                IN THE SUPREME COURT OF TEXAS
                                             444444444444
                                              NO. 17-0395
                                             444444444444


                             IN RE CAROLINA GARZA, RELATOR
            4444444444444444444444444444444444444444444444444444
                              ON PETITION FOR WRIT OF MANDAMUS
            4444444444444444444444444444444444444444444444444444

                                             PER CURIAM

       In this original proceeding, the plaintiff in a personal injury case arising from a traffic

accident seeks mandamus relief from trial court discovery sanctions. The trial court judge in Jim

Wells County, where the case is pending, denied plaintiff Carolina Garza’s motion for protective

orders regarding discovery sought from some of Garza’s medical providers. The custodians of the

medical providers’ records are located and were served in Bexar County, are not parties to the

lawsuit, and did not participate in the hearing on Garza’s motion in Jim Wells County. The

custodians subsequently sought, and were granted, protective orders in Bexar County. After the

Bexar County district court judge issued his order, the Jim Wells County district court judge granted

the defendants’ motion to exclude and ordered the following to be excluded from trial as sanctions:

(1) testimony by the surgeon who performed spinal surgery on Garza; (2) testimony by employees

and agents of the clinic where the surgeon practiced and the hospital where the surgery took place;

(3) medical records of the surgeon, his clinic, and the hospital; and (4) charges of the surgeon, his

clinic, and the hospital related to Garza.

       We conditionally grant relief.
       The lawsuit underlying this matter resulted from a collision between a car driven by Garza

and a truck owned by UV Logistics, LLC and driven by one of its employees, Alex Rodriguez

(collectively, Logistics). After the accident, Garza sought medical treatment in San Antonio at

Alamo Neurosurgical Institute (ANI), Dr. Michael Leonard’s privately owned practice. On May 2,

2014, Dr. Leonard performed a two-level fusion on Garza’s cervical spine at Foundation Surgical

Hospital of San Antonio (FSH), where Dr. Leonard is an investor and part owner. Garza was

discharged from FSH on May 4, 2014.

       Garza sued Logistics in Jim Wells County. In response to requests for disclosure, Garza

claimed the amount of her past medical expenses was “more than $320,473.74.” That amount

included $75,000 for three hours’ use of an operating room, $77,705 for supplies used during

surgery, and a total hospital bill of over $183,000. Dr. Leonard’s charges exceeded $60,000.

Garza’s disclosures set out that she was claiming damages for

       a.     Reasonable medical care and expenses in the past;
       b.     Reasonable and necessary medical care and expenses, which will, in all
              reasonable probability be incurred in the future;
       c.     Physical pain and suffering in the past;
       d.     Physical pain and suffering, which will, in all reasonable probability be
              suffered in the future;
       e.     Physical impairment and disability in the past;
       f.     Physical impairment and disability, which will, in all reasonable probability
              be suffered in the future;
       g.     Loss of wages in the past;
       h.     Loss of past and future earning capacity;
       i.     Mental anguish in the past;
       j.     Mental anguish that will in all reasonable probability be suffered in the
              future;
       k.     Physical disfigurement in the past and, which will, in all reasonable
              probability, be suffered in the future;
       l.     Cost of medical monitoring and prevention in the future;


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       m.      Exemplary damages; and
       n.      Property damage to her vehicle.

       Garza designated Dr. Leonard as a testifying expert witness and noticed his deposition.

Logistics cross-noticed his deposition and had a subpoena duces tecum issued designating several

categories of documents that Dr. Leonard was to produce at his deposition. The documents included

medical and billing records pertaining to his treatment of Garza, records relating to his billing

practices generally, and previous deposition and trial testimony he had given on behalf of patients

represented by the Thomas J. Henry law firm which was representing Garza.                 Logistics

acknowledges that the documents subpoeaned, in part, were sought as part of an effort to (1) show

that Dr. Leonard, FSH, and ANI were financially connected with the Henry law firm; (2) cast doubt

on Dr. Leonard’s credibility; and (3) support Logistics’ position that the medical procedures

performed by Dr. Leonard were not necessary nor were the charges for them reasonable in amount.

