                                  IN THE
                          TENTH COURT OF APPEALS



                                 No. 10-14-00077-CV

       IN RE MEDTRONIC, INC. AND GARY DAVID WILLIAMS


                                Original Proceeding



                           MEMORANDUM OPINION


      Medtronic, Inc. and Gary David Williams (hereinafter "Medtronic") have filed a

petition for a writ of mandamus asking this Court to compel the Honorable Ken

Keeling, presiding judge of the 278th District Court of Walker County, to set aside a

sanctions order for improper contact with an expert witness and an order that granted

the McAdamses' request for a spoliation instruction, awarded monetary sanctions, and

excluded evidence pursuant to rule 215 of the rules of civil procedure for discovery

abuse. We conditionally grant the petition in part, and deny it in part.

      Mandamus is an extraordinary remedy, only available where the party seeking

mandamus relief has established both a clear abuse of discretion by the trial court and
the lack of an adequate appellate remedy. Walker v. Packer, 827 S.W.2d 833, 840 (Tex.

1992).

Background Facts

         A pump that discharged morphine was implanted in Tina McAdams after back

surgery. The McAdamses contend that Tina was told by hospital personnel at the time

of her discharge that she should also continue taking all prescribed oral medications,

which included morphine. Three days after Tina was discharged from the hospital, she

passed away from what an autopsy determined to be morphine toxicity. Tina's estate

and surviving family members filed a wrongful death suit against Medtronic, the

manufacturer of the pump, and Williams, who was employed by Medtronic and who

programmed the pump in the operating room, as well as the hospital and several

members of the hospital staff.

         During the discovery process, the McAdamses filed two motions for sanctions

against Medtronic and Williams. The first was based on what the McAdamses alleged

was an improper contact with the McAdamses' retained consulting expert by counsel

for Medtronic, for which the McAdamses sought sanctions in the form of denying

Medtronic and Williams the ability to call any expert witnesses or introduce other

evidence that Tina's death was not caused by an overdose from the pump. The second

motion was based on what the McAdamses contended was Medtronic's spoliation of

the morphine that had been expelled from the pump after it was removed during the



In re Medtronic, Inc.                                                           Page 2
autopsy.      In the second motion, the McAdamses sought monetary sanctions to

reimburse their counsel and expert for the cost of a trip to Medtronic's facility in

Minnesota, a jury instruction regarding spoliation of evidence, and the exclusion of

testimony regarding the amount of fluid that was or could have been in the pump after

explantation.

        After a hearing on both motions on March 28, 2013, the trial court granted the

McAdamses' requested relief in full. Medtronic filed a motion to reconsider the trial

court's rulings, which was held on February 28, 2014 and denied by the trial court. The

McAdamses contend that the petition for a writ of mandamus should be barred by

laches, which we will address first.

Laches

        The McAdamses argue that mandamus should be barred by laches because

Medtronic waited almost 3 months after the entry of the trial court's orders to file a

motion to reconsider which was then not heard for several months, resulting in the

hearing taking place 11 months after the entry of the trial court's order. We note

initially that the issuance of a writ of mandamus is controlled largely by equitable

principles even though it is not an equitable remedy. In re Int'l Profit Assocs., Inc., 274

S.W.3d 672, 676 (Tex. 2009) (orig. proceeding) (per curiam). A delay in the filing of a

petition for writ of mandamus may waive the right to mandamus unless the relator can

justify the delay. Id.



In re Medtronic, Inc.                                                                Page 3
        Medtronic argues that the motion to reconsider was necessary to proceed with

this mandamus action because "[a] party's right to mandamus relief generally requires a

predicate request for some action and a refusal of that request." In re Perritt, 992 S.W.2d

444, 446 (Tex. 1999) (orig. proceeding) (per curiam). Shortly after the trial court entered

the orders, the judge became unavailable for an extended period of time due to medical

leave, and after his return, the hearing was rescheduled once due to a weather closure.

We do not find that in this proceeding laches is an appropriate basis on which to deny

this petition.

Sanctions—Expert Witness

        In its first issue, Medtronic complains that the trial court abused its discretion by

granting the McAdamses' motion for sanctions due to its improper contact with an

expert hired by the McAdamses.          The McAdamses filed the motion alleging that

Medtronic's trial counsel was told that the McAdamses had hired Dr. Wayne Snodgrass

as a consulting expert on toxicology in January of 2012, an allegation which counsel for

Medtronic strenuously denied.       We will presume that the trial court resolved this

factual dispute in the favor of the McAdamses. In the summer of 2012, Medtronic, in an

effort to retain Snodgrass as an expert, contacted him and provided documents which it

contends were privileged. In December of 2012, counsel for Medtronic stated that for

the first time she heard the McAdamses' counsel say something about Snodgrass when

they were all at Medtronic's facility for the testing of the pump. In January of 2013, after



In re Medtronic, Inc.                                                                  Page 4
confirming that Snodgrass had been retained by the McAdamses, counsel for Medtronic

advised the McAdamses that Medtronic had been in contact with Snodgrass and

provided him with privileged documents.         Medtronic's trial counsel claimed that

Snodgrass did not notify her prior to January of 2013 that he had been retained by the

McAdamses. The McAdamses filed a motion for sanctions which sought as its only

remedy the sanction which the trial court granted exactly as stated in their motion.

