Duplessis v. Singh

1

LOHYNE DUPLESSIS, Plaintiff, v. HARPREET SINGH, et al., Defendants.

No. 2:21-CV-234-BR

United States District Court, N.D. Texas, Amarillo Division

June 14, 2023

MEMORANDUM OPINION AND ORDER

LEE ANN RENO, UNITED STATES MAGISTRATE JUDGE

Before the Court is a Motion to Strike affidavits submitted pursuant to § 18.001 of the Texas Civil Practice and Remedies Code filed by all Defendants in this action.^[1](ECF 52). Having considered the Motion, the response filed by Plaintiff Lohyne Duplessis (“Plaintiff'), (ECF 70), the relevant law, and for the reasons stated below, the Motion is DENIED.

However the matter raised in the Motion represents a significant and ongoing area of dispute among litigants and the federal district courts in Texas. Well-reasoned and considered opinions can be found on both sides, but due to the character of the litigation in which the question arises, the Fifth Circuit has not had the occasion to opine on it. Therefore the Court will add its voice to that of others calling for appellate determination of whether § 18.001 applies in federal court. Schmidt v. Blue Monster Transport Inc., 606 F.Supp.3d 424, 427 (N.D. Tex. 2022) (Hendrix J.). Federal courts should provide parties with consistency and predictability as to § 18.001 affidavits. However, as will be discussed below, practices vary between districts and even between judges in the same courthouse. There is a pronounced need for the Fifth Circuit to bring clarity to this issue. Accordingly, the Court finds the Motion presents a “controlling question of law as to which there is substantial ground for difference of opinion and that an immediate appeal from the order may materially advance the ultimate termination of the litigation,” and Defendants are invited to seek interlocutory review of this Memorandum Opinion and Order pursuant to 28 U.S.C. § 1292(b) within 10 days, as required by statute.

I. BACKGROUND^[2]

In cases involving an injury to a plaintiff, Texas law contemplates recovery for past medical expenses where those expenses are proven to be reasonable and necessary. However, because litigation of that topic would often degenerate into a parade of expensive expert witnesses, the Texas state legislature enacted a provision allowing for a pathway to reduced costs and faster trials. That provision is § 18.001 of the Texas Civil Practice and Remedies Code. As Judge Truncale of the Eastern District of Texas explained, it works as follows:

In a state case, a plaintiff submits affidavits attesting to the reasonableness and necessity of past medical expenses. A defendant may then respond with controverting affidavits. If the defendant successfully controverts the plaintiff's affidavits, neither set of affidavits are admissible at trial. Instead, both parties must establish or counter the reasonableness and necessity of the plaintiff's expenses the traditional and more expensive way, by using expert testimony. If the defendant fails to controvert the plaintiff's affidavits their two roads diverge: the plaintiff takes the Affidavit Bypass, while the defendant is stuck paying steep fees on the Expert Tollway.

Delarosa v. Great Neck Saw Manufacturers, Inc., 565 F.Supp.3d 832, 837 (E.D. Tex. 2021) (citations omitted).

Whether that same process can be used in federal court has been hotly debated by Texas federal district courts for nearly two decades. At bottom, is the question of whether § 18.001 is substantive or procedural. If substantive, federal courts are bound to apply it. However, if the rule is procedural, they are not. Judge Sanderson of the Northern District of Texas was the first to consider the question in 2006. Because the Texas Supreme Court had not yet weighed in on the issue, Judge Sanderson, guided by Fifth Circuit and Supreme Court principles, made an Erie guess. Rahimi v. United States, 474 F.Supp.2d 825 (N.D. Tex. 2005). As Judge Truncale relayed:

[Judge Sanderson characterized] § 18.001 as an evidentiary rule, reasoning that it allowed a plaintiff to establish prima facie proof of damages sustained. He contended that characterizing § 18.001 as procedural would deprive the plaintiff of the means to avoid the significantly more expensive and time-consuming alternatives to proving damages which would otherwise be available in state court.

So, he concluded, § 18.001 is so bound up or intertwined with a litigant's substantive rights that under Erie, it would be inequitable not to apply it in federal court.

Delarosa, 565 F.Supp.3d at 838 (citing Rahimi, 474 F.Supp.2d at 828-29) (other citations and quotations omitted).

Five years after Judge Sanderson's decision, the Texas Supreme Court provided some clarity on the substantive versus procedural debate. In an oft-quoted phrase, the court characterized § 18.001 as “purely procedural” and intended to streamline proving reasonable and necessary medical expenses. Haygood v. De Escabedo, 356 S.W.3d 390, 397 (Tex. 2011). The court then reaffirmed its “purely procedural” characterization seven years later. Gunn v. McCoy, 554 S.W.3d 646, 672 (Tex. 2018). However, the court adjusted course slightly when it issued its decision in In re Allstate Indem. Co. 622 S.W.3d 870 (Tex. 2021). Again, the Court turns to Judge Truncale as narrator:

[The Texas Supreme Court] found that § 18.001 did not suggest “that an uncontroverted affidavit may be conclusive on reasonableness and necessity.” But at the same time, it emphasized substantive aspects of the § 18.001 process.

