Conditionally Grant and Opinion Filed June 29, 2018 

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In The 

## Court of Appeals Fifth District of Texas at Dallas
No. 05-18-00400-CV IN RE PRG DALLAS, ASC., L.P., Relator Original proceeding from the 95th Judicial District Court Dallas County, Texas Trial Court Cause No. DC-17-04958 

### MEMORANDUM OPINION Before Justices Bridges, Brown, and Boatright Opinion by Justice Bridges In this original proceeding, we must decide whether a trial cou rt may deny a motion to quash a deposition where a party seeks to depose a potentially responsible third party in a case involving a health care liability claim when the party seeking the deposition has not yet served an expert report under Chapter 74 of the civil practice and remedi es code. We conclude the denial of the motion to quash under these circumstances is improper as a matter of law and conditionally grant the writ of mandamus to quash the deposition until such t ime as a Chapter 74 expert report is served. Relator PRG Dallas, ASC, L.P. is an ambulatory surgical center and concedes it is a health care provider pursuant to secti on 74.001(12)(A)(vii) of the civ il practice and remedies code. The underlying case involves a persona l injury action brought by An ne Looney (plaintiff) and Jerry Shipley (intervenor) against Pr ofessional Compounding Centers o f America, Inc. (“PCCA”) for eye injuries sustained during cataract surgery at relator’s fac ility where Looney and Shipley were–2– injected with a Tri-Moxi medication provided by Guardian Pharma cy Services. The medication included a formula provided to Guardian by PCCA. Looney and Sh ipley maintain the PCCA formula was defective. Looney sent relator two “notices” of he alth care liability claims alleging damages as a result of “medical, surgical, or other health care ” provided by relator. However, relator has not yet been sued as a defendant. PCCA sought leave to designate r elator as a responsible third p arty, and PCCA, Looney, and Shipley served relator with deposition notices for Daniel C hambers, relator’s executive director. Relator moved to quash the deposition and, after a h earing, the trial court denied the motion to quash. Relator seeks a writ of mandamus directing th e trial court to quash the deposition. Relator argues PCCA is a claimant under Chapter 74 because it s eeks to apportion responsibility between it and a res ponsible third party a nd relator is a healt hcare provider unde r Chapter 74 and, as such, all discovery is stayed until the plaintiffs provide r elator with the required Chapter 74 expert report. PCCA argues here, as it did in t he trial court, that it is not a claimant under Chapter 74 because it has not asserted a health care liability claim again st relator and, therefore, discovery related to a responsible third party designated by PCCA is not subject to the Chapter 74 stay. PCCA maintains that it is entitl ed to depose relator without pr oviding a Chapter 74 expert report and the writ should be denied. Looney and Shipley each filed a response to the mandamus petiti on, and each included a cross-petition for writ of mandamus. Initially, Looney argues PCCA must file a Chapter 74 expert report before designating a hea lthcare provider as a responsibl e third party. Looney asks the Court to order PCCA to produce a Chapter 74 expert report if the depo sition is not permitted to take place. Alternatively, Looney ask s that the deposition be permi tted to take place if the responsible third party designation is permitted to stand and PCCA is not r equired to produce an expert report.–3– Looney argues that such discovery is necessary under Chapter 33 to allow her to investigate PCCA’s allegations a gainst relator. In contrast, Shipley argues that discovery is not stayed here b ecause neither PCCA nor Shipley is a claimant under Chapter 74, Shipley has not asserte d a healthcare liability claim against relator, and no liability can be imposed on relator as a respon sible third party. Shipley also argues that Chapter 33 mandates discovery regarding a responsible thir d party designation, and Chapter 33 trumps Chapter 74. Alternatively, Shipley argues in the cro ss-petition that PCCA should be required to produce a Chapter 74 ex pert report if the Chapter 7 4 discovery stay applies. A discovery order that compels production beyond the rules of p rocedure is an abuse of discretion for which mandamus is the proper remedy. In re Nat’l Lloyds Ins. , 507 S.W.3d 219, 223 (Tex. 2016) (orig. proceeding). A trial court clearly abus es its discretion when it compels discovery from a healthcare provider in circumstances where the healthcare provider is entitled first to be served with a section 74.351(a) expert report and c urriculum vitae. See In re McAllen Anesthesia Consultants, P.A. , No. 13-17-00584-CV, 2017 WL 6492002, at *5 (Tex. App.