In re Eilene Huag, R.N. and Kevin Rittger, M.D.--Appeal from Probate Court of Brazoria County

Opinion issued August 25, 2005

In The

Court of Appeals

For The

First District of Texas

NO. 01-05-00173-CV

IN RE EILENE HUAG, R.N. & KEVIN RITTGER, M.D., Relators

Original Proceeding on Petition for Writ of Mandamus

DISSENTING OPINION

I respectfully dissent. I would affirm the order of the trial court and allow the party depositions to proceed. Subsection 74.351(u) allows a claimant, prior to filing the expert report, to take two oral depositions of any witness the claimant chooses. Subsection 74.351(u) provides:

(u) Notwithstanding any other provision of this section, after a claim is filed all claimants, collectively, may take not more than two depositions before the expert report is served as required by Subsection (a).

Tex. Civ. Prac. & Rem. Code Ann. 74.351(u) (Vernon 2005) (emphasis added). The language notwithstanding any other provision of this section in subsection 74.351(u) means exactly what it says on its face: independent of any other subsection of section 74.351, all claimants, collectively, may take not more than two depositions before the expert report is served. Going outside the subsection to interpret its effect renders the phrase notwithstanding any other provision of this section meaningless. Nowhere in subsection 74.35l(u) does the Legislature state that (1) parties are immune from being deposed under this subsection or (2) the two depositions are limited to only non-parties.

For this reason, I would hold that the trial court s order was not a clear abuse of discretion justifying mandamus relief. Because the majority holds otherwise, I respectfully dissent.

George C. Hanks, Jr.

Justice

Panel consists of Justices Taft, Keyes, and Hanks.

Justice Hanks, dissenting.