ACCEPTED
01-14-00979-cv
FIRST COURT OF APPEALS
HOUSTON, TEXAS
1/22/2015 12:04:29 PM
CHRISTOPHER PRINE
CLERK
CASE NO. 01-14-00979-CV
IN RE INTERINSURANCE § FILED
IN THEIN FIRST
1st COURT OF APPEALS
EXCHANGE OF THE § HOUSTON, TEXAS
AUTOMOBILE CLUB, § COURT OF12:04:29
1/22/2015 APPEALSPM
Relator. § CHRISTOPHER A. PRINE
Clerk
§ HOUSTON, TEXAS
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SUPPLEMENTAL RESPONSE TO THE
PETITION FOR WRIT OF MANDAMUS
Come now, John Amponsah and Melanie Amponsah ("Amponsahs"), Real
Parties in Interest, and make this Supplemental Response to the Petition for Writ of
Mandamus.
I.
AUTHORITIES
A. Bias, reliability and credibility of a retained testifying expert witness
are always relevant.
Page 1 of 14
1.1 The Amponsahs are entitled to discover information about the retained
testifying expert's potential bias. 1 In In re Doctor 's Hosp., the reach of Rule
192.3(e) was in question, the scope of discovery regarding testifying and
consulting experts. 2 In that action, plaintiffs sought discovery of the defendant
hospital ' s expert witness physicians, the physicians being non-parties. Plaintiffs
requested by subpoena all schedules of their federal income tax returns, and the
personal calendars of one of the expert witnesses. The trial court ordered
production of the requested documents .3 The defendant hospital petitioned for writ
of mandamus, on the ground that income tax schedules and calendars of non-party
witnesses are not discoverable to show bias.
1.2 On appeal, the court acknowledged that bias is relevant, admissible and
4
discoverable. However, for a non-party witness, personal financial records and
appointment books are off-limits to show bias.5 That personal information, in that
context, went beyond the scope of discovery. But, even with that limitation, the
court confirmed that bias is allowed to be discovered, " [w] e therefore read the rule
1
Texas Rule of Civil Procedure 192.3(e)(5).
2
In re Doctor's Hosp. , 2 S.W. 3d 504, 507 (Tex. App.-San Anton io 1999).
3
The trial co urt ordered production of th e federal income tax retu rns for the past 3 years to show incom e
derived as either a testifying or co nsulting expert. Personal calendars were ord ered to be produced for
one of th e expert witnesses, for the past 3 years.
4
Texas Rule of Evidence 6 13(b); Texas Ru le of Civil Proced ure 192. 3; In re Doctor's Hosp. , 2 S.W.3d at
506.
5
In re Doctor's Hosp. , 2 S.W. 3d at 506.
Page 2 of 14
to permit discovery of bias evidence, other than the personal financial records and
appointment books of nonparty witnesses." 6
B. The remedy is extraordinary, only for a clear abuse of discretion when
there is no adequate remedy on appeal. Relators have offered no
evidence to show why this extraordinary remedy is necessary.
1.3 First and foremost, mandamus is an extraordinary remedy, requiring proof of
7
(1) a clear abuse of discretion, and (2) no adequate remedy on appeal. A trial
court abuses its discretion clearly, only if "it reaches a decision so arbitrary and
unreasonable as to amount to a clear and prejudicial error of law." 8 Regarding
matters committed to the discretion of the trial court, a reviewing court cannot
substitute its judgment for that of the trial court. 9 Relator must prove that the trial
court could have reached only one decision. 10 Even if the reviewing court would
have decided the issue differently, it cannot change the ruling of the trial court
11
absent proof that the trial court ruling was arbitrary and unreasonable. Relator
has offered no evidence that the trial court' s order was arbitrary or unreasonable.
It was Relator's voluntary choice to hire the same engineer over 50 times in the
course of about 14 years. It was Relator who designated this engineer as their
retained testifying expert witness. It was the retained engineer who testified in
deposition that that "70-80%" of the time, he concludes that something other than a
6
ld. at 507.
7
Walker v. Packer, 827 S.W. 2d 833, 839 (Tex. 1992).
8
Johnson v. Fourth Court of Appeals, 700 S.W.2d 916 , 917 (Tex. 1985).
9
Walker, 827 S.W.2d at 839 .
10
ld. at 840.
