in Re: Island Hospitality Management, Inc., Post Properties, Inc. and Post Addison Circle Limited Partnership ( 2015 )

ACCEPTED
05-15-00495-CV
05-15-00495-CV FIFTH COURT OF APPEALS
DALLAS, TEXAS
4/17/2015 8:35:00 AM
LISA MATZ
CLERK
No. ________ FILED IN
5th COURT OF APPEALS
DALLAS, TEXAS
4/17/2015 8:35:00 AM
LISA MATZ
In The Clerk
COURT OF APPEALS
fifth DISTRICT OF TEXAS
Dallas, Texas
In Re Island Hospitality Management, Inc.,
Post Properties, Inc. and
Post Addison Circle Limited Partnership
Petition from Cause No. DC-13-04564
193rd Judicial District Court, Dallas County, Texas
Honorable Carl Ginsberg, Presiding Judge
MANDAMUS RECORD
INDEX OF MANDAMUS RECORD
Certification Pursuant to Texas Rule of Appellate Procedure 52.7
Plaintiff’s Third Amended Petition Tab 1
Defendant Island Hospitality Management, Inc.’s
Second Amended Answer Tab 2
Defendants Post Addison Circle Limited Partnership
and Post Properties, Inc.’s Second Amended Answer Tab 3
Defendant Island Hospitality Management, Inc.’s
Motion to Examine Plaintiff Jane Doe Tab 4
Plaintiff’s Response to Defendant Island Hospitality
Management, Inc.’s Motion to Examine Plaintiff Jane Doe Tab 5
Defendant Island Hospitality Management, Inc.’s
Reply to Plaintiff’s Response to Island’s Motion
to Examine Plaintiff Jane Doe Tab 6
Order Denying Defendant Island Hospitality Management, Inc.’s
Motion to Examine Plaintiff Jane Doe Tab 7
Defendants Island Hospitality Management, Inc.’s,
Post Properties, Inc.’s, and Post Addison Circle Limited Partnership’s
Joint Motion for Reconsideration to Examine Plaintiff Jane Doe Tab 8
Defendants’ Joint Motion for Emergency Hearing on
Defendants’ Joint Motion for Reconsideration to Examine
Plaintiff Jane Doe Tab 9
Order Denying Motions to Reconsider
Motion to Allow Psychological Examination Tab 10
CERTIFICATION PURSUANT TO
TEXAS RULE OF APPELLATE PROCEDURE 52.7
BEFORE ME, the undersigned authority, on this day personally appeared
Michael A. Yanof, the undersigned Affiant, who being first duly sworn, did depose
and say the following:
"My name is Michael A. Yanof. I am over the age of eighteen, of sound mind,
capable of making this Affidavit, and fully competent to testify to the matters stated
herein as lead appellate counsel for Relators in this Petition for Writ of Mandamus.
I have personal knowledge of the facts stated herein, and they are true and correct.
I certify that each document attached hereto as the Relators' Record is:
1. ) a true and correct copy of a pleading or filing in the underlying
proceeding; and
2. ) is material to Relators' claim for relief in their Petition for Writ of
Mandamus.
S U B S C R I B E D AND SWORN TO B E F O R E M E , on the 16th day of April,
2015, to certify which witness my hand and official seal.
FILED
DALLAS COUNTY
11/25/2013 4:59:38 PM
GARY FITZSIMMONS
DISTRICT CLERK
Cause Number: DC-13-04564
JANE DOE, § IN THE DISTRICT COURT
§
Plaintiff, §
§
v. § 193rd JUDICIAL DISTRICT COURT
§
ISLAND HOSPITALITY MANAGEMENT, §
INC.; HYATT HOTELS CORPORATION; §
HYATT HOUSE FRANCHISING, L.L.C.; §
GRAND PRIX FLOATING LESSEE, LLC; §
INK ACQUISITION, LLC; INK §
ACQUISITION II, LLC; INK §
ACQUISITION III, LLC; INK LESSEE, §
LLC; INK LESSEE HOLDING, LLC; §
CHATHAM TRS HOLDING, INC.; §
CHATHAM LODGING, L.P.; JEFFREY §
H. FISHER, Individually; POST §
PROPERTIES, INC.; POST ADDISION §
CIRCLE LIMITED PARTNERSHIP; §
PASTAZIOS PIZZA, INC.; AJREDIN §
“DANNY” DEARI; DRITAN KREKA; and §
DOES 1-25, §
§
Defendants. § DALLAS COUNTY, TEXAS
PLAINTIFF’S THIRD AMENDED PETITION
Plaintiff JANE DOE1 (“Plaintiff”) files Plaintiff’s Third Amended Petition (“Petition”)
against Defendants ISLAND HOSPITALITY MANAGEMENT, INC.; HYATT HOTELS
CORPORATION; HYATT HOUSE FRANCHISING, L.L.C.; GRAND PRIX FLOATING
LESSEE, LLC; INK ACQUISITION, LLC; INK ACQUISITION II, LLC; INK ACQUISITION
III, LLC; INK LESSEE, LLC; INK LESSEE HOLDING, LLC; CHATHAM TRS HOLDING,
INC.; CHATHAM LODGING, L.P.; JEFFREY H. FISHER, Individually; POST PROPERTIES,
1
Due to the extremely personal and sensitive nature of this lawsuit, Plaintiff is proceeding under the pseudonym of
“Jane Doe”; however, Defendants have full knowledge of Plaintiff’s identity due to Defendants’ involvement in the
underlying acts and omissions that form the basis of this Petition. To the extent that Defendants or Defendants’
counsel are genuinely unaware of Plaintiff’s identity (which would likely be impossible due to criminal proceedings
against at least one Defendant in Dallas County, Texas, Case No. F1111106), Plaintiff’s counsel is happy to state
PLAINTIFF’S THIRD AMENDED PETITION PAGE 1 OF 24
MANDAMUS RECORD - TAB 1
INC.; POST ADDISON CIRCLE LIMITED PARTNERSHIP; PASTAZIOS PIZZA, INC.;
AJREDIN “DANNY” DEARI; DRITAN KREKA; and DOES 1-25 (unless otherwise noted
herein, “Defendants” refers to all named Defendants, collectively), and for causes of action
respectfully shows this Court as follows:
I.
DISCOVERY CONTROL PLAN
1. Pursuant to this Court’s uniform Scheduling Order, discovery in this case is being
conducted under a Level 3 Discovery Control Plan.
II.
PARTIES
2. Plaintiff is a natural person who resides in Collin County, Texas.
3. Defendant ISLAND HOSPITALITY MANAGEMENT, INC. (hereinafter,
“Island Hospitality”) is a Florida corporation that has generally appeared in this case.
4. Defendant HYATT HOTELS CORPORATION (hereinafter, “Hyatt”) is a
Delaware corporation with its principal place of business in Chicago, Illinois and has generally
appeared in this case.
5. Defendant HYATT HOUSE FRANCHISING, L.L.C. (hereinafter, “Hyatt
House”) is a Kansas limited liability company that has generally appeared in this case.
6. Defendant GRAND PRIX FLOATING LESSEE, LLC (hereinafter, “Grand Prix”)
is a Delaware limited liability company that has generally appeared in this case.
7. Defendant INK ACQUISITION, LLC (hereinafter, “Ink Acquisition”) is a Florida
limited liability company that has generally appeared in this case.
8. Defendant INK ACQUISITION II, LLC (hereinafter, “Ink Acquisition II”) is a
Florida limited liability company that has generally appeared in this case.
PLAINTIFF’S THIRD AMENDED PETITION PAGE 2 OF 24
MANDAMUS RECORD - TAB 1
9. Defendant INK ACQUISITION III, LLC (hereinafter, “Ink Acquisition III”) is a
Florida limited liability company that has generally appeared in this case.
10. Defendant INK LESSEE, LLC (hereinafter, “Ink Lessee”) is a Delaware limited
liability company that has generally appeared in this case.
11. Defendant INK LESSEE HOLDING, LLC (hereinafter, “Ink Lessee Holding”) is
a Delaware limited liability company that has generally appeared in this case.
12. Defendant CHATHAM TRS HOLDING, INC. (hereinafter, “Chatham Holding”)
is a Florida limited liability company that has generally appeared in this case.
13. Defendant CHATHAM LODGING, L.P. (hereinafter, “Chatham Lodging”) is a
Delaware limited partnership that has generally appeared in this case.
14. Defendant JEFFREY H. FISHER (hereinafter, “Fisher”) is a natural person who
is believed to be a resident of, and domiciled in, the State of Florida and has generally appeared
in this case.
15. Defendant POST PROPERTIES, INC. is a Georgia corporation that has generally
appeared in this case.
16. Defendant POST ADDISON CIRCLE LIMITED PARTNERSHIP is a Georgia
limited partnership that that has generally appeared in this case.
17. Defendant PASTAZIOS PIZZA, INC. (hereinafter, “PPI”) is a Texas corporation
that has generally appeared in this case.
18. Defendant AJREDIN “DANNY” DEARI (hereinafter, “Deari”) is a natural
person who has generally appeared in this case.
19. Defendant DRITAN KREKA (hereinafter, “Kreka”) is a natural person who has
generally appeared in this case.
PLAINTIFF’S THIRD AMENDED PETITION PAGE 3 OF 24
MANDAMUS RECORD - TAB 1
20. Upon information and belief, Plaintiff alleges that the true identities and
residences of Defendants JOHN DOE 13-25, respectively, are currently unknown to Plaintiff at
this time. Plaintiff shall proceed with due diligence to discover the identities of Defendants
JOHN DOE 13-25, respectively, and after said Defendants’ true identities have been discovered,
Plaintiff will amend this Petition accordingly.
21. Upon information and belief, Plaintiff alleges that, at all material times,
Defendants Hyatt, Hyatt House, Island Hospitality Management, Grand Prix, Ink Acquisition,
Ink Acquisition II, Ink Acquisition III, Ink Lessee, Ink Lessee Holding, Chatham Holding,
Chatham Lodging, and Fisher (collectively referred to herein as “Alter Ego Defendant” or “Alter
Ego Defendants”) were the agents, servants, employees, partners, authorized agents and/or joint
venturers of every other Alter Ego Defendant and the acts of each Alter Ego Defendant was
within the course and scope of the agency, employment, partnership, joint enterprise, and/or joint
venture such that each Alter Ego Defendant is jointly and severally liable for the damages Alter
Ego Defendants caused Plaintiff as alleged herein and, further, that each Alter Ego Defendant is
jointly and severally responsible for the acts and/or omissions of every other Alter Ego
Defendant. Plaintiff specifically alleges and asserts the alter ego theory of liability against the
Alter Ego Defendants because the Alter Ego Defendants are simply the alter ego of each other
due to such a unity of interest and ownership between the business entities and its equitable
owner or owners that the separate personalities of the business entities and shareholder/equitable
owner or owners do not, in reality, exist, and because if the acts complained of herein are those
of the business entities themselves than an inequitable result to Plaintiff would occur. Thus,
Plaintiff specifically alleges that any and all acts or omissions taken by any of the Alter Ego
Defendants, indeed, acts or omissions taken by all Alter Ego Defendants.
PLAINTIFF’S THIRD AMENDED PETITION PAGE 4 OF 24
MANDAMUS RECORD - TAB 1
22. Upon information and belief, Plaintiff alleges that, at all material times,
Defendants POST PROPERTIES, INC. and POST ADDISON CIRCLE LIMITED
PARTNERSHIP (collectively, referred to herein as “Post Properties”) were the agents, servants,
employees, partners, authorized agents and/or joint venturers of one another and the acts of each
entity was within the course and scope of the agency, employment, partnership, joint enterprise,
and/or joint venture such that each entity is jointly and severally liable for the damages Post
Properties caused Plaintiff as alleged herein and, further, that the Post Properties Defendants are
jointly and severally responsible for the acts and/or omissions of one another. Plaintiff
specifically alleges and asserts the alter ego theory of liability against Post Properties because
Post Properties are simply the alter ego of one another due to such a unity of interest and
ownership between the business entities and its equitable owner or owners that the separate
personalities of the business entities and shareholder/equitable owner or owners do not, in
reality, exist, and because if the acts complained of herein are those of the business entities
themselves than an inequitable result to Plaintiff would occur. Thus, Plaintiff specifically alleges
that any and all acts or omissions taken by Post Properties were, indeed, acts or omissions taken
by each entity.
III.
JURISDICTION
23. This Court has subject matter jurisdiction over this lawsuit because the amount in
controversy exceeds the minimum jurisdictional requirements.
24. In accordance with TEX. R. CIV. P. 47, Plaintiff seeks monetary relief in excess of
$1,000,000.00 due to Defendants’ tortious, outrageous, and grossly negligent conduct.
25. This Court has personal jurisdiction over Defendants Deari, Kreka, PPI, Hyatt,
and Island Hospitality because the foregoing Defendants have generally appeared in this case.
PLAINTIFF’S THIRD AMENDED PETITION PAGE 5 OF 24
MANDAMUS RECORD - TAB 1
26. This Court has personal jurisdiction over Defendants Hyatt House, Grand Prix,
Ink Acquisition, Ink Acquisition II, Ink Acquisition III, Ink Lessee, Ink Lessee Holding,
Chatham Holding, Chatham Lodging, Fisher, and Post Properties because each of the
aforementioned Defendants (1) engage in, and transact business within, the State of Texas, (2)
maintain continuous and systematic contacts with the State of Texas, (3) purposefully avail, or
availed, itself to the laws of the State of Texas, (4) committed a tort or torts, in whole or in part,
in the State of Texas against a Texas resident, and (5) a substantial part of the events or
omissions giving rise to Plaintiff’s claims occurred in Texas and involved said Defendants.
27. Removal of this case to a federal court is inappropriate and statutorily
unauthorized because (1) complete diversity of parties is lacking, (2) at least one Defendant is a
forum-state defendant by virtue of its status as a Texas business entity and/or principal place of
business being located in Texas, and (3) Plaintiff has not alleged a federal question, federal cause
of action, or alleged facts that would give rise to a federal question, federal cause of action,
and/or “federal officer” removal jurisdiction; therefore, any attempt to remove this case to a
federal court is frivolous and gives rise to sanctionable conduct.
IV.
VENUE
28. Pursuant to TEX. CIV. PRAC. & REM. CODE § 15.002(a), venue is proper in Dallas
County, Texas because (1) all or a substantial part of the events or omissions giving rise to
Plaintiff’s claims occurred in Dallas County, Texas, and (2) some or all of the Defendants
resided in Dallas County, Texas at the time Plaintiff’s causes of action accrued.
29. Pursuant to TEX. CIV. PRAC. & REM. CODE § 15.005, because venue is proper in
Dallas County, Texas as to at least one Defendant, venue is proper in Dallas County, Texas as to
all Defendants.
PLAINTIFF’S THIRD AMENDED PETITION PAGE 6 OF 24
MANDAMUS RECORD - TAB 1
V.
FACTUAL BACKGROUND
30. Plaintiff expressly incorporates by reference, as if fully set forth herein,
paragraphs 1 through 29 of Plaintiff’s Petition.
31. In early 2011, Plaintiff was 18 years old and a recent graduate from high school.
Plaintiff excelled in school academically, graduating as the valedictorian of her class.
32. Like many young adults, Plaintiff was in search of an entry-level job at a local
business in order to earn disposable income and garner working experience. While networking
for such a job, Plaintiff was introduced to Defendant Deari and Defendant Kreka. Plaintiff was
told that Deari and Kreka were the owners of two local bar/restaurants, and would be willing to
meet with her to lend any insight they may have.
33. On or about April 26, 2011, Plaintiff met Deari and Kreka at a restaurant in
Dallas, Texas. Although this meeting was not employment-related, Plaintiff met with said
Defendants merely to continue networking.
34. Deari asked Plaintiff how old she was and Plaintiff informed both men that she
was 18 years old. At the time, Defendant Deari was approximately 49 years old and Defendant
Kreka was approximately 33 years old. The two Defendants subsequently tried to order Plaintiff
an alcoholic beverage; however, the restaurant’s server refused to bring the beverage because
Plaintiff was underage.
35. Undeterred, Deari and Kreka decided that it would be easiest to order Plaintiff
beverages at Defendant PPI’s Addison, Texas location. Indeed, Defendant Deari was, and is, the
registered agent, director, and president of PPI. On information and belief, Plaintiff alleges that
PPI, as lessee, leases the physical space for its Addison, Texas location from Defendant Post
Properties, as lessor (as confirmed by Century Surety Company, CCP672836 and said
PLAINTIFF’S THIRD AMENDED PETITION PAGE 7 OF 24
MANDAMUS RECORD - TAB 1
Defendants’ original, first, and second amended leases for said property).
36. As the two men had planned, Defendant Deari and Defendant Kreka convinced
Plaintiff to drive to PPI. Prior to their arrival, Defendant Deari purchased hard liquor from a store
with the intention of personally serving the alcohol to Plaintiff. Neither Deari nor PPI were
licensed by the Texas Alcoholic Beverage Commission to sell or serve hard liquor.
37. Upon arrival at PPI, Defendants Kreka and Deari began serving, retrieving, and
otherwise giving Plaintiff multiple “shots” of hard liquor. Defendant PPI’s other employees—
who were acting within the course and scope of their employment—also negligently served
Plaintiff beer without ever asking for identification. Defendants Deari and Kreka repeatedly and
aggressively pressured Plaintiff into consuming—and Plaintiff, indeed, consumed—alcoholic
beverages despite their knowledge that Plaintiff was not of legal age to drink. Just as Defendants
Deari and Kreka planned, Plaintiff became intoxicated and she was, in fact, obviously
intoxicated. PPI’s other employees negligently failed to identify Plaintiff’s over-service.
38. After Plaintiff had consumed multiple shots of hard liquor and servings of beer,
Deari and Kreka decided that their next stop should be to take Plaintiff to a local adult
entertainment establishment. Deari retrieved his vehicle from PPI’s parking lot and told Kreka
and Plaintiff to get into the vehicle. Kreka moved into the driver’s seat and Plaintiff, who was
highly intoxicated, sat in the back of the vehicle. Plaintiff then lost consciousness.
39. Plaintiff’s next memory is vomiting in a gas station parking lot before losing
consciousness again. Sometime thereafter, Plaintiff regained consciousness in a hotel room
located at 4900 Edwin Lewis Drive, Addison, Texas 75001 wherein she had been involuntarily
disrobed and was actively being raped by Defendant Deari. Said hotel is a premise that was, and
is, owned, operated, controlled, managed, and/or otherwise possessed by the Alter Ego
PLAINTIFF’S THIRD AMENDED PETITION PAGE 8 OF 24
MANDAMUS RECORD - TAB 1
Defendants as owner, franchisor, franchisee, assignor, assignee, lessor, lessee, transferor,
transferee, manager, and as the alter egos of each other and/or Hyatt and/or Fisher. Said premises
lacked any reasonable degree of security that could have, and would have, prevented or mitigated
the reasonably foreseeable attack on Plaintiff.
40. Plaintiff repeatedly insisted that Defendant Deari stop the attack, but he did not. It
was only after Plaintiff made multiple demands for Defendant Deari to stop did the sexual
assault eventually end. Fearful of another attack, Plaintiff locked herself in the bathroom.
41. While still in the hotel room—and without ever being impeded by the Alter Ego
Defendants—Defendant Deari called Defendant Kreka on the telephone and told him that
Plaintiff was “really freaking out, dude”, and asked for Kreka to retrieve him from the Alter Ego
Defendants’ premises. With the knowledge that a sexual assault had just occurred (one in which
Defendant Kreka conspired to commit, facilitated, aided, and abetted), Kreka retrieved Deari
from the crime scene (again, unimpeded by the Alter Ego Defendants) thereby assisting Deari’s
evasion of law enforcement.
42. Plaintiff alleges that the Alter Ego Defendants knew, or reasonably should have
known, of the reasonably foreseeable, unreasonable risks of harm from criminal activity at its
premises to Plaintiff taking into account the history, frequency, proximity, regularity, publicity,
and similarity of criminal conduct on or near the Alter Ego Defendants’ property. The Alter Ego
Defendants negligently and grossly negligently allowed Defendant Deari and Defendant Kreka
to reserve a room at its hotel, enter it with an unconscious 18 year-old woman, rape her, and
come and go from its property in an unimpeded fashion such that Defendants could evade a
police investigation without resistance.
43. After the attack on Plaintiff ceased and Deari and Kreka left the Alter Ego
PLAINTIFF’S THIRD AMENDED PETITION PAGE 9 OF 24
MANDAMUS RECORD - TAB 1
Defendants’ premises, a friend of Plaintiff’s arrived at the hotel to help. After learning what
happened, the friend immediately notified the Addison Police Department. While investigating
the crime scene, Defendant Deari—while smoking a cigar—came back to the hotel (presumably
to retrieve the underwear he left, which was taken into evidence by the police department), and
Deari was arrested, charged with the crime of sexual assault, indicted, and has a criminal trial
pending. At this point in time, Defendant Kreka has not been charged for the crimes he aided,
abetted, facilitated, and conspired to commit; however, on information and belief Plaintiff
alleges that the State of Texas is well within the statute of limitations for such a crime to arrest,
charge, and indict Kreka for his involvement in the attack on Plaintiff.
44. Plaintiff was immediately transmitted to the hospital and underwent a series of
examinations, tests, and administered massive quantities of treatments for the injuries she
incurred during the rape.
45. Within a matter of days following the sexual assault, Plaintiff went back to the
hospital after she experienced severe pain in her pubic region. Upon information and belief, the
doctors informed Plaintiff that she had contracted herpes, an incurable sexually-transmitted
disease, during the rape. The doctors conducted a blood test on Plaintiff wherein the specific
strand of herpes was identified. It has recently been discovered that the results of a mandatory
blood/sexually-transmitted disease test ordered by the Court in “The State of Texas v. Danny
Deari” has confirmed that Plaintiff’s attacker (who did not utilize latex contraception during the
attack), Defendant Deari, is infected with the same derivation of the herpes virus and
undoubtedly infected Plaintiff.
46. As a proximate result of the despicable, extreme, outrageous, tortious, and grossly
negligent acts and omissions by Defendants alleged herein, Plaintiff has foreseeably suffered,
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MANDAMUS RECORD - TAB 1
and will continue to suffer, through extreme emotional distress, pain, mental anguish, and
suffering as the sexual assault is constantly replayed in her mind and the aftermath displayed on
her body. Plaintiff is forced to shoulder the burden of Defendants’ horrible acts for the rest of her
life which, according to the federal government’s “National Vital Statistics Reports”, is expected
to be another 61.6 years.2 Plaintiff has incurred, and will continue to incur, substantial damages
that were all proximately caused by Defendants.
VI.
CAUSES OF ACTION
COUNT 1: ASSAULT – THREAT OF BODILY INJURY
47. Plaintiff’s first cause of action is alleged against Defendants Deari and Kreka,
only. As used in this cause of action, “Defendants” refers to Defendant Deari and Defendant
Kreka.
48. Plaintiff incorporates by reference, as if fully set forth herein, paragraphs 1
through 47 of Plaintiff’s Petition.
49. On or about April 26, 2011, Defendants intentionally or knowingly threatened
Plaintiff with imminent bodily injury. Defendants’ threat of imminent bodily injury caused
Plaintiff to be apprehensive, which was a foreseeable result of Defendants’ actions.
50. Defendants are liable for the threat of bodily injury committed against Plaintiff
because Defendants participated in the tortious acts themselves or, alternatively, assisted the
tortious act against Plaintiff in furtherance of the civil conspiracy to do so or, alternatively, aided
and abetted each other to allow the ultimate threat of bodily injury against Plaintiff to take place.
51. Defendants’ threat of imminent bodily injury to Plaintiff was a cause of the
damages alleged herein.
2
See U.S. Department of Health and Human Service, NATIONAL VITAL STATISTICS REPORTS Vol. 61, No.3,
September 24, 2012 at 20.
PLAINTIFF’S THIRD AMENDED PETITION PAGE 11 OF 24
MANDAMUS RECORD - TAB 1
COUNT 2: ASSAULT (BATTERY) –BODILY INJURY AND OFFENSIVE CONTACT
52. Plaintiff’s second cause of action is alleged against Defendants Deari and Kreka,
only. As used in this cause of action, “Defendants” refers to Defendants Deari and Kreka.
53. Plaintiff incorporates by reference, as if fully set forth herein, paragraphs 1
through 52 of Plaintiff’s Petition.
54. Plaintiff incorporates by reference, as if fully set forth herein, the statutory
language of TEX. PENAL CODE §§ 22.01, 22.011 describing the felonies of “Assault” and “Sexual
Assault”. Plaintiff alleges that Plaintiff was the victim of the aforementioned crimes that
Defendants committed against Plaintiff on or about April 26, 2011, and that said crimes have
caused Plaintiff’s damages alleged herein.
55. Defendants intentionally, knowingly, and/or recklessly made physical contact
with Plaintiff’s person causing bodily injury—that is, physical pain, illness, or impairments of
Plaintiff’s physical condition—and Plaintiff did not, and could not, consent to the harmful
physical contact.
56. Alternatively, Defendants intentionally or knowingly caused to be made physical
contact with Plaintiff when Defendants knew, or reasonably should have believed, that Plaintiff
would regard the contact as offensive or provocative. Indeed, said physical contact was
offensive, provocative, and committed by Defendants despite never having consent from
Plaintiff.
57. As a causal result of Defendants’ battery of Plaintiff’s person, Plaintiff suffered
immediate, consequential, and subsequent injuries—including pain, illness, and physical
impairment—that were foreseeable to Defendants. The assault committed by Defendants on
Plaintiff’s person was a cause of the damages alleged by Plaintiff herein.
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58. Defendants are liable for the crimes, assault, battery, and sexual assault of which
Plaintiff is a victim because Defendants participated in the tortious and felonious acts themselves
or, alternatively, assisted the crimes, assault, battery, and sexual assault against Plaintiff in
furtherance of the civil conspiracy to do so or, alternatively, aided and abetted the crimes,
assault, battery, and sexual assault by providing intoxicating substances to Plaintiff, a mode of
transportation for the crimes, assault, battery, and sexual assault to occur, and/or a location—
which was foreseeably unsafe and unreasonably dangerous—for the crimes, assault, battery, and
sexual assault to take place.
59. In addition to committing, conspiring to commit, or aiding and abetting assault,
battery, and/or sexual assault against Plaintiff, the investigation is still ongoing as to whether or
not Defendants individually—or collectively in furtherance of a conspiracy and/or whilst aiding
and abetting each other—should be charged with, criminally prosecuted for, and civilly held
liable for the felony of “Aggravated Sexual Assault”, as defined by TEX. PENAL CODE § 22.021
and fully incorporated by reference herein.
COUNT 3: SEXUAL ASSAULT—TEX. PENAL CODE § 22.011
60. Plaintiff’s third cause of action is alleged against Defendants Deari and Kreka,
only. As used in this cause of action, “Defendants” refers to Defendants Deari and Kreka.
61. Plaintiff incorporates by reference, as if fully set forth herein, paragraphs 1
through 60 of Plaintiff’s Petition.
COUNT 4: FALSE IMPRISONMENT
62. Plaintiff incorporates by reference, as if fully set forth herein, paragraphs 1
through 60 of Plaintiff’s Petition.
63. Without legal authority or justification, Defendants willfully detained or
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participated in the detainment of Plaintiff without Plaintiff’s consent. Defendants accomplished
the unlawful detainment of Plaintiff with violence, threats that were calculated to inspire—and,
in fact, inspired—a reasonable fear of injury to Plaintiff, intoxicating substances, and/or other
means that were intended to cause—and, in fact, caused—Plaintiff to be unable to exercise her
will in going anywhere she was lawfully allowed to go. Said false imprisonment took place at the
hotel owned and operated by the Alter Ego Defendants, interior of the restaurant possessed,
owned and/or controlled by Post Properties and PPI (due to Plaintiff’s physical inability and/or
lawful ability to leave in such an unconscious and/or intoxicated state), and exterior of the
restaurant in the “common area” possessed, owned and/or controlled by Post Properties and PPI.
64. The false imprisonment committed by Defendants against Plaintiff was a
proximate cause of the damages alleged by Plaintiff herein.
COUNT 5: NEGLIGENCE
65. Plaintiff incorporates by reference, as if fully set forth herein, paragraphs 1
through 64 of Plaintiff’s Original Petition.
66. Defendants owed Plaintiff legal duties that Defendants breached thereby
proximately causing Plaintiff’s damages.
67. For example, the Alter Ego Defendants, for example, as innkeepers owed Plaintiff
a duty to use the appropriate legal standard of care in maintaining its premises in a safe and
secure condition and to inspect the premises to ensure the safety of its occupants, a duty to
protect Plaintiff against unreasonable and foreseeable risks of harm from the criminal acts of
third parties due to the Alter Ego Defendants’ status (as landowner and, further, the heightened
duty owed by an innkeeper) and ability to control the security and safety of the premises, a duty
not to injure Plaintiff in a willful, wanton, or grossly negligent manner or allow another to do so
PLAINTIFF’S THIRD AMENDED PETITION PAGE 14 OF 24
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on its premises when it knew, or reasonably should have known, such conduct would take place,
a duty to make safe conditions on its property in order to protect Plaintiff, and a duty to treat
Plaintiff in a manner that would not subject her to physical or mental injury. As alleged fully
herein, there can be no dispute that the Alter Ego Defendants breached each and every one of the
duties it owed Plaintiff. Defendants PPI and Post Properties, for example, had a duty to use the
appropriate legal standard of care to ensure that invitees at the PPI Addison, Texas location
would be safe, secure, and that the normal and lawful activities that would otherwise take place
at the restaurant would not harm its invitees. Defendants PPI and Post Properties breached these
duties owed to Plaintiff. Post Properties also had a duty to protect Plaintiff, and the public as a
whole, from unlawful lessees of its property by conducting a reasonable investigation into its
lessees and/or terminate a lease upon the happening of an unlawful event (such as PPI’s citation
from the Texas Alcoholic Beverage Commission in 2002 for serving a minor alcohol) and,
further, a duty to control the activities taking place on the “common area” outside of the
restaurant to ensure the safety of the individuals on said property; however, Post Properties
clearly breached these duties and, moreover, actually extended PPI’s lease just days after the
attack on Plaintiff occurred and to this day has not terminated said lease. Defendant PPI had a
duty to control its employees, a duty to supervise its employee’s activities, a duty to prevent an
employee from causing an unreasonable risk of harm to Plaintiff, a duty to use the appropriate
legal standard of care in hiring and retaining its employees, a duty to not place Plaintiff in harm’s
way of foreseeable criminal activity, and a duty to treat Plaintiff in a manner that would not
subject her to physical or mental injury. PPI breached those duties it owed Plaintiff by, amongst
other things, negligently providing intoxicating substances to Plaintiff, negligently hiring its
employees, negligently supervising its employees, and/or placing her in harm’s way. Defendant
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Kreka, by way of example, owed Plaintiff a legal duty to protect Plaintiff from harm when the
danger was caused, in part, by Kreka and the harm was apparent to Kreka such that he was in a
position to protect Plaintiff from the harm, a duty to not place Plaintiff in harm’s way of
foreseeable criminal activity, a duty to not operate a vehicle when legally intoxicated thereby
placing Plaintiff in danger and, ultimately, causing her to arrive at the location where she was
sexually assaulted, and a duty to treat Plaintiff in a manner that would not subject her to physical
or mental injury. Defendant Kreka breached each and every one of these duties as detailed in this
Petition.
68. Defendants breached the duties it owed to Plaintiff thereby proximately causing
Plaintiff’s injuries and the damages alleged herein.
COUNT 6: PREMISES LIABILITY
69. Plaintiff incorporates by reference, as if fully set forth herein, paragraphs 1
through 68 of Plaintiff’s Petition.
70. Plaintiff’s cause of action for Premises Liability is alleged against the Alter Ego
Defendants, PPI, and Post Properties, only. Plaintiff reserves the right to supplement and amend
this cause of action. As used in this cause of action, “Defendants” refers to the Alter Ego
Defendants, PPI, and Post Properties.
71. The Alter Ego Defendants facilitated the assault and tortious conduct on Plaintiff
through the use or misuse of the property—located at 4900 Edwin Lewis Drive, Addison, Texas
75001—owned, operated, controlled by, franchised by, licensed by, managed, leased, assigned,
and/or otherwise possessed by the Alter Ego Defendants and, further, PPI and Post Properties
facilitated the assault and tortious conduct on Plaintiff through the use or misuse of PPI’s
Addison, Texas location that was owned, operated, controlled by, franchised by, licensed by,
PLAINTIFF’S THIRD AMENDED PETITION PAGE 16 OF 24
MANDAMUS RECORD - TAB 1
managed, leased, assigned, and/or otherwise possessed by PPI and Post Properties.
72. Defendants owed Plaintiff a duty to use the appropriate standard of care in
protecting Plaintiff from unreasonable and reasonably foreseeable risks of harm (including
criminal activity at its premises considering the history, frequency, proximity, regularity,
publicity, and similarity of criminal conduct on or near the Alter Ego Defendants’ property)
especially in light of Defendants’ status as landowner and/or innkeeper that possessed the ability
to control the security and safety of the premise and its employees. Defendants had a duty to
inspect and make safe any dangerous conditions or situations on its property or give Plaintiff an
adequate warning of the dangerous conditions or situations; however, Defendants failed to do so.
73. Defendants breached the legal duties it owed Plaintiff thereby proximately
causing Plaintiff’s damages alleged herein.
COUNT 7: DRAM SHOP LIABILITY
74. Plaintiff’s cause of action for Dram Shop Liability is alleged against Post
Properties and Deari—in his capacity as registered agent, director, and president of PPI—, only.
Further, Plaintiff alleges this cause of action in the alternative to Counts 4-6 against Post
Properties. As used in this cause of action, “Dram Shop Defendants” refers to PPI, Deari, and
Post Properties (in the alternative to Counts 4-6 against Post Properties). Plaintiff reserves the
right to supplement and amend this cause of action.
75. Plaintiff incorporates by reference, as if fully set forth herein, paragraphs 1
through 74 of Plaintiff’s Petition.
76. On or about April 26, 2011, the Dram Shop Defendants held Texas Alcoholic
Beverage Commission licenses for the sale or service of alcoholic beverages and did, in fact, sell
or serve multiple alcoholic beverages to Plaintiff who, at the time, was an 18 year-old “adult
PLAINTIFF’S THIRD AMENDED PETITION PAGE 17 OF 24
MANDAMUS RECORD - TAB 1
recipient” of said beverages. However, Dram Shop Defendants were not authorized to sell hard
liquor at PPI’s Addison, Texas location.
77. To the extent that the Dram Shop Defendants did not hold Texas Alcoholic
Beverage Commission licenses for the sale or service of alcoholic beverages on or about April
26, 2011, Plaintiff alternatively alleges that the Dram Shop Defendants did not have said licenses
yet still sold Plaintiff, an 18 year-old “adult receipt”, alcoholic beverages.
78. After the Dram Shop Defendants provided the alcoholic beverages to Plaintiff, it
was apparent, or readily became apparent, to the Dram Shop Defendants that Plaintiff was
obviously intoxicated.
79. Plaintiff’s intoxication—as a result of the Dram Shop Defendants’ acts or
omissions—was one of the proximate causes of the injuries incurred and the damages alleged by
Plaintiff herein.
COUNT 8: INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS [ALTERNATIVE REMEDY]
80. Plaintiff incorporates by reference, as if fully set forth herein, paragraphs 1
through 79 of Plaintiff’s Petition.
81. As an alternative remedy to Plaintiff’s claims detailed in this Petition at Section
(VI)(Count 1—Count 7), Plaintiff alleges that no alternative cause of action would provide
Plaintiff with a remedy for the severe emotional distress incurred by Plaintiff which was
proximately caused by Defendants’ tortious conduct.
82. Plaintiff—an individual—was and is a victim of Defendants’ intentional or
reckless actions that were calculated to cause severe emotional distress to Plaintiff.
83. Defendants’ intentional or reckless actions towards Plaintiff were extreme and
outrageous and, ultimately, proximately caused Plaintiff to suffer severe emotional distress.
PLAINTIFF’S THIRD AMENDED PETITION PAGE 18 OF 24
MANDAMUS RECORD - TAB 1
COUNT 9: PARTICIPATORY LIABILITY—AIDING AND ABETTING AND CONCERT OF ACTION
84. Plaintiff incorporates by reference, as if fully set forth herein, paragraphs 1
through 83 of Plaintiff’s Petition.
85. Among the Defendants was a primary actor, or primary actors, who committed an
underlying tort, or torts, against Plaintiff. Defendants had knowledge that the primary actor’s
conduct constituted a tort and Defendants gave the primary actor assistance, substantial
assistance, and/or encouragement to commit the tort against Plaintiff. Defendants’ assistance,
substantial assistance, and/or encouragement was a substantial factor in causing the tort to be
completed and a substantial factor in the damages incurred by Plaintiff as alleged herein.
86. Alternatively, Defendants’ own conduct—separate and apart from the primary
actor—was a breach of duty to Plaintiff and a substantial factor in causing Plaintiff’s injuries.
87. Due to Defendants’ joint assistance, encouragement, aiding and abetting, and/or
concert of action, Plaintiff alleges that Defendants should be held jointly and severally
responsible for the whole of damages incurred by Plaintiff.
COUNT 10: PARTICIPATORY LIABILITY—CONSPIRACY
88. Plaintiff incorporates by reference, as if fully set forth herein, paragraphs 1
through 87 of Plaintiff’s Petition.
89. As fully described in this Petition, Defendants are, and were, individuals or
individual entities that acted together as a combination of two or more individuals or entities.
90. Throughout Defendants’ interactions with Plaintiff on or about April 26, 2011, the
object of Defendants’ combination was to accomplish an unlawful purpose and/or a lawful
purpose by unlawful means.
91. Defendants had a meeting of the minds on the object or course of action of its
PLAINTIFF’S THIRD AMENDED PETITION PAGE 19 OF 24
MANDAMUS RECORD - TAB 1
conspiracy, and at least one Defendant committed an unlawful, overt act in furtherance of
Defendants’ object or course of action.
92. Plaintiff suffered the damages alleged herein as a proximate result of Defendants’
wrongful act or acts.
COUNT 11: EXEMPLARY DAMAGES
93. Plaintiff incorporates by reference, as if fully set forth herein, paragraphs 1
through 92 of Plaintiff’s Original Petition.
94. Defendants’ tortious conduct was malicious, fraudulent, and/or grossly negligent.
95. Defendants’ malicious, fraudulent, and/or grossly negligent was carried out by
Defendants personally, through Defendants’ authorized agents, managers, officers, directors,
vice-principals, and/or principals of the Defendants who were acting within the course and scope
of their agency, employment, partnership, and/or joint venture. Alternatively, Defendants’
malicious, fraudulent, and/or grossly negligent conduct was subsequently approved by or ratified
by Defendants.
96. Defendants intentionally breached the legal duties it owed Plaintiff such that it
could take undue advantage of Plaintiff and/or otherwise maliciously treat Plaintiff. The acts or
omissions of Defendants, when viewed objectively from the Defendants’ standpoint, involved an
extreme degree of risk when considering the probability and magnitude of the potential harm to
Plaintiff and others.
97. Additionally, Defendants had actual, subjective awareness of the risk to Plaintiff
and others but proceeded anyway with a conscience indifference to the rights, safety, or welfare
of Plaintiff and others.
98. Defendants’ conduct was performed and/or designed with a specific intent to
PLAINTIFF’S THIRD AMENDED PETITION PAGE 20 OF 24
MANDAMUS RECORD - TAB 1
cause substantial injury or harm to Plaintiff. As alleged herein, Defendants’ conduct is an
example of why punitive damages exist, and Plaintiff alleges that Defendants’ conduct rises to
the level warranting the imposition of exemplary damages against Defendants at trial.
VII.
DAMAGES
99. Plaintiff incorporates by reference, as if fully set forth herein, paragraphs 1
through 98 of Plaintiff’s Petition.
100. Plaintiff has incurred significant damages due to Defendants' criminal, tortious,
and outrageous conduct. Plaintiff seeks all losses sustained as a natural, probable, foreseeable,
and/or proximate result of Defendants' wrongful conduct, including:
a. General damages;
b. Actual damages;
c. Physical pain and suffering incurred in the past and future;
d. Mental anguish incurred in the past and future;
e. Disfigurement incurred in the past and future;
f. Physical impairment incurred in the past and future;
g. Medical expenses incurred in the past and future;
h. Loss of earning capacity incurred in the past and future;
i. Lost wages incurred in the past and future;
j. All reasonable and necessary attorneys' fees that Plaintiff is forced to incur
pursuant to Texas common law and equity;
k. Exemplary damages;
l. Costs of court;
m. Pre-judgment interest;
PLAINTIFF’S THIRD AMENDED PETITION PAGE 21 OF 24
MANDAMUS RECORD - TAB 1
n. Post-judgment interest; and
o. All other relief, in law and in equity, to which Plaintiff may be justly entitled.
VIII.
DEMAND FOR JURY
101. Plaintiff demands a jury trial and tenders the appropriate fee.
IX.
REQUEST FOR DISCLOSURE
102. Plaintiff hereby demands that all Defendants make the disclosures, within the
timeframe provided therein, required by TEX. R. CIV. P. 194(a)-(l)
X.
PRAYER
103. WHEREFORE, PREMISES CONSIDERED, Plaintiff prays that Defendants be
cited to appear and answer herein. Plaintiff further prays that, upon trial by jury, she have
judgment against Defendants for the damages alleged herein, as well as all other relief, in law
and in equity, to which Plaintiff may prove herself to be justly entitled.
PLAINTIFF’S THIRD AMENDED PETITION PAGE 22 OF 24
MANDAMUS RECORD - TAB 1
Respectfully submitted,
___________________________________
ROYCE WEST G. MICHAEL GRUBER
State Bar No. 21206800 State Bar No. 08555400
royce.w@westllp.com mgruber@ghjhlaw.com
VERETTA FRAZIER ERIC POLICASTRO
State Bar No. 00793264 State Bar No. 24068809
veretta.f@westllp.com epolicastro@ghjhlaw.com
NIGEL REDMOND TREY CRAWFORD
State Bar No. 24058852 State Bar No. 24059623
nigel.r@westllp.com tcrawford@ghjhlaw.com
WEST & ASSOCIATES, L.L.P. GRUBER HURST JOHANSEN HAIL SHANK LLP
P.O. Box 3960 1445 Ross Avenue, Suite 2500
Dallas, Texas 75208-1260 Dallas, Texas 75202
Ofc.: (214) 941-1881 214.855.6800 (main)
Fax: (214) 941-1399 214.855.6808 (facsimile)
ATTORNEYS FOR PLAINTIFF
PLAINTIFF’S THIRD AMENDED PETITION PAGE 23 OF 24
MANDAMUS RECORD - TAB 1
CERTIFICATE OF SERVICE
The undersigned hereby certifies that, pursuant to TEX. R. CIV. P. 21, 21a, a true and
correct copy of the foregoing was filed on November 25, 2013 and was served on November 25,
2013 to the following individuals:
Via Facsimile Via Facsimile
Hyatt Hotels Corporation Post Properties, Inc.
Hyatt House Franchising, LLC Post Addison Circle Limited Partnership
Island Hospitality Management, Inc.
Ink Acquisition, LLC Randy Nelson
Ink Acquisition II, LLC Thompson Coe Cousins & Irons, LLP
Ink Acquisition III, LLC Facsimile: (214) 871-8209
Ink Lessee, LLC
Ink Lessee Holding, LLC
Grand Prix Floating Lessee, LLC
Chatham Lodging, LP
Chatham TRS Holding, Inc.
Jeffrey H. Fisher
Ramona Martinez
Cobb Martinez Woodward PLLC
Facsimile: (214) 220-5252
Via Facsimile Via Certified Mail, Return Receipt Requested
Ajredin “Danny” Deari Dritan Kreka, pro se
Pastazios Pizza, Inc.
5549 Big River Drive
Samuel H. Johnson The Colony, Texas 75056
Johnson Broome, P.C.
Facsimile: (972) 584-6054
Via Facsimile
Royce West
Nigel Redmond
WEST & ASSOCIATES, L.L.P.
Fax: (214) 941-1399
_______________________________________
Eric Policastro
PLAINTIFF’S THIRD AMENDED PETITION PAGE 24 OF 24
MANDAMUS RECORD - TAB 1
FILED
DALLAS COUNTY
3/31/2014 5:09:10 PM
GARY FITZSIMMONS
DISTRICT CLERK
C A U S E NO. DC-13-04564-L
JANE DOE § IN THE DISTRICT COURT
§
VS.
AJREDIN "DANNY" DEARI; D M T AN
K R E K A ; PASTAZIOS P I Z Z A , I N C . ;
ISLAND HOSPITALITY MANAGE-
M E N T , INC.; H Y A T T HOTELS §
C O R P O R A T I O N ; H Y A T T HOUSE §
FRANCHISING, L L C ; GRAND PRIX D A L L A S COUNTY, T E X A S
F L O A TING L E S S E E , L L C ; I N K
ACQUISITION, L L C ; I N K §
ACQUISITION II, L L C ; INK §
A C Q U I S I T I O N I I I , L L C ; INK L E S S E E , §
L L C ; I N K L E S S E E HOLDING, L L C ; §
C H A T H A M TRS H O L D I N G , I N C . ; §
C H A T H A M L O D G I N G , L P ; JEFFREY §
H . F I S H E R , Individually; P O S T
r d
PROPERTIES, INC.; and D O E S 1-25 193 JUDICIAL DISTRICT
DEFENDANT ISLAND HOSPITALITY
M A N A G E M E N T , INC.'S SECOND A M E N D E D A N S W E R
T O T H E H O N O R A B L E J U D G E O F SAID C O U R T :
COMES N O W , Island Hospitality Management, Inc. ("Defendant"), one of the
Defendants in the above-entitled and numbered cause, and files its Second Amended Answer,
and would respectfully show the Court as follows:
I.
GENERAL DENIAL
Defendant generally denies the allegations contained in Plaintiffs live petition, demands
strict proof thereof, and says this is a matter for jury decision. Defendant further demands a trial
by jury.
D E F E N D A N T ISLAND H O S P I T A L I T Y M A N A G E M E N T , INC.'S SECOND AMENDED A N S W E R PAGEI
Document #117603
MANDAMUS RECORD - TAB 2
II.
A F F I R M A T I V E DEFENSES
Defendant asserts the following affirmative and other defenses:
a. Plaintiffs own acts or omissions caused or contributed to Plaintiffs injury.
b. Plaintiff failed to mitigate her damages.
c. Plaintiffs claims are barred under the doctrines of sole proximate cause, new
and independent cause, and/or intervening cause.
d. Plaintiffs claims are barred because Plaintiff consented to the alleged conduct
of one or more of the defendants.
e. Plaintiffs claims are barred because Defendant is not a responsible party.
f. Plaintiffs claim for intentional infliction of emotional distress is barred
because Plaintiff has the right to recover, if at all, under an alternative tort.
g. Plaintiffs claims are barred as a result of discharge in bankruptcy and/or
entity restructuring.
h. Pleading further, Defendant would show that the incident in question and the
damages alleged by Plaintiff, i f any, were caused, solely or partially, or
proximately caused by the fault or negligence of some person or third party
over whom Defendant had no right of nor actual control nor legal
responsibility.
i. Pleading further, Defendant would show the incident in question and the
damages alleged by Plaintiff were the result of the negligence and/or
intentional acts of third party criminals whom this Defendant had no actual or
legal right to control. In this regard, Defendant would show that such
negligence and/or intentional acts were the sole proximate cause, or
D E F E N D A N T ISLAND HOSPITALITY MANAGEMENT, INC.'S S E C O N D AMENDED ANSWER PAGE 2
Document #117603
MANDAMUS RECORD - TAB 2
alternatively, the new, independent, and/or intervening cause of the incident in
question and damages suffered.
j. Defendant asserts its right to have evidence regarding lost wage, loss of
earning capacity, loss of pecuniary value or loss of inheritance limited
pursuant to T E X . C I V . PRAC. & R E M . CODE § 18.091. Further, Defendant
asserts its right to have the jury instructed whether such damages are subject
to federal or state income tax.
k. Defendant asserts its right to have evidence regarding the amount billed
and/or written off for medical expenses excluded pursuant to T E X . Civ. PRAC.
& R E M . CODE § 4 1 . 0 1 0 5 .
1. Defendant further pleads it cannot be held to answer for punitive or exemplary
damages for acts or omissions of any employee or agent.
m. Defendant would show that its liability is limited by the provisions of Chapter
41 of the T E X . C I V . PRAC. & R E M . CODE; and any award of punitive damages
is barred to the extent it is inconsistent with the standards and limitations set
forth in BMW of North Am, Inc. v. Gore, 517 U.S. 559 (1996); and State Farm
Mutual Automobile Ins. Co. v. Campbell, 123 S. Ct. 1513 (2003).
Consideration of any punitive damages in this civil action violates the due
process clause of the Fifth and Fourteenth Amendments of the U.S.
Constitution. An award of punitive damages is a punishment and a quasi-
criminal sanction for which Defendant is not afforded specific procedural
safeguards prescribed by the Fourth, Fifth and Sixth Amendments to the U.S.
DEFENDANT ISLAND HOSPITALITY MANAGEMENT, INC.'S SECOND AMENDED ANSWER PAGE 3
Document #117603
MANDAMUS RECORD - TAB 2
Constitution. A n award of punitive damages violates Article 1, Sections 3, 13,
and 19 of the Texas Constitution,
n. Pleading further, Defendant states it is entitled under TEX. Civ. PRAC. & R E M .
CODE Chapter 41 to a limitation on the amount o f recovery of exemplary
damages pursuant to statute,
o. By way of further answer, i f same be necessary, Defendant affirmatively
pleads there can be no award of exemplary damages against Defendant
because of the criminal acts of another pursuant to § 41.005 of the T E X . Civ.
PRAC. & R E M . CODE.
p. Defendant asserts its right to proportionate responsibility, contribution,
comparative fault, indemnity and/or credit pursuant to Chapters 32 and 33 of
the T E X . C I V . PRAC. & R E M . CODE.
III.
PRAYER FOR RELIEF
W H E R E F O R E , P R E M I S E S C O N S I D E R E D , Defendant prays that upon final hearing
hereof, Plaintiff take nothing by this suit, that Defendant recover its costs, and that Defendant
have such other and further relief, both at law and in equity, to which Defendant may be justly
entitled.
D E F E N D A N T ISLAND H O S P I T A L I T Y MANAGEMENT, INC.'S SECOND AMENDED ANSWER PAGE 4
Document #117603
MANDAMUS RECORD - TAB 2
- !
Respectfully submitted,
COBB M A R T I N E Z W O O D W A R D PLLC
1700 Pacific Avenue, Suite 3100
Dallas, TX 75201
(214) 220-5202 (direct phone)
(214) 220-5252 (direct fax)
By:
R A M ON A M A R T I N E Z
Texas Bar No. 13144010
email: miartinezioicobbmartinez.com
M A T T H E W E. L A S T
Texas Bar No. 24054910
email: mlast@cobbma.rtinez.com
ATTORNEYS FOR DEFENDANT
ISLAND HOSPITALITY MANAGEMENT,
INC.
D E F E N D A N T ISLAND H O S P I T A L I T Y MANAGEMENT, INC.'S SECOND AMENDED ANSWER PAGES
Document #117603
MANDAMUS RECORD - TAB 2
C E R T I F I C A T E O F SERVICE
I hereby certify that a true and correct copy of this document has been forwarded to the
following counsel of record either by telefax, electronic mail, certified mail, return receipt
st
requested, and/or regular U.S. mail on this 3 1 day o f March, 2014:
Eric Policastro Royce West
Gruber Hurst Johansen Hail Shank West & Associates
1445 Ross Avenue, Suite 2500 P.O. Box 3960
Dallas, T X 75202-2711 Dallas. I X 75208-1260
fax: 214.855.6808 fax: 214.941.1399
Attorney for Plaintiff Attorney for Plaintiff
Samuel H . Johnson
Johnson Broome, PC
2591 Dallas Parkway, Suite 300
Frisco, TX 75034
fax: 972.584.6054
Attorney for Defendants Deari &
Pastazios Pizza
Lisa A. Songy
Shannon Gracey Rat HIT & Miller
Bank of America Plaza
901 Main Street, Suite 4600
Dallas, T X 75202
fax: 214.245.3097
Attorney for Defendant Kreka
RAMONA MARTINEZ
M A T T H E W E. L A S T
D E F E N D A N T ISLAND H O S P I T A L I T Y M A N A G E M E N T , INC.'S SECOND A M E N D E D ANSWER PAGE 6
Document #117603
MANDAMUS RECORD - TAB 2
DC-13-04564
AAMD
. A M E N D E D A N S W E R - A M E N D E D OENERAI
384987
C A U S E NO. DC-13-04564
FILED
i 3 NOV 26 PH 2s 5 2
JANE DOE, §
§ IONS
Plaintiff § IN T H E :
;¥AS
v. §
^SfCEPUTY*
§
AJREDIN " D A N N Y " DEARI, DRITAN §
K R E K A , P A S T A Z I O S PIZZA, INC., §
ISLAND H O S P I T A L I T Y §
M A N A G E M E N T , INC., H Y A T T H O T E L S §
CORPORATION, H Y A T T HOUSE § 193 R D
JUDICIAL DISTRICT
F R A N C H I S I N G , L . L . C . , GRAND P R I X §
FLOATING LESSEE, L L C , INK §
A C Q U I S I T I O N , L L C , INK §
A C Q U I S I T I O N II, L L C , I N K §
A C Q U I S I T I O N III, L L C , INK LESSEE, §
L L C , INK L E S S E E H O L D I N G , L L C , §
C H A T H A M T R S H O L D I N G , INC., §
C H A T H A M L O D G I N G , L.P., J E F F R E Y § DALLAS COUNTY, TEXAS
H. F I S H E R , I N D I V I D U A L L Y , POST §
ADDISON C I R C L E L I M I T E D §
P A R T N E R S H I P , AND D O E S 1-25, §
Defendants.
