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

• Decision Date: 10 March 1988
• Docket Number: No. 2-86-089-CV,2-86-089-CV
• Parties: Doris McKINNEY, Appellant, v. NATIONAL UNION FIRE INSURANCE COMPANY OF PITTSBURGH, PENNSYLVANIA, Appellee.
• Court: Texas Court of Appeals

Page 907

747 S.W.2d 907

Doris McKINNEY, Appellant, v. NATIONAL UNION FIRE INSURANCE COMPANY OF PITTSBURGH PENNSYLVANIA, Appellee.

No. 2-86-089-CV.

Court of Appeals of Texas Fort Worth.

March 10, 1988.

Rehearing Denied April 14, 1988.

Kugle, Stewart, Dent & Frederick and Barry Martines, Fort Worth, for appellant.

Thompson & Knight, and David R. Noteware, Laurie Kratky Dore and Malia A. Litman, Dallas, for appellee.

Before KELTNER, LATTIMORE and FARRIS, JJ.

OPINION ON MOTION FOR REHEARING

KELTNER, Justice.

This is an appeal from Doris McKinney's worker's compensation case in which the jury found that she did not suffer an injury in the course and scope of her employment with Weber Aircraft (Weber). National Union Fire Insurance Company of Pittsburgh, Pennsylvania (National Union) is Weber's worker's compensation carrier.

We originally issued an opinion on February 4, 1988, affirming the judgment of the trial court. After considering McKinney's motion for rehearing, we withdraw that opinion and judgment and substitute this opinion and judgment.

McKinney brings two points of error. In her first point, she complains of exclusion of part of the deposition testimony of a medical expert. In her second point of error, she complains of the court's admission of Weber's Safety and Health Administrator's testimony over her objection that the witness had remained in the courtroom in violation of "the rule" and that he was not designated as a fact witness in National Union's response to discovery.

We affirm the judgment of the trial court.

McKinney's petition alleged that she incurred an occupational disease while an employee of Weber Aircraft and as a result, became permanently and totally disabled. Her pleadings do not indicate the nature of the occupational disease. However, at trial she contended that during the eleven years of her employment with Weber Aircraft, she was exposed to numerous chemical compounds, which caused her to incur pulmonary and psychophysiological diseases resulting in her total and permanent disability.

In their answers to the first special issue, the jury found that McKinney had not sustained an occupational disease. Based on the response to this special issue, the trial court entered a take nothing judgment in favor of National Union.

In her first point of error, McKinney complains of the exclusion of part of the videotape deposition of Dr. Roger Blair, a neurologist and psychiatrist.

In the two hypothetical questions excluded, Dr. Blair was asked whether McKinney's exposure to toxins at the work place resulted, at least in part, in McKinney's depression.

As a part of each hypothetical, Dr. Blair was asked to assume both the diagnoses and conclusions of Dr. Thomas Kurt, a medical toxicologist, that the toxins had caused "psychophysiological anxiety, stress and depressive reaction...."

Prior to the introduction of Dr. Blair's videotape deposition, National Union pointed out that on cross-examination, Dr. Blair had admitted that he was not familiar with the chemicals to which McKinney was allegedly exposed and could not testify on personal knowledge whether the chemicals were "a cause of her depression."

As a result, National Union objected to Dr. Blair's testimony on two grounds. First, National Union contended that Dr. Blair's opinion was based wholly on hearsay and therefore inadmissible. Second, National Union contended that Dr. Blair demonstrated he was not qualified to render an opinion on causation.

At the outset, National Union asks us to refuse to consider this point because the point of error raised by McKinney does not claim that the trial court's action in excluding the evidence was an "abuse of discretion." There is no doubt that the proper standard of review, when reviewing the trial court's decision in excluding evidence because a doctor is not qualified as an expert in a particular area, is that of abuse of discretion. Bilderback v. Priestley, 709 S.W.2d 736, 740 (Tex.App.--San Antonio 1986, writ ref'd n.r.e.). However, we decline to rule that the absence of the words, "abuse of discretion," are fatal to McKinney's point of error.

To the contrary, McKinney's first point of error directs us specifically to the error complained of, the point in the record that the error allegedly occurred, and even the point in the record that McKinney claims to have preserved the alleged error. As a result, the point of error is more than sufficient to meet the requirements of TEX.R.APP.P. 74. Neily v. Aaron, 724 S.W.2d 908, 912 (Tex.App.--Fort Worth 1987, no writ).

