                                                                             ACCEPTED
                                                                         01-15-00566-CV
                                                              FIRST COURT OF APPEALS
                                                                      HOUSTON, TEXAS
                                                                    8/27/2015 3:27:53 PM
                                                                   CHRISTOPHER PRINE
                                                                                  CLERK



                     No. 01-15-00566-CV
                                                        FILED IN
                                                 1st COURT OF APPEALS
                          IN THE                     HOUSTON, TEXAS
                                                 8/27/2015 3:27:53 PM
                FIRST COURT OF APPEALS           CHRISTOPHER A. PRINE
                                                         Clerk

                   AT HOUSTON, TEXAS
___________________________________________________________

          IN RE VALERO REFINING – TEXAS, L.P.,
___________________________________________________________

  Original Proceeding arising from Cause No. 12CV1541, in the
         212th District Court of Galveston County, Texas
___________________________________________________________

               REAL PARTY IN INTEREST’S
   RESPONSE TO PETITION FOR WRIT OF MANDAMUS
___________________________________________________________

                              SIMPSON, P.C.

                              Iain G. Simpson
                              State Bar No. 00791667
                              1333 Heights Blvd., Suite 102
                              Houston, Texas 77008
                              (281) 989-0742
                              (281) 596-6960 – fax
                              iain@simpsonpc.com

                              APPELLATE COUNSEL FOR
                              REAL PARTIES IN INTEREST
                              VERNON FOX AND MIKKI FOX

         ORAL ARGUMENT CONDITIONALLY REQUESTED
                IDENTITY OF PARTIES AND COUNSEL

Real Parties in Interest:    Counsel for Real Parties in Interest:

Vernon Fox and Mikki Fox     Alton C. Todd
                             THE LAW FIRM OF ALTON C. TODD
                             312 S. Friendswood Drive
                             Friendswood, Texas 77546
                             281-992-8633
                             281-648-8633 – facsimile

                             TRIAL COUNSEL

                             Iain G. Simpson
                             SIMPSON, P.C.
                             1333 Heights Boulevard, Suite 102
                             Houston, Texas 77008
                             281-989-0742
                             281-596-6960 – facsimile

                             APPELLATE COUNSEL




                               ii
                                       TABLE OF CONTENTS

IDENTITY OF PARTIES AND COUNSEL ................................................... ii

INDEX OF AUTHORITIES..............................................................................vi

STATEMENT REGARDING ORAL ARGUMENT.................................... ix

RESPONSIVE ISSUES PRESENTED ............................................................. 1

STATEMENT OF FACTS .................................................................................. 1

SUMMARY OF THE ARGUMENT ................................................................ 7

ARGUMENT ...................................................................................................... 10

        The Standard of Review ........................................................................ 10

        Responsive Issue One ............................................................................ 11

        Mandamus cannot issue against a successor judge for her
        predecessor’s order. Valero attacks the wrong order and
        asks for the wrong relief. Valero’s Petition must be denied.

                 A.       Judge Griffin’s Order for new trial is no longer at
                          issue. ...................................................................................... 12

                 B.       Judge Grady’s Order does not state her basis,
                          and Valero never asked Judge Grady to do so. ............... 12

        Responsive Issue Two ........................................................................... 14

        Judge Grady’s reasons for declining to reconsider Judge
        Griffin’s order may include considerations of judicial
        consistency and continuity within the case and her court, as
        well as recognition that her predecessor was actually present
        for trial and able to view witness testimony.           Such

                                                          iii
considerations are anything but unguided and unprincipled.
They cannot be an abuse of discretion.

        A.       Consistency of decisions within a single case is a
                 valid judicial concern. ........................................................ 14

        B.       Decision of the case at bar and the trial court’s
                 order for new trial rested upon the credibility of
                 many witnesses, none of whose testimony Judge
                 Grady was able to hear in person. ................................... 15

        C.       Both considerations of consistency and lack of
                 opportunity to weigh the credibility of witnesses
                 may constitute good cause for allow Fox’s new
                 trial to proceed. ................................................................... 17

Responsive Issue Three ......................................................................... 18

Should the Court decide to consider it, Judge Griffin’s Order
was supported by his own observation of all witnesses
during testimony in open court and his evaluation of their
credibility.

        A.       Valero’s experts never testified that Fox’s experts
                 were wrong. .......................................................................... 18

        B.       Fox presented evidence that, even if subjective, is
                 still evidence. ....................................................................... 19

Responsive Issue Four ........................................................................... 21

Evidence showed that Fox suffered physical injury from
chemical exposure that is more than just mental anguish and
that demonstrated both specific and general causation.




