Bullock v. Aluminum Co. of America

843 S.W.2d 640, 1992 WL 259526
CourtCourt of Appeals of Texas
DecidedOctober 8, 1992
DocketNo. 13-91-386-CV
StatusPublished

This text of 843 S.W.2d 640 (Bullock v. Aluminum Co. of America) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Bullock v. Aluminum Co. of America, 843 S.W.2d 640, 1992 WL 259526 (Tex. Ct. App. 1992).

Opinion

OPINION

KENNEDY, Justice.

Winnie Bullock, Gwendolyn Bullock, Tamra Bullock Flores, and Deborah Bullock Moreland (the Bullocks) appeal from a take-nothing judgment in their suit against the Aluminum Company of America (Alcoa) for gross negligence in the wrongful death of John Bullock.1 The Bullocks contend by [641]*641six points of error that the trial court erred in allowing Alcoa to use the deposition testimony of two witnesses whom Alcoa had not designated in response to discovery requests as experts or as persons with knowledge of relevant facts. We reverse and remand.

John Bullock died when the forklift that he was driving for Alcoa overturned onto him. The crux of the dispute in this suit was whether Alcoa had provided adequate safety devices and training to its forklift drivers.

At trial, the Bullocks called Lila Laux, a human factors psychologist, to testify about the inadequacy of Alcoa’s warnings to and training of its forklift drivers. She also opined about Alcoa’s safety decision-making process based on her review of various materials, including depositions of Alcoa employees and experts.

As part of its case, Alcoa called Frank Entwisle and Alvin Kirby by deposition. The Bullocks objected and charged that, because Alcoa had not designated Entwisle or Kirby in discovery responses either as persons with knowledge of relevant facts or as experts, Alcoa could not call them to testify. See Tex.R.Civ.P. 215(5). Alcoa admitted that it had not designated Entwisle or Kirby, but contended that it had good cause under Rule 215(5) sufficient to overcome that nondesignation. The trial court agreed, finding good cause for Alcoa’s failure to designate because the Bullocks designated Entwisle and Kirby both as persons with knowledge and as experts.

When reviewing a trial court’s decision to allow an undesignated witness to testify, we apply an abuse of discretion standard. Morrow v. H.E.B., Inc., 714 S.W.2d 297, 298 (Tex.1986). We find an abuse of discretion if the court acted without reference to any guiding rules and principles. Id.

The court properly noted that parties cannot generally call as a witness a person whom they did not designate in discovery as an expert or as a person with knowledge. Tex.R.Civ.P. 215(5). The court also properly noted that a court can allow a party to call a non-designated witness if the court finds good cause to do so. Tex. R.Civ.P. 215(5). We next examine whether the court abused its discretion in interpreting these precepts.

Alcoa did not directly or indirectly properly designate Entwisle or Kirby. Alcoa admits it did not directly designate either man, but notes that the Bullocks did. Alcoa cannot latch onto the coattails of the Bullocks’ designation. This court has held that a party does not properly designate a witness with a discovery response in which it purports to designate as its own all persons designated by other parties as experts or persons with knowledge. American Cyanamid Co. v. Frankson, 732 S.W.2d 648 (Tex.App.—Corpus Christi 1987, writ ref’d n.r.e.). This decision does not conflict with rulings by other courts that parties can rely on the discovery responses of other parties. See Ticor Title Ins. Co. v. Lacy, 803 S.W.2d 265 (Tex.1991); see also Smith v. Christley, 755 S.W.2d 525 (Tex.App.—Houston [14th Dist.] 1988, writ denied). Instead, the holdings of Ticor and Smith coexist with American Cyanamid and support our action here. Neither the plaintiff in Ticor nor the plaintiff in Smith designated an expert in responses to discovery propounded by a defendant who later settled, but each plaintiff attempted to call an expert at trial. Ticor, 803 S.W.2d at 265; Smith, 755 S.W.2d at 529. In each case, the courts held that a non-settling defendant was entitled to rely on the plaintiff’s nondesignation of experts in response to the settled defendant’s interrogatories. Ticor, 803 S.W.2d at 266; Smith, 755 S.W.2d at 530. The courts in both cases held that a non-settling defendant could use the plaintiff’s failure to designate defensively to prevent the calling of witnesses (as the Bullocks attempted to do). Ticor, 803 S.W.2d at 265; Smith, 755 S.W.2d at 529. These cases do not indicate that a non-designating party may use the responses of other parties to supplement its own responses. See Thompson v. Kawasaki Motors Corp., U.S.A., 824 S.W.2d 212, 217 [642]*642(Tex.App.—Dallas 1991, writ filed). Alcoa could not properly rely on the Bullocks’ designation of experts to serve as designation by Alcoa.

