No supplemental testing for man in vegetative state, appeals court rules

David Yates Feb. 22, 2011, 3:51am

No pre-trial supplemental testing will be performed on a refinery worker who was allegedly exposed to toxic levels of hydrogen sulfide and left mentally impaired while working for Valero Energy, the Ninth Court of Appeals ruled Feb. 18.

As the Southeast Texas Record previously reported, Juan Martinez's family filed suit on his behalf against and Valero and several other companies in July 2008.

Court records show that on April 15, 2008, Martinez was working at Valero's Port Arthur plant when he was exposed to "toxic levels of hydrogen sulfide," causing "severe injuries to his body and neurological and respiratory systems."

"The tank and/or premises plaintiff was on/were under the actual ... ownership and control of defendants," the suit says. "No defendant has ensured that plaintiff has received appropriate medical treatment and follow-up (care)."

With the trial date looming in March, defendants Valero, Premcor Refining,
Port Arthur Coker, Foster Wheeler USA Corp., Total Safety U.S. and Kinder Morgan Petcoke requested a physical and mental examination of Martinez to confirm the plaintiffs' allegations that he is in a persistent vegetative state.

Judge Donald Floyd, 172nd District Court, approved the request but limited the examination to a noninvasive neurological and psychiatric examination without blood or laboratory testing.

Court records show the defendants' experts examined Martinez on Sept. 24, 2010.

However, the defendants wanted supplemental testing performed but had their additional request denied on Jan. 14, forcing them to appeal Judge Floyd's decision.

"After reviewing the mandamus record and petition, and in light of the March 7, 2011, trial setting, we conclude that the relators have not demonstrated that there is no adequate appellate remedy," states the Ninth Court's per curiam opinion. "Accordingly, we deny the petition for writ of mandamus."

Martinez is suing for punitive and exemplary damages, plus damages for mental and physical impairment, medical expenses, lost wages and mental anguish.

He is represented by the Law Offices of Gilbert T. Adams.

Valero is represented in part by Houston attorneys Richard P. Hogan Jr., Jennifer Bruch Hogan and Matthew E. Coveler of Hogan & Hogan.

Trial case No. E181-986
Appeals case No. 09-11-00040-C

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