                                               iv
                  A.        Valero mischaracterizes and minimizes the
                            nature of Fox’s injury in an effort to make its
                            point. ..................................................................................... 21

                  B.        Valero never actually argues that Fox failed to
                            show general causation...................................................... 22

                  C.        Fox presented evidence of specific exposure to
                            particular toxins. ................................................................ 23

CONCLUSION .................................................................................................. 24

PRAYER .............................................................................................................. 25

CERTIFICATE OF COMPLIANCE ............................................................... 26

CERTIFICATE OF SERVICE .......................................................................... 27




                                                             v
                                     INDEX OF AUTHORITIES

Cases

Borg-Warner v. Flores,
     232 S.W.3d 765 (Tex. 2007)................................................................... 23

Coastal Tankships, U.S.A., Inc. v. Anderson,
      87 S.W.3d 591 (Tex. App.—Houston [1st Dist.] 2002,
      pet. denied). ........................................................................................... 22

Downer v. Aquamarine Operators,
    701 S.W.2d 238 (Tex. 1985)................................................................... 10

E.I. du Pont de Nemours & Co. v. Robinson,
       923 S.W.2d 549 (Tex. 1995)................................................................... 19

Holloway v. Fifth Court of Appeals,
     767 S.W.2d 680 (Tex. 1989)............................................................. 10, 13

In re Anna C. Smith,
       332 S.W.3d 704 (Tex. App.—Texarkana 2011,
       orig. proceeding). ................................................................................. 20

In re Baylor Med. Ctr. at Garland (“Baylor I”),
       280 S.W.3d 227 (Tex. 2008)................................................................... 11

In re Baylor Med. Ctr. at Garland (“Baylor II”),
       289 S.W.3d 859 (Tex. 2009)................................................................... 12

In re Columbia Med. Ctr. of Las Colinas,
       290 S.W.3d 204 (Tex. 2007)............................................................. 12, 17

In re Cook,
       356 S.W.3d 493 (Tex. 2011)............................................................. 12, 13



                                                         vi
In re Prudential Ins.,
       148 S.W.3d 124 (Tex. 2003)................................................................... 10

In re Schmitz,
       285 S.W.3d 451 (Tex. 2009)................................................................... 11

In re Toyota Motor Sales,
       407 S.W.3d 746 (Tex. 2014)................................................................... 20

In re United Scaffolding,
       377 S.W.3d 685 (Tex. 2012)............................................................. 13, 17

Paradigm Oil v. Retamco Operating,
      372 S.W.d 177 (Tex. 2012)..................................................................... 15

Slaughter v. Abilene State School,
     561 S.W.2d 789 (Tex. 1977)................................................................... 19

Tilton v. Marshall,
      925 S.W.2d 672 (Tex. 1996)................................................................... 10

Walker v. Packer,
     827 S.W.2d 833 (Tex. 1992)................................................................... 10

Rules

TEX. R. APP. P. 7.2 ......................................................................................... 7, 11

TEX. R. CIV. P. 320. ............................................................................................ 16

Secondary Sources

Michael Henke and Craig Margolis, The Taking and Use of Video
     Depositions: An Update, 17 Rev. Litig. 1, 14 n. 56 (Winter,
     1998). ....................................................................................................... 16



                                                           vii
Stephanie A. Vaughan, Persuasion Is an Art ... But It is Also an
     Invaluable Tool in Advocacy, 61 BAYLOR L. REV. 635, 672 n.
     238 (2009). ............................................................................................... 16

Jansen Voss, The Science of Persuasion: An Exploration of
     Advocacy and the Science Behind the Art of Persuasion in the
     Courtroom, 29 L. & PSYCHOL. REV. 201, 216 (2005)............................. 16




                                                         viii
            STATEMENT REGARDING ORAL ARGUMENT

      Real Parties in Interest, Vernon Fox and Mikki Fox (together, “Fox),

request oral argument in this matter but only conditionally and only

because Relator, Valero Refining—Texas, L.P., has done so. In truth, Fox

believes that little reason exists for the Court to hear oral argument in this

matter. Should the Court even reach the majority of the record in this case,

a review of that record is all that is necessary for the Court’s decision. Oral

argument can shed minimal additional light. Consequently, should the

Court grant oral argument to Valero, Fox requests equal time. Otherwise,

Fox waives oral argument.




                                      ix
                   RESPONSIVE ISSUES PRESENTED

     1.    Mandamus cannot issue against a successor judge for her
           predecessor’s order. Valero attacks the wrong order and
           asks for the wrong relief. Valero’s Petition must be
           denied.

     2.    Judge Grady’s reasons for declining to reconsider Judge
           Griffin’s order may include considerations of judicial
           consistency and continuity within the case and her court,
           as well as recognition that her predecessor was actually
           present for trial and able to view witness testimony. Such
           considerations are anything but unguided and
           unprincipled. They cannot be an abuse of discretion.

     3.    Should the Court decide to consider it, Judge Griffin’s
           Order was supported by his own observation of all
           witnesses during testimony in open court and his
           evaluation of their credibility.

     4.    Evidence showed that Fox suffered physical injury from
           chemical exposure that is more than just mental anguish
           and that demonstrated both specific and general
           causation.

                         STATEMENT OF FACTS

     On January 12, 2011, Valero’s Texas City refinery released crude oil

from a storage vessel in its tank farm, due to overfilling. Droplets of crude

oil crossed the road where Vernon Fox, an employee of BP, traveled that

day. This much is firmly established by the evidence, and no one disputes

it. Fox was on the road near the release when it occurred. Fox testified to


                                     1
it, and no one disputes it.

