*1 HUAG, R.N. & Kevin In re Eilene M.D.,
Rittger, Relators.
No. 01-05-00173-CV. Texas, Appeals of
Court of (1st Dist.).
Houston
Aug. 28, 2005.
Rehearing Sept. Overruled
450 Lunceford, Munisteri,
Erin Sprott, E. Vincent, P.C., Rigby, Jeffrey Newson H. & Uzick, Sprott Roger Joel Randal A. Houston, TX, Berger, Appellant. Element, Lynn Burridge, J. Element TX, L.L.P., Angleton, Appellee. TAFT, Panel consists of Justices EEYES, and HANES. PETITION FOR
OPINION ON WRIT OF MANDAMUS EEYES, EVELYN Justice. V. Relators, Huag, Eilene R.N. and Eevin Rittger, (together M.D. referred to as rela- In determin- tors) of man- S.W.2d petition for writ have filed a clear abuse has been there ing trial whether about complaining damus relief, mandamus justifying in of discretion party the real granting order court’s2 consider whether court must reviewing Willes, interest’s, Indepen- Harold Dean *3 compelled ruling was one trial court’s of the Estate Administrator dent or was circumstances Jr.’s, by the facts and com- motion to Albert Willes Charles unreasonable, with- or reached arbitrary, testimony. conditional- pel deposition We prin- rules or any guiding out reference requested relief relators’ ly grant Ap- Fourth Court ciples. Johnson of mandamus. petition for writ (Tex.1985); 916, 918 700 peals, S.W.2d Background Inc., Operators, Aquamarine Downer v. (Tex.1985). 238, 241-42 701 S.W.2d interest, Willes, filed a party The real against suit relators malpractice medical Analysis Lia- Texas Medical and others under the (TMLA).3 Relators answered bility Act to inter ask this Court Relators allegations. On Octo- and denied Willes’ TMLA. 74.351 of the pret section Tex. 7, 2004, to de- request (Ver sent a ber Willes § Ann. 74.351 & Rem.Code Civ. PRAC. each relator. Both relators declined. pose 2005). a Statutory interpretation is non In filed a motion to com- response, Canales, Willes In re 52 S.W.3d question of law. testimony of relators. pel deposition (Tex.2001). goal is 698, primary 701 Our granted the trial court hearing, After a legislature’s to ascertain and effectuate 20, compel on October Sinclair, motion to Albertson’s, 984 Inc. v. intent. 24, 2005, peti- filed a February (Tex.1999). so, On relators 958, doing In 960 S.W.2d seeking relief tion for writ of mandamus plain language begin with the statute’s we to vacate the trial court’s from this Court because we assume order, real order. to our and, thus, Pursuant say what it meant tried to response a in interest has filed party guide to its intent. are the surest its words petition relators’ for writ of mandamus. Fixation Spine v. Advanced Fitzgerald (Tex. Inc., 864, 865-66 Sys.,
Mandamus
intent,
1999).
how
legislative
To ascertain
ever,
statute as
look to the
extraordinary
we must
Mandamus is an
provisions.
and not to its isolated
only to correct a whole
remedy that will issue
Wilkins, 47 S.W.3d
Co. v.
of Helena Chem.
of discretion or the violation
clear abuse
(Tex.2001).
ascertaining legis
In
493
duty
adequate
there is no
legal
when
intent,
confine our review
we do not
997 lative
Corp.,
at
In re Masonite
remedy
law.
Willes, Independent Administrator
petition
writ of man-
rold Dean
the second
1. This is
The Fourteenth
Willes Jr. v. Chris-
damus filed
relators.
Charles Albert
the Estate of
opin-
Appeals
Sheffield,
issued memorandum
Hospital,
Court of
Katherine
tus St. John
01077-CV,
ion,
Huag
Rittger,
&
M.D.,
In re
M.D.,
Huag,
14-04—
Rittger,
No.
