In Re: R&B Falcon Drilling USA, Inc.--Appeal from 165th District Court of Harris County

Petition for Writ of Mandamus Conditionally Granted and Opinion filed October 29, 2002

Petition for Writ of Mandamus Conditionally Granted and Opinion filed October 29, 2002.

In The

Fourteenth Court of Appeals

____________

NO. 14-02-00693-CV

____________

IN RE R&B FALCON DRILLING USA, INC., Relator

ORIGINAL PROCEEDING

WRIT OF MANDAMUS

O P I N I O N

Relator R&B Falcon Drilling USA, Inc. seeks a writ of mandamus ordering respondent, the Honorable Elizabeth Ray, Judge of the 165th District Court of Harris County, to vacate the part of the court=s discovery order that compels R&B Falcon to produce documents and answer interrogatories relating to maintenance-and-cure claims made by nonparty employees. We conditionally grant the writ.

I. Factual and Procedural Background

In the underlying suit, real party in interest Louis Zetka sued R&B Falcon asserting claims relating to his alleged personal injury on December 15, 2000, aboard the vessel C.E. THORNTON. Zetka alleges that he is a Jones Act seaman and seeks recovery under the following claims: (1) negligence under the Jones Act, (2) the unseaworthiness of the C.E. THORNTON, and (3) maintenance and cure.

During Zetka=s deposition, Zetka indicated that he had made false statements concerning his physical condition in a document relating to a physical examination prior to his employment with R&B Falcon. Although R&B Falcon did not plead this defense, based on this deposition testimony, R&B Falcon took the position that it had properly stopped paying Zetka maintenance and cure and that it did not owe Zetka any maintenance and cure because he had misrepresented or concealed material facts during a pre-hiring medical examination or interview.

Zetka then propounded interrogatories and requests for production on R&B Falcon seeking detailed information regarding the manner in which R&B Falcon has handled pre-employment medical examinations and other maintenance-and-cure claims over the last five years for all of its employees. R&B Falcon objected to this discovery as being overly broad, unduly burdensome, oppressive, an impermissible fishing expedition, irrelevant, and not reasonably calculated to lead to the discovery of admissible evidence. Zetka moved to compel R&B Falcon to respond to this discovery.

Although the trial court limited the time period to the two years before December 15, 2000, it signed an order compelling R&B Falcon to provide most of the information Zetka had requested, including:

! A list of R&B Falcon=s employees who have received maintenance and cure as a result of a back or neck injury.

! Any correspondence or other documents sent to R&B Falcon=s employees in which R&B Falcon either (1) denied an employee=s request for maintenance and cure, or (2) revoked an employee=s maintenance and cure.

! Any correspondence or other documents directed to R&B Falcon=s employees in which R&B Falcon either (1) denied an employee=s request for maintenance and cure based on an alleged misrepresentation in the employee=s pre-employment examination, or (2) revoked an employee=s maintenance and cure based on an alleged misrepresentation in the employee=s pre-employment examination.

! A sample or exemplar of all questionnaires given to R&B Falcon=s employees that ask any question regarding an employee=s medical history.

! The name, last known address, last known telephone number, and job title of all of R&B Falcon=s employees who have received maintenance and cure as a result of a back or neck injury.

! The name, last known address, last known telephone number, and job title of all of R&B Falcon=s employees who have either (1) requested and been denied maintenance and cure during the last two years, or (2) received maintenance and cure that was subsequently revoked.

! The name, last known address, last known telephone number, and job title of R&B Falcon=s employees, representatives, and agents who made the decision to deny or revoke maintenance and cure.

! The style of case, case number, county, and court of each lawsuit filed against R&B Falcon in which one or more of R&B Falcon=s employees have brought claims against it seeking recovery of maintenance and cure.

! The name, last known address, last known telephone number, and person(s) who made the decision to deny or revoke maintenance and cure for each of R&B Falcon=s employees, if any, whose request for maintenance and cure was denied, or whose ongoing maintenance and cure was revoked, as a result of the employee=s alleged misrepresentation(s) on a pre-employment physical/medical exam.

R&B Falcon filed a petition for writ of mandamus asserting that this order constitutes a clear abuse of discretion for which R&B Falcon has no adequate remedy by appeal. R&B Falcon also sought an emergency stay pending this court=s ruling on its request for mandamus relief. We granted R&B Falcon=s emergency motion to stay the trial court=s order pending our ruling.

