Opinion
No. 04-16-00045-CV
05-04-2016
IN RE ROBINS & MORTON GROUP, Robins & Morton Corporation, and Robins & Morton, L.L.C.
MEMORANDUM OPINION
Original Mandamus Proceeding Opinion by: Jason Pulliam, Justice Sitting: Karen Angelini, Justice Marialyn Barnard, Justice Jason Pulliam, Justice PETITION FOR WRIT OF MANDAMUS CONDITIONALLY GRANTED
This proceeding arises out of Cause No. 2015CI02215, styled Ramon Ortiz, Individually and as Executor of the Estate of Magda Ortiz, Deceased; Sergio Bernier; and Magda Bernier v. The University of Texas System v. The Robins & Morton Group; Robins & Morton Corporation; Robins & Morton, L.L.C.; SmithGroup/Marmon Mok, A Joint Venture; Marmon Mok; and Marmon Mok, LP, pending in the 45th Judicial District Court, Bexar County, Texas. The trial court ruling challenged in this proceeding was made by the Honorable Antonia Arteaga on December 22, 2015, and the parties prepared a proposed order for Judge Arteaga's signature reducing her ruling to writing. The written order was actually signed by the Honorable Solomon J. Casseb III, as presiding judge, on January 25, 2016. --------
On January 28, 2016, relators Robins & Morton Group, Robins & Morton Corporation and Robins & Morton, L.L.C. filed a petition for writ of mandamus complaining of the trial court's order denying their motion to compel the deposition of an expert witness in the underlying wrongful death and survival action. We conclude the trial court abused its discretion in denying the requested deposition. See TEX. R. CIV. P. 192.3(e). Therefore, we conditionally grant mandamus relief.
BACKGROUND
Magda Ortiz was walking in a temporary pedestrian walkway through a construction zone near the Audie L. Murphy Veterans Administration Hospital in 2011 when she was struck by a vehicle driven by Rudolfo Castilleja Zapata and killed. On February 20, 2015, her surviving husband and parents, the real parties in interest in this original proceeding, filed a wrongful death and survival action against multiple defendants alleging the walkway was inherently and unreasonably dangerous, and negligently designed and constructed. The wrongful death suit alleged negligence by two groups of defendants — the "Architecture Team" made up of SmithGroup/Marmon Mok, Marmon Mok, Marmon Mok, L.P., SmithGroup, Inc., and SmithGroupJJR, Inc.; and the "General Contractor" consisting of The Robins & Morton Group, Robins & Morton Corporation, and Robins & Morton, L.L.C.
In support of their petition, the Ortiz plaintiffs attached an affidavit and certificate of merit signed by Matthew J. Nardella, a licensed professional architect. See TEX. CIV. PRAC. & REM. CODE ANN. § 150.002 (West 2011) (requiring certificate of merit to be filed with the complaint in actions for damages involving claims against a licensed or registered professional). In his report, Nardella offered his opinions, "based on a reasonable degree of architectural certainty and probability," that the specified acts and omissions of the Architecture Team fell below the standard of care for architects and were "a proximate cause of the fatality of Magda Ortiz." In July 2015, the plaintiffs designated Nardella as a retained testifying expert in their amended responses to requests for disclosure. With the expert witness designation, plaintiffs attached a copy of the same report by Nardella that was attached to their original petition as the plaintiffs' certificate of merit. Plaintiffs additionally designated Stephen Estrin, Stephen R. Christoffersen, David Hall and Gene Trevino as retained testifying experts. Each witness's designation indicates that the expert's opinions are based, in part, on a "review of all documents and materials referenced in his report."
Relators designated defense experts in August 2015, including Carl M. Hubbard, Richard Schlueter, Gregory R. Brinkmeyer, and Jim W. Sealy. Relators' expert designation includes the following statement:
In addition to the above witnesses, Defendants cross-designate expert witness (sic) designated by the Plaintiffs, Intervenors and Defendants in this case, including but not limited to those listed below. Defendants reserve the right to call the expert witnesses at the trial of this case.Relators identified several experts for cross-designation, including Matt Nardella and David Hall & Associates, designated as testifying experts by the plaintiffs.
On October 6, 2015, SmithGroup/Marmon Mok noticed Nardella's deposition for November 18 with a subpoena duces tecum. Prior to the scheduled deposition, the parties attended mediation in late October. At mediation, plaintiffs reached an agreement in principle to settle their claims against the Architecture Team, but did not reach an agreement with respect to their claims against relators.
