in Re INVISTA S.A.R.L.

In The
Court of Appeals
Ninth District of Texas at Beaumont
________________
NO. 09-18-00351-CV
________________
IN RE INVISTA S.A.R.L.
__________________________________________________________________
On Appeal from the 136th District Court
Jefferson County, Texas
Trial Cause No. D-201,939
__________________________________________________________________
MEMORANDUM OPINION
Relator INVISTA S.à.r.l. (“INVISTA”), a respondent 1 in a Rule 202
proceeding in Cause Number D-201,939, Jacqulyn McDonald, Individually and as
Representative of the Estate of David Lee McDonald v. INVISTA S.à.r.l. d/b/a
INVISTA S.à.r.l., LLC, et al., seeks a writ of mandamus compelling the Honorable
Baylor Wortham, Judge of the 136th District Court, to vacate his order requiring
INVISTA to produce a witness or witnesses for deposition and subpoena duces
1
Another respondent, Eric Hinton, did not seek mandamus relief.
1
tecum. See Tex. R. Civ. P. 202. For the reasons explained herein, we conditionally
grant the writ of mandamus.
BACKGROUND
The real party in interest, Jacqulyn McDonald, alleges that her father, David
Lee McDonald,2 died of cancer due to overexposure to a toxic substance while
working during a turnaround at INVISTA’s facility in Orange, Texas. McDonald
filed a verified petition for Rule 202 discovery, in which she asserted that INVISTA
was involved in or has knowledge of decedent’s exposure to toxic substances that
caused or contributed to his death. In her petition, McDonald sought the following:
depositions, documents, and electronic materials referencing or related
to (1) any exposure to butadiene and/or another toxic substance while
[decedent] was at Respondents’ facility and/or working for
Respondents; (2) companies and persons involved in the exposure as
well as the manufacture and/or maintenance of the substances,
equipment, fixtures, area, materials, and appurtenances involved; and
(3) any related investigations including internal and by third parties and
governmental entities.
McDonald’s petition stated that she sought “all emails, electronic information,
documents, and other tangible evidence in Respondent[’]s possession or to which it
2
Because the real party in interest and the decedent share the same last name,
we will refer to the real party in interest as “McDonald” and to her father as
“decedent.”
2
has access that references or relates to these issues[,]” as well as the depositions of
respondent Eric Hinton and an INVISTA corporate representative.
McDonald asserted that the discovery would reveal information and
documents “related to potential wrongful death and survival claims, as well as
potential defendants.” According to McDonald, the requested discovery would
prevent a failure or delay of justice by allowing her to “evaluate potential claims and
secure information regarding proper parties[,]” and she asserted that the requested
discovery is narrowly tailored to the issues and facts underlying her potential claims.
McDonald also contended that the benefit of the discovery would outweigh “any
burden or expense.”
INVISTA filed a response, in which it raised a general denial and asserted that
the trial court lacked subject-matter jurisdiction. INVISTA also argued that
McDonald had failed to exhaust her administrative remedies, and that the discovery
McDonald sought is outside the scope of Rule 202. Additionally, INVISTA
contended that McDonald’s petition failed to demonstrate that the benefit of the
requested discovery outweighed its burden and expense and that the requested
discovery would prevent a failure or delay of justice. INVISTA also filed an
objection to McDonald’s Rule 202 petition, in which it reiterated the objections in
its response and provided argument and authorities.
3
McDonald filed a response to INVISTA’s objections, in which she provided
argument and authorities for her assertions that the trial court has subject-matter
jurisdiction; the exhaustion of remedies doctrine does not apply to possible claims
against non-employer tortfeasors; INVISTA had not shown that it was decedent’s
employer; Rule 202 permits discovery of documents in conjunction with nonparty
depositions; and INVISTA had not demonstrated undue burden. On August 29,
2018, the date of the Rule 202 hearing, McDonald filed a supplement to her Rule
202 petition, in which she stated that INVISTA “engaged in intentional, grossly
negligent, and negligent acts and omissions that caused or contributed to
[decedent]’s exposure and wrongful death.” In the supplemental petition, McDonald
also alleged that “persons and companies other than [decedent]’s employer
committed acts and/or omissions that caused or contributed to his exposure and
wrongful death, including contractors, manufacturers, other companies, and persons
who owed independent duties to [decedent]. Respondents apparently have exclusive
access to this information and refuse to disclose it.”