DEFENDANTS' SECOND A M E N D E D ANSWER
TO THE HONORABLE JUDGE OF SAID COURT:
N O W COME Defendants, POST ADDISON CIRCLE L I M I T E D PARTNERSHIP and
POST PROPERTIES, INC. (hereinafter collectively referred to as "Defendants") file this their
Second Amended Answer to Plaintiffs Petition, and would respectfully show the Court as
follows:
I. GENERAL DENIAL
Defendants, POST ADDISON CIRCLE L I M I T E D PARTNERSHIP and POST
PROPERTIES, INC., assert a general denial as authorized by Rule 9 2 o f the T E X A S R U L E S O F
CIVIL PROCEDURE, and Defendants respectfully request that Plaintiff be required to prove the
DEFENDANTS' SECOND AMENDED ANSWER PAGE 1
1938033
08463.016
MANDAMUS RECORD - TAB 3
charges and allegations made against POST ADDISON CIRCLE L I M I T E D PARTNERSHIP
and POST PROPERTIES, INC. by a preponderance o f the evidence as is required by the
Constitution and Laws of the State of Texas.
II. AFFIRMATIVE DEFENSES
Defendants specifically plead that on the occasion i n question. Jane Doe failed to exercise
ordinary care for her own safety and, such failure constitutes negligence which was a proximate,
producing, contributing, or sole proximate cause of the alleged damages, i f any, Plaintiff alleges
to have suffered.
Defendants specifically plead that Plaintiffs claims are barred in whole or in part, or should
be reduced, due to the negligence and comparative responsibility of Jane Doe.
Defendants specifically plead that Plaintiffs alleged damages are the result of an
intervening, superseding, or new and independent cause for which these Defendants have no
responsibility.
Defendants specifically plead that Plaintiff failed to mitigate her damages, i f any.
Defendants plead that any injuries, damages, or disabilities claimed or complained of by
Plaintiff are the result, in whole or i n part, of pre-existing conditions or disabilities.
Defendants specifically plead that pursuant to Civ. Prac. Rem. Code § 4 1 . 0 1 0 5 , in
addition to any other limitation under law, recovery o f medical or health care expenses incurred
is limited to the amount actually paid or incurred by or on behalf of the Plaintiff.
Pursuant to § 18.091 of the T E X A S C I V I L P R A C T I C E & R E M E D I E S C O D E , to the extent that
the Plaintiff seeks recovery for loss o f earnings and/or loss of earning capacity, then the
Defendants would show that the Plaintiff must present evidence to prove the loss in the form of a
DEFENDANTS' SECOND AMENDED ANSWER PAGE 2
1938033
08463,016
MANDAMUS RECORD - TAB 3
net loss after reduction for income tax payments or unpaid tax liability pursuant to any federal
income tax law.
Defendants invoke their statutory and common law rights to contribution, indemnity and/or
proportionate responsibility, including, but not limited to that under Chapters 32 and 33 of the Tex.
Civ. Prac. & Rem. Code against all co-Defendants. In the unlikely event that one or more
Defendants is found liable or settles with Plaintiff, Defendants pray for judgment for contribution,
indemnity, offset, credit, and/or proportionate responsibility from any and all such co-Defendants.
Defendants specifically plead that Defendant Post Properties, Inc. can not be held liable
in the capacity that it has been sued.
Defendants further plead that they cannot be liable under the Texas Dram Shop Act as
they are not "providers" pursuant to T . A . B . C §2.03, 2.01.
Defendants plead that there can be no award o f exemplary damages against Defendants
because of the criminal acts o f another pursuant to § 41.005 o f the T E X A S C I V I L P R A C T I C E &
REMEDIES CODE.
By way of further affirmative defense, Defendants would show that the claims made against
them for exemplary and/or punitive damages are in violation of the Fifth, Eighth, and Fourteenth
Amendments to the United States Constitution, and Article 1, Sections 3 and 19 of the Texas
Constitution, in that such claims made are arbitrary, unreasonable and in violation of Defendants'
right to due process of law and equal protection of law.
Defendants specifically deny that Plaintiff is entitled to recover punitive or exemplary
damages herein on the grounds that the imposition of punitive damages as sought by Plaintiff
would be fundamentally unfair and Defendants would show that no legal basis or facts are
DEFENDANTS' SECOND AMENDED ANSWER PAGE 3
1938033
08463.016
MANDAMUS RECORD - TAB 3
alleged that would allow punitive damages against Defendants herein; and i f not dismissed
Defendants request a bifurcated trial on this issue.
Defendants deny that they are liable to Plaintiff for any amount of money whatsoever and
challenge the allegations of punitive damages as wholly unjustified and unconstitutional, and
further says that in any event, the recovery of exemplary damages herein is limited by law,
pursuant to Section 41.001, et. seq., as contained in Chapter 41 of the Texas Civil Practices &
Remedies Code.
III. CROSS-CLAIM
In her petition, Plaintiff alleges that Defendants Ajredin "Danny" Deari ("Deari") and
Dritan Kreka ("Kreka") served her alcohol at Pastazio's Pizza and that subsequently, Deari
sexually assaulted Plaintiff and that Kreka aided and abetted Deari. Based on Plaintiffs
allegations, Defendants Cross-Claim against Defendants Ajredin "Danny" Deari and Dritan Kreka
for statutory and common law contribution, including, but not limited to, contribution under
Chapters 32 and 33 of the Tex. Civ. Prac. & Rem. Code.
In the unlikely event that Defendants are held liable, Defendants POST A D D I S O N
CIRCLE L I M I T E D PARTNERSHIP and POST PROPERTIES, INC. assert that they are entitled
to contribution from Deari and Kreka by reason of their negligence and/or intentional acts.
Furthermore, Defendants specifically assert that the negligence and/or intentional conduct of Deari
and Kreka was a sole and proximate cause or the producing cause of any damages to Plaintiff.
Finally, while Deari and Kreka are currently Defendants to the present suit, Defendants
request that the jury be allowed to assess a percentage of responsibility to Deari and Kreka
DEFENDANTS' SECOND AMENDED ANSWER PAGE 4
1938033
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MANDAMUS RECORD - TAB 3
pursuant, to TEX. Civ. PRAC. & R E M . C O D E ANN. § 33.003(4) i f they are not parties to this lawsuit
at the time of trial.
IV. PRAYER
WHEREFORE, PREMISES CONSIDERED, Defendants, POST ADDISON CIRCLE
L I M I T E D PARTNERSHIP and POST PROPERTIES, INC. pray that Plaintiff recover nothing
of and from these Defendants, and that they receive all costs of Court and such other and further
relief, both at law and in equity, to which they may show themselves to be justly entitled.
Respectfully submitted,
THOMPSON, COE, COUSINS & IRONS, L.L.P.
State Bar No. 1 4 9 0 4 8 0 0 ZioH^Z^
Sarah L. Rogers
State Bar No. 2 4 0 4 6 2 3 9
TH
7 0 0 N . Pearl, 25 Floor
Dallas, Texas 7 5 2 0 1
Telephone: ( 2 1 4 ) 8 7 1 - 8 2 2 8
Telecopy: ( 2 1 4 ) 8 7 1 - 8 2 0 9
E-Mail: rnelson@thompsoncoe.com
ATTORNEYS FOR D E F E N D A N T S POST
ADDISON C I R C L E L I M I T E D P A R T N E R S H I P
AND P O S T P R O P E R T I E S , INC.
DEFENDANTS' SECOND AMENDED ANSWER PAGE 5
1938033
08463.016
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CERTIFICATE OF SERVICE
The undersigned hereby certifies on the 25th day of November, 2013, a true and
correct copy of the foregoing document been served on all known counsel of record by
facsimile and/or certified mail.
Royce West
Eric Policastro Veretta Frazier
Trey Crawford Nigel Redmond
Gruber Hurst Johansen Hail Shank, LLP West & Associates, LLP
1445 Ross Avenue, Suite 2500 P.O. Box 3960
Dallas, Texas 75202 Dallas, Texas 75208-1260
214-855-6800 Attorneys for Plaintiff
214-855-6808 (Fax)
Attorneys for Plaintiff
Ramona Martinez
Dritan Kreka Cobb Martinez Woodward PLLC
5549 Big River Drive 1700 Pacific Avenue, Suite 3100
The Colony, Texas 75056 Dallas, Texas 75201
Defendant 214-220-5200
214-220-5252 (Fax)
Samuel H . Johnson Attorney for Defendants, Hyatt House
Johnson Broome, PC Franchising, L L C , Island Hospitality
John S. Kenefick Management, Inc., Ink Acquisition, L L C ,
Jason M . Jung Ink Acquisition I I , L L C , Ink Acquisition I I I ,
2591 Dallas Parkway, Suite 300 L L C , Ink Lessee, L L C , Ink Lessee Holding,
Frisco, Texas 75074 L L C , Grand Prix Floating Lessee, L L C ,
972-918-5274 Chatham Lodging, L P , Chatham TRS
972-584-6054 (Fax) Holding, Inc., Jeffrey H . Fisher, and
Attorneys f o r Defendant, Ajredin "Danny" Hyatt Hotels Corporation
Deari and Pastazios Pizza, Inc.
Sarah L . Rogers
DEFENDANTS' SECOND AMENDED ANSWER PAGE 6
1938033
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MANDAMUS RECORD - TAB 3
CAUSE NO. DC-13-04564-L
JANE DOE § IN THE DISTRICT COURT
§
VS. §
§
AJREDIN “DANNY” DEARI; DRITAN §
KREKA; PASTAZIOS PIZZA, INC.; §
ISLAND HOSPITALITY MANAGE- §
MENT, INC.; HYATT HOTELS §
CORPORATION; HYATT HOUSE §
FRANCHISING, LLC; GRAND PRIX § DALLAS COUNTY, TEXAS
FLOATING LESSEE, LLC; INK §
ACQUISITION, LLC; INK §
ACQUISITION II, LLC; INK §
ACQUISITION III, LLC; INK LESSEE, §
LLC; INK LESSEE HOLDING, LLC; §
CHATHAM TRS HOLDING, INC.; §
CHATHAM LODGING, LP; JEFFREY §
H. FISHER, Individually; POST §
PROPERTIES, INC.; and DOES 1-25 § 193RD JUDICIAL DISTRICT
DEFENDANT ISLAND HOSPITALITY MANAGEMENT, INC.’S
MOTION TO EXAMINE PLAINTIFF JANE DOE
Defendant Island Hospitality Management, Inc. (“Defendant”) files this Motion to
Examine Plaintiff Jane Doe, as follows:
I. Background
1. Plaintiff has sued Defendant for, among other things, mental anguish and psychological-
related damages are a result of an alleged sexual assault.
2. In support of her claims, Plaintiff retained a psychologist as a testifying expert, Dr.
William Flynn.
3. Dr. Flynn was deposed on December 19, 2014. At the deposition, Dr. Flynn testified that
he conducted a psychological examination of Plaintiff, and that his opinions were based
upon and in reliance upon the examination. Dr. Flynn has produced records from the
psychological examination.
DEFENDANT ISLAND HOSPITALITY MANAGEMENT, INC.’S
MOTION TO EXAMINE PLAINTIFF JANE DOE PAGE 1
Document #132535
MANDAMUS RECORD - TAB 4
4. On January 16, 2015, Defendant designated Dr. Lisa Clayton as a testifying expert, to
testify in response to Dr. Flynn. Dr. Clayton has requested that she, like Dr. Flynn, be
able to examine Plaintiff to develop her expert opinions.
5. On January 21, 2015, after a hearing on a Motion to Compel the Deposition of John
Harris, Plaintiff’s security expert, Defendant asked Plaintiff for dates on which Dr.
Clayton could examine Plaintiff. Plaintiff’s counsel seemed opposed to the request, but
did not give a definitive answer.
6. After that date and after additional requests, Plaintiff’s counsel has refused to make
Plaintiff available for an examination by Dr. Clayton. Plaintiff is taking the position that
discovery closed on June, 9, 2014. Plaintiff’s position is inconsistent with the fact that
(a) Plaintiff’s expert Dr. Flynn examined Plaintiff in August 2014, after the alleged close
of discovery, (b) the Court has ruled that certain expert discovery and designation periods
are ongoing, given the circumstances of the case, including the deposition of Plaintiff’s
expert John Harris (now scheduled for March), (c) Defendant’s designation of Dr.
Clayton was not due until January 18, 2015, and (d) Plaintiff’s made a request in January
2015 under Rule 196 to inspect the hotel premises, and Plaintiff conducted that discovery
on February 4, 2015.
II. Arguments and Authorities
7. The court may order the mental examination of a party or person under the party’s
control if the movant shows good cause and any of the following:
a. The party’s mental condition is in controversy (Tex. R. Civ. P. 204.1(c)(1));
b. The party has designated a psychologist as a testifying expert (Tex. R. Civ. P.
204.1(c)(2)); or
DEFENDANT ISLAND HOSPITALITY MANAGEMENT, INC.’S
MOTION TO EXAMINE PLAINTIFF JANE DOE PAGE 2
Document #132535
MANDAMUS RECORD - TAB 4
c. The party has disclosed a psychologist’s records for possible use at trial (Tex. R.
Civ. P. 204.1(c)(2)).
8. Here, there is good cause for the Court to order the psychological examination of Plaintiff
because the examination is relevant to the case. Coates v. Whittington, 758 S.W.2d 749,
753 (Tex. 1988). Specifically:
a. Plaintiff has a claim in controversy for mental anguish;
b. Plaintiff has designated a psychologist as a testifying expert;
c. Plaintiff has disclosed psychology records for possible use at trial; and
d. Plaintiff’s testifying psychologist expert was afforded an opportunity to conduct a
mental examination and, thus, Plaintiff would have an unfair advantage and
Defendant would be prejudiced if Defendant’s expert did not have the same
opportunity as Plaintiff’s expert. It is not possible for Defendant to obtain the
information that would result from the examination through less intrusive means.
Coates, 758 S.W.2d at 753.
9. Plaintiff’s position that discovery is closed is inconsistent with the following:
(a) Plaintiff’s expert Dr. Flynn examined Plaintiff in August 2014, after the alleged close
of discovery,
(b) the Court has ruled that certain expert discovery and designation periods are ongoing,
given the circumstances of the case, including the deposition of Plaintiff’s expert John
Harris (now scheduled for March),
(c) Defendant’s designation of Dr. Clayton was not due until January 18, 2015, and
(d) Plaintiff’s made a request in January 2015 under Rule 196 to inspect the hotel
premises, and Plaintiff conducted that discovery on February 4, 2015. Defendant was
DEFENDANT ISLAND HOSPITALITY MANAGEMENT, INC.’S
MOTION TO EXAMINE PLAINTIFF JANE DOE PAGE 3
Document #132535
MANDAMUS RECORD - TAB 4
cooperative in facilitating the inspection and allowing the parties to conduct discovery
without court intervention, but Plaintiff is refusing to do the same.
For those reasons, among others, limited expert discovery is ongoing. Further, Plaintiff
should be estopped from arguing all discovery closed and/or waived that argument when
Plaintiff engaged in the above inconsistent acts.
III. Conclusion
WHEREFORE, PREMISES CONSIDERED Defendant requests that the Court grant this
Motion to Examine Plaintiff, order Plaintiff to be produced for a psychological examination
conducted by Dr. Lisa Clayton, and grant such further and additional relief to which Defendant
may be entitled.
Respectfully submitted,
COBB MARTINEZ WOODWARD PLLC
1700 Pacific Avenue, Suite 3100
Dallas, TX 75201
(214) 220-5202 (direct phone)
(214) 220-5252 (direct fax)
By: _____________________________________
RAMONA MARTINEZ
Texas Bar No. 13144010
email: rmartinez@cobbmartinez.com
DAVID S. DENTON
Texas Bar No. 24036471
email: ddenton@cobbmartinez.com
MATTHEW E. LAST
Texas Bar No. 24054910
email: mlast@cobbmartinez.com
ATTORNEYS FOR DEFENDANT ISLAND
HOSPITALITY MANAGEMENT, INC.
DEFENDANT ISLAND HOSPITALITY MANAGEMENT, INC.’S
MOTION TO EXAMINE PLAINTIFF JANE DOE PAGE 4
Document #132535
MANDAMUS RECORD - TAB 4
CERTIFICATE OF CONFERENCE
Counsel for movant and counsel for respondent have personally conducted a conference
at which there was a substantive discussion of every item presented to the Court in this motion
and despite best efforts the counsel have not been able to resolve those matters presented:
Certified to the 6th day of February, 2015 by
/s/ David S. Denton
RAMONA MARTINEZ
DAVID S. DENTION
MATTHEW E. LAST
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of this document has been forwarded to the
following counsel of record by e-service, email, certified mail, return receipt requested, and/or
regular U.S. mail on this 6th day of February, 2015:
Eric Policastro Dritan Kreka
Gruber Hurst Johansen Hail Shank 5549 Big River Drive
1445 Ross Avenue, Suite 2500 The Colony, TX 75056
Dallas, TX 75202-2711 Defendant Kreka
fax: 214.855.6808
Attorney for Plaintiff
Samuel H. Johnson Randy A. Nelson
Johnson Broome, PC Thompson Coe Cousins & Irons
2591 Dallas Parkway, Suite 300 700 North Pearl Street
Frisco, TX 75034 25th Floor – Plaza of the Americas
fax: 972.584.6054 Dallas, TX 75201
Attorney for Defendants Deari & Attorney for Post Properties
Pastazios Pizza
RAMONA MARTINEZ
MATTHEW E. LAST
DEFENDANT ISLAND HOSPITALITY MANAGEMENT, INC.’S
MOTION TO EXAMINE PLAINTIFF JANE DOE PAGE 5
Document #132535
MANDAMUS RECORD - TAB 4
FILED
DALLAS COUNTY
3/24/2015 9:03:39 PM
FELICIA PITRE
DISTRICT CLERK
Cause Number: DC-13-04564
JANE DOE, § IN THE DISTRICT COURT
§
Plaintiff, §
§
v. § 193rd JUDICIAL DISTRICT COURT
§
ISLAND HOSPITALITY MANAGEMENT, §
INC.; HYATT HOTELS CORPORATION; §
HYATT HOUSE FRANCHISING, L.L.C.; §
GRAND PRIX FLOATING LESSEE, LLC; §
INK ACQUISITION, LLC; INK §
ACQUISITION II, LLC; INK §
ACQUISITION III, LLC; INK LESSEE, §
LLC; INK LESSEE HOLDING, LLC; §
CHATHAM TRS HOLDING, INC.; §
CHATHAM LODGING, L.P.; JEFFREY §
H. FISHER, Individually; POST §
PROPERTIES, INC.; POST ADDISION §
CIRCLE LIMITED PARTNERSHIP; §
PASTAZIOS PIZZA, INC.; AJREDIN §
“DANNY” DEARI; DRITAN KREKA; and §
DOES 1-25, §
§
Defendants. § DALLAS COUNTY, TEXAS
PLAINTIFF’S RESPONSE TO DEFENDANT ISLAND HOSPITALITY
MANAGEMENT, INC.’S MOTION TO EXAMINE PLAINTIFF JANE DOE
COMES NOW Plaintiff Jane Doe (“Plaintiff”) and files this Response to Defendant
Island Hospitality Management, Inc.’s Motion to Examine Plaintiff Jane Doe (“Motion”) and
would respectfully show this Court the following:
I.
SUMMARY OF RESPONSE
1. Defendant IHM seeks to have the Court issue an order requiring Plaintiff to
submit to an unspecified “psychological” examination with its untimely designated expert, Dr.
Lisa Clayton. Defendant IHM’s Motion must be denied because it does not comply with
multiple provisions set forth in Texas Rule of Civil Procedure 204.1. Defendant IHM’s Motion
________________________________________________________________________________________________________
PLAINTIFF’S RESPONSE TO DEFENDANT IHM’S MOTION TO EXAMINE PLAINTIFF Page 1 of 9
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was filed after the applicable discovery deadline and almost nine months after the deadline set
forth under Rule 204.1.
2. More importantly, Defendant IHM’s Motion fails to establish good cause as to
why Plaintiff should be subjected to a second mental examination when Defendant IHM
admittedly has the objective “raw data” it needs to provide to its untimely designated expert.
This accomplishes nothing, other than to needlessly subject Plaintiff to reliving the nightmare
that she encountered when she was raped at the age of eighteen.
3. Not only is Defendant IHM’s Motion untimely, it fails to specify the scope of the
requested “psychological” examination, how it is to be conducted, and how it would be any
different from the objective data Defendant IHM already has in its possession from the first
examination. By not even specifying the examination that Defendant IHM is requesting, the
Court cannot enter an order compliant with Rule 204.1(d). For these reasons, Defendant IHM’s
Motion must be denied.
II.
BACKGROUND
4. On April 26, 2011, Plaintiff was raped by Defendant Deari at the Hyatt House
Hotel and contracted the incurable sexually transmitted disease of herpes. The Hyatt House Hotel
is operated and managed by Defendant IHM. Plaintiff was eighteen years old at the time.
5. Plaintiff brought this lawsuit against Defendant IHM, Defendant Deari, and others
on April 24, 2013.1 In her Original Petition, Plaintiff alleged that, as a result of being raped and
given herpes, she suffered “extreme emotional distress, pain and suffering, and mental anguish as
the sexual assault is constantly replayed in her mind and the aftermath displayed on her body.” 2
1
Plaintiff’s Original Petition, Exhibit 1.
2
Id. ¶ 33.
________________________________________________________________________________________________________
PLAINTIFF’S RESPONSE TO DEFENDANT IHM’S MOTION TO EXAMINE PLAINTIFF Page 2 of 9
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Plaintiff sought in her Original Petition recovery for “mental anguish incurred in the past and
future.”3 That claim has not changed since the day it was brought nearly two years ago.
6. On January 10, 2014 the Court entered its Standing Scheduling Order. 4 The
Scheduling Order closed discovery on June 9, 2014 and required Defendant IHM to designate its
experts by April 30, 2014. Defendant IHM’s deadline to designate its experts was then extended
to May 31, 2014 by agreement among the parties.5
7. On April 30, 2014, Plaintiff timely served its Rule 194.2(f) Expert Witness
Designations to Defendant IHM.6 In Plaintiff’s Expert Designations, Plaintiff disclosed Dr.
William E. Flynn, Ph.D.—a licensed forensic and clinical psychologist.7 On May 20, 2014,
Plaintiff informed Defendant IHM that Dr. Flynn was free to be deposed at a time that was
convenient for Defendants.8 Defendant IHM chose not to take Dr. Flynn’s deposition until
December 19, 2014—seven months after Plaintiff made Dr. Flynn available.
8. On September 30, 2014, the Court entered an order resetting the trial date to
March 24, 2015 because of the automatic stay invoked by Defendant Deari’s filing of
bankruptcy.9 This order did not extend the discovery deadline or any other deadlines in the case.
On February 24, 2015, the Court issued its Notice of Trial Announcement for July 7, 2015.10
The Notice explicitly states that the deadlines in the Court’s Standing Scheduling Order remain
in place and are not changed because the trial date has been extended. Id.
3
Id. ¶ 84.
4
Court’s January 10, 2014 Standing Scheduling Order, Exhibit 2. This Scheduling Order superseded the
Scheduling Order entered by the Court on May 20, 2013.
5
Rule 11 Agreement Re: Expert Designations, Exhibit 3.
6
Plaintiff’s TEX. R. CIV. P. 194.2(f) Expert Witness Designations, Exhibit 4.
7
Id. at pp. 11-12.
8
See Correspondence from Trey Crawford (July 3, 2014), Exhibit 5.
9
Order Resetting Trial Date, Exhibit 6.
10
Notice of Trial Announcement, Exhibit 7.
________________________________________________________________________________________________________
PLAINTIFF’S RESPONSE TO DEFENDANT IHM’S MOTION TO EXAMINE PLAINTIFF Page 3 of 9
MANDAMUS RECORD - TAB 5
9. Defendant IHM did not disclose any expert in this case until January 16, 2015—
approximately 9 months after Dr. Flynn was designated and 8 months after the parties’ agreed
deadline. Even then, Defendant IHM did not file this Motion until February 6, 2015—nearly two
years after Defendant IHM was made aware of Plaintiff’s claim for mental anguish caused by the
rape.
10. Now, less than 4 months before trial, Defendant IHM seeks to put Plaintiff
through an unspecified “psychological” examination that undoubtedly will be highly-invasive
and duplicative of the “raw data” that was collected from her first examination. Defendant
IHM’s Motion states nothing of substance that will be gained by putting Plaintiff through such a
procedure. Defendant IHM’s Motion is untimely and lacks a showing of “good cause,” and thus
must be denied as a matter of law.
III.
LEGAL ARGUMENT AND AUTHORITY
11. Texas Rule of Civil Procedure 204.1 does not grant Defendant IHM an automatic
right to obtain a physical or mental examination of Plaintiff. In order to conduct a mental
examination, a movant must establish a greater showing of need than to obtain other kinds of
discovery.11
12. Rule 204.1, by its express language, places an affirmative burden on the movant
to show the requested examination’s relevance and the movant must demonstrate “good cause”
for such an examination.12 In the absence of the movant establishing both prongs, a trial court
11
See In re Ten Hagen Excavating, Inc., 435 S.W.3d 859 (Tex. App.—Dallas 2014, no pet.) (relying on
Schlagenhauf v. Holder, 379 U.S. 104 (1964) (federal rule is substantially similar to the Rule 204.1)).
12
Coates v. Whittington, 758 S.W.2d 749, 751 (Tex. 1988).
________________________________________________________________________________________________________
PLAINTIFF’S RESPONSE TO DEFENDANT IHM’S MOTION TO EXAMINE PLAINTIFF Page 4 of 9
MANDAMUS RECORD - TAB 5
cannot order an examination pursuant to Rule 204.1.13 The movant’s request must also be timely
made in order for a court to consider it.
A. Defendant IHM’s Motion is Untimely.
13. Texas Rule of Civil Procedure 204.1(a) requires a party seeking to compel a
mental examination of another party to file its application “no later than thirty days before the
end of the applicable discovery deadline.” When determining the “applicable discovery
deadline,” the Dallas Court of Appeals has held that requests for mental examinations are a form
of discovery under Rule 192.1.14
14. The Court’s Standing Scheduling Order set the applicable discovery deadline as
June 9, 2014. Pursuant to Rule 204.1(a), Defendant IHM was required to file its Motion no later
than May 10, 2014.
15. Defendant IHM has been aware of Plaintiff’s claim of mental anguish since the
day she filed her Original Petition—approximately two years ago. Plaintiff’s Original Petition
put Defendant IHM on notice that she was seeking damages for the significant mental and
emotional trauma caused by being raped and given herpes when she eighteen.
16. Moreover, Plaintiff designated Dr. William Flynn on April 30, 2014 to testify
about the “psychological, medical, behavioral, educational, physiological, vocational, and social
trauma” that a victim of a sexual assault can experience, including Plaintiff.15
17. Despite being on notice of Plaintiff’s mental anguish claim since the inception of
this lawsuit, Defendant IHM’s first formal request to examine Plaintiff was not until February 6,
2015. This is nearly two years after being made aware of the claim; almost a year after Dr. Flynn
13
Id.
14
See In re Ten Hagen Excavating, Inc., 435 S.W.3d at 866 (Tex. App. – Dallas ; see also In re Valero Energy
Corp., 2011 WL 579154, at *1 (Tex. App.—Beaumont Feb. 18, 2011, no pet.) (court denied examination request
one month after the discovery deadline); TEX. R. CIV. PRO. 192.1(g).
15
See Exhibit 4 at 11-12.
________________________________________________________________________________________________________
PLAINTIFF’S RESPONSE TO DEFENDANT IHM’S MOTION TO EXAMINE PLAINTIFF Page 5 of 9
MANDAMUS RECORD - TAB 5
was designated; and almost 9 months after Defendant IHM’s deadline to request an examination
under Rule 204.1. Defendant IHM has no excuse for this delay. For this reason alone, Defendant
IHM’s Motion should be denied.
B. Defendant IHM Has Not Satisfied its Burden to Prove Good Cause.
18. Even if the Court finds that Defendant IHM’s Motion was timely, Defendant
IHM’s Motion fails to establish good cause to obtain an order from the Court for a
“psychological” examination of Plaintiff. Thus, Defendant IHM’s Motion must be denied.16
19. The Texas Supreme Court acknowledges that mental medical examinations are
subject to a more rigorous standard due to their sensitive nature.17 Under Rule 204.1, it is the
movant’s burden to affirmatively show “good cause” to obtain a medical examination.18 “Good
cause” requires an affirmative showing of three things: (1) the examination is relevant to issues
that are genuinely in controversy in the case; (2) a reasonable nexus exists between the condition
in controversy and the examination sought; and (3) it is not possible to obtain the desired
information through means that are less intrusive than a compelled examination.19
20. These requirements may not be met with “conclusory allegations” in the movant’s
pleading.20 Moreover, “good cause” is not presumed merely because Plaintiff has retained a
psychologist to testify as an expert regarding Plaintiff’s mental condition.21 Texas courts have
repeatedly refused to permit medical examinations when good cause is not shown.22 Here,
Defendant IHM has failed to show good cause with any evidence to meet its burden.
16
Coates v. Whittington, 758 S.W.2d 749, 751-52 (Tex. 1988) (a movant’s showing of good cause is mandatory).
17
Id. at 752 (“Plaintiffs should not be subjected to public revelations of the most personal aspects of their private
lives just because they seek compensation for mental anguish associated with an injury.”).
18
TEX. R. CIV. P. 204.1(a).
19
Id. at 506-07.
20
In re Click, 442 S.W.3d 487, 491 (Tex. App. – Corpus Christi 2014, no pet.).
21
In re Transwestern Pub. Co., L.L.C., 96 S.W.3d 501, 506 (Tex. App. – Fort Worth 2002, orig. proceeding).
22
See In re Dallas Group of Am., Inc., 434 S.W.3d 647, 648 (Tex. App.—Houston [1st Dist.] 2014, no pet.); In re
Bell Hot Shot Co., 2014 WL 260116, at *2 (Tex. App.—Houston [14th Dist.] Jan. 9, 2014, no pet.) (The trial court
________________________________________________________________________________________________________
PLAINTIFF’S RESPONSE TO DEFENDANT IHM’S MOTION TO EXAMINE PLAINTIFF Page 6 of 9
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1. Defendant IHM already has the information that it seeks.
21. Defendant IHM cannot establish good cause because it has not shown that it
cannot obtain the desired information through a less intrusive means. Plaintiff has already
undergone a thorough mental health examination focusing on the sexual assault and the impact
on her overall well-being before and after the assault.
22. Plaintiff’s psychologist, Dr. William Flynn, administered four separate objective
tests to Plaintiff: 1) the Clinically-Administered PTSD Scale for DSM-IV, the gold standard in
PTSD assessment; 2) a Personality Assessment Inventory, an objective inventory of adult
personality that assesses psychopathological syndromes and provides information relevant for
clinical diagnosis, treatment planning, and screening for psychopathology; 3) the Structured
Clinical Interview for DSM-IV Axis I Disorders, a diagnostic exam used to determine DSM-IV
Axis I disorders (mental disorders); and 4) the Beck Depression Inventory I-II, one of the most
commonly used instruments for measuring severity of depression.
23. The results of these tests generate “raw data” which is then reviewed and
analyzed by the medical professional. All of the “raw data” from these standardized tests have
been provided to Defendant IHM to conduct its own analysis.23 In re Transwestern explicitly
states that “‘good cause’ is not assumed merely because a psychologist has been appointed to
testify as an expert regarding the subject's mental condition.”24
24. There is no added benefit of having Plaintiff fill out the examination booklets a
second time when the raw data is already available by less intrusive means. Defendant IHM has
the burden of showing the Court that “it is not possible to obtain the desired information through
did not abuse its discretion by determining that the relators have not shown good cause for an independent
psychological evaluation); In re Click, 442 S.W.3d 487, 492 (Tex. App.—Corpus Christi 2014, no pet.) (no good
cause).
23
See Correspondence between David Denton and Trey Crawford, Exhibit 8.
24
96 S.W.3d at 506.
________________________________________________________________________________________________________
PLAINTIFF’S RESPONSE TO DEFENDANT IHM’S MOTION TO EXAMINE PLAINTIFF Page 7 of 9
MANDAMUS RECORD - TAB 5
means that are less intrusive than a compelled exam.”25 Defendant IHM’s conclusory assertion
that there is good cause is legally irrelevant. They must provide evidence making a showing of
“good cause.” No such showing has been made. Thus, the Court must deny the Motion.26
2. Defendant IHM fails to establish the required nexus between the mental
examination sought and the condition in controversy.
25. Defendant IHM’s Motion lacks any specificity as to the mental examination it is
asking the Court to Order. Defendant IHM’s Motion fails to specify the scope of the requested
examination of Plaintiff, how it is to be conducted, and how it would be any different from the
objective raw data Defendant IHM already has from the first examination.
26. By not specifying the examination that Defendant IHM is requesting, the Court
cannot enter an order that would be compliant with the specificity requirements set forth in Rule
204.1(d). Thus, Defendant IHM has failed to make a showing that there is “a reasonable nexus
between the condition in controversy and the examination sought.”27 Without such a showing,
“good cause” cannot be established as a matter of law.
27. Allowing Defendant IHM to conduct a second examination of Plaintiff would be
duplicative and invasive. Given the traumatic event that took place and the understandable
anxiety associated with discussing or “reliving” such an event, a mental examination would be
overly intrusive to Plaintiff and provide no substantive benefit. In light of Defendant IHM’s
failure to assert and prove good cause sufficient for a Rule 204.1 motion to compel, Defendant
IHM’s Motion must be denied.
25
See In re Click, 442 S.W.3d at 491.
26
In re Caballero, 36 S.W.3d 143, 145 (Tex. App.—Corpus Christi 2000, no pet.) (trial court abused its discretion
in ordering medical examination after good cause was not established).
27
See In re Click, 442 S.W.3d at 491.
________________________________________________________________________________________________________
PLAINTIFF’S RESPONSE TO DEFENDANT IHM’S MOTION TO EXAMINE PLAINTIFF Page 8 of 9
MANDAMUS RECORD - TAB 5
IV.
PRAYER
WHEREFORE, PREMISES CONSIDERED Plaintiff respectfully prays that this
Court deny Defendant IHM’s Motion to Examine Plaintiff Jane Doe in its entirety, and
respectfully prays for all relief, in law and in equity, to which Plaintiff may prove herself to be
justly entitled.
Respectfully submitted,
___________________________________
ROYCE WEST G. MICHAEL GRUBER
State Bar No. 21206800 State Bar No. 08555400
royce.w@westllp.com mgruber@ghjhlaw.com
VERETTA FRAZIER TREY CRAWFORD
State Bar No. 00793264 State Bar No. 24059623
veretta.f@westllp.com tcrawford@ghjhlaw.com
NIGEL REDMOND BRIAN E. MASON
State Bar No. 24058852 State Bar No. 24079906
nigel.r@westllp.com bmason@ghjhlaw.com
WEST & ASSOCIATES, L.L.P. GRUBER HURST JOHANSEN HAIL SHANK LLP
P.O. Box 3960 1445 Ross Avenue, Suite 2500
Dallas, Texas 75208-1260 Dallas, Texas 75202
Ofc.: (214) 941-1881 214.855.6800 (main)
Fax: (214) 941-1399 214.855.6808 (facsimile)
ATTORNEYS FOR PLAINTIFF
CERTIFICATE OF SERVICE
The undersigned hereby certifies that a true and correct copy of the foregoing was
served—in accordance with TEX. R. CIV. P. 21, 21a—on March 24, 2015 to all counsel of record.
_________________________________
Trey Crawford
________________________________________________________________________________________________________
PLAINTIFF’S RESPONSE TO DEFENDANT IHM’S MOTION TO EXAMINE PLAINTIFF Page 9 of 9
MANDAMUS RECORD - TAB 5
Cause Number:
JANE DOE, § IN THE DISTRICT C01)4T,
471, 4°
Plaintiff,
POT
v. JUDICIAL DISTRICT COURT
AJREDIN "DANNY" DEARI; DRITAN
KREKA; PASTAZIOS PIZZA, INC.;
ISLAND HOSPITALITY MANAGEMENT,
INC.; HYATT HOTELS CORPORATION;
and DOES 1-25,
Defendants. DALLAS COUNTY, TEXAS
PLAINTIFF'S ORIGINAL PETITION
Plaintiff JANE DOE1 ("Plaintiff') file Plaintiff's Original Petition ("Petition") against
Defendants AJREDIN "DANNY" DEARI; DRITAN KREKA; PASTAZIOS PIZZA, INC.;
ISLAND HOSPITALITY MANAGEMENT, INC.; HYATT HOTELS CORPORATION; and
DOES 1-25 (collectively referred to herein as "Defendants"), and for causes of action
respectfully shows this Court as follows:
I.
DISCOVERY CONTROL PLAN
1. Pursuant to TEx. R. Civ. P. 190.1, 190.3, Plaintiff intends to conduct discovery
under a Level 2 Discovery Control Plan.
II.
PARTIES
2. Plaintiff is a natural person who resides in Collin County, Texas.
Due to the extremely personal and sensitive nature of this lawsuit, Plaintiff is proceeding under the pseudonym of
"Jane Doe"; however, Defendants have full knowledge of Plaintiff's identity due to Defendants' involvement in the
underlying acts and omissions that form the basis of this Petition. To the extent that Defendants or Defendants'
counsel are genuinely unaware of Plaintiff's identity (which would likely be impossible due to criminal proceedings
against at least one Defendant in Dallas County, Texas, Case No. F1111106), Plaintiff's counsel is happy to state
Plaintiff's identity to this Court and Defendants' counsel in papers that are (1) filed under seal with this Court,
and/or (2) not filed with this Court and, thus, not subject to public inspection.
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3. Defendant AJREDIN "DANNY" DEARI (hereinafter, "Deari") is a natural
person who resides and may be served with service of process—at 15750 Spectrum #2211,
Addison, Texas 75001.
4. Defendant DRITAN KREKA (hereinafter, "Kreka") is a natural person who
resides—and may be served with service of process at 5549 Big River Drive, The Colony,
Texas 75056.
5. Defendant PASTAZIOS PIZZA, INC. (hereinafter, "Pastazios") is a Texas
corporation that maintains its principal place of business in Dallas County, Texas. Pastazios may
be served with service of process by serving its registered agent, Ajredin Deari, located at 1416
Tree Farm Drive, Plano, Texas 75093.
6. Defendant ISLAND HOSPITALITY MANAGEMENT, INC. (hereinafter,
"Island Hospitality") is a Florida corporation with its principal place of business in Palm Beach,
Florida. Island Hospitality may be served with service of process by serving its registered agent,
C T Corporation System, located at 350 N. Paul Street, Suite 2900, Dallas, Texas 75201.
7. Defendant HYATT HOTELS CORPORATION (hereinafter, "Hyatt") is a
Delaware corporation with its principal place of business in Chicago, Illinois. Hyatt may be
served with service of process by serving its registered agent, United States Corporation Co.,
located at 211 East 7th Street, Suite 620, Austin, Texas 78701.
8. Upon information and belief, Plaintiff alleges that the true identities and
residences of Defendants JOHN DOE 1-25, respectively, are currently unknown to Plaintiff at
this time. Plaintiff shall proceed with due diligence to discover the identities of Defendants
JOHN DOE 1-25, respectively and, after said Defendants' true identities have been discovered,
will amend this Petition accordingly.
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9. Upon information and belief, Plaintiff alleges that, at all material times, all
Defendants were the agents, servants, employees, partners, authorized agents and/or joint
venturers of every other Defendant and the acts of each Defendant were within the course and
scope of the agency, employment, partnership, and/or joint venture such that each Defendant is
jointly and severally liable for the damages alleged by Plaintiff herein.
III.
JURISDICTION
10. This Court has subject matter jurisdiction over this lawsuit because the amount in
controversy exceeds the minimum jurisdictional requirements.
11. In accordance with TEx. R. Civ. P. 47, Plaintiff seeks monetary relief in excess of
$1,000,000.00 due to Defendants' tortious conduct.
12. This Court has personal jurisdiction over Defendant Deari and Defendant Kreka
because said Defendants (1) are individuals and residents of the State of Texas, (2) transact
business within the State of Texas, (3) maintain continuous and systematic contacts with the
State of Texas, (4) purposefully avails themselves to the laws of the State of Texas, and (5) a
substantial part of the events or omissions giving rise to Plaintiff's claims occurred in Texas and
involved Defendant Dean and Defendant Kreka.
13. This Court has personal jurisdiction over Defendant Pastazios because said
Defendant (1) is a Texas corporation that maintains its principal place of business in Texas, (2)
transacts business within the State of Texas, (3) maintains continuous and systematic contacts
with the State of Texas, (4) purposefully avails itself to the laws of the State of Texas, and (5) a
substantial part of the events or omissions giving rise to Plaintiff's claims occurred in Texas and
involved Defendant Pastazios.
14. This Court has personal jurisdiction over Defendant Island Hospitality because (1)
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it transacts business within the State of Texas, (2) it has continuous and systematic contacts with
the State of Texas, (3) it maintains multiple offices in Texas, owns property in Texas, and
maintains bank accounts (used for the purpose of transacting business within the State of Texas
and elsewhere) within the State of Texas, (4) it purposefully avails itself to the laws of the State
of Texas, and (5) a substantial part of the events or omissions giving rise to Plaintiff's claims
occurred in Texas and involved Defendant Island Hospitality.
15. This Court has personal jurisdiction over Defendant Hyatt because (1) it transacts
business within the State of Texas, (2) it has continuous and systematic contacts with the State of
Texas, (3) it maintains multiple offices and bank accounts (used for the purpose of transacting
business within the State of Texas and elsewhere) within the State of Texas, (4) it purposefully
avails itself to the laws of the State of Texas, and (5) a substantial part of the events or omissions
giving rise to Plaintiff's claims occurred in Texas and involved Defendant Hyatt.
16. Removal of this case to a federal court is inappropriate and statutorily
unauthorized because (1) complete diversity of parties is lacking, (2) at least one Defendant is a
forum-state defendant by virtue of its Texas incorporation and/or principal place of business
being in Texas, and (3) Plaintiff has not alleged a federal question, federal cause of action, or
alleged facts that would give rise to a federal question or federal cause of action; therefore, any
attempt to remove this case to a federal court is frivolous and gives rise to sanctionable conduct.
IV.
VENUE
17. Pursuant to TEX. CIV. PRAC. & REM. CODE § 15.002(a), venue is proper in Dallas
County, Texas because (1) all or a substantial part of the events or omissions giving rise to
Plaintiff's claims occurred in Dallas County, Texas, and (2) some or all of the Defendants
resided in Dallas County, Texas at the time Plaintiff's causes of action accrued.
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18. Pursuant to TEx. Civ. PRAC. & REM. CODE § 15.005, because venue is proper in
Dallas County, Texas against at least one Defendant, venue is proper in Dallas County, Texas as
to all Defendants.
V.
FACTUAL BACKGROUND
19. In early 2011, Plaintiff was 18 years old and a recent graduate from high school.
Plaintiff excelled in school academically, graduating as the valedictorian of her class.
20. Like many young adults, Plaintiff was in search of an entry-level job at a local
business in order to earn disposable income and garner working experience. During her search,
Plaintiff was introduced to Defendant Dead and Defendant Kreka. Plaintiff was told that Deari
and Kreka were the owners of two local bar/restaurants, and would be willing to meet with her to
discuss potential employment opportunities.
21. On or about April 26, 2011, Plaintiff met Deari and Kreka at a restaurant in
Dallas, Texas. Deari asked Plaintiff how old she was and Plaintiff informed both men that she
was 18 years old. At the time, Defendant Deari was approximately 49 years old and Defendant
Kreka was approximately 33 years old. The two Defendants subsequently tried to order Plaintiff
an alcoholic beverage; however, the restaurant's server refused to bring the beverage because
Plaintiff was underage.
22. Undeterred, the two Defendants decided that it would be easiest to order Plaintiff
beverages at "Pastazios's Pizza" in Addison, Texas. On information and belief, Plaintiff alleges
that "Pastazios's Pizza" is the assumed name of Defendant Pastazios and, additionally, the alter
ego of Defendant Deari who holds himself out to the public and Texas Secretary of State as the
registered agent, director, and president of Pastazios.
23. As planned, Defendant Deari and Defendant Kreka convinced Plaintiff to drive to
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Pastazios. Prior to their arrival, Defendants purchased hard liquor from a store with the intention
of serving the alcohol to Plaintiff.
24. Upon arrival at Pastazios, Defendants Kreka, Deari, and Pastazios (through its
employees, director, and president) began serving, selling, retrieving, and otherwise giving
Plaintiff multiple "shots" of hard liquor and servings of beer. Defendants repeatedly and
aggressively pressured Plaintiff into consuming—and Plaintiff, indeed, consumed—these
beverages despite Defendants' knowledge that Plaintiff was not of the legal age to drink. Just as
Defendants Deari, Kreka, and Pastazios planned, Plaintiff became intoxicated and she was, in
fact, obviously intoxicated.
25. After Plaintiff had consumed multiple shots of hard liquor and servings of beer
that Defendants served, sold, retrieved, and otherwise gave to Plaintiff, Deari and Kreka decided
that their next stop should be a local adult entertainment dance club. Deari retrieved his vehicle
from Pastazios's parking lot and told Kreka and Plaintiff to get into the vehicle. Kreka moved
into the driver's seat and Plaintiff, who was highly intoxicated, sat in the back of the vehicle.
Plaintiff then lost consciousness.
26. Plaintiff's next memory is vomiting in a gas station parking lot before losing
consciousness again. Shortly thereafter, Plaintiff awoke in a hotel room located 4900 Edwin
Lewis Drive, Addison, Texas 75001—a premise that is owned, operated, and otherwise
possessed by Island Hospitality and Hyatt (hereinafter, "the Premises Defendants")—wherein
she had been involuntarily disrobed and was actively being raped by Defendant Deari.
27. Plaintiff repeatedly insisted that Defendant Deari stop the attack, but he did not. It
was only after Plaintiff made multiple demands for Defendant Deari to stop did the sexual
assault eventually end. Fearful of another attack, Plaintiff locked herself in the bathroom.
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28. While still in the hotel room, Defendant Deari called Defendant Kreka on the
telephone and told him that Plaintiff was "really freaking out, dude", and asked for Kreka to
retrieve him from the Premises Defendants' property. With the knowledge that a sexual assault
had just occurred (one in which Defendant Kreka conspired to commit, facilitated, aided, and
abetted), Kreka retrieved Deari from the crime scene (unimpeded by the Premises Defendants)
thereby assisting Deari's evasion of law enforcement.
29. Plaintiff alleges that the Premises Defendants knew, or reasonably should have
known, of the reasonably foreseeable, unreasonable risks of harm from criminal activity at its
premises to Plaintiff taking into account the history, frequency, proximity, regularity, publicity,
and similarity of criminal conduct on or near the Premises Defendants' property. The Premises
Defendants allowed Defendant Deari and Defendant Kreka to reserve a room at its hotel, enter it
with an unconscious 18 year-old woman, rape her, and come and go from its property in an
unimpeded fashion such that Defendants could evade a police investigation without resistance.
30. After the attack on Plaintiff ceased and Deari and Kreka left the Premises
Defendants' property, a friend of Plaintiff's arrived at the hotel to help. After learning what
happened, the friend immediately notified the Addison Police Department. While investigating
the crime scene, Defendant Deari came back to the hotel (presumably to retrieve the underwear
he left, which was taken into evidence by the police department), and Deari was arrested,
charged with the crime of sexual assault, indicted, and has a criminal trial pending. At this point
in time, Defendant Kreka has not been charged for the crimes he aided, abetted, facilitated, and
conspired to commit.
31. Plaintiff was immediately transmitted to the hospital and underwent a series of
examinations, tests, and administered massive quantities of treatments for the injuries she
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incurred during the rape.
32. Within a matter of days following the sexual assault, Plaintiff went back to the
hospital after she experienced severe pain in her pubic region. Upon information and belief, the
doctors informed Plaintiff that she had contracted herpes, an incurable sexually-transmitted
disease, during the rape. The doctors conducted a blood test on Plaintiff wherein the specific
strand of herpes was identified. It has recently been discovered that the results of a mandatory
blood/sexually-transmitted disease test ordered by the Court in "The State of Texas v. Danny
Demi" has confirmed that Plaintiff's attacker, (who did not utilize latex contraception during the
attack), Defendant Deari, is infected with the same derivation of the herpes virus.
33. As a proximate result of the criminal, despicable, extreme, outrageous, and
tortious acts of Defendants alleged herein, Plaintiff has foreseeably suffered through, and will
continue to suffer through, extreme emotional distress, pain and suffering, and mental anguish as
the sexual assault is constantly replayed in her mind and the aftermath displayed on her body.
Plaintiff is forced to shoulder the burden of Defendants' criminal and tortious acts for the rest of
her life which, according to the federal government's "National Vital Statistics Reports", is
expected to be another 61.6 years.2 Plaintiff has incurred, and will continue to incur, substantial
damages proximately caused by Defendants.
VI.
CAUSES OF ACTION
COUNT 1: ASSAULT — THREAT OF BODILY INJURY
34. Plaintiff incorporates by reference, as if fully set forth herein, paragraphs 19
through 33 of Plaintiff's Petition.
35. On or about April 26, 2011, Defendants intentionally or knowingly threatened
2See U.S. Department of Health and Human Service, NATIONAL VITAL STATISTICS REPORTS Vol. 61, No.3,
September 24, 2012 at 20.
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Plaintiff with imminent bodily injury. Defendants' threat of imminent bodily injury caused
Plaintiff to be apprehensive, which was a foreseeable result of Defendants' actions.
36. Each and every Defendant is liable for the threat of bodily injury committed
against Plaintiff because each and every Defendant participated in the tortious act themselves or,
alternatively, assisted the tortious act against Plaintiff in furtherance of the civil conspiracy to do
so or, alternatively, aided and abetted each other to allow the ultimate threat of bodily injury
against Plaintiff to take place.
37. Defendants' threat of imminent bodily injury to Plaintiff was a cause of the
damages alleged herein.
COUNT 2: ASSAULT (BATTERY) —BODILY INJURY AND OFFENSIVE CONTACT
38. Plaintiff incorporates by reference, as if fully set forth herein, paragraphs 19
through 37 of Plaintiff's Petition.
39. Plaintiff incorporates by reference, as if fully set forth herein, the statutory
language of TEx. PENAL CODE § 22.011 describing the felony of "Sexual Assault". Plaintiff
alleges that Plaintiff was the victim of the crime, Sexual Assault, which Defendants committed
against Plaintiff (as described in TEX. PENAL CODE § 22.011(a),(b),(0) on or about April 26,
2011, and that the sexual assault has caused Plaintiff's damages alleged herein.
40. Defendants intentionally, knowingly, and/or recklessly made physical contact
with Plaintiff's person causing bodily injury—that is, physical pain, illness, or impairments of
Plaintiff's physical condition—and Plaintiff did not, and could not, consent to the harmful
physical contact.
41. Alternatively, Defendants intentionally or knowingly caused to be made physical
contact with Plaintiff when Defendants knew, or reasonably should have believed, that Plaintiff
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would regard the contact as offensive or provocative. Indeed, said physical contact was
offensive, provocative, and committed by Defendants despite never having consent from
Plaintiff.
42. As a causal result of Defendants' battery of Plaintiff's person, Plaintiff suffered
immediate, consequential, and subsequent injuries—including pain, illness, and physical
impairment that were foreseeable to Defendants. The assault committed by Defendants on
Plaintiff's person was a cause of the damages alleged by Plaintiff herein.
