The Houston Court of Appeals (14th) recently held that a party may not avoid exclusion of an undisclosed expert by simply calling the witness to rebut previous testimony.  Appellee failed to timely disclose an expert.  The trial court allowed the expert to testify at trial over appellant’s objection.  On appeal, the appellant argued that the witness should have been excluded pursuant to TRCP 193.6 because he was not designated timely.  The appellee argued the witness was only called to rebut appellant’s expert testimony.  The court of appeals held that although a party need not designate a rebuttal or impeachment witness whose testimony could not reasonably be anticipated before trial, the expert’s testimony went to damages that were "a focal point of the lawsuit."  The Court held the witness’ testimony could have been anticipated and, thus, the witness should have been disclosed.

Next the court of appeals considered whether the admission of the expert testimony was harmful error.  Because there was no other evidence on the issue, the Court held that the evidence was not cumulative, and the admission probably resulted in an improper judgment.   Accordingly, the court of appeals court reversed the award of damages and remanded the case for a retrial of damages only.  The court of appeals opinion in Jurek v. Herauf can be found at this link