The dispute in Allstate arose when a trial court entered a pre-trial order prohibiting Allstate from contesting the reasonableness and necessity of medical expenses at trial after its controverting affidavit failed. The [Texas Supreme Court] found that the trial court abused its discretion by doing so because it had struck a substantive component of Allstate's defense, barring the meaningful adversarial adjudication of the plaintiff's claim for past medical expenses. Thus, [the court] granted Allstate's mandamus writ, explaining that the failure to controvert a plaintiff's affidavit does not constrain the defendant's ability to challenge-through evidence or argument- the claimant's assertion that her medical expenses are reasonable and necessary.

Delarosa, 565 F.Supp.3d at 839 (citing Allstate, 622 S.W.3d at 875-83) (other citations and quotations omitted) (emphasis added).

During this time and after, sharp disputes have appeared among the various federal trial courts in Texas. On one side are the judges of the Southern District of Texas, who have gathered around the “emerging consensus” that § 18.001 is “purely procedural” and should not apply in federal court. Espinoza v. State Farm Mut. Auto Ins. Co., 2020 WL 4333558, at *4-5 (S.D. Tex. Jul. 28, 2020) (collecting cases). Joining them in this view are a smattering of respected jurists from the Northern and Western districts. See, e.g., Bussey v. Singh, 2022 WL 3691097 (N.D. Tex. Aug. 24, 2022) (Lindsay, J.); Vidal v. Kroger Texas, LP, 2021 WL 779076 (N.D. Tex. Feb. 26, 2021) (Ramirez, J.); Newby v. Kroger Co., 2020 WL 3963740 (N.D. Tex. Jul. 11, 2020) (Godbey, C.J.); Parker v. Sheila, 2020 WL 1669647 (W.D. Tex. Apr. 3, 2020) (Austin, J.); Baird v. Shagdarsuren, 2019 WL 2286084 (N.D. Tex. May 29, 2019) (Boyle, J.); Holland v. United States, 2016 WL 11605952 (N.D. Tex. Jul. 21, 2016) (Lindsay, J.).

On the opposite side, holding § 18.001 is substantive in nature is an equally respected group of jurists, made up of the judges of the Eastern District of Texas and others from the Northern and Western Districts. See, e.g., Delarosa, 565 F.Supp.3d at 839 (collecting Eastern District cases); Chapman v. QuikTrip Corp., 2022 WL 4002904 (N.D. Tex. Aug. 31, 2022) (Scholer, J.); Hutchison v. Gateway Ins. Co., 2020 WL 7698819 (W.D. Tex. Jan. 2, 2020) (Farrer, J.); Cueva v. Allstate Fire and Casualty Ins. Co., 2019 WL 10302147 (W.D. Tex. Oct. 22, 2019) (Garcia, J.); Grover v. Government Employees Ins. Co., 2019 WL 2329321 (W.D. Tex. May 31, 2019) (Chestney, J.);^[3]Gorman v. ESA Management, LLC, 2018 WL 295793 (N.D. Tex. Jan. 4, 2018) (Fitzwater, J.);^[4] Butler v. United States, 2017 WL 11696361 (N.D. Tex. Jun. 2, 2017) (Lynn, J.); Cruzata v. Wal-Mart Stores Tex., LLC, 2015 WL 1980719 (W.D. Tex. May 1, 2015) (Montalvo, J.)

II. APPLICABLE LAW

The examination to determine whether § 18.001 applies in federal court begins with the first principle of federal diversity cases: courts are to apply state substantive law and federal procedural law. Hanna v. Plumer, 380 U.S. 460, 465 (1965). The first test to ascertain whether a rule is substantive or procedural is found in the Rules Enabling Act, 28 U.S.C. § 2072, wherein the Supreme Court is granted the power, with oversight from Congress, “to prescribe general rules of practice and procedure.” However, those rules cannot “abridge, enlarge or modify any substantive right.” Id. If a federal rule of procedure is applicable, it governs, “unless it exceeds statutory authorization or Congress's rulemaking power.” Shady Grove Orthopedic Associates, P.A. v. Allstate Ins. Co., 559 U.S. 393, 398 (2010).

In other words, Supreme Court precedent and statutory text, as relayed in Delarosa, can be succinctly stated as asking one, two-part question: does the state rule reflect a substantive policy, or does it reflect a procedural choice that is squarely supplanted by a federal rule of procedure? Chapman, 2022 WL 4002904, at *1; Delarosa 565 F.Supp.3d at 840-41; Exxon Corp. v. Burglin, 42 F.3d 948, 950 (5th Cir. 1995); see also Vansill v. Dollar Tree Stores, 520 F.Supp.3d 847, 849-50 (E.D. Tex. 2021). To determine whether a rule is a substantial policy choice, courts look to the jurisprudence of the state's highest court. Shanks v. AlliedSignal, Inc., 169 F.3d...