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In re Pena5/12/2005
Before Chief Justice Valdez and Justices Hinojosa and Yanez
Per Curiam Memorandum Opinion
In this original proceeding, relators, Roel Pena and Aventis Pharmaceuticals, Inc., request the Court to direct the Honorable Bobby Flores to vacate his April 4, 2005, "Order Limiting the Testimony of Defendants' Expert Witness, Leonard Vaughan." Relators, defendants below, argue that the exclusion of Vaughan's testimony is tantamount to a death penalty sanction. Because we conclude that relators have an adequate remedy by appeal, we deny mandamus relief without reaching the merits of the trial court's ruling excluding Vaughan's testimony.
Background
The underlying cause is a personal injury action for damages arising from a collision between a motor vehicle and a motorcycle. Relators retained Vaughan, an accident reconstruction consultant, to testify as an expert regarding the cause of the accident at issue, the speed of the vehicles, and the "rules of the road" concerning motorcycles and automobiles. Real parties in interest, Angel Eliseo Chacon and Sheila Mordan, moved to exclude Vaughan's testimony arguing that Vaughan is not qualified to testify because he is not an engineer and his opinions are neither relevant nor reliable. See generally Tex. R. Evid. 702; Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579 (1993); Gammill v. Jack Wiliams Chevrolet, Inc., 972 S.W.2d 713 (Tex. 1998); E.I. du Pont de Nemours & Co. v. Robinson, 923 S.W.2d 549 (Tex. 1995). By an amended motion to exclude, real parties in interest additionally argued that Vaughan's expert report was based on information gathered from an unidentified witness, and such testimony constituted "unreliable and inadmissible hearsay."
The trial court granted real parties' motion to exclude, in part, and limited the scope of Vaughan's testimony. According to the trial court's order, the court found that "there is insufficient factual predicate" with respect to Vaughan's opinions regarding the speed of the motorcycle prior to the collision, as well as separation speed, post-collision speed, and the ultimate resting location of the motorcycle after the accident, and the trial court thus struck Vaughan's proposed testimony regarding these issues. The court further ruled that "Vaughan is not qualified and will not be allowed to testify as to engineering opinions or calculations."
Standard of Review
Mandamus is an extraordinary remedy, available only when a trial court clearly abuses its discretion and there is no adequate remedy on appeal. Walker v. Packer, 827 S.W.2d 833, 840-44 (Tex. 1992); In re Steiger, 55 S.W.3d 168, 170-71 (Tex. App.--Corpus Christi 2001, 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 may be adequate even though it involves more delay or cost than mandamus. Walker, 827 S.W.2d at 842. 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) (op. on reh'g). An appeal is inadequate when it comes too late to correct the court's error without the loss of substantial rights to the complaining party. In re Kan. City S. Indus., 139 S.W.3d 669, 670 (Tex. 2004).
A party does not have an adequate remedy by appeal when: (1) an appellate court would
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