                                    NUMBER 13-09-00128-CV

                                   COURT OF APPEALS

                       THIRTEENTH DISTRICT OF TEXAS

                          CORPUS CHRISTI - EDINBURG


                                 IN RE SDI INDUSTRIES, INC.


                             On Petition for Writ of Mandamus


                                    MEMORANDUM OPINION

                Before Justices Yañez, Rodriguez, and Benavides
                       Per Curiam Memorandum Opinion1

        Relator, SDI Industries, Inc., filed a petition for writ of mandamus and motion for

immediate temporary relief in the above cause on March 12, 2009. That same day, the

real party in interest, Sandra Ayala, individually and as representative of the estate of Juan

Carlos Ayala, incompetent, and as next friend of Kristy Lamar Ayala and Juan Carlos

Ayala, Jr., a minor, filed an emergency response to the motion for immediate temporary

relief. On March 13, the Court ordered the motion for immediate temporary relief to be


        1
           See T EX . R. A PP . P. 52.8(d) (“W hen denying relief, the court m ay hand down an opinion but is not
required to do so.”); T EX . R. A PP . P. 47.4 (distinguishing opinions and m em orandum opinions).
carried with the case pending further order of this Court, and further requested that the real

party in interest file a response to relators' petition for writ of mandamus. Such response

has been duly filed.

       Through this original proceeding, relator asks this Court to order the trial court to:

(1) vacate its order striking SDI’s expert designations and allow SDI’s designation of expert

witnesses pursuant to the terms of the parties’ Rule 11 agreement; and (2) vacate its order

refusing to permit the designation of responsible third parties and grant SDI leave to

designate responsible third parties. For the reasons stated herein, we deny the petition for

writ of mandamus.

                                   II. Standard of Review

       Mandamus is an extraordinary remedy, which is available only when a trial court has

clearly abused its discretion and the relator lacks an adequate remedy by appeal. See In

re Prudential Ins. Co. of Am., 148 S.W.3d 124, 135-36 (Tex. 2004) (orig. proceeding)

(citing Walker v. Packer, 827 S.W.2d 833, 840 (Tex. 1992)); see also In re Team Rocket,

L.P., 256 S.W.3d 257, 259 (Tex. 2008) (orig. proceeding).

                       III. Designation of Responsible Third Parties

       We first address the trial court’s alleged abuse of discretion in failing to allow relator

to designate responsible third parties. The circumstances presented herein are neither

exceptional nor extraordinary and the benefits to mandamus review are outweighed by the

detriments. In other words, relator has failed to establish that it lacks an adequate remedy

by appeal. See TEX . R. CIV. P. 37, 38; In re Unitec Elevator Servs. Co., 178 S.W.3d 53,

64-66 (Tex. App.–Houston [1st Dist.] 2005, orig. proceeding); In re Martin, 147 S.W.3d

453, 458-59 (Tex. App.–Beaumont 2004, orig. proceeding); In re Arthur Andersen L.L.P,


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121 S.W.3d 471, 485-86 (Tex. App.–Houston [14th Dist.] 2003, orig. proceeding).

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

mandamus and response thereto with regard to the designation of responsible third

parties, is of the opinion that relator has not shown itself entitled to the relief sought.

        In so holding, we are cognizant that the concept of what constitutes an “adequate”

remedy by appeal, has undergone a recent evolution in the Texas Supreme Court,

compare In re McAllen Med. Ctr., Inc., No. 05-0892, 51 Tex. Sup. Ct. J. 1302, 2008 Tex.

LEXIS 759, at *6 (Tex. Aug. 29, 2008) (orig. proceeding), and In re Prudential Ins. Co. of

Am., 148 S.W.3d 124, 135-36 (Tex. 2004); with Walker v. Packer, 827 S.W.2d 833, 840

(Tex. 1992) (orig. proceeding), and we are further aware that the specific issue herein is

under consideration by the Texas Supreme Court. See In re Scoggins Constr. Co., No.

