

Petition for Writ of Mandamus Denied and
Memorandum Opinion filed April 20, 2010
 
 
In
The
Fourteenth
Court of Appeals

NO. 14-10-00352-CV

 
In Re Andrews Transport, L.P.,
Relator

 

ORIGINAL
PROCEEDING

WRIT OF MANDAMUS

MEMORANDUM
 OPINION
On April 19, 2010, relator, Andrews Transport, L.P.,
filed a petition for writ of mandamus in this Court.  See Tex. Gov’t
Code Ann. §22.221 (Vernon 2004); see also Tex. R. App. P. 52.  In the
petition, relator asks this Court to compel the Honorable Jaclanal McFarland,
presiding judge of the 133rd District Court of Harris County, to set aside the
following three oral rulings: (1) the April 13, 2010 ruling denying relator’s
motion to reconsider the trial court’s November 24, 2008 discovery order,
requiring relator to produce “a calculation of all monies” paid to relator’s
expert, Dr. Leonard Hershkowitz, by “[relator’s] law firm and/or insurance
carrier for the past three years,” and its March 30, 2009 order, striking the
designation of relator’s expert witness, Dr. Hershkowitz, as a sanction for
violating the November 24, 2008 discovery order; (2) the April 16, 2010 ruling
denying relator’s renewed motion for reconsideration of the March 30, 2009
sanction order; and (3) the April 16, 2010 ruling granting an oral Daubert/
Robinson motion[1]
made by real party in interest, Patrese Aceves, and striking the designation of
relator’s expert Dr. Hershkowitz on Daubert/Robinson grounds. 
Relator argues the trial court’s November 24, 2008
discovery order requires production of materials outside the scope of
discovery.  Relator asserts the trial court’s March 30, 2009 sanction order
striking relator’s only expert witness (Dr. Hershkowitz) was entered without
proper notice and a hearing.  Relator argues that the sanction is more severe
than necessary to justify legitimate purposes and does not have a direct
relationship to the offensive conduct.  Relator contends the April 16, 2010 Daubert
order is improper because Aceves made the motion orally and without notice to
relator, and the motion is without merit.  
Presuming relator has shown a clear abuse of
discretion, relator has an adequate remedy by appeal.  Therefore, relator has
not established its entitlement to the extraordinary relief of a writ of
mandamus.  Accordingly, we deny relator’s’ petition for writ of mandamus and
related emergency motion to stay the trial.  
 
                                                                                    PER
CURIAM
 
 
 
Panel consists of Justices Anderson, Frost, and Seymore.




[1]
See Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579 (1993); E.I. du
Pont de Nemours & Co. v. Robinson, 923 S.W.2d 549 (Tex. 1995).  