Additionally, we do not have the authority to refuse to consider a point of error merely because of drafting imperfections. Our Supreme Court has recently held that appellate courts cannot refuse to consider a case on the merits for violation of the briefing requirements in TEX.R.APP.P. 74. Instead, we must first give the offending party an opportunity to amend their brief under TEX.R.APP.P. 83. Inpetco v. Texas American Bank/Houston, 729 S.W.2d 300, 300 (Tex.1987). Therefore, we decline to overrule McKinney's first point of error merely because she does not mention the term "abuse of discretion" in the point of error.

However, a second procedural problem is more troublesome. As stated above, the trial court excluded two questions to Dr. Blair and his answers from a videotape deposition. In order to preserve error, the trial record must demonstrate the actual offer of the evidence, the court's ruling thereon, and the substance of the testimony excluded. TEX.R.APP.P. 52(b). Rule 52 mandates that these steps must be completed prior to the court's charge being read to the jury. Id.

Unfortunately, the statement of facts in this case is silent as to what objections were made, which were sustained, and what evidence came in the record. Instead, the record reflects:

THE COURT: Are we ready to start with the video?

MR. MARTINES: Yes, Your Honor. At this time the Plaintiff would offer into evidence the video tape oral deposition of Dr. Roger Blair, neurologist.

(The video deposition of Dr. Blair was shown to the jury.)

After the case was submitted to the jury, McKinney's counsel made a bill of exceptions, stating the objections made to the videotape and the portions of the videotape that were excluded. This bill of exceptions came too late under the rules of appellate procedure. See TEX.R.APP.P. 52(b). As a result, the error is not preserved for appeal.

However, if the error had been preserved for appeal, we would be forced to overrule McKinney's complaint. The record before us reveals Dr. Blair admitted that he was only vaguely familiar with the chemicals to which McKinney was exposed and did not know what effects those chemicals could cause. The following is an example of Dr. Blair's testimony:

Q. So, any opinions that you have given today with regard to the effect, whether it be a producing cause or not, of Ms. McKinney's problems, her depression and other problems we've discussed, you're not qualified to give an expert opinion regarding whether these chemicals could have in any way caused her depression?

A. Well, like I said, I would have to look them up, which I haven't done. So, based on the knowledge I have got at this point, I couldn't, and based on all the toxicological stuff, not knowing what that is, I can't personally tell whether that's a cause of her depression.

The trial court has broad discretion in determining whether to allow expert testimony. Bilderback, 709 S.W.2d at 740. As a result, the trial court's action will not be disturbed on appeal absent a clear abuse of discretion. Stanley v. Southern Pacific Co., 466 S.W.2d 548, 551 (Tex.1971). In our review of the record, we cannot say that the trial court abused its discretion in refusing to allow Dr. Blair to testify to a matter which he admitted was not within his knowledge. Therefore, we overrule the first point of error.

In her second point of error, McKinney contends that the trial court erred in allowing the testimony of Todd Miller, the Safety and Health Administrator at Weber Aircraft, over her objection. McKinney contends that Miller's testimony should not have been admitted on two grounds. First, she claims that Miller was allowed to testify despite the fact that "the rule" had been invoked and he had remained in the courtroom throughout the trial. McKinney cites no cases in support of her contention. However, it should be noted the counsel for National Union responded to the objection at trial by stating that Miller had been designated as its representative. It is clear from the records that the trial court deemed Miller to be a representative of National Union. Nonetheless, McKinney claims that Miller was not an employee of National Union and therefore could not be its representative.

The version of rule 267 in effect at the time of trial provided in pertinent part:

Neither party to a suit should be placed under the rule. Where a corporation is a party to the suit, the court may exempt from the rule an officer or other representative of such corporation to aid counsel in the presentation of the case. If any party be absent, the court in its discretion may exempt from the rule a representative of such party.

TEX.R.CIV.P. 267 (amended 1/1/88). Our research into the rule reveals no case requiring a representative to be an employee of a party. To the contrary, in similar situations, at least one court in this state has allowed an employee of an employer to be the representative for a worker's compensation carrier in a compensation case. Yates v. Pacific Indemnity Co., 193 S.W.2d 266, 267 (Tex.Civ.App.--Texarkana 1946, writ ref'd n.r.e.). As a result, we overrule McKinney's contention that Miller was barred from testifying by operation of rule 267.

In her second contention under this point of error, McKinney complains that Miller's identity was not disclosed in discovery requests seeking the identity and location of witnesses with...