      In its briefing, Valero suggests that Fox was not exposed to anything

from the spill until approximately an hour after the overflow had been

stopped. Valero’s Petition, at 2. It also notes that Fox had a H2S monitor

on his person that was not triggered. Id. But Fox’s testimony is somewhat

different. Fox testified that he was aware of unusual “smells” when he

passed by Valero’s tank farm on the way to check a valve that morning,

though he did not see anything overflowing. ROA 1:933-44. He testified

that those “smells” were much stronger on the return leg of his journey.

ROA 1:945. While Fox had his H2S monitor in the cab of his truck, he was

not wearing it at the time. ROA 1:945. It was on his jacket, which was on

the truck seat beside him.    Id.   On the return leg of his journey, Fox

described driving into a “vapor cloud.” ROA 1:946. Perceiving an unsafe

situation that needed to be addressed and intending to look for a leak, Fox

stopped his truck and exited the cab, leaving his H2S monitor behind. Id.

Having observed a spill, Fox returned to his office where he contacted

Valero concerning the spill. ROA 1:947. Fox testified that he was shaken

by the realization that he had been exposed to a chemical or chemicals that

could have been ignited, even as he stood there. ROA 1:947-48. Later that
                                     2
day, Fox’s supervisor sent him home. ROA 1:948-49. The disputes arise

with regard to Fox’s claimed harm. Valero’s argument is that Fox was

“faking it.”

      As both fact and expert witness, Fox presented evidence concerning

his course of treatment by Dr. Ly, his treating psychiatrist, who diagnosed

Fox with a major depressive disorder. He also presented evidence from Dr.

Polk, a clinical psychologist, who cared for and treated Fox for a

considerable period. ROA 1:733. Dr. David Axelrad is a psychiatrist and

neuropsychiatrist who examined Fox at the request of his counsel. ROA

1:1175. Dr. Axelrad has specific experience treating patients with post-

traumatic stress disorder (PTSD).        ROA 1:1180, 1:1193.   Dr. Axelrad

testified that PTSD is a form of physical brain injury resulting from the

release of excess stress chemicals. ROA 1:1266. When under stress, the

body releases cytokines that promote an inflammatory response. ROA

1:1205. This is more than simple anxiety, but an actual physical response to

extreme stress.

      Dr. Axelrad testified that Fox suffers from a major neurocognitive

disorder, resulting from physical brain injury secondary to exposure to

neurotoxins.      ROA 1:1197-98.   These brain injuries and the resulting
                                     3
neurocognitive disorder manifest in major impacts on his behavior. ROA

1:1198. Dr. Axelrad also noted that, where a person has suffered brain

injury and potentially life-threatening circumstances, this can lead to the

development of PTSD. ROA 1:1201. Dr. Axelrad observed that multiple

professionals—a clinical psychologist following Fox over a period of time

and a treating psychiatrist—diagnosed Fox with PTSD. ROA 1:1202. He

also testified that, in his estimation, Fox meets the criteria for a PTSD

diagnosis. Id.

     Dr. Priscilla Ray is a psychiatrist, brought to trial as an expert witness

by Valero.   Dr. Ray testified that Dr. Ly—Fox’s treating psychiatrist—

followed appropriate standards of care in treating him, prescribing

psychotherapy and medication. ROA 1:1501-02. Dr. Ray testified that Fox

claimed symptoms consistent with the disorders he claims and that Dr. Ly

prescribed appropriate medication for post-traumatic stress disorder

(PTSD). ROA 1:1503-04. Dr. Ray also agreed that, if Fox did not show

particular symptoms of PTSD upon her examination of him, this could be

due to the fact that medication he was prescribed for that condition was

actually working. ROA 1:1502.



                                      4
     Dr. Ray testified that Fox suffered from major depression and from a

somatic symptom disorder.      ROA 1:1524.     She acknowledged that he

showed no such symptoms before his exposure to the chemical release.

ROA 1:1523-24. She acknowledged that, before this incident, he was a

healthy, happy family man, one who enjoyed working. ROA 1:1523. She

acknowledged that Fox reported feeling “defeated” and that Dr. Axelrad—

who diagnosed Fox with PTSD—could be right. ROA 1:1525. She said

that, even in her own opinion, Fox could have “a major depressive

disorder.” ROA 1:1525-26.

     Dr. Ray’s explanation for Fox’s situation is “malingering” in pursuit

of an “external incentive”—money. ROA 1:1522. She testified that pursuit

of a lawsuit or disability payments could have motivated him.         ROA

1:1520-21. But she could provide no explanation as to why Fox continued

to work for a year following his exposure, and used up his sick time and

vacation time in that spell. Id. She also could provide no explanation as to

why a “malingerer” would wait over a year, post-accident, to consult a

lawyer. Id.

     Dr. Ray confirmed that Fox was diagnosed with a major depressive

disorder by multiple doctors. ROA 1:1532. She confirmed that Dr. Ly
                                     5
mentions his suicidal ideation. ROA 1:1549. This occurred in September

2011, prior to any discussion with Dr. Axelrad, Fox’s expert witness. ROA

1:1551. The diagnosis and symptoms discussed, up to that point, came

solely from Fox’s treating health care and mental health care providers. Dr.

