IN THE SUPREME COURT OF TEXAS - PDF by liuqingzhan

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									                             NO. ______


             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


              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
                   IDENTITIES OF PARTIES AND COUNSEL



Relators
Ford Motor Company, General Motors Corporation

Real Party in Interest
Delorise Kay Hicks

Counsel for Relators, Ford Motor Company and General Motors Corporation:
Brendan K. McBride
(Lead appellate counsel)
Anthony A. Avey
(Lead trial counsel)
Grant T. McFarland
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 Real Party in Interest, Delorise Hicks
Charles Siegel
Charles E. Valles
Waters & Kraus, L.L.P.
3219 McKinney Ave., Suite 3000
Dallas, Texas 75204
Telephone: (214) 357-6244
Facsimile: (210) 357-7252

Respondent
Hon. Mark Greenberg
Presiding County Court at Law Judge
County Court of Dallas County
at Law No. 5
500 Main Street, 4th Floor
Dallas, Texas 75202




                                                                           ii
                                                TABLE OF CONTENTS

                                                                                                                              Page

Identities of Parties and Counsel ................................ ................................ ...................... ii

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

Index of Authorities ................................ ................................ ................................ ......... v

Statement of the Case................................ ................................ ................................ ..... vii

   Nature of the underlying proceeding ................................ ................................ .......... vii
   Respondent................................ ................................ ................................ ................. vii
   Action from which relief requested; trial court proceedings ................................ ....... vii
   Court of Appeals Disposition................................ ................................ ...................... vii

Statemet of Jurisdiction................................ ................................ ................................ ..vii

Issue Presented................................ ................................ ................................ .............. viii

Record ................................ ................................ ................................ .......................... viii

Argument Summary ................................ ................................ ................................ ......... 1

Statement of Facts................................ ................................ ................................ ............ 2

   Surprise Discovery of Crocidilite Exposure on the Eve of Trial. ................................ ... 2
   The First Trial. ................................ ................................ ................................ ............. 3
   Defendants diligently pursued fiber burden evidence................................. ................... 5

ARGUMENT ................................ ................................ ................................ ................. 6

   I.      .Respondent Clearly Abused His Discretion By Denying Discovery Of Critical
           Evidence................................. ................................ ................................ .............. 6

        A. Lung tissue testing is critical and discoverable evidence; no exception to
           discovery applies. ................................ ................................ ............................. 7

        B. Respondent Understood The Evidence To Be Discoverable. ....................... 12

   II. There is no adequate remedy by appeal. ................................ .......................... 14



                                                                                                                                      iii
Prayer ................................ ................................ ................................ ............................ 15

Verification................................ ................................ ................................ .................... 17

Certificate of Service ................................ ................................ ................................ ..... 18




                                                                                                                                      iv
                                            INDEX OF AUTHORITIES

                                                                                                                          Page
Cases

Beaumont Bank, N.A. v. Buller, 806 S.W.2d 223 (Tex. 1991) ................................ ........ 14

In re CSX Corp., 124 S.W.3d 149 (Tex. 2003) ................................ ............................... 11

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) ................................ ................................ ................................ ................ 11

In re Van Waters & Rogers, Inc., 62 S.W.3d 197 (Tex. 2001) ................................ ........ 11

Jampole v. Touchy, 673 S.W.2d 569 (Tex. 1984) ................................ ........................... 14

Johnson v. Fourth Court of Appeals, 700 S.W.2d 916 (Tex. 1985)................................ . 14

Merrell Dow Pharmaceuticals, Inc. v. Havner, 953 S.W.2d 706 (Tex. 1997) ............. 9, 10

Minnesota Min. and Mfg. Co. v. Atterbury, 978 S.W.2d 183 (Tex. App. –Texarkana
 1998, pet. denied) ................................ ................................ ................................ ......... 9

Scott v. Twelfth Court of Appeals, 843 S.W.2d 439 (Tex. 1992) (orig. proceeding) ........ 14

Walker v. Packer, 827 S.W.2d 833 (Tex. 1992) ................................ ....................... 14, 15

