Summaries of Civil Opinions and Published Criminal Opinions Issued – Week of October 12, 2009

NOTE: Summaries are prepared by the court's staff attorneys and law clerks for public information only and reflect his or her interpretation alone of the facts and legal issues. The summaries are not part of the court's opinion in the case and should not be cited to, quoted, or relied upon as the opinion of the court.

Links to full text of opinions (PDF version) can be accessed by clicking the cause number.

In re Kings Ridge Homeowners Ass’n, Inc.,   No. 02-08-00394-CV    (Oct. 13, 2009)   (Gardner, J., joined by Walker and Meier, JJ.).

Held:    Petition for writ of mandamus conditionally granted where the trial court abused its discretion by striking petitioner’s sole expert witness. Petitioner did not fail to timely designate its expert witness under a Level 2 discovery deadline because a Level 3 discovery control plan governed the case. Even if petitioner should have designated its expert witness earlier than it did, the trial court abused its discretion by impliedly finding petitioner failed to establish a lack of unfair surprise or prejudice. To the extent the trial court struck petitioner’s expert witness because petitioner had no viable claims, the trial court abused its discretion by effectively dismissing petitioner’s claims without a proper motion before it.

Barber v. Mercer,   No. 02-08-00079-CV    (Oct. 15, 2009)   (Livingston, J., joined by Meier, J.; Cayce, C.J., concurs without opinion).

Held:   The trial court abused its discretion by granting Dr. Mercer’s objections to the qualifications of the Barbers’ expert and dismissing the Barbers’ claims against him. Although the Barbers’ expert was an anesthesiologist, as opposed to a general surgeon like Dr. Mercer, his report stated that he had participated in hundreds of surgeries, including cardiothoracic surgeries, and was familiar with the responsibilities of all the surgery team members as to the padding and positioning of a patient during such surgeries.

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