Supreme Court of Texas.
Jose Luis Lerma ALVARADO, Petitioner,
FARAH MANUFACTURING COMPANY, INC., Respondent.
March 11, 1992.
Attorneys & Firms
*912 J. Patrick Hazel, Austin, for petitioner.
Crawford S. Kerr, El Paso, for respondent.
OPINION ON REHEARING
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.
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 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 damages3 and $1,000,000 exemplary damages. The trial court rendered judgment on the verdict.
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 *914 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. 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 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.
*915 We have repeatedly addressed what factors, standing alone, are not in themselves good cause. Included among these are inadvertence of counsel, 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 counsel has not identified him or her in response to a proper interrogatory. Thus, even the fact that a witness has been fully deposed, and only his or her deposition testimony will be offered at trial, is not enough to show good cause for admitting the evidence when the witness was not identified in response to discovery.
784 S.W.2d at 671. Finally, if good cause could be shown simply by establishing the unique importance of the evidence to the presentation of the case, only unimportant evidence would ever be excluded, and the rule would be pointless.
To relax the good cause standard in TransAmerican Natural Gas Corp. v. Powell, 811 S.W.2d 913, 917 (Tex.1991).
As written, however, Rule 215(5) should be left to those processes, which are underway. Last year the Court appointed task forces to study the conduct of discovery and the imposition of sanctions, and to make recommendations for revisions in the rules. The Court’s Rules Advisory Committee, the State Bar’s Committee on the Administration of Justice, and other groups have undertaken similar studies. While those processes are at work, we adhere to the language of the rule and our consistent precedent.
We note, however, that the trial courts are not without power to prevent the enforcement of Rule 215(3), to impose an appropriate sanction upon the offending party for abuse of the discovery process. Such sanction may be used to compensate the non-offending party for any wasted expense in preparing for trial. Although the trial court should not allow delay to prejudice the non-offending party, *916 the trial court should ordinarily be able to cure any prejudice by a just imposition of sanctions.5
In the instant case each party inquired of the other the identity of all potential witnesses. Although they might both have successfully objected to the interrogatory, having undertaken to answer it, they were required to do so fully, and to supplement their answers in accordance with the rules. See Rule 215(5) is intended to prevent.6
Later during the trial, when Alvarado called Arrambide to the witness stand and Farah renewed its objection, Alvarado asserted a further reason as good cause for allowing Arrambide to testify. Alvarado argued that Arrambide’s testimony was necessary to rebut unexpected testimony by Farah’s personnel director during its case in chief that Farah would rehire employees with physical limitations. Even if Alvarado’s argument had merit, it could hardly support his pretrial decision to call Arrambide as a rebuttal witness. Moreover, the testimony Alvarado claims was unexpected was essentially immaterial. Regardless of whether Farah would or would not rehire employees with physical limitations, Alvarado asserted, and Farah’s personnel director admitted, that Alvarado did not have any such limitations precluding his return to work. Alvarado argues, somewhat inconsistently, that he did not call Arrambide to rebut specific testimony by Farah’s personnel director, but to impeach him generally. Farah’s personnel *917 director was deposed prior to trial, and his credibility was known to be in issue before trial commenced. To the extent Arrambide’s testimony was used generally to impeach him, Alvarado certainly knew before trial that she was a potential witness.
We therefore hold that the trial court erred in admitting Arrambide’s testimony. The question remains whether that error was harmful. See McKinney, 772 S.W.2d at 76. Arrambide testified that she had been fired by Farah one week after the company became aware that she had hired an attorney to file a compensation claim.7 She was the only witness to testify to these facts; her testimony was not cumulative. It was intended to show that Farah had a pattern of firing employees for filing compensation claims. Alvarado’s insistence on using her testimony indicates how important he thought it was to his case. Under the circumstances, we hold that the error in admitting Arrambide’s testimony was reversible.8
Whether Rule 215(5) should be revised is an issue which we leave to the processes which exist to study such matters. In this case, consistent with the plain language of the rule and our prior precedent, we affirm the judgment of the court of appeals.