West v. Solito, 563 S.W.2d 240 (Tex. 1978) ................................ ................................ ... 11


Statutes

TEX. GOV’ CODE § 22.221(b) ................................ ................................ ......................... v
        T



Rules

TEX. R. APP. P. 52.3(j) ................................ ................................ ................................ ..... vi

TEX. R. CIV. P 192.3(a) ................................ ................................ ................................ .. 11

TEX. R. CIV. P. 192.4 ................................ ................................ ................................ ..... 10


                                                                                                                                   v
TEX. R. CIV. P. 192.4, cmt. 7 ................................ ................................ .......................... 10




                                                                                                                          vi
                            STATEMENT OF THE CASE

Nature of the underlying proceeding:        Asbestos      product    liability  lawsuit.
                                            Decedent, Kenneth Hicks, contracted
                                            mesothelioma. Plaintiffs and their experts
                                                              s
                                            claimed Hicks’ death was caused by
                                            exposure to chrysotile asbestos from
                                            automotive brake dust. Defendants and
                                            their experts claimed the mesothelioma was
                                            caused by exposure to South African blue
                                            crocidolite asbestos while Hicks was
                                            employed at a tank insulation company in
                                            Oklahoma.

Respondent:                                 Honorable Mark Greenberg, County Court
                                            at Law No. 5, Dallas County, Texas.

Action from which relief requested; trial   Trial court denied Relators’ discovery
court proceedings:                          motion to allow destructive testing upon
                                            samples of lung tissue taken from the
                                            decedent in order to perform “fiber burden”
                                            analysis.

Court of Appeals Disposition:               On February 17, 2005 the Fifth District
                                            Court of Appeals denied Relators’Petition
                                            for Writ of Mandamus in a Memorandum
                                            Opinion by Justice Wright.

                          STATEMENT OF JURISDICTION

       This Court has jurisdiction pursuant to TEX. GOV’ CODE § 22.221(b).
                                                       T




                                                                                     vii
                                  ISSUE PRESENTED

       GM and Ford sought leave to conduct “        fiber burden” testing on lung tissue
samples from decedent, Kenneth Hicks, to support their primary defense to Plaintiff’     s
                    s
claim: that Hicks’ mesothelioma was most likely caused by exposure during his
employment at a tank insulation factory to a particularly dangerous form of amphibole
asbestos rather than his alleged sporadic exposure to chrysotile asbestos in brake dust.

        Did the trial court abuse its discretion by denying discovery of evidence that goes
to the heart of the litigation, and to which no valid exception to discovery applies?

                                        RECORD

        The record in this original proceeding consists of a consecutively-paginated, one-

volume document that is being filed contemporaneously with this petition. The record

contains sworn copies of the relevant documents filed in the trial court below, the orders

made the basis of this proceeding, the statements of fact from the hearings that resulted in

the order, and evidence introducedat those hearings. References to the record will be cited

    (R.   .
as “ ____)” As required by TEX. R. APP. P. 52.3(j); an Appendix is attached to this

petition. References to record items that are also in the Appendix will be cited as “(App.

___)”
    .




                                                                                        viii
TO THE HONORABLE JUSTICES OF THE SUPREME COURT OF TEXAS:

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

(collectively, “Defendants”1, file this Petition for Wri t of Mandamus complaining of the
                           )

order by Respondent, Hon. Mark Greenberg, presiding judge, Dallas County Court at

Law No. 5, denying Defendants’motion to allow destructive testing of lung tissue in

Delorise Kay Hicks, Individually and as personal represe ntative of the estate of Kenneth

Hicks, deceased, et al., Plaintiffs, v. Chrysler Corp., et al., Defendants, Cause No. CC-

02002236-E, County Court at Law No. 5, Dallas County, Texas.

                                            ARGUMENT SUMMARY

                                                         s         s
           Respondent abused his discretion by denying GM’ and Ford’ right to discovery

                                                                                        s
of critical evidence that goes to the heart of their principal defense against Plaintiff’

claim – evidence that would demonstrate that the most likely explanation for Kenneth

     s
Hicks’ mesothelioma was his exposure to raw crocidolite asbestos while employed at a

tank insulation factory (“         ),
                          Amercoat” rather than his alleged sporadic exposure to

chrysotile asbestos from Defendants’ brake products.                                  No valid exception to the

discoverability of the evidence was offered and none applied.

