J.G. v. Murray

915 S.W.2d 548, 1995 Tex. App. LEXIS 3285, 1995 WL 755078
CourtCourt of Appeals of Texas
DecidedDecember 21, 1995
Docket13-95-522-CV
StatusPublished
Cited by13 cases

This text of 915 S.W.2d 548 (J.G. v. Murray) 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
J.G. v. Murray, 915 S.W.2d 548, 1995 Tex. App. LEXIS 3285, 1995 WL 755078 (Tex. Ct. App. 1995).

Opinion

OPINION

CHAVEZ, Justice.

We withdraw our original opinion issued on November 29, 1995, and substitute the following as the opinion of the Court. 1

In this original mandamus proceeding, J.G., seeks to compel the Honorable Menton Murray to set aside his order excluding the testimony of Garza’s expert witness, Kit W. Harrison. We conditionally grant the writ of mandamus.

The underlying case stems from allegations by real party in interest, Reagan Cen-teno, that J.G. sexually molested her when she was approximately three or four years old. Centeno’s allegations are based on repressed memories.

On September 2, 1994, the trial court entered a docket control order setting the case for trial on June 12, 1995 and giving J.G. until April 12,1995 to designate experts. On October 3, 1994, J.G. filed his answers to Centeno’s interrogatories in which he stated that he had not yet selected any experts. The trial court twice reset the case for trial to October 10, 1995 and November 27, 1995. On September 8,1995, J.G. filed a letter with the court, designating Harrison as an expert and attaching a copy of Harrison’s curriculum vitae. Thirty-one days before trial, on October 27, 1995, J.G. supplemented his response to Centeno’s interrogatories. J.G.’s supplemental response contained Harrison’s name and address as well as his mental impressions and opinions and the subject matter of his testimony.

On November 27, 1995, Centeno moved to exclude Harrison’s testimony and argued that the untimely designation of Harrison as an expert witness violated the docket control order’s expert designation deadline. By order dated that same day, the trial court struck Harrison as an expert witness. J.G. now brings this mandamus action seeking withdrawal of the order excluding Harrison’s testimony.

Mandamus will issue only to correct a clear abuse of discretion or violation of a duty imposed by law when that abuse cannot be remedied by appeal. Walker v. Packer, 827 S.W.2d 833, 840 (Tex.1992). Where a trial court’s discovery error vitiates or severely limits a party’s ability to present their otherwise viable claim or defense, appeal is not an adequate remedy. Id. at 843.

J.G. argues that precluding expert testimony severely compromises him from presenting his defense. Harrison’s testimony is expected to contradict Centeno’s expert’s testimony regarding the reliability of repressed memories. Thus, we agree that Harrison’s testimony is essential to J.G.’s defense, and consequently appeal is an inadequate remedy in this situation. We will therefore consider the issues presented.

The issue presented by the mandamus is whether the discovery deadline established by the docket control order survived the resetting of the case. Rule 166b(6)(b) provides that a party who expects to call an expert witness but has not yet identified either the identity of the expert or the subject matter of the expert’s testimony must supplement his response “as soon as is practical, but in no event less than thirty (30) days prior to the beginning of trial except on leave of court.” Tex.R.Civ.P. 166b(6)(b). A party’s failure to supplement his response to a request for discovery results in exclusion of the evidence and/or the testimony of an expert witness unless the trial court finds that *550 good cause exists to require admission. Tex. R.Civ.P. 215(5).

J.G. argues that the docket control order deadline did not survive the case’s new trial settings and refers this Court to H.B. Zachry Co. v. Gonzalez, 847 S.W.2d 246 (Tex.1993). In H.B. Zachry, the supreme court discussed the exclusion of witnesses under rule 215(5). H.B. Zachry involved witnesses who were excluded because they were not fully identified in answer to interrogatories more than thirty days before the date of trial as required by rule 166b(6)(b). After that ruling, the trial court reset the trial to a date more than thirty days from the date of the trial from which the witnesses were excluded. The supreme court conditionally granted a writ of mandamus to permit supplementation of answers to interrogatories. Id. at 246. The court held that the automatic exclusion provided by rule 215(5) does not continue beyond the resetting of the trial date where the date set is more than thirty days from the date of the original trial date. Id. For the exclusion to remain beyond a resetting, the trial court’s ruling enforcing the exclusion must be based upon some other sanc-tionable conduct of the party. Id.

Two appellate court mandamus actions have applied the logic of H.B. Zachry to situations involving a set discovery schedule rather than the automatic thirty-day period provided by the procedural rules. See Pope v. Davidson, 849 S.W.2d 916 (Tex.App.—Houston [14th Dist.] 1993, orig. proceeding) (docket control order setting deadline for designation of expert witnesses); Reveo, D.S., Inc. v. Cooper, 873 S.W.2d 391 (Tex. App.—El Paso 1994, orig. proceeding) (pretrial order setting deadline for filing answers to interrogatories requesting identity of expert witnesses). Both Pope and Reveo in volved situations in which a party had failed to comply with either a docket control order or a pre-trial order deadline to designate experts. The parties in these cases had protracted histories of noncompliance with discovery requests and orders. The trial courts in both cases reset the trial to a date more than thirty days from the date of the original trial date. The Pope and Reveo courts held that where the exclusion order was imposed as a sanction for discovery abuse and not based on the automatic exclusion of rule 215(5), the exclusion order survived the resetting of the case. Pope, 849 S.W.2d at 919; Reveo, 873 S.W.2d at 396. Thus, a trial resetting has the effect of nullifying a discovery deadline set by a docket control order. However, if the deadline is imposed for some prior abuse of discovery, then it survives the resetting of the trial.

In the present case, no abuse of discovery occurred. J.G. failed to designate his expert witness by the deadline set by the docket control order. The case was reset for trial to a date more than thirty days from the date of the original trial date. The record indicates that the exclusion order was based on the automatic exclusion of rule 215(5) since J.G. failed to comply with the discovery deadline established by the docket control order. Nevertheless, because of the trial resetting, the docket control order was nullified and the exclusion order did not survive the resetting of the case. Therefore, J.G.’s supplemental answer was timely filed within thirty days prior to the beginning of trial.

Centeno argues that even if J.G.’s supplemental answer was timely filed, it was not a complete and adequate answer to her interrogatory since the answer failed to specify facts the expert relied on in forming his opinions.

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915 S.W.2d 548, 1995 Tex. App. LEXIS 3285, 1995 WL 755078, Counsel Stack Legal Research, https://law.counselstack.com/opinion/jg-v-murray-texapp-1995.