Exclusion of Contentions

A memorandum opinion demonstrates the downside of failing to respond to a discovery request. Alfredo Cornejo sued Anthony Jones for causing a multi-vehicle accident. Jones filed a general denial and alleged that someone else’s negligence proximately caused the collision. Cornejo served Jones with basic contention interrogatories, but Jones never answered them. Cornejo did not move to compel, but instead sought to exclude Jones’ testimony at trial. The trial court allowed Jones to testify, and the jury returned a verdict for the defense, apparently crediting Jones’ testimony — contrary to the police report of the incident — that he had been the victim of a rear impact that spun him into the other lanes of traffic. The Court of Appeals reversed and remanded, holding that the testimony should have been excluded under Rule 193.6(a) because Jones had failed to answer the contention interrogatories and could not show either good cause for that failure or lack of unfair surprise or prejudice to Cornejo. Contrary to the trial court’s ruling, a motion to compel is not a prerequisite to the exclusion of evidence under Rule 193.6(a), which provides for automatic exclusion if the proponent of the evidence did not answer the discovery and cannot establish those two exceptions to the exclusionary rule.

Cornejo v. Jones, No. 05-12-01256-CV