Opinion
No. 02-19-00008-CV
07-02-2020
GARY MARTIN AND KAREN MARTIN, Appellants v. JOHN M. BAYOUTH, M.D.; TEXAS HEALTH CARE, PLLC; AND BAYLOR ALL SAINTS MEDICAL CENTER, Appellees
On Appeal from the 348th District Court Tarrant County, Texas
Trial Court No. 348-286901-16 Before Sudderth, C.J.; Gabriel and Birdwell, JJ.
MEMORANDUM OPINION
This is a medical malpractice case involving a lawsuit brought by appellants Gary Martin and Karen Martin against appellees John M. Bayouth, M.D., Texas Health Care, PLLC, and Baylor All Saints Medical Center (collectively the "Medical Providers"). Following discovery abuse relating to the scheduling of the deposition of the Martins' expert witness, Lawrence Boyle Jr., M.D., the trial court ordered Boyle's deposition to be completed by a date certain and ordered the Martins' counsel to reimburse the Medical Providers' counsel for expenses relating to the discovery abuse. The Martins and their counsel did not comply with those orders. The trial court then struck Boyle as an expert witness and granted summary judgment to the Medical Providers. In two issues, the Martins argue that the trial court abused its discretion by striking Boyle as an expert witness and by failing to grant the Martins' purported motion to extend the time to complete depositions. We will affirm.
I. BACKGROUND
The Martins filed a lawsuit against the Medical Providers alleging that an unnecessary surgery had been performed upon Gary Martin and that he had been released prematurely from the hospital. In their disclosure responses, the Martins identified Boyle as a testifying expert witness. Pursuant to a scheduling order, trial was scheduled for September 24, 2018, and all depositions were to be completed by August 10, 2018.
The Medical Providers had much difficulty scheduling Boyle's deposition. On April 17, 2018, Bayouth and Texas Health Care requested that the Martins provide available dates for Boyle's deposition. On April 26, 2018, Baylor requested that the Martins provide available dates for Boyle's deposition. Because they had not heard back from the Martins regarding their earlier request, on April 27, 2018, Bayouth and Texas Health Care again requested that the Martins provide available dates for Boyle's deposition. When they did not hear back regarding that request, they sent another request on May 10, 2018. Evidently frustrated by the Martins' failure to provide dates for Boyle's deposition, on May 15, 2018, Bayouth served a deposition notice calling for Boyle's deposition to take place on June 1, 2018. The Martins then filed a motion to quash that deposition, claiming that the Medical Providers had "unilaterally noticed [Boyle's] deposition" and that Boyle was unavailable on June 1, 2018. In their motion to quash, the Martins indicated that Boyle was available on June 20, 2018, and Baylor later noticed Boyle's deposition for that day.
At 4:33 p.m. on the day before Boyle's scheduled deposition, the Martins' counsel emailed the Medical Providers' counsel to let them know that Boyle's deposition needed to be rescheduled because Boyle "had an issue arise and [was] unable to proceed" with his deposition. The Martins' counsel later indicated that the issue requiring the rescheduling was related to a "family emergency." The Martins offered July 20, 2018, as an available date for Boyle's rescheduled deposition, and Bayouth noticed Boyle's deposition for that date. The day before Boyle's rescheduled deposition—once again at 4:33 p.m.—the Martins' counsel emailed the Medical Providers' counsel to let them know that Boyle would be unavailable for the rescheduled deposition because "a family emergency ha[d] arisen to which he [needed to] attend." The Medical Providers then noticed Boyle's deposition for August 8, 2018—two days before the deadline for completion of depositions—but that deposition was automatically stayed when the Martins filed a motion to quash the deposition within three days after service of the notice. The Martins' complaint concerned the time and place of the noticed deposition. See Tex. R. Civ. P. 199.4.
