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Application of §18.001 Affidavits in Federal Court

| Feb 3, 2021 | Firm News

Section 18.001 of the Texas Civil Practice and Remedies Code governs affidavits and counter-affidavits regarding the reasonableness and necessity of medical services. While §18.001 is characterized as procedural in Texas state courts, Federal Courts in Texas are divided on whether the statute is purely procedural or is substantive enough that federal courts should apply it.

The Fifth Circuit has not yet made a distinction, and divided district courts in Texas currently fall into one of the following three categories:

    1. §18.001 is purely procedural; therefore, it does not apply in Federal Court.
    2. §18.001 is partially procedural and partially substantive; therefore, reasonableness and necessity of services can be proved up in Federal Court through an §18.001 affidavit but the provisions in §18.001 imposing deadlines are procedural and do not apply.
    3. Has not addressed the issue.

Eastern District of Texas

The Eastern District of Texas falls into the second category, treating §18.001 as partially procedural and partially substantive. In Bagley v. Dollar Tree Stores, Inc., the Court found that §18.001 is so intertwined as to be both procedural and substantive, thus it must be applied in Federal Court to avoid an inequitable administration of the law. Bagley v. Dollar Tree Stores, Inc., 2019 U.S. Dist. LEXIS 207531, *17 (E.D. Tex. Dec. 2, 2019). The court decided that §18.001 affidavits could be used but the deadlines would be governed by Federal rules. Id. at *18.

Out of the six divisions in the Eastern District, only the Beaumont Division and the Marshall Division have issued opinions as to whether §18.001 is applicable in Federal Court. The Bagley opinion discussed above, is an opinion from Judge Marcia A. Crone out of the Beaumont Division. Chief Judge Rodney Gilstrap of the Eastern District, Marshall Division issued an opinion in 2019 applying §18.001. See Sikes v. Transp. Ins., Co., No. 2:18-CV-00408-JRG, 2019 U.S. Dist. LEXIS 144132 (E.D. Tex. Mar. 19, 2019).

Northern District of Texas

The Northern District of Texas initially fell into the second category as well. In 2006, Magistrate Judge William F. Sanderson Jr. of the Dallas Division in Rahimi v. U.S., found that the statue was so intertwined with the substantive rights of litigants, that it should be applied in federal courts. Magistrate Judge William F. Sanderson Jr. reasoned that §18.001 provides a means for a plaintiff to establish prima facie proof of damages and thus, even though it is a procedural rule, it is so intertwined with the substantive right of recovery that the Court should apply it to avoid an inequitable administration of justice. Rahimi v. United States, 474 F. Supp. 2d 825, 829 (N.D. Tex. 2006). However, more recently, most judges addressing this issue in the Northern District have held that §18.001 should not apply in Federal Court because it is “purely procedural.”

Out of the seven divisions in the Northern District, it appears that only the Dallas Division has considered and ruled on this issue. While different judges within the Dallas Division have leaned different ways on the interpretation of the applicability of §18.001, the majority of judges issuing the most recent opinions seem to agree that it is purely procedural. See Baird v. Shagdarsuren, 2019 U.S. Dist. LEXIS 89522 (N.D. Tex., May 29, 2019); Davila v. Kroger Tex., LP, 2020 U.S. Dist. LEXIS 82193 (N.D. Tex., May 8, 2020); Newby v. Kroger Co., 2020 U.S. Dist. LEXIS 122144 (N.D. Tex., July 11, 2020); Burns-Pipkins v. Conway Courier Serv., No. 3:20-cv-284-K-BN, 2020 U.S. Dist. LEXIS 209694 (N.D. Tex. Nov. 9, 2020); Jones v. QuikTrip Corp., Civil Action No. 3:19-CV-2671-D, 2020 U.S. Dist. LEXIS 193789 (N.D. Tex. Oct. 20, 2020); and Holland v. United States, Civil Action No. 3:14-CV-3780-L, 2016 U.S. Dist. LEXIS 192388 (N.D. Tex. July 21, 2016).

Southern District of Texas

The Southern District of Texas falls into the first category, holding that §18.001 is purely procedural and thus not applicable in Federal Court.

Out of the seven divisions in the Southern District, only two of them have issued opinions on this matter. In the Houston Division, Judge Nancy F. Atlas, followed the Texas Supreme Court’s opinion in Haygood, which held that §18.001 is a purely procedural statute. Akpan v. United States, No. H-16-2981, 2018 U.S. Dist. LEXIS 5584 (S.D. Tex. Jan. 12, 2018); and see Haygood v. De Escabedo, 356 S.W.3d 390, 397 (Tex. 2011). More recently, in the McAllen Division, Judge Micaela Alvarez also confirmed that §18.001 must be treated as a procedural statute because it conflicts with federal rules. See Espinoza v. State Farm Mut. Auto. Ins. Co., 2020 U.S. Dist. LEXIS 133200 (S.D. Tex., July 28, 2020).

Western District of Texas

Courts in the Western District of Texas have not uniformly held that §18.001 falls into any of the three categories. Different judges and different divisions have continuously reached different results. However, it seems that the trend is moving towards holding §18.001 as procedural law, which should not apply in Federal Court. Out of the seven divisions in the Western District, five of them have issued opinions on the applicability of §18.001.