& Eilene
Kevin
(Tex.App.-Houston [14th
to isolated statutory phrases, or alternative is available. Tex. Univ. of clauses, but we instead examine the entire Med. Southwestern Ctr. at Dallas v. Lout Auto., act. Leasing Mentor Inc. v. Ruan zenhiser, (Tex. 140 n. 20 S.W.3d Co., S.W.3d We 2004) omitted). (quotations consider, among things also other mind, principles With these turn we whether or not the ambiguous, statute is complaints. to the substance of relators’ objectives, the statute’s the circumstances enacted, legis under which the statute was stays of the TMLA law, law, history, lative common former in a malpractice medical suit provisions, similar consequences filed, until the has been un- statutory construction. See Tex. Gov’t *4 excepted.5 It provides: less 311.023(l)-(5) (Vernon 2005). § Code Ann. (s) Until a claimant has served It ais well-settled rule of statu expert report and curriculum vitae tory construction presume that we must (a), by required as Subsection all every that word of a statute has been used discovery in liability a health care for a purpose. Sys., Laidlaw Waste Inc. stayed except claim is for the ac- Wilmer, v. 904 S.W.2d quisition by the claimant of infor- Likewise, presume every we must that mation, including hospi- medical or word excluded from a statute has been tal records or other documents or purpose. excluded for a Id. This rule com tangible things, pa- related to the plements general statutory another con through: tient’s health care principle struction that courts not should except give insert words into a statute (1) discovery written as defined legislative effect to clear intent. Id. More 192.7,6 Rule Texas Rules of Civil over, presume a court of should appeals Procedure; just intended a and reason (2) depositions questions on written in enacting Segal able result a statute. 200,7 under Rule Texas Rules of L.L.C., Capital, Emmes Procedure; and Civil (Tex.App.-Houston no [1st Dist.] (3) discovery nonparties from under pet.). appellate An court should not con 205,8 Rule Texas Rules of Civil strue a statute in a that manner will lead to a foolish or absurd result when another Procedure. 74.351(a) requires any person
5. Subsection a claimant to written before author- expert report by file an and a curriculum vitae of ized law to take on written 200(a). expert report each questions.” listed in the not later than notice Tex.R. Civ. P. day request production the 120th after the date the claim was include a for of docu- 200.1(b). filed. See Tex. Civ. Prac. Id. at ments. Rem.Code Ann. 74.351(a) (Vernon 2005). § following types 8.Rule 205.1 allows the of discovery 6. Rule 192.7 (1) defines written as "re- nonparty: depo- a from oral disclosure, quests requests production sition; (2) for for deposition questions; a on written inspection tangible (3) and of and documents production request a of documents or for things, requests entry property, onto inter- tangible things with a of served notice rogatories, requests and for admission.” questions; tion on oral examination or written 192.7(a). (4) Tex.R. Civ. P. request production of documents tangible things deposition, without as provided by party "take rule 205.3. See TexR. Civ. P. Rule 200 allows the testi- 205.1(a),(b),(c), (d). entity mony any person by deposition on expert filing the claimant’s before Tex. PRAC. & Civ. Rem.Code (Vernon 2005). 74.351(s)(l)-(3) types report exception with in that sub discovery expressly referenced 74.351(u) provides, however: Subsection 74.351(u) fur section and (u) Notwithstanding pro- depositions permitted by restricts ther section, after vision to service claim is filed all collec- two tively, may take more than collectively. argue Relators claimants before legislature expressly refer because the required is served on governing depositions rules enced the (a). depositions of non- questions written Tex. & Rem.Code Ann. Crv. PRAC. discovery in defining permitted (Vernon 2005) added).9 (emphasis did not reference but contends Willes governing the rules 74.351(u) expands discovery permitted depo term and did define the parties, permit the claim- 74.351(u), the same sitions ants oral or to take two used in of the term should be definition *5 parties of the non-parties, in addition to expres- under the doctrine of both sections depositions permitted by subsection unius est exclusio alterius.10 We ac sio 74.351(s). argues He that subsections of knowledge depositions that because oral 74.351(u) 74.351(s) independent are expressly are not mentioned in parties and equal provisions of 74.351 and section 74.351(s) exceptions as subsection any that language “notwithstanding permitted by that sub stay, they are other of provision this section” in subsec- 74.351(u) However, subsection is section. 74.351(u) says tion means exactly what it of section independent subsection independently any on other its face: of language, applies, by plain its 74.351, claimants, subsection of section “all notwithstanding subsection. collectively, take not more than two Therefore, that the doc agree we do not depositions before the is al- expression unius est exclusio trine of served.” us subsection terius requires to read They by Relators con as limited the references to disagree. 74.351(s) discovery stays governing permissible tend that subsection rules 74.351(s).11 discovery in a medical action malpractice subsection Beaber, Phillips guage. 