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CAUSENO. 2012-30259
BRENDA SIEBERT IN THE DISTRICT COURT OF
ve
KELLY ACQUISITION, INC.,
DAVID KELLY,
THE FITNESS CONTRACTORS, SPEED
INCORPORATED AND
SPEED DODSON
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KINGWOOD ATHLETIC CLUB, § | HARRIS COUNTY, TEXAS
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§ 165TH JUDICIAL DISTRICT
DEFENDANT KELLY ACQUISITION, INC. AND DAVID KELLY’S MOTION TO
STRIKE UNTIMELY DESIGNATED TESTIFYING EXPERTS
COME NOW Defendants Kelly Acquisition, Inc. and David Kelly (collectively the
“Kelly Defendants”) and file this Motion To Strike Untimely Designated Testifying Experts and
respectfully show the following:
I. Background and Procedural History
On or about May 24, 2010, Plaintiff Brenda Siebert alleges that, while using an assisted
chin dip machine in the Kingwood Athletic Club, a cable on the machine broke, causing her to
lose her balance and fall.! She claims that the fall caused her various injuries. However, despite
her claims that this fall caused a rotator-cuff injury, in October 2010 a MRI revealed no tear.
Siebert embarked upon a course of conservative treatment and, without more diagnostic or other
objective information, Dr. Stanislaw performed shoulder surgery in September 2012. To
confirm a successful surgery, Siebert underwent a post-surgical shoulder MRI in April 2013 that
showed her rotator cuff had healed, but notably a new injury was discovered — a labral tear in her
shoulder. In July 2013, she underwent a lumbar MRI which showed no herniation.
' Plaintiff's Fourth Amended Original Petition.
"Id.This case has proceeded under a level 3 discovery plan, and the Court has signed various
orders setting and amending the discovery deadlines. Trial was scheduled for November 11
2013,? but this Court granted summary judgment that disposed of all remaining parties and all
claims on October 18, 2013. Upon reinstatement of the case, this Court signed a new docket
control order which set forth that Siebert was to designate any testifying experts by January 31,
2014.4 The Court also required that all motions to challenge expert testimony be filed by July 3,
2014,
Despite the fact that this case arises out of an accident that allegedly occurred On May
24, 2010, and for which Siebert has continually received medical treatment for the past 27
months, on August 11, 2014, over six months after the expert designation deadline had passed,
over one month after the deadline to challenge experts had passed, and only four days before the
end of the discovery period, Siebert served her Fifth Amended Responses to Defendants’
Request for Disclosure and designated the following testifying experts for the first time:
1) Hussein A. Elkousy, M.D., Fondren Orthopedic (shoulder)
2) Yigal Samocha M.D., Fondren Orthopedic (lower back)
3) Bruce Mosley, M.D., Houston Methodist Orthopedic (shoulder)
4) Michael T. McCann, M.D., Texas Medical Center, (lower back)
5) H. Burt Spangler, J.D., Green Oak Diagnostics (MRIS
Each of these doctors was retained to address areas already treated during the first 44-month
period after the accident. Additionally, several of her treating doctors, inclusive of Drs. Elkousy
3 The court subsequently reset trial for January 20, 2014 and ordered Siebert to designate her experts on October 15.
* Exhibit A (Docket Control Order).
* Id.
® Exhibit B (Fifth Amended Responses to Defendants’ Request for Disclosure).
2and Samocha, are part of the same practice group as Dr. Stanislaw, her original orthopedic
doctor. It follows then that if Siebert’s medical treatment required their services, nothing
prevented her from seeing these late-designated doctors at some time during the 44-month period
when they could have been timely designated. Instead, the untimely designations of these five
doctors coincide with a late filed petition in which Siebert re-alleged, after deleting such
allegations in the earlier petition, that she is entitled to recover damages for alleged future
medical billings.’ These untimely disclosed experts, apparently designated for the sole purpose
of ambushing the defendants and increasing Siebert’s damage model, should be struck and
barred from testifying at the upcoming trial of this matter.
Il. Argument and Authorities
The Court’s docket control order required parties seeking affirmative relief to disclose
their expert witnesses by January 31, 2014.° The order states “[fJailure to timely respond will be
governed by Rule 193.6,”° which provides:
(a) Exclusion of evidence and exceptions. A party who fails to make, amend, or
supplement a discovery response in a timely manner may not introduce in
evidence the material or information that was not timely disclosed, or offer the
testimony of a witness (other than a named party) who was not timely identified,
unless the court finds that:
(1) there was good cause for the failure to timely make, amend, or
supplement the discovery response; or
(2) the failure to timely make, amend, or supplement the discovery
response will not unfairly surprise or unfairly prejudice the other parties.