— Corpus Christi Dec. 18, 2017, orig. proceeding) (mem. op.) (cit ing In re Jorden , 249 S.W.3d 416, 420 (Tex. 2008) (orig. proceeding), In re Sandate , 544 S.W.3d 9, 11 (Tex. App.—Dallas 2017, orig. proceeding) (pet. filed and response requested No. 18-010 2, In re Comanche Turner ), and In
re Lumsden , 291 S.W.3d 456, 462 (Tex. App.—Houston [14th Dist.] 2009, ori g. proceeding)). Section 74.351(s) provides that all discovery in a health care liability claim, save for three exceptions, is stayed until the cl aimant has served the require d expert report: (s) Until a claimant has served the expert report and curriculu m vitae as required by Subsection (a), all discovery in a health care liability cla im is stayed except for the acquisition by the claimant of information, including medic al or hospital records or other documents or ta ngible things, related to the p atient’s health care through: (1) written discovery as defined in Rule 192.7, Texas Rules of Civil Procedure;–4– (2) depositions on written questions under Rule 200, Texas Rule s of Civil Procedure; and (3) discovery from nonparties under Rule 205, Texas Rules of Ci vil Procedure. T EX
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. C ODE § 74.351(s). Chapter 74 defines “claimant” as: a person, including a decedent’s estate, seeking or who has sou ght recovery of damages in a health care liability claim. All persons claiming to have sustained damages as the result of the bodily injury or death of a single person are considered a single claimant. T EX
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. C ODE § 74.001(a)(2). Here, PCCA is not a “claimant” because it does not seek recover y of damages in a health care liability claim. PCCA and Looney argued below that they a re entitled under Chapter 33 of the civil practice and remedies c ode to seek discovery from rel ator in order to discover the relator’s responsibility for Looney’s and Shipley’s damages. Looney argu ed such discovery is necessary under Chapter 33 because Looney has the right to move to strike the responsible third party designation if there is no evide nce that relator is responsible for any portion of her alleged injury or damage. See T EX
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. C ODE § 33.004( l ) (a party may move to strike the designation of a responsible third party on no evidence grounds “[a]fter adequate time for discovery”). Relator argues Ch apter 33 cannot trump Chapter 74 ’s discovery stay because relator is a health care provider protected by Chapter 74, and Looney h as asserted a health care liability claim against relator through Looney’s two notices. No authority has addressed this exact fact scenario or the impa ct of a responsible third party designation on the Chapter 74 discovery stay. The Texas Suprem e Court has, however, applied the Chapter 74 discovery stay to Rule 202 proceedings. See In re Jorden , 249 S.W.3d at 418 (“Because the statute prohibits ‘all discovery’ other than thre e exceptions—and Rule 202 depositions are not listed among them—we hold the statute prohi bits such depositions until after an expert report is served.”). The plaintiff in Jorden filed a Rule 202 petition in which he named–5– the doctors, the medical practice, and the hospital as “potenti ally adverse parties” in a future action and requested leave to depose them. Id. at 418–19. The trial court denied leave and held that Rule 202 depositions are not allowed for health care claims. Id. at 419. Plaintiff then petitioned the court of appeals for a writ of mandamus, which the court grante d. Id. at 416. The intended deponents then petitioned the supr eme court for a writ of manda mus. Id. In its analysis, the supreme court noted section 74.351(s) appl ies to all discovery in a “health care liability claim.” Id. at 421. The statute defines a “h ealth care liability claim” a s: a cause of action against a health care provider or physician f or treatment, lack of treatment, or other claimed depa rture from accepted standards o f medical care, or health care, or safety or professional or administrative servic es directly related to health care, which proximately results in injury to or death of a claimant, whether the claimant’s claim or cause of action sounds in tort or contr act. The term does not include a cause of action described by Section 406.033(a) or 40 8.001(b), Labor Code, against an employer by an employee or the employee’s surv iving spouse or heir. T EX
