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CAUSE N0.07#l4-OO397-CV

MARCUS EVERETTE HARPER § COURT OF APPEALS
Plaintiff

v. § sEVENTH DISTRICT oF

TEXAS DEPARTMENT OF

§ POTTER COUNTY, TEXAS
CRIMINAL JUSTICE

MOTION FOR INTERLOCUTORY

 

TEX.CIV.PRAC.& REM.CODE ANN.§ 51.014

To the Honorable Judge of this Court: n
Comes now.Marcus E Harper Hereafter preferred to as Plaintiff

hereby move to proceed Under CPRC § 51.014 (b),(f)
STATEMENT OF FACTS

On April 25,2008 around about l:3O AM The plaintiff (while in~
carcerated on the clements unit T.D.C.J.@I.D.) was injured by a
'plastic trash can (with a defective wheel was filled with boiling
water cullapsed Dumping its entire (45) gallon-450 LBS) contents
onto plaintiff scalding him. Plaintiff was severly burned with
second and third degree burns blistering and scuffing the skin and
muscle most predominantly on the lift leg and foot.

n Plaintiff was superficially treated at the scene by prison medi-
cal staff yet he had to be transportyed by amdulance to the North-
west Hospital in Amarillo,Tx...Where the Doctor detrmined,that his
pain and durn injuries were so servere that he had to be transported
to the Medical Burn Center in Lubbuck. Doctor M.D. Sharmila looked
at my Burns gave me medical care then sent me back that morning to
the Clements Unit infirmary with a standard of medical care that

the defendant was suppose to follow the inadequate medical care the
defendants failed to comply with medical care plan and my leg bee
came infected I was in so much pain I could not sleep for three days
begged them to please help me, so Iwas sent back to theBurnGenteE
and I seen doctor M.D. Sharmila she asked why Ihaven't came back

for follow up. I said," the doctor Revell told me that I didn't
need to go back for a follow-up because he is in charge. Then off-
icer gave the doctor M.D Sharmila the records for Bill Clements as
to the treatment they did on me and M.D Sharmila said,"l see why

he didn't send you back because he didn't follow instruction.

I

 

STANDARD FOR REVIEW

See O'Connor's 20l2 Texas\Rules Civil Trials Ch 3 pg.242
§ 7. Plea to the juridiction., §7.1 Interlocutory Appeal.

[l] For an action commenced defore September l.ZOll a trial court
can allow an inter locutory appeal from an order that is not other-
wise appealable only if the parties agee to the order granting on
an interlocutory appeal and the following conditions are met:(l)
the order to be appealed involves a controlling guestion of law a-
bout which there is a sudstantial ground for difference of opinion
and (2) an immediate appeal from the order may materially advance
the ultimate termination of the litigation. See H.B. 274 §§ 3.0l,
6.01,6.02 82nd leg.,R.S.,eff.SEPt.l,ZOll see O'Connor's Texas Ape
peals, interlocutory Appeals," Ch3 p.l42

[2] For an action commenced on or after September l,ZOll trial
court,on its own initiative or on a party's motion can allow and
appeal from an order that is not otherwise appealable if the fol-
lowing conditions are metz (l) the order to be appealed involves
a controlling question of law about which there is a substantial
ground for difference of opinion and (2) an immediate appeal from
the ordeer may materially advance the ultimate termination of the»
litigation cPRc § 51.014 (d); TRCP 168;H.B. 274,§§ 3.01,6.01, 6.02
82nd LEG., R.S.,eff Sept 1,2011 permission must be stated in the
order being appealed rather than in a separate order.TRCP 168 Cmt
Although the trial court can grant permission to appeal,the court
of appeals has discretion to accept or refuse to hear the appeal
see CPRC §51.014 (f).

The appeal order was expressly authorized by trial court see
(Vol l P.l3,18-21).

II

See O'Connor's TRCT 2012 ch.6, p.409 Discvery Rule for Court
l.l RULES TRCP 176,190-205,215.
l.2. Purpose of discovery is to allow the parties to obtain full
knowledge of the issues and facts of the law suit before trial
West v.Solito 563 S.W.Zd 240/243 (tex 1978) the objective of the
Texas discovery rule is to prevent trial ambush Gutierrez v.Dallas
729 S.W.2d 691,692 (Tex 1987).
2.2 Documents & tangible things the phrase includes papers, book,

accounts drowing graphs, charts, Photographs electronic or video-
tape recordings, data,and.comp ilations TRCP 192.3 (b)
2

A party is required to produce only thoes documents or tangible
things in its possession,costody or controle TRCP 192.3 (b) Id 856
s.w. 2d at 728-29;See also In re U-Haul Int'l 87 s.w.3d 656-57 (Tex
App-San Antonio 2002 orig proceeding)

Under TRCP 191 Parties and their attornys are expected to coope-
rate in discovery and to make any agreement that are reasonable n
necessary to efficently bispose of the case TRCP l9l.2
l A Party has 30 days after the date of service of the reguest for
document to respond, depending on the type of service TRCP 196.2 (a)
see Schein v.American Rest.Grp.,852 s.w.2d 496,497 D.2(Tex 1993)
Howrver, a defendant that is served with a request before the dev
fendant]s answer is due has 50 days to respond,TRCP 196»2 (a)