(b) Burden of establishing exception. The burden of establishing good cause or
the lack of unfair surprise or unfair prejudice is on the party seeking to introduce
7 Compare Plaintiff's Fourth Amended Original Petition with Plaintiff's Third Amended Original Petition.
* Exhibit A (Docket Control Order).
° Id.the evidence or call the witness. A finding of good cause or of the lack of unfair
surprise or unfair prejudice must be supported by the record.
Tex. R. Civ. P. 193.6.
Accordingly, pursuant to the rules of civil procedure, Siebert’s untimely designation of
experts mandates that the experts be struck and prohibited from testifying at trial. Id.; Sharp v.
Broadway Nat. Bank, 784 S.W.2d 669, 671 (Tex. 1990) (“The sanction for failing to comply
with [predecessor to rule 193.6] is the automatic exclusion of the unidentified [expert] witness’
testimony.”). It is only if Siebert establishes, with evidence, that she had “good cause for the
failure to timely” designate her experts or that her failure to timely designate her experts “will
not unfairly surprise or unfairly prejudice” any of the various defendants in this case, that the
Court may properly permit Siebert’s untimely designated experts to testify. Id.
Siebert Cannot Meet Her Burden To Prove Good Cause Or Lack Of Unfair
Surprise/Prejudice.
Siebert first designated (1) Hussein A. Elkousy, M.D., Fondren Orthopedic; (2) Yigal
Samocha M.D., Fondren Orthopedic; (3) Bruce Mosley, M.D., Houston Methodist Orthopedic;
(4) Michael T. McCann, M.D., Texas Medical Center; and (5) H. Burt Spangler, J.D., Green Oak
Diagnostics as testifying experts on August 11, 2014, over six months after the Court’s January
31, 2014 expert designation deadline.'° Accordingly, it is indisputable that the experts were
untimely designated, and the Court would commit reversible error by allowing the experts to
testify unless Siebert establishes either “good cause” for her failure to timely designate or that
the defendants will not be unfairly surprised or unfairly prejudiced by the untimely designated
expert’s testimony. TEX. R. Civ. P. 193.6; see also Alvarado v. Farah Mfg. Co., Inc., 830
S.W.2d 911, 914 (Tex. 1992) (“the trial court has no discretion to admit testimony excluded by
'° Compare Exhibit A (Docket Control Order) with Exhibit B (Fifth Amended Responses to Defendants’ Request for
Disclosure).
4the rule without a showing of good cause”). Siebert cannot prove that she meets either
exception.
Siebert Lacks Good Cause For Her Untimely Disclosure.
The good-cause exception allows a trial judge to excuse a party’s failure to comply with
discovery obligations in difficult or impossible circumstances. Harris Cnty. v. Inter Nos, Ltd.,
199 S.W.3d 363, 367 (Tex. App.—Houston [1st Dist.] 2006, no pet.). The following factors,
standing alone, do not constitute good cause: the inadvertence of counsel, lack of surprise, and
the uniqueness of the excluded evidence. PopCap Games, Inc. v. MumboJumbo, LLC, 350
S.W.3d 699, 718 (Tex. App.—Dallas 2011, pet. denied).
Siebert alleges that she was injured on May 24, 2010, over four years ago.!!
Accordingly, Siebert had approximately 44 months after the date of her alleged injury to identify
and designate the experts she would require to prove her claims.’? In light of the approximately
44 month period from the time of her alleged injury to the time this Court required her to
designate her experts, Siebert can hardly contend in good faith that complying with the Court’s
expert designation deadline placed her in an unduly difficult or impossible situation. See Inter
Nos, Ltd., 199 8.W.3d at 367.
The purpose of rule 196.3 “is to require complete responses to discovery so as to promote
responsible assessment of settlement and prevent trial by ambush.” Alvarado v. Farah Mfg. Co.,
Inc., 830 S.W.2d 911, 914 (Tex. 1992) (interpreting predecessor rule). The Texas courts have
upheld trial courts’ exclusion of expert witness testimony under substantially similar
circumstances to those presented in this case. Fort Brown Villas III Condo. Ass'n, Inc. v.
