In Re William Brothers Construction Co., Inc. and Luis Flores v. the State of Texas

Stay Lifted and Petition for Writ of Mandamus Conditionally Granted and
Memorandum Opinion filed May 24, 2024.

In The

Fourteenth Court of Appeals

NO. 14-24-00289-CV

IN RE WILLIAMS BROTHERS CONSTRUCTION CO., INC. AND LUIS
FLORES, Relators

ORIGINAL PROCEEDING
WRIT OF MANDAMUS
334th District Court
Harris County, Texas
Trial Court Cause No. 2021-35388

MEMORANDUM OPINION

On April 19, 2024, relators Williams Brothers Construction Co., Inc. and
Luis Flores filed a petition for writ of mandamus in this Court. See Tex. Gov’t
Code Ann. § 22.221; see also Tex. R. App. P. 52. In the petition, relators ask this
Court to compel the Honorable Dawn Rogers, presiding judge of the 334th District
Court of Harris County, to vacate the trial court’s March 19, 2024 “Order Granting
Plaintiff’s Objections to and Motion to Quash Defendants’ Notice of Depositions
with Subpoena Duces Tecum and Plaintiff’s Motion for Protective Order.”

This Court requested the real party in interest, Savannah Power, file a
response to relators’ petition for writ of mandamus by May 20, 2024. To date, the
real party in interest has not filed a response.

On May 8, 2024, we granted relators’ motion for temporary relief and stayed
the underlying trial setting.

For the reasons set forth below, we conditionally grant mandamus relief.

BACKGROUND

RPI filed suit against relators alleging personal-injury damages caused by a
motor-vehicle accident that occurred on November 18, 2019. RPI’s pleadings and
deposition testimony show that she relies on her physical, mental, or emotional
condition as part of her claims for economic and noneconomic damages against
relators. See Tex. R. Evid. 509(e)(4); id. 510(d)(5). Additionally, relators rely on
RPI’s physical, mental, or emotional condition as part of their defenses to RPI’s
claims for economic and noneconomic damages. See id.

On April 22, 2022, relators requested, via a notice of depositions with
subpoena duces tecum, RPI’s medical records from healthcare providers who have
treated RPI for her claimed injuries and damages, including RPI’s former
psychiatrist, Richard Barrett M.D., Ph.D. On May 20, 2022, RPI filed objections
to and a motion to quash relators’ notice of intent to take deposition by written
questions as well as a motion for protective order, maintaining RPI’s mental health
records are outside the scope of discovery and asserting that RPI would not claim
2
that the accident cause her post-traumatic stress disorder. RPI’s objections and
motions were not set for hearing or submission.

In February 2024, relators filed a notice of hearing. On March 9, 2024,
relators filed their response in opposition to RPI’s motion to quash and a response
RPI’s motion for protective order. The trial court conducted a hearing on March
13, 2024. Thereafter, the parties filed letter briefs further arguing their respective
positions to the trial court.

On March 19, 2024, the trial court signed an “Order Granting Plaintiff’s
Objections to and Motion to Quash Defendants’ Notice of Depositions with
Subpoena Duces Tecum and Plaintiff’s Motion for Protective Order.” In the order,
the trial court concluded that the custodians of records for Richard Barrett, M.D.,
Ph.D., “shall not be deposed . . . and shall not produce the requested documents.”
The trial court’s order noted the following:

On March 13, 2024, Plaintiff’s counsel stated on the record that
Plaintiff will not introduce a (1) diagnosis of PTSD (a condition for
which she is treated by Dr. Barrett), (2) that she is not seeking past
paid medical bills for this provider, and (3) that she treated with this
provider prior to the wreck. Defendant, however, is not precluded
from examining Plaintiff during the trial on the issue of mental
anguish unless an exclusionary ruling is made on this issue during the
pre[-]trial conference.

This mandamus followed.

STANDARD OF REVIEW

In their petition for writ of mandamus, relators assert that the trial court
abused its discretion in quashing a subpoena duces tecum seeking discovery of

3
medical records critical to relators’ ability to adequately defend against RPI’s
claims seeking economic and noneconomic damages. Relators contend that they
have no adequate remedy by appeal.

