elisa-gomez-individually-and-as-representative-of-all-the-heirs-of-fidel ( 2005 )

                             NUMBER 13-03-00369-CV

                         COURT OF APPEALS

                     THIRTEENTH DISTRICT OF TEXAS

                         CORPUS CHRISTI B EDINBURG

ELISA GOMEZ, INDIVIDUALLY AND AS

REPRESENTATIVE OF ALL THE HEIRS

OF FIDEL GOMEZ AND OF THE ESTATE

OF FIDEL GOMEZ, ALEXIAS FIDEL GOMEZ,

AND AURELIO ARCHANGEL GOMEZ,                                         Appellants,

                                                             v.

H. YTURRIA LAND & CATTLE COMPANY,                                     Appellee.

    On appeal from the 197th District Court of Willacy County, Texas.

                       MEMORANDUM OPINION

    Before Chief Justice Valdez and Justices Hinojosa and Rodriguez

                         Memorandum Opinion by Justice Hinojosa

This appeal results from a jury verdict in a wrongful death suit.  Appellants, Elisa Gomez, individually and as representative of all the heirs of Fidel Gomez and of the Estate of Fidel Gomez, Alexias Fidel Gomez, and Aurelio Archangel Gomez, filed suit under the Texas Wrongful Death Act^[1] against appellee, H. Yturria Land & Cattle Company, for the death of Fidel Gomez.  A jury returned a verdict against appellants, and the trial court signed a judgment that appellants take nothing against appellee.  In four issues, appellants contend the trial court committed harmful and reversible error by allowing appellee to amend its designation of experts and by admitting the death certificate and pathology report into evidence.  We affirm.

Because the issues of law presented by this case are well settled and the parties are familiar with the facts, we will not recite the law and facts in this opinion except as necessary to advise the parties of our decision and the basic reasons for it.  See Tex. R. App. P. 47.4.

A.  Standard of Review

It is well settled that we review a trial court's decisions on the admission or exclusion of evidence only to determine if the trial court abused its discretion by acting without regard for any guiding rules or principles.  Exxon Pipeline Co. v. Zwahr, 88 S.W.3d 623, 629 (Tex. 2002); Gammill v. Jack Williams Chevrolet, 972 S.W.2d 713, 718-19 (Tex. 1998); Matagorda County Hosp. Dist. v. Burwell, 94 S.W.3d 75, 81-82 (Tex. App.BCorpus Christi 2002, pet. filed).  A challenge to a trial court=s evidentiary rulings will be successful only if, after a review of the entire record, we determine that the error was harmful in that the judgment turns on the particular evidence excluded or admitted.  City of Brownsville v. Alvarado, 897 S.W.2d 750, 753-54 (Tex. 1995).  We will not reverse a trial court=s judgment for erroneous rulings on admissibility of evidence when the evidence in question is cumulative and not controlling on a material issue dispositive to the case.  Tex. Dep=t of Transp. v. Able, 35 S.W.3d 608, 617 (Tex. 1999) (citing Gee v. Liberty Mut. Fire Ins. Co., 765 S.W.2d 394, 396 (Tex. 1989)).

B.  Death Certificate

In their third issue, appellants contend the trial court erred by admitting into evidence the death certificate of Fidel Gomez.

The Texas Health and Safety Code provides that A[a] copy of a birth, death, or fetal death record registered under this title that is certified by the state registrar is prima facie evidence of the facts stated in the record.@  Tex. Health & Safety Code Ann. ' 191.052 (Vernon 2001).  Applying section 191.052, Texas courts have specified that a recitation in a death certificate regarding the cause of death constitutes prima facie evidence that is subject to rebuttal.^[2]  See Stroburg v. Ins. Co. of N. Am., 464 S.W.2d 827, 829 (Tex. 1971) (noting that recitation in death certificate as to cause of death constituted prima facie evidence that condition stated contributed to insured=s death); Hinojosa v. Columbia/St. Davids Healthcare Sys. L.P., 106 S.W.3d 380, 387 (Tex. App.BAustin 2003, no pet.) (finding that statement in death certificate that infant survived for twenty minutes after birth constituted prima facie evidence to defeat summary judgment); Continental Cas. Co. v. Fountain, 257 S.W.2d 338, 343 (Tex. Civ. App.BDallas 1953, writ ref=d) (finding death certificate was certified by state registrar and was, therefore, prima facie evidence that decedent died of cancer). 

