                      05- ^-QOW^

             IN THE SUPREME COURT OF TEXAS... fD m
                                                                                  OF APP^^S
                                                 ,                        COURT
                                                                                       B34
                                      NO. D^3869                           FEB^I
                                      •      ;                              rffi**
                         WILLFRED MENTIS, PETITIONER

                                            v.




                    MICHAEL JOHN BARNARD, RESPONDENT
                                                 1
                             ARGUED NOVEMBER 30, 1993


                    ON APPLICATION FOR WRIT OF ERROR TO THE
               COURT OF APPEALS FOR THE ^IFTH DISTRICT OF TEXAS

      JUSTICE DOGGETT delivered the opiniort of the Court, in which CHIEF JUSTICE
PHILLIPS, JUSTICE GONZALEZ, JUSTICE HlGHTOWER, JUSTICE HECHT, JUSTICE
Gammage, and Justice Enoch join.                     \
                                                         \
      We consider trial court exclusion of the tekimony of an expert witness on the

grounds that he had not been designated "as soon as practical" under Rule 166b(6)(b) of
the Texas Rules of Civil Procedure.

      While crossing astreet, Thelma>Ientis was struck and killed by an automobile driven
by John Barnard. Although suit was filed shortly after her death, the attorney who tried the
case was not retained until about three months before trial. \n response to discovery, that
attorney designated an accident reconstruction expert as atestifying witness thirty-two days
before trial. After jury selection and opening statements had been completed, Barnard's
attorney was successful in having barred any testimony from this expert because he had not
been identified "as soon as practical." Based upon the remaining evidence it was permitted
      Some courts appear to have read the "assoon aspractical" requirement completely
outof Rule 166b(6)(b) so long as the witness was designated more than thirty days before
trial. Pedraza v. Peters, 826 S.W.2d 741 (Tex. App.-Houston [14th Dist] 1992, no writ);
Mother Frances Hosp. v. Coats, 796 S.W.2d 566 (Tex. App.-Tyler 1990, orig. proceeding).
Other courts have applied a more stringent standard:

       By adding the language "as soon as practical" the Texas Supreme Court has
       clothed the trial court with the discretion to suppress the testimony of an
       expert witness if his identity is tendered less than thirty days before trial
       commences or when the trial court finds the name was not submitted as soon
       as practical.

Builder's Equip. Co. v. Onion, 713 S.W.2d 786, 788 (Tex. App.-San Antonio 1986, orig.
proceeding) (per curiam). See also First Title Co. of Waco v. Garrett, 802 S.W.2d 254 (Tex.
App.-Waco 1990), rev'don other grounds, 36 Tex. Sup. Ct. J. 980 (June 9,1993); Williams
v. Crier, 734 S.W.2d 190 (Tex. App.-Dallas 1987, orig. proceeding [leave denied]).
       The plain wording of Rule 166b(6)(b) indicates that the duty to designate attaches
only when "the party expects to call an expert witness [not] previously disclosed." TEX. R.
CIV. P. 166b(6)(b). This provision does not establish a time after filing or answering a
 lawsuit by which aparty must retain its testifying experts. See Mother Frances, 796 S.W.2d
 at 571. Neither does it require identification immediately upon contacting an expert for
 potential testimony. The rule does require the attorney to communicate the designation "as
 soon as practical" once it is decided that the expert is expected to be called at trial.
        Atrial court's exclusion of an expert who has not been properly designated can be
 overturned only upon a finding of abuse of discretion. Morrow, 714 S.W.2d at 298.
      Given the harmful effect of the trial court's abuse of discretion in excluding expert

testimony, we reverse the court of appeals and remand for a new trial.




