in Re Interinsurance Exchange of the Automobile Club

Opinion

ACCEPTED 01-14-00979-cv FIRST COURT OF APPEALS HOUSTON, TEXAS 1/22/2015 12:04:29 PM CHRISTOPHER PRINE CLERK

CASE NO. 01-14-00979-CV

IN RE INTERINSURANCE § FILED IN THEIN FIRST 1st COURT OF APPEALS EXCHANGE OF THE § HOUSTON, TEXAS AUTOMOBILE CLUB, § COURT OF12:04:29 1/22/2015 APPEALSPM Relator. § CHRISTOPHER A. PRINE Clerk § HOUSTON, TEXAS § § § § § § § § §

SUPPLEMENTAL RESPONSE TO THE PETITION FOR WRIT OF MANDAMUS

Come now, John Amponsah and Melanie Amponsah ("Amponsahs"), Real

Parties in Interest, and make this Supplemental Response to the Petition for Writ of

Mandamus.

I.

AUTHORITIES

A. Bias, reliability and credibility of a retained testifying expert witness are always relevant.

Page 1 of 14 1.1 The Amponsahs are entitled to discover information about the retained

testifying expert's potential bias. 1 In In re Doctor 's Hosp., the reach of Rule

192.3(e) was in question, the scope of discovery regarding testifying and

consulting experts. 2 In that action, plaintiffs sought discovery of the defendant

hospital ' s expert witness physicians, the physicians being non-parties. Plaintiffs

requested by subpoena all schedules of their federal income tax returns, and the

personal calendars of one of the expert witnesses. The trial court ordered

production of the requested documents .3 The defendant hospital petitioned for writ

of mandamus, on the ground that income tax schedules and calendars of non-party

witnesses are not discoverable to show bias.

1.2 On appeal, the court acknowledged that bias is relevant, admissible and 4 discoverable. However, for a non-party witness, personal financial records and

appointment books are off-limits to show bias.5 That personal information, in that

context, went beyond the scope of discovery. But, even with that limitation, the

court confirmed that bias is allowed to be discovered, " [w] e therefore read the rule

1 Texas Rule of Civil Procedure 192.3(e)(5). 2 In re Doctor's Hosp. , 2 S.W. 3d 504, 507 (Tex. App.-San Anton io 1999). 3 The trial co urt ordered production of th e federal income tax retu rns for the past 3 years to show incom e derived as either a testifying or co nsulting expert. Personal calendars were ord ered to be produced for one of th e expert witnesses, for the past 3 years. 4 Texas Rule of Evidence 6 13(b); Texas Ru le of Civil Proced ure 192. 3; In re Doctor's Hosp. , 2 S.W.3d at 506. 5 In re Doctor's Hosp. , 2 S.W. 3d at 506.

Page 2 of 14 to permit discovery of bias evidence, other than the personal financial records and

appointment books of nonparty witnesses." 6

B. The remedy is extraordinary, only for a clear abuse of discretion when there is no adequate remedy on appeal. Relators have offered no evidence to show why this extraordinary remedy is necessary.

1.3 First and foremost, mandamus is an extraordinary remedy, requiring proof of 7 (1) a clear abuse of discretion, and (2) no adequate remedy on appeal. A trial

court abuses its discretion clearly, only if "it reaches a decision so arbitrary and

unreasonable as to amount to a clear and prejudicial error of law." 8 Regarding

matters committed to the discretion of the trial court, a reviewing court cannot

substitute its judgment for that of the trial court. 9 Relator must prove that the trial

court could have reached only one decision. 10 Even if the reviewing court would

have decided the issue differently, it cannot change the ruling of the trial court 11 absent proof that the trial court ruling was arbitrary and unreasonable. Relator

has offered no evidence that the trial court' s order was arbitrary or unreasonable.

It was Relator's voluntary choice to hire the same engineer over 50 times in the

course of about 14 years. It was Relator who designated this engineer as their

retained testifying expert witness. It was the retained engineer who testified in

deposition that that "70-80%" of the time, he concludes that something other than a 6 ld. at 507. 7 Walker v. Packer, 827 S.W. 2d 833, 839 (Tex. 1992). 8 Johnson v. Fourth Court of Appeals, 700 S.W.2d 916 , 917 (Tex. 1985). 9 Walker, 827 S.W.2d at 839 . 10 ld. at 840. 11 ld.

