in Re Roberto Ybarra

• Court: Court of Appeals of Texas
• Decided: August 25, 2022
• Docket: 09-22-00212-CV
• Status: Published

Opinion

In The

Court of Appeals

Ninth District of Texas at Beaumont

__________________

NO. 09-22-00212-CV __________________

IN RE ROBERTO YBARRA

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Original Proceeding 284th District Court of Montgomery County, Texas Trial Cause No. 20-08-09806-CV __________________________________________________________________

MEMORANDUM OPINION

Relator Roberto Ybarra (Ybarra or Relator) petitioned for mandamus relief

from a trial court’s order that excluded one of Ybarra’s treating physicians from

testifying as to causation in a personal injury case arising from an automobile

accident. Relator argues that the trial court abused its discretion because Ybarra had

adequately disclosed that the doctor would offer an opinion on causation and he

lacks an adequate remedy by appeal because his damage models rely on this doctor’s

opinion that the real party in interest, Chloe Courtnea Thomas (Thomas), caused

“large portions of [Ybarra’s] damages.” Thomas responded to the petition and

argued that she made a Rule 702 challenge to the testimony of Dr. Price only as to

1 causation, that Ybarra failed to meet his burden in response to the Rule 702

challenge, that Ybarra did not comply with the expert designation requirements, that

the trial court did not abuse its discretion, and that Ybarra has an adequate remedy

on appeal, so mandamus relief is not appropriate.

We may grant mandamus relief to correct a trial court’s abuse of discretion

when an appeal is an inadequate remedy. In re Prudential Ins. Co. of Am., 148

S.W.3d 124, 135-36 (Tex. 2004) (orig. proceeding); Walker v. Packer, 827 S.W.2d

833, 839-40 (Tex. 1992) (orig. proceeding). An abuse of discretion occurs when a

trial court’s ruling is arbitrary and unreasonable or is made without regard for

guiding legal principles or supporting evidence. In re Nationwide Ins. Co. of Am.,

494 S.W.3d 708, 712 (Tex. 2016) (orig. proceeding). We determine the adequacy of

an appellate remedy by balancing the benefits of mandamus review against the

detriments. In re Essex Ins. Co., 450 S.W.3d 524, 528 (Tex. 2014) (orig.

proceeding); In re Prudential Ins. Co. of Am., 148 S.W.3d at 136.

In his Original Petition, Ybarra designated this case for Level 3 discovery. See

Tex. R. Civ. P. 190.1, 190.4. In December of 2021, the trial court entered a docket

control order (DCO) in this case. A discovery control plan ordered by the trial court

“may change any limitation on the time for or amount of discovery set forth in the[]

rules.” Tex. R. Civ. P. 190.4(b). The DCO included several deadlines, with some of

the deadlines calculated from the trial date in the DCO. The trial date listed in the

2 DCO was June 21, 2022. Ybarra’s deadline to designate expert witnesses under the

DCO was set at 150 days before trial, or January 24, 2022. The DCO stated: “Unless

otherwise ordered by the Court, the [] dates as calculated from the trial date stated

herein remain the applicable deadlines for this case even if the trial date is reset and

regardless of the reason for any reset.” The trial date was reset twice, but neither

Order Resetting Trial reset the deadlines to designate expert witnesses, complete

discovery, or raise expert challenges. The DCO also required the parties to designate

experts as follows:

2. EXPERT WITNESS DESIGNATION: A list shall be filed which includes each expert’s name, address, telephone number, the subject of the testimony, and the opinions that will be proffered by each expert. Experts not listed in compliance with this paragraph will not be permitted to testify absent a showing of an exception under Rule 193.6. A Rule 194 disclosure is not a substitute for this filed designation. (a) Parties seeking affirmative relief 150 DAYS BEFORE TRIAL (b) All other parties 120 DAYS BEFORE TRIAL

The DCO warned the parties that an expert not listed in compliance with the DCO

will not be permitted to testify absent a showing of an exception under Rule 193.6.1

It appears from the mandamus record that Ybarra did not file any objections to any

part of the DCO.

1 Ybarra does not argue in his Petition for Mandamus that he made a showing of an exception under Rule 193.6. Ybarra also does not argue that the trial court erred in failing to modify or extend the discovery procedures and deadlines contained in the DCO. 3 We find it significant that the DCO in this case requires expert designations

for “each expert” and there is no distinction between retained or non-retained

experts. Further, it requires a list which includes each “expert’s name, address,

telephone number, the subject of the testimony, and the opinions that will be

proffered by each expert.” And it expressly notifies the parties that “[a] Rule 194

disclosure is not a substitute for this filed designation.”

