law-failure-to-disclose-designate-witnesses-exclusion-of-evidence | exlusionary rule | motion to strike
affidavit
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)).
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).