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IN THE SUPREME COURT OF TEXAS NO

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					                            NO. 06-0169



             IN THE SUPREME COURT OF TEXAS


In Re: GENERAL MOTORS CORPORATION AND FORD MOTOR COMPANY,
                                             Relators


          Original Proceeding from Cause No. CC-02-02236-E,
           in the County Court at Law No. 5, Dallas County


REPLY TO REAL PARTY IN INTEREST DELORIS KAY HICKS’RESPONSE
            TO PETITION FOR WRIT OF MANDAMUS




                                   Brendan K. McBride
                                   State Bar No. 24008900
                                   Anthony A. Avey
                                   State Bar No. 00790250
                                   Grant T. McFarland
                                   State Bar No. 13598200
                                   PRICHARD HAWKINS MCFARLAND
                                    & YOUNG
                                   Union Square, Suite 600
                                   10101 Reunion Place
                                   San Antonio, Texas 78216
                                   Telephone: (210) 477-7400
                                   Facsimile: (210) 477-7450

                                   COUNSEL FOR RELATORS




                 ORAL ARGUMENT REQUESTED
                                                       TABLE OF CONTENTS
                                                                                                                                             Page

TABLE OF CONTENTS ................................ ................................ ................................ ............ ii

INDEX OF AUTHORITIES ................................ ................................ ................................ ......iii

SUMMARY ................................ ................................ ................................ ............................... 1

ARGUMENT ................................ ................................ ................................ ............................. 2

   I.         DEFENDANTS DILIGENTLY SOUGHT DISCOVERY ................................ ............................... 2

         A.        Timeline ................................ ................................ ................................ ...................... 2

         B.        Diligence In Seeking Discovery................................. ................................ .................. 4

              1.      Ford and GM did not willingly try this case without the evidence. ........................... 4

              2.      Defendants diligently sought discovery since new trial order. ................................ ..5

   II.             PLAINTIFF’ ADMISSIBILITY ARGUMENTS BEG THE QUESTION ................................ ...... 6
                            S

PRAYER ................................ ................................ ................................ ................................ .... 8

VERIFICATION ................................ ................................ ................................ ...................... 10

CERTIFICATE OF SERVICE................................ ................................ ................................ ..11




                                                                                                                                                     ii
                                      INDEX OF AUTHORITIES
                                                                                                           Page
Cases

In re Dominion Resources, Inc., Nos. 13-04-00536-CV, 13-04-00622-CV, 2005 WL 310778
   (Tex. App. –Corpus Christi 2005)(orig. proceeding, not designated for publication)............... 8

In re Van Waters & Rogers, Inc., 62 S.W.3d 197 (Tex. 2001) ................................ ..................... 8




                                                                                                                iii
TO THE HONORABLE SUPREME COURT OF TEXAS:

           Relators, General Motors Corporation (“   )
                                                  GM” and Ford Motor Company

(“Ford”1, file this Reply to Real Party in Interest Delorise Kay Hicks’Response to GM
       )

        s
and Ford’ Petition for Writ of Mandamus and in support thereof, would show the Court

as follows:

                                                       SUMMARY

                                s
           Contrary to Plaintiff’ suggestion that Defendants went to trial without objection,

the record clearly establishes that Defendants vigorously objected to being put to trial

without being allowed full discovery.                          The record further establishes Defendants

diligently pursued the discovery from the point Defendants first learned of Kenneth

Hicks’exposure at Amercoat and continued to pursue the discovery diligently after the

                             s
trial court granted Plaintiff’ Motion for New Trial.

                                                       s
           The evidence is clearly relevant to the jury’ determination of the likely cause of

Hicks’ mesothelioma, which is a key issue at the heart of this litigation and is vital
     s

                      s         s
evidence in support GM’ and Ford’ primary defense to this case - namely, that Hicks’

mesothelioma was probably caused by his exposure to amphibole asbestos while working

around a “hammer mill” making pipe insulation rather than the alleged occasional

exposure to chrysotile asbestos from brake pads. Plaintiff offers no reason why the

discovery would be burdensome, invade a privilege or any other valid exception to

discovery. Given the importance of the evidence to the defense, an d the lack of any valid

objection to its discoverability, the trial court clearly abused his discretion by restricting

1
    For clarity, the parties will be referred to by name or by their designation in the trial court.
GM and Ford from obtaining the evidence to support their defense or to make a record

for appeal.

