                                                                                ACCEPTED
                                                                             01-15-00758-cv
                                                                 FIRST COURT OF APPEALS
                                                                         HOUSTON, TEXAS
                                                                      10/30/2015 5:59:44 PM
                                                                      CHRISTOPHER PRINE
                                                                                     CLERK

                  No. 01-15-00758-CV

                                                           FILED IN
                                                    1st COURT OF APPEALS
              IN THE COURT OF APPEALS                   HOUSTON, TEXAS
           FOR THE FIRST DISTRICT OF TEXAS          10/30/2015 5:59:44 PM
                  HOUSTON, TEXAS                    CHRISTOPHER A. PRINE
                                                             Clerk


      IN RE ADVANCED POWDER SOLUTIONS, INC.,
                                       Relator.


     Original Proceeding from Cause No. 2014-16020
In the 125th Judicial District Court of Harris County, Texas
           The Honorable Kyle Carter, Presiding


   RESPONSE TO PETITION FOR WRIT OF MANDAMUS


                    KURT B. ARNOLD
                       SBN: 24036150
                 karnold@arnolditkin.com
                    J. KYLE FINDLEY
                       SBN: 24076382
                 kfindley@arnolditkin.com
                     KALA SELLERS
                       SBN: 24087519
                 ksellers@arnolditkin.com
                 ARNOLD & ITKIN LLP
                   6009 Memorial Drive
                  Houston, Texas 77007
                Telephone: (713) 222-3800
                Facsimile: (713) 222-3850

      ATTORNEYS FOR REAL PARTY IN INTEREST,
               TREMAINE HEWITT
                      IDENTITY OF PARTIES AND COUNSEL

      In addition to the counsel identified in the Petition for Writ of Mandamus,
please note the appearance of additional counsel for the Real Party in Interest:

Kala Flittner Sellers
SBN: 24087519
ksellers@arnolditkin.com
ARNOLD & ITKIN LLP
6009 Memorial Dr.
Houston, TX 77007
Telephone: (713) 222-3800
Facsimile: (713) 222-3850




                                        i
                                             TABLE OF CONTENTS

                                                                                                                    PAGE
IDENTITY OF PARTIES AND COUNSEL .......................................................................... i

TABLE OF CONTENTS ................................................................................................. ii

INDEX OF AUTHORITIES............................................................................................ iiv

ISSUES PRESENTED ................................................................................................... vii

INTRODUCTION ............................................................................................................1

STATEMENT OF FACTS .................................................................................................3

ARGUMENT .................................................................................................................6

I.       Applicable Legal Standards ............................................................................. 6

         A.       Mandamus ............................................................................................. 6

         B.       Abuse of Discretion ............................................................................... 6

         C.       Compelled Independent Medical Examinations ................................... 8

II.      The trial court properly exercised its discretion when it denied APS’s
         motion to compel both an independent medical examination and a
         functional capacity evaluation. ...................................................................... 10

         A.       APS did not provide the trial court with evidence that an
                  independent medical examination or functional capacity
                  evaluation would provide relevant, discoverable evidence. ............... 13

         B.       While there may be a nexus between Plaintiff’s injuries and an
                  independent medical examination, this prong alone is
                  insufficient to support a finding that the trial court abused its
                  discretion. ............................................................................................ 14




                                                            ii
         C.        APS must seek to obtain the desired information through less
                   intrusive forms of discovery before resorting to a compelled
                   medical examination.......................................................................... 155

                   1.       Compelled medical examinations intrude on the injured
                            party’s privacy........................................................................... 18

                   2.       APS did not provide the trial court with any indication of
                            what it was looking for that could not be determined
                            through less intrusive discovery. .............................................. 20

                   3.       Good cause is always required before a court orders an
                            independent medical examination. ........................................... 22

         D.        APS failed at the trial court level, as well as in their writ for
                   mandamus, to show they are entitled to a functional capacity
                   exam and the trial court’s denial of such was an abuse of
                   discretion ............................................................................................. 26

         E.        Even Ten Hagen—the sole case cited by APS in its motion to
                   compel—supports the trial court’s decision...................................... 267

         F.        Any arguments made regarding Plaintiff’s economist Kenneth
                   McCoin are irrelevant and misguided. .............................................. 299

CONCLUSION .............................................................................................................31

PRAYER FOR RELIEF ..................................................................................................31

CERTIFICATE OF SERVICE ..........................................................................................33

CERTIFICATE OF COMPLIANCE ................................................................................344

APPENDIX.................................................................................................................. 35




                                                             iii
                                         INDEX OF AUTHORITIES

CASES                                                                                                    PAGE(S)

Acosta v. Tenneco Oil Co.,
      913 F.2d 205 (5th Cir. 1990) ......................................................................... 25

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

CSR Ltd. v. Link,
     925 S.W.2d 591 (Tex. 1996) ........................................................................... 6

Diaz v. Con-Way Truckload, Inc.,
      279 F.R.D. 412 (S.D. Tex. 2012) .................................................................. 24

Gavin v. Hilton Worldwide, Inc.,
      291 F.R.D. 161 (N.D. Cal. 2013) .................................................................. 23

Ginsberg v. Fifth Court of Appeals,
     686 S.W.2d 105 (Tex. 1985) ........................................................................... 6

Hardy v. Riser,
     309 F. Supp. 1234 (N.D. Miss. 1970) ........................................................... 12

IKB Indus. (Nigeria) Ltd. v. Pro–Line Corp.,
      938 S.W.2d 440 (Tex. 1997) ..................................................................... 7, 20

In re Bell Hot Shot Co.,
       No. 14–13–00877–CV, 2014 WL 260116
       (Tex. App.—Houston [14th Dist.] Jan. 9, 2014, orig. proceeding)
       (mem. op.) ..........................................................................................16, 18, 24

In re Buch,
       05-98-01665-CV, 1998 WL 908843
       (Tex. App.—Dallas Dec. 31, 1998, no pet.) ............................................15, 18

In re Caballero,
       36 S.W.3d 143 (Tex. App.—Corpus Christi 2000, orig.
       proceeding) ..............................................................................9, 11, 14, 16, 25


                                                         iv
In re Cerberus Capital Mgmt., L.P.,
       164 S.W.3d 379 (Tex. 2005) ........................................................................... 7

In re Click,
       442 S.W.3d 487
       (Tex. App.—Corpus Christi 2014, orig. proceeding)....................9, 11, 14, 18

In re Commitment of Hatchell,
       343 S.W.3d 560 (Tex. App.—Beaumont 2011, orig. proceeding) ................. 8

In re CSX Corp.,
       124 S.W.3d 149 (Tex. 2003) ........................................................................... 6

In re Dallas Group of Am., Inc.,
       434 S.W.3d 647 (Tex. App.—Houston [1st Dist.] 2014, no pet.) ............... 6, 8

In re H.E.B. Grocery Co., L.P.,
       13-15-00254-CV, 2015 WL 3637775
       (Tex. App.—Corpus Christi June 11, 2015, no pet.)...............6, 7, 8, 9, 18, 20

In re Lambdin,
       No. 07–03–0328–CV, 2003 WL 21981975
       (Tex. App.—Amarillo Aug. 20, 2003, orig. proceeding) .............................. 12

In re Le,
       335 S.W.3d 808 (Tex. App.—Houston [14th Dist.] 2011, no pet.) .......... 7, 20

In re Odyssey Healthcare, Inc.,
       310 S.W.3d 419 (Tex. 2010) ........................................................................... 6

In re Prudential Ins. Co. of Am.,
       148 S.W.3d 124 (Tex. 2004) ........................................................................... 6

In re Sanders,
       153 S.W.3d 54 (Tex. 2004) ............................................................................. 7

In re Ten Hagen Excavating, Inc.,
       435 S.W.3d 859 (Tex. App.—Dallas 2014, no pet.) ..............................passim



                                                       v
In re Thuesen,
       14-13-00174-CV, 2013 WL 1461790
       (Tex. App.—Houston [14th Dist.] Apr. 11, 2013, no pet.) .................7, 17, 24

