City of Port Arthur v. Sanderson, 09-91-063

• Citation: 810 S.W.2d 476
• Decision Date: 13 June 1991
• Docket Number: No. 09-91-063,09-91-063
• Parties: The CITY OF PORT ARTHUR, Texas, Relator, v. The Honorable Gary SANDERSON, Respondent. CV.
• Court: Court of Appeals of Texas

Page 476

810 S.W.2d 476

The CITY OF PORT ARTHUR, Texas, Relator, v. The Honorable Gary SANDERSON, Respondent.

No. 09-91-063 CV.

Court of Appeals of Texas,

Beaumont.

June 13, 1991.

Kent M. Adams, Beaumont, for relator.

Glen W. Morgan, Richard Clarkson, Reaud, Morgan & Quinn, Beaumont, for respondent.

Before WALKER, C.J., and BROOKSHIRE and BURGESS, JJ.

OPINION

BURGESS, Justice.

This is a writ of mandamus action. David and Barbara Miller (Millers) filed suit against the City of Port Arthur, Texas (Port Arthur) and others to seek recovery for the death of their child. The Millers' vehicle was attempting to cross a single lane bridge with wooden slats when the car slid off the roadway and flipped on its side. The child was thrown from the vehicle and the Millers allege the death of their son was caused by the negligence of Port Arthur and others.

In 1987, the Millers sent a discovery request seeking information regarding Port Arthur's experts. Specifically they were asked to identify by occupation all the expert witnesses which it intended to call to testify along with copies of the experts' reports. In November 1987, Port Arthur answered by listing Charles Ruble as an expert in accident and reconstruction (sic) and attached a copy of his report. On January 31, 1991, Port Arthur filed their Defendant's Supplemental Responses to Discovery listing 57 fact witness and 23 expert witness, including Dr. Olin Dart and Dr. David Frauste. The designation of both consisted solely of their names and addresses; no occupation was listed, nor were any reports attached. The Millers filed a motion to strike the designation of both. The trial court orally granted the motion. Port Arthur filed a motion for the trial court to reconsider. On March 1, 1991, the court heard that motion; denied it and signed the order granting the Millers' motion to strike Port Arthur's experts. That same day, Port Arthur filed its motion for leave to file petition for writ of mandamus. This court, one justice dissenting, granted the motion for leave and stayed the trial court proceedings. TEX.R.APP.P. 121(c), (d). We now deny the petition for mandamus.

Port Arthur urges mandamus is appropriate. They seek to compel the trial judge to withdraw the order striking Port Arthur's experts. They argue the experts were designated more than 30 days before trial, TEX.R.CIV.P. 166b(6)(b), and the trial court abused his discretion in striking them. They rely heavily upon Mother Frances Hosp. v. Coats, 796 S.W.2d 566 (Tex.App.--Tyler 1990, orig. proceeding), which held that when an order striking witnesses amounts to an emasculation of a party's defense, then appeal is not an adequate remedy and mandamus will lie. See also Williams v. Crier, 734 S.W.2d 190 (Tex.App.--Dallas 1987, orig. proceeding). The courts of appeal are divided on this issue. Forscan Corp. v. Touchy, 743 S.W.2d 722, 724 (Tex.App.--Houston [14th Dist.] 1987, orig. proceeding) held that the exclusion of two experts was not reviewable by mandamus because the right to offer the evidence by bill of exception is an adequate remedy at law. A very recent case, Humana Hospital Corp. v. Casseb, 809 S.W.2d 543 (Tex.App.--San Antonio, 1991, orig. proceeding) held a pre-trial exclusion order was not subject to mandamus. We believe the latter two cases to be the better rule.

A writ of mandamus is available to correct a clear abuse of discretion when there is no adequate remedy at law. Jampole v. Touchy, 673 S.W.2d 569 (Tex.1984). The trial court has granted a pre-trial exclusion motion. The witnesses may still be allowed to testify during the trial on the merits. Port Arthur will surely be allowed to make a bill of exception. This is not a discovery dispute involving either the obtaining or retaining of material. This is, in reality, a sanctions ruling that is only available for review in the regular course of an appeal. Stringer v. Eleventh Court of Appeals, 720 S.W.2d 801 (Tex.1986); Central Freight Line, Inc. v. White, 731 S.W.2d 121, 122 (Tex.App.--Houston [14th Dist.] 1987, orig. proceeding).

The issuance of the writ of mandamus is denied.

WRIT DENIED.

WALKER, C.J., concurs.

BROOKSHIRE, J., dissents.

WALKER, Chief Justice, concurring.