                                       ARGUMENT

I.     DEFENDANTS DILIGENTLY SOUGHT DISCOVERY

       The record demonstrates Defendants were more than reasonably diligent in

pursuing the testing evidence. Essentially, Plaintiff argues that it was Defendants’burden

in the middle of the trial to arrange for testing laboratories and experts, prepare a

proposed protocol, and attempt to halt mid-trial for a mandamus proceeding. Given the

timing of the discovery of the Amercoat exposure just weeks before the first trial, and

since destructive testing had not been specifically denied by the Court, Defendants

protected their rights by filing a motion for continuance on the grounds that they were

entitled to fully investigate the Amercoat exposure before trial. (R. 95).

       Obviously, there was no reason to further pursue the matter between the time of

        s                                                                          s
the jury’ verdict (September 4, 2005), and the date of the order granting Plaintiff’

Motion for New Trial (April 18, 2005). Moreover, as the timeline set forth below

demonstrates, since the new trial order, Defendants have diligently pursued this matter.

Tellingly, Plaintiff fails to cite even a single case to support her waiver argument.

       A.     Timeline

       Defendants present the following timeline of relevant events establishing diligence

leading up to the filing of Defendants’Petition for Writ of Mandamus:

       June 16, 2004 -                                                  s
                            Delorise Hicks testifies about Kenneth Hicks’ employment
                            at Amercoat. (R 56-57).



                                                                                        2
July 26, 2004 -     Amercoat exposure confirmed in affidavits from coworkers.
                    (R. 49-55).

July 28, 2004 -     Supplement to Motion for Continuance raising discovery of
                    Amercoat exposure. (R. 41-60).

August 12, 2004 -   Defendants’ Motion to Strike and For Sanctions regarding
                    concealment of Amercoat exposure by Plaintiffs. (R. 65-
                    372).

August 16, 2004 -   First trial begins.

August 16, 2004 -   Motion for Order Compelling Release of Pathology Materials
                    and Allowing Destructive Testing filed. (R. 377-393).

August 17, 2004 -   Order on first motion on destructive testing compelling
                    release by M. D. Anderson. (R. 394).

Sept 3, 2004 -      Verdict in first trial. (R. 395-413).

April 18, 2005 -                            s
                    Order granting Plaintiff’ Motion for New Trial. (R. 584).

June 22, 2005 -     Defendants receive tissue samples from M.D. Anderson. (R.
                    601).

August 17, 2005 -                                        s
                    Defendants first discover trial court’ order resetting case for
                    trial on September 6, 2005. (R. 586-597).

August 22, 2005 -                                                        s
                    Defendants attempt to obtain agreement from Plaintiff’
                    counsel on testing. (R. 619).

Sep. 26, 2005 -     Defendants’ Motion to Allow Destructive Testing and
                    Request for Expedited Hearing. (R. 599-630).

Oct. 4, 2005 -      Expedited hearing denied. (R. 631).

Dec. 2, 2005 -      Hearing on Motion to Allow Destructive Testing. (R. 641-
                    669).

Dec. 13, 2005 -     Parties submit agreed letter and order on testing protocol in
                    the event the motion is granted. (R. 670).




                                                                                 3
       Dec. 22, 2005 -     Court denies Motion to Allow Destructive Testing. (R.
                           674).

       January 22, 2006 - Court reporter completes hearing transcript. (R. 669).

       February 3, 2006 - Defendants file Petition for Writ of Mandamus with
                          Court of Appeals.

       B.    Diligence In Seeking Discovery.

             1. Ford and GM did not willingly try this case without the evidence.

       The record shows that Defendants did not learn of Hicks’ asbestos exposure at
                                                              s

Amercoat until mere weeks before trial.       Defendants’ should have learned of this

significant exposure with proper disclosures and discovery responses from Plaintiffs well

before that time. Plaintiff argues that Ford and GM were not diligent by suggesting that

there was no evidence that Plaintiffs concealed Hicks’s Amercoat exposure (Response at

2).   As the evidence attached to Defendants’ Motion to Strike and For Sanctions

demonstrates, there is evidence that Plaintiffs concealed Hicks’ asbestos exposure at
                                                               s

Amercoat. Plaintiffs’responses to specific interrogatories regarding workplaces where

Hicks’was exposed to asbestos, and the type and nature of each exposure, referred the

Defendants to his “work history sheets.” (R. 225 (Interrogatory 15 f-k)). However, the

                                           s
work history sheets did not disclose Hicks’ employment at Amercoat, nor the possibility

of his exposure to asbestos while employed there. (R. 260-273). It is disingenuous to

suggest that Defendants were required to go on a wild goose chase through all of Hicks’

employment history when Plaintiffs were specifically asked about his exposures to

asbestos and provided incomplete answers.