Attached to the supplemental petition was a document that purportedly
constituted correspondence between McDonald and a person who represented that
he had worked with the decedent. In that document, the alleged coworker asserted
that (1) both he and the decedent were exposed to a carcinogenic chemical; (2) blood
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samples taken from both after the exposure were deemed unsuitable; (3) “they
needed new samples . . . because the results were really bad and they didn’t want to
be liable[;]” and (4) the decedent told him that the nurse and “one of the head safety
guys” asked the decedent if he was “okay” two or three weeks after the exposure and
told the decedent there were “some unusual results in his blood work.” Also attached
to the supplemental petition was an affidavit, signed by McDonald’s counsel, which
stated that the document was a “true and accurate copy of correspondence between
[McDonald] and a person who represented himself to be [decedent]’s coworker.”
As discussed above, on August 29, 2018, the trial court conducted a hearing
on McDonald’s Rule 202 petition. At the hearing, the trial court heard arguments of
counsel, but no evidence was offered. The next day, McDonald’s counsel filed a
letter with the court, attached to which was McDonald’s sworn declaration, in which
she stated, among other things, that (1) the benefits department told her that the
decedent was employed by Invista; (2) the alleged co-worker referenced above had
contacted her and informed her that he and the decedent had been exposed to
butadiene, which “is known to cause cancer[;]” (3) that blood tests had been
conducted and “people involved seemed to be covering up what had happened[;]”
(4) the decedent “was told there were unusual results in his blood work[;]” (5) the
decedent’s sister told McDonald that the decedent said he had been offered “hush
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money[;]” and “[t]he OSHA website says an investigation was opened into the
Invista facility in Orange, Texas shortly after we filed the petition to take pre-suit
discovery.”
The trial court signed an order granting McDonald’s Petition for Rule 202
discovery. 3 In its order, the trial court stated that it had considered “all evidence,
briefing, argument, and all other various materials presented by counsel,” including
the petition for Rule 202 discovery, McDonald’s supplement to the petition,
McDonald’s declaration, the attorney verifications, and all exhibits. The trial court
found that (1) permitting McDonald to take the requested depositions and to secure
documents and materials “may prevent a failure or delay of justice in an anticipated
suit[,]” and (2) the likely benefit to McDonald “outweighs the burden or expense of
the procedures.” The trial judge ordered INVISTA to present “a witness or
witnesses” for oral deposition who could testify regarding McDonald’s alleged
exposure to butadiene or other toxic substances; persons and entities who were onsite
at the location of the incident or who controlled the location; “persons and entities
involved in the custody, control, manufacture, construction, modification,
maintenance, and/or inspection of the substances, equipment, fixtures, area,
3
The order in the electronically filed sworn mandamus record is not dated;
however, INVISTA stated in its motion for emergency stay that the trial judge signed
the order on August 31, 2018.
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materials, and appurtenances involved in the [i]ncident;” and investigations into the
incident, including “what persons and entities may have been involved or otherwise
responsible for the [i]ncident.” In addition, the trial judge ordered INVISTA to
produce at the deposition (1) any report regarding the incident, (2) documentation
reflecting persons and entities onsite where the incident occurred, and (3) materials
the witness or witnesses reviewed to prepare for the deposition.
At the hearing, the trial judge stated as follows to INVISTA’s counsel:
[U]nless there is something you can articulate for me here in court on
the record as to a materially disadvantageous or prejudicial effect that
that supplemental filing would have on your ability to defend the 202
hearing or to be able to represent your client, I don’t believe that I have
any discretion to deny them leave for the late filing. I agree with you
the rules do say 15 days, although it’s not hard and fast.
