                                                                                            ACCEPTED
                                                                                      01-15-00219-CV
                                                                             FIRST COURT OF APPEALS
                                                                                    HOUSTON, TEXAS
                                                                                   3/9/2015 5:11:52 PM
                                                                                  CHRISTOPHER PRINE
                                                                                                CLERK

                                  No. 01-15-00219-CV

                                                                       FILED IN
                                                                1st COURT OF APPEALS
                                       IN THE                       HOUSTON, TEXAS
                                COURT OF APPEALS                3/9/2015 5:11:52 PM
                           FOR THE 1ST DISTRICT OF TEXAS        CHRISTOPHER A. PRINE
                                AT HOUSTON, TEXAS                       Clerk




          IN RE BAC TRAC PLUMBING, LP AND JOSE GRAJALES,

                                                    Relators.


 RELATORS’ MOTION FOR EMERGENCY STAY OF TRIAL SETTING


      ORIGINAL PROCEEDING FROM THE 215th DISTRICT COURT
                  OF HARRIS COUNTY, TEXAS,
          THE HONORABLE ELAINE H. PALMER, PRESIDING


MUNSCH HARDT KOPF & HARR, P.C.
Stephen Gibson
State Bar No. 07866000
Tracy McCreight
State Bar No. 24037064
                                                EMERGENCY RELIEF
KANE RUSSELL COLEMAN & LOGAN, PC                REQUESTED
Chris C. Pappas
State Bar No. 15454300
Darrell R. Greer
State Bar No. 08413500

ATTORNEYS FOR RELATORS




                                     PAGE 1 OF 11
MHDOCS 6000402_2 15565.1
                 RELATORS’ MOTION FOR EMERGENCY STAY
TO THE HONORABLE JUSTICES OF THE COURT OF APPEALS:

                                I. INTRODUCTION
        The underlying proceeding is a personal injury suit arising out of the

collision of a vehicle driven by Donna Dudley (“Plaintiff”) with a truck owned by

Bac Trac Plumbing, LP driven by Jose Grajales (the “Collision”). The underlying

suit is Donna Dudley v. Bac Trac Plumbing, LP and Jose Grajales, Cause No.

2013-12224 in the 215th District Court of Harris County, Texas filed February

28, 2013 (the “Underlying Suit”). The primary disputed issue in the Underlying

Suit is whether there exists a causal connection between the Collision and certain

damages claimed by Plaintiff.      Bac Trac Plumbing, LP and Jose Grajales

(“Defendants” or “Relators” collectively) are the Defendants in the Underlying

Suit.

        On February 27, 2015, Respondent, the Hon. Elaine H. Palmer, presiding

judge of the 215th District Court of Harris County, Texas (the “Trial Court”),

excluded testimony from Defendants’ only retained expert witnesses, Thomas D.

Greider, M.D. and Walter R. Sassard, M.D. (Exh. A hereto, the “Exclusion

Order”).      The Exclusion Order provides that “all testimony and/or evidence

provided by Thomas D. Greider, M.D. and Walter R. Sassard, M.D. should be

excluded from trial.” The Underlying Suit is set for trial on a two-week trial

docket that begins on March 9, 2015. (Exh. B hereto, Order Resetting Trial).
                                  PAGE 2 OF 11
MHDOCS 6000402_2 15565.1
When the parties appeared for a March 2, 2015, docket call Plaintiff announced

ready. Defendants moved for the continuance allowed under Texas Rule of Civil

Procedure 193.6(c).        (Exh. C hereto, Defendants’ Motion for Continuance).

Enforcing its previous Docket Control Order, the Trial Court denied the motion for

continuance. (Exh. D hereto, Transcript on Motion for Continuance).

        By its Petition for Writ of Mandamus (“Writ Petition’) filed herewith,

Defendants seek to vacate the Trial Court’s Exclusion Order as an abuse of

discretion because good cause for any failure of Defendants to timely make,

amend, or supplement its expert designations exists. Moreover, Plaintiff is neither

unfairly surprised nor prejudiced by any alleged deficiency in Defendants’

discovery response. Defendants further seek to vacate the Trial Court’s March 2,

2015 denial of Defendants’ Motion for Continuance because trial will be a

meaningless exercise. As explained more fully in the Writ Petition, the Exclusion

Order for Defendants’ medical expert effectively eviscerates Defendants’ ability to

present their defense that the Collision was not the cause of all or part of the

damages claimed by the Plaintiff.

        Emergency relief to stay trial set for as early as March 10, 2015 is necessary

because, unless a stay of the trial setting is granted, Defendants will be forced to

proceed at trial without an expert to testify disputing Plaintiff’s damages.

Defendants must not be forced to suffer such irreparable injury as a result of the


                                    PAGE 3 OF 11
MHDOCS 6000402_2 15565.1
Trial Court’s failure to comply with relevant guiding legal principles. Emergency

relief staying the proceedings in the Underlying Suit is also necessary to preserve

this Court’s jurisdiction to issue extraordinary writs. Unless the proceedings are

stayed, the relief requested in the Writ Petition will become moot. In re New

Century Mtg. Corp. of California, No. 08-03-00521-CV, 2004 WL 100506, *1

(Tex. App. –El Paso 2004, orig. proceeding).

                            II.   IDENTITY OF PARTIES

        Petitioner is Bac Trac Plumbing, LP and Jose Grajales (“Defendants” or

“Relators” collectively).

