566 S.W.3d 898
Tex. App.2018Background
- Fleming & Associates operated a nationwide echocardiogram screening program and represented ~8,051 "FDA‑positive" fen‑phen claimants; Wyeth settled those claims for $339 million under a master settlement agreement (MSA).
- Settlement packets showing individual net recoveries (after fees/expenses) were sent; >95% of clients accepted and signed releases.
- Several former clients sued Fleming and George Fleming alleging breach of fiduciary duty and breach of contract, asserting among other things that (a) clients were charged a pro rata share of the echocardiogram program (including costs for unsuccessful/rejected tests) and (b) some were promised free echocardiograms by referring firms.
- The trial court severed six plaintiffs (the Harpst plaintiffs); a jury found for defendants on key questions (fiduciary duty compliance and reasonableness of expenses) and the court entered a take‑nothing judgment.
- On appeal the Harpst plaintiffs raised five issues challenging evidentiary rulings, exclusion of a witness/exhibits, denial of an MSA‑based contract theory, and an asserted adverse discovery ruling. The court affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| 1. Pretrial sua sponte summary judgment/limine on "free echocardiograms" | Trial judge effectively granted a pretrial judgment barring claim that Fleming charged for promised free echos. | Ruling was a motion in limine, not a summary judgment, and preserved nothing for review. | Court: No reversible error; ruling was limine and not reviewable. |
| 2. Exclusion of evidence that referring firms promised free echocardiograms (vicarious liability/joint venture) | Evidence admissible because Fleming entered joint ventures with referring firms and is vicariously liable for their promises. | Plaintiffs did not plead joint venture or seek leave to amend; theory not in pleadings. | Court: Exclusion not an abuse of discretion; plaintiffs failed to plead vicarious liability. |
| 3. Exclusion of witness (Steve Kirklin) and sponsored exhibits | Kirklin (former counsel) should have been allowed to testify as fact or expert and his exhibits admitted. | Kirklin was offered and treated as an expert; appellee challenged qualifications/reliability and exhibits lacked authentication/hearsay/403 problems. | Court: No abuse of discretion—plaintiffs waived alternative challenges; Kirklin’s proffered expert testimony was excluded and exhibits were unauthenticated/hearsay or prepared for litigation. |
| 4. Breach of MSA / third‑party beneficiary theory | Plaintiffs could pursue breach of the MSA (alleging violation of disciplinary rule 1.08(f)) as an independent contract claim. | Plaintiffs are not third‑party beneficiaries of the MSA; trial court correctly disallowed that theory. | Court: Even if error, harmless—jury found Fleming complied with fiduciary duties (including full disclosure), which defeats the MSA breach theory. |
| 5. Discovery sanction / conditioning production on plaintiffs paying defendants’ fees | Trial court improperly conditioned production on plaintiffs paying defendants’ attorneys’ fees. | No adverse ruling in record; alleged order not included so there is nothing to review. | Court: Waived/no record of ruling; issue not reviewable. |
Key Cases Cited
- Reule v. M&T Mortg., 483 S.W.3d 600 (Tex. App.—Houston [14th Dist.] 2015) (motion in limine preserves nothing for appellate review)
- Owens‑Corning Fiberglas Corp. v. Malone, 972 S.W.2d 35 (Tex. 1998) (limine and admissibility principles)
- Elizondo v. Krist, 338 S.W.3d 17 (Tex. App.—Houston [14th Dist.] 2010) (abuse‑of‑discretion standard for evidentiary rulings)
- Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238 (Tex. 1985) (definition of abuse of discretion)
- Fleming v. Kinney, 395 S.W.3d 917 (Tex. App.—Houston [14th Dist.] 2013) (limits on fact witnesses giving expert opinions; attorney‑duty testimony context)
- In re Diet Drugs, 385 F.3d 386 (3d Cir. 2004) (background on fen‑phen MDL procedures)