
 
 





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 Opinion (1)


 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
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,
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
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
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.

 

 
1.   See Tex. R. App. P. 52.8(d) ("When denying relief, the court may hand down an opinion but is not
required to do so."); Tex. R. App. P. 47.4 (distinguishing opinions and memorandum opinions).
2.  The trial court struck four of relator's expert witnesses; however relator's petition for writ of
mandamus 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 imposed by a rule 11
agreement between the parties.
3.  Real party in interest contends, and the trial court apparently agreed, that relator breached the rule
11 agreement allowing an extension of time to designate experts and provide reports when relator  designated
one expert after the designation deadline contained in the parties' rule 11 agreement.  Interestingly, however,
instead of enforcing the rule 11 agreement and moving to strike only the late-designated expert, the real party
moved to strike all experts designated pursuant to the agreement and all reports produced pursuant to the
agreement.  

