Baylor Medical Plaza Services Corp. v. Kidd

• Decision Date: 12 May 1992
• Docket Number: No. 6-91-057-CV,6-91-057-CV
• Parties: BAYLOR MEDICAL PLAZA SERVICES CORPORATION, d/b/a Baylor Medical Plaza Pharmacy, Appellant, v. Claude R. KIDD, Appellee.
• Court: Texas Court of Appeals

Page 69

834 S.W.2d 69

BAYLOR MEDICAL PLAZA SERVICES CORPORATION, d/b/a Baylor Medical Plaza Pharmacy, Appellant, v. Claude R. KIDD, Appellee.

No. 6-91-057-CV.

Court of Appeals of Texas Texarkana.

May 12, 1992.

On Motion for Rehearing July 7, 1992.

Cindy Butler White, Joann Wilkins, Burford & Ryburn, Dallas, for appellant.

Mark Lesher, Texarkana, Grant Kaiser, Onstad, Kaiser & Fontaine, Houston, for appellee.

Before CORNELIUS, C.J., and BLEIL and GRANT, JJ.

OPINION

GRANT, Justice.

Baylor Medical Plaza Services Corporation, d/b/a Baylor Medical Plaza Pharmacy, appeals from a judgment granting $150,000 damages to Claude Kidd in a tort action for personal injury.

Baylor Medical Plaza Services Corporation (Baylor) brings eleven points of error contending that the trial court erred by erroneously admitting certain evidence, by entering judgment on the jury verdict because there was no evidence or insufficient evidence to support the jury's findings on proximate cause, negligence, past damages, or future damages, and by refusing to submit a jury instruction on unavoidable accident, sole proximate cause, and new and independent cause.

Baylor bought bottles of benzaldehyde (bitter almond oil) from Humco. Almond oil is used in diluted form to provide a pleasant aroma in hand lotions that were mixed by Baylor. These bottles of benzaldehyde were delivered by TexPack. When the personnel at Baylor determined they had bought too many bottles, they mailed two of the bottles back to Humco through the United States mail. The bottles were broken in transit, and Claude Kidd, a postal worker, was called to mop up the concentrated almond oil from the floor. After inhaling the fumes, he said that he felt light-headed and collapsed. He was carried to the hospital for treatment, and diagnosed as having damage to his lungs and eyes. Kidd has a history of severe asthma, but claims no damage for any lung or eye injury. Kidd contends that he was physically harmed by exposure to these fumes, which he contends caused headaches, loss of hair, and acne. The jury awarded him past damages of $75,000 and future damages of $75,000 based upon its finding that Baylor was negligent.

Baylor first argues that the expert testimony of Steve Bryant, an employee of Humco, was improperly admitted because Kidd did not list Bryant as an expert witness during discovery. Baylor further argues that the harm of this error was compounded by the opinion testimony by Dr. Hueter (based solely upon Bryant's testimony at trial) that inhalation of the chemical could cause headaches. The trial court specifically stated that it found good cause to admit Bryant's testimony.

Baylor complains about the following testimony by Bryant:

Q ... Could you describe the effects on a person who inhales benzaldehyde?

A We're talking about nausia (sic), headache, vomiting, mucosal irritation, central nervous system depression.

In a response to interrogatories propounded to Humco (before Humco was dropped from the suit), Bryant had answered with virtually the same language as that quoted above.

A party has an affirmative duty to identify expert witnesses in response to an appropriate inquiry. The sanction for failing to comply with this rule is the automatic exclusion of the unidentified witness's testimony unless the proffering party demonstrates good cause for the admission. E.F. Hutton & Co. v. Youngblood, 741 S.W.2d 363, 364 (Tex.1987). The purpose of the rule is to encourage full discovery of the issues and facts prior to trial so that parties can make realistic assessments of their respective positions. The trial court has discretion in considering good cause exceptions. Gee v. Liberty Mutual Fire Insurance Co., 765 S.W.2d 394 (Tex.1989).

Rule 166b of Texas Rules of Civil Procedure provides for discovery of witnesses having knowledge of relevant facts (generally referred to as fact witnesses) and expert witnesses. A fact witness should be limited to testimony about the specific facts of the case and should not be allowed to give expert opinions regarding scientific, technical, or other specialized knowledge.

