in Re Bestway Oilfield, Inc.

In The
Court of Appeals
Ninth District of Texas at Beaumont
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NO. 09-21-00204-CV
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IN RE BESTWAY OILFIELD, INC.
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Original Proceeding
284th District Court of Montgomery County, Texas
Trial Cause No. 19-02-02065-CV
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MEMORANDUM OPINION
In a petition for a writ of mandamus, Bestway Oilfield, Inc. (“Relator” or
“Bestway”), argues the trial court improperly applied the discovery rules to exclude
its sole rebuttal witness on American Petroleum Institute (“API”) standards in a
lawsuit where a purchaser, Sentry Wellhead Systems, LLC (“Plaintiff” or “Sentry”),
claims Bestway failed to provide the proper documentation for oilfield valves and
other parts allegedly not in compliance with API standards. Bestway also complains
that the trial court did not grant Bestway leave to re-depose Sentry’s expert witness
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and designate a new rebuttal witness following Sentry’s untimely production of
notes prepared by the expert and an untimely document production on the eve of
trial. We conditionally grant mandamus relief.
Bestway first designated its President, Mark Albert, as an expert in December
2019. The designation stated that Albert “will have reviewed, if necessary, various
documents and items related to this case[.]” The list of potential items reviewed
included “pleadings, correspondence and documents between the parties, the
products, discovery, deposition transcripts, and other matters between the date of
this expert designation and through trial.” In November 2020, Bestway amended its
designation to disclose that
Mark Albert is the President of Defendant Bestway and has knowledge
of whether Defendant’s products comply with American Petroleum
Institute (API) standards. Based on his experience, Mr. Albert will
testify that the products complied with API standards, industry
standards, and the parties’ agreed course of dealing, that Sentry
received the products it agreed to purchase but has not paid for, and that
any issue with traceability or value of the products was a result of
Sentry’s or a third-party’s actions.
After deposing Albert on February 4, 2021, the real party in interest, Sentry,
filed a motion to exclude his testimony because Bestway failed to identify the
documents Albert actually reviewed. According to Sentry, Bestway produced two
sets of documents, each containing more than 600 pages, with substantial duplication
of material in the two sets. In his deposition, Albert stated that he reviewed five or
six material test reports (MTRs), but out of documentation for thirty-two valves he
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was unable to identify which ones he reviewed. The MTRs include a Certificate of
Conformity evidencing that the product was inspected by the manufacturer and
conformed to API standards. However, it should be noted that Albert’s rebuttal bases
and opinions are based upon API standards and not the manufacturer’s individual
MTRs.
Sentry complained that Albert failed to provide sufficient facts to support the
opinions he expressed, failed to identify the methodology for his opinions, and failed
to disclose the material he reviewed in anticipation of his testimony. Sentry argued
that Bestway failed to comply with the trial court’s docket control order, which on
penalty of exclusion required each party to file with the trial court a list of the party’s
experts that provides each expert’s name, address, telephone number, subject of
testimony and opinion to be offered. Additionally, Sentry argued that Bestway failed
to provide or supplement the required expert disclosure.
The trial court struck Albert as an expert witness but ruled that Albert could
testify as a fact witness. Bestway moved for reconsideration. On June 15, 2021, the
trial court signed an order clarifying that Albert’s expert testimony would be
excluded by operation of Rule 193.6 of the Texas Rules of Civil Procedure, which
provides that if a party fails to make, amend, or supplement a discovery response in
a timely manner, that party may not introduce in evidence the material or information
that was not timely disclosed or offer the testimony of a witness (other than a named
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party) who was not timely identified, unless the court finds there was good cause for
the failure and it will not unfairly surprise or unfairly prejudice the other party. See
Tex. R. Civ. P. 193.6. The trial court did not rule on the alternative grounds for
exclusion argued by Sentry in its motion.
To obtain mandamus relief, a relator must show both that the trial court has
clearly abused its discretion and that the relator has no adequate remedy by appeal.
See In re Prudential Ins. Co. of Am., 148 S.W.3d 124, 135–36 (Tex. 2004) (orig.
proceeding). A trial court clearly abuses its discretion if it reaches a decision so
arbitrary and unreasonable as to amount to a clear and prejudicial error of law or if
it clearly fails to analyze the law correctly or apply the law correctly to the facts. In
re Cerberus Capital Mgmt. L.P., 164 S.W.3d 379, 382 (Tex. 2005) (orig.
proceeding).
Although Sentry presented additional complaints about Bestway’s discovery
responses, the trial court ruled that Albert’s expert testimony must be excluded
because Bestway failed to identify the information reviewed by Albert. The general
exclusion required by Rule 193.6 applies when a party fails to make, amend, or
supplement a discovery response in a timely manner. See Tex. R. Civ. P. 193.6(a).
The rule’s expert disclosure requirement may be met without attaching the
documents to the disclosure if the party provides ample notice of the testifying
expert’s experience and the data from which he drew his conclusions. See SCTW
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Health Care Ctr., Inc. v. AAR Inc., No. 01-07-00762-CV, 2009 WL 3321399, at *6–
7 (Tex. App.—Houston [1st Dist.] Oct. 15, 2009, no pet.) (mem. op.).