Due to the difficulties in securing Boyle's deposition, the Medical Providers filed a motion to strike Boyle as an expert witness and exclude his testimony. The trial court conducted a hearing regarding that motion and a motion for continuance filed by the Martins. In an order following that hearing, the trial court: (1) moved the trial date from September 24, 2018 to November 26, 2018; (2) ordered that Boyle be deposed on or before September 29, 2018; (3) ordered the Martins' counsel to pay $1,000 to Bayouth/Texas Health Care's counsel relating to time unnecessarily spent preparing for Boyle's deposition; (4) ordered the Martins' counsel to pay $1,000 to Baylor's counsel relating to time unnecessarily spent preparing for Boyle's deposition; and (5) ordered the Martins' counsel to pay Baylor's counsel $1,200 relating to nonrefundable travel costs incurred by Baylor's counsel. Despite the trial court's order, and despite an email from Bayouth/Texas Health Care's counsel to the Martins' counsel asking that dates be provided for Boyle's deposition before the trial court's deadline, Boyle's deposition did not take place.
In a later filing, the Medical Providers asserted that on September 27, 2018—two days before the trial court's deadline—the Martins offered two dates for Boyle's deposition in October 2018, after the trial court's deadline. The record does not contain any evidence relating to that offer.
On October 3, 2018, the Medical Providers filed a second motion to strike Boyle as an expert witness and exclude his testimony. They argued that the Martins had failed to produce Boyle for his deposition and that the Martins' counsel had failed to pay the attorney's fees and travel costs previously ordered by the court. On October 11, 2018, the trial court granted the Medical Providers' second motion to strike Boyle and excluded all testimony and evidence from him. In that order, the trial court stated that the Martins had failed to produce Boyle for deposition by September 29, 2018, and further stated that the Martins' counsel had not paid the attorney's fees and travel costs previously ordered. The trial court noted that its previous order was its "attempt to impose a lesser sanction than striking [Boyle] for [the Martins'] prior discovery abuses" and that "[t]here is a direct relationship between failing to present [Boyle] for deposition and striking [Boyle] because that is the most direct remedy and consequence of that action."
On the same day the trial court struck Boyle as an expert witness, it also considered no-evidence summary judgment motions that had been previously filed by the Medical Providers, as well as the Medical Providers' objections to the Martins' summary-judgment evidence. The Medical Providers had filed no-evidence summary judgment motions relating to each of the Martins' claims, and the Martins had relied upon an affidavit signed by Boyle in their summary judgment responses. The Medical Providers had objected to the use of Boyle's affidavit, contending, among other things, that Boyle's affidavit should be excluded due to the Martins' discovery abuses. The trial court signed orders granting the Medical Providers' objections to Boyle's affidavit and granting their no-evidence summary judgment motions. This appeal followed.
II. THE MARTINS' COMPLAINT REGARDING THE TRIAL COURT'S
ORDER STRIKING BOYLE AS AN EXPERT WITNESS
In their first issue, the Martins argue that the trial court's order striking Boyle as an expert witness amounted to a death-penalty sanction that was unjust.
A. STANDARD OF REVIEW
A death-penalty sanction is any sanction that adjudicates a claim and precludes the presentation of the claim on the merits. Braden v. Downey, 811 S.W.2d 922, 929 (Tex. 1991); In re Bledsoe, 41 S.W.3d 807, 812 (Tex. App.—Fort Worth 2001, no pet.) (orig. proceeding). Any sanction that is case determinative may constitute a death-penalty sanction. GTE Commc'ns Sys. Corp. v. Tanner, 856 S.W.2d 725, 732 (Tex. 1993) (orig. proceeding); Bledsoe, 41 S.W.3d at 813. The exclusion of experts in a medical malpractice case can be characterized as a death-penalty sanction. See Revco, D.S., Inc. v. Cooper, 873 S.W.2d 391, 396 (Tex. App.—El Paso 1994, orig. proceeding); Smith v. Nguyen, 855 S.W.2d 263, 267 (Tex. App.—Houston [14th Dist.] 1993, writ denied).
We review a trial court's discovery sanctions, even death-penalty sanctions, for an abuse of discretion. Cire v. Cummings, 134 S.W.3d 835, 838 (Tex. 2004); Hernandez v. Rockwater Energy Sols., Inc, No. 02-17-00302-CV, 2018 WL 4496149, at *2 (Tex. App.—Fort Worth Sept. 20, 2018, no pet.) (mem. op.). A trial court abuses its discretion if it acts in an arbitrary or unreasonable manner "without reference to any guiding rules and principles." Garcia v. Martinez, 988 S.W.2d 219, 222 (Tex. 1999); see Cire, 134 S.W.3d at 838-39. If some evidence supports a trial court's decision to impose a sanction, we will not hold that it abused its discretion. Nath v. Tex. Children's Hosp., 446 S.W.3d 355, 361 (Tex. 2014); Magnuson v. Mullen, 65 S.W.3d 815, 826 (Tex. App.—Fort Worth 2002, pet. denied).
