Petition for Writ of Mandamus - Filed - Supreme Court of Texas

IMMEDIATE TEMPORARY RELIEF REQUESTE D 

AND ORALARGUMENTRE. UESTE D 

IN THE 

SUPREME COURT OF TEXA S 

IN RE MARK A . JACOBS, M .D., DEBRA C . GUNN, M.D . , 

AND OBSTETRICAL AND GYNECOLOGICAL ASSOCIATES, P .A . 

Relators . 

Original Proceeding Arising Out of th e 

Probate Court Number Two, Harris County, Texas 

Cause No . 352,923-40 1 

(Hon . Mike Wood ) 

PETITION FOR WRIT OF MANDAMU S 

Respectfully Submitted , 

COOPER & SCULLY, P .G . 

Diana L . Faust 

Texas Bar No. 0079371 7 

R. Brent Coope r 


Richard C . Harrist 

Texas Bar No. 24010094 

900 Jackson Street, Suite 10 0 

Dallas, Texas 75202 

(214) 712-9500 

(214) 712-9540 (fax) 

HARRIS, HILBURN & 

SHERER, L.L .P . 

Barbara A. Hilburn 

Texas Bar No . 0961895 0 

Divya R. Chundru 


Elizabeth A . Kaufman 


1111 Rosali e 

Houston, Texas 77004 

(713) 223-393 6 

(713) 224-5458 (fax ) 

ATTORNEYS FOR RELATORS

NO . 

IN THE 


IN RE MARK A . JACOBS, M.D., DEBRA C . GUNN, M.D . , 


Relators . 


Probate Court Number Two, Harris County, Texas 

Cause No. 352,923-40 1 

(Hon. Mike Wood) 

IDENTITY OF PARTIES AND COUNSE L 

In accordance with rule 52 .3(a) of the Texas Rules of Appellate Procedure, th e 

following list identifies all parties and their counsel involved in the underlying lawsui t 

out of which this original proceeding arises, so that the justices of this Honorable Cour t 

may evaluate the need to recuse or disqualify themselves : 

Relators : Mark A. Jacobs, M .D., Debra C . Gunn, M.D , 

and Obstetrical and Gynecological Associates, P .A . 

Counsel for Relators : 

Diana L . Faust 

R. Brent Cooper 

Richard C. Harris t 

Cooper & Scully, P .C . 

900 Jackson, Suite 10 0 

Dallas, Texas 75202

Barbara A . Hilburn 

Divya R . Chundru 

Elizabeth A. Kaufman 

Harris, Hilburn & Sherer, L.L.P . 

1111 Rosali e 


Respondent : 

Real Parties in Interest : 

Counsel fo r 

Real Parties in Interest : 

Hon, Mike Wood 

Probate Court Number Tw o 

Han-is County Civil Courthous e 

201 Caroline Street, 6 `h Floor 


Andre McCoy, Individually and a s 

Permanent Guardian of Shannon Mile s 

McCoy, an Incapacitated Person 

Alexander B . Klein, III 

J. Todd Trombley 

The Klein Law Fir m 

2000 The Lyric Center 

440 Louisian a 


Defendant : James A . Collins, M .D . 

Counsel fo r 

Defendant : 

Jim Edwards 

Edwards & Associates, L .L.P . 

12603 Southwest Freeway, Suite 20 0 

Stafford, Texas 77477-3809 

ii

TABLE OF CONTENTS 

Page 

IDENTITY OF PARTIES AND COUNSEL 

TABLE OF CONTENTS 

TABLE OF AUTHORITIES 

i 

ii i 

v 

I . STATEMENT OF THE CASE x 

II . STATEMENT OF THE JURISDICTION x i 

III . ISSUES PRESENTED 

xi i 

IV . RECORD AND APPENDIX IN SUPPORT OF PETITION xii i 

V. STATEMENT OF THE FACTS 1 

Underlying Lawsuit 1 

B . 

Respondent's Orders Requiring Production of Net Worth an d 

Financial Information 

C. Petition for Writ of Mandamus to Fourteenth Court of Appeals 2 

VI. SUMMARY OF THE ARGUMENT 4 

VII . ARGUMENT 6 

A. Standards for Mandamus Relief 6 

B. Respondent Clearly Abused His Discretion in Ordering Discovery o f 

Relators' Financial Information and the Court of Appeal s 

Erroneously Concluded Otherwise 7 

I . 

Respondent's Orders Require Relators to Produce Persona l 

Financial Information of Net Worth Based Only on Factuall y 

Unsupported, Bare-Bones Allegations of Gross Negligence 7 

Trend Among States and Federal Courts is to Require Prima 

Fade Showing, or Demonstrated Factual Basis, of Punitiv e 

Liability Before Pretrial Discovery of Defendant's Net Worth 9 

iii

3. Texas Legislature's Dramatic Restriction of Litigants' Abilit y 

to Recover Punitive Damages Reduces Benefit or Utility of 

Net Worth Discovery, and Supports Requirement for Prima 

Facie Showing Prior to Net Worth Discovery 1 0 

4. Respondent's Orders Constituted a Clear Abuse of Discretio n 

And the Court of Appeals Erred in Concluding Otherwis e 

Where Real Parties Fail to Allege Sufficient Facts to Suppor t 

Gross Negligence Under Current Texas Law I 2 

C. This Court Should Exercise Jurisdiction and Consider Other Model s 

for Prima Facie or Threshold Showing of Punitive Liability Prior t o 

Net Worth Discovery 1 3 

D. Under Current Texas Law, Court of Appeals' Modification o f 

Discovery Orders Provides Inadequate Protection to Relators an d 

Little Guidance Regarding Scope of Net Worth Discovery Allowed 1 4 

E. Relators Have No Adequate Remedy by Appeal 

VIII . PRAYER FOR RELIEF 1 5 

CERTIFICATE OF SERVICE 1 7 

APPENDIX TO PETITION FOR WRIT OF MANDAMUS 1 8 

iv

TABLEOFAUTHORITIE S 

Case 

Page(sl 

AI Parker Buick Co . v. Touchy , 

788 S .W.2d 129 (Tex . App.-Houston [1st Dist.] 1990) 12, 1 3 

Automatic Drilling Machines v, Miller, 

515 S .W.2d 246 (Tex . 1974) 7 

Canadian Helicopters Limited v . Witting , 

876 S .W.2d 304 (Tex . 1994) 7 

In re Columbia Med. Ctr. of Las Colinas , 

290 S .W.3d 204 (Tex . 2009) 7 

Copeland v. Ayers , 

138 S .W.3d 652 (Tex . App.-Dallas 2004, pet. denied) 6 

Delgado v. Kitzman , 

793 S .W .2d 332 (Tex. App.---Houston [1st Dist .] 1990) 12, 1 3 

Gutierrez v. Collins , 

583 S .W.2d 312 (Tex . 1979) xi i 

In re Jerry's Chevrolet-Buick , 

977 S .W.2d 565 (Gonzalez, J ., dissenting) 9 

Johnson v . Fourth Court of Appeals , 

700 S .W.2d 916 (Tex . 1985) 6 

Lunsford v. Morris , 

746 S .W.2d 471 (Tex . 1988) xiii, 3, 4, 9, 13, x i 

In Re Mark A . Jacobs, M.D., Debra C. Gunn, Q.I.D., and Obstetrical 

Gynecological Associates, P.A., Relators , 

No. 14-09-00123-CV, 2009 Tex . App. LEXIS 811 2 

(Tex. App .- -Houston [14th Dist.] 2009, orig. proceeding ) 

2, 3, 4, 8, 9, 10, 1 I, 14, xi, xii, xi v 

In re Prudential Ins. Co . of America , 

148 S .W.3d 124 (Tex . 2004) 6 7 

V

Sabine Pilot Serv., Inc. v. Hauck, 

687 S .W.2d 733 (Tex . 1985) xi i 

Southwestern Bell Telephone Co., L.P. v. Mitchell , 

276 S .W.3d 443 (Tex . 2008) xi i 

Wal-11lart Stores, Inc. v. Alexander, 

868 S.W.2d 322 (Gonzalez, J ., concurring) 9, 1 2 

Walker v. Packer, 

827 S.W.2d 833 (Tex . 1982) 6, 7, 1 5 

Statutes, Rules&Constitutions 

Pages} 

Act of June 3, 1987, 70th Leg ., 1st C.S ., ch. 2, § 2 .12 , 

1987 Tex . Gen. Laws 37 (amended 1995 & 2003) 1 1 

Act of April 11, 1995, 74th Leg ., R.S ., ch. 19, § 1 , 

1995 Tex . Gen. Laws 108 (amended 2003) 1 1 

Act of June 2, 2003, 78th Leg ., R.S ., ch. 204, §§ 13 .01 - 13 .08 , 

2003 Tex. Gen. Laws 847 1 2 

TEX . CIV. PRAC . & REM. CODE ANN . § 41 .001(11) 8, 1 3 

TEX . CIV. PRAC . & REM. CODE ANN . § 41 .003(d) 1 2 

TEX . CIV. PRAC . & REM. CODE ANN . §§ 41 .001 - 41 .013 11 1 2 

TEX . CIV. PRAC . & REM. CODE ANN . § 51 .014(b) 

ix 

TEX. CONST . art . V, § 3 xi 

TEx . GOVT CODE ANN . § 22.221(b) (Vernon Supp. 2003) x i 

TEx. R. App . P . 52.3(e) x i 

TEx. R. Civ . P . 192.4(b) 1 0 

Miscellaneous Pages ) 

Comment, Discovery of Net Worth in Bifirrcated Punitive Damages Cases : A 

Suggested Approach After Transportation Insurance Co. v. Moriel , 

37 S . TEx . L. REv. 193 (1996) 1 3 

vi

Patricia F. Miller, Comment, 2003 Texas House Bill 4: Unanimous Exemplar y 

Damage Awards and Texas Civil Jury Instructions , 

37 ST. MARY'S L .3 . 515 (2006) 1 2 

vii

NO . 

IN THE 


IN RE MARK A . JACOBS, M.D., DEBRA C . GUNN, M.D . , 

AND OBSTETRICAL AND GYNECOLOGICAL ASSOCIATES, P .A . , 

Relators . 


Probate Court Number Two, Harris County, Texa s 

Cause No . 352,923-4O I 

(Hon. Mike Wood ) 

PETITION FOR WRIT OF MANDAMU S 

TO THE HONORABLE JUSTICES OF THE SUPREME COURT OF TEXAS : 

Relators Mark A . Jacobs, M.D. ("Dr. Jacobs"), Debra C . Gunn, M.D. ("Dr . 

Gunn"), and Obstetrical and Gynecological Associates, P .A . ("OGA") (collectivel y 

"Relators") t 

petition this Court for a writ of mandamus, pursuant to rule 52 of the Texa s 

Rules of Appellate Procedure and all local rules of this Court. Relators hav e 

contemporaneously moved for an emergency temporary stay of Respondent's Orders o f 

January 23 and 30, 2009, compelling production of the net worth information of Relators , 

as well as their deposition examination regarding net worth, and as modified by the cour t 

1 Andre McCoy, Individually and as Permanent Guardian of Shannon Miles McCoy, an Incapacitated Perso n 

("Plaintiffs" or "Real Parties") are the Plaintiffs in the underlying suit and the Real Parties in Interest in this origina l 

proceeding. The Respondent is the Honorable Mike Wood, Judge of Probate Court Number Two of Harris Count y 

Texas (the "Respondent") .

of appeals, while this Court considers this Petition . 2 In support of their Petition , 

Relators respectfully allege as follows : 

2 Trial of this matter is stayed while an interlocutory appeal is pending in this Court, Obstetrical and Gm ecologica l 

Associates, P.A ., Petitioner v. Shannon Miles. McCoy an incapacrtated person, Andre McCoy, Individually and a s 

permanent Guardian of Shannon Miles McCoy, an incapacitated person, Respondents . Case No . 09-0447 . See TEX . 

C[V . PRAC . & REM . CODE ANN. § 51 .014(b) . 

ix

I . 

STATEMENT OFTHECASE 

Nature of the Case : 

This original proceeding arises out of a healt h 

care Iiability claim filed pursuant to Chapter 7 4 

of the Texas Civil Practices & Remedies Code , 

styled Andre McCoy, Individually and a s 

Permanent Guardian of Shannon Miles McCoy , 

an Incapacitated Person v. Woman 's Hospita l 

of Texas, Inc. ; CHCA Woman 's Hospital, L.P. 

d/b/a Woman 's Hospital of Texas; Houston 

Woman's Hospital Partner, L.L.C. ; Debra C. 

Gunn, M.D . ; Mark A . Jacobs, M.D . ; Obstetrica l 

and Gynecological Associates, P.A . ; and James 

A. Collins, M.D., Cause No . 352,923-401 , 

pending in Probate Court Number Two, Han-i s 

County, Texas (the "underlying suit") . 

Real Parties sued to recover damages for th e 

alleged negligent medical care and treatment 

rendered by Relators to Shannon Miles McCoy 

while she was a patient at Woman's Hospital of 

Texas, from September 13, 2004 to Septembe r 

14, 2004 . (R . H Tabs 7 and 8) .' A discovery 

dispute arose involving the adequacy o f 

Relators' discovery responses to Plaintiffs Fifth 

Requests for Production. (R. II Tab 5) . 

Respondent issued an order compelling net 

worth discovery (the "Compel" Order) (R. II 

Tab 9), and an order granting Plaintiffs' Motio n 

to Compel the Deposition of Mark A . Jacobs , 

M.D . (the "Deposition " Order). (R. H Tab 10) . 

Respondent subsequently signed an Orde r 

Clarifying Court's Orders Regarding the 

Discoverability of Net Worth Information (th e 

"Production Order") . (R . II Tab 12) . 

Trial Court : The Hon. Mike Wood, Probate Court No . 2 , 

Harris County, Texas . 

Trial Court Disposition : (1) Order compelling net worth discovery ; (2) 

Order granting Plaintiffs' Motion to Compel th e 

The record will be cited as (R. Vol. Tab It), the Supplemental Record as (SR Tab #), and the Second Supplementa l 

Record as (2SR Tab #), and the appendix will be cited as (Apx . Tab „') . 

x

Deposition of Mark A. Jacobs, M .D . ; and (3 ) 

Order Clarifying Court's Orders Regarding th e 

Discoverability of Net Worth Information . 

Parties in the Court of Appeals : Mark A . Jacobs, M .D., Debra C . Gunn, M.D . , 

and Obstetrical and Gynecological Associates , 

P.A. - Relators . Andre McCoy, Individuall y 

and as Permanent Guardian of Shannon Mile s 

McCoy, an Incapacitated Person - Real Partie s 

In Interest . 

Court of Appeals : 

Court of Appeals Disposition : 

Fourteenth District Court of Appeals at 

Houston, Texas; filed February 4, 2009 . 

Majority and Concurring Opinions of the pane l 

(Justices Jeffrey V. Brown, William J . Boyce , 

and Kent C. Sullivan), authored by Justic e 

Brown, conditionally granting in part an d 

denying in part, Relators' Petition for Writ o f 

Mandamus . In Re Mark A. Jacobs, M.D. . 

Debra C. Gunn, M.D., and Obstetrica l 

Gynecological Associates, P.A ., Relators, No . 

14-09-00123-CV, 2009 Tex . App. LEXIS 811 2 

(Tex. App.-Houston [14 'h Dist.] Oct. 20, 2009 , 

orig . proceeding) (R . II Tab 13 ; Apx . Tab G) . 

H . 

STATEMENT OFTHE JURISDICTION 

This Honorable Court has jurisdiction to consider this original proceeding for wri t 

of mandamus . TEx . CONST . art . V, § 3 ; TEX . Gov'T CODE ANN . § 22.22 .1(b) (Vernon 

Supp. 2003) . Additionally, this matter has already been presented to the Court o f 

Appeals, Fourteenth District, through a petition for writ of mandamus . TEx . R. APP. P . 

52 .3(e) ; In Re Mark A. Jacobs, M.D., Debra C. Gunn, M.D., and Obstetrica l 

Gynecological Associates, P .A ., Relators, No. 14-09-00123-CV, 2009 Tex . App. LEXIS 

8112 (Tex . App.-Houston [14th Dist .] Oct. 20, 2009, orig. proceeding) . 

xi

This Court also has jurisdiction over this proceeding under Texas Governmen t 

Code section 22 .001(a)(6) because, respectfully, it appears that errors of law have bee n 

committed by Respondent and the court of appeals, and those errors are of suc h 

importance to the jurisprudence of the State that they require correction . As Justic e 

Sullivan of the court of appeals wrote separately in his concurrence in this case, "the 

current Texas rule on net-worth discovery is now decades-old and, in light of th e 

evolution of Texas law, needs to be revisited ."4 

In re Jacobs, 2009 Tex. App . LEXI S 

8112 at `30 . 

Ills . 

ISSUES PRESENTE D 

Briefed and Unbriefed Issue s 

1 . Whether Respondent clearly abused his discretion, and whether the court o f 

appeals erred, in ordering production of Relators' financial and net wort h 

information, and in ordering Relators to be deposed regarding the same . 

This issue includes the following : 

a . Whether Real Parties' mere allegations of gross negligence or "knowing " 

negligent conduct constitutes sufficient facts to support punitive liability o r 

a finding of gross negligence, and thus, a right to discovery of net wort h 

information ; 

' As the Court stated in Southwestern Bell Telephone Co .. L.P. v. Mitchell: 

"Generally, the doctrine of stare decisis dictates that once the Supreme Court announces a proposition o f 

law, the decision is considered binding precedent", but we have long recognized that the doctrine is no t 

absolute. "[W]e adhere to our precedents for reasons of efficiency, fairness, and legitimacy", and "whe n 

adherence to a judicially-created rule of law no longer furthers these interests, and 'the general interest wil l 

suffer less by such departure, than from a strict adherence,' we should not hesitate to depart from a prio r 

holding." "[U]pon no sound principle do we feel at liberty to perpetuate an error, into which either ou r 

predecessors or ourselves may have unadvisedly fallen, merely upon the ground of such erroneous decisio n 

having been previously rendered . " 

276 S.W.3d 443, 447 (Tex. 2008) (citations omitted) ; see also Sabine Pilot Set-v., Inc . i'. Hauck, 687 S .W.2d 733 , 

735 (Tex. 1985) (recognizing exception to employment-at-will doctrine based on public policy as expressed i n 

changes to the laws of Texas and the United States) ; Gutierrez v. Collins, 583 S.W.2d 312, 317 (Tex . 1979 ) 

("doctrine ofstare decisis does not stand as an insurmountable bar to overruling precedent") . 

xii

. Whether Real Parties should be required to make a prima facie showing, or 

at a minimum, a demonstrated factual basis, for punitive liability befor e 

having access to net worth discovery . 

c. Whether, as suggested by Justice Sullivan in his concurrence below, thi s 

Court's decision in Lunsford v. Morris, 746 S .W.2d 471, 473 (Tex . 1988 ) 

should be revisited and revised to comport with the Legislature's significant 

restrictions over the past two decades on the availability and recovery of 

punitive damages in Texas . 

2. Whether, even under the current state of Texas law, the court of appeals ' 

holdings in this case properly limit the scope of net worth discovery, and 

whether those limitations adequately protect Relators from invasive and 

intrusive net worth discovery, from invasion of privacy rights, and preserv e 

their due process rights . 

3. Whether Relators have an adequate remedy by appeal, where their rights o f 

privacy and due process have not been protected by Respondent or th e 

court of appeals through the orders for overly broad, invasive, and intrusiv e 

net worth discovery . 

IV . 

RECORD AND APPENDIX IN SUPPORT OF PETITIO N 

Relators have filed separately their Record in Support of Petition for Writ o f 

Mandamus, pursuant to Rule 52 .7 of the Texas Rules of Appellate Procedure, and hav e 

included the following documents in the Appendix attached hereto, pursuant to Rule 

52 .3(j) of the Texas Rules of Appellate Procedure : 

Tab A : Affidavit of Diana L. Faust (November 10, 2009 ) 

Tab B : Order Regarding Defendants Mark Jacobs, M .D.'s, Defendant 

Obstetrical and Gynecological Associates, P .A .'s, and Debra Clark 

Gunn, M .D .'s Special Exceptions to Plaintiffs' Third Amended 

Petition, Plaintiffs' Motion to Compel Net Worth Discovery, and 

Defendants Mark Jacobs, 'A .D.'s, Debra Clark Gunn, M .D.'s and 

Obstetrical and Gynecological Associates, P .A .'s Motion for 

Protection Concerning Net Worth Discovery (January 23, 2009 ) 

Tab C : 

Order Regarding Plaintiffs' Motion to Compel the Deposition o f 

Mark Jacobs, M.D., with Subpoena Duces Tecum, Defendant Mar k 

A. Jacobs, M .D .'s Motion for . Protective Order, Motions for 

Sanctions, and Motion to Quash and Objections to Plaintiffs' Notice

of Intention to Take Deposition on Written Questions Propounded 

on Verizon Wireless (January 23, 2009 ) 

Tab D : 

Tab E : 

Tab F : 

Order Clarifying Court's Orders Regarding the Discoverability o f 

Net Worth Information (January 30, 2009 ) 

Plaintiffs' Fourth Amended Petition 

Plaintiffs' Fifth Amended Petitio n 

Tab G : Majority and Concurring Opinions issued October 20, 2009 in Cour t 

of Appeals for the Fourteenth District of Texas ; In Re Mark A . 

Jacobs, M.D., Debra C. Gunn, M.D., and Obstetrical Gynecological 

Associates, P .A ., Relators, No. 14-09-00123-CV, 2009 Tex . App . 

LEXIS 8112 (Tex. App.-Houston [14th Dist.] Oct. 20, 2009, orig . 

proceeding ) 

Tab H : Case Law and Statutory Authority From Other State and Federa l 

Jurisdictions Requiring Prima Facie Case, or More Than Mere 

Allegations, of Gross Negligence to Support Discovery of Ne t 

Worth Information 

Tab I : 

Chronology of Legislature's and Courts' Changes to Recovery and 

Availability of Punitive Damages Since Circa 198 8 

xiv

V . 

STATEMENT OFTHEFACTS 

A, Underlying Lawsuit 

This is a medical malpractice action in which Real Parties alleged Relators 

provided negligent medical care and treatment to Shannon Miles McCoy . (Apx . Tab F at 

5; R . II Tab 8) . Therein, Real Parties alleged that Relators were grossly negligent an d 

requested exemplary damages based upon this alleged gross negligence . (Id. at 15). Rea l 

Parties requested production of certain documents indicating Relators' net worth . 

Relators objected to Real Parties' request, and Real Parties filed a motion to compe l 

production of such documents . Relators filed a response to Real Parties' motion t o 

compel production in which they urged, among other things, Relators' net wort h 

information is not relevant because Real Parties' allegations do not allege sufficient fact s 

to support the gross negligence and punitive damages claim . (R . II Tab . 6) . 

Respondent's Orders Requiring Production of Net Worthand 

Financial Information 

On January 23, 2009, Respondent signed an order requiring Relators to produc e 

the actual financial statements they have provided to a lender within the past two year s 

that identifies the assets and liabilities of each Relator. (R. II Tab 9 at 2 ; Apx. Tab B) . In 

addition, Respondent ordered that if Relators have not applied for a loan within the pas t 

two years, Relators must produce an affidavit in the format of what would have bee n 

provided to a lender as to net worth . (Id.). Later, Respondent clarified that thes e 

documents must be produced by February 6, 2009. (R . II Tab 12, attached hereto as Apx . 

Tab D). The court further clarified that Relators will be deposed regarding their ne t 

worth. (R II Tab 12 ; Apx. Tab D) . 

1

C . 

Petition for Writ of Mandamus to Fourteenth Court of Appeal s 

Relators sought relief from Respondent's net worth discovery orders from th e 

Fourteenth Court of Appeals, filing a petition for writ of mandamus there on February 4 , 

2009 in the matter styled In re Mark A, Jacobs, M.D., and Debra C. Gain, M.D . , 

Relators, No . 14-09-00123-CV . 5 

Relators argued that Respondent abused his discretio n 

by directing Relators to: (I) produce net worth information beyond current net worth, i .e . , 

finandial information for the past two years in the form of actual financial statements the y 

have provided to lenders ; 

(2) create a net worth document in the format of what woul d 

have been required from a lender; and (3) present Dr. Jacobs and Dr . Gunn for deposition 

regarding their net worth without any temporal or subject-matter limitations . See In re 

Mark A . Jacobs, M.D ., 2009 Tex . App . LEXIS 81 12 at *4 (Tex . App . - Houston [le 

Dist.] Oct. 20, 2009, orig . proceeding) (Apx. Tab G) . Relators also argued Real Partie s 

should not be entitled to any net worth because they (a) have not alleged sufficient fact s 

to support their claim for gross negligence, and (b) have not established a prima facie 

case of gross negligence . Id. at *7-12 . 

Relators' relief was granted in part, and denied in part, by the court of appeals . In 

a Majority Opinion of October 20, 2009, the court of appeals' panel, Justice Jeffrey V . 

Brown, Justice Jeff Brown, with Concurring Opinion by Justice Kent C . Sullivan , 

conditionally granted in part, and denied in part, Relators' request for relief as to the tria l 

On March 6, 2009, Obstetrical and Gynecological Associates, P .A., joined in the petition as an additional Relator . 

Additionally, the Fourteenth Court of Appeals granted Relators' request to stay the underlying proceedings durin g 

the pendency of the mandamus action, but it lifted those stays when it issued its opinions, In Mark .4 . Jacobs, A D . , 

2009 Tex. App. LEXIS 8112 at '''29 (Tex . App. - Houston [14 `1' Dist.] Oct. 20, 2009, orig, proceeding) (Apx . Ta b 

G) . 

7

court's net worth orders. Specifically, the court of appeals ruled Relators are to produc e 

only current net worth information, and are not required to create affidavits in a format of 

what would have been provided to a lender, but are required only to produce document s 

in response to the Real Parties' request for production that already exist . Id. at *28 . 

Respondent was directed to modify that portion of its order accordingly . 6 Id. Also, the 

court of appeals ruled Real Parties are limited to asking each physician to (1) state his o r 

her current net worth, and (2) the facts and methods used to calculate what each physicia n 

alleges is his or her current net worth . Id . at *28-29. (Apx . Tab G) . 

Relying on this Court's decision in Lunsford v. Morris, 746 S .W .2d 471, 473 (Tex . 

1988), however, the court of appeals' majority's opinion rejected Relators' argument tha t 

Real Parties were required - before being entitled to net worth discovery - to make a 

prim facie case of entitlement to punitive damages . Id. at *7 . The court of appeals als o 

held Real Parties had pleaded facts sufficient to support discovery of net wort h 

information . Id . at *16 . 

Justice Sullivan concurred in the result reached by the majority, but wrot e 

separately "only to note that the current Texas rule on net-worth discovery is no w 

decades-old and, in light of the evolution of Texas law, needs to be revisited ." Id . at *30 . 

He recounted the changes made by the Legislature since this Court decided Lunsford v . 

Morris, the case in which the Court, for the first time, allowed parties to discover an d 

° After an October 27, 2009 request by Relators' counsel for a stay of the net worth discovery (even as modified b y 

the court of appeals), Real Parties' counsel advised on November 6, 2009, that they oppose any stay of discover y 

while Relators' petition for writ of mandamus is pending in this Court . On November 6th, Real Parties notifie d 

Relators they have requested a hearing before the trial court, to be held on November 17, 2009, regarding modifyin g 

its discovery orders to comport with the court of appeals' order . See Exhibits "A," and "B" to Relators' Emergenc y 

Motion for Temporary Relief, filed contemporaneously with this Petition . 

3

introduce evidence of a defendant's net worth in cases in which punitive or exemplar y 

damages could be awarded . Id . at *31 . He pointed out these post-Lansford legislative 

changes limited both the amount of punitive damages and dramatically lessened th e 

chances of any punitive-damage recovery by a claimant . Id . at *36. Ultimately, Justic e 

Sullivan concluded, "I would urge that Lansford be revisited and updated ." Id . at x`43 . 

VI . 

SUMMARY OFTHEARGUMENT 

Respondent clearly abused his discretion in many respects regarding his orders fo r 

discovery of Relators' net worth and financial information, and the court of appeal s 

erroneously concluded that Respondent's orders could be modified to comport wit h 

Texas law. Here, Relators request this Court exercise its jurisdiction to consider 

Relators' issues raising matters of importance to all defendants against whom an artfu l 

allegation of liability supporting punitive damages is made . Respondent's orders, and th e 

court of appeals' modification of those orders, require Relators to produce thei r 

confidential financial and net worth information in the face of nothing more than barebones 

allegations of gross negligence, and prior to any prima facie showing by Rea l 

Parties that there is some merit to their claim of punitive liability . 

Respectfully, the court of appeals incorrectly held Real Parties had pleaded fact s 

sufficient to support discovery of net worth information. The court of appeals' majority 

relied on this Court's decision in Lansford v. Morris, 746 S.W.2d 471, 473 (Tex. 1988) in 

holding that Real Parties were not required - before being entitled to net worth discover y 

- to make a prima -facie case of entitlement to punitive damages. As Justice Sulliva n 

explained in his concurring opinion, legislative changes and judicial interpretations b y 

4

this Court and the United States Supreme Court over the past couple of decades hav e 

significantly restricted the availability of punitive damages, which suggests Lansford 

ought to be revisited, and revised, by this Court . 

While the trend in other jurisdictions is to withhold discovery of net wort h 

information until a prima facie showing that a viable issue exists for awarding punitive 

damages, or at least some demonstrated factual basis, this Court held in Lunsford that 

discovery of net worth information may be appropriate without any showing of a viabl e 

issue, subjecting a defendant to invasion of personal privacy rights upon little more tha n 

artful pleading . The Legislature has, since the Court has allowed such discovery , 

amended Chapter 41 of the Texas Civil Practice and Remedies Code to provide a stric t 

statutory scheme designed to comport with due process in imposition of exemplary 

damages against defendants . For example, not only must an award of exemplary 

damages be supported by clear and convincing evidence of gross negligence, but the 

predicate liability, as well as gross negligence liability, must be supported by unanimou s 

jury findings. And, a defendant may select a bifurcated process, whereby the net wort h 

information relevant and admissible for consideration by the jury is not presented to th e 

jury until after it has unanimously made the proper predicate liability findings . 

Respectfully, this Court should, in this case, recognize that this statutory exemplar y 

damages scheme requires more than artful pleading to sustain a violation of privacy an d 

due process rights through broad pretrial discovery into a defendant's net worth-a n 

issue relevant only to the determination of the amount of punitive damages . 

5

Texas courts have made clear that more than bare allegations of gross negligenc e 

are required before net worth discovery can proceed-that sufficient underlying facts 

must be alleged to support such legal theories. No adequate remedy exists to cure 

Respondent's clear abuse of discretion because Relators' due process rights, privacy 

interests and confidential information will have already been sacrificed by the time an 

appeal can be taken. Allowing Respondent's orders (even as modified by the court o f 

appeals) to stand creates dangerous, alarming precedent because any claimant could brin g 

suit with artful pleading of "gross negligence," and would be entitled not only to broa d 

documentary evidence, but also to cross-examination in deposition and video depositio n 

which may be made part of the public record. No defendant is exempt . This Court 

should reject this result and hold that more is required to sustain orders for pretrial ne t 

worth discovery . Accordingly, this Court should grant Relators' petition for writ o f 

mandamus and vacate the net worth discovery orders of Respondent and the court o f 

appeals . 

VII . 

ARGUMENT 

A . 

