Ohio Medical Products, Inc. v. Suber

• Decision Date: 15 September 1988
• Docket Number: No. B14-87-209-CV,B14-87-209-CV
• Parties: OHIO MEDICAL PRODUCTS, INC., et al, Appellants, v. Christy SUBER and Craig Suber, Appellees. (14th Dist.)
• Court: Texas Court of Appeals

Page 870

758 S.W.2d 870

OHIO MEDICAL PRODUCTS, INC., et al, Appellants, v. Christy SUBER and Craig Suber, Appellees.

No. B14-87-209-CV.

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

Sept. 15, 1988.

Roger D. Townsend, Andrew T. McKinney, Houston, for appellants.

Don R. Riddle, Houston, S.R. Lewis, Jr., Galveston, Gayle Gordon, Austin, for appellees.

Before PAUL PRESSLER, MURPHY and ELLIS, JJ.

OPINION

PAUL PRESSLER, Justice.

The jury awarded plaintiffs in excess of $6,000,000 in a products liability action. Christy Suber suffered permanent brain damage from an overdose of anesthesia during a minor surgical procedure. She and her husband sued the anesthesiologist, the hospital and others for negligence and medical malpractice. They sued appellants, Ohio Medical Products, Inc., Airco, Inc., The BOC Group, Inc., and Ohmeda (hereafter "Ohmeda"), the manufacturers, sellers and servicers of the anesthesia gas machine, alleging a defective product, negligent design and negligent failure to warn of known hazards related to the machine. On appeal Ohmeda raises six points of error. We affirm.

The Subers went to trial against Dr. Harvey Slocum, The University of Texas Medical Branch at Galveston, John Sealy Hospital, the State of Texas and appellants. At the close of the plaintiffs' evidence, when defendants Slocum, UTMB, the hospital and the State moved for an instructed verdict, Ohmeda sought leave to amend its pleadings to add a cross action for contribution against these defendants. The motion was denied and the instructed verdict was granted. The case went to the jury with Ohmeda as the sole defendant.

In its first two points of error, Ohmeda contends that the trial court erred in granting the co-defendants' motion for instructed verdict and that the court abused its discretion in refusing Ohmeda's motion for leave to amend its pleadings. We first consider Ohmeda's second point.

Rules 63 and 66 of the Texas Rules of Civil Procedure allow amendment of pleadings when there is no showing of surprise or prejudice to another party in maintaining his action or defense. The granting of leave to file a trial amendment is purely discretionary and the trial court's ruling will not be disturbed on appeal absent a clear showing of abuse of its discretion. Fry v. Guillote, 577 S.W.2d 346, 347-348 (Tex.Civ.App.--Houston [14th Dist.] 1979, writ ref'd n.r.e.); Leong v. Wright, 478 S.W.2d 839, 846 (Tex.Civ.App.--Houston [14th Dist.] 1972, writ ref'd n.r.e.). A court does not abuse its discretion in refusing to allow an amendment when the record shows a lack of diligence. Fry v. Guillote, 577 S.W.2d at 348; Sanchez v. Matthews, 636 S.W.2d 455, 460 (Tex.App.--San Antonio 1982, writ ref'd n.r.e.). Where the matter to be pleaded appears to have been known by the party seeking to amend and is not based on any newly discovered facts, an amendment should be denied. Merit Drilling Co. v. Honish, 715 S.W.2d 87, 91 (Tex.App.--Corpus Christi 1986, writ ref'd n.r.e.).

The incident which formed the basis of the Subers' suit occurred in April of 1984. Ohmeda went to trial November 10, 1986 on its third amended original answer, filed November 5, 1986. It contained no cross action against any of Ohmeda's co-defendants. In seeking to amend, Ohmeda offered no reason why a cross-action for contribution could not have been filed prior to trial. Clearly, to have allowed such an amendment would have worked prejudice against the co-defendants who, on the basis of the pleadings, had no reason to prepare to meet affirmative evidence from Ohmeda as to their liability. We hold, therefore, that the trial court did not abuse its discretion in denying appellants' motion to file their cross action for contribution. Appellants' second point of error is overruled.

This holding is also dispositive of point of error number one in which Ohmeda complains that the trial court erred in granting its co-defendants' motion for instructed verdict. This court addressed precisely the same issue in Nowsco Services Division of Big Three Industries, Inc. v. Lassman, 686 S.W.2d 197 (Tex.App.--Houston [14th Dist.] 1984, writ ref'd n.r.e.), a case in which one defendant sought to appeal the granting of a directed verdict in favor of two co-defendants. The remaining defendant, who had no pleadings for contribution on file against its co-defendants, contested the propriety of the directed verdict on the same grounds urged by Ohmeda, specifically that there was sufficient evidence from which a jury could have found those defendants liable to the plaintiff. There it was first pointed out that contribution from joint tortfeasors in negligence actions is a statutory remedy and, like any other claim, must be supported by sufficient pleadings. Nowsco Services at 199. Unless it has its own crossclaim pending, a defendant has no right of contribution from third parties where the injured party's cause of action against such third parties is extinguished by an adverse judgment. Brown & Root, Inc., v. Rust Engineering, 679 S.W.2d 576, 578 (Tex.App.--Texarkana 1984, writ ref'd n.r.e.). The Subers' cause of action against Ohmeda's co-defendants was extinguished by the instructed verdict granted by the trial court and Ohmeda had no other cause of action pending against those defendants. Accordingly, Ohmeda, the remaining defendant, had no standing to challenge the judgment in...