Witness Preclusion: Naming Opponent as Witness in PTO, etc.

[Administrator]

Witness Preclusion: Naming Opponent as Witness in PTO, etc.

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Do you have to name the opponent specifically as a witness in a Pre-Trial Order or your Witness List you file? What about a "corporate representative" of the other party? Safe practice is to name everyone and use broad "May Call" language and list variations on who you may call and use catch-alls, like "anyone listed or called to testify by defendant" and "anyone listed in discovery responses" and "anyone listed in depositions" and be sure and list depositions, etc., in your exhibit lists and Pre-Trial Order, etc.

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Campbell v. C.D. Payne and Geldermann Securities, Inc.
894 S.W.2d 411
Tex.App.-Amarillo,1995.
January 31, 1995
Moreover, it is undisputed that Bennett had not been listed by Campbell in response to interrogatories. Even so, pursuant to Rule 181 of the Texas Rules of Civil Procedure which provides that either party to a suit may examine the other party as a witness, and citing the decision in E-Z Mart Stores, Inc. v. Terry, 794 S.W.2d 63 (Tex.App.-Texarkana 1990, writ denied), Campbell contends she has an absolute right to call the witness! as the representative of an adverse party.

It is true that the import of the decision in E-Z Mart is as Campbell contends. However, since the time of that decision, the courts have had an opportunity to consider the impact of our supreme court's decision in Smith v. Southwest Feed Yards, 835 S.W.2d 89 (Tex.1992) and have reached a different conclusion. See Varner v. Howe, 860 S.W.2d 458, 464 (Tex.App.-El Paso 1993, no writ) and Brekalo v. Ballard, 836 S.W.2d 783, 785 (Tex.App.-Fort Worth 1992, no writ). We believe the later cases reached the correct result, i.e., absent a showing of good cause, an undisclosed party is not removed from the automatic exclusion provisions of Rule 215(5) of the Texas Rules of Civil Procedure. For all of the above reasons, the trial court did not reversibly err in excluding Bennett's testimony. Campbell's eighth point is overruled.

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Baylor Medical Plaza Services Corp. v. Kidd
834 S.W.2d 69
Tex.App.-Texarkana,1992.
May 12, 1992
Next, we shall look at whether the listing of a witness by another party to the suit justifies the witness being called by a party who did not list the witness. In the case of American Cyanamid Co. v. Frankson, 732 S.W.2d 648 (Tex.App.-Corpus Christi 1987, writ ref'd n.r.e.), one of the parties, without specifically designating any witnesses, answered that it reserved the right to call all experts designated by other parties in the case. The court disallowed any “catch-all” phrase that designates any other witnesses which any defendant might designate and announced that the well-settled rule of Texas discovery is that a party must identify its witnesses when called upon to do so. The designation of a witness by another party does not relieve a party from designating its own witnesses, and the fact that another party listed a witness is not good cause for failure of a party to designate its own witnesses. Furthermore, no party listed Bryant as an expert witness. The fact that Bryant answered interrogatories that were propounded to the codefendant Humco did not put Baylor on notice that Kidd intended to call Bryant as an expert witness.

[12] [13] *74 We next address Kidd's contention that designation of this witness as a fact witness was sufficient to allow the testimony that was offered. The witness made a general statement of opinion that went beyond the specific facts of this case and constituted an expert opinion. A fact witness cannot testify to matters that will require him or her to give an expert opinion. See Missouri-Kansas-Texas R. Co. v. Alvarez, 703 S.W.2d 367, 371 (Tex.App.-Austin 1986, writ ref'd n.r.e.). We conclude that no good cause was shown for allowing this witness to testify as an expert on Kidd's behalf and that the trial court abused its discretion in allowing this testimony.

National R.R. Passenger Corp. v. Certain Temporary Easements Above Railroad Right of Way in Providence, Rhode Island, 357 F.3d 36, 42 (1st Cir.2004) (finding no abuse of discretion in district court's decision to allow party to call opponent's expert during party's case-in-chief and to examine him as a hostile witness).

Contrast:
Wilkinson v. Shoney's, Inc.,
269 Kan. 194, 4 P.3d 1149, 16 IER Cases 1160, Kan., April 28, 2000 (NO. 82,611)
Refusal to admit testimony of former employer's corporate representative as to employment, rehire and retention policies was not abuse of discretion in former employee's wrongful discharge action against former employer, where former employer failed to identify witness until just before trial, despite fact that pretrial order required witnesses to be identified almost one year earlier.

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A minority of jurisdictions follow this rule:
A plaintiff who does not file a witness list is limited to his own testimony. Craig v. Porter County Jail, Not Reported in F.Supp.2d, 2005 WL 1174170, N.D.Ind., May 09, 2005 (NO. 3:04-CV-086 RM)