Standards for Mandamus Relief 

An appellate court can provide relief by writ of mandamus if the relato r 

establishes (I) a clear abuse of discretion' by the respondent, and (2) the lack of an 

'A trial court abuses its discretion when its decision is so arbitrary and unreasonable as to amount to a clear an d 

prejudicial error of law. See Walker v. Packer, 827 S .W.2d 833, 839 (Tex . 1982) (orig. proceeding) ; Copeland v. 

Ayers, 138 S.W.3d 652, 654 (Tex . App.-Dallas 2004, pet . denied) ; see also Johnson v. Fourth Court of Appeals, 70 0 

S .W.2d 916, 917 (Tex. 1985) (orig. proceedin g). A trial court has no discretion in determining what the law is o r 

applying the law to the facts . In re Prudential Ins. Co., 148 S.W .3d at 135 . As a result, this Court's review of th e 

legal principles controlling the Respondent's ruling is not deferential to that ruling . See Walker, 827 S .W.2d at 840 . 

A clear failure by Respondent to properly analyze or apply the law will constitute an abuse of discretion for whic h 

mandamus relief will lie . See Id. In addition, under certain circumstances, a trial court's action can constitute a n 

abuse of discretion even though it is consistent with existing jurisprudence, but where the action conflicts with wha t 

6

adequate remedy by appeal s 

E.g., In re Prudential Ins. Co. of America, 148 S .W.3d at 

135-36 ; Walker, 827 S.W.2d at 839 . 

B . 

Respondent Clearly Abused His Discretion in Ordering Discovery o f 

Relators' Financial Information and the Court of Appeals Erroneousl y 

Concluded Otherwis e 

I . Respondent's Orders Require Relators to Produce Persona l 

Financial Information of Net Worth Based Only on Factually 

Unsupported, Bare-Bones Allegations of Gross Negligence 

Respondent's orders (even as modified by the court of appeals) require Relators t o 

produce personal financial information of net worth based only on factually unsupported , 

bare-bones allegations of gross negligence . Respondent ordered Relators: (a) to produce 

the actual financial statements provided to a lender within the past two years tha t 

identifies their assets and liabilities (Apx . Tabs B, D ; R. II Tabs 9, 12); (b) if they hav e 

not submitted any such financial statements to a lender within the past two years, t o 

produce an affidavit that no such financial statement has actually been submitted to 

a 

the current law ought to be . In re Columbia Med. Ctr of Las Colinas . 290 S .W.3d 204, 213 (Tex . 2009) (orig. 

proceeding) (notwithstanding that existing jurisprudence was that trial court could grant new trial "in the interest o f 

justice," respondent nevertheless abused its discretion in failing to give reasonably specific explanation for settin g 

aside jury verdict in grant of new trial) . 

sWhether a remedy by ordinary appeal is "adequate," so as to preclude mandamus review depends heavily on th e 

circumstances presented and is better guided by general principles than by simple rules . Prudential Ins. Co., 14 8 

S.W.3d at 137. Mandamus review of significant rulings in exceptional cases may be essential to preserve importan t 

substantive and procedural rights from impairment or loss, to allow the appellate courts to give needed and helpfu l 

direction to the law that would othenvise prove elusive in appeals from final judgments, and to spare private partie s 

and the public the time and money utterly wasted enduring eventual reversal of improperly conducted proceedings . 

Id. at 136. An appellate remedy is "adequate" only when the benefits to mandamus review are outweighed by th e 

detriments . Id . 

A party establishes that no adequate remedy at law exists by showing that the party is in real danger of permanentl y 

losing its important substantive and procedural rights . Prudential Ins. Co ., 148 S .W.3d at 136 ; Canadia n 

Helicopters Limited v. Witting, 876 S.W.2d 304, 306 (Tex . 1994) . After a private document has been produced , 

inspected, and examined, a holding that the court had erroneously issued the order would be of small comfort to a 

relator in protecting their privacy . See Walker, 827 S .W.2d at 843 (quoting Automatic Drilling Machines v. Miller , 

515 S.W.2d 256 (Tex. 1974)) . 

7

lender in the past two years and produce an affidavit in the format of what would hav e 

been provided to a lender as to net worth (Id .) ; and (c) to be questioned about their ne t 

worth information during their depositions . 9 (Apx . Tabs C, D; R. lI Tabs 10, 12) . 

Real Parties' pleadings contain only factually unsupported, bare-bones allegation s 

of gross negligence . Specifically, in both the Fourth and Fifth Amended Petitions, Rea l 

Parties merely allege that "[t]he evidence clearly and convincingly shows that conduct o f 

Defendants . 

. . in this case constitutes `gross negligence."' (Apx. Tab E at 7 ; App. Tab F 

at 9 ; R . 11 Tabs 7, 8) . Real Parties fail to explain how the alleged facts support this 

allegation under the proper legal standard for imposing punitive liability in this medica l 

malpractice case that requires negligence and causation to be established by exper t 

testimony . See id. For example, Real Parties allege that Drs . Gunn and Jacobs were each 

grossly negligent in knowingly failing to appreciate 

the severity of Shannon' s 

coagulopathy and that Dr. Gunn knowingly failing to appreciate that Ms . McCoy' s 

clotting factors were being depleted and consumed . (Apx. Tab E at 9, 10 ; Apx . Tab F at 

11, 12 ; R. II Tabs 7, 8) (emphasis added) . None of the allegations, however, factuall y 

explain either the objective or subjective factors required to sustain a finding of gros s 

negligence . See TEX . Civ . PRAC . & REM . CODE ANN § 41 .001(11) . 

The court of appeals' holding that the physician-Relators may be deposed about "the facts and methods used t o 

calculate what each physician alleges is his or her current net worth" is still overly broad and promotes unwarrante d 

and improper "net worth" discovery . In re Jacobs, 2009 Tex . App. LEXIS 8112 at *24, This is shown in this case , 

because Real Parties' intent in deposing Relators about their net worth-as counsel stated in open court-is t o 

discover income stream information unrelated to current net worth that would be used for execution and capturin g 

that income in the event Real Parties get a judgment . See May 13, 2008 Hearing Transcript (R . 1 . Tab C, 38-39) . 

8

2. Trend Among States and Federal Courts is to Require Prima Facie 

Showing, or Demonstrated Factual Basis, of Punitive Liability 

Before Pretrial Discovery of Defendant's Net Worth 

Relators acknowledge that the Court has held that a defendant's net worth i s 

relevant to the issue of punitive damages and is discoverable, without the need for a 

prima facie showing of entitlement to punitive damages . 

Lansford v. Morris, 746 S .W.2d 

471, 471-73 (Tex . 1988) (acknowledging, "[s]ome states require a prima facie showing 

of entitlement to punitive damages before information about a defendant's net worth ma y 

be sought," but rejecting that requirement in holding "there is no evidentiary threshold a 

litigant must cross before seeking discovery") . In keeping with the trend of other 

jurisdictions, 10 

and in recognizing the legislative and judicial restraints impacting th e 

imposition of punitive damages since Lunsfbrd, however, it is clear that more than mer e 

allegations of gross negligence should be required to support pretrial discovery of ne t 

worth information . 

An order for net worth discovery without more than bare-bones allegations is no t 

only insufficient to support discovery, but also is intrusive of a defendant's sensitive , 

private, and confidential net worth information . See In re Jerry's Chevrolet-Buick, 97 7 

S.W.2d 565, 565-66 (Gonzalez, J ., dissenting) ; Wal-Mart Stores, Inc. v. Alexander, 86 8 

S.W.2d 322, 331-32 (Gonzalez, J ., concurring) . Relators request this Court consider the 

modern trend, apply the Legislature's clear intent in ensuring due process and protectio n 

of privacy rights in imposing exemplary damages, as expressed through Chapter 41' s 

1 ° See Apx . Tab H ; see also In re Jacobs, 2009 Tex . App . LEXIS 8112 at *8 n.2, *10 n .3 (majority opinion notin g 

several other jurisdictions requiring a prima facie showing of entitlement to recover punitive damages prior t o 

conducting discovery on a defendant's financial status, and still other jurisdictions that require the plaintiff t o 

establish a factual or evidentiary basis to be entitled to discovery on a defendant's net worth) . 

9

strict statutory scheme, and require a prima facie showing of a viable issue of punitive 

liability, or at a minimum, require a claimant to demonstrate some specific factual basi s 

for the punitive damages claim, rather than a simple allegation of "gross negligence" o r 

"knowing" negligent conduct before permitting discovery of a defendant's net worth . 

3 . Texas Legislature's Dramatic Restriction of Litigants' Ability to 

Recover Punitive Damages Reduces Benefit or Utility of Net Worth 

Discovery, and Supports Requirement for Prima Facie Showing 

Prior to Net Worth Discover y 

Over the years since Lwisford, the Legislature has dramatically restricted th e 

ability of litigants to recover punitive damages . " That fact makes it less likely plaintiffs 

can recover punitive damages, which reduces the probable benefit or utility of net wort h 

discovery that is conducted based only on mere allegations of gross negligence . 

See In re 

Jacobs, 2009 Tex . App . LEXIS 8112 at *37 (Sullivan, J ., concurring) (Apx. Tab G) . 

Under the Texas Rules of Civil Procedure, a trial judge should limit discovery for whic h 

the burden or expense outweighs the likely benefit . Id. at 31 (Sullivan, J ., concurring) ; 

TEx. R. C€v. P . 192.4(b) . In weighing these factors, courts are to consider, among othe r 

things, the importance of the proposed discovery in resolving the material issues of th e 

lawsuit . Id . Accordingly, these legislative changes-tightening the availability and 

recovery of punitive damages through increased burdens required to establish entitlemen t 

to them-support the institution of a prima facie showing of entitlement to punitiv e 

damages before intrusive net worth discovery should be allowed . 

Please see Appendix. Tab 1, "Chronology of Legislature's and Courts' Changes to Recovery and Availability o f 

Punitive Damages Since Circa 1988 ." 

10

As Justice Sullivan pointed out, the year before Lunsford was decided, th e 

Legislature began the process of restricting the availability of punitive damages b y 

enacting Chapter 41 of the Texas Civil Practice and Remedies Code . '2 In 1995, the 

Legislature enacted more sweeping tort reform to the law of punitive damages , 

substantially rewriting Chapter 41 to provide significant protection against a punitiv e 

damages award : 

a 

s 

a 

Juries could no longer award punitive damages designed to serve as a n 

example to others," but were instead limited to assessing damages wit h 

the limited purpose of punishing the wrongdoer . 

Chapter 41's coverage was extended to all but a few types of tor t 

actions . 

The "clear and convincing" standard of proof was required to prove al l 

elements of punitive damages . 

© With a few exceptions, a defendant could no longer be held responsibl e 

for punitive damages based on the conduct of another . 

o The cap on punitive damages was lowered . 

0 On the defendant's motion, the trial court was required to bifurcate th e 

trial for a separate determination of the amount of punitive damages , 

and evidence of a defendant's net worth was not admissible during the 

liability phase of the bifurcated trial . t ' 

These changes limited both (a) the amount of any exemplary damages award, and (b) the 

likelihood that any punitive damages award would be made . Id. In 2003, the Legislature 

enacted a comprehensive tort-reform package that included the new requirement that a 

12 In re Mark A. Jacobs, M.D ., 2009 Tex. App. LEXIS 8112 at *33 (Sullivan, J., concurring) (Apx . Tab G) ; see Ac t 

of June 3. 1987, 70th Leg ., 1st C.S., ch. 2, § 2.12, 1987 Tex . Geri. Laws 37, 44 (amended 1995 &. 2003) (curren t 

version at TEX. CIV. PRAC . & REM. CODE §§ 41 .001 - 41 .013). 

" See Act of April 11, 1995, 74th Leg . . R.S ., ch. 19, § 1, 1995 Tex . Gen. Laws 108, 108-13 (amended 2003) (curren t 

version at TEX. CIV. PRAC. & REM . CODE §y 41 .001 - 41 .013) ; In re Jacobs, 2009 Tex. App. LEXIS 8112 a t 

*37 (Sullivan, J ., concurring) . 

11

jury's verdict be unanimous , as to both liability for punitive damages, and unanimous as 

to the amount of any such award . 

' 4 

4 . Respondent 's Orders Constituted a Clear Abuse of Discretion And 

the Court of Appeals Erred in Concluding Otherwise Where Rea l 

Parties Fail to Allege Sufficient Facts to Support Gross Negligenc e 

Under Current Texas La w 

While net worth may be discoverable under certain circumstances, Responden t 

clearly abused his discretion (and the court of appeals erred) in compelling production o f 

Relators' private financial information and ordering their depositions where Real Partie s 

failed to allege sufficient facts to support their allegation of gross negligence . 

See 

Delgado v. Rittman, 793 S .W.2d 332, 333 (Tex . App.-Houston [1st Dist.] 1990) (orig . 

proceeding) ("the plaintiff seeking production of net worth information must àllege fact s 

showing the relator is liable for punitive damages'") ; AI Parker Buick Co . v. Touchy, 78 8 

S .W.2d 129, 130-31 (Tex . App.-Houston [1st Dist.] 1990) (orig. proceeding ) 

("Exemplary damages are special damages that must be supported by express allegation s 

of willfulness, malice, or gross negligence that go beyond the allegations necessary in a 

petition seeking recovery of compensatory damages ."). Respondent's grant of access t o 

information about Relators' finances is a serious and unwarranted invasion of thei r 

privacy, violates due process, and has great potential for abuse . 

Alexander, 868 S .W.2 d 

"See Act of June 2, 2003, 78th Leg., R .S., cli. 204, §§ 13 .01 -- 13.08, 2003 Tex . Gen . Laws 847, 886-89; TEX . CIV . 

PRAC. & REM . CODE § 41,003(d) ; Patricia F. Miller, Comment, 2003 Texas House Bill 4 : Unanimous Exemplw z 

Damage Awards and Texas Civil July Instructions, 37 ST . MARY'S L .J. 515, 520 (2006) ("[T]he unanimity 

requirements make it more difficult for a plaintiff to receive a punitive damage award from a Texas jury .") . 

12

at 331 (Gonzalez, J., concurTing) . t' 

The court of appeals erroneously concluded 

otherwise . 

C . 

This Court Should Exercise Jurisdiction and Consider Other Model s 

forPrnaFacieor Threshold Showing of Punitive Liability Prior t o 

Net Worth Discover y 

Once a plaintiff has properly pleaded a demonstrated factual basis for punitiv e 

liability, as discussed supra, the plaintiff should still be required to meet som e 

evidentiary threshold before being allowed net worth discovery from a defendant . In this 

regard, other states offer models for a prima facie or threshold showing of punitiv e 

liability prior to net worth discovery . For example, "[s]tates that have adopted bifurcate d 

proceedings for punitive damages cases have followed one of two main approaches to 

discover a defendant's net worth : (1) discovery upon a special verdict which establishes a 

right to punitive damages (the New York approach) ; and (2) pretrial discovery upo n 

prima facie proof of a viable claim for punitive damages (the Wyoming approach) ." 1 6 

Comment, Discovery of Net Worth in Bifurcated Punitive Damages Cases : A Suggested 

Approach After Transportation Insurance Co . v. I1VIoriel, 37 S . TEX. L. REV, 193, 21 2 

Further, bare allegations of gross negligence do not meet Due Process requirements to substantiate discovery o f 

net worth . See Delgado, 793 S.W.2d at 333 ; Al Parker Buick Co ., 788 S.W.2d at 130-31 . Specifically, for Rea l 

Parties to be entitled to discovery regarding net worth, their petition must specifically state the acts or omissions, (a ) 

which, when viewed objectively from the standpoint of the actor, at the time of its occurrence, involved an extreme 

degree of risk, considering the probability and magnitude of the potential harm to others, and (b) of which the actor 

has actual subjective awareness of the risk involved, but nevertheless proceeds with conscious indifference to th e 

rights, safety, or welfare of others . See TEX. CIV. PRAC. & REM . CODE § 41 .001(11) . 

!U In his dissent in Limsford, Justice Gonzalez suggested that employment of the "Wyoming Plan" would be a "goo d 

model for Texas," which requires the plaintiff to "make a prima facie showing to the trial court that a viable issu e 

exists for punitive damages" before being allowed to seek pretrial discovery of a defendant's net worth . 746 S .W .2 d 

at 475 (Gonzalez, J., dissenting) . 

13

(1 996). Under either, or under a modified or blended version, " this Court should require 

much more than bare allegations of gross negligence, fraud, or malice, as required unde r 

Chapter 41 of the Texas Civil Practice and Remedies Code to impose punitive liability . 

D . 

Under Current Texas Law, Court of Appeals' Modification of 

Discovery Orders Provides Inadequate Protection to Relators an d 

Little Guidance Regarding Scope of Net Worth Discovery Allowe d 

Regardless of whether this Court revisits the Lansford holding, it should exercis e 

jurisdiction to clarify the law and answer questions arising with the court of appeals ' 

modification of Respondent's order for Relators' depositions . Respondent ordered Dr . 

Jacobs and Dr. Gunn to provide their depositions regarding net worth without an y 

temporal or subject-matter limitations ; the court of appeals concluded that depositions o f 

Relators are permitted, but Real Parties are limited to asking each physician to (1) state 

his or her current net worth, and (2) the facts and methods used to calculate what eac h 

physician alleges is his or her current net worth . 

In re Jacobs, at *28- *29. Respectfully, 

allowing inquiry into the facts and methods used to calculate net worth provides n o 

protection to Relators or guidance on the scope of permitted pretrial inquiry. Such open - 

ended, overly broad parameters invite use of this discovery as a means to engage i n 

"judgment enforcement" discovery for purposes of execution in the event a judgment i s 

rendered, as Real Parties intend. This Court should clarify the parameters for net worth 

17 

Other standards include : (1) establishing the existence of a triable issue of exemplary damages ; (2) demonstratin g 

a reasonable basis for the claim ; (3) requiring a finding of liability and a basis for punitive damages ; (4 ) 

demonstrating likely survival of directed verdict; (4) requiring hearing and finding based on clear and convincin g 

evidence of reasonable basis to believe there has been willful, wanton, or malicious conduct ; (5) making a prima 

facie showing that a viable issue exists for awarding punitive damages ; (6)requiring adversary hearing to conside r 

defendant's request for protection based on legitimate claim to privacy balanced against plaintiffs right to prepar e 

for trial and avoid delay in evidentiary process . See Apx. Tab H . 

14

pretrial discovery and the scope of inquiry under these circumstances and within th e 

current state of Texas law . 

E . 

RelatorsHaveNoAdequate RemedybyAppeal 

Mandamus relief is justified in this case because an appellate court will not be abl e 

to cure the trial court's error in permitting the unnecessary, invasive, and intrusiv e 

discovery of irrelevant, private, and confidential financial information, prior even t o 

presentation of sufficient allegations of gross negligence and factually specific pleading s 

stating the acts or omissions constituting the objective and subjective prongs of gros s 

negligence as required under Texas law . 

Walker, 827 S .W.2d at 843 . Respondent abused 

his discretion in ordering net worth discovery without the necessary factual allegations t o 

support exemplary damages, and the court of appeals erred in concluding no clear abus e 

of discretion occurred . Relators have no adequate remedy by appeal from these orders , 

and Relators are in real danger of permanently losing their important due process an d 

privacy rights by having to disclose confidential financial information that goes beyon d 

what is required under Texas law, and is irrelevant to the substantive merits of thi s 

medical malpractice lawsuit . 

VIII . 

PRAYER FOR RELIE F 

WHEREFORE, PREMISES CONSIDERED, Relators respectfully pray this 

Court grant Relators' Petition, issue a writ of mandamus directing Respondent to vacate 

the Orders of January 23 and 30, 2009, as well as the modification of those orders by the 

court of appeals allowing net worth discovery to proceed, and to grant Relators all suc h 

other and further relief as this Court deems just . 

15

Respectfully submitted , 

COOPER & SCULLY, P.C . 

By:~~v`-,w!Cc_t.~-ice 

DIANA L. FAUS T 


R. BRENT COOPE R 


RICHARD C. HARRIST 

Texas Bar No. 24010094 

900 Jackson Street, Suite 100 

Dallas, Texas 75202 

TEL: (214) 712-950 0 

FAX : (214) 712-954 0 

HARRIS, HILBURN & SHERER, L .L.P . 

BARBARA H . IIILBURN 


DIVYA R. CFIUNDR U 


ELIZABETH A. KAUFMAN 


1111 Rosalie 


TEL : (713) 223-393 6 

FAX : (713) 224-535 8 

COUNSEL FOR RELATOR S 

MARK A. JACOB, M .D., DEBRA C . 

GUNN, M .D., AND OBSTETRICAL AN D 

GYNECOLOGICAL ASSOCIATES, P.A . 

16

CERTIFICATE OF SERVICE , 

I hereby certify that a true and Tect copy of the above and foregoing instrumen t 

was served on the / / day of '' ,c.e.n-L- ) 2009, to the following counsel of 

record : 

Hon. Mike Wood 

Probate Court Number Tw o 

Harris County Civil Courthous e 

201 Caroline, 6 `h Floor 


Respondent 

Mr. Alexander B . Klein, II I 

Mr. J. Todd Tromble y 

The Klein Law Finn 

2000 The Lyric Centr e 

440 Louisiana Stree t 


Counsel for Real Parties in Interest 

VIA FEDERAL EXPRES S 

VIA FEDERAL EXPRES S 

DIANA L. FAUST 

17

NO . 

IN THE 


IN RE MARK A . JACOBS, M.D., DEBRA. C. GUNN, M.D . , 


Relators . 


Probate Court Number Two, Harris County, Texa s 

Cause No . 352,923-40 1 

(Hon. Mike Wood ) 

APPENDIX TO PETITION FOR WRIT OF MANDAMU S 

In support of the Petition, Relators submit this Appendix, in compliance with Rul e 

52 .3(j) of the Texas Rules of Appellate Procedure : 

Tab A : Affidavit of Diana L. Faust (November 10, 2009 ) 

Tab B : Order Regarding Defendants Mark Jacobs, M .D.'s, Defendan t 

Obstetrical and Gynecological Associates, P .A.'s, and Debra Clark 

Gunn, M .D .'s Special Exceptions to Plaintiffs' Third Amended 

Petition, Plaintiffs' Motion to Compel Net Worth Discovery, an d 

Defendants Mark Jacobs, M .D .'s, Debra Clark Gunn, M .D.'s an d 

Obstetrical and Gynecological Associates, P .A .'s Motion for 

Protection Concerning Net Worth Discovery (January 23, 2009) 

Tab C : Order Regarding Plaintiffs' Motion to Compel the Deposition o f 

Mark Jacobs, M .D., with Subpoena Duces Tecum, Defendant Mark 

A . Jacobs, M .D .'s Motion for Protective Order, Motions fo r 

Sanctions, and Motion to Quash and Objections to Plaintiffs' Notic e 

of Intention to Take Deposition on Written Questions Propounded 

on Verizon Wireless (January 23, 2009 ) 

Tab D : 

Order Clarifying Court's Orders Regarding the Discoverability o f 

Net Worth Information (January 30, 2009 ) 

18

Tab E : 

Tab F : 

Plaintiffs' Fourth Amended Petition 

Plaintiffs' Fifth Amended Petitio n 

Tab G: Majority and Concur ring Opinions issued October 20, 2009 in Court 

of Appeals for the Fourteenth District of Texas ; In Re Mark A . 

Jacobs, M.D., Debra C. Gunn, M.D., and Obstetrical Gynecologica l 

Associates, P.A., Relators, No . 14-09-00123-CV, 2009 Tex . App . 

LEXIS 8112 (Tex . App .-Houston [14 t" Dist.] 2009, orig . 

proceeding ) 

Tab H : 

Tab I : 

Jurisdictions Requiring More than Mere Allegations to Discover Ne t 

Worth Information 

Chronology of Legislature's and Courts' Changes to Recovery and 

Availability of Punitive Damages Since Circa 198 8 

D/752315 .10 

19

STATE OF TEXAS § 

§ 

COUNTY OF DALLAS § 

AFFIDAVIT OF DIANA L. FAUST 

BEFORE ME, the undersigned authority, on this day personally appeared DIAN A 

L. FAUST, one of the counsel for Relators Mark A . Jacobs, M .D ., Debra Gutin, M.D . , 

and Obstetrical and Gynecological Associates, P .A., and upon her oath, did state as 

follows : 

1 My name is Diana L. Faust . I am over 18 years of age, and have never 

been convicted of a crime . I am of sound mind and suffer no legal disabilities. I am fully 

competent and duly qualified in all respects to make this Affidavit . I have persona l 

knowledge of the factual matters set forth herein and they are true and cor rect . 

2. I am an attorney with the firm of Cooper and Scully, P .C., and am one of 

the counsel representing Relators Mark A. Jacobs, M .D., Debra Gunn, M.D., and 

Obstetrical and Gynecological Associates, PA. ("Relators') in this cause . 

3. This Affidavit is submitted in support of Relators' Petition for Writ o f 

Mandamus ("Petition") . I have reviewed Relators' Petition, and every factual statemen t 

in the Petition is supported by competent evidence included in the Record, Supplementa l 

Record and Second Supplemental Record to the Petition . 

4. I further attest that all the documents included in the Record, Supplementa l 

Record, and Second Supplemental Record are true and cor rect copies of the Record , 

Supplemental Record, and Second Supplemental Record filed with the Fourteent h 

District Court of Appeal, Houston, Texas on February 4, 2009, February 8, 2009, and 

AFFIDAVIT OF DIANA L. FAUST PAGE 1 

0/752434 .1

February 25, 2009, respectively in In re Mark A. Jacobs, Debra C. Gunn, M.D., and 

Obstetrical and Gynecological Associates, P.A ., Relators, No . 

14-09-00123-CV, which 

records contain documents material to Relators' claims and are either pleadings that ar e 

on file in the underlying suit, hearing transcripts and exhibits, or orders signed by the trial 

court in the underlying suit . 

5 . I further attest document 13 included in Volume II of the Record submitted 

by Relators along with their Petition for Writ of Mandamus is a true and correct copy o f 

the Majority and Concurring Opinions issued by the Fourteenth District Court of Appeal s 

on October 20, 2009 in In re Mark A. Jacobs, Debra C. Gunn, M.D., and Obstetrical an d 

Gynecological Associates, P .A ., Relators, No . 14-09-00123-CV . 

Further, affiant sayeth not . 

2009 . 

DIANA L. FAUS T 

SUBSCRIBED AND SWORN TO BEFORE ME, on the0day of November , 

My Commission Expires : 

C.e-r'(*._, C.if~YL. 

Notary Public in and for the State of Texa s 

DENISE C. SMITH 

NOTARY PUBLI C 

STATE OF TEXA S 

My Comm . Exp. 03.24201 3 

AFFIDAVIT OF DIANA L. FAUST PAGE 2 

D/752434 .1

Sep.24 . 

1OvB' 10 :13AM 

2 322 P. 3/ 8 

Cam Number: 352, ?"s-4Jj 

PROBATE COURT 02 

IN REr CV.A IMTSHICF' OF § IN T.E PROM .1 .COURT A T 

I'VE PERSON AND ESTATE OF 

§ LAW NUMBER T L EE (3) OF 

SUA.NI ON mEs MCCOY, 

A.N.INCAPA(_ITATED PERSON § 11ARRIS COUNTY, TEXAS 

A.NIJ►RE ICCOY,1VEI)UALLY --. . 

AND AS PEMA.NENT GUARDIAN 

OF SHANNON MILES r.IICCOY, 

AN INCAPACITATED PERSON 

YS 

4 

WOMAN'S HOSPITAL OF TEXAS MC f 

-HCA. WOMAN'S HOSPITAL, LP &bk.i 

WOMAN'S EfOSP1TAL OF TEXAS ; § 

HOUSTON WOMAN'S gOsPITAL § 

PART,L.LC, ; 

DEBRA C. GUNN, MD, § 

MARK J.A.COBS, MD..; 

OBSTETRICAL AND 

C COLOG'GAI;ASSOC AT , PA, 

AND AMPS A. COLLINS, AD . 

REMAEraLia,glLsas . 11,5. 

BST : !!a' A ;w ►a a1i . .:4 .~ g . S , 

, d" "!O ` f~lf* E7t~tt~s*n_ tuns r+rn •te 

r°v" 1t-S' 

On May 13, 200, Pl iti' S and I endau I .ar A. Sobs, M.D., fondant Obstetrica l 

aRd Gynecological Associates,. ?..A., awl Debra Oak Gunn, M .D., p esented kite followin g 

Madons to this Court f r rjew and >^ iè ation ; 

? . Defend ts' Spocial °ceptions to PJais:fs' Third Am d ,d Petition ; 

2 . Plaintiffs' Marlon to- C wf Not Wort.DiscD ery from Defe, .ndu tts L Jacobs , 

Mil, DDfe tdatit Ob et cal d Cam^;ologica! . ..ssnciat,.s, J? A., and Debra Cia Gunn , 

MD.

S€s . 24. 2 .03 10 :14 AM 

/a 

1T IS SO ORDERED , 

d. Plaintiffs are prohibited from seeking to compel any additional responses to thei r 

outstaading net worth discovery to these Defendants. 

e. Any and all net worth informaiioa provided to Plaintiff's by Defendants Jacobs , 

OGA, and/or Gunti will to sauegnerded by a protective order that Defendants 

Jacobs, OGA, and/or Gunn ruin draft, circulate to Plaintiffs' counsel for approval , 

and submit to the Court I7 'er I nri will submit such protective order afte r 

Pfahtiffs' submit a sttf#icient pleading as to mss negligence . 

SIGNED this day of -, IA0 , 2006 

r 

APPROVED AS TO FORM: 

HARRIS, Hfl.BIJRN 

SHR, 

THEKLEIN l kV/ flP M 

By: 

Bsrl A . Hilburn 

Sthth .trr No. 09618950 

Elixmbet11 A . Kaufman 

State Dar Na, 2406 M R 

1111 Rosalie 


(713) 223-3936 (Telephone) 

(713) 214-5358 (Facsimile) 

ATTORNEYS FOR Di? ENDA'` 

ODSTETRICAL N G BCOLOG!C L, 

ASSOCIATES, P.A. 