How is it fair to allow one side to a lawsuit to name an expert witness thirty-eight days before trial then disallow the other side that opportunity thirty-one days prior to trial? Good question! I do not have the answer. This is certainly the type proceeding that makes an appellate justice want to stretch his concept of mandamus. I can easily jump the first hurdle, i.e., clear abuse of discretion. It's the second hurdle that brings the fall, i.e., remedy on appeal.

I so agree with Justice Brookshire where in his dissenting opinion he asked "Why not let the jury have the full benefit of all relevant, admissible, non-redundant discovery?" Indeed, why not?

The bottom line reason for this concurrence is to make the point that appellate courts should not try lawsuits. Our business is to seek out and destroy error. Mindful of course, that occasionally our seeking results is our own self-destruction.

Mandamus is not here the remedy.

BROOKSHIRE, Justice, dissenting.

This dissenting opinion, which I think should be the opinion of the Court, is respectfully, but earnestly, filed. Under the record now before us, I urgently submit that the Court's opinion should read as follows:

"The writ of mandamus will properly lie in this action. David Miller and his wife, Barbara (the Millers), filed litigation against the City of Port Arthur and others, petitioning to recover money damages for the tragic death of their son, Chad Miller. The death resulted from a one-car accident. A parent of Chad's, his father, was the driver. The motorcar departed from the roadway, in some manner falling on its side. The plaintiffs' allegations were that young Chad was thrown from the vehicle and the parents aver that Chad was decapitated by a certain guy wire which was, in turn, attached to a telephone pole of Southwestern Bell. The telephone company sets out contrary allegations. Basically, the telephone company states that its properties or equipments were not involved in the injury to Chad.

"There is another real party at interest, being Jefferson County Drainage District No. 7. The litigation arose from an automobile accident occurring about July 3, 1986. The Millers pleaded a cause of action against the City of Port Arthur, being also a real party in interest. The Millers also sued Southwestern Bell Telephone Company.

"The gravamen of the writ before us is fairly uncomplicated. The record demonstrates that a Dr. John Baerwald, a traffic engineer, was designated as an expert witness for the plaintiffs about 38 days before the case was set for trial on the merits. The litigation on the merits had been previously set for jury selection on a Tuesday, being March 5, 1991. The trial court action permitted Dr. John Baerwald to be an expert witness for the plaintiffs as well as a Dallas physician, Dr. Petty. The issue presented to us is whether Drs. Baerwald, Petty, Dart, and Faust will be allowed to testify. We think Dr. Petty's situation is dramatically different from the others.

"Nevertheless, the trial court disallowed an expert witness, one Dr. Olin Dart, a designated expert witness for the City of Port Arthur, to be an expert witness for the city. Dr. Olin Dart had been designated 31 days prior to the trial date. Dart's designation was in response to Baerwald's. We perceive that the record reflects that Dr. Baerwald had been originally contacted in April of 1990, about a year before the trial date. Nevertheless, his designation as an expert witness was revealed or designated only 38 days before the trial date. Of importance also is the fact that the city had requested designations of experts, some three years prior to the date of Dr. Baerwald's designation. Dr. Baerwald was proffered as an expert traffic engineer. In response the city then with dispatch designated Dr. Olin Dart, being a civil engineer of Baton Rouge, Louisiana, as an expert in response to the designation of Dr. Baerwald.

"A reading of TEX.R.CIV.P. 166b(6) entitled "Duty to Supplement" leads us to the conclusion that an expert witness may be designated or supplemented as soon as is practicable but not less than 30 days prior to the beginning of the trial. Query: Was Dr. Baerwald designated as soon as practical? Under the entire background of this record we feel that the exclusion of Dr. Dart was an abuse of sound, judicial discretion. Dr. Dart was designated outside of the 30 day limitation period and as reasonably soon as was reasonably practical. Only about 7 or 8 days transpired between the time that one side of the lawsuit designated an expert traffic witness before the city had a chance to make an appropriate expert witness response. It obviously took some reasonable amount of time to do this. It should be remembered that Dr. Olin Dart was a resident of a sister state. We conclude that such designation was as soon as reasonably practical under Rule 166b(6).

"Basically, however, each side is desirous of adding yet another expert, the expert for the plaintiff being Dr. Petty and the expert for the city being Dr. David Faust. Because of the passage of time at this point we think that three of these four expert witnesses should be allowed to testify before the jury. We conclude that the situation of Dr. Petty is a different, unique problem which will be addressed later in this opinion. At this time, because of the passage of time and the wording of Rule 166b, we conclude that Dr. Baerwald for the Millers should be allowed to testify before the jury and the two latest designated experts of the City, Dart and Faust, be allowed to testify before the jury. Again, this list is not intended to be an exclusive or exhaustive list of expert witnesses. Dr. Petty, depending on future events, may become qualified to...