General Motors Corp. v. Gayle

• Decision Date: 02 October 1997
• Docket Number: No. 97-0125,97-0125
• Citation: 951 S.W.2d 469
• Parties: 40 Tex. Sup. Ct. J. 913 GENERAL MOTORS CORPORATION, Relator, v. The Honorable J. Ray GAYLE, III, Respondent.
• Court: Texas Supreme Court

Page 469

951 S.W.2d 469

40 Tex. Sup. Ct. J. 913

GENERAL MOTORS CORPORATION, Relator, v. The Honorable J. Ray GAYLE, III, Respondent.

No. 97-0125.

Supreme Court of Texas.

Argued March 25, 1997.

Decided July 9, 1997.

Rehearing Overruled Oct. 2, 1997.

John R. Gilbert, Angleton, Scott D. Lassetter, Jonathan W. Jordan, Gregory S. Coleman, Robert W. Higgason, Houston, for relator.

George P. Hardy, III, David P. Willis, Dennis R. Mundy, Richard P. Hogan, Jr., David W. Holman, Houston, for respondent.

PHILLIPS, Chief Justice, delivered the opinion for the Court, in which GONZALEZ, HECHT, CORNYN, ENOCH, SPECTOR, OWEN and ABBOTT, Justices, joined.

In this original mandamus proceeding, we must first decide whether the trial court abused its discretion by compelling relator to designate in advance whether its crash testing was to be used for evidentiary purposes or solely for consulting purposes, and by ordering that the opposing party be allowed to attend those tests designated as evidentiary. Because we conclude that the trial court's order invades the consulting-expert privilege, and that relator lacks an adequate remedy by appeal, we conditionally grant mandamus relief compelling the trial court to vacate its crash-test order. We must also determine whether the trial court abused its discretion by denying a continuance which would have rendered relator's jury fee timely. Because we conclude that the trial court also abused its discretion in this regard, we conditionally grant mandamus relief compelling the trial court to place this case on its jury docket.

I

Manuel Delarosa was severely injured in 1988 when his General Motors pickup truck collided with another car driven by Christopher Broussard. Delarosa's wife, a passenger in the pickup, suffered relatively minor injuries.

The Delarosas sued Broussard and General Motors in September 1990 alleging, among other things, that General Motors defectively designed the seat belts in Delarosa's pickup truck. In September 1995, after several continued trial settings, the trial court set the case for trial on January 3, 1996, on the court's "try or dismiss" docket. The notice sent to the parties did not specify whether the January 3 trial was to be to a jury or to the court.

When General Motors appeared on January 3, 1996, it discovered for the first time that no party had ever paid a jury fee, so that the case was on the nonjury docket. At the docket call, the court informed the parties that it intended to try the case without a jury beginning two days later. General Motors immediately paid the jury fee and then filed an "Objection to Placement of Case on Non-Jury Docket." Although General Motors had not paid the jury fee thirty days in advance of trial as required by Texas Rule of Civil Procedure 216(a), it argued that it had been led to believe that either the Delarosas or Broussard had paid a jury fee and that the case was on the jury docket. General Motors relied on the following circumstances: 1) the parties and the court had earlier discussed the logistics of trying the case to a jury; 2) Broussard, in his original answer, asked that all matters "be properly decided by this Honorable Court and Jury;" 3) the case had been preferentially set for July 12, 1993, which according to the trial court's schedule was a civil jury week; and 4) an October 1992 letter from the Delarosas' attorney to the trial court referred to the "issues to be presented to the Court and jury." Even the trial judge, in considering General Motors' arguments, stated that he "didn't realize this was a nonjury case until right before the nonjury docket."

General Motors also moved to continue the January 5 trial, arguing that the case was not ready because of pending discovery issues. At that time, both the Delarosas and General Motors had discovery matters pending before the court. In particular, General Motors argued that it had not conducted critical "crash tests" because the trial court had not yet ruled on the Delarosas' motion to attend those tests. Finally, General Motors argued that a continuance was necessary to allow its jury fee to become timely, thereby preserving its right to a jury trial. Despite their own outstanding document discovery requests, the Delarosas opposed the continuance, announcing that they were ready to proceed to trial before the court.

