Expert Witness Disclosure
The procedural framework for identifying expert witnesses in Texas civil litigation, governed principally by Tex. R. Civ. P. 195. Rule 195 requires fuller disclosure for an expert retained by, employed by, or otherwise subject to the control of a party than for other testifying experts. Rule 192.3(e) separately protects consulting experts whose work a testifying expert has not reviewed. Unless the court orders otherwise, Rule 195.2 requires designation 90 days before the end of the discovery period for a party seeking affirmative relief and 60 days before the end of the discovery period for other parties.
Expert witness disclosure in Texas civil litigation is governed principally by Rule 195 of the Texas Rules of Civil Procedure, which establishes the procedural framework for identifying and disclosing testifying experts. Rule 195 distinguishes testifying experts who are retained by, employed by, or otherwise subject to the control of the party from other testifying experts, with different disclosure obligations for each. Consulting experts are addressed separately in Rule 192.3(e). Non-compliance with Rule 195 disclosure deadlines can lead to exclusion under Rule 193.6, which can decide the case where expert testimony is required.
Rule 195 disclosure categories
Retained or controlled testifying experts: for an expert retained by, employed by, or otherwise subject to the control of the party, the party must disclose, without awaiting a request: (1) the expert's name, address, and telephone number; (2) the subject matter of the testimony; (3) the general substance of the expert's mental impressions and opinions and a brief summary of their basis; (4) all documents, tangible things, reports, models, or data compilations provided to, reviewed by, or prepared by or for the expert in anticipation of testifying; (5) the expert's current resume and bibliography and qualifications, including publications from the previous 10 years; (6) a list of other cases in which the expert testified at trial or by deposition in the previous four years; and (7) a statement of the compensation to be paid. The expert is subject to deposition by the opposing party. Non-retained testifying experts: testifying experts not retained for the litigation (e.g., treating physicians, fact witnesses with expertise) face lesser disclosure requirements but must still be timely identified. Consulting experts: under Rule 192.3(e), a consulting expert's identity, mental impressions, and opinions are not discoverable unless a testifying expert has reviewed the consulting expert's mental impressions or opinions, in which case the information listed in Rule 192.3(e) becomes discoverable.
Disclosure deadlines
Rule 195.2's default deadlines depend on whether the party seeks affirmative relief: (1) party seeking affirmative relief, designation 90 days before the end of the discovery period; (2) all other parties, designation 60 days before the end of the discovery period. Parties may agree to alternative schedules; trial courts may modify by scheduling order. Many cases proceed under a docket control order that sets its own expert deadlines. Under the default schedule, the deadlines run from the end of the discovery period, not from the trial date.
The exclusion sanction
Rule 193.6 imposes an automatic exclusion sanction for failure to timely disclose: a party who fails to comply with Rule 195 may not introduce the undisclosed expert's testimony unless the court finds (a) good cause for the failure or (b) that the failure will not unfairly surprise or unfairly prejudice the other parties. The party offering the evidence bears that burden, and the court may instead grant a continuance. A finding of good cause or of no unfair surprise or unfair prejudice must be supported by the record.
Expert depositions
Once disclosed, retained testifying experts are subject to deposition. Rule 195.3 sets the timing. A party seeking affirmative relief must make its expert available reasonably promptly after designation, or, if a report is produced with the designation, reasonably promptly after all other experts are designated. Other parties' experts are made available after the affirmative-relief experts on the same subject have been deposed. Deposition discovery probes: (1) qualifications and CV; (2) materials reviewed; (3) opinions and the basis for each; (4) methodologies and reasoning; (5) work performed for prior clients; (6) compensation. The deposition is the principal vehicle for developing reliability challenges and for identifying weaknesses to exploit at trial.
Practical drafting, the expert report
Expert reports in Texas commercial litigation typically include: (1) introduction, engagement scope, qualifications, methodology; (2) facts and assumptions, what the expert was asked to assume or accept; (3) analysis, application of methodology to facts; (4) opinions, clear statements of conclusions with supporting reasoning; (5) damages or other quantitative analysis, calculations with all assumptions disclosed; (6) materials reviewed, comprehensive list; (7) compensation and prior testimony, fee structure, rate, prior cases. Texas does not require a written report in every case. Rule 195.5(b) lets the court order unrecorded opinions reduced to tangible form, and under Rule 195.3 producing a report with the designation affects when the expert must be made available for deposition.
Where expert testimony is needed to prove an element, exclusion under Rule 193.6 can decide the case. The default deadlines in Rule 195.2 apply unless a docket control order or other order sets different dates. A testifying expert's opinions may also face a reliability challenge under Rule 702 and Robinson, apart from the disclosure requirements of Rule 195.