Because Alcoa did not designate Entwi-sle or Kirby, the only way Alcoa could call them was to fit its request within the narrow good cause standard. The supreme court illustrated the narrowness of the exception by rejecting a finding of good cause where a party tried to call an expert whom it had designated four days late (26 days before trial) and whom both parties deposed within a week of trial. Sharp v. Broadway Nat’l Bank, 784 S.W.2d 669 (Tex.1990). The court held that oral identification of the witness and the absence of surprise by the opponent at the witness or his testimony were not sufficient to overcome the lack of timely, written designation of the witness. Id., at 671. The court wrote:

A party is entitled to prepare for trial assured that a witness will not be called because opposing counsel has not identified him or her in response to a proper interrogatory. Thus, even the fact that a witness has been fully deposed, and only his or her deposition testimony will be offered at trial, is not enough to show good cause for admitting the evidence when the witness was not identified in response to discovery.

Id. The supreme court this year reiterated the continuing vitality of these words and further held that good cause did not exist even if the excluded evidence was uniquely important. Alvarado v. Farah Mfg. Co., 830 S.W.2d 911, 915 (Tex.1992). The decision of the trial court here is not in line with this case law.

One of the goals and guiding principles of Rule 215(5) is avoidance of trials by ambush. Gee v. Liberty Mut. Fire Ins. Co., 765 S.W.2d 394, 396 (Tex.1989). The fact that the Bullocks designated Kirby and Entwisle does not mean that the Bullocks should expect that a party that did not designate the witnesses will call them. The tactical surprise to the Bullocks of Alcoa calling undesignated witnesses is great because the Bullocks approached trial knowing that Alcoa knew about Kirby and Entwisle, knew other parties had designated them, and knew their testimony from the depositions, but chose not to designate them. The fact that the Bullocks designated Entwisle and Kirby is not good cause to allow the nondesignating Alcoa to call them.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Sharp v. Broadway National Bank
784 S.W.2d 669 (Texas Supreme Court, 1990)
Ticor Title Insurance Co. v. Lacy
803 S.W.2d 265 (Texas Supreme Court, 1991)
American Cyanamid Co. v. Frankson
732 S.W.2d 648 (Court of Appeals of Texas, 1987)
Morrow v. H.E.B., Inc.
714 S.W.2d 297 (Texas Supreme Court, 1986)
Alvarado v. Farah Manufacturing Co.
830 S.W.2d 911 (Texas Supreme Court, 1992)
Gee v. Liberty Mutual Fire Insurance Co.
765 S.W.2d 394 (Texas Supreme Court, 1989)
Smith v. Christley
755 S.W.2d 525 (Court of Appeals of Texas, 1988)
Thompson v. Kawasaki Motors Corp. U.S.A.
824 S.W.2d 212 (Court of Appeals of Texas, 1991)
Tom L. Scott, Inc. v. McIlhany
798 S.W.2d 556 (Texas Supreme Court, 1990)
AmSav Group, Inc. v. AMERICAN SAV. AND LOAN ASS'N OF BRAZORIA CTY.
796 S.W.2d 482 (Court of Appeals of Texas, 1990)
Wendell v. Central Power and Light Co.
677 S.W.2d 610 (Court of Appeals of Texas, 1984)
Moore v. Standard Fire Insurance Company
461 S.W.2d 213 (Court of Appeals of Texas, 1970)

Cite This Page — Counsel Stack

Bluebook (online)
843 S.W.2d 640, 1992 WL 259526, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bullock-v-aluminum-co-of-america-texapp-1992.