A lexand c 

State i No 1155625 0 

J. T Gdd Trorabley 

State Bat Na 24004192 

I yriarrt K. Legge 

Smt Bar No. 0078440-4 

2000 Lyric C t;e 

440 Lauicia.m etreer i 

ousr~ii; T :w 77002 

(713) 650-1111 (Telephone) 

(713) 227-1121 (Facsimile) 

ATTORNE 

IIP.L.aN E.E1:S 

-31-\ S cJ ryi'~ec S 

-kNê 

cz.k 

au) 

e.ot' n o:5 . e -,~ ~ qt=r 

C, kkn e.3 - ~; onfe jâk\- t L 

crxr~tan &-‘‘ d re .&u rr c-F

$~.. 24. gi n 10 : 14At 2 5 2 F. 6/ 8 

Cause Mamba; 352,923401 

i 

IN : GUARDIANSHIP OF 

THE MESON AND ES"1',A .TB OF 

SHISYNON IYLIL)19 MCCOY, 

AN TNC°.ACA .St I _ 

AN MMOY, INDIVIDUALLY 

A,Nli,AS 1 1ZW 7 GUA1XA N 

t NESMCCO'Y 

Atd DiCAPACITATED PERSO N 

6 IN' u' tE PROI3A . COUIT AT 

LA'i 

zr (3) OF 

6 MARTS COUNTY, :1EXAS 

6 

6 

S 

6 

WOWS HOSPITAL Ok"=AS INC 

CyC,A.WOID S HOSPITAL, LIP &OM 

WOMAN'S I SflTAt O S; 

1otlS.I'O?1WOMAN'S HOSPITAL § 

?ASS, Z .Y..C.; 

1CD rtA C GUMI, $ 

MUM A. JACOBS., d3 .; 

OBSTETRICALAM 6 

V`€ ~ ASS § 

AM, A. COLLINS, M, D . 6 

4 

:j L=._ !j" ti ialY+1±' ii :LII s1 ~!' Ira Cis 

;' ' I . yg , 

=_1 ► :'t , s+ :"I'!i 1.!1:11P .11c% 1 , ::.Ota„Pli;O i 11 

.j ,Nt 

ii k _ 1 .k .s J '.11,PIONAt& t° f' ị L, ! X I 

c , . .!J I J '1 z % ! -!' L11'F t l± _1 `.. J 4 ! ~' k i t , )t' !.L h.j 

fìF ,rf; .1$L1$ 'I _kt JJ ~i e$? ,!,.At. - L ,1 k '' + : :W:ICV.' ' ! :, .!M t .~ 

OnI bx ry 7, 200R. P2xuifffR Dr:I:w Ma*A. ..robs, MD. . pose= 41 th e 

o?Ioirktg Madons to this Conn farmvlvfv, and =ridxi ott; 

I. Plaltdffs' N~atiav ix> Comte x~xcDtposmorx tf Nfld.A.Jas, NIL' D.. with S ro a 

DuceyTo ; 

t feU J~ ' kv>ta ian farProve Drag; 

3. Oars" Motions forSaacavus; ari& 

4, L t .1=bs' Motion ro Qwh =al Obbiecziar~tolini.o`s' Notice ofInItt Lion 

xis X pvsiriax7 Ol W:i a QU tiOns Prapaunltl t:zx ve aT Wirah s. 

N.

So.24 . 

200& 10 :14Ah 

No. 2032 11. 7/8 

Af tcr reviewing the Motions, the Response; the cvidtnvc introduced at thc dmc of th e 

bearing and after considering etc arg>m tts of counsel, this Court rules as follows : 

I. Plaintiffs' Motion to Compcl the Deposition of Martz A . Jacobs, Sv 1)., is granted. Dr. 

Jacobs is ordcscd to pear far deposition at the courthouse On Probate Cot a Number 3) 

on a mutually convenient dare: and time to the witness and counsel for Al parties. The 

deposition msy Oar exceed time (3) hours on the record.. The following docarrsu Ar d 

t tcrials are ordered to be produced at Dr. Jacobs' deposiitit» 

Shartnon'a original chin from Cg:IA; 

b The €04 Agrc. trt with BEM rumen; and. 

Copy of bxs mien r from Scptembcr 13, 2004 t roagb the and of September 

2004; 

Z Defendants' obcotr.c xQ tbs. ruction of the Verzxan WT"xre)ess cell phone ardor pater 

records of ar: Jambs art vetrultxai inputt and grzattetl £n ptut t gh thevse of n 

tp ar-rod t ctive +der to protect tbe conUeutlal anc&lor pvfiegcd Information.. ifany. 

cart zned ;n These rracte.rials. Plaintiffs we to provide tote gttaYtfieti protective order rmdc t 

;FHIPAA to this Cow andnll patties Worn caking the moor*. Plaintiffs are to obtain 

tic Vcrizoa Winless idsfromVeri vta `fireless. 

3., Defend ' Motions for Sasretiui s agaittst Todd Trombley PIaizrv$s arc denied. 

IT IS SO ORDER-MI , 

Sl.CRED this 

'25,. day of 

31MGE PRESIDING

235095 , 

PROBATE COURT 42 

pl~ - 

Cause Number: 352,923-40 1 

IN RE: GUARDIANSHIP O F 

THE PERSON AND ESTATE O F 

SHANNON MILES MCCOY, 

AN INCAPACITATED PERSON § 

ANDRE Iv] CCOY, INDIVIDUALLY § 

AND AS PERMANENT GUARDIAN § 

OF SHANNON MILES MCCOY, § 


§ 

VS § 

§ 

WOMAN'S HOSPITAL OF § 

TEXAS, INC .; CHCA WOMAN'S § 

HOSPITAL, L.P. dfbla WOMAN'S § 

HOSPITAL OF TEXAS ; HOUSTON § 

WOIvIAN'S HOSPITAL § 

PARTNER, L,L .C . ; § 

DEBRA C. GUNN, M .D. ; § 

MARK A . JACOBS, M .D. ; § 

OBSTETRICAL AND § 

GYNECOLOGICAL ASSOCIATES, P .A . ; § 

AND, JAM ES A . COLLINS, M.D . § 

§ 

§ 

§ 

IN THE PROBATE COURT AT 

LAW NUMBER TWO (2) O F 

HARRIS COUNTY, TEXA S 

ORDERCLARIFYING COURT'SORDERS REGARDINGTHE 

DISCOVERABILITY OF NET WORTH INFORMATIO N 

The Court heard Defendants' Motion to Clarify the Court 's Orders Regarding the 

Discoverab>lity of Net Worth Information, and having considered the same, the pleading s 

on file, and hearing arguments of counsel, if any, orders the following : 

It is ORDERED, ADJUDGED, AND DECREED that Defendants are to produc e 

net worth information in accordance with the Order regarding Defendants' Specia l 

Exceptions to Plaintiffs' Third Amended Petition, Plaintiffs' Motion to Compel Ne t 

Worth Discovery, and Defendants ' 

Motion for Protection Concerning Net Worth 

Discovery by F¢Nrtz l , 2009 . 

A CERTtFIED COPY 

JAN 3 0 2009 

ATTEST: 

BEVERLY B. KAUFMAN, County Cler k 

a rriSC tc tftit3;Texa5 4 " '- 

r 

Deputy

It is ORDERED, ADJUDGED, AND DECREED t t Plaintiffs are permitted to 

question D . Debra C. Gunn)iid Dr . Mark A. Jacobs at 

Aar +is ;RD 

worth info[ [nation 

epo.iition regarding their net 

t-ckt-eeaua.t.ta 

Cr*5iq 

R4T 

from videomping any depositio n 

SIGNED this ' 11 , day of )1''1"041 , 2009. 

A CERTIFIED COP Y 

ATTEST: JAN 3 02009 

BEVERLY D . KAUFMAN, County Cler k 

Harris County, Texas_ ,__. 

DCpUty

09/05/2e08 15:33 7132271121 THE KLEIN LAW FIRM PAGE 04/1 8 

NO. 352,923-40 1 

IN RE: GUARDIANSHIP OF § 

THE PERSON AM) ESTATE OF § 

§ 

SI1ANNON MILES MCCOY, § 


IN THE PROBATE COURT 

NUMBER THREE (3) OF 

HARRIS COUNTY, TEXA S 

ANDRE McCOY, INDIVIDUALLY AND § 

AS PERMANENT GUARDIAN OF § 

SHANNON MILES McCOY, § 

AN ThICAPACITATED PERSON § 

§ 

VS. § 

§ 

WOMAN'S HOSPITAL OF TEXAS, INC.; § 

CHCA WOMAN'S HOSPITAL, L.P. dibla § 

WOMAN'S HOSPITAL OF '1 ERAS ; § 

HOUSTON WOMAN'S HOSPITAL § 

PARTNER, L.L.C-; § 

DEBRA C. GUNN, M.D.; § 

MARK A. JACOBS, M.D . ; § 

OBSTETRICAL AND GYNECOLOGICAL § 

ASSOCIATES, P.A .; AND § 

JAMES A. COLLINS, M .I.D . § 

PLAINTIFFS'FOURTHAMENDED ORIGINAL PETITIO N 

TO THE HONORABLE JUDGE OF SAID COURT : 

COME NOW, Andre McCoy, Indiv idually; and as Permanent Guardian of Shannon Miles 

McCoy, an Incapacitated Person, ("Plaintiffs") and file this Fourth Amended Original Petitio n 

complaining of Defendants Woman's Hospital of Texas, Inc .; CHCA Woman's Hospital, L .P. dlbI a 

Woman's Hospital of Texas; Houston Woman's Hospital Partner, L.L.C .; Debra C. Gunn, M.D . ; 

Mark A. Jacobs,M.D .; Obstetrical and Gynecological Associates, P.A., and James A. Collins, M.D . 

In support of this Petition, Plaintiffs would respectfully show this Court the following :

09/85/2688 15 :33 7132271121 THE KLEIN LAW FIRM PAGE 05/18 

If. 

DISCOVERYCONTROL PLAN 

Pursuant to Rules 190.1 and 190.4 of the Texas Rules of Civil Procedure, Plaintiffs intend 

to proceed under Discovery Control Plan Level 3 . 

IL 

RULE 28 

Pursuant to Rule 28 of the Texas Rules of Civil Procedure, Plaintiffs move that an y 

partnership, unincorporated association, private corporation or individual doing business under an 

assumed name substitute a true name . 

I.I .I . 

PARTIES 

Plaintiffs Andre McCoy and Shannon Miles McCoy, an incapacitated person, are resident s 

of Houston, Harris County, Texas . 

Defendant Woman's Hospital of Texas, Inc. is a corporation doing business in the State o f 

Texas. Woman's Hospital of Texas, Inc . is the 1% General Partner of CHCA Woman's Hospital , 

LP . This Defendant has answered and made an appearance in this lawsuit . 

Defendant CUCA Woman's limp L.P. dlbfa Wolrnnn s Hospital of Texas is a limite d 

partnership doing business in the State of Texas and a Hospital licensed to do business in the State 

of Texas, This Defendant is located at 7600 Fannin Street, Houston, Harris County, Texas 7705 4 

and has filed an answer and made an appearance herein - 

Defendant Houston Woman's Hospital Partner, L.L.C. is a foreign corporation duly 

formed and existing under the laws of the State of Delaware . Defendant has designated Th e 

Corporation Trust Company, as its registered agent for service of process . The address of 

PAActivC Case\MIles -McCoy (Woman's}IPicarline;10P-04,w) 4 2

09/05/2008 15 : 33 7132271121 THE KLEIN LAW FIRM PAGE 06/1 8 

Defendant's registered agent for service of process is Corporation Trust Center, 1209 Orange Street; 

Wilmington, Delaware 19801 . See TEX . CIv . PRAC. &REM. CODE ANN . § 17.045(a) (Vernon 1985) . 

Defendant Houston Woman's Hospital. Partner, L_L.C. is a non-resident defendant and is subject 

to personal jurisdiction in the State of Texas under the Texas long arm statute . TEX . Civ . PRAC . & 

REM. CODE ANN . § 17 .041 (Vernon 1985). Since Defendant Houston Woman's Hospital Partner , 

is a non-resident defendant, the Texas Secretary of State is the proper agent for sex-vice of 

process . Id. at § 17.044(b) . Defendant Houston Woman's Hospital Partner, L .L.C. engaged in and 

did business in Texas at the time of the incident made the basis of this lawsuit . Id. at § 17.042(2) . 

Defendant Houston Woman's Hospital Partner, L .L.C. does not have a registered or designated agent 

for service of process in Texas . Accordingly, service on the Texas Secretary of State is proper . 

Id 

at § 17 .044(b). Plaintiffs have requested service of process through the Texas Secretary of State . 

This Defendant is in the process of being served so that this Defendant may answer and make an 

appearance in this lawsuit 

Defendant Debra C, Gunn, M.D . is a physician licensed to practice medicine in the Stat e 

of Texas and is a member andlor employee of Defendant Obstetrical and Gynecological 

Associates, P.A. Her business address is 7400 Fannin Street, Suite 700, Houston, Harris County, 

Texas 77054 . This Defendant has filed answer and made an appearance herein . 

Defendant Mark A. Jacobs, M.D. is a physician licensed to practice medicine in the Stat e 

of Texas and is a member andlor employee of Defendant Obstetrical and Gynecological 

Associates, P.A . His business address is 7400 Fannin Street; Suite 700, Houston, Harris County , 

Texas 77054. This Defendant has filed an answer and made appearance herein . 

Defendant Obstetrical and Gynecological Associates, P .A. is a professional associatio n 

made up of physicians licensed to practice medicine in the State of Texas and is the employer o f 

F :'Active CasestMiiles-McCoy (Woman 's 1PlendingslOP- ps,wpd 3

09/05/2008 15 :33 7132271121 THE KLEIN LAW FIRM PAGE e7I1 8 

Defendants Gunn and Jacobs . The business address of this Defendant is 7400 Fannin Street, Suite 

700, Houston, Harris County, Texas 77054. This Defendant has filed an answer and mad e 

appearance herein . 

Defendant James A. Collins, I 

.D . is a physician licensed to practice medicine in the Stat e 

of Texas . His business address is The Woman's Hospital of Texas, 7600 Fannin Street, Houston , 

Texas 77054_ This Defendant has filed an answer and made appearance herein . 

IV . 

JURISDICTION AND VENU E 

Jurisdiction is proper in the State of Texas and in . this Court because this suit arises under the 

laws of the State of Texas and because Plaintiffs have suffered damages as a result of the negligen t 

conduct of Defendants in the State of Texas . Pursuant to the jurisdictional provisions contained in 

the Texas Probate Code, this Court has exclusive and dominant jurisdiction over any matte r 

appertaining to or incident to a guardianship estate, including any and all personal injury actions 

brought by a person in that person 's capacity as guardian of the ward and the ward's estate . TEX . 

PROBATE CODE ANN. 

§ 606 (Vernon 2003) . Plaintiffs have suffered damages within th e 

jurisdictional limits of this Court. Jurisdiction is also proper in this Court because Plaintiffs an d 

Defendants are residents of the State of Texas and complete diversity of citizenship does not exist: 

Venue is proper inHouston, Harris County . Texas pursuant to § $(a) of the Probate Code and 

§15.002 of the Texas Civil Practices and Remedies Code . TEx . PROB . CODE ANN . § 8(a) (Vernon 

2003) ; TEX. Ctv. PRAC. & BEM. CODE ANN. §§ 15 .002(a)(l)-(3), 15.007 (Vernon 2003) . 

Specifically, venue is mandatory in this Court under § 8(a) of the Probate Code, and all of the event s 

or omissions giving rise to this claim occurred in Harris County, Texas . Accordingly, venue i s 

proper in Harris County, Texas under the Probate Code and general venue statute . 

F ;\Activa Casts\Mites-McCoy (Worn sn's)Wteadings\OP..O4,wpd 4

09/05/2608 15 :33 7132271121 THE KLEIN LAW FIRM i-'A(eE Ub/1 8 

FACTS 

This suit is necessary to collect on a legal debt and damages due and owing to Plaintiffs 

because of a hospitalization and continuous course of treatment which occurred betwee n 

September 13, 2004 and September 15, 2004 . 

VI . 

MEDICAL NEGLIGENCE 

During this hospitalization, Defendant Woman's Hospital of Texas, Inc ., Defendant CHCA 

Woman's Hospital, E.P. dlb/a Woman's Hospital of Texas and Defendant Houston Woman's 

Hospital Farther, L.L.C., by and through their nurses, agents, servants, and employees, failed t o 

exercise ordinary care, as required by law, concerning the nursing care and treatment provided t o 

Shannon Miles McCoy, During this hospitalization, Defendant Mark A . Jacobs, M.D. and 

Defendant Debra Clark Gunn, M.D . failed to exercise ordinary care, as required by law, concerning 

the medical care and treatment provided to Shannon Miles McCoy . During this hospitalization , 

Defendant James A- Collins, I 

.D . failed to exercise ordinary care, as required by law, concerning 

the medical care and treatment provided to Shannon Miles McCoy. The negligence of thes e 

.Defeiidtxiis pro inialely caused I?lairitif#s' iiijuries aiid daiiiages . 

Defendant Woman's Hospital of Texas, Inc,, Defendant CH 4 Woman's 

Hospital, LP d/l2/a Woman's Hospital of Texas, and Defendant Housto n 

Woman 's Hospital Partner, LL C. 

The nurses employed by Defendant Woman 's Hospital of Texas, Inc . and/or Defendant 

CHCA Woman's Hospital, L.P. d/b/a Woman's Hospital of Texas and/or Defendant Housto n 

Woman's Hospital Partner, L .L.C_ were negligent in each of the following ways and this negligenc e 

proximately caused Plaintiffs' injuries and damages : 

F:1Active Cases\Mites-McCny (WQman's)IPleadins\OP•O4,wpd 5

09/05/2008 15 :33 7132271121 THE KLEIN LAW FIRM PAGE 09/1 8 

I . Failing to provide appropriate and proper nursing care ; 

Failing to adequately assess Plaintiff's condition from a nursing standpoint; and, 

3 . Failing to provide nursing care and treatment in accordance with the standard of care . 

Each of the above acts and/or omissions constitute negligence, which negligence was a 

proximate and producing cause of Plaintiffs' injuries and damages . 

B. Defendant Debra Clark Gunn, M.D . 

Defendant Debra Clark Gunn. M.D. was negligent in each of the following ways and thi s 

negligence proximately caused Plaintiffs' injuries and damages : 

1. Failing to provide appropriate and proper care ; 

2. Failing to adequately assess Plaintiffs medical condition; and, 

3. Failing to provide treatment in accordance with the standard of care . 


proximate and producing cause of Plaintiffs' injuries and damages _ 

C. Defendant MarkA . Jacobs, .MR. 

Defendant Mark A. Jacobs, M.D. was negligent in each of the following ways and thi s 


l . Failing to provide appropriate and proper care ; 

2. Failing to adequately assess Plaintiffs medical condition ; and, 



proximate and producing cause of Plaintiffs" injuries and damages . 

F :1Aetivc Cases\Mi1cs-McCoy (Wonan's)1Pleading.nOP-oa .wpd 6

03/05/2@@B 15 :33 7132271121 IHE KLEIN LAW 1-Jj 1 f'AGi_ 1 ~1/ 1 i 

D. Defendant James A. Collins, MD. 

Defendant James A. Collins, M .D. was negligent in each of the following ways and thi s 

negligence proximately caused PIaintiffs ' injuries and damages : 


2. Failing to adequately assess Plaintiffs medical condition; and, 


Each. of the above acts and/or omissions constitute negligence, which negligence was a 


VICARIOUS LIABILITY 

Defendants Woman's Hospital of Texas, Inc ., CHCA Woman's Hospital, L.P . dlbla 

Woman's Ho spital of Texas, and Houston Woman's Hospital Partner, L.L.C . are vicariously liabl e 

for the conduct of its nurses, employees and/or other agents under the doctrine of respondeat 

superior . 

Defendant Obstetrical and Gynecological Associates, P .A. is a professional associatio n 

and is vicariously liable for the conduct of its employees, members, and/or agents (Defendants Gun n 

and Jacobs) under the doctrine of respondeat superior and under the statutory vicarious liability 

requirements provided in the Texas Professional Association Act . TEx . REV_ C]v . SWAT . ANN. art 

1528f, § 24 (Vernon 2003) . 

VII. 

GROSS NEGLIGENCE 

The evidence clearly and convincingly shows that conduct of Defendants Debra C . Gunn , 

M.D., Mark A. Jacobs, M.D., and Obstetrical and Gynecological Associates, P .A. in this cas e 

constitutes "gross negligence" as this term is defined in § 41 .001(11) of Civil Practices an d 

FM ciivc Cases\Mild-McCoy (Woman's)W9nadinEc\OP-0 .4 .tkpd 7

p9/05/ 2008 15 :33 71322 71121 THE KLEIN LAW FIRM RAGE 11/ 1 

Remedies Code . TEX . Ctv . PRAC. &REM . CODE ANN . § 41.001(11) (Vernon 2005) . Pursuant to 

§ 41 .001(11) of Civil Practices and Remedies Code, the term "gross negligence" means : 

An act or omission by Debra C . Gunn, M.D ., Mark A. Jacobs, M .D., and/or Obstetrical an d 

Gynecological Associates, P.A ., 

(i) which, when viewed objectively from the standpoint of Debra C . Gunn , 

M.D., Mark A. Jacobs, M.D., and/or Obstetrical and Gynecologica l 

Associates, P .A. at the time of its occurrence, involved an extreme degree of 

risk, considering the probability and magnitude of the potential harm to 

others; and 

of which Debra C. Gunn, M.D., Mark A. Jacobs, M .D ., and/or Obstetrical 

and Gynecological Associates, F .A. had actual, subjective awareness of th e 

risk involved, but nevertheless proceeded with conscious indifference to th e 

rights, safety, or welfare of others . 

Defendants Debra C. Gunn, M.D. and Mark A. Jacobs, M.D. were negligent and grossly 

negligent in the care and treatment of Shannon Miles McCoy. The negligence and gross negligenc e 

of these Defendants was a proximate cause of Plaintiffs injuries and damages in this case . 

Defendant Obstetrical and Gynecological Associates, P.A. is jointly and severally responsible fo r 

the grossly negligent conduct of Defendants Debra C . Gunn, M.D. and Mark A . Jacobs, M.D . 

According to the Texas Professional Association Act, "[t]he association is jointly and severally liabl e 

with the officer or employee furnishing professional services for such professional et i ors, omissions , 

negligence, incompetence or malfeasance on. the part of such officer or employee when such officer 

or employee is in the course and scope of his employment for the association." TEx. REv. CIv . 

STAT. ANN. art. 1528f, § 24 (Vernon 2001) . More specifically, Defendants Debra C . Gunn, M.D . 

and Mark A . Jacobs, M.D. were negligent and grossly negligent in the care and treatment of Shanno n 

Miles McCoy in each of the following ways discussed. below . 

F:\Activc CascsiMils-McCoy (Woman's)\Ptcndin \OP-Q4 .wpd 8


A. Defendant Mark A . Jacobs, M.D. 

Defendant Mark A . Jacobs, M.D. was grossly negligent in each of the following ways an d 

this gross negligence proximately caused Plaintiffs' injuries and damages : 

1. Dr. Jacobs knowingly failed to adequately and appropriately treat Shannon Miles - 

McCoy's disseminated intravascular coagulopathy ("DIC ") process ; 

2. Dr. Jacobs knowingly failed to appreciate the severity of Shannon's coagulopathy in 

light of the abnormal lab values indicating that Shannon was actively bleeding an d 

in DIC ; 

3 Dr. Jacobs knowingly failed to aggressively treat Shannon Miles-McCoy's DIC with 

adequate blood products and blood volume replacement to prevent her from decompensatiag 

prior to the delivery of her baby; 

Dr. Jacobs knowingly failed to verify that his orders for blood volume replacement 

were being carried out and that Shannon was being administered blood products a s 

ordered ; 

Dr. Jacobs knowingly failed to appropriately and aggressively manage Shannon' s 

DIC from the outset of her admission by ordering and administering additional unit s 

of fresh frozen plasma (beyond two units) to increase Shanno n' s blood volume and 

to correct her consumptive coagulopathy prior to the delivery of her baby ; and , 

Dr. Jacobs knowingly failed to repeatedly order appropriate coagulation profiles an d 

to serially re-check Shannon's blood work to monitor and evaluate her clottin g 

factors to determine how well, or how poorly she was responding to blood volume 

replacement administration . 

Pursuant to § 41 .001(11) of Civil Practices and Remedies Code, the above-describe d 

conduct by Dr. Jacobs satisfies the definition of "gross negligence" under Texas law. The conduct 

by Dr. Jacobs, described above, constitutes an act or omission by Dr . Jacobs, which, when viewe d 

objectively from the standpoint of Dr . Jacobs, at the time of its occurrence, involved an extrem e 

degree of risk, considering the probability and magnitude of the potential harm to others ; and of 

which Dr. Jacobs bad actual, subjective awareness of the risk involved, but nevertheless proceede d 

with conscious indifference to the rights, safety, or welfare of Shannon Miles McCoy. As more facts 

F :\Active CaseslMitc -McCoy (Wotrsan's)1Plcadings\OP-04. pd 9

a9/a5/20@8 15 :33 7132271121 THE KLEIN LAW FIRM PAGE 13/18 

become known through the course of discovery, Plaintiffs reserve the right to amend the Petition t o 

include additional negligent conduct on the part of this Defendant . 

B. Defendant Debra Clark Gunn, M.D. 

Defendant Debra Clark Gunn, M .D. was grossly negligent in each of the following ways an d 

this gross negligence was a proximate cause Plaintiffs' injuries and damages: 

I . Dr. Gunn knowingly failed to adequately and appropriately treat Shannon Miles - 

McCoys disseminated intravascular coagulopathy ("DIC") process ; 

Dr. Gunn knowingly failed to appreciate the severity of Shannon's coagulopathy i n 


in DIC; 

3. Dr, Gunn knowingly failed to aggressively treat Shannon Miles-McCoy's DIC with 

adequate blood products and blood volume replacement to prevent her from decompensating 

prior to and after the delivery of her baby ; 

4. Dr. Gunn knowingly failed to appreciate that Shannon Miles-McCoy's clotting 

factors were being depleted and consumed as a part of DIC process and that if thes e 

clotting factors were not replaced through aggressive blood volume replacement and 

clotting factor replacement, Shannon's blood would not be able to coagulat e 

effectively at the time she delivered her baby ; 

5. Dr. Gunn knowingly failed to order appropriate coagulation profiles and to seriall y 

re-check Shannon's blood work to monitor and evaluate her clotting factors t o 

determine how well, or how poorly she was responding to blood volume replacement 

administration ; 

Dr: .Gunn knowingly failed to recognize and appreciate that Dr. Jacobs had undertreated 

Shannon Miles-McCoy with adequate blood products and blood volum e 

replacement; 

7. Dr . Gunn knowingly failed to recognize, appreciate, and appropriately respond to 

Shannon's tachycardia on September 14, 2004 by more aggressively treating he r 

DIC ; 

8. Dr. Gunn knowingly orderedl .aix (a diuretic medication that increases urine output ) 

for Shannon Miles McCoy, even though she knew that Shannon was in DIC . actively 

bleeding, and did not need to be administered a medication that would decrease he r 

volume and increase her deeompensatron from a cardiovascular standpoint ; 

F:1Active CascwlMi[cs-McCoy (v'osnan s)1Picadings\O€'-04 .wpd 

I0


9. Dr. Gunn knowingly failed to recognize . appreciate . and properly respond to the fact 

that Shannon's condition was deteriorating (as evidenced by her tachycardia an d 

urine output), that she decompensating from a cardiovascular standpoint, and that she 

was developing hypovolemic shock on September 14, 2004; and, 

10. Dr. Gunn knowingly failed to recognize that she was not qualified to treat an d 

manage Shannon's DIC and to request the help of a more specialized physician t o 

treat and manage Shannon's DIC . 

Pursuant to § 41,001(11) of Civil Practices and Remedies Code, the above-describe d 

conduct by Dr. Gunn satisfies the definition of "gross negligence" under Texas law. The conduct 

by Dr. Gunn, described above, constitutes an act or omission by Dr . Gunn., which, when viewe d 

objectively from the standpoint of Dr . Gunn, at the time of its occurrence, involved an extrem e 


which Dr. Gunn had actual, subjective awareness of the risk involved, but nevertheless proceeded 

with conscious indifference to the rights, safety, ar welfare of Shannon Miles McCoy. As more facts 

become known through the course of discovery, Plaintiffs reserve the right: to amend the Petition to 


IC . 

`JC PRINCIPAL 

Defendants Debra C. Gunn, M.D . and Mark A. Jacobs, M .D . are viceeprincipals of 

Defendant Obstetrical and Gynecological Associates, P.A. As vice-principals, Defendants Debr a 

C. Gunn, M.D. and Mark A. Jacobs, M.D . represent Defendant Obstetrical and Gynecologica l 

Associates, P .A. in. its corporate capacity. When actions are taken by a "vice-principal" of a 

corporation. those acts are deemed to be the act of the corporation itself Defendant Obstetrical and 

Gynecological Associates, P.A. authorized and/or ratified the conduct of Defendants Debra C . Gunn , 

M.D. and Mark A. Jacobs, M.D. in this case, Defendants Debra C. Gurus, M.D. and Mark A. Jacobs , 

M.D. were employed by Defendant Obstetrical and Gynecological Associates, P . A. in a managerial 

( :\Active CaszlMil .-McCcry (Wom©n's}\l'Ic,,dings\OP-44_wpd 11

BS/Q5/2o@B 15 :33 7132271121 THE KLEIN LAW FIRM PAGE 15/1 3 

capacity for Defendant Obstetrical and Gynecological Associates . PA. at the time of their conduct 

in this case, and both Defendants Debra C . Gunn, M .D . and Mark A. Jacobs, M .D . were acting in 

the course and scope of their employment at the time they cared for Shannon Miles McCoy i n 

September 2004 . 

X. 

DAMAGE S 

Plaintiff Andre McCoy, Individually, requests that the jury consider what sum of money, i f 

paid now in cash, would fairly and reasonably compensate him for the injuries and damages he ha s 

sustained in this case as a result of the negligence of Defendants . Mr. McCoy will ask that the jury 

consider the elements of damages listed below as follows : 

I_ Loss of consortium (past and future) ; 

2. Loss of household services (past and future) ; 

3. Mental anguish (past and future) ; and, . 

4, Physical pain (past and future) . 

Plaintiff Andre McCoy, as Guardian of the person and the estate of Shannon Miles McCoy , 

an incapacitated person, requests that the jury consider what stun of money, if paid now in cash , 

would fairly and reasonably compensate his wife for the injuries and damages she has sustained i n 

this case as a result of the ne gligence of Defendants. On behalf of his wife . Shannon, Mr . McCoy 

will ask that the jury consider the elements of damages listed below as follows : 

1 . Medical expenses (past and future) ; 

Loss of earning capacity (past and future) ; 

3, Mental anguish (past and future) ; 

4, Physical pain (past and future) ; 

5 . Disfigurement (past and future) ; 

F:'Active Cases[Miics-McCoy (Worsan'$)1pkadinT;10P-44 .wpd 12

Lib/ 2J d (laaari1,41 IHE KLEIN LAW FINM H:-E 1b/i 

6. Physical impairment (past and future); and, 

7. Loss of consortium (past and future) . 

EXEMPLARY DAMAGES 

Based on the grossly negligent conduct ofDefendants Debra C . Gunn,M.D_, Mark A . Jacobs, 

MD., and Obstetrical and Gynecological Associates, P .A., Plaintiffs seek exemplary damages in an 

amount sufficient to deter Defendants Debra C . Gunn, M .D., Mark A . Jacobs, M.D ., and Obstetrical 

and Gynecological Associates, P .A., and similarly situated Defendants, from engaging in the grossl y 

negligent conduct made the basis of this suit . 

Pleading in the alternative, the Texas statute that provides for a cap on exemplary damage s 

arising from grossly negligent conduct violates due process, denies equal protection of the laws, an d 

is arbitrary and capricious. The intended purpose of exemplary damages is to punish a Defendant 

that has been found by the trier of fact to have en gaged in grossly negligent conduct. The burden of 

proof and the elements of proof to sustain a finding of exemplary damages are extreme . To cap 

exemplary damages after the fact finder has found that the conduct of the Defendant was s o 

egregious as to warrant a funding of gross negligence is arbitrary and capricious, violates the equa l 

protection provisions of the Texas and U.S. Constitutions, and creates a favored class of Defendants 

that can never be deterred by the existing caps on exemplary damages. Texas' statutory caps on 

exemplary damages deprives the Plaintiff of a trial by jury, equal protection of the laws, due process , 

the right to Open Courts, and substitutes these fundamental rights with an arbitrary and capriciou s 

legislative enactment in violation of the Texas and U .S . Constitutions . 

