Ersek v. Davis & Davis, P.C.

• Citation: 69 S.W.3d 268
• Decision Date: 25 January 2002
• Docket Number: No. 03-01-00197-CV.,03-01-00197-CV.
• Parties: Robert ERSEK, M.D., Appellant, v. DAVIS & DAVIS, P.C., Appellee.
• Court: Court of Appeals of Texas

69 S.W.3d 268

Robert ERSEK, M.D., Appellant, v. DAVIS & DAVIS, P.C., Appellee.

No. 03-01-00197-CV.

Court of Appeals of Texas, Austin.

January 25, 2002.

Peter M. Kreisner, Peter M. Kreisner & Assoc., P.C., Austin, for appellant.

Walter H. Mizell, Brown McCarroll & Oaks Hartline, Austin, for appellee.

Before Chief Justice ABOUSSIE, Justices B.A. SMITH and PURYEAR.

BEA ANN SMITH, Justice.

Appellant Robert Ersek, M.D., sued Davis & Davis, P.C., appellee, alleging legal malpractice and violation of the Deceptive Trade Practices Act.¹ The trial court granted summary judgment for appellee. Appellant asserts two issues complaining that the trial court erred in excluding his expert witness affidavit and granting summary judgment in favor of appellee. We hold that the expert's affidavit was properly excluded and affirm the trial court's judgment.

FACTUAL AND PROCEDURAL BACKGROUND

Ersek sued Davis & Davis by filing his petition on November 12, 1999, alleging: (1) legal malpractice based on the firm's negligent representation of him in a medical malpractice action; and (2) violation of the DTPA based on the firm's misrepresentations regarding its competency to adequately represent Ersek in the underlying medical malpractice action. Francis A. Bradley and Mark A. Keene were the attorneys assigned by the firm to represent Ersek in the underlying action.

Davis & Davis filed special exceptions to Ersek's original petition March 16, 2000, as to the negligence claim. On April 17, Ersek filed a response to the firm's request for disclosure and answered interrogatories in which he indicated that he had not retained an expert witness. In May, Ersek changed counsel, and in September, he supplemented his answers, but did not identify an expert witness.

On November 6, 2000, Davis & Davis filed a motion for summary judgment and included a supporting affidavit signed by Keene. Ersek filed a response to the motion on December 7 and included a supporting affidavit signed by attorney David L. Shapiro. In addition to the response, Ersek filed a motion for continuance and a supplemental response to disclosure that identified Shapiro as an expert witness. On December 11, Davis & Davis filed a motion to strike Shapiro's affidavit and any attempted supplementation of discovery to include Shapiro as an expert witness. The trial court granted both the motion to strike Shapiro's affidavit and the motion to grant summary judgment.

EXPERT WITNESS AFFIDAVIT

In his first issue on appeal, Ersek asserts three complaints alleging that the trial court erred in striking the affidavit of his expert witness, Shapiro. The trial court's decision to strike Shapiro's affidavit is governed by an abuse of discretion standard. See Alvarado v. Farah Mfg. Co., 830 S.W.2d 911, 914 (Tex.1992). The test is whether the trial court acted without reference to any guiding principles. Mack v. Suzuki Motor Corp., 6 S.W.3d 732, 733 (Tex.App-Houston [1st Dist.] 1999, no. pet.). We look to the Texas Rules of Civil Procedure to determine whether Ersek complied with the schedule for designating expert witnesses. Rule 190.3 determines the discovery period. See Tex.R. Civ. P. 190.3(b)(1)(B)(ii). Both parties agree that the discovery period ended January 17, 2001. Rule 195.2 controls the schedule for designating experts. See Tex.R. Civ. P. 195.2(a). This rule requires that a party seeking affirmative relief must designate all experts ninety days before the end of the discovery period; in this case, Ersek was required to designate any expert witness by October 19, 2000. Ersek does not dispute that he failed to designate Shapiro by this date. Rather, he contends that he complied by designating no expert witness before the deadline and then supplementing his response identifying Shapiro after the deadline.

Supplementation

First, Ersek contends that he was entitled to supplement his initial response in which he designated no expert witness. He directs our attention to rule 193.5, which imposes a duty to supplement discovery responses. See Tex.R. Civ. P. 193.5. He contends that on April 17, 2000, he responded to the firm's discovery request and disclosed that he had no expert witness at that time. On November 6, Davis & Davis filed a motion for summary judgment. Subsequently, on December 7, Ersek filed a response to the motion for summary judgment and a supplement to his discovery response in which he designated Shapiro as an expert witness for the first time. Further, Ersek directs our attention to rule 195.6, which provides that a party's duty to amend or supplement written discovery regarding a testifying expert is governed by rule 193.5. See Tex.R. Civ. P. 195.6.