                         s
           The Respondent’ erroneous decision has denied Defendants their clear right to

obtain evidence relevant to the critical issue at the heart of this lawsuit. By prohibiting

Defendants from obtaining the necessary testing, the ruling prevents Defendants from

obtaining evidence necessary to make a record at trial in support of their primary defense



1
    For clarity, the parties will be referred to by name or by their designation in the trial court.
to this case, thereby foreclosing any adequate remedy by appeal, and mandamus should

issue.

                                STATEMENT OF FACTS

         This is an asbestos/strict product liability dispute. The real party in interest,

Plaintiff below, sued GM, Ford and other manufacturers and sellers of asbestos-

containing products, alleging that asbestos from their products caused Decedent, Kenneth

Hicks, to contract mesotheli oma and ultimately resulted in his death. With regard to GM

and Ford, Plaintiff alleged Hicks was exposed to asbestos-containing brake products in

his occupation as an auto mechanic. (R 1-12).

         Surprise Discovery of Crocidilite Exposure on the Eve of Trial.

                  s
         Plaintiff’ responses to discovery requesting information about Hicks’s workplace

                                                                         s Work History
exposure to asbestos, dust, fumes or gases, referred Defendants to Hicks’ “

                                                                   s Amercoat”
Sheets.” (R. 225). There was no work history sheet disclosing Hicks’ “

                                                                      s
employment and no response to the discovery otherwise disclosing Hicks’ exposure

                                                                                s
while employed at Amercoat. (R. 260-274). Thus, it was only after Delorise Hicks’

                                                                            s
June 16, 2004 deposition (R 56-57) that Defendants first discovered Decedent’ work at

        s
Amercoat’ manufacturing facility in Ardmore, Oklahoma, exposed him to raw

crocidolite asbestos.                           s
                         On July 26, 2004, Hicks’ former co-workers confirmed his

employment at Amercoat and some of the ultra-hazardous conditions in which he

worked. (R. 49-55).

         At Amercoat, Hicks worked in the same space in one building with a hammer mill

that pounded South African blue crocidolite asbestos into felt, kicking crocidolite


                                                                                        2
asbestos dust up into the air around Hicks. (R. 50, 52). The dust was ubiquitous at the

plant and nobody working there could avoid breathing it. (R. 50, 52). It was so heavy in

the air at the plant that workers c ould visibly see the asbestos dust floating in the air. (R.

55). The hammer mill was next to the lunchroom, where workers ate. (R. 55). The only

protection provided at Amercoat was paper dust masks and the only workers who wore

them were those who actua lly loaded the raw asbestos into the hammer mill. (R. 50, 52,

55).

       On July 28, 2004, as a result of the newly discovered evidence, Defendants

brought the matter to the attention of the trial court and requested a continuance in order

to fully research the facts before trial . (R. 41-60). Defendants also moved for sanctions

for the incomplete discovery answers, which prevented discovery of the alternate

exposure until just before trial. (R. 65-76). The court denied the continuance and the

sanctions motion. (R. 64). On August 16, 2004, the case was called to trial.

       The First Trial.

       On first day of trial, Defendants filed a Trial Brief on the Admissibility of

Testimony regarding Kenneth Hicks’Exposure to Asbestos at Amercoat. (R. 373-376).

Defendant Honeywell also filed a Motion for Order Compelling Release of Pathology

Materials and Allowing Destructive Testing, in which Defendants joined. (R 377-393).

                                                                s
On August 17, 2004, the Court granted former defendant Honeywell’ motion, in part,

                                                    all
and ordered M.D. Anderson Cancer Center to release “ pathology blocks containing

                                            s
lung tissue of Kenneth Hicks… ” to Honeywell’ counsel.               (Appendix 2; R. 394).

