Alvarado v. Farah Mfg. Co., Inc.

• Citation: 830 S.W.2d 911
• Decision Date: 11 March 1992
• Docket Number: No. C-8405,C-8405
• Parties: Jose Luis Lerma ALVARADO, Petitioner, v. FARAH MANUFACTURING COMPANY, INC., Respondent.
• Court: Supreme Court of Texas

Page 911

830 S.W.2d 911

Jose Luis Lerma ALVARADO, Petitioner, v. FARAH MANUFACTURING COMPANY, INC., Respondent.

No. C-8405.

Supreme Court of Texas.

March 11, 1992.

Evelina Ortega, Raymond C. Caballero, El Paso, Prof. J. Patrick Hazel, Austin, for petitioner.

Tom Thomas, Marc Culp, Dallas, Crawford S. Kerr, El Paso, for respondent.

OPINION ON REHEARING

HECHT, Justice.

Petitioner's motion for rehearing is denied. This opinion is substituted for our prior opinion.

This is yet another case in which a witness who was not identified in response to a discovery request was nevertheless allowed to testify. The trial court apparently found good cause to allow the testimony because the witness was called as a rebuttal witness. The court of appeals held that admission of this testimony was reversible error, and remanded the cause for a new trial. 763 S.W.2d 529. Consistent with many prior opinions of this Court, we agree with the court of appeals and therefore affirm.

I

While employed by Farah Manufacturing Company, Jose Luis Lerma Alvarado experienced chest pains and was diagnosed as having a pulmonary embolism. Alvarado consulted with an attorney and filed a worker's compensation claim. After receiving medical treatment, Alvarado was released by his physicians to return to work but was restricted from sitting or standing still for long periods of time. This restriction prevented Alvarado from resuming the work he had done before his illness, which required long periods of standing. Farah had other jobs which Alvarado could perform, and he requested reassignment to one of them; but Farah advised him that there were no openings in any of those jobs. In accordance with the collective bargaining agreement which governed Alvarado's employment, Farah placed him on "sustained layoff" status, listing him with other employees in the same status. Whenever a job opening occurred in a particular department, the collective bargaining agreement required that Farah fill the position from the employees on the list, first from those who had worked in that department, by seniority, then from the others on the list, also by seniority. After one year on the list, an employee's seniority and recall rights automatically terminated.

Farah never recalled Alvarado to work, and all his rights under the collective bargaining agreement were eventually terminated. The union did not complain of Alvarado's termination. Nevertheless, Alvarado filed this action for damages against Farah, claiming that Farah had job openings which it should have offered him but did not do so in retaliation for his filing a worker's compensation claim. Thus, Alvarado claims that Farah violated TEX.REV.CIV.STAT.ANN. article 8307c, (Vernon Supp.1992). ^{1 1} Farah denies that it violated article 8307c and asserts that it never recalled Alvarado to work because it never had an opening for a job that Alvarado was both physically able to do and eligible to take under the seniority system which Farah had to follow.

Shortly after filing suit, Alvarado directed interrogatories to Farah, the first two of which asked:

1. Please state the name, address, telephone number, and employer of all persons having knowledge of the occurrences made the basis of this suit.

2. Please state the name, address, telephone number, and employer of each potential witness that you may use in the trial of this case.

Farah responded with interrogatories to Alvarado, the first two of which were identical to those quoted above. Neither Alvarado nor Farah objected to these interrogatories; both answered them by identifying several persons.

Six days before trial was set to begin, Alvarado subpoenaed two witnesses to testify who had never been identified in answer to Farah's interrogatories. One of these witnesses, ² Jacqueline Arrambide, had formerly been employed by Farah in a non-union position. Like Alvarado, Arrambide had sued Farah claiming that she had been terminated in retaliation for asserting a claim for worker's compensation benefits. On the first day of trial, before voir dire commenced, Farah moved to exclude the testimony of Arrambide for the reason that she had not been identified in answer to its interrogatories. The trial court denied Farah's motion. After Farah rested its case, Alvarado called Arrambide as a witness on rebuttal. Again Farah objected, and again the trial court overruled the objection. Arrambide testified that Farah had fired her one week after Farah found out that she had hired an attorney to make a worker's compensation claim for injury to her back. She testified that the reason she was given for her termination was poor attendance at work, even though she had missed only a few days work for medical treatment.

The jury found that Farah violated article 8307c with respect to Alvarado, and that he should be awarded $139,080 actual damages ³ and $1,000,000 exemplary damages. The trial court rendered judgment on the verdict.

