In Re Temple

issues; instead, related MORRISS, C.J., Before CARTER and limited responsible be to who was MOSELEY, JJ. selecting replacement appara- the knee tus that ultimately implanted was into OPINION Christophersen’s leg. Opinion by Chief Justice MORRISS. The trial court granted1 Christopher- request. Temple petitioned2 sen’s has During replacement surgery Court for a writ directing of mandamus performed November on Robert court to vacate its order knee, Christophersen’s right the knee re- Christophersen depose Temple. placement implanted device into the knee apparatus was an designed to be fit into a Temple asks this Court to' issue a writ of joint. Christophersen knee ini- seeks Christophersen mandamus because “failed left pre-suit tial discovery to determine who to satisfy proving burden of an entitle- his sue. ment to a Rule of [Tem- ple].” See Tex.R. P. 202. He further Christophersen originally sought per- that, subject asserts because the matter of mission from the trial court to take the necessarily lawsuit will depositions in antici- people several malpractice, concern medical Section pation filing lawsuit Samuel 74.351 of the Texas Civil Practice and M.D., Drew orthopedic sur- prohibits Remedies Code geon at Regional Paris Medical Center Temple’s deposition filing before the Orthopedic and Paris Clinic who required expert report. Chistophersen’s surgery, formed along others; Rowlan, including with D. conditionally grant Temple’s applica- Steven We (another M.D., because, orthopedic surgeon although at Paris tion Regional Medical Center and Paris Ortho- did not abuse its or violate a discretion (of Clinic), pedic DePuy duty imposed Van Neilson Or- on it under Rule thopaedics, supplier inqui- of the knee re- trial court’s order does not exclude permitted peti- 1. The trial court’s order mandamus from this Court and that this Temple and Neilson but shortly writ be- tion for of mandamus comes limited the duration to for- Christopher- anniversary fore the second ty-five minutes. surgery. sen’s The statute of limitations for personal injury years. lawsuit is two 2. We note record before us indicates (Ver- § Tex. Civ. Prac. & Rem.Code Ann. 16.003 permitting Temple’s the trial court's order Supp.2007). non deposition had been on file for more than Temple sought three months before a writ of outweighs claim which are forbidden

