                                 NUMBER 13-18-00401-CV

                                    COURT OF APPEALS

                          THIRTEENTH DISTRICT OF TEXAS

                             CORPUS CHRISTI - EDINBURG


              IN RE PETER BUFFA, M.D., NICHOLAS GREEN, R.N.,
               AND VHS HARLINGEN HOSPITAL COMPANY, LLC
            D/B/A VALLEY BAPTIST MEDICAL CENTER–HARLINGEN


                           On Petition for Writ of Mandamus.


                                 MEMORANDUM OPINION

              Before Justices Contreras, Longoria, and Hinojosa
                 Memorandum Opinion by Justice Hinojosa 1

        Relators Peter Buffa, M.D., Nicholas Green, R.N., and VHS Harlingen Hospital

Company, LLC d/b/a Valley Baptist Medical Center–Harlingen filed a petition for writ of

mandamus in the above cause seeking to compel the trial court to order the production

of a two-page document that was withheld from discovery on grounds that it was shielded

from discovery under the allied-litigant privilege. This Court requested and received a



        1 See TEX. R. APP. P. 52.8(d) (“When denying relief, the court may hand down an opinion but is not
required to do so.”); id. R. 47.4 (distinguishing opinions and memorandum opinions).
response to the petition from the real parties in interest, Frank Molina, individually and on

behalf of the estate of Blanca Estella Molina, deceased, Stephanie Molina, and Carlos

Molina. See TEX. R. APP. P. 52.2, 52.4, 52.8. We have also received a reply to the

response from relators.

       To obtain relief by writ of mandamus, a relator must establish that an underlying

order is void or a clear abuse of discretion and that no adequate appellate remedy exists.

In re Nationwide Ins. Co. of Am., 494 S.W.3d 708, 712 (Tex. 2016) (orig. proceeding); In

re Prudential Ins. Co. of Am., 148 S.W.3d 124, 135–36 (Tex. 2004) (orig. proceeding);

Walker v. Packer, 827 S.W.2d 833, 839–40 (Tex. 1992) (orig. proceeding). An abuse of

discretion occurs when a trial court’s ruling is arbitrary and unreasonable or is made

without regard for guiding legal principles or supporting evidence. In re Nationwide, 494

S.W.3d at 712; Ford Motor Co. v. Garcia, 363 S.W.3d 573, 578 (Tex. 2012). A trial court

abuses its discretion when it fails to analyze or apply the law correctly or apply the law

correctly to the facts. In re Nationwide, 494 S.W.3d at 712; In re H.E.B. Grocery Co., 492

S.W.3d 300, 302 (Tex. 2016) (orig. proceeding) (per curiam).

       We determine the adequacy of an appellate remedy by balancing the benefits of

mandamus review against the detriments. In re Essex Ins. Co., 450 S.W.3d 524, 528

(Tex. 2014) (orig. proceeding); In re Prudential Ins. Co. of Am., 148 S.W.3d at 136. In

deciding whether the benefits of mandamus outweigh the detriments, we weigh the public

and private interests involved, and we look to the facts in each case to determine the

adequacy of an appeal. In re United Servs. Auto. Ass’n, 307 S.W.3d 299, 313 (Tex. 2010)

(orig. proceeding); In re McAllen Med. Ctr., Inc., 275 S.W.3d 458, 469 (Tex. 2008) (orig.

proceeding); In re Prudential Ins. Co. of Am., 148 S.W.3d at 136–37. Mandamus “may



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be essential to preserve important substantive and procedural rights from impairment or

loss, [and] allow the appellate courts to give needed and helpful direction to the law that

would otherwise prove elusive in appeals from final judgments.” In re Prudential Ins. Co.

of Am. 148 S.W.3d at 136.

       In 2007, the Texas Supreme Court stated that appellate courts “generally do not

review orders refusing to compel discovery.” In re Allied Chem. Corp., 227 S.W.3d 652,

658 (Tex. 2007) (orig. proceeding). However, in cases in which discovery is improperly

denied, a party will not have an adequate remedy by appeal: (1) when the appellate court

would not be able to cure the trial court’s discovery error, such as when privileged

information or trade secrets would be revealed or production of patently irrelevant or

duplicative documents imposing a disproportionate burden on the producing party is

ordered; (2) where the party’s ability to present a viable claim or defense at trial is vitiated

or severely compromised by the trial court’s discovery error; and (3) where the trial court

disallows discovery and the missing discovery cannot be made a part of the appellate

record or the trial court, after proper request, refuses to make it part of the record. See

In re Allied Chem. Corp., 227 S.W.3d at 658; In re Van Waters & Rogers, Inc., 145 S.W.3d

203, 210–11 (Tex. 2004) (orig. proceeding); In re Ford Motor Co., 988 S.W.2d 714, 721

(Tex.1998) (orig. proceeding); In re Colonial Pipeline Co., 968 S.W.2d 938, 941

(Tex.1998) (orig. proceeding) (per curiam); Walker, 827 S.W.2d at 843–44. A denial of

discovery goes to the heart of a party’s case when the party is prevented from developing

essential elements of its claim or defense. Able Supply Co. v. Moye, 898 S.W.2d 766,

772 (Tex. 1995) (orig. proceeding).




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       We apply the foregoing principles to determine whether mandamus relief is

warranted for the trial court’s denial of discovery. See, e.g., In re Ten Hagen Excavating,

Inc., 435 S.W.3d 859, 863–64 (Tex. App.—Dallas 2014, orig. proceeding); In re Galveston

Cent. Appraisal Dist., 252 S.W.3d 904, 906 (Tex. App.—Houston [14th Dist.] 2008, orig.

proceeding).

       We note that the trial court reviewed the sealed documents at issue, as have we.

Even assuming without deciding that the trial court erred in determining that the sealed

documents are shielded from discovery under the allied-litigant privilege and granting the

motion for protection filed by the real parties in interest, issues we need not reach here,

we cannot say that these rulings vitiate or severely compromise relators’ ability to present

a viable defense at trial or that relators are prevented from developing essential elements

of their defenses. See In re Allied Chem. Corp., 227 S.W.3d at 658; In re Van Waters &

Rogers, Inc., 145 S.W.3d at 210–11.        Accordingly, we deny the petition for writ of

mandamus. See TEX. R. APP. P. 52.8(a), 52.10(b).

                                                               LETICIA HINOJOSA
                                                               Justice

Delivered and filed the
27th day of November, 2018.




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