in Re Walter Kidde Portable Equipment, Inc.

Opinion issued August 6, 2013.

In The

Court of Appeals
For The

First District of Texas
————————————
NO. 01-12-01012-CV
———————————
IN RE WALTER KIDDE PORTABLE EQUIPMENT, INC., Relator

Original Proceeding on Petition for Writ of Mandamus
Trial Court Case No. 64729

MEMORANDUM OPINION

In this original proceeding, Walter Kidde Portable Equipment, Inc.,

challenges orders in which the trial court limited discovery of records of child

protective services investigations, and disallowed the deposition of a government

witness. Kidde, a manufacturer of home smoke alarms, is a defendant in a

products liability suit arising out of a tragic fire in which three children died, and
others sustained injury. Before the fire occurred, the Brazoria County branch of

the Texas Department of Family and Protective Services (TDFPS) had investigated

allegations of parental abuse and neglect involving the children, and it conducted a

further investigation in its aftermath.

TDFPS produced some records associated with its investigations, but

redacted others, on the basis that the redacted materials were protected from

discovery by statute. See TEX. FAM. CODE ANN. § 261.201 (West Supp. 2012). It

also moved to quash the deposition of its investigator. Kidde seeks mandamus

relief from two discovery rulings upholding TDFPS’s position. In the first, the

trial court quashed Kidde’s notice to depose Eric Holmes, the TDFPS investigator

who interviewed the plaintiffs on the morning of the fire. In the second, the trial

court denied Kidde’s request for disclosure of the additional, redacted information

from the TDFPS records, which TDFPS has withheld from discovery. We grant

relief in part and deny it in part.1

1
The underlying case is Brandon Moore, Connie Moore, & Jacquelyn Homes, and
Daniel and Dana Novak, Individually and as Joint Representatives of the Estates
of Kaitlyn Novak (Deceased), Christian Novak, and Nathaniel Novak and as Next
Friend of Nicholas Novak (a minor), Robert Kennedy and Alan Andrew
Cummings, Intervenors v. Bell Partners, Inc., Gabriella Mendoza and Marissa
Montalva, G&I VI Skylar Point, L.P. d/b/a Skylar Point Apartments, and Walter
Kidde Portable Equipment, Inc., Defendants, No. 64729; from the 23rd District
Court of Brazoria County, Texas, the Honorable Ben Hardin presiding.

2
 Background

The underlying claims for wrongful death, personal injury, and deceptive

trade practices arise out of a two-story apartment fire that occurred in November

2010. The fire caused the death of three children then living at the apartment with

their mother. One child survived the fire. Their parents, Dana and Daniel Novak,

individually and as representatives of their children’s estates and their surviving

child—sued Kidde, among other defendants. The suit also names, as intervening

plaintiffs, Robert Kennedy and Alan Cummings, who also resided in the apartment

when the fire occurred. In addition to the other claims, Daniel brings a loss of

consortium claim arising from his children’s deaths. Dana Novak later nonsuited

her claims against Kidde.

The plaintiffs allege that the Kidde smoke alarms failed to timely sound in

response to the fire due to a defect in their design. Specifically, the plaintiffs

allege that the smoke alarm installed on the first floor of the apartment sounded

only after thick smoke caused the occupants to awaken, and that the second floor

alarm, if it sounded at all, did not sound soon enough to allow the upstairs

occupants to escape the apartment. According to the pleadings, the Kidde alarms

use an ionization system to trigger the alarm. The plaintiffs’ expert, relying on the

3
apartment occupants’ deposition testimony to conclude that the alarm sounded

untimely, opines that if photoelectric smoke alarms or combination of

ionization/photoelectric smoke alarms had been installed in the same location, then

those types of alarms would have sounded earlier in response to the fire, and would

have permitted all of the apartment’s occupants to escape without serious harm.

Initially, Daniel Novak requested that TDFPS produce its records. In

response, TDFPS provided Daniel’s counsel with a redacted copy of its

investigation records. Caseworker Eric Holmes, the TDFPS investigator assigned

to the file, also executed a deposition on written questions, confirming that the

records were public business records as defined under Texas Rule of Evidence 803.

Plaintiffs’ counsel produced the 74 pages of redacted records, accompanied by the

business record affidavit, to Kidde in response to Kidde’s discovery requests.

