Strong Pipkin Partner Mike Hendryx on the Floor of the Texas Senate after testifying in support of HB 1693, a bill that made needed changes to the affidavit process provided under Texas Civil Practices and Remedy Code section 18.001.
Texas Civil Practice and Remedies Code section 18.001 was intended to provide a cost saving measure at trial by allowing a plaintiff to submit proof by affidavit that the amount he or she was charged for a service was reasonable at the time and place that the service was provided and that the service was necessary. If the responding party does not agree, Section 18.001 allows that party to serve a counter affidavit contesting the reasonableness of the charges or the necessity of the services. Unless struck, the counter affidavit essentially negates the evidentiary effect of the initial affidavit.
Over time, practical problems arose regarding the timing of the affidavits and counter affidavits, as well as the breadth of what proof was established by the affidavit.
As to timing, in some instances the plaintiff was serving the affidavit with the Original Petition, requiring the defendant to respond within thirty days of service. That meant reviewing the evidence and then hiring an expert to controvert the initial affidavit within the first thirty days of the lawsuit. On the other hand, some plaintiffs waited until thirty days before trial to file and serve the initial affidavits, forcing the defendant to respond on the eve of trial.
As to what the affidavits established, some courts were taking the position that the initial affidavit, if unchallenged, was binding on the jury and could not be disputed at trial. What had started out as a cost saving vehicle for undisputed charges, had turned into a very unfair process for the defendant.
HB 1693, passed in 2019, made much needed changes to Section 18.001. The amendments primarily address two issues:
(1) The deadlines to file the initial affidavits were changed and the deadlines for counter affidavits were shifted to give more time to respond, and
(2) The amendment made it clear that the affidavit process did not establish proximate cause; that issue remained in the hands of the jury and could be addressed by experts.
The amendments to Section 18.001 also built in flexibility. It allows the parties to agree on different deadlines or with leave of court, set different deadlines.