Betty Ann Hardesty, et al., Relators v. Honorable Kenneth A. Douglas, Judge, 13th District Court of Navarro County, Texas, Respondent--Appeal from of County

IN THE

TENTH COURT OF APPEALS

No. 10-95-025-CV

BETTY ANN HARDESTY, ET AL.,

Relators

v.

HONORABLE KENNETH A. DOUGLAS, JUDGE, 13TH

DISTRICT COURT OF NAVARRO COUNTY, TEXAS,

Respondent

Original Proceeding

DISSENTING OPINION

I dissent because I do not believe that a medical expert's controverting affidavit in a motion for summary judgment automatically designates that medical expert as a testifying expert for the trial on the merits, thereby subjecting him to being deposed pursuant to the discovery rules. See Tex. R. Civ. P. 166b(2)(e)(1).

I agree with the authorities cited by the majority, Scott, Inc. v. McIlhaney and Harnischfeger Corp. v. Stone, however, neither of those cases involve summary judgments. // Summary judgments are controlled by Rule 166a, which provides a comprehensive scheme applicable to summary judgments before trial on the merits is held. Gandara v. Novasad, 752 S.W.2d 740, 742 (Tex. App. Corpus Christi 1988, no writ). In Gandara, a medical malpractice case such as the one before us now, the plaintiff filed three controverting affidavits to a motion for summary judgment using experts who had not been previously disclosed in interrogatories requesting disclosure of experts. Id. The defendant argued that the failure to supplement interrogatory information would preclude the use of the three experts at trial and, accordingly, should preclude their use for summary judgment proof. The court allowed the affidavits to be considered for summary judgment after explaining the differences in the rules and purposes for summary judgment and discovery. Id. See also Stoll v. Rothchild, 763 S.W.2d 437, 438(Tex. App. Houston[14th Dist.] 1988, writ denied).

Stoll presents a factual situation opposite to the one before us now. In Stoll, the plaintiffs, believing they had effectively designated their medical experts as testifying experts by using their affidavits to controvert a summary judgment action by the defendants, failed to designate their testifying experts until the day of trial. Id. The court struck the plaintiffs' witnesses, holding that the "[plaintiffs] affidavits merely demonstrate an intent to controvert the motion for summary judgment and not to offer the affiant as a testifying expert." Id. at 441; see also Huddleston v. Maurry, 841 S.W.2d 512, 513(Tex. App. Dallas 1992, writ dism'd w.o.j.) (holding that "Use of an expert's affidavit in a summary judgment context does not constitute expert designation in discovery.")

The ruling in Gandara is most recently cited in State v. Roberts, 882 S.W.2d 512, 513 (Tex. App. Austin 1994, no writ). In Roberts, the plaintiffs filed a motion for summary judgement using affidavits from experts which it had not designated as testifying experts in response to interrogatories. Id. The trial court struck the affidavits because of the plaintiffs' failure to designate the affiants as experts in response to previously filed interrogatories. Id. The appellate court, again distinguishing the rules and purposes of summary judgment proceedings from discovery, held: "Discovery rules and sanctions for failure to designate expert witnesses do not apply to summary judgment proceedings. Rather, summary judgment proceedings are controlled by the comprehensive scheme provided in rule 166a." Id. at 514.

Accordingly, I believe the reliance by the majority on the Scott and Stone decisions is misplaced. In my opinion, the decision in Gandara and the variations of that ruling in Roberts, Huddleston and Stoll, convince me that the rules for summary judgment and those for discovery are different. I believe that the trial court erred by ordering the Relators to produce Dr. Capehart for deposition and in sanctioning Relators' attorneys. Logically, it seems to me that a plaintiff might use an expert for summary judgment affidavit purposes and designate that expert as a consultant only, because the same evidence could be evinced from a testifying expert who is knowledgeable not only on the issue raised in the summary judgment but on other issues involved in the trial on the merits. To require experts giving an affidavit on summary judgment matters to automatically be designated as testifying experts would likely result in duplication of testifying expert witnesses and increased trial expenses in these type cases. I would follow the rule in Gandara and would grant leave to file in this case. //

BOBBY L. CUMMINGS

Justice

Opinion delivered and filed March 8, 1995

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