In re Transwestern Publ’g Co.,
       96 S.W.3d 501
       (Tex. App.—Fort Worth 2002, orig. proceeding) .........................9, 11, 14, 22

Marroni v. Matey,
     82 F.R.D. 371 (E.D. Pa. 1979) ...................................................................... 16

Moore v. Calavar Corp.,
     142 F.R.D. 134 (W.D. La. 1992) ................................................................... 25

Sadler v. Acker,
      263 F.R.D. 333 (M.D. La. 2009) ................................................................... 23

Schlagenhauf v. Holder,
      379 U.S. 104 (1964)................................................................................passim

Sherwood Lane Associates v. O'Neill,
     782 S.W.2d 942 (Tex. App.—Houston [1st Dist.] 1990, no writ) ................ 23

Stinchcomb v. United States,
      132 F.R.D. 29 (E.D. Pa. 1990) ...................................................................... 12

Storms v. Lowe’s Home Centers, Inc.,
     211 F.R.D. 296 (W.D. Va. 2002) ............................................................29, 30

Teche Lines v. Boyette,
      111 F.2d 579 (5th Cir. Miss. 1940) ............................................................... 12

Walker v. Packer,
     827 S.W.2d 833 (Tex. 1992) ........................................................................... 6

STATUTES AND RULES
Tex. R. App. P. 52.3(k)(1) ....................................................................................... 20

Tex. R. Civ. P. 204.1 ..................................................................................1, 8, 10, 11

                                                         vi
                               ISSUES PRESENTED
1.   Good cause is required to compel an independent medical examination. To
     show good cause, the movant must seek the desired information through less
     intrusive means before compelling an examination. Plaintiff disclosed his
     medical records, a list of treating physicians, and reports from expert
     witnesses; however, APS did not show any good cause and had not deposed
     Plaintiff’s treating physicians or any experts, or provided any evidence to the
     trial court that it exhausted less intrusive means of discovery before moving
     to compel. Was it within the trial court’s broad discretion to deny APS’s
     motion to compel both an independent medical exam and a functional
     capacity exam?

2.   Was APS legally entitled to compel Hewitt to submit to a functional
     capacity exam?




                                       vii
                                  INTRODUCTION

      Near the inception of discovery and before any depositions were taken,

Relator, Advanced Powder Solutions, Inc. (“APS”) demanded that Real Party in

Interest, Tremaine Hewitt, undergo both an independent medical examination as

well as a functional capacity evaluation by two of APS’s experts. Because courts

protect an individual’s right to privacy, before a party can be compelled to undergo

a medical examination—or in this case, both a medical examination and a

functional capacity evaluation—the party requesting that examination must show

“good cause.” Tex. R. Civ. P. 204.1; Coates v. Whittington, 758 S.W.2d 749, 753

(Tex. 1988). In order to satisfy the good cause standard, a party seeking the

examination must show, among other things, that the information sought cannot be

obtained through means that are less intrusive than the compelled examination.

Coates, 758 S.W.2d at 753. APS did not attempt to show that it could not obtain

information through less intrusive means, but rather, argued to the trial court as it

does to this court, that good cause exists because “[t]here is nothing equitable

about allowing one party’s expert access to evidence while denying that

opportunity to the other party.” Pet. for Mandamus, 4. This argument misses the

point entirely, and fails to show any aspect of good cause.

      In order for APS to prevail here, it must establish that the trial court’s

decision to deny its motion to compel was an abuse of discretion. This is a heavy



                                         1
burden that APS cannot meet, especially in light of the fact that APS’s failure to

show good cause and only evidence to the trial court was a four-page motion citing

only a single, non-binding case from the Dallas Court of Appeals. MR67-70.

      Additionally, APS’s arguments below and on mandamus are simply

conclusory allegations by the attorney. APS provides no evidence of why its

experts cannot opine without an independent medical examination and a functional

capacity exam—as most defense experts do. Thus, the trial court’s decision to deny

APS’s motion to compel was proper because APS provided the trial court with no

evidence to support its motion, and undeniably failed to show good cause. Further,

APS has failed to provide case law showing that it was entitled to compel a

functional capacity exam.




                                        2
                                 STATEMENT OF FACTS

      This case arises from a serious accident which occurred on August 28, 2013,

wherein Tremaine Hewitt was working as an employee of APS. App. 1: Pl.’s First

Am. Pet., ¶ 9. Hewitt was required to stand on a ladder in order to pour magnesium

powder into a reactor. Id. While Hewitt was on the ladder, another APS employee

manipulated the reactor valves, which in turn caused a magnesium flash, knocking

Hewitt off the ladder and setting him on fire. Id. Hewitt was burned severely,

sustaining second and third degree burns over more than 22% of his body, as well

as orthopedic injuries. Id.; see also MR58-63 (photographs of Hewitt’s burn

injuries). Because of his injuries, Hewitt was eventually life-flighted from the

hospital to a burn unit, and underwent multiple surgeries while spending twenty-

nine days in the hospital. Id.

      On March 20, 2015, Hewitt disclosed to APS that, among others, Angel

Roman, M.D. and Kenneth McCoin, Ph.D. would testify as experts in this matter.

MR7-8. Included in this disclosure was a 47-page report from Dr. Roman. MR11-

63. Dr. Roman’s report also contained a detailed 12-page summary of Hewitt’s

medical records. MR18-30. In the same disclosure, Hewitt also provided Mr.

McCoin’s report, an economist. MR64-66. McCoin’s report dealt only with

Hewitt’s earning capacity (both past and future). MR64. Nowhere in McCoin’s




                                         3
report did McCoin state that his observations or conclusions were based on an in-

person examination of Hewitt. MR64-66.

      Despite Hewitt’s disclosures and without deposing any treating physicians or

either expert, on May 7, 2015, APS moved to submit Hewitt to both an

independent medical examination as well as a functional capacity evaluation.

MR67-68. Mr. Hewitt received treatment from numerous healthcare providers as a

result of his injuries. Before attempting to depose any of these doctors to ascertain

information concerning Mr. Hewitt’s medical condition, APS filed a motion with

the trial court demanding that Mr. Hewitt undergo an independent medical

examination (“IME”) as well as a functional capacity evaluation (“FCE”).

      Additionally, to date, APS has not deposed Dr. Roman nor Mr. McCoin.

Thus, Hewitt objected to APS’s requested IME and the FCE, because APS did not

seek less-intrusive means of obtaining information about Hewitt’s medical

condition prior to seeking to compel Hewitt to submit to these examinations as is

required by Texas law. Further, Hewitt argued APS failed to show it was legally

entitled to an FCE.

      Given, among other things, the early state of the case, the trial court had no

indication that APS had complied with its obligation to first seek less intrusive

means of obtaining medical information. Thus, the trial court reviewed the request




                                         4
for both an IME and a FCE and denied the requests. MR190. APS then filed the

pending petition for a writ of mandamus.

      It should be noted that in its writ for mandamus review, APS addresses

issues surrounding alleged entitlement to an IME. APS fails to fully address that it

moved the trial court for an IME and FCE. APS does not provide any case law to

support that it is legally entitled to an FCE, because it cannot. APS cannot single

out its request for the IME alone for analysis of an abuse of discretion. These were

not separate motions, but a single request coupling both exams together as

“physical examinations.” MR67-70. This request, which was denied is the basis of

this mandamus proceeding.




                                           5
                                    ARGUMENT

I.    Applicable Legal Standards

      A.    Mandamus

      “Mandamus relief is available when a trial court has committed an abuse of

its discretion for which there is no adequate remedy by appeal.” In re Dallas

Group of Am., Inc., 434 S.W.3d 647, 650 (Tex. App.—Houston [1st Dist.] 2014,

no pet.) (citing In re Odyssey Healthcare, Inc., 310 S.W.3d 419, 422 (Tex. 2010)).