II. Standard of Review

Mandamus relief is available if the trial court abuses its discretion, either in resolving factual issues or in determining legal principles, when there is no other adequate remedy by appeal. See Walker v. Packer, 827 S.W.2d 833, 839B40 (Tex. 1992). A trial court abuses its discretion if Ait reaches a decision so arbitrary and unreasonable as to amount to a clear and prejudicial error of law.@ Johnson v. Fourth Court of Appeals, 700 S.W.2d 916, 917 (Tex. 1985). When alleging that a trial court abused its discretion in its resolution of factual issues, the complaining party must show the trial court reasonably could have reached only one decision. Id. at 918. As to determination of legal principles, an abuse of discretion occurs if the trial court clearly fails to analyze or apply the law correctly. See Walker, 827 S.W.2d at 840. An order compelling discovery Awell outside the bounds of proper discovery@ is an abuse of discretion for which there is no adequate remedy at law and for which mandamus is the proper remedy. K Mart Corp. v. Sanderson, 937 S.W.2d 429, 431B32 (Tex. 1996).

III. Analysis

To determine the relevance of the discovery in question, we must review the applicable substantive law. Under general maritime law, maintenance and cure entitles a seaman who is injured or becomes ill while in the service of a ship to food, lodging, and necessary medical services. Maritime Overseas Corp. v. Waiters, 917 S.W.2d 17, 18 (Tex. 1996). A shipowner must pay an injured or ill seaman maintenance and cure regardless of whether the shipowner was at fault or whether the ship was unseaworthy. Id. The negligence of both R&B Falcon and Zetka are irrelevant to Zetka=s ability to recover maintenance and cure. See Aguilar v. Standard Oil Co. of N. J., 318 U.S. 724, 730B31, 63 S. Ct. 930, 933B34, 87 L. Ed. 1107 (1943); Maritime Overseas Corp., 917 S.W.2d at 18.

Nonetheless, if an injured seaman has engaged in willful misbehavior, such as intentionally misrepresenting or concealing material facts during a required pre-hiring medical examination or interview, then the seaman is not entitled to maintenance and cure. See Aguilar, 318 U.S. at 731, 63 S. Ct. at 934; McCorpen v. Central Gulf S. S. Corp., 396 F.2d 547, 549 (5th Cir. 1968). On the other hand, if the injured seaman is entitled to maintenance and cure, and if he proves that the shipowner willfully failed to pay him maintenance and cure, then the seaman may recover attorney=s fees in addition to his maintenance and cure. See Maritime Overseas Corp., 917 S.W.2d at 18.

In this case, Zetka has not pleaded that R&B Falcon willfully failed to pay him maintenance and cure, and R&B Falcon has not pleaded willful misconduct by Zetka. However, as a result of Zetka=s deposition testimony, R&B Falcon indicated to Zetka that it would take the position that it owed no maintenance and cure based on Zetka=s alleged misrepresentation of his physical condition during his pre-hiring medical examination. In response, Zetka propounded the discovery at issue in this proceeding. R&B Falcon asserts that this discovery was overly broad, irrelevant, and not reasonably calculated to lead to the discovery of admissible evidence. See Tex. R. Civ. P. 192.3(a); K Mart Corp., 937 S.W.2d at 431B32; Crown Cent. Petroleum Corp. v. Garcia, 904 S.W.2d 125, 127 (Tex. 1995). R&B Falcon also asserts that this discovery constitutes a Afishing expedition@ into maintenance-and-cure files that are completely unrelated to the underlying case. In response, Zetka asserts that the mandamus cases cited by R&B Falcon are not on point because Zetka is not trying to dredge up evidence to support new claims. Zetka argues that the trial court acted within its discretion by concluding that the discovery was relevant to Zetka=s pending maintenance-and-cure claim and that R&B Falcon did not carry its burden of providing evidence to support its objections. We disagree.

The discovery the trial court compelled is not relevant or reasonably calculated to lead to the discovery of admissible evidence regarding Zetka=s maintenance-and-cure claim. In the current posture of the underlying case, the merits of Zetka=s claim have nothing to do with R&B Falcon=s intent, state of mind, or its policies regarding maintenance and cure. See Aguilar, 318 U.S. at 731, 63 S. Ct. at 934. Under well-established law, to prove his entitlement to maintenance and cure, Zetka need only establish that he became ill or was injured during the period of his service as a seaman employed by R&B Falcon and that R&B Falcon did not pay him appropriate maintenance and cure. See id. Therefore, evidence relating to R&B Falcon=s intent, state of mind, and its maintenance-and-cure claims practices is neither relevant nor calculated to lead to the discovery of admissible evidence because such information has no relationship to any issue in the underlying case. See Exxon Pipeline Co. v. Zwahr, 45 Tex. Sup. Ct. J. 691, 694, 2002 WL 1027003, at *4 (May 23, 2002). Zetka may not use the discovery process to fish for additional claims regarding R&B Falcon=s other employees. See In re Xeller, 6 S.W.3d 618, 627 (Tex. App.CHouston [14th Dist.] 1999, orig. proceeding).

