Southwestern Bell Telephone Co. v. Sanderson

OPINION

BURGESS, Justice.

This is a writ of mandamus action. David and Barbara Miller (Millers) filed suit against Southwestern Bell Telephone Company (Southwestern Bell) and others to seek recovery for the death of their child. The Millers’ vehicle left the road and flipped on its side. The child was thrown from the vehicle and the Millers allege he was decapitated by a guy wire attached to one of Southwestern Bell’s telephone poles. Southwestern Bell alleges the automobile broke the guy wire and it was not involved in any injury to the child.

In early 1989, Southwestern Bell sent discovery requesting information regarding the Millers’ experts. Specifically they were asked to list information regarding the identity, location and subject matter of testimony of each expert the Millers intended to call as witnesses. The Millers were also asked to produce “copies of all ... items of physical tangible evidence which will be relied on by your expert(s)_” On January 25, 1991, the Millers delivered to a co-defendant supplemental responses naming two additional expert witness, including Dr. Charles S. Petty, a pathologist. The supplemental answers included a preliminary report from Dr. Petty. This report indicated the child’s body had been exhumed on January 16 and Dr. Petty had formulated some opinions based upon the examination of the exhumed remains. On January 28, Southwestern Bell filed a “Motion to Exclude Evidence Obtained in Unilateral Exhumation....” This motion stated, in pertinent part, “Such evidence should be excluded on the basis that its examination and reinterment without notice to Defendant and an opportunity for Defendant to attend violated an outstanding discovery request. The penalty for the Court to impose in such a situation is automatic exclusion of the evidence unless “good cause” is shown, (citation omitted) This has substantially deprived the Defendant of the opportunity to examine and have its experts view this piece of evidence prior to the Plaintiffs’ alteration of the body. The time, administrative difficulties, and expense associated with a re-exhumation of the body as [sic] effectively put this piece of evidence out of the reach of Defendant and left Defendant with no adequate remedy outside the exclusion of the evidence.” On February 1, Southwestern Bell filed a supplemental brief averring that the Millers had not only violated rule 166b(6), Texas Rules of Civil Procedure, but also rule 167(l)(g). That same day a hearing was held on Southwestern Bell’s motion. At the conclusion of that hearing, the trial court ruled that the Millers should turn over the photographs obtained in the exhumation, as well as Dr. Petty’s report two weeks prior to taking Dr. Petty’s deposition. The court reserved ruling on the motion to exclude pending those matters. On February 22, Southwestern Bell filed a “Supplemental Motion to Exclude Evidence and for Additional Sanctions Under Rule 215....” On March 1, the court below denied Southwestern Bell’s motions to prohibit the Millers “from opposing the fact that Chad Miller’s decapitation and arm severance took place during the rollover sequence in the accident” and “precluding Plaintiffs’ use of any evidence obtained or based upon the exhumation of Chad Mil*487ler’s remains.” The court also denied a motion for continuance, but did order “that Defendants are allowed to inspect Chad Miller’s body.” That same day, Southwestern Bell filed its motion for leave to file petition for writ of mandamus. This court, one justice dissenting, granted the motion for leave and stayed the trial court proceedings. Tex.R.App.P. 121(e), (d). We now deny the petition for mandamus.

Southwestern Bell urges mandamus is appropriate. They seek to compel the trial judge to strike Dr. Petty as an expert and to prohibit the use of the physical evidence from Chad Miller’s corpse. They argue that Dr. Petty, although designated more than 30 days before trial, was not designated “as soon as practical”, Tex.R. Civ.P. 166b(6)(b), and the trial court abused his discretion in not striking Dr. Petty. They cite as authority Builder’s Equipment Co. v. Onion, 713 S.W.2d 786 (Tex. App.-San Antonio 1986, orig. proceedings). However, in that case, the trial court did strike a witness who was designated 35 days before trial and the appeals court refused to issue the writ of mandamus holding that it was within a trial court’s discretion to make a factual determination of the “as soon as practical” requirement and absent a clear abuse of discretion, mandamus would not issue.

This case, however, is not the granting of a motion to strike a witness, but the denial of same. In this instance, mandamus is not even available. A writ of mandamus is available to correct a clear abuse of discretion when there is no adequate remedy at law. Jampole v. Touchy, 673 S.W.2d 569 (Tex.1984). The trial court has merely refused to grant a pre-trial “suppression” motion. The witness may or may not be allowed to testify during the trial on the merits. This is not a discovery dispute involving either the obtaining or retaining of material. This is, in reality, an evidentiary objection that can and should be reurged at trial and then reviewed in the regular course of an appeal. Thus, we differ with the San Antonio court on the issue of the availability of mandamus. If, however, mandamus is available, we hold the trial court did not abuse his discretion in refusing to strike Dr. Petty as an expert.

Southwestern Bell’s reliance upon rule 167(l)(g) is simply misplaced. Subsection (g) must be read in conjunction with the entire rule. Rule 167 is entitled “DISCOVERY AND PRODUCTION OF DOCUMENTS AND THINGS FOR INSPECTION, COPYING OR PHOTOGRAPHING.” Section (1) states: “Any party may serve on any other party a REQUEST: .... ” Subsection (g) is clearly meant to protect items a party has produced pursuant to a request. This is not the case here. Even if there was any destruction or material alteration (this is a fact issue which was contested), it was not of any article produced by Southwestern Bell, thus Rule 167(l)(g) does not apply. Additionally our analysis of the previous complaint applies here. This is not a discovery issue. It is a pre-trial evidentiary ruling not subject to mandamus. The trial court may or may not admit the evidence during the trial. Once again, this evidentiary ruling will be subject to review on direct appeal.

The issuance of the writ of mandamus is denied.

WRIT DENIED.