in Re Ramin Siroosian, Chiropractic Doctors Clinic and Tina Yeshigeta ( 2014 )

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-14-00349-CV
IN RE RAMIN SIROOSIAN, RELATORS
CHIROPRACTIC DOCTORS CLINIC
AND TINA YESHIGETA
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ORIGINAL PROCEEDING
TRIAL COURT NO. CV-2013-01306
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CONCURRING AND DISSENTING OPINION
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While I agree with the majority opinion that several of the trial court’s
approved deposition questions are beyond the scope of allowable discovery, I
believe four of the nine questions are within the trial court’s discretion to order
answered; therefore, I respectfully dissent to a portion of the majority opinion and
judgment.
During this hotly contested discovery process, Dr. Siroosian, an originally
designated expert and treating physician for the plaintiff––and one of the relators
herein––refused to answer some of the questions posed during his deposition.
Much of the parties’ briefing focuses on the alleged change in designation of this
expert, whether by trial court order or party representation. Suffice it to say, the
parties disagree over what exactly happened at a hearing they both attended
regarding this witness, related sanctions orders, and the trial court’s order on
further questions to this deponent.
My reading of the record indicates that the plaintiff originally designated
this expert as a fact witness regarding “any matter contained in [his] deposition
testimony, if any, as well as to any matter contained in [his] medical and billing
records.” Later, the trial court ordered that the witness’s section 18.001 affidavit
as to medical expenses and their reasonableness be struck. However, at the
hearing on defendant real party in interest’s motion to compel the witness to
answer the deposition questions, the plaintiff and the trial court agreed that the
witness’s designation was thereafter to be limited to reasonableness and
necessity of medical expenses, and the trial court allowed the section 18.001
affidavit to be admitted at trial.1 Although defendant’s counsel initially objected,
1
The following exchange occurred at the motion to compel hearing:
[DR. SIROOSIAN’S COUNSEL]: And so for purposes of the record,
so I understand for my client, that Dr. Siroosian has -- designation
has been limited to reasonable and necessary; is that right?
THE COURT: He has taken out the causation designation.
[PLAINTIFF’S COUNSEL]: That’s correct. Just reasonable and
necessity.
2
he later informed the trial court that he could subpoena Dr. Siroosian because of
a letter of protection in the file and question Dr. Siroosian about his potential bias
with respect to billing practices.
When determining whether the trial court abused its discretion in ordering
discovery, we must be mindful that the purpose of discovery is to seek the truth
so that disputes may be decided by what the facts reveal, not by what facts are
concealed. In re Colonial Pipeline Co., 968 S.W.2d 938, 941 (Tex. 1998) (orig.
proceeding). The rules governing discovery do not require as a prerequisite to
discovery that the information sought be admissible; it is enough that the
information appears reasonably calculated to lead to the discovery of admissible
evidence. See Tex. R. Civ. P. 192.3(a).
Rule 192.3(e) provides that a party may discover “any bias” of a testifying
witness. Tex. R. Civ. P. 192.3(e). Rule 195.4 allows a party to take an oral
deposition of an expert witness on “discoverable matters,” including “the subject
matter on which the expert is expected to testify” and “the facts known to the
expert (regardless of when the factual information was acquired) that relate to or
[DR. SIROOSIAN’S COUNSEL]: So reasonable and necessity is the
only thing he is designated on.
THE COURT: Is that correct?
[PLAINTIFF’S COUNSEL]: Yes, Your Honor, that is absolutely
correct. . . . [T]he sole thing we want Dr. Siroosian on right now,
reasonableness and necessity to be proved through 18.001
affidavits. Very simple.
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form the basis of the testifying expert’s mental impressions and opinions.” Tex.
R. Civ. P. 195.4.
As to questions b, c, h, and i regarding Dr. Siroosian’s knowledge of
subsequent collection efforts and patient recovery of damages in other cases in
which letters of protection were issued, this case is distinguishable from National
Lloyds Insurance Co., Russell, Weir, and Olinger, cited by the majority, as well as
other cases applying the principles discussed in those cases.2 In all of those
cases, the requested discovery was either overly broad, sought detailed,
personal or private records and information, or both.
Here, the defendant’s counsel specifically disclaimed seeking any patient
names or records; instead, he was seeking to use questions with a narrowed
scope to discover the witness’s potential bias in this particular case by seeking to
discover whether collection efforts or billing-related matters were handled
differently because of this particular plaintiff’s lawyer.3 See Tex. R. Civ. P.
192.3(a), 192.3(e), 195; see also Walker v. Packer, 827 S.W.2d 833, 838 (Tex.
1992) (orig. proceeding) (describing holding of Russell as based on “wholesale
2
See also, e.g., In re Ford Motor Co., 427 S.W.3d 396, 397–98 (Tex. 2014)
(orig. proceeding) (overly broad requests sought detailed financial information);
In re Dolezal, 970 S.W.2d 650, 653–54 (Tex. App.––Corpus Christi 1998, orig.
proceeding) (request sought specific documents regarding “any and all attorneys
or law offices”).
3
In her sur-reply, relator’s counsel argued, “Should answers to those
questions reveal that Dr. Siroosian does not actually look to the Plaintiff for
payment of her medical bills (a question Dr. Siroosian refused to answer),
Defendant will seek leave of the trial court to file a controverting affidavit under
Section 18.001(e)(2).”
4
discovery of financial records” of a nonparty, potential medical expert witness
solely for the purpose of impeaching the witness when no circumstances
indicated a possibility for bias). Thus, I believe questions b, c, h, and i are
permitted and governed by the general discovery rules and do not run afoul of
the limitations set forth in the cited cases and other cases following them.
Accordingly, I would grant mandamus relief solely as to questions a, d, e, f,
and g. I would deny the petition as to questions b, c, h, and i.
/s/ Terrie Livingston
TERRIE LIVINGSTON
CHIEF JUSTICE
DELIVERED: December 9, 2014
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