McKinney v. National Union Fire Ins. Co. of Pittsburgh, Pennsylvania.

• Decision Date: 07 June 1989
• Docket Number: No. C-7514,C-7514
• Citation: 772 S.W.2d 72
• Parties: Doris McKINNEY, Petitioner, v. NATIONAL UNION FIRE INSURANCE COMPANY OF PITTSBURGH, PENNSYLVANIA, Respondent.
• Court: Texas Supreme Court

Page 72

772 S.W.2d 72

Doris McKINNEY, Petitioner, v. NATIONAL UNION FIRE INSURANCE COMPANY OF PITTSBURGH, PENNSYLVANIA, Respondent.

No. C-7514.

Supreme Court of Texas.

June 7, 1989.

Mark S. Stewart, Ft. Worth, for petitioner.

Malia A. Litman, David R. Noteware, Dallas, Laurie Kratky Dore, Austin, for respondent.

ON MOTION FOR REHEARING

GONZALEZ, Justice.

Petitioner's motion for rehearing is granted and the court's opinion and judgment of April 5, 1989 and the concurring opinion of the same date are withdrawn and the following is substituted.

This workers' compensation case presents yet another twist on the problem of undisclosed fact witnesses in response to discovery requests. Doris McKinney filed a claim with the Industrial Accident Board (IAB) alleging that while she was employed at Weber Aircraft, she incurred an occupational disease in the course and scope of her employment. National Union Fire Insurance Company of Pittsburgh, Pennsylvania, Weber's insurance carrier, was dissatisfied with the IAB award and filed this suit in District Court. ¹

Trial was before a jury which found that McKinney had not sustained an occupational injury and the trial court rendered a take nothing judgment. The court of appeals, with one justice dissenting, affirmed the judgment of the trial court. 747 S.W.2d 907. For different reasons than those given by the court of appeals, we affirm the judgment of the court of appeals.

The sole point of error before us concerns the sufficiency of McKinney's trial objection and if sufficient, whether the admission of testimony of an undisclosed witness was reversible error.

Before trial, pursuant to Tex.R.Civ.P. 167, McKinney filed a "Request for Production of Information" ² seeking copies of certain documents, lists of expert witnesses National Union intended to call, and a list of names and addresses of witnesses with knowledge of relevant facts concerning this cause of action. National Union submitted certain records, but as to the lists of expert and fact witnesses, National Union answered the request by stating that it had no such records.

McKinney also served an interrogatory on National Union which requested the identity and location of persons with knowledge of relevant facts. National Union did not answer this interrogatory; instead, it objected on the grounds that it was overly broad and burdensome. Neither party requested a hearing nor obtained a ruling on this objection.

At trial, National Union called Todd Miller, Weber's safety and health administrator, as a witness. McKinney objected because Miller had not been designated as a fact witness in National Union's response to discovery.

Specifically, McKinney's objection stated:

... [National Union] has entirely failed to answer any motion for production designating any witnesses as relevant fact witnesses. Thereby, we have had no previous notice that they intended to call this man to testify as allowed under the Rules of Civil Procedure, that his testimony should not be allowed as he was not identified.

The trial court overruled McKinney's objection and allowed Miller to testify. The court of appeals held that this objection was not sufficiently specific to direct the trial court's attention to the fact that Miller's identity was not disclosed in response to the interrogatory. 747 S.W.2d at 911. We disagree.

To preserve error, an objection must state the specific grounds for the desired ruling if those grounds are not apparent from the context of the objection. Tex.R.App.P. 52(a). A specific objection is one which enables the trial court to understand the precise grounds so as to make an informed ruling, affording the offering party an opportunity to remedy the defect, if possible. In the present case, it is apparent from McKinney's objection that she was objecting to the testimony of an undisclosed fact witness. McKinney's objection was sufficient to direct the trial court's attention to the fact that Miller had not been designated as a fact witness in response to a discovery request. ³ We will now discuss whether the trial court's admission of Miller's testimony over McKinney's objection was reversible error.

Rule 168(6) provides that answers to interrogatories to which an objection is made "shall be deferred until the objections are ruled upon and for such additional time thereafter as the court may direct." Tex.R.Civ.P. 168(6). National Union contends that because it objected to McKinney's interrogatory, its duty to answer never arose.

In Gutierrez v. Dallas Indep. School Dist., 729 S.W.2d 691, 693 (Tex.1987), we held that if a litigant propounds an improper interrogatory, it is incumbent upon the party answering to object to the form of the question, so that it may be reurged in the proper form. If the party answering the request does not object to the form of the question, but later tries to call an undisclosed witness, the trial court should disallow the testimony of the witness unless good cause can be shown. Morrow v. H.E.B., 714 S.W.2d 297, 298 (Tex.1986); Yeldell v. Holiday Hills Retirement & Nursing Center, Inc., 701 S.W.2d 243, 247 (Tex.1985). See also Gee v. Liberty Mut. Fire Ins. Co., 765 S.W.2d 394 (Tex.1989). Morrow and Yeldell are not directly applicable to the present case because National Union did object to McKinney's interrogatory.

In Peeples v. Fourth Court of Appeals, 701 S.W.2d 635, 637 (Tex.1985), we held that:

... any party who seeks to exclude documents, records or other matters from the discovery process has the affirmative duty to specifically plead the particular privilege or immunity claimed and to request a hearing on his motion.... Failure to follow the above procedure constitutes a waiver of any complaint of the trial court's action.

Thus, in Peeples we placed the burden of requesting a hearing on the party seeking to exclude matters from discovery. Since Peeples was decided, however, the Court has promulgated Texas Rule of Civil Procedure 166b(4), which states in part:

In responding to an appropriate discovery request within the scope of paragraph 2 directly addressed to the matter, a party who seeks to exclude any matter from discovery on the basis of an exemption or immunity from discovery, must specifically plead the particular exemption or immunity from discovery relied upon and produce evidence supporting such claim in the form of affidavits or live testimony presented at a hearing requested by either the requesting or objecting party.

This rule codifies Peeples in part, but also modifies it by allowing either party to request a hearing on objections to discovery. Consistently, Texas Rule of Civil Procedure 168(6) also allows either party to request a hearing on objections to interrogatories.

Oftentimes, parties make overly broad or burdensome requests for information or seek clearly nondiscoverble matters. Faced with an objection, the requesting party sometimes recognizes the validity of the objection and abandons the request for information. At times, opposing parties resolve discovery disputes among themselves without court intervention. We applaud and encourage this practice. This avoids the needless expense and the use of valuable judicial resources by reducing the number of unnecessary hearings. Because the party requesting discovery is in the best position to evaluate its need for information and sometimes recognizes the validity of an objection to a discovery request, the orderly administration of justice will be better served by placing responsibility for obtaining a hearing on discovery matters on the party requesting discovery. If a hearing is held, the objecting party must assume the burden of establishing...