        The real party in interest is Donna Dudley (“Plaintiff”), Plaintiff in the

Underlying Suit.

        The Respondent is Judge Elaine H. Palmer, presiding judge of the 215th

District Court of Harris County, Texas (the “Trial Court”).

                           III.   STATEMENT OF FACTS

        On February 27, 2015, the Trial Court clearly abused its discretion by

granting Plaintiff’s Motion to Exclude Thomas D. Greider, M.D. and Walter R.

Sassard, M.D. On March 2, 2015, the Trial Court again abused its discretion in

denying Defendants’ Motion for Continuance allowed by Texas Rule of Civil

Procedure 193.6(c).




                                    PAGE 4 OF 11
MHDOCS 6000402_2 15565.1
        Without emergency relief, Defendant will be forced to trial as early as

Tuesday, March 10, 2015 with virtually no defense to Plaintiff’s claims for

damages.       The Trial Court’s abuses of discretion in granting the Motion to

Exclude, as further described in Relators’ Writ Petition, resulted in an Order being

issued that, absent emergency relief by this Court, will substantially prejudice

Defendants and cause Defendants to suffer an irreparable injury. The Writ Petition

is incorporated herein by reference the same as if set forth at length.

        This Motion is presented to stay the trial of the Underlying Suit. This trial is

currently set on the two-week docket beginning March 9, 2015, and may be called

for trial at any time, and as early as March 10, 2015. A stay of those proceedings

is necessary to prevent the relief requested in the Writ Petition from becoming

moot and is thereby necessary to preserve the jurisdiction of this Court over the

Writ Petition that Defendants file concurrently with this Motion.

               IV.     CERTIFICATE OF COMPLIANCE ATTACHED

        Relators attach a certificate of compliance certifying that on March 9, 2015,

in accordance with Texas Rule of Appellate Procedure 52.10(a), it notified the real

party in interest and the respondents by electronic mail, facsimile, and/or telephone

call that a motion for temporary relief had been filed.




                                     PAGE 5 OF 11
MHDOCS 6000402_2 15565.1
    V.       AUTHORITY TO ISSUE AND NECESSITY OF EMERGENCY
                   STAY TO PRESERVE STATUS QUO

         This Court may grant temporary relief pending its determination of

Defendants’ Petition. Tex. R. App. P. 52.10(b). Mandamus is the most appropriate

remedy because the deprivation is one that cannot be corrected on appeal and will

affect Defendants’ ability to defend this case at trial. See In re Allied Chemical,

227 S.W.2d 652, 658 (Tex. 2007); see also Able Supply Co. v. Moye, 898 S.W.2d

776, 772 (Tex. 1995). This emergency stay is necessary to preserve this Court’s

jurisdiction to consider the merits and to maintain the status quo until the Petition

can be heard and decided. See In re Reed, 901 S.W.2d 604, 609 (Tex. App.—San

Antonio 1995, orig. proceeding).

         As more thoroughly demonstrated in the Writ Petition, Defendants are likely

to prevail as to the relief requested therein. Nevertheless, if Defendants are forced

to trial before this Court renders its decision on Defendants’ Petition, Defendants

will suffer irreparable harm.

         The Trial Court’s Exclusion Order and denial of the 193.6 (c) continuance is

effectively a “death penalty” sanction. Defendants’ central defense is that the

Collision did not cause all or many of the injuries or conditions for which Plaintiff

seeks damages. By excluding the testimony of a medical expert necessary to

support this defense, the Trial Court has effectively made the trial an empty

exercise and waste of judicial resources. Without such an expert, Defendants’

                                     PAGE 6 OF 11
MHDOCS 6000402_2 15565.1
ability to present a viable defense is so compromised that it must be subject to

immediate correction by writ of mandamus, not correction after a pro forma trial.

                  VI.      CONCLUSION AND RELIEF REQUESTED

        For the foregoing reasons as well as those more fully stated in the Writ

Petition, good cause exists for this Court to grant this emergency request for

temporary relief. See Tex. R. App. P. 52.10. Defendants are likely to prevail on

the merits of the Writ Petition filed simultaneously herewith. Without a stay of the

Underlying Suit pending resolution of the Writ Petition, Defendants will be forced

to trial without an expert witness to dispute Plaintiff’s claim for damages and the

jurisdiction of this Court over the Writ Petition may be lost due to the relief

requested in the Writ Petition becoming moot.

        For these reasons, Defendants request this Court enter an order staying the

trial setting of the Underlying Suit to maintain the status quo of the parties and

preserve this Court’s jurisdiction pending consideration of the merits of the Writ

Petition.




