Lawyer may face sanctions over whereabouts of expert witness

Steve Korris Nov. 20, 2008, 4:18am

Brad Allen

BEAUMONT – When Brad Allen, attorney for GuideOne Insurance, pleaded to delay a trial because expert witness Mark West lay in a hospital bed after he was thrown by a horse, the hospital had already sent West home.

Now Allen faces possible sanctions from Jefferson County District Judge Donald Floyd, and Allen can only respond that he told Floyd what he believed at the time.

On April 21, Allen moved to continue a trial Floyd had set for May in a Hurricane Rita suit. Allen explained that West's horse fell on him, fracturing his pelvis and vertebrae.

Floyd granted the motion and reset the trial.

On May 22 Steve Mostyn, representing Westgate Church of Christ, moved for sanctions.

"Upon information and belief, plaintiff's attorney understands that Mr. West was not unable to testify at trial during the month of May," he wrote.

On May 23 Allen wrote, "There are no misrepresentations in GuideOne's motion for continuance."

He wrote, "At the time the motion was prepared all factual information within it was believed to be true by Brad Allen."

Floyd turned up the heat by ordering Allen, his associate Christopher Martin and West to present themselves for depositions.

Floyd reset trial again, to November, but as it approached he decided not to preside over it.

On Oct. 9, District Judge Bob Wortham set trial Nov. 10.

Allen filed a motion the next day calling on Floyd to retain the case.

Floyd held a hearing, and on Oct. 30 he denied the motion to retain.

Allen petitioned the Ninth District appeals court in Beaumont to stay the trial and order Floyd to hold it.

The Ninth District denied the petition on Wednesday, Nov. 5.

"The Government Code gives district court judges the discretion to transfer civil cases to another district court in the same county," Justices David Gaultney, Charles Kreger and Hollis Horton wrote.

Allen carried GuideOne's petition to the Texas Supreme Court, but the Justices denied review on Friday, Nov. 7.

Jury selection would have started the next Monday, but GuideOne and the church settled on Friday.

Settlement didn't close the case, however, for the motion for sanctions remains in Floyd's court.

He has not set a hearing on the motion.

Allen is a partner at Martin, Disiere, Jefferson & Wisdom LLP in Houston.

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