43. Each and every Defendant is liable for the crimes, assault, battery, and sexual
assault of which Plaintiff is a victim because each and every Defendant participated in the
tortious and felonious acts themselves or, alternatively, assisted the crimes, assault, battery, and
sexual assault against Plaintiff in furtherance of the civil conspiracy to do so or, alternatively,
aided and abetted the crimes, assault, battery, and sexual assault by providing intoxicating
substances to Plaintiff, a mode of transportation for the crimes, assault, battery, and sexual
assault to occur, and/or a location—which was foreseeably unsafe and unreasonably
dangerous for the crimes, assault, battery, and sexual assault to take place.
44. In addition to committing, conspiring to commit, or aiding and abetting assault,
battery, and/or sexual assault against Plaintiff, the investigation is still ongoing as to whether or
not Defendants individually—or collectively in furtherance of a conspiracy and/or whilst aiding
and abetting each other should be charged with, criminally prosecuted for, and civilly held
liable for the felony of "Aggravated Sexual Assault", as defined by TEX. PENAL CODE § 22.021
and fully incorporated by reference herein.
COUNT 3: SEXUAL ASSAULT—TEX. PENAL CODE § 22.01
45. Plaintiff incorporates by reference, as if fully set forth herein, paragraphs 19
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through 44 of Plaintiff's Petition.
COUNT 4: FALSE IMPRISONMENT
46. Plaintiff incorporates by reference, as if fully set forth herein, paragraphs 19
through 45 of Plaintiffs Petition.
47. Without legal authority or justification, Defendants willfully detained or
participated in the detainment of Plaintiff without Plaintiffs consent. Defendants accomplished
the unlawful detainment of Plaintiff with violence, threats that were calculated to inspire—and,
in fact, inspired—a reasonable fear of injury to Plaintiff, intoxicating substances, and/or other
means that were intended to cause—and, in fact, caused—Plaintiff to be unable to exercise her
will in going anywhere she was lawfully allowed to go. Said false imprisonment took place at the
hotel owned and operated by the Premises Defendants.
48. The false imprisonment committed by Defendants against Plaintiff was a
proximate cause of the damages alleged by Plaintiff herein.
COUNT 5: NEGLIGENCE
49. Plaintiff incorporates by reference, as if fully set forth herein, paragraphs 19 through 48
of Plaintiff's Original Petition.
50. Defendants owed Plaintiff legal duties that Defendants breached thereby
proximately causing Plaintiffs damages.
51. For example, Defendants Pastazios and Deari—as the individual who holds
himself out as the registered agent, director, and president of Pastazios—had a duty to control its
employees, a duty to supervise its employee's activities, a duty to prevent an employee from
causing an unreasonable risk of harm to Plaintiff, a duty to use ordinary care in hiring and
retaining its employees, a duty to not place Plaintiff in harm's way of foreseeable criminal
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activity, and a duty to treat Plaintiff in a manner that would not subject her to physical or mental
injury. Said Defendants breached those duties it owed Plaintiff by, amongst other things,
negligently providing intoxicating substances to Plaintiff and placing here in harm's way.
Defendant Kreka, by way of example, owed Plaintiff a legal duty to protect Plaintiff from harm
when the danger was caused, in part, by Kreka and the harm was apparent to Kreka such that he
was in a position to protect Plaintiff from the harm, a duty to not place Plaintiff in harm's way of
foreseeable criminal activity, a duty to not operate a vehicle when legally intoxicated thereby
placing Plaintiff in danger and, ultimately, causing her to arrive at the location where she was
sexually assaulted, and a duty to treat Plaintiff in a manner that would not subject her to physical
or mental injury. Defendant Kreka breached each and every one of these duties as detailed in this
Petition. The Premises Defendants, for example, owed Plaintiff a duty to use ordinary care in
maintaining its premises in a safe condition and to inspect the premises to ensure the safety of its
occupants, a duty to protect Plaintiff against unreasonable and foreseeable risks of harm from the
criminal acts of third parties due to the Premises Defendants' status (as landowner) and ability to
control the security and safety of the premises, a duty not to injure Plaintiff in a willful, wanton,
or grossly negligent manner or allow another to do so on its premises when it knew, or
reasonably should have known, such conduct would take place, a duty to make safe conditions
on its property in order to protect Plaintiff, and a duty to treat Plaintiff in a manner that would
not subject her to physical or mental injury. As the owner and operator of the location where
Plaintiff was sexually assaulted, falsely imprisoned, and subjected to extreme and outrageous
intentional infliction of emotional distress, there can be no dispute that the Premises Defendants
breached each and every one of the duties it owed Plaintiff.
52. Defendants breached the duties it owed to Plaintiff (as set forth in this Petition)
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thereby proximately causing Plaintiff's injuries and the damages alleged herein.
COUNT 6: PREMISES LIABILITY
53. Plaintiff incorporates by reference, as if fully set forth herein, paragraphs 19
through 52 of Plaintiff's Petition.
54. Plaintiff's cause of action for Premises Liability is alleged against the Premises
Defendants, only. Plaintiff reserves the right to supplement and amend this cause of action.
55. The Premises Defendants facilitated the assault and tortious conduct on Plaintiff
through the use or misuse of the property—located at 4900 Edwin Lewis Drive, Addison, Texas
75001—owned, operated, controlled by, franchised by, licensed by, and/or otherwise possessed
by the Premises Defendants.
56. The Premises Defendants owed Plaintiff a duty to exercise ordinary care in
protecting Plaintiff from unreasonable and reasonably foreseeable risks of harm (including
criminal activity at its premises considering the history, frequency, proximity, regularity,
publicity, and similarity of criminal conduct on or near the Premises Defendants' property)
especially in light of the Premises Defendants' status as landowner and ability to control the
security and safety of the premise. The Premises Defendants had a duty to inspect and make safe
any dangerous conditions or situations on its property or give Plaintiff an adequate warning of
the dangerous conditions or situations.
57. The Premises Defendants breached the legal duties it owed Plaintiff thereby
proximately causing Plaintiff's damages alleged herein.
COUNT 7: DRAM SHOP LIABILITY
58. Plaintiff's cause of action for Dram Shop Liability is alleged against Defendant
Deari—in his capacity as registered agent, director, and president of Pastazios—and Pastazios,
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only. As used within Section VI(Count 8) of Plaintiff's Original Petition, said Defendants shall
be referred to as the "Dram Shop Defendants." Plaintiff reserves the right to supplement and
amend this cause of action.
59. Plaintiff incorporates by reference, as if fully set forth herein, paragraphs 19
through 58 of Plaintiff's Petition.
60. On or about April 26, 2011, the Dram Shop Defendants held Texas Alcoholic
Beverage Commission licenses for the sale or service of alcoholic beverages and did, in fact, sell
or serve multiple alcoholic beverages to Plaintiff who, at the time, was an 18 year-old "adult
recipient" of said beverages.
61. To the extent that the Dram Shop Defendants did not hold Texas Alcoholic
Beverage Commission licenses for the sale or service of alcoholic beverages on or about April
26, 2011, Plaintiff alternatively alleges that the Dram Shop Defendants did not have said licenses
yet still sold Plaintiff, an 18 year-old "adult receipt", alcoholic beverages.
62. After the Dram Shop Defendants provided the alcoholic beverages to Plaintiff, it
was apparent, or readily became apparent, to the Dram Shop Defendants that Plaintiff was
obviously intoxicated.
63. Plaintiff's intoxication—as a result of Defendants' actions was one of the
proximate causes of the injuries incurred and the damages alleged by Plaintiff herein.
COUNT 8: INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS [ALTERNATIVE REMEDY]
64. Plaintiff incorporates by reference, as if fully set forth herein, paragraphs 19
through 63 of Plaintiff's Petition.
65. As an alternative remedy to Plaintiff's claims detailed in this Petition at Section
(VI)(Count 1-Count? ), Plaintiff alleges that no alternative cause of action would provide
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Plaintiff with a remedy for the severe emotional distress incurred by Plaintiff which was
proximately caused by Defendants' tortious conduct.
66. Plaintiff an individual—was and is a victim of Defendants' intentional or
reckless actions that were calculated to cause severe emotional distress to Plaintiff.
67. Defendants' intentional or reckless actions towards Plaintiff were extreme and
outrageous and, ultimately, proximately caused Plaintiff to suffer severe emotional distress.
COUNT 9: PARTICIPATORY LIABILITY—AIDING AND ABETTING AND CONCERT OF ACTION
68. Plaintiff incorporates by reference, as if fully set forth herein, paragraphs 19
through 67 of Plaintiff's Petition.
69. Among the Defendants was a primary actor/actors who committed an underlying
tort, or torts, against Plaintiff. Defendants had knowledge that the primary actor's conduct
constituted a tort and Defendants gave the primary actor assistance, substantial assistance, and/or
encouragement to commit the tort against Plaintiff. Defendants' assistance, substantial
assistance, and/or encouragement was a substantial factor in causing the tort to be completed and
a substantial factor in the damages incurred by Plaintiff as alleged herein.
70. Alternatively, Defendants' own conduct—separate and apart from the primary
actor was a breach of duty to Plaintiff and a substantial factor in causing Plaintiff's injuries.
71. Due to Defendants' joint assistance, encouragement, aiding and abetting, and/or
concert of action, Plaintiff alleges that Defendants should be held jointly and severally
responsible for the whole of damages incurred by Plaintiff.
COUNT 10: PARTICIPATORY LIABILITY—CONSPIRACY
72. Plaintiff incorporates by reference, as if fully set forth herein, paragraphs 19
through 71 of Plaintiff's Petition.
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73. As fully described in this Petition, Defendants are, and were, individuals or
individual entities that acted together as a combination of two or more individuals or entities.
74. Throughout Defendants' interactions with Plaintiff on or about April 26, 2011, the
object of Defendants' combination was to accomplish an unlawful purpose and/or a lawful
purpose by unlawful means.
75. Defendants had a meeting of the minds on the object or course of action of its
conspiracy, and at least one Defendant committed an unlawful, overt act in furtherance of
Defendants' object or course of action.
76. Plaintiff suffered the damages alleged herein as a proximate result of Defendants'
wrongful act or acts.
COUNT 11: EXEMPLARY DAMAGES
77. Plaintiff incorporates by reference, as if fully set forth herein, paragraphs 19
through 76 of Plaintiff's Original Petition.
78. Defendants' tortious conduct was malicious, fraudulent, and/or grossly negligent.
79. Defendants' malicious, fraudulent, and/or grossly negligent was carried out by
Defendants personally, through Defendants' authorized agents, managers, officers, directors,
vice-principals, and/or principals of the Defendants who were acting within the course and scope
of their agency, employment, partnership, and/or joint venture. Alternatively, Defendants'
malicious, fraudulent, and/or grossly negligent conduct was subsequently approved by or ratified
by Defendants.
80. Defendants intentionally breached the legal duties it owed Plaintiff such that it
could take undue advantage of Plaintiff and/or otherwise maliciously treat Plaintiff. The acts or
omissions of Defendants, when viewed objectively from the Defendants' standpoint, involved an
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extreme degree of risk when considering the probability and magnitude of the potential harm to
Plaintiff and others.
81. Additionally, Defendants had actual, subjective awareness of the risk to Plaintiff
and others but proceeded anyway with a conscience indifference to the rights, safety, or welfare
of Plaintiff and others.
82. Defendants' conduct was performed and/or designed with a specific intent to
cause substantial injury or harm to Plaintiff. As alleged fully herein, Defendants' conduct is an
example of why punitive damages exist, and Plaintiff alleges that Defendants' conduct rises to
the level warranting the imposition of exemplary damages against Defendants at trial of this
matter.
VII.
DAMAGES
83. Plaintiff incorporates by reference, as if fully set forth herein, paragraphs 19
through 82 of Plaintiff's Petition.
84. Plaintiff has incurred significant damages due to Defendants' criminal, tortious,
and outrageous conduct. Plaintiff seeks all losses sustained as a natural, probable, foreseeable,
and/or proximate result of Defendants' wrongful conduct, including:
a. General damages;
b. Actual damages;
c. Physical pain and suffering incurred in the past and future;
d. Mental anguish incurred in the past and future;
e. Disfigurement incurred in the past and future;
f. Physical impairment incurred in the past and future;
g. Medical expenses incurred in the past and future;
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h. Loss of earning capacity incurred in the past and future;
i. Lost wages incurred in the past and future;
j. All reasonable and necessary attorneys' fees that Plaintiff is forced to incur
pursuant to Texas common law and equity;
k. Exemplary damages;
1. Costs of court;
m. Pre judgment interest;
n. Post-judgment interest; and
o. All other relief, in law and in equity, to which Plaintiff may be justly entitled.
VIII.
DEMAND FOR JURY
85. Plaintiff demands a jury trial and tenders the appropriate fee.
IX.
REQUEST FOR DISCLOSURE
86. Under TEx. R. CIV. P. 194, Plaintiff hereby makes the demand that Defendants
disclose, within the timeframe provided by the TEXAS RULES OF CIVIL PROCEDURE, the
information and material described in TEx. R. Civ. P. 194.2(a)-(1).
X.
PRAYER
87. WHEREFORE, PREMISES CONSIDERED, Plaintiff prays that Defendants be
cited to appear and answer herein. Plaintiff further prays that, upon trial by jury, she have
judgment against Defendants for the damages enumerated herein, as well as all other relief, in
law and in equity, to which Plaintiff may show herself to be justly entitled.
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Respectfully submitted,
G. MICHAE GRUBER
State Bar No. 08555400
mgruber@ghjhlaw.com
ERIC POLICASTRO
State Bar No. 24068809
epolicastro@ghjhlaw.com
TREY H. CRAWFORD
State Bar No. 24059623
tcrawford@ghjhlaw.corn
GRUBER HURST JOHANSEN HAIL SHANK LLP
1445 Ross Avenue, Suite 2500
Dallas, Texas 75202
214.855.6800 (main)
214.855.6808 (facsimile)
ATTORNEYS FOR PLAINTIFF
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000173
ALL
CAUSE NO. DC-13-04564-L
JANE DOE IN THE DISTRICT COURT
VS.
AJRF,DIN "DANNY" DEARI; DRITAN
KREKA; PASTAZIOS PIZZA, INC.;
ISLAND HOSPITALITY MANAGE-
MENT, INC.; HYATT HOTELS
CORPORATION; HYATT HOUSE
FRANCHISING, LLC; GRAND PRIX DALLAS COUNTY, TEXAS
FLOATING LESSEE, LLC; INK
ACQUISITION, LLC; INK
ACQUISITION II, LLC; INK
ACQUISITION III, LLC; INK LESSEE,
LLC; INK LESSEE HOLDING, LLC;
CHATHAM TRS HOLDING, INC.;
CHATHAM LODGING, LP; JEFFREY
H. FISHER, Individually; POST
PROPERTIES, INC.; and DOES 1-25 193RD JUDICIAL DISTRICT
193"
JUDICIAL DISTRICT COURT'S STANDING SCHEDULING ORDER
In accordance with Rules 166, 190 and 192, of the Texas Rules of Civil Procedure (TRCP),
the Court issues the following Order to control the scheduling of this cause.
TRIAL SETTING, AMENDMENT OF DATES & DISMISSAL FOR WANT OF PROSECUTION
This case will be ready and is set for jury trial on July 29, 2014 at 9:30 a.m: the "Trial Setting."
Any reset or continuance of the Trial Setting will not alter any deadline in this Order or
established by the Texas Rules of Civil Procedure unless otherwise provided by Order, or by the
agreement of the parties, in accordance with TRCP 11. When no announcement is made for
Plaintiff(s) or the Plaintiff(s) fail to appear, the Court may dismiss this case for want of
prosecution, pursuant to: (i) Rule 165a TRCP; (ii) the Dallas County Local Civil Rules; and/or
(iii) the Court's inherent power to dismiss cases not diligently prosecuted, with a hearing on
dismissal for want of prosecution to be held at the time of trial.
DEADLINES & TIMELINES
The following pre-trial matters will be completed by the following dates (in the event that one of
these dates falls on a weekend or holiday, the date will be the first preceding date, which is not a
weekend or a holiday):
1. Deadline for filing Amended Pleadings Asserting New Claims or Defenses. — 120
days before the Trial Setting, which is March 31, 2014. (Amended pleadings responsive to
Order Page 1 of 9
Scheduling Order Page 2 of 10
MANDAMUS RECORD - TAB 5
timely filed pleadings under this scheduling order may be filed after the deadline for amended
pleadings, if filed within two (2) weeks after the pleading to which they respond.)
2. Deadline to Designate Responsible Third Parties. — 120 days before the Trial Setting,
which is March 31, 2014. Defendants shall file any motions for leave to designate responsible
third parties, under Civ. Prac. & Rem. Code §33.004 by this date.
3. Deadline to Join Additional Parties. — 120 days before the Trial Setting, which is
March 31, 2014. No additional parties may be joined after this date, except on motion for leave
showing good cause. This paragraph does not otherwise alter the requirements of Rule 38. This
paragraph does not limit a claimant's ability to join a person designated as a responsible third
parties, as provided for under Civ. Prac. & Rem. Code §33.004(e). The party joining an
additional party shall serve a copy of this Order on the new party concurrently with the pleading
joining that party.
4. Deadline for any Party seeking affirmative relief to designate experts as per Tex. R.
Civ. P. 1942(1) — 120 days before the Trial Setting, which is March 31, 2014.
5. Deadline for any Party opposing affirmative relief to designate experts as per Tex.
R. Civ. P. 1942(1) — 90 days before the Trial Setting, which is April 30, 2014.
6. Deadline for Designation of Rebuttal Experts and Provide Reports as per Tex. R.
Civ. P. 1942(1) — 85 days before the Trial Setting, which is May 5, 2014. The Parties shall
designate rebuttal experts from whom they intend to elicit expert opinion testimony regarding
matters not reasonably anticipated prior to that Party's original expert designation deadline.
7. Deadline to File Dispositive Motions: — 60 days before the Trial Setting, which is May
30, 2014. All dispositive motions shall be filed no later than this date.
8. Deadline to File No-Evidence Motions. — 60 days before the Trial Setting, which is
May 30, 2014. All no-evidence motions, as provided for by Rule 166a(i), shall be filed by this
date. No such Motion shall be heard before the close of the discovery period.
9. Discovery Closes. — 50 days before the Trial Setting, which is June 9, 2014. All
depositions shall be completed by this date and all written discovery request shall be served so
that responses are due no later than this date. Rule 193.5 governs amended or supplemental
responses; however, it is presumed that an amended or supplemental response made after this
date was not made reasonably promptly.
10. Deadline to File Motion to Compel. — 46 days before the Trial Setting, which is June
13, 2014. Any motion to compel responses to discovery (other than relating to factual matters
arising after the end of fact discovery) must be filed no later than this date, except for motions
for sanctions as provided for by Rule 193.6.
11. Deadline to File Daubert/Robinson Motions Challenging Opinion Testimony. — 21
days after said expert is deposed, or if the expert is not deposed, 14 days after the end of the
Order Page 2 of 9
Scheduling Order Page 3 of 10
MANDAMUS RECORD - TAB 5
discovery period, which is June 23, 2014. (These deadlines may be extended upon good cause
shown).
The parties may alter these deadlines by agreement, pursuant to TRCP 11. Except by agreement
of the parties, leave of Court, or where expressly authorized by the TRCP, no party may obtain
discovery of information subject to TRCP 194 Disclosures by other forms of discovery (e.g. a
request for production for testifying expert reports, witness statements, etc.). Repeated attempts
of this type may be treated as an abuse of the discovery process and subject to Court sanctions.
MEDIATION
The parties shall mediate this case no later than fifty (50) days before the Trial Setting, which is
June 9, 2014, in accordance with this Court's Standing Mediation Order or any amendment
thereto by the Court or the parties. If a Mediation Order is not issued in the case by the Court,
the Parties are ORDERED to obtain a copy of the Order from the Court Coordinator.
PRE-TRIAL MATTERS, EXHIBITS, JURY CHARGE, ETC
Fourteen (14) days before the Trial Setting, which is July 15, 2014, the parties shall exchange:
(i) designations of deposition testimony (by page and line) to be offered in direct examination;
(ii) a witness list; (iii) a jury questionnaire, if any; (iv) any Motions in Limine (please note the
Court has a Standing Motion in Limine); (v) a proposed jury charge; and (vi) a list of exhibits,
including any demonstrative aids and affidavits. The Parties shall exchange copies of any
exhibits not previously produced in discovery; over-designation of witness and/or exhibits is
strongly discouraged and may be sanctioned. Except for records to be offered by way of
business record affidavits, each exhibit must be identified separately and not by category or
group designation. Please do not file these documents with the Court, just exchange them among
the Parties.
Eleven (11) days before the Trial Setting, which is July 18, 2014, the parties shall exchange, in
writing, objections to the opposing party's proposed exhibits, including objections under rule
193.7 TRCP, as well as objections to any deposition testimony. The attorneys in charge for
each party shall confer on stipulations regarding the materials to be submitted to the Court under
this paragraph and each shall attempt to maximize agreement with each opposing attorney on
such matters. Please do not file these documents with the Court, just exchange them among the
Parties.
For Discovery Level II or III Cases Only: By 4:00 n.m., on the Thursday before the Trial
Setting, which is July 24, 2014 each Party shall file with the Court a copy of its most recent
Disclosures.
On the Trial Date, the parties shall bring to Court the documents required to have been
exchanged in the preceding three paragraphs, along with a proposed Jury Charge for jury trials (a
hard copy and on disk or CD in a Word Perfect or Word format) and any Motions in Limine
(please note that the Court has its own Standing Motion in Limine). Counsel should be prepared
Order Page 3 of 9
Scheduling Order Page 4 of 10
MANDAMUS RECORD - TAB 5
to discuss with the Court an estimate of the length of trial and witnesses to be called (number,
identity and anticipated length of testimony).
Unless otherwise notified by the Court Coordinator, all Counsel must appear on the morning of
the Trial Date, with witnesses on one-hour standby. Counsel should be advised that, if their case
is not reached on the morning of the trial date, they are subject to being held-over on standby for
the rest of the week. The Court will not entertain continuances on the day of trial on the ground
that a Party did not expect that it would not be reached, absent exigent circumstances.
PROCEDURES GOVERNING DAUBERT/ROBINSON HEARINGS
A challenge to an expert's opinion must be in writing and specify every ground for such
challenge. A failure to specify a ground for a challenge is a waiver of that ground. The
challenge, along with all supporting affidavits, deposition excerpts and any other evidence in
support thereof, must be filed and served pursuant to the deadlines set forth in this Order. Direct
testimony and all other evidence in support of the challenged expert must be reduced to
affidavits and/or deposition excerpts of each and all witnesses to be used and such material filed
with the Court's clerk no later than 4:00 p.m., four (4) days before the hearing. Such sponsoring
evidence must be exchanged so as to be received in opposing counsel's office by 4:00 p.m., four
(4) days before the hearing.
At the hearing, affiants, including challenged expert witnesses, may be present in the courtroom,
but may not be presented for direct testimony in addition to their affidavits or deposition
excerpts. The objecting party may cross examine affiants including challenged expert witnesses,
if present in the Courtroom, only after which will the sponsoring party be permitted re-direct
examination.
Please be advised that a challenge to the opinion of an expert, which is contained as evidence in
the response to a Summary Judgment Motion, will likely result in the continuance of the
Summary Judgment hearing so as not to work prejudice to the Summary Judgment Respondent,
who, in effect, would otherwise be required to defend an expert at a Daubert/ Robinson hearing
upon limited notice.
MISCELLANEOUS
Telephone Hearings (For parties out of town). — Participation in hearings by telephone for
parties out of town is encouraged. Arrangements should be made with the Court Administrator.
Default and Minor Prove-Ups. — Unless instructed otherwise by the Court, default judgments
should be presented by submission through affidavits; minor prove-ups shall be set for a hearing
through the Court Administrator (which are to be held on Mondays).
Continuances. — Despite Dallas County Local Civil Rule 3.01(b), The Court does not require
that continuances be signed by the Parties in addition to the Counsel (unless pro se, of course).
However, be advised that an Agreed Motion for Continuance will not always be granted,
especially those filed within two weeks before trial.
Order Page 4 of 9
Scheduling Order Page 5 of 10
MANDAMUS RECORD - TAB 5
Judgments Pursuant to Tex. R. Civ. P. 299a, do not include findings of fact in any proposed
Judgment for the Court. The Court will not sign any such Judgments. After a trial, the
prevailing party shall tender a judgment to the Court within 30 days or the case is subject to
being dismissed without prejudice. Concerning the procedure of tendering Judgments to the
Court, the Parties are ORDERED to comply with Dallas County Local Civil Rule 2.08, as if this
Rule applied to judgments in addition to orders, and as if the Court requested such judgment to
be presented after trial.
All parties in receipt of this Scheduling Order are ORDERED to serve a copy of this Order on
any Parties making an appearance after the date of this Order.
4.•
SIGNED this __JO 'day of 34v-417)Abl4L •
The Ho ble Carte sberg
rd
193 Judicial District Court
Order Page 5 of 9
Scheduling Order Page 6 of 10
MANDAMUS RECORD - TAB 5
MISCELLANEOUS
Telephone Hearings (For [lathes out of towns. — Participation in hearings by telephone for
parties out of town is encouraged. Arrangements should be made with the Court Administrator.
Default and Minor Prove-Uns, — Unless instructed otherwise by the Court, default judgments
should be presented by submission through affidavits; minor prove-ups shall be set for a hearing
through the Court Administrator (which are to be held on Mondays).
Continuances. --- Despite Dallas County Local Civil Rule 3.01(b), The Court does not require
that continuances be signed by the Parties in addition to the Counsel (unless pro se, of course).
However, be advised that an Agreed Motion for Continuance will not always be granted.
especially those filed within two weeks before trial.
Judgments — Pursuant to Tex. R. Civ. P. 299a, do not include findings of fact in any proposed
Judgment for the Court. The Court will not sign any such Judgments. After a trial, the
prevailing party shall tender a judgment to the Court within 30 days or the case is subject to
being dismissed without prejudice. Concerning the procedure of tendering Judgments to the
Court, the Parties are ORDERED to comply with Dallas County Local Civil Rule 2.08, as if this
Rule applied to judgments in addition to orders, and as if the Court requested such judgment to
be presented after trial.
All parties in receipt of this Scheduling Order are ORDERED to serve a copy of this Order on
any Parties making an appearance after the date of this Order.
SIGNED this day of
The Honorable Cart Ginsberg
193 Judicial District Court
AGREED:
/ • 4 1----
Eric Policastro
• Joh4on-Ditiodine, PC
Umber Hurst Johansen Hail Shank 2591 1.)4!lai Parkway. Suite 300
,
1445 Ross Avenue. Suite 2500 Friscof X 75034
Dallas, TX 75202-2711 attorney for Defendants Deafi and
Royce West Pastazios Pizza
West & Associates
P.O. Box 3960
Dallas, TX 75208-1260 Ramona Martinez
Attorneys for Plaintiff Matthew E. Last
Cobb Martinez Woodward
1700 Pacific Avenue. Suite 3100
Randy A. Nelson Dallas, Texas 75201
Thompson, Coe, Cousins & Irons. L.L.P. Attorneys for Island Hospitality Management,
700 N. Pearl. 25th Floor Hyatt House Franchising, LLC,
Dallas. Texas 75201 Hyatt Hotels Corporation
Attorney for Post Properties, Inc. and Grand Prix Floating Lessee, LLC,
Post Addison Circle LP Ink Acquisition, LW.
Ink .Acquisition IL LLC,
Ink Acquisition III, LLC,
Dritan Rieke Ink Lessee, LLC,
5549 Bie River Drive Ink Lessee Holding LLC,
The Colony, TX 75056 Chatham TRS Holding Inc.,
Pro Se Defendant Dfitan Kiehl Chatham Lodging, LP, and
Jeffrey H. Fisher
Order Page 6 of 9
Scheduling Order Page 7 of 10
MANDAMUS RECORD - TAB 5
AGREED:
Samuel H. Johnson
Eric Policastro Johnson Broome, PC
Gruber Hurst Johansen Hail Shank 2591 Dallas Parkway, Suite 300
1445 Ross Avenue, Suite 2500 Frisco, TX 75034
Dallas, TX 75202-2711 Attorney for Defendants Deari and
Royce West Pastazios Pizza
West & Associates
P.O. Box 3960
Dallas, TX 75208-1260 Ramona Martinez
Attorneys for Plaintiff Matthew E. Last
Cobb Martinez Woodward
1700 Pacific Avenue, Suite 3100
Randy A. Nelson Dallas, Texas 75201
Thompson, Coe, Cousins & Irons, L.L.P. Attorneys for Island Hospitality Management,
700 N. Pearl, 25th Floor Hyatt House Franchising, LLC,
Dallas, Texas 75201 Hyatt Hotels Corporation
Attorney for Post Properties, Inc. and Grand Prix Floating Lessee, LLC,
Post Addison Circle LP Ink Acquisition, LLC,
Ink Acquisition II, LLC,
Ink Acquisition III, LLC,
Dritan Kreka Ink Lessee, LLC,
5549 Big River Drive Ink Lessee Holding, LLC,
The Colony, TX 75056 Chatham TRS Holding, Inc.,
Pro Se Defendant Dritan Kreka Chatham Lodging, LP, and
Jeffrey H. Fisher
Order Page 7 of 9
Scheduling Order Page 8 of 10
MANDAMUS RECORD - TAB 5
AGREED:
Samuel H. Johnson
Eric Policastro Johnson Broome, PC
Gruber Hurst Johansen Hail Shank 2591 Dallas Parkway, Suite 300
1445 Ross Avenue, Suite 2500 Frisco, TX 75034
Dallas, TX 75202-2711 Attorney for Defendants Deari and
Royce West Pastazios Pizza
West & Associates
P.O. Box 3960
Dallas, TX 75208-1260 Ramona Martinez
Attorneys for Matthew E. Last
Cobb Martinez Woodward
1700 Pacific Avenue, Suite 3100
Randy A, Nelson Dallas, Texas 75201
Thompson, Coe, Cousins & Irons, L.L.P. Attorneys for Island Hospitality Management,
700 N. Pearl, 25th Floor Hyatt House Franchising, LLC,
Dallas, Texas 75201 Hyatt Hotels Corporation
Attorney for Post Properties, Inc. and Grand Prix Floating Lessee, LLC,
Post Addison Circle LP Ink Acquisition, LLC,
Ink Acquisition II, LLC,
Ink Acquisition III, LLC,
Dritan Kreka Ink Lessee, LLC,
5549 Big River Drive Ink Lessee Holding, LLC,
The Colony, TX 75056 Chatham TRS Holding, Inc.,
Pro Se Defendant Dritan Kreka Chatham Lodging, LP, and
Jef frey H Fisher
Order Page 8 of 9
Scheduling Order Page 9 of 10
MANDAMUS RECORD - TAB 5
CERTIFICATE OF CONFERENCE
Counsel for the Mr. Dead has caused to be delivered to Defendant Kreka, pro se, and Mr.
Kreka has received a copy of the proposed agreed scheduling order. Counsel for Mr. Deari has
made at least one attempt to contact Mr. Kreka followed the receipt by Mr. Kreka of the
proposed agreed scheduling order. Mr. Kreka has failed to respond.
Certified to the 9th day of January 2014.
Matthew E. Last
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of this document has been forwarded to the
following counsel of record either by telefax, electronic mail, certified mail, return receipt
requested, and/or regular U.S. mail on this 9th day of January, 2014:
Eric Policastro Royce West
Gruber Hurst Johansen Hail Shank West & Associates
1445 Ross Avenue, Suite 2500 P.O. Box 3960
Dallas, TX 75202-2711 Dallas, TX 75208-1260
fax: 214.855.6808 fax: 214.941.1399
Attorney for Plaint tff Attorney for Plaintiff
Samuel H. Johnson Randy A. Nelson
Johnson Broome, PC Thompson Coe Cousins & Irons
2591 Dallas Parkway, Suite 300 700 North Pearl Street
Frisco, TX 75034 25th Floor — Plaza of the Americas
fax: 972.584.6054 Dallas, TX 75201
Attorney for Defendants Deari & Attorney for Post Properties
Pastazios Pizza
Dritan Kreka
5549 Big River Drive
The Colony, TX 75056
Defendant Kreka
F.
RAMONA MARTINEZ
MATTHEW E. LAST
Order Page 9 of 9
Scheduling Order Page 10 of 10
MANDAMUS RECORD - TAB 5
FILED
DALLAS COUNTY
3/21/2014 3:19:49 PM
GARY FITZSIMMONS
DISTRICT CLERK
Eric Policastro
epolicastro@ghjhlaw.com
(214) 855-6848
March 21, 2014
VIA E-MAIL VIA E-MAIL
Ramona Martinez Randy Nelson
Matthew Last Thompson Coe Cousins & Irons, LLP
Cobb Martinez Woodward PLLC rnelson@thompsoncoe.com
rmartinez@cobbmartinez.com
mlast@cobbmartinez.com
VIA E-MAIL
Samuel H. Johnson
Johnson Broome, P.C.
sjohnson@johnsonbroome.com
Re: Jane Doe v. Ajredin “Danny” Deari, et al. Rule 11 Agreement re: Expert
Designations
Dear Counsel,
This letter agreement, made pursuant to TEX. R. CIV. P. 11, memorializes the agreement
reached between Plaintiff and Defendants in the above-captioned case. The agreement is:
1. The parties to this agreement have agreed to alter the time period listed in
paragraph 4 of the 193rd Judicial District Court’s Standing Scheduling Order from “March 31,
2014…” to “April 30, 2014….” and
2. The parties to this agreement have agreed to alter the time period listed in
paragraph 5 of the 193rd Judicial District Court’s Standing Scheduling Order from “April 30,
2014…” to “May 31, 2014….”; and
3. The parties to this agreement have agreed to alter the time period listed in
paragraph 6 of the 193rd Judicial District Court’s Standing Scheduling Order from “May 5,
2014…” to “June 6, 2014….”
As always, this agreement may be modified upon the mutual assent, in writing, of all
parties to this agreement.
Please sign this letter in the space indicated below and return a copy of the same to me.
Plaintiff will file the executed version with the Court after receiving duly executed counterparts
of the letter from you. Please do not hesitate to contact me directly if this letter misstates our
agreement in anyway, or if you have any questions.
MANDAMUS RECORD - TAB 5
March 21, 2014
Page 2 of 2
Respectfully,
GRUBER HURST JOHANSEN HAIL SHANK LLP AND
WEST & ASSOCIATES, L.L.P.
Eric Policastro
ATTORNEYS FOR PLAINTIFF
AGREED AND WITH AUTHORITY:
_____________________________________________
ATTORNEYS FOR DEFENDANT AJREDIN “DANNY” DEARI
AND PASTAZIOS PIZZA, INC.
AGREED AND WITH AUTHORITY:
_____________________________________________
ATTORNEYS FOR DEFENDANTS POST PROPERTIES, INC.
AND POST ADDISON CIRCLE LIMITED PARTNERSHIP
AGREED AND WITH AUTHORITY:
_____________________________________________
ATTORNEYS FOR DEFENDANTS HYATT HOTELS CORP.;
HYATT HOUSE FRANCHISING, LLC; ISLAND HOSPITALITY
MANAGEMENT, INC.; INK ACQUISITION, LLC, GRAND
PRIX FLOATING LESSEE, LLC; INK ACQUISITION II, LLC;
INK ACQUISITION III, LLC; INK LESSEE, LLC; INK LESSEE
HOLDING, LLC; CHATHAM TRS HOLDING, INC.; CHATHAM
LODGING, L.P.; AND JEFFREY H. FISHER
MANDAMUS RECORD - TAB 5
March 21, 2014
Page 2 of 2
Respectfully,
GRUBER HURST JOHANSEN HAIL SHANK LLP AND
WEST & ASSOCIATES, L.L.P.
Eric Policastro
ATTORNEYS FOR PLAINTIFF
AGREED AND WITH AUTHORITY:
_____________________________________________
ATTORNEYS FOR DEFENDANT AJREDIN “DANNY” DEARI
AND PASTAZIOS PIZZA, INC.
AGREED AND WITH AUTHORITY:
_____________________________________________
ATTORNEYS FOR DEFENDANTS POST PROPERTIES, INC.
AND POST ADDISON CIRCLE LIMITED PARTNERSHIP
AGREED AND WITH AUTHORITY:
_____________________________________________
ATTORNEYS FOR DEFENDANTS HYATT HOTELS CORP.;
HYATT HOUSE FRANCHISING, LLC; ISLAND HOSPITALITY
MANAGEMENT, INC.; INK ACQUISITION, LLC, GRAND
PRIX FLOATING LESSEE, LLC; INK ACQUISITION II, LLC;
INK ACQUISITION III, LLC; INK LESSEE, LLC; INK LESSEE
HOLDING, LLC; CHATHAM TRS HOLDING, INC.; CHATHAM
LODGING, L.P.; AND JEFFREY H. FISHER
MANDAMUS RECORD - TAB 5
March 21, 2014
Page 2 of 2
Respectfully,
GRUBER HURST JOHANSEN HAIL SHANK LLP AND
WEST & ASSOCIATES, L.L.P.
Eric Policastro
ATTORNEYS FOR PLAINTIFF
AGREED AND WITH AUTHORITY:
ATTORNEYS FOR DEFENDANT AJREDIN "DANNY" DEARI
AND PASTAZIOS PIZZA, INC.
ATTORNEYS FOR DEFENDANTS POST PROPERTIES, INC.
AND POST ADDISON CIRCLE LIMITED PARTNERSHIP
AGREED AND WITH AUTHORITY:
ATTORNEYS FOR DEFENDANTS HYATT HOTELS CORP.;
HYATT HOUSE FRANCHISING, LLC; ISLAND HOSPITALITY
MANAGEMENT, INC.; INK ACQUISITION, LLC, GRAND
PRIX FLOATING LESSEE, LLC; INK ACQUISITION II, LLC;
INK ACQUISITION III, LLC; INK LESSEE, LLC; INK LESSEE
HOLDING, LLC; CHATHAM TRS HOLDING, INC.; CHATHAM
LODGING, L.P.; AND JEFFREY H. FISHER
MANDAMUS RECORD - TAB 5
March 21, 2014
Page 2 of 2
Respectfully,
GRUBER HURST JOHANSEN HAIL SHANK LLP AND
WEST & ASSOCIATES, L.L.P.
Eric Policastro
ATTORNEYS FOR PLAINTIFF
AGREED AND WITH AUTHORITY:
ATTORNEYS FOR DEFENDANT AIREDIN "DANNY" DEARI
AND PASTAZIOS PIZZA, INC.
AGREED AND WITH AUTHORITY:
ATTORNEYS FOR DEFENDANTS POST PROPERTIES, INC.
AND POST ADDISON CIRCLE LIMITED PARTNERSHIP
AGREED AND WITH AUTHORITY:
ATTORNEYS FOR DEFENDANTS HYATT HOTELS CORP.;
HYATT HOUSE FRANCHISING, LLC; ISLAND HOSPITALITY
MANAGEMENT, INC.; INK ACQUISITION, LLC, GRAND
PRIX FLOATING LESSEE, LLC; INK ACQUISITION II, LLC;
INK ACQUISITION III, LLC; INK LESSEE, LLC; INK LESSEE
HOLDING, LLC; CHATHAM TRS HOLDING, INC.; CHATIIAM
LODGING, L.P.; AND JEFFREY H. FISHER
MANDAMUS RECORD - TAB 5
Cause Number: DC-13-04564
JANE DOE, § IN THE DISTRICT COURT
§
Plaintiff, §
§
v. § 193rd JUDICIAL DISTRICT COURT
§
ISLAND HOSPITALITY MANAGEMENT, §
INC.; HYATT HOTELS CORPORATION; §
HYATT HOUSE FRANCHISING, L.L.C.; §
GRAND PRIX FLOATING LESSEE, LLC; §
INK ACQUISITION, LLC; INK §
ACQUISITION II, LLC; INK §
ACQUISITION III, LLC; INK LESSEE, §
LLC; INK LESSEE HOLDING, LLC; §
CHATHAM TRS HOLDING, INC.; §
CHATHAM LODGING, L.P.; JEFFREY §
H. FISHER, Individually; POST §
PROPERTIES, INC.; POST ADDISION §
CIRCLE LIMITED PARTNERSHIP; §
PASTAZIOS PIZZA, INC.; AJREDIN §
"DANNY" DEARI; DRITAN KREKA; and §
DOES 1-25, §
§
Defendants. § DALLAS COUNTY, TEXAS
PLAINTIFF'S TEX. R. CIV. P. 194.2(F) EXPERT WITNESS DESIGNATIONS
Pursuant to the 193 rd Judicial District Court's Standing Scheduling Order and TEX. R.
elV. P. 194.2(f), Plaintiff Jane Doe ("Plaintiff') hereby makes and serves Plaintiff's TEX R. CIV.
P. 194.2 (f) Expert Witness Designations. Plaintiff reserves the right to designate rebuttal expert
witnesses, designate expert witnesses identified by Defendants, and supplement and/or amend
these expert witness designations as discovery continues and additional facts and evidence have
been learned and produced.
PLAINTIFF'S TEX. R. elv. P. 194.2(F) EXPERT WITNESS DESIGNATIONS PAGE 1 oF20
MANDAMUS RECORD - TAB 5
Respectfully
Respectfull y submitted,
•
Al
ROYCE WEST G. MICHAEL GRUBER
State Bar No. 21206800 State Bar No. 08555400
royce. w@westllp.c om
royce.w@westllp.com mgruber@ghjhlaw.coin
mgruber@ghjhlaw.com
VERETTA FRAZIER ERIC POLICAST
POLICASTRO RO
State Bar No. 00793264 State Bar No.
No. 24068809
veretta.f@westllp.com
veretta.f@westllp.com epolicastro@ghjhlaw.com
epolicastro@ghjhlaw.com
NIGEL REDMOND TREY CRAWFOR
CRAWFORD D
State Bar No.
No. 24058852 No. 24059623
State Bar No. 24059623
nigel.r@west llp.com
nigels@westllp.com tcrawford@ghjhlaw.com
tcrawford@g hjhlaw.com
WEST & ASSOCIATES
& ASSOCIATES, , L.L.P.
L.L.P. GRUBER HURST
GRUBER HURST JOHANSEN
JOHANSENHAIL
HAILSHANK
SHANKLLP
LLP
P.O.
P.O. Box 3960 1445 Ross Avenue,
1445 Ross Avenue, Suite 2500
Dallas,
Dallas, Texas 75208-1260 Dallas, Texas 75202
Dallas,
Ofc.: (214)
Ofc.: (214) 941-1881
941-1881 214.855.6800 (main)
214.855.6800 (main)
Fax: (214)941-1399
Fax: (214) 941-1399 214.855.6808 (facsimile)
214.855.6808 (facsimile)
ATTORNEYS
ATTORNEY FOR PLAINTIFF
S FOR PLAINTIFF
CERTIFICA TE OF
CERTIFICATE OF SERVICE
SERVICE
The
The undersigned
undersigned hereby
hereby certifies
certifies that
that aa true
true and
and correct
correct copy
copy of
of Plaintiff's
Plaintiff's TEX. R.CIV,
TEX R. CV. P.
P.
194.2
194.20(f) Expert
Expert Witness
Witness Designations
Designations were
were served-in
served—in accordance
accordance with
with TEX.
TEX. R.
R. elY.
Cry. P.
P. 21,
21,
21a-on
21a—onApril
April 30,
30,2014
2014 via
via certified
certified mail,
mail, return
return receipt
receiptrequested
requestedto
to all
all counsel
counsel of
of record.
record.
Eric Policastro
PLAINTIFF'S
PLAINTIFF'STEX.
TEX.R.R.elv.
CI V.P.P.194.2(F)
194.2(F)EXPERT
EXPERTWITNESS
WITNESSDESIGNATIO
DESIGNATIONS
NS PAGE 2 OF 20
PAGE20F20
MANDAMUS RECORD - TAB 5
PLAINTIFF'S TEX.
PLAINTIFF'S TEX. R.
R. CIV.
CIV. P.
P. 194.2(F)
194.2(F) EXPERT
EXPERT WITNESS
WITNESS DESIGNATIONS
DESIGNATION S
(f)
(f) For any
any testifying expert:
expert:
(1) the expert's
(1) expert's name,
name, address,
address, and
and telephone
telephone number;
number;
the expert
(2) the subject matter on which the expert will testify;
general substance
(3) the general substance of the
the expert's
expert's mental
mental impressions
impressions and
and opinions
opinions and
and aa
brief summary
summary of the basis for them,
them, or if
if the
the expert
expert is
is not
not retained
retained by,
by, employed
employed
by, or otherwise subject to the control of the responding party, documents reflecting
such information;
(4) if the expert is retained
(4) retained by, employed
employed by, or otherwise subject to
otherwise subject to the control
control of
the responding party:
party:
(A)
(A) all documents,
documents, tangible things,
things, reports,
reports, models,
models, or data compilations
compilations that
have
have been
been provided
provided to,
to, reviewed
reviewedby,
by, or
or prepared
preparedby
by or
or for
for the
the expert in
expert in
anticipation
anticipation of the
the expert's
expert's testimony;
testimony; and
and
(B)
(B) the
the expert's
expert's current resume
resume and
and bibliography;
bibliography;
RESPONSE:
RESPONSE:
The
The following
following individuals
individuals have
have been
been retained
retained by
by Plaintiff
Plaintiff in
in this
this case
case to
to help
help the
the jury
jury and
and
Court
Court better
better understand
understand various medical, scientific,
various medical, scientific, professional, technical, andlor
professional, technical, and/or scientific
scientific
aspects
aspectsof
ofthe
the claims
claims brought
broughtby
by Plaintiff
Plaintiff due
due to
to the
the damages
damages she
she incurred
incurred that
that were
were caused
caused by
by
Defendants'
Defendants' tortious
tortious conduct:
conduct:
I.I. RETAINED
RETAINEDTESTIFYING
TESTIFYINGEXPERTS
EXPERTS
Dr.
Dr. Claire
ClaireE.
E.Brenner,
Brenner,M.D.
M.D.
Dr.
Dr.Claire
ClaireE.
E.Brenner,
Brenner,M.D.-(972)
M.D.—(972)494-1155,
494-1155,2241
2241Peggy
PeggyLane
LaneSuite
SuiteE,
E, Garland,
Garland,Texas
Texas
75042-is
75042—isaamedical
medicaldoctor
doctorwho
who holds
holds board
board certifications
certificationsin
in infectious
infectious disease
disease and
and internal
internal
PLAINTIFF'S
PLAINTIFF'S TEX.
TEX.R.
R.elv.
CIV.P.P. 194.2(F)
194.2(F)EXPERT
EXPERTWITNESS
WITNESSDESIGNATIONS
DESIGNATIONS PAGE33OF
PAGE 20
OF20
MANDAMUS RECORD - TAB 5
medicine. Please
medicine. Pleasesee
see the
the attached
attached Exhibit
Exhibit A
A for
for aa copy
copy of
ofDr.
Dr.Brenner's
Brenner'sresume
resume and/or
and/or
bibliography. In
bibliography. In this
this case, Dr. Brenner
Brenner may testify concerning
concerning the clinical
clinical course
course of
of infectious
infectious
diseases, including
diseases, including the
the herpes
herpes virus,
virus, generally,
generally, as
as well
well as
as in Plaintiff's
Plaintiffs case.
case. Dr.
Dr. Brenner
Brenner may
may
testify
testify about
about the general nature,
nature, incubation,
incubation, presentment,
presentment, recurrence,
recurrence, and
and effects
effects of the herpes
herpes
virus
virus related
related to individual who is infected
to an individual infected with the
the disease,
disease, including
including Plaintiff.
Plaintiff. Dr.
Dr. Brenner
Brenner
may testify concerning the clinical
may clinical course,
course, progression,
progression, treatment, effects (physical,
(physical, emotional,
emotional,
financial,
financial, etc.),
etc.), and
and prognosis
prognosis of an individual
individual diagnosed
diagnosed with
with the
the herpes
herpes virus,
virus, and the fact that
there
there is for the
is no cure for the herpes
herpes virus,
virus, generally,
generally, as well
well as
as the
the same
same categories
categories of
of testimony
testimony
regarding
regarding Plaintiff.
Plaintiff. Additionally,
Additionally, Dr.
Dr. Brenner may
may testify
testify generally
generally as
as to
to the human anatomy, the
effect
effect of
of the
the herpes
herpes virus
virus on
on an infected
infected individual's
individual's body,
body, mind,
mind, and
and quality
quality of life,
life, as
as well
well as
the
the irreversible
irreversible effects
effects of the herpes virus,
virus, complications
complications caused
caused by
by the herpes virus throughout
an
an individual's life including during pregnancy/labor
pregnancy/labor and
and the
the effects
effects itit may
may have
have on a newborn
child.
child. Dr.
Dr. Brenner
Brenner may
may testify
testify about
about the
the effect
effect the
the herpes
herpes virus
virus has
has on
on an infected individual's
infected individual's
immune
immune system
system throughout
throughout said
said individual's
individual's life.
life. Dr.
Dr. Brenner
Brenner may
may testify
testify about the progression
progression
of
of the
the disease
disease in Plaintiff, and the mental,
mental, physical,
physical, psychological,
psychological, financial,
financial, and physiological
physiological
obstacles
obstacles Plaintiff
Plaintiff will
will encounter
encounterthroughout
throughouther
herlife
lifeas
asaa result
result of
of the
the rape
rape and
and the
the disease.
disease. She
She
may
may also
also testify
testify concerning
concerning the scientific literature
the scientific literature on the biological,
biological, physical,
physical, physiological,
physiological,
social,
social, and
and mental
mental effects
effects of infectious
infectious diseases—including
diseases-includ ing the
the herpes
herpes virus-authored
virus—authored by
by Dr.
Dr.
Brenner
Brennerand
andothers.
others.Dr.
Dr. Brenner
Brennermay
may testify
testifyas
as to
to Plaintiff
Plaintiff's
s and
and Defendant Deari'ss medical
Defendant Deari' medical
history,
history,respectively.
respectively.She
Shemay
maytestify
testify concerning
concerningthe
thetransmission
transmissionof
ofthe
the herpes
herpes virus
virus from
from one
one
individual
individualtotoanother,
another,including
includingthe
thesame
samefor
forPlaintiff.
Plaintiff.Dr.
Dr.Brenner
Brennermay
maytestify
testifyasastoto the
the
procedures,
procedures,protocols,
protocols,tests,
tests,and
andscience
sciencebehind
behindthe
thesame
samethat
thataa medical
medical staff
staff could
could and
and would
would
observe
observeand/or
and/orperform
perfomifor
foran
an individual
individualwho
whoisissuspected
suspectedtotohave
havebeen
beenthe
the victim
victim of
of aa sexual
sexual
PLAINTIFF'S
PLAINTIFF'S TEX.
TEX. R.
R. elv.
CIV. P.
P. 194.2(F)
194.2(F)EXPERT
EXPERTWITNESS
WITNESSDESIGNATIONS
DESIGNATIONS PAGE 4 OF 20
PAGE40F20
MANDAMUS RECORD - TAB 5
assault, including what was done for Plaintiff on April 26, 2011.
assault, 2011. Dr. Brenner
Brenner may testify
testify as
as to
to
results of
the results of the rape
rape kit
kit performed
performed on Plaintiff
Plaintiff on April 26, 2011, as well
well as
as the
the results
results of
of the
the
State of Texas's sexually
sexually transmitted
transmitted disease
disease test of
of Defendant
Defendant Deari. Dr.
Dr. Brenner
Brenner may
may testify
testify
herpes virus
that the herpes virus that
that Plaintiff
Plaintiff presented
presented to Parkland
Parkland hospital in May
May 2011
2011 was
was consistent
consistent
of herpes that took
with an initial outbreak of took place
place during
during and/or
andlor immediately
immediately after the generally
generally
accepted incubation
accepted incubation time
time for
for the
the disease
disease after
after an individual's first exposure.
exposure. Dr. Brenner
Brenner may
testify that Plaintiff may require medical monitoring,
monitoring, treatment,
treatment, andlor
and/or hospitalization as a result
of the disease.
disease. Dr.
Dr. Brenner may also
also testify that Plaintiff has
has incurred
incurred in the past, and will incur
in the future,
future, medical
medical expenses
expenses as
as a result
result of the herpes
herpes virus
virus she
she contracted
contracted from
from the sexual
sexual
assault
assault that
that took
took place
place at
at the Hyatt House
House hotel.
hotel. Dr.
