Ciba-Geigy Corp. v. Stephens

• Decision Date: 24 February 1994
• Docket Number: CIBA-GEIGY,No. 11-92-197-CV,11-92-197-CV
• Citation: 871 S.W.2d 317
• Parties: CORPORATION, Appellant, v. Kenneth STEPHENS, Appellee.
• Court: Texas Court of Appeals

Page 317

871 S.W.2d 317

CIBA-GEIGY CORPORATION, Appellant, v. Kenneth STEPHENS, Appellee.

No. 11-92-197-CV.

Court of Appeals of Texas Eastland.

Feb. 24, 1994.

Rehearing Overruled March 24, 1994.

Portia J. Bott, Robert B. Summers, Michael J. Clark, Vaughan E. Waters, Thornton, Summers, Biechlin, Dunham & Brown, San Antonio, for appellant.

Kerwin B. Stephens, Stephens & Crawford, Graham, Barry Snell, Bayne, Snell & Krause, San Antonio, for appellee.

OPINION

DICKENSON, Justice.

On Rehearing ¹

This is a case under the Deceptive Trade Practices Act (DTPA), TEX.BUS. & COM.CODE ANN. § 17.41 et seq. (Vernon 1987 & Supp.1994).

Kenneth Stephens is a peanut farmer who sued Ciba-Geigy Corporation, the manufacturer of a fungicide which Stephens used to control "pod rot" in his 1987 peanut crop. When the crop was harvested, there was extensive pod rot damage which reduced the number of pounds and which also reduced the grade of the peanuts. The jury found that: Ciba-Geigy engaged in a "[f]alse, misleading or deceptive act or practice" and in an "unconscionable action or course of action"; Ciba-Geigy failed to comply with an express warranty; and these acts and omissions were the producing cause of damages. The jury found that the actual damages were $243,484.80. The trial court entered judgment on the verdict for $602,560.54 (actual damages, additional DTPA damages, and prejudgment interest compounded daily) plus 25 percent of that amount as attorney's fees. Ciba-Geigy appeals. We modify (eliminating the daily compounding of prejudgment interest) and affirm.

Background Facts

Stephens is an experienced peanut farmer. In 1987, he planted over 1,800 acres of peanuts, and he used a fungicide named Ridomil PC11G. Stephens paid $95,961.00 to purchase the fungicide. Ciba-Geigy manufactured the fungicide, and its brochures represent that: "Ridomil PC controls seed and seedling rots caused by Pythium spp. and Rhizoctonia solani." The fungicide controlled the "Pythium" fungus, but it failed to control the "Rhizoctonia" fungus. All of the witnesses agreed that Stephens' 1987 peanut crop had extensive pod rot damage.

One major dispute at trial was whether Stephens properly applied the fungicide. The other major dispute was when Stephens discovered the damage. Ciba-Geigy pleaded the two-year statute of limitations, but Stephens testified that he did not know of the fungicide's failure to perform as represented until he actually harvested the crop. The jury resolved both disputes in Stephens' favor.

The Jury's Verdict

Omitting the explanatory instructions, the questions submitted to the jury and the jury's answers can be summarized as shown:

(1) Did CIBA-GEIGY engage in any false, misleading, or deceptive act that was a producing cause of damage to KENNETH STEPHENS? Answer: Yes.

(2) Did CIBA-GEIGY engage in an unconscionable action or course of action that was a producing cause of damages to KENNETH STEPHENS? Answer: Yes.

(3) Was the failure of CIBA-GEIGY to comply with an express warranty a producing cause of damages to KENNETH STEPHENS? Answer: Yes.

(4) Did CIBA-GEIGY engage in any such conduct knowingly? Answer: Yes.

(5) By what date should KENNETH STEPHENS, in the exercise of reasonable diligence, have discovered all the false, misleading, deceptive acts or practices, unconscionable action, or failures to comply with a warranty of CIBA-GEIGY? Sept. 21, 1987.

(6) What sum of money, if any, if paid now in cash, would fairly and reasonably compensate KENNETH STEPHENS for his damages, if any, that resulted from the conduct you found to be a producing cause of damages to him?

A. Loss of Yield from 1987 peanut crop: $243,484.80.

B. Purchase price of the Ridomil PC11G: -0-.

(7) [Conditionally submitted upon a "yes" answer to Question 4] What sum of money, if any, in addition to actual damages, should be awarded to KENNETH STEPHENS against CIBA-GEIGY because CIBA-GEIGY'S conduct was committed knowingly? $225,000.00.

(8A) What is a reasonable fee for the necessary services of KENNETH STEPHENS' attorney in this case, stated in dollars and cents? $75,000 for preparation and trial; $15,000 for an appeal to the Court of Appeals; $5,000 for making or responding to an application for writ of error; and $5,000 if an application for writ of error is granted by the Supreme Court.

