in Re Valero Refining-Texas, L.P.

ACCEPTED 01-15-00566-CV

FIRST COURT OF APPEALS

HOUSTON, TEXAS 9/11/2015 2:23:49 PM CHRISTOPHER PRINE

CLERK No. 01-15-00566-CV

FILED IN 1st COURT OF APPEALS

HOUSTON, TEXAS In the 9/11/2015 2:23:49 PM

CHRISTOPHER A. PRINE Court of Appeals for the Clerk

First District of Texas IN RE VALERO REFINING—TEXAS, L.P.,

Relator. Original Proceeding from the 212th District Court

Galveston County, Texas Cause No. 12CV1541

RELATOR’S UNOPPOSED MOTION TO ABATE

Valero Refining—Texas, L.P., files this motion to abate its mandamus. Along with this motion to abate, Valero has filed a motion in the trial court requesting that the trial court provide its reasons for refusing to enter judgment on the jury verdict. Valero anticipates the motion will be heard during the week of October 5, 2015, and a ruling should follow soon thereafter. To allow the trial court the opportunity to decide that motion, Valero respectfully asks for a short abatement until October 31, 2015. In support of its motion to abate this mandamus, Valero presents the following procedural history and argument:

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PROCEDURAL HISTORY

1. The trial court (listed as the respondent in this mandamus proceeding) is Judge Patricia Grady. Mand. Pet. at ii. Judge Grady is the current presiding judge in the underlying case who took over the 212th district court in Galveston County when Judge Griffin, her predecessor, left office after granting a new trial on December 30, 2014.

2. Judge Grady signed an order denying Valero’s motion to reconsider the order granting a new trial, on April 16, 2015. Her order states no reason for her denial of Valero’s motion to reconsider the order granting the motion for new trial. R. 1:188. It states simply that “This Court, after considering the Motion is of the opinion that Defendant’s Motion should, in all things, be DENIED.” Id.

3. Valero filed its mandamus petition on June 29, 2015, after securing the entire record of the underlying trial and all hearings, and after hiring appellate counsel to represent Valero in this Court on June 9, 2015.

4. The mandamus petition lists two orders, which taken together, constituted the “trial court’s action necessitating mandamus relief.” Mand. Pet., Statement of the Case, at x. Valero continues to complain of both orders, and the relief requested in the Prayer asks for “ a conditional writ of mandamus . . . compelling the trial court [Judge Grady] to vacate the new trial order and reinstating judgment on the jury’s verdict.” Id. at 36.

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5. This Court ordered a response to the mandamus petition on July 9, 2015, and the Foxes filed their response to the petition, after one extension of time, on August 27, 2015.

6. On September 11, 2015, Valero filed a motion in the trial court seeking to determine Judge Grady’s reasons for denying the earlier-filed motion for reconsideration. See Tab A, Valero’s Motion Requesting the Trial Court To Provide Its Reasons For Refusing To Enter Judgment On The Jury Verdict. It is anticipated the motion will be heard during the week of October 5, 2015.

7. Valero intends to reply fully to all arguments raised in the Foxes’ response, but Valero respectfully requests time to do so subject to this Court’s ruling on the present motion to abate. If the motion is granted, Valero seeks leave to file its reply once Judge Grady rules on the motion pending in her court.

ARGUMENT

Valero has asked before for Judge Grady’s “analysis”—her own, independent reasons—justifying the denial of Valero’s right to judgment on the jury verdict, and for an explanation why the verdict was set aside and a new trial ordered. Valero is “entitled to know those reasons just as much as it would be entitled to know the reasons for the orders entered by the former trial judge.” In re Columbia Med. Ctr. of Las Colinas, 290 S.W.3d 204, 214 (Tex. 2009). This motion to abate will create the time for such a ruling.

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A. Valero has asked for the trial court to provide its reasons for refusing to render judgment in accord with the jury’s verdict. In its briefing in the trial court on the motion seeking reconsideration of the new trial, Valero sought the trial court’s independent analysis of why the jury verdict was overturned:

Not only does this Court have the power to reconsider whether the jury verdict should have been disregarded in favor of a new trial, it has a responsibility to engage in such review. In re Baylor Med. Ctr. at Garland, 280 S.W.3d 227, 231 (Tex. 2008). Moreover, because Judge Griffin is no longer on the bench, his successor is required to reconsider his decision before an appellate court can issue a writ of mandamus. Id. at 228 (“Mandamus will not issue against a new judge for what a former one did.”); State v. Olsen, 360 S.W.2d 402, 403 (Tex. 1962) (“A writ of mandamus will not lie against a successor judge in the absence of a refusal by him to grant the relief Relator seeks.”); TEX. R. APP. P. 7.2(b) (“the successor [must] reconsider the original party's decision.”). This Court is, therefore, expected to apply its own, independent analysis to the issue of whether a new trial should have been ordered and is neither bound by Judge Griffin’s decision nor limited to determining whether that decision was an abuse of discretion.

Valero’s Reply to Plaintiffs’ Response To Defendant’s Motion For Reconsideration at 2; R. 1:160 (emphasis added). Valero deserves an independent analysis of the new trial order by Judge Grady herself. Such an independent analysis would have provided some basis for her refusing to render judgment on the jury verdict.

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B. In response to Valero’s request for an “independent analysis” of the new trial order, the Foxes urged Judge Grady to defer entirely to Judge Griffin’s analysis and to leave his order undisturbed.

The Foxes, who are the real parties in interest, and who obtained the new trial order from Judge Griffin, took the position in the trial court that everyone should defer to him, and leave his order intact, because “The currently presiding judge of this Court was not the one who oversaw the trial of this case or considered Fox’s Motion for New Trial.” Resp. to Motion for Reconsideration at 15; R. 1:157. They argued to Judge Grady that her ruling had to be limited to some type of appellate review of the new-trial order: “the present Court sits in the same position as an appellate tribunal, not having been present at the trial of this matter.” Resp. to Motion for Reconsideration at 2; R. 1:144. Going further, and focusing entirely on Judge Griffin’s order in the trial court, the Foxes urged Judge Grady as the successor judge to “refuse Valero’s invitation to re-visit the settled Order of a judge who was there.” Resp. to Motion for Reconsideration at 15; R.1:157. The Foxes argued that “the Court should be reluctant to disturb that decision.” Id. at 8; R.1:150. Further, at oral argument on the motion, Mr. Todd urged:

Now, we would submit that we can’t second-guess Judge Griffin or we’re going to get second-guessing all over the place all the time we have a circumstance like this occur.

R. 1:1929. He asked for extraordinary and unwarranted deference to Judge Griffin: “I submit that we defer to Judge Griffin.” Id. at ROA 1942-43. 47886_1 5

C. Having directed attention only to Judge Griffin’s order in the trial court, now the Foxes argue in this Court that on mandamus, “Judge Griffin’s order for new trial is no longer at issue.”

In the trial court, the Foxes wanted the focus to be on Judge Griffin’s order. But they now have asserted in this Court that such an approach is wrong. They run away from Judge Griffin’s order here, arguing now that “Judge Griffin’s order for new trial is no longer at issue,” see Mand. Resp. at 12, even though they sprinted toward it—and only that order—in the trial court. They say it is not Judge Griffin’s order that counts, and that the propriety of mandamus relief depends entirely upon Judge Grady’s order denying reconsideration. Id.

The Foxes should not be permitted to run away from their earlier arguments in the trial court, having secured in that court an order upholding the ruling by Judge Griffin out of “deference.” In truth, both orders matter, and both of them are at issue. The Foxes’ response brief admits that Judge Grady’s denial of reconsideration “is no less a refusal to enter judgment on the jury verdict than was Judge Griffin’s,” but they are incorrect in asserting that Judge Grady’s order “is the only Order that counts now.” Resp. to Mandamus Pet. at 13. The Foxes’ bait- and-switch tactics have precipitated Valero’s motion to abate this mandamus, so that if one request to Judge Grady to state her reasons before was not enough, she will have another opportunity to give them now.

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D. Supreme Court precedent requires Judge Grady to provide reasons for upholding the new trial.

The Texas Supreme Court holds that when a successor trial judge “reaffirm[s] the original new trial order without giving reasons for doing so, mandamus relief [will issue] directing the trial court to provide its reasons for refusing to enter judgment on the jury verdict.” In re Baylor Medical Center at Garland, 289 S.W.3d 859, 860 (Tex. 2009). This is not the first time that an appellate court has been asked, via a mandamus petition, for a writ that “direct[s] the trial court to specify the reasons that it refused to enter judgment on the jury verdict and affirmed the granting of a new trial.” Id. at 861. Even when a successor judge signs “an order stating only that [her] predecessor’s ruling ‘should remain unchanged,’” mandamus will issue to force a successor judge to rule with reasons. In re Cook, 356 S.W.3d 493, 494 (Tex. 2011).