The record shows that Fidel Gomez=s death certificate was certified by the state registrar, thereby meeting the requirements of section 191.052 of the Texas Health and Safety Code.  We hold that Fidel Gomez=s death certificate was properly admitted into evidence as prima facie evidence of the cause of death stated therein.  Appellants= third issue is overruled. 

C.  Pathology Report

In their second issue, appellants contend the trial court erred in admitting the pathology report into evidence. 

The pathology report contains essentially the same findings stated in the death certificate.  The record shows that appellants= expert read and relied upon the pathology report and death certificate in formulating his opinion.  The contents of both documents were properly disclosed on cross-examination without objection or request for a limiting instruction.  See Tex. R. Evid. 705(a), (d); see also Kerr‑McGee Corp. v. Helton, 133 S.W.3d 245, 252 (Tex. 2004).

After reviewing the record, we conclude that the information contained in the pathology report is cumulative of other evidence properly admitted.  See Tex. Dep=t of Transp., 35 S.W.3d at 617.  Therefore, any possible error by the trial court in admitting the report is harmless. Appellants= second issue is overruled.

D.  Supplementation of Discovery

In their fourth issue, appellants contend the trial court erred in allowing appellee to supplement its discovery responses so that it could designate DeWitt Davenport and Justice of the Peace Oscar de la Fuente as expert witnesses. 

If a party fails to timely supplement a discovery response, see Tex. R. Civ. P. 193.5, the testimony of the witness is automatically excluded unless the court finds that (1) there was good cause, or (2) it will not unfairly surprise or unfairly prejudice the other parties.  Alvarado v. Farah Mfg. Co., 830 S.W.2d 911, 913-14 (Tex. 1992); Burwell, 94 S.W.3d at 81-82 (citing Morrow v. H.E.B., Inc., 714 S.W.2d 297, 298 (Tex. 1986)); Tex. R. Civ. P. 193.6 (a). 

We have already determined that the admissibility of the death certificate and pathology report were not dependant upon the qualification of Davenport or de la Fuente as experts,^[3] and our review of the record shows that neither witness was called to testify at trial.  Accordingly, we hold that any possible error by the trial court in allowing appellee to supplement its discovery response was harmless. Appellants= fourth issue is overruled.

The judgment of the trial court is affirmed. 

FEDERICO G. HINOJOSA

Justice

Memorandum Opinion delivered and filed this

the 18th day of August, 2005.

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^[1] Tex. Civ. Prac. & Rem. Code Ann. ' 71.001 et seq. (Vernon 1997 & Supp. 2004-05).

^[2] Appellants argue that the death certificate recitation that A[t]he cause of death should be considered to be hypertensive cardiovascular disease@ constitutes an expert opinion; thus, the death certificate should not have been admitted without the author of the opinion having been properly qualified as an expert. However, Texas courts have distinguished between Afacts stated therein@ and opinions only in regards to findings of suicide or accident contained in a death certificate, and are split regarding the proper treatment of such findings.  See generally Tex. Workers= Comp. Comm=n v. Wasau Underwriters Ins., 127 S.W.3d 50, 60 n.9 (Tex. App.BHouston [1st Dist.] 2003, pet. denied) (discussing differing treatment of findings of accident or suicide as facts or opinions and listing cases).

^[3] In their first issue, appellants contend that the death certificate and pathology report constitute written expert opinions and should have been excluded for failing to meet the requirements established in E.I. du Pont de Nemours v. Robinson, 923 S.W.2d 549 (Tex. 1995) and Merrill Dow Pharm. v. Havner, 953 S.W.2d 706 (Tex. 1997), for expert testimony. Because we have upheld the admission of both documents on other grounds, it is unnecessary to address this issue. See Tex. R. App. P. 47.1.