Dr. Brenner
Brenner may
may also
also testify
testify that said past and
future
future medical
medical expenses
expenses are
are reasonable
reasonable and
and necessary,
necessary, especially
especially in
in light
light of the incurable nature
of the
the disease
disease for
for which
which Plaintiff has
has been
been diagnosed.
diagnosed. Dr.
Dr. Brenner
Brenner may
may further
further testify
testify as
as to
to facts
facts
and
and circumstances
circumstancesregarding
regardingthe
thenature
natureof
ofthe
the injuries
injuries and
and damages
damagesthat
that are
are the
the subject
subject of
of this
this
action.
action. Dr.
Dr. Brenner's
Brenner's testimony
testimony will be based upon her skill, knowledge, education, experience,
experience,
and
and training,
training, as
as well
well as her review
as her review of
of Plaintiffs
Plaintiff smedical
medical records
records and
and diagnoses,
diagnoses, scientific
scientific
literature
literature and
and studies,
studies, and evidence, pleadings,
and the evidence, pleadings, and discovery
discovery served,
served, produced,
produced, and/or
andlor
elicited
elicitedin
in this
this case
case and
and based
based upon reasonable degree
upon a reasonable degree of medical
medical and scientific
scientific probability
probability
andlor
and/or certainty.
certainty.Plaintiff
Plaintiffreserves
reservesthe
the right
right to
to supplement and/or amend
supplement andlor amend this
this expert witness
expert witness
designation
designationasasdiscovery
discoverycontinues
continuesand
andadditional
additionalfacts
factsand
and evidence
evidencehave
have been
been learned
learned and
and
produced.
produced.
Mr.
Mr.John
John A.
A. Harris,
Harris, CPA,
CPA, CPP,
CPP,PSP
PSP
Mr.
Mr.John
JohnA.
A.Harris,
Harris,CPP,
CPP,PSP,
PSP,CPA-( 404) 888-0060,
CPA (404) 888-0060, 1170
1170Peachtree
PeachtreeStreet,
Street, Suite
Suite 1200,
1200,
Atlanta,
Atlanta,Georgia
Georgia30309-is
30309—isa apremises
premisesliability
liabilityand
andforensic
forensicsecurity
securityexpert.
expert.Please
Pleasesee
see the
the
PLAINTIFF'S
PLAINTIFF'STEX.
TEX.R.
R.elv.
CIV.P.
P. 194.2(F)
194.2(F)EXPERT
EXPERTWITNESS
WITNESSDESIGNATION
DESIGNATIONS
S PAGE 5 OF 20
PAGE50F20
MANDAMUS RECORD - TAB 5
attached Exhibit B
attached B for
for aa copy
copy of
ofMr.
Mr. Harris's
Harris'sresume
resume and/or
and/or bibliography.
bibliography. Mr.
Mr. Harris
Harris is
is board
board
certified in
certified security management
in security management (CPP)
(CPP) and
and Physical
Physical Security
Security (PSP)
(PSP) by
by the
theprofessional
professional
certification board
certification board of ASIS
ASIS International,
International, an
an ANSI
ANSIaccredited
accreditedstandards
standardsdevelopment
development
organization with
organization with worldwide
worldwide membership
membership of
of over
over 37,000
37,000 security
security professionals. Mr. Harris's
professionals. Mr.
CPP certification
CPP certification is the preeminent
is the preeminent designation
designation awarded
awarded to
to individuals
individuals whose
whose primary
primary
responsibilities are
responsibilities are in security management and who have demonstrated advanced knowledge in
security
security solutions
solutions and best business
business practices.
practices. Mr.
Mr. Harris's
Harris's experience in physical security began
I
over
over 40 years ago when he was
40 years was undergoing
undergoing training
training to become a commissioned
commissioned officer
officer in the
United
United States
States Marine
Marine Corps,
Corps, and
and he has conducted
he has conducted over 1,200
1,200 security
security risk
risk assessments
assessments of
various
various types
types of commercial
commercial properties
properties including
including apartments, hotels, office buildings,
apartments, hotels, buildings, parking
lots,
lots, and
and malls
malls located
located in 43
43 states as well as in Puerto Rico, the Virgin Islands, and Colombia,
South
South America.
America. In
In this
this case,
case, Mr.
Mr. Harris
Harris may
may testify
testify that
that the
the sexual
sexual assault
assault of Plaintiff on April
April
26,
26, 2011,
2011, while
while the
the guest
guest of an invitee and/or
and/or invitee
invitee at the Hyatt House located at 4900 Edwin
Lewis
Lewis Drive
Drive in
in Addison,
Addison, Texas,
Texas, was
was reasonably
reasonably foreseeable
foreseeable and
and should
should have
have been anticipated
anticipated by
by
the
the "Hotel
"Hotel Defendants"l
Defendants"' based
based on the crimes
crimes committed
committed on the premises
premises and the surrounding
surrounding
area
area in
in the
the five
five years
years preceding
preceding April
April 26,
26, 2011.
2011. Mr.
Mr. Harris
Harris may
may testify
testify that,
that, prior
prior to
to April
April 26,
26,
2011,
2011, there
there had
had been
been sufficient
sufficient crime
crime committed
committed at
at the
the Hyatt
Hyatt Hotel-including
Hotel—including an
an armed
aimed robbery
robbery
of
of an
an employee
employee of
of the Hotel Defendants'
the Hotel Defendants' just
just months
months before
before Plaintiff
Plaintiff was
was raped
raped on
on the
the same
same
premises-and
premises—andininthe
the immediate
immediate vicinity
vicinitytoto put
put the
the Hotel
Hotel Defendants
Defendants on
on notice
notice that reasonable
reasonable
security
securitymeasures
measureswere
wereneeded
needed for
for the
the security,
security, safety
safety and
and well-being
well-being of
of their
their guests,
guests, invitees,
invitees,
and
and other
otherpeople
people legally
legally on
on their
their property.
property. Mr.
Mr. Harris
Harris may
maytestify
testifythat
that in
in the
the five
five years
years preceding
preceding
11As
Asused
usedherein,
herein,"Hotel
"Hotel Defendants"
Defendants" refers
referstoto Island
Island Hospitality
HospitalityManagement,
Management, Inc.,
Inc., Grand
GrandPrix
Prix
Floating
FloatingLessee,
Lessee,LLC,
LLC, Hyatt
Hyatt Hotels
Hotels Corporation,
Corporation, Hyatt
Hyatt House
House Franchising,
Franchising, LLC,
LLC, Jeffrey
Jeffrey H.
H.
Fisher,
Fisher, Chatham
ChathamLodging,
Lodging,L.P.,
L.P., Chatham
ChathamTRS TRS Holding,
Holding, LLC,
LLC, Ink
Ink Acquisition, LLC, Ink
Acquisition, LLC, Ink
Acquisition
AcquisitionII,
II,LLC,
LLC,Ink
InkAcquisition
Acquisition III,
III, LLC,
LLC,Ink
InkLessee
LesseeHolding,
Holding,LLC,
LLC, and
and Ink
Ink Lessee
Lessee LLC.
LLC.
PLAINTIFF'S
PLAINTIFF'S TEX.
TEX. R.
R. elv.
CIV. P.
P. 194.2(F)
194.2(F)EXPERT
EXPERTWITNESS
WITNESSDESIGNATIONS
DESIGNATIONS PAGE 6 OF 20
PAGE60F20
MANDAMUS RECORD - TAB 5
the attack
the attack on Plaintiff
Plaintiff at the hotel,
hotel, that
that there
there had
had been
been aa significant
significant number
number of
ofcriminal
criminal incidents
incidents
reported to the Addison
Addison Police
Police Department
Department (including
(including multiple crimes at the
the Hyatt
Hyatt House
House hotel
hotel
and other hotels immediately in the vicinity of
and of the Hyatt House hotel) such that the real
real potential
potential
of a violent
of violent crime
crime taking place at
at the
the hotel
hotel was
was reasonably
reasonably foreseeable.
foreseeable. Mr. Harris
Harris may
may testify
testify
reported offenses
that these reported offenses included
included violent
violent crime
crime that
that the Hotel
Hotel Defendants
Defendants either knew or
reasonably should have known about and should have taken proactive steps to ensure the security
of its premises but did not. Mr. Harris may testify that the Hotel Defendants negligently failed to
analyze the
analyze the level
level of crime
crime at or
or near
near the
the Hyatt
Hyatt House
House hotel
hotel provided
provided by
by the
the Addison
Addison Police
Police
Department
Departmentand
andthe
the Texas
Texas Department
Departmentof
of Public
Public Safety
Safety and
and to
to utilize
utilize those
those analyses
analyses in
determining
determining the
the security
security needs
needs of the property,
property, and that the Hotel Defendants negligently failed
to request any information
to request information from
from the Addison
Addison Police
Police Deparmient
Department regarding past or current
regarding past current
criminal
criminal incidents
incidents on
on the
the premises
premises and
and in
in the
the immediate vicinity as
immediate vicinity as a reasonably prudent hotel
operator
operator would
would and
and should
should have
have done.
done. Mr.
Mr. Harris
Harris may
may testify
testify that
that the
the Hotel
Hotel Defendants
Defendants failed
failed to
to
conduct
conduct either
either component
component of
of aa security
security risk
risk assessment,
assessment, including
including the
the failure
failure to
to conduct
conduct aa threat
threat
assessment
assessment (based
(based upon
upon historical
historical information
information of
of past
past criminal
criminal events,
events, actual
actual threats,
threats, inherent
inherent
threats,
threats, and
and potential
potential threats
threats by
by virtue
virtue of
of the
the vulnerabilities
vulnerabilities around
around the
the hotel
hotel or
or weaknesses
weaknesses in
in the
the
security
securityprogram
programwhich
whichproduce
produceopportunities
opportunitiesfor
forcrime
crimetotooccur)
occur) and
and the
the negligent
negligent failure
failure to
to
conduct
conductaa vulnerability
vulnerabilityassessment
assessmenttoto analyze
analyzethe
theweaknesses
weaknessesof
ofthe
theHotel
Hotel Defendants'
Defendants' security
security
program
programor,
or, alternatively,
alternatively,that
that the
the Hotel
Hotel Defendants
Defendants negligently
negligentlyfailed
failedto
to engage
engage aa professional
professional
security
securityconsultant
consultanttotoconduct
conductthe
theanalysis.
analysis.Mr.
Mr.Harris
Harrismay
maytestify
testifythat
that the
the Hotel
Hotel Defendants'
Defendants'
negligent
negligentfailure
failuretotoconduct
conductaa security
security risk
risk assessment
assessmentmade
madeitit impossible
impossiblefor
for the
the Hotel
Hotel
Defendants
Defendantstotoassess
assessthe
the likelihood
likelihood that
that criminals
criminals could
could and
and would
would exploit
exploit vulnerabilities
vulnerabilities or
or
compromise
compromisesecurity
securitycountermeasures
countermeasuresatatthe
thehotel.
hotel.Mr.
Mr.Harris
Harrismay
maytestify
testifythat,
that,based
basedupon
uponthe
the
PLAINTIFF'S
PLAINTIFF'STEX.
TEX.R.
R.elv.
CIV.P.
P. 194.2(F)
194.2(F)EXPERT
EXPERTWITNESS
WITNESSDESIGNATIONS
DESIGNATIONS PAGE 7 OF 20
PAGE70F20
MANDAMUS RECORD - TAB 5
Hotel Defendants'
Hotel Defendants' experience
experience in
inthe
the lodging
lodging industry,
industry, the
the Hotel
Hotel Defendants
Defendants knew
knew or
or should
should have
have
known that
known guests, invitees,
that their guests, invitees, and other people
and other people legally on their
legally on their property were at risk
property were risk to
to
criminal activities
criminal activities if reasonable
reasonable security
security measures
measures were
were not
not undertaken, and that the
undertaken, and the Hotel
Hotel
Defendants knew or should have known that in the absence
absence of
of reasonable
reasonable security
security measures, the
multiple property
multiple property crimes
crimes (e.g.,
(e.g., theft,
theft, vehicle
vehicle break-ins,
break-ins, etc.)
etc.) that
that were
were reported
reported at the Hyatt
Hyatt
House hotel can lead to violent crimes against persons. Mr. Harris may testify that it is generally
generally
accepted that
accepted that most crimes are not
most crimes not random
random events,
events, but
but planned
planned events
events in
in environments
environments which
which
provide the opportunity to commit a crime with the least likelihood of detection, intervention and
apprehension
apprehension and,
and, further,
further, that these conditions
conditions existed at the
the Hyatt House
House hotel on, and prior to,
the April 26,
the April 26, 2011
2011 attack
attack on
on Plaintiff
Plaintiff yet the
the Hotel
Hotel Defendants
Defendants did nothing.
nothing. Mr.
Mr. Harris
Harris may
testify
testify that
that the Hotel Defendants negligently
negligently failed
failed to
to have security and/or
andlor adequate security
security at
the
the Hyatt
Hyatt House
House hotel
hotel and that the Hotel Defendants
Defendants knew
knew or should
should have
have known
known that they did
not
not have security andlor
have security adequate security
and/or adequate security and
and that the inadequate
inadequate security
security was unreasonably
unreasonably
safe.
safe. Mr.
Mr. Harris
Harris may
may testify
testify that,
that, at all pertinent times, the Hotel
Hotel Defendants owned,
owned, operated,
operated,
andlor
and/or controlled
controlledthe
the Hyatt
Hyatt House
House hotel,
hotel, and
and that
that the
the Hotel
Hotel Defendants
Defendants owed
owed aa duty
duty to
to Plaintiff
to
to exercise
exercise reasonable
reasonable care
care (at
(at a minimum)
minimum) to
to protect
protect Plaintiff from
from criminal
criminal attacks
attacks and
and other
other
reasonably
reasonablyforeseeable
foreseeableinjuries.
injuries.Mr.
Mr.Harris
Harrismay
may testify
testify that
that the
the Hotel
Hotel Defendants
Defendants breached
breached its
its
duties
duties by
by committing
committingthe
the following
followingnon-exhaustive
non-exhaustivelist
listofofacts
acts or
or omissions:
omissions: (1)
(1) the
the Hotel
Hotel
Defendants
Defendantsnegligently
negligentlyfailed
failedtoto exercise
exercise reasonable
reasonablecare
care in
in providing
providing security
security guard
guard services
services
(the
(the same
same services
servicesthat
that were
were once
once provided
provided but
but eliminated
eliminateddue
due to
to an
an attempted cost savings
attempted cost savings
measure
measureby
by the
the Hotel
Hotel Defendants);
Defendants); (2)
(2) the
the Hotel
Hotel Defendants'
Defendants' failure
failure to implement
implement sufficient
sufficient
security
securitymeasures
measuresand
andconduct
conductany
anytype
typeof
ofthreat
threatassessment
assessmentor
orsecurity
securityassessment
assessmentfor
forthe
theHyatt
Hyatt
House
Househotel
hotelatatany
any point
point in
in time
time (including
(includingtoto this
this day);
day); (3)
(3) the
the Hotel
Hotel Defendants' negligent
Defendants' negligent
PLAINTIFF'S
PLAINTIFF'STEX.
TEX.R.
R elv.
CIV. P. 194.2(F) EXPERT
P. 194.2(F) EXPERT WITNESS
WITNESSDESIGNATION
DESIGNATIONS
S PAGE80F20
PAGE 8 OF 20
MANDAMUS RECORD - TAB 5
failure to
failure properly train
to properly train any
any of
of its
itsemployees
employees on
on adequate
adequate security
security measures
measures for
for the
the safe
safe
operation of
operation of a hotel; (4) the Hotel Defendants' negligent
negligent failure
failure to have
have more
more than
than one
one employee
employee
working during
working during the
the hours
hours of 7:00
7:00 p.m.
p.m. and
and 11:00
11 :00 p.m.
p.m. when
when Plaintiff
Plaintiff was
was being
being sexually
sexually
assaulted at the hotel; (5) the Hotel
Hotel Defendants'
Defendants' negligent
negligent failure
failure to
to implement
implement security
security policies
policies
procedures that adhere to industry
and procedures industry best
best practices
practices of
of identifying,
identifying, addressing,
addressing, and
and mitigating
mitigating
security vulnerabilities
security vulnerabilities at
at the
the hotel;
hotel; (6)
(6) the
the Hotel
Hotel Defendants'
Defendants' negligent
negligent failure
failure to
to adhere
adhere to its
own security policies
policies and procedures
procedures (despite
(despite the
the fact
fact that
that said policies
policies and procedures fall far
below the
the industry
industry standard
standard of care);
care); (7)
(7) the Hotel Defendants'
Defendants' negligent failure to provide any
security personnel
personnel at the hotel (which, naturally,
naturally, caused the
the Hotel Defendants to fail to train said
personnel
personnel properly);
properly); (8)
(8) the
the Hotel
Hotel Defendants'
Defendants' negligent failure
failure to properly or adequately
adequately train
management
management personnel
personnelfor
for oversight
oversightof
of security
security and
and safety
safety issues;
issues; (9)
(9) the Hotel
Hotel Defendants'
Defendants'
negligent
negligent failure
failure to
to provide appropriate and adequate physical security measures commensurate
with
with the
the risk that existed on the premises—including,
premises-includin g, but
but not
not limited
limited to,
to, the
the lack
lack of any patrols
(Le.,
(i.e., off-duty
off-duty police
police officers,
officers, private
private security
security guards,
guards, etc.);
etc.); (10)
(10) the
the Hotel
Hotel Defendants'
Defendants' negligent
failure
failure to
to have
have any
any system,
system, procedure,
procedure, or
or policy
policy in place
place to
to detect,
detect, monitor,
monitor, and
and control access
access to
to
the
the hotel;
hotel; (11)
(11) the
the Hotel
Hotel Defendants'
Defendants' negligent failure
failure to
to enforce
enforce procedures
procedures regarding
regarding suspicious
suspicious
guests
guests and
and suspicious
suspicious prospective
prospective guests
guests during
during the
the check-in
check-inprocess;
process; (12)
(12) the
the Hotel
Hotel Defendants'
Defendants'
negligent
negligent failure
failure to
to have
have operable
operable closed
closed circuit
circuit television
television (CCTV)
(CCTV) cameras
cameras installed
installed in
in any
any area
area
of
of the
the hotel
hotel that would be conducive
that would conducive to guest
guest safety
safety and security
security and,
and, further,
further, conducive to
conducive to
deterring,
deterring,detecting,
detecting,monitoring,
monitoring,oror preventing
preventingcrime;
crime;(13)
(13) the
the Hotel
Hotel Defendants'
Defendants' negligent
negligent
failure
failureto
to even
even know
know about-let
about—let alone
alone implement-the
implement—the generally
generally accepted
accepted industry
industry standards
standards for
for
premises
premisessecurity
securityand
andpremises
premisessecurity
securityatataa lodging
lodgingfacility
facilityfound
foundin
in NFP
NFPA 370 and
A 370 and 371;
371; (14)
(14)
the
the Hotel
Hotel Defendants'
Defendants' negligent
negligent failure
failure to
to adhere
adhere to
to industry
industry best
best practices
practices by
by failing
failing to
to identify
identify
PLAINTIFF'S
PLAINTIFF'S TEX.
TEX. R.
R. elv.
CIV. P.
P. 194.2(F)
194.2(F) EXPERT
EXPERT WITNESS
WITNESSDESIGNATIONS
DESIGNATIONS PAGE 9 OF 20
PAGE90F20
MANDAMUS RECORD - TAB 5
and address
and address measures to mitigate
mitigate security
security vulnerabilities at the hotel; (15) the Hotel Defendants'
negligent failure
negligent failure to exercise reasonable
to exercise reasonable care
care in providing
providing adequate
adequate security
security and
and failing
failing to
to
implement sufficient security measures;
measures; (16)
(16) the
the Hotel Defendants' negligent failure to conduct
conduct
periodic reviews
periodic reviews and recapitulations of
and recapitulations of security
security incident
incident reports
reports at
at the
the Hyatt House hotel and
and
remedy the
remedy security deficiencies
the security deficiencies that
that it knew
knew or should have known about;
about; and (17)
(17) the Hotel
Hotel
remedy the glaring
Defendants' negligent failure to remedy glaring security concerns noted on its own
own internal
internal
audits for
for years prior to the attack on Plaintiff. Mr. Harris may testify that the negligent acts and
omissions by
omissions by the Defendants to
the Hotel Defendants discharge the
to discharge the duties
duties of
of aa reasonably
reasonably prudent
prudent property
property
owner/manage r/operator toto provide
owner/manager/operator provide reasonable
reasonable security
security and
and property
property management
management measures
measures at
the Hyatt Hotel
the Hyatt Hotel was
was a substantial
substantial factor
factor and/or
and/or proximate
proximate cause
cause of
of the
the attack on Plaintiff and
damages
damagesshe
she incurred.
incurred.Mr.
Mr. Harris
Harrismay
may testify
testifythat
that had
had the
the Hotel
Hotel Defendants acted as
Defendants acted as a
reasonably
reasonably prudent
prudent property
property owner/manage r/operator would
owner/manager/operator wouldhave
haveacted
actedin
in the
the same
same or similar
circumstances
circumstances (given
(given the
the amount,
amount, similarity,
similarity, proximity,
proximity, frequency,
frequency, and
and publicity
publicity of
of crime
crime at
at or
or in
in
the
the immediate
immediate vicinity
vicinity of
of the
the Hyatt
Hyatt House
House Hotel)
Hotel) to provide reasonable
reasonable security
security and
and property
property
management
managementmeasures
measuresatatthe
theHyatt
HyattHouse
Househotel,
hotel,itit isis more
more probable
probable than
than not
not that
that the
the sexual
sexual
assault
assault of
of Plaintiff
Plaintiff would
would not
not have
have occurred.
occurred.Mr.
Mr. Harris
Harrismay
maytestify
testifythat
that due
due to
to the
the violent
violent
criminal
criminal atmosphere
atmospherethat
thatexisted
existed atat the
the Hyatt
Hyatt House
House hotel
hotel and
and in
in its
its immediate
immediate vicinity,
vicinity, that
that the
the
Hotel
Hotel Defendants'
Defendants' failure
failure to provide security
to provide security guards,
guards, operable
operable closed-circuit televisions, and
closed-circuit televisions, and
other
other reasonable
reasonablesecurity
securitymeasures
measureswas
wasiningross
grossbreach
breachof
of minimum
minimumstandards
standardsof
ofcare
carefor
for an
an
innkeeper.
innkeeper.Mr.
Mr.Harris
Harrismay
maytestify
testifythat
thatthe
the Hotel
Hotel Defendants'
Defendants' acts
acts or
or omissions, when viewed
omissions, when viewed
objectively
objectivelyfrom
fromthe
thestandpoint
standpointof
ofthe
theHotel
HotelDefendants
Defendantsatatthe
thetime
timeof
ofits
its occurrence
occurrence involved
involvedan
an
extreme
extremedegree
degreeof
ofrisk,
risk,considering
consideringthe
theprobability
probabilityand
andmagnitude
magnitudeof
ofthe
thepotential
potentialharm
harmtotoothers,
others,
and
and that
that the Hotel Defendants
the Hotel Defendants had
had actual,
actual, subjective
subjective awareness
awarenessofofthe
the risk
risk involved, but
involved, but
PLAINTIFF'S
PLAINTIFF'STEX.
TEX.R.
R.elv.
CIV. P.
P. 194.2(F)
194.2(F)EXPERT
EXPERTWITNESS
WITNESSDESIGNATION
DESIGNATIONS
S PAGE1010oF20
PAGE OF 20
MANDAMUS RECORD - TAB 5
nevertheless proceeded
nevertheless proceeded with conscious indifference
with conscious indifference to
to the
the rights,
rights, safety,
safety, or welfare
welfare of
ofothers,
others,
including Plaintiff.
including Plaintiff. With
With respect
respect to Pastazios Pizza,
to Pastazios Pizza, Inc.,
Inc., Post
Post Addison
Addison Circle
Circle Limited
Limited
Partnership, and
Partnership, and Post Properties,
Properties, Inc.,
Inc., Plaintiff expects
expects that
that Mr.
Mr. Harris
Harris may testify in aa similar
similar
fashion as
fashion he may
as he may testify
testify as
as to
to the
theHotel
HotelDefendants
Defendants (but,
(but, naturally,
naturally, with
with respect to aa
respect to
restaurant/restaurant common
restaurant/restaurant commonarea
areathat
thatisisopen
opentotothe
the public
public such
such that
that the
the owners
owners of said
said
premises know
premises know that
that alcohol
alcohol is consumed on
is consumed on said
said premises
premises by
by the
the public
public on a daily
daily basis).
basis). Mr.
Mr.
Harris may
Harris may testify
testify that Post entities
that the Post entities were
were negligent
negligent and grossly
grossly negligent
negligent for
for failing
failing to
to
terminate
terminate its
its lease
lease with Pastazios Pizza,
with Pastazios Pizza, Inc.
Inc. after Pastazios violated the
Pastazios violated the Texas Alcohol
Alcohol and
and
Beverage
Beverage Code
Code on
on multiple
multiple occasions,
occasions, including
including aa publicly
publicly known
known sale
sale of
of alcohol
alcohol to
to an 18 year
old female
female in 2002
2002 during
during a law enforcemen
enforcementt sting operation.
operation. Mr.
Mr. Harris
Harris may further testify as
as to
to
facts
facts and
and circumstances regarding
circumstances regarding the
the nature
nature of
of the
the injuries
injuries and
and damages
damages that
that are
are the
the subject
subject of
of
this action. Mr.
this action. Harris's testimony
Mr. Harris's testimony will
will be
be based
based upon
upon his
his skill,
skill,knowledge,
knowledge, education,
education,
experience,
experience, and
and training,
training, as
as well
well as
as his
his review
review of the pertinent authoritativ
authoritative publications written
e pUblications written
by
by him
him and
and others,
others, and
and the
the evidence,
evidence, pleadings,
pleadings, and
and discovery
discovery served,
served, produced,
produced, and/or
and/or elicited
elicited
in
in this
this case based upon
case and based upon aa reasonable
reasonable degree
degree of
ofprofessional
professional probability
probability and/or certainty.
certainty.
Plaintiff
Plaintiffreserves
reservesthe
the right
right to supplement and/or
to supplement and/or amend
amend this
this expert
expert witness
witness designation as
designation as
discovery
discoverycontinues
continuesand
andadditional
additionalfacts
facts and
andevidence
evidencehave
havebeen
beenlearned
learnedand
andproduced.
produced.
Dr.
Dr.William
WilliamE.
E.Flynn,
Flynn,Ph.D.
Ph.D.
Dr.
Dr. William
William E.
E. Flynn,
Flynn, Ph.D.-(214
Ph.D.—(214)) 202-7344,
202-7344,100
100Highland
HighlandPark
Park Village,
Village, Suite
Suite 200,
200,
Dallas,
Dallas,Texas
Texas75205-is
75205—isaaforensic
forensicand
andclinical
clinicalpsychologis
psychologist. Pleasesee
t. Please seethe
theattached
attachedExhibit
ExhibitCC
for
foraa copy
copy of
of Dr.
Dr. Flynn's resume
resume and/or
and/or bibliography.
bibliography. In
In this
this case,
case, Dr.
Dr. Flynn
Flynn may
may testify,
testify,
generally,
generally,about
aboutthe
thepsychological, medical,
psychological, medical, behavioral,
behavioral, educational,
educational,physiologic
physiological, vocational,
al, vocational,
and
andsocial
socialtrauma
traumathat
thataa victim
victim of
of a sexual
sexual assault—including
assault-inc luding aa sexual
sexual assault
assault that
that ultimately
ultimately
PLAINTIFF' S TEX.
PLAINTIFF'S TEX.R.
R.elv.
CIV.P.P.194.2(F)
194.2(F)EXPERT
EXPERTWITNESS
WITNESSDESIGNATI
DESIGNATIONS
ONS PAGE1111oF20
PAGE OF 20
MANDAMUS RECORD - TAB 5
causes the
causes the transmission
transmission of
of an
an incurable
incurable disease—can
disease-c an experience,
experience, including Plaintiff Dr.
including Plaintiff. Dr. Flynn
Flynn
may testify
may testify about
about Post-Traumatic
Post-Traumatic Stress Disorder ("PTSD") in general
general and
and as
as applied
applied to
to victims
victims
of rape,
of rape, including
including Plaintiff
Plaintiff. Dr.
Dr.Flynn
Flynnmay
maytestify
testifyabout
aboutother
othermedical
medicaland
andpsychological
psychological
condition s-includin
conditions g, but not limited
including, limited to,
to, depression,
depression, PTSD,
PTSD, sleep
sleep disorders,
disorders, eating
eating disorders,
disorders,
substance abuse, self-harm/self-injury,
substance self-harmlself-injury, flashbacks,
flashbacks, personalit
personalityy disorders,
disorders, suicide,
suicide, etc.—that
etc.-that are
are
reasonably likely to
reasonably to arise
arise in victims
victims of rape,
rape, including
including Plaintiff.
Plaintiff. Dr.
Dr. Flynn
Flynn may
may testify
testify regarding
regarding
the need for medical
the need medical and/or
andlor psychological
psychological treatment
treatment throughou
throughout the course
t the course of
of aa rape
rape victim's
life-gene rally, as
life—generally, as well
well as
as with respect to Plaintiff-
Plaintiff—and he may also
and he also testify as to the reasonable
and
and necessary
necessary future
future psychiatri
psychiatricc expenses
expenses that
that Plaintiff is,
is, in all reasonable
reasonable probabilit
probability, to
y, likely to
incur
incur in
in the
the future
future as of Defendants'
as a result of Defendants' tortious
tortious conduct
conduct and the permanent
permanent and incurable
incurable
nature
nature of
of the
the herpes
herpes virus.
virus. Dr.
Dr. Flynn
Flynn may
may testify
testify as
as to
to the permanent and incurable
permanent and nature of
incurable nature of
Plaintiff
Plaintiff'ss injuries
injuries and
and disease-a
disease—ass well
well as
as the
the impact
impact of
of said
said injuries
injuries and
and disease
disease on
on Plaintiff
Plaintiff's
s
life,
life, education,
education, future
future earning
earning capacity,
capacity, mental
mental state,
state, etc.-from
etc.—from aa forensic
forensic and
and clinical
clinical
psycholog
psychologyy perspective. Dr.
perspective. Dr.Flynn
Flynn may
may further
furthertestify
testify as
asto
to facts
facts and
and circumsta
circumstances regarding the
nces regarding the
nature
natureof
ofthe
the injuries
injuriesand
and damages
damagesthat
thatare
arethe
the subject
subjectof
ofthis
thisaction.
action.Dr.
Dr.Flynn's
Flynn's testimony
testimony will
will
be
be based
basedupon
uponhis
his skill,
skill, knowledge, education,
knowledge, education,experienc
experience, andtraining,
e, and training,asaswell
wellasashis
hisreview
reviewof
of
the
the pertinent
pertinentauthoritative publicatio
authoritative ns written
publications writtenby
byhim
himand
and others,
others, and
and the
the evidence,
evidence, pleadings,
pleadings,
and
anddiscovery
discoveryserved,
served,produced,
produced,andlor
and/orelicited
elicitedininthis
thiscase
caseand
andbased
basedupon
uponaa reasonable
reasonabledegree
degree
of
ofprofessional, medical,
professional, medical,and
andscientific
scientificprobabilit
probability and/orcertainty.
y andlor certainty.Plaintiff
Plaintiffreserves
reservesthe
theright
righttoto
supplemen t andlor
supplement and/oramend
amendthis
thisexpert
expertwitness
witnessdesignatio
designation
n asasdiscovery
discoverycontinues
continuesand
andadditional
additional
facts
factsand
andevidence
evidencehave
havebeen
beenlearned
learnedand
andproduced.
produced.
Dr.
Dr.Joe
JoeG.
G.Gonzales,
Gonzales,M.D.,
M.D.,FAAPMR
FAAPMR, CLCP
, CLCP
Dr.
Dr.Joe
JoeG.G.Gonzales -(210) 501-0995,
Gonzales—(210) 501-0995,11550
11550IH
IH10
10West,
West,Suite
Suite375,
375,San
SanAntonio,
Antonio,Texas
Texas
PLAINTIF F'S TEX.
PLAINTIFF'S TEX.R.R.elv.
CIV.P.P.194.2(F)
194.2(F)EXPERT
EXPERTWITNESS
WITNESSDESIGNA
DESIGNATIONS
TIONS PAGE12oF20
PAGE 12 OF 20
MANDAMUS RECORD - TAB 5
78230-is a Physical Medicine & Rehabilitation specialist (board certified), Pain Management
specialist (board certified), Occupational & Environmental Medicine specialist (board certified),
and certified life care planner who has practiced Medicine in Texas since 1985 and is certified by
the American Academy of Physical Medicine & Rehabilitation, the American Board of Pain
Medicine, and the American College of Occupational & Environmental Medicine. Dr. Gonzales
is a Diplomat of the American Academy of Pain Management, a Designated Physician of the
Texas Workers' Compensation Commission, and a Certified Life Care Planner as designated by
the Commission on Health Care Certification. Dr. Gonzales is the President of the Texas
Physical Medicine & Rehabilitation Institute, and the Founder and Medical Director of Physician
Life Care Planning, LLC. Dr. Gonzales is a licensed physician in the State of Texas. Please see
the attached Exhibit D for a copy of Dr. Gonzales's resume andlor bibliography. Dr. Gonzales
may testify about vocational feasibility or disabled related needs of injured people andlor
individuals with disabilities or life-altering and permanent diseases (such as Plaintiff), determine
the need for medical, psychological and vocational services, identify functional limitations and
need for assistive devices for Plaintiff, conduct job and task analyses as well as labor market
surveys. Dr. Gonzales may be called to testify with regard to life care planning for Plaintiff, and
the value of such assistance andlor care, for those-such as Plaintiff-who are injured or those
with disabilities. Dr. Gonzales may testify as to the permanent and incurable nature of Plaintiffs
injuries and disease-as well as the impact of said injuries and disease on Plaintiff slife,
education, future earning capacity, mental state, etc.-from a physical, psychological, andlor
social perspective, and he may testify as to what Plaintiff would have been capable of earning-
as well as Plaintiff s other economic losses-had she never been subject to the injuries caused by
Defendants' tortious conduct. Dr. Gonzales may testify as to the reasonable and necessary future
PLAINTIFF'S TEX. R. elv. P. 194.2(F) EXPERT WITNESS DESIGNATIONS PAGE 13 oF20
MANDAMUS RECORD - TAB 5
medical expenses
medical expenses that Plaintiff is, in all
all reasonable
reasonable probability, likely to incur in the future as
probability, likely as aa
result of
result of Defendants'
Defendants' tortious
tortious conduct
conduct and
and the
the permanent
permanent and
and incurable
incurable nature
nature of
of the
the herpes
herpes
virus. Dr. Gonzales
Gonzales may testify as to the economic
economic loss incurred by Plaintiff in the past to treat
treat
injuries she sustained
the injuries sustained that
that were caused by
were caused by Defendants, as well
Defendants, as well as
as Plaintiff
Plaintiff'ss future
future loss
loss of
of
earning capacity
earning capacity based
based upon Plaintiff
Plaintiffss earnings,
earnings, medical
medical condition,
condition, stamina,
stamina, efficiency,
efficiency, ability
ability
to work in light
light of
of the
the injuries
injuries sustained,
sustained, the
the weaknesses
weaknesses and changes that will naturally
naturally result
from Plaintiffs injuries, and Plaintiffs
Plaintiffs work-life
work-life expectancy.
expectancy. Dr. Gonzales may testify as to a life
care
care plan for Plaintiff's
plan for Plaintiffs lifetime
lifetime that
that determines
determines her
her lifetime
lifetime needs
needs and
and costs
costs of care
care (e.g.,
(e.g.,
Plaintiff s medical,
Plaintiff's medical, psychiatric,
psychiatric, psychological,
psychological, behavioral, educational, vocational
behavioral, educational, vocational and
and social
social
needs,
needs, etc.)
etc.) for
for her chronic
chronic disease
disease and psychological
psychological trauma
trauma caused
caused by
by Defendants'
Defendants' tortious
tortious
conduct.
conduct. Dr.
Dr. Gonzales
Gonzales may
may further
further testify
testify as
as to
to facts
facts and
and circumstance
circumstances regarding the
s regarding the nature
nature of
of
the
the injuries
injuries and
and damages
damages that
that are
are the
the subject
subject of
of this
this action. Dr. Gonzales's
action. Dr. Gonzales's testimony will be
testimony will be
based
based upon
upon his
his skill,
skill, knowledge,
knowledge, education,
education, experience,
experience, and
and training,
training, as
as well
well as
as his
his review
review of
of the
the
pertinent
pertinent authoritative
authoritativepublications
publicationswritten
writtenby
byhim
him and
and others,
others, and
and the
the evidence,
evidence, pleadings,
pleadings, and
and
discovery
discoveryserved,
served,produced,
produced,and/or
and/orelicited
elicitedininthis
thiscase
caseand
andbased
basedupon
upon aa reasonable
reasonable degree
degree of
of
professional,
professional,medical,
medical,and
andscientific
scientificprobability
probabilityand/or
and/orcertainty.
certainty.Plaintiff
Plaintiffreserves
reservesthe
theright
right to
to
supplement
supplementand/or
and/oramend
amendthis
this expert
expert witness
witness designation
designation as
as discovery
discovery continues
continues and
and additional
additional
facts
factsand
andevidence
evidencehave
havebeen
beenlearned
learnedand
andproduced.
produced.
Dr.
Dr.John
JohnA.
A.Swiger,
Swiger,Ph.D.
Ph.D.
Dr.
Dr.John
JohnA.
A. Swiger,
Swiger,Ph.D.-(210)
Ph.D.—(210)434-6711,
434-6711,411
411S.W.
S.W.24th
24thStreet,
Street,San
SanAntonio,
Antonio,Texas
Texas
78207-is
78207—isaaDoctor
Doctorof
ofFinance
Financeand
andisisan
aneconomist.
economist.Please
Pleasesee
seethe
theattached ExhibitEEfor
attachedExhibit foraacopy
copy
of
ofDr.
Dr.Swiger's
Swiger's resume
resumeand/or
and/orbibliography.
bibliography.As
Asan
anexpert
experteconomist,
economist,Dr.
Dr.Swiger
Swigermay
maytestify
testifyasas
totothe
theeconomic
economicloss,
loss,discounted
discountedtotopresent
presentvalue,
value,which
whichPlaintiff
Plaintiffhas
hasincurred
incurreddue
duetotothe
thetortious
tortious
PLAINTIFF'S TEX.R.R.elv.
PLAINTIFF'STEX. CIV.P.P.194.2(F)
194.2(F)EXPERT
EXPERTWITNESS
WITNESSDESIGNATIO
DESIGNATIONS
NS PAGE14oF20
PAGE 14 OF 20
MANDAMUS RECORD - TAB 5
conduct of Defendants. Dr. Swiger may also testify generally regarding the concept of present
value and its application to economic losses, particularly loss of earning capacity, past and future
medical expenses, lost wages, loss and future medical costs. Dr. Swiger may testify as to the
reasonable and necessary future medical expenses that Plaintiff is, in all reasonable probability,
likely to incur in the future as a result of Defendants' tortious conduct and the permanent and
incurable nature of the herpes virus. Dr. Swiger may testify as to the economic loss incurred by
Plaintiff in the past to treat the injuries she sustained that were caused by Defendants, as well as
Plaintiff s future loss of earning capacity based upon Plaintiff s earnings, medical condition,
stamina, efficiency, ability to work in light of the injuries sustained, the weaknesses and changes
that will naturally result from Plaintiffs injuries, and Plaintiffs work-life expectancy. Dr. Swiger
may testify as to Plaintiff s past lost wages, the economic value of the loss of enjoyment of life,
and other economic losses incurred by Plaintiff as a result of Defendants' tortious conduct. Dr.
Swiger may also testify about Defendants' financial conditions, the net worth and profits of
Defendants, andlor Defendants' current fiscal policies andlor practices for purposes of
establishing Defendants' wealth during the punitive damages phase of trial. Dr. Swiger may
further testify as to facts and circumstances regarding the nature of the injuries and damages that
are the subject of this action. Dr. Swiger's testimony will be based upon his skill, knowledge,
education, experience, and training, as well as his review of the pertinent authoritative
publications written by him and others in the field of economics, and the evidence, pleadings,
and discovery served, produced, andlor elicited in this case and based upon a reasonable degree
of professional and scientific probability andlor certainty. Plaintiff reserves the right to
supplement andlor amend this expert witness designation as discovery continues and additional
facts and evidence have been learned and produced.
PLAINTIFF'S TEX. R. elv. P. 194.2(F) EXPERT WITNESS DESIGNATIONS PAGE 15 oF20
MANDAMUS RECORD - TAB 5
II.
II. UNRETAINED TESTIFYING EXPERTS
UNRETAINED
Plaintiff hereby designates the following individuals as "unretained testifying experts" as
Plaintiff as
these individuals
these individuals are
are not retained by,
not retained employed by,
by, employed by, or otherwise
otherwise subject to the control
subject to control of
of
TEX. R.
Plaintiff. See TEX. Civ. P.
R.elY. P. 194.2(f)(3).
Detective Katie Spencer
Detective Katie Spencer—(972)
Spencer-(972) 450-7100, c/o Addison Police Department, 4799 Airport
Parkway,
Parkway, Addison,
Addison, Texas
Texas 75001-is
75001—is a detective with the Addison Police Department. Detective
Spencer investigated
Spencer investigated the
the rape
rape of
of Plaintiff such
such that,
that, in addition to testifying
addition to testifying with respect
respect to her
expertise
expertise in
in criminal
criminal investigations
investigations and
and criminal
criminal conduct
conduct in
in Addison,
Addison, Texas
Texas (of
(of this
this case
case and
other
other criminal
criminal cases
cases in
in Addison,
Addison, Texas
Texas from
from 2005
2005 to
to the present)—Detective Spencer isis also
present)-Detect ive Spencer also a
percipient witness
witness of
of the
the circumstances surrounding
surrounding the
the sexual
sexual assault
assault on Plaintiff
Plaintiff and
and the
the lack
lack of
of
security
security and
and safety
safety measures
measures in
in place
place at
at the Hyatt House
the Hyatt House hotel
hotel on April 26, 2011.
2011. Documents
Documents
reflecting
reflecting Detective
Detective Spencer's
Spencer's investigation
investigationof
of the
the sexual
sexual assault
assault of Plaintiff have previously
previously
been
been produced
produced to
to Defendants.
Defendants. Plaintiff
Plaintiff reserves
reserves the
the right
right to
to supplement
supplement and/or
and/or amend
amend this
this expert
expert
witness
witness designation
designation as
as discovery
discovery continues
continues and
and additional
additional facts
facts and
and evidence
evidence have
have been learned
and
and produced.
produced.
Officer
Officer Isaac
Isaac Gloger
Gloger
Officer
Officer Isaac
Isaac Gloger-(972)
Gloger (972) 450-7100,
450-7100, c/o
do Addison
Addison Police
Police Department, 4799 Airport
Department, 4799 Airport
Parkway,
Parkway,Addison,
Addison,Texas
Texas75001-is
75001—isaa police
police officer
officer with
with the
the Addison
Addison Police
Police Department.
Department.
Officer
OfficerGloger
Glogerwas
wasthe
thearresting
arrestingofficer
officerof
of Defendant
DefendantDeari
Dearion
on April
April 26,
26, 2011
2011 and
and interviewed
interviewed
Defendant
DefendantDeari
Deariatatthe
thecrime
crimescene
scenewhere
wherePlaintiff
Plaintiffwas
wasraped
rapedsuch
suchthat,
that,in
in addition
addition to
to testifying
testifying
with
withrespect
respecttotohis
his expertise
expertise in
in criminal
criminal investigations
investigations and
and criminal
criminal conduct
conduct in
in Addison,
Addison, Texas
Texas
(of
(ofthis
this case
case and
and other
other criminal
criminal cases
cases in
in Addison,
Addison, Texas
Texas from
from 2005
2005 to
to the
the present)-
present)— Officer
Officer
PLAINTIFF'S
PLAINTIFF'STEX.
TEX.R.R.elv.
CIV.P.P.194.2(F)
194.2(F)EXPERT
EXPERTWITNESS
WITNESSDESIGNATIONS
DESIGNATIONS 16 OF 20
PAGE160F20
PAGE
MANDAMUS RECORD - TAB 5
Gloger is also a percipient witness of the evidence and circumstances surrounding the sexual
assault on Plaintiff and the lack of security and safety measures in place at the Hyatt House hotel
on April 26, 2011. Documents reflecting Officer Gloger's investigation of the sexual assault of
Plaintiff have previously been produced to Defendants. Plaintiff reserves the right to supplement
and/or amend this expert witness designation as discovery continues and additional facts and
evidence have been learned and produced.
Mr. Kenneth Sherman
Mr. Kenneth Sherman-(817) 652-5912, c/o Arlington Regional Office of Texas
Alcoholic Beverage Commission, 2225 East Randol Mill Road, Suite 200, Arlington, Texas
76011-is a licensed peace officer in the State of Texas and is employed by the Texas Alcoholic
Beverage Commission as an Enforcement Agent. Mr. Sherman investigated the violations of the
Texas Alcoholic and Beverage Code committed by Pastazios Pizza, Inc., as well as photographed
the "common area" shared between Post and Pastazios Pizza on which Plaintiff became
obviously intoxicated, as well as interviewed Plaintiff, Defendant Deari, and Defendant Kreka.
Mr. Sherman may testify as to his personal knowledge of the facts of this case (including his
investigation), as well as based upon his skill, knowledge, education, experience, and training as
to criminal and administrative investigations and violations of the Texas Alcoholic Beverage
Code (in this case and other cases in Addison, Texas from 2005 to the present), the standard of
care required of a business that knowingly and intentionally leaves its property open for the
public to consume alcoholic beverages on, the Texas Alcoholic Beverage Code (in general and
as applied to this case), and the incidence of intoxicated minors in general, and those subject to a
criminal attack, in the Addison, Texas area from 2005 to the present (including the resulting
damages that arise therefrom). Documents reflecting Mr. Sherman's investigation related to this
PLAINTIFF'S TEX. R. elv. P. 194.2(F) EXPERT WITNESS DESIGNATIONS PAGE 17 oF20
MANDAMUS RECORD - TAB 5
case have
case have previously
previously been produced
produced to
to Defendants.
Defendants. Plaintiff
Plaintiff reserves the right
right to
to supplement
supplement
and/or amend this expert
and/or expert witness
witness designation
designation as
as discovery
discovery continues
continues and additional
additional facts
facts and
and
evidence have been learned and produced.
Dr. Allison Jeanne Brooks-Heinzman,
Brooks-Heinzman, M.D.
Jeanne Brooks-Heinzman,
Dr. Allison Jeanne Brooks-Heinzman, M.D.—(512)
M.D.-(512) 324-9650,
324-9650, 313
313 E. 12th
1ih Street
Street #101,
#101,
Austin, Texas
Austin, Texas 78701-is
78701—is a medical doctor who
who is board
board certified in obstetrics
obstetrics and
and gynecology.
gynecology.
Dr. Brooks-Heinzman
Dr. Brooks-Heinzman was
was Plaintiffs
Plaintiff's treating
treating physician
physicianon
onthe
the night
night of April
April 26, 2011
2011 after
after
Plaintiff
Plaintiff was sexually assaulted
was sexually assaulted at Hyatt House
at the Hyatt House hotel
hotel and
and subsequently
subsequently transferred
transferred to
Parkland
Parkland Hospital
Hospital for testing, treatment,
for testing, treatment, and evaluation.
evaluation. Dr. Brooks-Heinzman
Brooks-Heinzman may testify—
testify-
based upon her perceptions and skill, knowledge, education, experience, and training—about
education, experience, training-about her
treatment
treatment of
of Plaintiff (including
(including the
the results
results of
of any
any tests
tests conducted
conducted during,
during, or
or as
as a result of, said
treatment),
treatment), Plaintiff
Plaintiff'ss physical,
physical, mental,
mental, physiological,
physiological, and
and psychological
psychological condition
condition of the night
of April
April 26, 2011, obstetrics
obstetrics and gynecology
gynecology in general,
general, and the physical,
physical, emotional,
emotional, mental,
mental,
social,
social, and
and biological
biological effects
effects and
and trauma
trauma associated
associated with
with rape
rape victims
victims and
and rape
rape victims
victims who
who are
are
infected
infected with
with an
an incurable
incurable sexually
sexually transmitted
transmitted disease
disease during
during the
the course
course of
of the
the rape.
rape. Documents
Documents
(as
(as well
well as an executed
executed HIPAA
HIPAA authorization)
authorization) reflecting
reflecting Dr.
Dr. Brooks-Heinzman'
Brooks-Heinzman's treatment of
s treatment of
Plaintiff
Plaintiff in
in this
this case
case have
have previously
previously been
been produced
produced to
to Defendants.
Defendants. Plaintiff
Plaintiff reserves
reserves the
the right
right to
to
supplement
supplement and/or
and/or amend
amend this
this expert
expert witness
witness designation
designation as
as discovery
discovery continues
continues and additional
additional
facts
facts and
and evidence
evidence have
have been
been learned
learned and
and produced.
produced.
Dr. Dustin
Dr. Dustin B.
B. Manders,
Manders, M.D.
M.D.
Dr.
Dr. Dustin
Dustin B.
B. Manders, M.D.-(214) 648-3639,
Manders, M.D.—(214) 648-3639, c/o
c/o University
University of Texas
Texas Southwestern,
Southwestern,
5323
5323 Harry
Harry Hines
Hines Boulevard,
Boulevard, Dallas,
Dallas, Texas
Texas 75390-is
75390 is aa medical
medical doctor
doctor who
who isis board
board certified
certified in
in
obstetrics
obstetricsand
andgynecology.
gynecology.Dr.
Dr.Manders
Manderswas
wasPlaintiffs
Plaintiff's treating
treatingphysician
physician on
on May
May 6,
6, 2011
2011 when
when
PLAINTIFF'S
PLAINTIFF'S TEX.
TEX. R.
R. elv.
CIV. P.
P. 194.2(F)
194.2(F) EXPERT
EXPERT WITNESS
WITNESSDESIGNATIONS
DESIGNATIONS PAGE18
PAGE 18oF20
OF 20
MANDAMUS RECORD - TAB 5
Plaintiff returned to Parkland Hospital with a "chief
Plaintiff "chief complaint" that "it
"it feels
feels like
like someone
someone hit
hit me
me
crotch with aa hammer
in the crotch hammer covered
covered in
in razors."
razors." Dr.
Dr. Manders
Manders diagnosed
diagnosed subsequently
subsequently diagnosed
diagnosed
Plaintiff with
Plaintiff "primary outbreak"
with a "primary outbreak" of
of herpes.
herpes. Dr.
Dr. Manders
Manders may
may testify—based
testify-based upon
upon his
his
perceptions and skill, knowledge,
perceptions knowledge, education,
education, experience,
experience, and training—about
training-about his treatment of
of
Plaintiff (including
(including the
the results
results of any tests conducted
conducted during,
during, or as a result
result of,
of, said
said treatment),
treatment),
Plaintiff s physical,
Plaintiff's physical, mental,
mental, physiological,
physiological, and
and psychological
psychologicalcondition
conditionon
on May
May 6,
6, 2011,
2011,
obstetrics and gynecology in general, the generally accepted incubation period from exposure to
outbreak of the herpes virus, and the physical,
outbreak physical, emotional,
emotional, mental, social, and biological
biological effects
and
and trauma
trauma associated
associated with
with rape
rape victims
victims and
and rape victims who
rape victims who are infected
infected with an
an incurable
incurable
sexually transmitted
sexually transmitted disease
disease during
during the
the course
course of
of the
the rape.
rape. Documents
Documents (as
(as well
well as an executed
executed
HIPAA authorization)
authorization) reflecting
reflecting Dr.
Dr. Manders's
Manders's treatment of Plaintiff in this case have previously
been produced to
to Defendants.
Defendants. Plaintiff reserves
reserves the
the right
right to
to supplement andlor
and/or amend this
this expert
witness
witness designation
designation as
as discovery
discovery continues
continues and
and additional
additional facts
facts and evidence
evidence have been learned
and produced.
produced.
III. ATTORNEYS'
ATTORNEYS'FEES
FEESEXPERTS
EXPERTS
Eric
Eric Policastro
Policastro and
and Tom
Tom H. Crawford 111-(214)
H. Crawford III (214) 855-6800,
855-6800, c/o
c/o Gruber
Gruber Hurst Johansen
Johansen
Hail
Hail Shank
Shank LLP, 1445 Ross
LLP, 1445 Avenue, Suite
Ross Avenue, Suite 2500,
2500, Dallas,
Dallas, Texas
Texas 75202—are the attorneys
75202-are the for
attorneys for
Plaintiff
Plaintiff and
and expect
expect to
to testify
testify to
to the
the reasonable
reasonable and
and necessary
necessary attorneys'
attorneys' fees
fees for
for the
the prosecution
prosecution
of
of Plaintiff
Plaintiff'ss claims
claims against
against Defendants.
