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March 27, 2026 Get Citation Alerts Download PDF Add Note

Diamond Hydraulics, Inc. v. Gac Equipment, LLC D/B/A Austin Crane Service

Texas Supreme Court

• Citations: None known
• Docket Number: 24-1049
• Judges: Sullivan

• Disposition: The Court reverses the court of appeals' judgment and remands the case to the trial court.

• Opinion

• Authorities (3)

• Cited By (0)

• Summaries (0)

• Similar Cases (1.2K)

• PDF

Disposition

The Court reverses the court of appeals' judgment and remands the case to the trial court.

Lead Opinion

                        by Sullivan

Supreme Court of Texas
══════════
No. 24-1049
══════════

Diamond Hydraulics, Inc.,
Petitioner,

v.

GAC Equipment, LLC d/b/a Austin Crane Service,
Respondent

═══════════════════════════════════════
On Petition for Review from the
Court of Appeals for the Third District of Texas
═══════════════════════════════════════

Argued December 4, 2025

JUSTICE SULLIVAN delivered the opinion of the Court.

This is the case of the bent cylinder. Shortly before trial, an
expert witness for Diamond Hydraulics, Inc. changed jobs, left the State,
and refused to testify. Diamond promptly moved to substitute a new
expert. But the district court denied the motion and made Diamond try
its case without any expert testimony. That was an abuse of discretion.
Good cause is a demanding standard, not an impossible one. We reverse
the judgment of the court of appeals and remand the case for a new trial.
I
GAC Equipment, LLC, doing business as Austin Crane Service,
hired Diamond to repair one of its cranes. Diamond rebuilt the crane’s
cylinder, which later bent while lifting a bridge. Diamond blamed poor
maintenance and improper operation; Austin Crane blamed Diamond.
Austin Crane hired an engineering firm to inspect the cylinder
and investigate the cause of its failure. Austin Crane then sued
Diamond for breach of contract and breach of warranty, arguing that
Diamond failed to properly repair the cylinder with suitable materials.
Diamond sought to inspect the cylinder, but this request and other
discovery issues were hotly contested.
Both sides were up against the clock. Under the local rules, the
parties were required to make their expert designations by February 10,
2020. Diamond met the deadline, designating Dr. John Behrendt as its
testifying expert. But Austin Crane still hadn’t agreed to let Diamond
inspect the cylinder to investigate the cause of the failure. Diamond was
eventually able to test the cylinder in August 2021—more than two
years into the litigation, and just months before the scheduled trial.
Both parties made untimely expert designations. Diamond
withdrew Dr. Behrendt and replaced him with Dr. Kevin Macfarlan,
who worked at KnightHawk Engineering, Inc., the firm Diamond hired
to test the cylinder. This switch came 540 days past the
expert-designation deadline, and Austin Crane deposed Dr. Macfarlan
just 13 days before the scheduled trial. Austin Crane then made a late
designation of its own—this time with a rebuttal expert, Dr. Jim
Wiethorn. Though its designation was 609 days late, Austin Crane
argued that its tardiness was a consequence of Diamond’s own late

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designation. Diamond objected and requested a continuance to allow
time for a deposition. The district judge didn’t grant the continuance,
but instead asked the parties whether they could figure things out
within the week. If the parties couldn’t make things work, Diamond
could reargue the continuance on Monday. Ultimately, the district court
continued the case and rescheduled the trial for February 28, 2022.
When February 2022 arrived, the district court reset the case
again to accommodate its busy docket. Before the trial could begin,
Dr. Macfarlan quit his job at KnightHawk, left the State, and refused to
testify. Diamond promptly notified Austin Crane and attempted to
substitute Dr. Michael Hoerner in Dr. Macfarlan’s place. Dr. Hoerner
worked at the same engineering firm as Dr. Macfarlan and helped
prepare the relevant expert report. But he was a different type of
engineer and served as the head of the firm’s materials lab.
Austin Crane opposed the substitution, suggesting instead that
Dr. Macfarlan could testify in person or by “Zoom.” Now 952 days past
the deadline, Diamond served a supplemental disclosure substituting
Dr. Hoerner as its testifying expert, filed an emergency motion for leave
to supplement its disclosures, and stipulated that Dr. Hoerner held the
same opinions as Dr. Macfarlan. Diamond attached an affidavit from
Dr. Macfarlan that stated:
• “I am no longer employed with KnightHawk Engineering,
Inc.”
• “I accepted a different position and started at this new
position on August 22, 2022. For this position, I have left
the State of Texas and reside in Hamilton County, Ohio. I
do not have any current plans to return to Texas.”

