in Re: Bradley Hubbard, M.D. and Dallas Plastic Surgery Institute

• Court: Court of Appeals of Texas
• Decided: October 18, 2022
• Docket: 05-22-00853-CV
• Status: Published

Opinion

DENY and Opinion Filed October 18, 2022

In The Court of Appeals Fifth District of Texas at Dallas No. 05-22-00853-CV

IN RE BRADLEY HUBBARD, M.D. AND DALLAS PLASTIC SURGERY INSTITUTE, Relators

Original Proceeding from the County Court at Law No. 2 Dallas County, Texas Trial Court Cause No. CC-19-03134-B

MEMORANDUM OPINION Before Justices Myers, Nowell, and Goldstein Opinion by Justice Myers In this original proceeding, relators seek mandamus relief from the trial

court’s order striking their retained medical expert but allowing him to testify as a

non-retained, treating physician. They complain that the order is vague and that the

trial court abused its discretion by striking their retained expert. Relators further ask

us to compel the court to rule on their motion for leave to designate a replacement

retained expert.

Entitlement to mandamus relief requires relators to show that the trial court

clearly abused its discretion and that they lack an adequate remedy by appeal. In re

Prudential Ins. Co. of Am., 148 S.W.3d 124, 135–36 (Tex. 2004) (orig. proceeding). After reviewing the petition and the record before us, we conclude that relators have

failed to demonstrate their entitlement to mandamus relief.

Regarding relators’ complaint about the order’s vagueness, the record fails to

show that they raised this error to the trial court. See In re Rowes, No. 05-14-00606-

CV, 2014 WL 2452723, at *1 (Tex. App.—Dallas May 30, 2014, orig. proceeding)

(mem. op.) (“A court cannot grant mandamus relief unless the error was raised in

the trial court.”).

As for relators’ contention that the trial court erroneously struck their retained

expert, they have failed to show that they lack an adequate appellate remedy. See In

re Flores, No. 05-19-01058-CV, 2020 WL 2847531, at *2-3 (Tex. App.—Dallas

June 2, 2020, orig. proceeding) (mem. op.) (denying mandamus relief as to order

striking expert testimony because relator had adequate remedy by appeal); In re

Thornton-Johnson, 65 S.W.3d 137, 139 (Tex. App.—Amarillo 2001, orig.

proceeding) (same).

Finally, with respect to relators’ argument about the trial court’s failure to

rule, the record does not contain adequate proof that they brought the pending motion

to the trial court’s attention and made a demand for a ruling. See In re Blakeney, 254

S.W.3d 659, 661 (Tex. App.—Texarkana 2008, orig. proceeding) (“Any such

mandamus relief must be predicated on an adequate showing that a request for a

ruling has been properly and adequately presented to the trial court and that the court

has declined to rule.”).

–2– Accordingly, we deny the petition for writ of mandamus. See TEX. R. APP. P.

52.8(a).

220853f.p05 /Lana Myers// LANA MYERS JUSTICE

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