        Medtronic asserts that the trial court abused its discretion by imposing death

penalty sanctions for its conduct without considering lesser sanctions.                 The

McAdamses, on the other hand, assert that the trial court's order does not impose

"death penalty" sanctions. Therefore, we will next address whether the trial court's

order imposed death penalty sanctions.

        Discovery sanctions can be used to adjudicate the merits of a party's claims when

a party's hindrance of the discovery process justifies a presumption that its claims lack

merit, also known as a death penalty sanction. Cire v. Cummings, 134 S.W.3d 835, 841

(Tex. 2004). A death penalty sanction adjudicates a claim and precludes presentation of

the merits of the case. TransAmerican Natural Gas Corp. v. Powell, 811 S.W.2d 913, 918

(Tex. 1991) (orig. proceeding).    Although death penalty sanctions are most often

thought of in the context of striking pleadings or rendering a default judgment, any

sanctions that are case determinative may constitute death penalty sanctions, including




In re Medtronic, Inc.                                                                  Page 5
those that exclude essential evidence. GTE Commc'ns Sys. Corp., 856 S.W.2d at 732; see

also Braden v. Downey, 811 S.W.2d 922, 929 (Tex. 1991) (orig. proceeding).

        Medtronic contends that the trial court's order imposes death penalty sanctions

because it determines the issue of liability by forbidding it to introduce expert

toxicology or pharmacological evidence regarding the functioning of the pump. The

trial court's order granting the motion for sanctions for improperly contacting

Snodgrass states that "Defendants shall be prohibited from introducing any toxicology

(including pharmacological) expert evidence at the time of trial that the decedent, Tina

McAdams' death did not occur from morphine toxicity as a result of an overdose of

morphine that was dispensed from the Subject Pump."

        The McAdamses counter that the trial court did not impose death penalty

sanctions because the prohibition regarding expert testimony is not case determinative.

The McAdamses contend that Medtronic will still be able to present evidence regarding

its affirmative defenses and that the pump was used improperly after implantation.

        The trial court's sanctions order states that certain facts shall be taken to be

established, and Medtronic may not put on any evidence to the contrary. We conclude

that the order imposes death penalty sanctions because it adjudicates the central issue

to the case, that being that the pump caused the morphine toxicity which resulted in the

death of Tina McAdams. See TransAmerican Natural Gas Corp., 811 S.W.2d at 918. We

therefore review the order under the standards applicable to death penalty sanctions.



In re Medtronic, Inc.                                                             Page 6
        When a court imposes death penalty sanctions that have the effect of

adjudicating the dispute, but which do not result in the rendition of an appealable

judgment, there is no adequate remedy by appeal. TransAmerican Natural Gas Corp., 811

S.W.2d at 919. Because the trial court's order constituted a death penalty sanction in the

form of evidentiary sanctions, Medtronic has no adequate remedy by appeal and thus,

mandamus is an appropriate vehicle to challenge the trial court's order.

Consideration of Sanctions

        Medtronic argues that the trial court did not consider the imposition of lesser

sanctions that would bear some nexus between the alleged conduct and the sanction. A

trial court may not impose sanctions that are more severe than necessary to satisfy

legitimate purposes. Cire, 134 S.W.3d at 839. Any sanction must be "just"; that is: (1) a

direct relationship must exist between the offensive conduct and sanction imposed; and

(2) a sanction must not be excessive. TransAmerican Natural Gas Corp., 811 S.W.2d at

917.

        Under the first prong, a direct relationship exists if a trial court directs the

sanction against the abuse found and it remedies the prejudice caused to the innocent

party. Id. This means that the trial court must also at least attempt to determine

whether the offensive conduct is attributable to counsel only, or to the party only, or to

both. Id.




In re Medtronic, Inc.                                                               Page 7
        Under the second prong, sanctions must not be excessive, and the trial court

must have considered whether lesser sanctions were available that would have fully

promoted compliance. Id. Generally, before a sanction that prevents a decision on the

merits is justified, lesser sanctions must first be tested to determine their efficacy. Cire,

134 S.W.3d at 840. In all but the most exceptional cases, the trial court must actually test

the lesser sanctions before striking pleadings. Id. at 842. In all cases, the record must

reflect that the trial court considered the availability of appropriate lesser sanctions and

must contain an explanation of the appropriateness of the sanction imposed. Id. The

trial court need not test the effectiveness of each available lesser sanction by actually

imposing the lesser sanction on the party before issuing the death penalty sanction;

rather, the trial court must analyze the available sanctions and offer a reasoned

explanation as to the appropriateness of the sanction imposed. Id. at 840.