On October 4, 2021, Ybarra served his First Supplemental Responses to

Defendant’s Request for Disclosure. In the disclosure responses, Ybarra identified

Dr. Eric William Price as an expert witness as follows:

Eric William Price, M.D. Kenneth Palmer, M.D. Houston Methodist Orthopedics & Sports Medicine - The Woodlands (and/or its custodian of medical and billing records) 17183 Interstate 45 South, Suite 210 Shenandoah, Texas 77385 (936)321-8000 The Medical Personnel at Houston Methodist Orthopedics & Sports Medicine – The Woodlands are experts in the field of medicine and will testify as to the bodily injury and physical damages Plaintiff has sustained and may sustain in the future as a result of the accident made the basis of this suit, as well as the necessary, customary, and reasonable medical bills incurred and those that may be incurred in the future. . . . ... Eric William Price, M.D. Memorial Hermann Conroe Surgery Center (and/or its custodian of medical and billing records) 1501 River Pointe Drive, #200 Conroe, Texas 77304 (936)760-3443 The Medical Personnel at Memorial Hermann Conroe Surgery Center are experts in the field of medicine and will testify as to the bodily 4 injury and physical damages Plaintiff has sustained and may sustain in the future as a result of the accident made the basis of this suit, as well as the necessary, customary, and reasonable medical bills incurred and those that may be incurred in the future. . . .

Ybarra also listed other medical providers as expert witnesses in his disclosure

responses. On January 21, 2022, three days before the DCO expert deadline, Ybarra

filed Plaintiff’s First Supplemental Designation of Expert Witnesses. The only

individual identified in this supplemental designation was Dr. Price. This time,

Ybarra designated Dr. Price as follows (with emphasis added):

The above-listed medical providers may be called to testify live or by oral and/or video deposition and/or via deposition by written questions and/or through their medical records to give expert opinions within a reasonable medical probability on all of their examinations and medical treatment provided to the Plaintiff, the necessity of that treatment and the reasonableness of the charges for the treatment as well as the diagnosis, prognosis and opinions about the Plaintiff as well as causation of Plaintiff’s injuries. . . . Their opinions and impressions are contained in their records provided by plaintiff in response to discovery requests.

On March 29, 2022, Thomas filed Defendant’s Motion to Exclude Expert

Witness Testimony from Eric William Price M.D. as to Causation. Thomas argued

that Dr. Price’s expert opinion testimony as to causation should be excluded under

Texas Rule of Evidence 702. Thomas noted that although Ybarra identified Dr. Price

as a doctor, Ybarra had failed to provide any evidence that Dr. Price “has any

qualifications to render opinions as to how this particular car accident caused the

alleged injuries in this case.” Thomas also argued: “The relevant inquiry is whether

5 ERIC WILLIAM PRICE M.D. has the necessary expertise to express an opinion

about whether the occurrence in question CAUSED Plaintiff’s alleged injuries. []

The answer is that he does not. Texas law prohibits a licensed registered nurse from

‘acts of medical diagnosis.[’]”

On March 30, 2022, after the motion to strike had been filed and after the

DCO deadline to file and serve his expert witness designations had passed, Ybarra

filed Plaintiff’s Second Supplemental Designation of Expert Witnesses. In his

Second Supplemental Designation Ybarra listed several medical providers, and also

updated the designation for Dr. Price as follows

Dr. Price will testify to the following matters:

1. He will testify that all of the medical charges his practice rendered to the Plaintiff were reasonable in the amount of the charges and that the treatment rendered to the Plaintiff were made necessary and caused by the collision which occurred on or about November 30, 2018[;] 2. He will testify as to the specific physical therapy modalities that were used to treat the Plaintiff and the causal connection between those modalities and the injury caused by the collision; 3. He will testify as to the need for any diagnostic testing such as MRI’s and X-Rays and testify as to how they helped with the diagnosis of the Plaintiffs injuries that were caused by this collision; 4. He will testify as to the process and procedures involved with administering injections for pain management, as well as the causal connection between the injections and the collision made the basis of the lawsuit; 5. He will testify to the surgical procedures performed and the causal connection between the surgery and the collision made the basis of the lawsuit; 6. He will rebut the opinions of Defendant’s testifying Expert[.]

6 He will also testify to the entirety of the Plaintiff’s treatment and why it was both appropriate for the injury the Plaintiff received and caused by the collision. He will also testify to the reasonableness of the Plaintiff’s medical charges in the local in which the treatment was given and to the necessity of those charges being caused by the collision.

