06.09.17

June 9

This week the Texas Supreme Court issued 5 opinions, but no grants. Three of the opinions are of particular interest.

In the In re National Lloyds Insurance Co., et al. case, the Court addressed whether a party's attorney-billing information is discoverable when the party challenges an opposing party's attorney-fee request as unreasonable or unnecessary but neither uses its own attorney fees as a comparator nor seeks to recover any portion of its own attorney fees. The trial court held that the fees should be disclosed and the court of appeals denied the insurance company mandamus relief.

The Supreme Court held under such circumstances, (1) compelling en masse production of a party's billing records invades the attorney work-product privilege; (2) the privilege is not waived merely because the resisting party has challenged the opponent's attorney-fee request; and (3) such information is ordinarily not discoverable. This ruling neither prevents a more narrowly tailored request for information that does not invade the attorney's strategic decisions or thought processes nor does it preclude a party from seeking non-core work product upon a proper showing in establishing a substantial need for the materials to prepare the party's case unavailable by other means.

Next in Columbia Valley Healthcare System L.P. v. Maria Zamarripa, a health-care liability case, the court addressed whether a Plaintiff's medical expert reports must adequately show that a Defendant caused the Plaintiff's death. The Court of Appeals ruled that an expert report did not have to prove causation.

The Supreme Court explained that "an expert report required by the Texas Medical Liability Act ("the Act") must address the applicable standards of care, the failure of healthcare provider to meet them, and the causal relationship between that failure and the injury, harm or damages claimed." As the court explained, the point of the reports is to deter frivolous lawsuits. Although the expert report is not required prove the Plaintiff's claim, the report must show that an expert is of the opinion the Plaintiff can prove the claim.

The Court then went on to explain that "without factual explanations, the reports are nothing more than the ipse dixit of the experts" which are insufficient. Thus, the Court disagreed with the Plaintiff and reversed the Court of Appeals' judgment by remanding the case to trial court for further proceedings.

Finally in Melden & Hunt Inc. v. East Rio Hondo Water Supply Corp., a certificate of merit case, the Court addressed Chapter 150 of the Civil Practice and Remedies Code. Generally a requirement of a sworn certificate of merit must accompany a Plaintiff's complaint for cases "out of the provision of professional services by a licensed or registered professional" named in the statute. The issues of the case were whether (1) the lawsuit must be dismissed if the certificate is not sufficient and (2) whether the dismissal be with prejudice.

The Court explained that a trial court cannot "merely assume the existence" of professional knowledge by a professional in a Defendant's area of practice. Although the statute has been amended since its enactment in 2003, the court explained that" the factual-basis requirement's core purpose has not changed." The statute instead "obligates the Plaintiff to get an affidavit from a third-party expert attesting to the Defendant's professional errors or omissions and their factual basis."

The court, agreeing with the Court of Appeals, held that the Trial Court did not abuse its discretion by denying the Plaintiff's motion to dismiss on the certificate of merit's sufficiency.