Milstead Supply Co., Relator v. Honorable Derwood Johnson, Judge, 74th District Court, McLennan County, Texas, Respondent--Appeal from of County

IN THE

TENTH COURT OF APPEALS

No. 10-91-211-CV

MILSTEAD SUPPLY CO.,

Relator

v.

HONORABLE DERWOOD JOHNSON, JUDGE,

74TH DISTRICT COURT, McLENNAN

COUNTY, TEXAS,

Respondent

Original Proceeding

O P I N I O N

Milstead Supply Company, Relator, seeks a writ of mandamus against the Honorable Derwood Johnson, presiding judge of the 74th District Court, McLennan County, Texas, to compel him to vacate an order denying pretrial discovery. Judge Johnson quashed the notice of deposition of Dr. Raymond Neathery, initially identified by plaintiffs as a testifying expert prior to their settlement with two other defendants.

Plaintiffs filed the underlying suit on August 22, 1990, seeking to collect damages for the death of Raymond Miller from abdominal injuries which he sustained when he became trapped between the platform of a lift manufactured by defendant Maxon Industries, Inc. and the bed of a Chevrolet C-60 truck owned by Relator. Defendant Hafford Equipment Service had previously serviced the lift device. Plaintiffs alleged a products-liability theory of recovery against Maxon and a negligence theory against Hafford and Relator. On August 12, 1991, the plaintiffs supplemented their answers to Relator's interrogatories and designated Neathery as a testifying expert. Plaintiffs had hired Neathery, an engineer, some four months previously. Documents produced by the plaintiffs reflect that Neathery was to testify as to the alleged defectiveness of the "product," the power lift device.

Contemporaneously with a $625,000 settlement with Maxon and Hafford, the plaintiffs redesignated Dr. Neathery as a consulting-only expert whose mental impressions and opinions, they contended, were privileged under Rule 166b(3)(b) of the Rules of Civil Procedure. See Tex. R. Civ. P. 166b(3)(b). The plaintiffs successfully quashed Neathery's deposition, although Relator had originally issued a notice for Dr. Neathery's deposition while he was still designated as a testifying expert. Prior to the plaintiffs' settlement with other defendants, Relator was clearly entitled to take Neathery's deposition. See Tex. R. Civ. P. 166b(2)(e)(1).

Relator "noticed" Dr. Neathery's deposition for September 12, after having first arrived at a mutually agreeable date and time for all involved. Relator later agreed to the plaintiffs' request that Neathery's deposition be postponed. Because Neathery had been redesignated as a consulting-only expert, Plaintiffs advised Relator that they would not produce him for his previously scheduled deposition. Relator then issued another notice for Neathery's deposition for October 30. Plaintiffs filed a motion to quash the deposition on October 10, claiming that Neathery's testimony was privileged under Rule 166b(3)(b) because he had acted purely as a consulting expert. See id. at 166b(3)(b).

At the hearing on the motion to quash, Relator contended that the consulting expert privilege was inapplicable to these facts, and, even if applicable, that plaintiffs had waived the privilege. At the hearing, plaintiffs offered no evidence to substantiate their claim of privilege or to negate waiver, aside from counsel's affidavit attached to the motion to quash. In that affidavit, counsel for plaintiffs averred:

[Neathery had been retained] in this case in anticipation of litigation and preparation for trial. I have made the decision that Dr. Neathery will be used solely for consultation and will not testify at trial. [His] work product will not form the basis, either in whole or in part, of the opinion of an expert who will be called as a witness. [His] knowledge and factual information was gained solely as a result of this consultation.

Plaintiffs contend that the settlement rendered Neathery's trial testimony unnecessary to the presentation of their remaining negligence case against Relator.

Although the settlement agreement in this case, unlike that in Scott, did not indicate that the plaintiffs had "sold" the use of Neathery to the settling defendants as a part of the settlement, we believe that the situation here, if upheld, would undermine the policy behind the Texas discovery rules that disputes should be resolved by what the facts show rather than by the facts that are affirmatively concealed. See Scott v. McIlhany, 798 S.W.2d 556, 560 (Tex. 1990, orig. proceeding); Harnischfeger Corp. v. Stone, 814 S.W.2d 263, 265 (Tex. App. Houston [14th Dist.] 1991, orig. proceeding). Because Neathery was clearly not hired by the plaintiffs "in anticipation of litigation" and to assist in investigating and evaluating an accident that had occurred almost a year and a half earlier, as contemplated by the consulting-only privilege, Relator was entitled to full discovery of all information in Neathery's possession that was relevant to the accident. Judge Johnson's order deprived Relator of the discovery of relevant information "reasonably calculated to lead to the discovery of admissible evidence." See Tex. R. Civ. P. 166b(2)(a). The trial court clearly abused its discretion in quashing Dr. Neathery's deposition.

The plaintiffs failed to establish the claimed privilege by introducing probative, substantiating evidence at the hearing on the motion to quash. See Weisel Enterprises, Inc. v. Curry, 718 S.W.2d 56, 58 (Tex. 1986, orig. proceeding). At the time plaintiffs hired Dr. Neathery, their second amended petition had been filed. Furthermore, the plaintiffs had already waived any such privilege by initially designating Dr. Neathery as a testifying expert and by using his opinions offensively to achieve a settlement with two of the three defendants. Plaintiffs could not expect both to benefit from those opinions, then to shield those same opinions from discovery and possible use by Relator, just because Neathery's opinions might have diminished the value of their remaining negligence case against Relator. Plaintiffs further waived the privilege by producing documents which had passed between plaintiffs' counsel and Neathery.

We hold that Judge Johnson's quashing of the deposition on the basis of the consultant-only privilege denied Relator its right to pursue the facts and issues in the underlying case to the extent intended by the discovery rules. See Scott, 798 S.W.2d at 558; Harnischfeger, 814 at 265. We conditionally grant the petition for writ of mandamus and direct Judge Johnson to vacate his order of October 24, 1991, granting plaintiffs' motion to quash. We assume Respondent will comply with the terms of this opinion. The writ will issue only if he fails to do so.

BOBBY L. CUMMINGS

Justice

Before Chief Justice Thomas,

Justice Cummings and

Justice Vance

Writ of mandamus conditionally issued

Opinion delivered and filed December 11, 1991

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