Valero is “entitled to know those reasons just as much as it would be entitled to know the reasons for the orders entered by the former trial judge.” In re Columbia Med. Ctr. of Las Colinas, 290 S.W.3d 204, 214 (Tex. 2009). “[A] trial court’s failure to clearly state the reasons for setting aside a jury verdict and for granting a new trial constitutes an abuse of discretion for which there is no adequate remedy by appeal.” In re Cook, 356 S.W.3d at 495. “Reaffirming the former trial court’s order [is] tantamount to granting the motion for new trial. Consequently, the successor trial court must provide its own statement of the 47886_1 7 reasons for setting aside a jury verdict.” Id. Based on the position the Foxes have taken in this Court, it appears all parties now agree that Judge Grady was required to provide her own reasons for refusing to enter judgment on the jury verdict. Given the opportunity, it is anticipated that Judge Grady would do so now.

E. Abatement is a proper means to allow Judge Grady a chance to provide her reasons for upholding the new trial order. Abatement is the “common remedy [applied] to give the successor judge an opportunity to rule on the underlying issue.” In re Gonzales, 391 S.W.3d 251, 252 (Tex. App.—Austin 2012, orig. proceeding). In some circumstances, an abatement of a mandamus proceeding is mandatory “to allow the successor to reconsider the original party's decision.” TEX. R. APP. P. 7.2(b). Valero complied with that mandatory obligation when it asked Judge Grady to reconsider the new trial order signed by Judge Griffin. However, apparently out of “deference” to Judge Griffin, there are no reasons provided in her order denying the reconsideration motion. As we argue above, those reasons are necessary, and this Court should require them.

Even in cases when abatement is not “mandatory under the rules of appellate procedure, [it] nonetheless [can] be appropriate.” See In re Gonzales, 391 S.W.3d at 252. Abatement will permit Judge Grady an opportunity to rule on the pending motion asking her for reasons that support her order upholding the new trial. Moreover, the appellate rules permit this Court to render orders that are appropriate in the circumstances. See TEX. R. APP. P. 52.10(b) (allowing an appellate court to 47886_1 8 “grant any just relief pending the court’s action on the petition”); In re Gonzales, 391 S.W.3d at 252-53.

An order of abatement for a definitive time period is “just relief” that would allow this Court to review Judge Grady’s reasoning. In the Gonzales case, the time of abatement ordered by the Austin Court of Appeals was 14 days, and something like that interval would be appropriate here. Valero filed its motion in the trial court on Friday, September 11, 2015. It is anticipated the motion will be heard during the week of October 5, 2015. If she does not rule earlier, Judge Grady should be allowed at least the remainder of the month in which to provide her reasoning for refusing to render judgment on the jury verdict. Failing a ruling by October 31, 2015, this Court should order her to rule in accordance with Texas Supreme Court precedent. In re Baylor Med. Ct.r at Garland, 289 S.W.3d 859, 860 (Tex. 2009) (holding that if a successor judge merely “reaffirm[s] the original new trial order without giving reasons . . ., mandamus relief [should issue] directing the trial court to provide its reasons for refusing to enter judgment on the jury verdict.”).

Once Judge Grady rules, the current mandamus will be pending still, and this Court can decide the core issue of whether the new trial should have been granted. Judge Grady’s ruling may set aside the new trial order, but if she gives a reason or reasons for upholding it, then this Court will be able to weigh in on the 47886_1 9 propriety of a new trial in light of her ruling. Reviewing her ruling in the current proceeding will save the parties and the judicial system the expense of time and resources that would be required to file and decide another mandamus proceeding to challenge Judge Grady’s ruling. And most importantly, this Court will be able to determine the merits of the case and whether the jury verdict should be upheld. Valero asks leave to file its formal reply brief, answering all the arguments in the Foxes’ response, once Judge Grady rules on the pending motion before her. If additional briefing would be helpful from the Foxes, they should also be provided the opportunity to present their arguments following a proper ruling by Judge Grady.

PRAYER

Valero Refining—Texas, L.P., asks for an abatement of this mandamus proceeding until October 31, 2015, while the trial judge considers the motion asking her to provide her reasons for refusing to enter judgment on the jury verdict. In the event the motion is not granted, Valero asks for 14 days following the trial court’s ruling in which to reply to the Foxes’ response to the mandamus petition. Valero also asks for any other relief to which it is entitled.

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Respectfully Submitted:

David W. Burns HOGAN & HOGAN State Bar No. 00785735 [email protected] By: /s/ Richard P. Hogan, Jr. TEKELL, BOOK, ALLEN & MORRIS, LLP Richard P. Hogan, Jr. 1221 McKinney, Suite 4300 State Bar No. 09802010 Houston, Texas 77010 [email protected] 713.222.9542–telephone Jennifer Bruch Hogan 713.655.7727–facsimile State Bar No. 03239100 [email protected] James F. Bennett James C. Marrow State Bar No. 46826 State Bar No. 24013103 [email protected] [email protected] Megan Heinsz Pennzoil Place State Bar No. 56377 711 Louisiana, Suite 500 [email protected] Houston, Texas 77002 DOWD BENNETT, LLP 713.222.8800–telephone 7733 Forsyth Boulevard 713.222.8810–facsimile St. Louis, Missouri 63105 314.889.7300–telephone Alex M. Miller 314.863.2111–facsimile State Bar No. 00791263 [email protected] THE VALERO COMPANIES One Valero Way San Antonio, Texas 78249 210.345.2857–telephone 210.345.4567–facsimile

ATTORNEYS FOR RELATOR VALERO REFINING—TEXAS, L.P.

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CERTIFICATE OF CONFERENCE

Counsel for Relator has conferred with counsel for Real-Parties-In-Interest, Iain G. Simpson, and Real-Parties-In-Interest are unopposed to this motion.

/s/ Richard P. Hogan, Jr. Richard P. Hogan, Jr. Dated: September 11, 2015

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CERTIFICATE OF SERVICE

I certify that a true and correct copy of the foregoing was forwarded to all counsel of record by the Electronic Filing Service Provider, if registered; a true and correct copy of this document was forwarded to all counsel of record not registered with an Electronic Filing Service Provider and to all other parties as follows:

Counsel for Real-Parties-In-Interest:

Iain G. Simpson SIMPSON, P.C.

1333 Heights Boulevard, Suite 102 Houston, Texas 77008 Via TexFile Alton C. Todd THE LAW FIRM OF ALTON C. TODD 312 S. Friendswood Drive Friendswood, Texas 77546 Via TexFile Respondent:

The Honorable Patricia Grady 212th Judicial District Court 600 59th Street Galveston, Texas 77550 Via US Mail

/s/ Richard P. Hogan, Jr. Richard P. Hogan, Jr. Dated: September 11, 2015

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Tab A Motion Requesting the Trial Court to Provide Its Reasons for

Refusing to Enter Judgment on the Jury Verdict

Filed: 9/11/2015 10:27:08 AM JOHN D. KINARD - District Clerk

Galveston County, Texas Envelope No. 6881639

By: Shailja Dixit 9/11/2015 11:45:47 AM

CAUSE NO. 12CV1541

VERNON FOX AND MIKKI FOX § IN THE DISTRICT COURT OF VS. § GALVESTON COUNTY, TEXAS NUSTAR LOGISTICS, LP., and VALERO ENERGY CORPORATION § 212TH JUDICIAL DISTRICT

MOTION REQUESTING THE TRIAL COURT TO PROVIDE ITS REASONS FOR REFUSING TO ENTER JUDGMENT ON THE JURY VERDICT Valero Refining-Texas, L.P. respectfully files this motion in response to the Foxes' assertion that "Judge Grady's Order does not specify the reasons for her denial of Valero's Motion for Reconsideration." Inevitably, the Court will have to give its reasoning for failing to give effect to the jury's verdict. That should have happened when Valero asked for an independent analysis in the reconsideration motion. Those reasons should be given now, or the Court should reinstate the Final Judgment consistent with the jury verdict.

SUMMARY OF MOTION Good arguments support the relief requested in this motion-that the Court provide its reasons for refusing to enter judgment on the jury verdict. Because the jury verdict was overturned, and the new trial order was left undisturbed, both the jury and the litigants deserve to know why their trial time was wasted. Clarification is being requested now because the Foxes have run far away from what they told this Court in responding to the motion for reconsideration of the new trial order. In response to Valero's mandamus petition, the Foxes have made arguments without regard for the "considerations of consistency and continuity" that they trumpet in their mandamus brief. See Mand. Resp. at 14; Tab A. Their lack of continuity in argument compels this Court to explain why it will not render judgment on the jury's verdict. Pinning down the Foxes' position should be enough justification for this motion, but there are other valid reasons.

First, Texas Supreme Court precedent has confronted this precise circumstance, when a successor trial judge reaffirms the original new trial order without giving reasons. In that circumstance, the second trial judge is supposed to state a rationale for undoing the jury verdict. Precedent demands such an order.

