robert-e-mccluskey-jr-individually-as-beneficiary-as-heir-and-as ( 2004 )

Affirmed and Memorandum Opinion filed October 19, 2004

Affirmed and Memorandum Opinion filed October 19, 2004.

In The

Fourteenth Court of Appeals

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NO. 14-03-01087-CV

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ROBERT E. McCLUSKEY, JR., Individually, as Beneficiary, as Heir and as Independent Executor of the ESTATE OF ROBERT E. McCLUSKEY, SR., Deceased; ROSE LEE McCLUSKEY, Individually, and as Heir of the Estate of Robert E. McCluskey, Sr., Deceased; GARY STEVEN McCLUSKEY, Individually, as Beneficiary, and as Heir of the Estate of Robert McCluskey, Sr., Deceased; and KAREN MAE MARTIN, Individually, as Beneficiary, and as Heir of the Estate of Robert E. McCluskey, Sr., Deceased, Appellants

V.

RANDALL=S FOOD MARKETS, INC.; RANDALL=S PHARMACY #57, in its Assumed or Common Name; and ELIZABETH BARNETTE

 PRICHARD (PLOCH), R.Ph., Individually and in Her Assumed or

Common Name, Appellees

On Appeal from the Probate Court Number One

Harris County, Texas

Trial Court Cause No. 309036-401

M E M O R A N D U M   O P I N I O N

In this wrongful death suit, the McCluskey family appeals from a take-nothing judgment in favor of appellees.  In two points of error, appellants argue the trial court erred in: (1) denying their challenges for cause against five venire members; and (2) excluding the deposition testimony of one of appellees= expert witnesses.  We affirm.

Robert McCluskey, Sr. suffered from Chronic Obstructive Pulmonary Disease.  Dr. Cynthia Sloan, who had no knowledge of McCluskey=s pulmonary disease, prescribed Inderal, generically known as Propranolol, for an unrelated problem.  McCluskey had the prescription filled at a Randall=s Food Market pharmacy.  McCluskey died a few hours later of cardiac arrest after allegedly taking the medication.  Appellants contend McCluskey=s death was directly attributable to the medication.

Appellants originally sued Dr. Sloan, Randall=s Food Market, Randall=s pharmacy, and Randall=s pharmacist, Elizabeth Ploch.  However, appellant=s subsequently non-suited Dr. Sloan.  Because there is some evidence that Randall=s, unlike Dr. Sloan, was aware of McCluskey=s pulmonary disease, appellants asserted at trial that Randall=s and its pharmacist were negligent in filling the prescription Propranolol.  Randall=s and Ms. Ploch subsequently filed third-party claims against Dr. Sloan but these claims were later dismissed on summary judgment.  Thus, the cause went to trial only on appellants= claims against Randall=s and Ms. Ploch.  The jury found no negligence on the part of Randall=s, its pharmacy, or its pharmacist.

Challenges for Cause

In their first point of error, appellants claim the trial court erred in denying their challenges for cause against five venire members.  Specifically, they claim that Jurors 8, 14, 15, 21, and 36 were prejudiced as a matter of law and that the trial court=s attempts to rehabilitate these jurors were unavailing.  Appellants further argue that once a venire person shows prejudice, that person may not be rehabilitated.  Appellees contend that appellants failed to properly preserve error by not exercising their challenges for cause before exercising their peremptory strikes according to the requirements of Hallett v. Houston Northwest Medical Center, 689 S.W.2d 888, 889 (Tex. 1985).

The record reflects that during voir dire, appellants= attorney questioned the venire members about prejudices they might have in the case. The examination included questions about non-economic damages, the sufficiency of cumulative evidence, and the absence of Dr. Sloan as a party to the lawsuit.  At the end of voir dire, the court asked both parties to submit their challenges for cause.  Appellants requested the trial judge to eliminate eighteen panel members for cause.  The trial court summarily granted several challenges, questioned several venire persons at greater length, and eventually struck thirteen of the eighteen members challenged by appellants.  Thus, five of the eighteen panel members sought to be excluded for cause by appellants continued on the panel. Thereafter, at the close of voir dire, while appellants were turning in their peremptory strikes, they objected to the court=s refusal to strike these five venire members.  The trial court overruled the objection.