Failure to comply with procedures, If a party does not comply
with the procedores for resisting discovery the party waive its
objections to discovery and its claims of privilege and the trial
court should compel production TRCP 193.2 (e); eg HOBSON v Moore
734 s.w.2d 340,341 (Tex:1987) D waived law enforement privilege b
because he filed late objections to interrogatories Villoreal v.
Domingvez 745 s.w.2d 570,572 (Tex. App.Corpus Christi 1988)

Sanction If a party obusees discovery/the court may find that
the party waived its discovery privileges and objections.Occidental
Chem. Corp V. Banales 907 sw. 2d 488,490 (Tex.l995): eg,In re Love-
rnia Nursing Facility. inc. 12 s.w.3d 566,571 (Tex.App.San Antonio
1999 orig proceeding)(Court found that defendants concealed records)

Section 74.351 doe not stay other/less costy form of discovery
additionally,once a claim is filed under Chapter 74 requires Health
Care Defendant's to comply with the discovery procedures set out
in the legislation Tex.Civ.Proc.& Rem.Code.ANN 74.352 See In re
Memorial Herman Hosp.system 209 S.W.3d 835,841 (App.14 Dist 2006)

III

The defendant stated, "that I had to hire my own expert witness
that I Could not use the doctor Physicain who provided treatment
at Bun Center who was licensed to practice medicint at the time
plaintiff claim was arose.

TRCP 192.3 (c) An expert is "a person with knowledge of relevent
facts" only if that knowledge was obtained first-hand,or if it was
not obstaned in preparation for trial or in anticipation of liti-
gation.

O'Connor's TRCT ch.6. P.483 §3.1,2 Discovery about nonretained

expert. there are four discovery procedures that can be used to se-

3

 

cure information about or from a nonretained testifying expert:
(l) a reguest for disclosure
(2) an oral deposition
(3) a deposition on written question,and
(4) a subpoena TRCP 176, 194.2 (f) (1)-(3), 205.1,

Plaintiff did not see the discovery on the Appeal Cover Steet.

So plaintiff only con direct the Appeal cout to the Spot where the
discovery should be see A.C.S. 117-119. pg.278-281. Plaintiff states
there's evidence in the discover that showes this cause of action
has merits for instance:
l) the standard of care by the Burn Medical Center,see (Harper pg.

352- 354),
2) the defendant failed to follow the standard of care, see (Harper
223-227, and 284-308),also
3) the M.D doctor Sharmila stated ,"that the defendants failed to

follow orders that's'why plaintiff is back to the Burn Medical
Center,See (Harper pg. 070)

All this could have been proven at a proper, discovery and de-
position hearing. For one reason plaintiff could have asked M.D.
Sharmila,why did she state the defendants failed to follow orders

is the reason plaintiff is back for an infection."

Defendants deadline

Respond to Discovery

Served by U.S Mail n 5 days+ 30day= 35 days
l Appeals cover sheet
12. original comlaint, 2-11-09 pg.l5 at. pg.6 discovery,
13. discover 2-11-09,pg.52
15. discovery letter 3-29-09 pg.56
24. discovery mtion to compel 11-06-09 pg.68
28. Motion requesting to develop discovery plan 3-3-10 pg.73
30. compel discovery 10-11-10 pg.76
33.-34. compel discovery 11-8-10 pg.78
40. motion for discovery conferance 3-10-11 pg.9l
4l.mtion for pre-trial conference 1-4-11 pg.92
44. requestin meeting to discuss the nature and basis of the
claim 3-15-11 pg.95
Plaintiff received no answer from defenats

TX.C.P.R 74.351 after filing an compaint plaintiff has 120 days to

4

 

serve expert report.

Under TX.C.P.R. 74.352 defendants have 45 days to comply with
discovery (b)(d).

Or the defendant above the rule of discovery TCPR 74.352 (b)(d)
where they dont have to comply and with hold evidence until time
runs out for plaintiff to serve expert report. But plaintiff have
to try to comply with the expert report with no discovery.

This is just like a chess game plaintiff made the first move by
requesting discovery on time., But the defendants failed to make
their move by complying with discovery request. So plaintiff could

comply with the serving of expert report.

CONCLUSION
l. The trial court gave an order that plaintiff could appeal her
decision.
'2. Does this cause of action involves a controlling guestion of
law? '
3. Will this appeal order immediate advance the ultimate termina-
tion of litigation.
4. The discovery and deposition of medical record was needed to
access in formation necessary for the preparation of the expert re-

port.

PRAYER
For all the above reasons stated in I,II,and III Plaintiff

Prays that the Honorable Appeal Court reverse this judgement

CERTIFICATE OF SERVICE
Plaintiff, dohereby certify that a true and correct copy of this
document was serve upon the trial court clerk Caroline Woodburn,P.O
box 9570, Amarill,Tx 79101- 9570. Also the defendants through the
Attorme General at P.O.Box 12578 Capitol Station Austin,Tx 8711 by
placement in the U.S. mail Postage at TDCJ clements Unit on 27 day
ofMarch 2015 _
I, Marcus Everette Harper #692332,being presently incarcerated
in the williams Clements Unit does herby declare that all of the
foregoing is true and correct to the best of knowledge and recol-

1‘ /

lection Under penalty of perjur (28 U.S.C.§1749). 1111 ;,/ jf’
on 27 day of March 2015 Marcus".Ha pe
sworn executed. Bill Clements Unit
9601 Spur 591
Amarillo, TX79107

   
     

 

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