Defendants. Plaintiff s attorneys
Plaintiff's attorneys expect
expect to
to testify
testify that
that the
the attorneys'
attorneys'
fees
fees incurred
incurred by
by Plaintiff
Plaintiff in
in this
this litigation
litigation were
were reasonable
reasonable and
and necessary
necessary for
for the
the prosecution
prosecution of
of
her
her claims
claims against
against Defendants.
Defendants.They
Theywill
willtestify
testifythat
thatthe
thetotal
totalfees
feesas
as well
well as
as the
the hourly
hourly rates
rates
charged
chargedby
by Plaintiffs
Plaintiff's counsel
counsel were
were reasonable
reasonable in
in the
the State
State of
of Texas
Texas as
as well
well as
as in
in Dallas
Dallas County,
County,
specifically.
specifically. They
They will
willtestify
testify based
based on
on their
their education,
education, skill,
skill, knowledge,
knowledge, training,
training, and
and experience
experience
PLAINTIFF'S
PLAINTIFF'S TEX.
TEX. R.
R. elv.
CIV. P.
P. 194.2(F)
194.2(F) EXPERT
EXPERT WITNESS
WITNESSDESIGNATIONS
DESIGNATIONS PAGE190F20
PAGE 19 OF 20
MANDAMUS RECORD - TAB 5
in the practice of law as licensed attorneys in the State of Texas, their knowledge about this case,
and upon a review of the fee statements reflecting the fees incurred by Plaintiff. Plaintiff s
attorneys will further testify as to the reasonable and necessary attorneys' fees likely to be
incurred by Plaintiff in the event that a jury verdict is appealed to the Court of Appeals and/or the
Texas Supreme Court, as well as the total number of hours worked in this matter and will offer
an opinion as to the total reasonable fee for said necessary work. Plaintiff s attorneys are familiar
with all of the pleadings and discovery transmitted by the parties in this case Plaintiff s
attorneys' resumes can be found at http://www.ghjhlaw.com/. Plaintiff reserves the right to
supplement and/or amend this expert witness designation as discovery continues and additional
facts and evidence have been learned and produced.
PLAINTIFF'S TEX. R. elv. P. 194.2(F) EXPERT WITNESS DESIGNATIONS PAGE200F20
MANDAMUS RECORD - TAB 5
EXHIBIT A
MANDAMUS RECORD - TAB 5
CLAIRE E. BRENNER, M.D.
2241 Peggy Lane, Suite E.
Garland, Texas 75042
972-494-1155 (W) 972-494-6572 (F) 214-507-8339 (M)
PRESENT POSITION INFECTIOUS DISEASE PHYSICIAN
FOUNDING PHYSICIAN OF CLAIRE BRENNER, M.D., P.A. - 2004
MEDICAL DIRECTOR OF INFECTION CONTROL - BAYLOR GARLAND HOSPITAL- 2003
BAYLOR GARLAND WOUND CARE CLINIC - 2006
PREVIOUS POSITION NORTH TEXAS INFECTIOUS DISEASE CONSULTANTS - 8/1/2001-1/20/2004
HOSPITAL PRIVILEGES Baylor of Garland Medical Center, Garland, TX 2001-present
Lake Pointe Medical Center, Rowlett, TX 2008-present
Presbyterian Hospital of Rockwall, Rockwall, TX 2008-present
Forest Park Medical Center, Dallas, TX 2010-present
Kindred Hospital of Dallas, Dallas, TX 2013-present
Methodist Hospital for Surgery, Addison, TX 2012-present
Methodist Richardson Medical Center, Richardson, TX 2013-present
EDUCATION
1996 M.D. University of Texas Southwestern Medical School - Dallas, Texas
1991 B.S. University of Texas at San Antonio, Major: Biology
POSTGRADUATE TRAINING
1999-2001 Infectious Diseases Fellowship, Barnes Jewish Hospital,
Washington University School of Medicine, St. Louis, Missouri
1997-1999 Residency, Depart. of Internal Medicine, Barnes Jewish Hospital,
Washington University School of Medicine, St. Louis, Missouri
1996-1997 Internship, Depart. of Internal Medicine, Barnes Jewish Hospital,
Washington University School of Medicine, St. Louis, Missouri
MEDICAL LICENSURE AND BOARD CERTIFICATION
Board Certified, Infectious Disease - October 2001; Recertification-, Infectious Disease - 2012
Board Certified, Internal Medicine - August 1999 - Certificate # 1945635; Recertification, Internal Medicine -1999
Certification of Attendance Principles of Wound Healing and Hyperbaric Medicine - 2006
Texas Medical License - #L1533
United States Medical Licensing Exam - July 1998
HONORS AND AWARDS
Medical School Class Rank: Top 20%
Southwestern Medical Foundation Scholarship, 1992
PROFESSIONAL SOCIETIES AND ORGANIZATIONS
Infectious Diseases Society of America - 2000
Society of Hospital Epidemiology - 2003
TEACHING EXPERIENCE
Histology Course Teaching Assistant, University of Texas Southwestern Medical School- 1995
Baylor Garland Family Practice Residence/Infectious Disease Rotation - 2004-present
Podiatric Residency Program/Infectious Disease Rotation - 2007-present
MANDAMUS RECORD - TAB 5
ABSTRACTS
1) Warren RQ, Brenner CE, Holf H., Kanda P., Boswell RN, Kennedy RC. Characterization of longitudinal sera
samples from HIV-1 infected individuals for antibodies reactive to gp160 synthetic peptides International
Conference on Advances in AIDS Vaccine Development: Third Annual Meeting of the National Cooperative
Vaccine Development Groups for AIDS, Clearwater, Florida. 1990.
2) Warren RQ, Holf H., Nkya WM, Brenner CE, Anderson SA, Boswell RN, Kanda P., Kennedy RC. Comparison of
antibody specificities to HIV-1 gp160 epitopes defined by synthetic peptides in sera from infected individuals
from Tanzania and the United States. International Conference on Advances in AIDS Vaccine Development:
Third Annual Meeting of the National Cooperative Vaccine Development Groups for AIDS. Clearwater,
Florida. 1990.
3) Shao JF, Holf H., Warren RQ, Brenner CE, Kennedy RC. Reactivity of HIV-1lnfected Individuals from Tanzania
with an Immunodominant B-Cell Epitope on gp41. International Conference on Advances in AIDS Vaccine
Development: Thirds Annual Meeting of the National Cooperative Vaccine Development Groups for AIDS.
Clearwater, Florida. 1990.
4) Nkya WM, Warren RQ, Holf H., Brenner CE, Tesha J., Kanda P., Kennedy RC. Fine Specificity of the Humeral
Immune Response to HIV-1 gp160 in HIV-1 infected individuals from Tanzania. Fifth International Conference
on AIDS in Africa. Kinshasha, Zaire. 1990.
5) Warren RQ, Holf H., Brenner CE, Kanda P., Boswell RN, Kennedy RC. Decline in Antibody Reactivity to specific
HIV-1 gp160 epitopes in associated with CD4+ cell levels below 200/mm in infected individuals. Conference
of the Federation of American Societies for Experimental Biology. 1991.
6) Hollingsworth RE, Brenner CE, Zhu X-L, Lee WHo Regulation of the RB Protein by the CDC2 cell cycle kinase.
The Symposium on Cancer Research. San Antonio, Texas. 1992.
RESEARCH EXPERIENCE
1) Mapping the Antibody Reactivity to Human Immunodeficiency Virus Envelope Antigens in Infected
Individuals, University of Texas at San Antonio, 1990
2) Preparation of Boc-threonine-4-oxymethyD-phenylacetic acid for use as a linker in solid phase peptide
synthesis, University of Texas at San Antonio, 1991
3) Institute of Biotechnology, worked on DNA sequencing of tumor suppressor genes as a full-time research
assistant with Dr. Wen-Hwa Lee, San Antonio, Texas 1989-1991
4) Southwest Foundation for Biomedical Research, studied the Humeral Immune Response to HIV with Dr.
Ronald Kennedy, San Antonio, Texas 1991
5) BMS Protocol A1455-135 ZEST QDAY-Phase IIIB, Open Label, Randomized, Multicenter Study Switching HIV-1
Infected Subjects with a Viral Load of <50 copies/ml on a BID Regimen or More Frequent Initial HAART
Regimen to a Once Daily Regimen Including Stavudine XR, Lamivudine and Efavirenz. 2002
MANDAMUS RECORD - TAB 5
EXHIBITB
MANDAMUS RECORD - TAB 5
CURRICULUM
CURR.ICULUM VITA
JOHN A.
JOHN HARRIS, CPP, PSP
A. HARRIS,CPP"
THGPREMISES
THG PREMISESLIABILITY CONSl)LTANTS, LLC
LIABILITY CONSULTANTS, LLC
1170
11 70 PEACHTREE STREET NE
PI;:ACHTREE. STREET NE
SUITE 1200
1200
ATLANTA, GA 30309
GA30309
404.888.0060
www. thgconsulLcom
www.thgconsult.com
John multi~disciplined background is the basis of his cornprehensiVe
John Harris' multi-disciplined comprehensive approach to
liabilitycor1sulting.
premises liability Mr. Harris is board certmed
consulting. Mr. certified in security management (CPP)
(CP P)
and physical security (PSP) and is also a retired
retired. Certified Public Accountant (CPA),
(CPA). He
holds an M.S,
M;S. degree in real
real estate and a B.S. degree in accounting,
accounting.
Mr. Harris;
Mr. received his>
Harris received his first experience in physical when he was training to
physical security when
become a commissioned officer
officer'in
in the United States Marine Corps.
Corps.
conducted over t1,200
He has conducted ,200 security risk assessments
assessments of premises
premises including
including .multi-
multi-
family,lbdging,
family, lodging, resorts,
resorts, casinO$,retail"offic
casinos, retail, office, medical and indUstrial
e, rneciic.aland industrial propertie$
properties located
located
in
in 43
43 states
states and
and in Puerto
Puerto Rico,
Rico, the
the Virgin
Virgin Islands, and Colombia,
Islands,andGolorn South America.
bia, South America.
Mr.
Mr. Hprris
Harris is
is eXperienced
experienced inin developing,implem
developing, implementing, managing and
entir1g, managing and maintaining
maintaining
physic~1
physical security
security programs
programs with
with personally-owned
personally-owned properties
properties as
as well
well as
as fiduciary
responSibility
responsibility asa
as a general
general partner
partner in
in realestateinv8stm
real estate investments and as
ents and as consultant
consultant to
to
developers,
developers, oWners,
owners, nianagers,
managers, and insurers of properties.
properties.
Mr.
Mr. Harris' body of knowledge and experience in in premises security, real, estate, and
re,al estate, and
accountihgcombin
accounting combined ed w.ith
with his
his forensic
forensic work
work in in mulU:'state
multi-statejurisdiotions
jurisdictions involving
involving varied
varied
types
types of
of premises
premises, each
each with
j with its
its own
own set
set of
of facts
facts and
and circumstances,
circumstances, is is the
thebasis
basis of
of his
his
specialized
specialized expertise
expertise in
in premises
premises security
security risk
risk identification
identification and
and liability
liability mitigation.
mitigation.
A
A court-qualified
court-qualified forensic
forensic security
security expert,
expert, John
John Harris
Harris consults
consults with
with defense
defense andand plaintiff
plaintiff
co 1.1 nsel in the civil dispute resohjtioll process reg~rding
counsel in the civil dispute resolution prooess regarding premises
premises liability
liability related
related to
to
negligence
negligence and and third
third party
party criminal
criminal 'acts
acts such
such as assault,
assault, homicide,
homicide, kidnapping,
kidnapping, rape
rape and
and
robbery.
robbery.
AREAS
AREAS OF EXPERTISE
EXPERTISE
Adequacy
Adequacy ofof security
security
Negligent
Negligent hiring)
hiring,retention
retention and
and supervision
supervision
Workplace
Workplaceviol.ence
violence
January
January15,
15,.2014
2014 JAH CV
JABCV
Page
Page 10f7
I. of 7
MANDAMUS RECORD - TAB 5
EDUCATION
EDUCATION
M.8,., Real
M.S., Real. Estate.
E$tate
B.S., AcooOhting
B.S., Accounting
CERTIFICATIONS
CERTIFICATIONS
Professipnal(CPP)
Certified Protection Professional
Board Certified in Security Management by by the Professional Certification Board
(PCB) of ASISASJS International, an ANSI accredited standards development
wOrldwide membership of over 38
organization with worldwide 38,000
1
security professionals. This
000 ,security
designationi$
designation is,:~cknowledgE!
acknowledgeddas as theseCllrity
the security profession's
profession's highest
highest recognition of
practitioners Who have
prc:tctit.ionets who hCiVe· demonstrated
demonstrated cornpetenqYi
competency in the areas of secllrity
n thea,reas security solutions
arid best business
and buslrless practices.
practices.. Requirements
Requirements for for certification:
certification: passage
passage Of
of a written
awritteri
exam,
exam, bachelor's degree from an an accredited
accredited university and seven
seven years of security
experience; Continuing education required
experience. required for recertification.
recertification. Certified through 2014.
PhYsical Security Professional (PSP)
Physical
Board
Board Certif'ied
Certified in
in Physical
Physical Security byby the
the Professional
Professional Certification
Certification Board
Board (PCB) of
ASIS International.
ASIS International. This technical deSignation is
designation is awarded
awarded to to those
those individuals Whose
whose
primary
primary responsibilitie
responsibilitiess'areto.condu
are to conduct physical security
ct physical security surveys,
surveys, design integrated
sepurity
security systems
systems ,and
and who h:ave
have demonstrated
dernonstrated in-depth
in-depth op,erations
operations knowledge andand
competence in this area. R~quiretnel1ts
competence in this area. Requirements for for certifici3tjon:
certification: passage of a writtetiexam
written exam
and
and five
five years'experie
years' experiencence in
in physical
physical security.
security. Continuing
Continuing education
education required
required for
for
recertification. Certified through
recertification. Certified through 2015.
2015.
c~rtifi~d
Certified Public
Public Accountant (CPA)
(CPA)
Retired-Geor
Retired — Georgiagia OPA008884
CPA008884
ReqUirements
Requirements for for certificatioh:p as'suhiformCP
certification: pass uniform CPA examination,, hold
A;examination hold baccalaureate
baccalaureate
degree
degreefrom
from an accredited university
an'accredited with aa concentration
university with concentration in
in accounting
accounting orat
of at least
least
30
30 quarter or 20
quarter or 20 semester
semester hours-,
hours, and.
and, aa two
two year
year or
or 4000
4000 hours
hours ofof continuous
continuous
experienoe
experience inin public
public accounting.
accounting, Continuing
Continuing education
education required
required for
for maintaining
maintaining
license.
license.
PUBLICATION
PUBLICATIONS S && PRESENTATI
PRESENTATIONS O~S
"Findinga
"Finding a RemedY'for
Remedy for Renters",
Renters", TRIAL magazinepublished
TRIAL magazine published by
bythe
the Association
Association
of
of Trial
Trial Lawyers
Lawyers ofof America
America CATLA).
(ATLA).TheThe article
article addressed
addressedpremises
premises liability
liability
issues
issues inin multi-family
multi-family residential
residential properties.
properties.(December20
(December 2002)02)
Appeared
Appeared on
onthe NBC's TOday
the NBC's showsegment
Today show segment on
on hotel
hotel thefts
thefts(2007)
(2007)
Presentation
Presentation"Using
"Using Experts
Experts inin SexualAssau
Sexual Assault Cases"ATLAannualc
lt (}ases" ATLA annual onvention
convention
InadequafeSe curity Litigation
Inadequate Security LitigationGroup
GroupandSchools:V
and Schools: Violence, Misconduct, and
iblence, Misconduct, and
Safety
SafetyLitigation
LitigationGroup,
Group, 'Seattle,
Seattle,WA
WA (July
(July2006)
2006)
Jahuary15,
January 15,,2014
2014 JAH CV
JAHCV
Page2.of7
Page 2 of 7
MANDAMUS RECORD - TAB 5
Speaker "Unique
Speaker "Unique Issues
Issues in
in Apartment. Cases", The National Crime
Apartment Security Gases", Crime
Victim Bar
Victim Bar Association
AssOCiation national
national conference
conference on
on Civil Actions for Criminal
Criminal Acts,
DC (May 2006)
Washington, DC
Instructor on premises liability
Instructor liability at an ASIS security seminar
atan.ASISsecurity seminar in
in Los
Los Angeles, CA
CA
(2004)
(2004)
Designated 'instructor
Designated instructor for the premises liability
liability section
s.ection of the ASIS International
International
Physical Security Council
Physical C.ouncil professional
professionaJ development program, "Managing Your Ybur
PhYsical Security", Toronto, Canada (2003)
Physical .
Guest lecturer on premises liability
liability at the. Georgia
at the Georgia State
State University Department of
Justice, Atlanta,GA~.
Criminal Justice, Atlanta, GA. (2003)
fot a Dateline NBC segment on hotel security (2003)
Security consultant for
Interviews:
Security issues in lodging facilities fqr20120ABC
for 20/20 ABC (2002)
(2002)
Parking lot crimes at "big-box retailers" for ABC's Good Morning America
20120 (2000)
and 20/20 (2000)
Security at hotels/motels
hotels/motels,,haveheen
have been published, in several
published in several issues of the
Hotel Security Report
PROFESS.IONALM~ IVIBERSHIPS
PROFESSIONAL MEMBERSHIPS
American Institute of
Arnericanlnstitute of Certified Public Accountants (AICPA)
PubHcAccounfants (AICPA)
ASIS International (formerly the
the American
American Society
Society for
for Industrial
Industrial Security
Security
International)
International)
PREVIOUS
PREVIOUS PROFESSIONAL
PROFESSIONAL MEMBERSHIPS
MEMBERSHIPS
Commercial Real
Commercial Real EstateCounciljAS
Estate Council, ASIS International
ISlnternafional
Physical
Physical Security
Security Council,
Council, .EducationQ.ommit
Education Committee, ASIS Internationql
tee, ASIS International
Editorial
Editorial Advisoty
Advisory Board
Board ofof the
the Hotel/Casino/Reso
Hotel/Casino/Resort Security Report
rt Security Report and
and the
the
School
School Security
Security Report,
Report, published
published byby Rusting
Rusting Publications,
Publications, Westbury,
Westbury, NY
NY
American
American Hotel
Hotel and
and Lodging
Lodging Association
Association
Atlanta
Atlanta Apartment
Apartment Association
Association
National
NationalApartment
Apartment Association
Association
January15,
January 15,.2014
2014 JAH CV
JAHCV
Page
PageJof7
3 of 7
MANDAMUS RECORD - TAB 5
CURRENT POSITION
CURRENT POSITION
THGPREMISES
THG PREMiSES LIABILITY
LIABILITY CONSULTANTS,
CONSULTANTS, LLC(2000-Pre
LLC (2000—Present)
sent)
(LLC formation January 2014. Previously
(LLC Previously sole proprietor, The Harris Group)
Group)
Consults on premises
premisesliabiHty r~lated to risk identification and
liability issues related and liability
mitigation
mitigation
Audits premises security
security programs
programsfo(com
for compliance with security industry
pUance'with
standards, guidelines and best business practices
Cooducts securityri~kas
Conducts sessments
security risk assessments
Determines appropriate countermeasure
countermeasuress to be utilized in integrated security
plans
Performs forensic evaluations to ,draW
forensic evaHJationsto draw conclusions regarding
regarding, adequacy of
premises.'securi
premises securityty
Opines
Opines on
on findings
findings of forensic
forensic evaluations,
evaluations regarding
regarding threat
threat and
and vulnerabilities,
vulnerabilities,
reasonable
reasonable .care,
care, and
and causation
causation
Testifies
Testifies as
as aa forensic
forensic security
security expert
expert in
in civil
civil Htigation
litigation
PREVIOUS
PREVIOUS EXPERIENCE
EXPERIENCE
LARRVTALLEY
LARRY TALLEY &
& ASSOCIATES,
ASSOCIATES, iNC.,
INC., ASSOCIATE (1994-2000)
ASSOCIATE (1994-2000)
Conducted
Conducted prernisessecuri
premises security risk assessments
fy risk assessments
Determinecj
Determined appropriate
appropriate cqul)termeasure
countermeasures s
Analyzed
Analyzed crime
crime to
to made
made determinations
determinations re,garding
regarding foreseeability
foreseeability and
and produced
produced
demonstrative exhibits for
demonstrative exhibits for testimony
testimony and
and for
for exhibits
exhibitsto
to the
the record
record
Produ,ced
Produced vv()rkil1g
working papersfbr
papers fortestirnony
testimony and
and for
for exhibits
exhibits to
tothe
the record
record in
in support
support
of cOl1clusions
of conclusions regafdingstand
regarding standard of care and
ardofcare and caUsation
causation
Developed
Developed crime
crime analysis
analysis model
model
REITAAC,
REITRAC, PRINCIPAL ANDDIREctOR
PRINCiPAL AND DIRECTORpFANAL YTICS (1991~j994)
OF ANALYTICS (1991-1994)
Real
Real estate
estateinvestment trust (REIT)
investment trust (REIT)data
data and
and analyses
analyses for
forWall
Wall street
Street investment
investment
banking
bankingfirms.
firms.
Performanceindic~sdev~lop
performCince ~d for
indices developed forreal
realestate
estateinvestment
investmenttrusts
trusts(REITS)in
(REITS) in
cot)junctionWith
conjunction withthe
theWhartpl1
Wharton EcooometricFo
EconOmetric Forecasting Associates(WEFA),
recastihg Associates (WEFA),
Janmuy-15,
January 15,;2014
2014 JAT-1 CV
JAHCV
Page49f7
Page 4 of 7
MANDAMUS RECORD - TAB 5
BOO SEIDMAN,DIRECTOR.OF REAL ESTATE CONSULTING (1990-1991)
Portfolios of r~alestate valued in excess of$2~5 billion
AkiNS SECURITY, OPERATIONS Tr{OUBLESHOOTER(1989-1990)
Security serVices including security guards
DIVISION ROCKEFELLER'GROUP, REAL ES.TATE CONSULTANT'(1986-1989)
Portfolios ofoffic~ buildings; apartments i industrial Jacilities,mallsishopping
centers, and lodging facilities throughout the United States
EQUITY OWNER OF APARTMENTS (1979--1986)
FIR:;T PROPERTIES, SH~REHOLDER (1979-1~83)
Real estateinvestl11ehts in apartments
UNITED STATES MARINE CORPS (1969-19.75)
Active duty -··1.969 -1973
Attained the. rank of Captain
Awarded Certificate ofCbrnfnendation
RELATED TRAINING
U.S~Army Physical 'Security Field Manual, FM 19·30,. published February
1:9(35, Unit~d States Marine Corps officer training. Implemented, supervised j
maintained and monitored physical security pl~ns developed from this training.
Areas. of instruction and training included physical protection, perimeter barriers,
protective lighting, alarms, lock and key systems, guard force .selection, and
organization, training and supervision of guard force, vulnerability assessment,
physical security surveys, and investigation of breaches of physical security. The
principles of this military training form the foundation for physical security in the
pubJiCandprivate sectors.
Crime .Prevention thrqugh Environmental Design (C PTED) course at the
National Crime Prevention Institute, University of Louisville. The security concept
taught here is expressed as: "The proper design and effective use of the built
environment can lead toa reduction in the fear and incidence of predatory
strangertostranger crime, as wen as, an ·improvemenl of the quality of life" . Law
enforcemeht officers w6rl,dWide are sent tbthis program for security train ing~
Crime Free Multi-Housing program at the Albuquerque Police Department,
Albuquerque, NM. This nationally recognized program is the model for
communities. developing systems to reduce ilIegalactivityin rental property. It
acHnioistE3rs a. t~ree pha~eprogram.forcertification 'ofAPD Certifi$d Crime Free
Multi-Housing Designation for prbpertyowhers. This:program requires the
oWners td'implementasecurity training prograrn L receive CPTEDtraining,.and
establish a neighborhood watch training program. In addition, owners must meet
January-IS, 2014 JAHGV
Page 5,0[7
MANDAMUS RECORD - TAB 5
the following
the following requirements:
requirements: crime
crime free
free lease
lease addendurns,
addendums, tenant screening,
screening, and
and
criminal. backgro.und
criminal, background checks.
SECURITY COURSES
SPECIALIZED SECURITY
Protection Course I, II'and
Assets Protection In, aa.seriesof.security
II :aild III, series of security management
pr0S)rams
programs (2011, 2005)
2006)
Assets·Protection
Assets Protection Course I, Concepts
Conoepts and and. Methods: Security Vulnerability,
Barriers, Locking
Barriers; Locking Concepts, Intrusion Ethic~,. Security
Intrusion Detection, Ethics, Security Lighting,
Lighting,
EmergehcyPlahning,
Emergency Planning, Security
Security Management, Security and the Law, Law,
Workplace Violence,
Violence\, Investigations,
Investigations, Deception Detection,
Detection,. OPTED, Access
CPTED,.Access
Control.
Assets Protection
PrQtectic;>nCourse
Course II, Practical Applications: Financial
Practic.aIApplioations: Financial F Forensic
oren?ic
Investigations for Asset Recovery,
Investigation$ R~isk Asse~smentand
Violence Risk
RecoVery, Violehce Assessment and
Intervention,. Interrogation Techniques, Executive Communication,
Intervention, Commuhication, Internal
Controls,
Controls, Organizational Development for Security Professionals;
Professionals, Critical
Success Strategies for New Leaders,
Leaders, Employment Law forthe for the Security
Professional, Information Security,
Security..
AssetsProtectiQn
Assets Protection Course III, Functional Management: How to Become a
Trusted
Trusted strategic
Strategic AdVisot,
Advisor, Strategy in in Action,
Action, Business Continuity,
Continuity, Standards,
Standards,
Crisis Management;
Management, Unleashing Potential, Unity and
Unleashing your Leadership Potential, and
Leadership.
Leadership.
Security Officer Management (2007)(200,7)
C.ontractSecurity:
Contract Security: Developing Decision~makihg Process,
Developing a Decision-making Workplace.
Proces.s, Workplace
ViOlence
Violence Planning
Planning and
and Response:
Response; Lessons
Lessons Learned from Vir~inia
Learned from Virginia Tech,
Tech,
Balanced~Liability and.
Contract Security: What's Fair and Balanced-Liability Insurance, Private
and Insurance, Private
Security IndUstry:
Industry; Trends
Trends and
and PerspectiV(3,
Perspective, ContraGt Security Standard~
Contract Security Standards andand
Guidelines:
Guidelines: Application
Application and
and .GornpHahce,
Compliance , Comparing
Comparing Apples
Apples to
to Apples:
Apples:
Understanding
Understanding the
the Pros
Pros an'dConsofOutsourci
and Cons of Outsourcing, Contract Measurem·ent,
n9; Contract Measurement,
Performance,..based
Performance-based Contracts,
Contracts, and·
and Other
Other Quality Measurements,
Measurements, Contracts:
Contracts:
Sharing Risk and Protectin~
Sharing Riskand Protecting Your
Your Business,.
Business, RFPs:
RFPs: Developing
Developing Practical
Practical
BUsin~ssT()ols
Business Tools that
that vvork
Work ,A
, A Legal Prospective:
Prospective: HoW
How To Manage a Cohtract
To Manage Contract
Security
Security Relationship
Relationship With
With aa Customer
Customer
CCTV:
CCTV: From
From ContractorstoCourtr
Contractors to CourtroomsoQms (2005)
(2005)
Using
Using GCTV
CCTV to mitigate threat~
to mitigate threats and
andvulnerabilities
vulnerabilities at
at facilities.
facilities. Working
Working
knowledge
knowledge bfthe
of the latest
latest equipment,
equipment, systems
systems,j and
and application
application technologies
technologies f()r
for
CCTV.
CCTV Assessing digital video
video applications and
and the
the selection
selection of of appropriate
appropriate
systems.
systems.
Physic~1
Physical SecuritY:Adv~nced
Security: Advanced Applications
Applications &
& Technology
Technology (2002)
(2002)
Understanding
Understanding ofof emerging trends ~nd
emerging trends and latest
latest technology
technology in
in control
control systems.
systems.
Integrating
Integrating physicalcomponents
physical:components,1 staff,
staff, and procedures for, cost effective
for cost effective
systems.
systems. Planning
Planning for
for perimeterbarriersyste
perimeter barrier systems. Screening processes
ms.Screening processes for
for
January
January15,
15,.2014
2014 JAU CV
JAHeV
Page
Page60f7
6 of 7
MANDAMUS RECORD - TAB 5
people, vehicles, and materials at sites. Operating systems, database
management and enhancements to security control systems.
Fa~nity SeclJrity Design (20Q2)
Ihstruction ih design bffully-integrated physical security programs.
Integration of mUltiple security syste.rns in layered effect including
environm'ental security, infrastructure protection, building designs,
interior/exterior layout, detections systems, structural barriers,access
controls, communications. and CCTV assessment
Physical Security: Technology Applications (2001)
security Risk and VUlnerability Assessment, Conducting a Site Survey,
IntrljSionAI.arms, Fire Alarms, Acce?s Control, CeTV, Physical aarriers and
Perimeter Protection, security Personnel, CPTED,Secllrity Lighting SecUrity
j
Litigation, security Engineering
January 15,2014 JAHeV
Page 70f7
MANDAMUS RECORD - TAB 5
EXHIBITC
MANDAMUS RECORD - TAB 5
RESUME Wednesday, February 1, 2013
Personal Information:
Name: William E. Flynn
Address: 100 Highland Park Village
Suite 200
Dallas, Texas 75205
Mobile: 214-202-7344
Fax: 214-902-1766
E-mail: weflynn@legalpsychologist.com
Academic History:
Internship: 1977-1978, Bureau of Prisons, Federal Correctional Institute,
Seagoville, Texas.
PhD: 1970; University of South Carolina, Columbia, South Carolina.
Psychology .
B.A: 1965; Wayne State University, Detroit, Michigan. Psychology.
Professional Experience:
1978-2012: Independent Practice of Forensic and Clinical Psychology;
Dallas, Texas.
1976-2012: Licensed Psychologist, Texas license #21400.
1999-2009: Consultant, Texas Department of Criminal justice, State
Council for Offenders, Huntsville, Texas.
1996-2002: Clinical Committee, Survivors of Torture, Dallas, Texas.
1978-1980: Clinical Director of Psychology, Metroplex Clinics;
Richardson, Texas.
1977 -1978: Clinical and Research Psychologist, Bureau of Prisons,
Federal Correctional Institute, Seagoville, Texas.
1970-1978: Assistant Professor of Psychology, Department of Psychology,
Southern Methodist University, Dallas, Texas; Director of Graduate
Studies in Psychology.
1969-1970: Instructor, School of Nursing, University of South Carolina,
and Columbia, South Carolina.
1968-1970: Research Fellow, V.A. Hospital; Columbia, South Carolina.
1966-1967: Alcohol abuse counselor/research assistant, Georgia
Department of Mental Health; Atlanta, Georgia.
1963-1965: Research Associate, Department of Otology, Henry Ford
Hospital; Detroit, Michigan.
Memberships:
American Psychological Association
National Academy of Neuropsychology
American Association of Correctional Psychology
MANDAMUS RECORD - TAB 5
EXHIBITD
MANDAMUS RECORD - TAB 5
.Joe G. Gonzales
MD, FAAPMR, CLCP
BIOGRAPH Y
BIOGRAPHY
Dr.
Dr. Joe
Joe G.
G. Gonzales
Gonzales is a Physical
Physical Medicine
Medicine & Rehabilitation
Rehabilitation,, Pain
Medicine,
Medicine, and
and Occupational && Environmenta
Environmentall Medicine
Medicine specialist who
has practiced Medicine
Medicine in
in Texas
Texas since
since 1985.
He
He is
is the President
President of
of the
theTexas
TexasPhysical
PhysicalMedicine
Medicine && Rehabilitation
Rehabilitation
Institute, and
and the
theFounder
FounderandandMedical
MedicalDirector
Directorof
ofPhysician
Physician Life
Life
Care Planning,
Planning, LLC.
LLC.
Dr.
Dr. Gonzales
Gonzalesisisaa licensed
licensedphysician
physicianininthe
theState
State of
of Texas;
Texas; he is
is
certified
certified by the
the American
American Academy
Academy ofof Physical
Physical Medicine
Medicine &
Rehabilitation
Rehabilitation,, the
the American
American Board
Board of
of Pain
Pain Medicine,
Medicine,and
and the
the
American
American College
College ofof Occupational
Occupational & Environmentall Medicine.
& Environmenta Medicine.
Dr.
Dr. Gonzales
Gonzales isis aa Diplomat
Diplomat of
of the
the American Academy of Pain Pain
Management,
Management, aa Designated Physician of
Designated Physician of the
the Texas
Texas Workers'
Workers'
Compensation
Compensation Commission,
Commission, and
and a Certified LifeCare
Certified Life CarePlanner
Planner as
as
designated the Commission
designated by the Commission on Health CareCare Certification.
Certification.
His
Hisprofessional
professional affiliations
affiliations include
include the
the American
American Medical Association,
Medical Association,
the
the Texas Medical
Medical Association,
Association, thethe Texas Physical
Physical Medicine
Medicine &&
Rehabilitation
Rehabilitation Society,
Society, the
the American
American Academy of Physical
Physical Medicine &
Medicine &
Rehabilitation , the
Rehabilitation, the American
American Congress
Congress ofof Rehabilitation
Rehabilitation Medicine,
Medicine,the
the
American
AmericanCollege
CollegeofofOccupational
Occupational &&Environmenta
Environmental Medicine,the
l Medicine, the
Mexican
MexicanAmerican
AmericanPhysician's
Physician'sAssOCiation,
Association,the
theInternational
International Academy
Academy
of
of Life
LifeCare
CarePlanners,
Planners,and andthe
the International
International Association of
Association of
Rehabilitation .
Rehabilitation.
Dr.
Dr.Gonzales
Gonzalesearned
earned his
his M.D.
M.D. from
fromTexas
Texas Tech
Tech University's
University's Health
Health
Science
ScienceCenter,
Center, and
and his
his Bachelors
Bachelors of
of Health
Health Science
Sciencedegree
degree from
from
Baylor
BaylorCollege
Collegeof
of Medicine.
Medicine.
(f) PhysicianLife
()Physician Life Care
Care Planning
Planning
America's
America'sLeilding
Leading Ute Care
Life Planner
Care Planner
11550
11550IHIN10
10West
West
Suite
Suite375
375
San
SanAntonio,
Antonio,Texas
Texas78230
78230
Phone:
Phone:(210)
(210)501-0995
501-0995
email:
email:jgomd@physicia nLCP.com
jgomd@physicianLCP.com
Page11ofof11
Page
MANDAMUS RECORD - TAB 5
Joe G. Gonzales
oe G.F Gonzales
MD, FAAPMR,
FAAPMR, CLCP
CLCP
CURRICULUM VITAE
CURRICULUM SPECIAL TI ES
SPECIALTIES
Physical Medicine
Physical Medicine &
& Rehabilitation
Rehabilitation (Board Certified)
Pain Management (Board
Pain Management (Board Certified)
Certified)
Occupational & & Environmental Medicine (Board Certified)
Life Care Planner
Certified Life
EDUCATIONAL
EDUCATIONAL BACKGROUND
BACKGROUND
Texas Tech University
University Health
Health Science
Science Center
Degree: Doctor
DoctorOf
OfMedicine
Medicine
Lubbock,
Lubbock, Texas
1980-1984
Baylor
Baylor College
College of
of Medicine,
Medicine, Texas
Texas Medical
Medical Center
Center
Degree: Bachelor of Health
Health Science
Science Degree,
Physician
Physician Assistant Certification
Awards: Henry
Henry D.
D. McIntosh
McIntosh Award
Award for
for Clinical
Clinical Excellence
Houston,
Houston, Texas
1975-1977
Angelo
Angelo State
State University
Department of Nursing
Nursing
Degree:
Degree: Associate of Science &
& Nursing
Nursing (R.N.)
(R.N.)
San Angelo,
Angelo, Texas
Texas
1971-1973
1971-1973
San Angelo
Angelo School
School of Vocational
Vocational Nursing
Nursing
Degree: Diploma
Diploma && Certification
Certification (Licensed)
(Licensed)
San Angelo,
Angelo, Texas
Texas
1970-1971
1970-1971
POST GRADUATE TRAINING
POST GRADUATE TRAINING
Department
Department ofof Physical
Physical Medicine
Medicine &
& Rehabilitation
Rehabilitation
University
Universityof
ofTexasHealth
TexasHealth Science
Science Center
Center
Residency, Physical Medicine
Residency, Physical Medicine &
& Rehabilitation
Rehabilitation
San
San Antonio,
Antonio, Texas
Texas
1985
1985 -- 1988
1988
Department
Department of Family
Family Practice
Practice
Texas
Texas Tech
Tech University
University Health
HealthScience
Science Center
Center
(f) PhysicianLife
® Physician Life Care
Care Planning
Planning
America's
America'sLeading
LeadingUte
lifeCare
CarePlanner
Planner
Internship, Family Medicine
Internship, Family Medicine
Lubbock,
Lubbock,Texas
Texas
1984 — - 1985
1985
11550
11550 IH
IH 10
10 West
West
Suite
Suite 375
375
San
San Antonio,
Antonio,Texas
Texas 78230
78230
Phone:
Phone: (210)
(210) 501-0995
501-0995
email:
email: jgomd@physicianLCP.co
jgomd@physicianLCP.com m
Page 11 of
Page of 44
MANDAMUS RECORD - TAB 5
oe G. Gonzales
TJoe
MD, FAAPMR,
MD, FAAPMR, CLCP
CLCP
CURRICULU M VITAE
CURRICULUM LICENSES & CERTIFICATIONS
LICENSES & CERTIFICA TIONS
Texas Medical
Texas Medical License
License —
- Physician
Physician Permit
License Number:
License G8135
Number: G8135
Issued: August
August 1985
1985
Physical Medicine
American Board Physical Medicine &
& Rehabilitation
Board Certification
Certificate Number:
Certificate Number: 3039
Issued: May
May 1989
American Medicine
American Board of Pain Medicine
Board Certification
Issued: 1994
American
American College
College ofof Occupational &
& Environmental Medicine
Board
Board Certification
Status: Active
Active Member
Mem ber
Issued:
Issued: 1992
American
American Academy
Academy of
of Pain
Pain Management
Management
Diplomate
Diplomate
1992
Texas
Texas Workers' Compensation Commission
Commission
Approved
Approved Doctor List Certification
Certification
Issued: eRe-certified, 2009)
Issued: 2003 (Re-certified, 2009)
Texas
Texas Workers' Compensation Commission
Commission
Certificate,
Certificate, Maximum
MaximumMedical
MedicalImprovement
Improvement &&ASSignment
Assignmentof
ofImpairment
Impairment
Ratings
Ratings
Issued:
Issued: 2003
2003 eRe-certified,
(Re-certified, 2009)
2009)
Texas
Texas Workers' Compensation Commission
Commission
DeSignated
Designated Doctor List Certification
Certification
Issued:
Issued: 2003
2003 eRe-certified,
(Re-certified, 2009)
2009)
Commission
Commissionon on Health
Health Care
Care Certification
Certification
Certified
Certified Life
LifeCare
CarePlanner
Planner
Issued:
Issued: 2006
2006 eRe-certified,
(Re-certified, 2009)
2009)
The
The University
University of Florida & MediPro
Florida & MediPro Seminars,
Seminars, LLC
LLC
Post
Post Graduate
Graduate Course
Course Study in Life
Life Care
Care Planning
Planning
Certificate
Certificate of
of Completion
Completion
Issued:
Issued: 2006
2006
PROFESSIO NAL ASSOCIATI
PROFESSIONAL ASSOCIATIONS
ONS
American
American Medical
MedicalAssociation
Association
Texas
Texas Medical
MedicalAssociation
Association
Page22of
Page of44
MANDAMUS RECORD - TAB 5
Joe G. Gonzales
MD, FAAPMR, CLCP
CURRICULUM VITAE
CURRICULUM Medical Society
Bexar County Medical
Texas Physical
Physical Medicine
Medicine &
& Rehabilitation
Rehabilitation Society
American Academy of Physical Medicine & Rehabilitation
American
American Congress of Rehabilitation
Rehabilitation Medicine
Medicine
American
American College
College of Occupational & Environmental Medicine
Medicine
American Academy of Pain Management
American Management— - Diplomate
Mexican
Mexican American
American Hispanic
Hispanic Physician's
Physician's Association
International Academy
Academy of Life
Life Care
Care Planners
The International Academy
Academy of Life
Life Care
Care Planners
The International Association
Association of Rehabilitation
Rehabilitation Professionals
PROFESSION AL EXPERIENCE
PROFESSIONAL EXPERIENCE
Physician Life Care Panning ,, LLC
Physician Life LLC
Founder & Medical
Medical Director
San Antonio,
Antonio, Texas
Texas
2011
2011 -- Present
Texas Physical
Physical Medicine
Medicine &&Rehabilitation
RehabilitationInstitute
Institute
President
San Antonio,
Antonio, Texas
Texas
1998
1998 -- Present
Hyperbaric
Hyperbaric && Wound
Wound Care
Care Associates, P.A.
Associates, P.A.
President
President
San
San Antonio,
Antonio, Texas
Texas
2003
2003 -- 2006
2006
Christus
Christus Santa
Santa Rosa
Rosa Wound
Wound Care
Care and
and Hyperbaric
Hyperbaric Center
Center
Medical
Medical Director
Director
San
San Antonio,
Antonio, Texas
Texas
2004
2004 -- 2006
2006
South Texas PM&R
South Texas PM&R Group
Group
Founder
Founder & &Past
Past President
President
San
San Antonio,
Antonio,Texas
Texas
1987
1987 -- 1998
1998
Hyperbaric
HyperbaricOxygen,
Oxygen,Inc.
Inc.Total
TotalWound
WoundTreatment
TreatmentCenters
Centers
Corporate Medical Director
Corporate Medical Director
San
San Antonio,
Antonio, Texas
Texas
1995
1995 -- 2000
2000
Warm
Warm Springs
Springs && Baptist Rehabilitation
Rehabilitation Network
Network
Hyperbaric
Hyperbaric Medicine
Medicine&&Wound
WoundCare
CareCenter
Center
Medical
MedicalDirector
Director
San
San Antonio,
Antonio,Texas
Texas
1995
1995 -- 2000
2000
Page 33 of
Page of 44
MANDAMUS RECORD - TAB 5
Joe G. Gonzales
MD, FAAPMR, CLCP
CURRICULU M VITAE
CURRICULUM Warm Springs Rehabilitation Center
NW Clinic
NW Clinic&&System
System Outpatient Medical Director
Outpatient Medical
San Antonio,
Antonio, Texas
1994 - 1998
1994 1998
Rehabilitation Center
South Texas Rehabilitation
(San Antonio's
Antonio's first Comprehensive Outpatient
OutpatientPhysical
Physical Medicine
Medicine &
& Rehabilitation
Rehabilitation Center)
Development &
Development Medical Director
& Medical
Antonio, Texas
San Antonio,
1987 - 1993
Rehabilitation
Rehabilitation Institute of San
Institute of San Antonio
Antonio (RIOSA)
(RIOSA)
Medical
Medical Director, Physical Medicine
Director, Physical Medicine &
& Rehabilitation
Medical
Medical Director,
Director, Spinal
Spinal Cord
Cord Injury
Injury Rehabilitation
Rehabilitation Program
Medical
Medical Director,
Director, Orthopedic
Orthopedic Rehabilitation
Rehabilitation Program
San Antonio,
Antonio, Texas
1988 - 1993
1993
South Plains
Plains Rehabilitation
Rehabilitation Center
(Lubbock's
(Lubbock's first
first Comprehensive
Comprehensive Outpatient Physical
Physical Medicine
Medicine &
& Rehabilitation
Rehabilitation Center)
Center)
Associate & Active
Active Developer
Developer
Lubbock,
Lubbock, Texas
Texas
(This
(This Space
Space Left
Left Intentionally
Intentionally Blank)
Blank)
Page44of
Page of44
MANDAMUS RECORD - TAB 5
EXHIBITE
MANDAMUS RECORD - TAB 5
JOHN A SWIGER, PH.D.
411 S.W. 24th Street, San Antonio, Texas 78207
(210) 434-6711 ex2499 FAX: (210) 434-0821
cell: (210) 861-2772 home office 210-694-9111
jaswiger@ollusa.edu
CAREER HISTORY/ACADEMIC
2003 - Present Our Lady of the Lake University, San Antonio, Texas
Professor of Finance
1999 - 2006 Our Lady of the Lake University, San Antonio, Texas
Chairman of Accounting, Economics and Finance Department
1991 - 2003 Our Lady of the Lake University, San Antonio, Texas
Associate Professor of Finance
Taught graduate and undergraduate courses in Finance, Investments,
International Finance, Economics, Modem Banking and International
Business.
Received Tenure-1998
Summer 1991 University of Texas at Austin
Summer 1992 Senior Lecturer of Finance
Taught Investments in the MBA Program. Courses concentrated on
investment valuation and included a section on the economic valuation of
human life.
1976-1980 University of Texas, San Antonio, Texas
Assistant Professor of Finance
Taught courses in Capital Budgeting, Financial Management,
Investment Analysis and Portfolio Management.
PUBLICATIONS:
Swiger, J., Hammons, R., Robinett, S., and Winney, K., "Management of
Technological Change and Sustainable Economic Growth: Economic Factors
(2011) Management of Technological Changes: Proceedings of the 7th
International Conference on Management of Technolocial Changes,
September 1-3, Alexandroupolis, Greece.
Swiger, J., Hammons, R., Robinett, S., and Winney, K., "Management of
Technological Change and Sustainable Economic Growth: Economic Recovery
(2011) Management of Technological Changes: Proceedings of the 7th
International Conference on Management of Technolocial Changes,
September 1-3, Alexandroupolis, Greece.
MANDAMUS RECORD - TAB 5
Swiger, J., Winney, K., and Bender, B.," IFRS Convergence: A Crossroads For Post
Secondary Accounting Education Programs" (2010) Quality Management in Higher
Education: Proceedings of the 6th International Seminar on the Quality
Management in Higher Education (pp.). Tulcea, Romania.
Swiger, J. & Mudge, S. (2008). The Effect of Higher Education on Human Capital
Formation: A Multinational study. The International Journal ofLearning, 15(9),
227-236.
Swiger, J., Mudge, S., & Wise, S. (2008). U.S. and European Trends that Impact Human
Capital Formation through Higher Education, Part 1: Rising Enrollment and Rising
Costs of Higher Education. Quality Management in Higher Education:
Proceedings of the 5th International Seminar on the Quality Management in Higher
Education (pp.). Tulcea, Romania.
Swiger, J., Mudge, S., & Wise, S. (2008). U.S. and European Trends that Impact Human
capital Formation through Higher Education, Part 2: Human capital Formation
Through Higher Education. Quality Management in Higher Education:
Proceedings of the 5th International Seminar on the Quality Management in Higher
Education (pp.). Tulcea, Romania.
Swiger, J., Mudge, S., & Pennington, A. (2007). Combating Capital Flight Facilitated by
Illegal Money Laundering - Challenges and Strategies: Part I: Rising Incidence and
Excessive Costs. In N. Badea and C. Rusu (Eds.), Management of
Technological Changes: Proceedings of the 5th International Conference on the
Management of Technological Changes - Volume 1 (pp. 145-150).
Alexandroupolis, Greece: Democritus University of Thrace.
Swiger, J., Pennington, A., & Mudge, S. (2007). Combating Capital Flight Facilitated by
Illegal Money Laundering - Challenges and Strategies: Part II: Legislative and
Technological Responses. Management ofTechnological changes: Proceedings of
the 5th International Conference on the Management of Technological Changes -
Volume 1 (pp. 139-144). Alexandroupolis, Greece: Democritus University of
Thrace.
Swiger, John & Mudge, Susan, "Managing Trends That Impact Human Capital
Formation Through Higher Education, Part I: Rising Enrollment and Rising Costs
of Higher Education" Proceedings of the 4th International Seminar on the Quality
Management in Higher Education, held in Sinaia, Romania, June 9-10, 2006.
Swiger, John & Mudge, Susan, "Managing Trends That Impact Human Capital
Formation Through Higher Education, Part II: Preserving the Benefits of Human
Capital Formation" Proceedings of the 4th International Seminar on the Quality
Management in Higher Education, held in Sinaia, Romania, June 9-10, 2006.
Swiger, John & Maloney, Tim, "A Reexamination of the Value ofa Homemaker
Necessitated by Legal, Demographic and Business Changes and Trends-Part I"
Proceedings at the 4th Management of Technological Changes Conference in
Chaina, Crete, Greece, August 2005.
2
MANDAMUS RECORD - TAB 5
Swiger, John & Maloney, Tim, "A Reexamination of the Value of a Homemaker
Necessitated by Legal, Demographic and Business Changes and Trends-Part II"
Proceedings at the 4th Management of Technological Changes Conference in
Chaina, Crete, Greece, August 2005.
Swiger, John, & Krause, Kent C., "Analysis of the Department of Justice Regulations
for the September 11 th Victim Compensation Fund." Journal ofAir Law and
Commerce,67(1). (Winter 2002). Southern Methodist University School of Law.
Swiger, John, & Krause, Kent C., "Analysis of the Department of Justice
Regulations for the September 11 th Victim Compensation Fund."
Lawyer Pilots Bar Association Journal, XXIV No.1, Spring. 2002.
Swiger, John, & Krause, Charles F. "Proving Damages for Foreign Litigants."
New York Bar Journal, July, 1997.
Swiger, John & Klaus, Allen. "Capital Budgeting Guidelines for the Small Private
University." Business Officer, March 1996.
Swiger, John. Study Guide: The Basics of Investing. John Wiley & Sons,
New York, 1979.
Swiger, John, and Scott Jones. Simplified Forecasting Techniques for Finance and
Industry. U.T.S.A. Continuing Education Department, 1979.
Numerous reviews of finance and investment texts written on an honorarium basis for the
editors of McGraw-Hill, Wiley/Hamilton, and West Educational Publishing.
WORKING PAPERS
"Determining Economic Damages for the High Income Executive"
PRESENTATIONS AND SEMINARS
"Successful Handling of Wrongful Death Cases in Texas" a presentation conducted for
attorneys and sponsored by Lorman Education Service. Dallas, Texas, July 27,2004.
"An Economic Analysis of the Department of Justice Victim Compensation Fund."
Presented to the Aviation Law Section of the State Bar of Texas, 2002 Annual meeting, June
14,2002.
"The Airline Industry: A Time for Maximum Pessimism?" Presented to the Aviation Law
Section of the State Bar of Texas, 2002 Annual meeting, June 14, 2002.
"What Every Trial Attorney Should Know About Proving Economic Damages." A
presentation to the Bexar County Women's Bar Association. October 20,2000.
3
MANDAMUS RECORD - TAB 5
"Financial Analysis and Credit Evaluation." Prepared expressly for and presented to
the senior marketing staff of Fairchild Aviation, San Antonio, Texas on March 17, 1995.
"Proving Economic Damages for Litigants of Mexican Citizenry." A research paper
presented at the Western Economic Association International Conference, San Diego,
California, on July 6, 1995.
"Is a Minimum Wage Increase Justified?" A seminar at the First Friday Forum,
KLRN Studio, San Antonio, Texas, February 3, 1995.
"Proving Damages for Foreign Litigants." Presented to the Aviation Law Section of
the State Bar of Texas, 1993 Annual meeting, June 18, 1993.
Conducted seminars in Financial Forecasting for U.T.S.A. Continuing Education
Department.
Conducted seminars in Financial Statement Analysis for the Small Business Administration.
MEDIA INTERVIEWS
Interview with KENS TV regarding the impact of the Toyota recall on the San Antonio
Toyota Tundra Manufacturing Plant, February 2010.
Numerous interviews with business reporters from the San Antonio Express-News radio
talk shows and television news programs regarding issues ranging from minimum wage
legislation to stock market activity to the closing of Kelly Air Force Base.
