Rodriguez By and Through Rodriguez v. Hyundai Motor Co., 13-94-573-CV

• Decision Date: 30 April 1997
• Docket Number: No. 13-94-573-CV,13-94-573-CV
• Citation: 944 S.W.2d 757
• Parties: Rowena RODRIGUEZ by and through her next friend Andrea RODRIGUEZ, Appellant, v. HYUNDAI MOTOR COMPANY, Hyundai Motor America, Port City Pontiac-GMC Trucks, Inc., d/b/a Harbor Hyundai, Appellees.
• Court: Texas Court of Appeals

Page 757

944 S.W.2d 757

Rowena RODRIGUEZ by and through her next friend Andrea RODRIGUEZ, Appellant, v. HYUNDAI MOTOR COMPANY, Hyundai Motor America, Port City Pontiac-GMC Trucks, Inc., d/b/a Harbor Hyundai, Appellees.

No. 13-94-573-CV.

Court of Appeals of Texas Corpus Christi.

April 30, 1997.

Rehearing Overruled May 29, 1997.

Baldemar Gutierrez, David O. Gonzalez, Law Offices of Baldemar Gutierrez, Alice, Ramon Garcia, Edinburg, for appellant.

Ruth G. Malinas, David M. Prichard, Ray A. Weed, Ball & Weed. San Antonio. Jose E. Garcia, McAllen, for appellees.

Before SEERDEN, C.J., and YANEZ and CHAVEZ, JJ.

OPINION

YANEZ, Justice.

This case involves personal injuries sustained because of an allegedly defective automobile. Appellant, Rowena Rodriguez, by and through her next friend Andrea Rodriguez, brings this appeal from a take-nothing judgment rendered by the jury in her lawsuit against Hyundai Motor Company, Hyundai Motor America, Inc., and Port City Pontiac-GMC Trucks, Inc. (hereinafter "appellees"). Appellant was injured on January 27, 1990 near Sarita, Texas when the Hyundai vehicle in which she was a passenger ¹ was involved in a serious roll-over accident. Rodriguez sued appellees under theories of negligence, breach of warranty, and strict liability after she suffered serious injuries in the accident. We affirm in part, and reverse and remand in part.

Appellant's contention at trial was that her injuries were caused by a design defect in the 1988 Hyundai Excel-GL vehicle. Expert testimony suggested that the accident was caused by driver inattention and an over-correction of the steering wheel, which caused the vehicle to flip and roll over two and a half times. Appellant did not allege that any defect in the automobile caused the accident. Rather, she contended that the roof structure and the restraint systems were deficiently designed, and as a result of the noncrashworthiness of the vehicle, she sustained more serious injuries than she would otherwise have had. Appellees defense was that the design of the vehicle was not defective and was not the cause of her injuries. They maintained that it was the negligence of the driver of the vehicle, Belarmino Cruz, which was the sole cause of her injuries. A central issue in the trial was whether her injuries were caused by structural damage to the vehicle sustained despite wearing her seat-belt, or whether appellant was even wearing a seat-belt at all.

By ten points of error, appellant contends that the judgment entered by the court should be reversed. In points one and two, appellant complains of error in allowing a defense expert witness to testify at trial, and the court's refusal to grant a new trial based on the erroneous allowance of the expert testimony. By points three and four, appellant complains of evidentiary rulings which limited the extent of her expert testimony. By points five through seven, appellant contends that the court committed reversible error in refusing to submit her proposed special issues regarding design defects, marketing defects, and breach of implied warranty, respectively. In points eight and nine, appellant contends that the court erred in submitting to the jury the question of appellant's possible negligence, and that the jury's findings that she was negligent are against the great weight and preponderance of the evidence. Finally, appellant argues that the court erred in overruling her motion for new trial based on defense counsel's inappropriate comments at trial.

The appellate record for the case consists of fourteen volumes of exhibits and fourteen volumes of testimony, plus a three-volume transcript. The jury heard ten days of testimony before entering its take-nothing findings. The parties conducted extensive discovery prior to the trial. The actions of the appellees during pretrial discovery form part of the basis of this appeal.

Points one and two contend that the trial court should not have allowed appellees' expert witness Lee Carr to testify at trial because appellees were not forthcoming with information regarding his identity, the nature of his testimony, and his files during discovery. In particular, appellant argues that the appellees' refusal to timely and completely respond to interrogatories and requests for production of materials relied on by their experts constituted a discovery abuse. As such, appellant contends, the trial court should have penalized them by preventing Carr from testifying. Appellees respond by asserting that they did not violate any discovery duty, and that even if they did, the court had good cause to allow Carr's testimony.

