in Re: Sandra Mendez

Becker v. State

COURT OF APPEALS

EIGHTH DISTRICT OF TEXAS

EL PASO, TEXAS

IN RE: SANDRA MENDEZ,

Relator.

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No. 08-06-00311-CV

AN ORIGINAL PROCEEDING

IN MANDAMUS

O P I N I O N

Relator Sandra Mendez seeks a writ of mandamus against Respondent, the Honorable Javier

Alvarez, Judge of the County Court at Law No. 3 of El Paso County. At issue is whether a

consulting expert who provides a controverting affidavit as to reasonable and necessary medical

services waives privilege and is subject to deposition. For the reasons that follow, we deny

mandamus relief.

FACTUAL SUMMARY

Daniel Aguilar filed a suit against Sandra Mendez alleging he was injured as a result of an

automobile accident. Pursuant to Section 18.001 of the Civil Practice and Remedies Code, Aguilar

filed a "Notice of Filing Medical Bill Affidavit for Gonzalez Chiropractic Family Practice." Mendez

responded with a controverting affidavit of Dr. Michele Doone, D.C. who stated her qualifications

and opined that much of the treatment provided to Aguilar by the chiropractic practice was

excessive, unreasonable, and unnecessary. As the basis for her opinion, Dr. Doone stated many of

the treatments could have been administered at home after the first week of treatment and there was

excessive use of passive modalities which were medically unnecessary. Additionally, some of the

charges reflected in Aguilar's bills appeared to be for a patient other than Aguilar. Dr. Doone based

her opinions on the standards of general chiropractic practice. Aguilar attempted to notice

Dr. Doone's deposition, but Mendez objected on the ground that Dr. Doone had not been designated

as a testifying expert. Asserting that Mendez had injected Dr. Doone into the case by filing the

controverting affidavit, Aguilar filed a motion to compel. Mendez sought a protective order based

on the consulting expert privilege. Following a hearing, Respondent granted Aguilar's motion to

compel Dr. Doone's deposition. Mendez has filed a petition seeking mandamus relief.

PROTECTION OF CONSULTING EXPERTS

Mendez contends that she is entitled to mandamus relief because the trial court lacked the

discretion to order the deposition of her consulting expert. Aguilar responds that when Mendez used

Dr. Doone's affidavit to controvert the Section 18.001 affidavit, she lost the protection of the

consulting expert privilege. He cites Hilliard v. Heard , 666 S.W.2d 584 (Tex.App.--Houston [1st

Dist.] 1984)(orig. proceeding) and Lummus v. Dean , 750 S.W.2d 312 (Tex.App.--Beaumont

1988)(orig. proceeding) in support of his argument.

Standard of Review

Mandamus will issue only when the mandamus record establishes (1) a clear abuse of

discretion or the violation of a duty imposed by law, and (2) the absence of a clear and adequate

remedy at law. Cantu v. Longoria , 878 S.W.2d 131, 132 (Tex. 1994)(orig. proceeding); Walker v.

Packer , 827 S.W.2d 833, 839-40 (Tex.1992)(orig. proceeding). A court clearly abuses its discretion

if it reaches a decision so arbitrary and unreasonable as to amount to a clear and prejudicial error of

law. Walker , 827 S.W.2d at 839 . The party challenging the trial court's decision as an abuse of

discretion must establish that the facts and the law permit the trial court to make but one decision.

In re University Interscholastic League , 20 S.W.3d 690, 692 (Tex. 2000)(orig. proceeding); Johnson

v. Fourth Court of Appeals , 700 S.W.2d 916, 917 (Tex. 1985)(orig. proceeding). A trial court is

vested with broad discretion in determining the scope of discovery. Ginsberg v. Fifth Court of

Appeals , 686 S.W.2d 105, 108 (Tex. 1985)(orig. proceeding).

Consulting Expert Privilege

The primary policy behind discovery is to seek truth so that disputes may be decided by facts

that are revealed rather than concealed. Tom L. Scott, Inc. v. McIlhany , 798 S.W.2d 556, 559 (Tex.

1990). Privileges from discovery run contrary to this policy but serve other legitimate interests. Id.

The policy behind the consulting expert privilege is to encourage parties to seek expert advice in

evaluating their case and to prevent a party from receiving undue benefit from an adversary's efforts

and diligence. Id. The protection afforded by the consulting expert privilege is intended to be only

a shield to prevent a litigant from taking undue advantage of his adversary's industry and effort, not

a sword to be used to thwart justice or to defeat the salutary objects of discovery. Id .

A testifying expert is an expert who may be called to testify as an expert witness at trial.

Tex.R.Civ.P. 192.7(c). A consulting expert is an expert who has been consulted, retained, or

specially employed by a party in anticipation of litigation or in preparation for trial, but who is not

a testifying expert. Tex.R.Civ.P. 192.7(d). The identity, mental impressions, and opinions of a

consulting expert whose mental impressions and opinions have not been reviewed by a testifying

expert are not discoverable. Tex.R.Civ.P. 192.3(e).

