Chief Justice Darlene Byrne
In re Westside Roofing, LLC and Paul Scott Lowery (No. 03-23-00219-CV; January 5, 2024) arose from a commercial trucking case in which plaintiff alleged neck and back injuries from a collision with a roofing company’s pickup truck. Plaintiff asserted negligence and gross negligence against the employee driver and against the employer under a respondeat superior theory. He also asserted claims for negligent hiring, training, supervision, retention, and entrustment, as well as failure to implement and maintain a safety program. Plaintiff sought more than $1 million in damages for injuries to his back and neck.
Based on discovery showing that plaintiff had previously been treated and had received an MRI for back and neck pain, defendant employer served notices of intention to take deposition by written questions with subpoenas duces tecum on four of plaintiff’s healthcare providers for six years prior to the accident. Plaintiff moved to quash, asserting that the notices were overbroad, not limited in time and scope, unduly burdensome, and harassing, and that they sought irrelevant and inadmissible evidence. Plaintiff likewise objected to each request to the extent it asked for records regarding any part of the body not limited to those injured in the accident. The trial court granted plaintiff’s motion. Defendant sought mandamus.
The court of appeals conditionally granted mandamus and ordered the trial court to permit the discovery. In an opinion authored by Chief Justice Byrne and joined by Justices Triana and Theofanis, the court’s analysis hinged on SCOTX’s recent decision in In re Liberty Cnty. Mut. Ins. Co. (No. 22-0321; November 17, 2023) (reported on this site on November 21, 2023). As you may recall, Liberty involved a first-party UIM claim in which the trial court quashed the insurer’s discovery request for the previous six years of medical records from plaintiff’s primary care physician. During that period, as the insurer discovered, plaintiff had been involved in five other carwrecks, some of which involved injuries of the same type she alleged in her lawsuit. SCOTX granted the insurer’s mandamus petition, holding that plaintiff, by filing the lawsuit, placed her prior medical condition at issue, both as to causation and damages, and that denying discovery would “vitiate[] or severely compromise[] [the insurer’s] ability to present a viable defense at trial.” SCOTX held further that the insurer’s request was not overly broad because it did not involve “an unreasonably long time period” and that “evidence of the injured person’s pre-occurrence condition” was certainly relevant. Finally, the insurer had no adequate remedy on appeal because it couldn’t develop an adequate defense without the discovery and “the information sought [could not] be part of the appellate record, making it difficult, if not impossible, to determine on appeal whether its absence at trial affected the outcome.”
The court of appeals found very little distinguishing the present case from Liberty, even pointing out that defendant employer’s discovery requests were narrower than the information sought in that case. The court also noted that the trial court’s order quashing the discovery showed no evidence that the court had applied the appropriate proportionality factors. While the court of appeals made it clear that they were not prejudging the admissibility of the discovery, it held “that the requests are reasonably calculated to lead to admissible evidence.”
This is a strong defense opinion and a faithful application of recent SCOTX authority. Again, we appreciate it every time a court of appeals has to hold a trial court’s feet to the fire when it comes to applying the law.