13-08-00317-CV, 2008 WL 2721811 (Tex. App.–Corpus Christi June 30, 2008, orig.

proceeding [mand. pending]). However, we believe that our analysis and conclusion in this

case is compelled by the traditional standards of mandamus review, the standards for

mandamus review of decisions regarding the designation of responsible third parties as

articulated by our fellow courts of appeals, and our own precedent.

        The petition for writ of mandamus, as it relates to the designation of responsible

third parties, is DENIED. See TEX . R. APP. P. 52.8(a).

                                    IV. Striking Expert Witnesses

        We next consider the trial court’s alleged abuse of discretion in striking three of

relator’s expert witnesses, leaving it with other experts to testify at trial.2 Decisions as to

        2
          The trial court struck four of relator’s expert witnesses; however relator’s petition for writ of
m andam us concerns the trial court’s actions with regard to only three of its experts. Relator does not
challenge the trial court’s striking of one expert who was designated after the deadline im posed by a rule 11
agreem ent between the parties.

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the admission or exclusion of evidence are left to the trial court's discretion. In re J.P.B.,

180 S.W.3d 570, 575 (Tex. 2005). This standard extends to a trial court's admission or

exclusion of expert testimony. Gammill v. Jack Williams Chevrolet, Inc., 972 S.W.2d 713,

718 (Tex. 1998). 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).

         The trial court's ruling on the admissibility of expert testimony is commonly reviewed

on direct appeal for an abuse of discretion. See, e.g., Broders v. Heise, 924 S.W.2d 148,

151 (Tex. 1996). Based on the record presented, we conclude that relator has an

adequate remedy by appeal. See In Re Ford Motor Co., 988 S.W.2d 714, 721 (Tex. 1998);

In re Thornton-Johnson, 65 S.W.3d 137, 139 (Tex. App.–Amarillo 2001, orig. proceeding)

(denying mandamus relief for order excluding expert); In re Kellogg Brown & Root, Inc., 7

S.W.3d 655, 658 (Tex. App.–Houston [1st Dist.] 1999, orig. proceeding) (same).

         In the instant case, relator has not clearly established the impossibility of defending

the underlying personal injury lawsuit. Nor has relator shown that striking these three

experts prevents it from defending against the claims of the real party in interest such that

a trial would be a waste of judicial resources. Nor has relator shown that a remedy by

appeal will cause it “the permanent loss of substantial rights.”       See In re Kan. City S.

Indus., 139 S.W.3d 669, 670 (Tex. 2003) (orig. proceeding).

         In holding that relator has an adequate remedy by appeal, we need not address

whether or not the trial court’s ruling striking relator’s experts constituted an abuse of

discretion. However, we note that relator’s designation of these experts and the provision


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of the expert reports was encompassed by an agreement under Rule 11 of the Texas

Rules of Civil Procedure. See TEX . R. CIV. P. 11; see generally In re BP Prods. N. Am.,

244 S.W.3d 840, 846 (Tex. 2008) (orig. proceeding).3

        The petition for writ of mandamus, as it relates to the striking of relator’s expert

witnesses, is DENIED. See TEX . R. APP. P. 52.8(a).

                                               V. Conclusion

        The petition for writ of mandamus is DENIED. The motion for immediate temporary

relief, which was previously carried with the case is likewise DENIED.


                                                                              PER CURIAM

Memorandum Opinion delivered and
filed this 23rd day of March, 2009.




        3
          Real party in interest contends, and the trial court apparently agreed, that relator breached the rule
11 agreem ent allowing an extension of tim e to designate experts and provide reports when relator designated
one expert after the designation deadline contained in the parties’ rule 11 agreem ent. Interestingly, however,
instead of enforcing the rule 11 agreem ent and m oving to strike only the late-designated expert, the real party
m oved to strike all experts designated pursuant to the agreem ent and all reports produced pursuant to the
agreem ent.

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