                                                                                           4
       Given the late discovery of this critically important evidence, Defendants did the

only thing they could do at that time - move for a continuance in order to conduct a

                                                                       s
proper and thorough investigation of all the evidence in light of Hicks’ exposure at

Amercoat. (R. 41-60). Defendants also moved for sanctions for Plaintiffs’ concealment

                                                          not
of the evidence. (R. 65-372). Ford and GM even announced “ ready”when the case

was called for trial. After the continuance was denied, Defendants’joined in a co-

         s
defendant’ motion in the midst of trial to compel the production of the samples and to

allow destructive testing. The trial court allowed the production of the samples but

issued no express ruling on the motion to allow destructive testing. (R. 394).

       In short, the record conclusively establishes that Defendants did not willingly try

this case in the first trial without the testing evidence. Rather, Defendants explained to

the Court that they were not given sufficient time to perform a proper investigation of the

Amercoat exposure, and timely and properly requested a continuance in order to do so.

              2.     Defendants diligently sought discovery since new trial order.

       The record further establishes that GM and Ford diligently pursued the testing

evidence after the new trial was granted.       Defendants’ counsel almost immediately

contacted a records service about regaining the tissue samples from M.D. Anderson. The

samples arrived two months later. Defendants’ counsel arranged for experts to propose a

testing protocol, and was preparing to go forward with a motion and hearing requesting

                                                                                          s
the trial court to allow the destructive testing. Because of a clerical error at the clerk’

                 s
office, Defendant’ counsel was not aware that the case had been reset for trial on

September 6, 2005, and discovered the trial setting only by accident on August 22, 2005.


                                                                                           5
The case was reset by order of the trial court August 26, 2005. In the meantime,

                                                                         s
Defendants’counsel continued to try to conduct the testing with Plaintiff’ consent and

participation.   (R. 619).   One month later, Defendants filed their Motion to Allow

Destructive Testing and requested an expedited hearing, which was denied.

                s
       Plaintiff’ suggestion that GM and Ford delayed “17 months”after the first trial is

false and misleading. (Response at 4).          There was no reason to further pursue the

discovery during the nearly eight (8) months between the first verdict and the new trial

order. It was the Plaintiffs, apparently unhappy with the judgment, who moved for a new

trial. It took two (2) more months to recover the samples. GM and Ford requested an

expedited hearing, which was denied, requiring them to wait more than two (2) more

months to get a hearing with a court reporter. It took yet another month to obtain a

hearing transcript from the reporter. And the mandamus petition was filed less than two

weeks after receiving the hearing transcript.

       The record demonstrates Defendants have been more than reasonably diligent.

 II.    PLAINTIFF’ ADMISSIBILITY ARGUMENTS BEG THE QUESTION
                 S

                                s
       As anticipated, Plaintiff’ main argument regarding the discoverability of the

evidence relates not to discovery but consists solely of contentions about its admissibility.

First, they argue that the lack of a protocol for conducting the testing rendered the mot ion

inadequate (Response at 3). However, as the record demonstrates , an agreed protocol was

worked out between the parties as to the division of the samples and was submitted to the

trial court in accordance with the parties ’agreement on the record . (R 670). Regardless,

Plaintiff’ argument is not a valid challenge to the discovery of the evidence.
         s


                                                                                            6
                 s
        Plaintiff’ argument regarding Mr. Orden’s affidavit is also inapposite. First, Mr.

