It is always "a bargain between adversaries to suppress testimony" or was made for some other "improper" purpose. See Castellanos, 945 S.W.2d at 240.

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NUMBER 13-07-405-CV


COURT OF APPEALS


THIRTEENTH DISTRICT OF TEXAS


CORPUS CHRISTI - EDINBURG

IN RE: CHRISTUS SPOHN HOSPITAL KLEBERG, ET AL.

On Petition for Writ of Mandamus

MEMORANDUM OPINION


Before Justices Yañez, Rodriguez, and Benavides

Memorandum Opinion by Justice Benavides



Relator, Christus Spohn Hospital Kleberg and Christus Spohn Health System Corporation d/b/a Christus Spohn Hospital Kleberg (collectively "Spohn"), has filed a petition for writ of mandamus asking this Court to compel the trial court to allow it to de-designate its expert witness, Nurse Kendra Menzies, and quash the deposition of Sandra Northcutt, the hospital's internal investigator. Based on the record and proceedings herein, we conclude that the trial court abused its discretion in refusing to allow Spohn to de-designate Menzies, but it did not abuse its discretion in failing to quash Northcutt's deposition. Accordingly, we conditionally grant, in part, and deny, in part, Spohn's petition for writ of mandamus.

Background

In the underlying medical malpractice lawsuit, Spohn mistakenly provided an internal investigative report written by employee Northcutt to its designated testifying expert witness, Menzies. The trial court did not allow Spohn to "snap-back" the document. Spohn contested this ruling through a petition for writ of mandamus with this Court, which was denied, and a further petition for writ of mandamus with the Texas Supreme Court. The Texas Supreme Court also denied the writ, holding that:

[T]he inadvertent nature of the production in this case preserved the privilege under Rule 193.3(d) and entitled the hospital to recover the documents upon realizing its mistake, provided the hospital's designated expert does not testify at trial. The hospital has not attempted to name another testifying expert, instead indicating an intent to rely upon the expert to whom the documents were disclosed. So long as the hospital stands upon its testifying expert designation, Rule 192's plain language and purpose and the policy considerations that surrounded its amendment compel the conclusion that the documents may not be snapped back. Accordingly, we deny the hospital's petition for writ of mandamus without prejudice to any right the hospital might have to designate another testifying expert and recover the privileged documents.


* * *


We are sympathetic to the Hospital's concerns over losing valuable work-product protections when documents are produced to a testifying expert by mistake. But the producing party in such a situation is not without a remedy. An attorney who discovers that privileged documents have been inadvertently provided to a testifying expert may presumably withdraw the expert's designation and name another. Although such a course may entail additional expense and perhaps delay, these concerns do not outweigh countervailing concerns that require full disclosure from an expert who will testify. If leave of court is necessary for an alternative designation -- when, for example, the expert designation deadline has passed -- courts should carefully weigh the alternatives available to prevent what may be akin to a death-penalty sanction for the party forced to trial without a necessary expert. The Hospital did not pursue such a course in this case, however, and we voice no opinion on the trial court's discretion in that regard.


Finally, the Hospital contends that, even if discoverable for purposes of deposing Menzies, the Northcutt documents should otherwise retain their privilege and not be used for other purposes or at trial. Since Menzies has already been questioned about the documents, the Hospital argues, their discovery should be confined to that context. Specifically, the Hospital seeks to quash Sandra Northcutt's deposition, which has been postponed pursuant to the parties' agreement pending the outcome of this mandamus proceeding. We decline to opine on the potential admissibility of the Northcutt documents at trial, as that issue is premature. And in light of Rule 192.5(c)'s provision that information discoverable under Rule 192.3 "is not work product protected from discovery," we cannot say that the trial court abused its discretion in denying the Hospital's motion to quash Sandra Northcutt's deposition.


In re Christus Spohn Hosp. Kleberg, 222 S.W.3d 434, 435, 445 (Tex. 2007) (internal citation omitted). The supreme court issued its opinion on April 27, 2007, denying the petition without prejudice to any right the hospital might have to designate another testimony expert and recover the privileged documents. Id.

On May 8, Spohn filed a de-designation of Menzies and a motion to quash the deposition of Northcutt. On June 6, the trial court held a hearing on Spohn's motion to quash. After hearing argument, the trial court refused to allow the de-designation of Menzies, denied the motion to quash, and set a new docket control order under which discovery closed July 20, 2007, a pretrial hearing was set for August 23, and the case was set for trial on September 4.

