City of Port Arthur v. Sanderson

810 S.W.2d 476, 1991 WL 127631

• Court: Court of Appeals of Texas
• Decided: June 13, 1991
• Docket: 09-91-063 CV
• Status: Published

Opinions

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 eases 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.