in Re: Central North Construction, LLC ( 2014 )

Conditionally GRANT; and Opinion Filed April 10, 2014.
S In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-14-00178-CV
IN RE CENTRAL NORTH CONSTRUCTION, LLC, Relator
Original Proceeding from the 95th Judicial District Court
Dallas County, Texas
Trial Court Cause No. DC-12-03754
MEMORANDUM OPINION
Before Justices O'Neill, Lang, and Brown
Opinion by Justice Brown
Relators filed this mandamus proceeding after the trial court ordered Central North
Construction, LLC (Central North) to produce certain information concerning the revenues of
non-party Biodynamic Research Corporation (BRC). We conclude the trial court abused its
discretion and relators have no adequate remedy by appeal. We therefore conditionally grant the
writ of mandamus.
I. FACTUAL AND PROCEDURAL CONTEXT
This is a personal injury case brought by Frederick Currey, Jr. arising from a collision
involving the vehicle he was driving and a pickup truck owned by Central North. Currey alleges
he was injured when the vehicle owned by Central North failed to slow or stop and struck the
rear of Currey’s vehicle at a high rate of speed. Central North retained Joseph Cormier, Ph.D.,
P.E. as a testifying expert to provide testimony that Currey’s injuries are not supported by the
evidence of impact to Currey’s vehicle. Cormier is an employee of BRC. BRC is a
biomechanical analysis and accident reconstruction firm that supplies experts for a variety of
purposes, including as expert witnesses in litigation.
BRC testifies almost exclusively for insurance companies, their policy holders, and the
manufacturers of vehicles. Both Central North and BRC admit that 90% of the revenues from
BRC’s forensic consulting services are derived from the defense side of the docket. By affidavit
the BRC custodian of records testified that 95% of BRC’s revenues over the preceding five years
were derived from forensic consulting services and less than 5% of its revenues for the same
period were derived from externally funded research and other sources. Additionally BRC’s
records custodian testified that at least 90% of its forensic consulting service revenues on
litigated matters for the preceding five years derived from payments from defendants, namely
insurance companies, their policy holders, manufacturers and their counsel and that less than
10% of BRC’s forensic consulting services revenues on litigated matters for the past five years
derived from plaintiffs and their counsel.
In an effort to prove that Cormier was biased due to his financial self-interest in the case,
Currey sought to obtain financial and accounting information concerning BRC’s relationship
with insurance companies, their policy holders, manufacturers of vehicles, and the attorneys that
represent such parties in litigation via deposition on written question. Both Central North and
BRC objected. The trial court concluded that the information sought was relevant and
discoverable, but Currey’s requests were overly broad, unduly burdensome or otherwise
improper. The trial court further concluded, however, that because BRC’s livelihood depends
on the rendition of opinions for litigants or potential litigants almost exclusively on one side of
the docket, Currey should be allowed to obtain some discovery concerning BRC’s revenues to
allow Currey to bring home to the judge and jury in concrete terms the extent of the relationship
and interest present.
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Thus, the trial court ordered Central North to disclose to Currey the dollar amount of
gross revenues received by BRC from insurance companies, their policy holders, manufacturers
and their attorneys, separately for the years 2009 through 2013 and to disclose to Currey for the
same time period the dollar amount of gross revenues received by BRC from each insurance
company, policy holder or their counsel involved in this case. This order granted discovery
substantially narrower in scope than that originally sought by Currey from BRC. Central North
filed this petition for writ of mandamus seeking relief from the trial court’s order.
II. STANDARD FOR MANDAMUS RELIEF
To obtain mandamus relief, relator must show both that the trial court has abused its
discretion and that it has no adequate appellate remedy. In re Prudential Ins. Co., 148 S.W.3d
124, 135-36 (Tex. 2004) (orig. proceeding); Walker v. Packer, 827 S.W.2d 833, 839-40 (Tex.
1992) (orig. proceeding). The scope of discovery is within a trial court’s discretion and a trial
court abuses that discretion only if it orders discovery that exceeds the discovery that the Texas
Rules of Civil Procedure permit. In re CSX Corp., 124 S.W.3d 149, 152 (Tex. 2003). The
reviewing court may not substitute its judgment for that of the trial court and the relators must
establish that the trial court could reasonably have reached only one decision. Walker v. Packer,
827 S.W.2d 833, 839–40 (Tex. 1992). “Even if the reviewing court would have decided the issue
differently, it cannot disturb the trial court's decision unless it is shown to be arbitrary and
unreasonable.” Id. at 840.
III. DISCOVERABILITY OF FINANCIAL RECORDS TO ESTABLISH BIAS
The trial court based its order on the conclusion that “There is hardly a better way to
establish bias in an adversarial proceeding than to show that a witness’s financial well-being is
fastened tightly to his testimony.” Noting that BRC through Cormier had a financial interest in
providing testimony because it would be compensated for that testimony, the trial court
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concluded that “it is hard to discern how the interest of a witness, whether financial or personal,
could ever be irrelevant or otherwise not subject to meaningful discovery.”
The Texas Rules of Civil Procedure set forth the scope and procedures for discovery
concerning expert witnesses, including discovery into “any bias of the witness.” TEX. R. CIV. P.