                                         Lloyd Doggett
                                         Justice


Opinion Delivered: February 3, 1994
                             0^ q\-poi%o^

                  IN THE SUPREME COURT OF TEXAS**of h??in*

                                                 NO.D-3869                                    ^5^T0H
              W1LLFRED MENTIS, INDIVIDUALLY AND AS NEXT FRIEND
                  OF WILLFRED MENTIS, JR. AND WARREN MENTIS,
                                 MINOR CHILDREN, PETITIONER



                          MICHAEL JOHN BARNARD, RESPONDENT


                          On application for writ of error to the
                    Court of appeals for the fifth district of Texas


        JUSTICE CORNYN, joined by JUSTICE SPECTOR in Part I of this opinion,
dissenting.



         Under Texas Rule of Civil Procedure 166b(6)(b), as written,1 the trial court has the

discretion to exclude expert testimony if the witness was not designated "as soon as
practical." As thiscase demonstrates, the rule can inject counterproductive uncertainty into




    xl would adopt a recent recommendation by the Supreme Court Task Force on Sanctions and amend the
rule to delete the "as soon as practical" language. Instead, as the task force has also recommended, I would
commit the timingof designation of expertwimesses more than thirtydaysbefore trial to the trial court's broad
authority under Tex. R. Civ. P. 166, which governs pretrial orders. See Werner v. Miller, 579S.W2d 455,457
(Tex. 1979). Notwithstanding my preference fora different rule, this court is obligated, like allTexas courts, to
enforce the rulescurrentlyin place. Aswe have saidbefore,our rulesof civil procedure should not be amended
byjudicial decision. See, e.g., Alvamdo v. Famh, 830 S.W2d 911, 917 (Tex. 1992).
pre-trial and trial proceedings.2 Only when the trial court has abused its discretion,
however, and such error has probably caused rendition of an improper judgment, is this or
any other appellate court authorized to disturb the trial court's decision. TEX. R. APP. P.
81(b)(1). Because the trial court's exclusionary order in this instance is neither an abuse
of discretion nor harmful error, I would affirm the judgment of the court of appeals.
                                                        I.


         This wrongful death case arises out of a pedestrian-vehicle accident in Dallas on
February 15,1989, when Thelma Mentis was hit by a vehicle driven by John Barnard. All
witnesses agree that Barnard hit Mentis as she was crossing six lanes ofearly morning rush-
hour traffic in the rain. All witnesses likewise agree that Barnard had a green light at the
time of the accident. The sole matter ofcontention was whether Barnard was negligent in
driving too fast under the circumstances.

         Ms. Mentis' s survivors filed suiton March 22,1989. Thesequence of relevant events

is as follows: 1) Barnard's lawyer filed a jury demand, and the case was set for trial on

September 11, 1989; 2) Barnard's lawyer submitted a discovery request on May 8, 1989,
inquiring about potential expert witnesses;                  3) the Mentises' counsel withdrew on

September 20,1989, and was apparently succeeded by Lawrence W. Hitchery, 4) trial was



    2The court's suggestion that Rule 166b(6)(b) triggers an obligation to fully and accurately respond to a
discovery request for designation of potential expert wimesses only after a partysubjectively "expects" to callan
expert wimess should be proofenough of the rule's infirmity. Supra,       S.W2dat       . As the court'sopinion
intimates, thisrule onlyencourages discovery gamesmanship. If a parry's obligation to disclose a potential expert
arises onlywhen she expects to call an expertwimess, this obligation is irreconcilable with the overall purpose
of our discovery rules: to encourage earlyand complete disclosure of the relevant facts so that the partiesmay
evaluate the case for settlement and avoid ambush at trial. See Alvamdo, 830 S.W2d at 916.
reset to June 25, 1990; 5) three days before trial, David Robert Contreras filed a motion

for continuance and asked to be substituted as plaintiffs' counsel, which the trial court
granted; 6) John Williams Murray, the expert witness whose testimony was excluded, was
designated as a potential witness on January 11, 1991, by attorney R. David Weaver, who
was officially designated as counsel for the Mentises on January 16, 1991; and 7) trial
commenced on February 12,1992.

       Thus, the excluded expert witness was first designated more thantwenty months after
Barnard requested designation of expert witnesses. In response to Barnard's motion to
exclude Murray as a witness, the Mentises' lawyer argued:

       [IJnsofar as what may have occurred prior to the time I became Attorney of
      Record, obviously I cannot speak to that, but I do know that the designation
      was made as soon as practicablefrom the standpoint of our being involved in
       this lawsuit.