In Austin, two different judges issued differing opinions. Judge James R. Nowlin ruled that §18.001 is partially procedural and partially substantive. See generally Shaghagi v. Progressive Cty. Mut. Ins. Co., No. A-19-CV-00853-JRN, 2020 U.S. Dist. LEXIS 195612 (W.D. Tex. Jan. 22, 2020). While Magistrate Judge Andrew W. Austin found §18.001 to be strictly procedural, and not applicable. See Parker v. Sheila, No. A-19-CV-00017-RP, 2020 U.S. Dist. LEXIS 58928 (W.D. Tex. Apr. 3, 2020).

El Paso Judge, Frank Montalvo, ruled that §18.001 is substantive and applies in Federal Court. See Cruzata v. Wal-Mart Stores Tex., LLC, No. EP-13-CV-00331-FM, 2015 U.S. Dist. LEXIS 57270 (W.D. Tex. May 1, 2015). While in Pecos, Judge David B. Fannin held that §18.001 is purely procedural. See Ruelas v. W. Truck & Trailer Maint., Inc., No. PE:18-CV-00002-DC-DF, 2019 U.S. Dist. LEXIS 230771 (W.D. Tex. Sep. 5, 2019). Additionally, in the Waco division, Judge Jeffrey C. Manske issued an opinion noting that the Court joined the growing body of authority that has determined §18.001 to be procedural and thus inapplicable in federal court. Miley v. Mmm Freight Corp., No. 6:19-CV-00285-ADA-JCM, 2020 U.S. Dist. LEXIS 168298 (W.D. Tex. June 10, 2020).

In San Antonio, six judges have each issued opinions on whether §18.001 should apply in Federal Court. Judge Xavier Rodriguez, Magistrate Judge Fannin, Magistrate Judge Chestney, and Magistrate Judge Austin have found it to be procedural and disallowed its use, while Chief Judge Orlando L. Garcia and Judge Richard B. Farrer found it to be substantive and allowed its use.

Judge Xavier Rodriguez found that §18.001 is purely procedural, because it “merely provides a way to prove the issue of reasonable and necessary medical expenses,” and without it plaintiffs can still use the traditional method of providing expert testimony, thus because it has no effect on the outcome, it should not apply in Federal Court. Islas v. United States, Civil Action No. SA-19-CV-322-XR, 2020 U.S. Dist. LEXIS 80904, *13 (W.D. Tex. Apr. 16, 2020); see also Cantu v. Wayne Wilkens Trucking, LLC, No. 5:19-CV-1067-XR, 2020 U.S. Dist. LEXIS 185624 (W.D. Tex. Oct. 7, 2020); and Perez v. Best Buy Stores, L.P., Civil Action No. SA-20-CV-00812-XR, 2020 U.S. Dist. LEXIS 208032 (W.D. Tex. Nov. 6, 2020).

Magistrate Judge Fannin found the Texas Supreme Court’s characterization of §18.001 as “purely procedural” persuasive and held that it is inapplicable in Federal Court. See Ruelas v. Western Truck & Trailer Maintenance, No. 4:18-cv-0002-DC (W.D. Tex. Sept. 6, 2019).

Magistrate Judge Elizabeth Chestney has previously ruled both ways as to whether §18.001 is applicable or not. See Grover v. Gov’t Emples. Ins. Co., No. SA-18-CV-00850-FB, 2019 U.S. Dist. LEXIS 91278 (W.D. Tex. May 31, 2019) (holding §18.001 is so intertwined with plaintiff’s substantive rights that it should apply in Federal Court); and Ruiz v. Minh Trucking, LLC, No. SA-19-CV-01191-DAE, 2020 U.S. Dist. LEXIS 153642 (W.D. Tex. Aug. 24, 2020). However, Judge Chestney has most recently held that §18.001 is purely procedural and should not be applied in Federal Court. See Ramirez v. United States, No. SA-19-CV-00072-JKP, 2020 U.S. Dist. LEXIS 79564 (W.D. Tex. May 6, 2020).

Magistrate Judge Austin also disallowed its use finding that “§ 18.001 is best classified as procedural because “the Texas Supreme Court had characterized it as purely procedural and the Federal Rules of Evidence govern admissibility of evidence in federal court.” Parker v. Sheila, No. A-19-CV-00017-RP, 2020 U.S. Dist. LEXIS 58928, *13 (W.D. Tex. Apr. 3, 2020).

Finding that §18.001 is applicable in Federal Court, Chief Judge Orlando L. Garcia opined that §18.001 should apply because to deny the application of it would result in the “inequitable administration of laws that an Erie analysis seeks to avoid.” Cueva v. Allstate Fire & Cas. Ins. Co., Civil Action No. 5:19-cv-00324-OLG, 2019 U.S. Dist. LEXIS 233347, *5 (W.D. Tex. Oct. 22, 2019). Similarly, Judge Richard B. Farrer held “despite its procedural nature,” it should apply because it addresses “what the Plaintiff must prove and how it may be proved.” Hutchison v. Gateway Ins. Co., No. 5-19-CV-01027-RBF, 2020 U.S. Dist. LEXIS 245747, *5 (W.D. Tex. Jan. 2, 2020).

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