Shielding the Shadow: 14th Court Rules 18.001 Counteraffiants are Immune from Deposition Under Consulting Expert Privilege
Opinion by Chief Justice Christopher, 14-25-00757-CV, January 29, 2026.
Synopsis
The Fourteenth Court of Appeals held that experts who author counteraffidavits under Texas Civil Practice and Remedies Code Section 18.001 are protected by the consulting expert privilege, provided they are not designated as testifying experts and their work is not reviewed by a testifying expert. The trial court’s order compelling the depositions of these “shadow” experts constituted a clear abuse of discretion because the mere service of a counteraffidavit does not waive the privilege or transform a consultant into a discoverable witness.
Relevance to Family Law
While Section 18.001 is most frequently litigated in personal injury matters, its application in Family Law is significant, particularly in high-conflict custody cases involving significant medical or psychological treatment costs, or in property disputes where a spouse seeks reimbursement for medical debts. This ruling provides a strategic roadmap for family law practitioners to challenge the reasonableness and necessity of medical expenses—such as a child’s intensive therapy or a party’s elective surgeries—without exposing their consulting experts to the rigors and costs of pretrial depositions, effectively shielding the defense’s strategy from early discovery.
Case Summary
Fact Summary
The underlying litigation involved a motor vehicle accident where the plaintiffs sought to establish the reasonableness and necessity of their medical expenses through Section 18.001 affidavits. In response, the defendants served five counteraffidavits. One counteraffiant was designated as a testifying expert for trial. The remaining four, however, were not designated to testify, had no firsthand knowledge of the plaintiffs’ treatment, and their work had not been reviewed by the designated testifying expert. The plaintiffs moved to compel the depositions of these four “consulting” counteraffiants, arguing that by serving the counteraffidavits, the defendants had placed the experts’ mental impressions at issue and waived any applicable privilege. The trial court agreed, ordering the defendants to produce the experts for deposition or face the striking of their counteraffidavits. The defendants subsequently sought mandamus relief.
Issues Decided
The central issue was whether a party may compel the deposition of a consulting expert who authored an 18.001 counteraffidavit but who has not been designated as a testifying expert and whose opinions have not been reviewed by a testifying expert.
Rules Applied
The court relied on the Texas Rules of Civil Procedure 192.3(e) and 192.7, which distinguish between “testifying experts” (subject to broad discovery) and “consulting experts” (whose work is generally protected). The court also applied Texas Civil Practice and Remedies Code Section 18.001, noting that the statute serves as a procedural vehicle for streamlining evidence but does not inherently alter the discovery rules regarding privileged consultants. Finally, the court applied the standard for mandamus relief under Walker v. Packer, finding that an order compelling discovery of privileged information lacks an adequate remedy by appeal.
Application
In its analysis, the Fourteenth Court of Appeals rejected the notion that the filing of a counteraffidavit creates an automatic waiver of the consulting expert privilege. The court observed that the counteraffiants met the definition of consulting experts under Rule 192.7(d) because they were retained in anticipation of litigation but were not designated to testify. The court emphasized that the policy behind the privilege is to allow a party to evaluate its case with expert assistance without fear that the opposition will reap the benefits of that labor. Because the defendants had not designated these four individuals as testifying witnesses, and because the designated testifying expert (Dr. Barrash) had not reviewed their specific work or opinions, the protections of Rule 192.3(e) remained fully intact. The court noted that the plaintiffs’ desire to “learn the basis” of the counteraffidavits did not override the clear procedural protections afforded to consultants.
Holding
The court held that the trial court abused its discretion by compelling the depositions of the non-testifying counteraffiants. Because the counteraffiants were protected by the consulting expert privilege, the order to produce them for deposition exceeded the permissible scope of discovery.
The court further held that mandamus relief was appropriate because a discovery order that compels the production of privileged information or vitiates a party’s ability to present a defense cannot be adequately remedied on appeal. The court conditionally granted the writ of mandamus, directing the trial court to vacate its order compelling the depositions.
Practical Application
This case confirms that practitioners can use 18.001 counteraffidavits as a defensive shield without necessarily opening the door to a “fishing expedition” regarding the expert’s underlying methodology or mental impressions. In family law, if you are challenging a claim for medical reimbursement or the cost of a private evaluator’s services, you can hire a consultant to draft a counteraffidavit to force the other side to bring in live testimony. As long as you do not designate that consultant to testify at final trial and ensure your other testifying experts do not rely on their work, that consultant remains immune from deposition. This allows for a low-cost, high-protection method of contesting financial claims.
Checklists
Maintaining the Shield
- Ensure the counteraffiant is never designated as a “testifying expert” in any scheduling order or disclosure.
- Confirm that your testifying experts (e.g., a primary forensic accountant or a medical doctor) do not review or rely upon the specific work product or counteraffidavit of the consultant.
- Verify the counteraffiant has no firsthand “fact witness” knowledge of the underlying medical treatment or services provided to the parties or children.
Defeating a Motion to Compel
- Object to deposition notices on the basis of TRCP 192.3(e) and the consulting expert privilege.
- Prepare a privilege log if required, specifically identifying the expert’s status as purely consulting.
- Highlight to the court that 18.001 is a procedural vehicle, not a waiver of the rules of discovery.
Citation
In re Jose Francisco Quintero and JQ Brick Repair & Restoration Services, LLC, No. 14-25-00757-CV (Tex. App.—Houston [14th Dist.] Jan. 29, 2026, orig. proceeding).
Full Opinion
Family Law Crossover
In the context of a Texas divorce or suit affecting the parent-child relationship (SAPCR), this ruling can be weaponized to challenge “medical necessity” claims for expensive, non-traditional therapies or elective procedures. For instance, if a Petitioner mother files an 18.001 affidavit for $50,000 in specialized pediatric therapy, the Respondent father can serve a counteraffidavit from a consulting psychologist. Under this ruling, the father can effectively “kill” the mother’s 18.001 shortcut—forcing her to bring in a live witness at trial—while the father’s own psychologist remains protected from deposition. This creates a strategic advantage by increasing the opponent’s trial costs and evidentiary hurdles without exposing the defense’s own expert to pretrial scrutiny.
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