                                  NO. 07-04-0028-CV

                             IN THE COURT OF APPEALS

                      FOR THE SEVENTH DISTRICT OF TEXAS

                                     AT AMARILLO

                                        PANEL A

                                    APRIL 15, 2005

                         ______________________________



         IN RE RICK ANTHONY ALCALA AND TASHA ALCALA, RELATORS

                       _________________________________


Before JOHNSON, C.J., and REAVIS and CAMPBELL, JJ.


        MEMORANDUM OPINION ON PETITION FOR WRIT OF MANDAMUS


      Relators Rick and Tasha Alcala seek a writ of mandamus to compel the Honorable

John Board, Judge of the 181st District Court of Potter County, to vacate his order signed

March 21, 2003, granting the motion of Wonderland Amusements, Inc., d/b/a Wonderland

Park, to exclude a medical doctor as relators’ expert witness and to vacate his order

signed August 21, 2003, which denied their motion to reinstate a deposition and to

reconsider the order of exclusion of their expert. Considering the record before the trial

court in the underlying case and the rules and principles applicable to the extraordinary

writ of mandamus, we deny the petition.
       Relators sued Wonderland Amusements, Inc. d/b/a Wonderland Park for personal

injuries they allegedly sustained at the amusement park on August 9, 1999. After a video

deposition was taken of relators’ medical doctor on January 7, 2003, in Dallas as initiated

by relators, Wonderland Park moved that Dr. Townsend be excluded as an expert

witness. After considering relators’ response to the motion and after an evidentiary

hearing, the presiding judge of the trial court signed its order dated March 21, 2003,

providing that Dr. Townsend may not testify in the case as an expert for relators. Then,

on April 17, 2003, counsel for relators filed a second notice of video deposition of Dr.

Townsend to be taken in Dallas at 6:00 p.m. on April 28, 2003, which prompted counsel

for Wonderland Park to file a motion on April 18, 2003, to quash the deposition of Dr.

Townsend contending, among other things, that a second deposition was unnecessary and

results in unnecessary travel expense and attorney’s fees. In the alternative, the motion

asserted that the noticed date was not a convenient date. Relators then filed their motion

to reinstate deposition and to reconsider the order excluding their expert alleging, among

other things, that the deficiencies in the first deposition could be satisfied by simply asking

specific questions which relators assert were not asked at the first deposition. Following

a hearing on August 21, 2003, the trial court denied relators’ motion to reinstate the

second deposition and to reconsider exclusion of their expert.


       By their two issues, relators inquire (1) where a treating physician may be excluded

from testifying as to the injuries presented by his patients and describing the nature and


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extent of those injuries, whether the physician’s treatment for those injuries were

reasonable and necessary and whether the financial charges made for the services were

reasonable and necessary, and (2) whether a party is precluded from re-deposing its own

expert witness when the opposing party does not prove that the expert is affirmatively

disqualified, but only shows that there has been a failure to establish in the record the

qualifications of the expert. Before we commence our analysis, we first set out the

applicable standard of review.


                                   Standard of Review


      A writ of mandamus will only issue to correct a clear abuse of discretion or violation

of a duty imposed by law when there is no adequate remedy by law. Walker v. Packer,

827 S.W.2d 833, 839 (Tex. 1992) (orig. proceeding). Also the relator has the burden to

present the appellate court with a record sufficient to establish the right to mandamus.

Id. at 837. Delay, inconvenience, or expense of an appeal does not constitute the absence

of an adequate remedy by appeal, but instead


      the relator must establish the effective denial of a reasonable opportunity to
      develop the merits of his or her case, so that the trial would be a waste of
      judicial resources. . . . Similarly, a denial of discovery going to the heart of
      a party’s case may render the appellate remedy inadequate.


Walker, 827 S.W.2d at 843.




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      We commence our analysis by focusing our attention on the rule that mandamus

is available only if relators have demonstrated that they have no adequate remedy by

appeal. By their motion to reinstate and to reconsider order, among other things, relators

contended:


      2. [t]he exclusion of Dr. Townsend as an expert witness is not the result of
      an affirmative showing that he is disqualified to testify as an expert; rather
      the record before the Court was that there has not been an affirmative
      showing of a proper predicate for his qualifying as an expert in this case.
      3. The purpose of this second deposition is to establish that indeed there
      existed . . . sufficient legal and factual basis for Dr. Townsend to testify as
      an expert for the plaintiff . . .


but that his expert status was denied because of the failure of the record to affirmatively

demonstrate a proper scientific basis for his opinions or that the appropriate questions

were not asked, and that the reason he did not so testify in his original video deposition

was that he was not asked.


       By their petition here, relators present similar arguments, asserting:


       •      Dr. Townsend’s status as an expert was denied because of a failure
              to affirmatively demonstrate a proper scientific basis for his opinions.
              That failure was not the result of affirmatively demonstrating the lack
              of such basis; it was the result of a failure to ask the proper questions
              to elicit such proper scientific basis.
       •      Dr. Townsend was never asked the medical or scientific standard
              upon which he based his opinions. Had he been asked, he would
              have testified that he based his opinions on “reasonable medical
              probability.”


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       •      The reason he did not so testify in his original deposition was that he
              was not asked.


Relators argue that when the “qualification barrier” has been met, Dr. Townsend may

testify as to his opinion concerning the diagnosis, causation, etc. Then, they conclude that

to block the deposition was an abuse of discretion by the trial court.


       The two orders of the trial court in the underlying proceeding do not preclude

relators’ exercise of other means of discovery. See, e.g., Tex. R. Civ. P. 199.1(b), 200.

Accordingly, relators have failed to establish the effective denial of a reasonable

opportunity to develop the merits of their case. Therefore, they have not met the second

test of Walker, 827 S.W.2d at 843, and have not shown a lack of an adequate remedy by

law.


       Accordingly, relators’ petition for writ of mandamus is denied.




                                                 Per Curiam


Johnson, C.J., not participating.




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