Lister v. Employers Reinsurance Corp.

• Court: Texas Civil Court of Appeals
• Writing for the Court: JUNELL
• Citation: Lister v. Employers Reinsurance Corp., 590 S.W.2d 803 (Tex. Ct. App. 1979)
• Decision Date: 14 November 1979
• Docket Number: No. B2115,B2115
• Parties: L. W. LISTER, Appellant, v. EMPLOYERS REINSURANCE CORPORATION, Appellee. (14th Dist.)

Page 803

590 S.W.2d 803

L. W. LISTER, Appellant, v. EMPLOYERS REINSURANCE CORPORATION, Appellee.

No. B2115.

Court of Civil Appeals of Texas, Houston (14th Dist.).

Nov. 14, 1979.

Rehearing Denied Dec. 5, 1979.

David L. Grissom, Jim Richards, Crawford & Grissom, Houston, for appellant.

Kurt T. Nelson, D. Craig Olivier, Vinson & Elkins, Houston, for appellee.

Before COULSON, JUNELL and SALAZAR, JJ.

JUNELL, Justice.

At the trial of this worker's compensation case in which employee Lister sued the defendant insurance company, the jury found that Lister's injury did not occur while in the course and scope of his employment. Judgment was rendered in favor of the insurance company, and Lister appeals claiming error in the exclusion of certain evidence by the trial court. The evidence consisted of portions of a government study dealing with the disease allegedly contracted by the plaintiff in the course of his employment. The relevant portions were excluded on the appellee's objection that they contained opinions, conjecture and conclusions. We agree that such portions were properly excluded and affirm the judgment of the trial court.

At trial Lister attempted to prove that his condition of peripheral neuropathy was caused by working conditions at the place of his employment, the Shell Oil Refinery in Deer Park, Texas. To aid in this proof he offered into evidence a report prepared by the United States Department of Health, Education and Welfare Center for Disease Control National Institute for Occupational Safety and Health (hereinafter the NIOSH report). The investigation for this report had been conducted at the same unit of the Shell refinery in which the plaintiff worked, and he had in fact been one of the subjects studied to determine the incidence of peripheral neuropathy in that particular unit.

Plaintiff tendered the report, except paragraph I, claiming admissibility as a government document under Tex.Rev.Civ.Stat.Ann. art. 3731a (Vernon Supp. 1978-1979). Appellee objected to this offer contending that medical and other opinions and conclusions expressed in the report rendered it inadmissible. Appellee later offered expert medical testimony to show that such opinions were subject to reasonable dispute. Portions of the report were admitted; other portions were excluded; and the court did not rule on one portion but requested the attorneys to obtain a ruling at a later time. Appellant made no further offer of the excluded evidence and did not later obtain the ruling requested by the trial court. Appellant bases his appeal on errors claimed in the exclusion of those portions of the report, exclusion of certain expert testimony and the alleged harm resulting therefrom. A review of the excluded portions of the report reveals that they are replete with conjecture, opinion and multiple hearsay statements.

The record reveals no limited tender of evidence made by appellant of any portion. When the trial court sustained appellee's objection and excluded portions of the report, it then became appellant's duty to separate any admissible from inadmissible portions. Upon his failure to do so, there is no error in the exclusion. Luvual v. Henke & Pillot, Division of Kroger Co., 366 S.W.2d 831 (Tex.Civ.App. Houston 1963, writ ref'd n. r. e.).

Appellant contends that because the NIOSH report is a properly authenticated government document, and the requirements of article 3731a have been met, the court had no discretion to exclude it. That statute permits the introduction into evidence of official public records or certified copies of such records, and operates as an exception to the hearsay rule. The statute, however, does not abrogate the traditional requirements of relevancy, competency or materiality. Thus, properly authenticated government documents which contain hearsay, conclusions, conjecture and opinions are subject to exclusion on those grounds. Texas Dept. of Public Safety v. Nesmith, 599 S.W.2d 443 (Tex.Civ.App. Corpus Christi 1977, no writ).

The excluded portions of the NIOSH report contain such incompetent statements. Appellant's failure to make a limited offer of admissible portions entitled the trial court to exclude the entirety.

Appellant's second and third points of error address the trial court's refusal to allow his...