United States District Court, N.D. Texas, Dallas Division
TOMMY RHOADES, et al. Plaintiffs,
ANTHONY GROSSMAN, et al. Defendants.
MEMORANDUM OPINION AND ORDER
A. FITZWATER, UNITED STATES DISTRICT JUDGE.
removed action, plaintiffs Tommy Rhoades and Sharon Rhoades
(the “Rhoades”) move the court to determine the
applicability of Tex. Civ. Prac. & Rem. Code Ann. §
18.001 (West 2015). For the reasons explained, the court
concludes that § 18.001 applies in this case, and it
sets deadlines for filing affidavits and controverting
affidavits under § 18.001.
a suit by the Rhoades to recover from defendants Anthony
Grossman (“Grossman”) and Southeastern Freight
Lines, Inc. for injuries they sustained when Grossman
rear-ended the Rhoades's vehicle. The Rhoades originally
sued defendants in Texas state court, alleging negligence
claims under Texas law against both defendants. Defendants
removed the case to this court based on diversity
jurisdiction. The Rhoades now seek a determination that Tex.
Civ. Prac. & Rem. Code Ann. § 18.001 applies in this
case. Defendants oppose the motion, contending that §
18.001 does not apply because it is a procedural statute and
directly conflicts with the Federal Rules of Evidence.
Erie Railroad Co. v. Tompkins, 304 U.S. 64 (1938),
federal courts sitting in diversity apply state substantive
law and federal procedural law. See Gasperini v. Ctr.
for Humanities, Inc., 518 U.S. 415, 427 (1996).
Tex. Civ. Prac. & Rem. Code Ann. § 18.001(b)
Unless a controverting affidavit is served as provided by
this section, an affidavit that the amount a person charged
for a service was reasonable at the time and place that the
service was provided and that the service was necessary is
sufficient evidence to support a finding of fact by judge or
jury that the amount charged was reasonable or that the
service was necessary.
on the current state of the law, the court concludes that
§ 18.001(b) is a substantive provision of Texas law that
applies in this case. See, e.g., Gorman v. ESA Mgmt.,
LLC, 2018 WL____, at * ___, No. 3:17-CV-0792-D, at *2-3
(N.D. Tex. Jan. 4, 2018) (Fitzwater, J.); Butler v.
United States, No. 3:15-CV-2969-M, at *3 (N.D. Tex. June
2, 2017) (Lynn, C.J.) (order) (overruling objections to
plaintiff's exhibits and holding that § 18.001(b)
applied in Federal Tort Claims Act (“FTCA”) case
governed by state substantive law); Bowman v. Cheeseman,
LLC, 2014 WL 11515575, at *1 (N.D. Tex. Dec. 9, 2014)
(Godbey, J.) (declining to strike § 18.001 affidavits
and noting that Texas courts have indicated that §
18.001 “is more properly understood as a rule of
sufficiency of the evidence than as a rule of evidence
admissibility.”); Rahimi v. United States, 474
F.Supp.2d 825, 829 (N.D. Tex. 2006) (Sanderson, J.)
(“Were the court to find that section 18.001 embodies
only state procedural law, it 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.”); but see Holland v. United
States, No. 3:14-CV-3780, at *2 (N.D. Tex. July 21,
2016) (Lindsay, J.) (order) (granting motion to strike
affidavits in FTCA case, and stating that “[s]ince
Rahimi, however, the Texas Supreme Court has
explicitly characterized Section 18.001 as ‘purely
procedural, '” and concluding that § 18.001(b)
did not apply in FTCA case governed by state substantive law
(quoting Haygood v. De Escabedo, 356 S.W.3d 390, 397
extent that § 18.001(d) imposes deadlines for filing
affidavits and controverting affidavits,  however, these
provisions are clearly procedural, and this court is not
bound to follow them. See, e.g., Davis v. Dallas Cnty.,
Tex., 2007 WL 2301585, at *1 (N.D. Tex. Aug. 10, 2007)
(Fitzwater, J.) (addressing Tex. Civ. Prac. & Rem. Code
Ann. § 33.004) (“Nor does the court ‘suggest
that the provisions of § 33.004 that impose time
limitations on seeking leave or objecting to motions for
leave would apply in a diversity case to circumvent a
scheduling order that imposes other deadlines.'”
(quoting Womack v. Home Depot USA, Inc., 2006 U.S.
Dist. LEXIS 39449, at *2-3 (N.D. Tex. Apr. 14, 2006)
(Fitzwater, J.) (order))). Accordingly, the court orders that
the Rhoades file any § 18.001 affidavit by the deadline
for completing discovery. Defendants must file any
controverting affidavit within 28 days of the date the
Rhoades file the § 18.001 affidavit being controverted.
Rhoades's motion to determine the applicability of Tex.
Civ. Prac. & Rem. Code Ann. § 18.001 is granted to
the extent the court concludes that § 18.001(b) applies
in this case and sets deadlines for complying with the
procedure under § 18.001.
Under § 205(a)(5) of the
E-Government Act of 2002 and the definition of “written
opinion” adopted by the Judicial Conference of the
United States, this is a “written opinion issued by
the court” because it “sets forth a reasoned
explanation for [the] court's decision.” It has
been written, however, primarily for the parties, to decide