PMctive Cascs\ W 1m-McCoy (Woman's)1rlc2dis gsl0P-04 .wpd 13

09105/2008 16 :13 :5 (1eit :2 /1 "121 Li-1E KLEIN LAW V 1//1 s 

XII . 

CONDITIONSPRECEDENT 

Plaintiffs have compliedwith all conditions precedent to file this lawsuit . Specifically, prio r 

to the commencement of this action, Plaintiffs provided notice to Defendants under § 74.051 and a 

compliant medical authorization under § 74 .052 of Chapter 74 of the Civil Practices and Remedie s 

Code. TEx. Civ . 

Pi2AC. & REM. CODE ANN_ §§ 74.051-74.052 (Vernon Supp. 2005). However, 

Defendants failed to adequately respond to the notice letter forcing Plaintiffs to file this lawsuit . 

Plaintiffs have also provided Defendants with a Chapter 74 expert report and curriculum vitae, alon g 

with the filing of this petition, in compliance with expert report requirements under § 74351(a) of 

the Civil Practices and Remedies Code. Id. at § 74.351(a) . 

XIII . 

INTEREST 

Plaintiffs seek prejudgment and post judgment interest as authorized by law . 

XIV . 

JURY. 

Plaintiffs respectfully request a trial by jury. 

WHEREFORE. PREMISES CONSIDERED, Plaintiffs pray that Defendants be cited to 

appear and answer herein; and, that upon final trial on the merits in this case, Plaintiffs recover a 

judgment against Defendants for the damages prayed for herein; that Plaintiffs recover prejudgment 

and post judgment interest at the maximum legal rate ; that Plaintiffs recover costs of court ; and that 

I=:1Active Cases\Mites-McCoy (Woman `s)1PIcadiilg:\OP-O4 wpd 14

l='i 11b/2(IE;3m 1b : ;3 :3 /13'22/11' 1 1H h KLEIN LAW [-INN l-4eL 1b/1 0 

Plaintiffs recover such other and further relief, both in law and equity, to which they may sho w 

themselves justly entitled . 

Respectfully submitted, 

Alexande '~'. K.I r 7 III 

State Bar No. 1155625 0 

3. Todd Trombley 

State Bar No . 2400419 2 

Myri am K. Legge 

State Bar No. 00784404 

2000 The Lyric Centre 

440 Louisiana Street 


Telephone : (713) 650-111 1 

Facsimile : (713) 227-112 1 

ATTORNEYS FOR PLAINTIFFS 

CERm1CA'I'EOFSERVICE 

hereby certify that a true and correct copy of the foregoing instrument has been forwarde d 

to the following counsel of record via facsimile on this 5' day of September, 2008 : 

Mr. Jeffrey H. Uzick 

Mr. Roger Bey gC { 

Uzick, Oneken, Sheuerrnan & Berger 

238 Westcott Stree t 

Houston, Texas 77007-7004 

Mr. James B. Edward s 

Mr. Donald S. Stephens 

Edwards and Associate s 

12603 Southwest Freeway, Suite 20 0 

Stafford, Texas 77477 

Ms. Barbara A. Hilburn 

Ms. Elizabeth Kaufman 

Harris, Hilburn & Sherer, L .L.P . 

1111 Rosalie Street 

Houston, Texas 77004-281 2 

Mr. George A. Shannon, Jr . 

Mr. Scott J. Sherman 

Shannon, Martin, Finkelstei n 

& Alvarado 

909 Fannin Street, Suite 240 0 


F:'Active CzssesWiics-McCoy (Woman's)1Plend 'sngslOP-O4 .tvpd 15

NO- 352,923-40 1 

IN RE: GUARDIANSHIP OF § IN THE PROBATE COURT 

THE PERSON AND ESTATE OF § 

§ NUMBER TWO (2) OF 

SHANNON MILES MCCOY, § 

AN INCAPACITATED PERSON § HARRIS COUNTY, T E X A S 

ANDRE MCCOY, INDIVIDUALLY AND § 

AS PERMANENT GUARDIAN OF § 

SHANNON MILES McCOY, § 


§ 

VS . § 

§ 

WOMAN'S HOSPITAL OF TEXAS, INC.; § 

CHCA WOMAN'S HOSPITAL, L .P . d/b/a § 

WOMAN'S HOSPITAL OF TEXAS ; § 

HOUSTON WOMAN'S HOSPITAL § 

PARTNER, L.L.C. ; § 

DEBRA C . GUNN, M .D .; § 

MART{ A. JACOBS, M.D . ; § 

OBSTETRICAL AND GYNECOLOGICAL § 

ASSOCIATES, P .A . ; AND § 

JAMES A. COLLINS, M.D . § 

---------- ------- 

PLAINTIFFS'FIFTHAMENDED ORIGINAL PETITIO N 

TO THE HONORABLE JUDGE OF SAID COURT : 

COME NOW, Andre McCoy, Individually, and as Permanent Guardian of Shannon Mile s 

McCoy, an Incapacitated Person, ("Plaintiffs") and file this Fifth Amended Original Petitio n 

complaining ofDefendants Woman's Hospital of Texas, Inc . ; CHCA Woman's Hospital, L .P. d/b/a 

Woman's Hospital of Texas ; Houston Wornan's Hospital Partner, L .L.C .; Debra C. Gunn, M .D . ; 

Mark A. Jacobs, M.D .; Obstetrical and Gynecological Associates, P,A ., and James A . Collins, M .D . 

In support of this Petition, Plaintiffs would respectfully show this Court the following :

I . 

DISCOVERY CONTROL PLA N 

Pursuant to Rules 190.1 and 190,4 of the Texas Rules of Civil Procedure, Plaintiffs inten d 

to proceed under Discovery Control Plan Level 3 . 

IL 

RULE2 8 

Pursuant to Rule 28 of the Texas Rules of Civil Procedure, Plaintiffs move that any 

partnership, unincorporated association, private corporation or individual doing business under a n 

assumed name substitute a true name . 

III . 

PARTIES 

Plaintiffs Andre McCoy and Shannon Miles McCoy, an incapacitated person, arc resident s 

of Houston, Harris County, Texas . 

Defendant Woman's Hospital of Texas, Inc . is a corporation doing business in the State o f 

Texas. Woman's Hospital of Texas, Inc . is the 1% General Partner of CHCA Woman's Hospital , 

L.P. This Defendant has answered and made an appearance in this lawsuit , 

Defendant CHCA Woman's Hospital, L.P. d/b/a Woman's Hospital of Texas is a limite d 

partnership doing business in the State of Texas and a Hospital licensed to do business in the Stat e 

of Texas. This Defendant is located at 7600 Fannin Street, Houston, Harris County, Texas 7705 4 

and has filed an answer and made an appearance herein . 

Defendant Houston Woman's Hospital Partner, L.L,C. is a foreign corporation dul y 

formed and existing under the laws of the State of Delaware, Defendant has designated Th e 

Corporation Trust Company, as its registered agent for service of process. The address of 

F :1Activc Cascc\MilcS-McCoy (Woman's)Wleadings\OP•05vpd 2

Defendant's registered agent for service of process is Corporation Trust Center, 1209 Orange Street , 

Wilmington, Delaware 19801 . See TEX . Civ . PRAC. & REM . CODE ANN . § 17 .045(a) (Vernon 1985) . 

Defendant Houston Woman's Hospital Partner, L .L.C. is a non-resident defendant and is subjec t 

to personal jurisdiction in the State of Texas under the Texas long arm statute . TEX . Civ . PRAC . & 

REM. CODE ANN . § 17.041 (Vernon 1985) . Since Defendant Houston Woman's Hospital Partner , 

L.L.C. is a non-resident defendant, the Texas Secretary of State is the proper agent for service o f 

process : Id . at § 17.044(b). Defendant Houston Woman's Hospital Partner, L .L.C. engaged in and 

did business in Texas at the time of the incident made the basis of this lawsuit . Id . at § 17.042(2) . 

Defendant Houston Woman's Hospital Partner, L .L.C. does not have a registered or designated agen t 

for service of process in Texas . Accordingly, service on the Texas Secretary of State is proper . 

Id. 

at §17.044(b). Plaintiffs have requested service of process through the Texas Secretary of State . 

This Defendant is in the process of being served so that this Defendant may answer and make an 

appearance in this lawsuit . 

Defendant Debra C. Gunn, M .D . is a physician licensed to practice medicine in the Stat e 

of Texas and is a member and/or employee of Defendant Obstetrical and Gynecologica l 

Associates, P.A. Her business address is 7400 Fannin Street, Suite 700, Houston, Harris County , 

Texas 77054. This Defendant has filed answer and made an appearance herein . 

Defendant Mark A . Jacobs, M.D . 

is a physician licensed to practice medicine in the Stat e 

of Texas and is a member and/or employee of Defendant Obstetrical and Gynecologica l 

Associates, P.A. His business address is 7400 Fannin Street, Suite 700, Houston, Harris County , 

Texas 77054. This Defendant has filed an answer and made appearance herein . 

Defendant Obstetrical and Gynecological Associates, P .A . is a professional associatio n 

made up of physicians licensed to practice medicine in the State of Texas and is the employer o f 

F:'Activc C'ascs\Mi1 s•McCoy (Woman's)tPlcudin s\OP-U5 .wpd 3

Defendants Gunn and Jacobs . The business address of this Defendant is 7400 Fannin Street, Suit e 

700, Houston, Harris County, Texas 77054, This Defendant has filed an answer and mad e 

appearance herein . 

Defendant James A . Collins, M .D. is a physician licensed to practice medicine in the Stat e 

of Texas. His business address is The Woman's Hospital of Texas, 7600 Fannin Street, Houston , 

Texas 77054 . This Defendant has filed an answer and made appearance herein . 

IV. 

JURISDICTION ANDVENUE 

Jurisdiction is proper in the State of Texas and in this Court because this suit arises under th e 

laws of the State of Texas and because Plaintiffs have suffered damages as a result of the negligen t 

conduct of Defendants in the State of Texas . Pursuant to the jurisdictional provisions contained in 

the Texas Probate Code, this Court has exclusive and dominant sjurisdiction over any matte r 

appertaining to or incident to a guardianship estate, including any . and all personal injury action s 

brought by a person in that person's capacity as guardian of the ward and the ward's estate . Tex . 

PROBATE CODE ANN. § 606 (Vernon 2003) . Plaintiffs have suffered damages within th e 

jurisdictional limits of this Court. Jurisdiction is also proper in this Court because Plaintiffs an d 

Defendants are residents of the State of Texas and complete diversity of citizenship does not exist . 

Venue is proper in Houston, Harris County, Texas pursuant to § 8(a) of the Probate Code an d 

§ 15.002 of the Texas Civil Practices and Remedies Code . TEx . PROB. CODE ANN . § 8(a) (Vernon 

2003); Tex. Civ . PRAc . & REM. CODE ANN. §§ 15 .002(a)(l)-(3), 15 .007 (Vernon 2003) . 

Specifically, venue is mandatory in this Court under § 8(a) of the Probate Code, and all of the event s 

or omissions giving rise to this claim occurred in Harris County, Texas . Accordingly, venue i s 

proper in Harris County, Texas under the Probate Code and general venue statute . 

F:Vlctivc Cusrs\Miles-McCoy (Woman's)1Plcadin sÒP-O5 .wpd 4

V. 

FACTS 

This suit is necessary to collect on a legal debt and damages due and owing to Plaintiffs 

because of a hospitalization and continuous course of treatment which occurred betwee n 

September 13, 2004 and September 15, 2004 . 

VI. 

MEDICAL NEGLIGENC E 

During this hospitalization, Defendant Woman's Hospital ofTexas, Inc., Defendant CHC A 

Woman's Hospital, L .P. d/la/a Woman's Hospital of Texas and Defendant Houston Woman' s 

Hospital Partner, L.L.C., by and through their nurses, agents, servants, and employees, failed to 

exercise ordinary care, as required by law, concerning the nursing care and treatment provided t o 

Shannon Miles McCoy . During this hospitalizatioia, Defendant Mark A . Jacobs, M.D. and 

Defendant Debra Clark Gunn, M.D . failed to exercise ordinary care, as required by law, concernin g 

the medical care and treatment provided to Shannon Miles McCoy. During this hospitalization , 

Defendant James A. Collins, M.D . failed to exercise ordinary care, as required by law, concernin g 

the medical care and treatment provided to Shannon Miles McCoy . The negligence of thes e 

Defendants proximately caused Plaintiffs' injuries and damages . 

A. Defendant Woman's Hospital of Texas, Inc., Defendant CHCA Woman's 

Hospital, LP. d/b/a Woman's Hospital of Terns, and Defendant Houston 

Woman's Hospital Partner, L.L.C. . 

The nurses employed by Defendant Woman's Hospital of Texas, Inc . and/or Defendant 

CHCA Woman's Hospital, L.P . d/b/a Woman's Hospital of Texas and/or Defendant Housto n 

Woman's Hospital Partner, L .L.C. were negligent in each of the following ways and this negligenc e 

proximately caused Plaintiffs' injuries and damages : 

F;\Active Cases\Miles-McCoy (Woman's)1Picidinp\OP-05 .wpd 5

1. Failing to provide appropriate and proper nursing care ; 

2. Failing to adequately assess Plaintiff's condition from a nursing standpoint ; and , 

3. Failing to provide nursing care and treatment in accordance with the standard of care . 



B. Defendant Debra Clark Gunn', M.D. 

Defendant Debra Clark Gunn, M .D. was negligent in each of the following ways and this 



2. Failing to adequately assess Plaintiff's medical condition ; and , 


Each-of the-above acts and/or omissions constitute negligence, which negligence was a 

proximate and producing cause of Plaintiffs ' injuries and damages . 

Pleading more specifically, Defendant Debra Clark Gunn, M.D. was negligent in each of th e 

following ways and this negligence was a proximate cause Plaintiffs' injuries and damages : 

1. Dr. Gunn was negligent in failing to adequately and appropriately treat Shanno n 

Miles-McCoy's disseminated intravascular coagulopathy ("DIC") process ; 

2. Dr. Gann was negligent in failing to appreciate the severity of Shannon' s 

coagulopathy in light of the abnormal lab values indicating that Shannon was activel y 

bleeding and in DIC ; 

3. Dr. Gunn was negligent in failing to aggressively treat Shannon Miles-McCoy's DI C 

with adequate blood products and blood volume replacement to prevent her from decompensating 

prior to and after the delivery of her baby ; 

4. Dr. Gunn was negligent in failing to appreciate that Shannon Miles-McCoy's clottin g 


clotting factors were not replaced through aggressive blood volume replacement and 



F:1Active Caes\Miles-McCoy (WDn s's) Pleudings\OP-O5 .wp! 6

5. Dr. Gunn was negligent in failing to order appropriate coagulation profiles and t o 

serially re-check Shannon's blood work to monitor and evaluate her clotting factors 

to determine how well, or how poorly she was responding to blood volum e 

replacement administration ; 

6. Dr. Gunn was negligent in failing to recognize and appreciate that Dr. Jacobs had 

under-treated Shannon Miles-McCoy with adequate blood products and blood 

volume replacement ; 

7. Dr. Gunn was negligent in failing to recognize, appreciate, and appropriately respond 

to Shannon's tachycardia on September 14, 2004 by more aggressively treating her 

DIC ; 

8. Dr. Gunn was negligent in ordering Lasix (a diuretic medication that increases urin e 

output) for Shannon Miles McCoy, even though she knew that Shannon was in DIC , 

actively bleeding, and did not need to be administered a medication that would 

decrease her volume and increase her decompensation from a cardiovascular 

standpoint; 

9. Dr. Gunn was negligent in failing to recognize, appreciate, and properly respond to 

the fact that Shannon's condition was deteriorating (as evidenced by her tachycardi a 

and urine output), that she decompensating from a cardiovascular standpoint, an d 

that she was developing hypovolernic shock on September 14, 2004 ; and, ' 

10. Dr. Gunn was negligent in failing to recognize that she was not qualified to treat and 

manage Shannon's DIC and to request the help of a more specialized physician to 


The above-described conduct by Dr . Gunn satisfies the definition of "negligence" unde r 

Texas law. As more facts become known through the course ofdiscovery, Plaintiffs reserve the righ t 

to amend the Petition to include additional negligent conduct on the part of this Defendant. 

C', 

Defendant Mark A. Jacobs, M.D. 

Defendant Mark A. Jacobs, M.D . was negligent in each of the following ways and thi s 


1 Failing to provide appropriate and proper care ; 

2. Failing to adequately assess Plaintiff's medical condition ; and , 


F :\Active Casc AMiles-McCoy (Wonzan's)\Pleadinps\QP-O5,wpd 7



Pleading more specifically, Defendant Mark A . Jacobs, M .D. was negligent in each of th e 

following ways and this negligence proximately caused Plaintiffs' injuries and damages : 

1 . Dr. Jacobs was negligent in failing to adequately and appropriately treat Shannon 

Miles-McCoy's disseminated intravascular coagulopathy ("DIC ") process ; 

9 Dr. Jacobs was negligent in failing to appreciate the severity of Shannon' s 

coagulopathy in light ofthe abnormal lab values indicating that Shannon was activel y 

bleeding and in DIC ; 

3. Dr. Jacobs was negligent in failing to aggressively treat Shannon Miles-McCoy' s 

DIC with adequate blood products and blood volume replacement to prevent he r 

from de-compensating prior to the delivery of her baby ; 

4. Dr. Jacobs was negligent in failing to verify that his orders for blood volum e 

replacement were being carried out and that Shannon was being administered bloo d 

products as ordered ; 

5. Dr. Jacobs was negligent in failing to appropriately and aggressively manag e 

Shannon's DIC from the outset of her admission by ordering and administerin g 

additional units of fresh frozen plasma (beyond two units) to increase Shannon' s 

blood volume and to correct her consumptive coagulopathy prior to the delivery o f 

her baby; and , 

6. Dr. Jacobs was negligent in failing to repeatedly order appropriate coagulatio n 

profiles and to serially re-check Shanno n's blood work to monitor and evaluate her 

clotting factors to determine how well, or how poorly she was responding to bloo d 

volume replacement administration . 

The above-described conduct by Dr. Jacobs satisfies the definition of "negligence" unde r 

Texas law. As more facts become known through the course ofdiscovery, Plaintiffs reserve the right 

to amend the Petition to include additional negligent conduct on the part of this Defendant , 

D. Defendant James A. Collins, 111,D. 

Defendant James A. Collins, M.D. was negligent in each of the following ways and thi s 


F :Vlctive Cascs\Miks•McCoy (Wornai,'s)\Plcudin s\0P O5 .wpd 8

Failing to provide appropriate and proper care ; 

2. Failing to adequately assess Plaintiffs medical condition ; and , 



proximate and producing cause of Plaintiffs ' injuries and damages . 

VII . 

VICARIOUS LIABILITY 

Defendants Woman's Hospital of Texas, Inc,, CHCA Woman's Hospital, L .P . 

dlbfa 

Woman's Hospital of Texas, and Houston Woman's Hospital Partner, L .L.C. are vicariously liabl e 

for the conduct of its nurses, employees and/or other agents under the doctrine of respondea t 

superior. 

Defendant Obstetrical and Gynecological Associates, P .A. is a professional association 

and is vicariously liable for the conduct of its employees, members, and/or agents (Defendants Gun n 

and Jacobs) under the doctrine of respondeat superior and under the statutory vicarious liabilit y 

requirements provided in the Texas Professional Association Act . TEx . 

REV. C1V. STAT. ANN . art 

1528f, § 24 (Vernon 2003) . 

VIII . 

GROSS NEGLIGENCE 

The evidence clearly and convincingly shows that conduct of Defendants Debra C . Gunn , 

M.D., Mark A. Jacobs, M.D., and Obstetrical and Gynecological Associates, P .A, in this case 

constitutes "gross negligence" as this term is defined in § 41 .001(11) of Civil Practices an d 

Remedies Code. TEx. CIv . PRAC. & REM . CODE ANN . § 41 .001(11) (Vernon 2005) . Pursuant to 

§ 41 .001(11) of Civil Practices and Remedies Code, the term "gross negligence" means : 

F:1Aclive Cas 'Miles-McCoy (V.'dmun'S)1Plrudings\QP-O5 .wpd 9

An act or omission by Debra C . Gunn, M .D., Mark A . Jacobs, M .D., and/or Obstetrical and 

Gynecological Associates, P .A . , 

(i) which, when viewed objectively from the standpoint of Debra C . Gunn , 

M.D ., Mark A. Jacobs, M.D ., and/or Obstetrical and Gynecologica l 

Associates, PA. at the time of its occurrence, involved an extreme degree o f 

risk, considering the probability and magnitude of the potential harm to 

others; and 

(ii) 

of which Debra C . Gunn, M.D., Mark A. Jacobs, M .D ., and/or Obstetrica l 

and Gynecological Associates, P .A. had actual, subjective awareness of th e 

risk involved, but nevertheless proceeded with conscious indifference to th e 

rights, safety, or welfare of others . 

Defendants Debra C. Gunn, M .D . and Mark A . Jacobs, M .D. were negligent and grossl y 

negligent in the care and treatment of Shannon Miles McCoy . The negligence and gross negligenc e 

of these Defendants was a proximate cause of Plaintiff's injuries and damages in this case . 

Defendant Obstetrical and Gynecological Associates, P .A . is jointly and severally responsible fo r 

the grossly negligent conduct of Defendants Debra C . Gunn, M .D . and Mark A. Jacobs, M .D . 

According to the Texas Professional Association Act, "[t]he association is jointly and severally liable 

with the officer or employee furnishing professional services for such professional errors, omissions , 

negligence, incompetence or malfeasance on the part of such officer or employee when such office r 

or employee is in the course and scope of his employment for the association ." TEx . REV . C)v . 

STAT. ANN . art . 1528f, § 24 (Vernon 2001) . More specifically, Defendants Debra C . Gunn, M .D . 

and Mark A . Jacobs, M.D. were negligent and grossly negligent in the care and treatment of Shanno n 

Miles McCoy in each of the following ways discussed below . 

A. Defendant Mark A . Jacobs, MD. 

Defendant Mark A . Jacobs, M .D. was grossly negligent in each of the following ways an d 

this gross negligence proximately caused Plaintiffs' injuries and damages : 

F:IAciive Cascs\Milss•McCoy (Wonsan s)WIcadingsAOI'-O5,wvpd 10

1. Dr. Jacobs knowingly failed to adequately and appropriately treat Shannon Miles- 

McCoy's disseminated intravascular coagulopathy ("DIC") process ; 

2. Dr. Jacobs knowingly failed to appreciate the severity of Shannon's coagulopathy i n 


in DIC ; 

3. Dr. Jacobs knowingly failed to aggressively treat Shannon Miles-McCoy ' s DIC wit h 

adequate blood products and blood volume replacement to prevent her from decompensating 

prior to the delivery of her baby ; 

4. Dr. Jacobs knowingly failed to verify that his orders for blood volume replacemen t 

were being carded out and that Shannon was being administered blood products a s 

ordered ; 

5. Dr. Jacobs knowingly failed to appropriately and aggressively manage Shannon' s 

DIC from the outset of her admission by ordering and administering additional unit s 

of fresh frozen plasma (beyond two units) to increase Shannon's blood volume an d 

to correct her consumptive coagulopathy prior to the delivery of her baby ; and, 

6. Dr. Jacobs knowingly failed to repeatedly order appropriate coagulation profiles an d 

to serially re-check Shannon's blood work to monitor and evaluate her clottin g 

factors to determine how well, or how poorly she was responding to blood volum e 

replacement administration . 


conduct by Dr. Jacobs satisfies the definition of "gross negligenc e" under Texas law . The conduc t 

by Dr. Jacobs, described above, constitutes an act or omission by Dr. Jacobs, which, when viewed 

objectively from the standpoint of Dr . Jacobs, at the time of its occurrence, involved an extrem e 


which Dr. Jacobs had actual, subjective awareness of the risk involved, but nevertheless proceede d 

with conscious indifference to the rights, safety, or welfare of Shannon Miles McCoy . As more fact s 

become known through the course of discovery, Plaintiffs reserve the right to amend the Petition to 


FfActivcCascs\Mi[cs•McCoy (wontan's)Wlcatiing\OP•0$ .wpd 11

B. Defendant Debra Clark Gunn, M.D. 

Defendant Debra Clark Gunn, M .D. was grossly negligent in each of the following ways an d 

this gross negligence was a proximate cause Plaintiffs' injuries and damages : 

l 

Dr. Gunn knowingly failed to adequately and appropriately treat Shannon Miles- 

McCoy's disseminated intravascular coagulopathy ("DIC ") process ; 

2. Dr. Gunn knowingly failed to appreciate the severity of Shannon's coagulopathy i n 


in DIC ; 

Dr. Gunn knowingly failed to aggressively treat Shannon Miles-McCoy's DIC wit h 

adequate blood products and blood volume replacement to prevent her from de - 

compensating prior to and after the delivery of her baby ; 

4, Dr. Gunn knowingly failed to appreciate that Shannon Miles-McCoy's clottin g 


clotting factors were not replaced through aggressive blood volume replacement an d 



5. Dr. Gunn knowingly failed to order appropriate coagulation profiles and to seriall y 

re-check Shannon's blood work to monitor and evaluate her clotting factors t o 

determine how well, or how poorly she was responding to blood volume replacemen t 

administration ; 

6. Dr. Gunn knowingly failed to recognize and appreciate that Dr. Jacobs had undertreated 

Shannon Miles-McCoy with adequate blood products and blood volum e 

replacement ; 

7. Dr. Gunn knowingly failed to recognize, appreciate, and appropriately respond t o 

Shannon's tachycardia on September 14, 2004 by more aggressively treating he r 

DIC ; 

8. Dr. Gunn knowingly ordered Lasix (a diuretic medication that increases urine output ) 

for Shannon Miles McCoy, even though she knew that Shannon was in DIC, activel y 

bleeding, and did not need to be administered a medication that would decrease her 

volume and increase her decompensation from a cardiovascular standpoint ; 

9. Dr. Gunn knowingly failed to recognize, appreciate, and properly respond to the fac t 

that Shannon's condition was deteriorating (as evidenced by her tachycardia an d 

urine output), that she decompensating from a cardiovascular standpoint, and that sh e 

was developing hypovolemic shock on September 14, 2004 ; and , 

F ;\ActivcC4sus\Milt.'AAcCoy(Womans)\PkCudings\OI'-O5wpd 12

10. Dr. Gunn knowingly failed to recognize that she was not qualified to treat an d 

manage Shannon's DIC and to request the help of a more specialized physician t o 



conduct by Dr. Gunn satisfies the definition of "gross negligence" under Texas law . 

The conduc t 

by Dr. Gunn, described above, constitutes an act or omission by Dr . Gunn, which, when viewed 

objectively from the standpoint of Dr, Gunn, at the time of its occurrence, involved an extrem e 


which Dr. Gunn had actual, subjective awareness of the risk involved, but nevertheless proceede d 

with conscious indifference to the rights, safety, or welfare of Shannon Miles McCoy, As more facts 

become known through the course of discovery, Plaintiffs reserve the right to amend the Petition to 


Ix . 

VICE PRINCIPAL 

Defendants Debra C. Gunn, M .D . and Mark A. Jacobs, M .D. are vice-principals o f 

Defendant Obstetrical and Gynecological Associates, P .A. As vice-principals, Defendants Debr a 

C. Gunn, M .D. and Mark A. Jacobs, M.D. represent Defendant Obstetrical and Gynecologica l 

Associates, P.A. in its corporate capacity. When actions are taken by a "vice-principal" of a 

corporation, those acts are deemed to be the act of the corporation itself. Defendant Obstetrical an d 

Gynecological Associates, P .A. authorized and/or ratified the conduct of Defendants Debra C . Gunn . 

M.D. and Mark A . Jacobs, M.D. in this case, Defendants Debra C . Gunn, M .D. and Mark A. Jacobs , 

M .D. were employed by Defendant Obstetrical and Gynecological Associates, P .A. in a manageria l 

capacity for Defendant Obstetrical and Gynecological Associates,P .A. at the time of their conduc t 

in this case, and both Defendants Debra C . Gunn, M .D . and Mark A, Jacobs, M.D. were acting in 

F:\Ac[ivc Cacs\Milc ;-McCoy (warnan's)11'icadines\OP-O5 .wpd 13

the course and scope of their employment at the time they cared for Shannon Miles McCoy i n 

September 2004 . 

X. 

DAMAGE S 

Plaintiff Andre McCoy, Individually, requests that the jury consider what sum of money, i f 

paid now in cash, would fairly and reasonably compensate him for the injuries and damages he ha s 

sustained in this case as a result of the negligence of Defendants, Mn McCoy will ask that the jur y 

consider the elements of damages listed below as follows : 

1. Loss of consortium (past and future) ; 

2. Loss of household services (past and future) ; 

3. Mental anguish (past and future) ; and , 

4. Physical pain (past and future) . 

Plaintiff Andre McCoy, as Guardian of the person and the estate of Shannon Miles McCoy , 

an incapacitated person, requests that the jury consider what sum of money, if paid now in cash , 

would fairly and reasonably compensate his wife for the injuries and damages she has sustained i n 

this case as a result of the negligence of Defendants. On behalf of his wife, Shannon, Mr . McCoy 

will ask that the jury consider the elements of damages listed below as follows : 

l , Medical expenses (past and future) ; 

2, Loss of earning capacity (past and future) ; 

3. Mental anguish (past and future) ; 

4. Physical pain (past and future) ; 

5. Disfigurement (past and future) ; 

6. Physical impairment (past and future) ; and , 

F :V),etivc Cucs\Miles-McCoy (Woman'5)1Pleudings\C)P-O5 .mvpd 14

7 . Loss of consortium (past and future) . 

XL 

EXEMPLARYDAMAGES 

Based on the grossly negligent conduct ofDefendants Debra C. Gunn, M .D ., Mark A. Jacobs , 

M.D., and Obstetrical and Gynecological Associates, P .A ., Plaintiffs seek exemplary damages in a n 

amount sufficient to deter Defendants Debra C . Gunn, M.D ., Mark A, Jacobs, M .D ., and Obstetrica l 

and Gynecological Associates, P .A., and similarly situated Defendants, from engaging in the grossly 

negligent conduct made the basis of this suit . 

Pleading in the alternative, the Texas statute that provides for a cap on exemplary damage s 

arising from grossly negligent conduct violates due process, denies equal protection of the laws, an d 

is arbitrary and capricious . The intended purpose of exemplary damages is to punish a Defendan t 

that has been found by the trier of fact to have engaged in grossly negligent conduct . The burden o f 

proof and the elements of proof to sustain a finding of exemplary damages are extreme . To cap 

exemplary damages after the fact finder has found that the conduct of the Defendant was s o 

egregious as to warrant a finding of gross negligence is arbitrary and capricious, violates the equa l 

protection provisions ofthe Texas and U .S . Constitutions, and creates a favored class ofDefendant s 

that can never be deterred by the existing caps on exemplary damages . Texas' statutory caps o n 

exemplary damages deprives the Plaintiff of a trial by jury, equal protection ofthe laws, due process , 

the right to Open Courts, and substitutes these fundamental rights with an arbitrary and capriciou s 

legislative enactment in violation of the Texas and U .S . Constitutions . 

F:lnctive Cases'Mila•McCoy (Woman's)1PIcndin5.c\0P-05-w-pd 15

XII . 

