Gutierrez v. Dallas Independent School Dist., C-6121

• Citation: 729 S.W.2d 691
• Decision Date: 13 May 1987
• Docket Number: No. C-6121,C-6121
• Parties: 39 Ed. Law Rep. 898 Maria GUTIERREZ, Petitioner, v. DALLAS INDEPENDENT SCHOOL DISTRICT, Respondent.
• Court: Supreme Court of Texas

Page 691

729 S.W.2d 691

39 Ed. Law Rep. 898

Maria GUTIERREZ, Petitioner, v. DALLAS INDEPENDENT SCHOOL DISTRICT, Respondent.

No. C-6121.

Supreme Court of Texas.

May 13, 1987.

Tom P. Briggs (Law Offices of Tom P. Briggs), Dallas, for petitioner.

H.C. McCracken (McCracken, Taylor & Nelson, P.C.), Carrollton, for respondent.

ROBERTSON, Justice.

This case involves the question of whether a "surprise" witness may be called based on an incompletely answered interrogatory.

Maria Gutierrez injured her back while working as a school cafeteria cashier for the Dallas Independent School District. She sued DISD for benefits under provisions of the Workers' Compensation Act, alleging permanent and total incapacity due to her injury. On July 22, 1985, Gutierrez propounded interrogatories to DISD, one of which was as follows:

7. Please state the names, addresses and phone numbers of all persons that the Dallas Independent School District or it's [sic] attorneys plan to call as witnesses in the trial of this cause.

On August 30, 1985, in answer to the interrogatories, DISD alleged that its only two witnesses would be Karen Lewis, personnel manager, and B.J. Baker, school principal. In the answer to question 7, DISD also said that "[t]estimony may require calling other witnesses, but none contemplated at this time." On September 17, 1985, one week before trial, DISD supplemented its answers and provided the names of two other witnesses, Elizabeth Trefeny, a claims adjuster, and Charlene McClain, the cafeteria supervisor. At trial, DISD produced a "surprise" expert witness, Dr. Peter Kurilecz, who was allowed to testify over the objection of Gutierrez. It is clear that DISD never designated Dr. Kurilecz as a witness prior to trial, nor did Gutierrez have any reason to suspect that he would be called. The trial court offered Gutierrez a continuance, but she refused.

After a jury verdict awarding only partial temporary incapacity, the trial court rendered judgment that Gutierrez take nothing. Gutierrez appealed claiming that the wording of her interrogatory required that DISD reveal the names of all witnesses, including experts. The court of appeals disagreed, however, 722 S.W.2d 530, holding that "witnesses" and "expert witnesses" are completely separate concepts, thus the interrogatory could not be read so as to include any expert witness known by DISD. While we recognize that there are differences between lay witnesses and experts, we disagree with the court of appeals and reverse and remand this cause for a new trial.

The whole purpose of discovery is to allow the parties "to obtain the fullest knowledge of issues and facts prior to trial." West v. Solito, 563 S.W.2d 240, 243 (Tex.1978). The rules of discovery were changed to prevent trials by ambush and to ensure that fairness would prevail. In the present case we are confronted by a discovery request which was clearly deficient under the rule set out in Employers Mut. Liability Ins. Co. v. Butler, 511 S.W.2d 323, 324-25 (Tex.Civ.App.--Texarkana 1974, writ ref'd n.r.e.). Under present law DISD would have been completely within its rights in refusing to answer the interrogatory question. Instead, DISD answered the request and even amended its answer later to include other lay witnesses. DISD did not have the right to originally answer the question in a misleading fashion. It also did not have the authority to further misguide...