IN RE: Jose Francisco QUINTERO and JQ Brick Repair & Restoration Services (2026)

OPINION

In this original proceeding, relators Jose Francisco Quintero and JQ Brick Repair & Restoration Services, LLC (the “Defendants”) seek mandamus relief from the trial court's order compelling them to produce experts who authored counteraffidavits under section 18.001 of the Texas Civil Practice and Remedies Code for oral deposition. See Tex. Civ. Prac. & Rem. Code § 18.001. The question presented is whether the plaintiffs have a right to depose these consulting experts when they are not fact witnesses, they have not been designated as testifying experts, and their opinions have not been reviewed by a testifying expert. Because our answer to that question is no, we conditionally grant mandamus relief.

Background

This original proceeding arises from a lawsuit filed by real parties in interest Edith Landaverde and Nancy Herrera (the “Plaintiffs”) against Defendants to recover damages for personal injuries sustained in a motor vehicle accident.

During discovery, Plaintiffs provided Defendants with medical records and billing affidavits in accordance with section 18.001. See Tex. Civ. Prac. & Rem. Code § 18.001. This statute allows claimants to establish the reasonableness of the amount charged for a service (and the necessity of that service) at trial by affidavit, provided the affidavit is not controverted by a counteraffidavit submitted by another party. See id. § 18.001(b).

Thereafter, Defendants provided Plaintiffs with counteraffidavits from five individuals, who offered their opinions regarding the reasonableness and necessity of the medical services and charges that Plaintiffs attribute to their alleged injuries from the motor vehicle accident. One of the counteraffidavits is from Dr. Jay Martin Barrash, a neurosurgeon who will testify on Defendants’ behalf at trial. According to the expert disclosure, Dr. Barrash's testimony will address the nature and extent of the Plaintiffs’ alleged injuries. His testimony will also address the reasonableness and necessity of the medical services and charges that Plaintiffs attribute to their alleged injuries.

The remaining counteraffidavits are from Dr. Elizabeth Jones, Dr. Daniel Yul Kim, Dr. Adam Zelinski, and Ricky Merritt (the “counteraffiants”). None of these counteraffiants have provided medical treatment or services to Plaintiffs. Defendants have not designated them as expert witnesses who will testify on their behalf at trial. And Defendants’ testifying expert, Dr. Barrash, has not reviewed the opinions expressed by the counteraffiants. Thus, the counteraffiants’ sole role in the case—apart from assisting Defendants in preparing for trial—was to review Plaintiffs’ medical records and provide counteraffidavits under section 18.001 to controvert the initial affidavits submitted by Plaintiffs.

The record demonstrates that after receiving the counteraffidavits, Plaintiffs did not move to strike them. Instead, Plaintiffs requested Defendants make the counteraffiants available for oral deposition. But Defendants argued they did not have to make the counteraffiants available for deposition, claiming the consulting expert privilege applied and that the counteraffiants had no first-hand knowledge of relevant facts. According to Defendants, the consulting expert privilege applied because (1) counteraffidavits under section 18.001 are not evidence; (2) the counteraffiants have not been designated as testifying experts; and (3) Dr. Barrash has not reviewed the opinions expressed by the counteraffiants.

Plaintiffs then filed a motion to compel the depositions, asserting that the depositions are necessary to learn the basis of the counteraffidavits and that such information is discoverable. Plaintiffs also asserted that by serving counteraffidavits under section 18.001, Defendants made the mental impressions and opinions of the counteraffiants an issue in the case. Plaintiffs thus argued Defendants waived the consulting expert privilege concerning the matters discussed in the counteraffidavits.

The trial court granted Plaintiffs’ motion to compel and ordered Defendants to present the counteraffiants for deposition. The trial court stated that if Defendants failed to comply with the order, it would strike their counteraffidavits. Defendants seek mandamus relief from this order.¹

Standard of Review

Mandamus is an extraordinary remedy that is available only when the relator shows both that (1) the trial court clearly abused its discretion; and (2) no adequate remedy by appeal exists. In re Sherwin-Williams Co., 668 S.W.3d 368, 370 (Tex. 2023) (orig. proceeding) (per curiam). A trial court abuses its discretion if it reaches a decision so arbitrary and unreasonable as to amount to a clear and prejudicial error of law. Walker v. Packer, 827 S.W.2d 833, 839 (Tex. 1992) (orig. proceeding). A trial court has no discretion in determining what the law is or in applying the law to the facts; thus, a clear failure by the trial court to analyze or apply the law correctly constitutes an abuse of discretion. Id. at 840.

