Werner v. Miller , 22 Tex. Sup. Ct. J. 278 ( 1979 )

BARROW, Justice.

Relator seeks a writ of mandamus requiring respondent, the Honorable George Miller, Judge of the 113th Judicial District Court of Harris County, to vacate interlocutory orders dated March 14, 1978 and July 19, 1978 and to enter an order compelling International Harvester Company, defendant in a products liability suit brought by relator, to answer certain interrogatories. The question presented is whether entry of the July 19, 1978 order which superseded the March 14 order¹ was a clear abuse of discretion by respondent. We hold that it was not and deny the mandamus.

Werner filed suit against International Harvester on October 24, 1977 seeking to recover damages for injuries sustained by his minor daughter when her right leg came in contact with the rotary blade of a lawn tractor allegedly designed, manufactured and sold by defendant. It was alleged that the injuries were caused “by the negligence and defective design and manufacture on the part of the Defendant.” Commencing shortly after the suit was filed, the attorneys for both parties have expended a great deal of personal and judicial time in unsuccessful efforts to require the opposing attorney to reveal the names of his expert witnesses first. Both parties filed two sets of interrogatories and at least three hearings have been held before the trial court without the names of any potential expert witnesses being revealed.

Following the third hearing, Judge Miller entered the order dated July 19, 1978 which provides for, discovery in the following manner:

“[T]he party setting the cause for trial shall designate, thirty (30) days prior to filing written trial setting of this cause, such experts as he may wish to call as testifying witnesses. It shall be the responsibility of the party wishing to set the cause for trial to file with the papers of this cause and serve upon opposing counsel written designation of experts reflecting the name, address and area of expertise of said expert thirty (30) days prior to the filing of written trial setting of this cause by said party. Upon receipt of the designation of the party wishing to set this cause for trial, the other party shall, within two (2) days of the date of service of said designation, designate, in writing, filed among the papers of this cause and served upon opposing counsel, experts who may testify in his behalf in the captioned matter. Experts not designated as provided by this Order shall not be allowed to testify.”

We do not believe that this order setting up a timetable for orderly discovery proceedings was an abuse of discretion. To the contrary, it breaks the procedural logjam and permits discovery. It is fair to both sides and easy to administer. Only testifying experts need be identified and those, disclosed almost simultaneously, at a date certain, well in advance of trial.

It is well settled that Texas discovery rules provide that a party may be required in his answers to interrogatories to identify each person whom he expects to call as an expert witness at the trial and to state the subject matter on which the expert is expected to testify. This broad right to discovery is limited under Texas discovery practice by the “work product” limitation which has been a part of our Texas Rules of Civil Procedure from their inception. This limitation, which differentiates the Texas discovery practice from the Federal practice, protects from disclosure the mental impressions and opinions of experts used solely for consultation and who will not be witnesses in the case. This limitation was expressly recognized by this Court in Allen v. Humphreys, 559 S.W.2d 798 (Tex.1977); Barker v. Dunham, 551 S.W.2d 41 (Tex.1977); and Houdaille Industries, Inc. v. Cunningham, 502 S.W.2d 544 (Tex.1973). Furthermore, it has been held that the names of experts used only as consultants are irrelevant and immaterial. Boyles v. Houston Lighting and Power Company, 464 S.W.2d 359 (Tex.1971).

The principal question before us in this proceeding, which was not involved in Barker or Houdaille, is at what stage of the proceedings must a party “positively aver” that an expert consultant will not be a witness? This declaration obviously should be made in sufficient time to permit the opposing party to discover the reports, factual observations, and opinions of the potential expert witness. On the other hand, the party employing the consultant must be given sufficient time to develop his case so that an intelligent decision can be made regarding the use of the expert. This right was respected by the parties and this Court in Allen v. Humphreys, supra at 804. To hold otherwise would prevent either party from employing a consultant to investigate an accident without the risk of furnishing a potential expert witness or at least a theory of recovery or defense to the opposing party. One party should not be allowed to benefit unduly from the other party’s diligent preparation. This would impede, not aid, discovery.

The decision of when to require a party to aver that the expert will not be a witness is properly left to the discretion of the trial judge who is in the best position to supervise the progress of the case. Judge Miller was exercising that supervision in entering the order of July 19. His order permitted discovery; it did not prohibit discovery as was the case in Barker.

We recognize that full discovery proceedings including the taking and transcribing of depositions might require more than thirty days. Judge Miller undoubtedly had this in mind when he required the designation of experts to be made at least thirty days prior to that party’s written request for a trial setting. Under the Harris County District Court local rules, the request for a trial setting does not grant a specific trial date, but merely places the cause upon the general trial docket. We were informed by counsel for relator at oral argument that the date for the actual trial is now some two years from the time it is placed on the docket. Irrespective of the accuracy of this prediction, the trial court is in the best position to determine if the timetable allows sufficient time for discovery.

This Court is concerned over the great loss of time and judicial resources through “discovery gamesmanship” of both parties in this cause. However, we believe the supervision of the trial docket is properly left to the discretion of the trial judge. This Court does not have the time or the personnel to supervise the trial dockets of this state. It is primarily our function to review causes decided by the fourteen courts of civil appeals and not to stand behind the trial judges as an umpire to immediately second-guess the numerous decisions necessarily made by a trial judge during the course of a trial. Norvell and Sutton, The Original Writ of Mandamus in the Supreme Court of Texas, 1 St. Mary’s L.J. 177, 183, 184 (1969).

It cannot be said from the record before us that Judge Miller clearly abused his discretion in making the order of July 19,1978. We, therefore, deny the writ of mandamus.

Dissenting opinion by McGEE, J., joined by POPE, JOHNSON and CAMPBELL, JJ.

1 . Any error in this or any other superseded interlocutory order would be properly reviewable by appeal.