The trial court’s written order did not contain a finding that justice or necessity
required shortening the notice period under Rule 202. See Tex. R. Civ. P. 202.3(d).
STANDARD FOR MANDAMUS REVIEW
Mandamus is available when a trial court clearly abuses its discretion and the
relator lacks an adequate remedy by appeal. In re Sw. Bell Tel. Co., 235 S.W.3d 619,
623 (Tex. 2007) (orig. proceeding). A trial court abuses its discretion if it reaches a
decision so arbitrary and unreasonable as to constitute a clear and prejudicial error
of law, or if it fails to correctly analyze or apply the law. In re Cerberus Capital
Mgmt., L.P., 164 S.W.3d 379, 382 (Tex. 2005) (orig. proceeding). Because an order
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permitting a presuit deposition pursuant to Rule 202 of the Texas Rules of Civil
Procedure is not a final, appealable order, mandamus is the proper avenue by which
to challenge such an order. See In re Hewlett Packard, 212 S.W.3d 356, 360 (Tex.
App.—Austin 2006, orig. proceeding [mand. denied]).
ISSUE FOUR
In issue four, which we address first, INVISTA argues that the trial court
lacked subject-matter jurisdiction to enter the order because McDonald did not
exhaust her administrative remedies under the Texas Workers’ Compensation Act.
Although the Texas Workers’ Compensation Act vests the power to award
compensation benefits solely in the Workers’ Compensation Commission, subject
to judicial review, judicial review is not available until the aggrieved party has
exhausted its administrative remedies. See Tex. Lab. Code Ann. § 410.251 (West
2015); In re Contractor’s Supplies, Inc., No. 12-09-00231-CV, 2009 WL 2488374,
at *3 (Tex. App.—Tyler Aug. 17, 2009, orig. proceeding) (mem. op.). “‘It is well
settled that the taking of [presuit] depositions is not an end within itself but is in aid
of a suit which is anticipated. The taking of depositions to perpetuate testimony is
ancillary to the anticipated suit.’” In re Contractor’s Supplies, Inc., 2009 WL
2488374, at *3 (quoting Office Emp. Int’l Union Local 277, AFL-CIO v. Sw. Drug
Corp., 391 S.W.2d 404, 406 (1965)). Because a petition for presuit deposition “does
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not request final or even preliminary adjudication[,]” it does not interfere with the
exclusive jurisdiction of an administrative agency. Id. Therefore, the exhaustion of
administrative remedies doctrine does not apply, and the trial court has subject-
matter jurisdiction of McDonald’s Rule 202 petition. See id. Accordingly, we
overrule issue four.
ISSUE ONE
In its first issue, INVISTA asserts that the trial court abused its discretion by
granting McDonald’s Rule 202 petition because McDonald did not offer, nor did the
trial court admit, any supporting evidence at the hearing. “A trial court abuses its
discretion by ordering a presuit deposition if the petitioner does not make the
showing required by [R]ule 202.” In re Contractor’s Supplies, Inc., 2009 WL
2488374, at *5. Rule 202.1 provides that a person may petition the court for an order
authorizing the taking of the deposition on oral or written questions to investigate a
potential claim or suit. Tex. R. Civ. P. 202.1(b). The petition must be verified. Tex.
R. Civ. P. 202.2. Additionally, the petition must be served at least fifteen days before
the date of the hearing on the petition, but the court may shorten the notice period
“[a]s justice or necessity may require[.]” Tex. R. Civ. P. 202.3 (a), (d). The court
must order a deposition to be taken only if it finds that “(1) allowing the petitioner
to take the requested deposition may prevent a failure or delay of justice in an
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anticipated suit; or (2) the likely benefit of allowing the petitioner to take the
requested deposition to investigate a potential claim outweighs the burden or
expense of the procedure.” Tex. R. Civ. P. 202.4. “Rule 202 depositions are not now
and never have been intended for routine use. There are practical as well as due
process problems with demanding discovery from someone before telling them what
the issues are.” In re Jorden, 249 S.W.3d 416, 423 (Tex. 2008) (orig. proceeding).