The scope of discovery is generally within the trial court's discretion. In re CSX Corp., 124 S.W.3d 149, 152 (Tex. 2003) (orig. proceeding) (per curiam). However, “[a] discovery order that compels production beyond the rules of procedure is an abuse of discretion for which mandamus is the proper remedy.” In re Nat'l Lloyds Ins. Co., 449 S.W.3d 486, 488 (Tex. 2014) (orig. proceeding) (per curiam). Moreover, as relevant here, “mandamus relief is appropriate when a trial court issues an order under section 18.001 that vitiates or severely compromises a party's defense by precluding the party that offered the counteraffidavit from otherwise challenging the reasonableness or necessity of the claimant's medical expenses at trial.” In re Guevara, 624 S.W.3d 920, 921 (Tex. 2021) (orig. proceeding) (per curiam) (citing In re Allstate Indem. Co., 622 S.W.3d 870, 883 (Tex. 2021) (orig. proceeding)).

Analysis

We conclude that the trial court abused its discretion in compelling Defendants to present the counteraffiants for deposition because the order exceeds the scope of permissible discovery. The scope of discovery is defined as “any matter that is not privileged and is relevant to the subject matter of the pending action, whether it relates to the claim or defense of the party seeking discovery or the claim or defense of any other party.” Tex. R. Civ. P. 192.3(a). This definition includes information that will be inadmissible at trial if that information “appears reasonably calculated to lead to the discovery of admissible evidence.” Id. Although the scope of discovery is broad, it is limited by the legitimate interests of the opposing party in avoiding overly broad requests, harassment, or disclosure of privileged information. Axelson, Inc. v. McIlhany, 798 S.W.2d 550, 553 (Tex. 1990) (orig. proceeding).

One privilege that protects certain information from being discovered is the consulting expert privilege. The Texas Rules of Civil Procedure recognize two types of experts in discovery: “testifying experts” and “consulting experts.” See Tex. R. Civ. P. 192.7. “A testifying expert is an expert who may be called to testify as an expert witness at trial.” Tex. R. Civ. P. 192.7(c). “A consulting expert is an expert who has been consulted, retained, or specially employed by a party in anticipation of litigation or in preparation for trial, but who is not a testifying expert.” Tex. R. Civ. P. 192.7(d). As relevant here, a party may discover the subject matter on which a testifying expert will testify, the relevant facts known to the testifying expert, the testifying expert's mental impressions and opinions formed or made in connection with the case, any methods used by the testifying expert to derive his mental impressions and opinions, and any biases of the testifying expert. Tex. R. Civ. P. 192.3(e). But a party cannot discover the same information about a consulting expert unless the consulting expert's mental impressions and opinions have been reviewed by a testifying expert. See id. “The policy behind the consulting expert privilege is to encourage parties to seek expert advice in evaluating their case and to prevent a party from receiving undue benefit from an adversary's efforts and diligence.” Tom L. Scott, Inc. v. McIlhany, 798 S.W.2d 556, 559 (Tex. 1990) (orig. proceeding).

A party waives the consulting expert privilege if it voluntarily discloses the privileged information to an open court. In re Ortuno, No. 14-08-00457-CV, 2008 WL 2855028, at *2 (Tex. App.—Houston [14th Dist.] July 24, 2008, orig. proceeding) (mem. op.); see In re Ford Motor Co., 211 S.W.3d 295, 301 (Tex. 2006) (orig. proceeding) (per curiam) (“Discovery privileges are waived by voluntary disclosure by the holder of the privilege.”). A party may also waive the consulting expert privilege by offensive use. See, e.g., Tom L. Scott, 798 S.W.2d at 559–60 (holding redesignation of testifying experts as consulting experts in a multi-party case to be ineffective because it occurred pursuant to a settlement agreement that purported to give defendants control over settling plaintiffs’ experts, constituting “an offensive and unacceptable use of discovery mechanisms intended to defeat the salutary objectives of discovery”). The offensive-use doctrine prohibits a party who is seeking affirmative relief from maintaining an action, and at the same time maintaining “evidentiary privileges that protect from discovery outcome determinative information not otherwise available” to the other party. Tex. Dep't of Pub. Safety Officers Ass'n v. Denton, 897 S.W.2d 757, 761 (Tex. 1995). But since privileges represent society's desire to protect certain relationships, the offensive-use waiver should not lightly be found. See Republic Ins. Co. v. Davis, 856 S.W.2d 158, 163 (Tex. 1993).

In the case before us, both sides agree that the counteraffiants qualify as consulting experts since they have not been designated to testify as expert witnesses at trial. However, they disagree on whether the fact that the consulting experts signed section 18.001 counteraffidavits entitles Plaintiffs to depose the consultants. Plaintiffs argue that Defendants cannot use the counteraffidavits “as a sword to challenge Plaintiffs’ damages,” and then hide behind the consulting expert privilege when Plaintiffs seek information from the counteraffiants concerning the counteraffidavits. See Republic Ins., 856 S.W.2d at 163 (stating that a privilege may be waived if it is used as a sword rather than a shield). On the other hand, Defendants argue they did not waive the consulting expert privilege merely by serving the counteraffidavits on Plaintiffs in accordance with section 18.001.