        The record demonstrates that counsel for Medtronic was the person who made

contact with Snodgrass and who was responsible for providing him with privileged

work product information from Medtronic.             The record does not indicate that

Medtronic or Williams were involved in the allegedly improper contacts with

Snodgrass or that either of them was aware of Snodgrass's identity. Additionally, the

record is silent regarding the trial court's consideration or attempt to impose lesser

sanctions.     We find that the trial court's order for improper contact of Snodgrass

constituted an abuse of discretion because there is no direct relationship between the



In re Medtronic, Inc.                                                                  Page 8
contact of Snodgrass and the sanctions imposed as to Medtronic and Williams rather

than their trial counsel. Further, we find that the trial court's order constituted an abuse

of discretion because there is nothing in the record to show that the trial court

attempted or even considered lesser sanctions prior to the entry of the death penalty

sanction. We sustain issue one.

Spoliation of Evidence

        In their second issue, Medtronic complains of the trial court's orders granting a

presumptive spoliation jury instruction, awarding monetary sanctions, and excluding

any evidence regarding what "was or could have been" the quantity or concentration of

morphine that was contained in the bag with the pump from the time of the

explantation of the pump. The pump had been explanted from Tina during the autopsy

and was stored by the facility that performed the autopsy for approximately four years

before the parties reached an agreement to have the pump tested at a Medtronic facility

in Minnesota pursuant to an agreed protocol.

        The pump was sent by Susan Jones, the administrator of the facility where the

autopsy was performed, to Medtronic's facility in plastic Ziploc-type bags placed in a

box. Jones averred that liquid had continued to be expelled from the pump after

explantation, and that liquid was included in the bag when she placed it in a box for

shipping. Upon arrival at Medtronic's facility in May of 2012, an employee opened the

box and when he realized what the contents were, he resealed the box and placed it in



In re Medtronic, Inc.                                                                 Page 9
storage.     The employee notified counsel for Medtronic, who did not inform the

McAdamses' counsel.

        The parties agreed to meet at Medtronic's facility in December of 2012 for testing.

The McAdamses arranged for an expert to attend the testing on their behalf. When the

box was produced, the McAdamses discovered that the box had been previously

opened. When the box was reopened, it was discovered that there was no liquid in the

bag with the pump and there were no visible signs that any liquid had leaked inside the

box. The McAdamses were unable to measure or test the remaining liquid, which they

contended was lost due to Medtronic's negligence or intentional act. The McAdamses

filed a motion seeking monetary sanctions, a spoliation instruction, and the exclusion of

testimony based on the loss of the liquid, which the trial court granted in its entirety.

The order was entered as a sanction based on the alleged discovery abuse by Medtronic

by opening the box containing the pump and liquid, and by failing to preserve the

liquid within the box.

        Generally,      orders   imposing   discovery   sanctions,   including   spoliation

instructions, are reviewable on appeal from the final judgment. TEX. R. CIV. P. 215.3; see

also Shupe v. Lingafelter, 192 S.W.3d 577, 579 (Tex. 2006) (review of decision to submit or

refuse a particular instruction on appeal is under abuse of discretion standard); Wal-

Mart Stores, Inc. v. Johnson, 106 S.W.3d 718, 724 (Tex. 2003) (spoliation jury instruction

imposed as discovery sanction reviewed on appeal). Medtronic has not established that



In re Medtronic, Inc.                                                               Page 10
remedy by appeal is inadequate to review this order relating to the spoliation

instruction or the monetary damages. The trial court's jury instruction on spoliation

does not constitute a death penalty sanction because it only creates a rebuttable

presumption regarding the fluid in the pump. Likewise we do not find that the trial

court's order regarding monetary sanctions or the limitation on evidence regarding the

fluid that was or could have been in the pump constitutes a death penalty sanction, and

therefore, Medtronic has an adequate remedy by appeal of that issue.

        Because we conclude that Medtronic has an adequate remedy by appeal,

mandamus review is not available for those issues. Walker, 827 S.W.2d at 844. We do

not reach, and consequently express no opinion as to the correctness of the order, but

only conclude that Medtronic has an adequate appellate remedy to address any alleged

abuse of the trial court's discretion including the propriety of whether the spoliation

instruction in its currently stated form should be included in the charge at the time of

trial. We overrule issue two.

Conclusion

        We conclude that the trial court abused its discretion by imposing death penalty

sanctions in the form of evidentiary sanctions against Medtronic relating to the

improper contact with Snodgrass, and find that Medtronic does not have an adequate

remedy by appeal. Accordingly, we conditionally grant the petition for writ of

mandamus, in part, and direct the trial court to vacate its March 28, 2013 order entitled



In re Medtronic, Inc.                                                             Page 11
"Order Granting Plaintiff's Motion for Sanctions and for Relief under TRCP 215 for

Improper Contact of Plaintiffs' Consulting Expert." The writ will only issue if the trial

court does not act in conformity with this opinion. We deny the remainder of the

petition regarding the second order entered that included the spoliation instruction,

monetary sanctions, and evidence exclusion.




                                         TOM GRAY
                                         Chief Justice

Before Chief Justice Gray,
       Justice Davis, and
       Justice Scoggins
Conditionally granted in part, denied in part
Opinion delivered and filed May 22, 2014
[OT06]




In re Medtronic, Inc.                                                             Page 12
