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Click here for the full text of this decision FACTS:During knee replacement surgery performed Nov. 17, 2005, on Robert Christophersen’s right knee, the knee replacement device implanted into the knee was an apparatus designed to be fit into a left knee joint. Christophersen seeks initial pre-suit discovery to determine who to sue. Christophersen originally sought permission from the trial court to take the oral depositions of several people in anticipation of filing a suit against Samuel Drew Temple, M.D., the orthopedic surgeon at Paris Regional Medical Center and Paris Orthopedic Clinic who performed Chistophersen’s surgery, along with others, including Steven D. Rowlan, M.D., (another orthopedic surgeon at Paris Regional Medical Center and Paris Orthopedic Clinic), Van Neilson (of DePuy Orthopaedics, the supplier of the knee replacement apparatus), Renata Ragsdale (a licensed medical anesthetist at Paris Regional Medical Center), and Zaw Win (an anesthesiologist at Paris Regional Medical Center). However, at the hearing on Christophersen’s motion to take pre-suit depositions, Christophersen limited his pre-suit deposition request to Temple and Neilson only. Christophersen further conceded that he would not ask Temple about his opinions regarding health-care related issues; instead, the deposition would be limited to who was responsible for selecting the knee replacement apparatus that was ultimately implanted into Christophersen’s leg. The trial court granted Christophersen’s request. Temple petitioned the Texarkana Court of Appeals for a writ of mandamus directing the trial court to vacate its order allowing Christophersen to depose Temple. Temple asks the court of appeals to issue a writ of mandamus, because Christophersen “failed to satisfy his burden of proving an entitlement to a [Texas] Rule [of Civil Procedure] 202 deposition of [Temple].” He further asserts that, because the subject matter of Christophersen’s suit will necessarily concern medical malpractice, �74.351 of the Texas Civil Practice & Remedies Code prohibits the taking of Temple’s deposition before the filing of the required expert report. HOLDING:Conditionally granted. The trial court did not abuse its discretion or violate a duty imposed on it under Texas Rule of Civil Procedure 202. Christophersen presented the trial court with several arguments as to why the benefits of taking Temple’s deposition before filing suit would outweigh the burdens and expenses associated with the 45-minute deposition granted by the trial court. One such theory advanced by Christophersen before the trial court was the possibility that the manufacturer of the replacement knee prosthetic was negligent in providing this prosthetic device. According to Christophersen, if Temple’s deposition revealed evidence suggesting the manufacturer provided the wrong prosthetic, then Christophersen’s cause of action would be one of negligence against the manufacturer, rather than a suit against the doctor for medical malpractice. By determining such in advance of filing suit, Christophersen hoped to avoid suing unnecessary parties under potentially irrelevant theories of recovery. Christophersen also expressly promised the trial court that he would avoid deposing Temple concerning any “standard of care” issues associated with this case. Temple argues that Rule 202 cannot provide an exception to �74.351′s prohibition against allowing a Rule 202 deposition to investigate a potential health care liability claim. The trial court had a chance to examine a situation involving two divergent theories of potential liability, involving completely different sets of potential defendants. The first possibility involved a health-care liability suit against doctors or possibly other health-care personnel. The second possibility involved a negligence or products liability cause of action against the knee joint manufacturer or provider. Taking a pre-suit deposition of Temple is forbidden under the first theory; taking a pre-suit deposition of Temple under the second theory is not statutorily forbidden. The trial court’s order appears to have been motivated by this dichotomy and was issued in the context of the concessions made by Christophersen’s counsel at the hearing. The problem is that the actual order issued by the trial court did not set out either that dichotomy or any effective subject-matter limitation on Temple’s deposition. The order is overly broad and allows Christophersen to question Temple in areas prohibited by �74.351. OPINION:Morriss, CJ; Morriss, CJ, Carter and Moseley, JJ. CONCURRENCE:Moseley, J. “I fully agree with the analysis of the majority concerning the overly broad nature of the order entered by the trial court and believe that �74.351 of the Texas Civil Practice and Remedies Code trumps the right to take depositions under Rule 202 of the Texas Rules of Civil Procedure in matters involving healthcare liability claims. “However, I am also convinced that it would be an exercise in judicial economy for this Court to grant Temple’s mandamus in part (as the order would permit depositions pertaining to healthcare liability claims under �74.351) and deny it in part (as the order would apply to a products liability case).”

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