Opinion issued May 23, 2019
In The
Court of Appeals For The
First District of Texas ———————————— NO. 01-18-00424-CV ——————————— DOUG FRANKE, Appellant V. LEONARDO PALAU, M.D. AND HOUSTON CENTER FOR INFECTIOUS DISEASES, P.A., Appellees
On Appeal from the 270th District Court Harris County, Texas Trial Court Case No. 2014-58443
MEMORANDUM OPINION
In this medical malpractice action, Doug Franke appeals from the trial court’s
orders striking his medical expert, denying his motion to designate a substitute
expert, and granting no-evidence summary judgment. Finding no error, we affirm. BACKGROUND
Franke sued Leonardo Palau, M.D. and the Houston Center for Infectious
Diseases, P.A., for medical malpractice in October 2014. Both defendants filed
general denials and asserted several affirmative defenses.
Franke designated Jerrold S. Dreyer, M.D., as an expert on the standard of
medical care and the breach of that standard in July 2015. Dreyer was the sole expert
designated by Franke on these issues.
Palau and the Center repeatedly tried to depose Dreyer. They first requested
his deposition in July 2016 and made second and third requests before the end of
that year. In 2017, they noticed Dreyer’s deposition for January 9, June 14, July 6,
and July 25. After failing to secure his deposition on any of these dates, they moved
to exclude his testimony as a discovery sanction in August 2017. The trial court
denied their motion and instead ordered that:
The deposition of Plaintiff’s retained/designated expert, Jerrold Dreyer, M.D., shall be accomplished on or before Friday, September 8, 2017. Failure to comply with this Order may result in the exclusion of Jerrold Dreyer, M.D. from offering testimony at the time of trial.
The parties approved the order as to form.
The parties agree that Hurricane Harvey derailed the September deposition
even though it had been scheduled to take place in California, where Dreyer resides.
When Franke’s counsel had not produced Dreyer by early October 2017, Palau and
2 the Center moved to compel his deposition. But in lieu of a hearing, the parties
agreed to the entry of an order providing that:
[The deposition of] Plaintiff’s retained/designated expert, Jerrold Dreyer, M.D., shall be accomplished on November 30, 2017. Failure to comply with this Order will result in the exclusion of Jerrold Dreyer, M.D. from offering testimony at the time of trial.
The parties approved this order as to form and substance, and Palau and the Center
noticed Dreyer’s deposition for November 30.
Once again, however, Dreyer’s deposition did not go forward. Just after 9:00
p.m. on November 28, Franke’s counsel requested that the November 30 deposition
be rescheduled as “a personal favor.” Thus, in December 2017, the parties agreed to
the entry of an amended order providing that:
[The deposition of] Plaintiff’s retained/designated expert, Jerrod Dreyer, M.D., shall be accomplished on Monday, January 15, 2018, at 10:00 a.m., in Houston, Texas. Failure to comply with this Order will result in the exclusion of Jerrold Dreyer, M.D. from offering testimony at the time of trial.
The parties approved this order as to form and substance, and Palau and the Center
noticed Dreyer’s deposition for January 15.
The January 15, 2018 deposition did not go forward. After 4:00 p.m. on
Sunday, January 14, Franke’s counsel e-mailed opposing counsel that Dreyer would
“not be able to travel to Houston for tomorrow’s deposition.” Palau and the Center
then moved to exclude Dreyer’s testimony as a discovery sanction and in accord
3 with the terms of the December 2017 agreed order. The trial court granted the motion
to exclude Dreyer in February 2018.
Palau and the Center then moved for no-evidence summary judgment,
contending that, without Dreyer’s expert testimony, Franke had no proof of duty,
breach, or causation. The trial court agreed, rendering a take-nothing judgment
against Franke in March 2018.
The day before the trial court rendered judgment, Franke moved for leave “to
designate a substitute expert witness to address the exact same issues and offer the
same opinions as those of Dr. Dreyer.” Franke argued that unforeseen events, like
Hurricane Harvey, were good cause for allowing the substitution and that the case
could be removed from the two-week April 16, 2018 trial docket to allow the parties
to depose the new expert and prepare for trial. The trial court denied Franke’s motion
for leave to designate a substitute expert.
Franke appeals.
DISCUSSION
Franke contends that the trial court abused its discretion in excluding Dreyer
and disallowing him from substituting another expert. Franke further contends that
the trial court’s no-evidence summary judgment, which was premised solely on his
lack of medical expert testimony, should be reversed as well.