See also In re Ten Hagen Excavating, Inc., 435 S.W.3d 859, 863 (Tex. App.—

Dallas 2014, no pet.) (citing CSR Ltd. v. Link, 925 S.W.2d 591, 596 (Tex. 1996))

(“Mandamus is an extraordinary remedy that is available only in limited

circumstances.”); Walker v. Packer, 827 S.W.2d 833, 840 (Tex. 1992) (same); In

re Prudential Ins. Co. of Am., 148 S.W.3d 124, 135-36 (Tex. 2004) (same); In re

H.E.B. Grocery Co., L.P., 13-15-00254-CV, 2015 WL 3637775, at *1 (Tex.

App.—Corpus Christi June 11, 2015, no pet.) (same). Additionally, the “heavy

burden” lies with the relator to establish both that the trial court abused its

discretion and that there is no adequate remedy by appeal. In re CSX Corp., 124

S.W.3d 149, 151 (Tex. 2003).

      B.    Abuse of Discretion

      “The scope of discovery largely rests within the discretion of the trial court.”

Ten Hagen, 435 S.W.3d at 865 (citing Ginsberg v. Fifth Court of Appeals, 686



                                          6
S.W.2d 105, 108 (Tex. 1985)). Thus, a trial court only “clearly abuses its discretion

if it reaches a decision that is so arbitrary and unreasonable that it amounts to a

clear and prejudicial error of law, or if it clearly fails to analyze the law correctly

or apply the law correctly to the facts.” H.E.B. Grocery, 2015 WL 3637775, at *1

(citing In re Cerberus Capital Mgmt., L.P., 164 S.W.3d 379, 382 (Tex. 2005)). See

also In re Thuesen, 14-13-00174-CV, 2013 WL 1461790, at *2 (Tex. App.—

Houston [14th Dist.] Apr. 11, 2013, no pet.) (same).

      Additionally, “[a] trial court does not abuse its discretion if it bases its

decision on conflicting evidence and some evidence supports the trial court’s

decision.” In re Le, 335 S.W.3d 808, 813 (Tex. App.—Houston [14th Dist.] 2011,

no pet.) (citing IKB Indus. (Nigeria) Ltd. v. Pro–Line Corp., 938 S.W.2d 440, 445

(Tex. 1997)). Thus, “In determining whether the trial court clearly abused its

discretion, [the reviewing court] may not substitute [its] judgment for that of the

trial court.” Id. (citing In re Sanders, 153 S.W.3d 54, 56 (Tex. 2004)). See also

Thuesen, 2013 WL 1461790, at *2 (“When reviewing the trial court’s decision for

an abuse of discretion, we may not substitute our judgment for that of the trial

court with respect to the resolution of factual issues or matters committed to the

trial court’s discretion.”); Ten Hagen, 435 S.W.3d at 865 (“In considering whether

a trial court has clearly abused its discretion with regard to a discovery order, the

reviewing court may not substitute its judgment for that of the trial court.”).



                                          7
      In other words, “Even if the reviewing court would have decided the issue

differently, it cannot disturb the trial court’s decision unless it is shown to be

arbitrary and unreasonable.” Walker, 827 S.W.2d at 839–40. Instead, the “relator

must establish that the trial court could reasonably have reached only one

decision.” Ten Hagen, 435 S.W.3d at 866.

      C.     Compelled Independent Medical Examinations
      “Rule 204.1(c) of the Texas Rules of Civil Procedure does not grant an

automatic right to obtain a physical or mental examination.”1 Ten Hagen, 435

S.W.3d at 866. Instead, “there must be greater showing of need to obtain a physical

or mental examination than to obtain other sorts of discovery.” Id. (citing

Schlagenhauf v. Holder, 379 U.S. 104, 118 (1964)); see also H.E.B. Grocery, 2015

WL 3637775, at *3 (same).

      Thus, to compel an independent examination, “[t]he party seeking the

examination must show both (1) good cause and (2) that the mental or physical

condition of a party is in controversy.” H.E.B. Grocery, 2015 WL 3637775, at *2

(citing Tex. R. Civ. P. 204.1(c)(1); Coates, 758 S.W.2d at 752; Ten Hagen, 435

S.W.3d at 866; In re Dallas Group, 434 S.W.3d at 651; In re Commitment of

Hatchell, 343 S.W.3d 560, 562-63 (Tex. App.—Beaumont 2011, orig.

proceeding)). “These requirements may not be met with ‘conclusory allegations’ in

1
  Clearly APS’s contention that motions to compel a physical examination are routine is
erroneous and misleading. See Pet. for Mandamus, 4.

                                          8
the movant’s pleadings or by “mere relevance to the case.” Id. (citing Coates, 758

S.W.2d at 751; In re Click, 442 S.W.3d 487, 491 (Tex. App.—Corpus Christi

2014, orig. proceeding); In re Transwestern Publ’g Co., 96 S.W.3d 501, 505 (Tex.

App.—Fort Worth 2002, orig. proceeding)).

      “The ‘good cause’ element requires a balancing of the competing interests of

the party’s right of privacy and the movant’s right to a fair trial.” H.E.B. Grocery,

2015 WL 3637775, at *3 (citing Coates, 758 S.W.2d at 753; In re Click, 442

S.W.3d at 491). Coates—the leading Texas Supreme Court opinion on this issue—

lays forth the following three prongs that must be satisfied to show good cause: (1)

the examination is relevant to issues that are genuinely in controversy in the case

and the examination would produce, or would likely lead to, relevant evidence; (2)

a reasonable nexus exists between the condition in controversy and the

examination sought; and (3) it is not possible to obtain the desired information

through means that are less intrusive than a compelled examination. Coates, 758

S.W.2d at 751. See also In re Transwestern Publ’g, 96 S.W.3d at 505; In re

Caballero, 36 S.W.3d 143, 144 (Tex. App.—Corpus Christi 2000, orig.

proceeding). Thus, “the ‘good-cause requirement is not a mere formality, but is a

plainly expressed limitation on the use of that Rule.’” Ten Hagen, 435 S.W.3d at

868 (quoting Schlagenhauf, 379 U.S. at 117-18).




                                         9
      While Texas case law is somewhat sparse when it comes to Rule 204.1,

federal cases provide helpful analysis. Ten Hagen, 435 S.W.3d at 868 n.1 (citing

Coates, 758 S.W.2d at 751) (“The Texas Supreme Court has concluded that

because the Texas rule governing mental and physical examinations was originally

derived from Rule 35 of the Federal Rules of Civil Procedure, federal courts’

construction of Rule 35 is helpful to an analysis of the Texas rule.”). Thus, federal

decisions will be referenced throughout this response.

II.   The trial court properly exercised its discretion when it denied APS’s
      motion to compel both an independent medical examination and a
      functional capacity evaluation.

      The central issue on mandamus is whether the trial court abused its

discretion when it denied APS’s motion to compel examination requested by APS

which included an IME coupled with a FCE. Plaintiff argued below, and does so

again, that an IME should be denied because APS has failed to show good cause,

and that APS was not entitled to a FCE. Thus, Plaintiff will not address whether his

injuries are in controversy. But as this Court is aware, even if a party’s injuries are

in controversy, this alone is not “enough to compel a physical examination under

Rule 204.1. Rule 204.1 also requires that the trial court find ‘good cause’ for the

examination.” Ten Hagen, 435 S.W.3d at 867 (citing Tex. R. Civ. P. 204.1(c)).

      “The ‘in controversy’ and ‘good cause’ requirements imposed by Rule 204.1

are the tools courts use in balancing the respective rights of the parties to privacy



                                          10
and to a fair trial.” Id. But “these two requirements are not met ‘by mere

conclusory allegations of the pleadings-nor by mere relevance to the case.’” Id.

(quoting Coates, 758 S.W.2d at 751); see also Schlagenhauf, 379 U.S. at 117-18.

