1 COURT OF APPEALS

EIGHTH DISTRICT OF TEXAS

EL PASO, TEXAS

IN RE

JUAN ESPARZA,

Relator. §

§

§

§ No. 08

- 23

- 00256

- CV

AN ORIGINAL PROCEEDING

IN MANDAMUS

D I S S E N T

Monday morning quarterbacking is easy. Appellate Monday morning quarterbacking is

not

— especially for intermediate courts. In a case like this, we are sandwiched between trial court

discretion and supreme court precedent. Further constricting us is the specific question we are

asked to answer today: whether Mr. Esparza met his burden to justify the extraordinary re medy

that is mandamus. As a reviewing court, we may not substitute our judgment for that of the trial

court, even if we would have acted differently. Walker v. Packer

, 827 S.W.2d 833, 839

– 40 (Tex.

1992) (orig. proceeding)

.

It is the trial court judge ’ s duty to manage discovery. And certainly, the judge does not have

unfettered discretion in this regard. But the cases the majority cites in support of its statement that

the trial court ’ s discretion in ma naging discovery is not unbounded are distinguishable and do not

support that the trial court abused its discretion in the present case. See In re K & L Auto Crushers,

LLC

, 627 S.W.3d 239, 257 (Tex. 2021) (orig. proceeding) (concluding trial court ’ s outright denial2

of narrowed discovery requests was abuse of discretion considering the circumstances and

applicability of Court ’ s reasoning in recent case involving the same iss ue); In re Van Waters &

Rogers, Inc.

, 62 S.W.3d 197, 199

– 201 (Tex. 2001) (orig. proceeding) (per curiam) (concluding

trial court ’ s “ blanket abatement ” of almost all discovery for seven years with no justification for

the delay was abuse of discretion on se cond petition for writ of mandamus after Court first denied

mandamus relief with instructions but trial court “ unduly delayed reconsidering its orders as [the

Court] requested ” ). 1

Here, after some six plus years of litigation, the parties having already des ignated several

experts and ready to try the case, the trial judge made her intent clear following the 2022 mistrial:

[A]nd I ’ ll be very honest with you too, that the

-- I think the cost incurred by

everybody up to this point is

-- is really weighing on me be cause I understand how

expensive these things are.

. . . I don ’ t want to rehash new discovery.

. . . and I don ’ t

want any more depositions, none of that. You were ready to go to trial now.

. . . I

think

-- you know, everything we ’ ve learned so far on the d iscovery and evidentiary

issues, we can be ready but I don ’ t want to reopen discovery.

Because the parties could not agree to a new expert

- designation deadline, the trial court judge kept

the prior one in place. And even then, she exercised her discretion to allow one expert out of the

six Mr. Esparza attempted to designate after the deadline. 2 Additionally, the trial court ’ s new order

permitted Mr. Esparza to continue to develop evidence of his claimed worsening condition and

non

- economic damages t hrough his already

- designated experts and treating physicians.

B a sed on our 193 8 precedent, th e majority posits that once a mistrial was granted, “ the case

had then stood upon the court ’ s docket ‘ as if it had not been tried. ’ ” A parentheti cal from a 1986

1 B y the same token, I am not suggesting abuses must necessarily rise to such egregious levels to meet th e mandamus

standard. That we evaluate on a case

- by

- case basis.

2 Specifically, the trial court judge permitted Esparza to designate a cyber and mobile forensic expert to examine a

video, which had been excluded during the mistrial bec ause it was not timely disclosed. In permitting Esparza ’ s

designation of this expert, the tri al court judge also gave Coastal time to designate a rebuttal expert.3

Tyler court of appeals case follows

, “ after gra nting new trial, ‘ [l] ogically . . . any pre

- tr ial order

re lating to that trial would a lso be obliterated. ’ ” See State Dep ’ t of Highways & Pub. Transp. v.

Ross

, 718 S.W. 2d 5, 11 (Tex. App.

— Tyler 1986, no writ). In my view, Ross is inapposite

— it does

not generally stand for obliterating any pretrial order relating to a vacated trial. Instead, the court

in Ross held only that orders not based on matters agreed to by the par ties would be obliterated.

Id

. at 11

. 3 Here we have a different situation

— the trial court ’ s April 4, 2022 order reflected the

parties ’ agreement.