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• “I am not available to testify as an expert witness in Cause
No. 19-1077-C425, GAC Equipment, LLC, d/b/a Austin
Crane Service v. Diamond Hydraulics, Inc., in the 425th
Judicial District Court in Williamson County, Texas set for
a jury trial starting October 3, 2022.”
Just 17 days before trial, the district court heard Diamond’s motion. It
encouraged counsel to get in touch with Dr. Macfarlan to confirm what
remained possible and requested supplemental briefing on the issue.
The district court denied the motion at the next pretrial hearing.
Diamond then orally moved for a continuance to give itself time to file a
mandamus petition. The district court denied that motion, too, and the
court of appeals denied Diamond’s ensuing mandamus petition and
motion for emergency stay. At trial, the district court denied Diamond’s
motion for reconsideration and another motion for continuance.
So the trial began and Diamond had no choice but to proceed
without a causation expert. The jury ultimately found for Austin Crane
on both the contract claim and the warranty claim. Diamond appealed,
arguing that the district court abused its discretion by refusing to allow
the late expert designation. The court of appeals affirmed. We granted
Diamond’s petition for review.

II
Under Texas Rule of Civil Procedure 193.6, a party can’t offer the
testimony of an expert who wasn’t timely identified. Tex. R. Civ. P.
193.6(a); Jackson v. Takara, 675 S.W.3d 1, 6 (Tex. 2023). There are two
exceptions to this general prohibition. A party may still offer the
testimony if a district court determines that either (1) good cause existed
for the failure, or (2) the failure will not unfairly surprise or prejudice

4
the other party. See Tex. R. Civ. P. 193.6(a). The party who failed to
designate the expert on time has the burden of proving that one of the
exceptions applies. Tex. R. Civ. P. 193.6(b). Furthermore, a district
court’s ruling excluding testimony can be overturned only if it was an
abuse of discretion. Fort Brown Villas III Condo. Ass’n v. Gillenwater,
285 S.W.3d 879, 881 (Tex. 2009). A court abuses its discretion by “acting
arbitrarily and unreasonably or misapplying the law to the established
facts of the case.” Huynh v. Blanchard, 694 S.W.3d 648, 674 (Tex. 2024).

A
Our opinions about late expert designations predate Rule 193.6.
Under that rule’s predecessor, Rule 215(5), we analyzed a series of cases
involving untimely designated witnesses who were allowed to testify
anyway. See Alvarado v. Farah Mfg. Co., 830 S.W.2d 911, 914 (Tex.
1992) (collecting cases). At that time, lower courts stressed the goal of
deciding cases on their merits, even at the rule’s expense. Id. This Court
sought to restrain that impulse in Alvarado.
Like the cases before it, Alvarado involved a failed witness
disclosure where the witness testified anyway. Id. at 912. While we
acknowledged a preference for resolving cases on the merits, we also
reasoned that “it is not in the interest of justice to apply the rules of
procedure unevenly or inconsistently.” Id. at 914. Rule 215(5) meant
what it said: courts must exclude testimony from untimely disclosed
witnesses unless a party could show “good cause.”
This Court was even then considering whether and how to reform
Rule 215(5). Id. at 915. We appointed task forces to study the issue and
recommend revisions. Id. Because those revisions weren’t yet complete,

5
we “adhere[d] to the language of the rule and our consistent precedent”
for the time being. Id.
We didn’t wait long. In 1999, the substance of Rule 215(5) was
reformed by the promulgation of new Rule 193.6. Whereas Rule 215(5)
allowed courts to admit untimely disclosed evidence only if good cause
was shown, the new rule added a second exception to the prohibition
against late expert evidence. Rule 193.6(a) now states in full:
A party who fails to make, amend, or supplement a discovery
response, including a required disclosure, 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.
Tex. R. Civ. P. 193.6(a). So while Rule 193.6 gave judges a second path
for admitting untimely disclosed evidence, it did nothing to change the
existing “good cause” option.