Section 18.001

A claim for past medical expenses must be supported by evidence that such expenses were

reasonably necessary for the plaintiff to incur as a result of his injuries. Walker v. Ricks , 101 S.W.3d

740, 746 (Tex.App.--Corpus Christi 2003, no pet.); Transport Concepts, Inc. v. Reeves , 748 S.W.2d

302, 305 (Tex.App.--Dallas 1988, no writ). There are two methods a plaintiff can utilize to prove

the reasonableness and necessity of past medical expenses: (1) expert testimony; or (2) an affidavit

prepared and filed in compliance with Section 18.001 of the Texas Civil Practice and Remedies

Code. Walker , 101 S.W.3d at 746 ; Rodriguez-Narrera v. Ridinger , 19 S.W.3d 531, 532-33

(Tex.App.--Fort Worth 2000, no pet.).

Section 18.001(b) provides that:

(b) Unless a controverting affidavit is filed as provided by this section, an affidavit

that the amount a person charged for a service was reasonable at the time and place

that the service was provided and that the service was necessary is sufficient evidence

to support a finding of fact by judge or jury that the amount charged was reasonable

or that the service was necessary.

Tex.Civ.Prac.&Rem.Code Ann. art. 18.001(b)(Vernon 1997). A party intending to controvert a

claim reflected by the affidavit must file a counteraffidavit with the clerk of the court and serve a

copy of the counteraffidavit on each other party or the party's attorney of record:

(1) not later than:

(A) 30 days after the day he receives a copy of the affidavit; and

(B) at least 14 days before the day on which evidence is first presented at the

trial of the case; or

(2) with leave of the court, at any time before the commencement of evidence at trial.

Tex.Civ.Prac.&Rem.Code Ann. art. 18.001(e). The counteraffidavit must give reasonable notice

of the basis on which the party filing it intends to controvert the claim reflected by the initial

affidavit and must be taken before a person authorized to administer oaths. Tex.Civ.Prac.&

Rem.Code Ann. art. 18.001(f). The counteraffidavit must be made by a person who is qualified--by

knowledge, skill, experience, training, education, or other expertise--to testify in contravention of

all or part of any of the matters contained in the initial affidavit. Id.

Section 18.001 is an evidentiary statute that accomplishes three things: (1) it allows for the

admissibility, by affidavit, of evidence of the reasonableness and necessity of charges that would

otherwise be inadmissible hearsay; (2) it permits the use of otherwise inadmissible hearsay to support

findings of fact by the trier of fact; and (3) it provides for exclusion of evidence to the contrary, upon

proper objection, in the absence of a properly-filed controverting affidavit. Castillo v. American

Garment Finishers Corp. , 965 S.W.2d 646, 654 (Tex.App.--El Paso 1998, no pet.). By filing a

proper controverting affidavit, the opposing party can force the offering party to prove

reasonableness and necessity by expert testimony at trial. Hong v. Bennett , 209 S.W.3d 795, 800

(Tex.App.--Fort Worth 2006, no pet.); Castillo , 965 S.W.2d at 654 . By filing the counteraffidavit

of his consulting expert, Mendez has forced Aguilar to offer expert testimony at trial to prove the

reasonableness and necessity of his past medical expenses. The question is whether Mendez waived

the consulting expert privilege by filing Dr. Doone's counteraffidavit.

Offensive Use of the Privilege

Mendez concedes that a party may waive the consulting expert privilege by making use of

a consulting expert's affidavit. Citing Hardesty v. Douglas , 894 S.W.2d 548 (Tex.App.--Waco

1995)(orig. proceeding), she contends that waiver occurs only where the expert offers the equivalent

of trial testimony in an integral part of the proceeding. In Hardesty , a medical malpractice case, the

defendant physician filed a motion for summary judgment supported by his own affidavit to

demonstrate that he had met the appropriate standard of care. Another defendant filed a motion for

summary judgment utilizing the doctor's affidavit. The plaintiffs filed a response to the motion,

using the affidavit of Dr. Robert Capehart. The trial court granted the defendants' motions for

summary judgment but the court of appeals reversed and remanded for trial. On remand, the

defendants attempted to depose Dr. Capehart but the plaintiffs designated him a consulting expert

and refused to produce him for the deposition. The trial court granted the defendants' motion to

compel and the plaintiffs sought mandamus relief. The court of appeals determined that the filing

of Dr. Capehart's affidavit with the plaintiffs' response to the summary judgment motion was the

equivalent of calling him to testify. Id. at 551 . By presenting the expert's testimony in an integral

part of the proceeding, they had used the expert as a sword and could not rely on the consulting

expert privilege as a shield. Id.

