                               NUMBER 13-12-00738-CV

                               COURT OF APPEALS

                   THIRTEENTH DISTRICT OF TEXAS

                      CORPUS CHRISTI – EDINBURG

           IN RE TEREX USA, L.L.C., TEREX DEMAG GMBH, TEREX
            DEMAG GMBH & CO. KG, AND TEREX CORPORATION


                         On Petition for Writ of Mandamus.


                           MEMORANDUM OPINION
                Before Justices Garza, Benavides, and Perkes
                  Memorandum Opinion by Justice Garza1

       Relators, Terex USA, L.L.C., Terex Demag GmbH, Terex Demag GmbH & Co.

KG, and Terex Corporation (collectively “Terex”), have filed a petition for writ of

mandamus contending that the Honorable Robert Vargas, presiding judge of the County

Court at Law Number 1 of Nueces County, Texas, abused his discretion, leaving Terex

without an adequate appellate remedy, by rendering an “Order Granting Plaintiff’s


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         See TEX. R. APP. P. 47.4 (distinguishing opinions and memorandum opinions), 52.8(d) (“When
denying relief, the court may hand down an opinion but is not required to do so.”).
Motion to Compel” dated November 16, 2012. On December 6, 2012, we issued a

temporary emergency stay of the order pending our review of the petition for writ of

mandamus, and we ordered real party in interest, Clayton Burnett, to file any response

to Terex’s petition. Burnett filed a response with this Court on December 20, 2012. We

will deny Terex’s petition.

       The underlying case is a products liability suit filed by Burnett arising from injuries

he sustained while working with a Terex-built crane. The trial court granted a motion

filed by Burnett to compel Terex to produce all files relating to all incidents involving

Terex-made cranes which were reported to Terex’s product safety director, Klaus

Meissner, between 2007 and 2011.          Burnett’s request was based on the fact that

Meissner testified in deposition that “most of these incidents [involving Terex cranes]

are simply operator faults.”      Burnett claimed that Meissner’s testimony “raises a

question” as to whether Terex “had a problem with the way it was instructing the

operators to use the crane” and whether it had knowledge that “on a regular and

reoccurring basis its cranes were misused.” Those facts, if true, would be relevant

because Terex is asserting the affirmative defense of operator misuse, and one of the

elements of that defense is showing that the misuse was not reasonably foreseeable by

the manufacturer. See, e.g., Houston Lighting & Power Co. v. Reynolds, 765 S.W.2d

784, 786 (Tex. 1988).

       The trial court’s order compelled Terex to: (1) produce to Burnett all files related

to any incident reported to Meissner between 2007 and 2011 where operator misuse

was alleged by Terex; and (2) produce to a Special Master all files related to any

incident reported to Meissner between 2007 and 2011 where operator misuse was not



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alleged by Terex. Terex claims the order was overly broad because it was not limited

to: (1) the particular type of crane used in Burnett’s accident; (2) the particular type of

accident that he was involved in (i.e., a failed boom lug); or (3) the time preceding

Burnett’s accident.

       In his response, Burnett claims that the request was “specifically tailored” to

incidents reviewed by Meissner. He points to Texas Rule of Civil Procedure 192.3(e),

which allows the discovery of “the facts known by the [testifying] expert that relate to or

form the basis of the expert's mental impressions and opinions formed or made in

connection with the case in which the discovery is sought, regardless of when and how

the factual information was acquired.”      TEX. R. CIV. P. 192.3(e) (emphasis added).

Burnett also contends that Terex waived its overly-broad and date-related complaints

because it failed to raise those complaints with the trial court.

       Mandamus will issue to correct a clear abuse of discretion for which the remedy

by appeal is inadequate. In re Prudential Ins. Co. of Am., 148 S.W.3d 124, 135-36

(Tex. 2004) (orig. proceeding). A trial court abuses its discretion when it acts in an

unreasonable or arbitrary manner, when it acts without reference to guiding rules and

principles, or when it clearly fails to analyze or apply the law correctly.     Walker v.

Packer, 827 S.W.2d 833, 839-40 (Tex. 1992) (orig. proceeding); Beaumont Bank, N.A.

v. Buller, 806 S.W.2d 223, 226 (Tex. 1991).           Overly broad discovery orders are

remediable by mandamus. In re Deere & Co., 299 S.W.3d 819, 820 (Tex. 2009).

       We do not believe the trial court abused its discretion here. Accidents post-

dating Burnett’s injury would be relevant as to whether Terex could have reasonably

foreseen the particular operator misuse alleged here.          In any event, that specific



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complaint was not made to the trial court and so it has been waived. See TEX. R. APP.

P. 33.1(a)(1). Accidents where operator misuse has not been alleged must be reported

only to the Special Master, who will then determine discoverability, so Terex cannot

show that it was harmed by this provision of the order. See TEX. R. APP. P. 44.1(a)(1).

Moreover, we believe it is reasonable to allow a master to go through those incident

reports to determine what relevance they have, if any, to Terex’s affirmative defense.

Finally, Meissner testified in deposition that assembling a list of all accident reports—

without regard to the particular crane or accident type—would not be difficult. The trial

court was therefore within its discretion to order production of all of those files.

       Having fully reviewed relators’ petition and the response filed by real party in

interest, we conclude that relators have not shown themselves entitled to the relief

sought and the petition for writ of mandamus should be denied.               Accordingly, the

petition for writ of mandamus is DENIED. Further, we hereby LIFT the stay previously

imposed by this Court on December 6, 2012.



                                                   PER CURIAM

Delivered and filed the
4th day of January, 2013.




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