Vansill v. Dollar Tree Stores, Inc.

520 F.Supp.3d 847

Yvonne VANSILL, Plaintiff,

v.DOLLAR TREE STORES, INC., Defendant.

Civil Action No. 4:19-cv-612-SDJ-KPJ

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

Signed February 18, 2021

Geoffrey Emerson Schorr, Andrew J. Aldinger, Hutton Wesley Sentell, Schorr Law Firm PC, Garland, TX, for Plaintiff.

Christopher Michael Lemons, Robin Nicole Blanchette, Germer, PLLC - Houston, Houston, TX, for Defendant.

MEMORANDUM OPINION AND ORDER

KIMBERLY C. PRIEST JOHNSON, UNITED STATES MAGISTRATE JUDGE

Pending before the Court is Plaintiff Yvonne Vansill's ("Plaintiff") Motion to Determine Applicability of TEX. CIV. PRAC. & REM. ANN. § 18.001 et seq. (the "Motion") (Dkt. 20). On January 14, 2021, having received no response from Defendant Dollar Tree Stores, Inc. ("Dollar Tree"), the Court ordered Dollar Tree to file a response, if any, by January 22, 2021. See Dkt. 23. On January 22, 2021, Dollar Tree filed its response. See Dkt. 24. Having considered the pleadings, arguments, and applicable authorities, the Court finds the Motion (Dkt. 20) is hereby GRANTED IN PART and DENIED IN PART .

I. BACKGROUND

Plaintiff alleges she went shopping at one of Dollar Tree's stores in Sherman, Texas, on July 26, 2017. See Dkt. 6 at 2. While Plaintiff "was making her way through the store," her feet "suddenly, unexpectedly and without any warning slipped out from under her on a slippery, foreign transitory substance on the floor." Id. at 2–3. Plaintiff alleges the fall put her in shock, causing her to briefly lose consciousness. Id. at 3. When Plaintiff regained her senses, she allegedly felt pain "immediately" throughout her head and body. Id. Plaintiff required emergency medical care and was transported to Texoma Medical Center. Id. Plaintiff alleges she later learned "an oily substance on the floor that had been previously mopped by an employee" caused her fall. Id.

Plaintiff maintains there were no adequate warning signs or barricades, and she could not have reasonably been expected to discover the "foreign transitory substance" prior to her fall. Id. at 3, 5.

On July 22, 2019, Plaintiff initiated suit against Dollar Tree in the 15th Judicial District Court of Grayson County, Texas, asserting a premises liability claim under Texas law. See Dkt. 1-2 at 1, 6; Dkt. 1-7 at 1. Subsequently, Dollar Tree removed the action to this Court. See Dkt. 1. On November 13, 2020, Plaintiff filed the present Motion (Dkt. 20), wherein Plaintiff requests the Court determine whether affidavits served pursuant to TEX. CIV. PRAC. & REM. ANN. § 18.001 are applicable in federal court under Erie R.R. Co. v. Tompkins , 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938). On January 14, 2021, having received no response from Dollar Tree, the Court ordered Dollar Tree to file a response, if any, by January 22, 2021. See Dkt. 23. In that Order, the Court referred the parties to its Memorandum Opinion and Order in Peals v. QuikTrip Corporation , No. 4:20-cv-22-KPJ, 511 F.Supp.3d 770 (E.D. Tex. 2021). See Dkt. 23. Dollar Tree then filed its response (Dkt. 24).

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 ).

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. of N.Y. 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, the 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-affidavit 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) (holding 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) (holding 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) (finding a 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 held, 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 , 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, or doctor, as these individuals and entities were not themselves orthopedic surgeons. See 50 S.W.3d at 747.

B. DIRECT CONFLICT

"The initial step [in ...