Ybarra filed a response and an amended response to the Motion to Exclude.

Ybarra argued in his response to Thomas’s motion to quash Price’s deposition that

he had complied with the Rules of Civil Procedure when he disclosed Dr. Price, that

he sought dates to depose Dr. Price, that Ybarra has had two surgeries and Ybarra

provided medical records of those surgeries to Thomas, and Ybarra sought a

continuance to complete the deposition of Dr. Price.

The trial court initially granted the motion to exclude on April 14, 2022, and

Ybarra filed a Motion to Reconsider, arguing that he had timely responded to the

disclosures and that he complied with the expert designation requirements under the

Rules of Civil Procedure, that Dr. Price was a non-retained expert and treating

physician, and that he was not required under the Rules of Civil Procedure to provide

a report or do more than he did for the non-retained expert. Thomas filed a response

and supplemental response to Ybarra’s Motion to Reconsider, restated the Rule 702

challenge, and further argued that Plaintiff had untimely supplemented the expert

information and failed to comply with the trial court’s DCO, and that the deadlines

for expert designations and depositions, and Daubert challenges under the DCO had

passed.

7 The trial court vacated its earlier order and set the motion to exclude for

submission on May 6, 2022. On May 6, 2022, the trial court entered another order

granting the Defendant’s Motion to Exclude Plaintiff’s Expert Witness Testimony

from Eric William Price M.D. as to Causation. The substance of the May 6th Order

is as follows:

ORDER GRANTING DEFENDANT’S MOTION TO EXCLUDE PLAINTIFF’S EXPERTWITNESS TESTIMONY FROM ERIC WILLIAM PRICE M.D. AS TO CAUSATION

On this day came on to be heard DEFENDANT’S MOTION TO EXCLUDE PLAINTIFF’S EXPERT WITNESS TESTIMONY FROM ERIC WILLIAM PRICE M.D. AS TO CAUSATION. After hearing the evidence and argument of counsel [the Court] is of the opinion that Defendant’s Motion is GRANTED. (The Court is especially concerned that the supplementation which Plaintiff provided for the Court’s consideration was filed after the Motion to Exclude and after the expert deadline, neither of which Plaintiff mentioned at the hearing when the Court granted the Motion for Reconsideration.)

IT IS, THEREFORE, ORDERED that any testimony regarding causation from Eric William Price M.D. is excluded.

Ybarra then filed his Second Motion to Reconsider and the trial court entered an

Order denying the Second Motion to Reconsider.

Ybarra did not object to the DCO, its requirements, or deadlines. In Ybarra’s

response and motions to reconsider, Ybarra did not argue that he had complied with

the requirements set forth in the DCO, but instead he argued he had complied with

the expert designation requirements under the applicable Rules of Civil Procedure.

The trial court could have reasonably concluded that Ybarra had failed to comply 8 with the DCO in that his expert designations failed to include a summary of Dr.

Price’s opinions as to causation and that Ybarra failed to provide an explanation to

the trial court as to why he did not provide the information required in the DCO as

to expert witness designations in a timely manner because his supplementations were

untimely.

After the Motion to Strike was filed and after the deadline to designate experts

had closed, Ybarra filed his second expert supplementation listing the opinions

Ybarra anticipated obtaining from Dr. Price. The defendant argued in its responses

to the plaintiff’s motion to reconsider that the plaintiff had failed to properly disclose

any opinions as to causation, had failed to state what opinion the expert held on

causation of the injuries or the basis for such opinions, and further that plaintiff failed

to point to any documents or records where such opinions were provided.

The trial court’s order limits the ability of Dr. Price to testify on causation, but

it has not struck Dr. Price from testifying about Ybarra’s alleged injuries, care,

surgery, treatment, or medical expenses. We cannot say on the record before us that

the trial court abused its discretion because the trial court could have reasonably

concluded that Ybarra failed to comply with the DCO. We do not reach the Rule 702

challenge. See Tex. R. App. P. 47.1

Having examined and fully considered the parties’ arguments and the record

before us, we conclude that Relator has not met his burden to obtain mandamus

9 relief. We lift our stay order of July 14, 2022 and deny the petition for a writ of

mandamus. See Tex. R. App. P. 52.8(a).

PETITION DENIED.

PER CURIAM

Submitted on August 1, 2022 Opinion Delivered August 25, 2022

Before Kreger, Horton and Johnson, JJ.