Smart v. Winslow (868 S.W.2d 409, 1993)

REYNOLDS, Chief Judge.

Aggrieved by the instructed verdict rendered in his medical malpractice action against Dr. Richard L. Winslow, Don M. Smart contends with nine points of error that the trial court erred in excluding all the testimony and quashing the depositions of his designated expert witnesses and instructing a verdict for Winslow. Agreeing that the instructed verdict for abuse of discovery was extreme, we will reverse the judgment and remand the cause.

BACKGROUND

Underlying this appeal is a medical negligence action in which Smart, who is both an attorney and a medical doctor of the same school of medicine as Winslow, alleged Win-slow misdiagnosed his vision problem which resulted in untreated glaucoma, blindness and permanent disability. It is undisputed that such an action requires expert medical testimony in order to present the claim to the court. Hart v. Van Zandt, 399 S.W.2d 791, 792 (Tex.1965).

During the course of discovery, on 9 August 1989, Winslow requested that Smart respond to certain interrogatories. The two interrogatories around which the present controversy centers read:

INTERROGATORY NO. 10: Identify (name, address and telephone number) each and every person having knowledge of relevant facts in this ease.

INTERROGATORY NO. 11: As to each expert whom you will or may call at trial or whom you consulted but cannot now positively state will not be called at trial, provide the following information:

a. Identify (name and address) each;

b. State each’s area of expertise;

c. State each’s opinions related to this case; and

d. State the basis of each such opinion.

NOTE: If the work product of any expert for consultation purposes only forms any part of the basis of an opinion of an expert whom you may call as a witness, then you must identify each consulting expert in your answer to this Interrogatory.

The initial response to the interrogatories, made on 15 September 1989 by Smart’s counsel and verified by Smart, provided this answer to interrogatory number 10: “Plaintiff; Defendant; Ronald L. Fellman, M.D. (360-0000); William L. Hutton, M.D. (692-6941); Jacob Wilensky, M.D. ((312) 996-7030). All addresses previously given.” The response to interrogatory number 11 was: “Plaintiff has not yet determined which doctors he intends to call as expert witnesses. As soon as he has made that determination, Interrogatory No. 11 will be answered.”

On 22 February 1991, Smart’s counsel supplemented, without verification, the responses as follows:

SUPPLEMENTAL ANSWERS NO. 10 AND 11:

See attached list marked Exhibit A for persons with knowledge of relevant facts and potential expert witnesses.

Each of the following expert witnesses are medical doctors and have received medical training regarding vision, tests for vision, and the medical standard of care regarding Dr. Winslow’s treatment of Dr. Smart.

The basis of the opinions of these medical doctors, besides Dr. Smart, is that they have examined me and some of them have treated me for my current medical condition, a medical condition for which Dr. Winslow was supposed to have examined and treated me for. These medical doctors may testify regarding the standard of care and any breaches of the standard of care and causation, and future and past medical care.

The list of the potential expert witnesses consisted of the names, addresses and telephone numbers of Don M. Smart, M.D.; William L. Hutton, M.D.; Ronald L. Fellman, M.D.; Jacob T. Wilensky, M.D.; Louis J. Girard, M.D.; Charles R. Moore, M.D.; John M. Haley, M.D.; and Richard Winslow, M.D. Of the doctors listed, the record contains depositions from Dr. Smart, Dr. Winslow, and Dr. Hutton, and reveals that the deposition of Dr. Wilensky was quashed.

By a 25 February 1991 letter, Winslow’s attorney notified Smart that he found the supplementation to be “deficient in that they do not properly respond to interrogatory # 11 by stating their specific opinions in this case.” The letter requested notice of whether Smart would “comply with [the] previous discovery requests,” or whether it would “be necessary ... to file a motion.” No motion to compel more complete answers was filed.

Specifying a 16 July 1991 letter to be “intended as formal supplementation to ... interrogatories,” Smart’s counsel provided Winslow the name, address and telephone number of William H. Boothe, M.D. The letter read, in pertinent part:

He will state his opinion relative to this case including that taking applanation tensions without using fluorescein does not meet the standard of care for Dallas County, Texas and that a competent ophthalmologist should be able to recognize an advanced glaucomatous cup-disc ratio. The basis of such opinion is his training, experience and research that he has performed.

Doctor Boothe was later deposed, and that deposition is in the record before us.

On 8 October 1991, Smart further supplemented his list of designated experts with the names Cal Fercho, M.D., and E. Reed Gaskin, M.D., and their respective addresses. No mention was made regarding the substance of their testimony; however, notice of their respective video depositions upon written questions was presented the same day, along with an attachment of the written questions.

After a series of postponements in established discovery deadlines, the trial court finalized the completion of discovery and trial dates by its 9 September 1991 order. All discovery was to be completed by 19 October 1991; the cause would proceed to trial by jury on 18 November 1991.

