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In re Wharton6/15/2005
George Wharton seeks mandamus relief compelling Respondent, the Honorable John E. Neill, Judge of the 18th District Court of Johnson County, to withdraw a discovery order requiring Wharton to disclose personal financial records and expert reports he had prepared for other cases. Because the party seeking discovery failed to present evidence to Respondent raising the possibility that Wharton is biased, we will conditionally grant the requested writ.
This mandamus proceeding arises from a personal injury suit. The defendant retained Wharton as an expert witness to evaluate the plaintiffs' injuries. An intervenor in the lawsuit, Jerry Johnson, served Wharton with a deposition notice and subpoena duces tecum requiring him to produce, among other things:
1. All 1099's received for expert work for tax years 1999, 2000, 2001, 2002, 2003.
2. All documents showing [payment] for opinions rendered or documents reviewed for Clayton Devin or any attorneys at McCauley, MacDonald, Devin & Huddleston.
3. All reports written from November 25, 2002 to present by George Wharton or Orthopedic Rehabilitation Associates.
4. All reports written from November 25, 2002 to present by George Wharton or Orthopedic Rehabilitation Associates but not as a purely consulting expert.
6. Schedule 1040C from George Wharton's tax return for tax years 1999 to 2003, regarding his expert work.
8. Any reports from January 1, 1994 to the present prepared by George Wharton indicating medical treatment or surgery was needed as provided.
9. Any reports from January 1, 1994 to the present prepared by George Wharton without any criticisms of the care provided.
15. The tax return for tax years 1999 to 2004 for Orthopedic Rehabilitation Associates.
Wharton filed a written objection to these discovery requests contending that: (1) the request for correspondence between himself and the attorneys at the firm identified in item no. 2 should be denied because such correspondence is irrelevant to the present suit; (2) the request for financial records should be denied in accordance with the Supreme Court's decision in Russell v. Young, 452 S.W.2d 434 (Tex. 1970) (orig. proceeding); and (3) the request for prior expert reports should be denied because such reports are irrelevant to the present suit and because the request is overly burdensome.
After a hearing, Respondent denied Wharton's objections and ordered him to produce the requested items. In lieu of producing the requested tax documents though, Respondent ordered that Wharton could provide "a sworn statement . . . detailing income received by [Wharton and/or Orthopedic Rehabilitation Associates] resulting from expert work, either as a testifying expert or a consulting expert, from January 1, 2002 through present."
Wharton contends that the documents sought are not presently discoverable to show bias on his part because his credibility has not been put at issue by extrinsic evidence. Johnson responds that Wharton's credibility is sufficiently at issue because: (1) there are contradictions between Wharton's deposition testimony in the underlying suit and his deposition testimony in a similar suit regarding the amount of his annual compensation for expert testimony and the number of cases he has handled as an expert witness; and (2) Wharton testified that he has found plaintiffs to have secondary gain in fifty percent of the cases referred to him by defense attorneys while having found secondary gain in only one-two percent of cases referred to him by plaintiff's attorneys.
Mandamus relief is appropriate only if the trial co
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