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. A NN . § 74.001(a)(13) (West Supp. 2016). The supreme court further noted the statute itself confirms that the term “a cause of act ion” is used in the more general sense relating to underlying facts rather than being limited to filed lawsuits. In re Jorden , 249 S.W.3d at 422. Thus, the supreme court reasoned that “[b]ecause the s tatute here specifically applies to ‘a cause of action against a health care provider,’ it applies bot h before and after such a cause of action is filed.” Id. Based on this reasoning, the s upreme court concluded, “[t]o t he extent a presuit deposition is intended to i nvestigate a potential claim ag ainst a health care provider, it is necessarily a ‘health care liabi lity claim’ and falls within th e coverage of section 74.351(s).” Id. Last year, this Court applied Jorden in a healthcare liability action in which the plaintiff sought to depose a potentially lia ble doctor to investigate whe ther that doctor should be added as a defendant and sought the deposi tion without first providing a n expert report. In re Sandate , 544 S.W.3d at 11-14. The plaintiff in that case argued that the po tential deponent was a non-party under Rule 205 and, therefore, the deposition of that deponent fell under one of the exceptions to–6– the Chapter 74 discovery stay. T EX
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. C ODE § 74.351(s) (discovery from nonparties under Rule 205 is permitted). We disagreed, holding that the potential deponent was not a “non-party” under Rule 205 because the plaintiff’s stated reason for seeking discovery from Dr. Sandate was to determine whether or not to sue him. In re Sandate , 544 S.W.3d at 13. Accordingly, Dr. Sandate was “not [a] ‘nonpart[y]’ from whom de positions were allowed by Rule
205.” See id. We reiterated the supreme court’s analysis in Jorden , that the statute distinguishes between “third parties to a disput e and those directly threaten ed by it” and those who are directly threatened by a lawsuit are “not ‘nonparties’ fro m whom deposit ions were allowed by Rule 205.”
Id. (quoting In re Jorden , 249 S.W.3d at 422). While Dr. Sandate is a non-party in the sense that he has not b een named as a defendant in the pending litigation, the supreme court expressl y interpreted the protection of section 74.351(s) to include depositions to inves tigate a potential health care liability claim against a health care provider. Id . Turner is seeking Dr. Sandate’s deposition to determine whether Turner should join Dr . Sandate as a defendant in the existing lawsuit for the alleged negligent med ical care that she received during the labor and delivery of her son. As Turner i s seeking to investigate a health care liability claim against a health care provider even though he has not yet been named in the lawsuit, we conclude, under th is particular set of facts, that Dr. Sandate’s deposi tion would fall within the prot ection of section 74.351(s) as explained in Jorden . Accordingly, the trial court abused its discretion in ordering Dr. Sandate to appear for his deposition and provid e the documents requested in the subpoena duces tecum without having been serve d with Turner’s section 74.351(a) expert repor t and curriculum vitae. Id. at 14. The Corpus Christi Court of Appeals has since applied Jorden and Sandate to a claimant’s request for Rule 202 depositions of a named defendant’s corpora te representative and others to determine whether those parties should be joined in the underly ing lawsuit for the alleged negligent medical care that the plaintiff received during her labor and d elivery. In re McAllen Anesthesia Consultants, P.A. , 2017 WL 6492002, at *7. That court held that the discovery w as unavailable under section 74.351(s) because “[u]nder this particular set of facts, where Sanchez is seeking to investigate a health care liabili ty claim against health care p roviders, even though those providers–7– have not been named in the lawsuit, the requested discovery fal ls within the protection of section 74.351(s) as explained in Jorden .” Id. (citing In re Jorden , 249 S.W.3d at 422). The court held that the trial court abused its discretion in ordering relator’ s corporate representative to appear for a deposition and provide the documents requested under Rule 205 without first having been served with a section 74.351(a) expert report. Id. The McAllen Anesthesia court further determined that relator was not a non-party against which discovery could be so ught under Rule 205 because the supreme court expressly held that “nonparties” as used in secti on 74.351(s) means only “third parties” and does not include “those directly threatened” by th e dispute. Id. (citing In re Jorden , 249 S.W.3d at 422 (noting that “if everyone qualifies as a ‘non party’ until suit is filed, then the statute places no restriction on presuit discovery whatsoever” which would be “plainly contrary to the statute’s purpose”)). The issue here is whether the Chapter 74 discovery stay applies to the deposition of a healthcare provider that has not been sued by a claimant but is sought to be designated as a responsible third party by a defe ndant that is not a claimant u nder Chapter 74. This scenario is analogous to the facts of In re McAllen Anesthesia C onsultants, P.A. See id. The plaintiff in
