SHIP COMPANY HAD NO DUTY UNDER TEXAS LAW TO MAKE THE SHIP’S DOCTOR AND NURSE AVAILABLE FOR DEPOSITION BECAUSE THEY WERE NOT EMPLOYEES.
IN RE CARNIVAL CORPORATION, Relator
NO. 01-05-01154-CV
COURT OF APPEALS OF TEXAS, FIRST DISTRICT, HOUSTON
2006 Tex. App. LEXIS 2751
April 6, 2006, Opinion Issued
PROCEDURAL POSTURE: Relator, a cruise ship company, sought mandamus relief from a "death penalty" sanction imposed by respondent, the judge of the 56th District Court of Galveston County (Texas), in an action brought by real party in interest passenger for negligence, breach of contract, breach of warranty, deceptive trade practices, and fraud.
OVERVIEW: The passenger alleged that the ship company failed to provide medical care to her mother during a cruise and misrepresented the care that would be available. The ship company provided the addresses of medical personnel who were aboard the cruise ship. The passenger unsuccessfully attempted service on a doctor and a nurse who were foreign nationals and independent contractors. The trial court granted a motion for substituted service pursuant to the Hague Convention, Letters Rogatory, or private process service. The passenger never attempted such service but instead noticed the doctor and nurse for deposition through the ship company, which filed a motion to quash. The record did not reflect a ruling on the passenger's motion to compel. The court held that the imposition of a death penalty sanction under Tex. R. Civ. P. 215.3 was not just, within the meaning of Tex. R. Civ. P. 215.2(b). The ship company had no duty under Tex. R. Civ. P. 199.3 to make the doctor and nurse available for deposition because they were not employees. The evidence did not establish that the ship company provided false addresses in violation of the disclosure requirements of Tex. R. Civ. P. 193.1, 193.5.
OUTCOME: The court conditionally granted the petition for writ of mandamus and directed the trial court to vacate the challenged order.