9. v. 995 S.W.2d Both subsections & 655, (Tex.1999); & Servicen to section the 2003 658 Allen Sales were added 74.351 in 863, (Tex.1975); 2, 2003, ter, Ryan, Legislative 866 session. See Act June Inc. v. of Inc., Aviation, 10.01, R.S., Leg., Mustang 430 78th ch. 2003 Tex. Marmon 876-877. S.W.2d 187 Gen. Laws expressio also for not view- est exclusio 11.There is another reason The doctrine unius depositions for all 'expression implies ing term as defined means the of one alterius ’ govern- by Mid-Century to rules of others. See Ins. section 74.351 references exclusion Kidd, depositions on ing 273-74 written non- Co. Tex. v. S.W.2d 74.351(s). (Tex. 1999). party depositions deter in subsection The doctrine an aid in is intent, consistently legislative ask us to the term mining but an absolute Relators define rule, throughout just statutory other within section as are other aids to inter subsections 74.351, they pretation presumption refer us to subsections as the but such 74.35l(s) 74.35l(u). The term knowledge acts with court tions, however, interpretations statutory is used elsewhere in stat- lan decisions and argue Relators also given depositions because no effect if unlimited general depositions term is not defined permitted by were subsection 74.351(u), in subsection while depositions Texas Rules and two additional per- were 74.351(u). of Civil governing by Procedure 200 and 205 mitted subsection Id. In ad- depositions dressing phrase of non- “notwithstanding any specifically stated, referenced in provision,” sub other the court ejusdem section gen- the rule phrase The notwithstanding any other requires eris general us to construe the (u) provision of this section in subsection term in subsection reporting requirements references the specific types deposi restricted to the imposed by the section and the discov- 74.351(s).12 tions mentioned subsection (s). ery authorized subsection Nev- argument unpersuasive We find this also (u) ertheless, subsection limits num- and for the same reasons: subsection ber of allowed 74.351(u) is an independent subsection of (s) (u) two; places and the disclaimer at the type numerical limitation on the of depo- beginning expressly of subsection (s). permitted by sitions states that all collectively, are imposed limitation is in spite of the ex- allowed to take two “notwith pert report requirements, and notwith- standing any provision other of this sec standing lack of a numerical limita- tion.” See Tex. (s). Civ. Prac. Rem.Code tion on 74.351(u). depositions stayed We conclude (s)13 under subsection are not author- however, rely, Relators also on In (u). ized Miller, re (Tex.App.-Beau S.W.3d 816 *6 mont orig. proceeding), agree reasoning to We with the in Miller. support Miller, their In arguments. the The correct construction Beau of the statute mont Court of Appeals upon harmonizing addressed the turns the language of 74.351(s) 74.351(u). question same with which we are con now subsections and The (1) fronted. The court phrase question discussed the is whether subsection 74.351(u) “notwithstanding any that, other provision” providing and should be as read concluded that it could not mean that in in notwithstanding language the subsection construing limiting discovery by subsection the court a claimant ignore entirely discovery should provi during stay prior the the to of the service 74.351(s). in expert report, sions set forth subsection permits id. at 818. It numerical reasoned the two additional oral or written limitation in anyone by would be to be taken of all claimants ejusdem generis, ute. See Tex. Civ. Prac. & Rem.Code Ann. 12. Under the rule of “when a (Vernon 74.351(k)(2) 2005). general phrase specif- word follows a list of or l(k)(2) expert states than an persons things, general ic or the word or served under section 74.351 used shall not be phrase interpreted only will be to include trial, deposition, proceeding. in a or other persons things type or of the same as those Id. If we were to hold that term the (7th listed.” Dictionary Black’s Law only tions refers on written ed.1999). non-parties and con- sistently throughout section because stayed 13. The under 74.35l(s), the term is so limited in subsection (s) are oral we would also have to conclude that the same pre-suit depositions. and l(k)(2), applies definition to subsection 74.35 unwilling we which are to do. (2) Texas in- in the and argues, as whether together, Willes modification tort, surance, practice and medical that, not- providing as read it should be in language systems; withstanding a permitting claimant take (2) claims and the cost those decrease types dur- number different rationally re- ensure that awards stay to service of ing damages; lated to actual and report, including certain oral (3) manner that will do so in a limits depositions, unduly rights claimant’s restrict total of permitted depositions to a necessary deal than more together, argue. relators all claimants crisis; with the language of the plain Because the statute (4) hospi- to physicians, make available reading, must either we determine permits tals, providers care other health and reading is only one reasonable whether liability against potential protection legislative intent. and consistent with at through mechanism the insurance promulgating In TMLA rates; reasonably affordable find- Legislature Texas listed a number of (5) and health make medical affordable of health ings regarding the current state and available to care accessible more care Texas. See Tex. Civ. PRAC. Rem. Texas; the citizens of (Vernon note § 74.001historical Code (6) make certain 2005) R.S., 2003, 78th Leg., [Act of June modification medical, insurance, legal sys- and 204, 10.11, ch. Tex. Gen. Laws in order to determine whether tems findings 884]. indicated that on rates or not there will be an of health claims number care effect charged pro- medical by insurers being paid out in amounts settlements insurance; liability judgments “inordinately” had increased fessional 1995, affecting professional since medical (7) modifications to the lia- make certain rates; was, liability consequently, there bility relate to health they laws as problem availability in the af- serious liability only and care claims with fordability adequate profession- medical intention of insurance, liability *7 creating al a medical of apply such modifications extend or malpractice insurance crisis with materi- to area of the liability laws delivery impact adverse on the of medi- al system tort legal Texas law. cal and health care and with both direct 2, 2003, § of 78th id. 74.001 June [Act See patients pub- to and and indirect costs the R.S., 204, 10.11, § 2003 Tex. Gen. Leg., ch. lic; adoption to and the of modifications added). 