PETITION FOR WRIT OF MANDAMUS GRANTED
MAY 17, 1990
NO. 10-90-027-CV
IN THE
COURT OF APPEALS
FOR THE
TENTH DISTRICT OF TEXAS
AT WACO
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COLLASTICA GARZA, INDIVIDUALLY, AS REPRESENTATIVE
OF THE ESTATE OF SARAGOSA GARZA, DECEASED, ET AL,
Relators
v.
THE HONORABLE SAM BOURNIAS, JUDGE, 87TH DISTRICT
COURT, LIMESTONE COUNTY, TEXAS,
Respondent
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Original Proceeding
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O P I N I O N
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This is an original mandamus proceeding. Relators Collastica Garza, individually, and as representative of the Estate of Saragosa Garza, deceased, and as representative of the wrongful death beneficiaries of the deceased, and others, who are plaintiffs in a medical malpractice action in the trial court, seek to compel the honorable Sam Bournias, presiding judge of the 87th Judicial District Court of Limestone County, to vacate his February 2, 1990, order entered in cause 220007-B compelling Plaintiffs to produce for defendant Robert J. Neff, M.D., a copy of Dr. Paul Blaylock's letter to Plaintiffs' counsel dated August 15, 1989. Relators request that a writ of mandamus issue commanding Judge Bournias to rescind his February 2nd order and to enter an order protecting the correspondence in question from discovery under the attorney work-product exemption or, alternatively, to rescind said order, review the subject correspondence and order those portions containing information protected by the work-product privilege "blacked out before" a photocopy is provided to defendant Neff.
The letter in issue consists of a list of suggested deposition questions compiled by Dr. Blaylock at the request of Relators' attorney to assist the attorney in preparing for the deposition of Dr. Neff. Relators assert as the basis for the relief they are seeking, in addition to the work-product exemption, that the correspondence sought is outside the allowed scope of discovery and that the release of such material would provide Neff with an unfair advantage. We conditionally grant the writ.
In response to defendant Neff's first request for production to the plaintiffs, Relators produced a photocopy of the only written report they had received at that point from Dr. Paul Blaylock, one of their designated testifying experts. Blaylock's report was in the form of a letter to Relators' attorney dated October 29, 1987. Neff's request for production #4 requested the following:
All reports, notes, conclusions, opinions, telephone memoranda, or the like, preliminary or otherwise, of any testifying expert witness, with regard to the incident giving rise to the above-referenced action or with regard to the acts or omissions of the party propounding this request for production, whether favorable or unfavorable.
Dr. Blaylock's October 29th report indicated that, after reviewing the material furnished to him by Relators' attorney, it was his professional opinion that both the emergency room physician, Dr. Neff, and the "first" hospital, General Mexia Memorial, were negligent in the management of Mr. Garza's case. Blaylock then listed the specific acts of negligence on the part of Neff, the emergency room physician, and Mexia General:
1.Suspected abdomen internal injuries, but failed to type and crossmatch blood immediately after arrival;
2.Failure to perform peritoneal lavage correctly;
3.Failure to give blood in timely manner and of sufficient amounts to prevent the patient from bleeding to death;
4.Should not have transferred patient to Waco hospital 44 miles away;
5.Should have done an ultrasound and/or scan for ruptured spleen;
6.If did transfer, should have stabilized patient more, given blood sooner, and sent more blood to be given to patient enroute;
7.If did transfer, should have been by air rather than ground ambulance.
8.Should have had better communications with the receiving hospital and have had them more prepared to address the critical state of the patient;
9.They charged for a suture tray. If they sutured the patient while he had more serious injury, such an action is negligent prioritizing.
10.Patient had O+ blood type. They should have been giving uncrossmatched blood to counter the life-threatening shock;
11.They did not do orthostatic BP and pulse checks;
12.Should have consulted a staff surgeon and taken patient to surgery at first hospital;
13.Patient arrived at hospital at 7:19 p.m. and transferred to another hospital at 11:45 p.m. allowing critical time to pass without adequate assessment and treatment in the interim;
14.Inadequate hospital procedures and protocol for emergency care on weekends;
15.Shipped patient in a moribund state knowing that the probability of death was imminent;
16.Failure to order abdomen films and pelvic films and do ultrasound and CT scan to aid in diagnosis.
17.Should have placed a CVP line (or other central line) in patient who is in shock.
The above-listed acts and omissions were also set forth in Relators' responses to General Mexia Memorial Hospital's first set of interrogatories submitted to Relators. A copy of these responses was furnished to Neff in February, 1989.