Respondent struck the portion of the order which would have allowed Honeywell to


                                                                                              3
select an expert to conduct the fiber burden analysis , shifting the decision to the parties to

reach an agreement on the subject. Id. M.D. Anderson then released the samples to

         s
Honeywell’ counsel. (R. 600-601). The parties never agreed on a testing protocol prior

to the end of the first trial. By the time this case was submitted, DaimlerChrysler,

Honeywell, H.K. Porter, Johns-Manville, Celotex, Combustian Engineering, and others

had settled with the Plaintiffs, and were no longer parties to this suit.

       The jury returned its verdict on September 3, 2004. (R. 395-413). Ford and GM

filed a Motion for Entry of Judgment Non Obstante Verdicto on October 6, 2004. (R.

414-426). On December 6, 2004, Plaintiffs filed their Motion for Entry of Judgment

and/or, In the Alternative, Plaintiffs’Motion to Disregard Jury Findings on Questions.

(R. 492-499). The trial court granted Defendants’JNOV in part, and entered judgment

on January 25, 2005. (R. 544-548). Plaintiffs’then moved for new t rial on February 24,

2005. (R. 549-557).

       On April 18, 2005, the trial court granted Plaintiffs’Motion for New Trial as to

the claims of Delorise Hicks, individually and as representative of the estate of Kenneth

Hicks, but denied the motion as to the individual claims of Tina Kay Bunn and David

James Hicks. (R. 584). On April 26, 2005, the trial court set the new trial date for

September 6, 2005. (R. 585). However, due to a clerical error by the clerk, Defendants

first learned of this trial setting shortly before trial on August 17, 2005. (R. 586-597).

On August 19, 2005, Defendants filed a motion for continuance, which the trial court

granted on August 26, 2005, moving the trial to January 23, 2006. (R. 598). Plaintiffs




                                                                                              4
                                                s
then moved for continuance based on their expert’ unavailability. Trial is currently set

for May 30, 2006.

      Defendants diligently pursued fiber burden evidence.

      As explained above, GM and Ford did not willingly try the case, but requested a

continuance and sanctions based on the late discovery of the evidence. After trial the

pathology blocks were returned to M.D. Anderson. (R. 600). There was no reason to

pursue the matter between the date of the verdict and the new trial order. However,

                          s
within a week of the court’ new trial order, Defendants contacted a records service to

retrieve the samples from M.D. Anderson, knowing this would be critical evidence

necessary in the new trial. (R. 600-601). Ford and GM received the samples from M.D.

Anderson in mid-June 2005.      (R. 601).   In late August, 2005, Defendants’ counsel

attempted to secure an agreement regarding the testing. (R. 619).

      On September 29, 2005, Defendants filed their Motion to Allow Destructive

Testing and Request for Expedited Hearing. (R. 599-605). The trial court denied the

Request for Expedited Hearing on October 4, 2005, and hearing was set for the first

available date with a court reporter , almost three months later, on December 2, 2005. (R.

631). On December 1, 2005, Plaintiff filed her Response to Defendants’Motion to

Allow Destructive Testing and for Costs. (R. 633-640). On December 2, 2005, a hearing

was held on the motion. (R. 641-669).

      At the hearing, the trial court made its ruling on the motion contingent upon the

parties arriving at an agreement on the expert to perform the testing. (R. 663-666).

However, the parties agreed on the record that if they could not agree on a single testing


                                                                                         5
facility, they would agree to a p rotocol for dividing the tissue samples so each side could

conduct its own testing. (R. 665).       Unable to agree to one lab, the parties jointly

submitted a proposed order in accordance with their on-the-record agreement, under

which each side would be allowed to perform their own testing of the samples, though

         s
Plaintiff’ counsel still maintained Defendants were not entitled to the discovery at all.

(R. 670-673). On December 22, 2005, without a written explanation, the trial court

entered an order simply denying the Motion to Allow Destructive Testing, thereby

denying Defendants’right to perform the testing and effectively negating the parties’

agreement. (Appendix 1; R. 674).