‘| See Plaintiff's Fourth Amended Original Petition at 4
"2 Compare Plaintiff's Fourth Amended Original Petition at 4 with Exhibit A (Docket Control Order).
5Gillenwater, 285 S.W.3d 879, 882 (Tex. 2009) (holding party failed to show “good cause” where
it did not designate its expert until three days before the end of discovery and more than five
months after the expert designation deadline); see also Cunningham v. Columbia/St. David's
Healthcare Sys., L.P., 185 S.W.3d 7, 12 (Tex. App.—Austin 2005, no pet.) (holding that trial
court properly excluded expert testimony where expert was designated over two months after the
expert designation deadline had passed).
Moreover, even to the extent Siebert contends that she could not have designated the
specific experts earlier; such an excuse would fail to establish “good cause” under the facts of
this case. Siebert alleges that she fell from an exercise machine on May 24, 2010, and she has
been undergoing treatment for at least the past 27 months. None of the untimely designated
experts is treating any area of her body that has not been the subject of continuous treatment
since this case was filed. Again, Siebert had approximately 44 months to visit doctors and
identify the experts she needed to prove her case. Instead of doing so, she apparently decided to
wait until days before the close of the discovery period to even visit the doctors that she now
alleges will prove her damages."? Such ambush tactics are clearly designed to unfairly prevent
the defendants in this case from having the opportunity to engage in the discovery permitted by
the Texas Rules of Civil Procedure. Siebert had 44 months to visit the physicians she allegedly
needs to prove her case.'* There is simply no good cause to allow her additional time when she
has chosen to wait until four days before the close of discovery to disclose the identities of the
experts she intends to rely on at trial. Indeed, to allow Siebert to disclose the existence of these
experts four days before the close of discovery, when Siebert will be shielded from any proper
'3 See Exhibit B (Fifth Amended Responses to Defendants’ Request for Disclosure).
'* Exhibit A (Docket Control Order).discovery requests, constitutes a perversion of the rules of civil procedure and is exactly the type
of trial by ambush the rules are designed to avoid. There is simply no “good cause” to permit
Siebert to avoid the mandatory sanction imposed by the rules — exclusion of the untimely
designated experts’ testimony. See Tex. R. Civ. P. 193.6.
Siebert Cannot Establish A Lack Of Unfair Surprise Or Prejudice
Siebert also cannot establish that the Kelly Defendants will not be unfairly surprised or
unfairly prejudiced by her untimely designation. In evaluating whether unfair surprise or unfair
prejudice exists, the court should focus on “whether the [specific] evidence will cause unfair
surprise or prejudice, and not on whether the ‘issue’ to which the evidence is directed will
unfairly surprise or prejudice the other parties.” See Lopez v. La Madeleine of Tex., Inc., 200
S.W.3d 854, 862 (Tex. App.—Dallas 2006, no pet.). The fact that a party needs an expert to
establish its cause of action does not establish that other parties will not be unfairly surprised by
the late designation of an expert. Ersek v. Davis & Davis, P.C., 69 S.W.3d 268, 272 (Tex.
App.—Austin 2002, pet. denied). Moreover, offering other parties an opportunity to depose a
late-designated expert also does not ensure the absence of unfair surprise or prejudice. /d.
Siebert’s untimely designation of experts must be viewed in the context of this case. On
July 31, 2014, Siebert filed her third amended original petition in which she deleted all reference
to damages for future medical expenses.'* As a plaintiff is the master of its claims, the Kelly
Defendants reasonably understood that Siebert had abandoned her claims for future medicals.
However, on August 12, 2014, one day after she served notice of her untimely designated
'S See Plaintiff's Third Amended Original Petition.experts and a mere three days before the close of the discovery period, Siebert filed her Fourth
Amended Original Petition in which she reasserted claims for future medical expenses.'®
Because of Siebert’s untimely designation of the identified experts, a mere four days
before the close of discovery, none of the defendants in this case has ever had the opportunity to
depose the untimely designated experts or to craft any other discovery under which they could
determine what evidence the experts will offer. As no party, except potentially the plaintiff,
knows what evidence the untimely designated experts will be able to offer, it is axiomatic that
the defendants in this case will be unfairly surprised and prejudiced by the untimely
designations. See, e.g., Ersek v. Davis & Davis, P.C., 69 S.W.3d 268, 272 (Tex. App.—Austin
2002, pet. denied) (holding that a defendant is unfairly surprised and prejudiced where a plaintiff
attempts to offer evidence of an untimely designated expert because “[a] party is entitled to
prepare for trial assured that a witness will not be called because opposing counsel has not
(properly and timely] identified him or her... .”). In short, Siebert simply cannot meet her
burden to show that her untimely designation of experts four days before the close of the
discovery period will not unfairly surprise or prejudice the Kelly Defendants.