B
Though the “good cause” standard may not be precise, it is
demanding. In Alvarado, we warned that relaxing this standard would
“impair its purpose,” which “is to require complete responses to
discovery so as to promote responsible assessment of settlement and
prevent trial by ambush.” 830 S.W.2d at 914–15. And we reiterated
that one “should not be excused from the requirements of the rule
without a strict showing of good cause.” Id. at 915. These same
principles animate our understanding of Rule 193.6 today.

6
But however rigorous the rule’s first exception remains in the
wake of Rule 193.6’s promulgation, it is not strong enough to justify the
district court’s decision in this case. The good-cause requirement is
neither so loose as to “impair its purpose,” nor so insurmountable as to
be a dead letter. Id. To be sure, finding this middle ground will not
always be easy. Trial courts must make tough calls. But this call should
not have been hard, for four reasons.
1. Dr. Macfarlan’s unavailability was out of Diamond’s control.
Only a little more than a month before a long-awaited trial that had
been reset twice already, Dr. Macfarlan suddenly left the State with no
plans to return. He flatly refused to testify and signed an affidavit
stating as much. And after he left the State, Dr. Macfarlan was no
longer within subpoena range.
2. Diamond tried its best to get Dr. Macfarlan to show up to trial.
Diamond’s lawyers negotiated with him and pursued other options. But,
as Diamond told the district judge, it became clear that Dr. Macfarlan
had “a new job, and new obligations,” and was “just not going to appear.”
True, we’ve said that inadvertence of counsel, lack of surprise, and
uniqueness of the excluded evidence are not, alone, enough to establish
good cause. Alvarado, 830 S.W.2d at 915. But this isn’t a case about
careless counsel. Diamond didn’t recklessly miss its deadline, or drop
the ball in response to Dr. Macfarlan’s departure. When Diamond
learned the distressing news, it promptly notified opposing counsel,
sought to offer a new expert, and suggested boundaries on the new
expert’s testimony to limit any prejudice to Austin Crane.

7
This might’ve been a harder case had Diamond chosen the path of
passivity. A party’s good-faith efforts will support a finding of good cause.
See Clark v. Trailways, Inc., 774 S.W.2d 644, 647 (Tex. 1989). Conversely,
a party who doesn’t try to minimize prejudice to the other side, or who
fails to make good-faith efforts to secure its witness’s testimony, will not
have demonstrated good cause for a substitution. But Diamond didn’t
stand idly by. When it learned that Dr. Macfarlan was refusing to testify
as planned, Diamond immediately sought a solution, only to be frustrated
by circumstance and by Austin Crane’s unwillingness to negotiate.
3. The issue of causation—on which Dr. Macfarlan was supposed
to testify—was the cornerstone of this case. The parties used the bulk
of their time in discovery and at trial to research and debate what caused
the crane to buckle. Austin Crane’s experts said one thing; Diamond’s
said another. This wasn’t the type of issue that could be clarified by lay
testimony. Causation turned on highly technical matters of metallurgy.
So it’s unsurprising that Diamond took steps to prove its theory. It
retained an engineering firm to support its work, tested the bent
cylinder as soon as Austin Crane allowed, and eventually designated one
of the engineers as its testifying expert. But, shortly before trial, this
vital expert refused to testify. We leave to a future case a decision on
whether a party could make an untimely designation of a less central
expert. The critical importance of expert testimony here erases any
doubt that Diamond had good cause for its untimely expert designation.
4. All of this is reason enough to find good cause, so the trial court
abused its discretion by failing to properly apply the law to the facts of
this case. See Huynh, 694 S.W.3d at 674. But a court can also abuse its