Ray was asked about Fox’s anxiety about returning to work and agreed

that it could arise from returning to the location where his chemical

exposure occurred. ROA 1:1559. She recognized the recommendation that

he take time away from work because of possible safety concerns related to

his anxiety and PTSD and that this time away was recommended by his

treating health care providers. ROA 1:1560. Again, she recognized that

this was prior to any meeting with Dr. Axelrad. ROA 1:1560-61.

     Dr. David Rosenfield is a neurologist and expert witness retained by

Valero.   ROA 1:1572.    In his testimony, Dr. Rosenfield confirmed his

understanding that, among the chemical components to which Vernon Fox

would have been exposed were hydrogen sulfide (referred to throughout

the proceedings as “H2S”) and benzene. ROA 1:1630-31. Dr. Rosenfield

observed that the fact of exposure was not dependent upon the amount of

oil or chemicals spilled. ROA 1:1631. Dr. Rosenfield confirmed that H2S is

a neurotoxin and can create neurocognitive deficits. ROA 1:1617. It can
                                     6
also cause a number of other symptoms, including headache, dizziness,

weakness, exhaustion, irritability, and insomnia.    ROA 1:1621-22.    Dr.

Rosenfield confirmed that these were symptoms described by Fox. ROA

1:1623-24.   OSHA instructs that, at lower concentrations, the effects of

exposure can be delayed. ROA 1:1623.

      Dr. Rosenfield confirmed that H2S exposure can occur through

inhalation or through eye or skin contact. ROA 1:1621. While apparently

disputing Fox’s testimony at trial, he testified in his deposition that Fox

was most likely exposed to chemical vapors. ROA 1:1633-34. Finally, Dr.

Rosenfield confirmed that breathing in H2S can interfere with the enzyme

cytochrome oxidase, an enzyme necessary for brain cells’ use of oxygen.

ROA 1:1644-45. That interference with oxygen use can cause damage to the

brain. Id.

                    SUMMARY OF THE ARGUMENT

      Valero makes much of Hon. Brent Griffin issuing his Order for a new

trial on his final day in office, and it spends almost its entire petition

attacking the correctness and propriety of Judge Griffin’s Order. But it is

not Judge Griffin’s Order that is in question. A writ of mandamus must be

directed to someone, and that someone cannot be an official who no longer
                                    7
holds office. Such is the rationale for TEX. R. APP. P. 7.2(b), which provides

for abatement of an original proceeding in order to allow a new office

holder to reconsider the actions and orders of her predecessor and provide

opportunity to give her own opinion and grounds to justify or refute such

an order. That is both the situation here and not the situation here.

     Two trial judges, not just one, rejected Valero’s position. Valero

attacks the wrong order and provides an insufficient mandamus record.

Valero attacks Judge Griffin’s Order, but it is Hon. Patricia Grady’s Order

on Valero’s Motion for Reconsideration that holds sway. It is Judge Grady

who is the Respondent in this matter, and Judge Grady took office and

considered the issues at bar well before Valero filed the current Petition.

Yet, even knowing that appropriate specificity of a new trial order was an

issue in this matter—having pressed it as part of its Motion for

Reconsideration (ROA 137-139)—Valero sat on its hands as Judge Grady

signed a single-page Order denying its Motion for Reconsideration and

cementing Fox’s right to a new trial. ROA 188. Valero never protested or

sought any greater detail, and the bases for Judge Grady’s Order are a

mystery. Mysteries cannot support mandamus. Valero argues that

judgment on the jury’s verdict should have been entered but never sought
                                      8
an explanation as to why it was not.      What Valero seeks by way of

mandamus this Court cannot grant.

     Even so, the potential bases for Judge Grady’s Order range beyond

what could have been contemplated by Judge Griffin.           Maintaining

consistency and continuity of judicial decision-making within a Court and

a single case; the simple fact that Judge Griffin was able to evaluate the

credibility of each witness in open court rather than from a cold record,

these are factors that might well have figured in Judge Grady’s calculus.

As Valero itself admits, the case is largely about credibility. Contrary to

Valero’s position, however, jurors are not the only ones who evaluate

witness credibility. Short of a finding that such reasons are “no reason,”

Judge Grady’s Order cannot be an abuse of discretion.

     Finally, even if the Court should delve back into the activities of

Judge Grady’s predecessor, it will find that Judge Griffin’s Order was well

within the bounds of his discretion. Valero’s own expert witnesses could

not rule out Fox’s claim to damages, and, even as Valero criticizes Fox’s

description of symptoms as entirely subjective, its own experts throw

around a “diagnosis” of “malingering”—a subjective estimation, if ever

there were.
                                    9
                                ARGUMENT

                           The Standard of Review

      Mandamus is an extraordinary remedy, reserved for use in instances

of manifest and urgent necessity. Holloway v. Fifth Court of Appeals, 767

S.W.2d 680, 684 (Tex. 1989). It is not issued as a matter of right, but solely at

the discretion of the court, In re Prudential Ins., 148 S.W.3d 124, 138 (Tex.

2003), and only when the relator “satisfies a heavy burden of establishing

‘compelling circumstances.’” Tilton v. Marshall, 925 S.W.2d 672, 681 (Tex.

