                                                                                  ACCEPTED
                                                                              04-15-00553-CV
                                                                  FOURTH COURT OF APPEALS
                                                                       SAN ANTONIO, TEXAS
                                                                         9/4/2015 11:33:49 AM
                                                                               KEITH HOTTLE
                                                                                       CLERK

                           04-15-00553-CV
                    NO. _______________________

                                                       FILED IN
                                                4th COURT OF APPEALS
                                                 SAN ANTONIO, TEXAS
                     IN THE COURT OF APPEALS    09/4/2015 11:33:49 AM
               FOR   THE FOURTH DISTRICT OF TEXAS KEITH E. HOTTLE
                                                         Clerk
                           AT SAN ANTONIO


                      IN RE: RUBEN GONZALEZ,

                                            Relator.


            RELATOR’S EMERGENCY MOTION FOR STAY
                  OF MEDICAL EXAMINATION


TO THE HONORABLE JUSTICES OF THE COURT OF APPEALS:

     RUBEN GONZALEZ, Relator, files this his Emergency Motion for Stay

of Medical Examination and would show the Court the following:

                                   I.

                         THE ORDER IN ISSUE

     On August 25, 2015, Respondent signed an order which compels

Relator to submit to a medical examination to be conducted by a doctor

retained by Real Parties in Interest Premier Eagle Ford Services, Inc.

(“Premier Eagle”) and Abel Alvarado Casillas (“Casillas”).   The medical

examination is ordered to take place at 1:30 p.m. on September 9, 2015 in


                                   -1-
San Antonio.      (See Exhibit “A”).     Gonzalez lives in Laredo, which is

approximately 150 miles away. (MR 94).

      Respondent is the Honorable Monica Z. Notzon, judge of the 111th

Judicial District Court of Webb County, Texas. (Ex. “A”).

                                        II.

                                BACKGROUND

      On or about February 14, 2013, Relator, Ruben Gonzalez (“Gonzalez”),

was driving westbound on FM 469 in Cotulla, La Salle, County, Texas.

Casillas was driving a truck owned by Premier Eagle. Casillas failed to yield

the right of way and turned in front of Gonzalez’s vehicle, causing him to veer

to his right and strike the vehicle driven by Martin Garcia, Jr., a Plaintiff in the

underlying lawsuit who is not a party to this original proceeding. As a result

of the collision, Gonzalez suffered severe mental and physical injuries. (MR

95). Gonzalez was initially brought into this suit as a Defendant, but he has

filed cross-claims against Premier Eagle, Casillas, and one other party not

present for this proceeding. (MR 3, 94).

      During the discovery stage of the underlying lawsuit, one of Gonzalez’s

treating physicians, Dr. Gerardo Zavala, recommended that Gonzalez

undergo surgery which would involve the fusing and removal of four cervical


                                        -2-
discs in his neck (the “4-disc surgery”). (MR 71-72). Premier Eagle and

Casillas questioned Dr. Zavala about the 4-disc surgery in his deposition of

February 23, 2015. (Id.).

       Thereafter, Gonzalez obtained a second opinion from Dr. Alejandro

Betancourt. (RR 12). Dr. Betancourt advised Gonzalez that he should have

a single disc replacement surgery. (RR 12; MR 57, 59). Gonzalez decided

to have the single disc surgery, and counsel for Gonzalez informed counsel

for Premier Eagle and Casillas by email dated May 22, 2015, that Gonzalez

“is going to move forward with surgery.” (MR 79). Counsel for Gonzalez

again informed counsel for Premier Eagle and Casillas by email dated May

26, 2015 that “... our client, Mr. Gonzalez, is going to go forward with surgery,

...”. (MR 80).

       Nevertheless, on July 22, 2015, after Gonzalez had the single disc

surgery, five months after Premier Eagle and Casillas had deposed Dr. Zavala

about the 4-disc surgery, and two months after knowing that the single disc

surgery was going to occur, Premier Eagle and Casillas filed their Renewed

Motion to Conduct Medical Examination1 (“Renewed Motion”), this time

asserting that they should be allowed to subject Gonzalez to a medical

       1
            The original Motion to Conduct Medical Examination was denied. (MR
93).

                                       -3-
examination by their chosen expert witness, a Dr. Gilbert Meadows. (MR 66).

Premier Eagle and Casillas knew that Gonzalez had already had the single

disc surgery. (RR 9).

     Despite knowing that the single disc surgery had taken place, the

Renewed Motion filed by Premier Eagle and Casillas said nothing about the

single disc surgery. (MR 66-69). Instead, the Renewed Motion sought to

examine Gonzalez for the purported purposed of allowing Dr. Meadows to

determine whether Gonzalez should undergo the four disc surgery. (MR 66-

69). This is the very same surgery which Gonzalez had already decided not

to have and which he did not have.