       Defendants petitioned the Fifth District Court of Appeals in Dallas for a writ of

mandamus on February 3, 2006. The court of appeals denied the petition on February 17,

                                                                               s
2005. (Appendix 3). Trial is currently set to begin on May 30, 2006. Respondent’

order denying Defendants’ Motion to Allow Destructive Testing has preempted and

foreclosed Defendants’ability to obtain relevant discovery on their primary defense in

                    s
this suit: that Hick’ exposure to the much more harmful crocidolite asbestos fibers at

Amercoat, rather than Defendants’products, much more likely caused his illness.

                                      ARGUMENT

I.     RESPONDENT CLEARLY ABUSED HIS DISCRETION BY DENYING DISCOVERY OF
       CRITICAL EVIDENCE.

                 s
       Respondent’ order in this matter presents a manifest abuse of discretion by

denying Defendants’discovery of critical evidence that goes to the heart of their principal




                                                                                           6
defense in this litigation. The order denies Defendants the right to perform testing to

support their defense without reference to any applicable exception to discovery.

   A.         Lung tissue testing is critical and discoverable evidence; no exception
              to discovery applies.

                                               s
        Critical to the resolution of Plaintiff’ claim is the issue of causation: what

                                        s
asbestos fibers, if any, caused Decedent’ mesothelioma? The type of asbestos fibers

found in lung tissue is an important factor in determining: (1) product identification; and

(2) injury causation. While there are numerous types of asbestos fibers, all types of

asbestos fibers can be placed into two main groups: amphibole and serpentine. (R. 601-

602). Amphibole asbestos fibers, which are composed of long, straight, needle-like

fibers, have been shown to be much more carcinogenic than serpentine fibers, which are

softer, more flexible and curly. Crocidolite, amosite, tremolite and anthropolite are types

of amphibole asbestos. Chrysotile, on the other hand, is a type of serpentine asbestos and

is the only asbestos fiber Defendants used in their products. (R. 601-602).

        The testing evidence sought in this case is critical because it directly relates to

                                                      s
Defendants’ principal defense in this case: that Hicks’ mesothelioma was almost

certainly the result of his exposure to the long, needle-like crocidolite asbestos fibers

while at Amercoat, rather than the serpentine chrysotile fibers allegedly in brake dust.

The critical difference between the two types of asbestos is that the former remains in

lung tissue for a much longer time, thereby greatly increasing the chances of causing

disease compared to the latter. The fiber burden testing Defendants seek is extremely

significant because Defendants anticipate it will confirm that, even decades after his



                                                                                          7
                           s
exposure at Amercoat, Hicks’ lung tissue still exhibited significant quantities of

crocidolite asbestos – and relatively little chrysotile. Plaintiffs’own expert, Dr. J.C.

Maddox, admits that a fi ber burden test can determine the types of fibers Mr. Hicks was

exposed to. (R. 130-131) Dr. Maddox further testified that a fiber burden analysis would

                                 s
be probative of whether Mr. Hicks’ mesothelioma was causally related to his exposure

to crocidolite asbestos while working for Amercoat. (R. 133-135). He also admitted that

it is widely accepted in the scientific community that exposure to crocidolite asbestos

would significantly increase the likelihood of contracting mesothelioma. (R. 80 [p. 139,

ll. 18-23]). Indeed, according to the literature, crocidolite exposure is ranked as the most

likely to cause mesothelioma. (R. 131). Meanwhile, there is no epidemiological evidence

establishing a significant increase in the risk for mesothelioma among those exposed to

brake dust. (R. 624).

                 s
        Plaintiff’ refusal to differentiate between the relative risks from different types of

asbestos exposure does not prohibit Defendants from obtaining evidence to do so.2 The

fiber burden evidence would assist a jury in determining whether or not Defendants’

                                                         s
chrysotile-containing products is a likely cause of Hicks’ mesothelioma, and in resolving

                                                                            s
a significant dispute between the experts regarding the likely role of Hicks’ exposure

while at Amercoat in causing his illness, which is the central defense to this case.