Page 3 of 14 plumbing leak caused the foundation to sink and fail. On this type of insurance

coverage, Relator uses that opinion to deny coverage, just as they did with the

Amponsahs. All of this evidence was presented to the trial court. The trial court

found that with the issue on whether Relator had a duty to perform the contract,

meaning pay the claim, seeing this engineer's reports on other foundation failure

claims from plumbing leaks, was reasonably calculated to lead to admissible

evidence, and so ordered the reports, not once but twice.

1.4 In contrast, a trial court has no discretion in determining the law to apply or

in applying the law to the facts. 12 The complaint here by Relator is not on the law

to be applied, or even applying the law to the facts, but rather the scope of

discovery; well-settled to be within the trial court's discretion. 13 Thus, Relator has

not and cannot show a clear abuse of discretion. Likewise, Relator has not and

cannot show the trial court acted unreasonably in ordering this retained expert's

reports, that despite different situations on different claims, manages to reach the

same conclusion most of the time.

1.5 The Texas Supreme Court has addressed the very issue that Relator

complains about, and their ruling and rationale point to denying mandamus in this

instance. In Walker, 14 the Texas Supreme Court found the trial court's denial of

12 ld. 13 Flores v. Fourth Court of Appeals, 777 S.W.2d 38, 41 -42 (Tex. 1989)(holding that determination of discoverability under Tex. R. Civ. P. 166(3)(d) was within discretion of trial court) . 14 Walker v. Packer, 827 S.W.2d 833, 839 (Tex. 1992).

Page 4 of 14 the requested discovery, which the trial court based solely on the Texas Supreme

Court holding in Russell v. Young, 452 S.W.2d 434 (Tex. 1970), was an abuse of

discretion, because it was the wrong interpretation of the law. Relator in Walker

wanted discovery of an employer's policy in regard to doctors testifying, the

doctors being non-party expert witnesses. 15 The trial court keyed on the fact that

the witness was not a party and the discovery was for impeachment only. The trial

court decided that producing the documents was controlled by the Supreme Court

decision in Russell, and denied the discovery. 16

1.6 On review of the Walker trial court decision, the Texas Supreme Court

found the trial court overlooked an important distinction in the Russell decision. In

Russell, the party wanted "wholesale discovery" of financial records of a non-party

expert witness, for only proving bias or prejudice. 17 The Supreme Court

emphasized that "the credibility of the witness, however, had not yet been put in

doubt," and so under those circumstances in Russell, the documents sought were

not discoverable. 18 Distinguishing Walker from Russell, the employer's policy

touching on expert doctors testifying, raised the possibility of expert witness bias,

casting doubt on the expert's credibility. The discovery sought was not global as

in Russell but rather narrowly-tailored to information of potential bias suggested

15 Walker, 827 S.W. 2d at 838. 16 ld . 171d. 18 ld.

Page 5 of 14 "by the witness' own deposition testimony .... " 19 In denying the discovery in

Walker, the trial court misinterpreted the Russell decision as an absolute bar to

discovery, rather than using a more flexible approach based on the circumstances. 20

It was the trial court's incorrect legal conclusion that amounted to a clear abuse of . . 21 d1scretwn. The Supreme Court said the trial court should have allowed the

discovery of documents reasonably calculated to show potential bias of the expert . 22 witness.

1.7 Here, in the matter before this Court, Relator complains of the trial court's

order to produce their retained expert witness' reports, a matter entirely within the

trial court's discretion. No evidence has been offered to show the trial court made

an incorrect determination of law, or misapplied the law, which is pre-requisite to

proving "clear abuse of discretion." Relator argues that their retained expert

witness' testimony admitting having been hired more than 50 times by Relator, is

evidence enough of bias. Relator contends that, because of the expert admitting

being hired so many times before, producing the requested reports from those other

engagements is beyond the scope of discovery. Simply admitting being hired by

Relator is no evidence of bias, as Relator suggests, and no doubt Relator, and

probably the expert witness himself, would never admit that such expert witness is

19 ld . 20 ld. 21 ld. at 840. 22 ld . at 839.