Second, the Foxes' bluff should be called. They pretend that Valero "sat on its hands" and did not ask for reasons to be given for this Court's denial of reconsideration. As shown below, that statement is false, but even if true, the time is right now to follow precedent and to provide a rationale.

Third, a writ of mandamus is always directed to the current office holder, who will have to obey the writ as the judge of this district court. The Foxes have admitted that "Judge Grady's Order does not specify the reasons for her ... refusal to enter judgment on the jury verdict." See Mand. Resp. at 13; Tab A. This is an abuse of discretion. See In re Cook, 356 S.W.3d 493, 495 (Tex. 2011) ("[A] trial court's failure to clearly state the reasons for setting aside a jury verdict .. . constitutes an abuse of discretion."). The only question, it seems, is whether the Court will act now on its own. "[I]n the final analysis any judge sitting in the case after mandamus relief is granted would be compelled to obey [an appellate court's order to provide reasons]." In re Schmitz, 285 S.W.3d 451, 454 (Tex. 2009). Rather than await an order to follow precedent and give reasons after the court of appeals rules, this Court should act now. Valero has asked for an abatement of the mandamus until this Court rules on this motion, so there is time.

ARGUMENT I. The Foxes Have Changed Their Arguments for Upholding Judge Griffin.

This motion is being filed because the Foxes have taken flip-flopping positions. Those inconsistent positions begin with the recent (untrue) assertion that Valero never asked before that the Court provide reasons for denying reconsideration of the new trial. In fact, Valero argued at length, in response to the Foxes' argument that this Court's powers of review were limited, that the Court not only should reconsider Judge Griffin's order, but that it must do so, and that its review should be independent. Valero's argument came in reply to the Foxes' argument that this Court should defer to Judge Griffin, and leave his order intact, because "The currently presiding judge of this Court was not the one who oversaw the trial of this case or considered Fox's Motion for New Trial." Resp. to Motion for Reconsideration at 15. Valero's position then-and now-consistently has been that it wanted the Court's independent, considered reflections on whether the jury verdict should have been disregarded:

Not only does this Court have the power to reconsider whether the jury verdict should have been disregarded in favor of a new trial, it has a responsibility to engage in such review. In re Baylor Med. etr. at Garland, 280 S.W.3d 227, 231 (Tex. 2008). Moreover, because Judge Griffin is no longer on the bench, his successor is required to reconsider his decision before an appellate court can issue a writ of mandamus. Id. at 228 ("Mandamus will not issue against a new judge for what a former one did."); State v. Olsen, 360 S.W.2d 402, 403 (Tex. 1962) ("A writ of mandamus will not lie against a successor judge in the absence of a refusal by him to grant the relief Relator seeks."); TEX. R. ApP. P. 7.2(b) ("the successor [must] reconsider the original party's decision."). This Court is, therefore, expected to apply its own. independent analysis to the issue ofwhether a new trial should have been ordered and is neither bound by Judge Griffin's decision nor limited to determining whether that decision was an abuse of discretion.

Valero's Reply at 2 (emphasis added). Valero did request an independent analysis of the new trial order. Such an independent analysis would have provided some basis for refusing to render judgment on the jury verdict.

After at first shining a spotlight on Judge Griffin's new trial order and arguing that this Court need not give its own reasons but should just defer to Judge Griffin, the Foxes now have filed a brief in the court of appeals that asserts such an approach is wrong. They say it is not Judge Griffin's order that counts, and that the propriety of mandamus relief depends entirely upon this Court's order denying reconsideration. They have briefed that this Court's order, "is no less a refusal to enter judgment on the jury verdict than was Judge Griffin's, and it is the only Order that counts now." Resp. to Mandamus Pet. at 13; Tab A. The inconsistency in these positions precipitates Valero's motion seeking reasons for why this Court refused to uphold the jury verdict.

II. The Court Is Required to Provide Its Reasons For Upholding the New Trial.

A. Supreme Court precedent demands a statement of independent reasoning from this Court for why it has not rendered judgment on the jury's verdict.

Earlier, on the motion for reconsideration, the Foxes argued: "the present Court sits in the same position as an appellate tribunal, not having been present at the trial of this matter." Resp. to Motion for Reconsideration at 2. In that role, this Court is supposed to look to Supreme Court case law. The Texas Supreme Court holds that when a successor trial judge "reaffirm[s] the original new trial order without giving reasons for doing so, mandamus relief [will issue] directing the trial court to provide its reasons for refusing to enter judgment on the jury verdict." In re Baylor Medical Center at Garland, 289 S.W.3d 859, 860 (Tex. 2009).

The Foxes incorrectly asserted in their earlier briefing that a successor trial judge is excused from giving reasons and should just defer to the first judge's order unless an abuse of discretion is shown. Yet there is no safe harbor provided by deferring to Judge Griffin's order, and precedent would "direct the trial court to specify the reasons that it refused to enter judgment on the jury verdict and affirmed the granting of a new trial." Id. at 861. Even when a successor judge signs "an order stating only that [her] predecessor's ruling 'should remain unchanged,'" mandamus will issue to force a successor judge to rule with reasons. In re Cook, 356 S.W.3d 493,494 (Tex. 2011).

An order with specific reasons is the right result here because this Court's order reaffirming Judge Griffin's new trial was "effectively an order refusing to enter judgment on the jury verdict and affects the rights of the parties no less than did the orders of the original judge," and Valero is "entitled to know those reasons just as much as it would be entitled to know the reasons for the orders entered by the former trial judge." In re Columbia Med. Ctr. of Las Colinas, 290 S.W.3d 204, 214 (Tex. 2009). "[A] trial court's failure to clearly state the reasons for setting aside a jury verdict and for granting a new trial constitutes an abuse of discretion for which there is no adequate remedy by appeal." In re Cook, 356 S.W.3d at 495. "Reaffirming the former trial court's order [is] tantamount to granting the motion for new trial. Consequently, the successor trial court must provide its own statement of the reasons for setting aside a jury verdict." Id. at 495. This Court should act now and follow Supreme Court precedent in providing its own rationale for denying judgment on the jury verdict.

B. Contrary to the Foxes' arguments, Valero did ask before, on reconsideration of the new trial order, that this Court conduct an independent analysis and give its reasoning.

In their mandamus response brief, the Foxes belittled Valero because, allegedly, "Valero has sat on its hands in the trial court since mid-April ... never requesting a more specific order, and never requesting the justification or basis for Judge Grady's decision." Mand. Resp. at 12- 13; Tab A. Actually, Valero has asked before, and it returns to this Court again now because, as the case law directs, the Court is supposed to say why it has not rendered the judgment that the jury expected and that Valero deserves.

Nevertheless, apparently the Foxes were successful in convincing this Court that it did not need to conduct an independent analysis or do its own reasoning-instead asking that this Court "refuse Valero's invitation to re-visit the settled Order of a judge who was there," and presuming that this Court should act only as an appellate reviewer, looking for an abuse of discretion. Resp. to Motion for Reconsideration at 15, 3-4, 7-8. The Foxes sought to leave Judge Griffin's order alone, arguing "the Court should be reluctant to disturb that decision." Id at 8. And further, at oral argument on the motion for reconsideration, Mr. Todd urged the Court not to look too hard at what Judge Griffin had done, or the floodgates would come unhinged:

Now, we would submit that we can't second-guess Judge Griffin or we're going to get second-guessing all over the place all the time we have a circumstance like this occur.

Hearing Tr. 03/13/15, ROA at 1929; Tab B. In no uncertain terms, Mr. Todd asked this Court to give extraordinary and unwarranted deference to Judge Griffin: "I submit that we defer to Judge Griffin." Id at ROA 1942-43; Tab B.

Those attempts to divert this Court from its duty under Supreme Court precedent, and to focus entirely on Judge Griffin's order, are incorrect and inconsistent. Despite their earlier arguments, now the Foxes argue on mandamus, "Judge Griffin's order for new trial is no longer at issue." Mand. Resp. at 12; Tab A. The Foxes should not be permitted to run away from their earlier arguments now, having secured this Court's order upholding the ruling by Judge Griffin out of deference.

C. This Court would be compelled to act if mandamus relief is granted. The Foxes have argued in the appellate court that "Judge Griffin is not the Respondent in this case and is not the one who would be compelled to act by any writ issued by this Court." Resp. Mand. Pet. at 12; Tab A. In truth, as Justice Scott Brister has written, it really does not matter who the judge is: "[T]he writ must be directed to someone, but in the final analysis any judge sitting in the case after mandamus relief is granted would be compelled to obey it." In re Schmitz, 285 S.W.3d 451,454 (Tex. 2009). Therefore, the sitting judge in this Court is being asked to act first, before a writ issues that would direct an independent analysis of the new trial order.

