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Click here for the full text of this decision FACTS:Relator Carnival Corp. seeks mandamus relief from a death penalty sanction imposed by the trial court. Carnival Corp. operates a cruise line from the Port of Galveston. In February 2002, Melody Allison, the real party in interest, joined her mother, Dorothy Mueller, on a four-day, round-trip cruise to Mexico on a Carnival ship known as the Celebration. Mueller had suffered a stroke in early 2000 that required her to wear a feeding tube, so Allison inquired with Carnival’s Special Needs Desk before the cruise to ensure that care would be available for her mother aboard the ship. Allison understood that care would be available. Carnival boarded one doctor and three nurses for the voyage. During the cruise, Mueller’s feeding tube became dislodged. According to Allison, Carnival’s medical personnel were unable or unwilling to reinsert the tube or make other treatment available. Three weeks after the cruise, medical personnel surgically reinserted the feeding tube. The surgery triggered a massive stroke, incapacitating Mueller. In December 2002, Allison sued Carnival, North Channel Travel (her travel agent), John Doe (described as “a [ship] physician whose identity is not currently known”), and Jane Doe (described as “a [ship] nurse whose identity is not currently known”). Allison alleged negligence, breach of contract, breach of warranty, deceptive trade practices and fraud. In February 2003, in response to Allison’s requests for disclosure, Carnival identified Dr. Chris Uche, of the United Kingdom, and Constance Jackson, of the United States, as the medical personnel aboard the Celebration during the relevant period. Allison added Uche and Jackson as defendants, and served Jackson with suit. In July 2003, Carnival supplemented its response with the name and address of nurse Claudia Petrescu of Romania. Allison added Petrescu as a defendant. In August 2003, Allison unsuccessfully attempted service on Uche. Allison moved for substituted service of Uche through Carnival. Carnival responded that such service would violate due process under the U.S. Constitution and the Hague Convention because Uche was an independent contractor and a British national. The trial court denied the motion. In June 2004, Allison moved for substituted service of Uche and Petrescu pursuant to the Hague Convention, letters rogatory, or through private process service. Although the trial court granted the motion, Allison never attempted such service. Rather, in March 2005, Allison noticed Uche and Petrescu for deposition through Carnival. Carnival filed a motion to quash on the grounds that these individuals were independent contractors and foreign nationals. Allison moved to compel Carnival to produce Uche and Petrescu for deposition and for death penalty sanctions upon any refusal, but the record does not reflect that the trial court ever heard and ruled upon the motion. In August 2005, Allison located Uche in Georgia and served him with suit, and Allison again noticed the deposition of Petrescu through Carnival. Carnival again moved to quash the deposition, representing that Petrescu had retired from Carnival and was living in Romania. Allison filed a supplemental response to Carnival’s motion to quash and again moved for death penalty sanctions for Carnival’s failure to produce Petrescu for deposition. The trial court granted a default judgment against Uche. In November 2005, the trial court held a hearing on Carnival’s motion to quash. Uche appeared at the hearing with his own counsel. At its conclusion, the trial court granted Allison’s motion for death penalty sanctions. HOLDING:Conditionally granted. Medical personnel, as independent contractors, are not subject to the control of the ship company. Hence, Carnival did not have a duty to compel their attendance at a deposition, and notice of deposition on Carnival’s counsel could not be imputed to either Uche or Petrescu. See Tex. R. Civ. P. 199.3. Moreover, Allison added Uche and Petrescu as co-defendants individually, entitling them to independent service of process. Discovery sanctions may not “adjudicate the merits of a party’s claims or defenses unless a party’s hindrance of the discovery process justifies a presumption that the party’s claims or defenses lack merit” or “absent a party’s flagrant bad faith or counsel’s callous disregard for the responsibilities of discovery under the rules.” TransAmerican Natural Gas Corp. v. Powell, 811 S.W.2d 913 (Tex. 1991). The court concludes that the record here does not warrant such a presumption. The court also notes that Allison did not offer evidence at the hearing that her case has been prejudiced by relying upon “false” addresses and that, at the time of the hearing on the motion for sanctions, the record shows that Allison had served Uche and had a default judgment in place; Petrescu remained a defendant. The trial court never considered or imposed lesser sanctions prior to striking Carnival’s pleadings. the record shows that, in its Jan. 16, 2004, order, the trial court denied Allison’s motion to serve the independent-contractor defendants through Carnival. The trial court granted Allison’s motion to serve Uche and Petrescu via the Hague Convention and Letters Rogatory, but the record contains no evidence that Allison attempted to serve either defendant pursuant to the trial court’s order granting substituted service. In particularly egregious cases, a trial court may order death penalty sanctions without first testing lesser sanctions, but no evidence demonstrates that this is such a case, the court concludes. OPINION:Bland, J.; Taft, Higley and Bland, JJ.

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