Gutierrez v. Dallas Independent School Dist.

• Decision Date: 23 December 1986
• Docket Number: No. 05-86-00126-CV,05-86-00126-CV
• Citation: 722 S.W.2d 530
• Parties: 36 Ed. Law Rep. 1277 Maria GUTIERREZ, Appellant, v. DALLAS INDEPENDENT SCHOOL DISTRICT, Appellee.
• Court: Texas Court of Appeals

Page 530

722 S.W.2d 530

36 Ed. Law Rep. 1277

Maria GUTIERREZ, Appellant, v. DALLAS INDEPENDENT SCHOOL DISTRICT, Appellee.

No. 05-86-00126-CV.

Court of Appeals of Texas,

Dallas.

Dec. 23, 1986.

Tom P. Briggs, Dallas, for appellant.

H.C. McCracken, Carrollton, for appellee.

Before AKIN, DEVANY and McCLUNG, JJ.

ON MOTION FOR REHEARING

DEVANY, Justice.

Appellant's motion for rehearing is granted. Our opinion dated November 7, 1986 is hereby withdrawn. The following is now our opinion.

Appellant, Maria Gutierrez, sued her employer, Dallas Independent School District ("DISD"), under the Texas workers' compensation law for disability benefits resulting from a back injury which she sustained while on the job. In her sole point of error, Gutierrez claims that the trial court erred when it allowed DISD to present the testimony of Dr. Peter Kurilecz, an expert witness whose existence DISD had not revealed during discovery. Because Gutierrez had not specifically requested DISD to list its expert witnesses, we hold that the trial court did not err when it allowed Kurilecz to testify. We affirm the judgment of the trial court.

Gutierrez contends that the testimony of Dr. Kurilecz should not have been allowed because DISD did not reveal its intention to call him in response to Gutierrez' Interrogatory No. 7, which read, "Please state the names, addresses and phone numbers of all persons that the Dallas Independent School District or its attorney plans to call as witnesses in the trial of this cause." In its initial response to this interrogatory, DISD listed two of its fact witnesses, and, one week before trial, DISD supplemented its answer to include its two additional fact witnesses. At trial, DISD called Dr. Kurilecz. Gutierrez objected, and the trial court offered her a continuance, which was declined.

Rule 166b(5)(b) requires a party to supplement its answers to interrogatories concerning expert witnesses under certain circumstances. Rule 166b(5)(b) reads as follows:

If the party expects to call an expert witness when the identity or the subject matter of such expert witness' testimony has not been previously disclosed in response to an appropriate inquiry directly addressed to these matters, such response must be supplemented to include the name, address, and telephone number of the expert witness and the substance of the testimony concerning which the expert witness is expected to testify, as soon as is practical, but in no event less than thirty (30) days prior to the beginning of trial except on leave of court.

(Emphasis added.) If a party fails to supplement its answer in compliance with Rule 166b(5)(b), then Rule 215(5) requires the trial judge to exclude the testimony of the undisclosed witness unless good cause, sufficient to require admission, is shown. TEX.R.CIV.P. 215(5). Therefore, if DISD was required by Rule 166b(5)(b) to supplement its answer to include Dr. Kurilecz' identity, then the trial court erred in allowing Dr. Kurilecz to testify without a showing of good cause.

The question becomes, then, whether Rule 166b(5)(b) requires a party served with an interrogatory requesting the names of all persons who will be called as witnesses to include both fact witnesses and expert witnesses in its answer. We have found no case law interpreting this question under the current rules of civil procedure. Therefore, we must examine Rule 166b itself, and its predecessors, in light of earlier case law, in order to properly interpret it.

Rule 166b(2)(d) states that a party may obtain discovery of "any potential party and of persons having knowledge of relevant facts." Rule 166b(2)(e) permits discovery of experts and reports of experts. Thus, in Rule 166b(2), fact witnesses and expert witnesses are treated under different subsections. In addition, Rule 166b(5)(b) states, in pertinent part, "If the party expects to call an expert witness when the identity or the subject matter of such expert witness' testimony has not been previously disclosed in response to an appropriate inquiry directly addressed to these matters, such response must be supplemented ..." (Emphasis added.) Thus, the rule appears to require supplementation of answers to include the identity of expert witnesses only when the interrogatory has been directly addressed to expert witnesses.

The word "witness" itself is defined as "One who has observed so as to be able to give an account of something. An individual who has knowledge of a fact or occurrence sufficient to testify in respect to it." BALLANTINE'S LAW DICTIONARY 1374 (3rd ed. 1969). "Expert witness," on the other hand, is defined as follows:

A person who is so qualified, either by actual experience or by careful study, as to enable him to form a definite opinion of his own respecting a division of science, branch of art, or department of trade about which persons having no particular training or special study are incapable of forming accurate opinions or of deducing correct conclusions.... A witness qualified by scientific or specialized knowledge or experience so as to be permitted to testify not only to the facts, but to his opinion respecting the facts, so far as necessary to inform the jury and enable them to understand the issues of fact and arrive at a proper conclusion.

BALLANTINE'S LAW DICTIONARY 440. While the phrase "expert witness" includes within it the word "witness," the two do not mean exactly the same thing. Therefore, we hold that DISD was not required to reveal its intention to call Dr. Kurilecz in response to Gutierrez' interrogatory inquiring about "all witnesses."

In support of...