Petition for Writ of Mandamus =
Conditionally=20
Granted and Memorandum Opinion filed January 25, =
2007.
In The
Fourteenth=20
Court of Appeals
____________
NO. 14-06-00778-CV
____________
IN RE BP AMOCO =
CHEMICAL=20
COMPANY AND BP PRODUCTS NORTH AMERICA, INC., =
Relators
ORIGINAL=20
PROCEEDING
WRIT OF=20
MANDAMUS
M E M O R=20
A N D U M O P I N I O N
In this original =
proceeding, relators, BP Amoco Chemical Company and BP Products =
North=20
America, Inc., seek a writ of mandamus ordering the respondent, =
Susan=20
Criss, to vacate her order of June 15, 2006, which compels =
relators to=20
comply with requests for production. We conditionally grant =
the=20
writ.
Background
The real party in =
interest,=20
Kenneth Alton Moffett, suffers from acute myelogenous leukemia =
(AML),=20
which he alleges was caused by exposure to benzene. Moffett =
sued=20
several companies including relators, BP Amoco Chemical and BP =
Products=20
North America, alleging he was exposed to benzene while working in =
plants=20
owned by those companies.
In early 2006, =
Moffett served=20
Interrogatories and Requests for Production on relators. =
Included in=20
his requests for production were the following =
requests:
Request for Production No. =
18: Produce all DOCUMENTS in your =
possession=20
reflecting epidemiological studies and any underlying data for all =
epidemiological studies that were conducted and/or participated in =
by=20
DEFENDANT with respect to exposure to BENZENE. =
All=20
identifying information may be redacted.
Request for Production No. =
25: Produce all correspondence and/or =
communications=20
between this DEFENDANT and the American Petroleum Institute =
related=20
to potential toxic effects of and/or safe levels of exposure to=20
BENZENE. This request includes, but is not limited =
to, any=20
and all draft reports, proposals, studies, research projects, =
submissions=20
and/or discussions with Dr. Richard Irons.
Relators objected to =
requests=20
18 and 25 on the grounds that the requests were overbroad and not=20
calculated to lead to the discovery of admissible evidence. =
Moffett=20
moved to compel production of the studies and documents, and the =
trial=20
court, without making any changes to the discovery requests, =
granted the=20
motion to compel.
Availability=20
of Mandamus Relief
Mandamus is available =
to=20
correct a clear abuse of discretion when the relator has no =
adequate=20
remedy at law. CSR Ltd. v. Link, 925 S.W.2d 591, 596 =
(Tex.=20
1996). Generally, the scope of discovery is within the trial =
court=3Ds discretion, but the =
trial=20
court must make an effort to impose reasonable discovery =
limits. =20
In re CSX Corp., 124 S.W.3d 149, 152 (Tex. 2003). An =
order=20
that compels overly broad discovery well outside the bounds of =
proper=20
discovery is an abuse of discretion for which mandamus is the =
proper=20
remedy. Dillard Dep=3Dt Stores, Inc. v.=20
Hall, 909=20
S.W.2d 491, 492 (Tex. 1995). Discovery requests must be =
limited by=20
time, place, and subject matter. In re Xeller, 6 =
S.W.3d 618,=20
626 (Tex. App.CHouston [14th Dist.] =
1999,=20
orig. proceeding). Discovery orders requiring document =
production=20
from an unreasonably long time period or from distant and =
unrelated=20
locales are impermissibly overbroad. In re American =
Optical,=20
988 S.W.2d 711, 713 (Tex. 1998).
Scope=20
of Discovery Order
The general scope of =
discovery=20
includes any unprivileged information that is relevant to the =
subject of=20
the action, even if it would be inadmissible at trial, as long as =
the=20
information sought is reasonably calculated to lead to the =
discovery of=20
admissible evidence. Tex. R.=20
Civ. P. 192.3(a); In re CSX, 124 S.W.3d at =
152. =20
Moffett=3Ds requests are =
overbroad=20
because they do not limit the document production to time, place, =
and=20
subject matter. The supreme court has held similar requests =
are=20
overly broad. In Texaco, Inc. v. Sanderson, the =
plaintiffs=20
claimed they were injured by exposure to benzene and requested all =
safety=20
and toxicology documents written by the corporate safety director, =
including documents regarding other employees=3D exposure and plants =
where the=20
plaintiffs never worked. 898 S.W.2d at 814. The court =
held the=20
request was overbroad because it was Anot merely an =
impermissible=20
fishing expedition; it [was] an effort to dredge the lake in hopes =
of=20
finding a fish.@ Id. at =
815. =20
As in Texaco, Moffett failed to limit his request to the =
time in=20
which he worked at the plants or the plants at which he =
worked. In=20
fact, Moffett has failed to produce any evidence that he actually =
worked=20
at relators=3D plants. =
Further, the=20
discovery order is not limited to studies concerning the =
particular=20
disease from which Moffett suffers.