                                    PAGE 7 OF 11
MHDOCS 6000402_2 15565.1
Dated: March 9, 2015          Respectfully submitted,


                              By: /s/ Stephen Gibson
                                 Stephen Gibson
                                 State Bar No. 07866000
                                 Tracy McCreight
                                 State Bar No. 24037064
                                 MUNSCH HARDT KOPF & HARR, P.C.
                                 500 N. Akard Street, Suite 3800
                                 Dallas, TX 75201-6659
                                 United States
                                 Telephone: (214) 855-7500
                                 Facsimile: (214) 855-7584
                                 sgibson@munsch.com
                                 tmccreight@munsch.com

                                    -and-

                                  Chris C. Pappas
                                  State Bar No. 15454300
                                  Darrell R. Greer
                                  State Bar No. 08413500
                                  KANE RUSSELL COLEMAN & LOGAN, PC
                                  919 Milam, Suite 2200
                                  Houston, TX 77002
                                  Telephone: (713) 425-7400
                                  Facsimile: (713) 425-7700
                                  cpappas@krcl.com
                                  dgreer@krcl.com

                                  ATTORNEYS FOR BAC TRAC
                                  PLUMBING, LP and JOSE
                                  GRAJALES




                           PAGE 8 OF 11
MHDOCS 6000402_2 15565.1
                           CERTIFICATE OF CONFERENCE
      I certify that I concurrently conferred with Nomaan Husain/Leigh S.
Montgomery by email correspondence and have attempted in good faith to reach
an agreement about the foregoing Motion. We have been unable to reach an
agreement because opposing counsel opposes the relief Relators seek herein.



                                           /s/ Darrell Greer
                                           Darrell Greer




                                   PAGE 9 OF 11
MHDOCS 6000402_2 15565.1
                           CERTIFICATE OF SERVICE
       I hereby certify that on March 9, 2015, I served a true and correct copy of
the foregoing document on all parties listed below as follows:

 Via E-file, Email, and First Class       Via EMail and First Class Mail
 Mail
                                          Honorable Elaine H. Palmer
 Nomaan Husain                            Presiding Judge, 215th District
 Leigh S. Montgomery                      Court, Harris County, Texas
 YOUNG & HUSAIN, PLLC                     Harris County Civil Courthouse
 2700 Post Oak Blvd., Suite 1220          201 Caroline, 13th Floor
 Houston, Texas 77056                     Houston, Texas 77002
 nhusain@yhlawfirm.com                    Tricia_Griggs@justex.net
 lmontgomery@yhlawfirm.com
 Telephone: (713) 621-8900
 Facsimile: (713) 621-8909

 Attorneys for Donna Dudley


                                            /s/ Tracy McCreight
                                            Tracy McCreight




                                   PAGE 10 OF 11
MHDOCS 6000402_2 15565.1
                           CERTIFICATE OF COMPLIANCE

       Pursuant to Texas Rule of Appellate Procedure 52.10(a), I hereby certify that
on March 9, 2015, I notified the parties listed below by email, facsimile, telephone
call, and/or electronic filing service that a motion for temporary relief had been
filed:

 Nomaan Husain                             Honorable Elaine H. Palmer
 Leigh S. Montgomery                       Presiding Judge, 215th District
 YOUNG & HUSAIN, PLLC                      Court, Harris County, Texas
 2700 Post Oak Blvd., Suite 1220           Harris County Civil Courthouse
 Houston, Texas 77056                      201 Caroline, 13th Floor
 nhusain@yhlawfirm.com                     Houston, Texas 77002
 lmontgomery@yhlawfirm.com                 Tricia_Griggs@justex.net
 Telephone: (713) 621-8900
 Facsimile: (713) 621-8909

 Attorneys for Donna Dudley

                                             /s/ Tracy McCreight
                                             Tracy McCreight




                                   PAGE 11 OF 11
MHDOCS 6000402_2 15565.1
EXHIBIT A
                                                                                                  2/6/20155:18:26 PM
                                                                                                  Chris Daniel - District Clerk
                                                                                                  Harris County           .
                                                                                                  Envelope No: 406283,2
                                                                                                  By,:SPENCER,JEANETTA
                                                                                                  Filed: 2/6/20155:18:26 PM



 DONNA DUDLEY
                                                 CAUSE NO. 2013-12224

                                                        §                   IN THE DISTRICT COURT OF
                                                                                                                           P;;Xpx
                                                        §
                                                        §
 VS.                                                    §                     HARRIS COUNTY, TEXAS
                                                        §
 BAC TRAC PLUMBING, LP AND                              §
 JOSE GRAJALES                                          §                      215th'JUDIC~ISTRICT

                                                        ORDER
                                                                                                  (j
                                                                                              ~
                                                                                         Q~


                                                                                     ~
                                                            .                   Q~                                     •

           ON THIS DAlE, the Court heard Plaintiffs Motion to Exclud~mas                      D. Greider, MD. and Walter

R. Sassard, MD .. After consideration of'the same, the Court is e~             opinion that Plaintiff's motion should
                                                                        ~
be granted.                                                        Q(f[p)
           It is therefore, ORDERED, ADJUDGED AND DOOREED that Plaintiff's Motion to Exclude Thomas
                    .                                           §::C/
D. Greider, MD. and Walter R. Sassard, MD is ~ED,                       and all testimony and/or evidence provided by

Thomas D. Greider, M.D. and Walter R. sassarb.D.                should be excluded from trial in the above captioned
                                                    @
and numbered cause.

                                                o
                                                ~




                                          ~
                                              (f::I;t:£-:~                                         ,2015,



                                        ;{fJ    JUDGE PRESIDlNG

                                 ~
                            f!;::Q
                        ~




   RECORDER'S MEMORAHOUM
   ThiS Instrument Is of poor quality
         at the time of Imaging
.,   ,




         APPROVED AS TO FORM AND SU~STANCE:

         YOUNG & HUSAIN, P.L.L.C.