THE DISCOVERY FACTS

Appellant's argument is rooted in two discovery requests sent to each of the appellees in September 1993: (1) interrogatories seeking the names, addresses, and fields of expertise of the experts whom appellees expected to testify, as well as "all facts known to the expert that form the basis of the expert's mental impressions and opinions," and "information regarding all documents," and (2) a request for production of "all documents and tangible things" used by, prepared by, or prepared for appellees' experts in anticipation of litigation. In their first timely answers to appellant's discovery, each of the appellees responded that they had not yet designated experts, and objected to the interrogatories as burdensome, overbroad, harassing, and oppressive. ² Appellees also objected to parts of the requests for production, but stated their intention to make expert files available for inspection at a later date. ³ Each response recited the appellee's intention to follow any docket control order or agreement between the parties.

On October 25, 1993, the court signed an agreed docket control order wherein the defendants agreed to designate any and all expert witnesses by "name, address, telephone number and area of expertise" by January 3, 1994. All discovery was to be completed by March 15, 1994. At that time, the trial was scheduled to commence on April 18, 1994. The docket control order also contained a proviso that the parties could alter or modify its terms, though it did not expressly say how such modifications were to be made.

On January 3, 1994, defendants timely designated their experts, including Carr, and stated that his area of expertise was "the design of the 1988 Hyundai Excel, vehicle performance, deformation analysis and the overall crashworthiness of the subject vehicle." Later, they provided their first supplement to the interrogatories, again naming Carr as an expert witness, stating the same subject matter of his testimony. On April 21, 1994, more than thirty days before the revised date of the trial, ⁴ Hyundai supplemented its interrogatory answer with respect to Carr, adding the following language:

So there is no misunderstanding, his opinions include, but are not limited to, the crashworthy analysis of the subject vehicle, including an evaluation of the restraint system, whether the occupants were restrained at the time of the subject accident, and any issue that may affect the restraint systems involved in the subject Hyundai vehicle. Mr. Carr will also give testimony rebutting the opinions provided by Dr. Sances, Mr. Stilson and the plaintiff's other expert liability witnesses.

Apparently, the parties modified the docket control order by agreeing to depose each others' experts at a date prior to trial. ⁵ Appellees contend that appellant had agreed on March 28, 1994 to reschedule Carr's deposition for May 2, 1994, a date which was less than thirty days before the trial. Appellees stated that they would make Carr's files available for review at the time of the deposition. For unexplained reasons, Carr's deposition was again rescheduled for May 9, 1994.

On the morning of May 9, 1994, plaintiff filed a motion to exclude the testimony of Carr and others as a sanction for discovery abuses because the defendants had failed to timely supplement their discovery responses more than thirty days before trial. Although appellees timely identified their experts and made them available for deposition, they never provided the requested documents or information in response to plaintiff's interrogatories and requests for production. At the pretrial hearing on the motion that same morning, appellant argued that, despite the appellees' objections to the interrogatories and requests for production, they went ahead and attempted to answer the questions, and thereby waived any objections to them. The trial judge denied the motion and refused to exclude the expert's testimony. Appellant repeated her objections to Carr's testimony at trial, and thereby preserved this issue on appeal. See Clark v. Trailways, Inc., 774 S.W.2d 644, 647 (Tex.1989), cert. denied, 493 U.S. 1074, 110 S.Ct. 1122, 107 L.Ed.2d 1028 (1990).

Appellant makes the same argument on appeal which she argued prior to and during trial. She contends that the trial court failed to exclude Carr's testimony as a mandatory sanction under the Texas Rules of Civil Procedure, and that its failure to do so was reversible error.

DISCUSSION

Appellant's motion to the court was premised on the application of two procedural rules, Rule 166b(6) and Rule 215(5), to the parties' discovery dispute. Rule 166b(6)(a) requires a party to supplement his answers to discovery requests if "he knows the response was incorrect or incomplete when made" or he knows that it was correct when made, but is no longer true and complete and therefore is misleading. TEX.R. CIV. P. 166b(6)(a). Rule 166b(6) requires a party to disclose any previously undisclosed expert witness who the party expects to call as a witness by including his "name, address and telephone number ... and the substance of the testimony concerning which the expert witness is expected to testify" no less than thirty days prior to the beginning of trial. TEX.R. CIV. P. 166b(6). Separate and distinct from this rule is Rule 215(...