(8B) What is a reasonable fee for the necessary services of KENNETH STEPHENS' attorney in this case, stated as a percentage of KENNETH STEPHENS' recovery? Answer: 25%.

(9) Did CIBA-GEIGY fail to comply with an express warranty which proximately caused damages to KENNETH STEPHENS? Answer: No. (Emphasis added)

(10) Did KENNETH STEPHENS fail to exercise ordinary care in the application of Ridomil PC11G that proximately caused his damages? Answer: No.

(11) Find from a preponderance of the evidence the respective percentages by which each proximately caused the occurrence.

CIBA-GEIGY 75%.

KENNETH STEPHENS 25%.

(12) No answer required because of conditional submission and negative answer to Question 9.

Points of Error

Appellant has briefed 14 points of error. In its first two points, appellant challenges the trial court's discovery sanction which excluded the undisclosed portions of testimony from two witnesses. The next three points relate to the claim that Stephen's suit is barred by the two-year statute of limitations. Appellant argues that its limitation defense was conclusively established, that there is no evidence to support the jury's answer to Question 5, and that this answer is against the great weight and preponderance of the evidence. Appellant also argues that the trial court erred in using the word "all" in Question 5.

Appellant argues in Point 6 that the trial court erred by compounding the prejudgment interest daily. Appellant argues in Point 7 that the jury instruction on Question 6 "improperly commented on the weight of the evidence and nudged the jury." Appellant argues in Point 8 that the trial court erred in entering judgment for consequential damages because of its "legally valid limitation of liability or disclaimer." In Points 9, 10, 11, 12, and 14, appellant urges no evidence (and insufficient evidence) challenges to the jury's answers to Questions 2, 4, 7, 6(A), and 9 respectively. Appellant contends in Point 13 that the jury's answers to Questions 1, 2, 3, 4, and 7 are in "irreconcilable conflict" with the jury's answer to Question 9.

We sustain the sixth point of error. The other points have been considered and overruled.

Sanction for Discovery Abuse

Among the interrogatories which were propounded to Ciba-Geigy by Stephens under TEX.R.CIV.P. 168 was the following:

4. Please state the name, address and qualifications of each expert whom you expect to call as an expert witness at the trial of this case, the subject matter concerning which the expert expects to testify, and attach a copy of any report, including factual observations and opinions, which has been prepared by any such expert.

The original response to that interrogatory was filed by Ciba-Geigy on October 26, 1990, and it reads in full as shown:

This Defendant would object to this Interrogatory wherein it requires information in addition to that required by the Texas Rules of Civil Procedure. Subject to such objection, this Defendant would answer that it has not yet made any determination as to what, if any, expert witnesses may be needed in the defense of this cause of action. Further, this Defendant will not be in a position to make such a decision until such time as the Plaintiff's complaints and factual basis therefor has been made known.

Ciba-Geigy supplemented this response on January 2, 1992 (50 days before the trial), naming 19 persons (including Eileen Watson, Ph.D. and Everett Cowett, Ph.D.) as experts "who may be called" as expert witnesses at the trial of this case; however, Ciba-Geigy did not provide "the subject matter concerning which the expert expects to testify," information which Stephens was entitled to receive under TEX.R.CIV.P. 166b(2)(e)(1). Ciba-Geigy had provided Stephens with Dr. Watson's report on certain test results on Stephens' peanut crop, and depositions had been taken from some of the persons named in the supplemental response. The record shows the following ruling which was made by the trial court on the fourth day of trial, after hearing arguments of counsel and reviewing the discovery request, objection, and supplemental response:

THE COURT: [T]he defense has failed to comply with a proper discovery request.... I'm not going to exclude all of the defense testimony, I think a proper sanction in this matter is not complete exclusion, but exclusion to the extent that experts, and their impressions and their reports have not been furnished. To the extent that an expert's deposition has been taken, he will be allowed to testify in accordance with the deposition. To the extent that an expert's reports [have been furnished,] they'll be allowed to testify in accordance with the report, not otherwise. To the extent that an expert has just been named, but the subject matter has not been identified, they'll not be allowed.

We find that the trial court did not abuse its discretion in this ruling. When Ciba-Geigy undertook to supplement its response by naming its potential expert witnesses, it should have identified "the subject matter on which [each] witness is expected to testify." This was requested in the interrogatory, and it is discoverable under Rule 166b(2)(e)(1). The fact that Ciba-Geigy objected to one portion of the interrogatory did not excuse it from complying with the portion of the interrogatory which was not subject to the objection. Points 1 and 2 are overruled.

Statute of Limitations

Appellant states in its brief that Stephens "did not file this lawsuit within the applicable two-year statute of limitations." ² Appellant admits that the suit was filed on September 11, 1989, but argues that the record ...