The final investigation, conducted by Holmes over the few days following

the fire, concerned the circumstances surrounding the fire and its origins. The

produced records contain Holmes’s notes from his interviews with the apartment

occupants and with Daniel. Kidde contends that some deposition testimony in this

case arguably is not consistent with some information contained in the records that

TDFPS produced. It points out, for example:

4
 Witness TDFPS records Deposition testimony
Andrew Cummings Said that he passed the Said that the surviving child
surviving child going came downstairs sometime
downstairs while he was before fire started.
going up to help others.

Stated “Robert Kennedy Testified that “at some point
heard the fire alarm going after we had already been
off downstairs; it woke himawake, the smoke detector
up.” downstairs had finally gone
off, after we were already
Robert Kennedy arrived and awake.”
cut short the interview.
Denied speaking with
Holmes; does not recall
speaking with anyone from
TDFPS

Daniel Novak Reported to Holmes that Denied telling Holmes that
“the downstairs [of the the apartment’s second floor
apartment] is fine, but the was “rough”; says that
upstairs is rough” and that apartment was “fair” or
Dana had kept six large “normal for a kid’s room,”
propane tanks there. and denied that Dana had
kept propane tanks there.

The plaintiffs designated Dr. Don B. Russell as their expert on the

performance of the Kidde smoke alarms installed in the apartment. Russell opines

that the smoke alarms would have sounded timely if they had given the

apartment’s occupants “two or three minutes of escape time and time to react,” but

his review of the facts indicates that the alarms did not. Russell bases his opinion

on the occupants’ deposition testimony that they did not hear either of the smoke

5
detectors before smoke had filled the apartment. Id. In particular, he concludes

that the downstairs alarm did not sound in a timely manner.

Dana and Daniel had separated before the fire occurred, so Daniel did not

reside at the apartment. The incidents before the fire addressed in the TDFPS

records concern Daniel’s interactions with his children and reports of physical

abuse. Dana’s divorce pleadings also contain allegations of mistreatment and a

request to terminate Daniel’s parental rights. In the divorce proceeding, Daniel

agreed to a temporary restraining order that governed his contact with Dana, but in

his deposition, Daniel denied the allegations in Dana’s affidavit supporting her

motion for the TRO. Daniel’s testimony about the conditions at Dana’s apartment

conflict with Holmes’s post-fire interview notes of his interview with Daniel. In

denying that he made the statements that Holmes recorded, Daniel attacked

Holmes’s motivation and veracity, remarking that “I think this Eric Holmes guy

was pretty much trying to dig something that he didn’t have. . . . I can’t recall

saying the stuff that he’s writing down there.”

Kidde sought to depose Holmes to verify the events recorded in his notes,

establish his experience and expertise as a TDFPS investigator, and discover

additional facts relating to the investigations recorded in TDFPS files. TDFPS

6
tendered unredacted versions of the records to the trial court for its consideration in

support of its motion to quash further discovery of them.

Discussion

I. Standard for Mandamus Review

Mandamus will issue to correct a discovery order if the order constitutes a

clear abuse of discretion, and there is no adequate remedy by appeal. See In re

Colonial Pipeline Co., 968 S.W.2d 938, 941 (Tex.1998); see also In re Maurer, 15

S.W.3d 256, 259 (Tex. App.—Houston [14th Dist.] 2000, orig. proceeding).

The rules of civil procedure define the general scope of discovery as any

relevant, unprivileged information—even if inadmissible at trial—that “appears

reasonably calculated to lead to the discovery of admissible evidence.” See TEX.

R. CIV. P. 192.3(a); In re CSX Corp., 124 S.W.3d 149, 152 (Tex. 2003). To

determine whether the trial court abused its discretion in denying discovery, we

review the entire record, mindful that “the ultimate purpose of discovery is to seek

the truth, so that disputes may be decided by what the facts reveal, not by what

facts are concealed.” Colonial Pipeline, 968 S.W.2d at 941. Erroneous denial of

relevant discovery going to the heart of a party’s case compromises a party’s

ability to present a viable claim or defense at trial, rendering the appellate remedy

inadequate. Able v. Moyé, 898 S.W.2d 766, 772 (Tex. 1995); see Walker v.

7
Packer, 827 S.W.2d 833, 843 (Tex. 1992) (“[A]n appeal will not be an adequate

remedy where the party’s ability to present a viable claim or defense at trial is

vitiated or severely compromised by the trial court’s discovery error.”).