4 I. Discovery Sanctions
A. Standard of review and applicable law
A trial court has broad discretion to impose sanctions on recalcitrant litigants.
Altesse Healthcare Sols. v. Wilson, 540 S.W.3d 570, 572 (Tex. 2018) (per curiam).
We thus review a trial court’s sanctions ruling for an abuse of discretion. Id. at 573.
But the trial court’s discretion to impose sanctions is not limitless. Id. at 572.
There must be a direct relationship between the sanctions imposed by the trial court
and the litigant’s offense and the trial court’s sanctions must be proportionate to the
offense. See id. at 572, 574. A direct relationship between sanctions and the litigant’s
offense exists when the sanctions are directed against the offensive conduct and
toward remedying the prejudice suffered by blameless parties. Petrol. Sols. v. Head,
454 S.W.3d 482, 489 (Tex. 2014). To be proportionate, the sanctions must be no
more severe than necessary to satisfy their legitimate purposes. Id. Proportionality
generally requires that the trial court consider, and in all but exceptional cases
impose, lesser sanctions before levying greater ones. Id.
Death-penalty sanctions, those which deprive a litigant of an opportunity to
be heard on the merits, are reserved for egregious conduct that justifies a
presumption that the litigant’s claims lack merit. Altesse, 540 S.W.3d at 572.
Conduct so egregious as to warrant death-penalty sanctions is limited to situations
involving a party’s flagrant bad faith or counsel’s callous disregard for her
5 responsibilities under the discovery rules. Brookshire Bros. v. Aldridge, 438 S.W.3d
9, 24 (Tex. 2014); Spohn Hosp. v. Mayer, 104 S.W.3d 818, 883 (Tex. 2003) (per
curiam). When a litigant persists in refusing to produce material evidence, in spite
of the imposition of lesser sanctions, a trial court may presume that the litigant’s
claims lack merit. Cire v. Cummings, 134 S.W.3d 835, 839, 841 (Tex. 2004) (relying
on TransAm. Nat. Gas Corp. v. Powell, 811 S.W.2d 913, 918 (Tex. 1991)).
B. Analysis
1. Direct relationship between sanctions and offense
Franke contends that there is not a direct relationship between the sanction
imposed by the trial court and the offense because Dreyer’s failure to appear for a
deposition was not attributable to Franke himself. See Spohn Hosp., 104 S.W.3d at
882–83 (holding direct-relationship requirement unsatisfied where sanction was not
visited on offender). However, the fault need not be attributable to the party himself
in order for the direct-relationship requirement to be satisfied when the sanction is
not directly visited on the party. Palau and the Center were unable to secure Dreyer’s
deposition for more than a year, notwithstanding several court orders requiring
Dreyer to sit for one. The trial court’s sanction—exclusion of Dreyer’s testimony—
was directly related to recalcitrant litigation conduct—Franke’s counsel’s inability
or refusal to produce Dreyer for deposition. While Dreyer’s exclusion undeniably
6 affected Franke, the trial court did not sanction Franke individually for discovery
abuse.
Franke relies on Thompson v. Woodruff, 232 S.W.3d 316 (Tex. App.—
Beaumont 2007, no pet.), for the proposition that his lone expert cannot be excluded
absent evidence that he personally was responsible for the failure to produce Dreyer
for deposition. In that medical malpractice suit, the defendants successfully moved
to exclude the plaintiffs’ expert after the plaintiffs’ counsel—who experienced
serious health problems and went bankrupt during the pendency of suit—repeatedly
failed to produce the expert for deposition. Id. at 318–20. The court of appeals
reversed the trial court’s order excluding the expert and dismissing the plaintiffs’
claims because the record did not show that the plaintiffs themselves “were
personally responsible for the discovery abuse or even aware that their attorney had
failed to produce the expert witness for deposition.” Id. at 321–22.
Thompson is distinguishable. First, in that case, there essentially was no
dispute that the failure to produce the expert for deposition was attributable to the
plaintiffs’ attorney. See id. at 321. The attorney admitted that she did not produce
the expert for deposition because she lacked the funds to hire him and that she
fabricated a scheduling conflict. Id. In contrast, the record in this case does not
unambiguously show that counsel alone was to blame: Franke’s counsel denies fault,
contending that she did not callously disregard the discovery rules and that events
7 beyond her control are to blame. The dispute over Dreyer’s deposition was
protracted and the subject of several motions and orders before his exclusion. On
this record the trial court could have reasonably inferred that Franke was aware of
the situation and therefore bore some responsibility for the failure to produce Dreyer.
