Court of Appeals of Texas, Houston (14th Dist.).

Belva SIMS, Relator,

v.

The Honorable Tom P. SULLIVAN, Respondent.

No. B14-94-00785-CV.

|

Oct. 27, 1994.

OPINION

SEARS, Justice.

*1 In this original proceeding, we consider whether the trial court abused its discretion by striking the testimony and report of an expert witness when the expert’s report was not tendered to opposing counsel at least thirty days before trial. We find no abuse of discretion, and deny the writ of mandamus.

Relator is the plaintiff in a workers’ compensation suit originally filed in March of 1991. In April of 1991, the Real Party in Interest served Relator with requests for production, including requests for “All documents … and medical records that refer, reflect, or pertain to Plaintiff’s medical treatment,” and

All documents and tangible things, including, but not limited to, all tangible reports, physical models, compilation of data and other material prepared by the expert whom you intend to call at the trial of this cause.

Relator initially responded to the requests in May of 1991. On January 19, 1994, Judge Sullivan set the case for trial on August 11, 1994. Relator then supplemented her answers on May 13, 1994, by filing her Designation of Experts, a list of over 40 doctors and health care entities. The supplement included the name of Dr. Andrew P. Jones, but did not specify the substance of his testimony, or the testimony of any of the other listed experts.

On July 6, 1994, more than 30 days before trial, Dr. Jones prepared a report detailing his physical examination of Relator and reviewing her medical history in relation to the claimed injury. However, although Relator’s attorneys received the report from Dr. Jones on July 8th, also more than 30 days before trial, they did not tender the report to opposing counsel until July 21, 1994, the day of Dr. Jones’s scheduled deposition. The Real Party in Interest filed a motion for discovery sanctions, claiming that because the report was tendered less than 30 days before trial, Relator had failed to timely supplement her responses to requests for discovery and her pleadings should be stricken and the case dismissed. Judge Sullivan held a hearing on the motion for sanctions, which Relator’s attorney did not attend, and after hearing the argument of counsel for the Real Party in Interest, ordered that the testimony and reports of Dr. Jones be stricken. Relator contends that Judge Sullivan’s order amounts to a de facto “death penalty” sanction, and is reviewable by mandamus. We disagree.

Under the Texas Rules of Civil Procedure, a party who wishes to call an expert witness must disclose the subject matter of the expert’s testimony in response to an appropriate inquiry as soon as is practical, but in no event less than 30 days before trial begins, except with leave of court. Tex.R.Civ.P. 166b(6)(b). In addition, if a party fails to supplement a response to a request for discovery, she may not offer the evidence and may not offer the testimony of an expert witness regarding the evidence which was not supplemented. Tex.R.Civ.P. 215(5). The sanction imposed by Rule 215(5) is mandatory and automatic, unless there is good cause to allow admission of the testimony. Alvarado v. Farah Mfg. Co., 830 S.W.2d 911, 914 (Tex.1992) (emphasis added). Rule 215(5) mandates that the burden to show good cause is on the party attempting to offer the evidence, and the trial court has the discretion to determine whether the party has met her burden of showing good cause to admit the testimony. Alvarado, 830 S.W.2d at 914. However, the trial court has no discretion to admit testimony excluded by the rule in the absence of a showing of good cause. Id.

*2 The extraordinary remedy of a writ of mandamus is used only to correct a clear abuse of discretion committed by the trial court. Walker v. Packer, 827 S.W.2d 833, 839 (Tex.1992). In this case, Judge Sullivan held a hearing on the motion for sanctions, to afford Relator the opportunity to show “good cause.” Relator’s attorney did not attend. In addition, Relator made no further attempts to apprise the judge of any reason why she provided the report less than 30 days before trial, or good cause why she should be allowed to admit the report or the expert’s testimony. Good cause sufficient to afford the trial court discretion to admit untimely evidence must be shown on the record. Tex.R.Civ.P. 215(5). The record before us contains no showing of good cause or any attempts to show good cause for Relator’s failure to provide opposing counsel with the expert’s report in a timely manner. Therefore, we find that Judge Sullivan had no discretion to admit the evidence.

Relator argues that because Dr. Jones was designated as an expert more than 30 days before trial, he should be allowed to testify even if the report is not admitted. We disagree. The language of Rule 215(5) is clear: If a party fails to respond to or supplement a discovery request, the party may not offer the testimony of an expert who has knowledge of the discoverable matter which was not disclosed. Neither this Court nor Judge Sullivan may disregard the plain language of Rule 215(5). See Alvarado, 830 S.W.2d at 915. There is no dispute that the substance of Dr. Jones’s testimony was contained in the report. Further, Relator had the report thirty-six days before trial, but did not tender it to opposing counsel within the time frame imposed by the Texas Rules of Civil Procedure. Under Rule 215(5), Dr. Jones was barred from testifying, and Judge Sullivan had no discretion to admit his testimony. Moreover, as a policy matter, the rule is intrinsically logical. If parties were able to timely designate expert witnesses, yet were not required to disclose the substance of their testimony prior to trial, the policies of promoting responsible assessment of settlement and preventing trial by ambush would be frustrated. See Alvarado, 830 S.W.2d at 914; and Clark v. Trailways, Inc., 774 S.W.2d 644, 646 (Tex.1989) (stating the purpose of Rule 215(5) is to prevent trial by ambush and ensure fairness).

Because Judge Sullivan had but one course of action, and had no discretion to do anything other than sanction Relator for her failure to timely supplement her discovery responses, mandamus will not lie. The petition for writ of mandamus is denied. Further, Relator’s Motion to Strike Respondent’s exhibits is denied.

Do not publish-Tex.R.App.P. 90.