Relator filed its petition for writ of mandamus on June 26. On June 27, this Court granted Spohn's motion for emergency stay and stayed all proceedings in the trial court, including the deposition of Northcutt, pending further order of this Court or until the case is finally decided. See Tex. R. App. P. 52.10(b).

Standard of Review

A writ of mandamus will issue to correct a trial court's clear abuse of discretion. Walker v. Packer, 827 S.W.2d 833, 839 (Tex. 1992). "[A] clear failure by the trial court to analyze or apply the law correctly will constitute an abuse of discretion . . . ." Id. at 840. In addition to showing an abuse of discretion, the relator must show he has no other adequate remedy at law. Id. When an order requires the disclosure of information excepted from discovery, mandamus is appropriate because the remedy by appeal is inadequate. In re State Farm Mut. Auto. Ins. Co., 100 S.W.3d 338, 340 (Tex. App.-San Antonio 2002, orig. proceeding); Castellanos v. Littlejohn, 945 S.W.2d 236, 241 (Tex. App.-San Antonio1997, orig. proceeding).

The trial court is imbued with discretion to rule on matters related to discovery. Gen. Tire, Inc. v. Kepple, 970 S.W.2d 520, 526 (Tex. 1998); Jampole v. Touchy, 673 S.W.2d 569, 574-75 (Tex. 1984). In matters committed to a trial court's discretion, the test is whether the trial court acted arbitrarily or without reference to guiding legal principles. Cire v. Cummings, 134 S.W.3d 835, 838 (Tex. 2004); Lopez v. Martin, 10 S.W.3d 790, 794 (Tex. App.-Corpus Christi 2000, pet. denied).

Applicable Law

"Texas Law permits a testifying expert to be 'de-designated' so long as it is not part of 'a bargain between adversaries to suppress testimony' or for some other improper purpose." Castellanos, 945 S.W.2d at 240; see In re State Farm Mut. Auto. Ins. Co., 100 S.W.3d at 340; Lopez, 10 S.W.3d at 794; In re Doctors' Hosp., 2 S.W.3d 504, 506 (Tex. App.-San Antonio 1999, orig. proceeding).

The policy underlying the discovery rules is to seek the truth so that disputes may be decided by facts that are revealed rather than concealed. Tom L. Scott, Inc. v. McIlhany, 798 S.W.2d 556, 560 (Tex. 1990) (orig. proceeding); Rendon v. Avance, 67 S.W.3d 303, 309 (Tex. App.-Fort Worth 2001, orig. proceeding). A de-designation is ineffective where it violates the policy underlying the rules of discovery. McIlhany, 798 S.W.2d at 560. The protection afforded by the consulting expert privilege is intended to be only a shield to prevent a litigant from taking undue advantage of his adversary's industry and effort, not a sword to be used to thwart justice or to defeat the salutary objects of discovery. Id.

Analysis

In the instant case, the record before us is devoid of evidence that Spohn's attempted de-designation was part of "a bargain between adversaries to suppress testimony" or was made for some other "improper" purpose. See Castellanos, 945 S.W.2d at 240. And as previously discussed, the Texas Supreme Court denied Spohn's previous mandamus "without prejudice to any right the hospital might have to designate another testifying expert and recover the privileged documents." In re Christus Spohn Hosp. Kleberg, 222 S.W.3d at 435. With this directive and without additional evidence, we must conclude that the trial court abused its discretion in failing to allow the de-designation of Menzies. See id.

We reach a different conclusion, however, with regard to the trial court's refusal to quash Northcutt's deposition. The Texas Supreme Court considered and addressed this issue in its opinion and concluded that "[I]n light of Rule 192.5(c)'s provision that information discoverable under Rule 192.3 'is not work product protected from discovery,' we cannot say that the trial court abused its discretion in denying the Hospital's motion to quash Sandra Northcutt's deposition." See id. at 445. We reach the same conclusion herein.

Conclusion

The petition for writ of mandamus is conditionally granted, in part, and denied, in part, as described herein. We direct the trial court to vacate its order denying the de-designation of Menzies. The writ will issue only if the trial court fails to comply.


___________________________

GINA M. BENAVIDES

Justice

Memorandum Opinion delivered and

filed this the 26th day of September, 2007.