Opinion
No. 05-07-01429-CV
Opinion Filed March 13, 2008.
Original Proceeding from the 298th Judicial District Court, Dallas County, Texas, Trial Court Cause No. 07-06030.
Before Justices MORRIS, RICHTER, and MAZZANT.
MEMORANDUM OPINION
In this petition for writ of mandamus, relator asserts the trial court abused its discretion by ordering him to appear for a pre-suit oral deposition under Texas Rule of Civil Procedure 202 (Rule 202) in connection with a potential health care liability claim. The facts of this original proceeding are known to the parties so we do not recite them here in detail. Further, because all dispositive issues are clearly settled in law, we issue this memorandum opinion and order pursuant to rule 52.8(d) of the Texas Rules of Appellate Procedure. See Tex. R. App. P. 52.8(d). We agree that the trial court abused its discretion in ordering the oral deposition of relator Matthew L. Wilner, M.D. and that relator has no adequate remedy by appeal. Accordingly, we conditionally grant the petition for writ of mandamus.
Real party in interest Stanton Miles Unell filed a petition for pre-suit discovery, seeking to depose Wilner and to require him to produce medical records regarding a medical procedure performed by Wilner on Unell in order to investigate a potential claim. Real party in interest Unell argued a Rule 202 pre-suit deposition is necessary because he cannot learn the facts of his medical procedure through non-judicial means. Wilner opposed Unell's request for Rule 202 deposition because allowing this deposition would violate Texas Civil Practice and Remedies Code Ch. 74. The Honorable M. Kent Sims, sitting for the 298th Judicial District Court, granted Unell's petition to take depositions before suit, but ruled Unell was not entitled to a subpoena duces tecum.
Mandamus relief is available when the trial court abuses its discretion or violates a legal duty and there is no adequate remedy at law, such as by appeal. In re Dana Corp., 138 S.W.3d 298, 301 (Tex. 2004) (orig.proceeding) (per curiam) (citing Walker v. Packer, 827 S.W.2d 833, 839 (Tex. 1992) (orig. proceeding)). A trial court abuses its discretion if it reaches a decision so arbitrary and unreasonable as to amount to a clear and prejudicial error of law, or if it clearly fails to correctly analyze or apply the law. In re Cerberus Capital Mgmt., L.P., 164 S.W.3d 379, 382 (Tex. 2005) (orig.proceeding) (per curiam). "If an appellate court cannot remedy a trial court's discovery error, then an adequate appellate remedy does not exist. In re Dana Corp., 138 S.W.3d at 301.
Relator states that the question in this petition for writ of mandamus is whether a plaintiff who contemplates a health care liability claim can evade the limitations on discovery imposed by the legislature in section 74.351(s) of the Texas Civil Practices and Remedies Code by asking for a pre-suit oral deposition under Rule 202. We have recently answered this question. See In re Clapp, 241 S.W.3d 913 (Tex.App.-Dallas 2007, orig. proceeding). In Clapp, we concluded that because pre-report oral depositions of physicians and health care providers are not allowed under section 74.351, pre-suit depositions are not permitted under Rule 202. Id at 4. As we stated in Clapp, "To conclude otherwise would allow a Rule 202 petitioner to avoid the carefully crafted report requirements and discovery stay set out in section 74.351, subverting the legislature's stated intent in passing the statute." Id. at 919 (quoting In re Mem'l Hermann Hosp. Sys., 209 S.W.3d 835, 839 (Tex.App.-Houston [14th Dist.] 2006, orig. proceeding)).
Accordingly, we conclude the trial court's October 2, 2007 order is an abuse of discretion because it permits discovery to be conducted contrary to the prohibitions stated in chapter 74. Therefore, we conditionally grant the petition for writ of mandamus and order the Honorable Kent Sims, sitting for the 298th District Court, to vacate his October 10, 2007 order and to enter an order denying Petitioner Stanton Miles Unell's Verified Petition to Take Depositions Before Suit. See Remington Arms Co., Inc. v. Caldwell, 850 S.W.2d 167, 168 n. 1 (Tex. 1993) (noting the assigned judge, and not the presiding judge, was the proper respondent in the mandamus action). The writ will issue only if Judge Sims fails to act in accordance with this opinion.