ries of procedure.” expense burden or 202.4(a). Tex.R. Civ. P. Mandamus issues when the Christopherseris complains that (1) a clear mandamus record establishes seeking deposition the petition verified abuse of discretion or the violation of a justice how would be does not articulate duty imposed by law and the absence of delayed by disallowing the prevented or adequate remedy a clear and law. Can Temple. Additionally, Tem- deposition of (Tex.1994) Longoria, tu v. 878 S.W.2d 131 could ple Christophersen asserts that Packer, v. 827 (orig.proceeding); Walker merely request complete copy a of his (Tex.1992) 833, (orig.pro S.W.2d 839-40 the thereby record and obtain medical ceeding); Pilgrim’s Corp., In re Pride 187 via same information he seeks to obtain (Tex.App.-Texarkana S.W.3d information- deposing Temple. Such an 2006), (orig. proceeding). Mandamus is an gathering procedure, contends extraordinary remedy that will issue provide less onerous and would both be or, to correct a clear abuse of discretion complete remedy Christophersen with statutory remedy, the absence of another discovery problem. Temple also for his when the trial court fails observe correctly Christophersen pre- notes that mandatory statutory provision conferring a at the on his sented no evidence right forbidding a action. particular or deposition application, evidence that could (Tex. Black, Abor v. 695 S.W.2d deposing Temple show how the benefits of 1985) (orig.proceeding). A trial court outweigh expenses the burdens and abuses its discretion when it acts without attendant thereto. any guiding princi reference to rules or ples arbitrary or when it acts in an or However, despite Temple’s erroneous Aqua unreasonable manner. Downer v. contrary, Christophersen did claim to the Inc., Operators, marine 701 S.W.2d present argu- the trial court with several (Tex.1985). why taking Temple’s ments the benefits deposition filing suit would out- before (1) The Trial Court Did Not Abuse Its expenses associat- weigh the burdens or Duty Imposed Discretion Violate a forty-five-minute deposition ed with the on It Under Rule 202 trial theo- granted court. One such ry by Christophersen The Texas Rules of Civil Procedure before advanced permit person petition possibility trial court was the knee authorizing replacement “for manufacturer of providing prosthetic negligent on oral examination or written “was ” (a) perpetuate prosthetic According either: or ob device.... Chris- testimony tophersen, Temple’s deposition tain or that of if revealed person’s own suggesting pro- in an the manufacturer person anticipated another for use evidence (b) suit; wrong prosthetic, claim vided the then Christo- one of pherseris P. 202.1. To cause of action would be or suit.” Tex.R. manufacturer, rath- deposition, negligence against the trial court must find “(1) than a lawsuit the doctor for allowing petitioner to take the er By determining such may malpractice. a failure medical requested deposition prevent suit, suit; Christophersen justice in an in advance of delay anticipated unnecessary suing likely hoped benefit of avoid of re- irrelevant theories petitioner requested deposition potentially to take the under covery. carefully also Christophersen report require- avoid the crafted discovery stay ments and out in promised the trial court that he would set section 74.351, subverting legislature’s stated deposing Temple concerning any avoid in passing “standard of care” intent the statute.” Id. at 839. issues associated with this case. Raja, In In re the Eleventh Court of by permit- held a trial court erred (2) The Trial Order Does Not Ex- Court’s ting McGruder to take the Ulanda Inquiries clude Are Which Forbidden Raja, of Pill M.D. 216 S.W.3d by Section 71.351 appellate pur- 409. The court found the argues also that Rule 202 pose pre-suit deposition was “to provide exception cannot an to investigate potential liability Section a health care prohibition against allowing 74.351’s a Rule claim.” at specifically, Id. 405. More potential 202 a sought depose had the doctor McGruder liability support health care claim. In of learning in of hopes “what kind of medical position, Raja, his he cites In re 216 she her during pregnancy, care received 404, 2006, (Tex.App.-Eastland labor, S.W.3d 409 delivery and and to determine if she orig. proceeding conditionally [mand. should file suit.” Id. at 406. The East- granted]); court, and In re Memorial Hermann thoughtful land in a and considered Hospital System, 209 S.W.3d 840-41 opinion, reviewed both Section 74.351 and (Tex.App.-Houston orig. [14th Dist.] of Rule 202 of the Texas Rules Civil Proce- proceeding conditionally granted]). dure, judicial legislative [mand. as well as the and each, purposes behind and concluded that In In Hospital re Memorial Hermann may the rule not be used to carve out an System, Appeals the Fourteenth Court of prohibition against to the law’s exception in reviewed situation which trial court before the deposing providers medical care granted had petition conduct in expert report a health care filing of physicians regarding of two liability at 406-09. The court lawsuit. Id. emergency they provided medical care statute con- specifically noted that “[t]he son, Wendy Guzman’s Tristan. 209 report require- exception tains no to the at S.W.3d 836-37. Fourteenth Court stay inadequate or discovery ment or express purpose of noted that the incomplete medical records.” Id. 409 pre-suit depositions of Guzman’s was to Miller, (referencing In 133 S.W.3d re support contemplated her 2004, orig. (Tex.App.-Beaumont regarding claim Tristan’s medical care. conditionally grant- proceeding [mand. sought Id. at 839. The doctors to be de- ed])). Court, however, ac- The Eleventh posed potential were also listed as adverse Ap- of knowledged that the Twelfth Court original petition. in Id. Guzman’s considered the peals recently had also Legislature The court then noted contrary and reached a conclu- same issue type had forbidden the Allan, (citing In re 191 sion. Id. at 407 Guzman, deposition sought by 2006, orig. (Tex.App.-Tyler S.W.3d Legislature’s trump Rule 202 could denied])). proceeding [mand. conduct, prohibition against clear and Allan, Haynes Siddiqi and In In re the Twelfth Court original mandamus permitted argu- Appeals could not based on the faced similar be Allan, presented proceeding Christopher ments and facts to the trial which M.D., previously permis- other- had denied court. Id. at 839-41. “To conclude been petitioner allow a Rule 202 sion the trial court to take the oral wise would required by expert report videotaped depositions (pursuant to Rule fore (embodied 202) Liability Jordan, M.D., Knarr, Medical Act the Texas of Jack Donald Practice by Chapter 74 of the Texas Civil M.D., representative Tyler and a Car- Code). Remedies See diovascular Consultants. S.W.3d Tex. Prac. & (Vernon §§ 74.001-507 Tyler legisla- 484. The court reviewed the Ann. Rem.Code Supp.2007). 