Peals v. Quiktrip Corp.

511 F.Supp.3d 770

Greg PEALS, Plaintiff,

v.QUIKTRIP CORPORATION, d/b/a Oklahoma Quicktrip Corporation, et al., Defendants.

Civil No. 4:20-cv-022-KPJ

United States District Court, E.D. Texas, Sherman Division.

Signed January 6, 2021

Aaron A. Herbert, Pro Hac Vice, Marissa Ann Maggio, Law Firm of Aaron A. Herbert PC, Dallas, TX, for Plaintiff.

Christopher Murray Blanton, Peavler Briscoe, Bryan Kyle Briscoe, The Peavler Group - Grapevine, Grapevine, TX, for Defendants.

MEMORANDUM OPINION AND ORDER

KIMBERLY C. PRIEST JOHNSON, UNITED STATES MAGISTRATE JUDGE

Pending before the Court is Defendant QuikTrip Corporation's ("Defendant") Motion to Strike (the "Motion") (Dkt. 15), wherein Defendant seeks to strike Plaintiff Greg Peals' ("Plaintiff") affidavits served pursuant to the Court's Order Governing Proceedings (Dkt. 7). See Dkt. 15 at 1. On May 21, 2020, Plaintiff filed his response (Dkt. 21), to which Defendant filed a reply (Dkt. 23). Upon consideration of the pleadings and applicable authorities, the Court finds the Motion (Dkt. 15) is hereby GRANTED IN PART and DENIED IN PART .

I. BACKGROUND

Plaintiff alleges he visited Defendant's gas station in Little Elm, Texas, on January 15, 2018, where he slipped and fell. See Dkt. 9 at 3. Plaintiff maintains "[t]here were no warnings posted or display[s] warning shoppers about the condition," which caused Plaintiff to fall and suffer "permanent and disabling injuries." See Dkt. 9 at 3, 5. On December 9, 2019, Plaintiff filed this lawsuit against Defendant in the 158th Judicial District Court of Denton County, Texas, asserting premises liability, negligence, and gross negligence claims. See Dkt. 1 at 2; Dkt. 1-2 at 3. On January 9, 2020, Defendant removed the action to this Court. See Dkt. 1. Pursuant to the Court's Order Governing Proceedings (Dkt. 7), Plaintiff served Defendant his initial disclosures and discovery responses, wherein Plaintiff produced eleven (11) affidavits spanning nearly two hundred (200) pages (the "Affidavits"). See Dkt. 15 at 7; see generally Dkt. 15, Exs. 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12. The affiants are health care providers and custodians of health records, all attesting to the nature of Plaintiff's health issues, the treatment Plaintiff has undergone, the costs of Plaintiff's services, or a combination thereof. See generally Dkt. 15, Exs. 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12.

On May 4, 2020, Defendant filed the present Motion (Dkt. 15), wherein Defendant requests the Court strike the Affidavits, "ostensibly" served pursuant to TEX. CIV. PRAC. & REM. ANN. § 18.001, "in their entirety." Dkt. 15 at 1, 16. Defendant asserts three (3) bases for striking the Affidavits: (1) Section 18.001 does not apply in federal courts sitting in diversity; (2) Plaintiff did not comply with Section 18.001's timing provision; and (3) Plaintiff did not comply with Section 18.001's notice provision. See id. Defendant further moves that, should the Court determine Section 18.001 applies in federal courts, the Court should extend Defendants' deadline to file counter-affidavits. See id. at 16.

II. LEGAL STANDARD

Under the Erie doctrine, "federal courts apply substantive state law when adjudicating diversity-jurisdiction claims, but in doing so apply federal procedural law to the proceedings." Cates v. Sears, Roebuck & Co. , 928 F.2d 679, 687 (5th Cir. 1991) (describing the holding in Erie R.R. v. Tompkins , 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938) ).

As a general matter, a federal court sitting in diversity should not apply state law if a Federal Rule is in direct conflict with the state law and the Federal Rule does not violate the Rules Enabling Act. See Klocke v. Watson , 936 F.3d 240, 244 (5th Cir. 2019). However, "some modest exceptions have been made when the forum rule reflects a state substantive law or policy." ARTHUR R. MILLER & CHARLES A. WRIGHT , 19 FEDERAL PRACTICE AND PROCEDURE § 4512 nn.40, 57 (3d ed.) (October 2020 update) (compiling cases). "Thus, even though the passage of the Federal Rules of Evidence in 1975 rendered the Erie analysis inapplicable to most evidentiary questions in diversity cases, it did not have the effect of supplanting all state law evidentiary provisions with federal ones." Wray v. Gregory , 61 F.3d 1414, 1417 (9th Cir. 1995) (emphasis original).

To determine whether the state law reflects a substantive state policy, federal courts look to the final decisions of the state's highest court. See Shanks v. AlliedSignal, Inc. , 169 F.3d 988, 993 (5th Cir. 1999). If there is no ruling from a final decision of the state's highest court, "it is the duty of the federal court to determine as best it can, what the highest court of the state would decide." Lampton v. Diaz , 661 F.3d 897, 899 (5th Cir. 2011).

