The Texas Supreme Court has put on hold a trial in a health care liability action in which the trial court struck both defense experts.
In re Bradley Hubbard, M.D. and Dallas Plastic Surgery Institute (No. 23-0511; stay order issued December 22, 2023) arose from a health care liability claim against a plastic surgeon stemming from breast augmentation surgery. Plaintiff sued the physician and the clinic, alleging negligence. Defendants retained a qualified plastic surgeon from UT Southwestern in Dallas. Plaintiff moved to strike the expert because he had previously consulted with plaintiff as a prospective patient. Defendants sought mandamus from the Dallas Court of Appeals, which denied the petition. Defendants filed a second motion to designate an equally qualified plastic surgeon as their retained expert. This time the trial court denied the motion as untimely, though it was filed more than three months before the scheduled trial date. Defendants again sought mandamus from the court of appeals, which again denied it. Defendants filed a petition for writ of mandamus from SCOTX.
SCOTX granted an emergency stay pending consideration of the petition. Defendants first argue that the trial court erred when it struck their first expert, since nothing in Texas law prohibits a physician from testifying against a former patient (plaintiff in this case had never even been the expert’s patient). The court erred again when it denied defendants’ effort to replace its first expert with an equally qualified one. Not only did defendants show good cause for leave to designate, granting leave more than three months before trial gave plaintiffs plenty of time to depose him and in no way constituted unfair surprise or prejudice.