PRAYER The motion should be granted and, following precedent, the Court should "specify the reasons why it refused to enter judgment on the jury verdict." See In re Columbia Med. Ctr. of Las Colinas, 290 S.W.3d 204, 215 (Tex. 2009) (requiring "clearly identified and reasonably specific" reasons); In re Cook, 356 S.W.3d 493, 495-96 (Tex. 2011). Alternatively, the Court should reinstate the Final Judgment consistent with the jury verdict. Valero asks for all relief to which it is entitled.

Respectfully submitted, TEKELL, BOOK, ALLEN & MORRIS, LLP HOGAN & HOGAN By: /s/ David W. Burns By: /s/ Richard P. Hogan. Jr.

David W. Burns Richard P. Hogan, Jr. State Bar No. 00785735 State Bar No. 09802010 [email protected] [email protected]

1221 McKinney, Suite 4300 Jennifer Bruch Hogan Houston, Texas 77010 State Bar No. 03239100 713.222.9542-telephone [email protected] 713.655.7727-facsimile James C. Marrow

State BarNo. 24013103 DOWD BENNETT, LLP [email protected]

Pennzoil Place James F. Bennett 711 Louisiana, Suite 500 State Bar No. 46826 Houston, Texas 77002 [email protected] 713.222.8800-telephone Megan Heinsz 713.222.8810-facsimile State Bar No. 56377 [email protected] THE VALERO COMPANIES 7733 Forsyth Boulevard St. Louis, Missouri 63105 Alex M. Miller 314.889.7300-telephone State Bar No. 00791263 314.863.2111-facsimile [email protected]

One Valero Way San Antonio, Texas 78249 210.345.2857-telephone 210.345.4567-facsimile

ATTORNEYS FOR VALERO REFINING-TEXAS, L.P.

CERTIFICATE OF SERVICE I certify that a true and correct copy of the above and foregoing was forwarded to all counsel of record by the Electronic Filing Service Provider, if registered; a true and correct copy of this document was forwarded to all counsel of record not registered with an Electronic Filing Service Provider and to all other parties as follows: lain G. Simpson SIMPSON, P.C.

1333 Heights Boulevard, Suite 102 Houston, Texas 77008 Via EFile Alton C. Todd THE LAW FIRM OF ALTON C. TODD 312 S. Friendswood Drive Friendswood, Texas 77546 Via EFile lsi David W Burns David W. Burns Dated: September 11, 2015

CERTIFICATE OF CONFERENCE

This matter has been discussed with opposing counsel, Alton Todd, and he is opposed to Movant's request under the motion. lsi David W Burns David W. Burns Dated: September 11, 2015 TAB A

ACCEPTED 01-15-00566-CV

FIRST COURT OF APPEALS

HOUSTON, TEXAS 8/27/20153:27:53 PM CHRISTOPHER PRINE

CLERK ~o.Ol-15-00566-~

I~THE FIRST COURT OF APPEALS AT HOUSTO~, TEXAS

I~ RE VALERO REFI~I~G - TEXAS, L.P., Original Proceeding arising from Cause No. 12CV1541, in the

212th District Court of Galveston County, Texas

REAL PARTY I~ I~TEREST'S RESPO~SE TO PETITIO~ FOR WRIT OF MA~DAMUS

SIMPSON, P.C. lain G. Simpson State Bar No. 00791667 1333 Heights Blvd., Suite 102 Houston, Texas 77008 (281) 989-0742 (281) 596-6960 - fax [email protected] ApPELLATE COUNSEL FOR REAL PARTIES IN INTEREST VERNON Fox AND MIKKI Fox

ORAL ARGUMENT CONDITIONALLY REQUESTED

IDENTITY OF PARTIES AND COUNSEL Real Parties in Interest: Counsel for Real Parties in Interest: Vernon Fox and Mikki Fox Alton C. Todd

THE LAW FIRM OF ALTON C. TODD 312 S. Friendswood Drive Friendswood, Texas 77546 281-992-8633 281-648-8633 - facsimile TRIAL COUNSEL lain G. Simpson SIMPSON, P.C.

1333 Heights Boulevard, Suite 102 Houston, Texas 77008 281-989-0742 281-596-6960 - facsimile ApPELLATE COUNSEL

TABLE OF CONTENTS

IDENTITY OF PARTIES AND COUNSEL .ii INDEX OF AUTHORITIES vi STATEMENT REGARDING ORAL ARGUMENT .ix RESPONSIVE ISSUES PRESENTED 1 STATEMENT OF FACTS 1 SUMMARY OF THE ARGUMENT 7 ARGUMENT ~ 10

The Standard of Review 10 Responsive Issue One 11 Mandamus cannot issue against a successor judge for her predecessor's order. Valero attacks the wrong order and asks for the wrong relief. Valero's Petition must be denied.

A. Judge Griffin's Order for new trial is no longer at issue 12 B. Judge Grady's Order does not state her basis, and Valero never asked Judge Grady to do so 12 Responsive Issue Two 14 Judge Grady's reasons for declining to reconsider Judge Griffin's order may include considerations of judicial consistency and continuity within the case and her court, as well as recognition that her predecessor was actually present for trial and able to view witness testimony. Such considerations are anything but unguided and unprincipled.

They cannot be an abuse of discretion.

A. Consistency of decisions within a single case is a valid judicial concern 14 B. Decision of the case at bar and the trial court's order for new trial rested upon the credibility of many witnesses, none of whose testimony Judge Grady was able to hear in person 15 C. Both considerations of consistency and lack of opportunity to weigh the credibility of witnesses may constitute good cause for allow Fox's new trial to proceed 17 Responsive Issue Three 18 Should the Court decide to consider it, Judge Griffin's Order was supported by his own observation of all witnesses during testimony in open court and his evaluation of their credibility.

A. Valero's experts never testified that Fox's experts were wrong 18 B. Fox presented evidence that, even if subjective, is still evidence ,; 19 Responsive Issue Four 21 Evidence showed that Fox suffered physical injury from chemical exposure that is more than just mental anguish and that demonstrated both specific and general causation. iv A. Valero mischaracterizes and mInImIzes the nature of Fox's injury in an effort to make its point 21

B. Valero never actually argues that Fox failed to show general causation 22 C. Fox presented evidence of specific exposure to particular toxins 23 CONCLUSION 24 PRAyER 25 CERTIFICATE OF COMPLIANCE 26 CERTIFICATE OF SERVICE 27 v INDEX OF AUTHORITIES

Cases Borg-Warner v. Flores,

232 S.W.3d 765 (Tex. 2007) 23 Coastal Tankships, U.S.A., Inc. v. Anderson,

87 S.W.3d 591 (Tex. App.-Houston [1 st Dist.] 2002, pet. denied) 22

Downer v. Aquamarine Operators,

701 S.W.2d 238 (Tex. 1985) 10 E.1. du Pont de Nemours & Co. v. Robinson,

923 S.W.2d 549 (Tex. 1995) 19 Holloway v. Fifth Court ofAppeals,

767 S.W.2d 680 (Tex. 1989) 10, 13 In re Anna C. Smith,

332 S.W.3d 704 (Tex. App.- Texarkana 2011, orig. proceeding) 20 In re Baylor Med. Ctr. at Garland ("Baylor 1"),

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

289 S.W.3d 859 (Tex. 2009) 12 In re Columbia Med. Ctr. of Las Colinas,

290 S.W.3d 204 (Tex. 2007) 12, 17 In re Cook,

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

VI

In re Prudential Ins.,

148 S.W.3d 124 (Tex. 2003) 10 In re Schmitz,

285 S.W.3d 451 (Tex. 2009) 11 In re Toyota Motor Sales,

407 S.W.3d 746 (Tex. 2014) 20 In re United Scaffolding,

377 S.W.3d 685 (Tex. 2012) 13, 17 Paradigm Oil v. Retamco Operating,

372 S.W.d 177 (Tex. 2012) 15 Slaughter v. Abilene State School,

561 S.W.2d 789 (Tex. 1977) 19 Tilton v. Marshall,

925 S.W.2d 672 (Tex. 1996) 10 Walker v. Packer,

827 S.W.2d 833 (Tex. 1992) 10 Rules TEX. R. ApP. P. 7.2 7, 11 TEX. R. CIV. P. 320 16 Secondary Sources Michael Henke and Craig Margolis, The Taking and Use of Video

Depositions: An Update, 17 Rev. Litig. 1, 14 n. 56 (Winter, 1998) 16

VB

Stephanie A. Vaughan, Persuasion Is an Art ... But It is Also an

Invaluable Tool in Advocacy, 61 BAYLOR L. REV. 635, 672 n. 238 (2009) 16

Jansen Voss, The Science of Persuasion: An Exploration of

Advocacy and the Science Behind the Art of Persuasion in the Courtroom, 29 L. & PSYCHOL. REV. 201, 216 (2005) 16

Vll1

STATEMENT REGARDING ORAL ARGUMENT

Real Parties in Interest, Vernon Fox and Mikki Fox (together, "Fox), request oral argument in this matter but only conditionally and only because Relator, Valero Refining- Texas, L.P., has done so. In truth, Fox believes that little reason exists for the Court to hear oral argument in this matter. Should the Court even reach the majority of the record in this case, a review of that record is all that is necessary for the Court's decision. Oral argument can shed minimal additional light. Consequently, should the Court grant oral argument to Valero, Fox requests equal time. Otherwise, Fox waives oral argument.

