Last week, we introduced the importance of Section 18.001 of the Texas Civil Practice and Remedies Code and the impact it can play in litigation. We stressed the importance of knowing your deadlines.
This week, we’ll discuss strategies for responding to early affidavits and navigating the major pitfalls of controverting affidavits.
#2 – Yikes! I received 18.001 affidavits at the same time as the Original Petition, and I have less than 30 days to respond to both.
The strategy behind early production of 18.001 affidavits makes sense – catch opposing counsel off guard by serving her with 18.001 affidavits at the same time you serve her with the original suit, before discovery has started, and kick-start the 30-day clock for her to hire a controverting expert before she has even filed the Answer. Unfortunately, this strategy is 100% permissible under the current statute and may be picking up stream among savvy Plaintiff’s attorneys. So, as the Defendant, what can you do?
First, understand that you are under a 30-day deadline, and you should act accordingly. Under 18.001, this deadline applies unless the court grants leave. Accordingly, the best strategy is to request leave of court! Do this early. Do not allow the 30 days to run on the assumption that a court will grant leave after the deadline has passed.
Second, whether leave is granted or not, avoid taking short-cuts to controvert quickly. You don’t want to be stuck with an inadequate counteraffidavit. Courts are quick to strike counteraffidavits on various grounds. Develop your firm’s database of experts now, before you need them, so you do not waste precious days locating an expert qualified to controvert.
#3 Navigating the 18.001 obstacle course
Section 18.001 can provide significant time and cost savings to plaintiffs, but for controverting parties, it presents a challenging and expensive obstacle course offering plenty of opportunities to fall on your face.
It is widely acknowledged that, “[T]he statute places a greater burden of proof on counteraffidavits to discourage their misuse in a manner that frustrates the intended savings.”[1] Therefore, to properly controvert, you will need to keep three concepts in mind: (1) deadlines (as discussed in the previous blog), (2) notice, and (3) qualifications.
Notice: Section 18.001 tells us that “[t]he 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.” But what does that mean?
For starters, it means that the expert must state her opinion that a charge was unreasonable or services were unnecessary and explain why/how she came to that conclusion. Conclusory statements will not work; the affiant should be explicit as to what is being controverted and why she disagrees with the reasonableness or necessity.
Qualifications: The controverting affiant must be “a person who is qualified, by knowledge, skill, experience, training, education, or other expertise.” Texas courts remorselessly disqualify controverting experts who do not sufficiently explain why they are qualified to opine as to the specific issues in the initial affidavit.
For example, an orthopedic surgeon specializing in spinal cord injuries is not qualified to testify about the reasonableness and necessity of chiropractic services, or for that matter anything outside his orthopedic surgery specialty without expressing additional and relevant training or experience.[2] Similarly, a chiropractor is generally not qualified to render expert opinion regarding non-chiropractic medical expenses without explaining additional training, knowledge, or experience beyond chiropractic care.[3]
Lessons learned on qualifications – make sure your expert does more than simply state that he or she is qualified. Your expert must explain how she is qualified by identifying her specific knowledge, skill, experience, training, or education that is relevant to the particular issues being controverted.
Check back next week as we continue walking through the list of 7 Things You Need to Know about 18.001 Affidavits.
1. Hong v. Bennett, 209 S.W.3d 795, 803 (Tex. App. – Ft. Worth 2006, no pet.).
2. See Travelers Ins. Co. v. Martin, 28 S.W.3d 42, 48 (Tex. App. – Texarkana 2000, no pet.) and Turner v. Peril, 50 S.W.3d 742, 747 (Tex. App. – Dallas 2001, no pet.).
3. See Hong v. Bennett, 209 S.W.3d at 804.
