in Re: Bradley Hubbard, M.D. and Dallas Plastic Surgery Institute

DENY and Opinion Filed October 18, 2022
In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-22-00853-CV
IN RE BRADLEY HUBBARD, M.D. AND DALLAS PLASTIC SURGERY
INSTITUTE, Relators
Original Proceeding from the County Court at Law No. 2
Dallas County, Texas
Trial Court Cause No. CC-19-03134-B
MEMORANDUM OPINION
Before Justices Myers, Nowell, and Goldstein
Opinion by Justice Myers
In this original proceeding, relators seek mandamus relief from the trial
court’s order striking their retained medical expert but allowing him to testify as a
non-retained, treating physician. They complain that the order is vague and that the
trial court abused its discretion by striking their retained expert. Relators further ask
us to compel the court to rule on their motion for leave to designate a replacement
retained expert.
Entitlement to mandamus relief requires relators to show that the trial court
clearly abused its discretion and that they lack an adequate remedy by appeal. In re
Prudential Ins. Co. of Am., 148 S.W.3d 124, 135–36 (Tex. 2004) (orig. proceeding).
After reviewing the petition and the record before us, we conclude that relators have
failed to demonstrate their entitlement to mandamus relief.
Regarding relators’ complaint about the order’s vagueness, the record fails to
show that they raised this error to the trial court. See In re Rowes, No. 05-14-00606-
CV, 2014 WL 2452723, at *1 (Tex. App.—Dallas May 30, 2014, orig. proceeding)
(mem. op.) (“A court cannot grant mandamus relief unless the error was raised in
the trial court.”).
As for relators’ contention that the trial court erroneously struck their retained
expert, they have failed to show that they lack an adequate appellate remedy. See In
re Flores, No. 05-19-01058-CV, 2020 WL 2847531, at *2-3 (Tex. App.—Dallas
June 2, 2020, orig. proceeding) (mem. op.) (denying mandamus relief as to order
striking expert testimony because relator had adequate remedy by appeal); In re
Thornton-Johnson, 65 S.W.3d 137, 139 (Tex. App.—Amarillo 2001, orig.
proceeding) (same).
Finally, with respect to relators’ argument about the trial court’s failure to
rule, the record does not contain adequate proof that they brought the pending motion
to the trial court’s attention and made a demand for a ruling. See In re Blakeney, 254
S.W.3d 659, 661 (Tex. App.—Texarkana 2008, orig. proceeding) (“Any such
mandamus relief must be predicated on an adequate showing that a request for a
ruling has been properly and adequately presented to the trial court and that the court
has declined to rule.”).
–2–
Accordingly, we deny the petition for writ of mandamus. See TEX. R. APP. P.
52.8(a).
220853f.p05 /Lana Myers//
LANA MYERS
JUSTICE
–3–