Justice DOGGETT, J., not sitting.
MAUZY, Justice, dissenting.
The dissenting opinion delivered November 21, 1990, is withdrawn, and the following is substituted therefor.
I respectfully dissent. The trial court properly exercised its discretion in finding good cause to allow the testimony of Jacqueline Arrambide. Furthermore, considering the extensive record in this case, any error in admitting Arrambide’s testimony was harmless.
The rule requiring automatic exclusion of testimony from an undisclosed witness is subject to a good cause exception. Tex.R.Civ.P. 215(5). Determination of good cause is within the sound discretion of the trial court and will only be set aside if that discretion was abused. Id. at 298.
Arrambide was called as a rebuttal witness to impeach the testimony of Farah’s personnel director. This is the first time the court has considered Id. at 264. Here, the opponent was already aware of the witness; in fact, Farah’s counsel had deposed Arrambide several weeks earlier. Farah had even filed a motion in limine to prohibit Alvarado from calling her. In summing up the situation, the trial court said:
What we have here is that you all were notified of the possibility that this witness would be used. As a matter of fact, myself, as judge, even ruled on this matter as to whether or not this testimony would be admissible. It’s just that she didn’t formally in writing modify her discovery.
In other words, all the cards were already on the table.
This court has specifically referred to surprise as a factor for a trial court to consider in deciding whether good cause exists. In Gee v. Liberty Mut. Life Ins. Co., 765 S.W.2d 394, 395 (Tex.1989), we stated that “[a]lthough lack of surprise is not the standard, it may be a factor for the trial court to consider when weighing whether good cause exists for allowing the testimony of an undisclosed witness.” Thus, lack of surprise is not by itself enough to establish good cause; however, it can definitely be a factor for the trial court to consider in its determination of whether good cause exists. Here, the trial court determined that admission of Arrambide’s testimony was warranted because there was a need to call her as a rebuttal witness and because Farah was not surprised by her testimony. Under the facts of this case, this was not an abuse of discretion.
This court apparently disapproves of the trial court’s failure to make a specific finding of good cause. Under our rules, though, the trial court was not required to make an express finding of good cause. See Clark v. Trailways, Inc., 774 S.W.2d 644, 646 (Tex.1989). The rule requires only that good cause be shown on the record. Tex.R.Civ.P. 215(5). A requirement of stating for the record how the trial court determines good cause would be tantamount to a return to the old form of action practice or recitation of the fiat. Our modern-day legal system rejects such antiquated practices.
Before our court can reverse a judgment, a determination must be made that the error was reasonably calculated to cause and probably did cause the rendition of an improper judgment. Tex.R.App.P. 81(b). To determine whether the alleged error probably caused the rendition of an improper judgment, the court must examine the evidence in light of the entire record. Gee v. Liberty Mut. Fire Ins. Co., 765 S.W.2d at 397.
In adopting the Texas Rules of Civil Procedure, this court recognized that the real purpose of such rules is to obtain a “just, fair, equitable and impartial adjudication of the rights of litigants under established principles of substantive law.” Rule 215(5): a trial court must have the discretion to apply the rule in a manner that avoids injustice. Here, it is clear that all the cards were on the table. Nevertheless, the court overturns a valid jury verdict because of a technical defect that harmed no one. Almost five years after the original judgment, this court forces Jose Alvarado back to trial, producing the very sort of injustice that our rules were designed to prevent.
For too long, this court has insisted on a purely mechanical approach to Rule 215(5). A trial court now has virtually no discretion to admit testimony from an undisclosed witness—even if the testimony itself would come as no surprise to either party. Eventually, this court will have to reassess the wisdom of such rigidity. I would undertake that reassessment sooner, rather than later.
The court does acknowledge that its construction of Rule 215(5) to promote justice, stating emphatically that “we are not free to disregard its plain language.” Majority opinion 921.
Apparently, though, trial courts are free to disregard the rule’s plain language. To mitigate the impact of its holding, the court encourages trial courts to circumvent Rule 215(3). The rule unequivocally states that a party failing to supplement shall not be entitled to present the testimony, unless good cause exists.