McDonald argues that Rule 202 requires the filing of a verified petition, but
it does not mention or require “evidence.” According to McDonald, rules of statutory
construction require the Court to presume that evidentiary requirements “were
excluded for a purpose.” Additionally, McDonald asserts that the “authenticated text
messages,” “various pleadings[,]” and verifications are not hearsay because they are
not used to prove the truth of the matters asserted therein. McDonald asserts that the
statements are instead being used to demonstrate a good faith basis for conducting
the requested discovery, to show that the benefit of conducting the discovery
outweighs the burden, and that the requested discovery “will prevent a failure of
justice in an anticipated suit.” Furthermore, McDonald argues that even if the
statements constituted hearsay, exceptions to the hearsay rule would permit their
admission into evidence.
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As the petitioner, McDonald had the burden to show either that allowing her
to take the depositions would prevent a failure or delay of justice in an anticipated
suit, or that the likely benefit of allowing her to take the requested depositions to
investigate a potential claim or suit outweighs the burden or expense of the
procedure. In re Hochheim Prairie Farm Mut. Ins. Ass’n, 115 S.W.3d 793, 795 (Tex.
App.—Beaumont 2003, orig. proceeding). “The law is clear that a petitioner seeking
a presuit deposition must present evidence to meet its burden to establish the facts
necessary to obtain the deposition.” In re East, 476 S.W.3d 61, 68 (Tex. App.—
Corpus Christi 2014, orig. proceeding). Sworn, verified pleadings are generally not
competent evidence to prove the facts asserted in the pleading. In re Dallas Cnty.
Hosp. Dist., No. 05-14-00249-CV, 2014 WL 1407415, at *2 (Tex. App.—Dallas
Apr. 1, 2014, orig. proceeding) (mem. op.).
We conclude that McDonald’s verified pleadings do not constitute proper
evidence supporting her Rule 202 petition. See id. In addition to reliance upon her
verified pleadings, McDonald points to the text messages and verifications as
evidentiary support for her petition. Assuming without deciding that the trial court
did not abuse its discretion by considering McDonald’s late-filed declaration and the
text messages, neither of which was introduced at the hearing, both McDonald’s
declaration and the text messages from the decedent’s co-worker contain hearsay.
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See Tex. R. Evid. 801(d) (defining hearsay as a statement the declarant does not
make while testifying at the current trial or hearing and that a party offers to prove
the truth of the matter asserted in the statement). The declaration and text messages
are offered for the truth of what they assert to demonstrate: the necessity of taking
presuit depositions. See id.; see generally Tex. R. Civ. P. 202.4(a)(1). Moreover, we
conclude that McDonald did not demonstrate that a hearsay exception would have
permitted introduction of the text messages and declaration into evidence. The text
messages and declaration also facially demonstrate that they are not based upon the
declarants’ perceptions. See Tex. R. Evid. 701(a) (providing that a lay witness may
only offer opinion that is rationally based on the witness’s perception). For all these
reasons, we sustain issue one. Because they would not result in greater relief, we
need not address INVISTA’s remaining issues. See Tex. R. App. P. 47.1.
In sum, we conclude that the trial judge’s order constitutes an abuse of
discretion because McDonald did not provide evidence supporting her petition, and
INVISTA has no adequate remedy at law. We conditionally grant the writ of
mandamus. We are confident that the trial court will promptly vacate its order of
August 31, 2018, which required INVISTA to produce a witness for deposition and
subpoena duces tecum, and the writ will issue only if the trial court fails to do so.
Our stay order issued on September 11, 2018, is lifted.
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PETITION CONDITIONALLY GRANTED.
PER CURIAM
Submitted on September 21, 2018
Opinion Delivered November 1, 2018
Before McKeithen, C.J., Horton and Johnson, JJ.
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