B. THE LAW REGARDING DISCOVERY SANCTIONS
AND DEATH-PENALTY SANCTIONS
A trial court may sanction a party for failing to comply with discovery requests or orders. See Tex. R. Civ. P. 215.2(b), 215.3. Rule 215.2(b) lists the sanctions a court may impose. See Tex. R. Civ. P. 215.2(b). Among other things, permissible sanctions include disallowing further discovery, striking pleadings or parts thereof, prohibiting the disobedient party from introducing designated matters into evidence, dismissing the action with or without prejudice, rendering judgment by default, and requiring the disobedient party or the disobedient party's attorney to pay reasonable expenses relating to the discovery abuse. Id. Sanctions are used "to assure compliance with discovery and deter those who might be tempted to abuse discovery in the absence of a deterrent." Cire, 134 S.W.3d at 839.
Discovery sanctions imposed by the trial court, including death-penalty sanctions, must be "just." Tex. R. Civ. P. 215.2(b); TransAm. Nat. Gas Corp. v. Powell, 811 S.W.2d 913, 917 (Tex. 1991). Reviewing courts follow a two-part test in determining whether a particular sanction for discovery abuse is just. TransAm., 811 S.W.2d at 917. First, a direct relationship must exist between the offensive conduct, the offender, and the sanction imposed. Id. Second, a sanction must not be excessive, which means it should be no more severe than necessary to satisfy its legitimate purpose. Id. As to death-penalty sanctions, "in all but the most egregious and exceptional cases, the trial court must test lesser sanctions before resorting to death[-]penalty sanctions." Cire, 134 S.W.3d at 842.
C. ANALYSIS
The facts of the present case are similar to the facts of Litchenburg v. Conmed Corp., a case cited by the Medical Providers in their briefs. No. 01-07-00230-CV, 2008 WL 598267 (Tex. App.—Houston [1st Dist.] Mar. 6, 2008, pet. denied) (mem. op.). In Litchenburg, the plaintiffs brought a product-liability suit against the defendant for injuries suffered by one of them during a surgery. Id. at *1. The plaintiffs designated a products-liability expert but failed to provide the expert's opinion and materials, as required by Rule 194.2(f). See Tex. R. Civ. P. 194.2(f). The defendant moved to strike the expert and, after a hearing, the trial court ordered that the plaintiffs: (1) supplement their disclosure responses; (2) produce the expert for deposition within three weeks; and (3) pay $1,000 in attorney's fees. Litchenburg, 2008 WL 598267, at *1. The plaintiffs supplemented their disclosure responses and paid the $1,000 in attorney's fees but did not present the expert for deposition within the three-week deadline. Id. The defendant filed a second motion to strike as a result of the plaintiffs' failure to present the expert for deposition. Id. The trial court granted the motion to strike, excluded the expert, and later granted the defendant summary judgment. Id.
