Petition for Writ of Mandamus Conditionally Granted and Memorandum Opinion filed January 25, 2007.
In The
Fourteenth Court of Appeals
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NO. 14-06-00778-CV
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IN RE BP AMOCO CHEMICAL COMPANY AND BP PRODUCTS NORTH AMERICA, INC., Relators
ORIGINAL PROCEEDING
WRIT OF MANDAMUS
M E M O R A N D U M O P I N I O N
In this original proceeding, relators, BP Amoco Chemical Company and BP Products North America, Inc., seek a writ of mandamus ordering the respondent, Susan Criss, to vacate her order of June 15, 2006, which compels relators to comply with requests for production. We conditionally grant the writ.
Background
The real party in interest, Kenneth Alton Moffett, suffers from acute myelogenous leukemia (AML), which he alleges was caused by exposure to benzene. Moffett sued several companies including relators, BP Amoco Chemical and BP Products North America, alleging he was exposed to benzene while working in plants owned by those companies.
In early 2006, Moffett served Interrogatories and Requests for Production on relators. Included in his requests for production were the following requests:
Request for Production No. 18: Produce all DOCUMENTS in your possession reflecting epidemiological studies and any underlying data for all epidemiological studies that were conducted and/or participated in by DEFENDANT with respect to exposure to BENZENE. All identifying information may be redacted.
Request for Production No. 25: Produce all correspondence and/or communications between this DEFENDANT and the American Petroleum Institute related to potential toxic effects of and/or safe levels of exposure to BENZENE. This request includes, but is not limited to, any and all draft reports, proposals, studies, research projects, submissions and/or discussions with Dr. Richard Irons.
Relators objected to requests 18 and 25 on the grounds that the requests were overbroad and not calculated to lead to the discovery of admissible evidence. Moffett moved to compel production of the studies and documents, and the trial court, without making any changes to the discovery requests, granted the motion to compel.
Availability of Mandamus Relief
Mandamus is available to correct a clear abuse of discretion when the relator has no adequate remedy at law. CSR Ltd. v. Link, 925 S.W.2d 591, 596 (Tex. 1996). Generally, the scope of discovery is within the trial court=s discretion, but the trial court must make an effort to impose reasonable discovery limits. In re CSX Corp., 124 S.W.3d 149, 152 (Tex. 2003). An order that compels overly broad discovery well outside the bounds of proper discovery is an abuse of discretion for which mandamus is the proper remedy. Dillard Dep=t Stores, Inc. v. Hall, 909 S.W.2d 491, 492 (Tex. 1995). Discovery requests must be limited by time, place, and subject matter. In re Xeller, 6 S.W.3d 618, 626 (Tex. App.CHouston [14th Dist.] 1999, orig. proceeding). Discovery orders requiring document production from an unreasonably long time period or from distant and unrelated locales are impermissibly overbroad. In re American Optical, 988 S.W.2d 711, 713 (Tex. 1998).
Scope of Discovery Order
The general scope of discovery includes any unprivileged information that is relevant to the subject of the action, even if it would be inadmissible at trial, as long as the information sought is reasonably calculated to lead to the discovery of admissible evidence. Tex. R. Civ. P. 192.3(a); In re CSX, 124 S.W.3d at 152. Moffett=s requests are overbroad because they do not limit the document production to time, place, and subject matter. The supreme court has held similar requests are overly broad. In Texaco, Inc. v. Sanderson, the plaintiffs claimed they were injured by exposure to benzene and requested all safety and toxicology documents written by the corporate safety director, including documents regarding other employees= exposure and plants where the plaintiffs never worked. 898 S.W.2d at 814. The court held the request was overbroad because it was Anot merely an impermissible fishing expedition; it [was] an effort to dredge the lake in hopes of finding a fish.@ Id. at 815. As in Texaco, Moffett failed to limit his request to the time in which he worked at the plants or the plants at which he worked. In fact, Moffett has failed to produce any evidence that he actually worked at relators= plants. Further, the discovery order is not limited to studies concerning the particular disease from which Moffett suffers.
Moffett argues this court should deny mandamus because (1) relators unreasonably delayed seeking mandamus, (2) relators produced no evidence in support of their objections, and (3) the requested discovery is necessary to show causation. None of Moffett=s arguments, however, address the fact that the discovery request is too broad. With regard to the alleged delay, Moffett cites no authority prohibiting mandamus relief due to delay in seeking mandamus and has therefore waived this argument. See Kang v. Hyundai Corp. (U.S.A.), 992 S.W.2d 499, 503 (Tex. App.CDallas 1999, no pet.) (The failure to cite any authority waives argument.). Further, relators contend they were attempting to negotiate a settlement, and Moffett agreed to extend the discovery deadlines in pursuit of a settlement. With regard to evidence, there is no requirement that relators produce evidence to support their contention that the order is overbroad. It is overbroad on its face. See Texaco, 898 S.W.2d at 814.
Finally, Moffett contends that because he has requested epidemiological studies in an attempt to obtain relevant evidence to support causation, this case is distinguishable from other cases involving overbroad discovery orders. Although the scope of discovery is broad, requests must show a reasonable expectation of obtaining information that will aid the dispute=s resolution. In re CSX, 124 S.W.3d at 152. Discovery requests must be reasonably tailored to include only relevant matters. Id.
Results from epidemiology studies are relevant only to the issue of general causation and cannot establish whether an exposure or factor caused disease or injury in a specific individual. Merrell Dow Pharm. Inc. v. Havner, 953 S.W.2d 706, 715 (Tex. 1997). The concept of Afit@ discussed by the Supreme Court in Daubert is a critical issue to the question of generalizing epidemiology study results to a plaintiff in a particular case. See Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 591, 113 S. Ct. 2786, 2796, 125 L. Ed. 2d 469 (1993). Unless a plaintiff can show that he could qualify as a member of the exposed study group, an epidemiological study is irrelevant and misleading to the jury. Id.. A claimant must show that he or she is similar to those in the studies. Havner, 953 S.W.2d at 720. Further, unpublished studies, such as the one Moffett seeks, are not admissible. Id. at 727. Moffett seeks all studies by relators concerning exposure to benzene including a study that has not yet been published or subjected to peer review. Because Moffett has failed to show that he could qualify as a member of those study groups, his request is not reasonably tailored to include only relevant matters. See In re CSX, 124 S.W.3d at 152; Havner, 953 S.W.2d at 720.
Conclusion
The trial court abused its discretion in ordering relators to comply with requests for production 18 and 25. Further, by having to produce overbroad discovery that is almost unlimited as to time, place, and subject matter, relators have no adequate remedy by appeal. See In re CSX, 124 S.W.3d at 153. We conditionally grant mandamus relief and direct the trial court to vacate its June 15, 2006 order compelling relators to answer Moffett=s requests for production. The writ will issue only if the trial court fails to act promptly in accord with this opinion.
PER CURIAM
Petition Conditionally Granted and Memorandum Opinion filed January 25, 2007.
Panel consists of Justices Anderson, Hudson, and Guzman.