Unreported / Non-Citable
Background
Blackstone Claim Services, Inc. and Gary Pennington sued attorney and accountant John Barkley and his firm for legal malpractice in Montgomery County. They alleged Barkley created a defective stock-option plan, assisted a company officer in misconduct, and prepared fraudulent tax returns. Related litigation remained pending in Bexar County, where the officer had obtained a $2.5 million interlocutory summary judgment against Blackstone.
After the parties twice extended the expert-designation deadline, the plaintiffs timely identified tax attorney and CPA David Coffin, but stated that his formal retention was pending. Coffin ultimately declined the engagement. The plaintiffs designated Jason Freeman approximately three weeks after the deadline and sought leave for the late designation. They also sought to abate the malpractice case until the Bexar County litigation concluded or, alternatively, to continue the trial for additional discovery. The trial court denied all three requests, prompting the plaintiffs to seek mandamus relief.
The Court’s Holding
The Court of Appeals denied mandamus relief, holding that the relators failed to show the trial court clearly abused its discretion. The court concluded that the relators did not establish good cause under Texas Rule of Civil Procedure 193.6 for Freeman’s late designation because they provided no evidence of their pre-deadline diligence in securing Coffin’s commitment. Coffin’s designation expressly stated that formal retention remained pending, allowing the trial court to find that Coffin was merely a placeholder rather than a retained expert who unexpectedly became unavailable.
The court also held that the trial court could reasonably find unfair surprise or prejudice because Freeman had not provided a report and could not be deposed until after discovery closed, leaving little time for expert challenges and dispositive motions. Abatement was not required because the relators alleged existing damages, including litigation costs, and the parallel suits did not force them to take inconsistent positions. Because the expert and abatement rulings were not abuses of discretion, the court found no special circumstances permitting mandamus review of the ordinarily unreviewable denial of a continuance.
Chief Justice Golemon dissented, reasoning that Coffin’s withdrawal supplied good cause to designate Freeman and that a brief continuance could have cured any prejudice. The majority withdrew its July 9, 2026 opinion, substituted this opinion, and denied rehearing, en banc consideration, temporary relief, and the mandamus petition.
Key Takeaways
- A timely expert designation may not establish diligence when it states that the expert’s formal retention is still pending and the record does not document efforts to secure the expert before the deadline.
- A replacement expert’s late designation can unfairly prejudice an opponent even when the proposed opinions overlap with those previously disclosed, particularly when the expert cannot be deposed before discovery and motion deadlines.
- Pending related litigation does not require abatement of a malpractice action when the plaintiff alleges existing, ascertainable damages and concurrent litigation does not compel inconsistent positions.
Why It Matters
The decision underscores that parties seeking relief from Texas’s automatic-exclusion rule must build a record showing diligent efforts before the expert deadline, not merely prompt action after a proposed expert declines to testify. Counsel should obtain a firm commitment, disclose the expert’s materials and opinions adequately, and preserve evidence of the retention timeline.
The divided opinion also illustrates disagreement over how Texas courts should apply good cause when an expert becomes unavailable. The majority emphasized strict compliance and prejudice to the opposing party, while the dissent favored adjudication on the merits through substitution and a short continuance.