Section 18.001 is a provision of the Texas Civil Practice and Remedies Code which provides an alternative, and in theory cheaper, means by which a party, typically a plaintiff, can establish the reasonableness and necessity of past expenses in a claim for direct damages. In other words, Section 18.001 is a hearsay exception that allows a plaintiff to establish reasonableness and necessity of expenses by affidavit rather than by live expert testimony at trial.
The concept seems simple enough, but in practice the interpretation of the scope and effect of Section 18.001 varies widely from jurisdiction to jurisdiction. This 9-part blog series highlights 7 key things for you to know when dealing with 18.001 affidavits, including challenges you will face and guidance on avoiding costly mistakes.
#1 – First and most importantly – know your deadlines!
The 18.001 deadlines are no joke; they are clear, definite, and failing to respect them can dramatically impact your case. For the initial affidavit, the statute provides:
The party offering the affidavit in evidence or the party’s attorney must serve a copy of the affidavit on each other party to the case at least 30 days before the day on which evidence is first presented at the trial of the case. (emphasis added).
Understand that your deadlines still apply, even if opposing counsel misses his. For example, in one case, the plaintiff did not timely serve the 18.001 affidavits on the defendant and argued that her failure to timely file affidavits was harmless because the defendant filed his controverting-affidavit on time. The court didn’t buy it and held that a timely controverting-affidavit “does not cure the untimeliness” of the initial affidavit.[1]
For controverting parties, typically defendants, Section 18.001 provides:
A party intending to controvert a claim reflected by the affidavit must serve a copy of the counteraffidavit on each other party or the party’s attorney of record not later than 30 days after the day the party received a copy of the affidavit and at least 14 days before the day on which evidence is first presented at the trial of the case, or with leave of the court, at any time before the commencement of evidence at trial. (emphasis added).
Although controverting parties appear the have a little more flexibility than offering parties, treat the 30-day deadline with caution, or you may find yourself at trial precluded from contesting the reasonableness and necessity of services.
In the next part of this blog series we’ll discuss what to do when you receive 18.001 affidavits at the same time as an Original Petition and how to navigate the controverting affidavits obstacle course.
1. Nye v. Buntin, No. 03-05-00214-CV, 2006 Tex. App. LEXIS 7067, at *4 (Tex. App.-Austin 2006); Bituminous Cas. Corp. v. Cleveland, 223 S.W.3d 485, 492 (Tex. App.-Amarillo 2006).
