Can I be forced to produce my consulting expert if I file a counteraffidavit in response to expert testimony?
This question has been addressed in 2 Texas court opinions:
In Re Jose Francisco Quintero and JQ Brick Repair & Restoration Services, LLC
COA14 — January 29, 2026
In a mandamus proceeding, the Fourteenth Court of Appeals addressed whether experts who author counteraffidavits under Texas Civil Practice and Remedies Code Section 18.001 are protected from deposition by the consulting expert privilege. The trial court had ordered the depositions of four experts who provided counteraffidavits but were not designated as testifying witnesses. Analyzing Texas Rules of Civil Procedure 192.3(e) and 192.7, the appellate court determined that because the experts were not designated to testify and their work was not reviewed by any testifying experts, they remained privileged consultants. The court held that serving a counteraffidavit does not constitute a waiver of the consulting expert privilege, and thus the trial court abused its discretion by compelling the depositions.
Litigation Takeaway
“Attorneys can effectively challenge the reasonableness of medical or professional expenses by using Section 18.001 counteraffidavits from consulting experts who remain immune from deposition, so long as those experts are never designated to testify and their work product is not shared with testifying experts.”
David and Rebecca Bowen v. Texas Fair Plan Association
COA01 — February 19, 2026
In *Bowen v. Texas Fair Plan Association*, homeowners sued their insurance provider following a claim denial. The insurer filed a no-evidence motion for summary judgment, and the homeowners responded with affidavits from two experts. However, the homeowners had previously filed an amended expert designation that omitted these specific experts. The court analyzed Texas Rule of Civil Procedure 193.6, determining that an amended designation supersedes previous lists; by omitting the experts, the homeowners effectively de-designated them. The court held that the trial court did not abuse its discretion by striking the expert affidavits and affirming a take-nothing summary judgment, as the remaining evidence was unauthenticated and insufficient to create a fact issue.
Litigation Takeaway
“Always cross-reference your summary judgment evidence with your most recent Rule 194.2 expert designations; amending your witness list to "clean up" for trial can accidentally de-designate the experts you need to survive a no-evidence motion, resulting in the exclusion of their testimony.”