See TransAm., 811 S.W.2d at 917 (party bears some blame for lawyer’s abuses when
he is or should have been aware of his lawyer’s conduct and discovery violations).
Second, in Thompson, the trial court excluded the expert “without first
imposing lesser sanctions.” 232 S.W.3d at 322. In this case, however, the trial court
did impose lesser sanctions before excluding Dreyer. The trial court entered three
separate orders requiring Dreyer to be deposed on or before a specified date. The
parties agreed to the entry of the last two of these orders and approved both their
form and substance. These two orders explicitly stated that failure to comply would
result in Dreyer’s exclusion. Orders like these, which compel discovery and threaten
harsher sanctions for noncompliance, qualify as lesser sanctions. See Cire, 134
S.W.3d at 840 (relying on TransAm., 811 S.W.2d at 918); see also Weinberger v.
Longer, 222 S.W.3d 557, 571 (Tex. App.—Houston [14th Dist.] 2007, pet. denied)
(rejecting argument that trial court didn’t first impose lesser sanctions given that it
twice ordered compliance with discovery requests); Andras v. Mem’l Hosp. Sys., 888
S.W.2d 567, 572–73 (Tex. App.—Houston [1st Dist.] 1994, writ denied) (order
8 compelling discovery that includes statement that noncompliance will result in
dismissal is lesser sanction).
Were the law as Franke advocates, an expert whose testimony is essential to
a litigant’s case could never be stricken or excluded, no matter how prolonged the
expert’s refusal to cooperate in discovery, regardless of the egregiousness of
counsel’s disregard of the discovery rules, and heedless of the number of times that
the trial court ordered the expert’s deposition to go forward. In essence, Franke’s
position is that trial courts cannot exclude essential experts even if the party who
retains them, or the party’s counsel, never allows them to be deposed. Franke’s
position conflicts with the law, which requires a party seeking affirmative relief to
make his retained experts available for deposition and allows for their exclusion if
the party does not. TEX. R. CIV. P. 193.6(a), 195.3(a); see Duerr v. Brown, 262
S.W.3d 63, 75–76 (Tex. App.—Houston [14th Dist.] 2008, no pet.) (affirming
exclusion of expert who didn’t appear for deposition even though it doomed legal
malpractice claim).
2. Proportionality of excluding Dreyer’s testimony
Franke contends that the trial court’s exclusion of Dreyer’s testimony was not
proportionate to his repeated failure to produce his designated expert witness
because the trial court failed to consider and impose lesser sanctions. Not so. The
trial court initially denied Palau and the Center’s motion to exclude Dreyer and
9 instead ordered the deposition to take place by September 8, 2017, warning that
failure to comply could result in exclusion. An order like this one, compelling
discovery on pain of a harsher sanction, is a lesser sanction. See Cire, 134 S.W.3d
at 840; Weinberger, 222 S.W.3d at 571; Andras, 888 S.W.2d at 572–73. The trial
court then entered two additional agreed orders requiring the deposition to go
forward. The trial court did not exclude Dreyer until mid-February 2018, after he
had failed to sit for a scheduled deposition multiple times, including occasions when
Franke had expressly agreed to produce him. The trial court imposed a lesser
sanction before excluding Dreyer, but the lesser sanction did not succeed in securing
compliance with the discovery rules, notwithstanding that the trial court’s final
December 2017 order expressly stated that it would exclude Dreyer absent
compliance. See Weinberger, 222 S.W.3d at 571 (noting that trial court’s second
discovery order warned that noncompliance would result in very sanction imposed).
Nor has Franke suggested another sanction that would have succeeded in securing
Dreyer’s attendance.
Franke further contends that Dreyer’s exclusion was excessive. Though he
concedes that punishment and deterrence are legitimate purposes of sanctions, he
argues that these ends do not justify trial by sanctions rather than on the merits. But
sanctions serve an additional legitimate purpose—securing compliance with
discovery. Chrysler Corp. v. Blackmon, 841 S.W.2d 844, 849 (Tex. 1992). Indeed,
10 securing compliance is the primary purpose of discovery sanctions. In re Noble
Drilling (Jim Thompson), 449 S.W.3d 625, 631 (Tex. App.—Houston [1st Dist.]
