In re Bertrand

• Decision Date: 16 April 2020
• Docket Number: No. 02-20-00028-CV,02-20-00028-CV
• Citation: 602 S.W.3d 691
• Parties: IN RE Skipper Joel BERTRAND, M.D., Charles Yieng-Chu Su, M.D., and Beacon Emergency Services Team, P.A., Relators
• Court: Texas Court of Appeals

602 S.W.3d 691

IN RE Skipper Joel BERTRAND, M.D., Charles Yieng-Chu Su, M.D., and Beacon Emergency Services Team, P.A., Relators

No. 02-20-00028-CV

Court of Appeals of Texas, Fort Worth.

Delivered: April 16, 2020

ATTORNEYS FOR RELATOR SKIPPER JOEL BERTRAND, M.D.: CASEY C. CAMPBELL, NICOLE L. MARCIANO, SCHELL COOLEY RYAN CAMPBELL LLP, ADDISON, TEXAS.

ATTORNEYS FOR RELATORS CHARLES YIENG-CHU SU, M.D. AND BEACON EMERGENCY SERVICES TEAM, P.A.: RUSSELL W. SCHELL, CALEB ARCHER, SCHELL COOLEY RYAN CAMPBELL LLP, ADDISON, TEXAS.

ATTORNEYS FOR REAL PARTIES IN INTEREST LORI AND MICHAEL RAWSON : MICHAEL J. HENRY, MICHAEL J. HENRY, ATTY. AT LAW, P.C., FORT WORTH, TEXAS, ROBERT W. HAMMER, FORT WORTH, TEXAS.

Before Gabriel, Womack, and Wallach, JJ.

Opinion by Justice Wallach

This is a mandamus action arising from the trial court's denial of the joint motion for leave to designate responsible third parties filed by Relators Skipper Joel Bertrand, M.D., Charles Yieng-Chu Su, M.D., and Beacon Emergency Services Team, P.A. (movants). See Tex. Civ. Prac. & Rem. Code Ann. § 33.004(a), (d). Real Parties in Interest Lori and Michael Rawson (plaintiffs) objected to the motion, contending that movants had not complied with their obligation to timely disclose the two doctors named in the motion as responsible third parties under Rule 194.2(l) of the Texas Rules of Civil Procedure, as required by Section 33.004(d). Tex. Civ. Prac. & Rem. Code Ann. § 33.004(d) ; Tex. R. Civ. P. 194.2(l). The trial court overruled plaintiffs' objection in part, holding that movants had no duty to respond to plaintiffs' requests for disclosure before plaintiffs' limitations against the responsible third parties expired. However, the trial court also sustained plaintiffs' objection in part because movants, after plaintiffs' limitations against the responsible third parties expired, failed to seasonably supplement their discovery responses regarding responsible third parties. We hold that movants' conduct, in failing to respond and seasonably supplement disclosure responses regarding potential responsible third parties after plaintiffs' limitations had expired against the potential responsible third parties, was immaterial to whether movants failed to timely disclose potential responsible third parties for purposes of Section 33.004(d). See Tex. Civ. Prac. & Rem. Code Ann. § 33.004(d). Therefore, we conclude that the portion of the trial court's order denying movants' joint motion for leave to designate responsible third parties constituted an abuse of discretion. We conditionally grant the writ of mandamus.

Factual Background

This case involves a health care liability claim. Plaintiffs sued multiple defendants arising from Mrs. Rawson's care and treatment over a several-day period. Plaintiffs claimed that defendants were negligent in failing to timely diagnose and treat an infection in her spine, resulting in paralysis. Movants are three of the defendants. Movants allegedly provided care and treatment to Mrs. Rawson on May 16–17, 2016, in the emergency department at Baylor Medical Center at Grapevine. For purposes of our discussion on limitations, we will use May 17, 2016, as the operative date.

On April 10, 2018, plaintiffs served a notice of health care liability claim on movants. On June 11, 2018, plaintiffs filed their original petition with request for disclosure, which included a request for the identity of potential responsible third parties. On June 13, 2018, Beacon was served with the petition and request for disclosure. On June 22, 2018, Dr. Su was served, and Dr. Bertrand was served on June 27, 2018. On June 28, all three movants filed their original answers. Beacon's disclosure responses were due August 2, 2018, Dr. Su's on August 11, 2018, and Dr. Bertrand's on August 16, 2018. However, the statute of limitations on plaintiffs' claims expired on July 31, 2018, before any of the disclosure responses were due. See id. §§ 74.051(c), 74.251.

On August 9, 2018, movants served their responses to the disclosure requests. In those responses, movants did not assert that discovery was stayed or otherwise object to answering the requests as to responsible third parties. They did not identify anyone as a potential responsible third party.