         By: lsi Leigh S. Montgomery
         NOMAAN HUSAIN
         State Bar No. 24000743
         LEIGH S. MONTGOMERY
         State Bar No. 24052214
         2700 Post Oak Blvd. Suite 1220
         Houston, Texas 77056                                                       (1~
         (713) 621-8900 telephone                                                 ""~
         (713) 621-8909 facsimile
         COUNSEL FOR PLAINTIFF                                             ,,~
                                                                              ;if
                                                                           Q~
                                                                     ,,~
                                               CERTIFICATE OF ~VICE
                                                                   @}
                That on this the 6TIl day of February, 2015, I here~rtify that a true and correct copy of the
         above and foregoing instrument was forwarded pursu8J1~ the Texas Rules of Civil Procedure as follows:
                                                            ~~
                ViaE-Filingand E-Service                  rF'~'
               Mr. Chris C. Pappas                 ~
               Mr. Darrell Greer                     g
               Kane, Russell, Coleman & Logan, P~
               919 Milam, Suite 2200          " (Q
               Houston, Texas 77002
                                              &~
                                            (/~~


                                                   By: lsi Leigh S. Montgomery
                                          ~        LEIGH S. MONTGOMERY
                                       (J55
                               ». "~y

                            cfb~
                      ~~




                                                      2
EXHIBIT B
                                                           Case No. 201312224
                                                                                                         ORTX

DUDLEY, DONNA                                                       *               IN THE DISTRICT COURT OF
vs.                                                                 *
                                                                    *               HARRIS COUNTY, TEXAS
BAC TRAC PLUMBING LP                                                *
                                                                    *                215th    JUDICIAL DISTRICT




                                                        ORDER RESETTING TRIAL



         This case is reset for TRIAL for the two week period beginning                   03-09-2015.

If the case has not been reached by the second Friday after this date, the trial will be

reset.         The parties are ordered to appear for a DOCKET CALL

on        03-02-2015                  at    09:00 AM.

All previous pre-trial deadlines remain in effect, unless changed by the court.

If you have any questions concerning this order, please contact the Court

coordinator, TRICIA ELLIS-GRIGGS                         at (713) 368-6340.




Signed            JUN 11 2014


                                 FILE
                                   Chris Daniel
                                                D
                                      District Clerk

                                                                              ELAINE H PALMER
                      nme::_JJ..Up'~J~},=_~(;;-"~4
                                                ~_
                                                                              Judge, 215TH DISTRICT COURT
                                      ~~d
                       BY.--717""'~~~2y~.;....--                              Generated on: 06/11/2014




                                                                          15454300
            CHRIS C. PAPPAS
            919 MILAM STREET SUITE 2200
            HOUSTON, TX 77002                                                                                      JCVF13
                                                                                                                rev 033094

 RECORDER'S MEMORANDUM
 This Instrument IS of poor quality
       at the lime of Imaging
                                            Case No. 201312224
                                                                                           ORTX
DUDLEY, DONNA                                         *               IN THE DISTRICT COURT OF
                                                      *
vs.
                                                      *               HARRIS COUNTY, TEXAS
BAC TRAC PLUMBING LP                                  *
                                                      *                215th   JUDICIAL DISTRICT




                                        ORDER RESETTING TRIAL



      This case is reset for TRIAL for the two week period beginning        03-09-2015.

If the case has not been reached by the second Friday after this date, the trial will be

reset.     The parties are ordered to appear for a DOCKET CALL

on       03-02-2015    at   09:00 AM.

All previous pre-trial deadlines remain in effect, unless changed by the court.

If you have any questions concerning this order, please contact the Court

coordinator, TRICIA ELLIS-GRIGGS           at (713) 368-6340.




Signed      JUN 11 2014




                                                                ELAINE H PALMER
                                                                Judge, 215TH DISTRICT COURT
                                                                Generated on: 06/11/2014




                                                            24000743
          NOMAAN HUSAIN
          2700 POST OAK BLVD, SUITE 1220
          HOUSTON, TX 77056                                                                          JCVF13
                                                                                                  rev 033094
EXHIBIT C
                                                                                                           3/2/2015 8:13:04 AM
                                                                                     Chris Daniel - District Clerk Harris County
                                                                                                         Envelope No. 4324083
                                                                                                            By: GAYLE FULLER
                                                                                                    Filed: 3/2/2015 8:13:04 AM


                                        CAUSE NO. 2013-12224
DONNA DUDLEY                                     §                   TN THE DISTRICT COURT OF
                                                 §
V.                                                                         hARRIS COUNTY. TEXAS

SAC TRAC PLUMBING. LP AND                        §
JOSE GRAJALES                                                              TH
                                                                           215
                                                 §                               JUDICIAL DISTRICT


                        DEFENDANTS’ MOTION FOR CONTINUANCE


TO TIlE HONORABLE JUDGE OF SAID COURT:

         COMES NOW Defendants. Bac Trac Plumbing, LP and Jose Grajales, in this case and

files this Motion for Continuance and would respectfully show unto the Court the following:


      1. This lawsuit is for personal injuries sustained by the Plaintiff from an automobile

         accident. It is the Defendants contention that all her claimed medical treatment and

         related costs were not solely caused by this accident. Defendants’ disagree with Plaintiff

         concerning the extent of’ injuries.


     2. The case is currently set on the Court’s trial docket for the two-week period beginning on

         March 9,2015.