IX

RESPONSIVE ISSUES PRESENTED

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

2. Judge Grady's reasons for declining to reconsider Judge

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

3. Should the Court decide to consider it, Judge Griffin's

Order was supported by his own observation of all witnesses during testimony in open court and his evaluation of their credibility.

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

STATEMENT OF FACTS

On January 12, 2011, Valero's Texas City refinery released crude oil from a storage vessel in its tank farm, due to overfilling. Droplets of crude oil crossed the road where Vernon Fox, an employee of BP, traveled that day. This much is firmly established by the evidence, and no one disputes it. Fox was on the road near the release when it occurred. Fox testified to it, and no one disputes it.

In its briefing, Valero suggests that Fox was not exposed to anything from the spill until approximately an hour after the overflow had been stopped. Valero's Petition, at 2. It also notes that Fox had a H 2S monitor on his person that was not triggered. Id. But Fox's testimony is somewhat different. Fox testified that he was aware of unusual "smells" when he passed by Valero's tank farm on the way to check a valve that morning, though he did not see anything overflowing. ROA 1:933-44. He testified that those "smells" were much stronger on the return leg of his journey. ROA 1:945. While Fox had his H 2S monitor in the cab of his truck, he was not wearing it at the time. ROA 1:945. It was on his jacket, which was on the truck seat beside him. Id. On the return leg of his journey, Fox described driving into a "vapor cloud." ROA 1:946. Perceiving an unsafe situation that needed to be addressed and intending to look for a leak, Fox stopped his truck and exited the cab, leaving his H 2S monitor behind. Id. Having observed a spill, Fox returned to his office where he contacted Valero concerning the spill. ROA 1:947. Fox testified that he was shaken by the realization that he had been exposed to a chemical or chemicals that could have been ignited, even as he stood there. ROA 1:947-48. Later that day, Fox's supervisor sent him home. ROA 1:948-49. The disputes arise with regard to Fox's claimed harm. Valero's argument is that Fox was "faking it."

As both fact and expert witness, Fox presented evidence concerning his course of treatment by Dr. Ly, his treating psychiatrist, who diagnosed Fox with a major depressive disorder. He also presented evidence from Dr. Polk, a clinical psychologist, who cared for and treated Fox for a considerable period. ROA 1:733. Dr. David Axelrad is a psychiatrist and neuropsychiatrist who examined Fox at the request of his counsel. ROA 1:1175. Dr. Axelrad has specific experience treating patients with post- traumatic stress disorder (PTSD). ROA 1:1180, 1:1193. Dr. Axelrad testified that PTSD is a form of physical brain injury resulting from the release of excess stress chemicals. ROA 1:1266. When under stress, the body releases cytokines that promote an inflammatory response. ROA 1:1205. This is more than simple anxiety, but an actual physical response to extreme stress.

Dr. Axelrad testified that Fox suffers from a major neurocognitive disorder, resulting from physical brain injury secondary to exposure to neurotoxins. ROA 1:1197-98. These brain injuries and the resulting neurocognitive disorder manifest in major impacts on his behavior. ROA 1:1198. Dr. Axelrad also noted that, where a person has suffered brain injury and potentially life-threatening circumstances, this can lead to the development of PTSD. ROA 1:1201. Dr. Axelrad observed that multiple professionals - a clinical psychologist following Fox over a period of time and a treating psychiatrist-diagnosed Fox with PTSD. ROA 1:1202. He also testified that, in his estimation, Fox meets the criteria for a PTSD diagnosis. ld.

Dr. Priscilla Ray is a psychiatrist, brought to trial as an expert witness by Valero. Dr. Ray testified that Dr. Ly-Fox's treating psychiatrist- followed appropriate standards of care in treating him, prescribing psychotherapy and medication. ROA 1:1501-02. Dr. Ray testified that Fox claimed symptoms consistent with the disorders he claims and that Dr. Ly prescribed appropriate medication for post-traumatic stress disorder (PTSD). ROA 1:1503-04. Dr. Ray also agreed that, if Fox did not show particular symptoms of PTSD upon her examination of him, this could be due to the fact that medication he was prescribed for that condition was actually working. ROA 1:1502.

Dr. Ray testified that Fox suffered from major depression and from a somatic symptom disorder. ROA 1:1524. She acknowledged that he showed no such symptoms before his exposure to the chemical release. ROA 1:1523-24. She acknowledged that, before this incident, he was a healthy, happy family man, one who enjoyed working. ROA 1:1523. She acknowledged that Fox reported feeling "defeated" and that Dr. Axelrad- who diagnosed Fox with PTSD-could be right. ROA 1:1525. She said that, even in her own opinion, Fox could have "a major depressive disorder." ROA 1:1525-26.

Dr. Ray's explanation for Fox's situation is "malingering" in pursuit of an "external incentive" -money. ROA 1:1522. She testified that pursuit of a lawsuit or disability payments could have motivated him. ROA 1:1520-21. But she could provide no explanation as to why Fox continued to work for a year following his exposure, and used up his sick time and vacation time in that spell. Id. She also could provide no explanation as to why a malingerer" would wait over a year, post-accident, to consult a

/I lawyer. Id.

Dr. Ray confirmed that Fox was diagnosed with a major depressive disorder by multiple doctors. ROA 1:1532. She confirmed that Dr. Ly mentions his suicidal ideation. ROA 1:1549. This occurred in September 2011, prior to any discussion with Dr. Axelrad, Fox's expert witness. ROA 1:1551. The diagnosis and symptoms discussed, up to that point, came solely from Fox's treating health care and mental health care providers. Dr. Ray was asked about Fox's anxiety about returning to work and agreed that it could arise from returning to the location where his chemical exposure occurred. ROA 1:1559. She recognized the recommendation that he take time away from work because of possible safety concerns related to his anxiety and PTSD and that this time away was recommended by his treating health care providers. ROA 1:1560. Again, she recognized that this was prior to any meeting with Dr. Axelrad. ROA 1:1560-61.

Dr. David Rosenfield is a neurologist and expert witness retained by Valero. ROA 1:1572. In his testimony, Dr. Rosenfield confirmed his understanding that, among the chemical components to which Vernon Fox would have been exposed were hydrogen sulfide (referred to throughout the proceedings as ilH2S") and benzene. ROA 1:1630-31. Dr. Rosenfield observed that the fact of exposure was not dependent upon the amount of oil or chemicals spilled. ROA 1:1631. Dr. Rosenfield confirmed that H 2S is a neurotoxin and can create neurocognitive deficits. ROA 1:1617. It can also cause a number of other symptoms, including headache, dizziness, weakness, exhaustion, irritability, and insomnia. ROA 1:1621-22. Dr. Rosenfield confirmed that these were symptoms described by Fox. ROA 1:1623-24. OSHA instructs that, at lower concentrations, the effects of exposure can be delayed. ROA 1:1623.

Dr. Rosenfield confirmed that H 2S exposure can occur through inhalation or through eye or skin contact. ROA 1:1621. While apparently disputing Fox's testimony at trial, he testified in his deposition that Fox was most likely exposed to chemical vapors. ROA 1:1633-34. Finally, Dr. Rosenfield confirmed that breathing in H2S can interfere with the enzyme cytochrome oxidase, an enzyme necessary for brain cells' use of oxygen. ROA 1:1644-45. That interference with oxygen use can cause damage to the brain. Id.

SUMMARY OF THE ARGUMENT Valero makes much of Hon. Brent Griffin issuing his Order for a new trial on his final day in office, and it spends almost its entire petition attacking the correctness and propriety of Judge Griffin's Order. But it is not Judge Griffin's Order that is in question. A writ of mandamus must be directed to someone, and that someone cannot be an official who no longer holds office. Such is the rationale for TEX. R. ApP. P. 7.2(b), which provides for abatement of an original proceeding in order to allow a new office holder to reconsider the actions and orders of her predecessor and provide opportunity to give her own opinion and grounds to justify or refute such an order. That is both the situation here and not the situation here.

