Sanchez v. Waldrup, 39488

• Decision Date: 25 June 1965
• Docket Number: No. 39488,39488
• Citation: 271 Minn. 419,136 N.W.2d 61
• Parties: Alfonso SANCHEZ, Respondent, v. George M. WALDRUP, Appellant.
• Court: Minnesota Supreme Court

Page 61

136 N.W.2d 61

271 Minn. 419

Alfonso SANCHEZ, Respondent, v. George M. WALDRUP, Appellant.

No. 39488.

Supreme Court of Minnesota.

June 25, 1965.

Syllabus by the Court

1. Where it is intended to use an expert witness to rebut or counteract testimony of eyewitnesses to an accident in a field of knowledge as to which a lay person may express an opinion, the name of such expert should be disclosed in answer to an interrogatory requesting the names of witnesses to the accident or facts pertinent to the lawsuit.

2. Rule 26.02, Rules of Civil Procedure, provides that the conclusion of an expert shall not be required except as provided by Rule 35 but does not prevent disclosure of the names of experts who may testify on factual matters.

3. Failure to disclose names of known witnesses does not automatically result in a new trial. Much is left to the sound discretion of the trial judge.

4. Where an expert who was used as a rebuttal witness expresses an opinion contrary to the testimony of witnesses for both plaintiff and defendant, he goes beyond rebuttal and is used to impeach the witnesses called by the party in whose behalf the expert is called.

5. Where the foundation for an opinion of an expert is unreliable, the opinion likewise is unsound, and a verdict based on it cannot stand.

Earl L. Johnson, Minneapolis, for appellant.

Berryman Fisher & Johnson, St. Paul, for respondent.

KNUTSON, Chief Justice.

This is an appeal from an order denying defendant's motion for judgment notwithstanding the verdict or, in the alternative, for a new trial on the issue of liability only.

The case arises out of a collision between a Chevrolet Corvair automobile driven by plaintiff and a Mercury automobile driven by Wesley McNutt, who was in no way responsible for the collision.

Grand Avenue in St. Paul runs east and west. Cretin Avenue runs north and south. Grand Avenue approaches Cretin from the east but does not continue through it, forming a T-intersection. At the intersection, Cretin is protected by a stop sign on Grand Avenue, Cretin being a through street. The posted speed limit on Cretin is 30 miles per hour.

On February 11, 1962, shortly before 10 o'clock in the morning, defendant was driving his car west on Grand Avenue. As he approached Cretin, he attempted to stop in obedience to the stop sign, but his car skidded into the intersection a few feet. At that time plaintiff was driving north on Cretin. He observed defendant's car skidding into the intersection when he was about 25 feet south of the intersection. He then turned to his left into the southbound lane of traffic and, after crossing the intersection, collided head on with McNutt, who was traveling south in his proper lane of traffic. Plaintiff testified that he never saw the McNutt car at all prior to the collision.

Plaintiff's testimony is that he entered Cretin south of St. Clair Avenue, which is parallel with and about six blocks south of Grand. He stopped both at the entry to Cretin and at St. Clair without any difficulty. His own testimony is the best description of what happened after he left St. Clair Avenue. The following is characteristic of his testimony:

'Q. And do you recall, as you left the intersection of St. Clair and Cretin, whether you did accelerate rapidly?

'A. Yes. I accelerated rapidly.

'Q. You normally do that as you start up from a stop at an intersection?

'A. Yes.

'Q. Now, as you drove the distance of approximately six blocks between St. Clair and Cretin Streets, after accelerating from the stop and reaching a driving speed, did you drive at a fairly constant speed that distance of roughly six blocks?

'A. Once I reached the normal traveling speed, yes, I didn't vary. I just went along at the normal speed.

'Q. And you had no occasion to stop or slow down or to accelerate then during that distance?

'A. No.

'Q. And what was the speed that you drove during that distance of five to six blocks?

'A. Again, it has to be an estimate. I know that the street is posted at 30 and the conditions were extremely slippery. Driving previous to this point I was able to establish this, and I would estimate I was traveling 20 to 25 miles down this stretch.'

Defendant and his wife testified that they had come to a stop when the collision took place. They estimated that plaintiff was traveling 35 to 45 miles per hour when he passed in front of their car.

Wesley McNutt, who was called as a witness by plaintiff, testified that he had come to a complete stop before he was struck. He estimated plaintiff's speed at 35 to 40 miles per hour. He said that he did not think plaintiff slowed down at any time before the collision.

