High Court Decision Brings Favorable Wind for Physician Experts
By Joey Berlin

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The Texas Supreme Court has sided with the Texas Windstorm Insurance Association (TWIA) – and by extension, with medicine – in a case that impacts physicians who testify as expert witnesses in their own defense.

Upholding an appeals court’s decision in a lawsuit the City of Dickinson filed against TWIA, the state’s high court ruled the association did not have to turn over email communications between its attorneys and one of its corporate representatives. The corporate representative acted as an expert witness on behalf of TWIA and submitted an affidavit in the case.

Dickinson argued that the emails should be disclosed because the city was entitled to documents relating to a testifying expert’s affidavit. But TWIA argued those communications were protected by attorney-client privilege. A trial court disagreed with TWIA in 2016, but the 14th Court of Appeals in Houston later sided with TWIA.

The Texas Medical Association got involved – sensing that if TWIA lost at the Supreme Court, physicians who testify as experts in their own defense might face a similar obligation to turn over protected attorney-client communications.

TMA filed a friend-of-the-court brief with the Texas Alliance for Patient Access, Texas Hospital Association, and Texas Osteopathic Medical Association. The brief argued that physicians would have to choose between testifying in their own defense and “giving up the right to freely and confidentially consult” with their attorney.

The Supreme Court’s Feb. 15 decision said that “on balance,” Texas courts have upheld attorney-client privilege in pre-trial exchanges of information involving expert testimony.

“The City of Dickinson seeks to broaden the scope of expert discovery to include material that is otherwise protected by the attorney-client privilege,” wrote Justice John P. Devine. “While Texas’s expert discovery rules are broad, they remain subject to the attorney-client privilege, which is not waived merely by a client’s decision to offer expert testimony.”

Dickinson had sued TWIA over claims for property damage caused by Hurricane Ike in 2008.

Last Updated On

February 22, 2019

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Joey Berlin

Associate Editor

(512) 370-1393
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Joey Berlin is associate editor of Texas Medicine. His previous work includes stints as a reporter and editor for various newspapers and publishing companies, and he’s covered everything from hard news to sports to workers’ compensation. Joey grew up in the Kansas City area and attended the University of Kansas. He lives in Austin.

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