NO. 07-04-0028 -CV IN THE COU RT OF APP EALS FOR THE SEVENT H DISTRICT OF TEXAS

AT AMA RILLO PANE L A APRIL 15, 2005

______________________________ IN RE RICK ANTHONY A LCALA AND TASHA ALCALA, RELATORS

_________________________________ Before JOHNSON, C.J., and REAVIS and CAMPB ELL, JJ. MEMORA NDUM OPI NION ON PETITION FOR WRIT OF MAN DAMUS RelatorsRick and Tasha Alcala seek a w rit of mandam us to com pel theHon ora ble John Board, Judge of t he 181 stDistrict C ourt of Potter Count

y, to vacate his order

signed March 21, 2003, granting the m otion of W onderland Am usem ents, Inc., d/b/ a W onderland Park, to e xc ludea m edic al d o ctor as relators’ ex pert witness and to vacate his order signed August 21, 2003, which denied their m otion to reinstate a deposition and to reconsider the order

of exclusion of their ex pert. Considering the record before the trial court in the underlying case and the rules and principles app licable to theext raordinary writ of m andam us, we deny the petition.2

Relatorssued W onderla nd Amusem ents, Inc. d/b/a Wonderl and Park for personal injuries they

allegedly sus tained at the am usem ent park on August 9, 1 999. After a video deposition was taken of relators’ m edical doctor on January 7, 2003, in Dallas as initiated byre la to rs , W on de rl an d Pa rk move d t ha t Dr . T own se nd be exc l uded asan ex pert w itness. After considering relators’ response to the m otion and after an eviden tiar y hearing, the pr esiding judge of the trial court signed its order dated M arch 21, 2003, providing that Dr. Townsend may not testify in the case asan expert f or relators. Then, on April 17 , 2003, counsel for relat ors fi led a second notic e of videodeposition of Dr. Townsend to be taken in Dallas at6:00 p.m . on April 28, 2003, w hich prompted counsel for W onderland Park to file a m otion on April 18, 2003 , to quash t he depos ition of Dr. Townsend contending, am ong other things, that a second dep osition was unnecess ary and results in unnecessary travel expense a nd attorney’s fees . In the alternative, the m otion asserted that the noticed date was not a convenient date. Relators then filed their motion to reinstate deposition and to reconsider the order exc luding their expert alleging, among other things, that the deficiencies in the first deposition could be satisfied by simply as king spe cifi cquestions which relators ass ert were not asked at the first deposition. Following a hearing on August 21, 2003, th e trial court denied relators’ motion to reinstate the second deposition and to reconsider exclusion of their expert. Bytheir two issues, relators inquire (1) where a treating physician m ay be exc luded from testifying as to the injuries presented by his patients and describing the nature and3

extent of thos e inju ries, w hether t he phys ician’s tr eatm ent for those inj uries were rea son ableand necessary and w hether the financial cha rges m ade for t he serv ices were rea son ableand necessary, and (2) whether a part yis pr ec lu de d f ro m re- de po si ng it s own exp ertw itne ss w hen theopp osin g pa rty doe s no t pr

ovetha t th e ex per

t is aff irm ativ ely disqualified, but only s hows tha t the re has been a failure to establish in the record the qualifications of the ex pert. Before w e com menc e ou r analysis, we first set o ut the applicable standard of review. Standard of Review A writ of m andam us will only issue to correct a clear abuse of discretion or violation of a duty im posed by law when there is n o adequa te rem edy by law. W alker v. P acker, 827 S.W.2d 833, 839 (Tex. 1992) (orig. proceeding). Also the relator has the burden to pr esentthe appellate court with a record s ufficient to establish the right to mandam us. Id. at 837. Delay, i nconvenie nce, or expense of an appeal does not constit ute the absence of an adequate rem edy by appeal, but instead the relator must

establish the effective denial of a re aso nab le opportunity to develop the m erits of hi s or her case, so that t he trial would be a was te of judicial resources. . . . Similarly, a denial of discovery going to the heart of a party’s case may

render the appellate remedy inadequate. Walker, 827 S.W.2d at 843.4

We com mence our

analysis by focusing our attention on the rule that m andam us is available only if rel ators have dem onstrated that they h ave no adequate rem edy by app eal. By their m otion to reinstate and to reconsider order, am ong other things, relators contended: 2. [t]he exclusion of Dr. Townsend as an e xp ert w itne ss is no t th e re sult of an affirmative showing that he is disqualified to testify as an expert; rather the record before the Court w as that there has not

been a n affirmati ve showing of a proper predicate f or his qualifying as an expert in this case. 3. The purp ose of this second depo sition is to e stablish th at indeed there existed . . . sufficient legal and factual basis for Dr. Tow nsend to testify as an expert for the plaintiff . . . but that his exp ert status w as denied because of the failure of the record to aff irm ativ ely demon strate a proper scientific basis for his opinions or that the appr opriate q uestions werenot asked, and that therea son he d id no t sotes tify in hi s original video depositi on was that he was not asked. By their petition here, relators present sim ilar arguments, ass erting:

• Dr. Townsend’s status as an ex pert was denied because of a failure to affirmativel y demonstrate a proper sci entifi c bas is f or h is opini ons. That failu re w

as n ot t he r

esu ltof affirmativel y demonstrating the l ack of such basis; it was the result of a failu re to ask the proper questions to eli cit such prope r scienti fic basi s.

• Dr. Tow nsend w as neve r a sked the m edical or sc ientific stan dard upon w hich he b ase d hisopin ions . H ad h e be en a ske d, h e would have testified that he based his opinions on “reasonable m edical probability.”5

• The reason he di d not so testify in his original depositi on was t hat he was not asked. Relatorsarg ue t hat

w hen the“qu alificat ion barrier” has been met, Dr. Townse nd m ay testifyas to his opinion concerning the diagnosis, causation, etc. Then, they conclude that to block the deposition was an abuse of discretion by the trial court. The two orders of the trial court in the un derlying pro ceeding do not preclude relator s’ exercise of other means o f discovery. See, e.g., Tex. R. C iv. P. 199.1(b), 200. Accordingl y, rela tor

s ha ve f

ailed to e sta blish theeff ect ive d enia l of a re aso nab le opportunity to develop the me rits of their case. Therefore, they hav e not m et the second test of Walker, 827 S.W.2d at 843, and have not show n a lack of an adequate remed y by law. Accordingly, relators’ petition for writ of m andam us is denied.

Per Curiam Johnson, C.J., not participating.