As to the "second" hospital, Hillcrest Baptist Medical Center, Blaylock further stated in his report that they, too, were probably negligent but that the damage had been done prior to Hillcrest's involvement and that it is doubtful that Mr. Garza would have survived even if Hillcrest's resuscitation efforts had met the applicable standards. Blaylock then listed eight acts or omissions which in his opinion constituted negligence on the part of Hillcrest. Blaylock suggested in his October 29th report that Hillcrest as well as the ER physician, Dr. Neff, be added as defendants, as he believed sufficient grounds of negligence existed to prevent a suit against Hillcrest and the ER physician from being dismissed as frivolous. Blaylock's October 29th report was prepared on his professional letterhead, which reflects that Blaylock is an attorney as well as a physician.
On September 13, 1989, Relators served on all defendants their supplemental response to all of the defendants' requests for production, including a copy of Dr. Blaylock's written narrative report dated May 16, 1989, which was prepared in the same form as his October 29th report to Relators' attorney. Blaylock's May 16th report reflects that he had reviewed the new materials sent to him by Relators' attorney which had led him to conclude that:
1.Mexia Hospital, based upon the surgical privileges applied for, had the surgical capabilities to do trauma laparotomies and repair of a damaged spleen and/or liver from intra-abdominal bleeding.
2.The Care Flight Availability to the Mexia Hospital was readily available and, if used properly in the Garza case, more probably than not, would have saved the life of Mr. Garza if the Mexia Hospital physicians had elected to prevent Garza from bleeding to death.
Defendant Mexia Hospital sent a second request for production to Relators on November 22, 1989. Request number one asked that Relators produce the following:
Any and all reports prepared after May 16, 1989 by the following experts who may be called as a witness regarding the incident or occasion in question, any injuries or damages claimed to have been sustained as a result thereof, or any other matter of fact upon which the alleged claims are based.
Dr. Blaylock's name was then listed, along with the names of two other experts previously designated by Relators.
Relators' response and objections to Mexia Hospital's request identified Blaylock's August 15, 1989, letter to Relators' attorney as being the only "report" prepared after the designated May 16th date by any of the named experts. Relators' response indicated that their attorney had asked Dr. Blaylock to prepare a list of questions to ask during certain depositions, and the August 15th letter consists of proposed deposition questions to Dr. Neff. Relators objected to producing the letter on the basis of the work-product exemption, Rule 166b(3)(a) of the Texas Rules of Civil Procedure. Relators attached to their response and objection an affidavit of Relators' attorney and a photocopy of the letter in a sealed envelope for the court's in camera inspection. Neff's attorneys were furnished a copy of counsel's affidavit, which read in pertinent part:
2.In preparing to take certain depositions, and in order to plan strategy in the taking of said depositions, I personally contacted Paul Blaylock, M.D. and requested that he prepare a list of questions to be asked during said depositions. Paul Blaylock, M.D. wrote a letter to me dated August 15, 1989 in which he listed such questions. A true and correct photocopy, or duplicate, of said letter is attached hereto and adopted by reference herein as if fully copied and set forth at length. In my opinion, said letter clearly constitutes attorney work product.
Relators' response went on to state that proper preparation of the case requires that their attorney gather information, distinguish relevant from irrelevant facts, prepare legal theories and plan strategy without undue and needless interference. Relators' attorney explained that he requested the questions contained in Blaylock's letter in an effort to devise strategy and that such strategy is actually reflected in the letter, thus making the letter exempt from discovery as work-product.
Neff moved to compel production of the letter, arguing that the letter is not work-product of counsel, that it contains the facts known by as well as mental impressions and opinions of plaintiffs' testifying expert which are discoverable under Rule 166b(e), and that once Relators designated Blaylock as a testifying expert, any work-product privilege with respect to Blaylock's letters, memoranda and other documentation and communication pertaining to this litigation had been waived. Neff pointed out that other reports of Blaylock had already been produced and Relators could not hope to shield other documents prepared by Blaylock under the guise of work-product. Neff suggested that if Relators desired to use Blaylock purely as a consultant, they should not have designated him as a testifying expert. Neff maintained that the letter containing information relevant for impeachment and/or examination related to Blaylock's basic opinions in the case.
Relators' response to the motion to compel consisted of generally the same arguments they make in this court to demonstrate their entitlement to the issuance of a writ of mandamus, accompanied by the affidavit of Dr. Blaylock, which read in pertinent part:
2.I was first contacted regarding the health care involved in the above-referenced lawsuit regarding the possibility that I would review said health care and render my medical opinions regarding said health care in September 1987. I reviewed said health care and agreed to testify as to my medical opinions regarding said health care. I have never been asked to testify as to any of my legal opinions.
