Eloise Otte, James L. Otte and Carl Clayton Otte v. Shuffield Rest Home, Inc. and Jim Shuffield, D/B/A Shuffield III Nursing Home and Convalescent Center

cv5-018.otte TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN NO. 03-95-00018-CV Eloise Otte, James L. Otte and Carl Clayton Otte, Appellants v. Shuffield Rest Home, Inc. and Jim Shuffield, d/b/a Shuffield III Nursing Home and Convalescent Center, Appellees FROM THE DISTRICT COURT OF McCULLOCH COUNTY, 198TH JUDICIAL DISTRICT NO. 131-93, HONORABLE EMIL KARL PROHL, JUDGE PRESIDING PER CURIAM Eloise Otte, James L. Otte, and Carl Clayton Otte appeal from the grant of a summary judgment favoring Shuffield Rest Home, Inc. and Jim Shuffield, d/b/a Shuffield III Nursing Home and Convalescent Center (collectively, "the Home"). The judgment dismissed with prejudice the Ottes' wrongful death and survival claims against the Home resulting from the death of Arthur Lee Otte, Eloise's husband and James and Carl's father. We will reverse the judgment and remand the case for further proceedings. Arthur Otte lived at the Home for several months before his death on June 24, 1991. He suffered from a number of ailments including chronic obstructive pulmonary disease. He was admitted to the hospital on June 23, 1991 for complaints of respiratory distress including pneumonia. The next afternoon, his heirs (the appellants here) had him dismissed from the hospital against medical advice; they said they wished to employ no heroic measures to save his life. He returned to the Home and died later that day. Mrs. Otte claimed that several employees at the Home told her that he had been given several baths as part of a training exercise for new attendants. She said that she was told that he was chosen as a subject because he was docile and "couldn't fight back." She said that these baths occurred only a few days before he fell ill. Believing that these numerous baths caused Mr. Otte's final illness, Mrs. Otte and her children filed this suit. They alleged negligence and gross negligence by the Home. The Home moved for summary judgment, contending that the Ottes could not prove negligence or proximate cause. The Home relied entirely on the deposition testimony of Dr. S. Merlin McAnelly, Mr. Otte's treating physician. The Ottes responded with segments of Mrs. Otte's deposition testimony and the affidavit of non-treating nurse Frances Scholl as an expert. Mrs. Otte testified about how she learned of the baths. Nurse Scholl averred that such baths would be stressful to a person in Mr. Otte's condition; she opined that the baths and other treatment fell below the standard of acceptable medical care and treatment. The response also refers to segments of Dr. McAnelly's deposition in which he admitted that he did not see Mr. Otte in June before his final illness, confirmed that Mrs. Otte reported the extra baths, and stated that such bathing would be uncomfortable, stressful, tiring, and fatiguing to Mr. Otte. The Ottes also moved to compel production of the records pertaining to the patient, the names of Home employees during June 1991, and the certification training records for June 1991 to determine when the baths occurred. The Ottes had requested production of all records that relate to any training at the home during June 1991 and inquired about the names, addresses, and telephone numbers of all employees during June 1991. The Home objected, contending that the request was overbroad, unclear, non-specific, vague, ambiguous, unduly burdensome, a fishing expedition, and beyond the scope of permissible discovery. In response to interrogatories, the Home had stated that, though a training cycle occurred in June 1991, Mr. Otte was not involved in any training. The Home opposed the motion to compel, contending that its previous responses were appropriate. The court ordered the Home to disclose the following and denied the balance of the motion to compel: (a) . . . the date on which the alleged three baths allegedly given to Mr. Otte on one day occurred, if they occurred; and (b) . . . records, if any, that indicate that the alleged multiple baths (three in one day) were given to Mr. Otte, deceased, during the month of June, 1991, as part of any training program; and (c) . . . the names of orderlies and any other nursing home personnel that attended to Mr. Otte, deceased, during the month of June, 1991. The Home stated in response to the first two that there was no date on which three baths were given to Mr. Otte. The Home also provided the list of names, which included the name of the person, John Simmons, who Mrs. Otte stated informed her of the multiple baths. The court then granted the motion for summary judgment without specifying on which grounds it relied. By their first point of error, the Ottes contend that the trial court erred by denying their motion to compel the production of documents relating to the training of the Home's employees. The Home contends that the Ottes failed to preserve this error for appellate review by failing to present the issue to the trial