1996). “As a selective procedure, mandamus can correct clear errors in

exceptional cases and afford appropriate guidance to the law without the

disruption and burden of interlocutory appeal.” Id. But the Court may

issue mandamus only when the relator demonstrates and the Court finds

that (1) the trial court has committed a clear abuse of discretion and (2) the

relator lacks any adequate remedy at law. Walker v. Packer, 827 S.W.2d 833,

839 (Tex. 1992).

      A trial court abuses its discretion only if it acts without reference to

any guiding rules and principles. Downer v. Aquamarine Operators, 701

S.W.2d 238, 241-42 (Tex. 1985). The question is not whether the reviewing

court believes the trial court’s action appropriate or correct. Id. Valero

                                       10
argues steadily concerning what the jury could have found, but it fails to

focus on what the trial court did find. As relator in a mandamus

proceeding, it is not enough for Valero to state that its sought after result is

a reasonable, permissible outcome. It must argue that it is the only outcome

consistent with the law.

                           Responsive Issue One

            Mandamus cannot issue against a successor judge for her
            predecessor’s order. Valero attacks the wrong order and
            asks for the wrong relief. Valero’s Petition must be
            denied.

      Although a particular respondent is not critical in a mandamus

proceeding, the writ must be directed to someone. In re Schmitz, 285 S.W.3d

451, 454 (Tex. 2009). And generally a writ will not issue against one judge

for what another did. In re Baylor Med. Ctr. at Garland, 280 S.W.3d 227, 228

(Tex. 2008) (“Baylor I”). Thus, in an original proceeding where the judge

who signed the order at issue has “cease[d] to hold office,” an appellate

court “must abate the proceeding to allow the successor to reconsider the

original party's decision.” TEX. R. APP. P. 7.2. Consequently, the Texas

Supreme Court has refused to consider the reasons given by a first trial

judge in a new trial order, when it was a successor’s refusal to reconsider


                                      11
the order that was at stake. See In re Baylor Med. Ctr. at Garland, 289 S.W.3d,

859, 860 (Tex. 2009) (“Baylor II”).

      A.    Judge Griffin’s Order for new trial is no longer at issue.

      Valero complains—exclusively—about the actions of Judge Griffin. It

explores and examines Judge Griffin’s new trial order. But Judge Griffin is

no longer the judge of the 212th District Court. Judge Griffin ceased being

the judge of that Court long before Valero ever filed its Petition for Writ of

Mandamus. And Judge Griffin is not the Respondent in this case and is not

the one who would be compelled to act by any writ issued by this Court.

“As in Columbia and Baylor II . . . the former trial court’s order is no longer

at issue here, as the successor trial judge has since issued a subsequent

order.” See In re Cook, 356 S.W.3d 493, 495 (Tex. 2011) (citing In re Columbia

Med. Ctr. of Las Colinas, 290 S.W.3d 204 (Tex. 2007).).

      B.    Judge Grady’s Order does not state her basis, and Valero never
            asked Judge Grady to do so.

      Even as it raised the alleged dearth of specificity of Judge Griffin’s

Order in its Motion for Reconsideration (ROA 137-139), Valero has sat on

its hands in the trial court since mid-April, when Judge Grady denied that

Motion, never requesting a more specific order, and never requesting the


                                      12
justification or basis for Judge Grady’s decision. And now, Valero comes to

this Court in the name of “manifest and urgent necessity.” See Holloway,

767 S.W.2d, at 684. Valero simply cannot demand the Court exercise its

extraordinary writ power under such circumstances.

      Judge Grady’s Order does not specify the reasons for her denial of

Valero’s Motion for Reconsideration. ROA 188. Yet that Order is no less a

refusal to enter judgment on the jury verdict than was Judge Griffin’s, and

it is the only Order that counts now. See Cook, 356 S.W.3d, at 494. The

Court may not presume that, simply because a valid basis is not stated in

the Order, that Judge Grady did not have one. See In re United Scaffolding,

377 S.W.3d 685, 690 (Tex. 2012) (trial court’s failure to state why it granted a

new trial does not mandate a conclusion that it did not have a valid reason

for doing so). Valero’s failure to request Judge Grady’s rationale leads

directly to a failure of its mandamus record, and the Court need read no

further. Because Valero does not present a record that contains this crucial

information, everything else in the record is irrelevant. The record Valero

provides is wholly insufficient to show Valero’s right to the relief it seeks.

Valero’s Petition must be denied.



                                      13
                          Responsive Issue Two

     Judge Grady’s reasons for declining to reconsider Judge
     Griffin’s order may include considerations of judicial
     consistency and continuity within the case and her court, as
     well as recognition that her predecessor was actually present
     for trial and able to view witness testimony.           Such
     considerations are anything but unguided and unprincipled.
     They cannot be an abuse of discretion.

     Valero’s burden in its Petition is to show that Judge Grady acted

arbitrarily and without reference to any guiding principle in her denial of

Valero’s Motion for Reconsideration. As has already been argued, Valero

cannot show why Judge Grady acted as she did, at all, because Valero

never asked her. Nevertheless, as the new judge of a trial court being

asked to reconsider the actions of her predecessor, Judge Grady faced

concerns distinct from those of Judge Griffin.