2014, orig. proceeding). As we noted, the trial court first imposed lesser sanctions
but these failed to secure compliance. When, as here, a litigant does not fulfill key
discovery obligations in the face of lesser sanctions, the trial court may presume that
his claims lack merit and dispose of them. See Cire, 134 S.W.3d at 839; Weinberger,
222 S.W.3d at 571; Berry-Parks Rental Equip. Co. v. Sinsheimer, 842 S.W.2d 754,
758–59 (Tex. App.—Houston [1st Dist.] 1992, no writ).
***
The discovery rules require that parties make their retained experts available
for deposition. The trial court excluded Dreyer after he failed to appear for a
deposition multiple times over the course of a year, during which time the trial court
entered three orders requiring the deposition to proceed. The last of these orders,
which was agreed to by the parties and approved by them as to form and substance,
expressly warned that the trial court would exclude Dreyer for noncompliance. On
this record, we conclude that the trial court did not abuse its discretion.
II. Motion For Leave to Designate a Substitute Expert
We review a trial court’s ruling denying leave to late-designate an expert for
an abuse of discretion. Ft. Brown Villas III Condo. Ass’n v. Gillenwater, 285 S.W.3d
11 879, 881 (Tex. 2009) (per curiam); Wigfall v. Tex. Dep’t of Crim. Justice, 137
S.W.3d 268, 272 (Tex. App.—Houston [1st Dist.] 2004, no pet.).
A party’s failure to timely designate witnesses results in their exclusion,
unless he shows good cause for the late designation or that the failure to timely
designate will not unfairly surprise or prejudice his opponents. TEX. R. CIV. P.
193.6(a); see G.T. Leach Bldrs. v. Sapphire V.P., 458 S.W.3d 502, 514 (Tex. 2015)
(noting that if party “had failed to timely designate experts, it would have forfeited
the right to present expert witnesses if the suits went to trial”). The party seeking to
late-designate a witness bears the burden of showing good cause or the lack of unfair
surprise or prejudice. TEX. R. CIV. P. 193.6(b); Ft. Brown, 285 S.W.3d at 881.
A party who relies on the good-cause exception must make a strict showing.
Alvarado v. Farah Mfg. Co., 830 S.W.2d 911, 915 (Tex. 1992) (interpreting
materially similar predecessor to Rule 193.6). Good cause exists when
circumstances make timely disclosure or designation difficult or impossible. Id.;
Harris Cty. v. Inter Nos, Ltd., 199 S.W.3d 363, 367 (Tex. App.—Houston [1st Dist.]
2006, no pet.). Inadvertence of counsel, lack of surprise, and the uniqueness or
importance of the evidence at issue will not support a finding of good cause.
Alvarado, 830 S.W.2d at 915; Inter Nos, 199 S.W.3d at 367.
As to unfair surprise and prejudice, the inquiry focuses on whether the
particular evidence will cause unfair surprise or prejudice, not whether the general
12 issue or subject matter to which the evidence relates will unfairly surprise or
prejudice the other parties. PopCap Games v. MumboJumbo, 350 S.W.3d 699, 718
(Tex. App.—Dallas 2011, pet. denied); Lopez v. La Madeleine of Tex., 200 S.W.3d
854, 862–63 (Tex. App.—Dallas 2006, no pet.). That a party requires expert
testimony to support its cause of action does not establish that its opponents will not
be unfairly surprised by the untimely designation of an expert. PopCap, 350 S.W.3d
at 718; Ersek v. Davis & Davis, P.C., 69 S.W.3d 268, 272 (Tex. App.—Austin 2002,
pet. denied). Nor does offering one’s opponents an opportunity to depose an
untimely designated expert establish that they will not be unfairly surprised or
prejudiced. PopCap, 350 S.W.3d at 718; Ersek, 69 S.W.3d at 272.
The trial court’s discretion extends to deciding whether the party has carried
its burden to show good cause or lack of unfair surprise or prejudice. Syrian Am. Oil
Corp. v. Pecten Orient Co., 524 S.W.3d 350, 366 (Tex. App.—Houston [1st Dist.]
2017, no pet.). But the trial court’s ruling must be supported by the record. Dyer v.
Cotton, 333 S.W.3d 703, 717 (Tex. App.—Houston [1st Dist.] 2010, no pet.).
1. Good cause
Franke contends that good cause existed to late-designate an expert because
events beyond his control prevented Dreyer’s deposition, including Hurricane
Harvey, the sudden injury or illness of one of his lawyer’s family members, and a
13 flu epidemic that prevented Dreyer from traveling to Houston. Given the record, we
discern no abuse of discretion by the trial court in failing to find good cause.
