Designation of Expert Witness Cases In Texas

In Tom L. Scott, Inc. v. McIlhany, 798 S.W.2d 556, 558 (Tex. 1990) the initial plaintiffs and certain third-party defendants designated six experts as testifying experts. 798 S.W.2d at 558. The experts were prepared to give damaging testimony against the original defendants, but on the morning the experts' depositions were to be taken, the defendants settled with the designating parties. Id. As a condition of the settlement, the defendants gained control of the experts. Id. The defendants then redesignated all six as consulting-only experts. Id. The supreme court held that the redesignation ran afoul of the policy underlying the rules of discovery: truth seeking. Scott, 798 S.W.2d at 560. In the course of its decision, the court went to some length to distinguish the case from others, particularly a decision made by the Fort Worth Court of Appeals. See Jones & Laughlin Steel, Inc. v. Schattman, 667 S.W.2d 352, 355-56 (Tex. App.--Fort Worth 1984, orig. proceeding). In Jones & Laughlin Steel, Inc. v. Schattman, 667 S.W.2d 352, 355-56 (Tex. App.--Fort Worth 1984, orig. proceeding), the expert in question was not designated as a consulting-only expert until after his deposition had commenced and after the court had granted a motion to compel him to answer questions regarding his expert opinions. Id. at 353, 355. The court of appeals held that, despite the last-minute nature of the designation, the trial court abused its discretion in ordering discovery of the expert's opinions and mental impressions "after he had been designated as a consultant." Id. at 356. The supreme court found Schattman distinguishable from Tom L. Scott because Shattman did not involve an agreement "between adversaries to suppress testimony. . . ." Tom L. Scott, 798 S.W.2d at 560 n. 8. Thus the court's narrow holding permitted "a testifying expert to be 'de-designated' so long as it is not part of 'a bargain between adversaries to suppress testimony' or for some other improper purpose." Castellanos, 945 S.W.2d at 240.