     A.    Consistency of decisions within a single case is a valid judicial
           concern.

     Valero bases its arguments on what the jury could have found, rather

than reviewing what the trial court actually did find. It was the latter that

was the basis for its order, not what is cited by Valero. Of course, once

again, Valero did not inquire about that basis. That said, consistency of

judicial decision-making, particularly within a single case, is a valid


                                     14
concern for any court. See, e.g., Paradigm Oil v. Retamco Operating, 372

S.W.3d 177, 182 (Tex. 2012) (noting the effect of the “law of the case”

doctrine).   The “law of the case” doctrine applies to questions of law,

however, the concerns underpinning it are no less valid when applied to

factual determinations and applicability of legal standards. As the newly

elected judge of the 212th District Court, Judge Grady may well have been

reluctant to go down a path of reconsidering her predecessor’s orders,

wholesale. If she were to do so in one case, she might be expected to in

every case. Mandamus exists to correct clear errors in extraordinary cases.

It does not exist to allow litigants to nitpick trial court decisions and press

appellate courts to micromanage trial court cases and dockets.

      B.     Decision of the case at bar and the trial court’s order for new
             trial rested upon the credibility of many witnesses, none of
             whose testimony Judge Grady was able to hear in person.

      As the only judge who was present in the courtroom for the trial of

this matter and the testimony of each witness, Judge Griffin was in a

position to see what neither Judge Grady nor this Court can see. Valero

itself states that the overriding factor in determining the outcome of this

case is credibility. While Valero cites, in particular, Vernon Fox’s

credibility, the credibility of every witness is significant. Fox’s testimony is

                                      15
of particular significance because the centerpiece of Valero’s argument is

not that he was not exposed to any harmful chemical, but that he is faking

his symptoms.

       Judge Griffin was able to see and hear each witness—including Fox—

testify, rather than relying upon a cold record. Because credibility is such

an issue in this matter, Judge Grady was entirely justified in leaving her

predecessor’s new trial order undisturbed. She had only a transcript before

her and could not evaluate the testimonial demeanor of the witnesses.1

Her reluctance to backtrack from Judge Griffin’s order under such

circumstances cannot constitute an abuse of her discretion.

       C.     Both considerations of consistency and lack of opportunity to
              weigh the credibility of witnesses may constitute good cause
              for allowing Fox’s new trial to proceed.

       The Texas Supreme Court has expressly declined to define what

constitutes the “good cause” for which TEX. R. CIV. P. 320 permits a new


1      Further, psychologists suggest that non-verbal communication accounts for 65 to
70 percent of the total communication between humans. Stephanie A. Vaughan,
Persuasion Is an Art ... But It is Also an Invaluable Tool in Advocacy, 61 BAYLOR L. REV. 635,
672 n. 238 (2009) (citing Jansen Voss, The Science of Persuasion: An Exploration of Advocacy
and the Science Behind the Art of Persuasion in the Courtroom, 29 L. & PSYCHOL. REV. 201,
216 (2005). Other estimates place the figure higher. Michael Henke and Craig Margolis,
The Taking and Use of Video Depositions: An Update, 17 Rev. Litig. 1, 14 n. 56 (Winter,
1998) (“One commentator has suggested that as much as 60% to 93% of all
communication is non-verbal.”). Again, this sort of communication was something
Judge Griffin could see that Judge Grady could not.
                                             16
trial. See In re Columbia, 290 S.W.3d, at 210 n. 3. In the same case, the Court

reiterated the broad discretion that trial courts have to grant new trials. 290

S.W.3d, at 210.     Absent any authority suggesting that consistency of

practice and limitations on Judge Grady’s ability to evaluate the effect of

witness testimony are not valid considerations, the Court should presume

that they are. Again, Valero failed to ask Judge Grady about the reasons

for her Order, but both of the above-raised grounds were a part of Fox’s

response to Valero’s Motion for Reconsideration. ROA 1:143-58. “In most

cases a new trial will be granted for reasons stated in a motion for new

trial, so that such an explanation will alert the parties to the reason the

judge found persuasive, further illuminating the substantive basis for the

order.” In re United Scaffolding, 377 S.W.3d, at 688. Based on this, Valero is

on notice of both of the above-stated rationales, yet still fails to attack either

in its Petition. Once again, Valero’s Petition fails and must be denied.




                                       17
                         Responsive Issue Three

     Should the Court decide to consider it, Judge Griffin’s Order
     was supported by Fox’s expert witness testimony that linked
     his chemical exposure to his PTSD and depression, and
     Valero’s experts even admitted that testimony could be correct.

     Fox testified to the fact of his own chemical exposure. ROA 1:946.

His physician and psychologist experts gave information concerning Fox’s

major depressive disorder, and Dr. Axelrad testified as to how the

exposure could lead to PTSD—a physical condition with behavioral

manifestation. Three experts—Drs. Polk, Pollock, and Axelrad—testified

that the severe depression and major depressive disorder suffered by Fox

resulted from his chemical exposure.