          A hearing on the Renewed Motion took place on August 25, 2015.

(RR 1).

     At the hearing, Gonzalez made Respondent aware of the fact that

Gonzalez had already undergone single disc replacement surgery and that he

had elected the single disc surgery rather than the 4-disc surgery, thereby

making the Renewed Motion moot, and the requested medical examination

unnecessary. (RR 12).

     Gonzalez also pointed out that Premier Eagle and Casillas had failed

to show good cause for the medical examination, primarily because less


                                     -4-
intrusive means of discovery were still available to Premier Eagle and

Casillas, and those less intrusive means of discovery had not been pursued.

(RR 11, 13-15).

                                      III.

          RELATORS CAN ESTABLISH THEIR RIGHT TO RELIEF

        The Petition for Writ of Mandamus being filed contemporaneously with

this Emergency Motion for Stay of Medical Examination demonstrates that

Respondent in this original proceeding abused her discretion in at least two

ways.

        First, the Court should grant mandamus relief because the Renewed

Motion to Conduct Medical Examination is moot, and the medical examination

is unnecessary.

        In their Renewed Motion, Premier Eagle and Casillas draw attention to

the “four level cervical disc fusion surgery” and seek a medical examination

for the purpose of determining whether the 4-disc surgery is necessary. (MR

66, 67-68).     The Renewed Motion attaches the affidavit of Dr. Gilbert

Meadows. (MR 81). Concerning the 4-disc surgery, Dr. Meadows opines that

“[i]t is highly unlikely that Mr. Gonzalez will have a positive outcome from the

proposed surgery.” (MR 82). Dr. Meadows concludes his affidavit by stating


                                      -5-
that “I would strongly recommend that Mr. Gonzalez undergo an independent

medical examination before he undergoes a four level cervical fusion.” (MR

83).

       Thus, the purported purpose of the medical examination is to determine

whether or not the 4-disc surgery recommended by Dr. Zavala is necessary.

There is no mention of evaluating any other treatment options.

       What the Renewed Motion did not disclose or address is the fact that

Gonzalez did not have the 4-disc surgery. Instead, he had a single disc

replacement surgery on July 14, 2015. (MR 57, 59, 62; RR 12). Gonzalez

had that surgery before Premier Eagle and Casillas filed their Renewed

Motion. (MR 66, 70). Thus, the purpose of Dr. Meadows’s medical exam no

longer exists. The entire issue is now moot.

       Second, the Court should grant mandamus relief because there is no

good cause for the medical examination. More specifically, there is no

argument or proof from Premier Eagle and Casillas that they have exhausted

less intrusive means of discovery.

       The law is clear regarding the standard which a trial court must apply

in determining whether to permit one party to force another party to undergo

a medical examination. That standard has been prescribed in Rule 204 of the


                                     -6-
Texas Rules of Civil Procedure and fleshed out by the courts.

       Essentially, Rule 204 allows a trial court to compel a party to submit to

a physical examination only for good cause and only when the person’s

mental or medical condition is in controversy. Tex. R. Civ. P. 204.1(c);

Coates v. Whittington, 758 S.W.2d 749, 751 (Tex. 1988); In re Transwestern

Publishing Company, 96 S.W.3d 501, 506 (Tex.App. – Fort Worth 2002, orig.

proceeding); In re Caballero, 36 S.W.3d 143, 144-45 (Tex.App. – Corpus

Christi 2000, orig. proceeding).

       The term “good cause” is further broken down as having three elements,

all of which must be met to establish good cause. They are:

       1)    The examination is relevant to issues in the case and the
             examination will produce, or is likely to lead to, relevant
             evidence;
       2)    There is a reasonable nexus between the condition of the
             person to be examined and the examination sought; and
       3)    It is not possible to obtain the desired information through
             less intrusive means than a compelled examination.

Tex. R. Civ. P. 204.1(c); Coates at 753; Transwestern at 505; Caballero at

145.

       To meet the third element, the party moving for the medical examination

has the burden of proving that it has exhausted less intrusive means of

discovery before it can be allowed to conduct the examination. Coates at


                                       -7-
753; Caballero at 145.

      In Caballero, the court of appeals granted mandamus because the trial

court ordered a medical examination even though “the movants made no

attempt to show that it is not possible to obtain the desired information

through less intrusive means.” Caballero at 145. The movants in Caballero

had “not deposed the plaintiff’s doctors.” Id. Premier Eagle and Casillas have

made the same mistake.

      Even assuming that there is still a reason to determine the propriety of

a 4-disc surgery, there are several avenues of discovery which Premier Eagle

and Casillas could have opted to undertake in order to obtain the information

they sought. None of these were addressed by Premier Eagle and Casillas.

