Harbison v. Service Lloyds Insurance Co.

808 S.W.2d 690, 1991 WL 66464
CourtCourt of Appeals of Texas
DecidedApril 25, 1991
DocketNo. 13-90-262-CV
StatusPublished
Cited by1 cases

This text of 808 S.W.2d 690 (Harbison v. Service Lloyds Insurance Co.) 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
Harbison v. Service Lloyds Insurance Co., 808 S.W.2d 690, 1991 WL 66464 (Tex. Ct. App. 1991).

Opinion

SUBSTITUTED OPINION ON MOTION FOR REHEARING

NYE, Chief Justice.

This is a case involving the application of Texas Rule of Civil Procedure 166b(6)(b). Gary Harbison appeals the trial court’s admission of the expert testimony of Dr. Jose Kuri for appellee Service Lloyds Insurance Company (Service Lloyds). Harbison’s sole point of error asserts that the trial court erred in admitting Dr. Kuri’s testimony, over his timely objection, because Service Lloyds did not timely designate or disclose Dr. Kuri as a possible witness. We reverse and remand for new trial.

On October 20, 1989, Service Lloyds filed suit to set aside the Industrial Accident Board’s workers’ compensation award to Harbison, which was based on Harbison’s on-the-job fall. Service Lloyds claimed that Harbison’s injury or disease manifested itself before the alleged incident made the basis of Harbison’s claim. The parties agreed to accelerate discovery and set trial for March 19, 1990.

Harbison served Service Lloyds with written Interrogatories on January 9, 1990. Interrogatory Number 21 asked the following:

Please state the name and address of each person, including experts, having knowledge of relevant facts relating to the incident which is the basis of this lawsuit, the cause thereof, or the damages resulting therefrom, (emphasis added).

On January 10, 1990, Service Lloyds filed a motion to compel Harbison’s answers to its Interrogatories. On February 8, 1990, the date upon which the answers to Harbison’s Interrogatories should have been filed, Service Lloyds objected to each and every Interrogatory. On February 15, 1990, Harbi-son filed a motion to compel Service Lloyds to answer his Interrogatories.

After the hearing on the motions to compel, the trial court, the Honorable Robert Garza, presiding, issued a letter dated Feb: ruary 16, 1990, which overruled the objection and ordered Service Lloyds to answer specific Interrogatories, including Number 21, by March 2, 1990. Service Lloyds designated Dr. Kuri as an expert witness on February 28, 1990, nineteen days before trial. Dr. Kuri’s expert report was not available for review until a few days before trial.

Harbison raised a timely and specific objection at trial stating that Dr. Kuri’s testimony should not be allowed because he was designated after the thirty-day deadline required by Rule 166b(6)(b). Considering the objection, the trial court, the Honorable Darrell B. Hester, presiding, stated, “I’m stating here that Judge Garza made a reversible error in his ruling ...” however, “I will follow his ruling.” Judge Hester overruled Harbison’s objection.

Dr. Kuri testified, over Harbison’s objection, that in his opinion, Harbison’s injury was not caused by having slipped and fallen while in the course of his employment. After presentation of all the evidence, the trial court entered judgment on the jury’s verdict that Harbison take nothing.

A party has an affirmative duty to identify expert witnesses in response to an appropriate inquiry. Tex.R.Civ.P. 166b(6)(b). This rule requires the responding party to supplement its list of experts “as soon as is practical, but in no event less than thirty days prior to the beginning of trial except on leave of court.” The sanction for failing to comply with this rule is the automatic exclusion of the unidentified witness’ testimony. Alvarado v. Farah Mfg. Co., 34 Tex.Sup.Ct.J. 107, 108-09 (Nov. 21, 1990); Morrow v. H.E.B., Inc., 714 S.W.2d 297, 298 (Tex.1986); Tex.R.[692]*692Civ.P. 215(5). However, should the trial court find that the party offering the testimony had good cause for failing to supplement, it may, in its discretion, admit the testimony. Sharp v. Broadway Nat’l Bank, 784 S.W.2d 669, 671 (Tex.1990); Boothe v. Hausler, 766 S.W.2d 788, 789 (Tex.1989); Tex.R.Civ.P. 215(5).

To determine whether a trial court abused its discretion in determining good cause, the appellate court must examine the record to see whether the trial court acted without reference to any applicable guiding rules and principles. Morrow, 714 S.W.2d at 298; Smithson v. Cessna Aircraft Co., 665 S.W.2d 439, 442 (Tex.1984); Ramos v. Champlin Petroleum Co., 750 S.W.2d 873, 877 (Tex.App.—Corpus Christi 1988, writ denied). A showing of good cause has two steps: (1) the offering party must show that it had good cause for its failure to timely respond to proper discovery requests, and (2) the offering party must show good cause for allowing the testimony. K-Mart Corp. v. Grebe, 787 S.W.2d 122, 126 (Tex.App.—Corpus Christi 1990, writ denied); see Clark v. Trailways, Inc., 774 S.W.2d 644, 646-47 (Tex.1989).

Service Lloyds argues that Rule 166b(6)(b) gives the trial court discretionary “leave” to permit an expert witness within the thirty-day period before trial. Further, it argues that it established good cause for not responding to Harbison’s Interrogatories because it could not select or designate an expert witness because Harbison tendered incomplete Interrogatories answers; therefore, it could not make available to an expert Harbison’s medical records or the names and addresses of Harbison’s previous health care providers and an accounting of the services rendered to Harbison. Service Lloyds also suggests that the accelerated trial date should be a factor when considering good cause to allow a party to provide answers to unanswered Interrogatories within the thirty-day period before trial.1

Applying the first step, we disagree that Service Lloyds was at a disadvantage to designate its expert until after Harbison supplemented his answers to Interrogatories. The record shows a letter to the parties in which Judge Garza determined most of Harbison’s answers and records productions adequate while others required addresses or treatment and service provided or income tax returns for the last three years. The letter was the same which designated the pertinent questions in Harbi-son’s Interrogatories which Service Lloyds previously refused to answer. Harbison argued that the addresses of medical personnel could be obtained from the medical records he originally provided.

Additionally, this was a workers’ compensation case in which expert testimony would be necessary to prove Service Lloyds’ allegations. From the outset, Service Lloyds knew it would need a medical expert at least to review Harbison’s medical records and, probably, to perform a medical examination. The record does not show any effort by Service Lloyds to retain a physician to pursue those ends until two weeks before trial. There is no reason why a medical examination could not be performed at a date well within the Rules’ discovery deadlines, although an expert’s full assessment of Harbison’s incapacitation might be delayed until after complete medical records were discovered.

Considering all the circumstances, the trial court abused its discretion by allowing Interrogatories answers and the designation of an expert witness so close to trial.

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Related

Service Lloyds Insurance Co. v. Harbison
826 S.W.2d 930 (Texas Supreme Court, 1991)

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