IN RE: ROEL PENA AND AVENTIS PHARMACEUITCALS, INC.--Appeal from 139th District Court of Hidalgo County

NUMBER 13-05-316-CV

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

_______________________________________________________

IN RE ROEL PENA

AND AVENTIS PHARMACEUTICALS, INC.

_______________________________________________________

On Petition for Writ of Mandamus _______________________________________________________

MEMORANDUM OPINION

Before Chief Justice Valdez and Justices Hinojosa and Ya ez

Per Curiam Memorandum Opinion //

In this original proceeding, relators, Roel Pena and Aventis Pharmaceuticals, Inc., request the Court to direct the Honorable Bobby Flores to vacate his April 4, 2005, Order Limiting the Testimony of Defendants Expert Witness, Leonard Vaughan. Relators, defendants below, argue that the exclusion of Vaughan s testimony is tantamount to a death penalty sanction. Because we conclude that relators have an adequate remedy by appeal, we deny mandamus relief without reaching the merits of the trial court s ruling excluding Vaughan s testimony.

Background

The underlying cause is a personal injury action for damages arising from a collision between a motor vehicle and a motorcycle. Relators retained Vaughan, an accident reconstruction consultant, to testify as an expert regarding the cause of the accident at issue, the speed of the vehicles, and the rules of the road concerning motorcycles and automobiles. Real parties in interest, Angel Eliseo Chacon and Sheila Mordan, moved to exclude Vaughan s testimony arguing that Vaughan is not qualified to testify because he is not an engineer and his opinions are neither relevant nor reliable. See generally Tex. R. Evid. 702; Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579 (1993); Gammill v. Jack Wiliams Chevrolet, Inc., 972 S.W.2d 713 (Tex. 1998); E.I. du Pont de Nemours & Co. v. Robinson, 923 S.W.2d 549 (Tex. 1995). By an amended motion to exclude, real parties in interest additionally argued that Vaughan s expert report was based on information gathered from an unidentified witness, and such testimony constituted unreliable and inadmissible hearsay.

The trial court granted real parties motion to exclude, in part, and limited the scope of Vaughan s testimony. According to the trial court s order, the court found that there is insufficient factual predicate with respect to Vaughan s opinions regarding the speed of the motorcycle prior to the collision, as well as separation speed, post-collision speed, and the ultimate resting location of the motorcycle after the accident, and the trial court thus struck Vaughan s proposed testimony regarding these issues. The court further ruled that Vaughan is not qualified and will not be allowed to testify as to engineering opinions or calculations.

Standard of Review

Mandamus is an extraordinary remedy, available only when a trial court clearly abuses its discretion and there is no adequate remedy on appeal. Walker v. Packer, 827 S.W.2d 833, 840-44 (Tex. 1992); In re Steiger, 55 S.W.3d 168, 170-71 (Tex. App. Corpus Christi 2001, orig. proceeding). A trial court abuses its discretion when it acts in an unreasonable or arbitrary manner or, stated differently, when it acts without reference to guiding rules and principles. City of San Benito v. Rio Grande Valley Gas Co., 109 S.W.3d 750, 757 (Tex. 2003).

An appellate remedy may be adequate even though it involves more delay or cost than mandamus. Walker, 827 S.W.2d at 842. An appellate remedy is adequate when any benefits to mandamus review are outweighed by the detriments; on the other hand, when the benefits outweigh the detriments, appellate courts must consider whether the appellate remedy is adequate. In re Prudential Ins. Co., 148 S.W.3d 124, 136 (Tex. 2004) (op. on reh g). An appeal is inadequate when it comes too late to correct the court's error without the loss of substantial rights to the complaining party. In re Kan. City S. Indus., 139 S.W.3d 669, 670 (Tex. 2004).

A party does not have an adequate remedy by appeal when: (1) an appellate court would not be able to cure the trial court's discovery error, such as when privileged information or trade secrets would be revealed or production of patently irrelevant or duplicative documents imposing a disproportionate burden on the producing party is ordered; (2) a party's ability to present a viable claim or defense is severely compromised or vitiated by the erroneous discovery ruling to the extent that it is effectively denied the ability to develop the merits of its case; or (3) a trial court's discovery order disallows discovery which cannot be made a part of the appellate record, thereby denying the reviewing court the ability to evaluate the effect of the trial court's error. Walker, 827 S.W.2d at 843.

Analysis

Relators contend that mandamus is appropriate in this case because the trial court s ruling effectively hamstring[s] relators in their ability to present a defense, and, under the guidelines utilized by the Texas Supreme Court in Prudential, the benefits to mandamus review outweigh the detriments. See In re Prudential Ins. Co., 148 S.W.3d at 136. Relators further argue that this Court has previously granted mandamus relief for a trial court s order striking an expert. See J.G. v. Murray, 915 S.W.2d 548 (Tex. App. Corpus Christi 1995, orig. proceeding). In that case, the trial court excluded an expert witness on grounds he had not been timely identified under the deadlines in a docket control order even though the trial court had reset the case for trial and issued an amended docket control order with new expert deadlines. See id. at 549. This Court held that the new trial setting nullified the previous docket control order, and thus the trial court s ruling excluding the expert constituted an abuse of discretion justifying mandamus relief. Id. at 550.

Our analysis in Murray is premised on discovery deadlines and not the admissibility of an expert opinion, and accordingly, Murray does not control our analysis of the instant case. Based on the allegations herein, we conclude that relators have an adequate remedy by appeal. See In Re Ford Motor Co., 988 S.W.2d 714, 721 (Tex. 1998); In re Thornton-Johnson, 65 S.W.3d 137, 139 (Tex. App. Amarillo 2001, orig. proceeding) (denying mandamus relief for order excluding expert); In re Kellogg Brown & Root, Inc., 7 S.W.3d 655, 658 (Tex. App. Houston [1st Dist.] 1999, orig. proceeding) (same). In the instant case, relators have not clearly established the impossibility of defending the underlying personal injury lawsuit. Nor have relators shown that the exclusion of Vaughan s testimony prevents them from defending against the claims of the real parties in interest such that a trial would be a waste of judicial resources. The trial court's order circumscribes Vaughan s testimony, but does not prevent Vaughan from testifying or prevent relators from presenting other evidence or testimony concerning the accident. Finally, relators have not shown that a remedy by appeal will cause them the permanent loss of substantial rights. See In re Kan. City S. Indus., 139 S.W.3d at 670.

Conclusion

The Court, having examined and fully considered the petition for writ of mandamus, is of the opinion that relators have not shown themselves entitled to the relief sought. Relators ability to present a viable defense has not been severely compromised or vitiated by the trial court s ruling to the extent that relators are effectively denied the ability to develop the merits of the case. See Walker, 827 S.W.2d at 843.

Accordingly, the petition for writ of mandamus is DENIED and relators motion for temporary relief is DENIED as moot. See Tex. R. App. P. 52.10 ( relator may file a motion to stay any underlying proceedings or for any other temporary relief pending the court s action on the petition ) (emphasis added).

PER CURIAM

Memorandum Opinion delivered and filed

this 12th day of May, 2005.