11 ld.
Page 3 of 14
plumbing leak caused the foundation to sink and fail. On this type of insurance
coverage, Relator uses that opinion to deny coverage, just as they did with the
Amponsahs. All of this evidence was presented to the trial court. The trial court
found that with the issue on whether Relator had a duty to perform the contract,
meaning pay the claim, seeing this engineer's reports on other foundation failure
claims from plumbing leaks, was reasonably calculated to lead to admissible
evidence, and so ordered the reports, not once but twice.
1.4 In contrast, a trial court has no discretion in determining the law to apply or
in applying the law to the facts. 12 The complaint here by Relator is not on the law
to be applied, or even applying the law to the facts, but rather the scope of
discovery; well-settled to be within the trial court's discretion. 13 Thus, Relator has
not and cannot show a clear abuse of discretion. Likewise, Relator has not and
cannot show the trial court acted unreasonably in ordering this retained expert's
reports, that despite different situations on different claims, manages to reach the
same conclusion most of the time.
1.5 The Texas Supreme Court has addressed the very issue that Relator
complains about, and their ruling and rationale point to denying mandamus in this
instance. In Walker, 14 the Texas Supreme Court found the trial court's denial of
12 ld.
13
Flores v. Fourth Court of Appeals, 777 S.W.2d 38, 41 -42 (Tex. 1989)(holding that determination of
discoverability under Tex. R. Civ. P. 166(3)(d) was within discretion of trial court) .
14
Walker v. Packer, 827 S.W.2d 833, 839 (Tex. 1992).
Page 4 of 14
the requested discovery, which the trial court based solely on the Texas Supreme
Court holding in Russell v. Young, 452 S.W.2d 434 (Tex. 1970), was an abuse of
discretion, because it was the wrong interpretation of the law. Relator in Walker
wanted discovery of an employer's policy in regard to doctors testifying, the
doctors being non-party expert witnesses. 15 The trial court keyed on the fact that
the witness was not a party and the discovery was for impeachment only. The trial
court decided that producing the documents was controlled by the Supreme Court
decision in Russell, and denied the discovery. 16
1.6 On review of the Walker trial court decision, the Texas Supreme Court
found the trial court overlooked an important distinction in the Russell decision. In
Russell, the party wanted "wholesale discovery" of financial records of a non-party
expert witness, for only proving bias or prejudice. 17 The Supreme Court
emphasized that "the credibility of the witness, however, had not yet been put in
doubt," and so under those circumstances in Russell, the documents sought were
not discoverable. 18 Distinguishing Walker from Russell, the employer's policy
touching on expert doctors testifying, raised the possibility of expert witness bias,
casting doubt on the expert's credibility. The discovery sought was not global as
in Russell but rather narrowly-tailored to information of potential bias suggested
15
Walker, 827 S.W. 2d at 838.
16 ld .
171d.
18 ld.
Page 5 of 14
"by the witness' own deposition testimony .... " 19 In denying the discovery in
Walker, the trial court misinterpreted the Russell decision as an absolute bar to
discovery, rather than using a more flexible approach based on the circumstances. 20
It was the trial court's incorrect legal conclusion that amounted to a clear abuse of
. . 21
d1scretwn. The Supreme Court said the trial court should have allowed the
discovery of documents reasonably calculated to show potential bias of the expert
. 22
witness.
1.7 Here, in the matter before this Court, Relator complains of the trial court's
order to produce their retained expert witness' reports, a matter entirely within the
trial court's discretion. No evidence has been offered to show the trial court made
an incorrect determination of law, or misapplied the law, which is pre-requisite to
proving "clear abuse of discretion." Relator argues that their retained expert
witness' testimony admitting having been hired more than 50 times by Relator, is
evidence enough of bias. Relator contends that, because of the expert admitting
being hired so many times before, producing the requested reports from those other
engagements is beyond the scope of discovery. Simply admitting being hired by
Relator is no evidence of bias, as Relator suggests, and no doubt Relator, and
probably the expert witness himself, would never admit that such expert witness is
19 ld .
20 ld.
21
ld. at 840.
22
ld . at 839.
Page 6 of 14
biased. The habitual hirings are only evidence of a long-standing business
relationship. The critical factor is the extent to which the expert witness
follows/ignores accepted scientific methodology, standards and analysis, which
speaks to the reliability of his opinions. 23 The extent to which the expert witness
ignores accepted science, and renders opinions favorable to Relator, speaks to his
bias. That determination can only be made after seeing the reports, which the trial
court ordered.