Those methods are: 1) deposing the doctor who performed the single disc

surgery; 2) deposing Gonzalez’s other treating physicians; and 3) conducting

post-surgery written discovery.

      A review of the Renewed Motion and the supporting exhibits

demonstrates that Premier Eagle and Casillas not only failed to prove that

they have exhausted less intrusive means of discovery, but they do not even

address the issue. (MR 66-83). Though Dr. Meadows states in his affidavit

that he does not believe the 4-disc surgery is necessary, and he discloses


                                     -8-
what he has already reviewed pertaining to Gonzalez, he offers no reason

why what he has seen is inadequate to reach an opinion which he already

holds. (MR 81-83).

     The issue of whether a less intrusive means of discovery was available

arose at the hearing on the Renewed Motion, and Premier Eagle and Casillas

offered no explanation or evidence there either. (RR 13-14, 15). Indeed,

Respondent granted the Renewed Motion without demanding that Premier

Eagle and Casillas respond to Gonzalez’s argument that less intrusive means

of discovery had not been exhausted. (RR 15). Thus, there is no argument

and no evidence anywhere in the record that Premier Eagle and Casillas have

exhausted less intrusive means of discovery.

                                    IV.

  THE NEED FOR A STAY AND THE BASIS FOR THE EMERGENCY

     The need for a stay of the medical examination is clear. Gonzalez is

being ordered to submit to a medical examination without his consent. He

has a compelling right to privacy which Respondent’s Order invades. See

Coates at 751.

     The need for relief is urgent, since the medical examination has been

ordered to take place on September 9, 2015, and that date will be reached


                                    -9-
before this Court can rule on the merits of this Petition for Writ of Mandamus.

Moreover, the medical exam is to take place in San Antonio, requiring

Gonzalez to travel the 150 miles from Laredo.

      Thus, Relator requests that this Court issue a stay of the medical

examination well in advance of September 9, 2015.

      Gonzalez does not seek to stay any other proceedings below or to stay

the trial of this cause. Thus, the subject of the requested stay is limited to the

medical examination, and the stay will not impede other proceedings.

                                   PRAYER

      WHEREFORE, PREMISES CONSIDERED, RUBEN GONZALEZ,

Relator, prays that the Court grant this Emergency Motion to Stay Medical

Examination and stay the trial court’s August 25, 2015 Order Granting Cross-

Defendants’ Renewed Motion to Conduct Medical Examination until the Court

has ruled on the merits of Gonzalez’s Petition for Writ of Mandamus. Relator

also prays for such other and further relief to which he may be justly entitled.

                                     Respectfully Submitted,

                                     Jaime A. Gonzalez, Jr.
                                     State Bar No. 08127600
                                     Hector L. Rodriguez
                                     State Bar No. 00791555
                                     GONZALEZ & ASSOCIATES                  LAW
                                     FIRM, LTD.

                                       -10-
                                    Summit Park North
                                    817 E. Esperanza Ave.
                                    McAllen, Texas 78501
                                    (956) 664-0100 (telephone)
                                    (956) 664-1529 (facsimile)

                                     /s/ David H. Jones
                                    DAVID H. JONES
                                    State Bar No. 10869590
                                    LAW OFFICE OF DAVID H. JONES
                                    6521 North 10th St., Suite E-1
                                    McAllen, Texas 78504
                                    Telephone: (956) 627-6350
                                    Email: David@DHJlawfirm.com

                                    ATTORNEYS FOR RELATOR
                                    RUBEN GONZALEZ




              CERTIFICATE OF RULE 52.10 COMPLIANCE

      The undersigned certifies that Relator has complied with Rule 52.10(a)
of the Texas Rules of Appellate Procedure by notifying all parties by
expedited means (by telephone or by fax) that this motion for temporary relief
has been or will be filed. Counsel for Real Parties in Interest, Steve Navarro,
informed me that he is opposed to the relief requested herein.

                                             /s/ David H. Jones
                                            David H. Jones


                                     -11-
                       CERTIFICATE OF SERVICE

      I certify that a true and correct copy of the foregoing instrument was
delivered in accordance with Rule 9.5 of the Texas Rules of Appellate
Procedure to the following on this the 4th day of September, 2015:

     Hon. Monica Z. Notzon
     Judge, 111th Judicial District
     1110 Victoria Street
     Laredo, Texas 78040
     Respondent

     Stephen D. Navarro
     Naman Howell Smoth & Lee, PLLC
     10001 Reunion Place, Suite 600
     San Antonio, Texas 78216
     Attorney for Real Parties in Interest



                                             /s/ David H. Jones
                                             David H. Jones




                                      -12-