Contrasting this case with Hardesty , Mendez maintains that she did not use Dr. Doone's

affidavit to establish any fact in an integral part of the proceeding. She argues that the affidavit

serves only as the prerequisite to contesting at trial whether Aguilar's chiropractic bills are

reasonable or necessary. Hardesty is distinguishable because we are concerned here with whether

Mendez's filing of the affidavit waived the consulting expert privilege, whereas the issue in Hardesty

was whether the plaintiffs' designation of an expert as a consulting expert constituted an offensive

use of the privilege since the expert had already given an affidavit in response to the defendants'

motions for summary judgment. We do not view Hardesty as establishing a bright-line rule for

finding a waiver of the consulting expert privilege.

Hilliard and Lummus

Aguilar relies primarily on two cases, Lummus v. Dean and Hilliard v. Heard, in support of

his argument that Mendez waived the privilege and subjected her expert to deposition by filing the

controverting affidavit. Lummus also involved a traffic accident. Pursuant to Section 18.001, the

plaintiffs, Agnes and James Lummus, filed the itemized statements of physician who had treated

Agnes. The filing included the doctor's affidavit that the charges were reasonable and the services

were necessary. Defense counsel filed two controverting affidavits in opposition to the doctor's

affidavit. The attorney swore that he was knowledgeable in the review and evaluation of injuries,

medical treatments, medical records and medical charges. He also swore that the medical charges

incurred by Agnes were not necessitated by the accident but rather by some other cause. After

Lummus gave notice of intent to depose the attorney, counsel filed an amended controverting

affidavit challenging certain charges, but he did not withdraw or limit the original affidavits. The

trial court granted the defendant's motion to quash the deposition and Lummus sought mandamus

relief. The court of appeals concluded that when the attorney filed the two controverting affidavits,

he injected himself into the lawsuit as a witness and was subject to being deposed. Lummus , 750

S.W.2d at 313 . The court expressly held that its ruling did not foreclose the possibility that the

attorney might object to particular deposition questions on the grounds of attorney-client privilege

or work product. Id .

In Hilliard , the First Court of Appeals likewise determined that an attorney injected himself

into a lawsuit and became subject to deposition. Hilliard , 666 S.W.2d at 585 . There, the plaintiffs

filed suit alleging that the defendants' products, a water heater and draft diverter, were defective and

caused a fire that damaged the plaintiffs' restaurant. Pursuant to former Article 3737h § 1(a), the

plaintiffs filed affidavits concerning the reasonableness of costs and necessity of goods and services

purchased by plaintiffs for replacement and repair. If the opposing party filed a controverting

affidavit, the affidavits could not be used at trial as proof of the reasonableness and necessity of the

replacement and repair costs. The statute specifically provided that the controverting affidavit could

by made upon information and belief by the party filing it or by the party's attorney. The attorney

for one of the defendants filed a controverting affidavit that the services rendered were not

reasonable and necessary as a consequence of the incident made the subject of the lawsuit. The

plaintiffs noticed the attorney's deposition and the trial court granted the attorney's motion to quash.

The court of appeals held that by filing the controverting affidavit, the attorney injected himself into

the lawsuit and subjected himself to being deposed as a witness. Id. at 585. It rejected the attorney's

contention that taking his deposition would be useless because he would assert meritorious claims

of attorney-client privilege and work product immunity. Id. The court concluded that it was

conjectural whether such claims would be asserted and the mere prospect that privilege or immunity

would be urged at the deposition did not justify prior restraint on the taking of the deposition. Id.

Ruling on these objections when made was a matter for the trial court. Id.

Mendez contends that although Lummus and Hilliard held that the attorneys injected

themselves into the case by filing the controverting affidavits, the courts of appeals also specifically

held that the attorneys did not waive the attorney-client or work product privilege by doing so. Thus,

she argues the cases do not stand for the proposition that any discovery privilege is necessarily

waived by the simple act of providing a controverting affidavit. We agree that Lummus and Hilliard

should not be read too broadly. But the facts of this case present sufficient cause for finding waiver

of the consulting expert privilege as to those matters stated in the affidavit. As a consulting expert,

Dr. Doone's opinions and mental impressions are privileged from discovery. Mendez voluntarily

disclosed her consulting expert's opinions by filing the controverting affidavit. On these facts, we

are compelled to find waiver of the privilege with respect to those matters stated in the affidavit. Our

opinion should not be read as holding that Mendez waived the consulting expert privilege with

respect to other opinions and mental impressions held by Dr. Doone which are not stated in the

affidavit. Finding no abuse of discretion in the denial of Mendez's motion to quash Dr. Doone's

deposition, we deny mandamus relief.

May 10, 2007

ANN CRAWFORD McCLURE, Justice

Before Chew, C.J., McClure, and Carr, JJ.