Bestway disclosed the identity of its expert, disclosed Albert’s opinion that
the products Bestway sold to Sentry were certified by an API 6A manufacturer
licensed at the time of manufacture, and produced the manufacturers’ MTRs then in
its possession. In other words, Bestway was a distributor of products created by a
manufacturer that was a certified API manufacturer, and the manufacturer created
the MTRs. As such, Albert’s primary rebuttal was that the API standards applied to
API manufacturers and not Bestway as the distributer. Although Albert admitted in
his deposition that he had not read every MTR and could not identify exactly which
ones he did read, the documents that were available for his review were produced so
that he could be cross-examined on them. Under these circumstances, where the
witness admitted he did not read the MTRs for all of the valves at issue in the case,
but Bestway disclosed the material to the opposing party, the automatic exclusion
for failure to timely make, amend, or supplement a discovery response did not apply
to all of Albert’s expert testimony, because Bestway made a timely disclosure of
Albert’s identity and the substance of his testimony and timely produced the
documents Albert reviewed in anticipation of his testimony. See Tex. R. Civ. P.
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193.6. We conclude that the trial court abused its discretion by applying the Rule
193.6 exclusion to information that was timely disclosed and timely produced. 1
Appeal is not an adequate remedy if the trial court’s discovery order vitiates
or severely compromises the party’s ability to present a viable defense. In re Allstate
Indemnity Co., 622 S.W.3d 879, 883 (Tex. 2021). Since Albert is the sole defense
witness regarding Sentry’s claims that the equipment sold by Bestway does not meet
API standards, excluding Albert’s expert testimony severely limits Bestway’s ability
to present a viable defense to Sentry’s claims, and Bestway does not have an
adequate remedy by appeal.
Bestway also claims the trial court abused its discretion by denying Bestway’s
request to re-depose Sentry’s API expert, Johan Lopez. Bestway complains that
Lopez failed to preserve her first set of notes and Sentry produced her second set of
notes after Bestway took her deposition. Lopez stated she created the notes to
correlate the MTRs that Bestway produced in discovery with the particular valves
purchased by Sentry. Lopez claimed that she did not rely on the notes for her expert
opinions. Bestway argues the trial court’s ruling restricts its right to investigate
Lopez’s opinions. Bestway further argues that it had no duty to designate a rebuttal
expert until Sentry produced Lopez’s notes because the party seeking affirmative
As such, we will not address the trial court’s striking Albert’s testimony on
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API compliance when the only issue before the court was the MTR issue.
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relief must designate its expert before all other experts. See Tex. R. Civ. P. 195.2. In
response, Sentry argues that the timing of Bestway’s request for another deposition
suggests the request is simply an attempt to develop testimony that would justify
permitting Albert to testify in rebuttal.
Courts should not interpret the Rules of Civil Procedure in a manner that
allows for trial by ambush. See Reid Rd. Mun. Util. Dist. No. 2 v. Speedy Stop Food
Stores, Ltd., 337 S.W.3d 846, 851 (Tex. 2011). So, the question is whether Bestway
is entitled to mandamus relief. As set forth in In re Kings Ridge Homeowners Ass’n,
Inc., 303 S.W.3d 773, 785 (Tex. App.―Fort Worth 2009, orig. proceeding)
(citations omitted):
But a party will not have an adequate remedy by appeal (1) when the
appellate court would not be able to cure the trial court’s discovery
error, (2) when the party’s ability to present a viable claim or defense
at trial is vitiated or severely compromised by the trial court’s discovery
error, or (3) when the trial court disallows discovery and the missing
discovery cannot be made a part of the appellate record or the trial court,
after proper request, refuses to make it part of the record.
In this case, the trial court allowed “surprise expert testimony” and “manipulative
conduct designed to thwart the expert disclosure and discovery process,” without
giving Bestway the right to properly investigate or depose the expert. See Speedy
Stop Food Stores, Ltd., 337 S.W.3d at 851. Therefore, mandamus relief is
appropriate for the erroneous denial of discovery that effectively denies the party a
reasonable opportunity to develop the case on its merits. See Walker v. Packer, 827
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S.W.2d 833, 843 (Tex. 1992) (orig. proceeding). Sentry produced Lopez’s notes
after Bestway deposed her. The production was not timely and severely
compromised Bestway’s ability to present a viable defense at trial because Bestway
was unable to question Lopez about Sentry’s specific complaints as they correlate to
each MTR and valve. In fact, Sentry withheld the document production for almost a
year, which the trial court recognized as a “document dump” on the eve of trial;
however, the trial court did not provide a remedy for same. Therefore, we conclude
that the trial court abused its discretion by entering its June 15, 2021, Order Denying
Leave to Depose Plaintiff’s Expert Johan Lopez, and Bestway lacks an adequate
remedy by appeal. The trial court also abused its discretion in denying Relator’s right
to designate a new rebuttal expert to Ms. Lopez’s newly disclosed expert notes and
opinions, because Rule 195 requires the party seeking affirmative relief on a claim
to designate experts, and “furnish information requested under 194.2(f),” before the
defending party must designate rebuttal experts. Tex. R. Civ. P. 195.2.
In conclusion, the trial court’s exclusion of Mark Albert as an expert witness
under Texas Rule of Civil Procedure 193.6 was an abuse of discretion for which
Bestway lacks an adequate remedy by appeal. In addition, the trial court’s denial of
Bestway’s Motion to Depose Sentry’s expert was an abuse of discretion for which
Bestway lacks an adequate remedy by appeal. We are confident that the trial court
will vacate its April 3, 2021, Order Striking Rebuttal Expert and its June 15, 2021,
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Order Denying Leave to Depose Plaintiff’s Expert. Finally, after Sentry’s expert is
re-deposed, we are confident that the trial court will allow Bestway to designate a
new rebuttal witness as discussed above. A writ of mandamus will issue only if the
trial court fails to comply.
PETITION CONDITIONALLY GRANTED.
PER CURIAM
Submitted on August 6, 2021
Opinion Delivered August 31, 2022
Before Golemon, C.J., Kreger and Johnson, JJ.
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