      This is precisely where APS failed. While whether or not Plaintiff’s injuries

are “in controversy” has not been contested, APS failed to meet its “affirmative

burden” to prove to the Trial court that “good cause” exists to perform not only

one, but two independent examinations. See Tex. R. Civ. P. 204.1(c); Coates, 758

S.W.2d at 751. “In the absence of an affirmative showing of both prongs of the

test, a trial court may not order an examination.” Ten Hagen, 435 S.W.3d at 866

(citing Coates, 758 S.W.2d at 751). Thus, the Trial court did not abuse its

discretion because APS did not make an affirmative showing of “good cause.”

      As mentioned above, the following three prongs must be satisfied to show

good cause: (1) the examination is relevant to issues that are genuinely in

controversy in the case and the examination would produce, or would likely lead

to, relevant evidence; (2) a reasonable nexus exists between the condition in

controversy and the examination sought; and (3) it is not possible to obtain the

desired information through means that are less intrusive than a compelled

examination. Coates, 758 S.W.2d at 751. See also In re Transwestern Publ’g, 96

S.W.3d at 505; In re Caballero, 36 S.W.3d at 144; In re Click, 442 S.W.3d at 491.




                                        11
      Here, while APS never showed to the trial court what relevant evidence

would come from the examinations sought, more importantly—and dispositive

both here and to the Trial court—is the fact that APS has not shown the court it is

impossible to obtain the desired information through less intrusive means. In fact,

APS had not deposed any of Plaintiff’s treating physicians or experts. This fact

alone establishes that the trial court did not abuse its discretion.

      But even if this Court disagrees, the trial court still has the discretion to deny

an independent medical examination even when good cause is established. See

Stinchcomb v. United States, 132 F.R.D. 29, 30 (E.D. Pa. 1990) (“Even when good

cause is shown, whether to order a proposed examination is committed to the

discretion of the court.”); Hardy v. Riser, 309 F. Supp. 1234, 1241 (N.D. Miss.

1970) (citing Teche Lines v. Boyette, 111 F.2d 579 (5th Cir. Miss. 1940)) (“Even

when the ‘good cause’ and ‘in controversy’ requirements are met, it is still in the

sound discretion of the trial court whether to order the examination.”).

      Even Ten Hagen—the sole case APS relied on in its motion to compel—

acknowledges that “the ordinary meaning of the language of Rule 204.1 suggests

that the trial court is vested with discretion in determining whether to grant a

physical or mental examination under Rule 204.1.” Ten Hagen, 435 S.W.3d at 866.

See also In re Lambdin, No. 07–03–0328–CV, 2003 WL 21981975, at *4 (Tex.

App.—Amarillo Aug. 20, 2003, orig. proceeding) (“It is logical to construe the



                                           12
word ‘may’ as vesting the trial court with some range of permissiveness or

discretion.”).

      Thus, APS made no persuasive argument to the Trial court—and no

persuasive argument here—to justify an independent medical examination, let

alone establish that the trial court abused its discretion.

      A.     APS did not provide the trial court with evidence that an
             independent medical examination or functional capacity
             evaluation would provide relevant, discoverable evidence.
      APS never once showed the trial court what relevant evidence it hoped to

gain from forcing Plaintiff to submit to an IME or FCE. In fact, the only arguments

APS made were (1) “As the examinations sought by Defendant are not intrusive,

invasive, or unnecessarily physically uncomfortable, they should be allowed,” and

(2) “To hold otherwise would deprive Defendant the right to explore and develop

evidence that supports theories that contradict the theories espoused by Plaintiff’s

retained experts and thus, deprive Defendant the right to a fair trial.” MR70.

      These statements are nothing more than “mere conclusory allegations” and

do not establish this first prong. Ten Hagen, 435 S.W.3d at 867 (quoting Coates,

758 S.W.2d at 751) (holding that good cause is “not met ‘by mere conclusory

allegations of the pleadings-nor by mere relevance to the case.’”); see also

Schlagenhauf, 379 U.S. at 117-18. Thus, the trial court was well within its

discretion to deny APS’s motion to compel.



                                           13
      But even if this Court believes that APS satisfied the first prong, the trial

court still did not abuse its discretion because “[a] court is not required or even

permitted to order an examination simply because it finds the examination will

produce relevant evidence.” Ten Hagen, 435 S.W.3d at 869 (citing Schlagenhauf,

379 U.S. at 117-18). Additionally, “[t]he ‘good cause’ requirement of Rule 204.1

would be meaningless if mere relevance alone sufficed to establish good cause.”

Id. (citing Schlagenhauf, 379 U.S. at 117-18).

      B.     While there may be a nexus between Plaintiff’s injuries and an
             independent medical examination, this prong alone is insufficient
             to support a finding that the trial court abused its discretion.
      Similarly, APS’s nexus arguments are equally illogical. For example, APS

states that “it is no surprise that Plaintiff” did not challenge the relevant evidence

prong and the nexus prong. Pet. for Mandamus, 6-7. This statement misses the

point. It does not matter whether or not APS can prove relevant evidence or nexus

if it cannot show it could not obtain desired information through less intrusive

forms of discovery. See Coates, 758 S.W.2d at 751 (all three prongs required to

show good cause); In re Transwestern Publ’g Co., 96 S.W.3d at 505 (same); In re

Caballero, 36 S.W.3d at 144 (same); In re Click, 442 S.W.3d at 491 (same).

      To put it simply, the test for good cause isn’t a 1 out of 3 test, it isn’t even a

2 out of 3 test. To show good cause, APS had to show the trial court that it satisfied




                                          14
all three prongs. It didn’t do so in its motion to compel, and it didn’t do so here on

mandamus. Thus, the trial court was within its discretion to deny APS’s motion.

      C.     APS must seek to obtain the desired information through less
             intrusive forms of discovery before resorting to a compelled
             medical examination.
      Plaintiff argued in his response to APS’s motion to compel that APS must

seek the desired information through less intrusive forms of discovery before the

trial court could grant APS’s motion. MR140 (“The same information sought by

Defendant in its proposed examinations can be obtained through less intrusive

means,” and “Defendant’s experts are free to review the testing and medical

records utilized by Plaintiff’s physicians in forming their opinions and diagnoses

and conduct their own interpretations.”).

      Exhausting less intrusive discovery methods to obtain the desired

information is a well-established prong of the good cause analysis. “The final

element of good cause requires that it not be possible to obtain the information

sought by less intrusive means and that absent the examination the relator will not

be able to obtain a fair trial.” Ten Hagen, 435 S.W.3d at 869 (citing In re Buch, 05-

98-01665-CV, 1998 WL 908843, at *3 (Tex. App.—Dallas Dec. 31, 1998, no pet.).

See also MR69 (APS acknowledging it must show the trial court that it is not

possible to obtain the same information through less intrusive means).




                                            15
      Additionally, Ten Hagen—the only case APS cited to in its motion to

compel—lists numerous other discovery methods that Texas courts have identified

that are less intrusive means of seeking the desired information. For example,

“deposing the opposing party’s doctors and attempting to obtain copies of medical

records.” 435 S.W.3d at 870 (citing In re Caballero, 36 S.W.3d at 145). The

movant may also rely “on existing expert witness reports already filed in the case,”

as most defense experts do. Id. (citing In re Bell Hot Shot Co., No. 14–13–00877–

CV, 2014 WL 260116, at *2 (Tex. App.—Houston [14th Dist.] Jan. 9, 2014, orig.

proceeding) (mem. op.)).

      Likewise, in Marroni v. Matey, plaintiffs sought an independent examination

of the defendant. 82 F.R.D. 371, 372 (E.D. Pa. 1979). The court noted that “[o]ne

factor that is relevant to the determination of ‘good cause’ is the possibility of

obtaining the desired information by other means.” Id. (citing Schlagenhauf, 379

U.S. at 118). The court denied the plaintiffs’ request for independent examination

because the “[p]laintiffs have made no showing that the information they seek

cannot be obtained by other discovery techniques.” Id. The court went on to state

they it must deny the motion “[u]ntil other methods are attempted,” and that the

defendant’s “privacy interests require, at a minimum, that less intrusive methods of

discovery first be explored.” Id.