847, We (emphasis 884-885] Laws “medical, legal systems” the insurance and provisions of the mindful former are also for rates medical would lower insurance Liability Insurance Im- of the Medical and Id. liability insurance. Texas, did not provement Act of which legisla- the findings,
Because of these discovery. on any limitations place to purpose improve ture stated that its was 1977, R.S., 19, Leg., ch. April of 65th Act modify system by which health and the 2039, 2064, re- 1977 Tex. Gen. Laws liability claims determined or- care are May 16, Leg., 78th pealed by of Act to: der 10.09, R.S., 204, § Gen. Laws 2003 Tex. ch. (current (1)reduce at Tex. Civ. PRAC. version frequency and se- excessive 2005)) (Vernon § claims & Rem.Code verity liability health care Ann. of 4590i”). (“former improvements article through reasonable legislature’s express The purposes interpret en- We not will statute in acting the TMLA way included the modification such as to part make of it of tort practice the Texas to system de- meaningless. Collier, See Ramirez v. Shannon, crease the cost of health liability Scott, PLLC, care claims unduly restricting without a claim- (Tex.App.-Houston 2003, pet. [1st Dist.] denied). rights. ant’s See Tex. Civ. PRAC. & Rem. We that conclude subsections 74.351(s) 74.351(u) 74.001. With the addition of and can be meaningful Code Ann. 74.351(s) 74.351(u) 74.351(s) subsections and to sec- ly only harmonized if subsection tion the satisfied these limiting is read as each claimant’s discov purposes Act stays discovery now ery prior to report service of the —the prior expert’s report, lifts the but types permitted of discovery by the stay respect specified with of types subsection, dis- rules referenced and covery. See Tex. Civ. Prac. & Rem.Code subsection is read as further lim (u). iting discovery stay during by permit ting collectively, all to take not Significantly, only types discovery of more than two of the types from excepted stay in subsection 74.351(s). by permitted We 74.351(s) are oral only interpreta further conclude that pre-suit depositions. 74.351(s) tion of subsections 74.351(s) stay expressly lifts the with re- purpose fulfills the stated of the TMLA of disclosure, spect requests requests for holding legal down malprac costs thus production, for interrogatories, requests tice insurance costs. admission, depositions for ques- on written tions, non-parties. and oral Accordingly, we hold 74.351(s) limitations on permissible of the TMLA types defines the discovery forms of for permissible discovery excepted each claimant estab- from the imposed lished stay those to service of the ex- provided specifically rules refer- pert’s and that subsection subsection, enced in including, for collectively ex- restricts claimants to taking ample, rule 205’s limitation more than of the types from a to a non-party deposition permitted on writ- during questions, stay. ten a request production examination,
documents with and a request production deposition. without Conclusion Thus, if permitted on our interpretation Based claimants to take two oral 74.351, we conclude that the trial court parties in addition to the oral *8 compelling its discretion in abused relators unlimited number non- deposition testimony. to give We condi- parties and of deposi- an unlimited number tionally grant requested in the relief rela- per- tions on written parties petition tors’ for writ of mandamus and mitted each claimant the trial vacate order court to its order stay imposed of discovery give deposition relators to compelling testi- 74.351(s) prior section to service of the if mony. Mandamus will issue the trial effectively report would be mean- court fails to comply. ingless per- and the detailed articulation discovery in missible HANKS, dissenting.
would be otiose. Justice JR., Justice, HANKS, GEORGE C. AUTOMOBILE SERVICES UNITED
dissenting. ASSOCIATION, Appellant, dissent. I would affirm respectfully I trial and allow the order of the court proceed. Subsection
party depositions Raymond and Arsilia CROFT claimant, filing allows Croft, Appellees. expert report, take two any witness the claimant chooses. tions of No. 05-04-00045-CV. 74.351(u)provides: Subsection Texas, Appeals of Court of (u) Notwithstanding any provi- other Dallas. section, after a claim is filed sion this claimants, collectively, may take not Aug. more than two before required is served (a). Tex. Civ. & Rem.Code PRac. added). (Vernon 2005) lan- (emphasis other “notwithstanding any provi-
guage this
sion of section” says what it on its face: exactly
means
independent of other subsection collectively, “all take more than two Going the expert
before is served.” interpret its ef-
outside “notwithstanding phrase
fect renders provision of this section” mean-
ingless. Nowhere (1) Legislature
does the state being deposed
are immune from under this (2)
subsection or non-parties. to only
limited reason, I hold
For would clear
trial court’s order was not a abuse justifying Be-
discretion mandamus relief. otherwise, majority I re-
cause holds dissent.
spectfully