Two trial judges, not just one, rejected Valero's position. Valero attacks the wrong order and provides an insufficient mandamus record. Valero attacks Judge Griffin's Order, but it is Hon. Patricia Grady's Order on Valero's Motion for Reconsideration that holds sway. It is Judge Grady who is the Respondent in this matter, and Judge Grady took office and considered the issues at bar well before Valero filed the current Petition. Yet, even knowing that appropriate specificity of a new trial order was an issue in this matter - having pressed it as part of its Motion for Reconsideration (ROA 137-139)- Valero sat on its hands as Judge Grady signed a single-page Order denying its Motion for Reconsideration and cementing Fox's right to a new trial. ROA 188. Valero never protested or sought any greater detail, and the bases for Judge Grady's Order are a mystery. Mysteries cannot support mandamus. Valero argues that judgment on the jury's verdict should have been entered but never sought an explanation as to why it was not. What Valero seeks by way of mandamus this Court cannot grant.

Even so, the potential bases for Judge Grady's Order range beyond what could have been contemplated by Judge Griffin. Maintaining consistency and continuity of judicial decision-making within a Court and a single case; the simple fact that Judge Griffin was able to evaluate the credibility of each witness in open court rather than from a cold record, these are factors that might well have figured in Judge Grady's calculus. As Valero itself admits, the case is largely about credibility. Contrary to Valero's position, however, jurors are not the only ones who evaluate witness credibility. Short of a finding that such reasons are "no reason," Judge Grady's Order cannot be an abuse of discretion.

Finally, even if the Court should delve back into the activities of Judge Grady's predecessor, it will find that Judge Griffin's Order was well within the bounds of his discretion. Valero's own expert witnesses could not rule out Fox's claim to damages, and, even as Valero criticizes Fox's description of symptoms as entirely subjective, its own experts throw around a "diagnosis" of "malingering" - a subjective estimation, if ever there were.

ARGUMENT The Standard of Review

Mandamus is an extraordinary remedy, reserved for use in instances of manifest and urgent necessity. Holloway v. Fifth Court of Appeals, 767 S.W.2d 680, 684 (Tex. 1989). It is not issued as a matter of right, but solely at the discretion of the court, In re Prudential Ins., 148 S.W.3d 124, 138 (Tex. 2003), and only when the relator "satisfies a heavy burden of establishing 'compelling circumstances.'" Tilton v. Marshall, 925 S.W.2d 672, 681 (Tex. 1996). "As a selective procedure, mandamus can correct clear errors in exceptional cases and afford appropriate guidance to the law without the disruption and burden of interlocutory appeal." Id. But the Court may issue mandamus only when the relator demonstrates and the Court finds that (1) the trial court has committed a clear abuse of discretion and (2) the relator lacks any adequate remedy at law. Walker v. Packer, 827 S.W.2d 833, 839 (Tex. 1992).

A trial court abuses its discretion only if it acts without reference to any guiding rules and principles. Downer v. Aquamarine Operators, 701 S.W.2d 238, 241-42 (Tex. 1985). The question is not whether the reviewing court believes the trial court's action appropriate or correct. Id. Valero argues steadily concerning what the jury could have found, but it fails to focus on what the trial court did find. As relator in a mandamus proceeding, it is not enough for Valero to state that its sought after result is a reasonable, permissible outcome. It must argue that it is the only outcome consistent with the law.

Responsive Issue One

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

Although a particular respondent is not critical in a mandamus proceeding, the writ must be directed to someone. In re Schmitz, 285 S.W.3d 451,454 (Tex. 2009). And generally a writ will not issue against one judge for what another did. In re Baylor Med. etr. at Garland, 280 S.W.3d 227, 228 (Tex. 2008) ("Baylor I"). Thus, in an original proceeding where the judge who signed the order at issue has "cease[d] to hold office, an appellate

II court"must abate the proceeding to allow the successor to reconsider the original party's decision. TEX. R. ApP. P. 7.2. Consequently, the Texas

II Supreme Court has refused to consider the reasons given by a first trial judge in a new trial order, when it was a successor's refusal to reconsider the order that was at stake. See In re Baylor Med. Ctr. at Garland, 289 S.W.3d, 859/860 (Tex. 2009) CBaylor II").

A. Judge Griffin's Order for new trial is no longer at issue. Valero complains-exclusively-about the actions of Judge Griffin. It explores and examines Judge Griffin/s new trial order. But Judge Griffin is no longer the judge of the 212th District Court. Judge Griffin ceased being the judge of that Court long before Valero ever filed its Petition for Writ of Mandamus. And Judge Griffin is not the Respondent in this case and is not the one who would be compelled to act by any writ issued by this Court. 1/ As in Columbia and Baylor II ... the former trial court's order is no longer at issue here, as the successor trial judge has since issued a subsequent order." See In re Cook, 356 S.W.3d 493/ 495 (Tex. 2011) (citing In re Columbia Med. Ctr. of Las Colinas, 290 S.W.3d 204 (Tex. 2007).).

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

Even as it raised the alleged dearth of specificity of Judge Griffin' s Order in its Motion for Reconsideration (ROA 137-139)/ Valero has sat on its hands in the trial court since mid-April, when Judge Grady denied that Motion, never requesting a more specific order, and never requesting the justification or basis for Judge Grady's decision. And now, Valero comes to this Court in the name of "manifest and urgent necessity." See Holloway, 767 S.W.2d, at 684. Valero simply cannot demand the Court exercise its extraordinary writ power under such circumstances.

Judge Grady's Order does not specify the reasons for her denial of Valero's Motion for Reconsideration. ROA 188. Yet that Order is no less a refusal to enter judgment on the jury verdict than was Judge Griffin's, and it is the only Order that counts now. See Cook, 356 S.W.3d, at 494. The Court may not presume that, simply because a valid basis is not stated in the Order, that Judge Grady did not have one. See In re United Scaffolding, 377 S.W.3d 685, 690 (Tex. 2012) (trial court's failure to state why it granted a new trial does not mandate a conclusion that it did not have a valid reason for doing so). Valero's failure to request Judge Grady's rationale leads directly to a failure of its mandamus record, and the Court need read no further. Because Valero does not present a record that contains this crucial information, everything else in the record is irrelevant. The record Valero provides is wholly insufficient to show Valero's right to the relief it seeks. Valero's Petition must be denied.

Responsive Issue Two

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

Valero's burden in its Petition is to show that Judge Grady acted arbitrarily and without reference to any guiding principle in her denial of Valero's Motion for Reconsideration. As has already been argued, Valero cannot show why Judge Grady acted as she did, at all, because Valero never asked her. Nevertheless, as the new judge of a trial court being asked to reconsider the actions of her predecessor, Judge Grady faced concerns distinct from those of Judge Griffin.

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

Valero bases its arguments on what the jury could have found, rather than reviewing what the trial court actually did find. It was the latter that was the basis for its order, not what is cited by Valero. Of course, once again, Valero did not inquire about that basis. That said, consistency of judicial decision-making, particularly within a single case, is a valid concern for any court. See, e.g., Paradigm Oil v. Retamco Operating, 372 S.W.3d 177/ 182 (Tex. 2012) (noting the effect of the "law of the case" doctrine). The "law of the case" doctrine applies to questions of law, however, the concerns underpinning it are no less valid when applied to factual determinations and applicability of legal standards. As the newly elected judge of the 212th District Court, Judge Grady may well have been reluctant to go down a path of reconsidering her predecessor's orders, wholesale. If she were to do so in one case, she might be expected to in every case. Mandamus exists to correct clear errors in extraordinary cases. It does not exist to allow litigants to nitpick trial court decisions and press appellate courts to micromanage trial court cases and dockets.

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

As the only judge who was present in the courtroom for the trial of this matter and the testimony of each witness, Judge Griffin was in a position to see what neither Judge Grady nor this Court can see. Valero itself states that the overriding factor in determining the outcome of this case is credibility. While Valero cites, in particular, Vernon Fox/s credibility, the credibility of every witness is significant. Fox's testimony is of particular significance because the centerpiece of Valero's argument is not that he was not exposed to any harmful chemical, but that he is faking his symptoms.

Judge Griffin was able to see and hear each witness-including Fox- testify, rather than relying upon a cold record. Because credibility is such an issue in this matter, Judge Grady was entirely justified in leaving her predecessor's new trial order undisturbed. She had only a transcript before her and could not evaluate the testimonial demeanor of the witnesses.! Her reluctance to backtrack from Judge Griffin's order under such circumstances cannot constitute an abuse of her discretion.