In Hallett, the Texas Supreme Court established the steps necessary to preserve error when a trial court erroneously refuses to strike a juror for cause.  689 S.W.2d at 889B890.  Before exercising its peremptory challenges, the complaining party must advise the trial court: A(1) that she would exhaust her peremptory challenges; and, (2) that after exercising her peremptory challenges, specific objectionable jurors would remain on the jury list.@  Id.  Without providing this detailed objection, the complaining party waives any error.  Id.  Furthermore, the supreme court specifically cautioned that Athe complaining party waives any error by not timely bringing such error to the attention of the trial court prior to making his peremptory challenges.@  Id. (emphasis added); see also Operation Rescue‑National v. Planned Parenthood of Houston, 937 S.W.2d 60, 69 (Tex. App.CHouston [14th Dist.] 1996), aff'd as modified on other grounds, 975 S.W.2d 546 (Tex. 1998); Brown v. Pittsburgh Corning Corp., 909 S.W.2d 101, 102 (Tex. App.CHouston [14th Dist.] 1995, writ denied).  Therefore, the complaining party must make the detailed Hallett objection before exercising its peremptory challenges.  Operation Rescue‑National, 937 S.W.2d at 69; Brown, 909 S.W.2d at 102; Beavers v. Northrop Worldwide Aircraft Servs., Inc., 821 S.W.2d 669, 673 (Tex. App.CAmarillo 1991, writ denied).

To prevail on appeal, the record must clearly demonstrate the objection was made before the party exercised its peremptory strikes.  See Tex. R. App. P. 33.1 (appellant must present a record sufficient to show a timely objection).  If the record does not clearly reflect that the Hallett objection was made before the peremptory strikes were delivered to the court, any complaint regarding the failure to strike for cause is waived.  Brown, 909 S.W.2d at 104 (holding where the timing of the objection for cause is unclear, no error is preserved); see also Born v. Virginia City Dance Hall and Saloon, 857 S.W.2d 951, 955 (Tex. App.CHouston [14th Dist.] 1993, writ denied) (explaining that appellants preserved nothing for review where they failed to present a record showing when they objected to the court=s denial to strike for cause).  Therefore, our focus on review is the timing of appellants= Hallett objection versus the exercise of appellants= peremptory strikes.  Brown, 909 S.W.2d at 103.

Here, the record reflects the following dialogue:

[The parties finished questioning the jury panel and the court excused the jurors for a short recess.]

THE COURT: Go ahead.

MR. EDWARDS [Counsel for Appellants]: Come now Plaintiffs in this case and prior to the turning in of the jury strikes by the Plaintiffs and prior to B actually we are going to turn ours in B after we have turned in our strikes and before the Defendant has turned in their strikes, or at least before I have seen their strikes, we object to the rulings of the Court with respect to Juror=s Numbers 8, 15, 21, 14, and 36, because each of those perspective jurors respectively testified on direct voir dire examination that each had a prejudgment or prejudice against a portion of the Plaintiff=s case and it was error ... not to strike them ....@(emphasis added).

[Mr. Edwards continued making the objection, which the court subsequently overruled.]

Appellants timely moved to strike numerous jurors for cause.  However, our focus on appeal is whether appellants= Hallett objection was timely in relation to the exercise of their peremptory challenges.  Brown, 909 S.W.2d at 103.  Appellants argue their objection was made Aprior to the turning in of the jury strikes.@  They also contend the trial court Aclearly understood@ they were turning in their peremptory strikes for the purpose of moving the trial court to reconsider its ruling and that the strikes were Asubject to@ the family=s request that the court reconsider their challenges for cause. The record does not support appellants= contentions.  To the contrary, it seems to indicate appellants made their Hallett objection after they had turned in their peremptory strikes.^[1]  At best, the record is unclear as to the exact timing of appellants= objection in relation to the delivery of their peremptory strikes.  Where the record is not clear, it would be inappropriate for this court to draw inferences as to the exact timing of the objection and the peremptory strikes.  Brown, 909 S.W.2d at 104.  Furthermore, it was appellants= responsibility to present this court with a record that demonstrates their objection was timely.  Tex. R. App. P. 33.1;   Brown, 909 S.W.2d at 104.  The record before this court does not do so.  As such, appellants have presented nothing for review, and their first point of error is overruled.

