Not Responding to Discovery Request Consequences In Texas

Pursuant to Texas Rule of Civil Procedure 215(5), when a party fails to supplement a discovery request, the sanction is the automatic exclusion of the unidentified witness' testimony. Sharp v. Broadway National Bank, 784 S.W.2d 669, 671 (Tex. 1990). The exception to this rule is when the party can show good cause for its failure. Tex. R. Civ. P. 215(5). Lack of surprise, inadvertence of counsel, and the uniqueness of the evidence are not in themselves good cause. Alvarado v. Farah Manufacturing Company, 830 S.W.2d 911, 915 (Tex. 1992). Johnson v. Berg, 848 S.W.2d 345 (Tex.App.--Amarilllo 1993, no pet.) was based on the fact that there was some effort to supplement discovery by way of a letter which implied the witness would be called at trial, and a six-month length of time between the deposition of the medical expert and trial. Id. at 351. Further, this expert was the only expert on the appropriate standard of care, and when his testimony was excluded, a directed verdict in favor of the defendant resulted. Our concern was that sanctions, that by their severity prevent a trial on the merits, cannot be justified absent a party's flagrant bad faith or counsel's callous disregard. Id. at 352; Chrysler Corp. v. Blackmon, 841 S.W.2d 844, 849 (Tex. 1992).