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Click here for the full text of this decision FACTS:Cherrie Cunningham, individually and as the next friend of her late father, Troy Conaster, filed suit against appellant Columbia/St. David’s Healthcare System, on May 29, 2003, alleging that the hospital’s medical negligence caused her father’s death. The trial court granted a no-evidence summary judgment in favor of Columbia, dismissing each of Cunningham’s medical malpractice claims. HOLDING:Affirmed. Cunningham argues that the rules of civil procedure governing discovery practices do not apply in summary judgment proceedings because such proceedings are wholly governed by Texas Rule of Civil Procedure 166a. The court declines to depart from its reasoning in Ersek v. Davis & Davis P.C., 69 S.W.3d 268 (Tex. App. – Austin 2002, pet. denied) and, therefore, holds that the rules requiring an expert to be designated before any testimony from that expert can be admitted apply in summary judgment proceedings, such that a nondesignated expert’s affidavit cannot be considered as summary judgment evidence absent a showing of good cause or a lack of unfair surprise or prejudice. The question then becomes whether Cunningham satisfied her burden to show either good cause for her untimely designation or a lack of unfair surprise or prejudice to Columbia. Cunningham contends that she established good cause with evidence that the failure to timely designate expert witness Dr. Charles Marable was an inadvertent mistake based on a miscommunication between her attorney and his legal assistant. Cunningham attached the legal assistant’s affidavit to her summary judgment response. Because lawyers are responsible for the actions of the legal assistants that they supervise, the procedural mistakes made by a legal assistant are imputed to the supervising attorney. The trial court’s determination that Cunningham’s excuse did not constitute good cause was not an abuse of discretion because it was in accordance with the law. Cunningham also urged that, despite her failure to designate Marable as a testifying expert witness, Columbia would not be unfairly surprised or prejudiced by the trial court’s consideration of Marable’s affidavit as summary judgment evidence because Marable’s 4590i report had been on file since August 2003, a year before Columbia filed its summary judgment motion. Because Cunningham concedes that she failed to designate Marable as an expert witness and because both her arguments on the existence of good cause and the lack of unfair surprise or prejudice are without merit, the court concludes that the trial court did not abuse its discretion in refusing to consider Marable’s affidavit as summary judgment evidence. Cunningham argues that even if she failed to carry her burden of establishing either good cause or a lack of unfair surprise or prejudice, the trial court erred by not granting her motion for continuance. Given Cunningham’s lack of diligence in designating an expert and her failure to provide an affidavit in support of her motion, we cannot say that the trial court abused its discretion by denying Cunningham a continuance. OPINION:Law, C.J.; Law, C.J., Patterson and Puryear, JJ.

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