     3. In a recent hearing, the Court granted a Motion to Strike testimony of medical witnesses

         that are critical to the case for the Defendants. Plaintiff claims that this witness testimony

         is a surprise to them, and it may prejudice their case. Texas Rules of Civil Procedure

         indicate that when this situation occurs, the Court’s proper remedy is to “...grant a

         continuance or temporarily postpone the trial to allow      ...   opposing parties to conduct

        discovery regarding any new information presented...” TRCP 193.6(c).


     4. Defendants’ are asking this Court usc its discretion to follow this Rule of Procedure.

                                                                                  3409568 (64280.00088000)
     5. Proceeding with trial at this time, without the benefit of the medical expert witness is

        extremely prejudicial to the Defendants. Such a trial would create an extreme hardship to

        the Defendants, and would likely result in a verdict that is unjust and unfair to the

        Defendants because ihe jury would not receive all the evidence necessary for them to

        make a proper award.


    6. Plaintiff has already filed Motions in Limine based upon the Court’s action to strike the

        medical expert’s testimony to ask that no argument or proof be made concerning

        plaintiffs past history of medical injuries, or the causation of her complaints, or the

        reasonableness of her treatment or the costs associated therewith. Such handicaps to the

        Defendants’ case are extremely prejudicial, would result in a manifest unjustness, and

        prevent Defendants from their guaranteed right to fair jury trial in this matter,


    7. This Motion is not filed for the purposes of delay only, but is filed only so that Justice

        may be done.


    8. Based on the forgoing, the Defendants respectfully request the ease be continued from its

        current trial setting until a time in the future that allows plaintiff to depose the

        Defendant’s medical expert, if they so choose, thus preventing any surprise or prejudice

       to the Plaintiff in this matter.


        WHEREFORE, PREMISES CONSIDERED, Defendants Bac Trac Plumbing. Lp, arid

Jose Grajales respectfully request the Court continue the current trial setting of the case.


                                               Respectfully submitted,

                                               KANE RUSSELL COLEMAN & LOGAN, PC


                                                  9
                                                                               3409568 (64280.00088.000)
                                                                                                                           __




                                                           -          .—

                                                                                /       /
                                           Bv:/                  2:-           -



                                                          Chris C. Pappas
                                                          State Bar No. 15454300
                                                          Darrell R. Greer
                                                          State Bar No. 08413500
                                                          919 Milam, Suite 2200
                                                          Houston, Texas 77002
                                                          Ph:   (713) 425-7400
                                                          Fax:        (713) 425-7700
                                                          Email:           dgreer1krcl.corn
                                           COUNSEL FOR DEFENDANTS BAC TRAC
                                           PLUMBING, LP AND JOSE CRAJALES




                                     VERIFICATION

STATE OF TEXAS              §
COUNTY OF HARRIS            §
        BEFORE ME. the undersied Notary Public, on this day personally appeared Darrell R.

Greer, who, being by me duly sworn on his oath, deposed           and          said that he has read the above and

foregoing Defendants Motion for Continuance   and     that the statements contained therein are true

and correct.
                                                          7:

                                                                                            -
                                                           Z.- /
                                                  £   V                    -    /   -       --
                                                                                                 -.




                                          Darrell R. Greer




                                                                                                 ///
       SUBSCRIBED AND SWORN TO BEFORE ME on this the              day of
   /0)1*/1           ,2015, to certify which witness my hand and seal of office.

                                                  A       /1     -/   —H                ——




   ç4 MyComm.EfltO1




                                              3
                                                                                                      3409568 (6428000088.000)
                             CERTIFICATE OF CONFERENCE

Afler drafting this motion the movant and respondent have conferred with each other and in good
faith have attempted to resolve the matter; and

       a.             Respondent has agreed and is unopposed to Movant’s request under this
                      motion.

       b.   X_____    This matter has been communicated with respondent’s office and
                                                                    -r
                      respondent does not agree to the Motion.    -.
                                                                                    /




                                                                       1/                   /    7

                                            Darrell R. Greer




                                CERTIFICATE OF SERVICE

       I hereby certify that a tme and correct copy of the above and foregoing document has
been c-mailed, and faxed to counsel on this the Second day of March, 2015:

       Nomaan Husain
       Young & Husain, PLLC
       2700 Post Oak Blvd., Suite 1220
       Houston, Texas 77056


                                                                            /           /
                                                                                            /7
                                                                                            /




                                           Cis C. Páppas/Dae1I R. Greer             -




                                              4
                                                                                3409568 (64280.00088.000)
EXHIBIT D
                                                             1




 1                         REPORTER'S RECORD

 2                     COURT CAUSE NO. 2013-12224

 3   DONNA DUDLEY,                   )   IN THE DISTRICT COURT
          PLAINTIFF,                 )
 4                                   )
                                     )
 5   VS.                             )   HARRIS COUNTY, TEXAS
                                     )
 6   BAC TRAC PLUMBING, LP,          )
         DEFENDANTS.                 )   215TH JUDICIAL DISTRICT
 7

 8

 9                 *********************************

10                       MOTION FOR CONTINUANCE

11                 *********************************

12            On the 2nd day of March, 2015, the following

13   proceedings came on to be heard in the above-entitled and

14   numbered cause before the Honorable Elaine Palmer, Judge

15   Presiding, held in Houston, Harris County, Texas.

16

17            Proceedings reported by computer-aided

18   transcription/stenograph machine.

