Today, we'll examine the next issue on our list - what to do if you missed the deadline to controvert.
#4 - Oops, no controverting affidavit - now what?!
You received 18.001 affidavits from opposing counsel, but for whatever reason, you did not serve controverting affidavits within the timeframe required - so what do you do now?
Request Leave of Court: As soon as you catch your mistake, you should request leave of court to serve your controverting affidavits. Courts have broad discretion to grant leave to controvert outside of the 30-day deadline under 18.001(e).
If leave is denied, determine whether you can contest at trial anyway: Texas appellate courts have varying and conflicting opinions on whether an opposing party may challenge reasonableness and necessity when the party failed to serve controverting affidavits. Depending on which court you are in, you might be able to challenge reasonableness and necessity at trial even though you missed the deadline to controvert or your controverting affidavits were struck.
The U.S. District Court for the Northern District of Texas in Rahimi v. United States, reviewed 18.001 case law in Texas as part of an Erie analysis and summed up the situation well: "...those courts which have described the [18.001] provision as an evidentiary rule have generally held that a defendant who fails to properly file a responsive counter-affidavit is precluded from presenting any evidence contesting the reasonableness and necessity of the expenses... while other courts have permitted the presentation of controverting evidence, despite the absence of a filed counter-affidavit." 1
In Texas, the Courts of Appeals for the 1st, 2nd, 6th, 9th, 11th, and 14th Districts expressly forbid challenging reasonableness and necessity without a proper controverting affidavit. 2 These appellate courts have been clear that if no controverting affidavit is filed, the other party may not controvert the claim. At least one court clarified that allowing challenges to reasonableness and necessity in the absence of a controverting affidavit would render the statute useless.
In contrast, the Courts of Appeals for the 3rd, 4th, 5th, 7th, 12th, and 13th Districts seem to allow challenges to reasonableness and necessity even in the absence of a controverting affidavit; however, caution should be exercised even in these jurisdictions. First, the opinions from these courts do not distinguish whether the testimony and evidence allowed at trial in the absence of a controverting affidavit were strictly for purposes of challenging causation, or reasonableness/necessity, or both. However, a recent opinion from the 5th Court of Appeals sheds some light on what is permissible in these Districts. Specifically, in the Ten Hagen Excavating case, the 5th Court of Appeals clarified that the failure to file timely and proper controverting affidavits will preclude a controverting party from offering expert testimony at trial challenging the reasonableness and necessity of services; however, the absence of a controverting affidavit will not preclude cross-examination of the Plaintiff, introduction of medical records, or arguments challenging reasonableness and necessity during opening and closing statements. 3 Second, several of the opinions from these Districts addressed purported 18.001 affidavits that used the phrase "reasonable and customary" rather than "reasonable and necessary," and under such circumstances the courts found that a controverting party is not barred from challenging reasonableness and necessity at trial even in the absence of a proper controverting affidavit.
As for the remaining Courts of Appeal, neither the 8th nor the 10th Districts have yet expressed any opinion on this issue.
If you find yourself in the position of arguing the admissibility of evidence contesting reasonableness and necessity of services in the absence of a controverting affidavit, it would be wise to thoroughly research the most current law on this topic in your jurisdiction. This topic is complicated and contradictory, and the Texas Supreme Court has not yet weighed in on the issue.
Check back with us next time as we discuss more strategies at your disposal if you find yourself without proper and timely controverting affidavits.
1. Rahimi v. United States, 474 F. Supp. 2d 825, 828 (N.D. Tex. 2006).
2. Petrello v. Prucka, 415 S.W.3d 420, 431 (Tex. App. -Houston [1st Dist.] 2013); Hong v. Bennett, 209 S.W.3d 795, 801 (Tex. App. - Fort Worth 2006); Hilland v. Arnold, 856 S.W.2d 240, 242 (Tex. App. - Texarkana 1993); Sloan v. Molandes, 32 S.W.3d 745, 752 (Tex. App. - Beaumont 2000); Beauchamp v. Hambrick, 901 S.W.2d 747, 749 (Tex. App. - Eastland 1995); Ellen v. Carr, No. A14-92-00292-CV1992 Tex. App. LEXIS 2987, at *7 (Tex. App. - Houston [14th Dist.] 1992).
3. Ten Hagen Excavating, Inc. v. Castro-Lopez, No. 05-15-00902-CV, 2016 Tex. App. LEXIS 9549, at 61-62 (Tex. App. - Dallas Aug. 29, 2016).