On the morning of November 12, 2015, relators served a cross-notice for Nardella's deposition which was scheduled for the following week. Later that same day, plaintiffs entered into a written Rule 11 agreement reflecting their settlement with the Architecture Team and served their second supplemental responses to requests for disclosure in which they de-designated Nardella as a testifying expert and re-designated him as a consulting-only expert. A few days later, plaintiffs filed a motion to quash relators' cross-notice for Nardella's deposition, arguing that Nardella's deposition was now improper because his recent re-designation as a consulting-only expert rendered his mental impressions and opinions not discoverable. The motion to quash was accompanied by the November 16, 2015 affidavit of Pat Maloney, one of the attorneys then representing the plaintiffs. Mr. Maloney's affidavit contained the following statement:
Mr. Nardella's mental impressions or opinions have not been reviewed by a testifying expert as those terms are used in Rule 192.3 of the Texas Rules of Civil
Procedure. Mr. Stephen Estrin did not rely on Mr. Nardella's Certificate of Merit in forming any mental impressions or opinions. Mr. Estrin has not been retained to form any mental impressions or opinion, or to testify, regarding any acts or omissions by the architect, SmithGroup/Marmon Mok. Mr. Estrin's report does not rely on Mr. Nardella's Certificate of Merit.Relators filed a motion to compel Nardella's deposition on November 24, 2015, and plaintiffs responded. The trial court conducted a hearing on relators' motion to compel in December 2015. A written order denying the motion to compel Nardella's deposition was signed on January 25, 2016. Relators then filed this petition for writ of mandamus.
ANALYSIS
Mandamus will only issue to correct a clear abuse of the trial court's discretion when the relator lacks an adequate remedy at law, such as an ordinary appeal. Walker v. Packer, 827 S.W.2d 833, 839-40 (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. Because the challenged order in this proceeding prevents Nardella's deposition and would prevent his testimony from being made part of the record, relators have no adequate remedy by ordinary appeal for a clear abuse of the trial court's discretion, and mandamus review of the challenged order is therefore proper. Tom L. Scott, Inc. v. McIlhany, 798 S.W.2d 556, 558 (Tex. 1990) (orig. proceeding). The issue to be determined in this proceeding is whether the challenged order constitutes a clear abuse of the trial court's discretion.
"The primary policy behind discovery is to seek the truth so that disputes may be decided by facts that are revealed rather than concealed." Jampole v. Touchy, 673 S.W.2d 569, 573 (Tex. 1984) (orig. proceeding). "In general, a party may obtain discovery regarding any matter that is not privileged and is relevant to the subject matter of the pending action." TEX. R. CIV. P. 192.3(a). Despite the broad scope of discovery generally, there are certain privileges from discovery that have been found to serve other legitimate interests. One such privilege is that applied to experts sought solely for the purpose of evaluating a case in anticipation of litigation or in preparation for trial who is not expected to testify at trial — the consulting expert privilege. See TEX. R. CIV. P. 192.3(e), 192.7(d). The consulting-only privilege is intended to encourage parties to seek expert advice in evaluating claims without concern that another party may receive undue benefit from an adversary's efforts. Tom L. Scott, Inc., 798 S.W.2d at 559.
The real parties in interest contend that the trial court's order denying Nardella's deposition was proper because Nardella had been re-designated as a consulting-only expert, protecting him from any further discovery. The real parties rely heavily on federal case law in support of this position, and their contention that Nardella's deposition should not be permitted absent a showing of "exceptional circumstances." See, e.g., R.C. Olmstead, Inc. v. CU Interface, LLC, 657 F.Supp.2d 899, 904 (N.D. Ohio 2009) (applying Federal Rule of Civil Procedure 26(b)(4) to hold expert re-designated as non-testifying may only be deposed by opposing party upon a showing of "exceptional circumstances"). Federal courts have indicated that "exceptional circumstances" may be shown, for example, in cases of evidence deterioration, or when there is a demonstrated lack of available experts in the same field or subject area. Id. Real parties invite this court to follow the majority of federal courts in concluding that a testifying expert witness's re-designation allows the consulting expert privilege to be restored, even after the witness's report and opinions have been reviewed by other experts, absent exceptional circumstances. Because the federal rule governing required disclosures of expert witness information differs substantively from the Texas rule, we decline to do as the real parties suggest. Compare FED. R. CIV. P. 26(b)(4)(D) (permitting deposition of consulting-only expert only "on showing exceptional circumstances under which it is impracticable for the party to obtain facts or opinions on the same subject by other means") with TEX. R. CIV. P. 192.3(e) (permitting discovery with respect to a consulting expert "whose mental impressions or opinions have been reviewed by a testifying expert").