CONDITIONS PRECEDEN T 

Plaintiffs have complied with all conditions precedent to file this lawsuit . Specifically, prio r 

to the commencement of this action, Plaintiffs provided notice to Defendants under § 74 .051 and a 

compliant medical authorization under § 74 .052 of Chapter 74 of the Civil. Practices and Remedies 

Code . TEX . Civ . PRAC. & REM . Cote ANN . §§ 74.051-74 .052 (Vernon Supp . 2005). However, 

Defend.snts failed to adequately respond to the notice letter forcing Plaintiffs to file this lawsuit . 

Plaintiffs have also provided Defendants with a Chapter 74 expert report and curriculum vitae, alon g 

with the filing of this petition, in compliance with expert report requirements under § 74 .351(a) of 

the Civil Practices and Remedies Code . Id. at § 74.351(a) . 

XMIi . 

INTEREST 

Plaintiffs seek prejudgment and post judgment interest as authorized by law . 

XIV. 

JURY 

Plaintiffs respectfully request a trial by jury . 

WHEREFORE, PREMISES CONSIDERED, Plaintiffs pray that Defendants be cited t o 

appear and answer herein; and, that upon final trial on the merits in this case, Plaintiffs recover a 

judgment against Defendants for the damages prayed for herein ; that Plaintiffs recover prejudgmen t 

and post judgment interest at the maximum legal rate ; that Plaintiffs recover costs ofcourt; and that 

F:1Activc Casc,\Milcs-McCoy(Worm n';}SP1c~dings~OP 05 .KpJ 16

Plaintiffs recover such other and further relief, both in law and equity, to which they may sho w 

themselves justly entitled . 

Respectfully submitted , 

Alexander , Ii l 

State Bar No. 1556Z50 

J. Todd Trombley 

State Bar No. 24004192 

Myriam K. Legge 

State Bar No. 0078440 4 

2000 The Lyric Centr e 

440 Louisiana Stree t 

Houston, Texas 7700 2 

Telephone : (713) 650-111 1 

Facsimile : (713) 227-112 1 

ATTORNEYS FOR PLAINTIFF S 

P:1Activc Cuscs\Mitec-McCoy (` ormn 4)\PIcadingsQP-O5 .v1)d 17

CERTIFICATE OFSERVICE 

I hereby certify that a true and correct copy of the foregoing instrument has been forwarde d 

to the following counsel of record via facsimile on this 22" d day of January, 2009 : 

Ms. Barbara A. Hilburn 

Mr. James Wyckoff 

Ms. Elizabeth Kaufman 

Wyckoff & Russel l 

Harris, Hilburn & Sherer, L .L.P . 909 Fannin, Suite 323 0 

1111 Rosalie Street Houston, Texas 7701 0 

Houston, Texas 77004-281 2 

Mr. James B . Edwards 

Mr. Jeffrey H . Uzick 

Mr. Donald S . Stephens 

Mr. Roger Berger 

Edwards and Associates 

Uzick, Onckcn, Sheuerrnan & Berge r 

12603 Southwest Freeway, Suite 200 238 Westcott Street 

Stafford, Texas 77477 Houston, Texas 77007-7004 

Mr. George A. Shannon, Jr. 

Mr. Scott J. Sherman 

Shannon, Martin, Finkelstei n 

& Alvarado, P .C . 

909 Fannin Street, Suite 2400 

Houston, Texas 7701 0 

F :\Activc Cascs\Mitcs•McCoy (Waman`sRicadingslOP .05,wpd 

I8 

TOTRL P .023

Petition for Writ of Mandamus Conditionally Granted, in Part, and Denied, in Part , 

and Majority and Concurring Opinions filed October 20, 2009 . 

In The 

a 

Tout-I of ppi uLs 

NO. 14-09-00123-C V 

IN RE MARK A. JACOBS, M.D., DEBRA C. GUNN, M .D., and OBSTETRICAL 

AND GYNECOLOGIST ASSOCIATES, P .A., Relator s 

ORIGINAL PROCEEDING 

WRIT OF MANDAMU S 

MAJORITY OPINIO N 

In this original proceeding, the relators, Mark A. Jacobs, M .D., Debra C. Gunn, M.D . , 

and Obstetrical and Gynecologist Associates, P .A., seek a writ of mandamus ordering th e 

Honorable Mike Wood, presiding judge of Probate Court No . 2 of Harris County, to se t 

aside his two orders of January 23, 2009-one compelling the deposition of Dr . Jacobs and 

one compelling net-worth discovery for the past two years and his order of January 30 , 

2009, clarifying the two January 23 orders . We conditionally grant the petition in part an d 

deny it in part .

I 

Real parties in interest, Andre McCoy, Individually and as Permanent Guardian o f 

Shannon Miles McCoy, an Incapacitated Person (the "McCoys"), have sued the relators an d 

others ' 

for negligence and g 

ross negligence in providing medical care and treatment t o 

Shannon while she was an obstetrical patient at Woman's Hospital of Texas from Septembe r 

13, 2004 to September 14, 2004. On November 16, 2007, the McCoys served the relator s 

with requests for discovery of net-worth information . When the relators objected to th e 

requests for production, the McCoys filed a motion to compel discovery . 

On January 23, 2009, the trial court held a hearing and signed an order directing th e 

McCoys to amend their pleadings to provide more specific allegations of gross negligenc e 

against the relators following the completion of the depositions of Dr . Jacobs and Dr . Gunn . 

Subject to the filing of a sufficient pleading as to gross negligence, the trial court furthe r 

ordered the relators to produce "the actual financial statements they have provided to a 

lender within the past two (2) years that identifies the assets and liabilities of eac h 

Defendant ." Alternatively, if the relators had not submitted any such financial statement t o 

a lender within the two years preceding the date of the order, the court ordered each relato r 

to : 

(i) Produce an affidavit swearing that no such financial statement has actuall y 

been submitted to a lender in the past two (2) years ; and 

(ii) Produce an affidavit under oath in the format of what would have been 

provided to a lender as to net worth . 

The order directed that the relators produce such net-worth information no later than thirt y 

days after the McCoys sufficiently pleaded gross negligence . In the order, Judge Wood als o 

' The other defendants are Woman's Hospital of Texas, Inc ., CHCA Woman's Hospital, L.P . 

dlbla Woman's Hospital of Texas, Houston Woman's Hospital Partner, L .L.C., and James A . 

Collins, M.D .

prohibited the McCoys from seeking to compel any additional responses to their outstandin g 

net-worth discovery requests, and announced that any net-worth information provided to the 

McCoys would be "safeguarded by a protective order." On January 23, Judge Wood signe d 

another order granting the McCoys' motion to compel the deposition of Dr . Jacobs, an d 

directed that the deposition may not exceed three hours on the record . 

On January 26, the relators filed a motion to clarify the order regarding th e 

discoverability of net worth. The relators stated they did not understand when to produc e 

the net-worth infoiination to comply with the order and requested the trial court to s o 

specify. Also, the relators requested a written order on what net-worth matters, if any, th e 

McCoys would be allowed to cover during the depositions of Dr . Jacobs and Dr. Gunn . 

On January 30, the trial court signed an order clarifying its prior orders regarding th e 

discoverability of net-worth information. The trial court directed the relators to produce th e 

information by February 6, 2009, and ruled that the McCoys would be permitted to depos e 

Dr. Gunn and Dr. Jacobs about their net worth . 

In their petition, the relators argue that the trial court abused its discretion with 

respect to the orders of January 23 and 30 by directing the relators to (I) produce net-wort h 

information for the past two years in the form of actual financial statements they hav e 

provided to lenders; (2) create a net-worth document in the format of what would have bee n 

provided to a lender; and (3) present Dr. Jacobs and Dr. Gunn for deposition regarding their 

net worth without any temporal or subj ect-matter limitations . The relators further assert the y 

have no adequate remedy by appeal because their rights to due process and privacy are in 

jeopardy of being permanently lost or compromised . 

II 

To be entitled to the extraordinary relief of a writ of mandamus, the relator must sho w 

that the trial court clearly abused its discretion and he has no adequate remedy by appeal . 

3

In re Team Rocket, L.P., 256 S .W.3d 257, 259 (Tex . 2008) (orig. proceeding). The party 

resisting discovery bears the heavy burden of establishing an abuse of discretion and a n 

inadequate remedy by appeal . In re CSX Corp., 124 S .W .3d 149, 151 (Tex . 2003) (orig . 

proceeding) (per curiam). A trial court abuses its discretion if it reaches a decision s o 

arbitrary and unreasonable as to constitute a clear and prejudicial error of law, or if it clearl y 

fails to correctly analyze or apply the law . In re Cerberus Capital Mgrnt., L.P ., 164 S .W.3 d 

379, 382 (Tex . 2005) (orig. proceeding) (per curiam) ; Walker v . Packer, 827 S .W.2d 833 , 

839 (Tex. 1992) (orig . proceeding) . 

Whether a clear abuse of discretion can be adequately remedied by appeal depend s 

on a careful analysis of costs and benefits of interlocutory review . In re McAllen Med. Ctr. , 

Inc., 275 S .W.3d 458, 464 (Tex . 2008) (orig. proceeding) . Because this balance depend s 

heavily on circumstances, it must be guided by analysis of principles rather than simple rule s 

that treat cases as categories . Id. "Mandamus review of significant rulings in exceptional 

cases may be essential to preserve important substantive and procedural rights fro m 

impairment or loss, allow the appellate courts to give needed and helpful direction to the la w 

that would otherwise prove elusive in appeals from final judgments, and spare private partie s 

and the public the time and money utterly wasted enduring eventual reversal of improperl y 

conducted proceedings ." In re Prudential Ins. Co. ofAm.,148 S.W.3d 124, 136 (Tex . 2004 ) 

(orig. proceeding) ; see also In re Columbia Med. Ctr. ofLas Colinas, Subsidiary, L.P., 290 

S.W.3d 204, 207 (Tex . 2009) (orig. proceeding) ("Used selectively, mandamus can `correc t 

clear errors in exceptional cases and afford appropriate guidance to the law without th e 

disruption and burden of interlocutory appeal .') (quoting In re Prudential, 148 S .W.3d at 

138). Thus, in determining whether appeal is an adequate remedy, we consider whether th e 

benefits of mandamus review outweigh the detriments . In re BP Prods. N. Am ., Inc., 244 

S.W.3d 840, 845 (Tex. 2008) (orig. proceeding) . Appeal is not an adequate remedy whe n 

the appellate court would not be able to cure the trial court's discovery error . In re Dan a 

4

Corp ., 138 S .W.3d 298, 301 (Tex. 2004) (per curiam) (orig. proceeding) ; In re Kuntz, 12 4 

S .W.3d 179, 181 (Tex . 2003) (orig . proceeding) . 

A 

The relators assert the trial court abused its discretion by ordering them to produc e 

their net-worth information to the McCoys . A defendant's net worth is relevant in a sui t 

involving exemplary damages . Lunsford v. Morris, 746 S .W.2d 471, 473 (Tex. 1988) (orig . 

proceeding), overruled on other grounds, Walker, 827 S.W.2d at 842 ; Miller v . 0 Weill, 77 5 

S .W.2d 56, 58 (Tex. App .-Houston [1 st Dist.] 1989, orig. proceeding) . Therefore, in case s 

where punitive or exemplary damages may be awarded, parties may discover and offe r 

evidence of a defendant's net worth . Lunsford, 746 S .W .2d at 473. Generally, in case s 

concerning the production of financial records, the burden rests upon the party seeking t o 

prevent production . In reBreieer-Leasing, Inc., 255 S .W.3d 708, 712 (Tex . App.-Houston 

[1st Dist.] 2008, orig. proceeding [mand . denied]); In re Patel, 218 S.W.3d 911, 916 (Tex . 

App.-Corpus Christi 2007, orig . proceeding) . 

The relators argue the McCoys are not entitled to discovery on net worth until the y 

have established a prima facie case of gross negligence . However, the Texas Supreme Court 

has expressly rejected this contention . See Lunsford, 746 S .W.2d at 473 (rejectin g 

requirement of prima facie showing because "[o]ur rules of civil procedure and evidence d o 

not require similar practices before net worth may be discovered") .'-- Therefore, under Texa s 

'- We note other jurisdictions require a prima facie showing of entitlement to recover punitive 

damages prior to conducting discovery on a defendant's financial status . See, e.g., Iowa Code Ann . 

§ 668A.1(1998) ; Larriva v. Montiel, 691 P .2d 735, 738 {Ariz . Ct . App . 1984); Curtis v. Partain, 61 4 

S .W .2d 671, 674 (Ark. 1981), overruled on other grounds, Lupo v. Linebarger, 855 S .W .2d 29 3 

(Ark. 1993) ; Herman v. Sunshine Chem . Specialties, Inc., 627 A.2d 1081, 1089 (N.J. 1993) ; Mark 

v. Congregation Mishkon Tefiloh, 745A.2d 777, 780 (R.I . 2000); Cramer v. Powder River Coal, 

L.L.C., 204 P.3d 974, 908 (Wyo. 2009) . However, most federal courts do not require a plaintiff to 

make a prima facie showing of entitlement to recover punitive damages before seeking pretria l 

(continued . . .) 

5

law, a party seeking discovery of net-worth information need not satisfy any evidentiary 

prerequisite, such as making a prima facie showing of entitlement to punitive damages , 

before discovery of net worth is permitted . In re House of Yahweh, 266 S .W.3d 668, 67 3 

(Tex . App.-Eastland 2008, orig. proceeding) ; In re Garth, 214 S .W.3d 190, 192 (Tex . 

App.-Beaumont 2007, orig. proceeding [rand . dism'd) ; In re WV'. Star Trucks US, Inc ., 112 

S .W.3d 756, 763 (Tex . App.-Eastland 2003, orig. proceeding) ; Al Parker Buick Co. v . 

Touchy, 788 S .W,2d 129, 131 (Tex. App.-Houston [1st Dist.] 1990, orig . proceeding) . 

The relators acknowledge the Texas Supreme Court's express holding in Lunsford, 

but argue that we should follow other jurisdictions that require a plaintiff to demonstrate a 

factual basis for punitive damages before being allowed to do net-worth discovery .' Even 

though Lunsford is over twenty years old, the Texas Supreme Court has not revisited thi s 

2(. . .continued ) 

discovery of the defendant's financial information . See, e.g., United States v. Matusoff Rental Co . , 

204 F.R.D. 396, 399 (S .D. Ohio 2001) (stating overwhelming majority of federal courts hav e 

concluded plaintiffs seeking punitive damages are entitled to discover information on defendant' s 

financial condition without making prima facie showing of entitlement to recovery of such damages) ; 

CEH, Inc. v. FV "Seafarer", 153 F.R.D . 491, 498 (D . R .I. 1994) (same) ; Mid Continent Cabinetry, 

Inc. v. George Koch Sons, Inc ., 130 F.R.D. 149, 151 (D . Kan. 1990) (same) ; Doe v. Young, 2009 W L 

440478, at *2 (E .D. Mo. Feb. 18, 2009) (same) ; Westbrook v. Charlie Sciara & Son Produce Co . , 

2008 WL 839745, '''2 (W.D . Tenn. Mar. 27, 2008) (same) ; S. Cal. Hous. Rights Ctr. v. Krug, 200 6 

WL 4122148, at "4 (C .D. Cal. Sept. 5, 2006) (same) . 

Other jurisdictions require the plaintiff to establish a factual or evidentiary basis to b e 

entitled to discovery on a defendant's net worth . See, e.g., Bryan v. Thos. Best & Sons, Inc ., 45 3 

A.2d 107, 108 (Del. Super. Ct . 1982) ; Globe Newspaper Co. v. King, 658 So.2d 518, 519 (Fla. 1995 ) 

(citing Fla. Stat. § 768.72) ; Smith v. Morris, Manning & Martin, L.L.P., 666 S.E.2d 683, 697 (Ga . 

Ct. App. 2008) (quoting Holman v. Burgess, 404 S .E .2d 144, 147 (Ga . 1991)) ; Breault v. Friedli , 

610 S.W.2d 134, 139 10 (Tenn. Ct. App. 1980) . At least two states go so far as to require the jur y 

to return a verdict awarding punitive damages prior to the plaintiff's conducting discovery on a 

defendant's financial status . See, e.g., ExparteHsu, 707 So .2d 223, 225-26 (Ala. 1997) (citing Ala . 

Code § 6-11-23(b)) ; Prior v. Brown Transp. Corp., 478 N .Y .S.2d 435, 436 (N .Y. App . Div. 1984) 

(quoting Rupert v. Sellers, 368 N.Y .S .2d 904, 912 (N .Y. App . Div. 1975)) . 

6

issue.' As an intermediate court of appeals, we are bound by the supreme court's ruling i n 

Lunsford and, therefore, we decline the relators' invitation . 

See Dallas Area Rapid Transit 

v. Amalgamated Transit Union Local No . 1338, 273 S.W.3d 659, 666 (Tex . 2008), cert. 

denied, . U.S . 129 S . Ct. 2767 (2009) ("It is fundamental to the very structure of ou r 

appellate system that this Court's decisions be binding on the lower courts .") ; 

Lubbock 

County, Tex . v. Trammel `s Lubbock Bail Bonds, 80 S .W.3d 580, 585 (Tex. 2002) ("It is not 

the function of a court of appeals to abrogate or modify established precedent . . . . That 

function lies solely with this Court ."). In accordance with Lunsford, the McCoys are no t 

required to make a prima facie case, or any other evidentiary showing, of entitlement t o 

punitive damages before seeking discovery of the relators' net-worth information . 

B 

The relators also argue evidence of their net worth is not relevant because th e 

McCoys have not alleged sufficient facts to support their claim of gross negligence unde r 

section 41 .001(11) of the Texas Civil Practices and Remedies Code . Section 41 .001(11 ) 

defines "gross negligence" : 

(11) "Gross negligence" means an act or omission : 

(A) which when viewed objectively from the standpoint of the actor a t 

the time of its occurrence involves an extreme degree of risk, considering the 

probability and magnitude of the potential harm to others ; and 

(B) of which the actor has actual, subjective awareness of the ris k 

involved, but nevertheless proceeds with conscious indifference to the rights , 

safety, or welfare of others . 

-' After Lunsford, the supreme court established a bifurcated procedure for conducting trial s 

involving claims for punitive damages because of the "very real potential" that evidence of a 

defendant's wealth will prejudice the jury's determination of other disputed issues in tort cases . 

Transp. Ins. Co . } . .oriel, 879 S .W.2d 10, 30 (Tex . 1994) ; see also Tex. Civ . Prac . & Rein. Code 

Ann. § 41 .009 (Vernon 2008) (providing for bifurcated trial on claim for punitive damages) . 

7

Id. 

The McCoys allege Dr. Jacobs and Dr . Gunn knowingly failed to: (1) adequately and 

appropriately treat Shannon's disseminated intravascular coagulopathy ("DIC")' ; (2) 

appreciate the severity of Shannon's coagulopathy in light of abnormal lab values indicatin g 

that she was actively bleeding and suffering from DIC ; (3) aggressively treat Shannon's DI C 

with adequate blood products and blood-volume replacement ; and (4) repeatedly order 

appropriate coagulation profiles and to serially re-check Shannon's blood work or to monito r 

and evaluate her clotting factors' to determine how well, or how poorly, she was respondin g 

to treatment . 

The McCoys further allege Dr. Jacobs knowingly failed to : (1) verify that his orders 

for blood-volume replacement were being car ried out and Shannon was being administere d 

blood products as ordered ; and (2) appropriately and aggressively manage Shannon's DI C 

from the outset of her admission by ordering and administering additional units of fres h 

frozen plasma to increase Shannon's blood volume and to correct her consumptive 

coagulopathy before the delivery of her baby . 

The McCoys also allege Dr . Gunn knowingly failed to : (1) appreciate that Shannon's 

DIC was depleting and consuming her clotting factors and that if these clotting factors wer e 

not replaced through aggressive blood-volume replacement and clotting-factor replacement , 

DIC "is a rare, life-threatening condition that prevents a person's blood from clottin g 

normally. It may cause excessive clotting (thrombosis) or bleeding (hemorrhage) throughout th e 

body and lead to shock, organ failure, and death ." WebMD, "Disseminated Intravascula r 

Coagulation (DICE." http:/lwww.webmd.comla-to-z-auidesldissezninated-intravascular-coa gulation - 

dic-topic-overview(last visited July 7, 2009). To treat DIC, "transfustions of blood cells and other 

blood products may be necessary to replace blood that has been lost through bleeding and to replac e 

clotting factors used up by the body ." Id. 

' "Clotting factor" refers to "any of several plasma components (as fibrinogen, prothrombin , 

and thromboplastin) that are involved in the clotting of blood ." Merriam-Webster OnLine, "clottin g 

factor," http :lhnerriam-webster.com/medical/clotting%20factors (last visited July 8, 2009) . 

$

Shannon's blood would not be able to coagulate effectively at the time she delivered he r 

baby; (2) recognize and appreciate that Dr . Jacobs had undertreated Shannon; (3) recognize , 

appreciate, and appropriately respond to Shannon's tachycardia on September 14, 2004, by 

more aggressively treating her DIC ; (4) order Laisix (a diuretic medication that increase s 

urine output) for Shannon, even though she knew that Shannon was suffering from DIC an d 

actively bleeding, and did not need to be administered a diuretic medication ; (5) recognize , 

appreciate, and properly respond to the fact that Shannon's condition was deteriorating (a s 

evidenced by her tachycardia (rapid heartbeat) and urine output), and that she wa s 

developing hypovolemic shock (shock caused by reduction in blood volume) ; and (6 ) 

recognize that she was not qualified to treat and manage Shannon's DIC and to request th e 

help of a more specialized physician to treat and manage Shannon's DIC . 

Finally, the McCoys allege the conduct of Dr . Jacobs and Dr. Gunn, when viewe d 

objectively from their standpoint at the time of the occurrence, involved an extreme degre e 

of risk, considerin g the probability and magnitude of the potential harm to others . Th e 

McCoys further allege Dr . Jacobs and Dr . Gunn had actual, subjective awareness of the ris k 

involved, but nevertheless proceeded with conscious indifference to Shannon's rights , 

safety, or welfare . 

In response to the McCoys' gross-negligence allegations, the relators argue tha t 

merely adding the word "knowingly" to existing allegations of negligence is not enough . 

Texas follows the "fair notice" standard for pleadings, which looks to whether the opposing 

party can ascertain from the pleadings the nature and basic issues of the controversy and th e 

type of evidence that might be relevant to the controversy . Low v. Henry, 221 S .W.3d 609 , 

612 (Tex. 2007) ; Horizon/CMSHealthcare Corp. ofAm . v. Auld, 34 S .W.3d 887, 896 (Tex . 

2000). "À petition is sufficient if it gives fair and adequate notice of the facts upon whic h 

the pleader bases his claim . The purpose of this rule is to give the opposing party 

information sufficient to enable him to prepare a defense.'" Horizon/CATS Healthcare, 34 

9

S .W.3d at 897 (quoting Roark v. Allen, 633 S .W.2d 804, 810 (Tex. 1982)) . Exemplary 

damages are special damages that must be supported by express allegations of willfulness , 

malice, or gross negligence that go beyond the allegations necessary to recove r 

compensatory damages . Al Parker Buick Co., 788 S .W.2d at 130 . Texas law requires a 

plaintiff seeking production of net worth information to "àllege facts showing that relato r 

is liable for punitive damages ."' Delgado v. Kitzman, 793 S .W.2d 332, 333 Tex . 

App.-Houston [1st Dist.] 1990, orig . proceeding) (quoting Al Parker Buick Co., 78 8 

S .W.2d at 131) . 

Under Texas' basic pleading requirements, the McCoys' live pleadings sufficientl y 

allege specific facts supporting gross negligence and invoke the objective and subjectiv e 

standards as set forth in section 41 .001(11) .' See Tex . Civ . Prac. & Rem. Code Ann . 

Therefore, we conclude the McCoys have pleaded facts sufficient for purposes of showin g 

they are entitled to discovery of net-worth information from the relators . See In re Garth , 

214 S .W.3d at 192 (holding plaintiff's pleadings were sufficient to notify defendants tha t 

she sought to hold them liable for punitive damages through conspiracy theory) ; In re TV 

Star Trucks US, Inc., 112 S .W.3d at 763---64 (holding allegations in petition that defendan t 

had engaged in fraudulent and malicious conduct were sufficient to permit discovery of ne t 

worth) ; Delgado, 793 S.W.2d at 333 (holding plaintiff's pleading alleging defendant wa s 

"consciously indifferent" to safety of others was sufficient to entitle plaintiff to discover y 

of net worth information). 

' Some states do not permit a plaintiff to claim punitive damages in an original pleading, bu t 

allow for the amendment of the plaintiff's pleadings to claim punitive damages, with the trial court' s 

permission, after satisfying a requisite evidentiary showing . See, e.g ., Idaho Code Ann . § 6-160 .4(2) 

(2008) ; Minn. Stat. Ann. § 549.191 (2000) ; Or. Rev. Stat. Ann . §31 .725(2) (2007) . 

a 

The relators argue, for the first time in their reply brief, that we should consider, not onl y 

the pleadings, but also the requirement that a plaintiff must first present expert opinion of th e 

applicable standard of care, the alleged breach of that standard, and the causal link to proceed on a 

(continued . . .) 

10

C 

The relators also contend the trial court's order directing them to provide net-wort h 

information for the past two years is overly broad and unduly burdensome because it goe s 

beyond what is necessary to demonstrate their respective current net worths . Discovery i s 

limited to matters relevant to the case . Texaco, Inc. v. Sanderson, 898 S .W.2d 813, 81 4 

(Tex. 1995) (orig. proceeding) (per curiam) ; see also Tex . R. Civ. P . 192 cmt. 1 ("While th e 

scope of discovery is quite broad, it is nevertheless confined by the subject matter of the eas e 

and reasonable expectations of obtaining information that will aid resolution of th e 

dispute ."). A party's requests must show a reasonable expectation of obtaining informatio n 

that will aid in the resolution of the dispute . In re CSX Corp., 124 S .W.3d at 152 . 

Therefore, discovery requests must be reasonably tailored to include only matters relevan t 

to the case . In re Am. Optical Corp., 988 S .W.2d 711, 713 (Tex . 1998) (orig. proceeding ) 

(per curiam) . The Texas Supreme Court has repeatedly admonished that discovery may no t 

be used as a fishing expedition . K Mart Corp. v. Sanderson, 937 S .W .2d 429, 431 (Tex . 

1996) (orig . proceeding) (per curiam) ; Dillard Dept Stores, Inc . v . Hall, 909 S .W .2d 491 , 

492 (Tex . 1995) (orig. proceeding) (per curiam) ; Texaco, Inc., 898 S.W.2d at 815 . 

The scope of discovery is a matter of trial-court discretion . In re CSX Corp., 124 

S .W.3d at 152 . However, a trial court abuses its discretion when it compels overly broa d 

discovery . In re Graco Children 's Prods., Inc., 210 S.W.3d 598, 600 (Tex . 2006) (orig . 

proceeding) (per curiam) ; Dillard Dep 't Stores, Inc ., 909 S.W.2d at 492 . "A centra l 

question in determining overbreadth is whether the request could have been more narrowl y 

tailored to avoid including tenuous information and still obtain the necessary information . " 

B(...continued) 

health care liability claim when determining whether net worth information is relevant . We do no t 

consider this contention because it was not raised in the trial court or in the relators' petition for wri t 

of mandamus . See hi" re TCW Global Project Fund, II, Ltd., 274 S .W.3d 166, 171 (Tex . 

App.-Houston [14th Dist .] 2008, orig . proceeding) . 

I1

In re CSX Corp., 124 S .W.3d at 153 . Overbroad requests encompass time periods o r 

activities beyond those at issue in the case-in other words, matters of questionabl e 

relevance . In re Alford Chevrolet-Geo, 997 S .W.2d 173, 180 n .l (Tex. 1999) (orig . 

proceeding) . 

The McCoys sought five years' worth of financial information from the relators . Th e 

trial court narrowed the scope of discovery to two years' worth . But we do not believe th e 

trial court sufficiently narrowed the scope of production because only the relators' current' 

net worth is relevant . 

See In re House of Yahweh, 266 S.W.3d at 673 (holding trial cour t 

erred in failing to limit discovery to relators' current balance sheets because earlier balanc e 

sheets would not be relevant to relators' current net worth) . 1 ° Therefore, we conclude th e 

trial court abused its discretion by ordering the relators to produce net-worth informatio n 

beyond the relators' current net worth . 

See In re Allstate County Mitt. Ins. Co., 227 S.W.3 d 

667, 669 (Tex. 2007) (orig. proceeding) (per curiam) (holding trial court's order was abus e 

of discretion because it did not limit discovery requests which were overbroad as to time an d 

scope) . Moreover, the relators do not have an adequate remedy by appeal from th e 

production of their net worth from previous years . See In re Weekley Homes, L .P., No . 08- 

' By "current," we mean as of the time the discovery is responded to, though net-worth 

information should be updated through supplementation as should the information in any discovery 

response if it changes materially between the service ofthe discovery response and the time of trial . 

See Tex. R . Civ . P . 193 .5(a) . 

10 Other courts have similarly held only current financial information is relevant to a punitiv e 

damages claim. See, e.g., Hightower v. Heritage Acad. of Tulsa, Inc., 2008 WL 2937227, at * 1 

(N.D. Okla . July 29, 2008) (limiting discovery of financial information to defendant's balance sheet 

for 2008 and net worth for 2008); McCloud v. Board of County Comm 'r-s, 2008 WL 1743444, at * 4 

(D. Kan . Apr. 11, 2008) (limiting production of defendant's financial information to most recen t 

annual reports and current financial statements) ; Platcher v. Health Prof 'Is, Ltd., 2007 WL 2772855 , 

at *3 (C .D . Ill. Sept . 18, 2007) ("Only Defendants' current assets and liabilities are relevant to the 

punitive damages claim against them, . . .") ; FieldturfInt'l Group, Inc. v. Triexeillgmt . Group, Inc . , 

2004 WL 866494, at ''`3 (N .D . Ill . Apr. 16, 2004) ("Plaintiffs' request for non-current financia l 

information is irrelevant to punitive damages determination.") . 

12

0836, 2009 WL 2666774, at *11 (Tex. Aug. 28, 2009) (orig. proceeding) ("lnstrlusive 

discovery measures . . . require at a minimum, that the benefits of the discovery measur e 

outweigh the burden imposed upon the discovered party .") ; In re CSX Corp., 124 S .W.3d 

at 153 (holding relator lacked adequate remedy by appeal where discovery order compelle d 

production of "patently irrelevant" documents) ; Tilton v. Marshall, 925 S .W.2d 672, 68 3 

(Tex . 1996) (orig . proceeding) (op. on reh'g) ('"[w]here . . discovery order imposes a 

burden on the producing party far out of proportion to any benefit that may obtain to th e 

requesting party,' mandamus relief may be justified) (quoting Walker, 827 S .W .2d at 843) . 

D 

The relators also complain about the trial court's order requiring Dr . Jacobs and Dr . 

Gunn to answer questions about their net worth at their depositions . Allowing such inquirie s 

without any limitations as to time or subject matter, the relators argue, is overly broad an d 

burdensome . See In re Alford Chevrolet-Geo, 997 S .W.2d at 180 n.1 (explaining overbroa d 

requests encompass time periods or activities beyond those at issue in case, i .e., matters of 

questionable relevance). Further, the relators contend that answering deposition questions 

about information they already have provided in written discovery responses would b e 

unnecessarily cumulative. We address this issue by observing that we are concerned no t 

only with determining the appropriate scope of discovery of the relators' net worth unde r 

Lansford, but also with employing the most efficient and least intrusive methods by whic h 

to permit the McCoys to discover that information . See Tex . R. Civ. P . 192 cmt . 1 

(explaining scope of discovery is confined by subject matter of case and reasonabl e 

expectations of obtaining information that will aid resolution of dispute) ; In re Weekley 

Homes, L .P., 2009 WL 2666774, at *9 ("[T]rial courts should be mindful of protectin g 

sensitive information and utilize the least intrusive means necessary to facilitate discovery.") . 

