Fourth Court of Appeals

San Antonio, Texas

MEMORANDUM OPINION

No. 04-19-00528-CV

IN RE John EBIN and Joyce O’Connor

Original Mandamus Proceeding1

Opinion by: Sandee Bryan Marion, Chief Justice

Sitting: Sandee Bryan Marion, Chief Justice

Rebeca C. Martinez, Justice

Patricia O. Alvarez, Justice

Delivered and Filed: November 13, 2019

PETITION FOR WRIT OF MANDAMUS CONDITIONALLY GRANTED IN PART AND 

DENIED IN PART

Relators, John Ebin and Joyce O’Connor, assert the trial court abused its discretion by 

striking their causation expert and their insurance-claims-handling expert. Because we conclude 

the trial court erred by striking relators’ causation expert, we grant the petition for writ of 

mandamus in part. We deny all other relief.

BACKGROUND

Following a June 2016 hail storm, relators’ insurance carrier, USAA Casualty Insurance 

Co. (“USAA”), sent an independent adjustor, Allcat Claims, to inspect relators’ home. Allcat’s 

inspector, Clint Singleton, estimated damage to the home in the form of twelve hail damaged roof 

 1 This proceeding arises out of Cause No. 17365B, styled Joyce O’Connor and John C. Ebin v. USAA Casualty 

Insurance Company and Kimberly Schaeffer, pending in the 198th Judicial District Court, Kerr County, Texas, the 

Honorable Rex Emerson presiding.
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tiles and other interior and exterior damages. Singleton’s repair estimate totaled slightly more than 

$10,000. Relators then retained a public adjuster, Insurance Claim Advantage (“ICA”), which 

inspected the home in November 2016. ICA submitted an estimate of $121,253.99. ICA later 

revised its estimate to $128,248.98. USAA denied the amount presented by ICA’s adjuster, 

Lindsey Douglas. Relators later sued USAA, alleging USAA failed to properly pay for the 

replacement of relators’ roof and other items allegedly damaged in the hail storm. Relators 

retained two experts who are the subject of this original proceeding: (1) Derek Steiner on causation 

and (2) Adam Brenner on claims handling. In 2018, two years after the hailstorm, Steiner 

inspected relators’ home. He submitted an initial estimate that mirrored ICA’s with an amount of 

$121.253.99. Steiner later revised his estimate to $128,248.98.

USAA filed motions to strike the testimony and reports of both experts. On August 1, 

2019, the trial court conducted a hearing on the motions. The next day, the trial court signed two 

orders striking both experts. Relators filed their petition for writ of mandamus and USAA filed a 

response.

STANDARD OF REVIEW

Mandamus is an extraordinary remedy. In re Sw. Bell Tel. Co., L.P., 235 S.W.3d 619, 623 

(Tex. 2007) (orig. proceeding). Mandamus will issue only to correct a clear abuse of discretion 

when there is no other adequate remedy at law. Id. To satisfy the clear abuse of discretion 

standard, the relator must show “the trial court could reasonably have reached only one decision.” 

Liberty Nat’l Fire Ins. Co. v. Akin, 927 S.W.2d 627, 630 (Tex. 1996) (orig. proceeding) (quoting 

Walker v. Packer, 827 S.W.2d 833, 840 (Tex. 1992) (orig. proceeding)). The relator has the burden 

of establishing both prerequisites to mandamus relief, and this burden is a heavy one. In re CSX 

Corp., 124 S.W.3d 149, 151 (Tex. 2003) (orig. proceeding) (per curiam). 
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CAUSATION EXPERT

Relators designated Derek Steiner as their expert on causation and damages. In its motion 

to strike Steiner, USAA raised two challenges to Steiner. First, USAA alleged Steiner’s report, 

cost estimate, and testimony failed to use any scientific method to investigate damages and were 

not based on a reliable foundation. Second, Steiner’s report, estimate, and testimony are not 

relevant as to the reasonableness of USAA’s investigation and coverage decision.2

A. Admissibility of Expert Testimony

An expert’s opinion is admissible under Texas Rule of Evidence 702 if the expert is

qualified, the expert’s opinion is relevant to the issues in the case, and the expert’s opinion is based 

upon a reliable foundation. See TEX. R. EVID. 702. Rule 702’s reliability requirement focuses on 

principles, research, and methodology underlying an expert’s conclusions. See E.I. du Pont de 

Nemours & Co., Inc. v. Robinson, 923 S.W.2d 549, 557 (Tex. 1995). Under this requirement, 

expert testimony is reliable if it is grounded “in the methods and procedures of science” and is 

more than merely a “subjective belief or unsupported speculation.” Id. (quoting Daubert v. Merrell 

Dow Pharm., Inc., 509 U.S. 579, 590 (1993)). In addition to the “methods and procedures of 

science” factors considered under Robinson, when the subject matter of an expert’s opinion 

requires an expert to rely on experience, knowledge, and training rather than a certain methodology 

to reach a conclusion, a court makes the reliability assessment by determining whether there is 

“too great an analytical gap between the data and the opinion proffered.” Mack Trucks, Inc. v. 