Mr. and Mrs. Leander J. Hallgren, who were called by defendant and were completely disinterested witnesses, testified that they were driving north on Cretin on their way to church. They stopped at St. Clair in obedience to a stop sign. While they were not quite through the intersection, a car which turned out to be that of plaintiff passed them on their left. They traveled the approximately six blocks from St. Clair to Grand at about 25 to 30 miles per hour. After passing the Hallgren car, plaintiff gained about one and one-half blocks on them before the collision with McNutt. Hallgren, who is a chemist, estimated that compared to the speed at which he was driving plaintiff would have to drive 35 to 40 miles per hour to gain as much as he did in such a short distance. Mrs. Hallgren fully corroborated her husband. Her testimony is characterized by the following:

'* * * We were going 30 and it (plaintiff's car) was pulling away from us. I don't know too much about speed, but I would say he would have to have been going 40 to pull away from us that fast.'

After plaintiff and defendant had both rested, plaintiff called as a rebuttal witness Professor Adolph O. Lee, an assistant professor of mechanical engineering at the University of Minnesota. Defendant objected to his testimony on the grounds that it was not proper rebuttal and that plaintiff had failed to disclose his name in answer to a pretrial interrogatory requesting the names of all 'witnesses to this accident or the facts pertinent to the above lawsuit.' In an affidavit in support of his post-trial motion for judgment notwithstanding the verdict or for a new trial, defendant contends that prior to the beginning of the trial the judge requested of both counsel the names of any or all of the witnesses who might be called to testify that were not previously disclosed so that both attorneys would have the benefit of this information when interrogating the jury, and the name of Adolph O. Lee was not disclosed at that time. Plaintiff's counsel, in an opposing affidavit, said:

'* * * (Y)our affiant's recollection is that Judge Edward D. Mulally requested of counsel only the names of medical witnesses to be called, * * *.'

The trial court wrote no memorandum, so we have no way of knowing what his recollection of the matter was.

Professor Lee was called about 3 p.m. on Friday, March 6. When defendant objected to his testimony, the court recessed until 9:30 on Monday, March 9. Defendant's counsel was permitted to examine Professor Lee before then. Thereafter the court overruled defendant's objection and permitted the witness to testify. In answer to hypothetical questions and based on certain scientific calculations, Professor Lee was able to reduce plaintiff's speed to 14.3 miles per hour and to have McNutt's Mercury moving in the opposite direction between 5 and 9 miles per hour.

The questions here are whether it was reversible error to permit Professor Lee to testify at all and, if not, whether a decision based on his calculations should be permitted to stand.

1. Defendant contends that it was error to permit Professor Lee to testify because plaintiff did not disclose his name in answer to a pretrial interrogatory. The interrogatory submitted by defendant, which appears in the record, reads:

'Do you know the names of any witnesses to this accident or the facts pertinent to the above lawsuit?'

The interrogatory then called for the names and addresses of such witnesses if they were known.

There is very little authority on the question of whether a party is obligated to disclose the name of an expert witness who may or may not be called. The interrogatory here does not specifically call for the name of expert witnesses. The Federal cases on the subject are not of too much help. In Texas & P. Ry. Co. v. Buckles, 5 Cir., 232 F.2d 257, certiorari denied, 351 U.S. 984, 76 S.Ct. 1052, 100 L.Ed. 1498, the court, while seemingly indicating that if a party knew before trial that he was going to call a medical witness but failed to disclose his name the witness ought not to be permitted to testify, finally held that unde the circumstances of that case it was not error to permit the witness to testify.

In 4 Moore, Federal Practice (2 ed.) § 26.24, p. 1536, we find the following:

'Since an expert witness can be examined before trial in proper cases, the adverse party should have the right to obtain discovery of his name under the provision for discovery as to 'the identity and location of persons having knowledge of relevant facts."

In support of the above statement we find Miller v. United States (D.Del.) 192 F.Supp. 218, 221, where the court said:

'The question then is whether there is a distinction between a factual witness and an expert witness with reference to the requirement of disclosure of the name by interrogatory. * * *

'An expert witness may have, but usually does not have, any personal knowledge of the facts. His name has usually not been given as one having a knowledge of the relevant facts. His testimony is usually based upon a hypothetical question founded upon the testimony. The weight and value of the testimony of the expert witness depends largely upon the qualifications as such expert, and these qualifications may be the subject of intensive...