court as required by Texas Rule of Civil Procedure 166a(c). Contrary to the Home's assertion, the Ottes presented this issue in their Objection to Defendants' Motion for Summary Judgment and Request for Continuance of Hearing on Summary judgment. In that document, the Ottes complained regarding the Home's failure to produce the training records; the Ottes explained that the absence of these records blocked their efforts to obtain expert testimony regarding the proximate cause of Mr. Otte's death. This document informed the court of the affect that the refused discovery had on their ability to respond to the motion for summary judgment. The Home's argument also ignores the Ottes' motion to compel production of the training documents. The appellate rules require that parties preserve their points on appeal by making a timely request, objection, or motion, stating the specific grounds for the desired ruling. Tex. R. App. P. 52(a). The Ottes' motion to compel did just that. The court knew what relief the Ottes desired and chose to deny the request in part. No further action was necessary. Unlike a trial where evidence is excluded, here we cannot require the Ottes to have offered the evidence at trial because their complaint is that they have not been allowed to obtain it. The Ottes preserved error on this exclusion. We review the limitation of discovery for an abuse of discretion. Cutler v. Gulf States Utils. Co., 361 S.W.2d 221, 224 (Tex. Civ. App.--Beaumont 1962, writ ref'd n.r.e.). A court abuses its discretion when it acts unreasonably, arbitrarily, or without reference to any guiding principles. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex. 1985), cert. denied, 476 U.S. 1159 (1986). We can reverse only for errors that were reasonably calculated to and probably did result in an improper judgment. Tex. R. App. P. 81(b)(1). The rules call for broad discovery, limited by the legitimate interests of the opposing party to avoid overly broad requests, harassment, or disclosure of privileged information. Axelson, Inc. v. McIlhany, 798 S.W.2d 550, 553 (Tex. 1990). The rule provides: Parties may obtain discovery regarding any matter which is relevant to the subject matter in the pending action . . . . It is not ground for objection that the information sought will be inadmissible at the trial if the information sought appears reasonably calculated to lead to the discovery of admissible evidence. Tex. R. Civ. P. 166b(2)(a). The tests for relevance and "reasonably calculated to lead to admissible evidence" are liberally construed to allow the litigants to obtain the fullest knowledge of the facts and issues before trial. Axelson, 798 S.W.2d at 553. The burden is on the party resisting the discovery request to plead and prove the basis of its objection. State v. Lowry, 802 S.W.2d 669, 671 (Tex. 1991); General Elec. Co. v. Salinas, 861 S.W.2d 20, 23 (Tex. App.--Corpus Christi 1993, orig. proceeding). The trial court abuses its discretion in preventing discovery when no evidence is presented substantiating an objection to the discovery. Weisel Enters., Inc. v. Curry, 718 S.W.2d 56, 58 (Tex. 1986); Salinas, 861 S.W.2d at 23. We find almost no evidence in the record bearing on the bases (overbroad, unclear, non-specific, vague, ambiguous, unduly burdensome, a fishing expedition, and beyond the scope of permissible discovery) of the Home's objections to the Ottes' request for production; the Home's interrogatory response denying Mr. Otte's involvement in training bears slightly on the burdensomeness issue. The record does not support the degree of constriction the court ordered. The court's order compelling discovery on this issue is unreasonably narrow. By limiting the required production to records that show three baths given to Mr. Otte as part of a training exercise, it may have excluded extant, relevant records. For example, the Home did not have to divulge any records showing three baths given to an unnamed patient, nor records showing two or four or more baths given to Mr. Otte. If such records exist, they might strengthen the Ottes' claim. The narrowness of the order prevented the Ottes from ascertaining whether the Home possessed records containing proof of the alleged excessive bathing. This bore directly on their ability to produce proof of negligence and indirectly on their ability to gather proof of proximate cause in response to the motion for summary judgment. The fact that the contents of undiscovered documents is unknown prevents us from doing a definite harm analysis. We can say that, if the training documents exist and hold the information the Ottes believe they do, the court's error probably led to an improper summary judgment on both the negligence and proximate cause grounds. We sustain point one. We therefore need not address point two. See Tex. R. App. P. 90(a). We reverse the judgment and remand the cause for further proceedings. Before Chief Justice Carroll, Justices Aboussie and Jones; Justice Aboussie Not Participating Reversed and Remanded Filed: August 16, 1995 Do Not Publish