Unreported / Non-Citable
Background
Blackstone Claim Services and Gary Pennington sued attorney John Barkley for legal malpractice, alleging he drafted a defective incentive stock option plan that failed to qualify as a deferred compensation plan under Internal Revenue Code section 409A. The plan allegedly undervalued stock, exposing the company to $476,055.80 in additional tax liability plus exposure to a $2.5 million judgment obtained by a third party in related litigation. Trial was scheduled for July 7, 2025, with an expert designation deadline of March 17, 2025.
On March 17, 2025, plaintiffs designated David Coffin as their tax expert with a note that “formal retention” was still “pending.” Three weeks after the deadline, on April 2, 2025, plaintiffs filed a first amended designation substituting Jason Freeman for Coffin, claiming Coffin had changed his mind and declined to testify. Barkley opposed the late designation and moved to exclude Freeman’s testimony. The trial court also denied plaintiffs’ motions to abate or for a continuance. Plaintiffs petitioned for mandamus review.
The Court’s Holding
The Court of Appeals affirmed all three of the trial court’s rulings and denied mandamus relief. On the expert designation issue, the court held that plaintiffs failed to demonstrate good cause for Freeman’s late designation under Texas Rule of Civil Procedure 193.6(a). While an expert’s unexpected withdrawal may justify a substitution, good cause requires the offering party to show it exercised due diligence before the deadline in retaining the expert and promptly took steps to solidify retention. Here, plaintiffs offered no evidence of when they began seeking an expert, when they first contacted Coffin, or when they provided him materials for review—only explaining what happened after Coffin withdrew. The court emphasized that using a conditional designation with “pending formal retention” as a placeholder while continuing to search for an expert does not satisfy the good cause standard.
On abatement, the court distinguished the case from prior precedent and held that plaintiffs’ damages were not unknowable—they had quantified approximately $2.5 million to $3.6 million in various damages categories in their interrogatory responses. The underlying Bexar County litigation’s pendency did not render the malpractice claim unripe since plaintiffs claimed damages had already been incurred through litigation costs. On the continuance, the court held it was an incidental trial ruling not ordinarily subject to mandamus review, and special circumstances did not exist given the court’s rulings on the other issues.
Key Takeaways
- Expert designations with notations like “formal retention pending” may be treated as inadequate or incomplete, leaving the door open for exclusion even if nominally timely filed.
- The burden is on the party seeking late designation to affirmatively prove pre-deadline diligence in retaining the expert; merely explaining post-deadline circumstances is insufficient.
- Courts will not excuse late expert designations where the party waited until near the deadline to begin retention efforts, even if the ultimate substitution occurs due to the original expert’s withdrawal.
- Abatement of legal malpractice claims does not require pendency of underlying litigation when damages have already accrued through intermediate costs (e.g., litigation expenses).
Why It Matters
This decision reinforces that litigants cannot use conditional or placeholder expert designations to buy time while shopping for experts. The court’s strict approach to the diligence requirement—requiring parties to show pre-deadline efforts, not just post-withdrawal explanations—will have significant practical consequences for plaintiff practitioners managing complex litigation with multiple experts. Designating an expert with “pending formal retention” is now explicitly risky.
The decision also clarifies that legal malpractice claims need not await the conclusion of underlying litigation when discrete damages have already been incurred. This allows malpractice plaintiffs to proceed sooner rather than being forced to wait for complete resolution of related disputes, reducing the barrier to bringing malpractice actions while the client’s injuries continue accumulating.