Allowing litigants to delve without limitation into personal finances not only raise s 

serious privacy concerns, but also provides an opportunity for "needless abuse an d 

13

harrassment ." Wal-Mart Stores, Inc. v. Alexander, 868 S .W.2d 322, 331-32 (Tex . 1993) 

(Gonzalez, J., concurring). In light of these concerns, we believe it is appropriate to limi t 

the scope of oral-deposition inquiry into net worth . See Axelson, Inc. v. Mcllhany, 79 8 

S .W.2d 550, 553 (Tex . 1990) (orig. proceeding) (explaining scope of discovery is limite d 

by legitimate interests of a party to avoid overly broad requests, harassment, or disclosure 

of privileged information) . Accordingly, with respect to net-worth discovery during the ora l 

depositions of Dr . Jacobs and Dr. Gunn, the McCoys are limited to asking each physicia n 

to state (1) his or her current net worth, i .e ., the amount of current total assets less curren t 

total liabilities determined in accordance with generally accepted accounting principle s 

("GAAP")," and (2) the facts and methods used to calculate what each physician alleges i s 

his or her current net worth . Any questioning beyond these two narrow inquiries shall b e 

allowed only upon leave of the trial court after a showing that the McCoys have reason t o 

believe that the information provided was incomplete or inaccurate . See In re Prudential , 

148 S .W.3d at 136 (explaining mandamus is appropriate in exceptional cases "to giv e 

needed and helpful direction to the law that would otherwise prove elusive in appeals fro m 

final judgments"). And to the extent more specific limitations are appropriate, such as o n 

the amount of on-the-record deposition time that may be devoted to questioning about ne t 

worth, we leave that to the sound discretion of the trial court . 

" Although section 41 .011 provides that the fact finder shall consider evidence, if any, o f 

the defendant's "net worth," the statute does not define that term . Tex. Civ. Prac. & Rem. Code 

Ann. 41 .011(a)(6) ; see also Lunsford, 746 S .W.2d at 475 (Gonzalez, J., dissenting) (criticizin g 

court's failure to define "net worth') . The parties have not cited, and we have not found, any case s 

defining the term "net worth" in connection with the recovery of punitive damages . However, "ne t 

worth," as used to ascertain the amount of security required to suspend a judgment pending appeal , 

has been defined as the difference between total assets and liabilities determined in accordance wit h 

GAAP . See Ranaco Oil & Gas, Ltd. v. Anglo-Dutch (Tenge) L .L.C., 171 S .W.3d 905, 914 (Tex . 

App.-Houston [14th Dist .] 2005, no pet .) (defining "net worth" as difference between total asset s 

and liabilities determined in accordance with GAAP after thorough discussion of numerou s 

authorities) ; see also Black's Law Dictionary 1041 (6th ed. 1990) (defining net worth as "the amoun t 

by which assets exceed liabilities") . 

14

E 

Finally, the relators assert the trial court abused its discretion by ordering them t o 

create and produce affidavits in a format of what would have been provided to a lender a s 

to their respective net worth . The trial court ordered the relators to produce "the actua l 

financial statements they have provided to a lender within the past two-years ." 

Alternatively, the trial court directed the relators, if they had not submitted any suc h 

financial statements to a lender within the preceding two years, to produce (1) an affidavi t 

swearing that no such financial statement has been submitted, and (2) an affidavit in th e 

form of what would have been provided to a lender as to net worth . It is well-settled that 

a party cannot be forced to create documents that do not exist for the sole purpose of 

complying with a request for production .' Therefore, the relators are not required to create 

affidavits in a format of what would have been provided to a lender to comply with th e 

McCoys' request forproduction . '3 Instead, the relators are required to produce in respons e 

to the McCoys' requests for production only documents that already exist. In keeping wit h 

our above-holding, any such information is limited to the relators' respective current ne t 

worth, as well as whatever other limitations the trial court has set forth or may yet impose . 

III 

We deny the relators' petition with regard to their assertions that the McCoys ar e 

precluded from seeking discovery of information of any net worth because Texas la w 

requires a claimant first to make a prima facie showing of entitlement to punitive damage s 

'' See In re Guzman, 19 S.W.3d 522, 525 (Tex. App.-Corpus Christi 2000, orig . 

proceeding) ; Smith v. O'Neal, 850 S .W.2d 797, 799 (Tex . App.-Houston [14th Dist .] 1993, no 

writ); see also In re Colonial Pipeline Co ., 968 S .W.2d at 942 (quoting McKinney v. Nat'l Unio n 

Fire Ins. Co., 772 S .W.2d 72, 73 n.2 (Tex. 1989) (op . on reh'g)) (`"[T]his rule cannot be used t o 

force a party to make lists or reduce information to tangible form.') . 

'3 The relators do not complain about the order in so far as it requires them to produce a n 

affidavit swearing that no such documents had been submitted to a lender in the preceding two years . 

15

and the McCoys have not pleaded sufficient allegations of conduct entitling them to punitiv e 

damages . 

We conditionally grant the relators' petition with regard to the trial court's order of 

January 23, 2009, requiring the relators to produce net-worth information for the past tw o 

years. The relators are required to produce only current net-worth information . Further, th e 

relators are not required to create affidavits in a format of what would have been provide d 

to a lender, but are required only to produce documents in response to the McCoys' reques t 

for production that already exist. The trial court is directed to modify that portion of it s 

order accordingly . 

We further conditionally grant the relators' petition with regard to the trial court' s 

order ofJanuary 30, 2009, permitting the questioning of Dr . Jacobs and Dr. Gunn about their 

respective current net worth . Specifically, the McCoys are limited to asking each physician 

to (I) state his or her current net worth, i.e., the amount of current total assets less curren t 

total liabilities, and (2) the facts and methods used to calculate what each physician allege s 

is his or her current net worth. Moreover, any questioning beyond these two narro w 

inquiries shall be allowed only upon leave of the trial court after a showing that the McCoy s 

have reason to believe that the information provided was incomplete or inaccurate . The trial 

court is directed to modify that portion of its order accordingly, and is free to otherwis e 

impose whatever other limitations it determines, in its discretion, to be appropriate . 

We lift our stays issued on February 4, 2009, and March 6, 2009 . The writ will issu e 

only if the trial court fails to act in accordance with this opinion . 

Is/ 

Jeffrey V. Brown 

Justic e 

Panel consists of Justices Brown, Boyce, and Sullivan (Sullivan, J ., concurring) . 

16

Petition for Writ of Mandamus Conditionally Granted in Part, and Denied in Part , 

and Majority and Concurring Opinions filed October 20, 2009 . 

In The 

,friur eentll (Court of App-tat s 

NO . I4-09-00123-CV 

IN RE MARK A . JACOBS, M.D ., DEBRA C . GIJNN, M.D., and OBSTETRICAL 

AND GYNECOLOGIST ASSOCIATES, P .A., Relator s 

ORIGINAL PROCEEDIN G 

WRIT OF MANDAMU S 

CONCURRING OPINIO N 

The Court today reaches a result consistent with the current state of Texas law . I 

write separately only to note that the current Texas rule on net-worth discovery is no w 

decades-old and, in light of the evolution of Texas law, needs to be revisited . The instant 

case illustrates how it contributes to unnecessary "satellite litigation" unrelated to the merit s 

of the case and often produces expense and burden far exceeding any potential benefit . 

A brief review of the history of this dispute is illustrative . It is noteworthy that th e 

medical incident made the basis of this lawsuit occurred in September 2004. Five years later 

this legal dispute remains unresolved - even at the trial-court level .

The specific controversy over net-worth discovery is fast approaching its second 

anniversary and has continued Iargely unabated . It began with an exhaustive request for 

financial records covering a multi-year period . Those discovery requests inevitabl y 

produced over many months - a flood of objections, hours of court hearings, multipl e 

court orders, and the current mandamus proceeding with multiple appellate briefs from eac h 

side. The cost to the parties has no doubt been significant. The level of chaos in this cas e 

- a tort case with themes common to many such disputes has given me pause, with a 

belief that some assessment is in order as to the efficacy of this process as well as the relativ e 

value of the discovery in question . 

A . 

The Role of Net-Worth Discovery in Resolving Material Case Issue s 

Under the Rules, a trial judge should limit discovery for which the burden or expens e 

outweighs the likely benefit . Tex. R. Civ. P . 192 .4(b) . In weighing these factors, courts ar e 

to consider, among other things, the importance of the proposed discovery in resolving th e 

material issues of the lawsuit . See id. 

As a general rule, evidence of a party's wealth is irrelevant and prejudicial . See 

Carter v. Exxon Corp ., 842 S .W.2d 393, 399 (Tex. App.-Eastland 1992, writ denied) . 

Consequently, it is almost always inadmissible at trial . See Cooke v. Dykstra, 800 S .W.2d 

556, 562 (Tex. App.-Houston [14th Dist .] 1990, no writ) ; Carter, 842 S.W .2d at 399 . 

In Lunsford v. Morris, however, the Texas Supreme Court carved out a narro w 

exception to the general rule of inadmissibility, allowing parties to discover and introduc e 

evidence of a defendant's net worth in cases in which punitive or exemplary damages could 

be awarded. 746 S .W.2d 471, 473 (Tex. 1988) (orig. proceeding), disapproved ofon other 

grounds by Walker v. Packer, 827 S .W .2d 833, 842 (Tex. 1992) (orig. proceeding) . 

However, Lunsford properly should be considered in its historical context .

Specifically, in 1981, the Texas Supreme Court decided to re-visit the standard of 

review used in reviewing jury awards of punitive damages . See Burk Royalty Co. v. Walls , 

616 S.W .2d 911, 920 (Tex . 1981). Under the prior standard, a defendant could successfull y 

challenge a punitive-damages award on appeal simply by pointing to any evidenc e 

suggesting he exercised some care. See id . at 921 . However, the Court chose to depart from 

that standard because it was seen as creating a virtually impossible hurdle to the recovery o f 

punitive damages "since anything may amount to some care." Id. 

In its place, the Court 

substituted a no-evidence standard of review that effectively "gave the jury greate r 

discretion to award punitive damages .' 

In addition, the Burk Court authorized plaintiffs to prove "gross negligence," th e 

standard for imposing punitive damages, merely by constructive notice of the defendant' s 

subjective state of mind . 

See Burk, 616 S .W.2d at 922 . Four years later, the Court reaffirmed 

that holding and also expanded the definition of " gross negligence" to giv e 

plaintiffs additional methods to prove a defendant's culpability for exemplary damages : 

[T]he test for gross negligence is both an objective and a subjective test . A 

plaintiff may prove a defendant's gross negligence by proving that th e 

defendant had actual subjective knowledge that his conduct created an 

extreme degree of risk . In addition, a plaintiff may objectively prove a 

defendant's gross negligence by proving that under the surroundin g 

circumstances a reasonable person would have realized that his conduc t 

created an extreme degree of risk to the safety of others . 

Williams v . Steves Indus., Inc., 699 S .W.2d 570, 573 (Tex . 1985) (emphasis added) , 

superseded by statute as recognized by Transp . Ins. Co. v. Moriel, 879 S.W.2d 10, 20 n .1 1 

(Tex. 1994) . 

' Patricia F . Miller, Comment, 2003 Texas House Bill 4 : Unanimous Exemplary Damage Awards 

and Texas Civil Jury Instructions, 37 St. Mary's Li . 515, 529 (2006) (citations omitted) ; see Burk, 61 6 

S.W.2d at 922 .

In 1987, the Texas Legislature began to scale back the availability of punitiv e 

damages by enacting Chapter 41 of the Texas Civil Practice and Remedies Code .' However , 

while the original version of Chapter 41 introduced basic limitations to the recovery o f 

punitive damages,' the protections it extended to defendants pale in comparison with thos e 

found in the version currently in effect .' Lunsford was decided the following year but, apar t 

from a brief mention in one of the dissenting opinions, ignores any discussion of the 198 7 

reforms or their effect on the Court's expansive exemplary-damage decisions from earlie r 

that decade . See Lunsford, 746 S.W.2d at 476 (Gonzalez, J ., dissenting) . 

In 1995, the Legislature passed more sweeping tort reform to the substantive an d 

procedural law governing punitive damages . See Act of April 11, 1995, 74th Leg ., R.S ., ch . 

19, § 1, 1995 Tex . Gen. Laws 108, 10813 (amended 2003) (current version at Tex. Civ . 

Prac. & Rem. Code Ann . §§ 41 .001-.013 (Vernon 2008 & Supp. 2009)). Chapter 41 wa s 

significantly rewritten to provide defendants dramatic protection from punitive-damag e 

awards, including : 

Juries could no longer award exemplary damages intended solely to serve "a s 

an example to others," but were instead limited to assessing damages with th e 

purpose of punishing the defendant . 

2 See Act of June 3, 1987, 70th Leg ., 1st C .S., ch. 2, § 2.12, 1987 Tex. Gen. Laws 37, 44 (amende d 

1995 & 2003) (current version at Tex . Civ . Prac . & Rem. Code Ann. §§ 41 .001-.013 (Vernon 2008 & Supp . 

2009)) . 

3 

For example, the tort-reform legislation included a basic cap on exemplary damages. See Act of 

June 3, 1987, 70th Leg ., 1st C.S ., ch. 2, § 2.12 sec. 41 .007, 1987 Tex. Gen. Laws 37, 46 (amended 1995 & 

2003) . In addition, the legislature effectively abrogated the purely objective method of proving gros s 

negligence . See Transp, Ins. Co . v. Mar-id, 879 S.W.2d 10, 20 n.11 (Tex. 1994). However, because thi s 

narrower definition of "gross negligence " applied only to products-liability cases and certain negligenc e 

actions, courts continued to apply BurkRa salty and Sieves Industries to all other gross-negligence suits . See 

J. Stephen Barrick, Comment, Mot-lei andthe Exemplary Damages Act: Texas Tag-Team Overhauls Punitiv e 

Damages, 32 Hous . L. Rev. 1059, 1066 (1995) . 

'' See infra pp . 4-5 . 

4

Icl. 

• The Legislature dramatically expanded Chapter 41's coverage to apply to al l 

but a very few types of tort actions . 

• A plaintiff's burden of proof for punitive damages was elevated to requir e 

proof of all elements by clear and convincing evidence . 

• With few limitations, a defendant could no longer be exposed to punitiv e 

damages because of another person's criminal act . 

• 

The Legislature lowered the existing cap on punitive damages . 

• Upon a defendant's motion, the trial court had to bifurcate the jury' s 

determination of the amount of punitive damages, and evidence of a 

defendant's net worth could not be admitted during the liability phase of th e 

trial . 

These substantive and procedural amendments changed the legal landscape on tw o 

levels. First, they further limited the amount of punitive damages that could be assessed . 

See id. § 1 

secs . 41 .007, 41 .008 . Second, and more significantly, these revision s 

dramatically lessened the chances of any punitive-damage recovery by a claimant . 

§ 1 secs . 41 .001(5), 41 .002, 41 .003(b), 41 .005 . 

See id. 

In 2003, the Legislature further eroded a plaintiffs ability to recover punitiv e 

damages as a part of comprehensive tort-reform legislation . ' Now, unlike the general rul e 

permitting a civil verdict upon the vote of only ten jurors, an award of punitive damage s 

requires a unanimous verdict as to liability for, and the amount of, such damages . See Tex . 

Civ. Prac. & Rem. Code Ann. § 41 .003(d) (Vernon 2008 & Supp . 2009); Tex. R. Civ. P . 

292; DeAtley v. Rodriguez, 246 S.W.3d 848, 850 (Tex . App.-Dallas 2008, no pet.) . 

In their brief, the McCoys acknowledge the dramatic shift in the law on punitiv e 

damages since Lunsford, as the Legislature has repeatedly acted "to tightly restrict the abilit y 

5 See Act of June 2, 2003, 78th Leg ., R.S., ch . 204, §§ 13.01-.08, 2003 Tex . Gen. Laws 847, 886-8 9 

(current version at Tex . Civ. Prac. & Rem. Code Ann. §§ 4L001-.013 (Vernon 2008 & Supp . 2009)) . 

5

of litigants to seek and recover exemplary damages ."' Thus, in the current legal climate, fa r 

fewer cases are likely to present fact issues for trial as to punitive-damage liability than whe n 

Lunsford was decided more than two decades ago.' Accordingly, because net-wort h 

discovery may serve little practical purpose in many cases,' trial courts performing a benefitto-burden 

analysis should consider appropriate management of the scope of such discover y 

corresponding to its utility in resolving these important issues . See Tex. R. Civ. P. 192 .4(b) . 

B. Burden and Expense of Net-Worth Discover y 

The benefits of net-worth discovery are likely limited in most cases, but the direct an d 

indirect costs may not be. Of course, a case against a publicly traded corporation ma y 

present little problem in this respect, as its net worth should be discernible simply from th e 

contents of a widely available annual report . Under that scenario, the burden and expens e 

of the proposed discovery would be minimal . See id . 

c See Miller, supra note 1, at 520 ("[T]he unanimity requirements make it more difficult for a 

plaintiff to receive a punitive damage award from a Texas jury . "). 

' In fact, some might argue Chapter 41, as currently constituted, imposes punitive-damage liability 

only for intentional torts . See Tex. Civ. Prac . & Rem. Code Ann. §§ 41 .001(7), (11), 41 .003(a) (authorizin g 

exemplary damages only for fraud, malice, and gross negligence, where malice requires proof of "a specifi c 

intent . . . to cause substantial injury or harm" and gross negligence similarly mandates a showing of th e 

defendant's (1) actual, subjective awareness of an extreme degree w of risk and (2) consciously indifferen t 

decision to proceed nonetheless) . 

Indeed, discovery into a defendant's net worth may consume a disproportionate amount o f 

attention inasmuch as net worth is only one among several factors a jury should consider, and not even th e 

most important factor in reviewing an amount of punitive damages . See Tex. Civ. Prac. & Rem . Code Ann . 

§ 41 .011(a) (Vernon 2008) ; Owens-Corning Fiberglas Corp . v. Malone, 972 S .W.2d 35, 45-46 (Tex . 1998 ) 

("[T]he degree of reprehensibility of the defendant's conduct is `[p]erhaps the most important indicium' of 

the reasonableness of a punitive damage award.") (quoting BMWofN. Am., Inc. v, Gore, 517 U .S. 559, 57 5 

(1996)). In fact, until Lansford, a defendant's net worth was not even listed as a factor for the jury to 

consider in awarding punitive damages . See Lansford, 746 S .W.2d at 472-73 ; Alamo Nat'l Bank v . Kraus, 

616 S.W.2d 908, 910 (Tex . 1981). Even so, a post-Lansfordjury may still decide on the amount of punitiv e 

damages without considering evidence of the defendant's net worth . See Durban v. Guajardo, 79 S.W .3d 

198, 210-11 (Tex . App.----Dallas 2002, no pet .) . 

6

A private individual, however, presents a far different profile with, at minimum , 

potentially serious issues as to privacy rights and availability of responsive information . 

Net-worth discovery as to an individual will almost inevitably require • and deservemuch 

more management and oversight by the trial court .' See In re Weekley Homes, L .P. , 

S .W.3d , 52 Tex. Sup. Ct. J. 1231, 2009 WL 2666774, at *4 (Tex. Aug. 28, 2009 ) 

(orig. proceeding) ("To the extent possible, courts should be mindful of protecting sensitiv e 

information and should choose the least intrusive means of retrieval .") . 

In this case, the McCoys sought audited financial statements that, while invasive, ma y 

at least represent one of the most accurate and efficient ways for indicating an individual' s 

net worth, if available:" However, they also sought countless other categories of documents 

that have been repeatedly held undiscoverable, such as income-tax returns, " or which 

possess only the most indirect and tenuous connection to net worth . Among this latter 

category of documents are the McCoys' requests for (1) HUD statements reflecting the sal e 

or purchase of real estate ; (2) "any and all contracts that you are a party to with any health 

insurance company, HMO, including Medicare and/or Medicaid, managed care entity, o r 

hospital" ; (3) any documents reflecting accounts receivable, from any time period, for th e 

provision of medical care ; (4) accounts receivable due to the defendant's "participation i n 

any clinical drug trials, medical device trials, or other medical product trials" for the purpos e 

of obtaining FDA approval ; and (5) all medical bills issued for an entire calendar year , 

presumably as to all of the physicians' patients, "touching, concerning, or dealing with" th e 

provision of medical care . 

Closed corporations and closely-held corporations may present similar, albeit somewhat les s 

serious, issues . 

10 See Sears, Roebuck cr: Co. v. Ramirez, 824 S .W .2d 558, 559 (Tex. 1992) (orig. proceeding) . Of 

course, the average private individual is highly unlikely to have audited financial statements readil y 

available . 

See id. ; see also Wal-Mart Stores, Inc. v. Alexander, 868 S .W.2d 322, 331 (Tex. 1993) (Gonzalez, 

J ., concurring) (surveying numerous cases precluding discovery into federal income-tax returns) . 

7

This sort of invasive discovery generally raises very serious privacy concerns, but tha t 

is not its only cost. It also imposes additional burden and expense on the parties and thei r 

attorneys, as well as occupying the limited resources of the trial court and, now, thi s 

appellate court . See W'Val-Mart Stores, Inc . v. Alexander, 868 S.W.2d 322, 331-32 (Tex . 

1993) (Gonzalez, J ., concurring) (commenting on the privacy concerns and potential fo r 

abuse inherent in the "unlimited discovery . . . of sensitive, private, and confidentia l 

financial information") . 

However, this sort of discovery should not be unexpected given the Texas Suprem e 

Court's lengthy silence as to both the precise definition of "net worth" in this context an d 

the proper boundaries for the discovery and ultimate presentation of information as to a 

defendant's net worth : 

This Court in Lunsford failed to define net worth and failed to sugges t 

a procedure for placing such evidence before the jury . I predicted then that 

in the absence of guidance from this Court, "confusion will prevail a s 

practitioners and judges attempt to ascertain the components of net worth .' 

Lunsford, 746 S .W.2d at 475 . 

Conflicting appellate court decisions on the meaning of the term "ne t 

worth" are evidence of the confusion surrounding this fundamental issue . 

This confusion should be resolved by this Court . 

Wal-Mart, 868 S .W.2d at 330 (Gonzalez, J., concurring) (citations omitted) ; 

see als o 

Lunsford, 746 S .W.2d at 476 (Gonzalez, J ., dissenting) (calling for clear definition of term 

"net worth" and clarity on types of documents relevant to calculate it) . 

Here, the majority attempts to fairly bridge some of this gap by offering a soli d 

definition of "net worth" as assets minus liabilities . 

ed . 1990) ; 

See Black's Law Dictionary 1041 (6th 

Wal-Mart, 868 S.W.2d at 330-31 (Gonzalez, J ., concurring) . Yet, even thi s 

pronouncement may still lead to disagreements about the documents that are relevant an d 

discoverable to calculate this figure, in light of the relative lack of guidance on this issue . 

8

Trial courts have the necessary management tools to control the sequence, timing, and 

scope of discovery to minimize burden, maximize efficiency, and protect privacy rights .' 

See Tex. R. Civ. P . 166, 192. Still, we must acknowledge that there are literally hundred s 

of Texas trial-court judges - spread over 254 counties - who may preside over cases wit h 

claims for exemplary damages and, of necessity, disputes involving net-worth discovery . 

They each have different backgrounds, different approaches, and different dockets . Thos e 

dynamics are likely to produce a highly unpredictable and idiosyncratic approach to th e 

mauagement of these issues across the state - and history shows us that these are issues that 

regularly recur . I believe parties to litigation in Texas are entitled to greater clarity an d 

predictability from our courts . Accordingly, I would urge that Lunsford be revisited and 

updated . 

Is/ 

Kent C. Sullivan 

Justic e 

Panel consists of Justices Brown, Boyce, and Sullivan. (Brown, J., majority) (Sullivan, J . , 

concurring) . 

1' For example, in appropriate cases, some trial courts use a docket-control order to schedule and 

hear summary judgment motions on predicate exemplary-damage issues in advance of allowing pre-tria l 

discovery on net worth . This approach could limit discovery disputes and the potential cost of complianc e 

to only what is necessarily justified by the facts and claims of the ease . Similarly, trial courts may wish in 

certain cases to allow only the threshold discovery of net-worth amounts by way of limited disclosure at on e 

stage of pre-trial, and delay discovery as to underlying facts or methods of calculation of those amounts - 

potentially much more invasive and complicated --- until a later point when necessary . 

9

Page 1 

1 of 1 DOCUMENT 

IN RE MARIA A . JACOBS, M.D., DEBRA C . GUNN, M.D ., and 

OBSTETRICAL AND GYNECOLOGIST ASSOCIATES, P .A . , 

Relators 

NO. 14-09-00123-CV 

COURT OF APPEALS OF TEXAS, FOURTEENTH DIS- 

TRICT, HOUSTON 

2009 Tex. App. LEXIS 8112 

October 20, 2009, Majority and Concurring Opinions File d 

JUDGES : [*I] Panel consists of Justice s 

Brown, Boyce, and Sullivan (Sullivan, J . , 

concurring) . 

OPINION BY : 

OPINION 

Jeffrey V . Brown 

ORIGINAL PROCEEDING WRIT OF 

MANDAMU S 

MAJORITY OPINION 

In this original proceeding, the relators , 

Mark A . Jacobs, M .D., Debra C . Gunn , 

M .D., and Obstetrical and Gynecologist Associates, 

P .A ., seek a writ of mandamus ordering 

the Honorable Mike Wood, presiding 

judge of Probate Court No . 2 of Harri s 

County, to set aside his two orders of January 

23, 2009--one compelling the deposition 

of Dr. Jacobs and one compelling net - 

worth discovery for the past two years--and 

his order of January 30, 2009, clarifying th e 

two January 23 orders . We conditionally 

grant the petition in part and deny it in part . 

I 

Real parties in interest, Andre McCoy , 

Individually and as Permanent Guardian o f 

Shannon Miles McCoy, an Incapacitated 

Person (the "McCoys"), have sued the relators 

and others for negligence and gros s 

negligence in providing medical care and 

treatment to Shannon while she was an obstetrical 

patient at Woman's Hospital o f 

Texas from September 13, 2004 to September 

14, 2004. On November 16, 2007, the 

McCoys served the relators with request s 

for discovery of net-worth information . 

When the relators objected {*2] to the re - 

quests for production, the McCoys filed a 

motion to compel discovery . 

1 The other defendants are Woman' s 

Hospital of Texas, Inc., CHCA

2009 Tex . App. LEXIS 8112, " ` 

Page 2 

Woman's Hospital, L.P. dlbla 

Woman's Hospital of Texas, Housto n 

Woman's Hospital Partner, L .L.C ., 

and James A. Collins, M.D . 

On January 23, 2009, the trial court hel d 

a hearing and signed an order directing the 

McCoys to amend their pleadings to provide 

more specific allegations of gross negligence 

against the relators following th e 

completion of the depositions of Dr . Jacobs 

and Dr Gunn. Subject to the filing of a sufficient 

pleading as to gross negligence, the 

trial court further ordered the relators to 

produce "the actual financial statements 

they have provided to a lender within the 

past two (2) years that identifies the assets 

and liabilities of each Defendant." Alternatively, 

if the relators had not submitted any 

such financial statement to a lender withi n 

the two years preceding the date of the or - 

der, the court ordered each relator to : 

(i) Produce an affidavit swearing 

that no such financial statement 

has actually been submitted 

to a lender in the past two 

(2) years; and 

(ii) Produce an affidavit under 

oath in the format of what 

would have [*3] been provide d 

to a lender as to net worth . 

The order directed that the relators produce 

such net-worth information no later than 

thirty days after the McCoys sufficientl y 

pleaded gross negligence. In the order, 

Judge Wood also prohibited the McCoys 

from seeking to compel any additional responses 

to their outstanding net-worth discovery 

requests, and announced that any 

net-worth information provided to the 

McCoys would be "safeguarded by a protective 

order." On January 23, Judge Woo d 

signed another order granting the McCoys ' 

motion to compel the deposition of Dr . Jacobs, 

and directed that the deposition ma y 

not exceed three hours on the record . 

On January 26, the relators filed a motion 

to clarify the order regarding the discoverability 

of net worth. The relators 

stated they did not understand when to produce 

the net-worth information to compl y 

with the order and requested the trial cour t 

to so specify. Also, the relators requested a 

written order on what net-worth matters, i f 

any, the McCoys would be allowed to cove r 

during the depositions of Dr. Jacobs and Dr . 

Gunn . 

On January 30, the trial court signed a n 

order clarifying its prior orders regardin g 

the discoverability of net-worth information 

. [`4 The trial court directed the relators 

to produce the information by Februar y 

6, 2009, and ruled that the McCoys woul d 

be permitted to depose Dr . Gunn and Dr . 

Jacobs about their net worth . 

In their petition, the relators argue that 

the trial court abused its discretion with respect 

to the orders of January 23 and 30 by 

directing the relators to (1) produce networth 

information for the past two years in 

the form of actual financial statements they 

have provided to lenders ; (2) create a networth 

document in the format of wha t 

would have been provided to a lender; and 

(3) present Dr. Jacobs and Dr. Gunn for 

deposition regarding their net worth without 

any temporal or subject-matter limitations . 

The relators further assert they have n o 

adequate remedy by appeal because thei r 

rights to due process and privacy are in

2009 Tex. App. LEXIS 8112, ''' 

Page 3 

jeopardy of being permanently lost or compromised 

. 

I I 

To be entitled to the extraordinary relie f 

of a writ of mandamus, the relator mus t 

show that the trial court clearly abused it s 

discretion and he has no adequate remedy 

by appeal . In re Team Rocket, L .P., 256 

S.W 3d 257, 259 (Tex . 2008) (orig. proceeding). 

The party resisting discovery bears th e 

heavy burden of establishing [''5] an abuse 

of discretion and an inadequate remedy by 

appeal . In re CSX Corp., 124 S. W 3d 149, 

151 (Tex. 2003) (orig. proceeding) (per curiam) 

. A trial court abuses its discretion if i t 

reaches a decision so arbitrary and unreasonable 

as to constitute a clear and prejudicial 

error of law, or if it clearly fails to correctly 

analyze or apply the law . In re Cerberus 

Capital Mgrnt., L.P., 164 S. W.3d 379, 

382 (Tex. 2005) (orig. proceeding) (per curiam) 

; Walker v. Packer, 827 S. ITj 2d 833, 

839 (Tex. 1992) (orig. proceeding) . 

Whether a clear abuse of discretion can 

be adequately remedied by appeal depend s 

on a careful analysis of costs and benefits o f 

interlocutory review . In re McAllen Med . 

Ctr., Inc ., 275 S. ITT 3d 458, 464 (Tex. 2008) 

(orig. proceeding) . Because this balanc e 

depends heavily on circumstances, it must 

be guided by analysis of principles rather 

than simple rules that treat cases as categories 

. Id . "Mandamus review of significan t 

rulings in exceptional cases may be essential 

to preserve important substantive an d 

procedural rights from impairment or loss , 

allow the appellate courts to give neede d 

and helpful direction to the law that woul d 

otherwise prove elusive in appeals from final 

[*6] judgments, and spare private parties 

and the public the time and money utterly 

wasted enduring eventual reversal o f 

improperly conducted proceedings ." In re 

Prudential Ins. Co. of Am., 148 S. W 3d 124, 

136 (Tex. 2004) (orig. proceeding) ; see also 

In re Columbia Med. Ctr. of Las Colinas , 

Subsidiary, L.P., 290 S. W.3d 204, 207 (Tex. 

