Klekar v. Southern Pacific Transportation Co.

MIRABAL, Justice,

concurring.

I concur.

I do not join in the majority’s analysis under point of error one; rather, I would hold that appellants have not preserved for appellate review the issue raised under point of error one.

Appellants assert the trial court erred by allowing Officer M.D. Wyatt to testify at trial, because Wyatt was not designated as a witness by appellees before trial. Appellants, themselves, had listed Officer Wyatt as a potential fact witness during pretrial discovery. However, when appellees sought to call Wyatt as a witness, appellants moved to disqualify him from testifying, and the trial court conducted a hearing outside the presence of the jury. The transcript of that hearing covers 29 pages of the statement of facts. Appellants argued (1) that Wyatt was not qualified to give expert testimony because he lacked the necessary training and experience to qualify him to make an analysis of the evidence; (2) Wyatt did not do his own reconstruction of the accident, nor did he talk to all of the witnesses at the scene; and (3) allowing a police officer to give his opinion before the jury, when he was not qualified as an expert, would be highly prejudicial. Ap-pellees responded that, in order to determine whether Wyatt was qualified as an expert, he needed to give testimony to the judge. Wyatt then testified, outside the presence of the jury, regarding his background, his experience, and his investigation and conclusions regarding the accident. Appellants’ counsels then continued their objections as follows:

(Plaintiffs’ Counsel I): The officer should be disqualified as an expert in this. He admits he would need substantially more information before he could testify as an expert, which he didn’t get.

(Plaintiffs’ Counsel II): 403, Texas Rules of Civil Procedure recognized DeLeon as being valid. The objection is that the value of any opinions he may give is substantially outweighed by the prejudicial effect, and therefore should be excluded. Cannot aid the jury in anything they haven’t heard.

(Plaintiffs’ Counsel I): Lastly, he was not timely named, as an expert.

(Plaintiffs’ Counsel II): That’s right, Your Honor.

(Defense Counsel I): If I can get a word in edgewise, whether we get into the expert issues or not, it’s perfectly permissible for him to testify to the factual circumstances, as to what he observed. I think he should be permitted to testify to the factual issues.

(Defense Counsel I): If the Court listened to some of his answers that he gave— counsel were both stepping on his answers — he started to say he had further to add to what was already presented in his *830 report. And he also testified I believe, he could have checked on the speed of the car if there were skidmarks, which is a fact issue that goes to the question of whether or not brakes were or were not applied.

I think for those purposes — I also think in fact that he has proven himself to be an expert. He should be permitted to testify before the jury, both on the factual basis and expert opinions with regard to the accident.

(Plaintiffs’ Counsel I): We have no objection to his testifying as a factual witness. From the officer's own mouth, truthfully, he has said, before he could render an opinion as an expert, that there was essential data that he would need, hasn’t been given, didn’t know he was going to be an expert.

(Defense Counsel II): Mr. Stemadel and Mrs. Schwenke never identified themselves as witnesses, even though the investigating officer inquired.

The fact that they came up later and claimed they were witnesses has no bearing on what he decided. All of the objections go to the weight, not the admissibility-

The man who was at the scene of the accident ten minutes after the accident and had res gestae conversations with witnesses certainly should be able to give an opinion as well as a man sitting in New Mexico or Chicago as were the Plaintiffs’ two witnesses.

(Plaintiffs’ Counsel I): They were given the statements and the depositions of the other two eye-witnesses. This gentleman wasn’t.

(Defense Counsel II): Which depositions.

(Plaintiffs’ Counsel I): Both witnesses, plus statements taken by the railroad of Mr. Stemadel and Mrs. Schwenke and Mr. Pavelicek.

THE COURT: No reason this officer can’t testify as to the result of his investigation.

(Plaintiffs’ Counsel I): Does that mean he is going to be allowed to answer his expert opinion, is the question.

THE COURT: If he has laid the proper foundation to it, I think it’s in his field. I see no reason why he wouldn’t answer.

(Plaintiffs’ Counsel I): How about the accident report? Is he going to be able to put that accident report with its hearsay conclusions in? We contend—

THE COURT: I think the usual procedure is to excise any statements he might make as to his conclusions, the way we normally do it....

The parties and the Court then continued to discuss the admissibility of the accident report.

In my opinion, the disposition of appellants’ point of error one hinges on whether the one sentence objection (out of many pages of objections dealing with whether Wyatt was an expert), was sufficient to enable the trial court to understand that appellants were raising the complaint they have raised on appeal — that appellees had not listed Wyatt as a potential expert witness. The one sentence objection was:

“Lastly, he was not timely named as an expert.”

Appellants did not expound on this objection. There was no explanation about appellees’ failure to list Wyatt as an expert witness in their answers to interrogatories. Even though appellees also failed to list Wyatt as “a person with knowledge of relevant facts” in their answers to interrogatories, appellants specifically waived any complaint about Wyatt testifying as a fact witness. Appellants did not, thereafter, reurge their objection that appellees had failed to designate Wyatt as an expert — rather, appellants continued to argue that Wyatt was not qualified as an expert.

To preserve error, an objection must state the specific grounds for the desired ruling if those grounds are not apparent from the context of the objection. Tex.R.App.P. 52(a). *831 A specific objection is one that enables the trial court to understand the precise grounds so as to make an informed ruling. McKinney v. National Union Fire Ins. Co., 772 S.W.2d 72, 74 (Tex.1989). In my opinion, appellants’ objection was not sufficient to direct the trial court’s attention to the fact that Wyatt had not been designated as an expert witness in response to a discovery request. Accordingly, I would overrule appellants’ point of error one.