The majority then concludes the trial court clearly abused its discretion by setting a

“ backwards

- facing ” expert

- designation deadline, which it characterizes as “ not tailored to the

circumstances of the case (with one exception). ” Considering that the expert

- designation deadline

the trial court adopted in the new 2023 discovery order included the last expert

- designation

deadline agreed to by the parties, albeit from the April 4, 2022 agreed order, I would not

characterize it as “ backwards

- facing. ” A n d I do not agree with the majority that “ the retroactive

deadline, in effect, led to a categorical limitation of Espa rza’s right to designate experts who would

3 It is noteworthy that Ross was decided prior to the 1999 substantive revisions to the discovery rules, which clarified

and streamlined discovery procedures in an effort to reduce costs and d elays associated with discovery practice. See

generally Explanatory Statement Accompanying the 1999 Amendments to the Rules of Civil Procedure Governing

Discovery

, Order of Approval of the Revisions to the Texas Rules of Civil Procedure

, Misc. Docket No. 9 8

– 9196

(Tex. Nov. 9, 1998), printed at 61 Tex. B ar J. 1140, 1140 ( Dec. 1998). The currently operating revised rules require a

discovery control plan in each case, whether by rule, see Tex. R. Civ. P. 190.2

– 190.3, or by order, see id. R ule 190.4.

Whereas the “ deadlines for designating expert witnesses under former pretrial discovery rules were fluid and depended

on the trial date

, those deadlines no longer fluctuate with the change of a trial setting but are determined by the

discovery period applicable to the case under current rules. ” In re Kings Ridge Homeowners Ass ’ n, Inc

., 303 S.W.3d

773, 779 n.6 (Tex. App.

— Fort Worth 2009, orig. proceeding ) (citing Fort Brown Villas III Condo. Ass ’ n, Inc. v.

Gillenwater

, 285 S.W.3d 879, 882 (Tex. 2 009)); see also In re Sw. Pub. Serv. Co

., No. 13

- 22

- 00389

- CV, 2023 WL

6818165, at *7 n.6 (Tex. App.

— Corpus Christi Oct. 16, 2023, orig. proceeding ) (citing Fort Brown

, 285 S.W.3d at

882 ) ( “ Relators assert that their supplemental discovery responses were no t late because the trial of this matter had

been continued and a new trial date had not been set. However, this case has been litigated as a Level 3 discovery

case, and the current rules do not measure timeliness by the date of trial. ” ).4

testify on liability and damages, as well as medical conditions, medical needs, and future medical

care and treatment

. ”

To be sure, the rules of civil procedure promote “ liberal discovery practices ” toward a full

and fair resolution of disputes. Crosstex Energy Servs., L.P. v. Pro Plus, Inc.

, 430 S.W.3d 384, 394

(Tex. 2014). But “ discovery is also subject to a ‘ proportionality overlay. ’ ” In re K & L Auto

Crushers, LLC

, 627 S.W.3d 239, 248 (Tex. 2021) (original proceeding) (quoting In re State Farm

Lloyds

, 520 S.W.3d 595, 599 (Tex. 2017) (orig. proceeding)). Proportionality, or the marginal value

of requested discovery weighed against its costs given the circumstances of the case, is “ the

to uchstone ” of discovery analysis. Id. at 258 (Huddle, J., concurring). Indeed, trial courts are

encouraged to “ impose reasonable discovery limits, particularly when the burden or expense of

the proposed discovery outweighs its likely benefit. ” K & L Auto Cr ushers

, 627 S.W.3d at 248

(cleaned up); see Tex. R. Civ. P. 192.4. It appears the trial court judge here imposed a reasonable

discovery limit in terms of the expert

- witness designations upon the parties ’ inability to agree. In

so doing, she exercised her d iscretion consistent with her authority under Rule 190.4 to craft a

discovery control plan “ tailored to the circumstances of the specific suit. ”

In short, based on the record, the particular facts and circumstances of this case, and the

applicable law, I r espectfully disagree with the majority ’ s analysis that concludes Esparza met his

burden to show that the trial court abused its discretion and he has no adequate remedy by appeal

so as to justify mandamus relief.

LISA J. SOTO

, JUSTICE

April 2 6

, 2024

Before Palafox, J., Soto, J., and Barajas, C.J. (Senior Judge)

Barajas, C.J. (Senior Judge) (Sitting by Assignment)