law-failure-to-disclose-designate-witnesses-exclusion-of-evidence | exlusionary rule | motion to
strike affidavit
FAILURE TO DISCLOSE WITNESS, EVIDENCE PRIOR TO TRIAL
AUTOMATIC EXCLUSION RULE
Under Rule 193.6, discovery that is not timely disclosed and witnesses that are not timely
identified are inadmissible as evidence. Tex. R. Civ. P. 193.6(a). A party who fails to timely
designate an expert has the burden of establishing good cause or a lack of unfair surprise
or prejudice before the trial court may admit the evidence. Tex. R. Civ. P. 193.6(b). “A trial
court’s exclusion of an expert who has not been properly designated can be overturned only
upon a finding of abuse of discretion.” Mentis v. Barnard, 870 S.W.2d 14, 16 (Tex. 1994)
(citing Morrow v. H.E.B., Inc., 714 S.W.2d 297, 298 (Tex. 1986)).
The penalty under rule 193.6 for a party's failure to respond to a discovery request is the
mandatory exclusion of the evidence requested. See Alvarado v. Farah Mfg. Co., 830 S.W.
2d 911, 914 (Tex. 1992); F & H Invs., Inc. v. State, 55 S.W.3d 663, 669 (Tex. App.-Waco
2001, no pet.). A party who fails to make, amend, or supplement a discovery response in a
timely manner may not introduce in evidence the material or information that was not timely
disclosed unless the court finds that (1) there was good cause for the failure to timely
disclose or (2) the failure will not unfairly surprise or prejudice the other parties. Tex. Mun.
League Intergovernmental Risk Pool v. Burns, 209 S.W.3d 806, 817 (Tex. App.-Fort Worth
2006, no pet.) (citing Tex. R. Civ. P. 193.6(a)). The trial court has discretion to determine
whether the offering party has met its burden, Id. (citing Alvarado, 830 S.W.2d at 914), but
any "finding of good cause or of the lack of unfair surprise or unfair prejudice must be
supported by the record." Tex. R. Civ. P. 193.6(b). Moreover, parties have a duty to amend
or supplement discovery responses "reasonably promptly" after discovering the need to
amend or supplement, and "it is presumed that an amended or supplemental [discovery]
response made less than 30 days before trial was not made reasonably promptly." Tex. R.
Civ. P. 193.5(b).
EXCLUSIONARY RULE APPLIED IN SUMMARY JUDGMENT PROCEEDING |
EXPERT WAS NOT TIMELY DISCLOSED, AFFIDAVIT STRUCK
Fort Brown Villas II Cond Ass'n. v. Gillenwater, No. 07-1028 (Tex. Apr. 17, 2009)(premises liability
suit, exclusion of evidence not produced in discovery, witness exclusion, undesignated witness,
mandatory exclusion at trial vs. in relation to summary judgment)
Here, Gillenwater did not timely disclose his expert pursuant to the deadline provided for in the
agreed scheduling order and subsequent extension agreements. The trial court struck the expert’s
affidavit and did not consider it in granting the summary judgment. ___ S.W.3d at ___. Because
Rule 193.6 provides for the exclusion of an untimely expert affidavit, we hold that the trial court did
not abuse its discretion in striking it.[3] We also hold that Gillenwater failed to satisfy his burden of
establishing good cause or a lack of unfair surprise or prejudice against Fort Brown. See Tex. R.
Civ. P. 193.6(b).