Gallegos v. Yeargin Western Constructors

725 P.2d 599, 104 N.M. 623
CourtNew Mexico Court of Appeals
DecidedAugust 28, 1986
Docket8746
StatusPublished
Cited by6 cases

This text of 725 P.2d 599 (Gallegos v. Yeargin Western Constructors) is published on Counsel Stack Legal Research, covering New Mexico Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Gallegos v. Yeargin Western Constructors, 725 P.2d 599, 104 N.M. 623 (N.M. Ct. App. 1986).

Opinion

OPINION

BIVINS, Judge.

Defendants appeal from a judgment awarding plaintiff worker’s compensation benefits, claiming abuse of discretion by the trial court in (1) refusing to modify its pretrial order to allow defendants to identify additional witnesses for trial after the deadline for doing so had expired; and (2) refusing to delay the trial to await the arrival of defendants’ unsubpoenaed medical witness. Finding no abuse, we affirm.

This case provides a model for how a worker’s compensation claim should be expedited. See NMSA 1978, § 52-1-35(A) (Repl.Pamp.1985). Cf. Sanchez v. Homestake Mining Co., 102 N.M. 473, 697 P.2d 156 (Ct.App.1985). Plaintiff filed his complaint on December 17, 1984. Trial was held on May 13, 1985, and a decision with complete findings and conclusions covering all issues, including attorney fees, together with judgment were entered on July 23, 1985, approximately seven months after filing of the complaint. It would have been even quicker had not defendants requested, and been granted, a continuance of an earlier trial setting in order to complete discovery.

How was this accomplished? First, within a month of filing the complaint, the trial court scheduled a trial setting for April 18, 1985, later continued at defendants’ request. Second, the trial court then scheduled a pretrial conference for March 29, 1985, and entered, on that same day, a pretrial order which, among other things, narrowed and defined the contested issues, required identification of witnesses and exhibits, established controls in discovery, and fixed time limits to assure no delays. Finally, the trial court held the parties’ feet to the fire in carrying out the pretrial order.

Defendants claim that as a result of the trial court’s unwillingness to relax the time constraints they have been burned. We hold they have only been singed.

1. Refusal to Modify the Pretrial Order

The pretrial order provided that “[a]ll witnesses shall be divulged to opposing counsel in writing no later than April 18, 1985.” Plaintiff listed his witnesses in the pretrial order, but defendants identified no witnesses, indicating only that they may call plaintiff or any of his listed witnesses. On April 18, the deadline for disclosing additional trial witnesses, plaintiff’s counsel received a letter from defense counsel identifying as possible witnesses Drs. Rachelson and Thai, an unnamed doctor in Las Vegas, and “[a] representative of Yeargin Western Constructors whose name is yet to be ascertained.” Plaintiff's attorney immediately responded by letter advising that the general description of the Las Vegas doctor and the employer’s representative did not comply with the pretrial order and that he would be obliged to object at trial to any surprise witnesses. Defense counsel advised by letter dated and received on April 25, that he planned to call, as the employer’s representative, either Dane J. Jay or Bob Higgins. The letter also identified Dr. Lopez as the Las Vegas doctor. In addition, defendants named, for the first time, Steve Scharfstein as representative for the insurance carrier. Without disclosing what each of those witnesses would testify to, the letter simply states that “[t]he above witnesses and their roles in this case should be known by you and/or your client.”

Defendants filed a motion on May 2 to modify the pretrial order to allow them to call the additional witnesses. Following a telephone conference on May 7, the trial court entered its order denying the motion. The order recites the pretrial order, its time constraints for disclosure of witnesses, the fact that one continuance had been granted defendants, and found that plaintiff would be prejudiced should defendants be allowed to call witnesses at trial who had not been disclosed as ordered due to plaintiff’s inability to prepare to meet the testimony of the undisclosed witnesses.

NMSA 1978, Civ.P. Rule 16 (Repl.Pamp. 1980) provides that a pretrial order, when entered, controls the subsequent course of the action, “unless modified at the trial to prevent manifest injustice.” Amendment or modification is discretionary with the trial court. State ex rel. State Highway Department v. Branchau, 90 N.M. 496, 565 P.2d 1013 (1977); Herrera v. Springer Corp., 89 N.M. 45, 546 P.2d 1202 (Ct.App.1976). The appellate issue is whether the trial court abused its discretion. Id.

A number of the cases discussing this issue involve situations where the witness was apparently disclosed for the first time at trial. See, e.g., El Paso Electric Co. v. Pinkerton, 96 N.M. 473, 632 P.2d 350 (1981); Branchau; Wirth v. Commercial Resources, Inc., 96 N.M. 340, 630 P.2d 292 (Ct.App.1981). In those cases, with the exception of Branchau, the appellate courts had little difficulty in upholding the ruling of the trial court. Where disclosure is made after the deadline, but in advance of trial, the results have been more varied.

In Tobeck v. United Nuclear-Homestake Partners, 85 N.M. 431, 512 P.2d 1267 (Ct. App.1973), this court upheld the trial court’s ruling allowing defendant to call an expert identified after the deadline but seventeen days before trial. The court stated that neither the theory of the case nor the issues developed (presumably through the expert) was affected by the modification of the pretrial order.

In Herrera v. Springer Corp., (Hendley, J., concurring in part and dissenting in part), this court affirmed the trial court’s refusal to permit a party to call an expert, identified four or five days before trial but beyond the deadline in the pretrial order, reasoning that the trial court “may have been influenced by the obvious prejudice to WABCO in being presented with new evidence and a new expert in the middle of trial.” Id. 89 N.M. at 49, 546 P.2d at 1206. The court in Herrera distinguished Tobeck on this basis and also the amount of time in which notice of the witness was given before trial. Judge Hendley dissented in Herrera on this issue. See also Martinez v. Rio Rancho Estates, Inc., 93 N.M. 187, 598 P.2d 649 (Ct.App.1979), where the court upheld the trial court’s refusal to permit expert disclosed a few days before trial because of surprise.

In the case before us, after plaintiff’s counsel put defendants on notice that objection would be made to the unidentified witnesses, defendants, for the first time, named two possible alternative witnesses to testify as representatives of the employer and one for the insurance carrier. No attempt was made to reveal the nature of what these witnesses would testify about at trial; only that “their roles in this case should be known by you and/or your client.” That communication occurred on April 25, three weeks before trial.

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Bluebook (online)
725 P.2d 599, 104 N.M. 623, Counsel Stack Legal Research, https://law.counselstack.com/opinion/gallegos-v-yeargin-western-constructors-nmctapp-1986.