     A.    Valero’s experts never testified that Fox’s experts were wrong.

     But even more telling is the testimony of Drs. Ray and Rosenfield,

both retained by Valero.      Despite Dr. Ray offering an alternative

explanation for Fox’s symptoms from that posited by Dr. Axelrad, she

never testified that Dr. Axelrad was wrong. Indeed, she testified that he

could be right. ROA 1:1525. Likewise, Dr. Rosenfield—who never actually

examined or met Fox—confirmed that Fox’s claimed route of H2S exposure

is a genuine avenue of such exposure and that H2S is a neurotoxic


                                    18
substance that can cause the sort of neural deficits and problems of which

Fox complains. ROA 1:1617. Dr. Rosenfield also testified to the physical

damage that such exposure can cause, interfering with the brain’s use of

oxygen and causing damage to brain cells. ROA 1:1644-45. But, once

again, this does not contradict the position taken by Fox’s experts who had

been treating him for months and—unlike Dr. Rosenfield—had actually

spoken to him. The trial court’s acceptance of uncontroverted evidence as

suggestive that the jury has erred can hardly be an abuse of discretion.

     B.    Fox presented evidence that, even if subjective, is still evidence.

     Valero’s primary complaint appears to be, not that there is no

evidence to support Fox’s position and the trial court’s decision, but that

Fox’s symptoms are, at least to some degree, subjective and are not easily

verifiable by objective means. This does not mean, however, that they are

not evidence. See Slaughter v. Abilene State School, 561 S.W.2d 789, 791 (Tex.

1977) (expert testimony based upon case history given by patient, physical

examination, and x-rays, reciting opinion “consistent with” patient’s

complained of symptoms was admissible).         Nor does it mean that the




                                     19
expert opinions based upon those symptoms are, of necessity, unreliable.2

Id. Evidence that Valero discounts is, nonetheless, evidence. It is not

Valero’s job to say what the trial court found convincing; it is the trial

court’s job.

       The combination of testimony from multiple retained and non-

retained expert witnesses, as cited by the Court, is more than sufficient to

justify its Order. See In re Anna C. Smith, 332 S.W.3d 704 (Tex. App.—

Texarkana 2011, orig. proceeding) (finding that order reciting witness

testimony in general terms was sufficient to meet requirements of In re

Columbia Med. Ctr.). It is not sufficient that Valero argue what the jury was

“free to find.”         It must attack—entirely—what the Court did find.

Provided that the basis for the Court’s Order is not contradicted by the

record—and it is not—there is no basis for the Order to be re-visited. Cf. In

re Toyota Motor Sales, 407 S.W.3d 746, 761 (Tex. 2014). To the extent that it

was Judge Griffin’s job to say, if asked, what he found convincing, he did

so. To the extent that it was Judge Grady’s job to do so, again, Valero never

asked.
2     Moreover, reliability of evidence is, in general, a matter for the trial court to
decide. Trial courts routinely opine on the reliability of evidence in order to admit or
exclude it. Indeed, it is a core part of the trial court’s gatekeeping function. See, e.g., E.I.
du Pont de Nemours & Co. v. Robinson, 923 S.W.2d 549 (Tex. 1995).
                                              20
                          Responsive Issue Four

     Evidence showed that Fox suffered physical injury from
     chemical exposure that is more than just mental anguish and
     that demonstrated both specific and general causation.

     A.    Valero mischaracterizes and minimizes the nature of Fox’s
           injury in an effort to make its point.

     Valero next argues that the trial court abused its discretion by

granting Fox a new trial because his evidence is legally insufficient to show

damages. In particular, it argues that he cannot recover damages for the

injury done to him because he must show a serious physical injury. In

order to minimize Fox’s claim, Valero mischaracterizes his claim as one for

“mental anguish.” This is not what Fox’s claim is about. Fox’s claim is for

Post-Traumatic Stress Disorder—a physical condition with psychological

and behavioral manifestation.

     As Dr. Axelrad testified, PTSD is a form of physical brain injury

resulting from the release of excess stress chemicals. ROA 1:1266. When

under stress, the body releases cytokines that promote an inflammatory

response. ROA 1:1205. PTSD is not merely anxiety, it is the behavioral

manifestation of a very real physical injury. Valero’s discussion of Fox’s

damage as mere “mental anguish” entirely mischaracterizes his injury and


                                     21
mischaracterizes his case. Fox presented uncontradicted expert testimony

that PTSD results from a serious physical brain injury. Valero never took

issue with this testimony in the trial court. It still does not take issue, now.

      Furthermore, Dr. Rosenfield testified as to the very physical effects of

H2S on the brain. Dr. Rosenfield confirmed that breathing in H2S can

interfere with the enzyme cytochrome oxidase, an enzyme necessary for

brain cells’ use of oxygen.       ROA 1:1644-45.      He also conceded that

interference with oxygen use can cause damage to the brain. Id. It was not

an abuse of discretion for the trial court to take Valero’s own witness’s

testimony at face value.

      B.    Valero never actually argues that Fox failed to show general
            causation.

      Finally, Valero complains concerning general and specific causation.

Valero first correctly notes that general causation asks whether a particular

substance is capable of causing injury or a condition in the general

population. See Coastal Tankships, U.S.A., Inc. v. Anderson, 87 S.W.3d 591,

602 (Tex. App.—Houston [1st Dist.] 2002, pet. denied). Valero then argues

that there is no evidence of the amount of toxin to which Fox was exposed.