McAllen Anesthesia had already sued a healthcare provider, and the plaintiff was the party seeking pre-suit depositions of other healthcare providers, whereas Loo ney has not yet sued a healthcare provider. However, Looney and Sh ipley, like the plaintiff in McAllen Anesthesia , seek discovery from a healthcare provider. Although PCCA moved to designate r elator as a responsible third party, PCCA is not the only party seeking the corporate represe ntative deposition. That deposition is also sought by Looney and Ship ley to investigate whether rel ator should be joined in the underlying lawsuit for the alleged negligent medical care provi ded to Looney and Shipley. As in
McAllen Anesthesia , relator is directly threatened by the lawsuit and is, therefo re, not a non-party–8– under Rule 205 because Looney has already asserted healthcare l iability claims against relator and PCCA seeks to hold relator responsible. See id. As the supreme court made clear in Jorden , section 74.351(s) applies to all discovery in a healthcare liability claim and, wh en “a pre-suit deposition is intended to investigate a potential claim against a health care provider, it is necessarily a ‘heal th care liability claim’ and falls within the coverage of section 74.351(s).” In re Jorden , 249 S.W.3d at 422. Relator is a healthcare provider, and parties harmed by rel ator’s alleged medical negli gence seek to depose relator. That discovery concerns a healthcare liability claim, and relator ma y not be ordered to appear for a deposition before receiving a Chapter 74 expert report. See id. Looney and Shipley further argue that Chapter 33 controls over Chapter 74 because Looney is permitted to conduct discovery to determine the nature of PC CA’s allegations aga inst relator to determine “what is the responsib ility of the responsible third party.” In making this argument, Looney relies on Exxon v. Pagayon , 467 S.W.3d 36 (Tex. App.—Houston [14th Dist.] 2015), rev’d
sub nom. Pagayon v. Exxon Mobil Corp ., 536 S.W.3d 499 (Tex. 2017), to support her argument that “when there is a nonmedical practice defendant [identifyin g as a responsible party] a health care provider, they are not claim ants under the statute, and as a result, Chapter 74 doesn’t apply.” The Pagayon case is distinguishable, however, because (1) Exxon had an exp ert that said the ER doctor did something wrong, (2) the issue was whether Exxon’s e vidence about the doctor’s wrongdoing had to rise to the willful and wanton standard under section 74.153, and (3) the Pagayon court did not address whether Exxon was a Chapter 74 claimant or whether Chapter 74 applied to discovery. Pagayon , 467 S.W.3d at 49–51. In this case, Looney has threatened rel ator with a lawsuit under Chapter 74 and should not be permitted to avoid the discovery stay. Moreover, section 74.202 says if there is a conflict between Ch apter 74 and any other statute, then Chapter 74 controls. T EX
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. C ODE § 74.202.–9– Even though PCCA is not a claimant under Chapter 74, Looney and Shipley are Chapter 74 claimants, and they seek Chambers’ deposition in order to de termine if they should challenge the responsible third party desi gnation and whether to add rela tor as a defendant. In other words, they seek discovery in order to determine whether to sue relato r for a healthcare liability claim Looney has already asserted again st relator. Further, PCCA see ks to designate relator as a responsible third part y in order to spread l iability between PC CA and relator and asserts relator is a responsible third party because of alleged medical negligence . In other words, PCCA seeks to hold a healthcare provider responsible, at least in part, for p laintiffs’ injuries because PCCA maintains relator’s medical negligence caused the injuries. Ch apter 74 protects healthcare providers from such discovery w ithout first bei ng provided an e xpert report. For these reasons, we conclude the trial court abused its discr etion in denying relator’s motion to quash Chambers’ deposition, and mandamus is the prope r remedy. See In re Nat’l Lloyds Ins. , 507 S.W.3d at 223. Accordingly, we conditionally grant the w rit of mandamus. We direct the trial court to issue, within twenty-one (21) days of the date of this opinion, a written order quashing Chambers’ deposition until a party seeking such a deposition serves a Chapter 74 expert report. We are confident the trial court will comply, b ut a writ will issue if the trial court fails to comply.

180400F.P05 /David L. Bridges/ DAVID L. BRIDGES JUSTICE