       Dr. Leonard did not produce the subpoeaned records at his deposition. He testified that he

did not receive the subpoena, even though the subpoena’s return reflected that it was served on him

and someone signed his name acknowledging receipt of it. Dr. Leonard testified that he could not

recall details of his previous experiences with the Henry law firm and explained that he employs an

office administrator to handle all of his records. Logistics then noticed the depositions of and had

subpoenas duces tecum issued to Whitney McClain, custodian of records for ANI in Bexar County,

and Marianne Palacio, custodian of records for FSH, also located in Bexar County. McClain and

Palacio were subpoenaed to produce many of the same documents subpoenaed from, but not

produced by, Dr. Leonard. Garza filed a motion to quash in Jim Wells County and Logistics



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responded with a motion to compel. Following a hearing, the Jim Wells County district court judge

ordered the depositions of McClain and Palacio to proceed and directed that the designated

documents be produced.

         McClain and Palacio, who are not parties to the underlying suit, were served with reissued

subpoenas in Bexar County, where they work. They retained counsel and sought protective orders

from the 225th District Court of Bexar County, objecting to the order to produce the subpoenaed

documents and arguing that the documents contained private, confidential, and privileged business

information as well as patient information that could not legally be disclosed under federal

regulations. The Bexar County district court judge granted relief.

         Logistics responded by moving in Jim Wells County to exclude Dr. Leonard as an expert

witness and to exclude recovery of medical expenses from Dr. Leonard, ANI, and FSH. The Jim

Wells County district court judge granted Logistics’ motion to exclude and issued an order

excluding for all purposes (1) Dr. Leonard as an expert witness; (2) expert or fact testimony by all

agents, representatives, and employees of ANI and FSH; (3) evidence in any form concerning

Garza’s charges for her treatment by Dr. Leonard, ANI, and FSH; and (4) all medical records from

Dr. Leonard, ANI, and FSH regarding Garza.

         Garza sought, but was denied in a non-substantive opinion, mandamus relief from the court

of appeals. No. 04-17-00096-CV, 2017 WL 1161169, at *1 (Tex. App.—San Antonio, Mar. 29,

2017).

         In seeking relief here, Garza cites TransAmerican Natural Gas Corp. v. Powell, where we

said,


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       [A] direct relationship must exist between the offensive conduct and the sanction
       imposed. This means that a just sanction must be directed against the abuse and
       toward remedying the prejudice caused the innocent party. It also means that the
       sanction should be visited upon the offender. The trial court must at least attempt to
       determine whether the offensive conduct is attributable to counsel only, or to the
       party only, or to both.

811 S.W.2d 913, 917 (Tex. 1991) (emphasis added). She contends there is no evidence of a direct

relationship between her conduct and the Bexar County court’s quashing of the deposition notices

and subpoenas for McClain and Palacio. She says the Jim Wells County court abused its discretion

by sanctioning her for lawful actions of nonparties. She argues that the sanctions effectively

adjudicated the dispute, were disproportionate to any alleged violations of rules by the nonparties,

substantively served as death penalty sanctions as to her case, and rendered any eventual remedy by

appeal inadequate.

       Logistics counters by arguing that the underlying case is not one in which an expert is

required to prove the collision caused Garza’s injuries, so the exclusion of one expert does not

adjudicate her claim or preclude the presentation of the merits of her case. Logistics contends Garza

is not being sanctioned for the actions of nonparties, but rather for her actions in filing a motion to

quash in the trial court and then, after that motion was denied, enabling what amounts to violations

of the trial court’s orders by McClain and Palacio. As to the requested documents at issue, Logistics

asserts that no information has been requested for which disclosure would violate federal

regulations, or any other privacy laws or interests, because patient identifying information was

expressly to be excluded from the subpoenaed documents. Logistics further maintains that the




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documentation sought was directly related to questions about the necessity of Garza’s medical care

and the reasonableness of the charges in question.

