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Daniels v. Yancey10/25/2005
e trial court then reset the trial date to January 12, 2004.
The agreed motion for continuance expressly mentioned Dr. Kovac's review of the pathology slides and his new opinions based on that review. The motion's stated purpose was to provide extra time for further discovery on that issue and other issues, and to extend the deadline for mediation, as well as other matters. Therefore, one of the purposes of the agreed motion for continuance was to allow discovery after the deadlines previously imposed by the agreed scheduling order.
Further, several courts have held that a trial resetting has the effect of nullifying a deadline set by a scheduling order. See J.G. v. Murray, 915 S.W.2d 548, 550 (Tex. App.---Corpus Christi 1995, no writ). Thus, the continuance effectively nullified the deadlines set by the agreed scheduling order.
Dr. Yancey's motion could not have violated the deadlines set by the agreed scheduling order because it was filed after those deadlines ceased to exist. Accordingly, we dismiss the Danieless' assertion that Yancey's motion was not filed within the time limitations prescribed by the agreed scheduling order and deny the Danielses' first point of error.
Qualifications of Expert Witness
While Dr. Kovac testified extensively, the Danielses assert the trial court erred in ruling that Dr. Kovac was not qualified to testify as an expert concerning pathology slides. At issue were Dr. Kovac's conclusions based on his review of pathology slides of Kimberly's bowel. We hold that the trial court did not err in limiting Dr. Kovac's testimony, and we deny the Danielses' second point of error.
The determination of whether an expert witness is qualified to testify is left largely to the trial court's discretion, and we will not disturb it on appeal absent a showing that the court abused its discretion. Broders v. Heise, 924 S.W.2d 148, 151 (Tex. 1996); E.I. du Pont de Nemours & Co. v. Robinson, 923 S.W.2d 549, 558 (Tex. 1995). In determining whether an abuse of discretion occurred, we look to see whether the trial court acted without reference to guiding principles or rules. Robinson, 923 S.W.2d at 558. A reviewing court cannot conclude that a trial court abused its discretion merely because it would have ruled differently. Id.; Purina Mills, Inc. v. Odell, 948 S.W.2d 927, 932 (Tex. App.---Texarkana 1997, writ denied).
The proponent of the expert witness bears the burden of showing that the expert witness is qualified and that the testimony is relevant to issues in the case, based on a reliable foundation, and will assist the trier of fact. Robinson, 923 S.W.2d at 556. The offering party is required to establish that the expert has the knowledge, skill, experience, training, or education regarding the specific issue before the court which would qualify the expert to give an opinion on that particular subject. Broders, 924 S.W.2d at 153. In addition, the underlying foundation on which that opinion is based must be reliable. See Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 589 (1993); Robinson, 923 S.W.2d at 555.
Yancey contends that the Danielses failed to present any evidence to the trial court before or during trial that would support Dr. Kovac's qualifications, thereby waiving appeal of this issue. We disagree that this issue was waived, but find the trial court did not abuse its discretion in excluding Dr. Kovac's testimony regarding pathology slides.
At the time the motion to limit Dr. Kovac's testimony was presented to the trial court before the trial started, the trial court reviewed and considered deposition testimony from Dr. Kovac on this issue. That evidence showed that
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