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In re Tyson Foods, Inc.

Court of Appeals of Texas, Twelfth District, Tyler

July 31, 2017

IN RE: TYSON FOODS, INC. AND JAMES C. FULLER, RELATORS

         ORIGINAL PROCEEDING

          Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.

          MEMORANDUM OPINION

          Greg Neeley Justice

         Tyson 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.[1] We deny the writ.

         Background

         In 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 her vehicle.

         The 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.

         Before 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 Crowley's motion.

         Crowley 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.

         Relators 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 prescheduled vacation.

         At the 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.

         Availability of Mandamus

         Mandamus 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).

         Spoliation ...


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