19

20

21

22

23

24

25
                                               2




 1                     A P P E A R A N C E S

 2

 3   Mr. Nomaan Husain
     SBOT NO. 24000743
 4   YOUNG & HUSAIN, PLLC
     2700 Post Oak Blvd, Suite 1220
 5   Houston, Texas 77056
     Telephone: (713) 621-8900
 6   ATTORNEY FOR THE PLAINTIFF

 7       - AND -

 8   Mr. Darrell Greer
     SBOT NO. 08413500
 9   Mr. Christopher Pappas
     SBOT NO. 15454300
10   KANE RUSSELL COLEMAN & LOGAN PC
     919 Milam Street, Suite 2200
11   Houston, Texas 77002
     Telephone: (713) 425-7400
12   ATTORNEYS FOR THE DEFENDANTS

13

14

15

16

17

18

19

20

21

22

23

24

25
                                                                  3




 1                         P R O C E E D I N G

 2                   THE COURT:    We're on the record in Cause No.

 3   2013-12224, Donna Dudley vs. Bac Trac Plumbing, LP.         Will

 4   the attorneys identify themselves for the record and the

 5   parties they represent?

 6                   MR. HUSAIN:    Nomaan Husain for Plaintiff

 7   Donna Dudley.    We're announcing ready for trial.

 8                   MR. GREER:    My name is Darrell Geer.    I'm

 9   here for the Defendants.      We have a motion for

10   continuance.

11                   MR. PAPPAS:    Chris Pappas, here for the

12   Defendants.

13                   THE COURT:    Okay.

14                   MR. GREER:    Your Honor, we would like to

15   present the motion for continuance.      I have a copy for the

16   Court.   You may remember, we were here last Friday in

17   regards to the motion to strike our expert witnesses in

18   this case.

19                       And as a result of your ruling there, we

20   feel that we must file this motion and that we must make a

21   record; and our motion for continuance is basically a

22   result of that hearing.

23                       Your Honor, we'd like to remind you

24   that -- about a few things.      This case is all about

25   personal injury for the Plaintiff from an automobile
                                                              4




 1   accident; and the Defendants contend that all of the

 2   medical treatment and related costs were not caused solely

 3   from this accident.

 4                        We disagree with the claims about the

 5   extent of the injuries.     Of course, we're set on a docket

 6   that begins March the 9th.

 7                        Recently, the Court granted the motion

 8   to strike; and we believe that if -- the Plaintiff claims

 9   surprise and we believe that if they really were surprise,

10   then the proper remedy would be to continue it until at

11   the time of trial.

12                        We believe that it would be extremely

13   prejudicial for the case to go forward without the benefit

14   of a medical expert witness because that's what this case

15   is all about.   This would be an extreme hardship to the

16   Defendants, and it would result in an unjust and unfair

17   verdict.

18                        In fact, the Plaintiff filed, yesterday,

19   this motion in limine based upon the Court's action to

20   strike our expert's testimony and so that no argument will

21   be proof, proof could be made concerning the Plaintiff's

22   past history of multiple medical injuries or causation of

23   her complaints or the reasonableness of her treatment or

24   the costs associated with that.

25                        Such handicaps for the Defendants' case
                                                               5




 1   is extremely prejudicial and it would be extreme and

 2   unjust.   So, we request the case be continued.

 3                      I would like to remind the Court, if you

 4   do not mind, that in regards to the testimony of our

 5   expert, the Defendants timely had designated Dr. Greider

 6   as our expert witness in respect to our IME and for him to

 7   testify; and we tendered him for deposition at the time,

 8   of course, that we designated him.

 9                      The Plaintiffs did not request his

10   deposition at any time.   Dr. Greider became unavailable;

11   and so last fall, we named Dr. Sassard, who is his cohort,

12   his colleague, in the same medical group, to perform the

13   IME and to testify also; and we tendered Dr. Sassard for

14   his deposition.

15                      Again, the Plaintiffs have never

16   requested the deposition of either of these gentlemen; and

17   we believe and we filed a case with the Court that

18   supports substitution of a medical expert witness for good

19   cause.

20                      And to show there was good cause, we

21   have, of course, filed affidavits from both Dr. Greider

22   and Dr. Sassard to show the reason for this substitution.

23   I think the case law calls him a second-runner expert.

24                      The Court denied our motion for an IME.

25   We then produced a report from Dr. Sassard, based on his
                                                                   6




 1   review of the medical.    The Plaintiffs, of course, moved

 2   to strike it under prejudice and surprise.      Under these

 3   circumstances and, of course, under the Court's ruling, we

 4   respectfully request that the Court continue the trial and

 5   allow the Plaintiffs time to do further discovery, if they

 6   choose to do so.

 7                      They can take the deposition of our

 8   experts, if they wanted to do so, which they have not

 9   asked yet; because either at this setting or any future

10   setting, we have to put on that evidence.       That's only

11   fair, and it's only right.    Failure would be manifestly

12   unjust to the Defendants.

13                      So as a matter of fairness and equity

14   for both sides, we ask for this continuance; and we ask

15   that you allow them to discover, if they choose to do so,

16   the further opinions beyond the report of our expert and

17   we respectfully request you continue the case and allow

18   our expert to testify.

19                THE COURT:     Okay, Mr. Husain.

20                MR. HUSAIN:     Your Honor, I'm not going to

21   rehash the motion to strike the expert's testimony that we

22   had on Friday, but I would like to address what Mr. Greer

23   just said.

