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Click here for the full text of this decision FACTS:This mandamus proceeding arises from a personal injury suit. The defendant retained George 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 documents including correspondence between Wharton and attorneys, financial records and expert reports. 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 50 percent of the cases referred to him by defense attorneys while having found secondary gain in only 1-to-2 percent of cases referred to him by plaintiff’s attorneys. HOLDING:Conditionally granted. In Russell v. Young, 452 S.W.2d 434 (Tex. 1970) (orig. proceeding), the court held that a party may not obtain pretrial discovery of financial records from a non-party expert witness “whose credibility has not been put in issue and where the records do not relate directly to the subject matter of the pending suit and are sought to be discovered for the sole purpose of impeachment of such witness by showing his bias and prejudice.” When the Texas Supreme Court promulgated the present discovery rules, the bias of an expert witness became an issue expressly subject to discovery. Texas Rule of Civil Procedure 192.3(e)(5) provides, “A party may discover the following information regarding a testifying expert or regarding a consulting expert whose mental impressions or opinions have been reviewed by a testifying expert: . . . (5) any bias of the (witness . . . .” It has been argued that because the Supreme Court included “bias” as a discoverable issue in Rule 192.3, the Supreme Court necessarily intended to overrule Russell. The San Antonio Court of Appeals rejected this interpretation and concluded that the limitations of Russell still apply to the discovery of evidence relevant to a non-party expert’s potential bias. In re Doctor’s Hosp. of Laredo, LP, 2 S.W.3d 504 (Tex. App. � San Antonio 1999, orig. proceeding). The court agrees with the San Antonio court that Russell was not overruled by the promulgation of Rule 192.3(e)(5). Therefore, if a party seeks to obtain documents from a non-party expert for impeachment purposes, the party seeking discovery must first present evidence raising the possibility that the expert is biased. The court holds hold that there is likewise no adequate remedy by appeal for the erroneous compelling of an expert witness to disclose expert reports prepared in unrelated cases, particularly where those reports may contain or refer to the medical records of other patients. Because Johnson failed to present evidence to the respondent raising the possibility that Wharton is biased, the respondent abused his discretion by ordering Wharton to produce the documents in question. Wharton has no adequate remedy at law. OPINION:Reyna, J.; Gray, C.J., Vance and Reyna, JJ. CONCURRENCE:Gray, C.J. “What I cannot tell from the majority’s opinion is whether at the instant it is determined Wharton will be a testifying expert, all the requested documents are discoverable, or will only be discoverable if Wharton is a witness and bias is proven to the satisfaction of the trial court, or whether the discoverability is prohibited until Wharton’s credibility is made an issue by showing contradictory testimony. Thus, because I cannot tell why the majority is conditionally issuing the writ, I cannot join their opinion.”

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