                                        16
      Similarly, in In re Thuesen, the court acknowledged that the relator was

“entitled to seek discovery from their identified medical providers.” 2013 WL

1461790, at *3. However, the court held that the relator “ha[d] not established that

discovery from the identified medical professional will be insufficient,” and that

“[t]he privacy interests of the real party plaintiffs require[d] relator to exhaust less

intrusive means of discovery before seeking compulsory mental examinations.” Id.

(citing Coates, 758 S.W.2d at 753).

      Here, in light of the well-settled case law in this area, APS understandably

failed to show the trial court that it exhausted less intrusive discovery measures

because APS had not deposed Plaintiff’s treating physicians, and has still not

deposed Plaintiff’s experts. Additionally, APS gave no reason why the medical

records and expert reports provided are inadequate to obtain the information APS

sought. Thus, it was within the trial court’s discretion to deny APS’s motion to

compel.

      Moreover, the trial court’s decision was within its discretion for the

following additional three reasons: (1) Compelled medical examinations intrude on

the injured party’s privacy; (2) APS did not provide the trial court with any

indication of what it was looking for that could not be determined through less

intrusive discovery; and (3) good cause is always required before a court orders an

independent medical examination.



                                          17
         1. Compelled medical examinations intrude on the injured party’s
            privacy.

      Plaintiff’s right of privacy must be balanced with APS’s desire for additional

discovery. Texas courts have repeatedly recognized this balance. “Good cause

requires a balancing of the competing interests of the party’s right of privacy and

the movant’s right to a fair trial.” In re Bell Hot Shot Co., 2014 WL 260116, at *2

(citing Coates, 758 S.W.2d at 753); see also Ten Hagen, 435 S.W.3d at 866-67)

(quoting In re Buch, 1998 WL 908843, at *3) (“‘When a party’s mental or physical

condition is implicated, the court must balance the party’s right of privacy and the

movant’s right to a fair trial.’”); H.E.B. Grocery, 2015 WL 3637775, at *3 (citing

Coates, 758 S.W.2d at 753; In re Click, 442 S.W.3d at 491) (same).

      Despite the well-settled fact that independent medical examinations are

intrusive, in its motion to compel, APS makes the erroneous argument that “[a]s

the examinations sought by Defendant are not intrusive, invasive, or unnecessarily

physically uncomfortable, they should be allowed.” MR70. APS continues this

erroneous argument in its petition for mandamus by stating that “it is well settled

that where the intended examination is not intrusive, 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

discover facts that may contradict the opinions of the opposing party’s expert

witnesses.” Pet. for Mandamus, P.8.


                                        18
      The only case APS uses to support this contention is once again Ten Hagen.

See MR69-70 (APS relying on Ten Hagen to erroneously argue that the requested

examinations are not intrusive). While Ten Hagen does state that “where the

intended examination is not intrusive, 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

discover facts that may contradict the opinions of the opposing party’s expert

witnesses,” 435 S.W.3d at 870, as mentioned above, the types of examinations

requested by APS are intrusive under Texas law. In fact, Ten Hagen states that “an

order requiring a medical examination is an intrusive order.” 435 S.W.3d at 866.

Thus, the one sentence in Ten Hagen that APS relies on is irrelevant and in no way

establishes that the trial court abused its discretion.

      Furthermore, APS is requesting not only an IME, but also a functional

capacity evaluation which necessarily goes beyond the examination typically

included with an IME. A functional capacity evaluation requires an individual to

submit to hours or days of physical testing and strenuous activities, almost

exclusively for purposes of Workers’ Compensation disability determination. APS

has failed to give any explanation at all as to why Hewitt, an employee of a non-

subscriber to Texas Workers’ Compensation, should be compelled to submit to a

FCE. App. 1: Pl.’s First Am. Pet., ¶ 9



                                           19
      Additionally, even if there was a conflict in the law in Texas about whether

an independent medical examination was intrusive—which there is not—this Court

has held that “[a] trial court does not abuse its discretion if it bases its decision on

conflicting evidence and some evidence supports the trial court’s decision.” In re

Le, 335 S.W.3d at 813 (citing IKB Indus., 938 S.W.2d at 445).

      In sum, Texas law establishes that independent medical examinations are an

invasion of privacy. But even if this Court agrees with APS’s argument that the

examinations sought are somehow not invasive, at a minimum, the trial court did

not abuse its discretion because of the conflict in the law.

          2. APS did not provide the trial court with any indication of what it
             was looking for that could not be determined through less
             intrusive discovery.
      Next, APS did not provide the trial court with any details regarding what

information could not be obtained by methods other than an independent medical

examination. The burden is on APS to establish the record to both the trial court

and to this court on mandamus. See H.E.B. Grocery, 2015 WL 3637775, at *3

(citing Tex. R. App. P. 52.3(k)(1), 52.7(a); Walker, 827 S.W.2d at 837). APS failed

to carry its burden.

      For example, APS only made the following arguments relating—to use the

word loosely—to why its experts needed to examine Plaintiff:

           APS’s experts “would be precluded from examining matters not
            covered by Plaintiff’s experts.” MR180.


                                          20
          Plaintiff’s experts “would have a benefit not afforded
           Defendant’s retained expert and that such benefit would bolster
           his retained expert’s reliability as compared to any
           controverting expert designated by Defendant.” Pet. for
           Mandamus, 3-4.
          The IME “is needed for Defendant to fairly defend itself against
           damage claims that Plaintiff intends to prove through its own
           medical expert who has access to a physical examination.” Pet.
           for Mandamus, 4.
          Dr. Roman will look more credible “[b]ecause—as made clear
           in his expert disclosure—Plaintiff’s medical expert will be
           telling the jury that his opinions are based upon his own
           medical examination of Plaintiff—something Defendant’s
           expert will not be able to do if the order is allowed to stand.”
           Pet. for Mandamus, 5.
          And “that ‘the information’ sought is not simply the opinions of
           Plaintiff’s treating physicians, or even his own retained medical
           expert. Instead, “the information” sought—needed, in fact—is a
           first-hand medical examination upon which Defendant’s
           retained expert can base his opinions—just like Plaintiff’s
           retained expert’s intends to do.” Pet. for Mandamus, 7.

      These arguments fail for multiple reasons. First, these are nothing more than

conclusory allegations, which are not enough to establish good cause. Ten Hagen,

435 S.W.3d at 867 (“these two requirements are not met ‘by mere conclusory

allegations of the pleadings-nor by mere relevance to the case.’”) Id. (quoting

Coates, 758 S.W.2d at 751); see also Schlagenhauf, 379 U.S. at 117-18. Second,

Dr. Roman’s report was not simply based on his physical examination of Mr.

Hewitt. Instead, Dr. Roman performed a comprehensive review of Mr. Hewitt’s

medical records and also used his own training, knowledge, and expertise as it

relates to reviewing the medical records. See MR18-30. Third, APS’s own experts

                                        21
provide no affidavits or any other explanation as to why they cannot base their

opinions on the medical records provided—as most defense experts do. Instead,

APS merely states for the court that basically, it’s just not fair.

      Thus, it was within the trial court’s discretion to deny APS’s motion to

compel as APS provided the trial court with nothing more than conclusory

allegations.

          3. Good cause is always required before a court orders an
             independent medical examination.
      Finally, APS’s failure to establish that it sought less intrusive discovery

before seeking to compel an independent examination is fatal because good cause

is always required under Rule 204.1. APS argued in its motion to compel that “[a]

Plaintiff in a negligence action who claims physical injury as a result of a

Defendant’s negligence places his physical injury clearly in controversy and

provides the Defendant with good cause to determine the existence and extent of

such asserted injury simply by seeking recover for the alleged physical injury.”

MR68. This is far from true.

