Temple v. Zimmer U.S.A., Inc., C14-83-735CV
| Decision Date | 13 September 1984 |
| Docket Number | No. C14-83-735CV,C14-83-735CV |
| Citation | 678 S.W.2d 723 |
| Parties | Cynthia TEMPLE, Appellant, v. ZIMMER U.S.A., INC., Et Al., Appellees. (14th Dist.) |
| Court | Texas Court of Appeals |
J. Dahr Jamail, Janet Evans, Jamail, Kolius & Mithoff, Houston, for appellant.
William H. Payne, Roger Townsend, Fulbright & Jaworski, H. Ronald Welsh, Vinson & Elkins, Houston, for appellees.
Before JUNELL, MURPHY and SEARS, JJ.
Cynthia Temple instituted this suit against Zimmer U.S.A., Inc., and Methodist Hospital to recover damages for her personal injuries sustained when an intramedullary rod placed in her thigh bone thirteen years earlier had fractured. The trial court entered a take nothing judgment upon the jury findings that the rod was not defective and that appellant had sustained no damages as a result of its breaking. Moreover, the jury found that appellant had misused the rod by walking on it before her leg had healed. Appellant has perfected her appeal and submits four points of error for our consideration.
In December of 1967, appellant was admitted to Methodist Hospital for treatment of injuries she sustained in a motorcycle accident. Her injuries included a compound fracture of her left femur. Dr. Henry Wilde placed a stainless steel intramedullary rod down the narrow cavity of appellant's thigh bone to hold the bone in place while it healed. This particular rod was manufactured by appellee Zimmer. It was sold to Methodist Hospital and was accompanied by a package insert containing the manufacturer's warning and instructions for use.
In January of 1980, it was discovered that the intramedullary rod, still in appellant's leg, had fractured. The upper portion of the device was removed in surgery at Methodist Hospital. Because the threaded portion of the rod which facilitates removal was removed with the top of the rod, the lower portion could not be taken out. The lower portion of the rod was still in appellant's leg at the time of trial.
In her first point of error appellant contends the trial court erred in excluding the testimony of Dr. Donald Baxter that the rod was defective because it was proper rebuttal testimony and such action probably caused the rendition of an improper judgment.
Appellee Zimmer, during pre-trial discovery, had directed interrogatories to appellant requesting the identity of any experts she expected to call at trial. Appellant answered that the expert witnesses had not been determined at the time of the interrogatories. Appellant went to trial without having notified appellee of her intention to call Dr. Baxter as her expert witness. Rule 168 of the Texas Rules of Civil Procedure, provides in part as follows:
7. DUTY TO SUPPLEMENT
a)(3) if the party expects to call an expert witness whose name and the subject matter of such witness' testimony has not been previously disclosed in response to an appropriate interrogatory, such answer must be amended to include the name, address, and telephone number of the witness and the substance of the testimony concerning which the witness is expected to testify, as soon as is practical, but in no event less than fourteen (14) days prior to the beginning of trial except on leave of court. If such amendment is not timely made, the testimony of the witness shall not be admitted in evidence unless the trial court finds that good cause sufficient to require its admission exists; ....
We find that it was within the sound discretion of the trial court to exclude the testimony of Dr. Baxter where the appellant failed to comply with discovery rule 168 Tex.R.Civ.P. The trial court permitted Dr. Baxter to testify, subject to the qualification that his testimony be limited to a rebuttal. Appellant agreed to this restriction. It is our opinion, after a careful reading of the record, that the excluded testimony of Dr. Baxter went beyond the scope of proper rebuttal testimony and was properly excluded by the trial court. Appellant's first point of error is overruled.
Appellant argues in her second point that the trial court erred in refusing to submit the following plaintiff's requested special issues:
Do you find from a preponderance of the evidence that at the time Zimmer sold the rod in question, adequate instructions for its safe use were not provided?
Answer:...
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