Russell v. Young
| Citation | 452 S.W.2d 434 |
| Decision Date | 25 March 1970 |
| Docket Number | No. B--1953,B--1953 |
| Parties | Thurmon A. RUSSELL et al., Relators, v. Horace YOUNG, District Judge, Respondent. |
| Court | Supreme Court of Texas |
Edwards & De Anda, William R. Edwards, Francis I. Gandy, Jr., Corpus Christi, for relators.
Branscomb, Gary, Thomasson & Hall, Gary Norton, Corpus Christi, for respondent.
This is an original mandamus proceeding precipitating out of a workman's compensation lawsuit filed by relator Thurmon A. Russell against Hardware Dealers Mutual Fire Insurance Company. Relator Dr. James C. Sharp (hereinafter referred to as 'relator') has examined and treated Russell and is apparently scheduled to testify during the trial as a medical expert for Russell. Under Rule 202, T.R.C.P., Hardware Insurance Company filed a notice and request to take the deposition of relator, together with a subpoena duces tecum requiring him to produce certain medical, accounting and financial records. The subpoena, dated December 17, 1969, was in regard to relator's possible bias and prejudice. Thereafter, relator filed a Motion to Quash the subpoena duces tecum. Following a hearing, Honorable Horace S. Young, Judge of the 117th Judicial District (hereinafter referred to as 'respondent') sustained relator's Motion to Quash as to some of the items listed in the subpoena duces tecum and overruled the Motion to Quash as to the other items, with certain limitations. As a result of respondent's order of January 13, 1970, relator must appear before the 117th District Court for the taking of his deposition and the production of the following items:
(1) Any and all files, records, reports, statements, memoranda, X-rays or other tangible things concerning or used in connection with any examination, treatment or care of Thurmon A. Russell for any injury occurring on or about March 28, 1968, or any other injury, disease, sickness or infirmity of Thurmon A. Russell;
(2) All appointment books maintained by relator during 1969;
(3) All statements, listings, ledgers or other books showing the accounts receivable of relator during 1969;
(4) All deposit slips or tickets showing deposits into bank accounts of relator during 1969;
(5) All statements, listings, ledgers, journals, or other books showing receipt of payments, either in cash, by check or any other means during 1969;
(6) All statements of account or bills for services rendered during 1969;
(7) All accounting ledgers, journals or other books of account of relator maintained during 1969; and
(8) All financial statements showing income and expenses of relator during 1969.
Relators request this Court to issue a Writ of Mandamus to respondent, ordering him to vacate his order of December 17, 1969, except insofar as it relates directly to Thurmon A. Russell.
The question to be decided is whether the records of a potential witness in a lawsuit are discoverable prior to trial in instances where the potential witness is not a party to the lawsuit and whose credibility has not been put in issue and where the records do not relate directly to the subject matter of the pending suit and are sought to be discovered for the sole purpose of impeachment of such witness by showing his bias and prejudice. We hold that under such circumstances, such records 1 are not discoverable. Therefore, respondent had no authority to order relator to produce items two through eight listed above. Relator's Motion to Quash as to items two through eight listed above should have been sustained.
It is undisputed that relator is not a party to the lawsuit between Russell and Hardware Insurance Company. It is undisputed that the records in question are not material to the subject matter of the pending suit except insofar as they might relate to relator's possible bias and prejudice. Likewise, it is undisputed that the sole purpose for which the records are sought to be discovered is to show relator's possible bias and prejudice.
Hardware Insurance Company contends that relator frequently testifies for personal injury claimants, that many of his patients are referred to him by attorneys, and that a substantial portion of his income is received from attorneys or from patients referred to him by attorneys. To prove these contentions, Hardware Insurance Company has sought to discover relator's accounting and financial records, to be used to show bias and prejudice and thereby reduce relator's credibility as a witness before the jury in the pending lawsuit.
It is true that in order to show bias and prejudice an expert medical witness may be cross-examined regarding the number of times he has testified in lawsuits, payments for such testifying and related questions. Traders & General Ins. Co. v. Robinson, 222 S.W.2d 266 (Tex.Civ.App.1949) writ ref'd; Horton v. Houston & T.C. Ry. Co., 46 Tex.Civ.App. 639, 103 S.W. 467 (1907) writ ref'd; and Barrios v. Davis, 415 S.W.2d 714 (Tex.Civ.App.1967) no writ hist. We do not disturb the law governing the cross-examination of witnesses to show bias and prejudice. However, the law governing cross-examination does not necessarily govern discovery of records. Apparently the law governing cross-examination prompted respondent's order because the record reflects that respondent stated that '* * * frankly, what we are trying to do is comply with this Barrios case at 415 2nd 714.'
This mandamus proceeding involving pre-trial discovery of records of a potential witness for impeachment purposes is a case of first impression in this State. The primary cases cited in the briefs by relators and respondent are Lehnhard v. Moore, 401 S.W.2d 232 (Tex.1966); Maresca v. Marks, 362 S.W.2d 299 (Tex.1962); Neville v. Brewster, 163 Tex. 155, 352 S.W.2d 449 (1962); Crane v. Tunks, 160 Tex. 182, 328 S.W.2d 434 (1959); Texhoma Stores, Inc. v. American Central Insurance Co., 424 S.W.2d 466 (Tex.Civ.App.1968) writ ref'd, N.R.E.; Barrios v. Davis, supra; Alice National Bank v. Edwards, 408 S.W.2d 307 (Tex.Civ.App.1966) no writ hist.; Hudson v. Smith, 391 S.W.2d 441 (Tex.Civ.App.1965) writ ref'd, N.R.E.; Traders & General Ins. Co. v. Robinson, supra; and Horton v. Houston & T.C. Ry. Co., supra. We...
To continue reading
Request your trial
-
Walker v. Packer
...stating in part: [S]uch requested discovery is improper pursuant to the Rulings of the Supreme Court of Texas in Russell v. Young [452 S.W.2d 434 (Tex.1970) ], as the potential witness is not a party to the suit and the records do not relate to the subject matter of the suit, but are sought......
-
Wilson v. Stilwill
...321 Mo. 952, 954, 13 S.W.2d 547, 548 (1929). See, also, Ager v. Baltimore Transit Co., 213 Md. 414, 132 A.2d 469 (1957), Russell v. Young, 452 S.W.2d 434 (Tex., 1970), and Barrios v. Davis, 415 S.W.2d 714 (Tex.Civ.App.1967). In Murero v. Reinhart Lumber Co., 85 Cal.App. 385, 259 P. 494 (192......
-
State ex rel. Lichtor v. Clark
...his bias, and the weight to be accorded his testimony." U.S. v. IBM Corp. 66 F.R.D. 215 (S.D.N.Y.1974); contra, Russell v. Young, 452 S.W.2d 434 (Tex.1970) (financial records of physician witness were not discoverable for purposes of showing financial interest of physician as frequent testi......
-
Pelt v. State Bd. of Ins.
...correct the error and set aside the order. Commercial Travelers Life Ins. Co. v. Spears, 484 S.W.2d 577, 578 (Tex.1972); Russell v. Young, 452 S.W.2d 434 (Tex.1970). Thus, while an aggrieved party may not be entitled to appeal, he may be entitled to seek relief from the trial court's order ......