in Re George Wharton, M.D.

Opinion

IN THE

TENTH COURT OF APPEALS

 

No. 10-04-00315-CV

In re George Wharton, M.D

Original Proceeding

CONCURRING Opinion

          I cannot tell if the Court rejects the trial court’s order because 1) the record does not reflect that Wharton will be an expert witness at trial; 2) Wharton’s credibility has not been put at issue at this juncture; or 3) Johnson failed to present evidence raising the possibility that Wharton is biased.

          The “new” Rule 192.3 of the Rules of Civil Procedure appears to broaden, to some extent, what is discoverable from an expert by expressly authorizing discovery of bias.  But discovery of expert bias evidence must be closely monitored and controlled by the trial court.  In this instance, I believe it is sufficient to order the trial court to withdraw its discovery order because it is overly broad.  The testimony already elicited and produced in discovery may be some evidence of bias, but by no means is it conclusive evidence of bias.  But some evidence of bias does not authorize litigants to obtain every shred of paper that may possibly confirm the bias.

          Because Wharton has testified, or consulted, in many cases, he may have testimony, given over a period of time, which appears to be contradictory.  Contradictory testimony, alone, is not evidence of bias.  At best, this type of contradictory testimony is evidence which may be used to impeach a witness.  There is a difference between impeachment evidence generally and evidence of bias, which is a specific subset of impeachment evidence.  Discovery of bias evidence is what is expressly permitted by the rule.  But a document request, or in this case a subpoena duces tecum, has never been a proper discovery tool to conduct a fishing expedition, particularly to try to find impeachment evidence limited to bias.  Fish in a deposition.  Make a request for specific documents.

          What I cannot tell from the majority’s opinion is whether at the instant it is determined Wharton will be a testifying expert, all the requested documents are discoverable, or will only be discoverable if Wharton is a witness and bias is proven to the satisfaction of the trial court, or whether the discoverability is prohibited until Wharton’s credibility is made an issue by showing contradictory testimony.  Thus, because I cannot tell why the majority is conditionally issuing the writ, I cannot join their opinion. 

          I repeat the appropriate portion of former Chief Justice Phil Hardberger’s concurring opinion issued by the San Antonio Court, finding these words particularly appropriate to the facts of this case because, in addition to tax returns, we have the confidential patient information included in Dr. Wharton’s reports in other litigation that were ordered by the trial court to be produced in this case:

I concur in the result the majority reaches, though, not because of the language in Russell, but because the trial court in this case failed to explore other methods of obtaining the information contained in Dr. Grossman's income tax schedules before ordering their production.  See El Centro del Barrio, Inc. v. Barlow, 894 S.W.2d 775, 780 (Tex. App.—San Antonio 1994, orig. proceeding) (stating tax returns are not material if the same information can be obtained from another source);  see also Olinger v. Curry, 926 S.W.2d 832, 834-35 (Tex. App.—Fort Worth 1996, orig. proceeding) (holding tax returns not discoverable where doctor admitted to potential bias in deposition); Kern v. Gleason, 840 S.W.2d 730, 738 (Tex. App.—Amarillo 1992, orig. proceeding) (asserting party seeking production must show information unavailable from another source).  Less intrusive methods for the discovery of bias exist, such as through depositions as demonstrated in Olinger.  Protection of privacy is of constitutional importance, and a trial court abuses its discretion by requiring the disclosure of tax returns when the same information can be obtained from another source.  Sears, Roebuck & Co. v. Ramirez, 824 S.W.2d 558, 559 (Tex.1992); El Centro del Barrio, Inc., 894 S.W.2d at 780.

          In this case, there was no showing that the information the plaintiffs sought to obtain was unavailable from another source, or that the other potential sources of such information, i.e, interrogatories, requests for admission, depositions, etc., had been pursued before seeking discovery of the tax returns.  Since the trial court failed to explore other methods of obtaining the information, it abused its discretion, and there is no need to determine whether rule 192.3(e)(5) overrules Russell and its progeny.  Because I believe the majority addresses an important issue that is not necessary for the resolution of this proceeding, I concur in the granting of mandamus relief but not the language of the majority's opinion.

In re Doctor’s Hosp. of Laredo, Ltd Partnership, 2 S.W.3d 504, 507-508 (Tex. App.—San Antonio 1999, orig. proceeding) (Hardberger, C.J., concurring).

          Because I believe the scope of the ordered discovery is overly broad for discovery on the issue of bias, I concur in the result of this proceeding.

                                                          TOM GRAY

                                                          Chief Justice

Concurring opinion delivered and filed June 15, 2005

style='font-size:14.0pt;font-family:"CG Times"'>Texas

Trial Court # F36313

MEMORANDUM  Opinion

      This appeal concerns convictions for four counts of aggravated sexual assault and one count of burglary of a habitation.  We will affirm.

      In two issues, Appellant contends that his trial counsel failed to render the effective assistance of counsel.  In his first issue, Appellant complains of counsel’s representation in the punishment phase of trial.  In his third issue, Appellant complains of counsel’s representation in the guilt and punishment phases.  Appellant contends that counsel did not render effective assistance in: (1) not introducing more evidence that Appellant was eligible for probation, (2) not calling witnesses at the hearing on her motion to suppress evidence or at trial, (3) not setting hearings on some of her motions, (4) not making an opening statement, (5) improperly objecting to some of the State’s evidence, and (6) insufficiently cross-examining the State’s witnesses.  The record does not show the reasons for counsel’s conduct.  See Massaro v. United States, 538 U.S. 500, 504-506 (2003); Murphy v. State, 112 S.W.3d 592, 601 (Tex. Crim. App. 2003), cert. denied, 124 S. Ct. 1660 (2004).  None of the conduct of which Appellant complains could never constitute legitimate strategy.  See Murphy at 601.  We overrule Appellant’s first and third issues.

      In Appellant’s second issue, he contends that the trial court erred in overruling his objections to what Appellant calls “inappropriate references” to him during the State’s argument in the punishment phase, such as calling him “a predator,” “a coward,” “a sexual predator,” an “enemy of the State of Texas,” and “evil.”  These closing arguments by the State constitute reasonable deductions from the evidence.  See Wesbrook v. State, 29 S.W.3d 103, 115 (Tex. Crim. App. 2000).  The trial court did not err in overruling Appellant’s objections.  See id.  We overrule Appellant’s second issue.

      Having overruled Appellant’s issues, we affirm the judgment.

Chief Justice

Before Chief Justice Gray,

      Justice Vance, and

      Justice Reyna

      (Justice Vance concurs with a note.  I believe that we owe it to the litigants, the higher courts, the Bench and Bar, and the public generally to provide more of the facts and our analysis in memorandum opinions such as this, particularly in a case involving five life sentences.  I concur in the result, even though I have reservations about the propriety of some of the terms used by the prosecution to describe the defendant in final argument.  See Tompkins v. State, 774 S.W.2d 195, 217-18 (Tex. Crim. App. 1987), aff'd, 490 U.S. 754, 109 S.Ct. 2180, 104 L.Ed.2d 834 (1989)).

Opinion delivered and filed October 13, 2004

Affirmed

Do not publish

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