Mentis v. Barnard

• Decision Date: 02 February 1994
• Docket Number: No. D-3869,D-3869
• Citation: 870 S.W.2d 14
• Parties: Willfred MENTIS, Individually and as Next Friend of Willfred Mentis, Jr. and Warren Mentis, Minor Children, Petitioner, v. Michael John BARNARD, Respondent.
• Court: Texas Supreme Court

Page 14

870 S.W.2d 14

Willfred MENTIS, Individually and as Next Friend of Willfred

Mentis, Jr. and Warren Mentis, Minor Children, Petitioner, v. Michael John BARNARD, Respondent.

No. D-3869.

Supreme Court of Texas.

Argued Nov. 30, 1993.

Decided Feb. 2, 1994.

Gary W. Sibley and Robert T. Baskett, Dallas, for petitioner.

Charles M. Bradshaw, Dallas, for respondent.

Justice DOGGETT delivered the opinion of the Court, in which Chief Justice PHILLIPS, Justice GONZALEZ, Justice HIGHTOWER, Justice HECHT, Justice GAMMAGE, and Justice ENOCH join.

We consider trial court exclusion of the testimony of an expert witness on the grounds that he had not been designated "as soon as practical" under Rule 166b(6)(b) of the Texas Rules of Civil Procedure.

While crossing a street, Thelma Mentis was struck and killed by an automobile driven by John Barnard. Although suit was filed shortly after her death, the attorney who tried the case was not retained until about three months before trial. In response to discovery, that attorney designated an accident reconstruction expert as a testifying witness thirty-two days before trial. After jury selection and opening statements had been completed, Barnard's attorney was successful in having barred any testimony from this expert because he had not been identified "as soon as practical." Based upon the remaining evidence it was permitted to consider, the jury found that the negligence of both Mentis and Barnard constituted a proximate cause of the accident, with 85 percent of the negligence attributable to the former, and 15 percent to the latter. The trial court entered a take-nothing judgment. The court of appeals affirmed. 853 S.W.2d 119. We reverse.

Rule 166b(6)(b) addresses a party's duty to supplement a discovery request regarding the identity or subject matter of an expert witness. Supplementation must occur "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." TEX.R.CIV.P. 166b(6)(b). ¹ A witness not timely designated is automatically excluded from testifying unless good cause is shown. TEX.R.CIV.P. 215(5); see, e.g., Gee v. Liberty Mut. Fire Ins. Co., 765 S.W.2d 394 (Tex.1989); E.F. Hutton & Co. v. Youngblood, 741 S.W.2d 363 (Tex.1987); Morrow v. H.E.B., Inc., 714 S.W.2d 297 (Tex.1986) (per curiam).

Whether any designation has been made or whether such designation occurred less than 30 days before trial is easily determinable; however, the meaning of "as soon as practical" is less definite. In the latter situation, which is presented here, the trial court need consider good cause for late identification only if it finds that the witness was not designated as soon as was practical.

Some courts appear to have read the "as soon as practical" requirement completely out of Rule 166b(6)(b) so long as the witness was designated more than thirty days before trial. Pedraza v. Peters, 826 S.W.2d 741 (Tex.App.--Houston [14th Dist.] 1992, no writ); Mother Frances Hosp. v. Coats, 796 S.W.2d 566 (Tex.App.--Tyler 1990, orig. proceeding). Other courts have applied a more stringent standard:

By adding the language "as soon as practical" the Texas Supreme Court has clothed the trial court with the discretion to suppress the testimony of an expert witness if his identity is tendered less than thirty days before trial commences or when the trial court finds the name was not submitted as soon as practical.

Builder's Equip. Co. v. Onion, 713 S.W.2d 786, 788 (Tex.App.--San Antonio 1986, orig. proceeding) (per curiam). See also First Title Co. of Waco v. Garrett, 802 S.W.2d 254 (Tex.App.--Waco 1990), rev'd on other grounds, 860 S.W.2d 74 (1993); Williams v. Crier, 734 S.W.2d 190 (Tex.App.--Dallas 1987, orig. proceeding [leave denied] ).

The plain wording of Rule 166b(6)(b) indicates that the duty to designate attaches only when "the party expects to call an expert witness [not] previously disclosed." TEX.R.CIV.P. 166b(6)(b). This provision does not establish a time after filing or answering a lawsuit by which a party must retain its testifying experts. See Mother Frances, 796 S.W.2d at 571. Neither does it require identification immediately upon contacting an expert for potential testimony. The rule does require the attorney to communicate the designation "as soon as practical" once it is decided that the expert is expected to be called at trial.