EDUCATION
University of North Carolina at Chapel Hill, Ph.D. 1976
Major: Finance
Minor: Management
Thesis Title: Commercial Strategy and Performance and Financial Policy
University of Richmond, B.S. in Business Administration
Major: Marketing
Minor: Economics
CAREER HISTORYIBUSINESS
1990 - Present Business and Economic Consultant
Provide economic and financial analysis to law firms, business firms and
government agencies. Consulting activities include the determination of
economic damages and losses in the following types of cases:
4
MANDAMUS RECORD - TAB 5
• Wrongful death and serious injury
• Business Valuation
• Business interruption and the abrogation of contracts
• Sexual harassment, discrimination and wrongful termination
• Tortious interference of business relationships and contracts
Other consulting activities include:
• Feasibility studies for manufacturing operations
• Valuation analysis for closely held corporations
Sample Clients:
• Engstrom, Lipscomb & Lack
• Podhurst Orseck
• Craddock Davis and Crouse
• USAA
• Mission City Management
• Estate and Gift Division of the Internal Revenue Service
1977-1990 TNL Financial Inc., San Antonio, Texas
President and Founder
Organized the firm in May 1977. By 1990, TNL comprised 34 vendors,
8,000 accounts, 18 employees, and $40,000,000 in assets. Administered
day-to-day operations with emphasis in the areas of marketing, financial
planning and control, and banking relations.
1968-1969 First & Merchants National Bank. Richmond, VA (now Bank of
America)
Credit Analyst
5
MANDAMUS RECORD - TAB 5
Trey Crawford
214.855-6866 (direct)
214.855.6808 (facsimile)
tcrawford@ghjhlaw.com
July 3, 201 4
Via Email and Facsimile: 214-871-8209 Via Emmail and Faacsimile: 214-220-5252
Randy Nelson Ramon a Martinez
Thompson Coe Cousins & Irons, LLP Cobb M artinez Woodward, PLLC
Plaza of Americas 1700 Pacific Avenue, Suite 3100
700 N. Pearl Street, 25th Floor Dallas, TX 75201
Dallas, TX 75201-2832
Via Email and Facsimile: 972-584-6054
Samuel H. Johnson
Johnson Broome, P.C.
2591 Dallas Parkway, Suite 300
Frisco, TX 75074
Re: Cause No. DC-13-04564-L; Jane Doe v. Ajredin “Danny” Deari; Dritan Kreka;
Pastazios Pizza, Inc.; Island Hospita lity Management, Inc.; Hyatt Hotels
Corporation; and DOES 1-25; 193rd Judic ial District Court, Dallas County, Texas
Dear Counsel,
As I advised you all at the conclusion of the d eposition of Post Properties’ Corporate
Representative on June 18, 2014 (i.e. – the last fact witness deposition in this matter), all of
Plaintiff’s experts are available to be deposed at a date and time that is convenient for the parties
and the witness. Since that date, I have not receive a si ngle request for dates to take Plaintiff’s
experts’ depositions.
This is in addition to the invitation I extended at the May 20, 2014 hearing on Plaintiff’s
Motion to Compel the Deposition of Jeffrey Fisher (while conferring in the jury room) for
Defendants to begin taking the depositions of those e xperts whose opinions are not directly
related to fact witness testimony of deponents not yet made available by Defendants. Once again,
we did not receive a single request for dates since that time.
Instead, you have elected to file (or join in the filing) of motions to continue the trial
setting – citing, as a basis, your inability to take the depo sitions of Plaintiff’s experts. Not only is
this basis false, it is an excuse that has been intention ally manuffaactured by Defendants’ own
conduct and discovery abuse that has been pervasive throughout this litigation. These issues will
GZJKDKV!;
MANDAMUS RECORD - TAB 5
July 3, 20
014
Page 2
be addresssed at upcooming hearinngs with the Court but, iin the interim
m, I once aggain invite yyou to
provide us with prooposed datees and times that you would like to take thhe depositionns of
Plaintiff’s designated
d experts.
Should you have
h any queestions or conncerns pleasse feel free too contact mee.
Sincerely,
Trey H. Craawford
THC:ddtt
MANDAMUS RECORD - TAB 5
DC-13-04564
JANE DOE,
Plaintiff (s), In the District Court
v. of Dallas County
193rd Judicial
AJREDIN "DANNY" DEARI ET. AL., District
Defendant(s).
ORDER RESETTING TRIAL DATE
ON THIS DAY the Court notes that it was unaware of a vacation letter on file when
it reset the trial date in this cause for May 26, 2015. Therefore, the Court hereby resets
the trial of this cause for March, 24, 2015 at 9:30 a.m. The remainder of the Court's
September 24, 2014 Order concerning the abatement remains in effect.
SO ORDERED this Tuesday, September 30, 2014.
CARL GINSBERG, District Judge
193rd Judicial District Court
ORIGINAL SIGNED BY JUDGE
MANDAMUS RECORD - TAB 5
IN THE DISTRICT COURT
OF DALLAS COUNTY
193RD JUDICIAL DISTRICT
February 24, 2015
ERIC POLICASTRO
1445 ROSS AVE
SUITE 2500
DALLAS TX 75202
In Re: Cause No. DC-13-04564
JANE DOE vs. AJREDIN DEAR!, et al
ALL COUNSEL OF RECORD: Counsel for Plaintiff is requiredn±) notify all parties of new trial sett ilia
Please take note of the following settings: [The trial date in this notice supersedes all others.
However, the deadlines in the previous Scheduling Order
control, i.e. just because the trial date may have changed,
this fact alone does not change deadlines, as per the
Court's Initial Scheduling Order.]
*ATI _PARTIES CALLED TO _DILLIL MUST APPEAR, CV ESS OTHERWISE
&DEUCED THE caUla ADMINISTRATOR. Also parties are instructed to mark, exchange and discuss any
exhibits to be admitted
Trial: July 07, 2015 @ 9:30 a.m.
Trial announcements must be made in accordance with Rule 3.02, Dallas Civil Court Rules.
When no announcement is made for Plaintittor the Plaintiff fails to appear, the Court intends to dismiss this ease for
want of prosecution, under T.R.C.P. 165a and IN THE EXERCISE OF—FHE COUR'T'S DISCRETION PURSUANT TO ITS
INHERENT POWER TO DISMISS CASES NOT DILIGENTLY PROSECUTED, and will hold a hearing at the time of trial on
dismissing this case for want of prosecution .
Completion of discovery, presentation of pretrial motions and other matters relating to preparation for trial are
governed by the Dallas Civil Court Rules. Copies may be obtained through the Dallas County District Clerks Office.
*Parties are to announce the Thursday and Friday until 10:00 a.m. the week prior to trial, ready/not ready fm'
length of time for trial, and the number of witnesses you anticipate calling.
For those cases with a Modified Uniform Scheduling Order in place, please note that nothing is affected by this notice except
the date of trial. The Court still expects counsel to follow the schedule set forth in the scheduling order. To announce for trial
call (214) 653-6998
Sincerely,
Aar 6:9421-
CARL GINSBERG, Judge
193rd Judicial District Court
MANDAMUS RECORD - TAB 5
Trey Crawford
From: Trey Crawford
Sent: Friday, February 06, 2015 10:33 AM
To: David S. Denton
Cc: Kymberlee Wright
Subject: RE: Doe v. Deari, et al/msj hearings and raw data
Attachments: PLTF003532 - 003534.pdf
David,
Please see the attached letter to me from Dr. Flynn. I have confirmed that all of Dr. Flynn’s “raw data” was produced to
you in advance of his deposition. In fact, you questioned Dr. Flynn on most of it during the deposition. By way of
reference, I refer you to the portions of Dr. Flynn’s file at PLTF001731-002311 which contains the “raw data” and scaled
scores for Dr. Flynn’s evaluations of Ms. Doe. If there is something specific that you are looking for that you believe you
do not have, please identify it with enough specificity for me to address the issue.
I am once again asking you for dates in which I can take Dr. Clayton’s deposition. This is my third request. If I do not hear
from you by the end of business today, I will notice the deposition to take place at your office at a date and time that is
convenient for us.
Regards.
Trey Crawford
Partner
GRUBER | HURST | JOHANSEN | HAIL | SHANK
1445 Ross Avenue | Suite 2500
Dallas, Texas 75202-2711
214.855.6866 Voice
214.855.6808 Fax
Email: tcrawford@ghjhlaw.com
www.ghjhlaw.com
Gruber Hurst Johansen Hail Shank is a Limited Liability Partnership formed under the laws of the State of Texas. This message (and any attached files) is
intended only for the use of the addressee(s). This electronic transmission (and the documents accompanying it) may contain trade secrets, copyrighted materials,
and confidential information belonging to the sender that is protected by the Electronic Communications Privacy Act, 18 U.S.C. Sections 2510 and 2521 and may
be legally privileged. If you are not the intended recipient, any dissemination, copying or distribution of this message or files attached with it is strictly prohibited. If
you have received this communication in error, please notify Gruber Hurst Johansen Hail Shank LLP immediately by telephone (214-855-6800) and destroy the
original message.
From: David S. Denton [mailto:DDenton@cobbmartinez.com]
Sent: Tuesday, February 03, 2015 11:53 AM
To: Trey Crawford
Subject: Doe v. Deari, et al/msj hearings and raw data
Trey,
My calendar shows the msjs are set for hearing as follows:
Feb. 9 – Hyatt Franchising/Hyatt Hotels msj
Feb. 16 – Fisher and Ink/Chatham msj
Feb. 23 – Island/Grand Prix msj
1
MANDAMUS RECORD - TAB 5
Dr. Flynn generated “raw data” from his examination of Plaintiff, but I did not see it in his documents produced before
his deposition. Raw data is generally defined as the patient’s specific answers, whether spoken or written, generated in
drawings, or recorded by computers or other lab devices. See American Psychological Association, Ethical Principles of
Psychologists and Code of Conduct, Ethical Standard 9.04(a) (2002) (providing that the term test data refers to raw and
scaled scores, client/patient responses to test questions or stimuli, and psychologists’ notes and recordings concerning
client/patient statements and behavior during an examination). This raw data is contained directly in the tests materials,
booklets and protocols that were administered to Plaintiff by Dr. Flynn. Let me know when I can expect to have the raw
data to provide it to Dr. Clayton.
David
David S. Denton
Cobb Martinez Woodward PLLC
1700 Pacific Avenue, Suite 3100
Dallas, Texas 75201
(214) 220-5219 direct
(214) 220-5269 fax
ddenton@cobbmartinez.com
www.cobbmartinez.com
2
MANDAMUS RECORD - TAB 5
CAUSE NO. DC-13-04564-L
JANE DOE § IN THE DISTRICT COURT
§
VS. §
§
AJREDIN “DANNY” DEARI; DRITAN §
KREKA; PASTAZIOS PIZZA, INC.; §
ISLAND HOSPITALITY MANAGE- §
MENT, INC.; HYATT HOTELS §
CORPORATION; HYATT HOUSE §
FRANCHISING, LLC; GRAND PRIX § DALLAS COUNTY, TEXAS
FLOATING LESSEE, LLC; INK §
ACQUISITION, LLC; INK §
ACQUISITION II, LLC; INK §
ACQUISITION III, LLC; INK LESSEE, §
LLC; INK LESSEE HOLDING, LLC; §
CHATHAM TRS HOLDING, INC.; §
CHATHAM LODGING, LP; JEFFREY §
H. FISHER, Individually; POST §
PROPERTIES, INC.; and DOES 1-25 § 193RD JUDICIAL DISTRICT
DEFENDANT ISLAND HOSPITALITY MANAGEMENT, INC.’S REPLY TO
PLAINTIFF’S RESPONSE TO ISLAND’S MOTION TO EXAMINE PLAINTIFF JANE DOE
Defendant Island Hospitality Management, Inc. (“Defendant”) files this Reply to
Plaintiff’s Response to Island’s Motion to Examine Plaintiff Jane Doe, as follows:
I. Background
Plaintiff filed her Response to Island’s Motion to Examine Plaintiff on March 24 at 9:03
p.m. In her Response, Plaintiff asserts two arguments: (1) Defendant’s motion is untimely; and
(2) Defendant has not satisfied its burden to prove good cause. As discussed herein, The
Response is unavailing because: (1) Defendant’s expert designation was timely, as was the
request for an independent examination; and (2) good cause exists for Defendant’s expert to
DEFENDANT ISLAND HOSPITALITY MANAGEMENT, INC.’S
REPLY TO PLAINTIFF’S RESPONSE TO ISLAND’S MOTION TO EXAMINE PLAINTIFF JANE DOE PAGE 1
Document #135153
MANDAMUS RECORD - TAB 6
conduct an independent examination, and fundamental fairness requires that Defendant’s
psychiatric expert be allowed to examine Plaintiff when her expert has conducted an
examination.
Importantly, as an initial matter, Defendants’ counsel spoke with Plaintiff’s counsel
about the scope of the independent examination before filing the motion. Namely, the scope
of the independent evaluation would be limited to:
(1) a four hour clinical interview where Plaintiff’s history and personality disorders
would be discussed; and
(2) a Minnesota Multiphasic Personality Inventory -2 (“MMP-2”). 1
The scope of the proposed independent examination is far less intrusive than the examination
performed by Plaintiff’s expert.2
II. Arguments and Authorities
1. Defendant’s Expert Designation was timely, as was the request for an independent
examination.
Defendants’ expert was timely designated pursuant to the Court’s December 30, 2014
order. Namely, the Court’s order states:
FURTHERMORE, IT IS THEREFORE ORDERED that within 30 days after the
deposition of an expert designated by Plaintiff, the Defendants may designate
experts testifying in response to opinions disclosed at the deposition.
Dr. Flynn produced his expert file on December 16, 2014. Defendant deposed Dr. Flynn three
days later on December 19, 2014, and Defendants designated their expert, Dr. Clayton, on
January 16, 2015. Shortly after Dr. Clayton was designated, Defendants requested that Plaintiff
1
The MMPI-2 is the most widely used and researched standardized psychometric test of adult
personality and psychopathology. See
http://psychology.about.com/od/psychologicaltesting/a/mmpi.htm
2
Exhibit A, Dr. Flynn Deposition Transcript, page/line. 45:14-16; Exhibit B, Dr. Flynn’s Invoice.
DEFENDANT ISLAND HOSPITALITY MANAGEMENT, INC.’S
REPLY TO PLAINTIFF’S RESPONSE TO ISLAND’S MOTION TO EXAMINE PLAINTIFF JANE DOE PAGE 2
Document #135153
MANDAMUS RECORD - TAB 6
submit to examination by Dr. Clayton trying to work something out without the need for the
Court’s intervention. Ultimately, negotiations about the independent examination broke down
– which required Defendants to file their motion for an independent examination on February
6, 2015.
Defendants’ request for an independent examination was timely. Plaintiff now contends
that Defendant should have known it would need an independent examination since Plaintiff
designated Dr. Flynn in May 2014. However, Plaintiff ignores that her expert designation does
not state that Dr. Flynn examined Plaintiff, hence Defendants did not have notice that they
would need to examine Plaintiff. In fact, Plaintiff’s expert designation states only that:
Dr. Flynn’s testimony will be based upon his skill, knowledge, education,
experience, and training, as well as his review of the pertinent authoritative
publications written by him and others, and the evidence, pleadings, and
discovery served, produced, and/or elicited in this case and based upon a
reasonable degree of professional, medical, and scientific probability and/or
certainty.
Given the language of Plaintiff’s expert designation, Defendants were not put on notice that
their expert would conduct an examination on Plaintiff. To the contrary, Defendants did not
know Plaintiff’s expert conducted an independent examination until three days before Dr.
Flynn’s deposition when his expert file was produced. Of note, Plaintiff’s examinations did not
take place until August 2014 and September 2014, well after Plaintiff’s expert designation and
after Plaintiff alleges discovery was cut-off.
Defendants’ expert realized that an independent examination was necessary only after
Defendants deposed Plaintiff’s expert on his independent examination of Plaintiff. And
Defendants moved quickly for an independent examination after Plaintiff rejected their
request. Accordingly, Defendants’ request for an independent examination is timely.
DEFENDANT ISLAND HOSPITALITY MANAGEMENT, INC.’S
REPLY TO PLAINTIFF’S RESPONSE TO ISLAND’S MOTION TO EXAMINE PLAINTIFF JANE DOE PAGE 3
Document #135153
MANDAMUS RECORD - TAB 6
2. Good Cause exists for this Court to order an independent examination and
fundamental fairness requires that Defendant’s expert be allowed to examine
Plaintiff.
First, Plaintiff’s expert testified that his raw data was based on his subjective
interpretation of Plaintiff’s responses to his questions. Specifically, Dr. Flynn testified as
follows:
Q.· ·(BY MR. DENTON)· Similarly, I'm looking at this
21· very first sentence on that paragraph, and it says,
22· Ultimately, the clinician must make a clinical judgment as
23· to whether a diagnostic criterion is met.· Now, would that
24· also mean that you have the judgment, the discretion to
25· find or not find whether a diagnostic criterion is met?
Page 160
·1· · · A.· ·It does. 3
Dr. Flynn further testified that some of his opinions are based on his subjective or clinical
judgment. Namely, Dr. Flynn testified:
Q.· ·Is it objective -- or is it objective data from
11· which you used in arriving at your opinions?
12· · · A.· ·It is mostly objective and some clinical judgment
13· or subjective. 4
Because Plaintiff’s expert’s opinions are partially based on his subjective interpretation of
Plaintiff’s response during his examination, the raw data produced from Dr. Flynn’s examination
warrants an independent examination by Defendant’s psychiatric expert.
Second, Defendants established the requisite nexus between the independent
examination and the condition in controversy. The Fort Worth Court of Appeals recognized in
In re Transwestern Publ’g Relators Co., that “A mental examination by Defendants’ expert
3
Exhibit A, Dr. Flynn Deposition Transcript, page/line. 159:20-160:1.
4
Exhibit A, Dr. Flynn Deposition Transcript, page/line. 214:10-13.
DEFENDANT ISLAND HOSPITALITY MANAGEMENT, INC.’S
REPLY TO PLAINTIFF’S RESPONSE TO ISLAND’S MOTION TO EXAMINE PLAINTIFF JANE DOE PAGE 4
Document #135153
MANDAMUS RECORD - TAB 6
[psychiatrist] is likely to lead to the discovery of relevant evidence regarding the nature and
extent of her mental anguish damages, the bases for her injuries and the likelihood of her
suffering future mental anguish.” 96 S.W.3d 501, 507 (Tex. App. – Fort Worth, 2002). Just like
In re Transwestern, a reasonable nexus exits in this case between Plaintiff’s mental condition
and the examination sought because Defendants’ expert psychiatrist’s mental examination is
intended to explore Plaintiff’s allegations of mental anguish as they relate to her inability to go
to college, explore other career paths, and otherwise live a normal life.5
Finally, the raw data provided by Plaintiff’s expert does not contain all the information
which Defendant’s expert seeks. In re Transwestern recognized that the information
Defendants will obtain from conducting their own mental examination is not likely to be
acquired by other means. 6 Reviewing Dr. Flynn’s raw data and Dr. Flynn’s deposition transcript
only allows Defendants’ expert to base her opinions on the information obtained by Plaintiff’s
expert. In order for Defendants to make their own analysis of the nature of Plaintiff’s mental
anguish and effectively challenge the opinions of Dr. Flynn, Defendants’ expert psychiatrist
needs to be able to conduct an independent evaluation of Plaintiff. The reasoning of the court
of appeals in Sherwood Lane Assocs. v. O’Neill is directly on point:
The minor has already been examined by her expert witnesses. Unless relators
are allowed the requested relief, their expert’s analysis will be limited to a
review of the minor’s records and the testimony of the minor’s psychologists.
Relators’ expert would be precluded from examining matters not covered by the
minor’s psychologists’ examinations and would be precluded from making his
own observations. The trial court’s actions severely restricts relators’
opportunity to discover facts that may contradict the opinions of the minor’s
5
In re Transwestern, 96 S.W.3d at 507 (stating “Because the mental examination is intended to explore
[Plaintiff’s] allegations of mental anguish as they relate to her termination, a reasonable nexus exists
between her metnal condition and the examination sought.”).
6
Id. at 507.
DEFENDANT ISLAND HOSPITALITY MANAGEMENT, INC.’S
REPLY TO PLAINTIFF’S RESPONSE TO ISLAND’S MOTION TO EXAMINE PLAINTIFF JANE DOE PAGE 5
Document #135153
MANDAMUS RECORD - TAB 6
expert witnesses. In turn, such restriction severely limits relators’ ability to
contest the minor’s claim for mental injury damages.
The ultimate purpose of discovery is to seek the truth, so that disputes may be
decided by what the facts reveal, bot by what facts are concealed. Fundamental
fairness dictates that relators’ psychiatrist be allowed to examine the minor;
otherwise, relators will be at a severe disadvantage in the “battle of experts.” 7
It is impossible to obtain the desired information through means that are less obtrusive than
the independent examination sought by Defendants.
For the reasons discussed above, good cause exists for this Court to order an
independent examination.
III. Conclusion
WHEREFORE, PREMISES CONSIDERED Defendant requests that the Court grant their
Motion to Examine Plaintiff, order Plaintiff to be produced for a psychological examination
conducted by Dr. Lisa Clayton, and grant such further and additional relief to which Defendant
may be entitled.
7
782 S.W.2d 942, 945 (Tex. App. – Houston [1st Dist.] 1990, orig. proceeding) (citations omitted).
DEFENDANT ISLAND HOSPITALITY MANAGEMENT, INC.’S
REPLY TO PLAINTIFF’S RESPONSE TO ISLAND’S MOTION TO EXAMINE PLAINTIFF JANE DOE PAGE 6
Document #135153
MANDAMUS RECORD - TAB 6
Respectfully submitted,
COBB MARTINEZ WOODWARD PLLC
1700 Pacific Avenue, Suite 3100
Dallas, TX 75201
(214) 220-5202 (direct phone)
(214) 220-5252 (direct fax)
By: _____________________________________
RAMONA MARTINEZ
Texas Bar No. 13144010
email: rmartinez@cobbmartinez.com
DAVID S. DENTON
Texas Bar No. 24036471
email: ddenton@cobbmartinez.com
MATTHEW E. LAST
Texas Bar No. 24054910
email: mlast@cobbmartinez.com
ATTORNEYS FOR DEFENDANT ISLAND
HOSPITALITY MANAGEMENT, INC.
DEFENDANT ISLAND HOSPITALITY MANAGEMENT, INC.’S
REPLY TO PLAINTIFF’S RESPONSE TO ISLAND’S MOTION TO EXAMINE PLAINTIFF JANE DOE PAGE 7
Document #135153
MANDAMUS RECORD - TAB 6
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of this document has been forwarded to the
following counsel of record by e-service, email, certified mail, return receipt requested, and/or
regular U.S. mail on this 26th day of March, 2015:
Trey Crawford Dritan Kreka
Gruber Hurst Johansen Hail Shank 5549 Big River Drive
1445 Ross Avenue, Suite 2500 The Colony, TX 75056
Dallas, TX 75202-2711 Defendant Kreka
fax: 214.855.6808
Attorney for Plaintiff
Samuel H. Johnson Randy A. Nelson
Johnson Broome, PC Thompson Coe Cousins & Irons
2591 Dallas Parkway, Suite 300 700 North Pearl Street
Frisco, TX 75034 25th Floor – Plaza of the Americas
fax: 972.584.6054 Dallas, TX 75201
Attorney for Defendants Deari & Attorney for Post Properties
Pastazios Pizza
RAMONA MARTINEZ
MATTHEW E. LAST
DEFENDANT ISLAND HOSPITALITY MANAGEMENT, INC.’S
REPLY TO PLAINTIFF’S RESPONSE TO ISLAND’S MOTION TO EXAMINE PLAINTIFF JANE DOE PAGE 8
Document #135153
MANDAMUS RECORD - TAB 6
MANDAMUS RECORD - TAB 7
FILED
DALLAS COUNTY
4/14/2015 4:10:19 PM
FELICIA PITRE
DISTRICT CLERK
CAUSE NO. DC-13-04564-L
JANE DOE § IN THE DISTRICT COURT
§
vs. §
§
AJREDIN "DANNY" DEARI; DRITAN §
KREKA; PASTAZIOS PIZZA, INC.; §
ISLAND HOSPITALITY MANAGE- §
MENT, INC.; HYATT HOTELS §
CORPORATION; HYATT HOUSE §
FRANCHISING, LLC; GRAND PRIX § DALLAS COUNTY, TEXAS
FLOATING LESSEE, LLC; INK §
ACQUISITION, LLC; INK §
ACQUISITION II, LLC; INK §
ACQUISITION III, LLC; INK LESSEE, §
LLC; INK LESSEE HOLDING, LLC; §
CHATHAM TRS HOLDING, INC.; §
CHATHAM LODGING, LP; JEFFREY §
H. FISHER, Individually; POST §
PROPERTIES, INC.; and DOES 1-25 § 193RD JUDICIAL DISTRICT
DEFENDANTS ISLAND HOSPITALITY MANAGEMENT, INC.'S, POST PROPERTIES, INC.'S, AND
POSTADDISON CIRCLE LIMITED PARTNERSHIP'S JOINT MOTION FOR RECONSIDERATION TO
EXAMINE PLAINTIFF JANE DOE
TO THE HONORABLE COURT:
NOW COMES Defendants Island Hospitality Management, Inc., Post Properties, Inc., and
Post Addison Circle Limited Partnership and file this Joint Motion for Reconsideration to Examine
Plaintiff Jane Doe. Defendants also request that Dr. Lisa Clayton's deposition be postponed until
the Court can rule upon this Motion for Reconsideration.
JOINT MOTION FOR RECONSIDERATION OF MOTION TO EXAMINE PLAINTIFF JANE DOE PAGE 1
Document #135813
MANDAMUS RECORD - TAB 8
I. Background
1. On March 27, 2015, the Court denied Island's Motion to Examine Plaintiff Jane
Doe. Island and Post file this motion for reconsideration based on the affidavit provided by Dr.
Lisa Clayton.
2. By way of background, Plaintiff sued Defendants for, among other things, mental
anguish and psychological-related damages as a result of an alleged sexual assault.
3. On April 30, 2014, Plaintiff designated a psychologist as a testifying expert, Dr.
William Flynn. In the designation. Plaintiff did notstateorgiveany indication that Dr. Flynn would
conduct an examination of Plaintiff.
4. On December 16, 2014, Dr. Flynn's file was produced, and it was learned for the
first time that he conducted a psychological examination on Plaintiff.1 The tests Dr. Flynn
administered to Plaintiff were the CAPS-DX, the Personality Assessment Inventory ("PAI"), the
Structured Clinical Interview for DSM Disorders ("SCID-1"), the Beck Depression Inventory
("BDI"), and the Structured Interview of Reported Symptoms, Second Edition ("SIRS II"), and he
interviewed Plaintiff for a total of six and a half hours.2
5. On December 19, 2014, Dr. Flynn gave his testimony at a deposition, and testified
that his opinions were based upon and in reliance upon the examination.
6. On January 16,2015, Defendant designated Dr. Lisa Clayton as a testifying expert,
to testify in response to Dr. Flynn. Dr. Clayton has requested that she, like Dr. Flynn, be able to
examine Plaintiff to develop her expert opinions to further challenge Dr. Flynn's opinions.
* See Exhibit 1, Email from Kymberlee Wright producing Dr. Flynn's file.
2 Exhibit 2, Dr. Flynn's Invoice No. 13047; Exhibits, Dr. Flynn's Deposition Transcript Excerpts, Page:Line: 45:11-16.
JOINT MOTION FOR RECONSIDERATION OF MOTION TO EXAMINE PLAINTIFF JANE DOE PAGE 2
Document #135813
MANDAMUS RECORD - TAB 8
7. The scope of the independent examination be would be limited to:
(1) a four hour clinical interview where Plaintiffs history and personality disorders would
be discussed; and
(2) a Minnesota Multiphasic Personality Inventory -2 ("MMP-2").
8. The interview and MMPI-2 are intended to explore Plaintiff's alleged PTSD, and
other mental issues, as the alleged issues relate to the sexual assault that is the subject of this
lawsuit.3
9. The clinical interview will be no more than four hours.4 The topics covered during
the interview include identification of Plaintiffs symptoms, the history of Plaintiffs present
mental disorders, psychiatric history, medical history, family history, social history, sexual history,
substance use and abuse, and mental status examination (i.e., behavior, speech, mood, insight
and judgment).5 The interview will be held at Dr. Clayton's Southlake Office between Plaintiff
and Dr. Clayton. Dr. Clayton will take notes of the interview, and the notes will be made available
to Plaintiffs counsel and Dr. Flynn.6
10. The clinical interview allows Dr. Clayton to obtain information that is not available
from any other source than Plaintiff.7 In order for Dr. Clayton to have all the information to
challenge Dr. Flynn's opinions. Dr. Clayton needs to be able to conduct an independent
evaluation of Plaintiff. Unless Dr. Clayton is allowed to examine Plaintiff, her analysis will be
limited to a review of Plaintiff's records and Dr. Flynn's testimony and data.8 Without an
3 See Exhibit 4, Affidavit of Lisa K. Clayton, M.D.
4 See Exhibit 4, Affidavit of Lisa K. Clayton, M.D.
5 Id.
6 Id.
7 Id.
8 Id.
JOINT MOTION FOR RECONSIDERATION OF MOTION TO EXAMINE PLAINTIFF JANE DOE PAGE 3
Document #135813
MANDAMUS RECORD - TAB 8
independent examination. Dr. Clayton would be precluded from examining matters not covered
by Dr. Flynn, and Dr. Clayton would be precluded from making her own observations of Plaintiff.
Furthermore, without an independent examination, the Defendants would be restricted from the
opportunity to discover facts that may contradict Dr. Flynn's opinions. The scope of the
proposed independent examination is far less intrusive than the examination performed by
Plaintiffs expert,9
11. The MMPI-2 is commonly used and relied upon for clinical treatment, as well as in
the area of forensic psychiatry.10 Further, it is the most widely recognized tool to diagnose
genuine verses malingered or feigned PTSD within the forensic psychiatric community.11 The
MMPI-2 consists of 567 questions and takes approximately 60 to 120 minutes to complete.12 Dr,
Clayton will administer, score, and interpret,Plaintiffs responses to the questions.13 This test will
be used in collaboration with the clinical interview.14 The clinical interview is necessary to
interpret the results to the MMPI-2.15
12. The requested clinical interview and MMPI-2 would both provide additional
information relating to Plaintiff's historical, current, and future mental health symptoms,
diagnoses, problems, and treatments.16 For example, the requested examination would provide
information regarding the impact of the sexual assault that is the subject of this lawsuit on
Plaintiffs past and future mental health, events in Plaintiffs life other than the sexual assault
9 Exhibits Dr. Flynn Deposition Transcript, page/line. 45:14-16; Exhibit 2 Dr. Flynn's Invoice.
10 Exhibit 4, Affidavit of Dr. Lisa K. Clayton, M.D.
11 Id.
12 Id.
13 Id.
14 Id.
15 Id.
16 Id.
JOINT MOTION FOR RECONSIDERATION OF MOTION TO EXAMINE PLAINTIFF JANE DOE PAGE 4
Document #135813
MANDAMUS RECORD - TAB 8
that impact her mental health, Plaintiffs' mental health issues existing prior to or unrelated to
the sexual assault, and whether - and the extent to which - future mental health treatment is
needed.17 Such information directly bears on the alleged past and future mental anguish injuries
and damages that are at issue in this lawsuit. The requested examination is intended to explore
Plaintiffs allegations of mental anguish as they relate to her ability (or inability) to go to college,
explore certain career paths, and otherwise live a normal life.18
II. Arguments an^Authorities
13. The court may order the mental examination of a party or person under the
party's control if the movant shows good cause and either: (a) the party's mental condition is in
controversy;19 or (b) the party responding to the motion designated a psychologist as a testifying
expert or disclosed a psychologist's records for possible use at trial.20
14. Rule 204(c) provides there must be good cause for the examination. "Good
Cause" requires a showing of each of the following components: (a) the examination is relevant
to the genuine issues; (b) there is a reasonable connection between the condition in controversy
and the examination sought; and (c) it is not possible to obtain the information sought though
some other, less intrusive means.21
17 Id.
18 Id.
19Tex. R. Civ. P. 204.1(c)(l).
ZOTex. R. Civ. P. 204.1(c)(2)
21
Cocftes v. Whittington, 758 S.W.2d 749, 753 (Tex. 1988).
JOINT MOTION FOR RECONSIDERATION OF MOTION TO EXAMINE PLAINTIFF JANE DOE PAGE 5
Document #135813
MANDAMUS RECORD - TAB 8
1. Good Cause exists for this Court to order an independent examination and fundamental
fairness requires that Defendant's expert be allowed to examine Plaintiff.
15. As an initial matter, Plaintiff's expert testified that his raw data was based on his
subjective interpretation of Plaintiff's responses to his questions. Specifically, Dr. Flynn testified
as follows:
a (BY MR. DENTON) SimilarlyJ'm looking at this
21 very first sentence on that paragraph, and it says,
22 Ultimately, the clinician must make a clinical judgment as
23 to whether a diagnostic criterion is met. Now, would that
24 also mean that you have the judgment, the discretion to
25 find or not find whether a diagnostic criterion is met?
Page 160
1 A. It does.22
Dr. Flynn further testified that some of his opinions are based on his subjective or clinical
judgment. Namely, Dr. Flynn testified:
Q. Is it objective - or is it objective data from
11 which you used in arriving at your opinions?
12 A. It is mostly objective and some clinical judgment
13 or subjective.23
Because Plaintiffs expert's opinions are partially based on his subjective interpretation of
Plaintiff's response during his examination, the raw data produced from Dr. Flynn's examination
warrants an independent examination by Defendant's psychiatric expert.
16. Dr. Flynn continues to evaluate Plaintiff "as new information comes in", and
formulate opinions fortriai. During his deposition, Dr. Flynn testified that he has had subsequent
22 Exhibits, Dr. Flynn Deposition Transcript, page/line. 159:20-160:1.
23 Exhibits, Dr. Flynn Deposition Transcript, page/line. 214:10-13.
JOINT MOTION FOR RECONSIDERATION OF MOTION TO EXAMINE PLAINTIFF JANE DOE PAGE 6
Document #135813
MANDAMUS RECORD - TAB 8
telephone follow-up with Plaintiff and formed additional opinions about her prognosis on new
information that he received. Specifically, Dr. Flynn testified:
Q. (BY MR. DENTON) As you sit here today, the
12 opinions that you've told us about a few minutes ago,are
13 those all of the opinions that you have about Ms. Shields
14 in relation to the work that you're doing on this file?
15 MR. CRAWFORD: Objection, form.
16 A. I'd like to be able to give something rather than
17 a yes or no. Is that okay or not?
18 Q. (BY MR. DENTON) Yes, sir. You answer -
19 A. Okay.
20 d All that I - the only deal that I have is -
21 A. Just asking.
22 d - that you answer the question, and then you can
23 say whatever you want to, okay?
24 A. Great.
25 Q. So just answer the question -
0088
1 A. So-so to the question you've just asked, and
2 the reason why I have said "at this time" is I've done
3 follow-up with Ms. Shields, and as new information comes
4 in - like, for example, she has said that things are
5 getting worse/ not better - it depends on what questions
6 I'm asked in the future as to whether I'll provide
7 something in addition to what I've already said.
8 For example, you didn't ask me - you asked
9 me what my opinion was, and my opinion - I gave opinion.
10 But you really didn't ask about is it getting worse, is it
11 getting better, how old is she,does she - so depending
12 upon what questions are asked of me, I'll simply give
13 honest answers to whatever I'm asked. Does that make
14 sense?24
a. The examination is relevant to the genuine issues in this case.
17. Plaintiff alleges in her lawsuit that she suffered and will suffer past and future
mental as a result of the alleged sexual assault.25 She is seeking punitive damage for these
24 Exhibits, Dr. Flynn Deposition Transcript, page/line. 87:11-88:14.
25 Plaintiff's Third Amended Petition.
JOINT MOTION FOR RECONSIDERATION OF MOTION TO EXAMINE PLAINTIFF JANE DOE PAGE 7
Document #135813
MANDAMUS RECORD - TAB 8
injuries.26 In response to discovery, Plaintiff designed Dr. Flynn as her testifying expert and he
will testify about Plaintiff's mental anguish.27 Moreover, Plaintiff alleges a loss of earning capacity
since she was unable to attend college due to her mental anguish.
18. Through Plaintiff's pleadings, discovery responses, and designation of a
psychologist to testify about her mental anguish, she has made her mental anguish a central issue
in this case. As such, the evidence supports a determination that she has placed her mental
condition in controversy.28
b. There is a reasonable connection between Plaintiff's mental anguish and the
examination sought.
19. The Fort Worth Court of Appeals recognized in In re Transwestern Publ/g Relators
Co., that "A mental examination by relators' expert psychologist is likely to lead to the discovery
of relevant evidence regarding the nature and extent of her mental anguish damages, the bases
for her injuries and the likelihood of her suffering future mental anguish."29 Just like In re
Transwestern, a reasonable nexus exits in this case between Plaintiff's mental condition and the
examination sought because Defendants' expert psychiatrist's mental examination is intended
to explore Plaintiff's allegations of mental anguish as they relate to her inability to go to college,
explore other career paths, and otherwise live a normal life.30
26 Id.
27 Exhibits, Plaintiff's Expert Witness Designations.
28 In re Transwestern, 96 S.W.3d at 507.
29 96 S.W.3d 501, 507 (Tex. App. - Fort Worth, 2002).
30 In re Transwestem, 96 S.W.3d at 507; Exhibit 4, Affidavit of Lisa K. Clayton, M.D.
JOINT MOTION FOR RECONSIDERATION OF MOTION TO EXAMINE PLAINTIFF JANE DOE PAGE 8
Document #135813
MANDAMUS RECORD - TAB 8
c. It is not possible to obtain the information sought through some other, less intrusive
means.
20. The Fort Worth Court of Appeals recognized that the information obtained from
conducting an independent examination is not likely to be acquired by other means.31 This is
true in this case. Reviewing Dr. Flynn's raw data and his deposition transcript only allows
Defendants' expert to base her opinions on the information obtained by Plaintiff's expert. In
order for Defendants to make their own analysis of the nature of Plaintiffs mental anguish and
effectively challenge the opinions of Dr. Flynn, Defendants' expert psychiatrist needs to be able
to conduct an independent evaluation of Plaintiff.32 The reasoning of the court of appeals in
Sherwood Lane Assocs. v. O'Neill is directly on point:
The minor has already been examined by her expert witnesses. Unless relators
are allowed the requested relief, their expert's analysis will be limited to a review
of the minor's records and the testimony of the minor's psychologists. Relators'
expert would be precluded from examining matters not covered by the minor's
psychologists' examinations and would be precluded from making his own
observations. The trial court's actions severely restricts relators' opportunity to
discover facts that may contradict the opinions of the minor's expert witnesses.
In turn, such restriction severely limits relators' ability to contest the minor's claim
for mental injury damages.
The ultimate purpose of discovery is to seek the truth, so that disputes may be decided
by what the facts reveal, not by what facts are concealed. Fundamental fairness
dictates that relators' psychiatrist be allowed to examine the minor; otherwise,
relators will be at a severe disadvantage in the "battle of experts."33
It is not possible to obtain the desired information through means that are less obtrusive than
the independent examination sought by Defendants. Namely, Dr. Clayton is unable to observe
Plaintiff's reactions to the tests administered by Dr. Flynn and this data is not available through
31 Id. at 507.
32 Id.
33 782 S.W.2d 942, 945 (Tex. App. - Houston [1st Dist.] 1990, orig. proceeding) (citations omitted).
JOINT MOTION FOR RECONSIDERATION OF MOTION TO EXAMINE PLAINTIFF JANE DOE PAGE 9
Document #135813
MANDAMUS RECORD - TAB 8
less intrusive means than conducting (a) a clinical interview lasting no more than four hours
where Plaintiff's history and personality disorders would be discussed, and (b) a MMPI-2.34 This
is because the raw data and examination records from Dr. Flynn were based on, at least in part,
his subjective interpretation of Plaintiffs responses to his questions. His data and records were
also based, in part, on his subjective or clinical judgment, including which subject matters and
events to cover or not cover. As a result. Dr. Clayton does not have all the data and records
regarding Plaintiff.35 For example, reviewing Dr. Flynn's raw data and Dr. Flynn's deposition
transcript only allows Dr. Clayton to form opinions based upon the subjective and selective
information obtained by Dr. Flynn.36 The requested examination would enable Dr. Clayton to
explore the opinions of Dr. Flynn and potentially discover additional facts that may contradict or
bear upon his opinions.37 For these reasons, good cause exists for this Court to order an
independent examination.
2. Plaintiff designated a psychologist as a testifying expert and disclosed his records for
possible use at trial.
21. As discussed above. Plaintiff designed Dr. Flynn (a forensic psychologist) as her
testifying expert to testify about the psychological, medical, behavioral, educational,
physiological, vocational, and social trauma that Plaintiff allegedly suffered as a result of the
sexual assault that is the subject of this case.38 As such, Defendants have satisfied Rule 204(c)'s
requirements for obtaining an order to obtain an independent examination.
34 Exhibit 4, Affidavit of Lisa K. Clayton, M.D.
35 Id.
36 Id.
37 Id.
38 Exhibits, Plaintiff's Designation of Expert Witnesses.
JOINT MOTION FOR RECONSIDERATION OF MOTION TO EXAMINE PLAINTIFF JANE DOE PAGE 10
Document #135813
MANDAMUS RECORD - TAB 8
3. Dr. Clayton's deposition should be postponed until the Court rules upon this joint
motion for reconsideration.
22. Dr. Clayton's deposition is currently set for April 17, 2015. In the event the Court
grants this motion, then Dr. Clayton will formulate additional opinions about Plaintiff after
the examination. In that case, Plaintiff will want to take Dr. Clayton's deposition again to
obtain Dr. Clayton's additional opinions. Rather than incurring the cost of two depositions,
Defendants request the Court postpone Dr. Clayton's April 17, 2015 deposition until this
motion can be decided.
III. Conclusion & Prayer
WHEREFORE, PREMISES CONSIDERED Defendants requests that the Court grant this
Motion for Reconsideration to Examine Plaintiff, order Plaintiff to be produced for a psychological
examination conducted by Dr. Lisa Clayton, postpone Dr. Lisa Clayton's deposition until after the
examination, and grant such further and additional relief to which Defendants may be entitled.
JOINT MOTION FOR RECONSIDERATION OF MOTION TO EXAMINE PLAINTIFF JANE DOE PAGE 11
Document #135813
MANDAMUS RECORD - TAB 8
Respectfully submitted,
COBB MARTINEZ WOODWARD PLLC
1700 Pacific Avenue, Suite 3100
Dallas, TX 75201
(214).220-5202 (dirfct phone)
(214)^0-5252..(dir^ fax)
BY:.
RAMONA MARTINEZ
Texas Bar No. 13144010
email: rmartinez@cobbmartinez.com
DAVID S. DENTON
Texas Bar No. 24036471
email: ddenton@cobbmartinez.com
MATTHEW E. LAST
Texas Bar No. 24054910
email: mlast@cobbmartinez.com
ATTORNEYS FOR DEFENDANT ISLAND
HOSPITALITY MANAGEMENT, INC.
and
THOMPSON, COE, COUSINGS, & IRONS, L.L.P.
700 N. Pearl, 25th Floor
Dallas, Texas 75201
(214)?871-8228 (direct phone)
(214^71-8209
"RANDY ^NELSON \^/^=sz^\ ss ^crK\^
Texas ^r No. 14904800
eln-attrrnelson@thompsoncoe.com
SARAH L. ROGERS
Texas Bar No. 24046239
Email: srogers@thompsoncoe.com
ATTORNEYS FOR POST PROPERTIES, INC. AND
POSTADDISON CIRCLE LIMITED PARTNERSHIP
JOINT MOTION FOR RECONSIDERATION OF MOTION TO EXAMINE PLAINTIFF JANE DOE PAGE 12
Document #135813
MANDAMUS RECORD - TAB 8
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of this document has been forwarded to the
following counsel of record by e-service, email, certified mail, return receipt requested, and/or
regular U.S. mail on this 14th day of April, 2015:
Trey Crawford Dritan Kreka
Gruber Hurst Johansen Hail Shank 5549 Big River Drive
1445 Ross Avenue, Suite 2500 The Colony, TX 75056
Dallas/ TX 75202-2711 Defendant Kreka
fax: 214.855.6808
Attorney for Plaintiff
Samuel H. Johnson Randy A. Nelson
Johnson Broome, PC Thompson Coe Cousins & Irons
2591 Dallas Parkway, Suite 300 700 North Pearl Street
Frisco,TX 75034 25th Floor - Plaza of the Americas
fax: 972.584.6054 Dallas, TX 75201
Attorney for Defendants Deari & Attorney fqr Post Properties
Pastazios Pizza
RAMONA MAF
DAVID S. DENTON
JOINT MOTION FOR RECONSIDERATION OF MOTION TO EXAMINE PLAINTIFF JANE DOE PAGE 13
Document #135813
MANDAMUS RECORD - TAB 8
Exhibit 1
MANDAMUS RECORD - TAB 8
Matthew E. Last
From: Kymberlee Wright
Sent: Tuesday, December 16, 2014 9:19 AM
To: Matthew E. Last; Ramona Martinez; rnelson@thompsoncoe.com; Samuel H. Johnson
(sam@johnsonlaw-pllc.com); srogers@thompsoncoe.com
Cc: Trey Crawford; Eric Policastro
Subject: Doe
Counsel,
Below is a link containing Dr. William Flynn's expert file, Bates labeled PLTF001731 - 002657.
https://www,dropbox.com/sh/wwc5iroBuaevd84/AAD25Ng9w4D4QU8omY7kliVZa?dl==0
Please advise if you have any issues opening the attachment.
Thank you,
Kymberiee Wright,
Para legal
j I I I
1445 Ross Avenue | Suite 2500
Dallas, Texas 75202-2711
214.855.6875 Voice
214.855.6808 Fax
Email: kwriflht@ghjhlaw.com
www.ahihlaw.com
Gruber Hurst Johansen Hail Shank is a Limited Liability Partnership formed under the laws of the State of Texas. This message (and any attached files) is
intended only for the use of the addressee(s). This electronic transmission (and the documents accompanying it) may contain trade secrets, copyrighted materials,
and confidential information belonging to the sender that is protected by the Electronic Communications Privacy Act, 18 U.S.C. Sections 2510 and 2521 and may
be legally privileged. If you are not the intended recipient, any dtssemination, copying or distribution of this message or files attached with it is strictly prohibited. If
you have received this communication in error, please notify Gruber Hurst Johansen Hail Shank LLP immediately by telephone (214-855-6800) and destroy the
original message.
MANDAMUS RECORD - TAB 8
Exhibit 2
MANDAMUS RECORD - TAB 8
Forensic and Clinical Psychology Invoice
100 Highland Park Village
Suite 200
Dallas, TX 75205
Bill To;
Mr. Erie Pollcastro
-1445 Boss Avenue
Suite 2.500
Dallas, Texas 75202-2711
Date Invoice No. P.O. Number Terms | Client
06/02/14 13047 . Net 30 |Sh lelds, Mckensle
Item Description Quantity Rate Amount
Consultation ;onsultatlon with Attomey;l/2 Hour Case facts, 0.5 360.00 176.00
with Attorney teferral questions Date:
record Review tevfew of Records: Medical, deposition, Peteti'on 4 4 350.00 1,400.00
iQura Date:S/2/14
Record Review review of Records:1 Hour, summarize medical, 1 350.00! 350.00
iepositton, Petition Date; 6/3/14
Consultation Sonsultatlon with Attorney &M. Shields: 2.6 2.6 350.00 | 875.00
with Attorney 4.ours, Interview, referal question of monetary
images 'Date: 6/4/2014
Record Review review of Records:1 Hour, arrest report. 1 360.00 350.00
3ate:6/6/14
Record Review review of Records:2 Hours, Ted Miller, Social and £ 350.00 700.00
iconomic costs,..„„ Date: 6/14/14
Consultation consultation with Attorney Policgsfrorl/? Hour, o.e 350.00 176.00
with Attorney apptmt w/Shlelds, PTSD Qate:6/W14
Psychological 3sychotogical Evaluation: 2.6 Hours, SCID, PA1, 2^ 360.001 875.00
Evaluation ilstory, event, post event Date:
Psychological psychological Testlng:1 Hours Date:8/24/14 350.00 350.00
Tasting
Psychological :>sychofogical Evaluation: 1/2 Hour Date:a/26/14 0.' 350.00 | 175.00
Evaluation
Consultation consultation with Attorney:1/2 Hour, Date: O.i 350.00 176.00
with Attorney
Consultation Consultation with Attorney^ Hours, current finding 850.00 700.00
with Attorney Date:
ConsultatiCtn Consultation with AttQmey.1/2 Hour, meeting Q.i 360.00 176,00
with Attorney w/economlst, Shields, costs Date:9/2/14
Total
Page 1
PLTF002050
MANDAMUS RECORD - TAB 8
Forensic and Clinical Psychology
Invoice
100 Highland Park Villags
Suite 200
Dallas, TX 75206
Bill To:
Mr. Erie Polioastro
1445 Ross Avenue
Suite 2500
Daltaa, Texas 752Q2-2711
Date Invoice No. P.O. Number Terms Client
06/02/14 13047 Net 30 Shields, Mckensld
Item Description Quantity Rate Amount
3sychological 'sychotoglcal Evaluation: 2.5 Hours, GAPS, score 2.5 360.00 875.00
Evaluation )ate: 9/2/14
Songultatlon ionsultaton with Attomey;1/2 Hour, CAPS 0.5 850.00 175.00
inrfth Attorney 3Eda:8/a/U
consultation Sonsuftatlon with Attorney:1 Hour, Schwelger Date 1 350.0C 350.00
ift/ith Attorney 1/6/14
Inten/iew rrtervtew witness:1 Hour, Randall Shields, Date: 1 350.0C 360.00
witness )/12/14
Interview ntervl9wwttness:1/2 Hours 'Date;9/15/14; Robin o.e 350.0C 175.00
witness Shields
Record Review review of Records:1 Hours Date; 7/17/2014; 1 350.0C 350.00
iVQon'KQ file
Record Review Review of Records;1 Houra Date: 9/22/14; create 1 350.0( 360.0Q
sutllne
Consultatlan Sonaultation with AttQmey;1/2 hour, outline, fax, Q.£ aao.Qt 175.QQ
with Attorney deposition Date: 9/24/14
Deposition Deposition 1 hour 350,0( 850.00
Record Review Review of Records:2 Hours Date:9/24/1 4, 350.01 700.00
deposition, medicab(2 (therapy)
Total $10.325.0C
Page 2
PLTF002051
MANDAMUS RECORD - TAB 8
Exhibit 3
MANDAMUS RECORD - TAB 8
WILLIAM E. FLYNN, PH.D. VOLUME I December 19,2014
DOE vs. AJREDIN "DANNY" DEARI 1-4
Page 1 Page 3
1 NO. DC-1304564-L 1 APPEARANCES
2 JANE DOE, ) IN THE DISTRICT COURT 2 FOR THE PLAINTIFF:
Plaintiff, ) 3 MR. TREY H. CRAWFORD
3 ) Gruber Hurst Johansen Hail Shank, LLP
vs. ) 193RD JUDICIAL DISTRICT 4 1445 ROBS Avenue, Suite 2SOO
4 ) Dallas, Texas 75202
AJREDIN "DANNY" DEARI ,• ) 5 214.855.6800
5 DRITAN KREKA; PASTAZIOS ) 214.BS5.6808 FAX
PIZZA, INC.; ISLAND ) 6 fccrawford@ghjhlaw.com
6 HOSPITALITY MANAGEMENT, ) 7 FOR THE HOTEL DEFENDANTS:
INC,; HYATT HOTELS ) 8 MR. DAVID S. DENTON
7 CORPORATION; HYATT HOUSE ) Cobb Martinez Woodward
FRANCHISING, LLC; GRAND ) 9 1700 Pacific Avenue, Suite 3100
8 PRIX FLOATING LESSEE, ) Dallas, Texas 75201
LLC; INK ACQUISITION, ) 10 214.220.5200
9 LLC; INK ACQUISITION, II, ) 214.220.5299 FAX
LLC; INK ACQUISITION, ) 11 ddenfcon@cobbmartinez.corn
10 Ill, LLC; INK LESSEE, )
12 FOR THE DEFENDANT, POST PROPERTIES:
LLC,- INK LESSEE HOLDING, )
13 MR. RANGY A. NELSON
11 LLC; CHATHAM TRS HOLDING, )
Thompson Coe Cousins & Irons
LLC; CHATHAM LODGING, LP; )
14 700 North Pearl Street
12 JEFFREY H. FISHER, )
25th Floor - Plaza of the Americas
Individually; POST )
15 Dallas, Texas 75201
13 PROPERTIES, INC.- and DOES )
214.871.8200
1-25, )
14 Defendants. ) DALLAS COONTY, TEXAS 16 214.871.8209 FAX
15 rnelson@thompsoncoe.corn
16 17
17 18
18 ORAL AND VIDEOTAPED DEPOSITION OF ALSO PRESENT: Anthony Marlar - Videographer
19 WILLIAM E FLYNN, Ph.D. 19
20 DECEMBER 19, 2014 20
21 VOLUME 1 21
22
23 23
24 ORAL AND VIDEOTAPED DEPOSITION OF WILLIAM E. 24
25 FLYNN, Ph.D., produced as a witness at the instance of 25
Page 2 Page 4
1 the Hotel Defendants, and. duly sworn, was taken in the 1 INDEX
2 above-sfcyled and -numbed 2 Appea.i~g.nces Page 3
3 December, A.D., 2014, from 10:12 a.m. to 6;31 p.m. 3 Exhibit List.................................... .Page 5
4 before Carrie del Angel, 4 Examina.tion by Mr. Denton Page 6
5 Texas, reported, by machine shorthand., at the offices of s Examination by Mr. Nelson Page 206
6 Gruber Hurst Johansen Hail Shank, LLP, located at 1445 6 Exa.mina.tion by Mr, Cx'a.wford Page 210
7 Ross Avenue, Suite 2500; Dallas, Texas, pursuant to Texas 7 Furthei" Examinati.on by Mr, Denton Page 228
8 Rules of Civil Procedure and the provisions stated on the 8 Fuz~the2* Exa.mina.tion by Mr. Crawford. Page 231
9 record, or attached hereto 9 Furfchec Examination by Mr, Denton Page 233
10 10 Further ExaTninafcion by Mr, Cra.wfox'd. Page 234
11 11 Signa.tu.Te and. Corrections Page 236
12 12 Rexiorter' s Ce3~ti£icat& Page 238
13 13
14 14
15 15
16 16
17 17
18 18
19 19
20 20
21 21
22 22
23 23
24 24
25 25
800.211. DEPO (3376)
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MANDAMUS RECORD - TAB 8
WILLIAM E. FLYNN, PH.D. VOLUME I December 19, 2014
DOE vs. AJREDIN "DANNY" DEARI 5-8
Page 5 "Page 7
1 EXHIBIT LIST 1 the jury.
2 No. Description Page Page
Marked Ident. 2 A. My name is William Flynn, F-1-y-n-n.