3.I am licensed as both a physician and attorney.
4.I was asked by Randal Kauffman to prepare a list of suggested questions for Mr. Kauffman to ask Robert J. Neff, M.D. during his deposition. I prepared such a list of questions contained in a letter to Mr. Kauffman dated August 15, 1989. Said letter does not contain any of my medical opinions.
Following a hearing on the motion to compel and an in camera review by the court of the subject correspondence, the court announced that the letter in question was discoverable and entered the February 2nd order compelling production of Blaylock's August 15th letter. Relators take the position that they were not required to supplement Neff's discovery requests with the letter in question and therefore can not now be compelled to produce it. They interpret Rule 166b(6) to require supplementation in only three instances: (1) when the response was incorrect or incomplete when made; (2) when the response, though correct and complete when made, is no longer true and complete and the circumstances are such that failure to amend would be misleading; and (3) when the identity or subject matter of a testifying expert witness's testimony has not been disclosed in response to a discovery request directly addressed to such matters. Relators contend that their response to Neff's request for production number 4 was correct and complete when they tendered Blaylock's October 29th report. Moreover, Neff has sought to compel production of a letter identified by Relators in response to discovery submitted to them by the Mexia hospital, who did not formally move to compel production of the letter but did join in Neff's motion to compel at the hearing. Thus, Relators argue that, as to Neff, Neff's discovery requests and Relators' responses to those requests is the only discovery actually relevant and, therefore, production of the letter under these circumstances cannot be compelled.
Relators additionally assert that not providing Neff with a copy of the August 15th letter can in no way mislead Neff, as Relators have furnished him with copies of three written narrative reports from Blaylock which clearly contain the mental impressions or opinions of Blaylock and that the letter in question contains no opinions or mental impressions which differ from those reflected in the written reports already in their possession. The third report to which Relators refer consists of a letter dated March 22, 1989, from Blaylock to Relators' attorney in which Blaylock lists the acts and omissions of the ambulance company, the emergency medical technicians and attendants which in his opinion constitute negligence.
Relators also point to the fact that their responses to Neff's first set of interrogatories, Nos. 26 and 27, which had been provided to Neff prior to his filing of the motion to compel, thoroughly detail the subject matter of Blaylock's testimony. Relators' responses to those interrogatories, which inquired about testifying experts' written reports, discussions with said experts on Relators' behalf and the subject matter about which such experts were expected to testify, included the identification of Dr. Paul Blaylock and were accompanied by a copy of Blaylock's written report dated October 29, 1987. Relators described the subject matter of Blaylock's testimony as follows:
The subject matter on which Dr. Blaylock is expected to testify includes, but is not limited to, liability, negligence, causation, damages, and the medical care and treatment of Saragoza Garza received from the General Mexia Memorial Hospital, Robert J. Neff, M.D., Hillcrest Baptist Medical Center, Hillcrest Emergency Physicians, and other physicians at the time in question. A detailed opinion from Dr. Blaylock may be found in his written report attached as Exhibit "F" to Plaintiffs' Response to Defendant's First Request for Production to Plaintiffs.
Relators' supplemental answer to interrogatory 27 contained the following list of areas about which Dr. Blaylock could be expected to testify:
(i)His own qualifications as an expert;
(ii)The standard of care in this case;
(iii)The conduct required of the physicians and health care providers under the circumstances involved in this case;
(iv)The negligence of Defendants;
(v)The injuries and damages proximately caused, in terms of reasonable medical probability, by Defendants' negligence;
(vi)Decedent's physical pain and suffering;
(vii)Decedent's mental anguish;
(viii)The necessity of medical services provided decedent;
(ix)The reasonableness of the cost of the medical services provided decedent;
(x)Decedent's physical disability;
(xi)Decedent's physical disfigurement; and
(xii)Defendants' deviations from the reasonable standard of care.
Relators further contend that the letter in question is outside the permissible scope of discovery as defined by Rule 166b of the Texas Rules of Civil Procedure. Relators take the position that a party is entitled to obtain discovery of only those documents and tangible things that were "prepared by an expert or for an expert in anticipation of the expert's trial and deposition testimony." Tex. R. Civ. P. 166b(2)e(2) (Vernon 1990) (emphasis added by Relators). Relators aver that the subject correspondence was not prepared by Blaylock in anticipation of Blaylock's own deposition or trial testimony but rather, as is apparent, in anticipation of Dr. Neff's testimony.