"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 v. Littlejohn, 945 S.W.2d 236, 240 (Tex. App.—San Antonio 1997, orig. proceeding). While the parties in this case disagree as to whether the plaintiffs' de-designation was attempted for an improper purpose and whether it should have been permitted at all, a conclusion on that issue is not necessary to this court's determination of the mandamus proceeding. Even if we assume for the sake of argument that the trial court properly allowed Nardella's re-designation, the question would remain whether Nardella was still subject to deposition and further discovery based on his opinions having been reviewed by other testifying experts. TEX. R. CIV. P. 192.3(e). Therefore, for purposes of this original proceeding, we assume without deciding that the trial court properly permitted Nardella's re-designation as a consulting-only expert and do not address whether the record reflects an improper purpose for his re-designation. The issue we must consider is whether Nardella's deposition should still have been permitted under rule 192.3(e).
Plaintiffs' expert Stephen Estrin's July 2015 report identifies "Plaintiff's Original Petition and Requests for Disclosure, Cause No.: 2015CI02215" and "Ortiz v. Robins & Morton Certificate of Merit, February 4, 2015, prepared by Matt Nardella, Architect" as documents "utilized and relied upon" in preparation of the report. After plaintiffs served their second supplemental disclosures re-designating Nardella as consulting-only, Estrin signed an affidavit on November 17, 2015 in which he swore that he had reviewed, but not relied upon, Nardella's report in forming his own impressions and opinions and in drafting his report, was not retained to form opinions or testify regarding the acts or omissions of the Architecture Team, and had not collaborated or communicated with Nardella.
Plaintiffs' expert David Hall's July 2015 report states that he reviewed Plaintiff's Original Petition and Requests for Disclosure, and plaintiff's responses to defendants requests for disclosure in formulating his opinions and preparing his report. Hall later testified at his deposition on December 18, 2015 that he did not recall Nardella's report and that Nardella's name did not "sound familiar."
Plaintiff's expert Gene A. Trevino states in his November 2011 report that the "sources of information used in this report" included "Plaintiff's Original Petition with Discovery Incorporated."
Estrin, Hall and Trevino have all been designated as testifying experts by plaintiffs and have been cross-designated by relators. The Texas rule specifically states, "A party may discover the following information regarding . . . a consulting expert whose mental impressions or opinions have been reviewed by a testifying expert." TEX. R. CIV. P. 192.3(e). Despite real parties' repeated assertion that none of the experts relied upon Nardella's opinions in reaching their own, the rule clearly permits discovery with respect to a consulting expert whose opinions have been reviewed by others who may testify at trial. Id.
Because the mandamus record reflects that Nardella's report and opinions were reviewed by other testifying experts in this suit, we conclude relators are entitled to further discovery regarding Nardella under rule 192.3(e), and the trial court's order thus constitutes an abuse of discretion. See Martin v. Boles, 843 S.W.2d 90, 92 (Tex. App.—Texarkana 1992, orig. proceeding) (granting mandamus to allow deposition of defense consulting expert where expert's opinions about the case were reviewed by plaintiff's testifying expert). Because this conclusion is dispositive of relators' request for mandamus relief, we need not address relators' other arguments in support of their petition.
Real parties additionally argue that mandamus should be denied on the basis of waiver or laches. The written order denying relator's motion to compel was signed on January 25 and this mandamus proceeding was initiated three days later on January 28, 2016. Real parties urge us to consider the judge's handwritten notes, dated December 22, 2015, as the date on which relators were made aware of the trial court's ruling. Generally, a judge's notes or docket entry are not an adequate substitute for a written order in a mandamus proceeding. See In re Rivera, No. 04-12-00025-CV, 2012 WL 219591, at *1 (Tex. App.—San Antonio Jan. 25, 2012, orig. proceeding) (citing TEX. R. APP. P. 52.3(k)(1)(A) requiring copy of challenged order with mandamus petition). Even considering the date of the judge's notes in place of the date of the written order however, we do not agree with the real parties' assertion that a period of slightly more than one month represents a significant or unreasonable delay in seeking relief from the court in this instance. See, e.g., In re Laibe Corp, 307 S.W.3d 314, 318 (Tex. 2010) (orig. proceeding) (delay of two months not per se unreasonable or fatal to mandamus petition). Accordingly, we decline to deny mandamus relief on the basis of waiver or laches as argued in real parties' response.
CONCLUSION
Based on the foregoing analysis, we hold the trial court abused its discretion in denying relators' motion to compel the deposition of Matt Nardella. Accordingly, we conditionally grant the petition for writ of mandamus and direct the trial court to vacate its January 25, 2016 Order Denying Defendants' Motion to Compel Deposition of Matt Nardella and enter an order granting relators' motion to compel. See TEX. R. CIV. P. 192.3(e). The writ will issue only if the trial court fails to comply within fifteen days from the date of this court's order.
Jason Pulliam, Justice