06-0369 In re Jack Jorden, M.D., et al. from Smith County and the 12th District Court of Appeals, Tyler For relator: R. Brent Cooper, Dallas For real party in interest: Bill Liebbe, Tyler The Supreme Court will hear arguments on the issue of whether pre-suit deposition rule supersedes medical-malpractice limits. The issue in this effort to take depositions before a lawsuit is filed on a medical malpractice claim, a procedure authorized under Texas Rule of Civil Procedure 202, is whether Rule 202 is trumped by statutory medical-malpractice restrictions. In this case a woman's son, a physician, hired a lawyer to investigate the possibility of suing doctors who treated his mother before she died of a heart attack. His counsel petitioned the trial court to depose the mother's primary-care doctor, an emergency-room doctor and representatives of the hospital and clinic where she was treated. The trial court denied the petition for pre-suit depositions. The court of appeals granted mandamus relief, holding that Texas Civil Practices and Remedies Code chapter 74, a provision of House Bill 4's sweeping tort reform, did not preclude Rule 202 depositions to investigate the merits of a suit.

07-0737 In Re Lester Collins, M.D. from Smith County and the 12th District Court of Appeals, Tyler For relator: R. Brent Cooper, Dallas For real party in interest: Peter Kelly, Houston The principal issues in the medical-malpractice case are (1) whether the trial court abused its discretion by prohibiting ex parte communication with non-party physicians and health-care providers who treated the plaintiff and listed by her on the statutory schedule for disclosure and release; (2) whether Civil Practices and Remedies Code section 74.052 prohibits ex parte communications with the med-mal plaintiff's physicians and health-care providers; and (3) whether federal law (HIPAA) prohibits ex parte communications and preempts section 74.052. The first argument begins at 9 a.m. in the courtroom in Austin. Each side will have 20 minutes for argument. This advisory serves only as an abbreviated guide to oral argument. Summaries are prepared by the Court's staff attorney for public information and reflect his judgment alone on facts and legal issues and in no way represent the Court's opinion about case merits. Texas Supreme Court advisory Contact: Osler McCarthy, Staff Attorney for Public Information (512) 463.1441 or email: osler.mccarthy@courts.state.tx.us

07-1042 ERI Consulting Engineers Inc. and Larry G. Snodgrass v. Mark Swinnea, et al. from Smith County and the 12th District Court of Appeals, Tyler For petitioners: Sarah B. Duncan, Austin For respondents: Greg Smith, Tyler In this case principal issues are (1) whether disgorgement and forfeiture may remedy a breach of fiduciary duty in a case without fees; (2) whether the court of appeals erred in finding no evidence supported the trial court's actual-damages award; and (3) whether a defendant company incorporated after the alleged fiduciary breach may be jointly and severally liable for damages from that breach. Snodgrass and ERI, an asbestos-removal consulting company, sued Swinnea, a former partner with Snodgrass in ERI. The suit alleged Swinnea helped his wife set up an asbestos-abatement company that competed with ERI's clients. Swinnea agreed not to work for and not compete with ERI when he sold Snodgrass his interest in ERI. After a bench trial, the trial court found Swinnea breached his fiduciary duty and induced the buyout by fraud. The court of appeals reversed, in part holding that disgorgement and forfeiture cannot be a fiduciary-breach remedy in a case without fees involved. The first argument begins at 9 a.m. in the courtroom in Austin. Each side will have 20 minutes for argument. This advisory serves only as an abbreviated guide to oral argument. Summaries are prepared by the Court's staff attorney for public information and reflect his judgment alone on facts and legal issues and in no way represent the Court's opinion about case merits. Texas Supreme Court advisory Contact: Osler McCarthy, Staff Attorney for Public Information (512) 463.1441 or email: osler.mccarthy@courts.state.tx.us

In this challenge to the appeals court's take-nothing reversal from a contract-breach and fraud verdict, the issues are (1) whether the court erred by considering a deleted provision from negotiations to interpret the contract and (2) whether the court erred by rejecting a fraud claim on reliance grounds based on an oral promise to act when the written contract omitted that.