Relators also assert as a basis for their alleged entitlement to a writ of mandamus that Blaylock's proposed list of deposition questions contains no discoverable mental impressions or opinions of Blaylock. Id. at 166b(2)e(1). Relators interpret Rule 166b(2)e(1) as limiting the discoverable mental impressions and opinions of a testifying expert and the facts which relate to or form the basis for such impressions and opinions to only those which are relevant because they pertain to the subject matter "on which the witness is expected to testify." See id.; Fed. R. Civ. P. 26(b)(4). Relators emphasize that the attorney for Neff cancelled Neff's deposition which had previously been scheduled for February 14 and acknowledged that the list of questions contained in the letter would only be useful to him if obtained prior to Neff's deposition, not the deposition of Dr. Blaylock.
Relators have invoked and continue to rely upon the work- product exemption to protect the letter in question from discovery by Neff. Tex. R. Civ. P. 166b(3)(a) (Vernon 1990). Relators assert that in order for an attorney to advocate and protect the interests of his client, he must be able to prepare his case, necessarily including assembling information and planning strategy, with a certain degree of privacy and free from unnecessary intrusion by the opposing side. Relators contend that, in requesting Blaylock to prepare a list of suggested questions to pose to Neff during his deposition, it was clearly counsel's purpose to plan strategy for Neff's deposition, which strategy is contained in the August 15th letter. The letter thus constitutes attorney work-product, even though prepared by one of Relators' agents in anticipation of litigation. See United States v. Nobles, 422 U.S. 225, 238-39, 95 S. Ct. 2160, 2170, 45 L. Ed. 2d 141 (1975).
Relators further point out that attorneys commonly discuss with their experts questions to be asked the opposing party, their witnesses and experts, as well as other case strategy. If the opposing parties have sufficient information concerning an expert's impressions and opinions on matters about which the expert may testify, having to disclose such strategy constitutes improper and unwarranted interference with necessary case preparation.
Finally, Relators argue that an expert may be used both to testify and for consulting purposes. Specifically, they assert that the facts known or opinions held by an expert retained or specially employed by another party in anticipation of litigation or preparation for trial and not expected to be called to testify may be discovered in a situation as present in this case only upon a showing of exceptional circumstances making it impractical for the party seeking discovery to obtain facts and opinions on the same topic by other means, citing Rule 26(b)(4) of the Federal Rules of Civil Procedure and cases referenced thereunder. In addition, Relators take the position that information and materials obtained from such an expert bearing upon those matters in which the expert serves as a consultant constitute attorney work-product and fall within the recognized exemption as long as a clear distinction is maintained between materials concerning matters upon which the expert may testify and those materials pertaining to those matters in which the expert served strictly as a consultant. Relators assert that they have preserved the requisite distinction, having furnished to the defendants the previously-described narrative reports of Dr. Blaylock of October 29, 1987, March 22, 1989, and May 16, 1989. Relators conclude by pointing out the obvious economic consequences of being prevented from consulting with one's own retained expert as a routine part of devising strategy and being compelled to retain still another expert directly for purposes of consultation out of concern that one's indispensable case preparation and strategy might otherwise be subject to discovery by the opposing party.
Neff as real-party-in-interest relies upon the policy of broad discovery generally endorsed in Texas as well as the plain language of Rule 166b(e), which allows discovery of mental impressions held by an expert "which relate to or form the basis of the mental impressions and opinions" that will be expressed by the testifying expert. Tex. R. Civ. P. 166b(e)(1). Neff takes the position that the letter in issue and the questions listed therein necessarily reflect Blaylock's mental impressions, albeit in question form, of what he believes to be the material medical issues in this case and that Neff's answers to these questions will undoubtedly lead to or form the basis of Blaylock's ultimate opinions. Neff additionally asserts his entitlement to discover all of Dr. Blaylock's mental impressions, regardless of form, in order to test the credibility and accuracy of Blaylock's testimony. Neff also argues that the work-product exemption does not apply to shield the work-product of a testifying expert made by that expert when acting in the capacity of a consultant, as Texas does not favor dual-capacity witnesses. Finally, Neff emphasizes that, "[i]f for nothing else, Defendant is entitled to discover the subject letter to expose Dr. Blaylock's bias as a testifying expert."