Federal courts also evaluate the state law under the U.S. Supreme Court's Erie "touchstones":

• whether the state law is outcome determinative;

• whether the state law is "bound up" with the state's substantive rights and obligations;

• whether the state law affects forum shopping behavior; and

• whether applying state law will avoid inequitable administration of the laws.

All Plaintiffs v. All Defendants , 645 F.3d 329, 335–36 (5th Cir. 2011) ; see Hanna v. Plumer , 380 U.S. 460, 468, 85 S.Ct. 1136, 14 L.Ed.2d 8 (1965) (forum shopping and inequitable administration); Byrd v. Blue Ridge Rural Elec. Coop., Inc. , 356 U.S. 525, 538–39, 78 S.Ct. 893, 2 L.Ed.2d 953 (1958) (bound up); Guaranty Tr. Co. v. York , 326 U.S. 99, 109, 65 S.Ct. 1464, 89 L.Ed. 2079 (1945) (outcome determinative).

In Gasperini v. Center for Humanities, Inc. , 518 U.S. 415, 116 S.Ct. 2211, 135 L.Ed.2d 659 (1996), the Supreme Court clarified that discouraging forum shopping and avoiding inequitable administration of the laws guides the application of the outcome-determinative test. See id. at 428, 116 S.Ct. 2211 ; see also All Plaintiffs , 645 F.3d at 336.

III. ANALYSIS

A. SECTION 18.001 OVERVIEW

Under Texas law, a plaintiff bears the burden of proving the actual amount, necessity, and reasonableness of her past medical expenses. See Hamburger v. State Farm Mut. Auto. Ins. Co. , 361 F.3d 875, 886 (5th Cir. 2004) ; Monsanto Co. v. Johnson , 675 S.W.2d 305, 312 (Tex. App.—Houston [1st Dist.] 1984, writ ref'd n.r.e.). "Traditionally, expert testimony was the only acceptable means of proving the reasonableness and necessity of past medical expenses." Rahimi v. United States , 474 F. Supp. 2d 825, 826 (N.D. Tex. 2006) (citing Castillo v. American Garment Finishers Corp. , 965 S.W.2d 646, 654 (Tex. App.—El Paso 1998, no pet.) ).

With the enactment of TEX. CIV. PRAC. & REM. ANN. § 18.001, the Texas Legislature permitted plaintiffs to submit affidavits to prove the necessity and reasonableness of medical expenses. See id. § 18.001; Castillo , 965 S.W.2d at 654. Specifically, Section 18.001(b) 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.

Id. § 18.001(b). The statute's remaining provisions specify timing and notice requirements, as well as the requirements for any counter-affidavits an opponent wishes to submit. See § 18.001(d)–(i).

The Texas Supreme Court, Courts of Appeals of Texas, and federal district courts have all recognized that Section 18.001 allows litigants to save substantial time and costs. See, e.g., Gunn v. McCoy , 554 S.W.3d 645, 672 (Tex. 2018) (noting Section 18.001 affidavits streamline proof of reasonableness and necessity); Ten Hagen Excavating, Inc. v. Castro-Lopez , 503 S.W.3d 463, 491 (Tex. App.—Dallas 2016, pet. denied) (observing Section 18.001 affidavits "can save the plaintiffs the expense of having to hire an expert to testify"); Ramirez v. United States , No. SA-19-cv-00072-JKP, 2020 WL 2198167, at *1 (W.D. Tex. May 6, 2020) (recognizing Section 18.001 affidavit "provides significant savings of time and cost to litigants, particularly personal injury litigants") (citation omitted).

To promote Section 18.001's efficiency goals, Texas appellate courts have held the statute requires counter-affidavits to satisfy a higher standard for admissibility, reasoning that adversaries should be discouraged from misusing Section 18.001 and frustrating its purpose. See Hong v. Bennett , 209 S.W.3d 795, 803 (Tex. App.—Fort Worth 2006, no pet.) ; Turner v. Peril , 50 S.W.3d 742, 747 (Tex. App.—Dallas 2001, pet. denied) ; In re Brown , No. 12-18-00295-CV, 2019 WL 1032458, at *3 (Tex. App.—Tyler Mar. 5, 2019, orig. proceeding) ; Wald Tinkle Packaging & Distrib., Inc. v. Pinok , No. 01-02-01100-CV, 2004 WL 2966293, at *9 (Tex. App.—Houston [1st Dist.] Dec. 23, 2004, no pet.). As the court in Turner v. Peril noted, Section 18.001(c)(2)(B) allows the offering party to submit an affidavit by a non-expert custodian, whereas Section 18.001(f) requires a counter-affidavit be made "by a person qualified to testify in contravention." 50 S.W.3d at 747.

For example, in Hong v. Bennett , the court held a chiropractor's counter-affidavit could not be used to controvert affidavits submitted by a medical doctor, radiologist, and pharmacist. See 209 S.W.3d at 804. The court reasoned the chiropractor's counter-affidavit could be used to controvert the reasonableness and necessity of services provided by a chiropractic affiant, but not the reasonableness and necessity of services provided by other healthcare professionals, even though they work in the same general industry. See id.

Similarly, in Turner , the court held an orthopedic surgeon's conclusory and vague counter-affidavit could not be used to rebut affidavits submitted by a hospital, pharmacy, chiropractor, diagnostic center, nurse anesthetist, and doctor, as these individuals and entities were...