III. Conclusion and Prayer
WHEREFORE, PREMISES CONSIDERED, Defendants Kelly Acquisition, Inc. and
David Kelly pray that the Court grants their Motion To Strike Untimely Designated Testifying
Experts and strikes and bars from testifying Plaintiff Brenda Siebert’s untimely designated
experts (1) Hussein A. Elkousy, M.D., Fondren Orthopedic; (2) Yigal Samocha M.D., Fondren
Orthopedic; (3) Bruce Mosley, M.D., Houston Methodist Orthopedic; (4) Michael T. McCann,
'6 Compare Plaintiff's Third Amended Original Petition with Plaintiff's Fourth Amended Original Petition.
8M.D., Texas Medical Center; and (5) H. Burt Spangler, J.D., Green Oak Diagnostics, and grants
any other relief to which Defendants may be justly entitled.
Respectfully submitted,
MARTIN, DISIERE, JEFFERSON & WISDOM, L.L.P.
R. Andrew Schulz
State Bar No. 24033048
Robert T. Owen
State Bar No. 24060370
900 S. Capital of Texas Highway, Suite 425
Austin, Texas 78746
Telephone: (512) 610-4400
Facsimile: (512) 610-4401
ATTORNEYS FOR DEFENDANT
KELLY ACQUISITION, INC. AND
DAVID KELLYCERTIFICATE OF SERVICE
This is to certify that a true and correct copy of the above document has been served via
certified mail and/or facsimile this the 28" day of August 2014, upon the following counsel of
record:
James Martin
4429 Town Center Place
Kingwood, TX 77339
Attorney for Plaintiff
Craig Shivers, Jr.
RAMSEY & Murray, PC
800 Gessner Road, Suite 250
Houston, Texas 77024-4239
Attorneys for Defendants,
The Fitness Contractors,
Speed Incorporated and Speed Dodson
R. Andrew Schulz
10
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CAUSENO. 2012-30259 BRENDA SIEBERT IN THE DISTRICT COURT OF ve KELLY ACQUISITION, INC., DAVID KELLY, THE FITNESS CONTRACTORS, SPEED INCORPORATED AND SPEED DODSON § § KINGWOOD ATHLETIC CLUB, § | HARRIS COUNTY, TEXAS § § § § § 165TH JUDICIAL DISTRICT DEFENDANT KELLY ACQUISITION, INC. AND DAVID KELLY’S MOTION TO STRIKE UNTIMELY DESIGNATED TESTIFYING EXPERTS COME NOW Defendants Kelly Acquisition, Inc. and David Kelly (collectively the “Kelly Defendants”) and file this Motion To Strike Untimely Designated Testifying Experts and respectfully show the following: I. Background and Procedural History On or about May 24, 2010, Plaintiff Brenda Siebert alleges that, while using an assisted chin dip machine in the Kingwood Athletic Club, a cable on the machine broke, causing her to lose her balance and fall.! She claims that the fall caused her various injuries. However, despite her claims that this fall caused a rotator-cuff injury, in October 2010 a MRI revealed no tear. Siebert embarked upon a course of conservative treatment and, without more diagnostic or other objective information, Dr. Stanislaw performed shoulder surgery in September 2012. To confirm a successful surgery, Siebert underwent a post-surgical shoulder MRI in April 2013 that showed her rotator cuff had healed, but notably a new injury was discovered — a labral tear in her shoulder. In July 2013, she underwent a lumbar MRI which showed no herniation. ' Plaintiff's Fourth Amended Original Petition. "Id.This case has proceeded under a level 3 discovery plan, and the Court has signed various orders setting and amending the discovery deadlines. Trial was scheduled for November 11 2013,? but this Court granted summary judgment that disposed of all remaining parties and all claims on October 18, 2013. Upon reinstatement of the case, this Court signed a new docket control order which set forth that Siebert was to designate any testifying experts by January 31, 2014.4 The Court also required that all motions to challenge expert testimony be filed by July 3, 2014, Despite the fact that this case arises out of an accident that allegedly occurred On May 24, 2010, and for which Siebert has continually received medical treatment for the past 27 months, on August 11, 2014, over six months after the expert designation deadline had passed, over one month after the deadline to challenge experts had passed, and only four days before the end of the discovery period, Siebert served her Fifth Amended Responses to Defendants’ Request for Disclosure and designated the following testifying experts for the first time: 1) Hussein A. Elkousy, M.D., Fondren Orthopedic (shoulder) 2) Yigal Samocha M.D., Fondren Orthopedic (lower back) 3) Bruce Mosley, M.D., Houston Methodist Orthopedic (shoulder) 4) Michael T. McCann, M.D., Texas Medical Center, (lower back) 5) H. Burt Spangler, J.D., Green Oak Diagnostics (MRIS Each of these doctors was retained to address areas already treated during the first 44-month period after the accident. Additionally, several of her treating doctors, inclusive of Drs. Elkousy 3 The court subsequently reset trial for January 20, 2014 and ordered Siebert to designate her experts on October 15. * Exhibit A (Docket Control Order). * Id. ® Exhibit B (Fifth Amended Responses to Defendants’ Request for Disclosure). 