3 3 Q. And is it okay if I refer to you as Dr. Flynn —
4 1 Printout of LegalPsychologist.corn
Web Site 8 8 4 A. It -
5
2 Handwritten Notes 11 11
5 Q. - today?
6 6 A. It is.
3 Invoice 16 16
7 7 Q. And you are a - you have a Ph.D. in psychology,
4 Handwritten Notes S2 S2 8 do you not?
5 The Forensic History Questionnaire 120 120 9 A. Yes, sir.
9 10 Q. Okay. And that's not a doctor in terms of an
6 Medical Center of Piano
10 Medical Records 130 130 11 M.D.,, a medical degree, correct?
11 7 User's Guide for the Structured
12 A. That's correct.
Clinical Interview for DSM-IV
12 Axis I Disorders 149 149 13 Q. Today you're here to testify as an expert
13
14
8 SCID-CV Diagnostic Summary 167 167
9 National Center for PTSD
14 witness on behalf of the plaintiff, are you not?
Clinician-Administered PTSD Scale 15 A. I am.
15 for DSM-IV Current and Lifetime
Diagnostic Version (CAPS-DX) 174 174
16 Q.. And just to get started, I want to have just a
16 17 little bit of background. Have you ever given
10 Harold Neil Jacobson, M.D.
17 Patient Face Sheet S/23/2014 183 183 18 deposition before?
18 11 Texas Behavioral Health Systems, 19 A. I have.
PA Initial Psychiatric Assessment 187 188
19 20 Q. How many times have you given your deposition
14 BDI-II 8/18/2014 233 233 21 before?
20
21 22 A. I don't have an exact number, but somewhere
22 Reporter's Note - Exhibit Nos. 12-13 were inadvertently
ski.pi36cl a.n.d not ma-rlcsd-
23 between 15 and 50. I know that's a wide margin, but I
23 24 haven't been keeping track.
24
25
25 Q., And all of your depositions that you've given,
Page 6 PageS
1 PROCEEDINGS 1 have you given them in the capacity as an expert witness?
2 THE VIDEOGRAPHER: We're now on the record 2 A. I don't know what that means, but I think the
3 for the videotaped deposition of Dr. William E. Flynn. 3 answer's yes.
4 The date today is December 19th, 2014. The time is 4 Q. Okay. Let me ask it this way: Have you ever
5 10:12 a.m. The case is entitled Jane Doe versus Ajredin 5 been a party to a piece of litigation?
6 "Danny" Deari, et al. Today's deposition is being held 6 A. No.
7 at Gruber Hurst, 1445 Ross Avenue, Dallas, Texas. 7 Q. When you've given the 15 or 50 - between 15 to
8 Will counsel please state your appearance 8 50 depositions, were those depositions given by you in
9 for the record. 9 the capacity as a psychologist?
10 MR. CRAWFORD: Trey Crawford on behalf of 10 A. Yes, sir.
11 the plaintiff. 11 Q. Okay. Do you know anyone at Gruber Hurst before
12 MR. DENTON: Good morning. David Denton on 12 you were hired for this assignment?
13 behalf of the hotel defendants. 13 A. do not - did not.
14 MR. NELSON: Randy Nelson on behalf of Post 14 Q. Did you know McKenzie Shields before you were
15 Properties. 15 hired for this piece of civil litigation?
16 DR. FLYNN: William Flynn, psychologist. 16 A. I did not.
17 WILLIAM E. FLYNN, Ph.D., 17 Q. What is the name of your business?
18 having been first duly sworn, testified as follows: 18 A. William Flynn, Psychologist.
19 EXAMINATION 19 Q. And you have a web page, do you not?
20 BY MR. DENTON: 20 A. Yes, sir.
21 Q. Good morning, Dr. Flynn. 21 Q. I'm going to hand you what I've marked as
22 A. Good morning. 22 Exhibit No. 1.
23 Q. My name is David Denton. I'm here - I 23 (Exhibit No. 1 was marked.)
24 represent the hotel defendants. And, if you would, 24 Q. (BY MR. DENTON) Exhibit No. 1 has a title of
25 please, introduce yourself to the ladies and gentlemen of 25 LegalPsychologist.com, does it not?
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MANDAMUS RECORD - TAB 8
WILLIAM E. FLYNN, PH.D. VOLUME December 19, 2014
DOE vs. AJREDIN "DANNY" DEARI 45-48
Page 45 Page 47
1 look at all the disorders of the DSM-IV. 1 them in?
2 Q. I tell you what. 2 Q. Sure. And all I'm trying to do is figure out
3 A. I- 3 when you administered the testing to -
4 Q. Let me - let's do it this way: The question 4 A. Okay.
5 that I have right now - 5 Q. - McKenzie Shields. I know we've got the
6 A. Yes, sir. 6 SCID-CV and the Personality Assessment Inventory. I'm
7 Q. - is just what tests did you perform, and we'll 7 just trying to figure out the other three.
8 talk later - I'll ask you some questions later about what 8 A. Okay. The BDI was administered on 8/18/2014, and
9 each one of those tests are intended to find, okay? 9 that is the Beck Depression Inventory II. The SIRS, the
10 A. Great. 10 Structured Interview Reported Symptoms was administered on
11 Q. So right now, the only question that I have 11 8/18/2014. The PAI was administered on 8/18/2014. And
12 pending is what tests did you administer to Ms. Shields, 12 what was your other question? I'm sorry.
13 McKenzie? 13 Q. The CAPS-DX. When was the CAPS-DX administered?
14 A. I administered the CAPS-DX, C-A-P-S, hyphen, 14 (Witness's microphone falls off.)
15 D-X;, I administered the PAI; I administered the SCID-1; I 15 A. Oh, I know we're not allowed to curse. Was
16 administered the BDI; and I administered the SIRS. 16 administered on 9/2/2014.
17 Q. Okay. And on Exhibit 3, it shows that you 17 Q. (BY MR. DENTON) And then you'd agree with me
18 administered the SCID, which is the one that we talked 18 that the SCID was administered as well on 8/18/2014,
19 about a moment ago, it's - it's the SCID-CV, and the 19 correct?
20 Personality Assessment Inventory, that was done on what 20 A. I don't - I don't know. Let me check.
21 you believe was 8/18/2014, correct? 21 Q. If you'd take a look at Exhibit No. 3 -
22 A. Yes, sir. 22 A. Yes, sir.
23 Q. And then when did you - when did you administer 23 Q. - under that one that was previously undated
24 the BDI-11 - and BDI stands for Beck Depression 24 that you said that - that, based on your notes, that you
25 Inventory, does it not? 25 thought that that psychological evaluation happened on
Page 46 Page 48
1 A. Yes, sir. 1 8/18/14?
2 Q. And then SIRS - SIRS-11, S-I-R-S-2 - and that 2 A. Yes, sir.
3 stands for - well, what does that stand for? 3 Q. Under that time entry for 2.5 hours, it does say
4 A. It - it would help me - my memory if - if your 4 the SCID, does it not?
5 question - if we did those one at a time. 5 A. Yes, sir, it does.
6 Q. Okay. The question I have pending right now is 6 Q. So on 8/18, if I understand you correct - your
7 what does the SIRS-11 stand for? 7 testimony correctly, you administered the SCID-CV,
8 A. It stands for the Structured Interview of 8 correct?
9 Reported Symptoms, comma, Second Edition. 9 A. Yes, sir.
10 Q. And as an expert witness in the field of 10 Q. Also on 8/18/2014, you administered the
11 psychology, did you need that document to go to find out 11 Personality Assessment Inventory?
12 what the S I RS-11 stand for? 12 A. Yes, sir.
13 A. No. 13 Q. Also on 8/18/2014, you administered the BDI-II,
14 Q. Okay. I didn't think so. I thought you were 14 correct?
15 doing that just for my benefit. 15 A. Yes, sir.
16 A. I was being helpful - 16 Q. And you administered the SIRS-11 on 8/18/2014,
17 Q. Thank you very much. 17 correct?
18 A. - which is always an error in this circumstance. 18 A. Yes, sir.
19 Q. Just a question came up when I - when I saw you 19 Q. And you were able to administer those four tests,
20 go to it. Okay. When did you administer the BDI-11, the 20 conduct a history, discuss the event, the post event with
21 SIRS-11 and then the CAPS-DX? 21 Ms. Shields for a total time of 2.5 hours; is -
22 A. May I consult my notes? 22 A. Yes, sir.
23 Q. Yes, sir. 23 Q. And then just skipping over to Page 2 of Exhibit
24 A. So, again, multiple questions. Could you say it 24 No. 3, at the very top, that's where — the very first
25 again so that I can remember the sequence that you asked 25 entry on September 2nd, 2014, that reflects your
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MANDAMUS RECORD - TAB 8
WILLIAM E. FLYNN, PH.D. VOLUME I December 19, 2014
DOE vs. AJREDIN "DANNY" DEARI 85-88
Page 85 Page 87
1 breathing, all the internal organs operating faster than 1 MR. CRAWFORD: Object - objection, form. He
2 they should be. So she re-experiences the rape itself 2 is going to do additional work. I -- to be clear, I - he
3 because of the fierciveness -- the fearfulness of that 3 will be asked -
4 event. She also avoids her feelings and has what's called 4 THE WITNESS: I didn't hear.
5 numbing. 5 MR. CRAWFORD: He will be asked to do some
6 And finally, she is super aroused or 6 additional work. David, I'm not trying to - his opinions
7 hyperaroused. She has difficulty falling asleep. She 7 are not going to change from his designation, but as stuff
8 walks up in the middle of the night sometimes screaming 8 comes in, they'll be reviewed, and he'll - he will share
9 and crying. She has irritability and outbursts of anger. 9 that with other experts that he needs to share it, just
10 She has difficulty concentrating, and she's looking over 10 for fair notice, to the extent he's willing.
11 her--she is hypervigilant. She's looking over her 11 Q. (BY MR. DENTON) As you sit here today, the
12 shoulder a lot and - with what we call an exaggerated 12 opinions that you've told us about a few minutes ago,are
13 startle response. 13 those all of the opinions that you have about Ms. Shields
14 So she - to repeat, she has panic attacks, 14 in relation to the work that you're doing on this file?
15 depression, frequent and severe symptoms of posttraumatic 15 MR. CRAWFORD: Objection, form.
16 stress disorder, and these have affected her work, her 16 A. I'd like to be able to give something rather than
17 school and her social life. And finally, to make certain 17 a yes or no. Is that okay or not?
18 that these symptoms that she's reporting and the 18 Q. (BY MR. DENTON) Yes, sir. You answer -
19 collateral witnesses have verified, in order to make sure 19 A. Okay.
20 that she is not feigning or malingering these symptoms, 20 Q. All that I - the only deal that I have is -
21 I've also tested her for feigning and malingering and have 21 A. Just asking.
22 found that she is not exaggerating or making up these 22 Q. - that you answer the question, and then you can
23 symptoms. 23 say whatever you want to,okay?
24 Q. Do you have any other opinions - 24 A. Great.
25 MR. CRAWFORD: Objection - 25 Q. So just answer the question -
Page 86 Page 88
1 Q. (BY MR. DENTON) - about Ms. Shields in relation 1 A. So - so to the question you've just asked,and
2 to your work on this file as an expert witness? 2 the reason why I have said "at this time" is I've done
3 MR. CRAWFORD: Objection, form. 3 follow-up with Ms. Shields, and as new information comes
4 A. At this time, I - I don't have any,but there - 4 in — like, for example, she has said that things are
5 but there might be some that I've forgotten about or - 5 getting worse, not better - it depends on what questions
6 but these - these are the main things that are impairing 6 I'm asked in the future as to whether I'll provide
7 her life. 7 something in addition to what I've already said.
8 Q. (BY MR. DENTON) The last two times that I've 8 For example, you didn't ask me - you asked
9 asked you questions, you've started with "at this time." 9 me what my opinion was, and my opinion - I gave opinion.
10 When I hear that, the question comes into my mind, do you 10 But you really didn't ask about is it getting worse, is it
11 have any intention of providing additional work on this 11 getting better, how old is she,does she - so depending
12 file to provide more or additional testimony — more or 12 upon what questions are asked of me, I'll simply give
13 additional opinions? 13 honest answers to whatever I'm asked. Does that make
14 MR.CRAWFORD: Objection, form. 14 sense?
15 Q. (BY MR. DENTON) Do you understand what I'm 15 Q. Yes, sir. Thank you, Dr. Flynn. Do you have an
16 asking? 16 opinion that her conditions are getting worse?
17 A. Yeah,I do. Am I going to do further interviews, 17 A. I do.
18 further testing, call additional people, review additional 18 Q. What is that based upon?
19 records? No, sir. Again, I know you don't like the 19 A. That's based upon my initial interview and
20 phrase "at this time," but at this time, I have no plans 20 testing of her and then a subsequent telephone follow-up.
21 to do any additional work. 21 In the telephone follow-up, she said that she has fragile
22 Q. It's not - it's not whether I like it or not, 22 sleep, she has fear of being alone, that she - that these
23 it's just one of those things that I just want to make 23 fearful anxiety panic symptoms are set off by what she
24 sure that you don't have a present intention to formulate 24 calls triggers; namely, the smell of pizza, proximity to
25 additional future opinions? 25 the restaurant where she first started walking to her car
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MANDAMUS RECORD - TAB 8
WILLIAM E. FLYNN, PH.D. VOLUME December 19, 2014
DOE vs. AJREDIN "DANNY" DEARI 157-160
Page 157 Page 159
1 clinician administering the SCID has subjective discretion 1 think'you may have it backwards —
2 to rate an item as present -- I'm sorry, as not present if 2 Q. (BY MR. DENTON) Okay.
3 the clinician doubts that a symptom is present even after 3 A. - in that if I believe or the clinician believes
4 the patient describes it? 4 that a sym -- a symptom is not present and the patient
5 MR. CRAWFORD: Objection, form. 5 disagrees with us, I'm going to put down it's not present.
6 A. Can you help me understand — 6 Not the other way around. So if — if the - so - do you
7 Q. (BY MR. DENTON) Sure. 7 understand what I'm saying?
8 A. - where you're reading that from so I can 8 Q. What you're saying is that, if the patient is
9 understand the question, please? 9 saying that a symptom is present -
10 Q. Yeah. If you go to Page 7 - 10 A. Right.
11 A. Yes. 11 Q. - but you believe it is not present -
12 Q. - and it's Bates labeled? 12 A. Right.
13 MR. CRAWFORD: I'm sorry, 7 in the same 13 Q. - you've got the subjective -
14 document? 14 A. Yes.
15 MR. DENTON: Yes. I'm still in the guide. 15 Q. - ability to say that it's not present?
16 MR. CRAWFORD: 7 of Exhibit 77 16 MR. CRAWFORD: Object to the word
17 MR. DENTON: Yes, sir. And it's Bates 17 "subjective" being inserted in that question. So I object
18 labeled PLTF1738. 18 to the form?
19 A. And where are you on Page 7? Which column? 19 A. Yes, sir.
20 Which paragraph? 20 Q. (BY MR. DENTON) Similarly, I'm looking at this
21 Q. (BY MR. DENTON) Give me just a meant and I'll 21 very first sentence on that paragraph, and it says,
22 point you to the language. 22 Ultimately, the clinician must make a clinical judgment as
23 A. Sure. 23 to whether a diagnostic criterion is met. Now, would that
24 Q. Okay. On the very first full paragraph on Page 24 also mean that you have the judgment, the discretion to
25 7, it begins with the word "ultimately." 25 find or
3r not find whether a diagnostic criterion is met?
Page 158 "Page 160
1 A. Yes, sir. 1 A. It does.
2 Q. Let me read this to you, and then I'll ask my 2 MR.CRAWFORD: Object to form.
3 question, okay? 3 Q. (BY MR. DENTON) You can -
4 A. Okay. 4 A. It does.
5 Q. It says, Ultimately, the clinician must make a 5 Q. What module did you use to — to test
6 clinical judgment as to whether a diagnostic criterion is 6 Ms, Shields?
7 met. If the clinician is convinced that a particular 7 A. I used mood disorders.
8 symptom is present, he or she should not allow the 8 Q. Would that be mood disorder due to general
9 patient's denial of the symptom to go unchallenged. 9 medical condition or —
10 A. Okay. 10 A. Major depressive episode criteria.
11 Q. In rare -- in rare cases, an item may be coded as 11 Q. Which module is that? Is it under —
12 present everybody when the patient steadfastly denies it, 12 A. It's A.
13 e.g., a patient who claims that spending two hours a day 13 Q. A?
14 in a handwashing ritual is not excessive or unreasonable, 14 A. Module A.
15 yet if the clinician doubts that a symptom is present, 15 Q. Okay. Thank you.
16 even after hearing the patient describe it, the item 16 A. Sure. I used Module F.
17 should be rated as not presented. It is not necessary to 17 Q. Why did you use Module F?
18 get the patient to agree that the symptom is not present. 18 A. Anxiety and other disorders.
19 The question that I had based on that paragraph is isn't 19 Q. What type of disorders are you testing for under
20 it true that a clinician administering the SCID-1 has 20 Module F?
21 subjective discretion to rate an item as not present if 21 A. Panic attacks.
22 the clinician doubts that a symptom is present even after 22 Q. What else?
23 the patient describes it? 23 A. Agoraphobia.
24 MR. CRAWFORD: Objection, form. 24 Q.. Are you sure that's under Module F? Yes. I see
25 A. I understand the nature of the question, but I 25 that now. Okay. What else? It would be panic disorder
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MANDAMUS RECORD - TAB 8
WILLIAM E. FLYNN, PH.D. VOLUME I December 19, 2014
DOE vs. AJREDIN "DANNY" DEARI 213-216
Page 213 Page 215
1 Dr. Hamilton administered a SIRS-11 test to Ms. Shields? 1 Q. (BY MR. CRAWFORD) I couldn't hear your answer.
2 A. I don't know. 2 A. I do recall that.
3 Q. Do you know whether or not they administered the 3 Q. All right. Was that instance something that you
4 BDI test to Ms. Shields? 4 specifically and in-depth discussed with Ms. Shields prior
5 A. I do not know. 5 to arriving at your opinions?
6 Q. What about the SCID-1 test to Ms. Shields? 6 A. Absolutely.
7 A. I don't know. 7 MR. NELSON: Objection, form.
8 Q. What about any of the tests that you took the 8 THE WITNESS: I'm sorry, I'm a little - I
9 time to administer to Ms. Shields? Do you know if 9 didn't hear.
10 Dr. Jacobson or Dr. Hamilton administered any of those 10 MR. NELSON: I wasn't talking to you. I was
11 tests to Ms. Shields? 11 making an objection.
12 A. I don't know. 12 THE WITNESS: I beg your pardon.
13 Q. But you did? 13 MR. NELSON: I'm making an objection.
14 A. I did. 14 MR. CRAWFORD: He's just making an objection.
15 Q. And are those tests the tests that you performed 15 A. I understand. I like to hear what's going on in
16 on Ms. Shields regularly accepted in the professional 16 case someone is talking to me.
17 community which you're a partpf? 17 MR. CRAWFORD: That's all right. Do you mind
18 A. Yes, sir. These are reliable and valid 18 repeating the question, please?
19 instruments for the symptoms that I was testing for. 19 MR.DENTON: It was so good, you can't
20 Q. Did I ever suggest to you before you did these 20 remember.
21 tests that we want you to find anything about Ms. Shields' 21 MR. CRAWFORD: I'll repeat it.
22 mental state one way or another? 22 (Reporter starts to read back the last
23 A. No, sir. 23 question.)
24 Q. Even suggest it to you? 24 MR. CRAWFORD; I'll repeat it.
25 A. No, sir. 25 Q. (BY MR. CRAWFORD) Was the other sexual encounter
Page 214 Page 216
1 Q. What'd I tell you to do? 1 that Ms. Shields had with — I think he was Asian
2 A. You told me to look at what her emotional 2 according to the records in California something that you
3 condition was before the alleged rape versus after the 3 discussed with Ms. Shields and considered prior to
4 alleged rape. 4 arriving at your opinions?
5 Q. And did the methodology that you used to do that, 5 A. I did.
6 is that methodology consistent or inconsistent with 6 Q. Does the fact that it's referenced in some
7 regularly accepted methodologies from others in your 7 medical doctors' notes make you want to ask Ms. Shields
8 chosen field? 8 any additional questions or examine her further with
9 A. It is. 9 respect to that particular encounter, or does it have no
10 Q. Is it objective -- or is it objective data from 10 effect on what she informed you about that particular
11 which you used in arriving at your opinions? 11 encounter?
12 A. It is mostly objective and some clinical judgment 12 MR. DENTON: Objection, form.
13 or subjective. 13 A. I would like to know why she went to the
14 Q. And that's a part of any medical profession, is 14 hospital, whether her parents made her go, what the nature
15 the clinical judgment, correct? 15 of that was about - yeah, I would like to ask her some
16 A. Yes, sir. 16 questions.
17 Q. Let's talk about this - this other alleged 17 Q. (BY MR. CRAWFORD) Okay. And I'll -- I'll
18 statutory sexual assault - 18 absolutely afford you that opportunity. Have you ever had
19 MR. DENTON: Objection, form. 19 any discussions with Ms. Shields' mother or Ms. Shields
20 Q. (BY MR. CRAWFORD) - for a minute. You remember 20 about that particular encounter — or let me strike that.
21 when Mr. Denton was asking you questions about the other 21 Have you ever had any conversations with
22 alleged sexual assault? I think those are the words he 22 Ms. Shields or her mother or father about the reporting of
23 used. Do you recall that? 23 that encounter or whose idea it was?
24 A. Ida. 24 MR. DENTON: Objection, form.
25 MR. DENTON: Objection, form. 25 A. About -
ESQUIRE S Q L Li T I 0 N S
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EsquireSolutions. corn
MANDAMUS RECORD - TAB 8
WILLIAM E. FLYNN, PH.D. VOLUME I December 19,2014
DOE vs. AJREDIN "DANNY" DEARI 237-240
Page 237 Page 239
1 I, WILLIAM E. FLYNN, Ph.D., have read the foregoing 1 by the witness/
deposition and hereby affix my signature fchat same is
2 That the deposition transcript was submitted on
2 true and correct except as noted herein.
3 3 to the witness or to the attorney for the
WILLIAM E. FLYNN, Ph. D. 4 witness for examination/ signature and return to me by
4
5
THE STATE OF )
5 COUNTY OF ) 6 That the amount of time used by each party at
6 Before me, on this day 7 the deposition is as follows:
personally appeared known to me
8 Mr. Trey H. Crawford ~ 0 hours/ 25 minutes,
7 or proved to me under oath or through _ to be
the person whose name is subscribed to the foregoing 9 Mr. David S. Denton - 6 hours, 2 minutes,
8 instrument and acknowledged to me that they executed the 10 Mr. Randy A. Nelson - 0 hours, 5 minutes;
same for the purposes and consideration therein
11 That pursuant to information given to the
9 expressed.
Given under my hand and seal of office this 12 deposition officer at the time said testimony was taken,
10 day of _ _, 2014. 13 the following includes counsel for all parties of record;
11
14 Mr. Trey H. Crawford, Attorney for Plaintiff,
12 NOTARY PUBLIC IN AND FOR IS Mr. David S. Denton, Attorney for the Hotel
THE STATE OF TEXAS
16 Defendants,
13
14 17 Mr. Randy A. Nelson, Attorney for Post
IS 18 Properties;
16
19 I further certify that I am neither counsel for/
17
18 20 related to, nor employed by any of the parties or
19 21 attorneys in the action in which this proceeding was
20
22 taken, and furfcher that I am not financially or otherwise
21
22 23 interested in the outcome of the action.
23 24 Further certification requirements pursuant to
24
25 Rule 203 of TRCP will be certified to after they have
25
Page 238 Page 240
1 NO. DC-1304564-L 1 occurred.
2 JANE DOE, ) IN THE DISTRICT COURT 2 Certified to by me this the 23rd day of
Plaintiff, )
3 December, 2014.
3 )
) 133RD JUDICIAL DISTRICT 4
C.^w, ^ifa"'
vs.
4 ) s
AJREDIN "DANNY" DEARI; ) 6
5 GRITAN KREKA; PASIAZIOS ) CARRIE DEL ANGEL, CSK
PIZZA, INC.; ISLAND )
7 TEXAS CSR NO. ; 6036
6 HOSPITALITY MANAGEMENT, )
INC . ; HYATT HOTELS ) Expiration Date; 12\31\15
7 CORPORATION; HYATT HOUSE ) 8
FRANCHISING, LLC; GRAND I Esquire Solutions
8 PRIX FLOATING LESSEE, )
9 Firm Registration No. 286
LLC; INK ACQUISITION, )
9 LLC; INK ACQUISITION, II, ) 1700 Pacific Ave., Suite 1000
LLC; INK ACQUISITION, ) 10 Dallas, Texas 75201
10 Ill, LLC; INK LESSEE, ) (214) 257-1436
LLC; INK LESSEE HOLDING, )
11
11 LLC; CHATHAM TRS HOLDING, )
LLC; CHATHAM LODGING, LP; ) 12
12 JEFFREY H. FISHER, ) 13
Individually; POST ) 14
13 PROPERTIES, INC; and DOES )
IS
1-25 , )
14 Defendants. ) DALLAS COUNTY, TEXAS 16
15 17
16 REPORTER' S CERTIFICATION 18
17 DEPOSITION OF WILLIAM E. FLYNN, Ph. D.
19
18 DECEMBER 19, 2014
20
19
20 I, Carrie del Angel, a Certified Shorthand 21
21 Reporter in and. for the- State of Texas, hereby certify to 22
22 the following: 23
23 That the witness WILLIAM E. FLYNN, Ph.D., was
24
24 duly sworn by the officer and that the transcript of the
2S oral deposition is a true record, of the testimony given 25
ESQUIRE SO L U T I Q N S
800.211. DEPO (3376)
Esquire Solutions, corn
MANDAMUS RECORD - TAB 8
WILLIAM E. FLYNN, PH.D. VOLUME I December 19, 2014
DOE vs. AJREDIN "DANNY" DEARI 241
Page 241
FURTHER CERTIFICATION UNDER RULE 203 TRCP
The original deposifcion was _ was nofc
returned to the deposition officer on
If returned, the attached Changes and Signature
page contains any changes and the reason therefore;
If returned./ the original deposition was
delivered, to , Custodian Attorney;
That $_ _ is the deposition officer's
charges to the Defendant for preparing the original
deposition transcript and any copies of exhibits;
That the deposition was delivered in accordance
with Rule 203.3, and that a copy of this certificate was
served on all parties shown herein and filed with the
Clerk.
Certified to by me this _ day of
2014.
CARRIE DEL ANGEL, CSR
TEXAS CSR No. 6036
Expiration Date; 12/31/15
Esquire Solutions
1700 Pacific Ave., Suite 1000
Dallas, Texas 75201
(214) 2S7-1436
ESQUIRE SOLUTIONS
800.211. DEPO (3376)
EsquireSolutions. corn
MANDAMUS RECORD - TAB 8
Exhibit 4
MANDAMUS RECORD - TAB 8
Apr 13 2015 9;48AM Dr. Clayton 8174163668 page 2
Cause Number: OC-13-04S64
JANE DOE, § IN THE DISTRICT COURT
§
Plaintiff^ §
§
§ 193rd JUDICIAL DISTRICT COURT
§
ISLAND H05PITAUTY MANAGEMENT, INC.; §
HYATT HOTELS CORPORATION; HYATT HOUSE 5
FRANCHISING, LL.C,; GRAND PRIX FLOATING §
LESSEE, LLC; INK ACQUISITION, UC; INK §
ACQUISITION (1, LLC; INK ACQUISITION III, §
LLC; INK LESSEE, LLQ INK LESSEE HOLDING, §
LLC; CHATHAM TRS HOLDING, INC.; §
CHATHAM LODGING, LP.; JEFFREY H. FISHER, §
Individuatty; POST PROPERTIES, INC.; POST §
ADDISIQN CIRCLE LIMITED PARTNERSHIP; §
PASTAZIOS PIZZA, INC.; AJREDIN "DANNY" §
DEARI; DR1TAN KREKA; and DOES 1-25, §
§
defendants, §
§
§
s
fi DALLAS COUNT/, TEXAS
APFIDAVIT OF LISA K. CLArTON. M,D,
STATE OF TEXAS §
&
COUNTY OF DAUAS §
BEFORE ME, the undersigned authority, on this day personady appeared Lisa K. Clayton,
M,D., who being duly sworn ypon his oath deposed and stated as follows;
1. "My name is Usa K. Clayton, M.D. I am over the age of eighteen (18) years/ have never b&en
convicted of a felony, and jl am of sound mind. I am competent to testify to the matters stated
herein^ The matters stated herein are based on my personal knowledge and are true and
correct.
2. I am a medical doctor, and t hold board certifications in psychiatry and forensic psychiatry. I
have been designated as ai testifying eKpert in this lawsuit. The areas of my testimony are set
Page (of 3
MANDAMUS RECORD - TAB 8
Apr 13 2015 9;48AM Dr. Clayton 8174163668 page
forth in my expert designation. Among other subject matters, t wlfl testify in response to
Plaintiff's psychology expert's opinions.
3, I have formed .opinions based upon my review of the file of Plaintiffs psychology expert, Dr,
William Flynn, including the records and raw data from the mental examinations conducted
by Dr. Flynn or at his direction. However, Dr. Fjynn's raw data Is partially based on his
subjectlva Interpretation of Plaintiffs responses after observing her, and I would like to
conduct my own independent examination of Plaintiff to contest Dr. Ffynr/s opinions based
on my own observations regarding Plaintiff.
4, Dr. Flynn a^mlntstersct to Plaintiff the CAPS-DX, the Personality Assessment Inventory ("PAI"),
the Structured Clinical Interview for DSM Disorders ("5CID-1"), the Beck Depression Inventory
("BDI"), and the Structured Interview of Reported Symptoms, Second Edition ("SIRS ff). AH
of these tests are proprietary and copyrighted and can be administered and utilized only
when they are paid for. While Dr, Flyn" administered many tests, he did not ad minister the
test utilized to determine genuine verses mah'ngered or feigned Post Traumatic Stress
Disorder ("PTSD") with a party in litigation. Hence, Or. Flyrm''s examination was incomplete.
5, The scope of my proposed examination is: (a) a clinical interview lasting no more than four
hours where Plaintiffs history and personality disorders would be discussed, and (b) a
Minnesota IVlultiphsslc Personality Inventory-2 ("MMPI-Z"), The Intervlswand MMPI-2 are
intended to explore Plaintiff's alleged PTSD, and other msntat issues, as the alleged issues
relate to the sexual as$ault that fs the subject of this lawsuit.
6, Ttie MMPI-2 Is commonly used and relied upon for clinical treatment, as well as in the area
of forensic psychiatry. Further, it Is the most wfdely recognized tool to diagnose genuine
verses malingered or feigned PTSD within the forensic psychiatric community, The MMPI-2
consists of 567 questions and takes approximately 60 to 120 minutes to complete. I will
administer, score, and interpret Plaintiff's responses to the questions. This test will be used
ir> collaboration with the clinical interview, The clinical interview is necessary to interpret the
results to the MMPI-2.
7. The clinical interview will be no more than four hours. The topics covered during the
Interview Include identification of Plaintiff's symptoms, the history of Plaintiffs present
mental disorders, psychiatric history, medical history, family history, social history, sexual
history, substance use and abuse, and mental status examination (i.e., behavior, speech,
judgment, mood, insight and judgment), The Interview will be held at mySouthtake Office
betwe|en Plaintiff and me. I will take notes of the inteirview, and they will be made available
to Plaintiff's counsel and Or, Flynn. The clinical interview allows me to obtain information
that is not available from any other source than Plaintiff, In order for me to have all the
information to challenge Dr. Flynn's opinions, I need to be able to conduct an Independent
evaluation of Plaintiff. Unless I am allowed to examine Plaintiff, my analysis will be limited to
a review of Plaintiff's records and Dr. Flynn/s testimony. Without an independent
examination, I would be precluded from examining matters not coverad by Dr, Flynn, and I
Pnge 2 ftf3
MANDAMUS RECORD - TAB 8
Apr 13 2015 9:48AM Dr, Clayton 8174163668 page 4
would be precluded from making my own observations of Plaintiff. Furthermore, without an
independent examination/the Hotel Defendants would be restricted from the opportunity to
discover facts that may contradict Dr, Ftynn's opinions.
8. The requested clinical interview and MMPI-2 woijld both provide additional information
relating to Plaintiffs historical, current, and future mental health symptoms, diagnoses,
problems, and treatments. For example, the requested examination would provide
Information regarding ths impact of the sexual assault that is the subject of this lawisuit on
Plaintiffs past and future mental health, events in Plalntrff's life other than the sexual assault
that impact her mental health, Pteintlffs' mental health issues existing prior to or unrelated
to the sexuat assault, and whether - and the extent to which - future mental health treatment
Is needed. Such information directly bears on the alleged past and future mental anguish
injuries and damages that are at issue in this lawsuit. The requested examination ts intended
to explore Plaintiffs allegations of mental anguish as they relate to her ability (or inability) to
go to college, explore certain career paths, and otherwise live i_ 2015, to
certify which witness my hand and seal of office.
Notaryfubtic in and fo
the State of Texas
Doc No, d 5925 .^•^w".""^.,
^0^JPSeP^- Yoo
^NS^ CGiwnission Expires
04..23-20S6
Page 3 of 3
MANDAMUS RECORD - TAB 8
Exhibit 5
MANDAMUS RECORD - TAB 8
Cause Number: DC-13-04564
JANE DOE, § IN THE DISTMCT COURT
Plaintiff,
§
V. § 193rd JUDICIAL DISTRICT COURT
§
ISLAND HOSPITALITY MANAGEMENT, §
INC.; HYATT HOTELS CORPORATION; §
HYATT HOUSE FRANCHISING, L.L.C.; §
GRAND PMX FLOATING LESSEE, LLC; §
INK ACQUISITION, LLC; INK §
ACQUISITION II, LLC; INK §
ACQUISITION m, LLC; INK LESSEE, §
LLC; INK LESSEE HOLDING, LLC; §
CHATHAM TRS HOLDING, INC.; §
CHATHAM LODGING, L.P.; JEFFREY
H. FISHER, Individually; POST
PROPERTIES, INC.; POST ADDISION
CIRCLE LIMITED PARTNERSHIP;
PASTAZIOS PIZZA, INC.; AJI?DIN §
"DANNY" DEARI; DRITAN KREKA; and §
DOES 1-25, §
§
Defendants. § DALLAS COUNTY, TEXAS
PLAINTIFF'S TEX. R. CTV. P. 194.2fF» EXPERT WITNESS DESIGNATIONS
Pursuant to the 193 Judicial Distdct Court's Standing Scheduling Order and TEX. R.
Civ. P. 194.2(f), PlamtiffJane Doe ("Plaintiff") hereby makes and serves Plaintiff's TEX. R. Civ.
P. 194.2(f) Expert Witness Designations, Plaintiff reser/es the right to designate rebuttal expert
witnesses, designate expert witnesses identified by Defendants, and supplement and/or amend
these expert witness designations as discovery continues and additional facts and evidence have
been learned and produced.
PLAINTIFF'S TEX. R. CJV. P. 194.2(F) EXPERT WITNESS DESIGNATIONS PAGE 1 OF 20
MANDAMUS RECORD - TAB 8
Respectfully submitted,
ROYCE WEST G. MICHAEL GRUBER
State Bar No. 21206800 State Bar No. 08555400
rQVce.w{%westllp_.oom mgruber(S),ghihlaw. corn
VERETTA FRAZIER EMC POLICASTRO
State Bar No. 00793264 State Bar No. 24068809
veretta.f(%westllp.cQm epolicastro@ghihlaw. corn
NIGEL REDMOND TREY CRA.WFORD
State Bar No. 24058852 State Bar No. 24059623
nigel.r(%westllp .corn tcrawford(%ghihlaw. corn
WEST & ASSOCIATES, L.L.P. GRUBER HURST JOHANSEN HAIL SHANK LLP
P.O. Box 3960 1445 Ross Aveme, Suite 2500
Dallas, Texas 75208-1260 Dallas, Texas 75202
Ofc.; (214)941-1881 214.855.6800 (main)
Fax: (214) 941-1399 214.855.6808 (facsimile)
ATTORNEYS FOR PLAINTIFF
CERTIFICATE OF SERVICE
The undersigned hereby certifies that a true and correct copy oi Plaintiff's TEX. R. Civ. P.
194.2 (f) Expert Witness Designations were served—in accordance with TEX. R. ClV. P. 21,
2 la—on April 30,2014 via certified mail, return receipt requested to all counsel of record.
Erie Policastro
PLAINTIFF'S TEX. R. CIV. P. 194.2(F) EXPERT WITNESS DESIGNATIONS PAGE 2 OF 20
MANDAMUS RECORD - TAB 8
PLAINTIFF'S TEX. R. CIV. P. 194.2(T) EXPERT WITNESS DESIGNATIONS
(f) For any testifying expert:
(1) the expert's name, address, and telephone number;
(2) the subject matter on which the expert will testify;
(3) the general substance of the expert's mental impressions and opinions and a
brief summary of the basis for them, or tf the expert is not retained by, employed
by, or otherwise subject to the control of the responding party, documents reflecting
such information;
(4) if the expert is retained by, employed by, or otherwise subject to the control of
the responding party:
(A) all documents, tangible things, reports, models, or data compilations that
have been provided to, reviewed by, or prepared by or for the expert in
anticipation of the expert's testimony; and
(B) the expert's current resume and bibliography;
RESPONSE:
The following individuals have been retained by Plaintiff in this case to help the jury and
Court better understand various medical, scientific, professional, technical, and/or scientific
aspects of the claims brought by Plaintiff due to the damages she incurred that were caused by
Defendants' tortious conduct:
I. RETAINED TESTIFYING EXPERTS
Dr. Claire E. Brenner, M.D.
Dr. Claire E. Brenner, M.D.—(972) 494-1155, 2241 Peggy Lane Suite E, Garland, Texas
75042—is a medical doctor who holds board certifications in infectious disease and internal
PLAINTIFF'S TEX. R. CIV. P. 194.2(F) EXPERT WITNESS DESIGNATIONS PAGE 3 OF 20
MANDAMUS RECORD - TAB 8
medicine. Please see the attached Exhibit A for a copy of Dr. Brenner's resume and/or
bibliography. In this case. Dr. Brenner may testify concerning the clinical course of infectious
diseases, including the herpes virus, generally, as well as in Plaintiffs case. Dr. Brenner may
testify about the general nature, incubation, presentment, recurrence, and effects of the herpes
virus related to an individual who is infected with the disease, including Plaintiff. Dr. Brenner
may testify concerning the clinical course, progression, treatment, effects (physical, emotional,
fmancial, etc.), and prognosis of an individual diagnosed with the herpes virus, and the fact that
there is no cure for the herpes virus, generally, as well as the same categories of testimony
regarding Plaintiff. Additionally, Dr. Brenner may testify generally as to the human anatomy, the
effect of the herpes virus on an infected individual's body, mind, and quality of life, as well as
the irreversible effects of the herpes virus, complications caused by the herpes virus throughout
an individual's life including during pregnancy/labor and the effects it may have on a newborn
child. Dr. Brenner may testify about the effect the herpes vims has on an infected individual's
immune system throughout said individual's life. Dr. Brenner may testify about the progression
of the disease in Plaintiff, and the mental, physical, psychological, fmancial, and physiological
obstacles Plaintiff will encounter throughout her life as a result of the rape and the disease. She
may also testify concerning the scientific literature on the biological, physical, physiological,
social, and mental effects of infectious diseases—including the herpes virus—authored by Dr.
Brenner and others. Dr. Brenner may testify as to Plaintiffs and Defendant Dear!'s medical
history, respectively. She may testify concerning the transmission of the herpes virus from one
individual to another, including the same for Plaintiff. Dr. Brenner may testify as to the
procedures, protocols, tests, and science behind the same that a medical staff could and would
observe and/or perform for an individual who is suspected to have been the victim of a sexual
PLAINTIFF'S TEX. R. CIV. P. 194.2(F) EXPERT WITNESS DESIGNATIONS PAGE 4 OF 20
MANDAMUS RECORD - TAB 8
assault, including what was done for Plaintiff on April 26, 2011. Dr. Brenner may testify as to
the results of the rape kit performed on Plaintiff on April 26, 2011, as well as the results of the
State of Texas's sexually transmitted disease test of Defendant Deari. Dr. Brenner may testify
that the herpes virus that Plaintiff presented to Parkland hospital in May .2011 was consistent
with an initial outbreak of herpes that took place during and/or immediately after the generally
accepted incubation time for the disease after an individual's first exposure. Dr. Brermer may
testify that Plaintiff may require medical monitoring, treatment, aad/or hospitalization as a result
of the disease. Dr. Brenner may also testify that Plamtiffhas incurred in the past, and will incur
in the future, medical expenses as a result of the herpes virus she contracted from the sexual
assault that took place at the Hyatt House hotel. Dr. Brenner may also testify that said past and
future medical expenses are reasonable and necessary, especially in light of the incurable nature
of the disease for which Plaintiff has been diagnosed. Dr. Brenner may further testify as to facts
and circumstances regarding the nature of the injuries and damages that are the subject of this
action. Dr. Brenner's testimony will be based upon her skill, knowledge, education, experience,
and training, as well as her review of Plaintiffs medical records and diagnoses, scientific
literature and studies, and the evidence, pleadings, and discovery served, produced, and/or
elicited in this case and based upon a reasonable degree of medical and scientific probability
and/or certamty, Plamtiff reserves the right to supplement and/or amend this expert witness
designation as discovery continues and additional facts and evidence have been learned and
produced.
Mr. John A. Harris. CPA, CPP, PSP
Mr. John A. Harris, CPP, PSP, CPA—(404) 888-0060, 1170 Peachtree Street, Suite 1200,
Atlanta, Georgia 30309—is a premises liability and forensic security expert. Please see the
PLAINTIFF'S TEX. R. CIV. P. 194.2(F) EXPERT WITNESS DESIGNATIONS PAGE 5 OF 20
MANDAMUS RECORD - TAB 8
attached Exhibit B for a copy of Mr. Harris's resume and/or bibliography. Mr. Harris is board
certified in security management (CPP) and Physical Security (PSP) by the professional
certification board of ASIS International, an ANSI accredited standards development
organization with worldwide membersMp of over 37,000 security professionals. Mr. Harris's
CPP certification, is the preeminent designation awarded to individuals whose primary
responsibilities are m security management and who have demonstrated advanced knowledge in
security solutions and best business practices. Mr. Harris's experience in physical security began
/
over 40 years ago when he was undergoing training to become a commissioned officer in the
United States Marine Corps, and he has conducted over 1,200 security risk assessments of
various types of commercial properties including apartments, hotels, office buildings, parking
lots, and mails located m 43 states as well as in Puerto Rico, the Virgm Islands, and Colombia,
South America. In this case, Mr, Harris may testify that the sexual assault of Plaintiff on April
26, 2011, while the guest of an invitee and/or invitee at the Hyatt House located at 4900 Edwin
Lewis Drive m Addison, Texas, was reasonably foreseeable and should have been anticipated by
the "Hotel Defendants' based on the crimes committed on the premises and the surrounding
area m the five years preceding April 26, 2011. Mr. Harris may testify that, prior to April 26,
2011, there had been sufficient crime committed at the Hyatt Hotel—including an armed robbery
of an employee of the Hotel Defendants' just months before Plaintiff was raped on the same
premises—and in the immediate vicinity to put the Hotel Defendants on notice that reasonable
security measures were needed for the security, safety and well-being of their guests, invitees,
and other people legally on their property. Mr. Harris may testify that in the five years preceding
1 As used herein, "Hotel Defendants" refers to Island Hospitality Management, Inc., Grand Prix
Floating Lessee, LLC, Hyatt Hotels Corporation, Hyatt House Franchising, LLC, Jeffrey H.
Fisher, Chatham Lodging, L.P., Chatham TRS Holding, LLC, Ink Acquisition, LLC, Ink
Acquisition II, LLC, Ink Acquisition III, LLC, Ink Lessee Holding, LLC, and Ink Lessee LLC.
PLAINTIFF'S TEX. R. CTV. P. 194.2(F) EXPERT WITNESS DESIGNATIONS PAGE 6 OF 20
MANDAMUS RECORD - TAB 8
the attack on Plaintiff at the hotel, that there had been a significant number of criminal incidents
reported to the Addison Police Department (including multiple crimes at the Hyatt House hotel
and other hotels immediately in the vicinity of the Hyatt House hotel) such that the real potential
of a violent crime taking place at the hotel was reasonably foreseeable. Mr. Harris may testify
that these reported offenses included violent crime that the Hotel Defendants either knew or
reasonably should have known about and should have taken proactive steps to ensure the security
of its premises but did not. Mr. Harris may testify that the Hotel Defendants negligently failed to
analyze the level of crime at or near the Hyatt House hotel provided by the Addison Police
Department and the Texas Department of Public Safety and to utilize those analyses in
determining the security needs of the property, and fhat the Hotel Defendants negligently failed
to request any mformation from the Addison Police Department regarding past or current
criminal incidents on the premises and in the immediate vicinity as a reasonably prudent hotel
operator would and should have done. Mr. Harris may testify that the Hotel Defendants failed to
conduct either component of a. security risk assessment, including the failure to conduct a threat
assessment (based upon historical information of past criminal events, actual threats, inherent
threats, and potential threats by virtue of the vulnerabilities around the hotel or weaknesses in the
security program which produce opportunities for crime to occur) and the negligent failure to
conduct a vulnerability assessment to analyze the weaknesses of the Hotel Defendants' security
program or, alternatively, that the Hotel Defendants negligently failed to engage a professional
security consultant to conduct the analysis. Mr. Harris may testify that the Hotel Defendants'
negligent failure to conduct a security risk assessment made it impossible for the Hotel
Defendants to assess the likelihood that criminals could and would exploit vulnerabilities or
compromise security countermeasures at the hotel. Mr. Harris may testify that, based upon the
PLAINTIFF'S TEX. R. CIV. P. 194.2(F) EXPERT WITNESS DESIGNATIONS PAGE 7 OF 20
MANDAMUS RECORD - TAB 8
Hotel Defendants' experience in the lodging industry, the Hotel Defendants knew or should have
known that their guests, mvitees, and other people legally on their property were at risk to
criminal activities if reasonable security measures were not undertaken, and that the Hotel
Defendants knew or should have known that m the absence of reasonable security measures, the
multiple property crimes (e.g., theft, vehicle break-ins, etc.) that were reported at the Hyatt
House hotel can lead to violent crimes against persons. Mr. Harris may testify that it is generally
accepted that most crimes are not random events, but planned events in environments -which
provide the opportunity to commit a crime with the least likelihood of detection, intervention and
apprehension and, further, that these conditions existed at the Hyatt House hotel on, and prior to,
the April 26, 2011 attack on Plaintiff yet the Hotel Defendants did nothing. Mr. Harris may
testify that the Hotel Defendants negligently failed to have security and/or adequate security at
the Hyatt House hotel and that the Hotel Defendants knew or should have known that they did
not have security and/or adequate security and that the inadequate security was unreasonably
safe. Mr. Harris may testify that, at all pertinent times, the Hotel Defendants owned, operated,
and/or controlled the Hyatt House hotel, and that the Hotel Defendants owed a duty to Plaintiff
to exercise reasonable care (at a minimum) to protect Plaintiff from criminal attacks and other
reasonably foreseeable injuries. Mr. Harris may testify that the Hotel Defendants breached its
duties by committing the following non-exhaustive list of acts or omissions: (1) the Hotel
Defendants negligently failed to exercise reasonable care in providing security guard services
(the same services that were once provided but eliminated due to an attempted cost savings
measure by the Hotel Defendants); (2) the Hotel Defendants' failure to implement sufficient
security measures and conduct any type oftb-eat assessment or security assessment for the Hyatt
House hotel at any point in time (including to this day); (3) the Hotel Defendants' negligent
PLAINTIFF'S TEX. R. CIV. P. 194.2(F) EXPERT WITNESS DESIGNATIONS PAGE 8 OF 20
MANDAMUS RECORD - TAB 8
/•-'
\,;_, - -
failure to properly train any of its employees on adequate security measures for the safe
operation of a hotel; (4) the Hotel Defendants' negligent failure to have more than one employee
working during the hours of 7:00 p.m. and 11:00 p.m. when Plaintiff was being sexually
assaulted at the hotel; (5) the Hotel Defendants' negligent failure to implement security policies
and procedures that adhere to industry best practices of identifying, addressing, and mitigating
security vulnerabilities at the hotel; (6) the Hotel Defendants' negligent failure to adhere to its
own security policies and procedures (despite the fact that said policies and procedures fall far
below the industry standard of care); (7) the Hotel Defendants' negligent failure to provide any
security personnel at the hotel (which, naturally, caused the Hotel Defendants to fail to train said
personnel properly); (8) the Hotel Defendants' negligent failure to properly or adequately train
management personnel for oversight of security and safety issues; (9) the Hotel Defendants'
negligent failure to provide appropriate and adequate physical security measures commensurate
with the risk that existed on the premises—including, but not limited to, the lack of any patrols
(i.e., off-duty police officers, private security guards, etc.); (10) the Hotel Defendants' negligent
failure to have any system, procedure, or policy in place to detect, monitor, and control access to
the hotel; (11) the Hotel Defendants' negligent failure to enforce procedures regarding suspicious
guests and suspicious prospective guests during the check-in process; (12) the Hotel Defendants'
negligent failure to have operable closed circuit television (CCTV) cameras installed in any area
of the hotel that would be conducive to guest safety and security and, further, conducive to
deterring, detecting, monitoring, or preventing crune; (13) the Hotel Defendants' negligent
failure to even know about—let alone implement—the generally accepted industry standards for
premises security and premises security at a lodging facility found in NFPA 370 and 371; (14)
the Hotel Defendants' negligent failure to adhere to industry best practices by failing to identify
PLAINTIFF'S TEX. R. CIV. P. 194.2CF) EXPERT WITNESS DESIGNATIONS PAGE 9 OF 20
MANDAMUS RECORD - TAB 8
^;-
and address measures to mitigate security vuhierabilities at the hotel; (15) the Hotel Defendants'
negligent failure to exercise reasonable care in providing adequate security and failing to
implement sufficient security measures; (16) the Hotel Defendants' negligent failure to conduct
periodic reviews and recapitulations of security incident reports at the Hyatt House hotel and
remedy the security deficiencies that it knew or should have known about; and (17) the Hotel
Defendants' negligent failure to remedy the glaring security concerns noted on its own internal
audits for years prior to the attack on Plaintiff. Mr. Harris may testify that the negligent acts and
omissions by the Hotel Defendants to discharge the duties of a reasonably pradent property
owner/manager/operator to provide reasonable security and property management measures at
the Hyatt Hotel was a substantial factor and/or proximate cause of the attack on Plaintiff and
damages she incurred. Mr. Harris may testify that had the Hotel Defendants acted as a
reasonably prudent property owner/manager/operator would have acted in the same or similar
circumstances (given the amount, similarity, proximity, frequency, and publicity of crime at or m
the immediate vicinity of the Hyatt House Hotel) to provide reasonable security and property
management measures at the Hyatt House hotel, it is more probable than not that the sexual
assault of Plaintiff would not have occurred. Mr. Harris may testify that due to the violent
criminal atmosphere that existed at the Hyatt House hotel and in its immediate vicinity, that the
Hotel Defendants' failure to provide security guards, operable closed-circuit televisions, and
other reasonable security measures was in gross breach of minunum standards of care for an.
mnkeeper. Mr. Harris may testify that the Hotel Defendants' acts or omissions, when viewed
objectively from the standpoint of the Hotel Defendants at the time of its occurrence involved an
extreme degree of risk, considering the probability and magnitude of the potential harm to others,
and that the Hotel Defendants had actual, subjective awareness of the risk involved, but
PLAINTIFF'S TEX. R. CW. P. 194.2(F) EXPERT WITNESS DESIGNATIONS PAGE 10 OF 20
MANDAMUS RECORD - TAB 8
nevertheless proceeded with conscious indifference to the rights, safety, or welfare of others,
including Plaintiff. With respect to Pastazios Pizza, Inc., Post Addison Circle Limited
Partnership, and Post Properties, Inc., Plamtiff expects that Mr. Harris may testify in a similar
fashion as he may testify as to the Hotel Defendants (but, naturally, with respect to a
restaurant/restaurant common area that is open to the public such that the owners of said
premises know that alcohol is consumed on said premises by the public on a daily basis). Mr.