Tamez, 206 S.W.3d 572, 578 (Tex. 2006) (citing Gammill v. Jack Williams Chevrolet, Inc., 972 

S.W.2d 713, 726 (Tex. 1998)). Regardless, “there must be some basis for the opinion offered to 

 2 During his deposition, Steiner stated he did not intend to testify about the reasonableness of USAA’s or Allcat’s 

investigation. To the degree the trial court’s order may have encompassed such testimony, in their petition for writ of 

mandamus, relators do not assert the trial court erred by striking Steiner’s testimony on USAA’s investigation and 

coverage decision.
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show its reliability.” Gammill, 972 S.W.2d at 726. “An expert’s bare opinion will not suffice and 

is unreliable if based solely upon his subjective interpretation of the facts.” Volkswagen of Am., 

Inc. v. Ramirez, 159 S.W.3d 897, 906 (Tex. 2004).

B. Reliability of Steiner’s Opinion on Causation

In its motion to strike Steiner as relators’ causation expert, USAA did not challenge 

Steiner’s qualifications or whether his opinion was relevant. Instead, USAA challenged the 

reliability of Steiner’s opinion on the ground that he merely copied his report verbatim from ICA’s 

estimate of damages, ICA’s estimates on which Steiner based his opinion were unreliable, 

Steiner’s deposition testimony contradicted his own report, and his report disagreed with the 

homeowner’s testimony.

In its response to the petition for writ of mandamus, USAA contends Steiner merely 

“dutifully reported” whatever the author of the ICA estimate “dictated.” For example, USAA 

points to the following:

Relators initially designated ICA’s adjuster, Lindsey Douglas, as their causation 

expert. However, in her deposition, Douglas testified she did not perform any 

inspection of relators’ home, she did not create the estimate submitted by ICA, she 

did not know who wrote the estimates or performed the inspections, she did not 

know whether the estimates were accurate, and ICA received a 5% to 10% fee on 

moneys recovered by their clients. After the deposition, relators de-designated 

Douglas.

The 2016 ICA estimates called for skylights replacement and Steiner’s estimate

agreed. However, by the time Steiner inspected the house, the skylights had already 

been repaired.

The ICA estimate called for the replacement of windows, and Steiner’s report 

agreed. At his deposition, Steiner admitted that he did not know if the windows 

needed replacement, because he had not done a water test on them.

The ICA estimate called for the replacement of balcony decks and railings, and 

Steiner’s report agreed. However, in his deposition, Steiner admitted replacement 

was unnecessary; instead, these items could be sanded and restained. 
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Steiner agreed with ICA’s estimate on flashing repair on the roof.

Steiner and Mr. Ebin disagreed on when interior water damage occurred.

USAA asserted Steiner’s opinion lacked reliability because he based his estimate on ICA’s 

estimate, which was of unknown accuracy and made by unknown persons. USAA contends 

Steiner did not independently verify ICA’s estimates. However, in his deposition, Steiner stated 

he met Mr. Ebin when he arrived at the house and Mr. Ebin told him when the hailstorm occurred 

and offered a few photos from his cell phone that recorded skylight breaks, water intrusion, and 

other damage. Steiner did not take notes from his conversation with Mr. Ebin; however, he 

testified his photographs taken from the scene documented his findings. Steiner said he did not 

“adopt” ICA’s estimate; instead he used ICA’s estimate as the foundation for his own report. He 

explained that he used the ICA estimate as a baseline, but he confirmed on site each of the 

measurements by quantity. Steiner said that on the day he went to relators’ home, he and an 

assistant took their own photographs and measurements, which they used to confirm ICA’s field 

measurements, quantities, counts, material, and other findings.