2and Samocha, are part of the same practice group as Dr. Stanislaw, her original orthopedic doctor. It follows then that if Siebert’s medical treatment required their services, nothing prevented her from seeing these late-designated doctors at some time during the 44-month period when they could have been timely designated. Instead, the untimely designations of these five doctors coincide with a late filed petition in which Siebert re-alleged, after deleting such allegations in the earlier petition, that she is entitled to recover damages for alleged future medical billings.’ These untimely disclosed experts, apparently designated for the sole purpose of ambushing the defendants and increasing Siebert’s damage model, should be struck and barred from testifying at the upcoming trial of this matter. Il. Argument and Authorities The Court’s docket control order required parties seeking affirmative relief to disclose their expert witnesses by January 31, 2014.° The order states “[fJailure to timely respond will be governed by Rule 193.6,”° which provides: (a) Exclusion of evidence and exceptions. A party who fails to make, amend, or supplement a discovery response in a timely manner may not introduce in evidence the material or information that was not timely disclosed, or offer the testimony of a witness (other than a named party) who was not timely identified, unless the court finds that: (1) there was good cause for the failure to timely make, amend, or supplement the discovery response; or (2) the failure to timely make, amend, or supplement the discovery response will not unfairly surprise or unfairly prejudice the other parties. (b) Burden of establishing exception. The burden of establishing good cause or the lack of unfair surprise or unfair prejudice is on the party seeking to introduce 7 Compare Plaintiff's Fourth Amended Original Petition with Plaintiff's Third Amended Original Petition. * Exhibit A (Docket Control Order). ° Id.the evidence or call the witness. A finding of good cause or of the lack of unfair surprise or unfair prejudice must be supported by the record. Tex. R. Civ. P. 193.6. Accordingly, pursuant to the rules of civil procedure, Siebert’s untimely designation of experts mandates that the experts be struck and prohibited from testifying at trial. Id.; Sharp v. Broadway Nat. Bank, 784 S.W.2d 669, 671 (Tex. 1990) (“The sanction for failing to comply with [predecessor to rule 193.6] is the automatic exclusion of the unidentified [expert] witness’ testimony.”). It is only if Siebert establishes, with evidence, that she had “good cause for the failure to timely” designate her experts or that her failure to timely designate her experts “will not unfairly surprise or unfairly prejudice” any of the various defendants in this case, that the Court may properly permit Siebert’s untimely designated experts to testify. Id. Siebert Cannot Meet Her Burden To Prove Good Cause Or Lack Of Unfair Surprise/Prejudice. Siebert first designated (1) Hussein A. Elkousy, M.D., Fondren Orthopedic; (2) Yigal Samocha M.D., Fondren Orthopedic; (3) Bruce Mosley, M.D., Houston Methodist Orthopedic; (4) Michael T. McCann, M.D., Texas Medical Center; and (5) H. Burt Spangler, J.D., Green Oak Diagnostics as testifying experts on August 11, 2014, over six months after the Court’s January 31, 2014 expert designation deadline.'° Accordingly, it is indisputable that the experts were untimely designated, and the Court would commit reversible error by allowing the experts to testify unless Siebert establishes either “good cause” for her failure to timely designate or that the defendants will not be unfairly surprised or unfairly prejudiced by the untimely designated expert’s testimony. TEX. R. Civ. P. 193.6; see also Alvarado v. Farah Mfg. Co., Inc., 830 S.W.2d 911, 914 (Tex. 1992) (“the trial court has no discretion to admit testimony excluded by '° Compare Exhibit A (Docket Control Order) with Exhibit B (Fifth Amended Responses to Defendants’ Request for Disclosure). 