24                      First of all, he's ignored the fact that

25   the Court did -- struck the experts because he failed to
                                                                 7




 1   comply with the agreed docket control order, which we both

 2   agreed to and submitted to the Court.     He talks about he

 3   timely submitted Dr. Greider; but he forgets the fact that

 4   in his own designation, he said that Dr. Greider's

 5   opinions will be provided.     I think that was on Page 3 on

 6   the second paragraph.     No opinions by Dr. Greider were

 7   ever provided.

 8                        In addition, we object to this motion

 9   because first, it is not sufficiently in advance of

10   trial.   We're here now at the docket call for this case,

11   and he's filed this motion at 8:13 a.m. today.     So we

12   would say that the Court shouldn't even consider because

13   it is not sufficiently in advance of trial.

14                        His motion is based on the fact that a

15   continuance should be granted so that Plaintiffs can

16   depose his expert.     On Friday, the Court struck the

17   Defense expert.     So as of now, the Defense has no expert.

18   So there's nobody for us to depose.

19                        What he would have to do is file a

20   motion to either re-consider the motion to strike, get his

21   expert reinstated, and then file the motion for

22   continuance.     He's assuming that he has an expert.     He has

23   no expert.

24                        And the last basis that he's discussed

25   with the Court is, "only fair and right."     It is fair and
                                                                8




 1   right for Ms. Dudley to have been injured for all of these

 2   years, to have this case on file for two years and here on

 3   the eve of trial, Mr. Greer is trying to say that because

 4   of his failure to timely designate and provide opinions

 5   and for his failure to file the IME until January of 2015,

 6   the Plaintiff should be delayed her day in court?

 7                      We think the only fair and right thing

 8   to do is for the Court to enforce the DCO, as it did on

 9   Friday, deny the motion for continuance, and call this

10   matter to trial, which Plaintiffs are ready to proceed to

11   trial.

12                      Thank you, Your Honor.

13                 MR. PAPPAS:    Your Honor, could I add one

14   point?

15                 THE COURT:    Yes.

16                 MR. PAPPAS:    The main thing that we're here

17   today is to let the Court know, just so the record is

18   clear and Your Honor -- because one thing, I've been doing

19   this for over three decades.       I do not believe in

20   sandbagging any court -- there is case law on point that

21   we think we've cited to Your Honor.

22                      We believe that the motion and the

23   effort on the part of opposing counsel, with all due

24   respect, is leading the Court down a path that is clear

25   error.   We think it's error that may require us -- and I'm
                                                                9




 1   simply sharing with you 'cause I'm just a straightforward

 2   guy -- that we have to take this issue up.

 3                      Because what we'd hate to do, for

 4   everybody, is to re-try -- is to try this case more than

 5   once because of the circumstances.

 6                      But we feel confident in saying that the

 7   rules and the case law that we've provided and presented

 8   to Your Honor, supports the proposition that a continuance

 9   is proper.

10                      He had more than ample time since

11   November to take a deposition; and, actually, he chose not

12   to do that.   And we want to make it clear to the Court,

13   we're not citing this because there's no basis.

14                      I will tell you, I practiced law in

15   Harris County for over three decades.     I never had a

16   similar situation in which the Judge on whatever side of

17   the case that I was on, that the Court didn't grant a

18   continuance to allow the deposition to be taken and then

19   to have the case reset, within usually 60 days.     Now,

20   that's the norm.   I'll simply state that, based on my

21   experience.

22                 THE COURT:   Okay.

23                 MR. GREER:   And Your Honor, if I may say one

24   last thing?   Mr. Husain is correct.    We did not supply a

25   supplemental report from Dr. Greider because we withdrew
                                                                  10




 1   Dr. Greider.     We supplied the supplemental report from

 2   Dr. Sassard, who was the second person who we had

 3   substituted in.

 4                   MR. HUSAIN:    Dr. Sassard's report was

 5   provided to us last week, Your Honor.         We would ask the

 6   Court to enforce the DCO, and if they want to take this up

 7   on appeal, they can take it up on appeal; but we believe

 8   the Court was correct in its ruling.

 9                        They cannot pick and chose their

10   arguments.     They are trying to just argue that the

11   substitution was proper.       That's the only case that was

12   provided.    They glossed over the fact that they never

13   provided us an opinion.

14                   THE COURT:    Okay.

15                   MR. GREER:    And again, the rules provide

16   continuance is an appropriate remedy.

17                   MR. HUSAIN:    That's just rewarding them for

18   their failure to comply with the docket control order and

19   shifting the burden on to us.         They did not timely give us

20   the opinions, and that's why the Court struck their

21   expert.

22                   THE COURT:    Counsels, you-all agreed to -- I

23   do not give you dates.       You-all agreed to your scheduling

24   order back on May 21st of 2013; and the deadlines, you-all

25   set the deadlines.     Discovery was to end May 16th, 2014.
                                                                11




 1                      You-all were set for docket call on June

 2   the 9th, 2014, but we didn't reach you-all.      We did

 3   another resetting, but we didn't extend the discovery or

 4   any of the deadlines.   All the deadlines remain in

 5   effect.   I do not see a Rule 11.   Was there a Rule 11

 6   extending anything?

 7                 MR. HUSAIN:    No, Your Honor.

 8                 MR. GREER:    No, Your Honor.    The trial date

 9   was moved because of an agreed motion for continuance, at

10   least that's what is in my file.    I did not think it was

11   because the Court did not reach us.