We agree with Defendants that serving counteraffidavits by consulting experts under section 18.001 does not by itself subject the counteraffiants to deposition. Section 18.001 does not speak to depositions, and whether or not the counteraffiants may be deposed is determined by reference to applicable procedural rules. The mandamus record demonstrates that the counteraffiants have not been designated as experts who will testify at trial. See Tex. R. Civ. P. 192.3(e) (providing that a party may discover specific information regarding a testifying expert). Furthermore, Defendants’ testifying expert, Dr. Barrash, has not reviewed the opinions expressed by the counteraffiants. See id. (“The identity, mental impressions, and opinions of a consulting expert whose mental impressions and opinions have not been reviewed by a testifying expert are not discoverable.”). And the consulting experts are not “persons with knowledge of relevant facts.” See Tex. R. Civ. P. 192.3(c). Thus, the trial court clearly abused its discretion by compelling the consulting experts’ depositions and conditionally striking the counteraffidavits should the consulting experts refuse to appear for deposition.

Plaintiffs claim that Defendants waived the consulting expert privilege through offensive use, asserting that once a party serves a counteraffidavit under section 18.001, “the affiant's opinions are no longer protected by the consulting expert privilege and are subject to discovery.” But we reject this assertion as contrary to the Legislature's intent in enacting section 18.001, which is “to streamline proof of the reasonableness and necessity of medical expenses.” Haygood v. De Escabedo, 356 S.W.3d 390, 397 (Tex. 2011).

Under Texas law, a claimant seeking to recover past medical expenses must prove the amounts paid or incurred are reasonable and necessary. In re Chefs’ Produce of Hous., Inc., 667 S.W.3d 297, 301 (Tex. 2023) (orig. proceeding) (per curiam); In re Liberty Cnty. Mut. Ins. Co., 612 S.W.3d 137, 139 (Tex. App.—Houston [14th Dist.] 2020, orig. proceeding). A claimant can prove reasonableness and necessity of past medical expenses through (1) expert testimony or (2) an affidavit prepared and served in compliance with section 18.001. Chefs’ Produce, 667 S.W.3d at 301; Liberty, 612 S.W.3d at 140. The supreme court has explained that section 18.001 is a “purely procedural” statute, allowing a claimant to rely on an uncontroverted affidavit setting forth the necessity and reasonableness of medical expenses, thereby eliminating the need to present expert testimony on those issues at trial. Allstate, 622 S.W.3d at 881. An uncontroverted affidavit that complies with the statute “is sufficient evidence to support a finding of fact ․ that the amount charged was reasonable or that the service was necessary.” Tex. Civ. Prac. & Rem. Code § 18.001(b). But if the affidavit is controverted by a compliant counteraffidavit, “the claimant may not reach the jury on the reasonableness and necessity of her medical expenses without expert testimony.” Chefs’ Produce, 667 S.W.3d at 301.

Accordingly, a compliant counteraffidavit places the parties in the same position that they would have been if the claimant had never submitted the initial affidavit under section 18.001. See id. (stating that a compliant counteraffidavit effectively makes the claimant's evidentiary burden on that issue “the same as if the initial affidavit had never been served”); see also Hong v. Bennett, 209 S.W.3d 795, 804 (Tex. App.—Fort Worth 2006, no pet.) (holding that trial court erred in admitting section 18.001 affidavit and counteraffidavit at trial in lieu of requiring expert testimony on the matter). Here, the record demonstrates that Plaintiffs’ initial affidavits under section 18.001 were controverted by five counteraffidavits. As a result, Plaintiffs must present expert testimony to establish the reasonableness and necessity of their medical expenses, and the parties are now in the same position they would have been had Plaintiffs never served the initial affidavits. Thus, Defendants did not waive the consulting expert privilege by serving counteraffidavits in accordance with section 18.001.²

However, even if we assume Defendants waived the consulting expert privilege, we still conclude that requiring them to present the counteraffiants for deposition exceeded the scope of permissible discovery. Section 18.001 requires counteraffidavits “give reasonable notice of the basis on which the party serving it intends at trial to controvert the claim reflected by the initial affidavit ․” Tex. Civ. Prac. & Rem. Code § 18.001(f). Plaintiffs moved to compel the depositions of the counteraffiants “to discover the basis of their counter affidavit.” But the supreme court has clarified that the “reasonable notice” requirement for controverting an initial affidavit is “focus[ed] not on the substance of the testimony, but only on the qualifications of the affiant.” Allstate, 622 S.W.3d at 880 (“Nothing in the text of section 18.001(f) requires that an opinion expressed in a counteraffidavit must meet the admissibility requirements for expert testimony.”). Thus, “determining whether a counteraffidavit meets section 18.001(f)’s reasonable-notice standard does not require a court to assess reliability of the expert's opinions under Rule 702 or [E.I. du Pont de Nemours & Co. v. Robinson, 923 S.W.2d 549 (Tex. 1995)].” Id. Because section 18.001 does not permit trial courts to strike counteraffidavits for unreliability, we conclude that deposing the counteraffiants will not yield any additional information that could aid the parties in resolving their dispute. Accordingly, the depositions fall outside the scope of permissible discovery.

