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Daniels v. Yancey10/25/2005
sk that his testimony be limited only to obstetrics and gynecology, the area in which he has been proven an expert witness."
The Danielses, opposing the motion, focused the argument squarely on Dr. Kovac's credentials as well. The Danielses began, " nder the Rules of Evidence, testimony by experts should be based upon their qualifications by knowledge, skill, experience, training or education; Rule of Evidence 702."
The court interjected, " hen you have an expert who -- an OB/GYN who doesn't even read his own Pap smear slides, tell me why I should give him an area of expertise in front of a jury."
The Danielses continued to point out Dr. Kovac's qualifications, "Dr. Kovac teaches residents about pathology slides including bowel." The Danielses directed the trial court to deposition testimony in which Dr. Kovac described his qualifications. However, the Danielses failed to mention, even once, the time limits imposed by Article 4590i.
The only brief reference to the time limitations of Article 4590i was by counsel for Yancey, the proponent of the motion to limit the testimony. However, this is analogous to the well-established rule that one party may not use another party's objection to preserve an error where the record does not reflect a timely expression of an intent to adopt the objection. Scott Fetzer Co. v. Read, 945 S.W.2d 854, 871 (Tex. App.---Austin 1997), aff'd, Read v. Scott Fetzer Co., 990 S.W.2d 732 (Tex. 1998).
Further, the trial court made it clear that it was ruling solely on the qualifications of Dr. Kovac and not on any other issue. During the hearing, the trial court stated, " y consideration is limited to his area of expertise as far as being able to testify about these pathology slides." The trial court even gave the Danielses the opportunity to present an alternative argument by stating, "And at this point, unless you have something else to show me, I'm going to grant the defendant's request and limit his testimony on the pathology." The Danielses never presented another argument to the trial court.
Before issuing its ruling, the trial court again focused on Dr. Kovac's qualifications, saying, " or specialty testimony, it looks to me that they have to basically be engaged in that as their specialty, such as, in this case, pathology." And on issuing its ruling, the trial court stated, " y ruling is going to be that I'm going to limit his testimony and that he's not going to be able to go into -- unless the door is opened, he's not going to be able to go into the pathology slides."
There is nothing in the record to indicate the trial court was presented with, or considered, the contention that the Danielses now assert on appeal. The Danielses never filed a response to Yancey's motion to limit the testimony of Dr. Kovac. At the hearing on the motion, Daniels never complained or objected that the motion was in violation of statutory time limits. In fact, during that hearing, the Danielses' counsel stated, "I do not question defense's ability to challenge the credibility of my expert based on his knowledge, training and experience . . . ." Because the Danielses failed to present this complaint to the trial court, this issue is waived and we will not consider it.
Alternatively, the Danielses assert that the motion was not filed within the time limitations prescribed by the parties' agreed scheduling order. That agreed order set October 10, 2003, as the deadline to file any motion to exclude or limit expert testimony and November 10, 2003, as the trial date. Yancey's motion was not filed until January 7, 2004.
On November 6, 2003, both parties filed an agreed motion for continuance. Th
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