Overturning a split panel of the Houston [14th] Court of Appeals, the Texas Supreme Court has restored a trial court’s denial of plaintiff’s motion to exclude the testimony of a defense witness under Texas Rule of Civil Procedure 193.6(a). That rule prohibits “a party from offering the testimony of a witness who was not timely identified unless the court finds good cause for the untimely disclosure or the failure to timely disclose would not cause unfair surprise or unfair prejudice.”

Andrew Jackson v. Kristen C. Hitchcock Takara, as Representative and Independent Administratrix of the Estate of Reuben Blair Hitchcock (No. 22-0288; delivered September 1, 2023) arose from an accident in which Hitchcock fell from the bucket of a front-end loader while trimming a tree on Jackson’s property. Though Hitchcock was able to drive home after the fall, he was later that day transported to a hospital, where he died a month later. Hitchcock’s estate sued Jackson, asserting negligence and gross negligence. A jury trial ensued, in which the jury found no negligence on the part of Hitchcock or Jackson. The trial court entered a take-nothing judgment for defendant. Over a dissent by Chief Justice Christopher, the court of appeals reversed, holding that the trial court abused its discretion by admitting at trial defense testimony by Jackson’s neighbor, on whose property Hitchcock had lived for many years. The court determined that the testimony “probably caused the rendition of an improper judgment” and was thus inadmissible under Rule 193.6(a).

SCOTX reversed and rendered for the defendant. Plaintiff argued that defendant did not give notice of the neighbor’s testimony until two weeks before trial, that the notice was insufficient because it did not give the plaintiff contact information, that the notice did not specify the matters upon which the neighbor would testify, and that plaintiff’s counsel’s efforts to reach the neighbor by phone were unsuccessful. Defendant countered that it had timely notified plaintiff of the testimony under an agreement with plaintiff’s counsel to extend the discovery period (which did not appear in the record) and that plaintiff’s counsel knew about the neighbor and “brought her up multiple times during [plaintiff’s] deposition. Based on this evidence, the trial court found no prejudice or surprise and that plaintiff “was certainly aware of [the neighbor] and her involvement with the decedent,” which included his mental and physical capacity for doing the tree work at issue in the case.

The panel majority held that because the purported agreement between plaintiff and defendant to extend the discovery period “was neither written nor filed as part of the court’s record” and that the parts of plaintiff’s deposition in which plaintiff’s counsel referred to the neighbor likewise did not appear in the record, that evidence could not be considered in support of the trial court’s ruling to admit the testimony. Without that evidence, therefore, defendant could not establish unfair surprise or unfair prejudice. The panel majority further concluded that since “Hitchcock’s physical and intellectual capabilities were a central issue at the trial and [the neighbor] was the only disinterested witness who saw Hitchcock regularly enough to testify,” admitting her testimony was probably harmful. As the Court put it, “[t]he majority particularly took issue with [the neighbor’s] testimony that Hitchcock had a ‘policy’ regarding the use of a tractor bucket as a work platform, noting [plaintiff] had no reason to discover such a policy before trial and no evidence in the record supported its existence.”

Agreeing with Chief Justice Christopher’s dissenting opinion, SCOTX rejected the panel majority’s application of Rule 193.6(a). First, Rule 193.6(b)’s requirement that a finding of no unfair surprise or unfair prejudice “must be supported by the record” does not mean, as the panel majority held, that the trial court could not consider “material about the discovery process [that it] had before it as a basis for its decision.” As the Court opined, “[t]he trial court was free to find that [plaintiff] was not unfairly surprised based on [defense] counsel’s undisputed representations to the court that counsel has agreed to extend discovery, that [plaintiff] identified [the neighbor] multiple times during [plaintiff’s] deposition, and that [plaintiff] went to [the neighbor’s] home on the day the parties inspected [defendant’s] property.” In other words, Rule 193.6(b) does not require “specific evidence in the record when it is otherwise substantiated by counsel’s uncontested representations to the trial court as to the state of discovery in the case.”  Even so, the Court went on, defense counsel made those representations in open court without objection, which satisfies Rule 193.6(b) in any event.

Second, the panel majority mistakenly concluded that the admission of the neighbor’s testimony was harmful error. To make this finding, the panel would have to have found that plaintiff “demonstrate[d] that the judgment turn[ed] on the particular evidence omitted,” meaning that the evidence “control[led] a material and dispositive issue” (citations omitted). If the evidence is only cumulative, on the other hand, admitting it “is generally harmless and thus does not require reversal of the trial court’s judgment” (citation omitted). To make that determination, a court will “review the entire record, considering, in particular, the “state of the evidence, the strength and weakness of the case, and the verdict” (citations omitted). After conducting this review, the Court found that the neighbor’s testimony as to Hitchcock’s capacity to do the work, which conflicted with plaintiff’s characterization of Hitchcock as mentally incapacitated and thus unable to perform such work, did not involve “the case-turning issue that [plaintiff] and the court of appeals made it out to be. Instead, the central disputed issue was whether any negligent conduct of [defendant], Hitchcock, or both was a proximate cause of Hitchcock’s fall.” Not having even see Hitchcock’s fall, the neighbor’s testimony was really beside the point.

SCOTX took a bit of a swipe at the panel majority for making a big deal out of the fact that the defense witness “testified last,” which the panel opined “was strategic rather than accidental.” Observing that the neighbor was defendant’s last witness because she was defendant’s “only witness . . . [t]he placement of her testimony at the end of the two-day trial, dictated by court procedure, simply cannot lend support to the court of appeals’ conclusion that her testimony was harmful.” We should think not.

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