II

A

Rule 215(5) of the Texas Rules of Civil Procedure states:

A party who fails to respond to or supplement his response to a request for discovery shall not be entitled to present evidence which the party was under a duty to provide in a response or supplemental response or to offer the testimony of an expert witness or of any other person having knowledge of discoverable matter, unless the trial court finds that good cause sufficient to require admission exists. The burden of establishing good cause is upon the party offering the evidence and good cause must be shown in the record.

To say that this rule has proven to be problematic is perhaps an understatement. On ten occasions in the eight years since the rule was first promulgated in 1984, ⁴ this Court has written on whether a witness not identified in response to a discovery request should have been allowed to testify. Sharp v. Broadway Nat'l Bank, 784 S.W.2d 669 (Tex.1990) (per curiam); Rainbo Baking Co. v. Stafford, 787 S.W.2d 41 (Tex.1990) (per curiam); McKinney v. National Union Fire Ins. Co., 772 S.W.2d 72 (Tex.1989); Clark v. Trailways, Inc., 774 S.W.2d 644 (Tex.1989); Boothe v. Hausler, 766 S.W.2d 788 (Tex.1989) (per curiam); Gee v. Liberty Mut. Fire Ins. Co., 765 S.W.2d 394 (Tex.1989); E.F. Hutton & Co. v. Youngblood, 741 S.W.2d 363 (Tex.1987) (per curiam); Gutierrez v. Dallas Indep. Sch. Dist., 729 S.W.2d 691 (Tex.1987); Morrow v. H.E.B., Inc., 714 S.W.2d 297 (Tex.1986) (per curiam); Yeldell v. Holiday Hills Retirement and Nursing Center, Inc., 701 S.W.2d 243 (Tex.1985). In eight of these cases the trial courts admitted testimony which had not been timely identified in response to discovery requests; in none of them did the Court hold that "good cause sufficient to require admission" was shown.

The trial courts in these cases have given various reasons for allowing testimony despite the failure to comply with discovery rules. These reasons seem to share a basic rationale, sometimes expressed and other times implicit, that admitting the testimony allowed a full presentation of the merits of the case. In the present case, for example, the trial court permitted a previously undisclosed witness to testify "in the interest of justice in getting everything on the table, which this court tries to do when possible...." While it is certainly important for the parties in a case to be afforded a full and fair opportunity to present the merits of their contentions, it is not in the interest of justice to apply the rules of procedure unevenly or inconsistently. It is both reasonable and just that a party expect that the rules he has attempted to comply with will be enforced equally against his adversary. To excuse noncompliance without a showing of good cause frustrates that expectation.

The salutary purpose of Rule 215(5) is to require complete responses to discovery so as to promote responsible assessment of settlement and prevent trial by ambush. See Clark, 774 S.W.2d at 646; Gee, 765 S.W.2d at 396; Gutierrez, 729 S.W.2d at 693. The rule is mandatory, and its sole sanction--exclusion of evidence--is automatic, unless there is good cause to excuse its imposition. The good cause exception permits a trial court to excuse a failure to comply with discovery in difficult or impossible circumstances. See Clark, 774 S.W.2d at 647 (inability to locate witness despite good faith efforts or inability to anticipate use of witness' testimony at trial might support a finding of good cause). The trial court has discretion to determine whether the offering party has met his burden of showing good cause to admit the testimony; but the trial court has no discretion to admit testimony excluded by the rule without a showing of good cause.

We have repeatedly addressed what factors, standing alone, are not in themselves good cause. Included among these are inadvertence of counsel, Sharp, 784 S.W.2d at 672; E.F. Hutton, 741 S.W.2d at 364; lack of surprise, Sharp, 784 S.W.2d at 671; Gee, 765 S.W.2d at 395 n. 2 (lack of surprise is not the standard, but may be a factor); Morrow, 714 S.W.2d at 298; and uniqueness of the excluded evidence, Clark, 774 S.W.2d at 646. The reasons in each instance are intuitive. If inadvertence of counsel, by itself, were good cause, the exception would swallow up the rule, for there would be few cases in which counsel would admit to making a deliberate decision not to comply with the discovery rules. Determining whether a party is really surprised by an offer of testimony not formally identified in discovery is difficult. The better prepared counsel is for trial, the more likely he is to have anticipated what evidence may be offered against his client, and the less likely he is to be surprised. It would hardly be right to reward competent counsel's diligent preparation by excusing his opponent from complying with the requirements of the rules. As we explained in Sharp:

A party is entitled to prepare for trial assured that a witness will not be called because opposing couns...