       The Texas Rules of Civil Procedure authorize trial courts to impose sanctions for discovery

abuses. TEX. R. CIV. P. 215.3 (permitting a court to impose appropriate sanctions if the court finds

a party is abusing the discovery process in seeking, making, or resisting discovery). A sanctions

order is subject to review on appeal from the final judgment, TEX. R. CIV. P. 215.3, but, under

certain circumstances, is subject to review before final judgment by writ of mandamus. See

TransAmerican, 811 S.W.2d at 920. But mandamus is both an extraordinary remedy and a

discretionary one. In re Prudential Ins. Co. of Am., 148 S.W.3d 124, 138 (Tex. 2004). For

mandamus to issue, the relator must show both that the trial court’s action was an abuse of discretion

and appeal is an inadequate remedy. Id. at 135–36.

       The first requirement for mandamus to issue—an abuse of discretion—is fulfilled where a

trial court acts without reference to guiding rules or principles or in an arbitrary or unreasonable

manner. In re Ford Motor Co., 165 S.W.3d 315, 317 (Tex. 2005); Loftin v. Martin, 776 S.W.2d 145,

146 (Tex. 1989). The second requirement—appeal is an inadequate remedy—is fulfilled where a

party’s ability to present a viable claim or defense at trial is either completely vitiated or severely

compromised. Walker v. Packer, 827 S.W.2d 833, 843 (Tex. 1992) (orig. proceeding). No specific

definition captures the essence of or circumscribes what comprises an “adequate” remedy; the term

is “a proxy for the careful balance of jurisprudential considerations,” and its meaning “depends

heavily on the circumstances presented.” Prudential, 148 S.W.3d at 136–37. Sanctions that thwart

effective appellate review by precluding a decision on the merits are reviewable by mandamus,


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Braden v. Downey, 811 S.W.2d 922, 928–29 (Tex. 1991), as are sanctions that have the effect of

adjudicating all or a substantial part of a dispute and for which appeal is realistically an inadequate

remedy. See TransAmerican, 811 S.W.2d at 919 (holding that an eventual remedy by appeal is

inadequate where sanctions have the effect of “adjudicating a dispute, whether by striking pleadings,

dismissing an action or rendering a default judgment, but which do not result in rendition of an

appealable judgment”); see also Walker, 827 S.W.2d at 843 (stating that mandamus is available to

correct interlocutory sanctions orders that preclude a trial on the merits). Appeal is not an adequate

remedy where the practically certain effect of the sanctions will be reversal with the attendant waste

of resources and time. See Prudential, 148 S.W.3d at 136.

       We first consider Garza’s assertion that the trial court’s sanctions order was arbitrary and

unreasonable, and thus an abuse of discretion. She maintains that she was not an offending party,

even if there were an offending party in light of provisions of the Rules of Civil Procedure and the

Bexar County court’s ruling. Garza emphasizes that Logistics advances only allegations—not

evidence—that Garza and her attorneys were behind Dr. Leonard’s failing to produce the

subpoenaed records and McClain and Palacio’s obtaining relief from the Bexar County district court.

And although Dr. Leonard, ANI, and FSH are likely interested in Garza’s recovering at least enough

to pay their bills, they simply are not parties to the Jim Wells County lawsuit. Garza asserts that

McClain and Palacio were lawfully permitted to seek the protection they desired in Bexar County

pursuant to rules 176.6(e) and 192.6 of the Texas Rules of Civil Procedure and that the Jim Wells

County court abused its discretion by sanctioning her for their lawful actions. We agree.

       Rule 176.6(e) provides:


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       (e) Protective Orders. A person commanded to appear at a deposition, hearing, or
       trial, or to produce and permit inspection and copying of designated documents and
       things, and any other person affected by the subpoena, may move for a protective
       order under Rule 192.6(b)—before the time specified for compliance—either in the
       court in which the action is pending or in a district court in the county where the
       subpoena was served.

TEX. R. CIV. P. 176.6(e). Further, rule 192.6 specifies:

       (a) Motion. A person from whom discovery is sought, and any other person affected
       by the discovery request, may move within the time permitted for response to the
       discovery request for an order protecting that person from the discovery sought. . . .

