                                    NUMBER 13-10-00042-CV

                                   COURT OF APPEALS

                       THIRTEENTH DISTRICT OF TEXAS

                          CORPUS CHRISTI - EDINBURG


                         IN RE: CARL BAUMGARTNER, III AND
                             TETRA TECHNOLOGIES, INC.


                             On Petition for Writ of Mandamus.


                                MEMORANDUM OPINION

            Before Chief Justice Valdez and Justices Yañez and Vela
                       Memorandum Opinion Per Curiam1

        By petition for writ of mandamus, relators, Carl Baumgartner, III and Tetra

Technologies, Inc., challenge an order of the trial court striking their designation of Richard

Allnutt, M.D., M.P.H., M.S., as a bio-mechanical expert witness. The Court requested and

received a response from the real parties in interest, Carrie Basaldua and Dionicio

Basaldua. We deny the writ.


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          See T EX . R . A PP . P . 5 2 .8 (d ) (“W hen denying relief, the court m ay hand dow n an opinio n but
is not required to do so.”); T EX . R . A PP . P . 47.4 (distinguishing opinions and m em orandum opinions).
       Mandamus will issue only to correct a clear abuse of discretion for which relators

have no adequate remedy at law. In re Prudential Ins. Co. of Am., 148 S.W.3d 124, 135

(Tex. 2004) (orig. proceeding); Walker v. Packer, 827 S.W.2d 833, 839-40 (Tex. 1992)

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

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

principles. City of San Benito v. Rio Grande Valley Gas Co., 109 S.W.3d 750, 757 (Tex.

2003). An appellate remedy is adequate when any benefits to mandamus review are

outweighed by the detriments; on the other hand, when the benefits outweigh the

detriments, appellate courts must consider whether the appellate remedy is adequate. In

re Prudential Ins. Co., 148 S.W.3d 124, 136 (Tex. 2004) (orig. proceeding) (op. on reh’g).

A party does not have an adequate remedy by appeal when, inter alia, the party's ability

to present a viable claim or defense is severely compromised or vitiated by the erroneous

discovery ruling to the extent that it is effectively denied the ability to develop the merits of

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

       The Court, having examined and fully considered the petition for writ of mandamus

and the response thereto, is of the opinion that relators have not shown themselves

entitled to the relief sought. First, based on the allegations herein, we conclude that

relators have not shown that they lack an adequate remedy by appeal. Relators have

neither clearly established the impossibility of defending the underlying personal injury

lawsuit, nor have they shown that the exclusion of the expert testimony prevents them from

defending against the claims of the real parties in interest such that a trial would be a waste

of judicial resources, nor have they shown that a remedy by appeal will cause them “the



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permanent loss of substantial rights.” In re Kan. City S. Indus., 139 S.W.3d 669, 670 (Tex.

2004). In this regard, we note that, although the real parties in interest had designated an

expert in bio-mechanics by November 21, 2008, the deadline included in the original

agreed scheduling order, they have stated on the record that they do not intend to call this

expert at trial.

       Second, relators have not established that the trial court clearly abused its discretion

in excluding the expert witness at issue herein. See Fort Brown Villas v. Gillenwater, 285

S.W.3d 879, 882 (Tex. 2009) (discussing the current pretrial discovery rules which

“establish a date certain for the completion of discovery, which depends on the discovery

plan level and not on the trial date” and concluding that the trial court did not abuse its

discretion in striking an expert affidavit in the summary judgment context where the expert

was not timely designated); see TEX . R. CIV. P. 190.3 (providing the time limitations for

discovery in a level 2 case), TEX . R. CIV. P. 195.2 (delineating the schedule for designating

experts); see also TEX . R. CIV . P. 190.5 (providing that the trial court “may” modify a

discovery control plan at any time and “must” do so when “the interest of justice requires”),

TEX . R. CIV. P. 193.6 (providing for the exclusion of evidence that was not timely disclosed

unless the proponent of the evidence establishes good cause or a lack of unfair surprise

or prejudice). In this regard, we note that the case was pleaded as a discovery level 2 case

and the agreed scheduling order does not meet the requirements established by the rules

of civil procedure for a level 3 case. See TEX . R. CIV. P. 190.2-.4 (discussing the

application and limitations for the three levels of discovery control plans).        Relators

deposed the treating physician for the real parties in interest, who provided testimony

pertaining to the causation of damages, on July 10, 2008 and deposed the real party at

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issue herein, Carrie Basaldua, on May 19, 2009, yet relators did not attempt to designate

Allnutt until September 22, 2009. Under these circumstances, relators have neither shown

that Allnutt’s designation was necessary because of new pleadings or information, or that

matters had changed materially after the discovery cutoff, nor have they shown good cause

for the late designation or the lack of unfair surprise or prejudice to real parties in interest.

       Accordingly, the stay previously imposed by this Court is LIFTED and the petition

for writ of mandamus is DENIED. See TEX . R. APP. P. 52.8(a).

                                                       PER CURIAM


Delivered and filed
the 11th day of March, 2010.




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