        The legal requirement for evidence of both general and specific causation in a

toxic exposure case is established law and has its roots in the Court’s decision in Havner

2
                                    s
  As exemplified by their expert’ trial testimony, despite acknowledging that the risks from some exposures were
certainly greater than others, Plaintiff and her experts refused or were unable to provide the jury with any guidance
                                                                                   s
as to the relative role that any particular exposure likely played in causing Hicks’ mesothelioma. (R 431-432).



                                                                                                                   8
and its progeny. See Merrell Dow Pharmaceuticals, Inc. v. Havner, 953 S.W.2d 706

(Tex. 1997); Minnesota Min. and Mfg. Co. v. Atterbury, 978 S.W.2d 183, 203 ( Tex. App.

– Texarkana 1998, pet. denied). Havner established the requirement in mass tort cases

that epidemiological evidence must be presented establishing causation to be at least

twice as likely as an unexposed control group with a high level of statistical significance .

Havner, 953 S.W.2d at 718.

        Judge Mark Davidson of the Multi-District Asbestos Litigation in Harris County

analyzed the requirement for causation evidence in the context of mesothelioma claims

alleged to have been caused by exposure to brake linings in automobiles and trucks, such

as the case here. Order of Judge Mark Davidson, January 20, 2004, In Re: Asbestos

Litigation; (R. 621-626). 3 Judge Davidson conducted a three day hearing on a motion by

DaimlerChrysler to strike the expert testimony by all plaintiffs’ witnesses that

mesothelioma can be caused by exposure to brake linings in cars and trucks.

Interestingly enough, the same law firm which represents Plaintiff here, Waters and

Kraus, also represented some of the plaintiffs appearing before Judge Davidson in the

MDL.

                                     s
        As detailed in Judge Davidson’ order, MDL plaintiffs claimed that they could

present fiber samp les taken from biopsies or autopsies of decedents that would show the

kind of asbestos fibers which were inhaled to support causation as an alternative to

      s
Havner’ epidemiological requirements for general causation.                          This legal posture has

3
                                   s                                   s
  That portion of Judge Davidson’ order that would allow a plaintiff’ fiber burden tests to substitute as causation
evidence where epidemiological evidence is lacking in a brake dust exposure case was recently before this Court on
a petition for writ of mandamus filed by DaimlerChrysler in In re DaimlerChrysler Corp., Cause No. 05-0598. The
Court requested full briefing on the merits on October 25, 2005, but denied the petition on March 3, 2006.


                                                                                                                 9
                                                                   the
been inexplicably disowned by the same counsel who now argue that “ presence or

absence of fibers which might be remaining in the lungs at the time of the fiber burden

analysis does not prove the type of asbestos fiber or level of exposure at the time that the

asbestos was inhaled or the damage was done.” (R. 634-635).

       At the conclusion of the three day hearing, Judge Davidson granted the motion as

to the epidemiological and medical evidence as unreliable under Havner, but denied the

motion as to biological evidence, thus permitting lung tissue evidence to be introduced by

the plaintiffs. Amazingly, Plaintiff in this case is aggressively opposing discovery of the

only evidence which the MDL judge has ruled may be reliable enough to be admissible in

a brake dust exposure case to prove causation. GM and Ford disagree that a plaintiff may

establish causation in a toxic exposure case purely by pathological evidence where no

                                              s
epidemiological evidence exists to meet Havner’ general causation requirements.

However, pathology evidence establishing the lack of exposure, or which bears on the

relative risks of different types of exposure (as it would here), would certainly be

important, admissible evidence.     In this case, the evidence would resolve an extremely

important dispute between the parties’ experts, and guide the jury in determining

causation in light of the relative risks from exposure to different types of asbestos .

                s
       The court’ power to limit discovery is based on the needs and circumstances of

the case. TEX. R. CIV. P. 192.4. Courts should limit discovery under this rule only to

prevent unwarranted delay and expense. TEX. R. CIV. P. 192.4, cmt. 7. A court abuses its

                                              s
discretion in unreasonably restricting a party’ access to information through discovery.