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

The Texas Supreme Court has expressly declined to define what constitutes the" good cause" for which TEX. R. CIV. P. 320 permits a new 1 Further, psychologists suggest that non-verbal communication accounts for 65 to 70 percent of the total communication between humans. Stephanie A. Vaughan, Persuasion Is an Art ... But It is Also an Invaluable Tool in Advocacy, 61 BAYLOR L. REV. 635, 672 n. 238 (2009) (citing Jansen Voss, The Science ofPersuasion: An Exploration ofAdvocacy and the Science Behind the Art of Persuasion in the Courtroom, 29 L. & PSYCHOL. REV. 201, 216 (2005). Other estimates place the figure higher. Michael Henke and Craig Margolis, The Taking and Use of Video Depositions: An Update, 17 Rev. Litig. 1, 14 n. 56 (Winter, 1998) ("One commentator has suggested that as much as 60% to 93% of all communication is non-verbal."). Again, this sort of communication was something Judge Griffin could see that Judge Grady could not. trial. See In re Columbia, 290 S.W.3d, at 210 n. 3. In the same case, the Court reiterated the broad discretion that trial courts have to grant new trials. 290 S.W.3d, at 210. Absent any authority suggesting that consistency of practice and limitations on Judge Grady's ability to evaluate the effect of witness testimony are not valid considerations, the Court should presume that they are. Again, Valero failed to ask Judge Grady about the reasons for her Order, but both of the above-raised grounds were a part of Fox's response to Valero's Motion for Reconsideration. ROA 1:143-58. "In most cases a new trial will be granted for reasons stated in a motion for new trial, so that such an explanation will alert the parties to the reason the judge found persuasive, further illuminating the substantive basis for the order." In re United Scaffolding, 377 S.W.3d, at 688. Based on this, Valero is on notice of both of the above-stated rationales, yet still fails to attack either in its Petition. Once again, Valero's Petition fails and must be denied.

Responsive Issue Three

Should the Court decide to consider it, Judge Griffin's Order was supported by Fox's expert witness testimony that linked his chemical exposure to his PTSD and depression, and Valero's experts even admitted that testimony could be correct. Fox testified to the fact of his own chemical exposure. ROA 1:946.

His physician and psychologist experts gave information concerning Fox's major depressive disorder, and Dr. Axelrad testified as to how the exposure could lead to PTSD - a physical condition with behavioral manifestation. Three experts - Drs. Polk, Pollock, and Axelrad - testified that the severe depression and major depressive disorder suffered by Fox resulted from his chemical exposure.

A. Valero's experts never testified that Fox's experts were wrong. But even more telling is the testimony of Drs. Ray and Rosenfield, both retained by Valero. Despite Dr. Ray offering an alternative explanation for Fox's symptoms from that posited by Dr. Axelrad, she never testified that Dr. Axelrad was wrong. Indeed, she testified that he could be right. ROA 1:1525. Likewise, Dr. Rosenfield-who never actually examined or met Fox - confirmed that Fox's claimed route of H 2S exposure is a genuine avenue of such exposure and that H 2S is a neurotoxic substance that can cause the sort of neural deficits and problems of which Fox complains. ROA 1:1617. Dr. Rosenfield also testified to the physical damage that such exposure can cause, interfering with the brain's use of oxygen and causing damage to brain cells. ROA 1:1644-45. But, once again, this does not contradict the position taken by Fox's experts who had been treating him for months and - unlike Dr. Rosenfield - had actually spoken to him. The trial court's acceptance of uncontroverted evidence as suggestive that the jury has erred can hardly be an abuse of discretion.

B. Fox presented evidence that, even if subjective, is still evidence. Valero's primary complaint appears to be, not that there is no evidence to support Fox's position and the trial court's decision, but that Fox's symptoms are, at least to some degree, subjective and are not easily verifiable by objective means. This does not mean, however, that they are not evidence. See Slaughter v. Abilene State School, 561 S.W.2d 789, 791 (Tex. 1977) (expert testimony based upon case history given by patient, physical examination, and x-rays, reciting opinion "consistent with" patient's complained of symptoms was admissible). Nor does it mean that the expert opinions based upon those symptoms are, of necessity, unreliable. 2 Id. Evidence that Valero discounts is, nonetheless, evidence. It is not Valero's job to say what the trial court found convincing; it is the trial court's job.

The combination of testimony from multiple retained and non- retained expert witnesses, as cited by the Court, is more than sufficient to justify its Order. See In re Anna C. Smith, 332 S.W.3d 704 (Tex. App.- Texarkana 2011, orig. proceeding) (finding that order reciting witness testimony in general terms was sufficient to meet requirements of In re Columbia Med. Ctr.). It is not sufficient that Valero argue what the jury was "free to find." It must attack-entirely-what the Court did find. Provided that the basis for the Court's Order is not contradicted by the record-and it is not-there is no basis for the Order to be re-visited. Cf In re Toyota Motor Sales, 407 S.W.3d 746, 761 (Tex. 2014). To the extent that it was Judge Griffin's job to say, if asked, what he found convincing, he did so. To the extent that it was Judge Grady's job to do so, again, Valero never asked.

Responsive Issue Four

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

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

Valero next argues that the trial court abused its discretion by granting Fox a new trial because his evidence is legally insufficient to show damages. In particular, it argues that he cannot recover damages for the injury done to him because he must show a serious physical injury. In order to minimize Fox's claim, Valero mischaracterizes his claim as one for "mental anguish." This is not what Fox's claim is about. Fox's claim is for Post':'Traumatic Stress Disorder - a physical condition with psychological and behavioral manifestation.

As Dr. Axelrad testified, PTSD is a form of physical brain injury resulting from the release of excess stress chemicals. ROA 1:1266. When under stress, the body releases cytokines that promote an inflammatory response. ROA 1:1205. PTSD is not merely anxiety, it is the behavioral manifestation of a very real physical injury. Valero's discussion of Fox's damage as mere "mental anguish" entirely mischaracterizes his injury and mischaracterizes his case. Fox presented uncontradicted expert testimony that PTSD results from a serious physical brain injury. Valero never took issue with this testimony in the trial court. It still does not take issue, now.

Furthermore, Dr. Rosenfield testified as to the very physical effects of H 2S on the brain. Dr. Rosenfield confirmed that breathing in H 2S can interfere with the enzyme cytochrome oxidase, an enzyme necessary for brain cells' use of oxygen. ROA 1:1644-45. He also conceded that interference with oxygen use can cause damage to the brain. Id. It was not an abuse of discretion for the trial court to take Valero's own witness's testimony at face value.

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

Finally, Valero complains concerning general and specific causation. Valero first correctly notes that general causation asks whether a particular substance is capable of causing injury or a condition in the general population. See Coastal Tankships, U.S.A., Inc. v. Anderson, 87 S.W.3d 591, 602 (Tex. App.-Houston [1st Dist.] 2002, pet. denied). Valero then argues that there is no evidence of the amount of toxin to which Fox was exposed. This, of course, is not a question regarding general causation, but one regarding specific causation - toxins causing damage, not in the general population, but in a specific individual.

In any case, Valero's own expert witness, Dr. Rosenfield, acknowledged that Fox was exposed to HzS and that it is a neurotoxin. ROA 1:1617. He also confirmed that it can cause a number of other symptoms, including headache, dizziness, weakness, exhaustion, irritability, and insomnia. ROA 1:1621-22. These are some of the very symptoms observed in Fox.

Moreover, as Dr. Axelrad testified, at least a portion of Fox's damages stem from PTSD. PTSD is not caused by HzS exposure but by an extreme stress reaction that causes a release of cytokines within the brain. ROA 1:1205. Exposure is part of the equation, but it is not all of it. Characterizing Fox's claim as entirely a toxic tort claim again mischaracterizes it.

C. Fox presented evidence of specific exposure to particular toxins. Unlike the case law cited by Valero, which presents toxic exposure cases that developed over many, many years of exposure to toxic products from many different defendants, Fox alleges a single, discreet incident where there is only one defendant. See Borg-Warner Corp. v. Flores, 232 S.W.3d 765, 773 (Tex. 2007). Flores considered a suit against a particular maker of asbestos-containing brake pads and a plaintiff's allegations that he had been exposed to these brake pads, as well as brake pads from many other manufacturers and asbestos from other sources. A major concern of Flores is that evidence be defendant-specific, so that a defendant that causes only minimal exposure cannot be said to have caused an occupational disease.

In contrast, there is no other defendant in Fox's suit but Valero. There is no other evidence showing the source for the toxins to which he was exposed, and there is causal evidence showing that he did not demonstrate his particular symptoms before exposure but did so after exposure. The trial court did not abuse its discretion by declining to apply a precedent that is, factually, worlds apart from the allegations and central facts of Fox's suit.

CONCLUSION

Mandamus is not a remedy for every trial court error. It exists for use in cases of manifest and urgent necessity, where a trial court has taken action that is unguided by any legal principle or rule. That is not the situation here. Two trial judges viewed the evidence differently from the JUry. The first explained the reasons behind granting a new trial in an entirely sufficient order. The second gave no explanation, nor was she requested to give any such explanation. But even if this did not add up to a failure of Valero's mandamus record, Valero simply cannot justify mandamus in this case. The trial court's action is not egregious. It is not unguided. It is simply different from what Valero would have. It is not an abuse of discretion. Mandamus is completely inappropriate given both the state of the record and the evidence adduced. It should be, indeed must be, denied.

PRAYER

For the foregoing reasons, Real Parties in Interest Vernon Fox and Mikki Fox, respectfully request that Valero Refining Texas, LLC's Petition for Writ of Mandamus be denied.

