In re Garza, NO. 17–0395

• Court: Supreme Court of Texas
• Writing for the Court: PER CURIAM.
• Citation: 544 S.W.3d 836
• Parties: IN RE Carolina GARZA, Relator
• Docket Number: NO. 17–0395
• Decision Date: 13 April 2018

544 S.W.3d 836

IN RE Carolina GARZA, Relator

NO. 17–0395

Supreme Court of Texas.

OPINION DELIVERED: April 13, 2018

Michael A. Hatchell, Jeffery E. Pratt, Matthew J. Kita, Brian Gillette, for Carolina Garza.

Douglas E. Chaves, Audrey Mullert Vicknair, for Alex Rodriguez.

Audrey Mullert Vicknair, M. David Frock, for UV Logistics, LLC.

PER CURIAM

In this original proceeding, the plaintiff in a personal injury case arising from a traffic accident seeks mandamus relief from trial court discovery sanctions. The trial court judge in Jim Wells County, where the case is pending, denied plaintiff Carolina Garza's motion for protective orders regarding discovery sought from some of Garza's medical providers. The custodians of the medical providers' records are located and were served in Bexar County, are not parties to the lawsuit, and did not participate in the hearing on Garza's motion in Jim Wells County. The

544 S.W.3d 838

custodians subsequently sought, and were granted, protective orders in Bexar County. After the Bexar County district court judge issued his order, the Jim Wells County district court judge granted the defendants' motion to exclude and ordered the following to be excluded from trial as sanctions: (1) testimony by the surgeon who performed spinal surgery on Garza; (2) testimony by employees and agents of the clinic where the surgeon practiced and the hospital where the surgery took place; (3) medical records of the surgeon, his clinic, and the hospital; and (4) charges of the surgeon, his clinic, and the hospital related to Garza.

We conditionally grant relief.

The lawsuit underlying this matter resulted from a collision between a car driven by Garza and a truck owned by UV Logistics, LLC and driven by one of its employees, Alex Rodriguez (collectively, Logistics). After the accident, Garza sought medical treatment in San Antonio at Alamo Neurosurgical Institute (ANI), Dr. Michael Leonard's privately owned practice. On May 2, 2014, Dr. Leonard performed a two-level fusion on Garza's cervical spine at Foundation Surgical Hospital of San Antonio (FSH), where Dr. Leonard is an investor and part owner. Garza was discharged from FSH on May 4, 2014.

Garza sued Logistics in Jim Wells County. In response to requests for disclosure, Garza claimed the amount of her past medical expenses was "more than $320,473.74." That amount included $75,000 for three hours' use of an operating room, $77,705 for supplies used during surgery, and a total hospital bill of over $183,000. Dr. Leonard's charges exceeded $60,000. Garza's disclosures set out that she was claiming damages for

a. Reasonable medical care and expenses in the past;

b. Reasonable and necessary medical care and expenses, which will, in all reasonable probability be incurred in the future;

c. Physical pain and suffering in the past;

d. Physical pain and suffering, which will, in all reasonable probability be suffered in the future;

e. Physical impairment and disability in the past;

f. Physical impairment and disability, which will, in all reasonable probability be suffered in the future;

g. Loss of wages in the past;

h. Loss of past and future earning capacity;

i. Mental anguish in the past;

j. Mental anguish that will in all reasonable probability be suffered in the future;

k. Physical disfigurement in the past and, which will, in all reasonable probability, be suffered in the future;

l. Cost of medical monitoring and prevention in the future;

m. Exemplary damages; and

n. Property damage to her vehicle.

Garza designated Dr. Leonard as a testifying expert witness and noticed his deposition. Logistics cross-noticed his deposition and had a subpoena duces tecum issued designating several categories of documents that Dr. Leonard was to produce at his deposition. The documents included medical and billing records pertaining to his treatment of Garza, records relating to his billing practices generally, and previous deposition and trial testimony he had given on behalf of patients represented by the Thomas J. Henry law firm which was representing Garza. Logistics acknowledges that the documents subpoeaned, in part, were sought as part

544 S.W.3d 839

of an effort to (1) show that Dr. Leonard, FSH, and ANI were financially connected with the Henry law firm; (2) cast doubt on Dr. Leonard's credibility; and (3) support Logistics' position that the medical procedures performed by Dr. Leonard were not necessary nor were the charges for them reasonable in amount.

Dr. Leonard did not produce the subpoeaned records at his deposition. He testified that he did not receive the subpoena, even though the subpoena's return reflected that it was served on him and someone signed his name acknowledging receipt of it. Dr. Leonard testified that he could not recall details of his previous experiences with the Henry law firm and explained that he employs an office administrator to handle all of his records. Logistics then noticed the depositions of and had subpoenas duces tecum issued to Whitney McClain, custodian of records for ANI in Bexar County, and Marianne Palacio, custodian of records for FSH, also located in Bexar County. McClain and Palacio were subpoenaed to produce many of the same documents subpoenaed from, but not produced by, Dr. Leonard. Garza filed a motion to quash in Jim Wells County and Logistics responded with a motion to compel. Following a hearing, the Jim Wells County district court judge ordered the depositions of McClain and Palacio to proceed and directed that the designated documents be produced.

McClain and Palacio, who are not parties to the underlying suit, were served with reissued subpoenas in Bexar County, where they work. They retained counsel and sought protective orders from the 225th District Court of Bexar County, objecting to the order to produce the subpoenaed documents and arguing that the documents contained private, confidential, and privileged business information as well as patient information that could not legally be disclosed under federal regulations. The Bexar County district court judge granted relief.

Logistics responded by moving in Jim Wells County to exclude Dr. Leonard as an expert witness and to exclude recovery of medical expenses from Dr. Leonard, ANI, and FSH. The Jim Wells County district court judge granted Logistics' motion to exclude and issued an order excluding for all purposes (1) Dr. Leonard as an expert witness; (2) expert or fact testimony by all agents, representatives, and employees of ANI and FSH; (3) evidence in any form concerning Garza's charges for her treatment by Dr. Leonard, ANI, and FSH; and (4) all medical records from Dr. Leonard, ANI, and FSH regarding Garza.

Garza sought, but was denied in a non-substantive opinion, mandamus relief from the court of appeals. No. 04-17-00096-CV, 2017 WL 1161169, at *1 (Tex. App.—San Antonio, Mar. 29, 2017).

In seeking relief here, Garza cites TransAmerican Natural Gas Corp. v. Powell , where we said,

[A] direct relationship must exist between the offensive conduct and the sanction imposed. This means that a just sanction must be directed against the abuse and toward remedying the prejudice caused the innocent party. It also means that the sanction should be visited upon the offender. The trial court must at least attempt to determine whether the offensive conduct is attributable to counsel only, or to the party only, or to both.

811 S.W.2d 913, 917 (Tex. 1991) (emphasis added). She contends there is no...