Harris may testify that the Post entities were negligent and grossly negligent for failing to
terminate its lease with Pastazios Pizza, Inc. after Pastazios violated the Texas Alcohol and
Beverage Code on multiple occasions, including a publicly known sale of alcohol to an 18 year
old female in. 2002 during a law enforcement sting operation. Mr. Harris may further testify as to
facts and circumstances regarding the nature of the injuries and damages that are the subject of
this action. Mr. Harris's testimony will be based upon his skill, knowledge, education,
experience, and training, as well as his review of the pertinent authoritative publications written
by him and others, and the evidence, pleadings, and discovery served, produced, and/or elicited
in this case and based upon a reasonable degree of professional probability and/or certainty.
PlamtifF reserves the right to supplement and/or amend this expert witness designation as
discovery continues and additional facts and evidence have been learned and produced.
Dr. William E. Flvnn, Ph.D.
Dr. William E. Flynn, Ph.D.—(214) 202-7344, 100 Highland Park Village, Suite 200,
Dallas, Texas 75205—is a forensic and clinical psychologist. Please see the attached Exhibit C
for a copy of Dr. Flynn's resume and/or bibliography. In this case, Dr. Flynn. may testify,
generally, about the psychological, medical, behavioral, educational, physiological, vocational,
and social trauma that a victim of a sexual assault—including a sexual assault that ultimately
PLAINTIFF'S TEX. R. CW. P. 194.2(F) EXPERT WITNESS DESIGNATIONS PAGE 11 OF 20
MANDAMUS RECORD - TAB 8
^ - • -
causes the transmission of an incurable disease—can experience, including Plaintiff. Dr. Flyim
may testify about Post-Traumatic Stress Disorder ("PTSD") m general and as applied to victims
of rape, including Plaintiff. Dr. Flymi may testify about other medical and psychological
conditions—including, but not limited to, depression, PTSD, sleep disorders, eating disorders,
substance abuse, self-harm/self-injury, flashbacks, personality disorders, suicide, etc,—that are
reasonably likely to arise in victims of rape, including Plaintiff. Dr. Flynn may testify regarding
the need for medical and/or psychological treatment throughout the course of a rape victim's
life—generally, as well as with respect to Plaintiff—and he may also testify as to the reasonable
and necessary future psychiatric expenses that Plaintiff is, in all reasonable probability, likely to
1
incur in the future as a result of Defendants' tortious conduct and the permanent and mcurable
nature of the herpes virus. Dr. Flynn may testify as to the permanent and incurable nature of
Plaintiffs injuries and disease—as well as the impact of said injuries and disease on Plaintiffs
life, education, future earning capacity, mental state, etc.—from a forensic and clinical
psychology perspective. Dr. Flynn may further testify as to facts and circumstances regarding the
nature of the injuries and damages that are the subject of this action. Dr. Flynn's testimony will
be based upon his skill, knowledge, education, experience, and training, as well as his review of
the pertinent authoritative publications written by him and others, and the evidence, pleadings,
and discovery served, produced, and/or elicited in this case and based upon a reasonable degree
of professional, medical, and scientific probability and/or certainty. Plaintiff reserves the right to
supplement and/or amend this expert witness designation as discovery continues and additional
facts and evidence have been learned and produced.
Dr. Joe G. Gonzales. M.D., FAAPMR, CLCP
Dr. Joe G. Gonzales—(210) 501-0995, 11550 IH 10 West, Suite 375, San Antonio, Texas
PLAINTIFF'S TEX. R. CTV. P. 194.2CF) EXPERT WITNESS DESIGNATIONS PAGE 12 OF 20
MANDAMUS RECORD - TAB 8
78230—is a Physical Medicine & Rehabilitation specialist (board certified). Pain Management
specialist (board certified), Occupational & Environmental Medicine specialist (board certified),
and certified life care planner who has practiced Medicine m Texas since 1985 and is certified by
the American Academy of Physical Medicine & Rehabilitation, the American Board of Pain
Medicine, and the American College of Occupational & Enviromaental Medicine. Dr. Gonzales
is a Diplomat of the American Academy of Pain Management, a Designated Physician of the
Texas Workers' Compensation Commission, and a Certified Life Care Planner as designated by
the Commission on Health Care Certification. Dr. Gonzales is the President of the Texas
Physical Medicine & Rehabilitation Institute, and the Founder and Medical Director of Physician
Life Care Planning, LLC. Dr. Gonzales is a licensed physician in the State of Texas. Please see
the attached Exhibit D for a copy of Dr. Gonzales's resume and/or bibliography. Dr. Gonzales
may testify about vocational feasibility or disabled related needs of injured people and/or
individuals with disabilities or life-altering and permanent diseases (such as Plaintiff), determme
the need for medical, psychological and vocational services, identify functional linutations and
need for assistive devices for Plaintiff, conduct job and task analyses as well as labor market
surveys. Dr. Gonzales may be called to testify with regard to life care planning for Plaintiff, and
the value of such assistance and/or care, for those—such as Plaintiff—who are injured or those
with disabilities. Dr. Gonzales may testify as to the permanent and incurable nature of Plaintiffs
injuries and disease—as well as the impact of said mjuries and disease on Plaintiff's life,
education, future earning capacity, mental state, etc.—from a physical, psychological, and/or
social perspective, and he may testify as to what Plaintiff would have been capable of earning—
as well as Plaintiffs other economic losses—had she never been subject to the injuries caused by
Defendants' tortious conduct. Dr. Gonzales may testify as to the reasonable and necessary future
PLAINTIFF'S TEX. R. CTV. P. 194.2(F) EXPERT WITNESS DESIGNATIONS PAGE 13 OF 20
MANDAMUS RECORD - TAB 8
medical expenses that Plaintiff is, in all reasonable probability, likely to incur in the future as a
result of Defendants' tortious conduct and the permanent and incurable nature of the herpes
virus. Dr. Gonzales may testify as to the economic loss incurred by Plaintiff m the past to treat
the injuries she sustained that were caused by Defendants, as well as Plaintiffs future loss of
earning capacity based upon Plaintiffs earnings, medical condition, stamina, efficiency, ability
to work in light of the injuries sustained, the weaknesses and changes that will naturally result
from Plaintiffs injuries, and Plaintiffs work-life expectancy. Dr. Gonzales may testify as to a life
care plan for Plaintiffs lifetime that determines her lifetime needs and costs of care (e.g,,
Plaintiffs medical, psychiatric, psychological, behavioral, educational, vocational and social
needs, etc.) for her chronic disease and psychological trauma caused by Defendants' tortious
conduct. Dr. Gonzales may further testify as to facts and circumstances regarding the nature of
the injuries and damages that are the subject of this action. Dr. Gonzales's testimony will be
based upon his skill, knowledge, education, experience, and training, as well as his review of the
pertinent authoritative publications written by him and others, and the evidence, pleadings, and
discovery served, produced, and/or elicited in this case and based upon a reasonable degree of
professional, medical, and scientific probability and/or certainty. Plaintiff reserves the right to
supplement and/or amend this expert witness designation as discovery contmues and additional
facts and evidence have been learned and produced.
Dr. John A. Swieer, Ph.D.
Dr. John A. Swiger, Ph.D.—(210) 434-6711, 411 S.W. 24th Street, San Antonio, Texas
78207—is a Doctor of Finance and is an economist. Please see the attached Exhibit E for a copy
of Dr. Swiger's resume and/or bibliography. As an expert economist. Dr. Swiger may testify as
to the economic loss, discounted to present value, which Plaintiff has incurred due to the tortious
PLAINTIFF'S TEX. R. CIV. P. 194.2(F) EXPERT WITNESS DESIGNATIONS PAGE 14 OF 20
MANDAMUS RECORD - TAB 8
conduct of Defendants. Dr. Swiger may also testify generally regarding the concept of present
value and its application to economic losses, particularly loss of earning capacity, past and future
medical expenses, lost wages, loss and future medical costs. Dr. Swiger may testify as to the
reasonable and necessary future medical expenses that Plaintiff is, in all reasonable probability,
likely to incur in the future as a result of Defendants' tortious conduct and the permanent and
incurable nature of the herpes virus. Dr. Swiger may testify as to the economic loss mcurred by
Plaintiff in the past to treat the injuries she sustained that were caused by Defendants, as well as
Plaintiffs future loss of earning capacity based upon Plamtiffs earnings, medical condition,
stamina, efficiency, ability to work in light of the injuries sustained, the weaknesses and changes
that will naturally result from Plaintiffs injuries, and Plaintiff's work-life expectancy. Dr. Swiger
may testify as to Plaintiffs past lost wages, the economic value of the loss of enjoyment of life,
and other economic losses incurred by Plaintiff as a result of Defendants' tortious conduct. Dr.
Swiger may also testify about Defendants' financial conditions, the net worth and profits of
Defendants, and/or Defendants' current fiscal policies and/or practices for purposes of
establishing Defendants' wealth during the punitive damages phase of trial. Dr. Swiger may
further testify as to facts and circumstances regarding the nature of the injuries and damages that
are the subject of this action. Dr. Swiger's testimony will be based upon his skill, knowledge,
education, experience, and training, as well as his review of the pertinent authoritative
publications written by him and others in the field of economics, and the evidence, pleadings,
and discovery served, produced, aad/or elicited in this case and based upon a reasonable degree
of professional and scientific probability and/or certainty. Plaintiff reserves the right to
supplement and/or amend this expert witness designation as discovery continues and additional
facts and evidence have been learned and produced.
PLAINTIFF'S TEX. R. CIV. P. 194.2(F) EXPERT WITNESS DESIGNATIONS PAGE 15 OF 20
MANDAMUS RECORD - TAB 8
II. UNRETAINED TESTIFYING EXPERTS
Plaintiff hereby designates the followmg individuals as "umetained testifying experts" as
these individuals are not retained by, employed by, or otherwise subject to the control of
Plaintiff. See TEX. R. Civ. P. 194.2(f)(3).
Detective Katie Spencer
Detective Katie Spencer—(972) 450-7100, c/o Addison Police Department, 4799 Airport
Parkway, Addison, Texas 75001—is a detective with the Addison Police Department. Detective
Spencer investigated the rape of Plaintiff such that, in addition to testifying with respect to her
expertise in criminal investigations and criminal conduct in Addison, Texas (of this case and
other criminal cases in Addison, Texas from 2005 to the present)—Detective Spencer is also a
percipient witness of the circumstances surrounding the sexual assault on Plaintiff and the lack of
security and safety measures m place at the Hyatt House hotel oa April 26, 2011. Documents
reflecting Detective Spencer's investigation of the sexual assault of Plaintiff have previously
been produced to Defendants. Plaintiff reserves the right to supplement and/or amend this expert
witness designation as discovery continues and additional facts and evidence have been learned
and produced.
Officer Isaac Closer
Officer Isaac Gloger—(972) 450-7100, c/o Addison Police Department, 4799 Airport
Parkway, Addison, Texas 75001—is a police officer with the Addison Police Department.
Officer Gloger was the arresting officer of Defendant Dear! on April 26, 2011 and interviewed
Defendant Dear! at the crime scene where Plaintiff was raped such that, in addition to testifying
with respect to his expertise in criminal iuvestigations and criminal conduct in Addison, Texas
(of this case and other criminal cases in Addison, Texas from 2005 to the present)— Officer
PLAINTIFF'S TEX. R. CTV. P. 194.2(F) EXPERT WITNESS DESIGNATIONS PAGE 16 OF 20
MANDAMUS RECORD - TAB 8
^ Gloger is also a percipient witness of the evidence and circumstances surrounding the sexual
assault on Plaintiff and the lack of security and safety measures in. place at the Hyatt House hotel
on April 26, 2011. Documents reflecting Officer Gloger's investigation of the sexual assault of
Plaintiff have previously been produced to Defendants. Plaintiff reserves the right to supplement
and/or amend this expert witness designation as discovery continues and additional facts and
evidence have been learned and produced.
Mr.JKenneth Sherman
Mr. Kenneth Sherman—(817) 652-5912, c/o Arlington Regional Office of Texas
Alcoholic Beverage Commission, 2225 East Randol Mill Road, Suite 200, Arlington, Texas
76011—is a licensed peace officer m the State of Texas and is employed by the Texas Alcoholic
Beverage Commission as an Enforcement Agent. Mr. Sherman investigated the violations of the
/ Texas Alcoholic and Beverage Code committed by Pastazios Pizza, Inc., as well as photographed
the "common area" shared between Post and Pastazios Pizza on which Plaintiff became
obviously intoxicated, as well as interviewed Plaintiff, Defendant Deari, and Defendant Kreka.
Mr. Sherman may testify as to his personal knowledge of the facts of this case (including his
investigation), as well as based upon his skill, knowledge, education, experience, and training as
to criminal and administrative investigations and violations of the Texas Alcoholic Beverage
Code (in this case and other cases in Addison, Texas from 2005 to the present), the standard of
care required of a business that knowingly and intentionally leaves its property open for the
public to consume alcoholic beverages on, fhe Texas Alcoholic Beverage Code (in general and
as applied to this case), and the incidence of intoxicated minors in general, and those subject to a
cruninal attack, in the Addison, Texas area from 2005 to the present (includmg the resulting
damages that arise therefrom). Documents reflecting Mr. Sherman's investigation related to this
PLAINTIFF'S TEX. R. CIV. P. 194.2(F) EXPERT WITNESS DESIGNATIONS PAGE 17 OF 20
MANDAMUS RECORD - TAB 8
case have previously been produced to Defendants. Plaintiff reserves the right to supplement
and/or amend this expert witness designation as discovery continues and additional facts and
evidence have been learned and produced.
Dr. Allison Jeanne Brooks-Heinzman, M.D.
Dr. Allison Jeamie Brooks-Heinzman, M.D.—(512) 324-9650, 313 E. 12th Street #101,
Austin, Texas 78701—is a medical doctor who is board certified in obstetrics and gyaecology.
Dr. Brooks-Heinzman was Plaintiffs treating physician on the night of April 26, 2011 after
Plaintiff was sexually assaulted at the Hyatt House hotel and subsequently transferred to
Parkland Hospital for testing, treatment, and evaluation. Dr. Brooks-Heinzman may testify-
based upon her perceptions and skill, knowledge, education, experience, and training—about her
treatment of Plaintiff (including the results of any tests conducted during, or as a result of, said
treatment). Plaintiffs physical, mental, physiological, and psychological condition of the night
of April 26, 2011, obstetrics and gynecology in general, and the physical, emotional, mental,
social, and biological effects and trauma associated with rape victims and rape victims who are
infected with an incurable sexually transmitted disease during the course of the rape. Documents
(as well as an executed HIPAA authorization) reflecting Dr. Brooks-Heinzman's treatment of
Plaintiff in tMs case have previously been produced to Defendants. Plaintiff reserves the right to
supplement and/or amend this expert witness designation as discovery continues and additional
facts and evidence have been learned and produced.
Dr^Dustjn B. Manders, M.D.
Dr. Dustin B. Manders, M.D.—(214) 648-3639, c/o University of Texas Southwestern,
5323 Harry Hines Boulevard, Dallas, Texas 75390—is a medical doctor who is board certified in
obstetrics and gynecology. Dr. Manders was Plaintiffs treating physician on May 6, 2011 when
PLAINTIFF'S TEX. R. CIV. P. 194.2(F) EXPERT WITNESS DESIGNATIONS PAGE 18 OF 20
MANDAMUS RECORD - TAB 8
Plaintiff returned to Parkland Hospital with a "chief complamt" that "it feels like someone hit me
in the crotch with a hammer covered in razors." Dr. Manders diagnosed subsequently diagnosed
Plaintiff with a "primary outbreak" of herpes. Dr. Manders may testify—based upon his
perceptions and skill, knowledge, education, experience, and training—about his treatment of
Plaintiff (including the results of any tests conducted during, or as a result of, said treatment),
Plaintiffs physical, mental, physiological, and psychological condition on May 6, 2011,
obstetrics and gynecology in general, the generally accepted incubation period &om exposure to
outbreak of the herpes virus, and the physical, emotional, mental, social, and biological effects
and trauma associated with rape victims and rape victims who are infected -with an incurable
sexually transmitted disease during the course of the rape. Documents (as well as an executed
HIPAA authorization) reflecting Dr. Manders's treatment of Plaintiff in this case have previously
been produced to Defendants. Plaintiff reserves the right to supplement and/or amend this expert
witness designation as discovery continues and additional facts and evidence have been learned
and produced.
m. ATTORNEYS' FEES EXPERTS
Eric Policastro and Tom H. Crawford HI—(214) 855-6800, c/o Gruber Hurst Johansen
Hail Shank LLP, 1445 Ross Avenue, Suite 2500, Dallas, Texas 75202—are the attorneys for
Plaintiff and expect to testify to the reasonable and necessary attorneys' fees for the prosecution
of Plaintiff s claims against Defendants. Plaintiffs attorneys expect to testify that the attorneys'
fees incurred by Plaintiff in fhis litigation were reasonable and necessary for the prosecution of
her claims against Defendants. They will testify that the total fees as well as the hourly rates
charged by Plaintiff's counsel were reasonable in the State of Texas as well as in Dallas County,
specifically. They will testify based on their education, skill, knowledge, training, and experience
PLAINTIFF'S TEX. R. CIV. P. 194.2(F) EXPERT WITNESS DESIGNATIONS PAGE 19 OF 20
MANDAMUS RECORD - TAB 8
in the practice of law as licensed attorneys in the State of Texas, their knowledge about this case,
and upon a review of the fee statements reflecting the fees incurred by Plamtiff. Plaintiffs
attorneys will farther testify as to the reasonable and necessary attorneys' fees likely to be
incurred by Plaintiff in the event that a jury verdict is appealed to the Court of Appeals and/or the
Texas Supreme Court, as well as the total number of hours worked in this matter and wiU offer
an opinion as to the total reasonable fee for said necessary -work. Plaintiffs attorneys are familiar
with all of the pleadings and discovery transmitted by the parties in this case Plaintiff's
attorneys' resumes can be found at http://www.ghjhlaw.com/. Plaintiff reserves the right to
supplement and/or amend this expert witness designation as discovery continues and additional
facts and evidence have been learned and produced.
PLAINTIFF'S TEX. R. CTV. P. 194.2(F) EXPERT WITNESS DESIGNATIONS PAGE 20 OF 20
MANDAMUS RECORD - TAB 8
EXHIBIT A
MANDAMUS RECORD - TAB 8
CLAIRE E. BRENNER, M.D.
\ -
2241 Peggy Lane, Suite E.
Garland, Texas 75042
972-494-1155 (W) 972-494-6572 (F) 214-507-8339 (M)
PRESENT POSITION INFECTIOUS DISEASE PHYSICIAN
FOUNDING PHYSICIAN OF CLAIRE BRENNER, M.D., P.A. - 2004
MEDICAL DIRECTOR OF INFECTION CONTROL - BAYLOR GARLAND HOSPITAL- 2003
BAYLOR GARLAND WOUND CARE CLINIC - 2006
PREVIOUS POSITION NORTH TEXAS INFECTIOUS DISEASE CONSULTANTS - 8/1/2001 -1/20/2004
HOSPITAL PRIVILEGES Baylor of Garland Medical Center, Garland, TX 2001-present
Lake Pointe Medical Center, Rowlett, TX 2008-present
Presbyterian Hospital of Rockwall, Rockwall, TX 2008-present
Forest Park Medical Center, Dallas, TX 2010-present
Kindred Hospital of Dallas, Dallas, TX 2013-present
Methodist Hospital for Surgery, Addison, TX 2012-present
Methodist Richardson Medical Center, Richardson, TX 2013-present
EDUCATION
1996 M.D, University of Texas Southwestern Medical School - Dallas, Texas
1991 B.S. University of Texas at San Antonio, Major: Biology
POSTGRADUATE TRAINING
1999-2001 Infectious Diseases Fellowship, Barnes Jewish Hospital,
Washington University School of Medicine, St. Louis, Missouri
1997-1999 Residency, Depart, of Internal Medicine, Barnes Jewish Hospital,
Washington University School of Medicine, St. Louis, Missouri
1996-1997 Internship, Depart, of Internal Medicine, Barnes Jewish Hospital,
Washington University School of Medicine, St. Louis, Missouri
MEDICAL LICENSURE AND BOARD CERTIFICATION
Board Certified, Infectious Disease - October 2001; Recertification, Infectious Disease - 2012
Board Certified, Internal Medicine - August 1999 - Certificate # 1945635; Recertification, Internal Medicine - 1999
Certification of Attendance Principles of Wound Healing and Hyperbaric Medicine -2006
Texas Medical License - #1-1533
United States Medical Licensing Exam -July 1998
HONORS AND AWARDS
Medical School Class Rank: Top 20%
Southwestern Medical Foundation Scholarship, 1992
PROFESSIONAL SOCIETIES AND ORGANIZATIONS
Infectious Diseases Society of America -2000
Society of Hospital Epidemiology- 2003
TEACHING EXPERIENCE
Histology Course Teaching Assistant, University of Texas Southwestern Medical School -1995
Baylor Garland Family Practice Residence/lnfectious Disease Rotation - 2004-present
Podiatric Residency Program/lnfectious Disease Rotation - 2007-present
MANDAMUS RECORD - TAB 8
ABSTRACTS
1) Warren RQ, Brenner CE, Holf H., Kanda P., Boswell RN, Kennedy RC. Characterization of longitudinal sera
samples from HIV-1 infected individuals for antibodies reactive to gpl60 synthetic peptides International
Conference on Advances in AIDS Vaccine Development: Third Annual Meeting of the National Cooperative
Vaccine Development Groups for AIDS, CIearwater, Florida. 1990.
2) Warren RQ, Half H., Nkya WM, Brenner CE, Anderson SA, Boswell RN, Kanda P., Kennedy RC. Comparison of
antibody specificities to HIV-1 gpl60 epitopes defined by synthetic peptides in sera from infected individuals
from Tanzania and the United States. International Conference on Advances in AIDS Vaccine Development:
Third Annual Meeting of the National Cooperative Vaccine Development Groups for AIDS. Clearwater,
Florida. 1990.
3) Shao JF, Half H., Warren RQ, Brenner CE, Kennedy RC. Reactivity of HIV-1 Infected Individuals from Tanzania
with an Immunodominant B-Cell Epitope on gp41. International Conference on Advances in AIDS Vaccine
Development: Thirds Annual Meeting of the National Cooperative Vaccine Development Groups for AIDS.
Clearwater, Florida. 1990.
4) Nkya WM, Warren RQ, Half H., Brenner CE, Tesha J., Kanda P., Kennedy RC. Fine Specificity of the Humeral
Immune Response to HIV-1 gpl60 in HIV-1 infected individuals from Tanzania. Fifth International Conference
on AIDS in Africa. Kinshasha, Zaire. 1990.
5) Warren RQ, Half H., Brenner CE, Kanda P., Boswell RN, Kennedy RC. Decline in Antibody Reactivity to specific
HIV-1 gpl60 epitopes in associated with CD4+ cell levels below 200/mm in infected individuals. Conference
of the Federation of American Societies for Experimental Biology. 1991.
6) HollingsworthRE,BrennerCE,ZhuX-L, Lee WH. Regulation of the RB Protein by the CDC2 cell cycle kinase.
The Symposium on Cancer Research, San Antonio, Texas. 1992.
RESEARCH EXPERIENCE
1) Mapping the Antibody Reactivity to Human Immunodeficiency Virus Envelope Antigens in Infected
Individuals, University of Texas at San Antonio, 1990
2) Preparation of Boc-threonine-4-oxymethyD-phenyiacetic acid for use as a linker in solid phase peptide
synthesis, University of Texas at San Antonio, 1991
3) Institute of Biotechnology, worked on DNA sequencing of tumor suppressor genes as a full-time research
assistant with Dr. Wen-Hwa Lee, San Antonio, Texas 1989-1991
4) Southwest Foundation for Biomedical Research, studied the Humeral Immune Response to H1V with Dr.
Ronald Kennedy, San Antonio, Texas 1991
5) BMS Protocol A1455-135 ZEST QDAY-Phase IIIB, Open Label, Randomized, Multicenter Study Switching HIV-1
Infected Subjects with a Viral Load of<50 copies/ml on a BID Regimen or More Frequent Initial HAART
Regimen to a Once Daily Regimen Including Stavudine XR, Lamivudine and Efavirenz, 2002
MANDAMUS RECORD - TAB 8
EXHIBIT B
MANDAMUS RECORD - TAB 8
(^URRimJLUM V^TA
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MANDAMUS RECORD - TAB 8
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PREVIOUS PROFESSIONAL MEIVIBERSHIPS
©Qmrnercjsl R'eSil Estate-,(]?r{ S^ounty R^pffrt andl the
:Schoiol :Sesi3urit^ftj5iport, putalisted by, ^usdriQ P;ublicNions,,'Westbui'y, NV
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MANDAMUS RECORD - TAB 8
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demonstralti^ ext'ubife ffeirtestjmony anc^ fcir exhibits :to 1:h&; reoQrd
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MANDAMUS RECORD - TAB 8
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MANDAMUS RECORD - TAB 8
pieDpl^, ^ehlefes, aftd; mat^tiials st'BtfeiS, ;0.|3'i§ra1:iR^ sysjtems^ ^datebSsei
man&^m^nl: ^nd ^nhanfoerrrentetG .securify eentrQrsystem^..
FacKljt^ S^yrity I^esjgn^S^2).
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enwlrQrmTisrtN. s.eiouritfc.feifl'astru^re prolteoiron, buNifcig designs,
inf^iWexA^ri^'lapiitf, d^fet^iions isystem"fycturnl harriecs, 'aG;c©@&
Qon.trp'ls, Q]Qn-i;nii.inic;9.tiQns; an.jdl (3;GTVlas?es?ment.
Physiteat Seeui-itys TeGhnolbgyAppliicafions j^ODI]
S^GMn^ R)isK and VuJngGafb.ility ^8e?s;m^rit, iSQniilLXiihg ^ £>it© ®iQry^,
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lJtigaii<3n;,,S^urity Erdeji^fi'ering
Janffis^t.5^?f WB'GSV
Rage 7 pf 7
MANDAMUS RECORD - TAB 8
EXHIBIT C
MANDAMUS RECORD - TAB 8
RESUME Wednesday, February 1, 2013
Personal Information:
Name: William E. Plynn
Address: 100 Highland Park Village
Suite 200
Dallas, Texas 75205
Mobile: 214-202-7344
Fax:214-902-1766
E-mail: weflynn@legalpsychologist.cora
Academic History:
Internship: 1977-1978, Bureau of Prisons, Federal Correctional Institute,
Seagoville, Texas.
PhD: 1970; University of South Carolina, Columbia, South Carolina.
Psychology.
B.A: 1965; Wayne State University, Detroit, Michigan. Psychology.
Professional Experience:
1978-2012: Independent Practice of Forensic and Clinical Psychology;
Dallas, Texas.
1976-2012: Licensed Psychologist, Texas license #21400.
1999-2009: Consultant, Texas Department of Criminal justice, State
Council for Offenders, Huntsville, Texas.
1996-2002: Clinical Committee, Survivors of Torture, Dallas, Texas.
1978-1980: Clinical Director of Psychology, Metroplex Clinics;
Richardson, Texas.
1977-1978: Clinical and Research Psychologist, Bureau of Prisons,
Federal Correctional Institute, Seagoville, Texas.
1970-1978: Assistant Professor of Psychology, Department of Psychology,
Southern Methodist University, Dallas, Texas; Director of Graduate
Studies in Psychology.
1969-1970: Instructor, School of Nursing, University of South Carolina,
and Columbia, South Carolina.
1968-1970: Research Fellow, V.A. Hospital; Columbia, South Carolina.
1966-1967: Alcohol abuse counselor/research assistant, Georgia
Department of Mental Health; Atlanta, Georgia.
1963-1965: Research Associate, Department ofOtology, Henry Ford
Hospital; Detroit, Michigan.
Memberships:
American Psychological Association
National Academy of Neuropsychology
American Association of Correctional Psychology
MANDAMUS RECORD - TAB 8
EXHIBIT D
MANDAMUS RECORD - TAB 8
Joe G. Gonzales
MD,FAAPMR/CLCP
BIOGRAPHY
Dr. Joe G. Gonzales is a Physical Medicine &. Rehabilitation, Pain
Medicine, and Occupational &. Environmental Medicine specialist who
has practiced Medicine in Texas since 1985.
He is the President of the Texas Physical Medicine & Rehabilitation
Institute, and the Founder and Medical Director of Physician Life
Care Planning, LLC.
Dr. Gonzales is a licensed physician in the State of Texas; he is
certified by the American Academy of Physical Medicine &
Rehabilitation, the American Board of Pain Medicine, and the
American College of Occupational &. Environmental Medicine.
Dr. Gonzales is a Diplomat of the American Academy of Rain
Management, a Designated Physician of the Texas Workers7
Compensation Commission, and a Certified Life Care Planner as
designated by the Commission on Health Care Certification.
His professional affiliations include the American Medical Association,
the Texas Medical Association, the Texas Physical Medicine &.
Rehabilitation Society, the American Academy of Physical Medicine &
Rehabilitation, the American Congress of Rehabilitation Medicine, the
American College of Occupational &. Environmental Medicine, the
Mexican American Physician's Association, the International Academy
of Life Care Planners, and the International Association of
Rehabilitation.
Dr. Gonzales earned his M.D. from Texas Tech University's Health
Science Center, and his Bachelors of Health Science degree from
Baylor College of Medicine.
W Physician Life Care Planning
America's Leading Ufe Care Planner
11550 IH 10 West
Suite 375
San Antonio, Texas 78230
Phone: (210) 501-0995
email: jgomd@physicianLCP.com
Page 1 of 1
MANDAMUS RECORD - TAB 8
3oeG. Gonzales
MD, FAAPMR/CLCP
CURRICULUM VlTAE SPECIALTIES
Physical Medicine & Rehabilitation (Board Certified)
Pain Management (Board Certified)
Occupational & Environmental Medicine (Board Certified)
Certified Life Care Planner
EDUCATIONAL BACKGROUND
Texas Tech University Health Science Center
Degree: Doctor Of Medicine
Lubbock, Texas
1980-1984
Baylor College of Medicine, Texas Medical Center
Degree: Bachelor of Health Science Degree,
Physician Assistant Certification
Awards: Henry D, Mclntosh Award for Clinical Excellence
Houston, Texas
1975-1977
Angela State University
Department of Nursing
Degree: Associate of Science &. Nursing (R.N.)
San Angela, Texas
1971-1973
San Angela School of Vocational Nursing
Degree; Diploma & Certification (Licensed)
San Angela, Texas
1970-1971
POST GRADUATE TRAINING
Department of Physical Medicine & Rehabilitation
University of TexasHealth Science Center
Residency, Physical Medicine & Rehabilitation
San Antonio, Texas
1985 - 1988
Department of Family Practice
Texas Tech University Health Science Center
Physician Life Care Planning Internship, Family Medicine
AmencaS Leading Ufe Cam Planner ^
Lubbock, Texas
1984 - 1985
11550 IH 10 West
Suite 375
San Antonio, Texas 78230
Phone; (210) 501-0995
email: jgomd@physidanLCP.com
Page 1 of 4
MANDAMUS RECORD - TAB 8
Joe G. Gonzales
MD, FAAPMR/CLCP
CURRICULUM VlTAE LICENSES & CERTIFICATIONS
Texas Medical License - Physician Permit
License Number: G8135
Issued: August 1985
American Board Physical Medicine & Rehabilitation
Board Certification
Certificate Number: 3039
Issued; May 1989
American Board of Pain Medicine
Board Certification
Issued:1994
American College of Occupational & Environmental Medicine
Board Certification
Status: Active Member
Issued: 1992
American Academy of Pain Management
Dlplomate
1992
Texas Workers' Compensation Commission
Approved Doctor List Certification
Issued: 2003 (Re-certifled, 2009)
Texas Workers' Compensation Commission
Certificate, Maximum Medical Improvement & Assignment of Impairment
Ratings
Issued: 2003 (Re-certifled, 2009)
Texas Workers' Compensation Commission
Designated Doctor List Certification
Issued: 2003 (Re-certifled, 2009)
Commission on Health Care Certification
Certified Life Care Planner
Issued: 2006 (Re-certlfled, 2009)
The University of Florida & MediPro Seminars, LLC
Post Graduate Course Study in Life Care Planning
Certificate of Completion
Issued:2006
PROFESSIONAL ASSOCIATIONS
American Medical Association
Texas Medical Association
Page 2 of 4
MANDAMUS RECORD - TAB 8
Joe G. Gonzales
MD, FAAPMR, CLCP
CURRICULUM VlTAE Bexar County Medical Society
Texas Physical Medicine & RehabilitaUon Society
American Academy of Physical Medicine &. Rehabilitation
American Congress of Rehabilitation Medicine
American College of Occupational &. Environmental Medicine
American Academy of Pain Management - Diplomate
Mexican American Hispanic Physician's Association
International Academy of Life Care Planners
The International Academy of Life Care Planners
The International Association of Rehabilitation Professionals
PROFESSIONAL EXPERIENCE
Physician Life Care Panning , LLC
Founder &. Medical Director
San Antonio, Texas
2011- Present
Texas Physical Medicine & Rehabilitation Institute
President
San Antonio, Texas
1998 - Present
Hyperbaric & Wound Care Associates, P.A.
President
San Antonio, Texas
2003 - 2006
Christus Santa Rosa Wound Care and Hyperbarlc Center
Medical Director
San Antonio, Texas
2004 - 2006
South Texas PM&R Group
Founder & Past President
San Antonio, Texas
1987 - 1998
Hyperbaric Oxygen, Inc. Total Wound Treatment Centers
Corporate Medical Director
San Antonio, Texas
1995 - 2000
Warm Springs & Baptist Rehabilitation Network
Hyperbarlc Medicine & Wound Care Center
Medical Director
San Antonio, Texas
1995 - 2000
Page 3 of 4
MANDAMUS RECORD - TAB 8
Joe G. Gonzales
MD,FAAPMR, CLCP
CURRICULUM VlTAE Warm Springs Rehabilitation Center
NW Clinic & System Outpatient Medical Director
San Antonio, Texas
1994 -1998
South Texas Rehabilitation Center
(San Antonio's first Comprehensive Outpatient Physical Medicine &. Rehabilitation Center)
Development & Medical Director
San Antonio, Texas
1987 -1993
Rehabilitation Institute of San Antonio (RIOSA)
Medical Director, Physical Medicine & Rehabilitation
Medical Director, Spinal Cord Injur/ Rehabilitation Program
Medical Director, Orthopedic Rehabilitation Program
San Antonio, Texas
1988 -1993
South Plains Rehabilitation Center
(Lubbock's first Comprehensive Outpatient Physical Medicine &. Rehabilitation Center)
Associate & Active Developer
Lubbock, Texas
(This Space Left Intentionally Blank)
Page 4 of 4
MANDAMUS RECORD - TAB 8
EXHIBIT E
MANDAMUS RECORD - TAB 8
JOHN A SWIGER, PH.D.
411 S.W. 24th Street, San Antonio, Texas 78207
(210) 434-6711 ex2499 FAX: (210)434-0821
cell: (210) 861-2772 home office 210-694-9111
jaswiger@ollusa.edu
CAREER fflSTORY/ACADEMIC
2003-Present Our Lady of the Lake University, San. Antonio, Texas
Professor of Finance
1999 - 2006 Our Lady of the Lake University, San Antonio, Texas
Qiairman of Accounting. Economics and Finance Department
1991 - 2003 Our Lady of the Lake University, San Antonio, Texas
Associate Professor of Finance
Taught graduate and undergraduate courses in Finance, Investments,
International Finance, Economics, Modem Banking and International
Business.
Received Tenure-199 8
Summer 1991 University of Texas at Austin
Summer 1992 Senior Lecturer of Finance
Taught Investments in the MBA Program. Courses concentrated on
investm.en.t valuation, and included a section on the economic valuation of
human life.
1976-1980 University of Texas, San Antonio, Texas
AssistaD.t Professor of Finance
Taught courses in Capital Budgeting, Financial Management,
Investment Analysis and Portfolio Management.
PUBLICATIONS:
Swiger, J., Haaimons, R., Robinett, S., aad Winney, K., "Management of
Technological Change and Sustainable Economic Growth: Economic Factors
(2011) Management of Technological Changes: Proceeduigs of the 7th
International Conference on ]V[anagement of Technolocial Changes,
September 1-3, Alexandroupolis, Greece.
Swiger, J., Hammons, R., Robinett, S., and Winney, K., "Management of
Technological Change and Sustainable Economic Growth: Economic Recovery
(2011) Management of Technological Changes: Proceedings of the 7th
International Conference on Management of Technolocial Changes,
September 1-3, Alexandroupolis, Greece.
MANDAMUS RECORD - TAB 8
^ Swiger, J., Wiimey, K., and Bender, B.," IFRS Convergence: A Crossroads For Post
'^ - Secondary Accounting Education Programs" (2010) Quality M.anagement in Higher
Education: Proceedings of the 6 International Seminar on the Quality
Management in Higher Education (pp.). Tulcea, Romania.
Swiger, J. & Mudge, S. (2008). The Effect of Higher Education on Human Capital
Formation: A Multinational stidy. The International Journal of Learning, 15(9),
227-236.
Swiger, J., Mudge, S., & Wise, S. (2008). U.S. and European Trends that Impact Human
Capital Formation through Higher Education, Part 1: Rising EmoUment and Rising
Costs of Higher Education. Quality Management in Higher Education;
Proceedings of the 5th International Seminar on the Quality Management in Higher
Education (PP.). Tulcea, Romania.
Swiger, J., Madge, S., &, Wise, S. (2008). U.S, and European Trends that Impact Human
Capital Formation through Higher Education, Part 2: Human, capital Formation
Through Higher Education. Quality Management in Higher Education:
Proceedings of the 5 International Seminar on the Quality Management in Higher
Education (pp.). Tulcea, Romania.
Swiger, J., Mudge, S., & Pemiington, A. (2007). Combating Capital Flight Facilitated by
Illegal Money Laundering - Challenges and Strategies: Part I: Rising Incidence and
Excessive Costs. In N. Badea and C. Rusu (Eds.), Management of
Technological Changes: Proceedings of the 5 International Conference on the
Management of Technological Changes — Volume 1 (pp. 145-150).
Alexandroupolis, Greece; Democritus University ofThrace.
Swiger, J., Pemungton, A., & Mudge, S. (2007). Combating Capital Flight Facilitated by
Illegal Money Laundering - Challenges and Strategies: Part II: Legislative and
Technological Responses. Management of Technological changes: Proceedings of
the 5 International Conference on the Management of Technological Changes —
Volume 1 (pp. 139-144). Alexandroupolis, Greece: Democritus University of
Thrace.
Swiger, John & Mudge, Susan, "Managing Trends That Impact Human Capital
Formation Through Higher Education, Part I: Rising Enrollment and Rising Costs
of Higher Education" Proceedings of the 4 International Seminar on fh.e Quality
Management in Higher Education, held in Sinaia, Romania, June 9-10, 2006.
Swiger, John & Mudge, Susan, "Managing Trends That Impact Human Capital
Formation Through Higher Education, Part II: Preserving the Benefits of Human
Capital Formation" Proceedings of the 4 International Seminar on the Quality
Management in Higher Education, held in Sinaia, Romania, June 9-10, 2006.
Swiger, John & Maloney, Tim, "A Reexamination of the Value of a Horaemaker
Necessitated by Legal, Demographic and Business Changes and Trends—Part I"
/- Proceedings at the 4 Management of Technological Changes Conference in
Chaina, Crete, Greece, August 2005.
MANDAMUS RECORD - TAB 8
Swiger, John & Maloney, Tim, "A Reexamination of the Value of a Homemaker
Necessitated by Legal, Demographic and Business Changes and Trends—Part II"
Proceedings at the 4th Management of Technological Changes Conference in
Chaina, Crete, Greece, August 2005.
Swiger, John, & Krause, Kent C., "Analysis of the Department of Justice Regulations
for the September 11th Victun Compensation Fund." Journal of Air Law and
Commerce, 67(1). (Winter 2002). Southern Methodist University School of Law.
Swiger, John, & Krause, Kent C., "Analysis of the Department of Justice
Regulations for the September 11th Victim Compensation Fund."
Lawyer Pilots Bar Association Journal, XXIV No. 1, Spring. 2002.
Swiger, John, & Krause, Charles F. "Proving Damages for Foreign Litigants."
New York Bar Journal, July, 1997.
Swiger, John & Klaus, Alien. "Capital Budgeting Guidelines for the Small Private
University." Business Officer, March 1996.
Swiger, John. Study Guide: The Basics of Investing. John Wiley & Sons,
New York, 1979.
Swiger, John, and Scott Jones. Simplified Forecasting Techniques for Pmance and
Industry. U.T.S.A. Continuing Education Department, 1979.
Numerous reviews of finance and investment texts written on an honorarium basis for the
editors ofIvIcGraw-Hill, Wiley/Hamilton, and West Educational Publishing.
WORKING PAPERS
"Determming Economic Damages for the High Income Executive"
PRESENTATIONS AND SEMINARS
"Successful Handling of Wrongful Death Cases in Texas" a presentation conducted for
attorneys and sponsored by Lorman Education Service. Dallas, Texas, July 27,2004.
"An Economic Analysis of the Department of Justice Victim Compensation Fund."
Presented to the Aviation Law Section of the State Bar of Texas, 2002 Annual meeting, June
14,2002.
"The Airline Industry: A Time for Maximum Pessimism?" Presented to the Aviation Law
Section of the State Bar of Texas, 2002 Annual meeting, June 14, 2002.
"What Every Trial Attorney Should Know About Proving Economic Damages." A
presentation to the Bexar County Women's Bar Association. October 20, 2000.
MANDAMUS RECORD - TAB 8
"Fmancial Analysis and Credit Evaluation." Prepared expressly for and presented to
the senior marketing staff of Fairchild Aviation, San. Antonio, Texas on March 17,1995.
"Proving Economic Damages for Litigants of Mexican Citizenry." A research paper
presented at the Western Economic Association International Conference, San Diego,
California, on July 6, 1995.
"Is a Minimum Wage Increase Justified?" A seminar at the First Friday Forum,
KLRN Studio, San Antonio, Texas, February 3,1995.
"Proving Damages for Foreign Litigants." Presented to the Aviation Law Section of
the State Bar of Texas, 1993 Annual meeting, June 18,1993.
Conducted seminars in Financial Forecasting for U.T.S.A. Contin-umg Education
Department.
Conducted seminars in Financial Statement Analysis for the Small Business Administration.
MEDIA INTERVIEWS
Interview with KENS TV regarding the impact of the Toyota recall on the San Antonio
Toyota Tundra Manufacturing Plant, February 2010.
Numerous interviews with business reporters from the San Antonio Express-News radio
talk shows and television news programs regardmg issues ranging from. minimum wage
legislation to stock market activity to the closing ofKelly Air Force Base.
EDUCATION
University of North Carolina at Chapel Hill, Ph.D. 1976
Major: Finance
Minor: Management
Thesis Title:_ Commercial Strategy and Performance and Financial Policy
University of Richmond, B.S. in Business Administration
Major: Marketing
Minor: Economics
CAREER fflSTORY/BUSINESS
1990 - Present Business and Economic Consultant
Provide economic and financial analysis to law firms, business firms and
government agencies. Consulting activities include the determination of
economic damages and losses in the following types of cases:
MANDAMUS RECORD - TAB 8
• Wrongful death and serious injury
• Business Valuation
• Business interruption and the abrogation of contracts
• Sexual harassment, discrimination and wrongful termination
• Tortious interference of business relationships and contracts
Other consulting activities include:
• Feasibility stadies for manufacturing operations
• Valuation analysis for closely held corporations
Sample Clients:
• Engstrom, Lipscomb & Lack
• Pddhurst Orseck
• Craddock Davis and Grouse
• USAA
• Mission City Management
• Estate and Gift Division of the biternal Revenue Service
1977-1990 TNL Financial Inc., San Antonio, Texas
President and Founder
Organized the firm in May 1977. By 1990, TNL comprised 34 vendors,
8,000 accounts, 18 employees, and $40,000,000 in assets. Administered
day-to-day operations with emphasis in the areas of marketing, financial
planning and control, and banking relations.
1968-1969 First & Merchants National Bank. Richmond, VA (now Bank of
America)
Credit Analyst
MANDAMUS RECORD - TAB 8
FILED
DALLAS COUNTY
4/14/2015 4:10:19 PM
FELICIA PITRE
DISTRICT CLERK
CAUSE NO. DC-13-04564-L
JANE DOE § IN THE DISTRICT COURT
§
vs. §
§
AJREDIN "DANNY" DEARI; DRITAN §
KREKA; PASTAZIOS PIZZA, INC.; §
ISLAND HOSPITALITY MANAGE- §
MENT, INC.; HYATT HOTELS §
CORPORATION; HYATT HOUSE §
FRANCHISING, LLC; GRAND PRIX § DALLAS COUNTY, TEXAS
FLOATING LESSEE, LLC; INK §
ACQUISITION, LLC; INK §
ACQUISITION II, LLC; INK §
ACQUISITION III, LLC; INK LESSEE, §
LLC; INK LESSEE HOLDING, LLC; §
CHATHAM TRS HOLDING, INC.; §
CHATHAM LODGING, LP; JEFFREY §
H. FISHER, Individually; POST §
PROPERTIES, INC.; and DOES 1-25 § 193RD JUDICIAL DISTRICT
DEFENDANTS' JOINT MOTION FOR EMERGENCY HEARING ON DEFENDANTS' JOINT MOTION FOR
RECONSIDERATION TO EXAMINE JANE DOE
TO THE HONORABLE COURT:
NOW COMES Defendants Island Hospitality Management, Inc., Post Properties, Inc., and
Post Addison Circle Limited Partnership (referred collectively herein as "Defendants"), and file this
Motion for Emergency Hearing on their Joint Motion for Reconsideration to Examine Plaintiff Jane Doe
for the following reasons:
1. Contemporaneously with the filing of this motion. Defendants are filing Defendants
Island Hospitality Management, Inc.'s, Post Properties, Inc.'s and Post Addison Circle Limited
Partnership's Joint Motion for Reconsideration to Examine Plaintiff Jane Doe. Defendants' psychiatrist
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expert's (Dr. Lisa Clayton) deposition is currently set for Friday, April 17, 2015. As stated in the motion
for reconsideration. Dr. Clayton's opinions challenging Plaintiff's expert are currently based on the
information and data Plaintiffs expert obtained during his evaluation of Plaintiff. Unlike Plaintiffs expert
psychologist. Dr. Clayton has not had the opportunity to examine Plaintiff. The requested examination
would enable Dr. Clayton to explore Plaintiffs psychologist expert's opinions and potentially discover
additional facts that may contradict or bear upon his opinions. In the event the Court grants the Joint
Motion for Reconsideration, Dr. Clayton will have additional opinions in this case, and Plaintiff will likely
request a second deposition. In order to eliminate these contingencies, Defendants request Dr. Clayton's
deposition be postponed until after the Joint Motion for Reconsideration is determined by the Court and
the Court set the hearing on Defendants' Joint Motion for Reconsideration on April 15 or 16,2015,
FORTH ESE REASONS, Defendants Island Hospitality Management, Inc., Post Properties, Inc.,
and Post Addison Circle Limited Partnership, respectfully request that this Honorable Court order an
emergency hearing on April 15 or 16 on Defendants Island Hospitality Management, Inc.'s, Post
Properties, Inc.'s, and Post Addison Circle Limited Partnership's Joint Motion for Reconsideration
to Examine Plaintiff Jane Doe, postpone Dr. Clayton's deposition set for April 17, 2015, and grant
such further relief to which they are justly entitled.
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Respectfully submitted,
COBB MARTINEZ WOODWARD PLLC
1700 Pacific Avenue, Suite 3100
Dallas, TX 75201
(214)|220-5202 (dir set phone)
(214)^20-5252 (dir tct fax)
By:
RAMONA MARTINEZ
Texas Bar No. 13144010
email: rmartinez@cobbmartinez.com
DAVID S. DENTON
Texas Bar No. 24036471
email: ddenton@cobbmartinez.com
MATTHEW E. LAST
Texas Bar No. 24054910
email: mlast@cobbmartinez.com
ATTORNEYS FOR DEFENDANT ISLAND
HOSPITALITY MANAGEMENT, INC.
and
THOMPSON, COE, COUSINGS, & IRONS, L.L.P.
700 N. Pearl, 25th Floor
Dallas, Texas 75201
(214) 871-8228 (direct phone)
(214^371-8209
RAIMpV A. NELSON IvJ/pp^,.,"
Texas Bar No. 14904800 Vf^S^J
email: rnelson@thompsoncoe.com
SARAH L ROGERS
Texas Bar No. 24046239
Email: srogers@thompsoncoe.com
ATTORNEYS FOR POST PROPERTIES, INC. AND
POSTADDISON CIRCLE LIMITED PARTNERSHIP
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CERTIFICATE OF CONFERENCE
Counsel for movant and counsel for respondent have personally conducted a conference at
which there was a substantive discussion of every item presented to the Court in this motion, and
despite best efforts, the counsel have not been able to resolve those matters presented.
Certified to this 14th day of April, 201
DAVIDSTDEISJTON
I hereby certify that a true and correct copy of this document has been forwarded to the
following counsel of record by e-service, email, certified mail, return receipt requested, and/or
regular U.S. mail on this 14th day of April, 2015:
Trey Crawford Dritan Kreka
Gruber Hurst Johansen Hail Shank 5549 Big River Drive
1445 Ross Avenue, Suite 2500 The Colony, TX 75056
Dallas, TX 75202-2711 Defendant Kreka
fax: 214.855.6808
Attorney for Plaintiff
Samuel H.Johnson Randy A. Nelson
Johnson Broome, PC Thompson Coe Cousins & Irons
2591 Dallas Parkway, Suite 300 700 North Pearl Street
Frisco, TX 75034 25th Floor - Plaza of the Americas
fax: 972.584.6054 Dallas, TX 75201
Attorney for Defendants Deari & Attorney for Post Properties
Pastazios Pizza
RAMONA MARTTNEZ'
DAVID S. DENTON
Doc. #136066
MANDAMUS RECORD - TAB 9
000210
DC-13-04564
JANE DOE,
Plaintiff (s), I n t h e D i s t r i c t Court
v. of D a l l a s County
r d
193 J u d i c i a 1
A J R E D I N " D A N N Y " D E A R I ; E T . AL. District
Defendant (s).
O R D E R D E N Y I N G MOTIONS T O RECONSIDER M O T I O N
T O A L L O W PSYCHOLOGICAL EXAMINATION
O N THIS DAY came to be heard, by submission, Defendants' Motions to Reconsider
Motion to Allow Psychological Examination. Having considered the motions, the Court
hereby DENIES them.
SO O R D E R E D this Thursday, April 16, 2015.
ORDER DENYING MOTIONS TO RECONSIDER MOTION TO ALLOW PSYCHOLOGICAL EXAMINATION
Page Solo
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