       (b) Order. To protect the movant from undue burden, unnecessary expense,
       harassment, annoyance, or invasion of personal, constitutional, or property rights, the
       court may make any order in the interest of justice . . . .

TEX. R. CIV. P. 192.6.

       While the rules permit potential deponents to seek protection for themselves, Logistics

argues that Garza, who is “any other person affected” by the subpoena or the discovery request per

the rules, had already sought and been denied protection as to the discovery requested from McClain

and Palacio. Logistics asserts that because Garza first invoked jurisdiction in Jim Wells County for

determining the necessity of protection, the Jim Wells County court’s order could not later be

collaterally attacked or overturned in another district court. Additionally, Logistics argues that

McClain and Palacio waived objection because they did not seek their own protection following

issuance of the initial subpoenas. Garza counters that she and the nonparty deponents enjoy

independent rights to seek protection and should not be treated as one entity. And further, McClain

and Palacio did not waive objection as the original subpoenas were cancelled and then




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reissued—McClain and Palacio were first in time to challenge the reissued, live subpoenas. We

again agree with Garza.

       McClain and Palacio had independent rights to seek protection under the rules of procedure.

TEX. R. CIV. P. 176.6(e), 192.6. The rules’ use of “and” means that both the potential deponent and

any other person affected by the discovery request are entitled to seek protection by filing motions

for protection. See In re Brookshire Grocery Co., 250 S.W.3d 66, 69 (Tex. 2008) (stating that “and”

is conjunctive and thus “the words ‘and’ and ‘or’ are not interchangeable”) (quoting Bayou Pipeline

Corp. v. R.R. Comm’n of Tex., 568 S.W.2d 122, 125 (Tex. 1978)). The Jim Wells County court’s

order did not impose any hardship on or detriment to Dr. Leonard, ANI, FSH, McClain, or Palacio,

none of whom were parties to or appeared in the Jim Wells County suit. Nor did it incentivize them

to take any action in the Jim Wells County court. Rather, all the effects of the order were visited on

Garza, although there is no evidence to support either an express finding, if one had been made, or

an implied finding that she (1) orchestrated or aided Dr. Leonard’s failure to comply with the

subpoena to produce medical and billing records at his deposition, or (2) disregarded the Jim Wells

County court’s order denying her motion to quash the notices for depositions of McClain and

Palacio by taking some action to induce their seeking of relief from the Bexar County court. Indeed,

as Garza points out, the Jim Wells County court order contains the words “[Garza] has participated

in an effort to usurp the orders of this Court,” but those words were stricken through and are not

either findings in support of or part of the order.




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       We conclude that the trial court acted arbitrarily and abused its discretion by imposing

sanctions on Garza in the absence of evidence that she was an offender. See TransAmerican, 811

S.W.2d at 917.

       Having determined that one of the two requirements for mandamus to issue is satisfied, we

next address the other: whether Garza has an adequate remedy by appeal. In addressing that

requirement, we consider the different categories of evidence the Jim Wells County court ordered

to be excluded from trial, beginning with Dr. Leonard’s testimony and his records.

       Garza argues excluding Dr. Leonard, his testimony, and the ANI medical records from trial

is such a severe action that it serves the same purpose as a death penalty sanction. In support of her

position, she references Revco, D.S., Inc. v. Cooper, where the court of appeals noted,

       In some situations, exclusion of experts may well be only an inconvenience,
       impairing presentation of a party’s case but not precluding trial on the merits. Many
       cases, indeed, do not require expert testimony at all. Others, however, (medical
       negligence cases for example) require expert testimony and cannot be tried without
       it. In those cases, exclusion of experts may well have a death penalty effect.

873 S.W.2d 391, 396–97 (Tex. App.—El Paso 1994, no writ) (holding that a sanction striking an

expert served as a death penalty sanction). Garza contends that excluding Dr. Leonard’s testimony

and the ANI records eliminates, at a minimum, her ability to prove the causation element of her

negligence claim.

