In the United States District Court for The

I N THE UNITE D ST AT EDI S STR ICT C OUR TFOR T HE WE STE R DN ISTR ICT O FTE XAS A USTIN D IVI SION

I N RE ______§ P et it ioner. § § § C i vil Ac ti onN o.______§

P E T IT IONE ______R ______VE RI FIED PE T ITION T O PE RPET UAT T E E ST IMONY

P et it ioner, ______, a sks the c ourt f or perm is si on to ta ke a deposit ion b y oral a nd videota pe e xami nati on to perpet uate his t esti mo nyf or use i na n anti ci pate d suit ,as a uthori zed by Federal R ule of C ivil Procedure 27.

A. I ntroduct ion

1 . P et it ioner i s ______i sa n individual that i sa c it iz en of t he Sta te of T exas.

2 . T he court has j uris dict ion over this peti ti on. O ne or mo re pote ntia la dverse part ie sr eside in the We st ern D is tri ctof T e xas.

3 . T oprove t he al le gati ons in this peti ti on, pet it ioner has verif ie dt his pet it ion a nd at ta ches an a ff idavit and i ncorporate si tby reference.

B. Facts

4 . Petitioner, ______is an individual who resides at

______. He is an 86 year old male who suffers from personal

injuries resulting from the asbestos-related disease of mesothelioma. A copy of Petitioner’s

diagnosis of mesothelioma is attached hereto as Exhibit “A,” and incorporated herein for all

purposes. 5. Due to the exigent circumstances of his diagnosis, ______, asks the Court to order his oral and videotaped deposition testimony for use in an anticipated suit in which he expects to be a party. At any time, ______may succumb to illness and, possibly death. Although ______counsel is actively investigating and preparing his lawsuit, given the quickly deteriorating effects of mesothelioma and

______current physical health, ______could pass away before his deposition could be scheduled in the normal course of filing a lawsuit in federal court. There is not sufficient time to complete the investigation to file suit, allow time for Defendants to answer and then schedule ______deposition before he may succumb to his illness. Accordingly, it is imperative that ______oral and videotaped deposition occur as soon as possible.

6. Petitioner is a witness who has relevant knowledge and his testimony is material to the presentation of his anticipated case. ______deposition testimony will concern his exposure to asbestos at various worksites in Texas and New Mexico, how the illness of Mesothelioma has impacted him and other relevant issues to the prosecution of his anticipated lawsuit. In fact, Petitioner may be the only person who has knowledge of certain material facts regarding his exposure to asbestos and certain elements of his damages.

7. P et it ioner has n ot brought o r b een a part y to a s uit that a ri ses o ut o f t he fact s that are the s ubje ct of t his p et it ion.

8 . T he A list of the Defendants who potentially have an adverse interest in the lawsuit is attached hereto as Exhibit “B,” and incorporated herein for all purposes.

C .R equest to De pose

9 . P et it ioner a sks the court to is sue an order a uthori zi ng the oral and videota ped d eposit ion of ______.

D. C oncl usion

1 0. F or t he a bove s ta te d reasons, pet it ioner a sks the c ourt t os et t his pet it ion f or h eari ng a nd, afte rt he heari ng, order t he oral and videotaped deposit ion of

______to proceed w it hout del ay.

Respectfully submitted,

HENDLERLAW, P.C.

By: Scott M. Hendler State Bar No. 09445500 1301 West 25th Street, Suite 400 Austin, Texas 78705 Telephone: (512) 439-3200 Facsimile: (512) 439-3201

ATTORNEYS FOR PETITIONER VE R IFICAT ION

S T AT EO FTE XA S § § C OUNT YOF E L PA SO §

B efore m e, t he u ndersi gned n otary, o n this day pers onal ly a ppeared ______, t he a ff ia nt, a p erson wh ose i dentit y i s k nown to m e. Af te r I a dm inis te red a n oath t o a ff ia nt, a ff ia nt te st if ie d:

" My name is ______. I am capable of m aking t his verif ic at ion. I have r ead the PET ITIONE R______VE R I FIED PET ITION T O PER PET UAT T E E STI MONY. T h ef acts st at ed i ni ta re w it hin my pers onal knowl edge and are tr ue and c orrect ."

______

SWORN to and before me this ___ day of ______, 2011.

______Notary Public

My Commission Expires: ______STATE OF TEXAS ) ) AFFIDAVIT COUNTY OF EL PASO )

NOW COMES, ______, and having been duly sworn and cautioned as follows:

1. I am over the age of 18. I am of sound mind, and I am fully competent to testify to the matters stated herein. I have never been convicted of any felony or crime of moral turpitude. I have personal knowledge of the facts stated herein, and such facts are true and correct.

2. I am currently a resident of El Paso, El Paso County, Texas.

3. My Social Security Number is ______.

4. I am an 86 year old male who suffers from the asbestos-related disease of mesothelioma.

5. Due to the exigent circumstances of my diagnosis, I ask the Court to order my oral and videotaped deposition testimony for use in an anticipated suit in which I expect to be a party. I am aware that at any time, I may succumb to illness and, possibly death.

6. Although my counsel is actively investigating and preparing my lawsuit, given the quickly deteriorating effects of mesothelioma and my current physical health, I could pass away before my deposition could be scheduled through the normal course of filing a lawsuit in federal court.

7. There is not sufficient time to complete the investigation to file suit, for Defendants to answer and then schedule my deposition before my illness may make it impossible for me to testify. Accordingly, it is imperative that my oral and videotaped deposition occur as soon as possible.

8. I am a witness who has relevant knowledge and my testimony is material to the presentation of my anticipated case. My deposition testimony will concern my exposure to asbestos at various worksites in Texas and New Mexico and other relevant issues to the prosecution of his anticipated lawsuit.

9. I may be the only person who has knowledge of certain material facts regarding my exposure to asbestos and certain elements of my damages.

1 0. I h ave not brought or been a p arty t o a l aw suit that aris es o ut of t he f acts that a re the subject of this p et it ion.

FURTHER AFFIANT SAYETH NOT.

______

SWORN to and before me this ___ day of ______, 2011.

______Notary Public

My Commission Expires: ______