To obtain mandamus relief, relators generally must show both that the trial
court clearly abused its discretion and that relators have no adequate remedy by
appeal. In re Dawson, 550 S.W.3d 625, 628 (Tex. 2018) (orig. proceeding) (per
curiam); In re Prudential Ins. Co. of Am., 148 S.W.3d 124, 135-36 (Tex. 2004)
(orig. proceeding). A trial 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 or
if it clearly fails to analyze the law correctly or apply the law correctly to the facts.
In re H.E.B. Grocery Co., L.P., 492 S.W.3d 300, 302-03 (Tex. 2016) (orig.
proceeding) (per curiam).

“PATIENT-CONDITION EXCEPTIONS”

On May 10, 2024, the Texas Supreme Court issued an opinion addressing
the applicability of the patient-litigation exception to the physician-patient and
mental-health-information privileges. See In re Richardson Motorsports, Ltd., No.
22-1167, ___S.W.3d.___, 2024 WL 2096555 (Tex. May 10, 2024) (orig.
proceeding); see also Tex. R. Evid. 509(e)(4), 510(d)(5). “The privilege against
disclosure of medical and mental health care treatment records does not apply ‘if
any party relies on the patient’s physical, mental, or emotional condition as a part
of the party’s claim or defense and the communication or record is relevant to that
condition.’” Id. at *3 (quoting Tex. R. Evid. 509(e)(4), 510(d)(5)). “To recover
such damages, a plaintiff must provide ‘evidence of the nature, duration, and
severity of [her] mental anguish.’” Id. & n.1 (quoting Gregory v. Chohan, 670
4
S.W.3d 546, 554 (Tex. 2023) (plurality op.) (quoting Parkway Co. v. Woodruff,
901 S.W.2d 434, 444 (Tex. 1995)). The Supreme Court specifically outlined steps
a trial court should take when, as here, confronted with such arguments regarding
whether a patient’s mental condition is part of a party’s defense:

[the trial court] should begin by examining the pleadings and then, if
necessary, consider the allegedly privileged records. More
specifically, when a party raises a patient-condition exception as a
basis for discovering allegedly privileged records, disputed questions
for the trial court to consider may include: (1) whether the patient
consulted a physician or other professional and claims that the records
of that consultation are privileged, thus indicating that the “diagnosis,
evaluation, or treatment” of a “physical, mental, or emotional
condition” or “disorder” may be at issue; (2) whether the pleadings
indicate that a party “relies on” such a condition as “part of” its claim
or defense; and (3) whether an in camera review of the records
confirms that they address such a condition and shows that the
professional's records are “relevant to” the relied-upon condition. See
Tex. R. Evid. 509(c)(2), (e)(4), 510(a)(1)(A), (b)(1)(B), (d)(5).

Id. at *9.

In this case, RPI’s mental or emotional conditions are part of her claim. As
such, RPI cannot invoke the privilege to shield her mental health care records
relevant to her condition from discovery. See id. at *7. Additionally, relators rely
on RPI’s mental or emotional condition as part of their defense that her anguish
had pre- and post-accident causes. See id. at *9. Consequently, the privileges RPI
asserts do not prevent discovery of her mental health care treatment records
relevant to those conditions. See id. at *12. The trial court abused its discretion by
granting RPI’s motion to quash and protecting Dr. Barrett from deposition and his

5
records from disclosure. We conclude that relators have no adequate remedy by
appeal.

CONCLUSION

We conditionally grant relators’ petition for writ of mandamus, direct the
trial court to vacate its March 19, 2024 order, and instruct the trial court to conduct
further proceedings in accordance with Richardson Motorsports. See id. We are
confident the trial court will act in accordance with this opinion and a writ will
issue only if the trial court fails to do so. Additionally, our May 8, 2024, order
staying the trial is lifted.

PER CURIAM

Panel consists of Chief Justice Christopher and Justices Zimmerer and Wilson.

6