12                      This was an agreed docket control.      We

13   did have a docket control order, and we did have a second

14   control order from the Court pertaining to the trial date.

15                 THE COURT:    Now, we did send you out, on June

16   11th, 2014, a new trial date setting it for today.

17                 MR. GREER:    That's correct.

18                 THE COURT:    It says, "All previous pretrial

19   deadlines remain in effect unless changed by the Court,"

20   and the Court did not change anything.    We sent you out a

21   reminder notice in January.    So as of right now, I'm not

22   going to the grant your motion for continuance.

23                      If we get to you, regular panel or large

24   panel?

25                 MR. HUSAIN:    Regular panel is fine, Your
                                                                     12




 1   Honor.

 2                   MR. GREER:    For the record, Your Honor,

 3   you're denying the motion for continuance?

 4                   THE COURT:    Yes.   The length of the trial

 5   would be?

 6                   MR. HUSAIN:    So on Friday, Mr. Greer made an

 7   additional admission for the Court that they are not

 8   disputing liability.     Assuming that's correct, we're not

 9   going to have to subpoena people on liability.         I just

10   want to make sure that's still their position because

11   that's going to affect the length of the trial.

12                   MR. GREER:    Well, Your Honor, this trial, it

13   sounds like -- actually, this is a case of liability.            I

14   said that before, and I'm saying that now.       This is a case

15   of liability.

16                       And apparently, if you're not going to

17   allow us to put on any evidence about damages and not

18   putting on anything about liability, it probably will be a

19   very short trial.    I am not stipulating liability.       I do

20   not have authority to do that for my client.

21                       In fact, my client specifically told me

22   that I could not do that.       I will tell the Court that my

23   driver has admitted he ran the red light and that's

24   certainly no surprise.       He admitted that in his

25   deposition, and that's certainly no surprise to them.
                                                                   13




 1                       So how long is the trial going to be, if

 2   that's the question?     You know, if I put on no evidence

 3   and put on no witnesses, it would be pretty short.        I

 4   would suspect no more than two or three days, under those

 5   circumstances.

 6                       In fact, it will probably take us longer

 7   to pick the jury than anything else.       I hope not to be in

 8   those circumstances.

 9                  MR. HUSAIN:    I'm just trying to clarify.      On

10   Friday, Mr. Greer stood up here and represented to the

11   Court that this is not a case about liability, that they

12   did it.    They admit it, and he's not going to fight us on

13   liability.    That, to me, is a judicial admission.

14                       He did it before the Court in open

15   court.    Is Mr. Greer going to fight us on liability?        If

16   so, we need to subpoena the police officer and prepare the

17   case for liability and damages versus just damages.

18                       I would just ask the Court to get a

19   clarification from the Plaintiff's counsel.

20                  MR. PAPPAS:    Can I speak to that?   I think

21   clarification is, in terms of liability, do we know what

22   the accident facts are?      Yes.   Do we intend to present how

23   the accident happened?     Our client will not agree to

24   stipulate.    So the answer is, you need to prepare your

25   case on liability, however you might prepare it, Counsel.
                                                                 14




 1                 MR. HUSAIN:    So Mr. Greer is withdrawing the

 2   representation he made in open court on Friday?

 3                 MR. GREER:    Your Honor, I'm not withdrawing

 4   anything.   I told you just a moment ago what our position

 5   is.   I have not made any judicial admissions.    I'm telling

 6   you how we're going to try our case and what the evidence

 7   is; and however you want to clarify that -- I guess I'm

 8   just trying to be honest.

 9                 THE COURT:    Okay.   Start subpoenaing whomever

10   you need to subpoena.

11                 MR. HUSAIN:    Thank you, Your Honor.

12                 THE COURT:    All right.   And with that, unless

13   you-all have something else?

14                 MR. GREER:    I'm a little unclear about where

15   we were on the docket.

16                 THE COURT:    Well, I have one ahead of you

17   that says they are going to take five days and then I have

18   another one that is two to three days.     So actually, I

19   will give you guys a call this week, Thursday, to let you

20   know where you fall in on the docket.

21                (Hearing concluded at 10:03 a.m.)

22

23

24

25
                                                              15




 1   THE STATE OF TEXAS     )

 2   COUNTY OF HARRIS       )

 3            I, Cantrece A. Addison, Certified Shorthand

 4   Reporter in and for the State of Texas, do hereby certify

 5   that the above and foregoing contains a true and correct

 6   transcription of all portions of evidence and other

 7   proceedings requested in writing by counsel for the

 8   parties to be included in this Volume of the Reporter's

 9   Record, in the above-styled and numbered cause, all of

10   which occurred in open court or in chambers and were

11   reported by me.

12            I further certify that this Reporter's Record of

13   the proceedings truly and correctly reflects the exhibits,

14   if any, admitted by the respective parties.

15            I further certify that the total cost for the

16   preparation of this Reporter's Record is $__________ and

17   will be paid by ________________________________________.

18            WITNESS MY OFFICIAL HAND this the 3rd day of

19   March, 2015.

20                        /s/ Cantrece A. Addison, CSR
                          _____________________________________
21                        CANTRECE A. ADDISON, TEXAS CSR #8236
                          Expiration Date: 12/31/2016
22                        201 Caroline, 13th Floor
                          Houston, Texas 77002
23

24

25