II. Confidentiality of TDFPS Records

Section 261.201 of the Texas Family Code declares that the following

information is confidential and not subject to public release:

1) a report of alleged or suspected abuse or neglect made under this
chapter and the identity of the person making the report; and

2) except as otherwise provided in this section, the files, reports,
records, communications, audiotapes, videotapes, and working
papers used or developed in an investigation under this chapter or
in providing services as a result of an investigation.
TEX. FAM. CODE ANN. § 261.201(a). Subsection (b) of 261.201 contains an

exception to nondisclosure. In re Fulgium, 150 S.W.3d 252, 253 (Tex. App.—

Texarkana 2004, orig. proceeding). A trial court may, in its discretion, order

disclosure of the information made confidential by the statute if:

after hearing and an in camera review of the requested information,
the court determines that the disclosure of the requested information
is: (A) essential to the administration of justice; and (B) not likely to
endanger the life or safety of: (i) a child who is the subject of the
report of alleged or suspected abuse or neglect; (ii) a person who
makes a report of alleged or suspected abuse or neglect; or (iii) any
other person who participates in an investigation of reported abuse or
neglect or who provides care for the child.

8
TEX. FAM. CODE. ANN. § 261.201(b). The parties dispute whether the trial court

acted within its discretion in denying Kidde’s motion for their disclosure under the

exception in subsection (b).

Relatively few appellate cases have involved the interpretation of

subsection (b). In one case, the Texarkana Court of Appeals concluded that the

disclosure of confidential information pursuant to section 261.201(b) was

“essential to the administration of justice” in a medical malpractice case, in which

the information was relevant to whether an infant’s brain damage was caused

solely by the hospital’s alleged negligence or in part by the failure to obtain proper

pre-natal and post-natal care for the infant, which the TDFPS records documented.

In re Agers, No. 06-10-00020-CV, 2010 WL 1780133, at *3 (Tex. App.—

Texarkana May 5, 2010, orig. proceeding).

In another case, analyzing the necessity for disclosure of confidential

information under a comparable exception for adult protective services (APS)

records, the El Paso Court of Appeals granted mandamus relief and ordered

disclosure of the records, after determining that they were relevant to the issues in

a will contest in which the decedent’s only daughter had, for the most part, been

cut out of her father’s will. In re Chesses, 388 S.W.3d 330, 340 (Tex. App.—El

Paso May 2012, orig. proceeding) (addressing claim for disclosure under TEX.

9
HUM. RES. CODE ANN. § 48.101(c)). The daughter testified that an APS specialist

had informed her that her father had complained that his attorney was pressuring

him to leave the bulk of his estate to certain charities before his death, that her

investigation had uncovered suspicious behavior by the attorney, and that the

father had told the specialist that he really wanted his daughter to get everything.

Id. at 332. The appellate court held that the APS documents and the specialist’s

deposition were essential to the administration of justice, and thus, the trial court

had abused its discretion in denying the discovery. Id. at 340, 343.

III. Analysis

Kidde seeks Holmes’s deposition and the unredacted TDFPS records for two

purposes: (1) to question Holmes about his post-fire investigation and interviews;

and (2) to question him about the records concerning reports that Daniel abused his

deceased children and investigations into those allegations. We consider each issue

in turn.

A. Proposed discovery

1. Post-fire investigation

Novak, Kennedy, and Cummings base their DTPA and products liability

claims against Kidde on allegations that “the design, manufacture, and marketing

of the [Kidde] smoke alarms . . . w[ere] defective such that they failed to provide a

10
timely warning to the occupants of the apartment.” They specifically allege that

Kennedy “awoke to the strong smell of smoke,” and that “[w]hen he awoke, no

smoke detector was sounding.” The plaintiffs claim that the alarms’ failure to

timely sound was a producing and proximate cause of their injuries and the

children’s death, because smoked had filled the apartment before the occupants

discovered the fire and prevented their safe escape.

Under the TDFPS Policy Manual, the report of a child’s death triggers a

TDFPS investigation when “there is an indication that abuse or neglect may have

caused the death; or . . . the cause of death is not yet determined or has not been

clearly attributed to accidental or natural causes.” TDFPS STATEWIDE INTAKE

POLICY & PROC. § 4421 (Jan. 2011). Holmes’s investigation records document his

interviews with Daniel, Dana, and two more of the apartment’s occupants

concerning the circumstances that resulted in the children’s deaths. Holmes’s

interviews directly involve the same persons and events under consideration in this

suit. His investigation notes show that Holmes’s testimony could be relevant to the

question of when, if ever, either of the two smoke alarms sounded. Daniel’s

observations to Holmes about the apartment’s condition at the time the fire

occurred are relevant, because Kidde reasonably could present evidence that

obstructions or highly flammable materials also contributed to the occupants’