A trial court's exclusion of an expert who has not been properly designated can be overturned only upon a finding of abuse of discretion. Morrow, 714 S.W.2d at 298. Barnard's only objection was that "the designation of the [Mentis's] expert one month before trial, after a lawsuit ha[d] been filed almost two years, is not as soon as practical." Though later arguing that he lacked the expert's deposition, Barnard's counsel admitted that he had never sought it. A litigant who seeks to deny an opponent the right to use a witness has the burden of producing evidence to show that the designation was not "as soon as practical." See Williams, 734 S.W.2d at 193. Simply advising the court as to how long the case had been pending did not by itself establish that designation at an earlier date would have been practical. The trial court abused its discretion in granting Barnard's motion.

Our analysis is not complete, however, without determining whether the error constituted reversible error. TEX.R.APP.P. 81(b). An error in the exclusion of evidence requires reversal if it is both controlling on a material issue and not cumulative. See Gee v. Liberty Mut. Fire Ins. Co., 765 S.W.2d 394, 396 (Tex.1989). Here the excluded witness was an accident reconstruction expert who planned to address a central issue of the comparative negligence of the pedestrian and driver. The expert's noncumulative calculations and opinions, based on examination and measurement of the scene, that Barnard was driving between 6 and 20 miles above the 40 mile per hour speed limit ² on a dark, rainy morning were controlling, though not conclusive, as to whether excessive speed caused the death.

Given the harmful effect of the trial court's abuse of discretion in excluding expert testimony, we reverse the court of appeals and remand for a new trial.

CORNYN, Justice, joined by SPECTOR, J., in Part I of this opinion, dissenting.

Under Texas Rule of Civil Procedure 166b(6)(b), as written, ¹ the trial court has the discretion to exclude expert testimony if the witness was not designated "as soon as practical." As this case demonstrates, the rule can inject counterproductive uncertainty into pre-trial and trial proceedings. ² Only when the trial court has abused its discretion, however, and such error has probably caused rendition of an improper judgment, is this or any other appellate court authorized to disturb the trial court's decision. TEX.R.APP.P. 81(b)(1). Because the trial court's exclusionary order in this instance is neither an abuse of discretion nor harmful error, I would affirm the judgment of the court of appeals.

I.

This wrongful death case arises out of a pedestrian-vehicle accident in Dallas on February 15, 1989, when Thelma Mentis was hit by a vehicle driven by John Barnard. All witnesses agree that Barnard hit Mentis as she was crossing six lanes of early morning rush-hour traffic in the rain. All witnesses likewise agree that Barnard had a green light at the time of the accident. The sole matter of contention was whether Barnard was negligent in driving too fast under the circumstances.

Ms. Mentis's survivors filed suit on March 22, 1989. The sequence of relevant events is as follows: 1) Barnard's lawyer filed a jury demand, and the case was set for trial on September 11, 1989; 2) Barnard's lawyer submitted a discovery request on May 8, 1989, inquiring about potential expert witnesses; 3) the Mentises' counsel withdrew on September 20, 1989, and was apparently succeeded by Lawrence W. Hitchery; 4) trial was reset to June 25, 1990; 5) three days before trial, David Robert Contreras filed a motion for continuance and asked to be substituted as plaintiffs' counsel, which the trial court granted; 6) John Williams Murray, the expert witness whose testimony was excluded, was designated as a potential witness on January 11, 1991, by attorney R. David Weaver, who was officially designated as counsel for the Mentises on January 16, 1991; and 7) trial commenced on February 12, 1992.

Thus, the excluded expert witness was first designated more than twenty months after Barnard requested designation of expert witnesses. In response to Barnard's motion to exclude Murray as a witness, the Mentises' lawyer argued:

[I]nsofar as what may have occurred prior to the time I became Attorney of Record, obviously I cannot speak to that, but I do know that the designation was made as soon as practicable from the standpoint of our being involved in this lawsuit.

853 S.W.2d 119, 121. Counsel made no attempt to justify the failure to designate an expert witness in response to a discovery request served approximately twenty-one months earlier in the lawsuit. His argument suggests only that he was not at fault, as indeed he may not have been. The court apparently embraces this argument, and implies that the Mentises are somehow excused from making earlier disclosure because the delay...