                                 NO. 07-10-0483-CV

                            IN THE COURT OF APPEALS

                     FOR THE SEVENTH DISTRICT OF TEXAS

                                    AT AMARILLO

                                      PANEL C

                                  JANUARY 6, 2011

                        ______________________________


                         IN RE: BETTY PALACIO, RELATOR

                       _________________________________

           FROM THE 237TH DISTRICT COURT OF LUBBOCK COUNTY;

               NO. 2009-550,142, HONORABLE LES HATCH, JUDGE

                        _______________________________

Before QUINN, C.J., and HANCOCK and PIRTLE, JJ.


                              MEMORANDUM OPINION


      This original proceeding arises out of a discovery dispute in connection with a

personal injury lawsuit filed by Relator, Betty Palacio, wherein she alleges she was

injured as the result of a workplace accident.    During discovery, the Real Party in

Interest, McDonald's Restaurants of Texas, Inc. ("McDonald’s"), issued notices of their

requests for the production of documents from two non-parties: United Supermarkets

and Bryan's Steaks. Relator moved for an order quashing both notices and a protective

order. The trial court granted, in part, the motion to quash as to United Supermarkets,
but denied the motion as to Bryan's Steaks.        Contending the trial court abused its

discretion in failing to grant both motions in their entirety, Relator seeks mandamus

relief from this Court. For the reasons to follow, we decline to grant the relief requested.


                                        Background


       In her original petition, Relator contends that she suffered an elbow injury when

she fell at her place of employment. McDonald's discovered that Relator had previously

sustained injuries to her knee from a fall as a patron at Bryan's Steaks and was taking

medications dispensed by the pharmacy at United Supermarkets. McDonald’s sought

to discover documents relating to the fall at Bryan's Steaks and the medications

dispensed by United Supermarkets. Following a hearing on Relator's motion to quash

the request for production notices, the Honorable Les Hatch denied the motion to quash

as to Bryan's Steaks, but limited the scope of discovery as to United Supermarkets by

restricting the production request to records dating back three years prior to the fall the

subject of the present litigation.


                                     Scope of Discovery


       A party to pending litigation has the right to obtain discovery "regarding any

matter that is not privileged and is relevant to the subject matter of the pending action."

Tex. R. Civ. P. 192.3(a). The phrase "relevant to the subject matter" is to be "liberally

construed to allow the litigants to obtain the fullest knowledge of the facts and issues



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prior to trial." Ford Motor Co. v. Castillo, 279 S.W.3d 656, 664 (Tex. 2009) (quoting

Axelson, Inc. v. McIlhany, 798 S.W.2d 550, 553 (Tex. 1990)). Information is relevant if it

tends to make the existence of a fact that is of consequence to the determination of the

action more or less probable than it would be without the information. Tex. R. Evid.

401. Therefore, the preemptive denial of discovery is proper if there exists no possible

relevant, discoverable testimony, facts, or material which would support or lead to

evidence that would support a claim or defense. Ford Motor Co., 279 S.W.3d at 664.


                           Mandamus Standard of Review


      “Mandamus issues only to correct a clear abuse of discretion or the violation of a

duty imposed by law when there is no other adequate remedy by law.”            Walker v.

Packer, 827 S.W.2d 833, 839 (Tex. 1992) (orig. proceeding), (quoting Johnson v.

Fourth Court of Appeals, 700 S.W.2d 916, 917 (Tex. 1985) (orig. proceeding)). To

establish an abuse of discretion, the complaining party must demonstrate that the trial

court acted unreasonably, arbitrarily, or without reference to any guiding rules and

principles. See Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex.

1965). When a petition for writ of mandamus is filed, the relator bears the burden to

show entitlement to the relief requested. Johnson, 700 S.W.2d at 917. Therefore,

under the facts of this case, in order to show entitlement to mandamus relief Relator

would have to establish that the trial court's decisions pertaining to Relator's motion to

quash were so outside the permissible scope of discovery as to be unreasonable or



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arbitrary; that is, that the requested discovery could not possibly lead to the disclosure

of relevant, discoverable testimony, facts, or materials.


       When it comes to privileged documents, mandamus is the appropriate remedy

when the trial court has erroneously granted discovery. In re Fort Worth Children's

Hosp., 100 S.W.3d 582 (Tex.App.--Fort Worth 2003, orig. proceeding).             The party

resisting discovery has the burden to plead the privilege and to produce evidence

demonstrating the applicability of the privilege. See Tex. R. Civ. P. 193.4(a); Peeples v.

Honorable Fourth Supreme Judicial District, 701 S.W.2d 635, 637 (Tex. 1985).


                                          Analysis


       Relator contends the trial court abused its discretion by denying her motion to

quash as to both Bryan's Steaks and United Supermarkets because the requests for

production exceeded the scope of allowable discovery by requesting information or data

that was not relevant to the pending litigation. The accident at Bryan's Steaks was a

slip-and-fall.   The claim in the present litigation is a slip-and-fall.   Although Relator

contends that she suffered different injuries in the two events, evidence of similar

accidents or events may be admissible to rebut allegations of causation. See Middleton

v. Palmer, 601 S.W.2d 759, 763 (Tex.Civ.App.--Dallas 1980, writ ref'd n.r.e.) (allowing

evidence that plaintiff was involved in another accident to show inconsistent statements

by plaintiff as to causation).      Because discovery of the facts and circumstances

surrounding Relator's injury at Bryan's Steaks could lead to the disclosure of information


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relevant to a consequential issue, i.e. causation, the trial court did not abuse its

discretion in denying Relator's motion to quash. Furthermore, evidence pertaining to

the prescription medications being taken by Relator is relevant to her claim of damages.

Tex. R. Evid. 401.


       Relator further contends that any information to be obtained from United

Supermarkets is protected from disclosure by the physician-patient privilege. See Tex.

R. Evid. 509(c)(1) and (2). Because Rule 509(c)(2) specifically pertains to treatment

records created or maintained by a physician, the records of a pharmacy are not

protected from disclosure by the physician-patient privilege. See Fort Worth Children's

Hosp., 100 S.W.3d at 589 (holding that where hospital failed to present evidence that

documents the subject of a discovery request were created or maintained by a

physician, it failed to carry its burden to prove that the documents were subject to the

physician-patient privilege). See also Walgreen Co. v. Hieger, 243 S.W. 3d 183, 186

(Tex.App.--Houston [14th Dist.] 2007, pet. denied) (finding that a registered pharmacist

and clinical professor at the College of Pharmacy at the University of Texas was not a

"physician"). Furthermore, Relator failed to produce any evidence demonstrating the

applicability of the physician-patient privilege.




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                                    Conclusion


      Because the information sought was both relevant and discoverable, the trial

court did not abuse its discretion in denying Relator's motion to quash as to either

United Supermarkets or Bryan's Steaks.       Relator's request for mandamus relief is

denied.


                                               Per Curiam




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