Duncan v. Horning, 19918

• Decision Date: 07 August 1979
• Docket Number: No. 19918,19918
• Citation: Duncan v. Horning, 587 S.W.2d 471 (Tex. Ct. App. 1979)
• Parties: Joyce DUNCAN, Appellant, v. John HORNING, D. D. S., Appellee.
• Court: Texas Civil Court of Appeals

Page 471

587 S.W.2d 471

Joyce DUNCAN, Appellant, v.John HORNING, D. D. S., Appellee.

No. 19918.

Court of Civil Appeals of Texas, Dallas.

Aug. 7, 1979.

Charles M. Wilson, III, Carter, Jones, Magee, Rudberg, Moss & Mayes, Dallas, for appellant.

John H. Martin, Thompson & Knight, Dallas, for appellee.

Before GUITTARD, C. J., and STOREY and HUMPHREYS, JJ.

STOREY, Justice.

This is an appeal from a summary judgment granted in a dental malpractice suit.The primary question is whether the affidavit of an expert witness who is a party to the suit may constitute sufficient proof to support summary judgment.We hold that it can.We also conclude that plaintiff's controverting affidavits are not sufficient to raise a fact issue; and that her answers to interrogatories may not be used by her to raise a fact question.Accordingly, we affirm.

Plaintiff sued the defendant, a dentist who had been treating her for about seven years, alleging eight grounds of negligence: (1)he failed to properly diagnose her tooth and jaw prior to extraction; (2)he failed to obtain a medical history; (3)he failed to use clean instruments; (4)he administered excessive anesthetics; (5)he failed to properly treat the wound after extraction; (6)he pulled an infected tooth; (7)he failed to offer her alternatives to extraction; and (8)he failed to properly care for her teeth during the years of treatment.Defendant answered and propounded interrogatories to plaintiff.Among those interrogatories was a series of questions inquiring about plaintiff's expert witness or witnesses.Plaintiff's answers revealed that she had no expert testimony to offer, whereupon defendant filed his motion for summary judgment accompanied by his supporting affidavit.On the day before the summary judgment hearing, plaintiff filed controverting affidavits, one signed by her and one signed by Dr. Glenn Clark.The trial court, after considering the summary judgment record, granted defendant's motion.

The first question is whether an interested expert witness, the defendant in a malpractice case, can obtain summary judgment based solely on his uncontroverted testimonial evidence.We have concluded that he can.Rule 166-A(c), as amendedeffective January 1, 1978, provides in part A summary judgment may be based on uncontroverted testimonial evidence of an Interested witness, or of an Expert witness as to subject matter concerning which the trier of fact must be guided solely by the opinion testimony of experts, if the evidence is clear, positive and direct, otherwise credible and free from contradictions and inconsistencies, and could have been readily controverted.(Emphasis added).

Prior to the 1978amendment, the rule did not expressly authorize the consideration of either the testimonial evidence of an interested witness or the opinion of an expert in support of a motion for summary judgment.The supreme court's construction of the rule, however, had authorized use of the interested witness' evidence, under certain conditions, while denying that a summary judgment could be based on expert opinion testimony under any conditions.Gibbs v. General Motors Corp., 450 S.W.2d 827(Tex.1970);Great American Reserve Insurance Co. v. San Antonio Plumbing Supply Co., 391 S.W.2d 41, 47(Tex.1965).The conditions authorizing consideration of the interested witness' testimony as set out in Great American Reserve Insurance Co. are that it be uncontradicted, clear, direct and positive, free of circumstances tending to discredit or impeach, and readily controverted.These are the tests which our courts have traditionally applied to an interested witness' testimony, whether in summary judgment proceedings or in jury or non-jury trials, involving the question of whether a fact is established or negated as a matter of law.Great American Reserve Insurance Co., supra;Valley Stockyards Co. v. Kinsel, 369 S.W.2d 19, 20(Tex.1963);Taylor and Son, Inc. v. Arlington Independent School District, 160 Tex. 617, 335 S.W.2d 371, 376(1960);Owen Development Co. v. Calvert, 157 Tex. 212, 302 S.W.2d 640, 642(1957);McGuire v. City of Dallas, 141 Tex. 170, 170 S.W.2d 722, 728(1943);Simonds v. Stanolind Oil & Gas Co., 134 Tex. 332, 136 S.W.2d 207, 208(1940).The amended rule expressly provides for the consideration of both types of testimony in support of a motion for summary judgment and places the same conditions upon their use.Additionally, the expert opinion is limited to subject matter concerning which the trier of fact must be guided solely by the opinion testimony of an expert.

We find nothing in the language of the amended rule which prohibits an interested witness from giving an expert opinion.Because the supreme court was considering both types of testimonial evidence at the same time for inclusion in the rule, we must conclude that it intended the opinion of an interested expert to be competent summary judgment proof; otherwise the amendment would have contained an express prohibition.The question then is whether the affidavit in this case meets the tests required by the rule.

The defendant's affidavit sets out his qualifications, describes the services he performed for plaintiff, states that he acted in accordance with the standard of care prevalent in Dallas County, specifically denies each of the allegations of negligence contained in plaintiff's petition and states the opinion based upon a reasonable degree of dental probability, that no act or omission on his part caused any damage to plaintiff.The evidence furnished by the affidavit is clear, positive and direct, otherwise credible and free from contradictions and inconsistencies, and the subject matter is such that the trier of fact must be guided solely by the opinion testimony of an expert.Hart v. Van Zandt, 399 S.W.2d 791, 792(Tex.1965);Bowles v. Bourdon, 148 Tex. 1, 219 S.W.2d 779, 782(1949).

The remaining test required by Rule 166-A(c) is whether the defendant's testimonial evidence "could have been readily controverted."Plaintiff made no complaint to the trial court that she was unable to controvert.We believe the better practice would require plaintiff to make such a complaint under subdivision (f) of Rule 166-A;¹ however, the Supreme Court has never placed this burden upon a non-movant, but instead has made its own determination from the record before it.SeeGreat American, 391 S.W.2d at 47;Kinsel, 369 S.W.2d at 20;Arlington, 335 S.W.2d at 376;Calvert, 302 S.W.2d at 642;McGuire, 170 S.W.2d at 728;Simonds, 136 S.W.2d at 208.Further, the court has never defined "readily controverted."There is some authority for the proposition that it means only the Opportunity to controvert.(SeeSimonds, 136 S.W.2d at 208 where the court said the opposing party had the opportunity because he took the witness' deposition prior to trial).The weight of authority seems to be, however, that there must not only be the opportunity to controvert, but also the testimony must be such that it is Susceptible of controverting.SeeGreat American, supra;Kinsel, supra;See alsoCollora v. Navarro, 574 S.W.2d 65, 69(Tex.1978).Plaintiff in this case had the opportunity to controvert as demonstrated by her filing of Dr. Clark's affidavit.Also, defendant's testimonial evidence was...