11
inability to safely escape the fire. Barring Kidde from deposing Holmes about his

post-fire interviews with the occupants deprives it from discovery that reasonably

could lead to evidence undermining the credibility of plaintiffs’ allegations that

Kidde’s alarm failed to properly function, or that an alarm malfunction contributed

to the injuries and deaths that occurred. We hold that the information Kidde seeks

through Holmes’s deposition is essential to the administration of justice, because

Kidde seeks information reasonably calculated to lead to the discovery of

admissible evidence on issues directly involving the parties and events in dispute.

See Agers, 2010 WL 1780133 at *3; Chesses, 388 S.W.3d at 340. Any fire-related

investigation records, to the extent they have not already been produced in

unredacted form, are similarly essential. See id. Specifically, pages 1 through 5 of

case number XXXXXX12 can be produced with more selective redaction to

provide investigative information to Kidde while still withholding sensitive

identifying information.

2. Redacted materials from other TDFPS investigations

Kidde also seeks the complete unredacted TDFPS files from other TDFPS

investigations for the purpose of countering Daniel’s loss of consortium claim. A

claim for loss of consortium aims to compensate individuals for the “positive

benefits flowing from the love, comfort, companionship, and society that the

12
beneficiary would have experienced had the decedent lived.” Thomas v. Uzoka,

290 S.W.3d 437, 455–56 (Tex. App.—Houston [14th Dist.] 2009, pet. denied)

(citing Moore v. Lillebo, 722 S.W.2d 683, 687–88 (Tex. 1986)); see Sanchez v.

Schindler, 651 S.W.2d 249, 251, 253 (Tex. 1983) (recognizing that parents may

recover damages for loss of “love, advice, comfort, companionship and society”

resulting from child’s wrongful death). Kidde contends that discovery into

allegations of abuse and neglect could lead to evidence relevant to a jury’s

determination of the amount Daniel should receive in damages for loss of his

children’s companionship and society. The investigative records that TDFPS

already has produced yield this sort of information. A review of the tendered in

camera records shows that the redactions contain additional information about the

allegations that initiated the TDFPS investigations, but producing the records in

their unredacted form would divulge the people who had made complaints to

TDFPS, people to whom the statute particularly affords protection from disclosure.

The redactions to the records involving the investigations before the fire

meet the statute’s interest in maintaining the confidentiality of persons who report

child abuse or neglect, and the intake information documented to have been

conveyed by those persons. Dana’s divorce pleadings and the affidavit supporting

her motion for TRO state that Daniel mistreated the children and allege grounds for

13
termination of his parental rights. The trial court reasonably could have concluded

that material relating to Daniel’s relationship with his children is already available

to Kidde from non-protected sources and in the records that the TDFPS has

produced, without need for the redacted matters. In balancing the interests of the

statute and the exception, and in light of the information that TDFPS produced to

the parties, we hold that the trial court acted within its discretion in concluding that

Kidde failed to show that production of the redactions to the records of TDFPS

investigations conducted before the fire is essential to the administration of justice.

B. Endangerment

With respect to the second prong of the disclosure inquiry, Kidde must

demonstrate that disclosure of the confidential information it seeks would not be

likely to endanger the life or safety of a child who is the subject of a report of

suspected abuse or neglect, the person who makes a report, or any participant in

the investigation of a report. TEX. FAM. CODE ANN. § 261.201(b). Kaitlyn and

Christian, the children who were the subject of the reported abuse, are deceased.

Daniel and Dana, who have lodged complaints of abuse and neglect against each

other, downplayed those allegations in this suit. The parties have most of the

TDFPS records, and the neither the plaintiffs nor the TDFPS contend that further

14
disclosure would endanger anyone’s life or safety in this case. We hold that Kidde

satisfied the second prong with respect to the discovery it seeks.

Conclusion

We conditionally grant the writ of mandamus and direct the trial court to

vacate its order quashing the deposition of Eric Holmes. We deny mandamus

relief relating to Kidde’s request for production of the TDFPS records in

unredacted form, except with respect to the records that pertain to the fire

investigation. The writ will issue only if the trial court fails to comply with this

opinion.

Jane Bland
Justice

Panel consists of Justices Jennings, Bland, and Massengale.

15