This week we’ll discuss how Federal courts in Texas view 18.001 affidavits.
18.001 affidavits are accepted in the Federal Courts: The 18.001 process is still available in Federal Courts in Texas, albeit with some minor adjustments. Specifically, the Northern District of Texas, applying the Erie doctrine, has held that 18.001 is substantive law which should be available to the Plaintiff, because not doing so would “deprive Plaintiff of means to avoid the significantly more expensive and time-consuming alternatives to proving damages which would otherwise be available in a personal injury action brought in a Texas state court.”
See Rahimi v. United States, 474 F. Supp. 2d 825, 829 (N.D. Tex. 2006).
However, the court clarified that only a portion of Section 18.001 was substantive law; the rest involved procedural matters to be governed by Federal Rules instead. With that in mind, the court held that sections 18.001 (b) & (c) are substantive whereas (d), (e) & (f) are procedural and will be governed by the Federal Rules and/or the court’s scheduling order.
So, what does that mean? Federal courts in Texas recognize 18.001 affidavits as acceptable alternatives to proving up reasonableness and necessity of services through live expert testimony. However, the deadline to serve an initial affidavit, the deadline to controvert, and the requirements of controverting affidavits are governed by Federal Rules rather than Section 18.001.
Check back next blog for our final installment on 18.001 affidavits.