      For example, in In re Transwestern Pub. Co., 96 S.W.3d at 506, the court

held that the designation of an expert was insufficient to meet the good cause

requirement under Rule 204.1. Similarly, in Ten Hagen, 435 S.W.3d at 862-63—

the case APS relies on to make this erroneous argument—the plaintiff designated

his treating physician as a medical expert to testify at trial. Despite this, the court


                                           22
held that the clear language of Rule 204.1 required the movant to also show good

cause under the three-part test. Id. at 868-70.

       Additionally, in Sherwood Lane Associates v. O'Neill, 782 S.W.2d 942, 943

(Tex. App.—Houston [1st Dist.] 1990, no writ) the court allowed an independent

medical examination precisely because defendants were unable to obtain all of the

information necessary through less intrusive means, thus satisfying the third prong.

Specifically, the minor plaintiff in Sherwood was being treated by two separate

psychologists, and during the discovery period, the defendants were unable to

obtain the treatment notes of one of the plaintiff’s treating physicians and

designated experts. The court in Sherwood was clear that the opinion was based on

the “facts and circumstances” of that case. Id. at 945.

       The federal courts2 also recognize that good cause may exist in the following

circumstances. First, good cause may exist when the movant can prove that

deposing other witnesses would not provide the information sought. Gavin v.

Hilton Worldwide, Inc., 291 F.R.D. 161, 165 (N.D. Cal. 2013) (holding that good

cause existed when defendant could not “depose any of [plaintiff’s] treaters in

order to ascertain her continuing emotional distress”). Second, good cause may

exist when there is a substantial time between the examination and trial. Sadler v.


2
  As mentioned previously, Texas courts look to the federal courts analyzing Rule 35 because
Rule 35 contains the same “good cause” requirement as Rule 2014.1. See Ten Hagen, 435
S.W.3d at 868.

                                            23
Acker, 263 F.R.D. 333, 336 (M.D. La. 2009) (holding good cause may be shown

when a “‘substantial time lag’ will occur between the initial examinations . . . and

the time of trial”). Third, good cause may exist when the party’s health changes

significantly. Diaz v. Con-Way Truckload, Inc., 279 F.R.D. 412, 424 (S.D. Tex.

2012) (holding that when the plaintiff experienced “significant changed

circumstance [in health] constituting sufficient ‘good cause’ to warrant an

independent eye examination”).

      In contrast, APS’s motion to compel is much more similar to the many cases

where courts have held good cause did not exist. For example, in In re Bell Hot

Shot Co., a plaintiff submitted to an evaluation related to a brain injury. 2014 WL

260116, at *1. The evaluation indicated that he was not impaired as a result of the

accident. Id. Yet, the defendant requested that the plaintiff be compelled to

undergo another medical examination. Id. The court found no abuse of discretion

in the trial court’s denial of another exam. Id. at *2. Specifically, looking at the

third element in the Coates analysis, the court found that there was already an

exam that undermined the plaintiff’s claim that he suffers from mental injuries

such that there was not good cause for another exam. Id.

      Additionally, in Thuesen, the court held that there was no good cause when

the relator did “not establish that discovery from the identified medical

professional will be insufficient,” and the relator was required “to exhaust less



                                        24
intrusive means of discovery before seeking compulsory mental examinations.”

2013 WL 1461790, at *3. See also Caballero, 36 S.W.3d at 143 (no good cause

when movant did not depose physicians, obtain copies of medical records, and

failed to articulate why the further examination would be relevant); Moore v.

Calavar Corp., 142 F.R.D. 134, 135-36 (W.D. La. 1992) (holding that defendant

failed to show good cause for second examination when no allegations “of a

change in the plaintiff’s complaints or in the clinical findings,” and that while the

defendant “is equally entitled to be well prepared to address the issue of the

plaintiff’s physical condition and need for surgery at trial, there had been no

showing to date that a second physical examination . . . would shed any clarifying

light upon the dispute”); Acosta v. Tenneco Oil Co., 913 F.2d 205, 209 (5th Cir.

1990) (holding that an independent examination was improper because the

defendant “already ha[d] the information it seeks . . . without a repetitive

examination” when the defendant was supplied with a copy of the test performed

by plaintiff’s expert, plaintiff’s expert’s report, and defendant had already deposed

plaintiff’s expert as well as plaintiff”).

       APS provided the trial court with no evidence to suggest that even one of

these situations is present in this case. In fact, as noted above, many courts have

repeatedly held that good cause does not exist when the moving party does not




                                             25
exhaust less intrusive methods, as APS failed to do here. Thus, it was within the

trial court’s discretion to deny APS’s motion.

      D.     APS failed at the trial court level, as well as in their writ for
             mandamus, to show they are entitled to a functional capacity
             exam and the trial court’s denial of such was an abuse of
             discretion.
      As noted above, the basis of this mandamus proceeding is APS’s request for

an IME (by a Doctor retained by the Defendant) coupled with an FCE. It should be

noted that in their writ for mandamus, APS fails to fully address that it moved the

trial court for an IME and a FCE. Notably, the Courts do not force Plaintiffs to

undergo FCE’s. APS only addresses issues as to an IME in the appeal, but does

not provide case law showing that it is legally entitled to compel a FCE. In fact, at

the trial court level the only support provided was a 2011 online article titled “fact

sheet” of “occupational therapy’s role in functional capacity evaluation.” MR 184-

85. APS fails throughout its motion to cite any good cause for either examination

other than the conclusory allegations of their attorney.

      Further, APS cannot single out its request for the IME alone for analysis of

an abuse of discretion standard for this mandamus proceeding. This is because the

trial court denied APS’s request for “physical examinations” which included not

only an IME but also an FCE. MR67-70. APS did not file separate motions

requesting each of these tests but a single request coupling both exams together as

“physical examinations.” Id. This request, which was denied is the basis of this


                                         26
mandamus proceeding. The trial Court did not abuse it’s discretion for such an

overbroad and intrusive examination, without any showing of good cause or the

slightest attempt to obtain the information from less intrusive means prior to

requesting the Court to compel.

      Surely, APS’s failure to address half of the relief requested made the basis of

this mandamus proceeding cannot be found to be a sufficient showing of an abuse

of discretion. Simply put, APS cannot isolate individual parts of its single request

made for multiple examinations. Silence as to half of APS’s request for an

intrusive FCE cannot be held as sufficient in showing an abuse of discretion.

      As APS has failed to fully detail that they were legally entitled to a FCE, and

that the trial court abused its discretion in denying “physical examinations”

requested, which included the requested FCE, the Court should find that APS has

failed to meet their heavy burden showing an abuse of discretion has occurred.

      E.     Even Ten Hagen—the sole case cited by APS in its motion to
             compel—supports the trial court’s decision.
      As noted repeatedly in this response, APS only relied on the Ten Hagen case

in its motion to compel. MR67-70. However, Ten Hagen is easily distinguishable.

For example, in Ten Hagen, the court was provided with evidence that (1) the

plaintiff’s expert’s notes and report were incomplete, 435 S.W.3d at 870; (2) the

defense expert “did not feel confident in relying on [the plaintiff’s expert’s]

examination,” Id.; (3) the plaintiff’s expert’s report was the first indication of any


                                         27
sensory loss despite previous examinations, Id.; (4) the plaintiff’s expert’s opinions

“did not ‘fit together’ and were not ‘all reasonably considered to be sequella of the

motor vehicle collision.’” Id.

      Additionally, the court noted that “[t]he facts of this case [were] unique”

because the defendant “suffered the untimely death of its sole expert witness

shortly before the close of the discovery period after the treating physician

submitted a report that suggested even he could not confidently assess the full

extent of [plaintiff’s] future need for additional treatment.” Id.

      The court also noted that the future damages could not be assessed “by

simple resort to review of the medical records . . . , examination of the injured

appendage during a deposition . . . , or further development of [plaintiff’s expert’s]

opinion during a deposition.” Id. at 870-71.

      Here, none of the evidence listed by the Ten Hagen court were present. APS

has never provided evidence that Dr. Roman’s report was incomplete, that the

defense experts were not confident relying on Dr. Roman’s report, that Dr.