Moreover, such action gives rise to a right to relief via mandamus when it denies a party


                                                                                           10
access to evidence that goes to the “heart” of the litigation. See In re 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).

                  s
         Plaintiff’ arguments in the trial court focused on the admissibility of the evidence,

not its discoverability. Plaintiff did not object to the lung tissue testing on any proper

basis such as delay, expense4 or undue burden5. Plaintiff did not ask the court for a

protective order. Plaintiff did not object that the tissue testing was beyond the scope of

discovery. The purpose of discovery is to allow the parties to obtain full knowledge of

the issues and facts of the lawsuit before trial. West v. Solito, 563 S.W.2d 240, 243 (Tex.

1978). The scope of discovery includes any unprivileged information that is relevant to

the subject matter of the lawsuit, even if it would be inadmissible at trial, as long as the

information sought is reasonably calculated to lead to the discovery of admissible

evidence. TEX. R. CIV. P 192.3(a); In re CSX Corp., 124 S.W.3d 149, 152 (Tex. 2003).

                                                               s
         There is no question that destructive testing on Hicks’ lung tissue would yield

                                                                          s
important, relevant evidence as to the types of fibers present in decedent’ lungs. There

4
           s
  Plaintiff’ argument at the hearing on this motion to allow destructive testing of lung tissue did not raise a proper
objection to the discovery of this evidence. Defendants have every right to mount an effective defense irrespective
of Plaintiffs’decision to hire its own experts. There is no discovery rule requiring either party to plan its case
                                                                                s
strategy based on the expense account of the other party. Put simply, a party’ decision to hire its own experts to
analyze evidence is not properly considered an expense imposed because the other party seeks the evidence in
question. If it were, every plaintiff seeking document production in a products liability case would be bound to pay
the Defendants’  experts’ fees in analyzing those documents.
5
                  s
  Again, Plaintiff’ arguments at the hearing on this motion were not a proper basis for o bjecting to the discovery of
                          s
this evidence. Plaintiff’ argument again missed the mark when it was averred that lung tissue testing was
cumulative. The fact that previous testimony shows Decedent was exposed to various forms of asbestos fibers does
not equate to evidence regarding the critical differences in the types of exposure suffered by the decedent and the
long-term effects of those different exposures. These differences in the types of exposure are critical issues to the
     s
jury’ consideration of causation in this case, and will be hotly contested at the second trial.


                                                                                                                  11
is no question that such evidence is discoverable and relates to a central issue in this

litigation. The admissibility of this evidence is not an issue at this discovery juncture.

Any arguments as to the weight of the evidence or the reliability of the testing

methodology are questions which are appropriate at a later stage in this proceeding . As a

matter of course, Defendants have an affirmative right to obtain this evidence and make

their arguments for admissibility at trial. To allow otherwise would be to prohibit GM

                                                 s
and Ford from obtaining review of the trial court’ evidentiary rulings by preventing

them from getting the evidence in the first place with which to make an evidentiary

record for appeal.

       B.     Respondent Understood The Evidence To Be Discoverable.

       Respondent insisted that the parties agree to a single lab to perform the testing.

Thus, even though the parties agreed on the record that they would divide the samples

                                                                                     s
and each conduct their own testing, Respondent still denied the discovery. Respondent’

willingness to allow production of the tissue samples and, ostensibly, his willingness to

even allow destructive testing (albeit conditioned on the Plaintiff’s agreement to a single

lab to perform the testing) demonstrates that, despite his written order, Respondent

understood that the testing was appropriate discovery.

       The only concern expressed by the trial court at the hearing was whether the

parties could agree to a single laboratory to perform the fiber burden tests. (R 663-666).

                                    s
As the hearing progressed, Plaintiff’ counsel agreed on the record that if the parties were

unable to agree on a lab to perform the testing, they would agree to divide the samples so




                                                                                        12
                                                                     s
that each side could perform its own tests, thus addressing the court’ only apparent

concern:

                           m
           Mr. Valles: I’ certainly agreeable to a deadline by which we either
           have agreed upon a mutual expert, one expert to do it, or we decide that –
           or I choose my guy, he chooses his guy, and by a certain date they have to
           get together and decide how to divide up the tissue and we have a
                             ve
           protocol that we’ agreed upon that both sides answer satisfied with to
                                    m                  m
           submit to the Court. I’ certainly not -- I’ certainly not opposed to a
           deadline to get that done.

