Opinion
No. 05-03-01152-CV
Opinion Filed July 12, 2004.
On Appeal from the 134th Judicial District Court, Dallas County, Texas, Trial Court Cause No. 01-01090-G.
Affirm.
Before Justices FITZGERALD, RICHTER and LANG.
MEMORANDUM OPINION
Appellant Bryson appeals from a directed verdict in favor of appellee Reid in a medical malpractice case. Bryson raises four issues claiming the trial court erred when (1) it denied her motion for continuance, (2) it denied her motion to late file [sic] designation of expert, (3) by excluding her expert witness, and (4) by granting a "death penalty" sanction by excluding the expert witness instead of granting a continuance. The facts of this case are well-known to the parties, and we do not recite them in any detail. Because all dispositive issues are clearly settled in the law, we issue this memorandum opinion. Tex.R.App.P. 47.1. We affirm.
DISCUSSION
Motion for Continuance and Motion to Late-File Designation of Expert
The granting or denial of a motion for continuance or a late-filed motion to designate expert witnesses is reviewed under an abuse of discretion standard. Villegas v. Carter, 711 S.W.2d 624, 626 (Tex. 1986) (continuance); See Loffland Bros. Co. v. Downey, 822 S.W.2d 249, 250-51 (Tex. App.-Houston [1st Dist.] 1991, orig. proceeding) (late-filed motion to designate expert witnesses). This case was filed in the trial court on February 5, 2001. The court below entered a scheduling order on August 1, 2001, which was signed by all counsel. Bryson's deadline for designation of expert witnesses was January 7, 2002, and a trial date was set for June 10, 2002. On February 8, 2002, Reid filed his designation of expert witnesses. On September 4, 2001 and January 7, 2002, Reid filed two separate motions to dismiss, due in part to Bryson's failure to provide an expert report and failure to provide the expert's curriculum vitae, which the trial court denied. The case was not reached on the original trial date of June 10, 2002, and it was ultimately reset for trial on June 16, 2003.
Four days before this latter trial setting, Bryson filed a motion for continuance and motion to late file [sic] designation of expert. The trial court heard both motions on the day of trial and denied them. Bryson claims her dilatoriness was due to the fact she never received a signed copy of the scheduling order from the trial court. Bryson's argument is untenable. Her attorney signed the scheduling order, and should have realized the need to file the expert report from, not only the two trial settings, but also when Reid filed his designation of experts over a year before trial. The two motions to dismiss should also have served to provoke Bryson to action. Even if we accept Bryson's claim that she never received the scheduling order, her argument fails because, in the absence of a scheduling order, the designation of experts is due not later than 90 days before the discovery period ends. Tex. R. Civ. P. 195.2. Based upon the totality of the foregoing, we conclude the trial court did not abuse its discretion when it denied the motion for continuance and the motion to late file [sic] designation of expert. We overrule Bryson's first and second issues.
Exclusion of Expert Witness as Death Penalty Sanction
Bryson claims the trial court erroneously excluded her expert witness because the exclusion constituted an inappropriate death penalty sanction. This Court has previously rejected this argument. See Gillie v. Boulas, 65 S.W.3d 219, 225 (Tex. App.-Dallas 2001, pet. denied). In Gillie, we concluded an exclusion of expert testimony for admissibility reasons, as opposed to a sanction for discovery abuse, is for a substantive deficiency and does not constitute a "sanction," death penalty or otherwise. Id. at 225. The exclusion of expert testimony in this case was due to Bryson's failure to satisfy threshold requirements for evidentiary admissibility, not due to discovery abuses. See id.; Tex. R. Civ. P. 193.6 (a party who fails to make a discovery response in a timely manner may not offer the testimony of a witness who was not timely identified unless good cause and lack of unfair surprise or prejudice is shown). Furthermore, the record does not indicate Reid sought any sanctions, or that the trial court imposed any sanctions sua sponte. We overrule Bryson's third and fourth issues.
We affirm the judgment of the trial court.