Movants served their first supplemental responses to the requests for disclosure on September 6, 2019, but did not identify the alleged responsible third parties. Shortly thereafter, on September 30, 2019, movants disclosed Dr. Horowitz as an expert witness who, by disclosure and in his report, was critical of both Dr. Aryan and Dr. Boggaram, other doctors who had participated in Mrs. Rawson's care on May 16–17. Movants served their second supplemental disclosure responses on November 4, 2019, disclosing Drs. Aryan and Boggaram as potential responsible third parties. That same day, more than sixty days before trial, movants filed a joint motion for leave to designate wherein they sought permission from the trial court to designate Drs. Aryan and Boggaram as responsible third parties. The parties then filed a series of objections and responses.

The positions of the parties may be summarized as follows: Movants contend that the date relevant to timeliness of disclosure of responsible third parties is the date of the expiration of limitations on plaintiffs' claims against the responsible third parties, assuming there is a duty to disclose by that date. Any failure to disclose or supplement such information after the expiration of limitations is not relevant to Section 33.004(d). See id. § 33.004(d).

Plaintiffs contend that through pre-suit notice-of-claim document production and record releases, movants had adequate opportunity to investigate the facts of the case, including the roles of Drs. Aryan and Boggaram, such that movants could have disclosed them and should have been required to disclose them before July 31, 2018, to preserve their ability to later designate them as responsible third parties. Further, plaintiffs contend that the timeliness-of-disclosure obligation extends past the expiration of plaintiffs' limitations against the responsible third parties. They argue that if a failure to timely disclose in response to a request for disclosure occurs after limitations has expired, then such constitutes a defense to allowing the designation of responsible third parties under the wording of Section 33.004(d). See id. In this regard, plaintiffs contend that movants had ample opportunity to disclose Drs. Aryan and Boggaram as potential responsible third parties long before they sought to designate them. As a result, they were not timely supplemented and movants are not entitled to designate them. Plaintiffs also contend that the opinions designated in Dr. Horowitz's report regarding Drs. Aryan and Boggaram were exposed as frivolous when his deposition was taken shortly before the scheduled trial date.

On January 15, 2020, the trial court heard the movants' joint motion for leave to designate and related pleadings. At the end of the hearing, the trial court took the matter under advisement. Later that day, the trial court signed an order denying the joint motion for leave to designate, stating no reasons for the ruling. On January 21, 2020, the trial court made a supplemental ruling on the record during a pretrial hearing, explaining the rationale for its denial of the joint motion for leave to designate. The trial court stated that movants had no duty to disclose Drs. Aryan and Boggaram as of July 31, 2018, when limitations expired. However, the trial court found that movants did have an obligation to disclose the two potential responsible-third-party doctors with their original disclosure responses on August 9, 2018, and as of September 6 and September 30, 2019, when other disclosures were supplemented, but no disclosure was made of Drs. Aryan and Boggaram. In short, movants failed to timely supplement their disclosure responses after limitations expired, thereby depriving them of their right to designate these responsible third parties.

Discussion

I. Standard of Review

Movants must establish that the trial court clearly abused its discretion in denying their joint motion for leave to designate responsible third parties to prevail on their petition for writ of mandamus. In re H.E.B. Grocery Co. , 492 S.W.3d 300, 304 (Tex. 2016) (orig. proceeding); In re Dakota Directional Drilling, Inc. , 549 S.W.3d 288, 290 (Tex. App.—Fort Worth 2018, orig. proceeding). A court abuses its discretion if it fails to analyze or apply the law correctly. In re Sw. Bell Tel. Co. , 226 S.W.3d 400, 403 (Tex. 2007) (orig. proceeding); Walker v. Packer , 827 S.W.2d 833, 840 (Tex. 1992) (orig. proceeding); Dakota Directional Drilling , 549 S.W.3d at 290. A trial court has no discretion in determining what the law is or in applying the law to the facts, even when the law is unsettled. In re Prudential Ins. Co. of Am. , 148 S.W.3d 124, 135–36 (Tex. 2004) (orig. proceeding); In re Bustamante , 510 S.W.3d 732, 735 (Tex. App.—San Antonio 2016, orig. proceeding).

Movants must also establish that they have no adequate remedy at law. See Dakota Directional Drilling Inc. , 549 S.W.3d at 290. However, there is no adequate remedy at law when a trial court denies a timely filed motion for leave to designate a responsible third party under Texas Civil Practice and Remedies Code Section 33.004(a). In re Mobile Mini, Inc. , No. 18-1200, 596 S.W.3d 781, 787-88 (Tex. Mar. 13, 2020) (orig. proceeding); In re Coppola , 535 S.W.3d 506, 510 (Tex. 2017) (orig. proceeding).

II. Statutory and Rules Framework for Designating Responsible Third Parties

Designation of responsible third parties is governed by Section 33.004 of the Texas Civil Practice and Remedies Code. Tex. Civ. Prac. & Rem. Code Ann. § 33.004. Subsection (a) provides:

A defendant may seek to designate a person as a responsible third party by filing a motion for leave to designate that person as a responsible third part

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