2005 & 74.351, and conclud- history tive prohibition against pre-suit ed that picture. not the full Chris- But that is 74.351(s) depositions provided by Section re- arguable second avenue of tophersen’s cause of ac- “does not include a or the covery the manufacturer Therefore, tion.” Id. at 488. where the replace- incorrect knee provider of the party depose regarding seeks to (or someone joint responsible ment some other enti- (as “potential opposed cause of action” liability ty) theory under a action”), (other live “cause Section 74.351 negligence negligence pro- than care). prohibit deposition. does not a Rule 202 regarding viding health Claims Accordingly, appellate products liability negligent court held the manufac- items are medical trial court abused its discretion forbid- ture-even when those expressly impliedly devices-are not or cov- ding depositions the issue. Id. at 485- See, by Chapter e.g., ered 74. Tex. Civ. 74.001(a)(10) §§ PRAC. & Rem.Code Ann. Initially, we must remain mindful of the (definition “health care” does not ex- arguments and evidence that before were pressly surgically include im- impliedly or the trial court the time it issued its 74.001(a)(ll) (“health devices), planted ruling ninety days than ago. more The expressly not or im- care institution” does suggests arguable record two theories of pliedly include manufacturers of medical recovery against Temple, and thus two during surgery), implanted devices inquiry different areas of in a Temple de- 74.001(a)(12)(A) (“health provider” care position. impliedly does not or include arguable theory The first is that Chris- of health care devices used manufacturers tophersen planned to sue Temple alleging 74.001(a)(13) patients), to cure or treat professional negligence during committed (“health liability care claim” does not ex- replacement surgery. Christo- pressly impliedly or include cause of ac- phersen’s verified petition discussed his liability). tion products Contrast Tex. surgery sought and the 16.012(a)(2) § Crv. PRAC. & Rem.Code Ann. providers. sons who were all health care (Vernon (“products liability” Supp.2007) Thus, blush, Christophersen’s at first com- any cause of action “means action plaint only seems to relate to whether he recovery a manufacturer or seller for provided adequate was of care standard allegedly damages or other relief for harm 17, 2005, during surgery. his November by product, caused a defective whether necessarily Such a lawsuit would be a liability, tort the action is based strict suit; such, liability health care as liability, mis- negligence, strict impermissible would be un- express breach of or im- representation, Christophersen’s der If plied warranty, any theory or other or argu- theories, original petition subsequent and his combination of and whether the ments before the trial court are viewed sought recovery damages relief is or relief, only light, in this forced to any legal equitable we would be other or includ- (A) by permit- injury damage conclude the trial court erred or to or ing suit for (B) per- ting Chistophersen depose Temple personal property; be- loss of real or (C) (D) death; by injury; -wrongful sonal eco- made counsel at the (E) hearing. loss; declaratory, injunctive, nomic relief”). equitable Christopher- other problem the actual order sen this second of recov- advanced avenue issued the trial court did not out set ery at the before the trial court. dichotomy any either that effective sub- Christophersen’s attor- specifically, More ject-matter Temple’s on deposi- limitation ney trial court: promised the tion: can take Petitioner the oral “[T]he and of Van Neilson Dr. Drew ... I point MR. want to out LESHER: only questions ... with as to the my understanding the that it’s surrounding facts of occurrence the very possible that it’s that a nonhealth- operation performed on Petitioner on No- provided wrong provider care this —the believe, vember we 2005.” While from true, device. And if prosthetic that’s the order sprung, context out which going any then I’m not to sue of these limit intended to court sub- doctors. ject matter to exclude so, deposi- And instead of [the 74.351, questions by Section prohibited anesthesiologist, tions of] as to the and allow source CRNA, Temple, Dr. and Dr. Rowlan— handling implanted of the device in Chris- well, doctor; maybe primary all lim- tophersen’s knee, we cannot rewrite the depositions; representa- ited to two order. of our belief of the Regardless Dr. Dupré pri- tive of order, intent the order its behind mary surgeon. And I’ll talk about allows overly terms is broad and Christo- device, it, got they got who where phersen pror question areas I gave who it to him. want to see the by hibited right I want to see the device. and left reason, conditionally For grant that we I want to litera- knee device. see the Temple’s writ of mandamus. petition for any take ture. And it won’t me time only if We will of mandamus issue writ get through that. all to 13, 2007, by we are not notified November added.) (Emphasis that the trial court has either rescinded its modified it to exclude trial had a examine The court chance to prohibited by Section 74.351. involving situation two divergent theories of potential liability, involving completely MOSELEY, concurring. BAILEY C. different sets of defendants. The fully analysis I agree with involved a care lia- possibility first health overly majority concerning the broad na- bility against possibly doctors other by ture of the order entered The personnel. possi- second of and believe that Section 74.351 the Tex- bility negligence involved as Civil Practice and Remedies Code liability cause of action trumps take under right to joint provider. Taking manufacturer or Rule 202 of Civil Proce- of the Texas Rules pre-suit is forbidden in involving dure matters healthcare liabili- theory; pre-suit under the first ty claims. under the second However, it statutorily I am also convinced that theory is not forbidden. judicial economy in appears have been would be an exercise trial court’s order Temple’s for this manda- dichotomy grant and was is- Court motivated (as would part mus the order sued in the context the concessions depositions pertaining very similar to that reached healthcare liabili- be 74.351) ty it deny majority, claims under Section I this succinct state- will allow (as in part apply my the order to a position ment to serve to state so case). products liability this matter can be returned to as as expeditiously court to be dealt with grant The conditioned of mandamus is possible. thing. Bag not a new In Southern &