On appeal, the plaintiffs argued that the order striking the expert witness amounted to a death-penalty sanction that was unjust. Id. at *2. The First District Court of Appeals held that the sanction met the two-part test for justness: first, it determined that "the sanctionable conduct was [the plaintiffs'] failure to present their expert . . . for deposition within the time period allotted by the trial court . . . . [and that a] direct relationship exist[ed] between the violation and the sanctions imposed"; second, it determined that the trial court "gave [the plaintiffs] a chance" by ordering them to produce their expert for deposition within the three-week time period instead of striking the expert, and given that lesser sanction, coupled with the approaching trial setting, the sanction was not excessive. Id. at *4
Here, the order striking Boyle as an expert witness, like the order in Litchenburg, meets the two-part test relating to justness. First, there is a direct relationship between the offensive conduct, the offender, and the sanction imposed. The Martins designated Boyle as their testifying expert witness, and despite the Medical Providers repeated attempts to schedule Boyle's deposition, the Martins failed to produce him. Later, after the trial court continued the trial date and ordered that Boyle be deposed by September 29, 2018, the Martins yet again failed to produce him for deposition (and their counsel failed to reimburse the Medical Providers' counsel for expenses relating to the discovery abuse). Striking Boyle was directly related to this abuse, as indicated by the trial court in its order striking Boyle. Second, striking Boyle was not excessive because the trial court had already considered and implemented the lesser sanction of ordering Boyle's deposition by September 29, 2018 (in addition to ordering the reimbursement of the Medical Providers' counsel for expenses relating to the discovery abuse), and despite that lesser sanction, the Martins did not produce Boyle for deposition. That lesser sanction, coupled with the looming November 2018 trial date, provides some evidence that the sanction was not excessive.
Accordingly, because there is evidence supporting both prongs of the two-part test for justness, we hold that the trial court did not abuse its discretion by striking Boyle as an expert witness. See TransAm., 811 S.W.2d at 917; Litchenburg, 2008 WL 598267, at *4. We thus overrule the Martins' first issue.
In the trial court, the Medical Providers also objected to certain portions of Boyle's affidavit on the grounds that the portions were conclusory and speculative. Because we hold that the trial court did not abuse its discretion by striking Boyle's affidavit in its entirety, we do not consider any arguments made by the parties on appeal regarding the Medical Providers' other objections to Boyle's affidavit. See Tex. R. App. P. 47.1.
III. THE MARTINS' PURPORTED MOTION TO EXTEND THE TIME
TO COMPLETE DEPOSITIONS
In their second issue, the Martins complain that the trial court abused its discretion by failing to grant their purported motion to extend the time to complete depositions, a motion that does not appear in the appellate record.
To preserve a complaint for appellate review, a party must present to the trial court a timely request, objection, or motion that states the specific grounds for the desired ruling, if not apparent from the request's, objection's, or motion's context. Tex. R. App. P. 33.1(a)(1)(A). If a party fails to do this, error is not preserved. Bushell v. Dean, 803 S.W.2d 711, 712 (Tex. 1991) (op. on reh'g). The objecting party must also secure a ruling—either express or implied—from the trial court. Tex. R. App. P. 33.1(a)(2)(A), (b); see Lenz v. Lenz, 79 S.W.3d 10, 13 (Tex. 2002). If the trial court refuses to rule, the party preserves error by objecting to that refusal. Tex. R. App. P. 33.1(a)(2)(B). If the trial court does not rule and the party does not object to the refusal to rule, error is not preserved. Id.
Here, the Martins complain on appeal that the trial court "failed to grant" their motion for extension of time to complete depositions. The record, however, does not contain any such motion. Equally important, the record does not contain any indication that the trial court ruled on the Martins' purported motion, nor does it contain any indication that the trial court refused to rule on the Martins' purported motion and that the Martins' objected to such a refusal. Accordingly, the Martins' have failed to preserve their second issue. See Tex. R. App. P. 33.1(a)(1)(A), (a)(2)(A), (a)(2)(B), (b); Hull v. Davis, 211 S.W.3d 461, 466 (Tex. App.—Houston [14th Dist.] 2006, no pet.) (holding that appellant failed to preserve complaint that trial court failed to rule on his motion when no motion or ruling on any such motion was found in the record). Because the Martins have failed to preserve their second issue, we overrule it.
Regarding the purported motion, the Martins' initial brief cited to "2nd Supp. C.R. XX-XX" and mentioned that they were in the process of requesting a second supplemental clerk's record. While a second supplemental clerk's record was later filed, it did not contain the Martins' purported motion. The Martins' reply brief does not address this discrepancy or mention the purported motion, despite the fact that Bayouth and Texas Health Care pointed out in their brief that "[t]he record before this court does not contain Appellants' motion [for extension] nor any order of the trial court concerning the motion."
IV. CONCLUSION
Having overruled the Martins' two issues, we affirm the trial court's judgment.
/s/ Lee Gabriel
Lee Gabriel
Justice Delivered: July 2, 2020