Complaining that the depositions of Dr. Fercho, scheduled for October 21, Dr. Gas-kin, scheduled for October 18, and Dr. Wilen-sky, scheduled for October 18, were conflicting and untimely in light of the court’s order, Winslow sought to have them quashed. On 17 October 1991, visiting judge Ben Martinez ordered the quashal of depositions of Dr. Fercho, Dr. Gaskin, and Dr. Wilensky. Smart’s request for reconsideration of the quashals was denied.

The cause proceeded to trial on 19 November 1991. Smart began his case by testifying in his own behalf. He testified to his background and certification in ophthalmology, and began testifying about the condition of glaucoma in general. At this point, Win-slow’s attorney objected that Smart had been designated only as a fact witness and had “not been properly designated as an expert witness.” Counsel further explained that although Smart had been designated as an expert, it was done by “unsworn supplemental answers to interrogatories.” After some discussion, the trial court determined, without a ruling, that verification was not necessary. See Circle Y of Yoakum v. Blevins, 826 S.W.2d 758, 756 (Tex.App.—Texarkana 1992, writ denied); Jones v. Kinder, 807 S.W.2d 868, 872 (Tex.App.-Amarillo 1991, no writ).

Second, counsel objected that since the supplementation to the 1989 interrogatories was not made until 1991, the designation was not made as soon as practicable. The court overruled this objection, and stated the court would “allow him to testify as an expert.” However, the court inquired, “[I]n the supplementation what areas did he designate himself?” to which Winslow’s counsel replied:

MR. BELL: Third objection, defendant objects to any attempt of Dr. Smart to offer testimony for the reason that interrogatories specifically inquired into the specific opinions held and the bases for those, and it’s the position of the defendant that that was not adequately responded to.

After some discussion concerning the supplementation, Winslow’s objection was broadened to encompass all experts designated by Smart. The objection then made was:

MR. BELL: * * * Defendants object to Dr. Smart offering any expert testimony for the reason that there has been no proper response to the interrogatories propounded with respect to expert witnesses.

In response to the objection, Smart’s counsel submitted that the response was “adequate, that the doctors have treated him, and that they will testify concerning that treatment.” The court then determined Smart could “not testify as an expert since there’s been no proper supplementation pursuant to the interrogatories.”

The court suggested that if Smart wished to make a bill of exception, that he do so in summary form without the necessity of questions and answers. That matter being disposed of, Smart’s counsel sought to call doctors Boothe and Hutton. Winslow’s counsel objected to the introduction of their testimony.

The court, momentarily distracted, reviewed the supplemental answer designating Fercho and Gaskin, and stated, “Same problem. Improper supplementation, since they’ve asked for the opinion and the basis of their opinion.” Seeking to clarify the court’s ruling, Smart’s counsel prompted the following:

MR. JEWELL: Just so I can get the ruling on — make a record of the ruling. Your ruling will apply to Dr. Smart, Dr. Hutton, Dr. Fellman, Dr. Wilensky has been withdrawn, Dr. Girard, Dr. Moore, Dr. Haley, Dr. Winslow, Dr. Boothe. And Dr. Boothe — you’ve already ruled out Dr. Fercho and—

THE COURT: Sir, all I’m saying is as each witness you would like to call them, the Court will rule. But the Court finds that by your supplementary response to the interrogatories, you have not designated except the names and address of two people, and you did not designate what their opinion would be, unless there’s further supplementation that has not been shown to the Court.

MR. JEWELL: Then at this time, Your Honor, the plaintiff would ask leave to amend and supplement their answers to interrogatories.

THE COURT: The only way you can do that, sir, is to show good cause.

The court determined there was not good cause to allow supplementation.

Winslow contended that although the first supplementation (22 February 1991) fully apprised him that the doctors would testify regarding the standard of care and any breaches of the standard of care and causation of past and future medical expenses, it was insufficient because it did not specifically state what those opinions would be. However, as Smart pointed out, and Winslow conceded, several of the doctors had been fully and thoroughly deposed.

The court then interposed these comments:

Sir, under the law you have to be specific in your answers to interrogatories and state what the opinions are and give supplementation; otherwise, the Court cannot allow the testimony.

Yet, regarding Dr. Boothe, the court stated that he might be excepted from the ruling because the letter stated it was to be considered as formal supplementation. Still, after a discussion during which the court’s attention was directed to Stiles v. Royal Ins. Co. of America, 798 S.W.2d 591, 596 (Tex.App.-Dallas 1990, writ denied), where it was stated that proper identification of a witness “should be done not merely by a letter to counsel ... but by proper answer to the interrogatory filed ...,” the court sustained the objection as to Dr. Boothe “based on this case.”

Thereupon, the court observed, sua sponte:

Since obviously this is a medical negligence case in which — or alleged medical negligence case in which there is a necessity, do you not agree, of expert testimony? Do you not agree that there’s a necessity of expert testimony? I don’t think at this point in time the plaintiffs have any experts that they can offer.

MR. JEWELL: I must admit you have devastated my ease, Your Honor.

Then, further responding to Winslow’s ensuing motion for instructed verdict, Smart stated,