Moffett argues this =
court=20
should deny mandamus because (1) relators unreasonably delayed =
seeking=20
mandamus, (2) relators produced no evidence in support of their=20
objections, and (3) the requested discovery is necessary to show=20
causation. None of Moffett=3Ds arguments, however, =
address=20
the fact that the discovery request is too broad. With =
regard to the=20
alleged delay, Moffett cites no authority prohibiting mandamus =
relief due=20
to delay in seeking mandamus and has therefore waived this =
argument. =20
See Kang v. Hyundai Corp. (U.S.A.), 992 S.W.2d 499, 503 =
(Tex.=20
App.CDallas 1999, no pet.) =
(The=20
failure to cite any authority waives argument.). Further, =
relators=20
contend they were attempting to negotiate a settlement, and =
Moffett agreed=20
to extend the discovery deadlines in pursuit of a =
settlement. With=20
regard to evidence, there is no requirement that relators produce =
evidence=20
to support their contention that the order is overbroad. It =
is=20
overbroad on its face. See Texaco, 898 S.W.2d at=20
814.
Finally, Moffett =
contends that=20
because he has requested epidemiological studies in an attempt to =
obtain=20
relevant evidence to support causation, this case is =
distinguishable from=20
other cases involving overbroad discovery orders. Although =
the scope=20
of discovery is broad, requests must show a reasonable expectation =
of=20
obtaining information that will aid the dispute=3Ds resolution. =
In re=20
CSX, 124 S.W.3d at 152. Discovery requests must be =
reasonably=20
tailored to include only relevant matters. Id. =20
Results from =
epidemiology=20
studies are relevant only to the issue of general causation and =
cannot=20
establish whether an exposure or factor caused disease or injury =
in a=20
specific individual. Merrell Dow Pharm. Inc. v. =
Havner, 953=20
S.W.2d 706, 715 (Tex. 1997). The concept of Afit@ discussed by the =
Supreme Court=20
in Daubert is a critical issue to the question of =
generalizing=20
epidemiology study results to a plaintiff in a particular =
case. =20
See Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 591, =
113=20
S.Ct. 2786, 2796, 125 L.Ed.2d 469 (1993). Unless a plaintiff =
can=20
show that he could qualify as a member of the exposed study group, =
an=20
epidemiological study is irrelevant and misleading to the =
jury. =20
Id.. A claimant must show that he or she is similar =
to those=20
in the studies. Havner, 953 S.W.2d at 720. =
Further,=20
unpublished studies, such as the one Moffett seeks, are not=20
admissible. Id. at 727. Moffett seeks all =
studies by=20
relators concerning exposure to benzene including a study that has =
not yet=20
been published or subjected to peer review. Because Moffett =
has=20
failed to show that he could qualify as a member of those study =
groups,=20
his request is not reasonably tailored to include only relevant=20
matters. See In re CSX, 124 S.W.3d at 152; =
Havner, 953=20
S.W.2d at 720.
Conclusion
The trial court =
abused its=20
discretion in ordering relators to comply with requests for =
production 18=20
and 25. Further, by having to produce overbroad discovery =
that is=20
almost unlimited as to time, place, and subject matter, relators =
have no=20
adequate remedy by appeal. See In re CSX, 124 S.W.3d =
at=20
153. We conditionally grant mandamus relief and direct the =
trial=20
court to vacate its June 15, 2006 order compelling relators to =
answer=20
Moffett=3Ds requests for=20
production. The writ will issue only if the trial court =
fails to act=20
promptly in accord with this opinion.
PER CURIAM
Petition Conditionally Granted and =
Memorandum=20
Opinion filed January 25, 2007.
Panel consists of Justices Anderson, =
Hudson, and=20
Guzman. |