Kidd does not contend that he listed Bryant as an expert witness, but he contends that good cause existed for Bryant to testify without his being listed. The trial court stated that it found good cause for Bryant to testify. The fact that a witness's identity is known to all parties does not justify a failure to supplement discovery. Durish v. Panan Intern., N.V., 808 S.W.2d 175 (Tex.App.-Houston [14th Dist.] 1991, no writ). The absence of surprise, unfairness, or ambush does not alone satisfy the good-cause exception to the sanction of automatic exclusion. Sharp v. Broadway Nat. Bank, 784 S.W.2d 669, 671 (Tex.1990); TEX.R.CIV.P. 166b(2)(d), (e); TEX.R.CIV.P. 215(5). Kidd seeks to establish good cause for allowing this testimony on the basis (1) that Bryant was not retained by Kidd as an expert, (2) that Bryant was listed as a fact witness by Baylor, (3) that Bryant answered interrogatories propounded by Baylor to the codefendant Humco before Humco was dropped from the suit, and (4) that Kidd listed Bryant as a fact witness.

First, the rule does not exempt the listing of an expert witness on the basis that he is not a retained expert, and Baylor's discovery request was not limited to retained experts. The classification of a witness as an expert is not dependent on whether or not he is compensated for his time while serving as a witness.

Next, we shall look at whether the listing of a witness by another party to the suit justifies the witness being called by a party who did not list the witness. In the case of American Cyanamid Co. v. Frankson, 732 S.W.2d 648 (Tex.App.-Corpus Christi 1987, writ ref'd n.r.e.), one of the parties, without specifically designating any witnesses, answered that it reserved the right to call all experts designated by other parties in the case. The court disallowed any "catch-all" phrase that designates any other witnesses which any defendant might designate and announced that the well-settled rule of Texas discovery is that a party must identify its witnesses when called upon to do so. The designation of a witness by another party does not relieve a party from designating its own witnesses, and the fact that another party listed a witness is not good cause for failure of a party to designate its own witnesses. Furthermore, no party listed Bryant as an expert witness. The fact that Bryant answered interrogatories that were propounded to the codefendant Humco did not put Baylor on notice that Kidd intended to call Bryant as an expert witness.

We next address Kidd's contention that designation of this witness as a fact witness was sufficient to allow the testimony that was offered. The witness made a general statement of opinion that went beyond the specific facts of this case and constituted an expert opinion. A fact witness cannot testify to matters that will require him or her to give an expert opinion. See Missouri-Kansas-Texas R. Co. v. Alvarez, 703 S.W.2d 367, 371 (Tex.App.-Austin 1986, writ ref'd n.r.e.). We conclude that no good cause was shown for allowing this witness to testify as an expert on Kidd's behalf and that the trial court abused its discretion in allowing this testimony.

Kidd urges that even if this evidence should have been excluded, the evidence in question constituted only twelve words, and these twelve words were consistent with the answers by Humco to interrogatories. Whether these answers were consistent with interrogatories made by a third party is not at issue and does not make such answers automatically admissible in evidence.

Kidd contends that Bryant's testimony was merely cumulative of the testimony of other witnesses and is therefore not harmful. Kidd correctly contends that the specific objected-to testimony of Bryant constituted only a few words, but the number of words is not a decisive factor. Those few words have a very significant bearing on the outcome of this case because the testimony is not cumulative but rather forms the basis upon which the treating doctor relied in formulating his opinion of causation. Furthermore, it is the only evidence that might be considered to establish foreseeability. Thus, the improper admission of that evidence was reasonably calculated to cause and probably did cause rendition of an improper judgment.

We shall next address Baylor's points of error contending that there was no evidence or insufficient evidence that Baylor's packaging and labeling the product was a proximate cause of Kidd's injuries.

In reviewing no evidence points, the court considers only the evidence tending to support the finding, viewing it in the light most favorable to the finding, giving effect to all reasonable inferences therefrom, and disregarding all contrary and conflicting evidence. Glover v. Texas General Indemnity Co., 619 S.W.2d 400 (Tex.1981). Insufficient evidence points require that we consider and weigh all the evidence. In re King's Estate, 150 Tex. 662, 244 S.W.2d 660 (1951).

In order to prove that Baylor's negligence was a proximate cause of injury, Kidd had to prove that Baylor's actions were a cause in fact of the injury and that the injury was reasonably foreseeable. See Exxon Corp. v. Roberts, 724 S.W.2d 863 (Tex.App.-Texarkana 1986, writ ref'd n.r.e.).

We shall first look at the requirement that there be reasonable foreseeability. An event is reasonably foreseeable if a person of ordinary intelligence should have anticipated dangers that his negligent act created for others. Exxon Corp. v. Roberts, 724 S.W.2d 863. To establish foreseeability, it is not necessary that the exact nature of the injury or the precise manner of its infliction should be foreseen, but the actor need only foresee injury of the same general character as the actual injury. Brown v. Edwards Transfer Co., 764 S.W.2d 220 (Tex.1988). ¹

An actor is charged with knowledge of that which...