                                                                             ACCEPTED
                                                                         04-15-00553-CV
                                                             FOURTH COURT OF APPEALS
                                                                  SAN ANTONIO, TEXAS
                                                                    9/15/2015 1:44:55 PM
                                                                          KEITH HOTTLE
                                                                                  CLERK

                         NO. 04-15-00553-CV

                                                       FILED IN
                                                4th COURT OF APPEALS
                     IN THE COURT OF APPEALS     SAN ANTONIO, TEXAS
               FOR   THE FOURTH DISTRICT OF TEXAS
                                                9/15/2015 1:44:55 PM
                          AT SAN ANTONIO          KEITH E. HOTTLE
                                                        Clerk



                       IN RE: RUBEN GONZALEZ,

                                          Relator.



       RELATOR’S REPLY TO REAL PARTIES’ RESPONSE TO
             PETITION FOR WRIT OF MANDAMUS




Counsel for Relator:

David H. Jones                      Jaime A. Gonzalez, Jr.
State Bar No. 10869590              State Bar No. 08127600
                                    Hector L. Rodriguez
LAW OFFICE OF DAVID H. JONES        State Bar No. 00791555
6521 North 10th Street, Suite E1
McAllen, Texas 78504                GONZALEZ & ASSOCIATES LAW
Telephone: (956) 627-6350           FIRM, LTD.
Email: David@DHJlawfirm.com         Summit Park North
                                    817 E. Esperanza Ave.
                                    McAllen, Texas 78501
                                    Telephone: (956) 664-0100
                                    Facsimile: (956) 664-1529




                  ORAL ARGUMENT REQUESTED
          SUPPLEMENT TO REQUEST FOR ORAL ARGUMENT

       Relator continues to believe that oral argument is not necessary to
decide this original proceeding. The failure of Real Parties’ Response to
legitimately address the critical issues in this proceeding only strengthens that
conclusion.

      Should this Court decide to set this case for oral argument, Relator
would draw the Court’s attention to the fact that appellate counsel for Relator,
David H. Jones, is currently set for oral argument in the Texas Supreme Court
on October 12, 2015. That case is complex. The Clerk’s Record alone is six
volumes. Therefore, if this Court sets this case for oral argument, Relator
requests that said oral argument be set either: 1) after October 12, 2015, or
2) next week, preferably early next week. This would allow counsel time to
prepare for the oral argument in the Supreme Court.




                 SUPPLEMENT TO MANDAMUS RECORD

     Relator will be filing a Supplemental Mandamus Record as soon as
possible. The Supplemental Mandamus Record will contain Relator’s
Seventh Supplemental Responses to Requests for Disclosure and attached
documents from Dr. Betancourt which were served on Real Parties in Interest
on September 4, 2015, demonstrating – in addition to what is already in the
Mandamus Record – that Real Parties had obtained records from Dr.
Betancourt even while representing to this Court that they had not. The
Supplemental Mandamus Record will also contain additional relevant
documents.




                                       -ii-
                                      TABLE OF CONTENTS


Supplement to Request for Oral Argument. . . . . . . . . . . . . . . . . . . . . . . . . ii

Supplement to Mandamus Record. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii

Table of Contents. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii

Argument. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

        I.       Real Parties in Interest failed to overcome the
                 fact that the medical examination is no longer
                 necessary, and the purpose of the medical
                 examination ordered by Respondent is moot. . . . . . . . . . . 1

        II.      Real Parties in Interest failed to show good
                 cause for the medical examination.. . . . . . . . . . . . . . . . . . . 3

                 A.       Less intrusive means of discovery were available
                          before the surgery. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

                 B.       Less intrusive means of discovery are still available. . . . 4

                 C.       Additional time is available to conduct discovery. . . . . . . 6


Prayer. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

TRAP 9.4(i)(3) Certificate. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

TRAP 52.3(j) Certificate. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

Certificate of Service.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9


APPENDIX

Order Granting Joint Motion for Continuance. . . . . . . . . . . . . . . . . . . Tab D




                                                      -iii-
                                ARGUMENT

I.    Real Parties in Interest failed to overcome the fact that the medical
      examination is no longer necessary, and the purpose of the
      medical examination ordered by Respondent is moot.

      The purpose of the medical examination, as asserted by Real Parties

in Interest Premier Eagle Ford Services, Inc. (“Premier Eagle”) and Abel

Alvarado Casillas (“Casillas”), was to determine whether a four level cervical

disc fusion surgery (the “4-disc surgery”) recommended by Dr. Gerardo

Zavala (“Dr. Zavala”) was necessary. (MR 66-68).