Page 6 of 14 biased. The habitual hirings are only evidence of a long-standing business

relationship. The critical factor is the extent to which the expert witness

follows/ignores accepted scientific methodology, standards and analysis, which

speaks to the reliability of his opinions. 23 The extent to which the expert witness

ignores accepted science, and renders opinions favorable to Relator, speaks to his

bias. That determination can only be made after seeing the reports, which the trial

court ordered.

1.8 The expert's opinion in this action was the sole ammunition that Relator

used to deny the Amponsahs' claim. 24 When the expert witness himself testified

that "70-80%" those other foundation claims ended with the cause of foundation

failure being "unrelated to a plumbing leak," meaning no coverage for the insurer

who hired him, the witness' credibility is in doubt. 25 When the witness' credibility

is in doubt, the Texas Supreme Court has ruled that discovery on bias is allowed.

1.9 Under almost identical facts, the Texas Supreme Court found that there is

coverage in this situation. 26 In Balandran, just as in this action, a plumbing leak

under the foundation caused the foundation to fail and caused damage to the home.

23 Mack Trucks, In c. v. Tamez, 206 S.W.3d 572 , 581 (Tex. 2006). 24 Exhibit F. Defendant Interinsurance Exchange of the Automobile Club's First Supplemental Response to Plaintiff's First Set of Interrogatories, Interrogatory Number 6. 25 Exhibit A. Pages 30. 26 Exhibit A. Pages 29-30 ; Balandran v. Safeco Ins. Co., 972 S.W.2d 738 (Tex. 1998)(holding that exclusion in standard homeowners' Form B insurance policy--the same as the Amponsahs' Form B policy--for loss to dwelling caused by settling , cracking , bulging , shrinkage, or expansion of foundations , did not apply to structural damage from a plumbing leak, which was the same exclusion cited as the reason for denial of the Amponsahs' claim for structural damage caused by the plumbing leak).

Page 7 of 14 The homeowners had Form B insurance coverage, just like the Amponsahs. The

insurer denied the claim, citing the exact same exclusion, identical wording to the

exclusion in the Amponsahs' policy, that Relator cited in denying the Amponsahs '

claim. 27 With credibility in question, and discovery narrowly-tailored to lead to

admissible evidence on credibility, i.e. the methodology, standards, analysis and

opinions in those other engagements for this same insurer, those other reports are

absolutely fair game and should be produced. 28

1.10 Relator's second hurdle is to prove no adequate remedy on appeal,

fundamental to mandamus relief. 29 That Relator might be saddled with delay or

expense through the normal appellate path, instead of the extraordinary path of

mandamus, on a discovery dispute, does not justify mandamus. 30 The Texas

Supreme Court's v1ew on mandamus relief in a discovery dispute favors the

Amponsahs. At least three contexts have been cited where, in regard to a

discovery dispute, there is no adequate remedy on appeal, thereby warranting

mandamus:

(1) when the trial court incorrectly orders discovery of privileged information, patently irrelevant or duplicative documents;

(2) when a party's ability to present a viable claim or defense at trial is vitiated or severely compromised by the trial court's error; and

27 Exhibit C. Balandran v. Safeco Ins. Co. , 972 S.W.2d 738 (Tex. 1998). 28 Walker v. Packer, 827 S.W.2d 833, 839 (Tex. 1992). 29 Holloway v. Fifth Court of Appeals , 767 S.W.2d 680, 684 (Tex. 1989). 30 Walker, 827 S.W.2d at 842 .

Page 8 of 14 (3) when discovery is not allowed and the missing discovery cannot be made part of the appellate record for review later. 31

1.11 These factors all weigh in favor of the Amponsahs. The discovery at issue

here is not privileged. The discovery is not duplicative, as Relator is dragging their

feet for months now to not produce the reports, and certainly not irrelevant as the

trial court has found them relevant in this situation. Without the reports, it would

vitiate or compromise the Amponsahs' evidence, not any claim of Relator's. The

reports go to the heart of the credibility of the Relator's retained expert witness.

Evidence from the other engineering reports could very well render his opinions

here not credible. If so, Relator would have no basis for denying the Amponsahs'

claim, proving Realtor's breach of contract. Without the reports, no evidence

could be submitted for the appellate record, if necessary. Evidence exempted from

discovery would not be part of the record, rendering it impossible for a reviewing

court to determine whether denying the discovery was harmful. 32

1.12 In Walker, the Texas Supreme Court ruled that Relator had an adequate

remedy by appeal, and so mandamus was denied. Relator in that case was seeking

mandamus of the trial court's order denying the discovery. Discovery at issue

there was viewed as not vitiating or severely compromising Relator's legal rights.