The sanctity of our rules cannot be preserved by encouraging courts to disregard them. Our rules should be interpreted fairly, and applied evenly. If, as the court holds today, good cause did not exist for the admission of Arrambide’s testimony, the only proper solution would be to disallow Arrambide from testifying.
I would hold that the trial court did not abuse its discretion in finding good cause to allow Arrambide’s testimony. I would therefore affirm the judgment of the trial court.
GAMMAGE, JJ., join in this dissenting opinion.
“Art. 8307c. Protection of claimants from discrimination by employers; remedies; jurisdiction
“Section 1. No person may discharge or in any other manner discriminate against any employee because the employee has in good faith filed a claim, hired a lawyer to represent him in a claim, instituted, or caused to be instituted, in good faith, any proceeding under the Texas Workmen’s Compensation Act, or has testified or is about to testify in any such proceeding.
“Section 2. A person who violates any provision of Section 1 of this Act shall be liable for reasonable damages suffered by an employee as a result of the violation, and an employee discharged in violation of the Act shall be entitled to be reinstated to his former position. The burden of proof shall be upon the employee.
“Section 3. The district courts of the State of Texas shall have jurisdiction, for cause shown, to restrain violations of this Act.”
The other witness Alvarado subpoenaed was the adjuster for Farah’s worker’s compensation carrier. Alvarado also subpoenaed the records custodian for Farah’s worker’s compensation carrier to produce its file on Alvarado. Alvarado had never identified these documents in answer to another of Farah’s interrogatories. Alvarado did not call the adjuster to testify.
The jury found damages of $18,200 for past lost wages, $74,880 for future lost wages, $10,000 for past pain and mental anguish, and $36,000 for lost retirement and other benefits.
Prior to 1984, Rule 215 stated:
A party who fails to supplement seasonably his response to a request for discovery in accordance with paragraph 5 of Rule 166b shall not be entitled to present evidence which the party was under a duty to provide in a supplemental response or to offer the testimony of an expert witness or of any other person having knowledge of discoverable matter when the information required by Rule 166b concerning the witness has not been disclosed, unless the trial court finds that good cause sufficient to require admission exists.
Rule 215, effective September 1, 1990, 785–786 S.W.2d (Texas Cases) xxxi, lxiii–lxiv, did not change part 5 and do not affect this case.)
Contrary to the dissent’s argument, we do not encourage trial courts to disregard or circumvent Rule 215(5) might be revised to better accomplish this result, it does not as written force a trial court to sanction a lesser offense with excessive severity.
The dissent argues that there was good cause to admit Arrambide’s testimony in this case “because there was a need to call her as a rebuttal witness and because Farah was not surprised by her testimony.” Post, at 924. The effect of this reasoning is to refuse to apply the supplementation rule to witnesses deferred to the rebuttal portion of a case for purely tactical reasons. While there may be circumstances in which good cause can be shown for admitting testimony of an undisclosed witness on rebuttal, as for example when the need for the testimony could not reasonably have been anticipated, such circumstances, not present in this case, hardly justify a pretrial decision to save an undisclosed witness for rebuttal.
We do not, of course, consider whether Arrambide’s testimony was admissible apart from Alvarado’s failure to identify her in response to discovery.
The dissent argues that admission of Arrambide’s testimony should not be reversible error because Farah attempted to rebut the testimony and there was other evidence to support the jury’s verdict in favor of Alvarado. This argument, far removed from courtroom realities, is belied by the efforts Alvarado made to have the evidence admitted and Farah’s efforts to rebut it. Arrambide’s testimony was unique. It was certainly calculated to have, and we think probably did have, a singular, powerful effect on the jury.
* * * * * *
All of the Court’s earlier decisions involved either fact witnesses or expert witnesses. Yeldell v. Holiday Hills Retirement and Nursing Center, Inc., 701 S.W.2d 243 (Tex.1985) (fact witness).
This is the same case cited by the court as authority for its holding.