This, of course, is not a question regarding general causation, but one


                                       22
regarding specific causation—toxins causing damage, not in the general

population, but in a specific individual.

      In any case, Valero’s own expert witness, Dr. Rosenfield,

acknowledged that Fox was exposed to H2S and that it is a neurotoxin.

ROA 1:1617.     He also confirmed that it can cause a number of other

symptoms,     including    headache,    dizziness,   weakness,   exhaustion,

irritability, and insomnia. ROA 1:1621-22. These are some of the very

symptoms observed in Fox.

      Moreover, as Dr. Axelrad testified, at least a portion of Fox’s

damages stem from PTSD. PTSD is not caused by H2S exposure but by an

extreme stress reaction that causes a release of cytokines within the brain.

ROA 1:1205.     Exposure is part of the equation, but it is not all of it.

Characterizing Fox’s claim as entirely a toxic tort claim again

mischaracterizes it.

      C.    Fox presented evidence of specific exposure to particular toxins.

      Unlike the case law cited by Valero, which presents toxic exposure

cases that developed over many, many years of exposure to toxic products

from many different defendants, Fox alleges a single, discreet incident

where there is only one defendant. See Borg-Warner Corp. v. Flores, 232
                                       23
S.W.3d 765, 773 (Tex. 2007). Flores considered a suit against a particular

maker of asbestos-containing brake pads and a plaintiff’s allegations that

he had been exposed to these brake pads, as well as brake pads from many

other manufacturers and asbestos from other sources. A major concern of

Flores is that evidence be defendant-specific, so that a defendant that causes

only minimal exposure cannot be said to have caused an occupational

disease.

      In contrast, there is no other defendant in Fox’s suit but Valero.

There is no other evidence showing the source for the toxins to which he

was exposed, and there is causal evidence showing that he did not

demonstrate his particular symptoms before exposure but did so after

exposure. The trial court did not abuse its discretion by declining to apply

a precedent that is, factually, worlds apart from the allegations and central

facts of Fox’s suit.

                              CONCLUSION

      Mandamus is not a remedy for every trial court error. It exists for use

in cases of manifest and urgent necessity, where a trial court has taken

action that is unguided by any legal principle or rule. That is not the

situation here. Two trial judges viewed the evidence differently from the
                                     24
jury. The first explained the reasons behind granting a new trial in an

entirely sufficient order. The second gave no explanation, nor was she

requested to give any such explanation. But even if this did not add up to

a failure of Valero’s mandamus record, Valero simply cannot justify

mandamus in this case. The trial court’s action is not egregious. It is not

unguided. It is simply different from what Valero would have. It is not an

abuse of discretion. Mandamus is completely inappropriate given both the

state of the record and the evidence adduced. It should be, indeed must be,

denied.

                                PRAYER

     For the foregoing reasons, Real Parties in Interest Vernon Fox and

Mikki Fox, respectfully request that Valero Refining Texas, LLC’s Petition

for Writ of Mandamus be denied.




                                    25
                                   Respectfully submitted,

                                   SIMPSON, P.C.

                                   /s/ Iain G. Simpson
                                   ______________________________
                                          Iain G. Simpson
                                   State Bar No. 00791667
                                   1333 Heights Boulevard, Suite 102
                                   Houston, Texas 77008
                                   (281) 989-0742
                                   (281) 596-6960 – fax
                                   iain@simpsonpc.com

                                   APPELLATE COUNSEL
                                   FOR VERNON FOX AND MIKKI FOX




                   CERTIFICATE OF COMPLIANCE

      I hereby certify that the foregoing response is computer-generated
and that those portions required to be counted by Rule 9.4(i)(1), Texas
Rules of Appellate Procedure, contain 6,420 words, according to the word-
count function of the application used to create it. The response is printed
in 14-point typeface, except for the footnotes, which are in 12-point
typeface.


                                     /s/ Iain G. Simpson
                                     ______________________________
                                     Iain G. Simpson




                                    26
                       CERTIFICATE OF SERVICE

      I hereby certify that, on August 27, 2015, I served a true and correct
copy of the foregoing Response to Petition for Mandamus via electronic
service, certified mail, facsimile, or hand delivery on the following:

David W. Burns
Tekell, Book, Allen & Morris, LLP
1221 McKinney, Suite 4300
Houston, Texas 77010
713-222-9542–telephone
713-655-7727–facsimile

James F. Bennett
Megan Heinsz
Dowd Bennett, LLP
7733 Forsyth Boulevard
St. Louis, Missouri 63105
314-889-7300–telephone
314-863-2111–facsimile

Richard P. Hogan, Jr.
Jennifer Bruch Hogan
James C. Marrow
Hogan & Hogan
Pennzoil Place
711 Louisiana, Suite 500
Houston, Texas 77002
713-222-8800–telephone
713-222-8810–facsimile




                                    27
Alex M. Miller
The Valero Companies
One Valero Way
San Antonio, Texas 78249
210-345-2857–telephone
210-345-4567–facsimile

COUNSEL FOR VALERO REFINING – TEXAS, L.P.



                                /s/ Iain G. Simpson
                                ________________________________
                                Iain G. Simpson




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