4the rule without a showing of good cause”). Siebert cannot prove that she meets either exception. Siebert Lacks Good Cause For Her Untimely Disclosure. The good-cause exception allows a trial judge to excuse a party’s failure to comply with discovery obligations in difficult or impossible circumstances. Harris Cnty. v. Inter Nos, Ltd., 199 S.W.3d 363, 367 (Tex. App.—Houston [1st Dist.] 2006, no pet.). The following factors, standing alone, do not constitute good cause: the inadvertence of counsel, lack of surprise, and the uniqueness of the excluded evidence. PopCap Games, Inc. v. MumboJumbo, LLC, 350 S.W.3d 699, 718 (Tex. App.—Dallas 2011, pet. denied). Siebert alleges that she was injured on May 24, 2010, over four years ago.!! Accordingly, Siebert had approximately 44 months after the date of her alleged injury to identify and designate the experts she would require to prove her claims.’? In light of the approximately 44 month period from the time of her alleged injury to the time this Court required her to designate her experts, Siebert can hardly contend in good faith that complying with the Court’s expert designation deadline placed her in an unduly difficult or impossible situation. See Inter Nos, Ltd., 199 8.W.3d at 367. The purpose of rule 196.3 “is to require complete responses to discovery so as to promote responsible assessment of settlement and prevent trial by ambush.” Alvarado v. Farah Mfg. Co., Inc., 830 S.W.2d 911, 914 (Tex. 1992) (interpreting predecessor rule). The Texas courts have upheld trial courts’ exclusion of expert witness testimony under substantially similar circumstances to those presented in this case. Fort Brown Villas III Condo. Ass'n, Inc. v. ‘| See Plaintiff's Fourth Amended Original Petition at 4 "2 Compare Plaintiff's Fourth Amended Original Petition at 4 with Exhibit A (Docket Control Order). 5Gillenwater, 285 S.W.3d 879, 882 (Tex. 2009) (holding party failed to show “good cause” where it did not designate its expert until three days before the end of discovery and more than five months after the expert designation deadline); see also Cunningham v. Columbia/St. David's Healthcare Sys., L.P., 185 S.W.3d 7, 12 (Tex. App.—Austin 2005, no pet.) (holding that trial court properly excluded expert testimony where expert was designated over two months after the expert designation deadline had passed). Moreover, even to the extent Siebert contends that she could not have designated the specific experts earlier; such an excuse would fail to establish “good cause” under the facts of this case. Siebert alleges that she fell from an exercise machine on May 24, 2010, and she has been undergoing treatment for at least the past 27 months. None of the untimely designated experts is treating any area of her body that has not been the subject of continuous treatment since this case was filed. Again, Siebert had approximately 44 months to visit doctors and identify the experts she needed to prove her case. Instead of doing so, she apparently decided to wait until days before the close of the discovery period to even visit the doctors that she now alleges will prove her damages."? Such ambush tactics are clearly designed to unfairly prevent the defendants in this case from having the opportunity to engage in the discovery permitted by the Texas Rules of Civil Procedure. Siebert had 44 months to visit the physicians she allegedly needs to prove her case.'* There is simply no good cause to allow her additional time when she has chosen to wait until four days before the close of discovery to disclose the identities of the experts she intends to rely on at trial. Indeed, to allow Siebert to disclose the existence of these experts four days before the close of discovery, when Siebert will be shielded from any proper '3 See Exhibit B (Fifth Amended Responses to Defendants’ Request for Disclosure). '* Exhibit A (Docket Control Order).discovery requests, constitutes a perversion of the rules of civil procedure and is exactly the type of trial by ambush the rules are designed to avoid. There is simply no “good cause” to permit Siebert to avoid the mandatory sanction imposed by the rules — exclusion of the untimely designated experts’ testimony. See Tex. R. Civ. P. 193.6. Siebert Cannot Establish A Lack Of Unfair Surprise Or Prejudice Siebert also cannot establish that the Kelly Defendants will not be unfairly surprised or unfairly prejudiced by her untimely designation. In evaluating whether unfair surprise or unfair prejudice exists, the court should focus on “whether the [specific] evidence will cause unfair surprise or prejudice, and not on whether the ‘issue’ to which the evidence is directed will unfairly surprise or prejudice the other parties.” See Lopez v. La Madeleine of Tex., Inc., 200 S.W.3d 854, 862 (Tex. App.