This week the Texas Supreme Court issued an opinion that provides much needed clarification on the requirements imposed on controverting affidavits under Section 18.001 of the Texas Civil Practice and Remedies Code.
Specifically, in the matter of In re Allstate Indemnity Company, a mandamus proceeding, the Court addressed whether the trial court abused its discretion by striking a timely served controverting affidavit. After hearing oral arguments on February 24, 2021, the Court today issued an opinion with the following key conclusions:
- A qualified medical coding and auditing expert may testify about the reasonableness of the medical expenses described in the initial affidavits.
- A medical coding and auditing expert may rely on databases of medical expenses.
- The “reasonable notice” requirement is similar in meaning to the “fair notice” pleading requirement, which means that a controverting affidavit provides reasonable notice if the opposing party can ascertain from the controverting affidavit each charge that is being controverted as unreasonable and the bases on which those charges are being challenged.
- Section 18.001(f) does not require an opinion expressed in a controverting affidavit to meet the admissibility requirements for expert testimony.
- Nothing in Section 18.001 provides for the exclusion of evidence based on the absence of a proper controverting affidavit.
- An order from the trial court that not only strikes a controverting affidavit but also (1) precludes a defendant from presenting its own evidence on the reasonableness of the claimant’s medical expenses and (2) prohibits a defendant from challenging the claimant’s evidence through cross-examination or jury argument, vitiates or severely compromises the defense, and Mandamus relief is an appropriate remedy.
A copy of the opinion is available at https://www.txcourts.gov/media/1452189/200071.pdf.
All briefing and video of oral arguments are available at https://www.txcourts.gov/supreme/orders-opinions/2021/may/may-7-2021/