The trial court overruled General Motors' objection to nonjury trial and its motion for continuance at a January 5 pretrial conference. Recognizing that "this case still has some discovery that needs to be done ...," however, the trial court decided only to hear opening statements that day, then recess the trial for three weeks before hearing testimony. The court scheduled hearings during the interim period on both sides' outstanding discovery matters, recognizing that the crash tests would have to be performed at some future date after trial recommenced. Finally, the court informed the parties that they could expect a piecemeal trial, interlaced with the completion of discovery:

I will tell all sides also that I don't intend necessarily to commit to try this case on a continuous day-by-day basis. I may recess it for two or three weeks, hear a couple of days of testimony, and come back in a week or so. It may be that certain experts, if I allow late designations, may need to be deposed. You will have this trial finished before the spring is over and we will wrap this thing up one way or another as far as trial goes.

After hearing opening statements, the court recessed the trial in accordance with its announced plan.

The parties resolved their dispute over the Delarosas' document requests at a court hearing on January 9. After another discovery hearing the next day, the trial court granted the Delarosas' motion to attend General Motors' crash tests, subject to certain conditions. The court's order provided in pertinent part:

2. Plaintiffs are allowed to have representatives, i.e., a videographer, a photographer, an attorney, and one expert, present at any crash test or sled test or any test involving vehicle-to-vehicle collisions by General Motors that may pertain to this case.

3. For any test governed by this order, notices shall be given one week in advance of the test by General Motors to the plaintiffs' attorneys.

4. Plaintiffs' representatives, i.e., a videographer, a photographer, an attorney, and one expert, may attend the testing and must be afforded adequate and reasonable time prior to the test to inspect, measure, videotape, and photograph the test vehicle, dummies, cameras, instrumentation, test set-up, and other physical equipment associated with the test.

5. Plaintiffs' representatives, i.e., a videographer, a photographer, an attorney, and one expert, may photograph, videotape, and film the test itself.

6. Neither plaintiffs, their attorneys, representatives, or experts may question any of General Motors' experts, witnesses, representatives, or attorneys who may be present at the crash testing.

7. Any testing performed by purely consulting experts, whose testimony will not be offered at trial or form any basis of any testimony at trial, and whose tests and opinions will not be communicated to or form the basis of establishing any testing parameters, criteria, or conditions for any test, shall not be governed by the terms of this order and need not comply with this order. In other words, if General Motors decides to conduct sled tests, vehicle-to-vehicle tests, or crash tests purely, solely, and strictly for consultant purposes with consulting experts, then neither the plaintiffs, their attorneys, experts, or consultants shall be allowed to be present at this consultant-only testing.

8. If any crash tests or sled tests or any test involving vehicle-to-vehicle collisions are performed with consulting experts, or any discussions occur regarding such tests, no expert designated by General Motors--that is, no testifying expert--is allowed to be present. Nor may General Motors, its representative, attorneys, consultants, or any third-parties communicate, directly or indirectly, the results, format, or testing parameters to any testifying expert or any expert whose testimony will form the basis of any trial testimony.

9. The court and any opposing party must be notified at least three working days in advance of any sled, crash, or vehicle-to-vehicle testing conducted for consulting experts only. The notices shall advise the court and any opposing party that the testing is for consultant purposes only.

10. Any test to be conducted for consultant purposes only--including (1) the parameters and set-up for the testing, (2) the criteria for the testing, (3) any measurements for the testing, (4) the speed of the testing vehicles, or sled, and (5) any other preliminary matter relating to the parameters of the testing--must be filmed or videotaped. After the testing has been filmed or videotaped, the film or videotape must be filed with the court under seal. Then, if any later crash tests, sled tests, or vehicle-to-vehicle testing is conducted, and these tests are substantially similar to the consultant-only tests in any regard involving speed, results, changes in velocity, or related matters, then the court reserves the right to disallow the use in evidence of the testing based upon the consultant-only test guidelines. The purpose of this paragraph is to prevent any party's conducting numerous tests with consulting-only experts until a favorable result is determined, and then to re-designate that testing as a sled, crash, or vehicle-to-vehicle test for designated testifying experts.

11. If the plaintiffs choose to conduct any crash test, sled test, or vehicle-to-vehicle test with dummies or anything else to simulate seat belt partings or any of the issues in this case, representatives of General Motors will be entitled to the same protections in this order, upon the filing of a proper motion.

This order...