—Dallas 2006, no pet.). The fact that a party needs an expert to establish its cause of action does not establish that other parties will not be unfairly surprised by the late designation of an expert. Ersek v. Davis & Davis, P.C., 69 S.W.3d 268, 272 (Tex. App.—Austin 2002, pet. denied). Moreover, offering other parties an opportunity to depose a late-designated expert also does not ensure the absence of unfair surprise or prejudice. /d. Siebert’s untimely designation of experts must be viewed in the context of this case. On July 31, 2014, Siebert filed her third amended original petition in which she deleted all reference to damages for future medical expenses.'* As a plaintiff is the master of its claims, the Kelly Defendants reasonably understood that Siebert had abandoned her claims for future medicals. However, on August 12, 2014, one day after she served notice of her untimely designated 'S See Plaintiff's Third Amended Original Petition.experts and a mere three days before the close of the discovery period, Siebert filed her Fourth Amended Original Petition in which she reasserted claims for future medical expenses.'® Because of Siebert’s untimely designation of the identified experts, a mere four days before the close of discovery, none of the defendants in this case has ever had the opportunity to depose the untimely designated experts or to craft any other discovery under which they could determine what evidence the experts will offer. As no party, except potentially the plaintiff, knows what evidence the untimely designated experts will be able to offer, it is axiomatic that the defendants in this case will be unfairly surprised and prejudiced by the untimely designations. See, e.g., Ersek v. Davis & Davis, P.C., 69 S.W.3d 268, 272 (Tex. App.—Austin 2002, pet. denied) (holding that a defendant is unfairly surprised and prejudiced where a plaintiff attempts to offer evidence of an untimely designated expert because “[a] party is entitled to prepare for trial assured that a witness will not be called because opposing counsel has not (properly and timely] identified him or her... .”). In short, Siebert simply cannot meet her burden to show that her untimely designation of experts four days before the close of the discovery period will not unfairly surprise or prejudice the Kelly Defendants. III. Conclusion and Prayer WHEREFORE, PREMISES CONSIDERED, Defendants Kelly Acquisition, Inc. and David Kelly pray that the Court grants their Motion To Strike Untimely Designated Testifying Experts and strikes and bars from testifying Plaintiff Brenda Siebert’s untimely designated experts (1) Hussein A. Elkousy, M.D., Fondren Orthopedic; (2) Yigal Samocha M.D., Fondren Orthopedic; (3) Bruce Mosley, M.D., Houston Methodist Orthopedic; (4) Michael T. McCann, '6 Compare Plaintiff's Third Amended Original Petition with Plaintiff's Fourth Amended Original Petition. 8M.D., Texas Medical Center; and (5) H. Burt Spangler, J.D., Green Oak Diagnostics, and grants any other relief to which Defendants may be justly entitled. Respectfully submitted, MARTIN, DISIERE, JEFFERSON & WISDOM, L.L.P. R. Andrew Schulz State Bar No. 24033048 Robert T. Owen State Bar No. 24060370 900 S. Capital of Texas Highway, Suite 425 Austin, Texas 78746 Telephone: (512) 610-4400 Facsimile: (512) 610-4401 ATTORNEYS FOR DEFENDANT KELLY ACQUISITION, INC. AND DAVID KELLYCERTIFICATE OF SERVICE This is to certify that a true and correct copy of the above document has been served via certified mail and/or facsimile this the 28" day of August 2014, upon the following counsel of record: James Martin 4429 Town Center Place Kingwood, TX 77339 Attorney for Plaintiff Craig Shivers, Jr. RAMSEY & Murray, PC 800 Gessner Road, Suite 250 Houston, Texas 77024-4239 Attorneys for Defendants, The Fitness Contractors, Speed Incorporated and Speed Dodson R. Andrew Schulz 10