Zetka does not assert that the discovery ordered by the trial court was relevant or reasonably calculated to lead to the discovery of admissible evidence regarding Zetka=s negligence or unseaworthiness claims. Even if he had so asserted, it is clear that this discovery is not relevant or reasonably calculated to lead to the discovery of admissible evidence regarding these claims. Given the legal issues and the undisputed facts in the underlying case, we find the applicable standard of review is satisfied because the discovery the trial court ordered was not relevant or reasonably calculated to lead to the discovery of admissible evidence. See Tex. R. Civ. P. 192.3(a); Exxon Pipeline Co., 45 Tex. Sup. Ct. J. at 694, 2002 WL 1027003, at *4; In re American Optical Corp., 988 S.W.2d 711, 713 (Tex. 1998) (stating that discovery requests must be reasonably tailored to include only matters relevant to the case); K Mart Corp., 937 S.W.2d at 431B32; Dillard Dep=t Stores, Inc. v. Hall, 909 S.W.2d 491, 492 (Tex. 1995). Moreover, even if R&B Falcon had pleaded willful misconduct by Zetka as an affirmative defense, the result would be the same because this defense is based on the conduct of Zetka, not R&B Falcon.

Zetka claims that, when R&B Falcon terminated his maintenance and cure, the company failed to follow its maintenance-and-cure policies and procedures; however, R&B Falcon has stated that it has no written maintenance-and-cure policies and procedures. Zetka argues, therefore, that the ordered discovery was relevant to allow him to prove up these unwritten policies, so he can show that R&B Falcon violated them. Zetka has not pleaded that R&B Falcon violated any such policies. In the present posture of this case, even if he had made this allegation, it would not be material to any of his claims. See Aguilar, 318 U.S. at 730B31, 63 S. Ct. at 933B34; Maritime Overseas Corp., 917 S.W.2d at 18. There is no issue in the underlying case regarding R&B Falcon=s maintenance-and-cure policies. Therefore, this argument fails.

Zetka cites cases holding that evidence of other similar incidents is admissible in cases alleging extra-hazardous railroad crossings and discriminatory treatment of employees who file workers= compensation claims. See Missouri-Kansas-Texas R. Co. v. May, 600 S.W.2d 755, 756 (Tex. 1980) (railroad crossing); Missouri Pac. R. Co. v. Cooper, 563 S.W.2d 233, 235 (Tex. 1978) (same); Durbin v. Dal-Briar Corp., 871 S.W.2d 263, 268B69 (Tex. App.CEl Paso 1994, writ denied) (workers= compensation retaliation), disapproved on other grounds by Golden Eagle Archery, Inc. v. Jackson, 24 S.W.3d 362 (Tex. 2000). These cases are not on point. Zetka has not alleged an extra-hazardous railroad crossing or discriminatory treatment because he filed a workers= compensation claim.

Zetka also argues that R&B Falcon did not carry its burden of producing evidence to support its claim that the discovery is irrelevant; however, evidence is not always required to support discovery objections. In re Union Pac. Res. Co., 22 S.W.3d 338, 340B41 (Tex. 2000). The record in this proceeding shows a clear abuse of discretion, even though R&B Falcon did not introduce evidence on the issue of relevancy. On this record, R&B Falcon=s failure to adduce evidence on this objection does not preclude mandamus relief. See id.

Furthermore, the information and documents the trial court ordered R&B Falcon to locate and produce were well outside the bounds of proper discovery. Therefore, R&B Falcon has no adequate remedy by appeal. See K Mart Corp., 937 S.W.2d at 431B32.

IV. Conclusion

The information the trial court ordered R&B Falcon to provide is not relevant or reasonably calculated to lead to the discovery of admissible evidence. R&B Falcon has no adequate remedy by appeal. Accordingly, we conditionally grant relator R&B Falcon=s petition for writ of mandamus directing respondent the Honorable Elizabeth Ray to vacate the trial court=s order of July 9, 2002, to the extent that it compels production of the information or documents referred to in items 2, 5, 6, and 9 of the part of the order dealing with requests for production. We also conditionally grant relator R&B Falcon=s petition for writ of mandamus directing respondent the Honorable Elizabeth Ray to vacate the trial court=s order of July 9, 2002, to the extent that it compels production of the information or documents referred to in items 1, 2, 4, and 5 of the part of the order dealing with interrogatories. We are confident the trial court will vacate these parts of the order. The writ will not issue unless the trial court fails to comply.

_______________________________

Kem Thompson Frost

Justice

Petition Conditionally Granted and Opinion filed October 29, 2002.

Panel consists of Chief Justice Brister and Justices Anderson and Frost.

Do Not Publish C Tex. R. App. P. 47.3(b).