       Logistics counters that the underlying action is not a medical malpractice case and excluding

Dr. Leonard, only one treating physician out of Garza’s thirty-plus designated healthcare providers,

and his records does not effectively adjudicate her claim. That is, even without Dr. Leonard’s

testimony and his records, Garza has access to evidence and witnesses to present the merits of her


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case. Per the reasoning in Revco, Logistics asserts that the exclusion of Dr. Leonard serves only as

an inconvenience to Garza. We agree with Garza.

       The exclusion of Dr. Leonard’s testimony and records is likely best categorized as less than

the death penalty sanction Garza maintains it is, but we do not agree with Logistics that it would

amount to no more than an inconvenience. Dr. Leonard treated Garza before her surgery, performed

the surgery, and treated her afterwards. Whether she suffered injuries from the collision, whether

preexisting conditions contributed to the problems for which Dr. Leonard performed surgery, and

how Garza will recover from any injuries and the surgery are, for the most part, what her lawsuit is

about. As set out above, her damages claims, for the greatest part, pivot on her personal injury

claims. And her personal injury claims pivot on the cause and extent of any injuries she suffered

from the collision and her prognosis for the future in light of the surgery. As the surgeon who

performed Garza’s surgery, Dr. Leonard’s testimony will be a substantial part of her case, as will

both the medical and billing records of ANI, where he practices. And as Dr. Leonard’s deposition

makes clear, the ANI records are maintained by employees or agents whose testimony will be

necessary to prove up the records so they will be admissible. See TEX. R. EVID. 803(6), 902(10).

       As to the hospital records and employees, Garza asserts that if the FSH records are excluded,

she will almost certainly suffer a directed verdict as to her claim for past hospital expenses and the

majority of her damages. That being so, she maintains, the exclusion serves as a death penalty

sanction for a significant part of her case. And she says that absent witnesses from FSH, she will

have no way to prove up both the medical and billing records and explain their contents to a

factfinder.


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       Although we do not agree with Garza entirely, the order excluding the FSH records,

employees, and agents puts her in a similar, if not exactly the same, situation as the order regarding

Dr. Leonard and the employees and records of ANI. Absent the FSH medical records, she will have

difficulty demonstrating the significance of her two-level cervical fusion and the observations of the

hospital personnel regarding her immediate postsurgery care. And absent the billing records, she

will have no realistic way of proving up over $180,000 of medical bills—unquestionably a

significant component of her claim for damages. Further, proving up both types of records and

explaining their contents requires the testimony of persons with knowledge of them and familiarity

with them, which means the employees or agents of FSH. We conclude, as we did regarding Dr.

Leonard and the records and employees of ANI, that if FSH’s employees, agents, medical records,

and billing records are excluded from trial, then even though Garza’s claims might not be

completely vitiated, they will be significantly compromised. Thus, an appeal does not provide an

adequate remedy as to the order excluding FSH’s medical and billing records and FSH employees

and agents. See Walker, 827 S.W.2d at 843.

       Logistics questions the relationship between Dr. Leonard, ANI, FSH, and Garza’s attorneys,

as well as the amount of medical charges for a three hour surgery and a three day stay in the hospital.

Whatever that relationship might be, and regardless of whether a factfinder eventually finds the

charges reasonable in amount and necessary for the treatment of injuries from the collision, it

remains at this point that the charges for Garza’s surgery and hospitalization can only be classified

as significant in relation to her claim. While Garza’s damages claims would not be completely

vitiated by excluding Dr. Leonard, the records of ANI and FSH, and ANI and FSH employees and


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agents, her claims would be significantly compromised as we have explained above. That is so

regardless of the number of and types of expertise of the persons named in Garza’s disclosures who

might testify on her behalf if Dr. Leonard and ANI and FSH employees and agents were precluded

from testifying and the ANI and FSH records were excluded.

       Without hearing oral argument, we conclude that Garza is entitled to the mandamus relief

she seeks. See TEX. R. APP. P. 52.8(c). We are confident that the Jim Wells County district court

will set aside the order of March 8, 2017. Our writ of mandamus will issue only in the event the

court fails to promptly do so.



OPINION DELIVERED: April 13, 2018




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