Opinion
Civil Action No. 4:20-cv-01370
2021-01-28
Barbara BROWN, Plaintiff, v. BURLINGTON COAT FACTORY OF TEXAS INC. and Burlington Coat Factory of Texas LP, Defendants.
Brad Eric Franklin, B.E. Franklin Legal, PLLC, Houston, TX, for Plaintiff. Andrew J. Sarne, Kane Russell Coleman & Logan PC, Houston, TX, for Defendants.
Brad Eric Franklin, B.E. Franklin Legal, PLLC, Houston, TX, for Plaintiff.
Andrew J. Sarne, Kane Russell Coleman & Logan PC, Houston, TX, for Defendants.
MEMORANDUM AND ORDER STRIKING AFFIDAVITS SUBMITTED PURSUANT TO TEX CIV PRAC AND REM CODE § 18.001
Charles Eskridge, United States District Judge
The motion by Defendants Burlington Coat Factory of Texas, Inc. and Burlington Coat Factory of Texas LP to strike affidavits submitted by Plaintiff Barbara Brown pursuant to § 18.001 of the Texas Civil Practice and Remedies Code is granted. Dkt 12.
Brown was injured in a store operated by Defendants and brought a negligence action against them in March 2020 in Texas state court. Dkt 1-2 at ¶¶ 7–12. Defendants properly removed the action in April 2020. Dkt 1.
Section 18.001(b) of the Texas Civil Practices and Remedies Code pertains to an efficient method of proof regarding the reasonableness and necessity of medical expenses, particularly with respect to personal injury litigants. Turner v. Peril , 50 S.W.3d 742, 746 (Tex. App.—Dallas 2001, pet. denied). It states:
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.
The Texas Supreme Court in 2011 directly described § 18.001(b) as "purely procedural, providing for the use of affidavits to streamline proof of the reasonableness and necessity of medical expenses." Haygood v. De Escabedo , 356 S.W.3d 390, 397 (Tex. 2011). It reiterated this holding in 2018. Gunn v. McCoy , 554 S.W.3d 645, 674 (Tex. 2018).
Brown filed a notice of service of affidavits pursuant to this provision of state law six weeks after removal. Dkt 8. She filed an amended notice two days later. Dkt 9. Defendants moved to strike the affidavits, arguing that many courts hold that § 18.001 is procedural rather than substantive, thus making it inapplicable in federal court. Dkt 12 at 2–3. Brown argues to the contrary, citing a handful of decisions finding § 18.001 to be substantive. Dkt 13 at 1–2. She argues in the alternative that even if § 18.001 is procedural, it's intertwined with her substantive rights so that striking the affidavits would "result in an inequitable administration of the law." Id at 3.
It has long been clear that federal courts sitting in diversity must apply state substantive law and federal procedural law. Hanna v. Plumer , 380 U.S. 460, 465, 85 S.Ct. 1136, 14 L.Ed.2d 8 (1965), citing Erie Railroad Co. v. Tompkins , 304 U.S. 64, 68, 58 S.Ct. 817, 82 L.Ed. 1188 (1938) ; see Charles Alan Wright and Arthur R. Miller, Federal Practice & Procedure § 4501 (West 3d ed October 2020 Update). But the Supreme Court recognizes that classifying a state law as substantive or procedural for Erie purposes is "sometimes a challenging endeavor." Gasperini v Center for Humanities, Inc , 518 U.S. 415, 427, 116 S.Ct. 2211, 135 L.Ed.2d 659 (1996) (citation omitted). It has identified three inquiries that inform such consideration, with none controlling or dispositive.
Those questions here would be, first, does applying § 18.001 significantly affect the result of the action? Guaranty Trust Co. v. York , 326 U.S. 99, 109, 65 S.Ct. 1464, 89 L.Ed. 2079 (1945). Second, is § 18.001 bound up with state-secured substantive rights and obligations? Byrd v. Blue Ridge Rural Electric Cooperative, Inc. , 356 U.S. 525, 533–34, 78 S.Ct. 893, 2 L.Ed.2d 953 (1958) (citations omitted). Third, would declining to apply § 18.001 result in forum shopping and inequitable administration of the laws ? Hanna 380 U.S. at 468, 85 S.Ct. 1136 (citation omitted). Answers in the affirmative tend to suggest that the state law is substantive in nature.
