Failure to Disclose: Expert witness affidavit struck

Texas Supreme Court applies rule that undisclosed witness may not testify to expert affidavit in no-evidence summary judgment proceeding.

Fort Brown Villas III Cond Ass'n. v. Gillenwater, (Tex. 2009)
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)(untimely disclosed expert witness excluded from no-evidence summary judgment proceeding)(affidavit of expert witness excluded from summary judgment response because not timely disclosed under the discovery control plan)

TO WIT:

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)).

Before the no-evidence motion for summary judgment was introduced to Texas trial practice, courts did not apply evidentiary sanctions and exclusions for failure to timely designate an expert witness in a summary judgment proceeding. See, e.g., State v. Roberts, 882 S.W.2d 512, 514 (Tex. App.—Austin 1994, no writ) (“Discovery rules and sanctions for failure to designate expert witnesses do not apply to summary judgment proceedings.”); see also Purvis Oil Corp. v. Hillin, 890 S.W.2d 931, 939–40 (Tex. App.—El Paso 1994, no writ); Gandara v. Novasad, 752 S.W.2d 740, 743 (Tex. App.—Corpus Christi 1988, no writ). However, in 1997, the no-evidence summary judgment motion was introduced to the Texas Rules of Civil Procedure as Rule 166a(i),[1] and in 1999, pretrial discovery rules were amended to include evidentiary exclusions under Rule 193.6. Id. at §193.6.[2]

Since that time, most courts of appeals have applied Rule 193.6 to summary judgment proceedings. See Thompson v. King, 2007 WL 1064078, *2 (Tex. App.—Tyler Apr. 11, 2007, pet denied) (mem. op.); Blake v. Dorado, 211 S.W.3d 429, 432 (Tex. App.—El Paso 2006, no pet.); Chau v. Riddle, 212 S.W.3d 699, 704–05 (Tex. App.—Houston [1st Dist.] 2006), rev’d on other grounds, 254 S.W.3d 453, 455 (Tex. 2008); Cunningham v. Columbia/St. David’s Healthcare Sys., L.P., 185 S.W.3d 7, 12–13 (Tex. App.—Austin 2006, no pet.); F.W. Indus., Inc. v. McKeehan, 198 S.W.3d 217, 221 (Tex. App.—Eastland 2005, no pet.); Villegas v. Tex. Dep’t. of Transp., 120 S.W.3d 26, 34–35 (Tex. App.—San Antonio 2003, pet. denied); Ersek v. Davis & Davis, P.C., 69 S.W.3d 268, 274 (Tex. App.—Austin 2002, pet. denied). But see Alaniz v. Hoyt, 105 S.W.3d 330, 340 (Tex. App.—Corpus Christi 2003, no pet.); Johnson v. Fuselier, 83 S.W.3d 892, 897–98 (Tex. App.—Texarkana 2002, no pet.) (both declining to apply Rule 193.6 to a summary judgment proceeding).

Because we have already held that evidentiary rules apply equally in trial and summary judgment proceedings, Longoria v. United Blood Services, 938 S.W.2d 29, 30 (Tex. 1995), we also hold that the evidentiary exclusion under Rule 193.6 applies equally.Our conclusion is based on the changes made to the pretrial discovery rules and the introduction of the no-evidence motion for summary judgment. The former pretrial discovery rules established a fluid deadline for discovery disclosure, which could be modified based on a change in the date of trial. Ersek, 69 S.W.3d at 272.

Thus, it was possible that an exclusionary rule based on an untimely disclosure used at the summary judgment stage could exclude evidence that would later be admissible at trial. Id. at 272–73. However, the new discovery rules establish a date certain for the completion of discovery, which depends on the discovery plan level and not on the trial date. See id. at 273; see also Tex. R. Civ. P. 190.2–.4 (providing specific time periods for the end of discovery, depending on the discovery plan level).

Under the new rules, there is no longer a concern that discovery will be incomplete at the summary judgment stage. See Ersek, 69 S.W.3d at 273–74. In fact, the no-evidence rule, by its very language, is to be used following discovery. Tex. R. Civ. P. 166a(i) (“After adequate time for discovery, a party without presenting summary judgment evidence may move for summary judgment on the ground that there is no evidence . . . .”) (emphasis added).

Combined with the no-evidence motion for summary judgment rule, the “hard deadline” established by the pretrial discovery rules ensures that the evidence presented at the summary judgment stage and at the trial stage remains the same. See id.; Tex. R. Civ. P. 190.3. Accordingly, the 193.6 exclusionary rule applies equally to both proceedings.

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). Gillenwater did not designate its expert until three days before the end of discovery and more than five months after the expert designation deadline.Having held that the expert’s affidavit was properly excluded, we must review the remaining evidence to determine whether the trial court appropriately granted Fort Brown’s motion for summary judgment.

FORT BROWN VILLAS III CONDOMINIUM ASSOCIATION, INC. D/B/A FORT BROWN CONDOSHARES AND LRI MANAGEMENT, INC. v. COY GILLENWATER; from Cameron County; 13th district (13-06-00478-CV, ___ SW3d ___, 11-01-07) Pursuant to Texas Rule of Appellate Procedure 59.1, after granting the petition for review and without hearing oral argument, the Court reverses the court of appeals' judgment and renders judgment.
Per Curiam Opinion (Justice Johnson not sitting)

RELATED CONCEPTS: Discovery disputes undesignated undisclosed witnesses exclusion of evidence motion to strike witness admission exclusion of expert witness testimony