8
discretion by “acting arbitrarily and unreasonably,” which the district
court did by subjecting Austin Crane and Diamond to disparate
treatment. Id. Austin Crane complains about Diamond’s tardiness, yet
Diamond was not the only party to make a late designation. Austin
Crane did too: It designated its rebuttal expert, Dr. Wiethorn, the day
before the (first) pretrial conference, which was more than 600 days
after the deadline. The district court allowed Austin Crane’s untimely
designation over Diamond’s objection, so Diamond asked the court for a
continuance to give it more time to depose the new expert. Rather than
granting the continuance, the court asked the parties to figure out the
issue within the week, adding that Diamond could reargue the
continuance on Monday if necessary. We’ve searched the record in vain
for a good explanation as to why sauce for the goose couldn’t have been
sauce for the gander. The trial court’s response to the first untimely
designation would’ve worked the second time around: allow a deposition
of the new expert shortly before trial. The disparate treatment of the
two late designations was arbitrary.

C
Austin Crane’s counterarguments don’t hold up. It first disputes
the underlying premise that Dr. Macfarlan was unable to testify, finding
his affidavit unpersuasive. Austin Crane maintains that Dr. Macfarlan
said only that he was unable to testify as an expert witness for the
particular trial on October 3, 2022, while saying nothing about his
unwillingness to participate in another proceeding, whether later in
time or by “Zoom.” Austin Crane’s hyperliteral reading of the affidavit
misses the mark. Though Dr. Macfarlan’s language may not be perfectly

9
clear, it’s clear enough. Rule 193.6(b) allows courts to look to the entire
record to determine if good cause exists—not just to affidavits. Tex. R.
Civ. P. 193.6(b); see also Jackson, 675 S.W.3d at 6 (noting that “nothing
in the text of Rule 193.6 requires the trial court’s finding to be supported
by specific evidence in the record when it is otherwise substantiated by
counsel’s uncontested representations to the trial court”). And here, the
entire record and common sense point to the same conclusion:
Dr. Macfarlan was not going to testify.
Austin Crane next attributes Diamond’s problems to Diamond’s
own strategic errors. For example, both Austin Crane and the court of
appeals contend that Diamond could’ve asked questions of its own
witness during his deposition and that the failure to do so was its own
fault. Diamond can’t be faulted, however, for failing to anticipate
Dr. Macfarlan’s unavailability. Lawyers usually save questions of their
own witnesses until trial—why give away a sneak peak of your trial
theories? Nor was it a solution for Diamond to use a transcript
containing only opposing counsel’s questions. Many failures could
conceivably defeat an otherwise persuasive argument for good cause. A
failure to prophesy a witness’s future unavailability is not one of them.
Furthermore, while a deposition transcript may be helpful evidence, it
is no substitute for in-person expert testimony. The ability to offer some
form of evidence is not, by itself, enough to negate a finding of good
cause. In this battle of the experts, a deposition wouldn’t have been
enough, even if Diamond anticipated Dr. Macfarlan’s absence.
Finally, Austin Crane argues that Diamond fails to satisfy the
second exception in Rule 193.6 because the late designation would

10
unfairly surprise or prejudice it. But Rule 193.6(a) uses the disjunctive
“or” to join its two exceptions. Because we hold that there is good cause
for the untimely designation, we need not consider whether Austin
Crane was unfairly surprised or prejudiced.

III
The district court abused its discretion in finding that Diamond
lacked good cause for its late expert designation. Rule 193.6(a)’s
good-cause standard is a demanding one, and a district court’s discretion
in this field is significant. Nevertheless, that standard was met here.
The judgment of the court of appeals is therefore reversed, and the case
is remanded for a new trial.

James P. Sullivan
Justice

OPINION DELIVERED: March 27, 2026

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