The work-product doctrine as embodied in Rule 166b(3)(a) was designed to enable an attorney to take the necessary steps to adequately work up his client's case without fear of being compelled to disclose the "fruits of his labor" to his adversary. Texas Rules of Evidence Handbook, 20 Hous. L. Rev. 1, 285 (1983). In fulfilling his responsibilities and obligations to his client, it is essential that an attorney be assured of a certain amount of privacy in performing his duties, as reflected in interviews, memoranda, correspondence and other numerous forms. To decide which of the above is discoverable based upon the fallacious distinction of who actually wrote the document in question, the attorney or his agent, would result in much of what is now reduced to writing remaining unwritten and lead to "inefficiency, unfairness and sharp practices . . . ." Hickman v. Taylor, 329 U.S. 495, 511, 67 S. Ct. 385, 393-94, 91 L. Ed. 451 (1947).
Moreover, this is not a case in which the document sought contains information essential to the preparation of Neff's case and without which Neff will be totally unable to defend against Relators' claims. See Jampole v. Touchy, 673 S.W.2d 569, 575-76 (Tex. 1984). To the contrary, it is clear from the fact of the cancellation of Neff's deposition at the request of his attorney that Neff desires to use the questions to gain an advantage in preparing for his own deposition. Neff will undoubtedly discover most, if not all, of Blaylock's proposed questions at the time of Neff's deposition and most of which he will likely have anticipated. Neff does not dispute that Relators met their burden in the trial court to assert and prove the privilege. In addition, Neff has failed to demonstrate a justifiable basis for such a needless intrusion into opposing counsel's files. Protecting materials prepared by an attorney's agent in preparation for the trial is quite practical in view of the fact that attorneys must often rely on the assistance of investigators and other agents in working up a complex case and in educating themselves in the technical aspects of a complicated case requiring specialized expertise. In light of the above, the protection given by the work-product exemption to an agent's communications to his employee-attorney is at least as extensive as that afforded communications to an attorney's agent by the attorney-client privilege--the work product exemption being broader than the attorney-client privilege. See Bearden v. Boone, 693 S.W.2d 25, 28 (Tex. App.-Amarillo 1985, orig. proceeding). If Neff believes that Blaylock's three reports with which he has been furnished do not reflect all of Blaylock's mental impressions and opinions formulated in connection with this case, he has the option of deposing Blaylock and thus avoiding an unwarranted invasion of counsel's file and the work-product exemption. Counsel for Blaylock assured the court at the hearing on the motion to compel that Blaylock's deposition would be taken.
Although the work-product exemption is generally considered a qualified privilege capable of being waived, Relators have not waived their right to stand upon the work-product privilege as to the August 15th letter simply by producing for all the defendants copies of Blaylock's three narrative reports, which by their content were obviously intended for dissemination to the opposing side and which expressly reflect the medical opinions and mental impressions of Dr. Blaylock relevant to this case. In contrast, the August 15th letter containing suggested deposition questions was prepared by Blaylock at the strategic request of counsel for counsel's own use in preparing for Neff's deposition, is therefore clearly pure work product and does not constitute discoverable expressions of Blaylock's expert opinions. See County of Suffolk v. Long Island Lighting Co., 122 F.R.D. 120, 123 (E.D.N.Y. 1988). Nor were the questions drafted in contemplation of Blaylock's testimony and are thus beyond the scope of proper discovery. See Tex. R. Civ. P. 166b(2)(e)(2). In addition, materials sought purely for purposes of impeachment or to demonstrate bias are not discoverable. See Russell v. Young, 452 S.W.2d 434, 436-37 (Tex.1970).
The case of Barker v. Dunham, 551 S.W.2d 41 (Tex. 1977), upon which Neff relies does not control the outcome of this action. Barker did not involve the question of how the work product exemption affects discoverability of documents generated by a testifying expert.
The propriety of mandamus to correct a trial court order compelling discovery of privileged material information is well-settled. See West v. Solito, 563 S.W.2d 240, 243-44 (Tex. 1978); Stewart v. McCain, 575 S.W.2d 509, 510-11 (Tex. 1978); Houdaille Industries, Inc. v. Cunningham, 502 S.W.2d 544, 550 (Tex. 1973). The remedy of mandamus is particularly appropriate under the present circumstances in light of the trial court's abuse of discretion, the inadequacy of appeal from a final judgment (privileged material having already been disclosed), and a unique discovery question having been presented for review. See Menton v. Lattimore, 667 S.W.2d 335, 342 (Tex. App.-Fort Worth 1984, orig. proceeding).
We anticipate that Judge Bournias will, upon receipt of this opinion, vacate his prior order compelling production of the August 15th letter and enter an order consistent with this opinion. Otherwise, the writ will issue.
TERRY R. MEANS
DO NOT PUBLISH Justice
erif"> Justice Vance
Affirmed
Opinion delivered and filed September 9, 1998
Do not publish