To be sure, “persons who gain factual information by virtue of their involvement relating to the incident or transaction giving rise to the litigation do not qualify as consulting-only experts because the consultation is not their only source of information.” Axelson, 798 S.W.2d at 554. Thus, “[t]he factual knowledge and opinions acquired by an individual who is an expert and an active participant in the events material to the lawsuit are discoverable.” Id. However, factual information is not discoverable from consulting-only experts “whose only source of factual information was the consultation.” Id. Here, Defendants claim that none of the counteraffiants have provided medical treatment or services to Plaintiffs, and that the only source of the counteraffiants’ factual information came from medical records. Plaintiffs do not dispute this. Thus, the counteraffiants are not fact witnesses and cannot be deposed on those grounds. See id. (holding that consulting expert privilege protects consulting expert's identity, mental impressions, and opinions, but not the underlying facts).

In their response, Plaintiffs claim mandamus relief is unwarranted because Defendants have not demonstrated that they served legally sufficient counteraffidavits. Section 18.001 provides that a counteraffidavit “must give reasonable notice of the basis on which the party serving it intends at trial to controvert the claim reflected by the initial affidavit and must be taken before a person authorized to administer oaths.” Tex. Civ. Prac. & Rem. Code § 18.001(f). It provides that a counteraffidavit “must be made by a person who is qualified, by knowledge, skill, experience, training, education, or other expertise, to testify in contravention of all or part of any of the matters contained in the initial affidavit.” Id. It also requires a counteraffidavit be served on each party involved in the litigation by a specific deadline. See generally id. § 18.001.

Plaintiffs assert that the record does not contain the counteraffidavits and does not indicate that they were submitted by the statutory deadline. But the appropriate remedy for a defective or untimely counteraffidavit is to file a motion with the trial court to strike the counteraffidavit, rather than moving to compel the deposition of the counteraffiant, as Plaintiffs did here. See Allstate, 622 S.W.3d at 881, 884 n.9 (acknowledging trial courts may strike affidavits that do not comply with section 18.001); Nye v. Buntin, No. 03-05-00214-CV, 2006 WL 2309051, at *3 (Tex. App.—Austin Aug. 11, 2006, pet. denied) (mem. op.) (holding that exclusion was a reasonable sanction for an untimely initial affidavit under section 18.001); see also Tex. R. Civ. P. 215.3 (providing that trial court may impose sanctions on party that abuses discovery process in seeking, making, or resisting discovery, including prohibiting designated matters from being introduced into evidence). Moreover, Plaintiffs did not challenge the counteraffidavits as defective or untimely in the trial court; thus, Defendants’ compliance with section 18.001 is not a disputed issue properly before us in this mandamus proceeding. See In re Ron, 582 S.W.3d 486, 495 n.6 (Tex. App.—Houston [14th Dist.] 2018, orig. proceeding [mand. denied]) (“Arguments not presented to the trial court will not be considered in the review of a petition for writ of mandamus.”). Therefore, we reject Plaintiffs’ claim that Defendants are not entitled to mandamus relief due to the counteraffidavits being defective or untimely.

Conclusion

We conclude that the trial court abused its discretion in ordering Defendants to present the counteraffiants for deposition and in conditionally striking the counteraffidavits if the consulting experts failed to appear. We also conclude that Defendants have no adequate remedy by appeal. Accordingly, we conditionally grant their petition for writ of mandamus and direct the trial court to vacate the portion of its June 4, 2025 order on Plaintiffs’ motion to compel that requires Defendants present the counteraffiants for deposition.³ We are confident the trial court will comply, and the writ will issue only if it does not.

FOOTNOTES

1.   The trial court also denied Defendants’ motion for reconsideration.

2.   We recognize the El Paso Court of Appeals reached a contrary result on the question presented. See In re Mendez, 234 S.W.3d 105, 110–11 (Tex. App.—El Paso 2007, orig. proceeding [mand. denied]) (holding that relator waived consulting expert privilege when she voluntarily disclosed consulting expert's opinions in counteraffidavit under section 18.001). Because we believe it is contrary to the plain language of section 18.001, as well as applicable discovery rules, we respectfully decline to follow our sister court's holding in In re Mendez.

3.   We leave the portion of the order requiring Defendants to present Dr. Jay Martin Barrash for deposition intact.

Tracy Christopher, Chief Justice