1.8 The expert's opinion in this action was the sole ammunition that Relator
used to deny the Amponsahs' claim. 24 When the expert witness himself testified
that "70-80%" those other foundation claims ended with the cause of foundation
failure being "unrelated to a plumbing leak," meaning no coverage for the insurer
who hired him, the witness' credibility is in doubt. 25 When the witness' credibility
is in doubt, the Texas Supreme Court has ruled that discovery on bias is allowed.
1.9 Under almost identical facts, the Texas Supreme Court found that there is
coverage in this situation. 26 In Balandran, just as in this action, a plumbing leak
under the foundation caused the foundation to fail and caused damage to the home.
23
Mack Trucks, In c. v. Tamez, 206 S.W.3d 572 , 581 (Tex. 2006).
24
Exhibit F. Defendant Interinsurance Exchange of the Automobile Club's First Supplemental Response
to Plaintiff's First Set of Interrogatories, Interrogatory Number 6.
25
Exhibit A. Pages 30.
26
Exhibit A. Pages 29-30 ; Balandran v. Safeco Ins. Co., 972 S.W.2d 738 (Tex. 1998)(holding that
exclusion in standard homeowners' Form B insurance policy--the same as the Amponsahs' Form B
policy--for loss to dwelling caused by settling , cracking , bulging , shrinkage, or expansion of foundations ,
did not apply to structural damage from a plumbing leak, which was the same exclusion cited as the
reason for denial of the Amponsahs' claim for structural damage caused by the plumbing leak).
Page 7 of 14
The homeowners had Form B insurance coverage, just like the Amponsahs. The
insurer denied the claim, citing the exact same exclusion, identical wording to the
exclusion in the Amponsahs' policy, that Relator cited in denying the Amponsahs '
claim. 27 With credibility in question, and discovery narrowly-tailored to lead to
admissible evidence on credibility, i.e. the methodology, standards, analysis and
opinions in those other engagements for this same insurer, those other reports are
absolutely fair game and should be produced. 28
1.10 Relator's second hurdle is to prove no adequate remedy on appeal,
fundamental to mandamus relief. 29 That Relator might be saddled with delay or
expense through the normal appellate path, instead of the extraordinary path of
mandamus, on a discovery dispute, does not justify mandamus. 30 The Texas
Supreme Court's v1ew on mandamus relief in a discovery dispute favors the
Amponsahs. At least three contexts have been cited where, in regard to a
discovery dispute, there is no adequate remedy on appeal, thereby warranting
mandamus:
(1) when the trial court incorrectly orders discovery of privileged information,
patently irrelevant or duplicative documents;
(2) when a party's ability to present a viable claim or defense at trial is vitiated
or severely compromised by the trial court's error; and
27
Exhibit C. Balandran v. Safeco Ins. Co. , 972 S.W.2d 738 (Tex. 1998).
28
Walker v. Packer, 827 S.W.2d 833, 839 (Tex. 1992).
29
Holloway v. Fifth Court of Appeals , 767 S.W.2d 680, 684 (Tex. 1989).
30
Walker, 827 S.W.2d at 842 .
Page 8 of 14
(3) when discovery is not allowed and the missing discovery cannot be made
part of the appellate record for review later. 31
1.11 These factors all weigh in favor of the Amponsahs. The discovery at issue
here is not privileged. The discovery is not duplicative, as Relator is dragging their
feet for months now to not produce the reports, and certainly not irrelevant as the
trial court has found them relevant in this situation. Without the reports, it would
vitiate or compromise the Amponsahs' evidence, not any claim of Relator's. The
reports go to the heart of the credibility of the Relator's retained expert witness.
Evidence from the other engineering reports could very well render his opinions
here not credible. If so, Relator would have no basis for denying the Amponsahs'
claim, proving Realtor's breach of contract. Without the reports, no evidence
could be submitted for the appellate record, if necessary. Evidence exempted from
discovery would not be part of the record, rendering it impossible for a reviewing
court to determine whether denying the discovery was harmful. 32
1.12 In Walker, the Texas Supreme Court ruled that Relator had an adequate
remedy by appeal, and so mandamus was denied. Relator in that case was seeking
mandamus of the trial court's order denying the discovery. Discovery at issue
there was viewed as not vitiating or severely compromising Relator's legal rights.