Ersek contends the trial court erred in determining that rule 195.2 imposed a deadline of October 19, 2000, for designating an expert witness for a party seeking affirmative relief. He contends he was entitled to designate no expert witness by the October 19 deadline and later supplement his response identifying Shapiro as his expert witness. We disagree. In Texas, a plaintiff in a legal malpractice suit is required to present expert testimony regarding the standard of skill and care ordinarily exercised by an attorney. Hall v. Rutherford, 911 S.W.2d 422, 424 (Tex. App.-San Antonio 1995, writ denied). Had Ersek designated an expert witness before the deadline, then supplemented his response substituting Shapiro, we would find his argument persuasive. See Best Indust. Uniform Supply Co. v. Gulf Coast Alloy Welding, Inc., 41 S.W.3d 145, 148 (Tex. App-Amarillo 2000, pet. denied). Ersek, however, never designated an expert witness as required by law. See Tex.R. Civ. P. 195.2(a).²

Late Designation

Second, Ersek contends he met the requirements for late designation of his expert witness based on rule 193.6. See Tex.R. Civ. P. 193.6(b). Under this rule, Ersek may not offer the testimony of Shapiro unless the court finds good cause for late designation of an expert witness or that the late designation does not unfairly surprise or prejudice the firm. First, we consider good cause for the late designation. Ersek was required to provide expert testimony to establish his cause of action. The suit was filed November 12, 1999. Shapiro was designated December 7, 2000. We hold that the trial court did not abuse its discretion in concluding that appellant did not establish good cause by failing for more than one year to designate an expert witness to support his cause of action. See Snider v. Stanley, 44 S.W.3d 713, 717 (Tex.App.-Beaumont 2001, no pet.) (trial court did not abuse discretion in failing to find good cause for failure to designate expert witness when more than one year had lapsed since suit filed).

Next, we consider unfair surprise or prejudice resulting from the late designation. Ersek contends that Davis & Davis was not unfairly surprised or prejudiced because an expert witness was required to establish this cause of action and because Ersek offered Davis & Davis open access to depose the expert witness. We do not find these arguments persuasive. First, the fact that an expert witness is necessary to establish Ersek's cause of action does not establish that the defense would not be unfairly surprised by this expert named at this time. "The rules were revised to make that sort of anticipation unnecessary." Id. The supreme court discussed the concept of unfair surprise prior to the revision of the rules in Alvarado v. Farah Manufacturing Co.:

Determining whether a party is really surprised by an offer of testimony not formally identified in discovery is difficult. The better prepared counsel is for trial, the more likely he is to have anticipated what evidence may be offered against his client, and the less likely he is to be surprised. It would hardly be right to reward competent counsel's diligent preparation by excusing his opponent from complying with the requirements of the rules.... A party is entitled to prepare for trial assured that a witness will not be called because opposing counsel has not identified him or her in response to a proper interrogatory.

830 S.W.2d at 915. Furthermore, simply granting the firm the right to depose the witness does not ensure that it is not unfairly surprised or prejudiced. See Snider, 44 S.W.3d at 717-18. Accordingly, we hold that the trial court did not abuse its discretion by failing to conclude that Davis & Davis was not unfairly surprised or prejudiced by Ersek's failure for more than one year to designate an expert witness to support his cause of action.

Improper Sanction

Third, Ersek complains that he was "sanctioned" inappropriately as a result of his failure to timely designate his expert witness. He contends the trial court erred because sanction rules and discovery rules do not apply to summary judgment proceedings. Ersek cites State v. Roberts, 882 S.W.2d 512 (Tex.App.-Austin 1994, no writ), and Gandara v. Novasad, 752 S.W.2d 740 (Tex.App.-Corpus Christi 1988, no writ), in support of his position. Both of these cases were decided before the revision of the rules of civil procedure. Before 1999, the discovery period began when the suit was filed and ended the date set for trial. See Technical Corrections to the Revisions to the Texas Rules of Civil Procedure, 981 982 S.W.2d XXXVII. Any expert witness was required to be designated thirty days prior to the end of the discovery period. See Tex.R. Civ. P. 166b(6)(b) (West 1998, repealed 1999); Tex.R. Civ. P. 215(5) (West 1998, amended 1999). In other words, the ending date of the discovery period and, therefore, the date for designating an expert were fluid. If the trial were postponed for any reason, the discovery period and the period for designating an expert were extended. For this case filed after January 1, 1999, the discovery period begins when the suit is filed and ends nine months after the earlier of the date of the first oral deposition or the due date of the first response to written...