Exclusion of Expert Testimony

Randall=s designated Dr. Mark Thornton as an expert witness to bolster its third-party claims against Dr. Sloan.  When appellant=s non-suited Dr. Sloan, Randall=s decided it no longer needed Dr. Thornton=s expertise or testimony.  Appellant=s, however, sought to introduce Dr. Thornton=s deposition under the theory that it constituted an admission of a party opponent. The trial court excluded the testimony, and appellants contend in their second point of error that the trial court erred in so ruling.

An admission by a party opponent is a statement offered against a party, made by the party=s agent or servant concerning a matter within the scope of the agency or employment.  Tex. R. Evid. 801(e)(2)(D).  It is an exclusion to the hearsay rule.  Id.; State v. Buckner Const. Co., 704 S.W.2d 837, 846 (Tex. App.CHouston [14th Dist.] 1985, writ ref=d n.r.e.). In order to admit a statement as an admission by a party opponent, the proponent of the statement must first establish the agency relationship existed.  Buckner Const. Co., 704 S.W.2d at 846 (citing Texas Gen. Indem. Co. v. Scott, 253 S.W.2d 651, 655B56 (1952)).

Appellants rely on Yarbrough=s Dirt Pit, Inc. v. Turner, 65 S.W.3d 210 (Tex. App.CBeaumont 2001, no pet.), for the proposition that all testimony of an opposing party=s expert is an admission by a party opponent.  We are unwilling to accept this proposition and are not persuaded by Yarbrough=s rationale.  In that case, the Ninth Court of Appeals held that Aa conclusion of an expert witness hired by an opposing party to speak on the subject matter on behalf of the party opponent is admissible against the party opponent ....@  65 S.W.3d at 214.  The court reasoned that the conclusion of an expert witness is Asimilar to@ an admission by a party opponent because the expert is Aspecifically authorized to speak on behalf of [the party opponent].@  Id. (citing Tex. R. Evid. 801(2)). However, to hold that all statements made by an expert witness are admissions of the party who called the expert is to misconstrue the rules of evidence, the law of agency, and the purpose behind calling expert witnesses. 

Texas Rule of Evidence 801(2) states that, to be an admission, a statement must be made by a party=s agent or servant.  Tex. R. Evid. 801(2). A person is not an agent or servant unless he is subject to another party=s control.  Daily Int'l Sales Corp. v. Eastman Whipstock, Inc., 662 S.W.2d 60, 64 (Tex. App.CHouston [1st Dist.] 1983, no writ) (explaining that even when a person acts for or on behalf of another, if that person is not under the other=s control, he is not an agent); Restatement (Second) of Agency ' 1 cmt. e (1958) (A>Agent= is a word used to describe a person authorized by another to act on his account and under his control.@) (emphasis added).  Therefore, absent proof of control, there is no agency.  Webster v. Lipsey, 787 S.W.2d 631, 635 (Tex. App.CHouston [14th Dist.] 1990, writ denied).

Although an expert witness may be hired by one party to testify on that party=s behalf, rarely will an expert agree to be under the party=s control with respect to his or her testimony.  In fact, the Rules of Evidence require the expert to testify about his or her own expert opinion.  See Tex. R. Evid. 602 (requiring personal knowledge for a witness to be competent to testify); see also Tex. R. Evid. 702 (explaining that a witness must be qualified by special knowledge, skill, or experience to testify as an expert); Tex. R. Evid. 703 (establishing the bases of opinion testimony by experts).  Furthermore, the premise behind calling an expert witness is to give an opinion in the witness= particular field of expertise.  Theoretically, the opinion is to be impartial, i.e., it is to be based on the expert=s special knowledge, skill, or experience.  See Tex. R. Evid. 702.  This specialized opinion cannot be imputed to the party who called the expert to testify. In fact, there may be instances where a party disagrees with the testimony of an expert the party itself called.