Roman’s report listed new injuries not previously addressed, or that Dr. Roman’s

report “did not fit together.” In addition, APS has not shown how the numerous

treating Doctors that have treated Plaintiff were incomplete in their own medical

records, or that their retained Doctors are not confident in relying on the numerous

treating physicians records. Likewise, none of APS’s experts have died during this



                                           28
case, and APS has provided no evidence or argument that its experts could not

obtain the necessary information through a review of the medical records of

treating Doctors or through depositions of the treating Doctors.

      Thus, Ten Hagen—the only case cited by APS in its motion to compel—

supports the trial court’s finding that there was no good cause.

      F.     Any arguments made regarding Plaintiff’s economist Kenneth
             McCoin are irrelevant and misguided.

      Finally, the fact that APS references McCoin’s report at all is confusing and

irrelevant because McCoin is an economist and never examined Plaintiff to create

his report. Thus, any expert hired by APS should not be required to examine

Plaintiff to respond to McCoin’s report.

      Additionally, in Storms v. Lowe’s Home Centers, Inc., the court addressed

this very issue. 211 F.R.D. 296, 296-97 (W.D. Va. 2002). In Storms, the plaintiff

was injured while shopping and sought damages for lost wages and earning

capacity among other things. Id. at 296. To substantiate these claims, the plaintiff

“retained an expert vocational rehabilitation counselor to opine on matters related

to lost wages and lost earning capacity.” Id. The retained expert interviewed the

plaintiff and reviewed records to issue a report. Id. at 296-97. In response, Lowe’s

hired a vocational expert as well. Id. at 297.

      The plaintiff provided Lowe’s expert with a copy of the report, all of the

relevant medical records, as well as all the other discoverable information


                                           29
requested, but declined to be interviewed by the Lowe’s expert. Id. Additionally, at

the time of the hearing, the plaintiff had not yet been deposed. Id.

      With these facts in mind, the court held that an additional vocational

examination was not appropriate under Rule 35, but went on to state that the

defendant had all of the information it needed based on the plaintiff’s ability to

work in the future. Id. at 298. The court reasoned that an additional examination

under Rule 35 was not appropriate because the “Plaintiff ha[d] provided Lowe’s

with a copy of all medical records, a copy of the report from his vocational expert,

his tax records, and all other discoverable material requested by Lowe’s.” Id. The

court also reasoned that Lowe’s still had the opportunity to depose the plaintiff and

at the deposition “counsel [would] be able to examine the plaintiff on all matters

relating to his functional capacity.” Id.

      Storms is instructive here. In fact, unlike the plaintiff’s expert in Storms,

here, McCoin did not physically examine or meet with Mr. Hewitt to formulate

economic opinions. Additionally, APS has been provided with all of the same

information as the defendant in Storms. Thus, any arguments made by APS

relating to McCoin’s report are irrelevant at best and instead support the trial

court’s decision to deny APS’s motion to compel.




                                            30
                                     CONCLUSION

      The trial court made the right decision when it denied APS’s attempt to

compel a medical exam. At a minimum, the trial court acted within its broad

discretion and did not act arbitrarily or unreasonably when it made its factual

determination that APS did not meet its burden on the good cause requirement to

obtain two medical examinations.

                                  PRAYER FOR RELIEF

      The Court should deny APS’s Petition for Mandamus, set aside its stay order

and allow the trial court to proceed as scheduled. Plaintiff requests all other relief

to which he is justly entitled.




                                         31
Respectfully submitted,

ARNOLD & ITKIN, LLP

By:      /s/ J. Kyle Findley
         Kurt B. Arnold
         SBN: 24036150
         karnold@arnolditkin.com
         J. Kyle Findley
         SBN: 24076382
         kfindley@arnolditkin.com
         Kala Flittner Sellers
         SBN: 24087519
         ksellers@arnolditkin.com
6009 Memorial Dr.
Houston, TX 77007
(713) 222-3800
(713) 222-3850 (Fax)

Counsel for Real Party in   Interest,
Tremaine Hewitt




32
                          CERTIFICATE OF SERVICE

      I hereby certify that on October 30, 2015, a true and correct copy of the
above and foregoing Response to Petition for Writ of Mandamus was forwarded to
all counsel of record by the Electronic Filing Service Provider, if registered,
otherwise by email, as follows:

                            Donald M. Hudgins
                            Michael D. Hudgins
                             Steven F. Hudgins
              The Hudgins Law Firm, A Professional Corporation
                       24 Greenway Plaza, Suite 2000
                           Houston, Texas 77046

                              Charles A. Sturm
                              Sturm Law, PLLC
                          723 Main Street, Suite 330
                            Houston, Texas 77002

                           Attorneys for Relator,
                       Advanced Powder Solutions, Inc.

                            Honorable Kyle Carter
                              125th District Court
                                Harris County
                            201 Caroline, 10th Floor
                             Houston, TX 77002



                                        /s/ J. Kyle Findley
                                        J. Kyle Findley




                                      33
                         CERTIFICATE OF COMPLIANCE
      This brief complies with the type-volume limitation of Tex. R. App. P. 9.4
because it contains 8,467 words, excluding the parts of the brief exempted by Tex.
R. App. P. 9.4(i)(2)(B).




                                       34
                                   APPENDIX

TAB DOCUMENT

1.   Plaintiff’s First Amended Petition




                                          35
Tab 1
                                                                                                9/28/2015 11:53:01 AM
                                                                             Chris Daniel - District Clerk Harris County
                                                                                                Envelope No. 7122087
                                                                                                         By: Julio Garcia
                                                                                        Filed: 9/28/2015 11:53:01 AM

                                  CAUSE NO. 2014-16020

Tremaine Hewitt                             §              IN THE DISTRICT COURT OF
                                            §
       Plaintiff                            §
                                            §
v.                                          §              HARRIS COUNTY, TEXAS
                                            §
Advanced Powder Solutions, Inc.,            §
Dean Baker, and Martha E. Baker             §
                                            §
       Defendants.                          §              125th JUDICIAL DISTRICT

                             Plaintiff’s First Amended Petition

TO THE HONORABLE JUDGE OF SAID COURT:

       COMES NOW, Plaintiff Tremaine Hewitt, complaining of Advanced Powder

Solutions, Inc., Dean Baker, and Martha E. Baker, respectfully showing the Court the

following:

                                             I.
                                      Nature of Action

      1.      This is an action arising under the common law of the State of Texas.

                                             II.
                                          Discovery

       2.     Plaintiff intends to conduct discovery under Discovery Level 2 pursuant to

TEX. R. CIV. P. 190.3.

                                             III.
                                   Jurisdiction and Venue

       3.     The Court has jurisdiction over this case because Plaintiff seeks damages well

within the jurisdictional limits of the Court, and Defendants are citizens of Texas.

       4.     Venue is proper in Harris County because a substantial part of the events or

omissions underlying Plaintiffs’ claims occurred in Harris County. See TEX. CIV. PRAC. &
REM. CODE 15.002(a)(1). Further Defendants reside in Harris County. TEX. CIV. PRAC. &

REM. CODE 15.002(a)(2).

                                              IV.
                                             Parties

         5.    Plaintiff is a resident of Texas.

         6.    Defendant, Advanced Powder Solutions, Inc. is a Texas company that has

made an appearance in this case.

         7.    Defendant, Dean Baker, is a Texas citizen and may be served through personal

delivery to 14102 Halprin Creek Drive, Cypress, TX, or wherever he may be found.

         8.    Defendant, Martha E. Baker, is a Texas citizen and may be served through

personal delivery to 14102 Halprin Creek Drive, Cypress, TX, or wherever she may be

found.

                                               V.
                                              Facts

         9.    On or about August 28, 2013, Plaintiff was employed by Advanced Powder

Solutions, Inc. (“APS”), a non-subscriber to Texas Workers’ Compensation. Plaintiff was

working at APS’s facility in front of a reactor on a ladder when a co-worker began

manipulating valves on the reactor. This caused a blast and caused Plaintiff to fall off the

ladder and into a fire. Plaintiff suffered severe burns and orthopedic injuries as a result.