           Mr. Avey:          ll
                             I’ agree with that, Judge.

(R. 665). But Respondent, apparently determined that the parties must agree on a single

lab in order for Defendant to obtain the discovery , delayed his ruling on the merits of the

motion as “incentive”for the parties to reach an agreement . (R. 357-359). Even after the

parties jointly submitted a proposed order with a protocol for dividing the samples,

Respondent simply denied the motion anyway, without any further comment or reason.

(R. 670-674)6.

           In effect, Respondent made the discovery of this evidence contingent upon an

agreement of the parties as to a single lab to conduct the testing –even though the parties

themselves agreed to divide the samples –effectively negating the parties’agreement and

denying Defendants the right to conduct discovery critical to a central defense in this

case. The result is that Defendants were denied the ability to get evidence that, if it bears

out as Defendants anticipate 7, would be among the most powerful evidence in support of


6
  To be absolutely clear, Plaintiff’ counsel did not agree to allow the discovery in general, but only agreed thatif the
                                   s
trial court determined the discovery was proper, Plaintiff agreed to a protocol to divide the samples so each side
could perform its own testing. (R. 670).
7
    And probably Plaintiff, too, as her steadfast opposition to the discovery seems to indicate.


                                                                                                                    13
  s         s                   s
GM’ and Ford’ defense that Hicks’ mesothelioma was not caused by exposure to

                                                                                    s
brake dust from Defendants’products, but, bas ed on the results of testing of Hicks’ own

lung tissue, the most likely explanation is his exposure to the far more dangerous

crocidolite asbestos while he was employed at Amercoat.

II.    THERE IS NO ADEQUATE REMEDY BY APPEAL.

       Mandamus is the appropriate vehicle for seeking review of the trial court’s denial

of discovery. Johnson v. Fourth Court of Appeals, 700 S.W.2d 916, 917 (Tex. 1985).

       Here, the trial court abused his discretion when he acted without reference to the

guiding rules and principles applicable to the disputed discovery. See Scott v. Twelfth

Court of Appeals, 843 S.W.2d 439, 440 (Tex . 1992) (orig. proceeding); Beaumont Bank,

N.A. v. Buller, 806 S.W.2d 223, 226 (Tex. 1991). Respondent’ discovery order prevents
                                                           s

evidence of the testing from becoming part of the appellate record, thereby denying the

reviewing court the ability to evaluate the effect of the trial court’ s error. Indeed, in this

Court’ landmark opinion Walker v. Packer, 827 S.W.2d 833 (Tex. 1992), the Court
     s

                                                             disallows discovery and
explained that mandamus is appropriate where the trial court “

the missing discovery cannot be made part of the appellate record . . . and the reviewing

court is unable to evaluate the effe ct of the trial court's error on the record before it .” Id.

at 843; see also Jampole v. Touchy, 673 S.W.2d 569, 576 (Tex. 1984)(“Because the

evidence exempted from discovery would not appear in the record, the appellate courts

would find it impossible to determine whether denying the discovery was harmful.”).

       Moreover, the order prevents Defendants from obtaining critical evidence

                                                       s
necessary to support their central defense to Plaintiff’ claims. By denying Defendants’


                                                                                              14
right to obtain evidence that goes to the heart of the litigation with no valid exception to

                                s
discovery rules, the trial court’ order severely compromises and vitiates Defendants’

ability to present their central defense at the second trial. Walker, 827 S.W.2d at 843.

       The only remedy available is the granting of this writ of mandamus directing the

                                                           s
trial court to vacate its order denying testing on decedent’ lung tissue and to permit

Defendants to proceed with discovery without delay as allowed under the TEXAS RULES

OF CIVIL PROCEDURE.

                                          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.




                                                                                             15
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




                                 16
                                  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 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 3, 2006, to certify
which witness my hand and official seal.



                                              ______________________________
                                              Notary Public in and for
                                              The State of Texas




                                                                                   17
                         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 3, 2006.


                                           ___/S/______________________
                                           Brendan K. McBride




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