The testimony of an expert witness should not, ipso facto, be deemed an admission of the party who originally sought the expert=s opinion. This is not to say, however, that the testimony of an expert witness may never be admissible as the admission of a party opponent.  For example, appellants also rely on Vector Indus., Inc. v. Dupree, 793 S.W.2d 97 (Tex. App.CDallas 1990, no writ), and  Buckner Const. Co. in claiming Dr. Thornton=s testimony is admissible against appellees.  In both cases, however, the witness whose statement was being offered at trial actually was an agent or employee of the party opponent.  In Vector Indus., the court allowed an accountant=s statement about a company=s value to be used against the company.  793 S.W.2d at 103.  The court reasoned that the valuation statement constituted an admission by the company.  Id. However, the accountant was an employee of the company at the time the statement was made.  Id. at 100.  Furthermore, he made the valuation statement, upon request of the company, as a regular part of his employment well before any legal proceedings had transpired.  Similarly, in Buckner Constr. Co., this court allowed the statement of an auditor employed by the State of Texas to be used as an admission by the State. 704 S.W.2d at 846.  After the plaintiff sued the State on a contract claim, the State sent an auditor to review the plaintiff=s financial records.  Id. While examining the records, the auditor made a statement the plaintiff later sought to introduce at trial.  Id.  The trial court allowed the statement despite the State=s objection that the statement was hearsay.  Id. This court reasoned that A[c]learly [the auditor] was acting as an agent of the State at the time he was auditing [plaintiff=s] books@ and, as such, held the auditor=s statement was an admission of a party opponent.  Id.

Here, however, appellants sought to introduce testimony from a witness who had no connection to appellees other than he had been retained as an expert witness to testify at trial about his professional opinions.  Unlike the accountant in Vector Indus. and the auditor in Buckner Constr. Co., Dr. Thornton was not an employee of Randall=s.  Appellants have put forth no evidence that an agency relationship existed, and, as such, Dr. Thornton=s statements cannot be attributed to Randall=s.  See Texas Comm=n on Human Rights v. Kinnear, 986 S.W.2d 828, 833B34 (Tex. App.CBeaumont 1999) (upholding a decision to exclude expert testimony where the expert was not shown to be an agent), rev=d in part on other grounds,  14 S.W.3d 299 (Tex. 2000); Handel v. Long Trusts, 757 S.W.2d 848, 850B51 (Tex. App.CTexarkana 1988, writ ) (refusing to admit testimony as an admission by a party opponent where the record did not show the extent of an agency relationship).

When appellants non-suited their claims against Dr. Sloan, the subject matter over which Dr. Thornton was asked to give his opinion became moot.  Subsequently, Dr. Thornton was not called at trial, and, therefore, the trial court excluded his testimony on hearsay grounds.  The trial court had a legitimate basis for its ruling, and we cannot say the trial judge abused his discretion in excluding the testimony.  See N. Am. Refractory Co. v. Easter, 988 S.W.2d 904, 916 (Tex. App.CCorpus Christi 1999, pet. denied).  Accordingly, appellants= second point of error is overruled.

The judgment of the trial court is affirmed.

/s/      J. Harvey Hudson

Justice

Judgment rendered and Memorandum Opinion filed October 19, 2004.

Panel consists of Chief Justice Hedges and Justices Hudson and Fowler.

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^[1]  The record presented to us reflects appellants= counsel stating, Aprior to B actually we are going to turn ours in B after we have turned in our strikes ... we object to the [court=s refusal to strike for cause].@ It could be inferred from the record that appellants were handing in their list of peremptory strikes while making the required Hallett objection.  In fact, appellants argue in their reply brief that they were turning in their peremptory strikes at the same time as making their Hallett objection.  However, a party exercises its peremptory strikes when it turns in a written list of strikes to the court.  Brown, 909 S.W.2d at 102B04; Lopez v. S. Pac.Transp. Co., 847 S.W.2d 330, 333 (Tex. App.CEl Paso 1993, no writ). Hallett and its progeny clearly dictate that a party must object to the trial court=s refusal to strike for cause before the party exercises its peremptory strikes.  Therefore, appellants should have made their Hallett objection before, not contemporaneously with, turning in their list of peremptory strikes to the court. Furthermore, this is consistent with the rationale of the supreme court=s ruling in Hallett.  Hallett explained that the objection must be made while the court still has the ability to correct any error.  689 S.W.2d at 890.  If a party is allowed to submit its peremptory strikes Asubject to@ or contemporaneously with its objection, as appellants argue, this would deny the opposing party the opportunity to intelligently make its own peremptory strikes.  Because the opposing party does not know which jurors are being struck for cause, it may be forced to use peremptory strikes without knowing who remains on the venire.  This does not provide the court an opportunity to correct any error but, rather, further substantiates objectionable error.