Respectfully submitted,

SIMPSON, P.C.

/s/ Jain G. Simpson lain G. Simpson State Bar No. 00791667 1333 Heights Boulevard, Suite 102 Houston, Texas 77008 (281) 989-0742 (281) 596-6960 - fax [email protected] ApPELLATE COUNSEL FOR VERNON Fox AND MIKKI Fox CERTIFICATE OF COMPLIANCE

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

/s/ Jain G. Simpson lain G. Simpson

CERTIFICATE OF SERVICE

I hereby certify that, on August 27, 2015, I served a true and correct copy of the foregoing Response to Petition for Mandamus via electronic service, certified mail, facsimile, or hand delivery on the following: David W. Burns Tekell, Book, Allen & Morris, LLP 1221 McKinney, Suite 4300 Houston, Texas 77010 713-222-9542-telephone 713-655-7727-facsimile James F. Bennett Megan Heinsz Dowd Bennett, LLP 7733 Forsyth Boulevard St. Louis, Missouri 63105 314-889-7300-telephone 314-863-2111-facsimile Richard P. Hogan, Jr. Jennifer Bruch Hogan James C. Marrow Hogan & Hogan Pennzoil Place 711 Louisiana, Suite 500 Houston, Texas 77002 713-222-8800-telephone 713-222-8810-facsimile Alex M. Miller The Valero Companies One Valero Way San Antonio, Texas 78249 210-345-2857-telephone 210-345-4567-facsimile COUNSEL FOR VALERO REFINING - TEXAS, L.P.

/s/ lain G. Simpson lain G. Simpson

TAB B

1 MOTION TO RECONSIDER CAUSE NO, 12CV1541 2 March 13,2015 Page

)

) 4 )

VS, ) OF 5

) )

NUSTAR LOGISTICS, LP, AND )

VALERO ENERGY CORPORATION ) GALVESTON COUNTY, TEXAS 13 MOTION TO RECONSIDER 12 14 13 15 14 20 On March 13 I 2015, the foll owi og proceedi ngs came 18 21 on to be heard in the above-entitled and numbered cause 19 22 before the Honorable Patricia Grady, Judge presiding, 23 held in Galveston, Galveston County, Texas; 25 Proceedings reported by machine shorthand,

SBOT: 20092000 2 Vernon Fox and Mikki Fox versus Nustar Logistics, LP, 4 3 and Valero Energy Corporation.

The Law Firm of Alton C. Todd 5 312 S. Friendswood Drive 4 The Court has before it today defendant

Friendswood, Texas 77546 6 281.992.8633 5 Valero Refining Texas, LP's motion to reconsider the alton@ a ctlaw .co m 6 order granting motion for new trial of plaintiffs Vernon FOR THE DEFENDANT, VALERO REFINING-TEXAS, LP: 7 Fox and Mikki Fox.

DAVID W. BURNS 8 Please state your names for the record and 9 SBOT: 00785735 9 who you represent. 10 KENNETH TEKELL, SR. 10 MR. TODD: Alton Todd on behalf of the

SBOT: 19764000 11 11 plaintiffs, the Fox --

Tekell, Book, Allen & Morris, LLP 12 MR. BENNETT: Jim Bennett for Valero. 12 1221 McKinney

SUite 4300 13 MR. BURNS: David Burns for Valero. 13 Houston, Texas 77010

713.222.9542 14 MR. TEKELL: Kenneth Tekell, Sr., for 14 [email protected] 15 Valero. 15 16 THE COURT: Sir, you may proceed.

JAMES F. BENNETT 16 SBOT: 46826 17 MR. BENNETT: Thank you, Your Honor.

7733 Forsyth Boulevard 19 reconsider, as the Court is aware from having read the 18 Suite 1900

St. Louis, Missouri 63105

18 20 1 serious bodily injury is what the Court says at page 92 1 negligence. There's not even a mention of it there. 2 of that opinion. Physical injury is ordinarily 2 That has nothing to do with whether he had PTSD or 3 necessary for the recovery of mental anguish damages, 3 negligence or -- I mean -- or depression. There's no 4 except within exceptions that aren't here. And what the 4 finding on any of the particular elements of damages in 5 court goes on to say, which has full application here, 5 the instructions that the jury gave us zero on. 6 is that most Americans are daily subjected to toxic 6 THE COURT: Let me stop you right there. 7 substances in the air they breathe. Suits for mental 7 On Odyssey, I could not find anything 8 anguish damages caused by exposure not resulting in 8 except an unofficial copy of the order signed by Judge 9 disease would clog the courts, compete with other suits. 9 Griffin. I don't know if the parties have one, but -- 10 And so even if under the Texas Supreme Court rule they 10 does that say "unofficial"? That says unofficial. 11 suffer genuine distress, which I suppose would trigger 11 MR. BENNETT: Yes. I think this is the 12 all this brain activity that Mr. Todd is talking about 12 version that he signed. I haven't seen an official 13 over that exposure, it's not enough. In here nobody 13 version. 14 said he had any demonstrable medical injury whatsoever. 14 THE COURT: I just wanted to make sure that 15 And stress or anxiety isn't enough. And if stress -- 15 I had the correct one. 16 and the jury was certainly entitled to find that there 16 MR. TODD: That's what I assumed. 17 was no stress or anxiety or PTSD in this case that 17 THE COURT: Thank you. 18 caused those neurotransmitters. So if I had to say what 18 MR. BENNETT: So if you go through that, 19 case do I think is most on point for us on that, it 19 Your Honor, you can see that there is no discussion of 20 would be the Temple-Inland case. 20 the loss of consortium claim of Mikki Fox. There's no 21 THE COURT: Do you have any controverting 21 description of how there could be causation in this case 22 case law to the Temple? 22 and how -- I mean, there's a finding, I guess, that the 23 MR. TODD: Not anything other than what we 23 jury should have found depression, but there's no facts 24 may have cited and -- but we'll have reasoning on why 24 that would show how that could be tied to Valero. And 25 we're there on that point too, Judge. 25 so the order is facially deficient, and there's no 5 of 23 sheets Page 17 to 20 of 52 05/19/201511:46:03 AM

2 THE STATE OF TEXAS ) 2 THE COURT: Mr. Todd?

COUNTY OF GALVESTON) 3 MR. TODD: Over the last 20 years, 3 4 Mr. Tekell will also agree that there has been an 4 I, Leslie A. Kesterson, Official Court Reporter in 5 incredible increase in reversal of jury verdicts at the 5 and for the 212th District Court of Galveston County, 6 request of defendants, including Mr. Tekell's firm, who 6 State of Texas, do hereby certify that the above and

13 I further certify that this Reporter's Record of 12 before.

14 the proceedings truly and correctly reflects the 13 Now, we have to look at the order. In

20 2015. 18 trial court did not simply parrot a pro forma template 19 and issue, quote, only after careful thought and for lsi Leslie A. Kesterson 20 valid reasons. They're asking you to tell Judge Griffin 22 Leslie A. Kesterson, Texas CSR 5280 21 that he did not use careful thought and that he had no Expiration Date: 12/31/2016 22 valid reason.

212th District Court 23 Now, they have reasons. They represent a

Tab B Request for Oral Hearing

Filed: 9/11/2015 10:27:08 AM JOHN D. KINARD - District Clerk

Galveston County, Texas Envelope No. 6881639

By: Shailja Dixit 9/11/2015 11:45:47 AM

CAUSE NO. 12CV1541

VERNON FOX AND MIKKI FOX § IN THE DISTRICT COURT OF VS. § GALVESTON COUNTY, TEXAS NUSTAR LOGISTICS, LP., and VALERO ENERGY CORPORATION § 212TH JUDICIAL DISTRICT

REQUEST FOR ORAL HEARING

TO THE HONORABLE JUDGE OF SAID COURT:

COMES NOW, Valero Refining-Texas, L.P., Defendant in the above entitled and numbered cause, and respectfully requests that the Court set its Motion Requesting the Trial Court to Provide Its Reasons for Refusing to Enter Judgment on the Jury Verdict filed on September 11, 2015 on the Court’s hearing docket for the ___ day of _____________, 2015 at ____ a.m./p.m.

Respectfully submitted, TEKELL, BOOK, ALLEN & MORRIS, L.L.P. /s/ David W. Burns ______________________________________ DAVID W. BURNS State Bar No. 00785735 1221 McKinney, Suite 4300 Houston, Texas 77010 (713) 222-9542 (713) 655-7727 Facsimile Email: [email protected] ATTORNEYS FOR DEFENDANT, VALERO REFINING-TEXAS, L.P.

CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the foregoing instrument has been forwarded to all counsel of record by Efile/Eserve, and/or Facsimile on this the 11th day of September, 2015.

/s/ David Burns _______________________________ DAVID BURNS