Most important, the discovery was before the trial court. The trial court saw the

31 ld . at 843. 32 Jampole v. Touchy, 673 S. W.2d 569, 576 (Tex. 1984) .

Page 9 of 14 documents. The trial court examined and considered the documents, before

ultimately deciding to deny the discovery. That discovery was available for

appeal. 33 The exact opposite scenario exists now before for this Court. The trial

court here considered the pleadings and evidence, ordered the discovery, and

upheld its order on Relator's appeal to the trial court. Relator is trying to obstruct

discovery that the trial court ordered. The trial court here has not seen the reports.

The trial court has not been afforded an opportunity to determine their

admissibility. If the reports are not produced, they will not be available on appeal.

If mandamus is granted, Relator will have successfully concealed the truth. The

purpose of discovery is to seek the truth, so disputes may be decided by what facts

are revealed, not by what facts are concealed. 34

Wherefore, premises considered, Relator's petition for mandamus must be

denied.

33 Walker, 827 S.W. 2d at 838. The trial court reviewed th e relevant depositions and plead ings, and ordered the production of th e requested docum ents for in came ra review , before th e trial co urt denied the discovery . 34 Axelson, Inc. v. Mcllhany, 798 S.W.2d 55 0, 555 (Tex. 1990).

Page 10 of 14 Respectfully submitted, THE RENSIMER LAw FIRM, P.L.L.C.

J--c.Ja.... James E. Rensimer Texas Bar No. 24027772 9525 Katy Freeway, Suite 220 Houston, Texas 77024 JR@RensimerLaw.com 713-750-9299 p 877-455 -1544 f ATTORNEY FOR REAL PARTIES IN INTEREST JOHN AMPONSAH AND MELANIE AMPONSAH

Page 11 of 14 CERTIFICATE OF SERVICE

I hereby certify that a copy of the foregoing document has been served in compliance with Rules 21 and 21a of the Texas Rules of Civil Procedure, on January 22, 2015.

David H. Bradley WALTERS BALIDO & CRAIN, LLP 2500 Tanglewilde, Suite 250 Houston, Texas 77063 713-335-0286 f ATTORNEY FOR REALTOR

The Honorable Thomas R. Culver III PRESIDING JUDGE OF THE 240TH JUDICIAL DISTRICT COURT OF FORT BEND COUNTY, TEXAS 301 Jackson Richmond, Texas 77469 RESPONDENT

James E. Rensimer

Page 12 of 14 CASE NO. 01 - 14-00979-CV

IN RE INTERINSURANCE § IN THE FIRST EXCHANGE OF THE § AUTOMOBILE CLUB , § COURT OF APPEALS Realtor. § § HOUSTON, TEXAS § § § § § § § § §

RECORD APPENDIX IN SUPPORT OF RESPONSE TO PETITION FOR WRIT OF MANDAMUS

From Cause No. 13-DCV -203651 Pending in the 240th Judicial District Court of Fort Bend County

THE RENSIMER LAW FIRM, P.L.L.C.

James E. Rensimer Texas Bar No. 24027772 9525 Katy Freeway, Suite 220 Hou~on,Texas77024 JR@RensimerLaw.com 713 -750-9299 p 877-455- 1544 f ATTORNEY FOR REAL PARTIES IN INTEREST JOHN AMPONSAH AND MELANIE AMPONSAH

Page 13 of1 4 Cause Number 13-DCV-203651 (The Action)

Instrument Tab

Deposition of Derrick Hancock (June 9, 2014) A Previously submitted on 1115115

Deposition of Derrick Hancock Exhibits (1 -18) B Previously submitted on 1115115

Letter from Mike Hendricks to John and Melanie Amponsah (sent September 13, 2011) c Previously submitted on 1115/15

HSA Residential Report (sent July 15, 2011) D Previously submitted on 1115/15

HSA Supplement Residential Report (sent September 12, 2011) E Previously submitted on 1115115

Defendant Interinsurance Exchange of the Automobile F Club First Supplemental Responses to Interrogatories Number 6 (September 23, 2013)

Page 14 of 14