Court of Appeals of Texas, Twelfth District, Tyler
IN RE: TYSON FOODS, INC. AND JAMES C. FULLER, RELATORS
consisted of Worthen, C.J., Hoyle, J., and Neeley, J.
Foods, Inc. and James C. Fuller (collectively Relators) seek
mandamus relief from the trial court's orders granting a
motion to quash a trial subpoena, and granting Toni
Crowley's motion for sanctions and motion to exclude
testimony. We deny the writ.
January 2015, Crowley was involved in a motor vehicle
collision with a vehicle owned by Tyson and driven by Fuller.
In her petition, Crowley alleges she was injured when two
wheels came off Tyson's tractor-trailer and collided with
court's discovery control plan set the deadline for the
defense to identify experts as April 10, 2017, and challenges
to expert testimony based on qualifications, relevance, or
reliability were to be made no later than April 17. Trial was
scheduled to begin on May 22, with a pretrial hearing
scheduled for May 17.
the pretrial hearing, Crowley filed a motion to exclude the
testimony of Dr. MacMaster, Relators' retained orthopedic
doctor. Crowley alleged Relators failed to timely disclose
some of MacMaster's opinions and asked the court to limit
his testimony to those matters that were timely disclosed.
Along with their response, Relators filed a motion to strike
also filed a motion for spoliation sanction, arguing that she
is entitled to a jury instruction regarding spoliation due to
Tyson's failure to preserve Fuller's pre-trip
inspection report for the day of the accident. Relators
responded and contended that no spoliation occurred and that
a spoliation instruction is not a proper remedy.
issued a trial subpoena to Crowley's treating
chiropractor, Dr. Riley, requesting his appearance at trial
on May 23, 2017. Dr. Riley filed a motion for protective
order and to quash the subpoena. He contended that he should
not be required to comply with the subpoena because of a
pretrial hearing, the trial court denied Relators' motion
to strike. The trial court also granted Crowley's motion
to exclude and motion for spoliation sanction, as well as Dr.
Riley's motion for protective order and to quash.
Relators filed their petition for writ of mandamus and a
motion for an emergency stay.
is an extraordinary remedy, only available where the party
seeking mandamus relief has established both a clear abuse of
discretion by the trial court and the lack of an adequate
appellate remedy. Walker v. Packer, 827 S.W.2d 833,
840 (Tex. 1992).