      Premier Eagle and Casillas wanted their retained expert, a Dr. Gilbert

Meadows (“Dr. Meadows”), to examine Ruben Gonzalez (“Gonzalez”) even

though Dr. Meadows had already reached an opinion that “[i]t is highly

unlikely that Mr. Gonzalez will have a positive outcome from the proposed

surgery.” (MR 82). In fact, Dr. Meadows apparently does not even need

medical records or an MRI. He stated in his Affidavit that “[b]ased on the

surveillance videos I reviewed, this man does not require surgery.” (MR 83).

Thus, it is clear that Premier Eagle and Casillas wanted the medical

examination so as to bolster an opinion that Dr. Meadows had already

reached.

      In Response to Gonzalez’s argument that the purpose of the medical

examination is now moot, Premier Eagle and Casillas assert that “[t[he

surgery, however, was not performed by Dr. Zavala ... but rather Dr.

Betancourt” and that there is a “great discrepancy” between what Dr. Zavala

recommended and the surgery actually performed. (Response, pp. 7-8).

                                     -1-
      Real Parties’ argument does nothing more than side-step the issue.

Everyone already knows that Gonzalez had the surgery recommended by Dr.

Betancourt rather than the surgery recommended by Dr. Zavala and that there

is a discrepancy between their recommendations.

      But, that does not change the fact that it is no longer necessary for Dr.

Meadows to examine Gonzalez and determine whether he should have 4-disc

surgery. He did not have that surgery, and he is not going to have it. Instead

of withdrawing their Renewed Motion to Conduct Medical Examination

(“Renewed Motion”), Real Parties proceeded as if no surgery had taken place,

seeking and obtaining a court order to determine whether a surgery that will

not occur is necessary.

      Real Parties assert that Dr. Meadows should be allowed to examine

Gonzalez’s spine anyway “to obtain a clear picture of Gonzalez’ spine and

ensure that Real Parties in Interest will have a fair trial.” (Response, p. 8).

This argument also fails.

      First, Dr. Meadows must have thought he had a “clear picture” of

Gonzalez’s spine when he opined that the surgery was “highly unlikely” to

have a “positive outcome” and that “this man does not require surgery.” (MR

82-83). He had reviewed Gonzalez’s MRI results and the surveillance video.

(MR 82). If Dr. Meadows wants another “clear picture” of Gonzalez’s spine,

then the Premier Eagle and Casillas lawyers who hired him can depose Dr.

Betancourt. They already have his medical records. (MR 58-65; and see

pending Supplemental Mandamus Record).

                                      -2-
      Second, the purpose of the medical examination, as ordered by

Respondent, was not to give Dr. Meadows a “clear picture” of Gonzalez’s

spine, but to allow Dr. Meadows to bolster his opinion that the 4-disc surgery

is unnecessary. That purpose is now moot, and Real Parties cannot change

the purpose and particulars of the medical examination after it has been

ordered by Respondent.

      Finally, there is no evidence that Premier Eagle and Casillas need the

medical examination to insure a “fair trial.” Real Parties offer no explanation

as to why they cannot obtain a fair trial without the medical examination, nor

do Real Parties explain why they cannot conduct discovery to obtain

information about the surgery that was conducted.

      Thus, the purpose of the medical examination is now moot, and

Respondent abused her discretion in ordering it.

II.   Real Parties in Interest failed to show good cause for the medical
      examination.

      In addressing Gonzalez’s contention that Premier Eagle and Casillas

failed to show that they have exhausted less intrusive means of discovery,

Real Parties again side-step the issue. They have also misrepresented the

record.

      A.    Less intrusive means of discovery were available before the
            surgery.

      Premier Eagle and Casillas make the disingenuous argument that they

could not depose Dr. Betancourt prior to the surgery or prior to filing their

Renewed Motion because they did not know about him, even though they

                                      -3-
admit they had been told that surgery was going to take place. (Response,

pp. 2, 5). Real Parties obviously decided to sit on the information that surgery

was going to take place and do nothing to find out when it would occur.

      Nevertheless, even assuming what Premier Eagle and Casillas claim is

true, it is irrelevant to the issue. Premier Eagle and Casillas did know about

Dr. Betancourt prior to the hearing on their Renewed Motion, and they still

made no effort to depose Dr. Betancourt or any of Gonzalez’s medical

providers other than Dr. Zavala.

      Dr. Betancourt was disclosed to Premier Eagle and Casillas on July 31,

2015, twenty-five days before the hearing on the Renewed Motion. (See

Response in Opposition to Relator’s Motion for Stay of Medical Examination,

p. 3 and Exhibit 3; RR 13, 14-15). Yet, despite knowing no later than July 31

that the 4-disc surgery would not take place and that a 1-level disc surgery

had already been done, Premier Eagle and Casillas failed to seek Dr.