192.3(e). Rule 195.1 provides that expert witness discovery may be obtained only through
disclosures, expert reports and oral depositions of expert witnesses. TEX. R. CIV. P. 195.1. The
goal of Rule 195 is to minimize “undue expense” in conducting discovery, which comports with
efforts by the Texas Supreme Court and others “to curb discovery abuse through the
implementation of carefully crafted principles and procedures.” In re Ford Motor Co., 57 Tex.
Sup. Ct. J. 415, 416, 2014 WL 1258265 (Tex. Mar. 28, 2014) (orig. proceeding) (per curiam).
The discovery rules regarding expert witness should be interpreted in a manner such as to
“provide access to material information” while also “preserving litigation as a viable, affordable,
and expeditious dispute resolution mechanism.” In re Weir, 166 S.W.3d 861, 863 (Tex. App.—
Beaumont 2005, orig. proceeding). The Texas Supreme Court has recently commented on the
“danger of permitting expansive discovery” of potential financial bias of an expert witness. See
Ford Motor Co., 57 Tex. Sup. Ct. J. at 416 (directing trial court to vacate order seeking financial
and business information for all the cases the employer of the expert witness had handled for
Ford during a twelve year period). Allowing overly expansive discovery about testifying
experts can “permit witnesses to be subjected to harassment and might well discourage reputable
experts” from participating in the litigation process. Ford Motor Co., 57 Tex. Sup. Ct. J. at 416
(quoting Ex parte Shepperd, 513 S.W.2d 813, 816 (Tex. 1974) (orig. proceeding)).
Generally, although an expert witness may be questioned regarding payment received for
his work as an expert witness, pre-trial discovery sought only to establish financial interest for
impeachment purposes is not allowed. Russell v. Young, 452 S.W.2d 434, 436–37 (Tex. 1970).
As the Texas Supreme Court has noted, the most probative information regarding the bias of a
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testifying expert comes from the expert himself. Ford Motor Co., 57 Tex. Sup. Ct. J. at 417
(expert testified that only 5% of cases she handles are for plaintiffs and she had never testified
against an automobile manufacturer; second expert testified that about 50% of his employer’s
work was done for Ford, he had previously been employed by Ford and he had never testified
that a vehicle had a design defect in the type of case at issue). Thus, a party’s interest in
obtaining discovery solely for impeachment must be weighed against the legitimate interest of
the witness in protecting unrelated financial information. In re Weir, 166 S.W.3d at 865
(concluding expert could be required to provide an estimate of the percentage of his income that
was derived from litigation if the expert knew the percentage, but that the expert “should not be
required to do what the Supreme Court held the defendant could not do itself in Russell: review
all the expert's unrelated financial records solely to obtain possible impeachment evidence.”)
Where there is other extrinsic evidence of bias discovered after the expert’s deposition
that puts the expert’s credibility in doubt, discovery beyond the expert’s deposition might be
permissible. Ford Motor Co., 57 Tex. Sup. Ct. J. at 417 (discussing Walker v. Packer, 827
S.W.2d 833, 839 (Tex. 1992) and questioning whether its holding regarding discovery of
expert’s employer survived the adoption of Rule 195). In Walker, the Supreme Court approved
discovery directed to the expert’s employer when extrinsic evidence showed that the expert’s
employer had a policy that prohibited employees from testifying on behalf of plaintiffs.
Real party contends that, as in Walker, it has shown other evidence of bias in this case.
Currey argues that bias is established in this case by the fact that the expert will be presenting
expert testimony to refute his allegations. If such a fact were relevant to establishing bias, then
discovery of financial data for purposes of impeachment would be available in any case in which
a testifying expert is retained by one of the parties to refute the evidence of the other party.
Currey also points out that BRC has been characterized as “symbiotically connected” to
an insurance company (State Farm) by at least one court. Brown v. Dobbs, 691 N.E.2d 907, 909
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(Ind. Ct. App. 1998). There was no such finding in this case. 1 Moreover, that case, decided
under Indiana law, did not involve discovery concerning the finances of BRC, but rather whether
BRC should be compelled to provide the plaintiff a copy of the test data that supported the
testimony the BRC expert would give without requiring the plaintiff to pay BRC for the cost of
its testing. See id. Assuming, without deciding, that Walker still provides authority for any
additional expert discovery beyond that expressly allowed by Rule 195, real party has not
provided evidence in this case sufficient to justify discovery of the finances of BRC. The trial
court abused its discretion in permitting discovery for impeachment purposes beyond that
permitted by Rule 195 of the Texas Rules of Civil Procedure.
IV. CONCLUSION
Because the trial court clearly abused its discretion in ordering the disclosure of BRC’s
financial information by Central North , we CONDITIONALLY GRANT relators’ petition for
writ of mandamus. A writ will issue only in the event the trial court fails to vacate its February
7th, 2014 order requiring that Central North disclose to Currey the dollar amount of gross
revenues received by BRC from insurance companies, their policy holders, manufacturers and
their attorneys, separately for the years 2009 through 2013 and to disclose to Currey for the same
time period the dollar amount of gross revenues received by BRC from each insurance company,
policy holder or their counsel involved in this case.
/Ada Brown/
ADA BROWN
JUSTICE
140178F.P05
1
The trial court found, “BRC is not what is typically viewed as a non-party witness: BRC is Central North’s retained expert. Moreover,
BRC is an expert witness and opinion company whose primary mission, like that of other members of the expert witness industry, is to provide
expert opinions.”
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