2009) (orig. proceeding) ("Used selectively, 

mandamus can 'correct clear errors in exceptional 

cases and afford appropriate guidance 

to the law without the disruption an d 

burden of interlocutory appeal."') (quoting 

In re Prudential, 148 S. W.3d at 138) . Thus , 

in determining whether appeal is an adequate 

remedy, we consider whether th e 

benefits of mandamus review outweigh the 

detriments . In re BP Prods. N. Am., Inc . , 

244 S ITT 3d 840, 845 (Tex . 2008) (orig. proceeding) 

. Appeal is not an adequate remedy 

when the appellate court would not be abl e 

to cure the trial court's discovery error . In re 

Dana Corp., 138 S.W3d 298, 301 (Tex . 

2004) (per curiam) (orig . proceeding) ; h re 

Kuntz, 124 S.ITj3d 179, 181 (Tex. 2003) 

(orig. proceeding) . 

A 

The relators assert the trial court abused 

its discretion by ordering them to produce 

their net-worth information to the McCoys . 

A ['''7] defendant's net worth is relevant in 

a suit involving exemplary damages . 

Lunsford v. Morris, 746 S.W 2d 471, 473 

(Tex. 1988) (orig. proceeding), overruled o n 

other grounds, Walker, 827 S W2d at 842 ; 

Miller v. O'Neill, 775 S.W2d 56, 58 (Tex . 

App.--Houston [1st. Dist.] 1989, orig. proceeding) 

. Therefore, in cases where punitive 

or exemplary damages may be 

awarded, parties may discover and offer 

evidence of a defendant's net worth . 

Lunsford, 746 S. ITj 2d at 473 . Generally, in 

cases concerning the production of financial 

records, the burden rests upon the party

2009 Tex . App. LEXIS 8112 , 

Page 4 

seeking to prevent production . In re Brewer 

Leasing, Inc., 255 S.W.3d 708, 712 (Tex. 

App.--Houston [1st Dist.] 2008, orig. proceeding 

fmand. denied]); In re Patel, 218 

S. W3d 911, 916 (Tex. App.--Corpus Christi 

2007, orig. proceeding) . 

The relators argue the McCoys are not 

entitled to discovery on net worth until they 

have established a prima facie case of gros s 

negligence . However, the Texas Suprem e 

Court has expressly rejected this contention . 

See Lunsford, 746 S. W. 2d at 473 (rejecting 

requirement of prima facie showing be - 

cause "[o]ur rules of civil procedure an d 

evidence do not require similar practice s 

before net worth may be [*8] discovered") . 

2 Therefore, under Texas law, a party seeking 

discovery of net-worth informatio n 

need not satisfy any evidentiary prerequisite, 

such as making a prima facie showing 

of entitlement to punitive damages, before 

discovery of net worth is permitted . In re 

House of Yahweh, 266 S.W.3d 668, 673 

(Tex. App.-Eastland 2008, orig. proceeding) 

; In re Garth, 214 S.W.3d 190, 192 

(Tex. App.-Beaumont 2007, orig . proceeding 

[mand. dism'd) ; In re W Star Trucks 

US, Inc., 112 S.W.3d 756, 763 (Tex. App.-- 

Eastland 2003, orig. proceeding) ; A l 

Parker Buick Co . v. Touchy, 788 S. W 2d 

129, 131 (Tex. App.--Houston [1st Dist] 


2 We note other jurisdictions requir e 

a prima facie showing of entitlement 

to recover punitive damages prior t o 

conducting discovery on a defendant' s 

financial status . See, e.g., Iowa Code 

Ann. § 668A.1 (1998); Lan-iva v. 

Montiel, 143 Ariz . 23, 691 P. 2d 735, 

738 (Ariz. Ct. App. 1984); Curtis v. 

Partain, 272 Ark. 400, 614 S. W 2d 

671, 674 (Ark. 1981), overruled o n 

other grounds, Lupo v. Lineberger, 

313 Ark. 315, 855 S.W.2d 293 (Ark. 

1993); Herman v. Sunshine Chem . 

Specialties, Inc., 133 NJ. 329, 62 7 

A .2d 1081, 1089 (N.J. 1993) ; A/lark v . 

Congregation Mishkon Tefiloh, 745 

A .2d 777, 780 (R.I. 2000); Cramer v . 

Powder River Coal, L.L.C., 2009 WY 

45, 204 P.3d 974, 980 (Wyo. 2009) . 

[*9] However, most federal courts d o 

not require a plaintiff to make a prima 

facie showing of entitlement to re - 

cover punitive damages before seeking 

pretrial discovery of the defendant's 

financial information . See, e.g . , 

United States v. Matusoff Rental Co . , 

204 F.R.D . 396, 399 (S.D. Ohio 2001) 

(stating overwhelming majority o f 

federal courts have concluded plaintiffs 

seeking punitive damages are en - 

titled to discover information on defendant's 

financial condition withou t 

making prima facie showing of entitlement 

to recovery of such damages) ; 

CEH, Inc. v. FV "Seafarer", 15 3 

F.R.D. 491, 498 (D. R.İ 1994) 

(same); Mid Continent Cabinetry, Inc. 

v. George Koch Sons, Inc., 130 F.R.D. 

149, 151 (D. Kan . 1990) (same) ; Doe 

v. Young, 2009 US. Dist. LEXIS 

12116, 2009 WL 440478, at *2 (E.D . 

11/lo. Feb . 18, 2009) (same) ; West - 

brook v. Charlie Sciara & Son Pro - 

duce Co., 2008 US. Dist. LEXIS 

24649, 2008 T'YL 839745, *2 (WD . 

Tenn. Mar. 27, 2008) (same) ; S. Cal . 

Hous. Rights Cm v. Krug, 2006 US. 

Dist. LEXIS 65330, 2006 WL 

4177148, at *4 (C.D. Cal. Sept. 5 , 

2006) (same) .

2009 Tex. App. LEXIS 8112 , 

Page 5 

The relators acknowledge the Texas Supreme 

Court's express holding in Lunsford, 

but argue that we should follow other jurisdictions 

that require a plaintiff to demonstrate 

a factual basis for punitive damages 

before being allowed [ 1'10] to do net-worth 

discovery. 3 Even though Lunsford is over 

twenty years old, the Texas Supreme Court 

has not revisited this issue . 

4 As an intermediate 

court of appeals, we are bound by th e 

supreme court's ruling in Lunsford and, 

therefore, we decline the relators' invitation . 

See Dallas Area Rapid Transit v. Amalgamated 

Transit Union Local No. 1338, 273 

S. W 3d 659, 666 (Tex. 2008), cert. denied, 

U.S. , 129 S. Ct. 2767, 174 L. Ed. 

2d 284 (2009) ("It is fundamental to th e 

very structure of our appellate system tha t 

this Court's decisions be binding on th e 

lower courts .") ; Lubbock County, Tex. v. 

Trammel's Lubbock Bail Bonds, 80 S . Ẇ3d 

580, 585 (Tex. 2002) ("It is not the function 

of a court of appeals to abrogate or modify 

established precedent . . . . That function lie s 

solely with this Court.") . In accordance 

with Lunsford, the McCoys are not require d 

to make a prima facie case, or any other 

evidentiary showing, of entitlement to punitive 

damages before seeking discovery o f 

the relators' net-worth information. 

3 Other jurisdictions require the 

plaintiff to establish a factual or evidentiary 

basis to be entitled to discovery 

on a defendant's net worth . See, 

e.g., Bryan v. Thos. Best & Sons, Inc . , 

453 A.2d 107, 108 (Del. Super. Ct. 

1982) ; [ '` 11 ] Globe Newspaper Co. v . 

King, 658 So.2d 518, 519 (Fla . 1995) 

(citing Fla. Stat. § 768.72) ; Smith v . 

Morris, Manning & Martin, L .L.F . , 

293 Ga. App. 153, 666 S.E.2d 683, 

B 

697 (Ga. Ct. App. 2008) (quoting 

Holman v. Burgess, 199 Ga. App. 61, 

404 S.E.2c1 144, 147 (Ga. 1991)) ; 

Breault v. Friedli, 610 S.1T7.2d 134, 

139-40 (Tenn. Ct. App. 1980) . At least 

two states go so far as to require the 

jury to return a verdict awarding punitive 

damages prior to the plaintiff s 

conducting discovery on a defendant' s 

financial status . See, e.g., Ex part e 

Hsu, 707 So.2d 223, 225-26 (Ala . 

1997) (citing Ala . Code § 6-11-23(b)) ; 

Prior v. Brown Transp. Corp., 103 

A.D.2d 1042, 478 N.Y.S.2d 435, 436 

(N. Y App. Div. 1984) (quoting Rupert 

v. Sellers, 48 A.D. 2d 265, 368 

KY S. 2d 904, 912 (AT. Y App. Div. 

1975)) . 

4 After Lunsford, the supreme court 

established a bifurcated procedure fo r 

conducting trials involving claims fo r 

punitive damages because of th e 

"very real potential" that evidence of 

a defendant's wealth will prejudice th e 

jury's determination of other dispute d 

issues in tort cases . Transp. Ins. Co. v. 

.Moriel, 879 S. W 2d 10, 30 (Tex. 

1994); see also Tex. Civ. Prac. & 

Reny. Code Ann. § 41.009 (Vernon 

2008) (providing for bifurcated trial 

on claim for punitive damages) . 

The relators [*12] also argue evidence 

of their net worth is not relevant becaus e 

the McCoys have not alleged sufficient 

facts to support their claim of gross negligence 

under section 41.001(11) of the Texa s 

Civil Practices and Remedies Code . Section 

41 .001(11) defines "gross negligence" : 

(I I) "Gross negligence" 

means an act or omission :

2009 Tex. App. LEXIS 8112 , 

Page 6 

Id . 

(A) which when viewed objectively 

from the standpoint of 

the actor at the time of its occurrence 

involves an extreme degree 

of risk, considering the 

probability and magnitude of 

the potential harm to others ; and 

(B) of which the actor ha s 

actual, subjective awareness of 

the risk involved, but nevertheless 

proceeds with conscious in - 

difference to the rights, safety, 

or welfare of others . 

The McCoys allege Dr . Jacobs and Dr. 

Gunn knowingly failed to : (I) adequately 

and appropriately treat Shannon's disseminated 

intravascular coagulopathy ("DIC") ' ; 

(2) appreciate the severity of Shannon's coagulopathy 

in light of abnormal lab value s 

indicating that she was actively bleeding 

and suffering from DIC; (3) aggressively 

treat Shannon's DIC with adequate bloo d 

products and blood-volume replacement; 

and (4) repeatedly order appropriate coagulation 

profiles and to serially re-chec k 

[*I3] Shannon's blood work or to monito r 

and evaluate her clotting factors G to deter - 

mine how well, or how poorly, she was responding 

to treatment. 

5 DIC "is a rare, life-threatening 

condition that prevents a person' s 

blood from clotting normally. It may 

cause excessive clotting (thrombosis ) 

or bleeding (hemorrhage) throughout 

the body and lead to shock, organ 

failure, and death." WebMD, "Disseminated 

Intravascular Coagulatio n 

(DIC)," http ://www.webmd.conrla-to- 

z-guides/disseminated-intravascular- 

coagulation-dic-topic-overview (last 

visited July 7, 2009) . To treat DIC, 

"[t]ransfustions of blood cells an d 

other blood products may be necessary 

to replace blood that has bee n 

lost through bleeding and to replac e 

clotting factors used up by the body . " 

Id. 

6 "Clotting factor" refers to "any of 

several plasma components (as fibrinogen, 

prothrombin, and thromboplastin) 

that are involved in the 

clotting of blood ." Merriam-Webster 

Online, "clotting factor, " 

http:llmeriam - 

webster.comlmedical/clotting°/020factor 

s 

(last visited July 8, 2009) . 

The McCoys further allege Dr . Jacobs 

knowingly failed to : (1) verify that his orders 

for blood-volume replacement wer e 

being carried out and Shannon was bein g 

administered [*14] blood products as ordered; 

and (2) appropriately and aggressively 

manage Shannon's DIC from the out - 

set of her admission by ordering and administering 

additional units of fresh frozen 

plasma to increase Shannon's blood volume 

and to correct her consumptive coagulopathy 

before the delivery of her baby . 

The McCoys also allege Dr. Gunn 

knowingly failed to : (1) appreciate that 

Shannon's DIC was depleting and consuming 

her clotting factors and that if these 

clotting factors were not replaced through 

aggressive blood-volume replacement and 

clotting-factor replacement, Shannon' s 

blood would not be able to coagulate effectively 

at the time she delivered her baby; (2) 

recognize and appreciate that Dr. Jacobs 

had undertreated Shannon; (3) recognize,

2009 Tex. App. LEXIS 8112, 

Page 7 

appreciate, and appropriately respond to 

Shannon's tachycardia on September 14 , 

2004, by more aggressively treating her 

DIC; (4) order Laisix (a diuretic medicatio n 

that increases urine output) for Shannon , 

even though she knew that Shannon wa s 

suffering from DIC and actively bleeding , 

and did not need to be administered a diuretic 

medication ; (5) recognize, appreciate , 

and properly respond to the fact that Shan - 

non's condition was deteriorating (as [*15 ] 

evidenced by her tachycardia (rapid heart - 

beat) and urine output), and that she wa s 

developing hypovolemic shock (shock 

caused by reduction in blood volume) ; and 

(6) recognize that she was not qualified t o 

treat and manage Shannon's DIC and to re - 

quest the help of a more specialized physician 

to treat and manage Shannon's DIC . 

Finally, the McCoys allege the conduct 

of Dr. Jacobs and Dr. Gunn, when viewed 

objectively from their standpoint at the tim e 

of the occurrence, involved an extreme degree 

of risk, considering the probability and 

magnitude of the potential harm to others . 

The McCoys further allege Dr. Jacobs and 

Dr. Gunn had actual, subjective awarenes s 

of the risk involved, but nevertheless proceeded 

with conscious indifference to 

Shannon's rights, safety, or welfare . 

In response to the McCoys' grossnegligence 

allegations, the relators argue 

that merely adding the word "knowingly" t o 

existing allegations of negligence is not 

enough. Texas follows the "fair notice " 

standard for pleadings, which looks t o 

whether the opposing party can ascertai n 

from the pleadings the nature and basic is - 

sues of the controversy and the type of evidence 

that might be relevant to the controversy 

. Low v. Henry, 221 S. W.3d 609, 61 2 

(Tex. 2007) ; [* I 6] Horizon/CMS Health - 

care Corp . of Anrt v. Auld, 34 S. W3d 887, 

896 (Tex. 2000) . "'A petition is sufficient if 

it gives fair and adequate notice of the fact s 

upon which the pleader bases his claim. The 

purpose of this rule is to give the opposin g 

party information sufficient to enable him 

to prepare a defense.' Horizon/CMS 

Healthcare, 34 S. W.3d at 897 (quoting 

Roark v. Allen, 633 S. W.2d 804, 810 (Tex. 

1982)) . Exemplary damages are special 

damages that must be supported by express 

allegations of willfulness, malice, or gross 

negligence that go beyond the allegation s 

necessary to recover compensatory dam - 

ages . Al Parker Buick Co., 788 S. W 2d at 

130 . Texas law requires a plaintiff seekin g 

production of net worth information to '"allege 

facts showing that relator is liable fo r 

punitive damages . ," Delgado v. Kitzman, 

793 S TAT 2d 332, 333 (Tex. App.--Housto n 

[1st Dist.] 1990, orig. proceeding) (quoting 

Al Parker Buick Co ., 788 S. Fr: 2d at 131) . 

Under Texas' basic pleading requirements, 

the McCoys' live pleadings sufficiently 

allege specific facts supporting 

gross negligence and invoke the objectiv e 

and subjective standards as set forth in section 

41.001(11). See Tex. Civ. Prac . & 

Rem . Code Ann. [* 17] Therefore, we conclude 

the McCoys have pleaded facts sufficient 

for purposes of showing they are entitled 

to discovery of net-worth informatio n 

from the relators . See In re Garth, 21 4 

S. W 3d at 192 (holding plaintiffs pleading s 

were sufficient to notify defendants that sh e 

sought to hold them liable for punitive 

damages through conspiracy theory) ; In re 

1V Star Trucks US, Inc., 112 S W.3d at 763 - 

64 (holding allegations in petition that defendant 

had engaged in fraudulent and malicious 

conduct were sufficient to permit 

discovery of net worth) ; Delgado, 793

2009 Tex. App . LEXIS 8112, * , 

Page 8 

S. W.2d at 333 (holding plaintiffs pleading 

alleging defendant was "consciously indifferent" 

to safety of others was sufficient t o 

entitle plaintiff to discovery of net worth 

information), 8 

C 

7 Some states do not permit a plain - 

tiff to claim punitive damages in an 

original pleading, but allow for the 

amendment of the plaintiffs pleading s 

to claim punitive damages, with th e 

trial court's permission, after satisfying 

a requisite evidentiary showing . 

See, e.g., Idaho Code Ann. § 6- 

1604(2) (2008) ; Minn. Stat. Ann . § 

549.191 (2000) ; Or. Rev. Stat. Ann . § 

31 .725(2) (2007) . 

8 The relators argue, for the firs t 

time in their reply brief, that [*18] we 

should consider, not only the pleadings, 

but also the requirement that a 

plaintiff must first present expert 

opinion of the applicable standard of 

care, the alleged breach of that standard, 

and the causal link to procee d 

on a health care liability claim when 

determining whether net worth information 

is relevant. We do not consider 

this contention because it wa s 

not raised in the trial court or in the 

relators' petition for writ of mandamus. 

See In re TCW Global Project 

Fund, II, Ltd., 274 S. W 3d 166, 17 1 

(Tex. App.--Houston [14th Dist.] 


The relators also contend the trial court' s 

order directing them to provide net-wort h 

information for the past two years is overl y 

broad and unduly burdensome because i t 

goes beyond what is necessary to demonstrate 

their respective current net worths . 

Discovery is limited to matters relevant to 

the case . Texaco, Inc. v. Sanderson, 898 

S. W.2d 813, 814 (Tex. 1995) (orig . proceeding) 

(per curiam) ; see also Tex, R . Civ. P. 

192 cmt. I ("While [*19] the scope of discovery 

is quite broad, it is nevertheless confined 

by the subject matter of the case an d 

reasonable expectations of obtaining information 

that will aid resolution of the dispute 

.") . A party's requests must show a reasonable 

expectation of obtaining information 

that will aid in the resolution of th e 

dispute . In re CSX Corp., 124 S' PTj 3d a t 

152 . Therefore, discovery requests must be 

reasonably tailored to include only matter s 

relevant to the case . In re Am. Optical 

Corp ., 988 S. W. 2d 711, 713 (Tex . 1998) 

(orig. proceeding) (per curiam) . The Texas 

Supreme Court has repeatedly admonishe d 

that discovery may not be used as a fishin g 

expedition . K Mart Corp. v. Sanderson, 93 7 

S. W.2d 429, 431 (Tex. 1996) (orig. proceeding) 

(per curiam) ; Dillard Dep't Stores, Inc . 

v . Hall, 909 S. W 2d 491, 492 (Tex. 1995) 

(orig. proceeding) (per curiam) ; Texaco, 

Inc., 8985. W 2d at 815 . 

The scope of discovery is a matter of 

trial-court discretion . In re CSX Corp ., 124 

S. 1473d at 152 . However, a trial cour t 

abuses its discretion when it compels overl y 

broad discovery. In re Graco Children's 

Prods., Inc., 210 S.IV.3d 598, 600 (Tex . 

2006) (orig. proceeding) (per curiam) ; Dillard 

Dep't Stores, Inc., 909 S. TTj 2d at 492 . 

[*20] "A central question in determinin g 

overbreadth is whether the request could 

have been more narrowly tailored to avoi d 

including tenuous information and still obtain 

the necessary information." In re CSX 

Corp., 124 S.W.3d at 153 . Overbroad re - 

quests encompass time periods or activitie s 

beyond those at issue in the case--in other

2009 Tex, App . LEXIS 8112, * 

Page 9 

words, matters of questionable relevance . In 

re Alford Chevrolet-Geo, 997 S. ITT 2d 173 , 

180 n.l (Tex. 1999) (orig. proceeding) . 

The McCoys sought five years' worth of 

financial information from the relators . The 

trial court nar rowed the scope of discover y 

to two years' worth. But we do not believ e 

the trial court sufficiently narrowed the 

scope of production because only the relators' 

current 9 net worth is relevant . See In 

re Horse of Yahweh, 266 S. W 3d at 673 

(holding trial court erred in failing to limit 

discovery to relators' current balance sheet s 

because earlier balance sheets would not b e 

relevant to relators' current net worth). r o 

Therefore, we conclude the trial court 

abused its discretion by ordering the relators 

to produce net-worth information beyond 

the relators' current net worth . See In 

re Allstate County Mut. Ins. Co., 22 7 

S. ITT 3d 667, 669 (Tex. 2007) [*21] (orig , 

proceeding) (per curiam) {holding tria l 

court's order was abuse of discretion be - 

cause it did not limit discovery request s 

which were overbroad as to time and 

scope) . Moreover, the relators do not hav e 

an adequate remedy by appeal from the 

production of their net worth from previou s 

years . See In re Weekley Homes, L.P., No. 

08-0836, 2009 Tex. LEXIS 630, 2009 WL 

2666774, at *11 (Tex. Aug. 28, 2009) (orig . 

proceeding) ("lnstrusive discovery measures 

. . . require at a minimum, that the 

benefits of the discovery measure outweig h 

the burden imposed upon the discovered 

party.") ; In re CSX Corp., 124 S W 3d a t 

153 (holding relator lacked adequate remedy 

by appeal where discovery order compelled 

production of "patently irrelevant " 

documents) ; Tilton v. Marshall, 925 S. W 2d 

672, 683 (Tex. 1996) (orig. proceeding) (op . 

on reh'g) ("'[whhere . . . discovery order imposes 

a burden on the producing party fa r 

out of proportion to any benefit that ma y 

obtain to the requesting party,' mandamus 

relief may be justified) (quoting Walker, 

827 S. ITT 2d at 843) . 

9 By "current," we mean as of th e 

time the discovery is responded to , 

though net-worth information shoul d 

be updated through supplementation- - 

as should the information [*22] in 

any discovery response--if it change s 

materially between the service of the 

discovery response and the time of 

trial . See Tex. R. Civ. P. 193 .5(a) . 

10 Other courts have similarly hel d 

only current financial information i s 

relevant to a punitive damages claim . 

See, e.g., Hightower- v. Heritage Acad. 

of Tulsa, Inc., 2008 US. Dist. LEXIS 

57078, 2008 WL 2937227, at *1 (N.D. 

Okla. July 29, 2008) (limiting discovery 

of financial information to defendant's 

balance sheet for 2008 and net 

worth for 2008) ; tI/IcCioud v. Board of 

County Comm'rs, 2008 US. Dist. 

LEXIS 30024, 2008 WL 1743444, a t 

*4 (D. Kan. Apr. 11, 2008) (limiting 

production of defendant's financial information 

to most recent annual re - 

ports and current financial statements) 

; Platcher- v. Health Prof'ls , 

Ltd., 2007 U.S. Dist. LEXIS 68838, 

2007 WL 2772855, at *3 (C.D. Ill . 

Sept. 18, 2007) ("Only Defendants ' 

current assets and liabilities are relevant 

to the punitive damages clai m 

against them, . . .") ; .Fieldturf Intl 

Group, Inc. v. Triexe Mgmt. Group , 

Inc., 2004 US. Dist. LEXIS 6676, 

2004 WL 866494, at *3 (N.D. Ill. Apr. 

16, 2004) ("Plaintiffs' request for non-

2009 Tex. App . LEXIS 8112, 

Page 1 0 

D 

current financial information is irrelevant 

to punitive damages determination 

.") . 

The relators also complain about th e 

trial court's order requiring Dr. Jacobs and 

Dr. Gunn to answer questions [*23] abou t 

their net worth at their depositions . Allowing 

such inquiries without any limitations a s 

to time or subject matter, the relators argue , 

is overly broad and burdensome . See In re 

Alford Chevrolet-Geo, 997 S. W 2d at 18 0 

n.1 (explaining overbroad requests encompass 

time periods or activities beyond thos e 

at issue in case, i.e ., matters of questionabl e 

relevance). Further, the relators contend 

that answering deposition questions abou t 

information they already have provided i n 

written discovery responses would be unnecessarily 

cumulative . We address this issue 

by observing that we are concerned no t 

only with determining the appropriate scop e 

of discovery of the relators' net worth under 

Lunsford, but also with employing the mos t 

efficient and least intrusive methods b y 

which to permit the McCoys to discover 

that information . See Tex. R. Civ. P. 192 

cmt. 1 (explaining scope of discovery i s 

confined by subject matter of case and reasonable 

expectations of obtaining information 

that will aid resolution of dispute) ; In 

re Weekley Homes, L .P., 2009 Tex. LEM 

630, 2009 l'T'L 2666774, at *9 ("[T]rial 

courts should be mindful of protecting sensitive 

information and utilize the least intrusive 

means necessary to [*24] facilitate 

discovery .") . 

Allowing litigants to delve without limi - 

tation into personal finances not only raise s 

serious privacy concerns, but also provide s 

an opportunity for "needless abuse and harrassment." 

Wal-Mart Stores, Inc . v. Alexander, 

868 S. W.2d 322, 331-32 (Tex . 1993) 

(Gonzalez, J., concurring) . In light of thes e 

concerns, we believe it is appropriate t o 

limit the scope of oral-deposition inquiry 

into net worth . See Axelson, Inc. v. Malhalo), 

798 S. W.2d 550, 553 (Tex. 1990) 

(orig. proceeding) (explaining scope of discovery 

is limited by legitimate interests of a 

party to avoid overly broad requests, harassment, 

or disclosure of privileged information) 

. Accordingly, with respect to networth 

discovery during the oral deposition s 

of Dr. Jacobs and Dr. Gunn, the McCoy s 

are limited to asking each physician to state 

(1) his or her current net worth, i.e., the 

amount of current total assets less curren t 

total liabilities determined in accordanc e 

with generally accepted accounting principles 

("GAAP"), t 1 and (2) the facts and 

methods used to calculate what each physician 

alleges is his or her current net worth . 

Any questioning beyond these two narro w 

inquiries shall be allowed only [*25] upo n 

leave of the trial court after a showing that 

the McCoys have reason to believe that th e 

information provided was incomplete or 

inaccurate . See In re Prudential, 14 8 

S. W.3d at 136 (explaining mandamus is appropriate 

in exceptional cases "to giv e 

needed and helpful direction to the law that 

would otherwise prove elusive in appeal s 

from final judgments") . And to the extent 

more specific limitations are appropriate , 

such as on the amount of on-the-recor d 

deposition time that may be devoted to 

questioning about net worth, we leave that 

to the sound discretion of the trial court . 

11 Although section 41.011 provides 

that the fact finder shall consider evidence, 

if any, of the defendant's "net

2009 Tex . App. LEXIS 8112, * 

Page 1 1 

worth," the statute does not defin e 

that term . Tex. Civ. Prac. & Rein . 

Code Ann. 41.011(a)(6) ; see als o 

Lunsford, 746 S. W.2d at 475 (Gonzalez, 

J ., dissenting) (criticizin g 

court's failure to define "net worth') . 

The parties have not cited, and we 

have not found, any cases defining th e 

term "net worth " in connection with 

the recovery of punitive damages . 

However, "net worth," as used to as - 

certain the amount of security required 

to suspend a judgment pending 

appeal, has been defined as the difference 

[*26] between total assets an d 

liabilities determined in accordanc e 

with GAAP . See Rarnco Oil & Gas, 

Ltd. v. Anglo-Dutch (Tenge) L.L.C . , 

171 S 1 T . 3d 905, 914 (Tex. App.-- 

Houston [14th Dist.] 2005, no pet.) 

(defining "net worth " as difference 

between total assets and liabilities determined 

in accordance with GAAP 

after thorough discussion of numerou s 

authorities) ; see also Black's Law 

Dictionary 1041 (6th ed. 1990) (defining 

net worth as "the amount b y 

which assets exceed liabilities") . 

E 

Finally, the relators assert the trial court 

abused its discretion by ordering them to 

create and produce affidavits in a format o f 

what would have been provided to a lender 

as to their respective net worth . The trial 

court ordered the relators to produce "the 

actual financial statements they have provided 

to a lender within the past two-years . " 

Alternatively, the trial court directed the 

relators, if they had not submitted any such 

financial statements to a lender within the 

preceding two years, to produce (1) an affidavit 

swearing that no such financial state - 

meat has been submitted, and (2) an affidavit 

in the form of what would have been 

provided to a lender as to net worth . It is 

well-settled that a party ['''27] cannot b e 

forced to create documents that do not exist 

for the sole purpose of complying with a 

request for production . 12 Therefore, the relators 

are not required to create affidavits i n 

a format of what would have been provided 

to a lender to comply with the McCoys' re - 

quest for production. Instead, the relators 

are required to produce in response to th e 

McCoys' requests for production only 

documents that already exist. In keeping 

with our above-holding, any such information 

is limited to the relators' respective current 

net worth, as well as whatever othe r 

limitations the trial court has set forth or 

may yet impose . 

III 

12 See In re Guzman, 19 S. W 3d 

522, 525 (Tex. App.--Corpus Christi 

2000, orig. proceeding) ; Smith v. 

O'Neal, 850 S. l'.2a' 797, 799 (Tex. 

App.--Houston [14th Dist.] 1993, no 

writ) ; see also In re Colonial Pipelin e 

Co., 968 S. W:2d at 942 (quoting 

McKinney v. Nat'l Union Fire Ins . 

Co., 772 S. W.2d 72, 73 n.2 (Tex . 

1989) (op, on reh'g)) ("'[T]his rule 

cannot be used to force a party to 

make lists or reduce information t o 

tangible form."') . 

13 The relators do not complai n 

about the order in so far as it require s 

them to produce an affidavit swearing 

that no such documents had [*28 ] 

been submitted to a lender in the preceding 

two years . 

We deny the relators' petition with regard 

to their assertions that the McCoys are

2009 Tex . App . LEXIS 8112 , 

Page 1 2 

precluded from seeking discovery of information 

of any net worth because Texas law 

requires a claimant first to make a prim a 

facie showing of entitlement to punitiv e 

damages and the McCoys have not pleade d 

sufficient allegations of conduct entitling 

them to punitive damages . 

We conditionally grant the relators' petition 

with regard to the trial court's order o f 

January 23, 2009, requiring the relators to 

produce net-worth information for the pas t 

two years . The relators are required to pro - 

duce only current net-worth information . 

Further, the relators are not required to create 

affidavits in a format of what would 

have been provided to a lender, but are required 

only to produce documents in response 

to the McCoys' request for production 

that already exist. The trial court is directed 

to modify that portion of its orde r 

accordingly . 

We further conditionally grant the relators' 

petition with regard to the trial court' s 

order of January 30, 2009, permitting th e 

questioning of Dr. Jacobs and Dr. Gunn. 

about their respective current net worth . 