Most important, the discovery was before the trial court. The trial court saw the
31
ld . at 843.
32
Jampole v. Touchy, 673 S. W.2d 569, 576 (Tex. 1984) .
Page 9 of 14
documents. The trial court examined and considered the documents, before
ultimately deciding to deny the discovery. That discovery was available for
appeal. 33 The exact opposite scenario exists now before for this Court. The trial
court here considered the pleadings and evidence, ordered the discovery, and
upheld its order on Relator's appeal to the trial court. Relator is trying to obstruct
discovery that the trial court ordered. The trial court here has not seen the reports.
The trial court has not been afforded an opportunity to determine their
admissibility. If the reports are not produced, they will not be available on appeal.
If mandamus is granted, Relator will have successfully concealed the truth. The
purpose of discovery is to seek the truth, so disputes may be decided by what facts
are revealed, not by what facts are concealed. 34
Wherefore, premises considered, Relator's petition for mandamus must be
denied.
33
Walker, 827 S.W. 2d at 838. The trial court reviewed th e relevant depositions and plead ings, and
ordered the production of th e requested docum ents for in came ra review , before th e trial co urt denied the
discovery .
34
Axelson, Inc. v. Mcllhany, 798 S.W.2d 55 0, 555 (Tex. 1990).
Page 10 of 14
Respectfully submitted,
THE RENSIMER LAw FIRM, P.L.L.C.
J--c.Ja....
James E. Rensimer
Texas Bar No. 24027772
9525 Katy Freeway, Suite 220
Houston, Texas 77024
JR@RensimerLaw.com
713-750-9299 p
877-455 -1544 f
ATTORNEY FOR REAL PARTIES IN INTEREST
JOHN AMPONSAH AND MELANIE
AMPONSAH
Page 11 of 14
CERTIFICATE OF SERVICE
I hereby certify that a copy of the foregoing document has been served in
compliance with Rules 21 and 21a of the Texas Rules of Civil Procedure, on
January 22, 2015.
David H. Bradley
WALTERS BALIDO & CRAIN, LLP
2500 Tanglewilde, Suite 250
Houston, Texas 77063
713-335-0286 f
ATTORNEY FOR REALTOR
The Honorable Thomas R. Culver III
PRESIDING JUDGE OF THE 240TH JUDICIAL DISTRICT COURT OF
FORT BEND COUNTY, TEXAS
301 Jackson
Richmond, Texas 77469
RESPONDENT
James E. Rensimer
Page 12 of 14
CASE NO. 01 - 14-00979-CV
IN RE INTERINSURANCE § IN THE FIRST
EXCHANGE OF THE §
AUTOMOBILE CLUB , § COURT OF APPEALS
Realtor. §
§ HOUSTON, TEXAS
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RECORD APPENDIX IN SUPPORT OF RESPONSE TO PETITION FOR
WRIT OF MANDAMUS
From Cause No. 13-DCV -203651 Pending in the 240th Judicial District Court of
Fort Bend County
THE RENSIMER LAW FIRM, P.L.L.C.
James E. Rensimer
Texas Bar No. 24027772
9525 Katy Freeway, Suite 220
Hou~on,Texas77024
JR@RensimerLaw.com
713 -750-9299 p
877-455- 1544 f
ATTORNEY FOR REAL PARTIES IN INTEREST
JOHN AMPONSAH AND MELANIE
AMPONSAH
Page 13 of1 4
Cause Number 13-DCV-203651
(The Action)
Instrument Tab
Deposition of Derrick Hancock (June 9, 2014) A
Previously submitted on 1115115
Deposition of Derrick Hancock Exhibits (1 -18) B
Previously submitted on 1115115
Letter from Mike Hendricks to John and Melanie
Amponsah (sent September 13, 2011) c
Previously submitted on 1115/15
HSA Residential Report (sent July 15, 2011) D
Previously submitted on 1115/15
HSA Supplement Residential Report
(sent September 12, 2011) E
Previously submitted on 1115115
Defendant Interinsurance Exchange of the Automobile F
Club First Supplemental Responses to Interrogatories
Number 6 (September 23, 2013)
Page 14 of 14