The De-Designation Trap: How Amending Your Expert List Can Accidentally Kill Your Summary Judgment Evidence
David and Rebecca Bowen v. Texas Fair Plan Association, 01-23-00514-CV, February 19, 2026.
On appeal from County Civil Court at Law No. 1, Harris County, Texas.
Synopsis
The First Court of Appeals affirmed a take-nothing summary judgment, holding that a trial court does not abuse its discretion by striking expert affidavits when those experts were omitted from a party’s amended designation of witnesses. Because the de-designated experts were properly excluded and the remaining evidence was either unauthenticated or irrelevant, the non-movants failed to produce more than a scintilla of evidence to survive a no-evidence challenge.
Relevance to Family Law
In the context of high-stakes divorce and property litigation, expert designations are frequently amended as valuations change or as mental health professionals are refined. This ruling serves as a critical warning: the moment you file an amended expert designation that drops a previously named expert, you likely forfeit the right to use that expert’s affidavit or reports to defeat a No-Evidence Motion for Summary Judgment. For family law practitioners dealing with characterization disputes or reimbursement claims, a “clerical” omission in a supplemental disclosure could inadvertently strip the record of the only evidence necessary to prove a prima facie case.
Case Summary
Fact Summary
The Appellants, David and Rebecca Bowen, sued their insurance provider following the denial of a homeowners’ claim. Early in the litigation, the Bowens designated two experts: an estimator (Gadrow) and an appraiser (Barton). The insurer eventually filed a no-evidence motion for summary judgment (MSJ), challenging every element of the Bowens’ contract and extra-contractual claims.
In their response to the MSJ, the Bowens relied heavily on an affidavit from Gadrow and a declaration from Barton. However, prior to the hearing, the Bowens had served an “Amended Designation of Expert Witnesses” that named two entirely different experts and omitted Gadrow and Barton. The insurer objected to the MSJ evidence, arguing that because these experts were no longer designated, their testimony must be stricken. The insurer also pointed out that Gadrow had been “too ill” to be deposed, meaning they were prejudiced by the inability to cross-examine him. Furthermore, the Bowens attached various documents—including the insurance policy and demand letters—without proper authentication. The trial court struck all of the Bowens’ evidence and granted the take-nothing summary judgment.
Issues Decided
The court addressed whether the trial court abused its discretion in striking the affidavits of de-designated experts and whether it was proper to grant a no-evidence summary judgment when the remaining response evidence was unauthenticated, irrelevant, or inadequately briefed on appeal.
Rules Applied
The Court applied Texas Rule of Civil Procedure 166a(i), which governs no-evidence summary judgments, shifting the burden to the non-movant to produce more than a scintilla of evidence. It also relied on Rule 193.6, which mandates the exclusion of evidence not timely disclosed unless there is good cause or a lack of unfair surprise/prejudice. Finally, the Court invoked Texas Rule of Appellate Procedure 38.1(i), noting that a party waives error if they fail to provide substantive legal analysis or citations to authority regarding specific evidentiary rulings.
Application
The court’s analysis focused on the finality of amended designations. When the Bowens filed their amended list, it superseded their previous designations. By omitting Gadrow and Barton, those experts were effectively de-designated. The Court of Appeals found that the trial court acted within its discretion to strike their affidavits because the Bowens offered no explanation for the omission and the insurer was prejudiced by its inability to depose the witnesses.
Regarding the remaining evidence—such as the insurance policy (Exhibit H) and the demand letter (Exhibit A)—the court found that the Bowens failed to meet the basic requirements of summary judgment practice. They did not authenticate the documents through affidavits or discovery responses, and they failed to explain how these documents specifically created a fact issue on the challenged elements of their claims. On appeal, the Bowens’ brief was found “inadequate” because it merely stated the trial court was wrong without providing a legal framework or analysis to rebut the trial court’s specific findings on authentication and relevance.
Holding
The Court of Appeals held that the trial court did not abuse its discretion in striking the expert affidavits. Because the experts were no longer designated at the time of the hearing and the insurer had been unable to depose them, the evidence was properly excluded under the Rules of Civil Procedure.
The Court further held that the summary judgment was proper. Without the expert testimony, the Bowens were left with unauthenticated and irrelevant exhibits. Since unauthenticated documents do not constitute competent summary judgment evidence, the Bowens failed to produce the “more than a scintilla” of evidence required to defeat a no-evidence motion.
Practical Application
This case is a lesson in the “law of unintended consequences” during the discovery phase. If you are preparing a response to a No-Evidence MSJ, you must cross-reference your exhibit list with your most recent Rule 194.2 disclosures. If you have “cleaned up” your witness list to save costs or narrow your trial strategy, you may have accidentally “cleaned” your summary judgment record of its only supporting evidence. Furthermore, the opinion reiterates that “attaching” a document is not “offering” evidence; without a sponsoring affidavit or a self-authenticating mechanism, the document is a legal nullity in an MSJ proceeding.
Checklists
Preserving Expert Summary Judgment Evidence
- Audit the Designation: Before filing an MSJ response, verify that every expert providing an affidavit is currently listed in your active Designation of Experts.
- Avoid “Silent” De-designation: If you must substitute an expert, consider whether you need to retain the prior expert as a “consultant” or keep them on the list until the MSJ stage is cleared.
- Address Deposition Issues: If an expert is unavailable for deposition (e.g., due to illness), move for a continuance or a protective order rather than simply omitting them from a list, to avoid claims of prejudice.
- Good Cause Proffer: If you inadvertently omit an expert, be prepared to prove “good cause” or “lack of unfair surprise” under Rule 193.6 at the MSJ hearing.
Summary Judgment Exhibit Authentication
- Business Records Affidavits: Ensure all third-party documents (bank statements, medical records, appraisals) are supported by a completed Business Records Affidavit filed at least 30 days before the hearing.
- Sponsoring Affidavits: Use the client or a custodian to testify to the authenticity of documents that are not self-authenticating.
- Discovery Tie-ins: Use “Authentication by Production” if the documents were produced by the opposing party, but explicitly cite the rule in your response.
- Relevance Mapping: For every exhibit, include a narrative in the MSJ response explaining exactly which element of which cause of action the document supports.
Citation
David and Rebecca Bowen v. Texas Fair Plan Association, No. 01-23-00514-CV (Tex. App.—Houston [1st Dist.] Feb. 19, 2026, no pet. mem. op.).
Full Opinion
Family Law Crossover
This ruling is a potent weapon for “gutting” an opponent’s property claims. If a spouse is asserting a complex separate property reimbursement claim and relies on an old forensic accounting report, check their latest witness list. If they have designated a new accountant but are still relying on the old accountant’s affidavit for MSJ purposes, you should move to strike that evidence under Bowen.
Additionally, use this case to challenge “dumpster fire” MSJ responses. If the opposing counsel merely attaches a stack of unauthenticated bank statements or a curriculum vitae without a sponsoring expert affidavit, Bowen provides the roadmap for a trial court to strike the entirety of that evidence and grant a take-nothing judgment on property characterization or custody fitness. In Texas family law, where the “adequate time for discovery” is often compressed, the rigor of summary judgment evidence rules cannot be ignored.
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