Specifically, ['''29] the McCoys are limite d 

to asking each physician to (1) state his o r 

her current net worth, i .e., the amount of 

current total assets less current total liabilities, 

and (2) the facts and methods used t o 

calculate what each physician alleges is his 

or her current net worth . Moreover, any 

questioning beyond these two narrow inquiries 

shall be allowed only upon leave o f 

the trial court after a showing that the 

McCoys have reason to believe that the information 

provided was incomplete or inaccurate. 

The trial court is directed to modify 

that portion of its order accordingly, and is 

free to otherwise impose whatever other 

limitations it determines, in its discretion, t o 

be appropriate . 

We lift our stays issued on February 4 , 

2009, and March 6, 2009. The writ will issue 

only if the trial courrt fails to act in accordance 

with this opinion . 

Is/ Jeffrey V. Brown 

Justice 

CONCUR BY : Kent C. Sullivan 

CONCUR 

CONCURRING OPINIO N 

The Court today reaches a result consistent 

with the current state of Texas law . I 

write separately only to note that the curren t 

Texas rule on net-worth discovery is no w 

decades-old and, in light of the evolution o f 

Texas law, needs to be revisited . The instant 

case illustrates how it contributes 

['i'30] to unnecessary "satellite litigation " 

unrelated to the merits of the case and often 

produces expense and burden far exceedin g 

any potential benefit . 

A brief review of the history of this dispute 

is illustrative . It is noteworthy that the 

medical incident made the basis of this law - 

suit occurred in September 2004 . Five years 

later this legal dispute remains unresolved - 

- even at the trial-court level . 

The specific controversy over net-worth 

discovery is fast approaching its second anniversary 

and has continued largely unabated. 

It began with an exhaustive reques t 

for financial records covering a multi-year 

period. Those discovery requests inevitably 

produced -- over many months -- a flood of 

objections, hours of court hearings, multipl e 

court orders, and the current mandamus

2009 Tex. App . LEX1S 8112, '' 

Page 1 3 

proceeding with multiple appellate briefs 

from each side. The cost to the parties has 

no doubt been significant. The level of 

chaos in this case -- a tort case with themes 

common to many such disputes --- has give n 

me pause, with a belief that some assessment 

is in order as to the efficacy of thi s 

process as well as the relative value of th e 

discovery in question . 

A. The Role of Net-Worth Discover), 

Resolving Material [''3I] Case Issues 

Under the Rules, a trial judge shoul d 

limit discovery for which the burden or expense 

outweighs the likely benefit . Tex. R . 

Civ. P. 192.4(b) . In weighing these factors , 

courts are to consider, among other things , 

the importance of the proposed discovery in 

resolving the material issues of the lawsuit . 

See id. 

As a general rule, evidence of a party' s 

wealth is irrelevant and prejudicial . See 

Carter v. Exxon Corp., 842 S. W 2d 393 , 

399 (Tex. App.--Eastland 1992, writ denied) 

. Consequently, it is almost always inadmissible 

at trial . See Cooke v. Dykstra, 

800 S. TT'. 2d 556, 562 (Tex. App.--Housto n 

[14th Dist.] 1990, no writ) ; Carter, 842 

S. W:2d at 399 . 

In Lunsford v. Morris, however, th e 

Texas Supreme Court carved out a narro w 

exception to the general rule of inadmissibility, 

allowing parties to discover and introduce 

evidence of a defendant's net worth 

in cases in which punitive or exemplary 

damages could be awarded . 746 S. W.2d 

471, 473 (Tex . 1988) (orig. proceeding) , 

disapproved of on other grounds by Walker 

v. Packer, 827 S. TT'.2d 833, 842 (Tex. 1992) 

(orig. proceeding) . However, Lunsford 

properly should be considered in its historical 

context . 

Specifically, in 1981, the Texas Supreme 

[*32] Court decided to re-visit th e 

standard of review used in reviewing jury 

awards of punitive damages . See Burk Royalty 

Co. v. Walls, 616 S. YTT.2d 911, 92 0 

(Tex. 1981) . Under the prior standard, a defendant 

could successfully challenge a punitive-damages 

award on appeal simply by 

pointing to any evidence suggesting he exercised 

some care. See id. at 921 . However, 

the Court chose to depart from that standard 

because it was seen as creating a virtually 

impossible hurdle to the recovery of punitive 

damages "since anything may amoun t 

to some care." Id. In its place, the Court 

substituted a no-evidence standard of review 

that effectively "gave the jury greate r 

discretion to award punitive damages .'" 

1 Patricia F . Miller, Comment, 2003 

Texas House Bill 4: Unanimous E-- 

emplafy Damage Awards and Texas 

Civil Jury Instructions . 37 St. Mary's 

L.J. 515, 529 (2006) (citations omitted) 

; see Burk, 616 S. W.2d at 922 . 

In addition, the Burk Court authorize d 

plaintiffs to prove "gross negligence," the 

standard for imposing punitive damages , 

merely by constructive notice of the defendant's 

subjective state of mind . See Burk, 

616 S. TIT 2d at 922 . Four years later, the 

Court re-affirmed that holding and also expanded 

[''`33] the definition of "gross negligence" 

to give plaintiffs additional methods 

to prove a defendant's culpability for 

exemplary damages : 

[T]he test for gross negligence 

is both an objective and a subjective 

test. A plaintiff ma y 

prove a defendant's gross negligence 

by proving that the de-

2009 Tex. App. LEXIS 8112, ,, - 

Page 1 4 

fendant had actual subjective 

knowledge that his conduct created 

an extreme degree of risk . 

In addition, a plaintiff may objectively 

prove a defendant' s 

gross negligence by proving that 

under the surrounding circumstances 

a reasonable perso n 

would have realized that hi s 

conduct created an extreme degree 

of risk to the safety of others 

. 

Williams v. Sieves Indus., Inc., 699 S. W 2d 

570, 573 (Tex. 1985) (emphasis added), superseded 

by statute as recognized by 

Transp . Ins . Co. v. Moriel, 879 S. Ẇ 2d 10 , 

20 n.11 (Tex. 1994) . 

In 1987, the Texas Legislature began t o 

scale back the availability of punitive damages 

by enacting Chapter 41 of the Texas 

Civil Practice and Remedies Code . 2 However, 

while the original version of Chapte r 

41 introduced basic limitations to the recovery 

of punitive damages, 3 the protections 

it extended to defendants pale in comparison 

with those found in the version currently 

in effect. `' Lunsford [*34] was decided 

the following year but, apart from a 

brief mention in one of the dissenting opinions, 

ignores any discussion of the 1987 reforms 

or their effect on the Court's expansive 

exemplary-damage decisions from earlier 

that decade . See Lunsford, 746 S . W 2d 

at 476 (Gonzalez, J., dissenting) . 

2 See Act of June 3, 1987, 70th Leg . , 

1st C.S ., ch. 2, § 2 .12, 1987 Tex . Gen . 

Laws 37, 44 (amended 1995 & 2003 ) 

(current version at Tex. Civ. Prat & 

Rein. Code Ann. §' 41.001-.01 3 

(Vernon 2008 & Supp . 2009)) . 

3 For example, the tort-reform legislation 

included a basic cap on exemplary 

damages . See Act of June 3 , 

1987, 70th Leg ., 1st C.S ., ch. 2, § 

2 .12 sec. 41 .007, 1987 Tex . Gen . 

Laws 37, 46 (amended 1995 & 2003) . 

In addition, the legislature effectivel y 

abrogated the purely objective metho d 

of proving gross negligence . See 

Transp. Ins. Co . v. Moriel, 87 9 

S. W, 2d 10, 201?.]] (Tex. 1994) . However, 

because this narrower definition 

of "gross negligence" applied only t o 

products-liability cases and certai n 

negligence actions, courts continue d 

to apply Burk Royalty and Sieves Industries 

to all other gross-negligenc e 

suits . See J . Stephen Ban-ick, Comment, 

Model and the Exemplary 

Damages Act: Texas Tag-Team *35 j 

Overhauls Punitive Damages, 3 2 

Hous. L. Rev. 1059, 1066 (1995) . 

4 See inf ra pp. 4-5 . 

In 1995, the Legislature passed mor e 

sweeping tort reform to the substantive and 

procedural law governing punitive damages 

. See Act of April 11, 1995, 74th Leg . , 

R.S ., ch. 19, § 1, 1995 Tex. Gen. Laws 108 , 

108-13 (amended 2003) (current version at 

Tex. Crv. Prac. & Rem. Code Ann . § 

41.001-.013 (Vernon 2008 & Supp. 2009)) . 

Chapter 41 was significantly rewritten t o 

provide defendants dramatic protection 

from punitive-damage awards, including : 

. Juries could no longer award 

exemplary damages intended 

solely to serve "as an exampl e 

to others," but were instead limited 

to assessing damages with

2009 Tex . App. LEXIS 8112, * 

Page 1 5 

the purpose of punishing the defendant 

. 

. The Legislature dramatically 

expanded Chapter 41' s 

coverage to apply to all but a 

very few types of tort actions . 

. A plaintiffs burden o f 

proof for punitive damages wa s 

elevated to require proof of al l 

elements by clear and convincing 

evidence . 

. With few limitations, a defendant 

could no longer be ex - 

posed to punitive damages because 

of another person's criminal 

act . 

. The Legislature lowered 

the existing cap on punitive 

damages . 

. Upon a defendant's motion , 

the trial court had [*36] to bifurcate 

the jury's determinatio n 

of the amount of punitive damages, 

and evidence of a defendant's 

net worth could not b e 

admitted during the liability 

phase of the trial . 

Id. These substantive and procedura l 

amendments changed the legal landscap e 

on two levels . First, they further limited th e 

amount of punitive damages that could b e 

assessed . See id. § I secs. 41 .007, 41.008 . 

Second, and more significantly, these revisions 

dramatically lessened the chances o f 

any punitive-damage recovery by a claim - 

ant . See id. § 1 secs. 41.001(5), 41.002 , 

41.003 (b), 41.005 . 

In 2003, the Legislature further eroded a 

plaintiffs ability to recover punitive dam - 

ages as a part of comprehensive tort-reform 

legislation. ' Now, unlike the general rule 

permitting a civil verdict upon the vote o f 

only ten jurors, an award of punitive dam - 

ages requires a unanimous verdict as to liability 

for, and the amount of, such dam - 

ages . See Tex. Civ. Prac. & Rem. Code Ann . 

§ 41.003(d) (Vernon 2008 & Supp . 2009) ; 

Tex. R. Civ. P. 292; DeAtley v. Rodriguez, 

246 S.I'Ij3d 848, 850 (Tex. App.--Dallas 

2008, no pet.) . 

5 See Act of June 2, 2003, 78th Leg . , 

R.S ., ch. 204, §§ 13 .01- .08, 2003 Tex . 

Gen. Laws 847, 886-89 (current version 

[*37] at Tex. Civ. Prac. & Rem . 

Code Ann. §§ 41.001-.013 (Vernon 

2008 & Supp. 2009)) . 

In their brief, the McCoys acknowledge 

the dramatic shift in the law on punitiv e 

damages since Lansford, as the Legislature 

has repeatedly acted "to tightly restrict the 

ability of litigants to seek and recover exemplary 

damages ." 

G 

Thus, in the current 

legal climate, far fewer cases are likely to 

present fact issues for trial as to punitive - 

damage liability than when Ltnsford was 

decided more than two decades ago . 

7 Accordingly, 

because net-worth discovery 

may serve little practical purpose in many 

cases, trial courts performing a benefit-toburden 

analysis should consider appropriat e 

management of the scope of such discover y 

corresponding to its utility in resolvin g 

these important issues . See Tex. R. Civ. P. 

192.4(b) . 

6 See Miller, supra note 1, at 520 

("[T]he unanimity requirements mak e 

it more difficult for a plaintiff to re-

2009 Tex . App. LEXIS 8112 , 

Page 1 6 

ceive a punitive damage award from a 

Texas jury . ") . 

7 In fact, some might argue Chapter 

41, as currently constituted, impose s 

punitive-damage liability only for intentional 

torts . See Tex. Civ. Prac . & 

Rein. Code Ann. §, 41.001(7), (11) , 

41 .003(a) (authorizing exemplary 

damages only [*38] for fraud, malice , 

and gross negligence, where malic e 

requires proof of "a specific intent . . 

to cause substantial injury or harm " 

and gross negligence similarly mandates 

a showing of the defendant's (1 ) 

actual, subjective awareness of an extreme 

degree of risk and (2) consciously 

indifferent decision to proceed 

nonetheless) . 

8 Indeed, discovery into a defendant's 

net worth may consume a disproportionate 

amount of attention inasmuch 

as net worth is only one 

among several factors a jury shoul d 

consider, and not even the most important 

factor in reviewing an amoun t 

of punitive damages . See Tex. Civ . 

Prac. & Rem. Code Ann. § 41.011(a) 

(Vernon 2008) ; Owens-Corning Fiberglas 

Corp. v. Malone, 972 S. W2d 

35, 45-46 (Tex. 1998) ("[T]he degree 

of reprehensibility of the defendant's 

conduct is '[p]erhaps the most important 

indicium' of the reasonableness of 

a punitive damage award.") (quoting 

BMW of N. Am., Inc. v. Gore, 51 7 

US. 559, 575, 116 S. Ct. 1589, 134 L . 

Ed. 2d 809 (1996)) . In fact, unti l 

Lunsford, a defendant's net worth wa s 

not even listed as a factor for the jury 

to consider in awarding punitive dam - 

ages . See Lunsford, 746 S. W 2d at 

472-73; Alamo Nat'l Bank v. Kraus, 

616 S. W.2d 908, 910 (Tex. 1981) . 

Even so, a post-Lunsford [*39] jury 

may still decide on the amount of punitive 

damages without considering 

evidence of the defendant's net worth . 

See Durban v. Guajardo, 79 S. W 3d 

198, 210-11 (Tex. App .-Dallas 2002 , 

no pet.) . 

B. Burden and Expense of Net-Wort h 

Discovery 

The benefits of net-worth discovery are 

likely limited in most cases, but the direct 

and indirect costs may not be. Of course, a 

case against a publicly traded corporation 

may present little problem in this respect, a s 

its net worth should be discernible simpl y 

from the contents of a widely available annual 

report . Under that scenario, the burden 

and expense of the proposed discovery 

would be minimal . See id. 

A private individual, however, presents 

a far different profile with, at minimum, potentially 

serious issues as to privacy rights 

and availability of responsive information . 

Net-worth discovery as to an individual wil l 

almost inevitably require -- and deserve -- 

much more management and oversight b y 

the trial court . 

9 See In re Weekley Homes, 

L.P., S. W 3d , 52 Tex . Sup. Ct. J. 1231 , 

2009 Tex. LEXIS 630, 2009 WL 2666774, a t 

*4 (Tex. Aug. 28, 2009) (orig. proceeding) 

("To the extent possible, courts should be 

mindful of protecting sensitive informatio n 

and should [*40] choose the least intrusiv e 

means of retrieval . " ) . 

9 Closed corporations and closelyheld 

corporations may present similar , 

albeit somewhat less serious, issues . 

In this case, the McCoys sought audite d 

financial statements that, while invasive ,

2009 Tex, App. LEXIS 8112 , 

Page 1 7 

may at least represent one of the most accurate 

and efficient ways for indicating an individual's 

net worth, if available . 

10 However, 

they also sought countless other categories 

of documents that have been repeatedly 

held undiscoverable, such as incometax 

returns, ' or which possess only the 

most indirect and tenuous connection to net 

worth. Among this latter category of documents 

are the McCoys' requests for (1 ) 

HUD statements reflecting the sale or purchase 

of real estate; (2) "any and all con - 

tracts that you are a party to with any health 

insurance company, HMO, including Medicare 

and/or Medicaid, managed care entity , 

or hospital" ; (3) any documents reflectin g 

accounts receivable, from any time period , 

for the provision of medical care ; (4) accounts 

receivable due to the defendant' s 

"participation in any clinical drug trials , 

medical device trials, or other medica l 

product trials" for the purpose of obtainin g 

FDA approval ; and (5) all medical [*41 ] 

bills issued for an entire calendar year, presumably 

as to all of the physicians' patients , 

"touching, concerning, or dealing with" th e 

provision of medical care . 

10 See Sears, Roebuck & Co. v. Rantirez, 

824 S.W. 2d 558, 559 (Tex . 

1992) (orig. proceeding) . Of course , 

the average private individual i s 

highly unlikely to have audited financial 

statements readily available . 

11 See id. ; see also Wal-Mart Stores , 

Inc. v. Alexander, 868 S. W 2d 322, 

331 (Tex. 1993) (Gonzalez, J ., concurring) 

(surveying numerous cases precluding 

discovery into federal income-tax 

returns) . 

This sort of invasive discovery generally 

raises very serious privacy concerns, but 

that is not its only cost. It also imposes additional 

burden and expense on the parties 

and their attorneys, as well as occupying the 

limited resources of the trial court and , 

now, this appellate court . See Wal-Mart 

Stores, Inc. v. Alexander; 868 S. W. 2d 322 , 

331-32 (Tex. 1993) (Gonzalez, J ., concurring) 

(commenting on the privacy concern s 

and potential for abuse inherent in the 

"unlimited discovery . . . of sensitive, private, 

and confidential financial information") 

. 

However, this sort of discovery should 

not be unexpected given the Texas Suprem e 

[''42] Court's lengthy silence as to both the 

precise definition of "net worth" in this context 

and the proper boundaries for the discovery 

and ultimate presentation of information 

as to a defendant's net worth : 

This Court in Lunsford failed 

to define net worth and failed to 

suggest a procedure for placing 

such evidence before the jury . I 

predicted then that in the absence 

of guidance from thi s 

Court, "confusion will prevail a s 

practitioners and judges attemp t 

to ascertain the components of 

'net worth . '" Lzunsford, 746 

S. W.2d at 475 . 

Conflicting appellate court 

decisions on the meaning of the 

term "net worth" are evidence o f 

the confusion surrounding this 

fundamental issue. This confusion 

should be resolved by thi s 

Court . 

Wal-Mart, 868 S. W.2d at 330 (Gonzalez, J . , 

concurring) (citations omitted) ; see also

2009 Tex . App. LEXIS 8112 , 

Page 1 8 

Lunsford, 746 S. W.2d at 476 (Gonzalez, J . , 

dissenting) (calling for clear definition o f 

tern. "net worth" and clarity on types of 

documents relevant to calculate it . 

Here, the majority attempts to fairl y 

bridge some of this gap by offering a soli d 

definition of "net worth" as assets minus 

liabilities . See Black's Law Dictionary 104 1 

(6th ed. 1990) ; Wal-Mart, 868 S. W.2d at 

330-31 (Gonzalez, J., ['43] concurring) . 

Yet, even this pronouncement may still lea d 

to disagreements about the documents tha t 

are relevant and discoverable to calculat e 

this figure, in light of the relative lack o f 

guidance on this issue . 

Trial courts have the necessary management 

tools to control the sequence, timing, 

and scope of discovery to minimize 

burden, maximize efficiency, and protect 

privacy rights . 

12 See Tex . R. Civ. P . 166, 

192 . Still, we must acknowledge that ther e 

are literally hundreds of Texas trial-cour t 

judges -- spread over 254 counties -- wh o 

may preside over cases with claims for exemplary 

damages and, of necessity, disputes 

involving net-worth discovery . They 

each have different backgrounds, different 

approaches, and different dockets . Those 

dynamics are likely to produce a highly unpredictable 

and idiosyncratic approach to 

the management of these issues across th e 

state -- and history shows us that these are 

issues that regularly recur. l believe partie s 

to litigation in Texas are entitled to greater 

clarity and predictability from our courts . 

Accordingly, I would urge that Lunsford be 

revisited and updated . 

12 For example, in appropriat e 

cases, some trial courts use a docketcontrol 

order [*441 to schedule and 

hear summary-judgment motions o n 

predicate exemplary-damage issues in 

advance of allowing pre-trial discovery 

on net worth. This approach coul d 

limit discovery disputes and the potential 

cost of compliance to only 

what is necessarily justified by the 

facts and claims of the case . Similarly, 

trial courts may wish in certain 

cases to allow only the threshold discovery 

of net-worth amounts by wa y 

of limited disclosure at one stage o f 

pre-trial, and delay discovery as t o 

underlying facts or methods of calculation 

of those amounts -- potentiall y 

much more invasive and complicate d 

-- until a later point when necessary . 

1st Kent C. Sullivan 

Justice

JURISDICTIONS REQUIRINGMORETHANMERE ALLEGATIONS TODISCOVERNETWORTHINFORMATION 

CASE OR STATUTE 

Estate of Despairs v. Avante Group, 

Inc., 900 So. 2d 637 (Fla . App . 2005) 

YWCA of Oklahoma City v. Melson, 

944 P.2d 304, 311 (Okla. 1997) 

Montgomery Ward Stores v. Wilson , 

647 A .2d 1218 (Md. 1994) 

Hefter v. Eighth Judicial Dist. Court 

of State In and for County of Clark , 

874 P.2d 762 (Nev. 1994) 

Palnrisano ►. Toth, 624 A.2d 314, 32 0 

(R.l . 1993) 

Patrick v. Ronald Williams, 

Professional Ass'n, 402 S.E.2d 45 2 

(N.C. 1991) 

Hanners v. Balfour Guthrie, Inc., 589 

Sold 684 (Ala . 1991) 

REQUIREMENT 

Although punitive damages pleading statute is procedural in nature, it also provides a 

substantive right to parties not to be subjected to a punitive damages claim and attendan t 

discovery of financial worth until the requisite showing under the statute has been made t o 

the trial court . 

Plaintiff's pretrial request for financial information from defendant, to be used in punitivedamages 

phase of trial, should be decided in adversary hearing to consider defendant' s 

request for protection based on legitimate claim to privacy balanced against plaintiff's right 

to prepare for trial and avoid delay in evidentiary process . 

Defendant's liability for punitive damages must be determined by the trier of fact before hi s 

wealth or financial condition may be discovered . 

Party to suit can discover opposing party's financial condition relative to a punitive damage s 

claim upon a showing of a factual basis for the claim . 

Explaining that to require a plaintiff to make a prima facie showing that a viable issue exist s 

for awarding punitive damages is a moderate and the most fair avenue for providing a 

plaintiff with the opportunity to discover relevant information while protecting a defendant's 

right to privacy . 

Legal malpractice plaintiffs would be allowed to discover the net worth of the defendant la w 

firm, where a forecast of evidence, which revealed a succession of negligent acts i n 

handling an underlying personal injury claim, would support the submission of a punitiv e 

damages claim to the jury . 

Evidence of defendant's wealth, for purpose of proving amount of punitive damages tha t 

should be assessed, is inadmissible during liability phase of trial . Accordingly, in frau d 

action, trial court did not abuse its discretion in limiting plaintiffs discovery with respect to


REQUIREMEN T 

interrogatories seeking information relating to defendant's financial status . 

Hudak v. Fox, 521 A.2d 889 (N.J . 

1987) 

Mutual Lift his. Co. I. Estate of 

Wesson, 517 So.2d 521 (Miss . 1987) 

State ex rel. Fitzgerald v. District 

Court of Eighth Judicial Dist., 703 

P.2d 148 (Mont. 1985) 

Larriva v. Montiel, 691 P_2d 735 (Ariz . 

App. 1984) 

Cantpen v. Stone, 635 P.2d 112 1 

(Wyo . 1981) 

Leidholt v. District Court of Denver, 

619 P .2d 768 (Colo . 1980) 

Rupert v. Sellers, 368 N .Y .S2d 904 

(N .Y . App. Div. 2d 1975) 

CAL. CIV. CODE § 3295(a)(1), (2) (West 

Supp. 1993) 

COLO. REV . STAT. ("C.R .S .") § 13-21- 

There must be prima fade proof of a defendant's liability for punitive damages before hi s 


There must be prima facie proof of a defendant's liability for punitive damages before hi s 






A plaintiff may seek pretrial discovery of a defendant's wealth where the plaintiff claims i n 

his or her complaint a right to punitive damages ; the defendant may move for a protective 

order requiring the plaintiff to make a prima facie showing to the trial court that a viabl e 

issue exists for punitive damages, but upon such a showing, pretrial discovery Is allowed . 

In medical malpractice action against surgeon, mere allegation that a plaintiff was entitled to 

punitive damages would not support order for discovery of surgeon's financial condition ; 

prima facie proof of a triable issue on liability for punitive damages is necessary first . 

Not until a plaintiff obtains a special verdict that he is entitled to punitive damages is i t 

necessary or important for him to know a defendant's wealth . 

Permitting a party to request a protective order requiring that a prima facie case for 

exemplary damages be established before any of its financial information is disclosed . 

"After the plaintiff establishes the existence of a triable issue of exemplary damages, th e 

court may, in its discretion, allow additional discovery on the issue of exemplary damages


REQUIREMENT 

102(1)(a) (2005) as the court deems appropriate ." 

FLA. STAT. ANN. § 768 .72(1) 

2003) 

(West 

Requiring plaintiff to demonstrate a reasonable basis for the claim . 

IOWA CODE ANN . 

2002) 

§ 668A.1(3) (Wes t 

"The mere allegation or assertion of a claim for punitive damages shall not form the basis 

for discovery of the wealth or ability to respond in damages on behalf of the party fro m 

whom punitive damages are claimed . . . ." 

MD. CTS. & JUD. PRO. § 10-913 

2003 OR. LAWS 552(3)(a) (amendin g 

OR . REv . STAT. § 18 .535(3)) 

S .D. Codified Laws § 21-14 .1 (2009) 

Clc'nrerrt v. Mountain States Logistics, 

2006 U.S . Dist. LEXIS 95650 at * 7 

(D.N.M. Aug. 28, 2006) (mem . Op .) 

BMW of N. Arm v. Gore, 517 U.S . 559 , 

562 (U .S. 559, 562 (U .S. 1996) 

Wilson v. Gillis Advertising Co ., 145 

F .R.D. 578 (N .D. Ala. 1993) 

Prohibiting discovery of a defendant's financial status in an action seeking punitive damage s 

for personal injuries absent both a finding of liability and a basis for punitive damages . 

Requiring plaintiff to demonstrate likely survival of a direct verdict . 

"In any claim alleging punitive or exemplary damages, before any discovery relating theret o 

may be commenced and before any such claim may be submitted to the finder of fact, the 

court shall find, after a hearing and based upon clear and convincing evidence, that there is a 

reasonable basis to believe that there has been willful, wanton or malicious conduct on the 

part of the party claimed against ." 

Applying federal procedural law, to discover financial information, plaintiffs must sho w 

their claim for punitive damages is "not spurious ." 

"The Due Process Clause of the Fourteenth Amendment prohibits a State from imposing a 

'grossly excessive' punishment on a tortfeasor ." 

Evidence of defendant's financial condition was discoverable only after determination b y 

jury of liability for punitive damages . 

lllid Continent Cabinetry, Inc. n Explaining that that to require a plaintiff to make a prima facie showing that a viable issue


George Koch Sons, Inc., 130 F.R.D . 

149 (D. Kan . 1990) 

REQUIREMEN T 

exists for awarding punitive damages is a moderate and the most fair avenue for providing a 

plaintiff with the opportunity to discover relevant info! nation while protecting a defendant' s 

right to privacy. 

32 A.L.R.4 `1' 432 (2008) James McLoughlin, Annotation, Necessity of Determination or Showing of Liability fo r 

Punitive Damages Before Discovery or Reception of Evidence of Defendant 's Wealth

CHRONOLOGYOFLEGISLATURE'SANDCOURT'S CHANGESTO RECOVERY ANDAVAILABILITYOF 

PUNITIVEDAMAGES SINCECIRCA1988 

DATE CASE NAME OR STATUTE CHANGE 

1987 Act of June 3, 1987, 70th Leg., 1st C.S., eh. 2, § 

2.12, 1987 Tex. Gen. Laws 37, 44 (amended 1995 

& 2003) (current version at TEx. Crv . PRAc . & 

REM. CODE ANN . §§ 41 .001-.013 (Vernon 2008 & 

Supp. 2009)) 

1988 Lunsford v. Morris, 746 S.W2d 471, 473 (Tex . 

1998) (orig. proceeding) 

1994 Tran p. Ins. Co. v. Moriel, 879 S .W .2d 10 (Tex . 

1994) 

1995 Act of April 11, 1995, 74th Leg ., R .S., ch. 19, § 1 , 

1995 Tex. Gen. Laws 108, 108-13 (amended 2003 ) 

(current version at TEx. Ctv . PRAC. & REM . COD E 

ANN . §§ 41 .001-.013 (Vernon 2008 & Supp. 2009)) 

Legislature begins to scale back availability of punitiv e 

damages by enacting Chapter 41 of Texas Civil Practice 

and Remedies Code, introducing basic limitations to th e 

recovery of punitive damages . 

For the first time, Court allows parties to discover and 

introduce evidence of a defendant's net worth in cases i n 

which punitive or exemplary damages could be awarded . 

Court establishes bifurcated trial procedure for trials 

involving punitive damages claims because of the "very 

real potential" that evidence of a defendant's wealth wil l 

prejudice the jury's determination of other issues . 

Legislature passes more sweeping tort reform to th e 

substantive and procedural law governing punitive 

damages. 

Chapter 41 significantly rewritten to provid e 

defendants dramatic protection from punitive-damag e 

awards, including : 

(a) 

(b) 

Juries could no longer award exemplary 

damages intended solely to serve "as an 

example to others," but were instead 

limited to assessing damages with the 

purpose of punishing the defendant ; 

Legislature dramatically expanded Chapter

DATE CASE NAME OR STATUTE CHANG E 

41's coverage to apply to all but a very few 

types of tort actions ; 

(c) Plaintiffs burden of proof for punitive 

damages was elevated to require proof of 

all elements by "clear and convincing " 

evidence ; 

(d) With few limitations, Defendant could no 

longer be exposed to punitive damage s 

because of another person's criminal act ; 

(e) Legislature lowered existing cap on 

punitive damages ; 

(f) On defendant's motion, trial court had to 

bifurcate jury's determination of the 

amount of punitive damages, and evidence 

of defendant's net worth could not b e 

admitted during the liability phase of th e 

trial ; 

(g) These substantive and procedura l 

amendments further limited the amount of 

punitive damages that could be assesse d 

and significantly reduced chances of an y 

punitive-damage recovery . 

1996 BMW of N. Am. v. Gore, 517 U.S. 559, 562 (U.S . "The Due Process Clause of the Fourteenth Amendmen t 

1996) prohibits a State from imposing a 'grossly excessive ' 

punishment on a tortfeasor . " 

2003 State Farm Mut. Auto Inc. Co. v. Campbell, 538 State cannot impose punitive damages for unlawful act s 

U.S. 408, 422 (U .S . 2003) committed outside of the state's jurisdiction . 

2003 TEx . Civ . PRAC . & REM. CODE ANN . § 41 .003(d) 

(Vernon 2008 & Supp . 2009) ; TEx. R. Civ. P. 292 ; 

Through House Bill 4, Legislature further erodes 

claimant's ability to recover punitive damages as a part of

DATE CASE NAME OR STATUTE CHANG E 

see Act of June 2, 2003, 78th Leg., R.S., ch. 204 , 

§§ 13.01-.08, 2003 Tex. Gen. Laws 847, 886-8 9 

(current version at TEx . CN . PRAC. & REM . COD E 

ANN. § 41 .001-.013 (Vernon 2008 & Supp . 2009)) 

comprehensive tort reform legislation, by requiring an 

award of punitive damages be based on unanimous verdict 

as to liability for, and the amount of, such damages .

Petition for Writ of Mandamus - Filed - Supreme Court of Texas

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