If the trial court had excluded Dreyer in the immediate aftermath of Hurricane
Harvey, Franke would have a point. But Dreyer repeatedly failed to attend
depositions noticed in the months preceding the hurricane and on several dates well
after the hurricane. Moreover, on all but the last of these dates, in January 2018,
Dreyer’s deposition was slated to take place in New York or California, not Texas.
Franke asserts that Dreyer’s deposition was twice cancelled because his
lawyer’s stepmother became ill in October 2016 and passed away in November
2016. Accepting these representations as true, these events occurred in late 2016,
many months before the trial court entered its three orders concerning Dreyer’s
deposition. The illness and death of counsel’s stepmother in 2016 does not excuse
the failure to produce Dreyer for deposition in 2017 and early 2018.
Franke asserts that Dreyer could not travel to Houston for his deposition in
January 2018 because there was a flu epidemic and this “required his presence to
treat his many patients.” The record contains no evidence, such as an affidavit by
Dreyer, to support this assertion. The trial court did not error in failing to credit an
unsupported assertion made after more than a year of delay.
We conclude that the trial court could have reasonably found that the
circumstances relied on by Franke, considered singly or together, did not amount to
14 the strict showing of difficulty or impossibility necessary to establish good cause.
We thus hold that the trial court did not abuse its discretion in finding that Franke
did not show good cause to untimely designate a substitute expert.
2. Unfair surprise or prejudice
Franke contends that his untimely designation of another expert would not
unfairly surprise or prejudice Palau and the Center because the issues in the case
would remain the same and the substitute expert “would express the same opinions”
as Dreyer. Franke further contends that they would not be unfairly surprised or
prejudiced because he would designate an expert who was local and could be
deposed without the need for travel.
The trial court did not err in failing to find a lack of unfair surprise or prejudice
on the grounds relied on by Franke because these grounds are not legally sufficient
to establish lack of unfair surprise or prejudice. It is immaterial that the issues would
remain the same; an inquiry into unfair surprise or prejudice turns on the particular
evidence, not whether the evidence pertains to the same issues. E.g., PopCap, 350
S.W.3d at 718. The trial court could not, however, assess the impact of any particular
evidence in this instance because Franke did not identify a proposed substitute expert
or provide specifics as to this unidentified expert’s anticipated testimony. While
Franke asserts that his new expert would have offered the same opinions as Dreyer,
this claim is unsubstantiated. The trial court was not obligated to presume that
15 Franke would locate another expert who would agree to offer the same opinions as
Dreyer or that the new expert would do so on the same bases as Dreyer. Franke’s
assertion that this unidentified expert could be deposed with ease likewise cannot
support a finding of lack of unfair surprise or prejudice because the ability to depose
a new expert does not preclude unfair surprise or prejudice. See id.
Franke also asserts that Palau and the Center would not be unfairly surprised
or prejudiced because the trial court could have continued trial to allow further
discovery. Franke does not explain how a continuance would alleviate any unfair
surprise or prejudice and the record belies his position. This case was scheduled for
trial on the April 16, 2018 two-week docket. Franke did not move to late-designate
another expert until almost a month beforehand and 20 days after Palau and the
Center moved for no-evidence summary judgment. By then, Franke’s suit had been
pending for almost three and a half years. At bottom, Franke’s position that a
continuance to conduct further discovery would prevent unfair surprise or prejudice
merely restates his position that the ability to depose his unidentified substitute
expert would do so.
Nor is it self-evident that the trial court would have granted a continuance had
Franke sought one. A trial court cannot grant a continuance “except for sufficient
cause supported by affidavit, or by consent of the parties, or by operation of law.”
TEX. R. CIV. P. 251. When, as here, want of testimony is the basis for a continuance,
16 the affidavit must show that the party seeking the continuance “has used due
diligence to procure such testimony, stating such diligence, and the cause of failure,
if known.” TEX. R. CIV. P. 252. The explanations that Franke has offered—Hurricane
Harvey and its aftermath, the injury or illness of a member of counsel’s family, and
a flu epidemic—seek to explain his inability to provide an expert for deposition but
do not substantiate that he was diligent in trying to do so.
We conclude that the trial court could have reasonably found that, just as
Franke did not show good cause, he did not show a lack of unfair surprise or
prejudice. We therefore hold that the trial court did not abuse its discretion in
denying Franke leave to untimely designate another expert in Dreyer’s stead.
CONCLUSION
We affirm the judgment of the trial court.
Gordon Goodman Justice
Panel consists of Chief Justice Radack and Justices Goodman and Countiss.