Burlap Company Boyd, v. 120 Tex. (1931), trial

S.W.2d 565 court had or- production

dered the of documents. The

entity produce which was ordered to appeal,

documents wanted to but the trial

court supersedeas refused set a bond. Supreme

The Texas directed that Court (1)

the trial court’s order be modified so as agents copies only

to allow the to make litiga- documents related to the

tion; require corporation’s possession

documents be returned to its agents after the had examined them and CAIN, Appellant Shannon depositions; taken certain to allow v. corporation a representative have SAFECO LLOYDS INSURANCE present at all times while the documents COMPANY, Appellee.

were examined. No. 05-06-00487-CV. Very recently, Agents In re General America, Inc., Company Insurance Texas, (Tex.App.-Houston S.W.3d 806 [14th Dist.] Dallas. 2007, orig. proceeding), ap- the court of Nov. peals granted conditionally, mandamus or- dering that discovery order be amended privileged the redaction of infor- (including

mation information about insur- reserves).

ance my

It belief that a in-depth more parameters

recitation of the

missible of an scope

proposed depositions cir- would serve to

cumvent misunderstanding position of this Court and reduce the disagree.

likelihood limitations, looming

Due to statutes of very cause of action has span remaining.

limited life More detailed

explanations my position could be if more

fleshed out time remained which necessary sup-

to conduct the research However,

port it. since the result would

Case Details

Case Name: In Re Temple

Court Name: Court of Appeals of Texas

Date Published: Nov 8, 2007

Citation: 239 S.W.3d 885

Docket Number: 06-07-00128-CV

Court Abbreviation: Tex. App.