United States District Court, W.D. Texas, San Antonio Division
ELIZABETH S. ("BETSY") CHESTNEY, UNITED STATES
the Court in the above-styled cause of action is
Plaintiff's Opposed Motion for Leave to File Affidavits
Concerning Cost and Necessity of Services under Texas Civil
Practice and Remedies Code § 18.001 [#30]. By his
motion, Plaintiff asks the Court for permission to file his
medical and billing affidavits and corresponding records for
each of his medical providers pursuant to Section 18.001 of
the Texas Civil Practices and Remedies Code. Plaintiff wishes
to rely on these records and affidavits to establish the
reasonableness of cost and necessity of his medical care and
expenses related to the motor vehicle collision underlying
this suit. Defendant opposes the motion, arguing that Section
18.001 is a purely procedural provision that does not apply
in federal court. The Court agrees with Plaintiff that the
statute, though evidentiary, is intertwined with
Plaintiff's substantive rights and therefore applies in
this Court. The Court will therefore grant the motion.
originally filed this action in the 438th Judicial District
Court for declaratory relief arising from a motor vehicle
collision occurring on May 29, 2016. Defendant removed this
case to federal court on August 16, 2018 based on diversity
jurisdiction. In Texas state court, a plaintiff may prove
that her medical expenses were reasonable and necessary
either (1) by presenting expert testimony on the issue or (2)
through the submission of affidavits that comply with the
requirements of Section 18.001 of the Texas Civil Practice
and Remedies Code. Hamburger v. State Farm Mut. Auto.
Ins. Co., 361 F.3d 875, 886 (5th Cir. 2004); Akpan
v. United States, No. CV H-16-2981, 2018 WL 398229, at
*3 (S.D. Tex. Jan. 12, 2018). Section 18.001 provides:
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.
Tex. Civ. Prac. & Rem. Code § 18.001(b).
speaking, federal courts are to apply state substantive law
and federal procedural law in diversity cases. Hanna v.
Plumer, 380 U.S. 460, 465 (1965) (citing Erie R. Co.
v. Tompkins, 304 U.S. 64 (1938)). Federal district
courts are split as to whether Section 18.001 is a procedural
or substantive provision of state law for purposes of the
Erie doctrine. Compare Akpan, 2018 WL
398229, at *3 (Section 18.001 is procedural rule inapplicable
in federal diversity cases) with Gorman v. ESA Mgmt.,
LLC, No. CV 3:17-CV-0792-D, 2018 WL 295793, at *1-2
(N.D. Tex. Jan. 4, 2018) (Section 18.001 is substantive
provision of Texas law applicable in diversity cases)
(collecting cases). This split has persisted despite a
characterization of Section 18.001 as “purely
procedural” by the Texas Supreme Court in Haygood
v. De Escabedo, 356 S.W.3d 390, 397-98 (Tex. 2011).
courts that have concluded that Section 18.001 is procedural
rather than substantive emphasize that Section 18.001 sets
forth procedure. The fact that Section 18.001 sets forth
procedure, however, is not the end of the inquiry. The Texas
Supreme Court, of course, was addressing whether the statute
was procedural for purposes of Texas law when it decided
Haygood and was not engaging in the
“challenging endeavor” of analyzing a given state
law under Erie. See Gasperini v. Center for Humanities,
Inc., 518 U.S. 415, 427 (1996) (describing the
Erie inquiry). And although district courts have
grappled with the issue, the Fifth Circuit has yet to answer
whether Section 18.001 applies in federal diversity cases.
undertaking an Erie analysis, federal courts are
required to: evaluate whether the law “significantly
affect[s] the result of a litigation, ” despite the
fact that it governs procedure, Guaranty Trust Co. v. New
York, 326 U.S. 99, 109 (1945); consider whether a state
procedural rule “is bound up” with state-secured
substantive rights and obligations, Byrd v. Blue Ridge
Rural Electric Cooperative, Inc., 356 U.S. 525, 535-38
(1958); and consider whether the decision not to apply a
given state law would result in forum-shopping and “the
inequitable administration of the laws, ”
Hanna, 380 U.S. at 468.
concedes that the Texas Supreme Court has characterized
Section 18.001 as procedural but argues that this procedural
provision is so “bound up or intertwined” with
Texas substantive law that federal courts must apply Section
18.001 to avoid an inequitable administration of the law.
See Hanna, 380 U.S. at 468. Well-reasoned decisions
from district courts in this Circuit have agreed. See,
e.g., Rahimi v. United States, 474 F.Supp.2d 825, 829
(N.D. Tex. 2006) (“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.”).
position is also supported by a number of Fifth Circuit
decisions characterizing state laws on how damages are proven
as substantive under Erie. In McCaig v. Wells
Fargo Bank (Texas), N.A., the Court held that expert
testimony was not required to prove mental anguish damages in
a diversity case, where state law did not require such
evidence, finding that “state law governs what the
plaintiff must prove and how it may be proved; federal law
governs whether the evidence is sufficient to prove
it.” 788 F.3d 463, 482 (5th Cir. 2015) (upholding jury
verdict for plaintiff and award of mental anguish damages).
See also Hamburger, 361 F.3d at 884 (“We apply
federal standards of review to assess the sufficiency or
insufficiency of the evidence in relation to the verdict, but
in doing so we refer to state law for the kind of evidence
that must be produced to support a verdict.”);
Homoki v. Conversion Servs., Inc., 717 F.3d 388, 398
(5th Cir. 2013) (“The law governing what damages are
recoverable is substantive, and therefore in a diversity case
state law governs what damages are available for a given
claim and the manner in which those damages must be
proved.”). This binding instruction from the Fifth
Circuit applies to the Erie question here.
Accordingly, the Court finds that Section 18.001, despite its
procedural nature, should be applied in federal diversity
actions. Plaintiff may file affidavits to establish the
reasonableness and necessity of his medical care pursuant to
Section 18.001 of the Texas Civil Practice and Remedies Code.
IS THEREFORE ORDERED that Plaintiff's Opposed
Motion for Leave to File Affidavits Concerning Cost and
Necessity of Services under Texas Civil Practice and Remedies
Code § 18.001 [#30] is GRANTED.
IS FURTHER ORDERED that Plaintiff file any Section
18.001 affidavits by the deadline for completing discovery in
IS FINALLY ORDERED that Defendants file any
controverting affidavit within 30 days of the date Defendants
receive a copy of the affidavit.