“The weakness of facts in support of an expert’s opinion generally go to the weight of the 

testimony rather than its admissibility.” Onwuteaka v. Gill, 908 S.W.2d 276, 283 (Tex. App.—

Houston [1st Dist.] 1995, no writ). Also, “[j]urors are the sole judges of the credibility of the 

witnesses and the weight to give their testimony.”3

 City of Keller v. Wilson, 168 S.W.3d 802, 819

(Tex. 2005). We conclude USAA’s complaints regarding Steiner’s opinion are factors for the jury 

to consider when determining what weight to give Steiner’s opinions, not the admissibility of the 

opinions themselves. See Ford Motor Co. v. Ledesma, 242 S.W.3d 32, 40-41 (Tex. 2007) (holding

party’s complaints that opposing expert’s testimony did not consider all relevant facts “go to its 

 3 In this case, the trial court heard only arguments of counsel; no witnesses were called.
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weight, not its admissibility.”); Regent Care Ctr. of San Antonio, L.P. v. Detrick, 567 S.W.3d 752, 

763 (Tex. App.—San Antonio 2018, pet. filed) (“Dr. Grodzin’s failure to take the additional step 

advocated by Regent Care[—compare summaries prepared by trial counsel with underlying billing 

records—]goes only to the weight of his opinions, not their admissibility.”). Therefore, the trial 

court erred by striking Steiner as relators’ causation expert.

C. Adequate Remedy at Law

Appellate courts will not intervene to control incidental trial court rulings when an adequate 

remedy at law exists. See In re Prudential Ins. Co. of Am., 148 S.W.3d 124, 136 (Tex. 2004) (orig. 

proceeding); Walker, 827 S.W.2d at 840. A trial court’s ruling on the admissibility of expert 

testimony is commonly reviewed on direct appeal. See, e.g., Broders v. Heise, 924 S.W.2d 148, 

151 (Tex. 1996) (reviewing trial court’s ruling on admissibility of expert testimony on direct 

appeal); see also In re Pilgrim’s Pride Corp., No. 06-08-00109-CV, 2008 WL 4907589, *2 (Tex. 

App.—Texarkana Nov.17, 2008, orig. proceeding) (mem. op.) (denying mandamus relief as to 

order striking expert testimony on ground relator had adequate remedy by appeal because 142-

page transcript of hearing at which expert testified would be available in a post-trial appeal); In re 

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

had adequate remedy by appeal where relators’ other claims or defenses were unaffected by trial 

court’s order excluding expert testimony).

However, an appeal is an inadequate remedy if “a party’s ability to present a viable claim 

or defense at trial is either completely vitiated or severely compromised.” In re Garza, 544 S.W.3d 

836, 840 (Tex. 2018) (orig. proceeding). With respect to this scenario, a “relator must establish 

the effective denial of a reasonable opportunity to develop the merits of his or her case, so that the 

trial would be a waste of judicial resources.” Walker, 827 S.W.2d at 843. Here, relators contend, 

without dispute by USAA, that they cannot prove their damage claims or the cost to repair those 
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damages without Steiner. Therefore, according to relators, trial would be a waste of judicial 

resources.

USAA counters that appeal is an adequate remedy because relators can preserve any error 

through a bill of exceptions. We disagree. “Requiring a party to try its lawsuit without expert 

testimony, only to have the lawsuit rendered a certain nullity on appeal, falls short of a remedy by 

appeal.” In re Kings Ridge Homeowners Ass’n, Inc., 303 S.W.3d 773, 786 (Tex. App.—Fort 

Worth 2009, orig. proceeding) (“The presence of the summary of the testimony in the mandamus 

record does not compensate for the gutting of [relators’] claims at trial.”). Here, the trial court has 

excluded relators’ sole causation expert, preventing them from fairly trying their lawsuit, thus 

resulting in foreseeable harm. See id. Therefore, we conclude relators do not have an adequate 

remedy at law.

CLAIMS-HANDLING EXPERT

Relators next assert the trial court abused its discretion by striking the testimony of Adam 

Brenner, their expert on claims-handling. Relators contend they filed a “Notice De-Designating 

Adam Brenner” on August 2, 2019 at approximately 9:45a.m. Relators also contend the trial court 

granted USAA’s motion to strike Brenner on August 2 at 1:45p.m. Relators later filed a motion 

with the trial court asking it to modify its order. The trial court had not yet ruled on the motion 

when relators filed their petition for writ of mandamus. Because relators’ motion to modify is 

pending before the trial court, we decline to order the trial court to vacate its order striking Brenner.

CONCLUSION

For the reasons stated above, we conditionally grant relators’ petition for writ of mandamus 

in part and direct the trial court to vacate its August 2, 2019 “Order on Defendant’s Motion to 

Strike the Testimony and Report of Derek Steiner.” The writ will issue only in the event we are 
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notified the trial court fails to comply within fifteen days from the date of this opinion. All other 

relief requested in relators’ petition is denied.

Sandee Bryan Marion, Chief Justice