Betancourt’s deposition and failed to conduct any discovery pertaining to the

surgery that was actually done. Instead, Premier Eagle and Casillas decided

to pretend that no surgery had taken place and to stubbornly persist in

seeking a medical examination for the purported purpose of learning whether

a surgery that would not occur was necessary.

      B.    Less intrusive means of discovery are still available.

      Second, Premier Eagle and Casillas offer no reason why they cannot

depose Dr. Betancourt now. Real Parties continue to complain that Gonzalez



                                      -4-
did not disclose Dr. Betancourt prior to the one disc surgery, but that is no

reason to refuse to take his deposition now.

     Premier Eagle and Casillas also misrepresent the record, claiming that

“it has been two months since Gonzalez’ surgery and he still has not

produced the records from Dr. Betancourt and Cornerstone Regional Hospital

in connection with the surgery.” (Response, pp. 5-6).

     However, Premier Eagle and Casillas not only received records from Dr.

Betancourt, they received records before the hearing on the Renewed Motion,

and those records are in the Mandamus Record. (MR 43-44, 58-65). There

are also additional records from Dr. Betancourt that were served on Premier

Eagle and Casillas on September 4, 2015, before Real Parties filed their

Response to the Petition for Writ of Mandamus. These documents will be

provided via a Supplemental Mandamus Record, which will be filed as soon

as possible.

     As for records from Cornerstone Regional Hospital, Gonzalez does not

have them either. Gonzalez has requested the records in writing, and they

will be forwarded to Premier Eagle and Casillas after Gonzalez obtains them.

(See pending Supplemental Mandamus Record).

     Even if it were true that Premier Eagle and Casillas had no records from

Dr. Betancourt, Real Parties offer no proof that they ever requested the

records. Instead, Real Parties are relying on Requests for Disclosure to

obtain them.



                                     -5-
     And, Premier Eagle and Casillas offer no explanation of why they

cannot request and obtain those records. Nor do they explain why they

cannot depose Dr. Betancourt with a subpoena duces tecum attached to the

deposition notice. As set forth more specifically below, the September 21,

2015 trial date has been continued, providing Premier Eagle and Casillas with

ample time to request medical records, review them, and then depose Dr.

Betancourt. (Appendix, Tab D).

     Furthermore, there are other means of post-surgery discovery available

to Premier Eagle and Casillas, such as written discovery. Real Parties do not

address these additional means of discovery or offer a reason why they are

inadequate.

     Finally, Premier Eagle and Casillas assert that despite their Dr.

Meadows’s complete review of Gonzalez’s medical records, review of Dr.

Zavala’s deposition, and review of the surveillance video, somehow “the

medical examination is critical.” (Response, p. 6). However, Dr. Meadows’s

own Affidavit fails to explain why he needs to conduct a medical examination

for any reason other than to bolster his opinion that the 4-disc surgery is

unnecessary. Since the 4-disc surgery did not take place and will not take

place, then Dr. Meadows’s examination is not “critical” to anything.

     C.    Additional time is available to conduct discovery.

     In their Response in Opposition to Relator’s Motion for Stay of Medical

Examination, Premier Eagle and Casillas contend that the underlying case is

set for trial on September 21, 2015.       (Response in Opposition, p. 2).

                                     -6-
However, Respondent has granted a continuance of the trial, and the case is

no longer set for trial on September 21, 2015. (Appendix, Tab D). Currently,

no trial date is scheduled.

      Thus, Premier Eagle and Casillas have plenty of time to conduct

discovery and obtain information about the one disc surgery which did take

place instead of wasting time determining whether a 4-disc surgery that will

not take place would have been necessary.

                                  PRAYER

      WHEREFORE, PREMISES CONSIDERED, RUBEN GONZALEZ,

Relator, prays that the Court grant his Petition for Writ of Mandamus and

enter an order directing the judge of the 111th Judicial District Court of Webb

County, Texas to vacate her August 25, 2015 Order Granting Cross-

Defendants’ Renewed Motion to Conduct Medical Examination and to enter

an order which denies the Renewed Motion to Conduct Medical Examination.

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

                                      -7-
                                     /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




                       TRAP 9.4(i)(3) CERTIFICATE

       Relying on the word count of the computer program used to prepare this
Brief, the undersigned certifies that the number of words in this document, not
including the matters set forth in Tex. R. App. P. 9.4(i)(1), is _________.


                                             /s/ David H. Jones
                                            David H. Jones




                                      -8-
               TRAP RULE 52.3(J) CERTI F I C A T I O N

     Pursuant to Rule 52.3(j) of the Texas Rules of Appellate Procedure, the
undersigned certifies that he has reviewed the Petition for Writ of Mandamus
and concluded that every factual statement in the Petition is supported by
competent evidence included in the appendix or record.


                                            /s/ David H. Jones
                                            David H. Jones




                       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 15th 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

                                      -9-
