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Ersek v. Davis & Davis, P.C.

The trial court did not err in striking the affidavit of the plaintiff's expert, even though the plaintiff attempted to cure his failure to designate under Texas Rule of Civil Procedure 195.2 by supplementing his response identifying the expert after the deadline.

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Appellant Robert Ersek, M.D., sued Davis & Davis, P.C., appellee, alleging legal malpractice and violation of the Deceptive Trade Practices Act. *fn1 The trial court granted summary judgment for appellee. Appellant asserts two issues complaining that the trial court erred in excluding his expert witness affidavit and granting summary judgment in favor of appellee. We hold that the expert’s affidavit was properly excluded and affirm the trial court’s judgment.

FACTUAL AND PROCEDURAL BACKGROUND

Ersek sued Davis & Davis by filing his petition on November 12, 1999, alleging: (1) legal malpractice based on the firm’s negligent representation of him in a medical malpractice action; and (2) violation of the DTPA based on the firm’s misrepresentations regarding its competency to adequately represent Ersek in the underlying medical malpractice action. Francis A. Bradley and Mark A. Keene were the attorneys assigned by the firm to represent Ersek in the underlying action.

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