Orden does not have to be a pathologist to conduct a lab test.          He needs to be a lab

testing expert - which he is. The interpretation of the testing results will certainly be left

to the parties’respective pathology/medical causation experts. Second, that Mr. Orden

may be unqualified, or use an inappropriate testing methodology, might be an argument

                                                                            s
about the admissibility of the testing, but there is no attempt in Plaintiff’ response to

explain how this bears on Defendants’right to conduct the discovery in the first place.

                 s
        Plaintiff’ argument that the evidence would be cumulative is well wide of the

mark.    (Response at 4-5).     First, that again is simply a potential objection to the

admissibility of the testing. Plaintiff cites no rules or cases that would restrict discovery

on the basis that, even if relevant, evidence cannot be discovered if – in the opinion of

counsel –it may be of “questionable significance.” There was no attempt by Plaintiff to

demonstrate undue burden, harassment, invasion of any applicable privilege or any other

valid objection to discovery.

        Second, Plaintiff completely misunderstands the relevance of the evidence. It is

not for the sole purpose of establishing the absence of chrysotile, but also to demonstrate

the presence of large amounts of crocidolite in Hicks’lungs. It would be extremely

important evidence supporting Defendants’claim that Hicks’illness was caused by his

exposure to amphibole asbestos at Amercoat rather than brake work and would support

Defendants’experts’opinions that crocidolite is far more dangerous and more likely the

              s
cause of Hicks’ illness than brake dust for the very reason that the fibers from the former

stayed in the tissue of his lungs for a very long time, while fibers from the latter did not.


                                                                                                 7
                s
       Plaintiff’ and her experts’inability or refusal to differenti ate between the relative

risks from different types of asbestos exposure does not prohibit Defendants from

                                      s
obtaining evidence to do so. Plaintiff’ arguments ultimately beg the question: if the

evidence is of “questionable significance” but there is no demonstrated harm from, or

legal restriction against, obtaining the evidence, why not allow the discovery, allow

Plaintiff to make her objections, if any, to the admissibility at trial, and handle the matter

just as the court would any other objections to evidence?

       Regardless, the discovery at issue certainly does go to the ‘heart’of the litigation,

and Respondent’ order was an abuse of discretion correctible by mandamus. See In re
              s

Van Waters & Rogers, Inc., 62 S.W.3d 197, 201 (Tex. 2001) ; In re Dominion Resources,

Inc., Nos. 13-04-00536-CV, 13-04-00622-CV, 2005 WL 310778 (Tex. App. – Corpus

Christi 2005)(orig. proceeding, not designated for publication).

                                          PRAYER

       Relators pray that this Court grant their Petition , direct the trial court to vacate its

                                 s
order denying testing on decedent’ lung tissue, and to permit Relators to proceed with

discovery without delay. Relators also pray that this Court direct the trial court to

approve the testing protocol developed and submitted by Relators for consideration , or in

the alternative, order the trial court to devise a reasonable testing protocol which allows

for fiber burden analysis testing on the lung tissue samples. Relators further pray for

such other and further relief to which they may be justly entitled.




                                                                                                 8
Respectfully submitted,


____/S/_______________________
Brendan K. McBride
State Bar No. 24008900
Anthony A. Avey
State Bar No. 00790250
Grant T. McFarland
State Bar No. 13598200


PRICHARD HAWKINS McFARLAND
& YOUNG, L.L.P.
10101 Reunion Place, Suite 600
San Antonio, Texas 78216
210-477-7400 Telephone
210-477-7450 Telefax

ATTORNEYS FOR RELATORS
GENERAL MOTORS CORPORATION
AND FORD MOTOR COMPANY




                                 9
                                 VERIFICATION

STATE OF TEXAS           §
                         §
COUNTY OF BEXAR          §

      BEFORE ME, the undersigned notary public, on this day personally appeared
Anthony A. Avey, who being by me duly sworn on his oath, deposed and said that he is
one of the counsel of record for Relators General Motors Corporation and Ford Motor
Company, that he has read the above and foregoing Reply to Response to Petition for
Writ of Mandamus, and that every factual statement contained therein is within his
personal knowledge and is true and correct.



                                             ______________________________
                                             Anthony A. Avey



      SUBSCRIBED AND SWORN TO BEFORE ME on March 28, 2006, to certify
which witness my hand and official seal.


                                             ______________________________
                                             Notary Public in and for
                                             The State of Texas




                                                                                 10
                          CERTIFICATE OF SERVICE

       I certify that a true and correct copy of the Relators’ Petition for Writ of
Mandamus was served on all counsel of record on March 28, 2006 via first class mail,
return receipt requested.


                                             ____/S/_______________________
                                             Brendan K. McBride




                                                                                 11

				
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