Plaintiff had to be life-flighted from the scene, and has already undergone multiple surgeries.

                                              VI.
                                        Causes of Action

                              Negligence and Gross Negligence

         10.   Plaintiff repeats and realleges each allegation contained above.


                                                   2
       11.    Plaintiff sustained serious injuries because of Defendants’ negligence and

gross negligence evidenced by Defendants’:

        Failure to properly train its employees;

        Failure to properly supervise its employees;

        Use of the reactor;

        Failure to have safe policies and procedures for the work Plaintiff was doing when
         he suffered injuries;

        Failure to provide a safe work place;

        Other acts deemed negligent and grossly negligent.

       12.    As a result of Defendants’ negligence and gross negligence, Plaintiff suffered

severe physical injuries. Plaintiff is entitled to recover damages for his injuries. Defendants’

actions were done with a reckless disregard to a substantial risk of severe bodily injury. As

such, Plaintiff is entitled to exemplary damages.

                                            VII.
                               Joint and/or Vicarious Liability

       13.    Plaintiff repeats and realleges each allegation contained above.

       14.    For the following reasons based on information and belief, Defendant APS’s

corporate form should be disregarded to hold Defendants Dean Baker and Martha E. Baker

vicariously or jointly liable to Plaintiff for APS’s wrongful conduct:

              a.      APS is a mere sham, organized and operated by Dean Baker and

Martha E. Baker in their individual capacity to perpetrate fraud upon Plaintiff and potentially

other unsuspecting persons. Defendants made material representations to Plaintiff that were

false when made and which Defendants knew were false or made recklessly, and/or


                                               3
Defendants had a duty to disclose but failed to disclose material facts to Plaintiff, knowing

Plaintiff did not know and did not have an equal opportunity to discover those facts.

Specifically, Defendants made misrepresentations and/or omissions about APS’s corporate

structure and finances and made these material misrepresentations and/or omissions with the

intent to induce Plaintiff to delay in asserting his negligence and gross negligence causes of

action against Dean Baker and Martha E. Baker, individually.               Plaintiff relied to his

detriment on those misrepresentations and/or omissions.

              b.      Dean Baker and Martha E. Baker are each the “alter ego” of APS and

APS was and is organized and operated as a mere tool and/or business conduit for the Baker

Defendants’ personal benefit and advantage. Dean Baker and Martha E. Baker, individually,

have at all times exercised total dominion and control over APS, and have exercised such

control in a manner indistinguishable from his and her own personal affairs. Dean Baker and

Martha E. Baker were the first and, Plaintiff believes, the only directors of APS. Dean Baker

and Martha E. Baker own a majority of the stocks issued and have maintained complete

corporate ownership. Dean Baker and Martha E. Baker have also commingled their personal

funds with corporate funds and have paid corporate debts with personal checks.

              c.      Dean Baker and Martha E. Baker are using APS’s corporate fiction as a

means of evading an existing legal obligation, namely, civil liability for negligence and gross

negligence that injured Plaintiff and caused Plaintiff to incur damages.

              d.      Dean Baker, individually, intentionally operated and continues to

operate APS with inadequate capitalization. Specifically, APS operates its business with

insufficient assets to satisfy potential debts and liabilities associated with running its

business. Because Dean Baker operated and continues to operate APS with inadequate
                                               4
capitalization, equity dictates that Dean Baker, in his individual capacity, be held vicariously

liable to Plaintiff for all of his damages alleged herein.

                                              VIII.
                                     Statute of Limitations

       15.     Plaintiff repeats and realleges each allegation contained above.

       16.     If Defendants assert statute of limitations as an affirmative defense to any of

the causes of action asserted above, the affirmative defense fails for one or more of the

following reasons:

       17.     The applicable statute of limitations was tolled because Defendants

fraudulently concealed facts pertaining to the true identities of the Defendants. Through no

fault of Plaintiff’s, Defendants withheld documents evidencing APS’s corporate structure,

financial information, and undercapitalization until this month, September 2015, which was

about eight months after Plaintiff’s most recent discovery request and only a few weeks after

the two-year anniversary of the accident giving rise to this lawsuit.        Defendants made

material representations to Plaintiff that were false when made and which Defendants knew

were false or made recklessly, and/or Defendants had a duty to disclose but failed to disclose

material facts to Plaintiff, knowing Plaintiff did not know and did not have an equal

opportunity to discover those facts. Defendants made these material misrepresentations

and/or omissions with the intent to induce Plaintiff to delay in asserting his negligence and

gross negligence causes of action against Dean Baker and Martha E. Baker, individually.

Defendants had actual knowledge of their misconduct yet actively suppressed the truth to

conceal it. Plaintiff exercised reasonable diligence to discover the information Defendants

were concealing by seeking such information through his discovery requests in this lawsuit.


                                                 5
Plaintiff reasonably relied on Defendants’ misrepresentations and/or omissions to his

detriment.

       18.     The applicable statute of limitations against Dean Baker and Martha E. Baker

was tolled as of the date Plaintiff filed suit against APS because Dean Baker and Martha E.

Baker are the alter ego of APS and are vicariously liable defendants.

       19.     The applicable statute of limitations was tolled for any and all periods of time

that Dean Baker and/or Martha E. Baker were absent from the State of Texas. Upon

information and belief, Dean Baker and Martha E. Baker were absent from the state for a

sufficient period of time during the limitations period to preclude any defense based on

statute of limitations.

       20.     Defendants are equitably estopped from asserting a limitations defense to any

of Plaintiff’s claims because Defendants, acting with actual or constructive knowledge of the

facts regarding APS’s corporate structure and finances, materially misrepresented those facts

to Plaintiff and/or concealed those facts from Plaintiff with the intent to induce Plaintiff to

rely on Defendants’ material misrepresentations and/or omissions and delay in filing suit

against Dean Baker and Martha E. Baker, individually. Plaintiff neither had knowledge of

the truth nor means of obtaining knowledge of the truth, and he relied on Defendants’

material misrepresentations and/or omissions to his detriment.

                                             IX.
                                            Prayer

       21.     Plaintiff prays for relief and judgment as follows:

               a.   Compensatory damages against each Defendant;

               b.   Actual damages, such as past and future economic damages, past and
                    future medical bills, past and future pain and suffering, past and future
                                               6
     impairment, past and future disfigurement, past and future mental
     anguish;

c.   Consequential damages;

d.   Exemplary damages;

e.   Interest on damages (pre- and post-judgment) in accordance with law;

f.   Such other and further relief as the Court may deem just and proper;

g.   Attorneys’ fees.

                             Respectfully Submitted,

                             ARNOLD & ITKIN LLP

                             /s/ Kurt Arnold
                             _______________________________
                             Kurt B. Arnold
                             SBN: 24036150
                             karnold@arnolditkin.com
                             J. Kyle Findley
                             SBN: 24076382
                             kfindley@arnolditkin.com
                             Kala F. Sellers
                             SBN: 24087519
                             ksellers@arnolditkin.com
                             6009 Memorial Drive
                             Houston, Texas 77007
                             Tel: 713.222.3800
                             Fax: 713.222.3850
                             e-service@arnolditkin.com

                             ATTORNEYS FOR PLAINTIFF




                                7
                              CERTIFICATE OF SERVICE

        I hereby certify that a true and correct copy of the above and foregoing document has
been forwarded to all counsel of record in accordance with the Texas Rules of Civil Procedure
on this 28th day of September, 2015.

       Steven F. Hudgins
       The Hudgins Law Firm, A Professional Corporation
       24 Greenway Plaza, Suite 2000
       Houston, Texas 77046

       Counsel for Defendant
       Advanced Powder Solutions, Inc.


                                          /s/ Kyle Findley
                                          J. Kyle Findley




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