853 S.W.2d 119,121. Counsel made no attempt to justify the failure to designate an expert

witness in response to a discovery request served approximately twenty-one months earlier

in the lawsuit. His argument suggests only that he was not at fault, as indeed he may not

have been. The court apparently embraces this argument, and impliesthat the Mentisesare

somehow excused from making earlier disclosure because the delay was not attributable to

the lawyer that represented the Mentises at trial. Supra,      S.W.2d at      (noting that

"the attorney who tried the case was not retained until three months before trial").

      Nothing in our rules of procedure, however, suggests that the timing of discovery

responses is tied to entry of a particular lawyer into the case. If it were, a party might
readily avoid sanctions for discovery abuse by substituting counsel and claiming that the
abuse was not attributable to the new lawyer. Compliance with the rules of civil procedure
is a matter ordinarily entrusted by the client to the attorney, but this court has never before
suggested that a party may avoid discovery sanctions by hiring a new lawyer.

       More fundamentally, the courtoverlooks one basis uponwhich the trialcourt' s order

may be sustained, and confuses which party bears the burden on appeal to show that the
trial court abused its discretion. The court states: "Simply advising the court as to how
long the case had been pending did not byitself establish that designation at an earlierdate

would have been practical." Supra,         S.W.2d at      . To the contrary, an unexplained

delay of twenty months after a request was made does tend to prove that designation of
potential experts was not made as soon as practical.

       Furthermore, on appeal, because the trial court granted Barnard' s motion to exclude

Murray's testimony, the burden is on the Mentises - not Barnard - to demonstrate that the

trial court's exclusionary ruling was made without reference to any guiding rules and

principles. See Morrow v.H££., 714 S.W.2d 297,298 (Tex. 1986)(per curiam). The court's

opinion wrongly suggests otherwise.

       It is common knowledge that trial court dockets are over-crowded, and that litigation

is too expensive, in part, because it takes too long. Given the inherent complexityinvolved

in balancing the rights of the numerous litigants affected by the trial court's unique role in

docket administration, and considering the public's interest in the efficient use of limited

judicial resources, weshould be particularly restrained in our intervention in this area. For
as this caseshows, it is all too easyfor an appellatecourt to second-guess decisions reserved

to the trial court's discretion.

                                             II.


       The court further errs when it concludes that exclusion of Murray's testimony was

harmful error. After the trial court excluded Murray's testimony, Murray testified on bill

ofexception that Barnard's car was travelling between forty-five and sixty miles per hour
at the time of the accident.

       Three eyewitnesses testified to the speed ofBarnard's vehicle before the accident,
the main subject ofcontention attrial. Barnard testified that he was travelling about thirty-
five miles per hour atthe time of the collision; one disinterested witness, Carolyn Hubacek,
testified that Barnard was travelling at a speed oftwenty to twenty-five miles per hour. A
second disinterested eyewitness, Joy Soby, testified that Barnard was travelling
"approximately forty miles-an-hour" at the time his car hit Mentis.
        Given this eyewitness testimony, Murray' stestimony was probably cumulative. And
the court offers no reason to assume that the testimony of what Learned Hand once
referred to as a "hired champion" will carry the day with the jury. See Learned Hand,
Historical and Practical Considerations Regarding Expert Testimony, 15 HARV. L. REV. 40,
53 (1901). Even if exclusion of Murray'stestimony was error, however, the court'sopinion
 does not show that such error probably caused the jury to reach an improper verdict when
 the jury assigned eighty-five percent of the fault for the accident to Mentis, and fifteen
 percent of the fault to Barnard. I would conclude that the trial court did not err by
rendering judgment on the verdict. See TEX. R. APP. P. 81(b)(1).

      For the foregoing reasons, I respectfully dissent.




                                                John Cornyn
                                                Justice



OPINION DELIVERED: February 2,1994
