exam, and discerning

clinical impressions. (MR 83). Given this protocol, the medical examination is

critical, as no lesser intrusive means will provide the necessary information.

Where the intended examination is not intmsive, invasive or unnecessarily

physically uncomfortable, parties are permitted to explore matters not covered by

the opposing party's examinations, make their own observations, and attempt to

                               {03561004.DOCX/}{03561004.DOCX/}6
  discover facts that may contradict the opinions of the opposing parties expert

  witnesses. Exxon Corp. V. Starr, 790 S.W.2d 883, 887 (Tex. App. - Tyler 1990,

  orig. proceeding); Sherwood Lane Assocs. v. O'Neil, 782 S. W. 2d 942, 945 (Tex.

  App. - Houston [1 Dist.] 1990, no writ. In many cases the treating physician's

  notes, the medical records of the complaining party, and expert witness reports

  filed by other parties cannot serve these legitimate purposes. In addition, where

 the information already available through less intrusive means is inadequate, a

 party may obtain a physical examination for which good cause is otherwise

 shown. In Re Ten Hagen Excavating, Inc., 435 S.W.3d 859, 870 (Tex. App. -

 Dallas 2014, orig. proceeding). Moreover, consideration ofthe interest ofjustice

 and the right of the parties to a fair trial requires that when a party asserts a

 physical or mental condition as part of a claim or defense, a trial court must be

 careful not to prevent the development of medical testimony that would allow the

 opposing party to fully investigate the condition the party has placed in issue. In

 Re Ten Hagen Excavating, Inc., at 867.

III.    Respondent did not abuse her discretion by ordering the medical
        examination given that Gonzalez' providers are at odds with each other
        regarding the surgery allegedly required.

       A.    The exam is necessary to draw a clear picture of Gonzalez' spine.

       Gonzalez argues that the requested medical examination is moot since he has

undergone surgery. The surgery, however, was not performed by Dr. Zavala who

                              {03561004. DOCX/ }{03561004. DOCX/ }7
has been caring for Gonzalez for his alleged injury; but rather Dr. Betancourt, who

does not appear to have seen Gonzalez until June or July of 2015; over two years

after the accident. (MR 43, 54, 57; RR 13). Moreover, while Dr. Zavala noted in

his records that Gonzalez needed a four level cervical disc surgery, and further

testified under oath as to this procedure, Dr. Betancourt inexplicably performed a

one level surgery. (RR 9; MR 54, 71-72, 82). Given the great discrepancy

between the recommended surgical procedure and the ultimate procedure

performed, the lack of information regarding the current condition of Gonzalez'

remaining cervical discs, the lack of records regarding the surgery, and the fact that

Zavala's recommendation for the four disc surgery is still pending; the requested

medical examination is relevant and necessary, as it will allow Dr. Meadows to

obtain a clear picture ofGonzalez' spine and ensure that the Real Parties in Interest

will have a fair trial.

        Gonzalez argues that because Dr. Meadows has made some conclusions, the

medical examination is not necessary. Gonzalez, however, fails to consider that

Dr. Zavala made a conclusion that Gonzalez needed a four disc surgery, while Dr.

Betancourt disagreed and concluded that Gonzalez only needed a one level

surgery. Perhaps Dr. Meadows is correct in concluding that Gonzalez did not need

any surgery. To the extent that a medical examination can provide the additional

information requested by Dr. Meadows and provide a current picture of Gonzalez'

                              {03561004. DOCX/ }{03561004. DOCX/ }8
cervical spine, the examination is not moot, but rather relevant and necessary to
ensure a fair trial for Real Parties in Interest.

                                      CONCLUSION

       As the record demonstrates. Real Parties in Interest have exhausted lesser

intmsive means to obtain the necessary information sought, but cannot obtain such

information without the requested medical examination.                  As Respondent

determined following the hearing on the Renewed Motion for Medical

Examination, Real Parties in Interest have shown good cause for the examination.

In addition, not withstanding Gonzalez' one level surgery, Real Parties in Interest

have shown that the requested medical examination is relevant given the great
discrepancy between the recommended four disc surgery and the one disc surgery,

and more importantly, to provide a clear picture of the condition ofGonzalez'

                                           PRAYER

      WHEREFORE, PREMISES CONSIDERED, Real Parties in Interest,

Premier and Casillas, respectfully request that this Court deny Relator's Petition

for Writ of Mandamus and vacate its order granting the request for emergency
relief and staying the medical examination. Premier and Casillas pray for such

other andfurther reliefto whichthey maybejustly entitled, atlaw andin equity.




                                (03561004. DOCX/ }{03561004. DOCX/ }9
                                               Respectfully submitted,

                                               /s/ Stephen D. Navarro
                                               David L. Ortega
                                               State Bar No. 007913 77
                                               Direct Phone: 210-731-6353
                                               Direct Facsimile: 210-731-2953
                                               Email: dortega(2>namanhowell. com
                                               Stephen D. Navarro
                                               State Bar No. 00792712
                                               Direct Phone: 210-73 1-6351
                                               Direct Facsimile: 210-731-2951
                                               Email: snavarro(%namanhowell .corn
                                               Naman Howell Smith & Lee, PLLC
                                               10001 Reunion Place, Suite 600
                                               San Antonio, Texas 78216

                                               ATTORNEYS FOR REAL PARTIES
                                               IN INTEREST, ABEL ALVARADO
                                               CASILLAS AND PREMIER EAGLE
                                               FORD SERVICES, INC.


                          TRAP 9. 4m(3) CERTIFICATE

      Pursuant to Texas Rule ofAppellate Procedure 9.4(i)(3), I hereby certify that
this brief contains 2, 061 words (excluding the caption, table of contents, table of
authorities, signature, proof of service, certification, and certificate of compliance).
This is a computer-generated document created in Microsoft Word, using 14-point
typefacc for all text. In making this certificate of compliance, I am relying on the
word count provided by the software used to prepare the document.

                                            /s/ Stephen D. Navarro
                                            Stephen D. Navarro




                              {03561004. DOCX/ }{03561004. DOCX/ }10
                         TRAP 52. 3(J) CERTIFICATE

      I certify that I have reviewed the petition and have concluded that every
factual statement made herein is supported by competent evidence included in the
appendix and/or the record.

                                             /s/ Stephen D. Navarro
                                             Stephen D. Navarro


                         CERTIFICATE OF SERVICE

      I hereby certify that a tme and correct copy ofthe above and foregoing was
served in accordance with Rule 9. 5 of the Texas Rules of Appellate Procedure on
the following on this 14 day of September, 2015:
      Hon. Monica Z. Notzon
      Judge 111thJudicialDistrict
      1110 Victoria Street
      Laredo, Texas 78040
      Respondent

      Jaime A. Gonzalez, Jr.
      Hector L. Rodriguez
      Catherine W. Smith
      Gonzalez & Associates Law Firm, Ltd.
      Summit Park North
      817 E. Esperanza Ave.
     McAllen, Texas 78501
      Attorneys for Relator
     David H. Jones
     Law Office of David H. Jones
      6521 North 10th St., Suite E-l
     McAllen, Texas 78504
     Attorneys for Relator

                                               /s/ Stephen D. Navarro
                                               Stephen D. Navarro


                               {03561004.DOCX/ }{03561004. DOCX/ }11
