Opinion
No. 05-05-00888-CV
Opinion Filed April 7, 2006.
On Appeal from the 134th Judicial District Court, Dallas County, Texas, Trial Court Cause No. 03-05976-G.
Affirm.
Before Justices RICHTER, LANG, and MAZZANT.
MEMORANDUM OPINION
This is an appeal of the dismissal with prejudice of a lawsuit filed by appellant Wayne Carlton against appellee James Stanley Stewart. Carlton raises three issues on appeal: (1) his production of the records of Gary Erler, his "treating physician," was sufficient to disclose that Erler would testify regarding causation; (2) the trial court abused its discretion when it refused to allow Erler to testify with respect to causation; and (3) the trial court abused its discretion when it refused to grant his motion for continuance. We affirm the trial court's order of dismissal with prejudice.
BACKGROUND
After he was involved in an automobile accident with Stewart, Carlton filed suit claiming that he had sustained severe bodily injuries as a proximate result of the collision. Pursuant to rule 194 of the Texas Rules of Civil Procedure, Stewart served Carlton with his request for disclosure. In response to Stewart's request for disclosure of persons with knowledge of relevant facts (request number 5), Carlton identified several physicians as "treating physicians." See Tex. R. Civ. P. 194.2 (e). However, he did not list Erler at this time. Carlton responded to Stewart's request for disclosure of testifying experts, the subject matter on which the experts would testify, and a summary of the general substance of the experts' mental impressions and opinions (request number 6) as follows: "None other than treating physicians listed in Response to Request for Disclosure No. #5." See Tex. R. Civ. P. 194.2 (f).
Carlton later provided a supplemental response to Stewart's request for disclosure of claims for economic damage (request number 4), which included a claim for $7970 from Evolution Health Care. In subsequent deposition testimony, Carlton identified Evolution Health Care as Erler's clinic and Erler as a chiropractor who provided treatment for his injuries from a 1995 accident and from the accident underlying this case. In response to Stewart's notice of intention to take deposition by written questions and the attached subpoena duces tecum, Erler, as custodian of medical records for Evolution Health Care, produced copies of medical records concerning Carlton's treatment following both accidents. Carlton eventually provided a second supplemental response to Stewart's request for disclosure. In response to only request number 5 (persons with knowledge of relevant facts), he listed Erler as "treating physician." Nothing more was provided with respect to request number 6 (testifying experts).
Stewart filed a motion in limine objecting to Erler testifying about causation of Carlton's physical condition. At the hearing on the motion, Stewart argued that Carlton had not disclosed Erler as a testifying expert or summarized his opinions as requested. Carlton argued that he had identified Erler as a potential witness by supplementing his response to request number 5 (persons with knowledge of relevant facts) and that Stewart had copies of Erler's records. When the court asked Carlton's counsel if those records stated the cause of the injuries, counsel replied, "I can't even read most of his records, so I don't know." The court sustained Stewart's objection. At this point, Carlton's counsel stated, "I don't have a case then." Carlton made a partial bill of exception by offering into evidence Erler's medical records and medical records affidavit, as well as Carlton's responses to Stewart's request for disclosures.
The next day, Carlton requested a continuance and withdrawal of his announcement of ready in order to update discovery in light of the trial court's refusal to allow Erler's testimony regarding causation. The trial court denied the request for continuance and called the case for trial. When Carlton's counsel stated that he was not ready, the trial court allowed him to supplement his bill of exception with Carlton's deposition and Erler's expected testimony. Counsel told the trial court that he expected Erler to testify that he had been treating Carlton for a preexisting condition when the automobile accident with Stewart caused new injury or at least aggravated the old injury. Stewart likewise supplemented the bill by offering into evidence the complete set of Erler's records regarding Carlton.
The trial court then overruled the withdrawal of Carlton's announcement of ready and again called the case to trial. Carlton's counsel informed the trial court that he could not prove his case without Erler's testimony of causation, especially in light of Carlton's preexisting condition. The court dismissed Carlton's case with prejudice. This appeal ensued.
ISSUES ONE AND TWO: DISCLOSURE
Carlton contends in his first two issues (1) that his production of Erler's records adequately notified Stewart that Erler was a testifying expert regarding causation and (2) that the trial court abused its discretion in ruling that Erler could not testify regarding causation. We disagree.
Here, the parties do not dispute that Erler was not a retained expert. Therefore, pursuant to Stewart's standard request for disclosure, Carlton was required to disclose: (1) Erler's name, address, and telephone number; (2) the subject matter of his testimony; and (3) "the general substance of [Erler's] mental impressions and opinions and [documents reflecting] a brief summary of the basis for them." See Tex. R. Civ. P. 194.2(f). Carlton never disclosed in his section 194.2 (f) response that Erler would testify as an expert or that he would testify about causation (i.e. the "subject matter of his testimony" and "the general substance of [his] mental impressions and opinions"). Neither did he disclose this required information in either of his supplementary responses. Carlton only identified "treating physician" Erler as a person with knowledge of relevant facts. We therefore conclude that Carlton's disclosure responses failed to adequately identify Erler as a testifying expert with respect to causation.