But of considerable pertinence, the Supreme Court also instructs that "federal courts in diversity cases must respect the definition of state-created rights and obligations by the state courts." Byrd , 356 U.S. 525 at 535, 78 S.Ct. 893, 2 L.Ed.2d 953. As noted above, the Texas Supreme Court has clearly stated that § 18.001 is a procedural rule, not a substantive provision of law. See Haygood , 356 S.W.3d at 397 ; Gunn , 554 S.W.3d at 674.
By these lights, and given the express guidance from the Texas Supreme Court, federal courts in Texas have in the main determined § 18.001 to be merely procedural. For example, see Akpan v. United States , 2018 WL 398229, *3 (S.D. Tex.) ; see also Galvez v. KLLM Transport Services LLC , 2021 WL 101514, *1–2 (N.D. Tex.) (slip copy); Baird v. Shagdarsuren , 2019 WL 2286084, *2 (N.D. Tex.) ; Holland v. United States , 2016 WL 11605952, *1 (N.D. Tex.). Still others have conducted a more fulsome Erie analysis and reached the same conclusion. For example, see Espinoza v. State Farm Mutual Automobile Insurance Co. , 2020 WL 4333558, *4–6 (S.D. Tex.).
A few have disagreed. For example, see Hutchison v. Gateway Insurance Co. , 2020 WL 7698819, *1–2 (W.D. Tex.) ; Bagley v. Dollar Tree Stores, Inc , 2019 WL 6492585, *6 (E.D. Tex.). Indeed, Brown specifically cites a decision by Judge Sidney Fitzwater of the Northern District of Texas as holding § 18.001 to be substantive. Dkt 13 at 2, citing Gorman v. ESA Management, LLC , 2018 WL 295793, *1–2 (N.D. Tex.). But Judge Fitzwater has since reconsidered that position and "now holds that the procedure of § 18.001(b) is inapplicable in federal court." Jones v. QuikTrip Corp. , 2020 WL 6149967, *2 (N.D. Tex.). Likewise, Judge David Godbey of the Northern District of Texas expressly changed his position on whether § 18.001(b) is procedural or substantive. Compare Bowman v. Cheeseman, LLC , 2014 WL 11515575, *1 (N.D. Tex.) (substantive), with Davila v. Kroger Texas, LP , 2020 WL 2331079, * 2–3 (N.D. Tex.) (procedural).
The Fifth Circuit has held in other contexts that "timely and direct pronouncements" by the highest court in Texas are naturally dispositive as to proper construction on points of Texas law. In re DePuy Orthopaedics Inc., Pinnacle Hip Implant Products Liability Litigation , 888 F.3d 753, 782 (5th Cir. 2018). It is thus most appropriate to simply abide by the admonition of the Texas Supreme Court that § 18.001(b) is "purely procedural." Haygood , 356 S.W.3d at 397 ; Gunn , 554 S.W.3d at 674. And that admonition hasn't come with indication that this statute is intertwined with substantive rights. Striking the affidavits thus doesn't create "an inequitable administration of the law," as argued by Brown. Dkt 13 at 3. To the contrary, the Texas Supreme Court has noted that such affidavits "are not conclusive," with the statute itself allowing competing affidavits to controvert them. Gunn , 554 S.W.3d at 672, citing Tex Civ Prac and Rem Code § 18.001(b), Haygood , 356 S.W.3d at 397–98.
The procedures set out by § 18.001(b) are inapplicable in this action. The affidavits submitted by Brown must be stricken.
The motion by Defendants Burlington Coat Factory of Texas, Inc and Burlington Coat Factory of Texas LP to strike the affidavits submitted by Plaintiff Barbara Brown is GRANTED . Dkt 12.
The notices of service of affidavits pursuant to § 18.001 of the Texas Civil Practices and Remedies Code are STRICKEN . Dkts 8, 9.
SO ORDERED.