In Daredia v. National Distributors, No. 05-04-00307-C, 2005 WL 977828 (Tex.App.-Dallas, Ap. 2, 2005, pet. denied), this Court recognized that the rules of civil procedure clearly distinguish between persons with knowledge of relevant facts and intended trial witnesses, and we concluded that the two categories could not be interchanged for discovery purposes.
A party who fails to respond to or supplement his response to a discovery request shall not be entitled to offer testimony of a witness having knowledge of a discoverable matter unless the trial court finds good cause sufficient to require admission or determines the other party will not be unfairly surprised or prejudiced. Tex. R. Civ. P. 193.6 (a). When an objection is made to an unidentified witness, the burden to establish good cause or lack of surprise or prejudice is on the party offering the witness. Tex. R. Civ. P. 193.6 (b). The trial court has discretion to determine whether the offering party met this burden. Dolenz v. The State Bar of Texas, 72 S.W.3d 385, 387 (Tex.App.-Dallas 2001, no pet.). Thus, we review a trial court's discovery rulings under an abuse of discretion standard. Avary v. Bank of America, N.A., 72 S.W.3d 779, 787 (Tex.App.-Dallas 2002, pet. denied). Carlton argues only the second exception on appeal.
Carlton contends that his production of Erler's records should substitute for a proper response to Stewart's request for disclosure because, after reviewing the records, Stewart should not have been surprised or unfairly prejudiced by Erler's testimony regarding causation. However, Carlton's counsel admitted to the trial court that he was unable to determine whether these records reflected the cause of Carlton's injuries. The record simply does not reflect that Carlton demonstrated to the trial court that Stewart should not have been surprised or prejudiced by Erler's testimony regarding causation.
We also construe Calton's argument as a contention that Stewart should have anticipated that Carlton would call Erler to establish causation. However, the rules make such anticipation unnecessary. See Barr v. AAA Texas LLC, 167 S.W.3d 32, 37 (Tex.App.-Waco 2005, no pet.). It would have been a simple matter for Carlton to provide a 194.2 (f) disclosure response: (1) identifying Erler as a testifying expert, (2) stating that Erler would provide expert testimony regarding causation, and (3) attaching the medical records to support the opinion.
We cannot agree that the trial court abused its discretion in ruling that Erler could not testify regarding causation. Accordingly, we overrule Carlton's first and second issues.
ISSUE THREE: CONTINUANCE
In his third issue, Carlton contends that the trial court abused its discretion in denying his motion for continuance and his request to withdraw his announcement of ready and in dismissing his suit with prejudice. However, because Carlton provides substantive legal argument, analysis, and cites to authorities with respect to only the motion for continuance, we will address only that portion of his argument. See Tex.R.App.P. 38.1 (h) (requiring appellate briefs to contain clear and concise arguments for the contentions made with appropriate citations to authorities and to the record).
We review the trial court's ruling on a continuance motion under an abuse-of-discretion standard. Joe v. Two Thirty Nine Jt. Venture, 145 S.W.3d 150, 161 (Tex. 2004). Rule 193.6(c) permits a trial court to "grant a continuance or temporarily postpone the trial" to allow the proponent of the evidence to amend or supplement that party's discovery responses and to allow the opposing party time for additional discovery concerning any new information revealed by the amended or supplemental discovery. TEX.R. CIV. P. 193.6(c).
The Supreme Court has identified several nonexclusive factors to be considered when deciding whether a trial court abuses its discretion in denying a pretrial continuance motion premised on a need for additional time to conduct discovery: "the length of time the case has been on file, the materiality and purpose of the discovery sought, and whether the party seeking the continuance has exercised due diligence to obtain the discovery sought." Joe, 145 S.W.3d at 161. These factors are likewise relevant in determining whether a trial court has abused its discretion by denying a continuance under Rule 193.6(c). Barr, 167 S.W.3d at 38.
Here, Carlton's case had been on file for almost two years. The discovery sought is material to his claims for damages. However, Carlton did not even list Erler in response to any disclosure request until approximately one month before trial, which was almost six months after he provided Erler's medical records to Stewart. And, nowhere did Carlton designate Erler as witness regarding causation. Because of Carlton's lack of diligence, we cannot say that the court abused its discretion by denying his request for a continuance. See State v. Wood Oil Distrib., Inc., 751 S.W.2d 863, 865 (Tex. 1988); Finlan v. Dallas Indep. Sch. Dist., 90 S.W.3d 395, 412-13 (Tex.App.-Eastland 2002, pet. denied); Grace v. Duke, 54 S.W.3d 338, 343 (Tex.App.-Austin 2001, pet. denied).
Accordingly, we overrule Carlton's third issue.
CONCLUSION
Having overruled all of Carlton's issues, we affirm the trial court's Order of Dismissal With Prejudice.