In RE ALLSTATE INDEMNITY COMPANY v. the State of Texas

IN THE SUPREME COURT OF TEXAS
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NO. 20-0071
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IN RE ALLSTATE INDEMNITY COMPANY, RELATOR

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ON PETITION FOR WRIT OF MANDAMUS
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Argued February 24, 2021

JUSTICE HUDDLE delivered the opinion of the Court.

In this mandamus proceeding, we are asked to decide whether the trial court abused its

discretion by striking a counteraffidavit served under section 18.001 of the Civil Practice and

Remedies Code and precluding the offering party from contesting the reasonableness of the subject

medical expenses at trial. We hold that it did, and we conditionally grant the writ.

I

Norma Alaniz sued her insurer, Relator Allstate Indemnity Company, after she was injured

in an automobile accident. Alaniz alleged that Allstate breached its policy by failing to pay her

Underinsured Motorist (UIM) benefits. Alaniz also brought claims for breach of the common-law

duty of good faith and fair dealing, violations of the Insurance Code and the Deceptive Trade

Practices–Consumer Protection Act, and negligent misrepresentation.

Among other damages, Alaniz seeks recovery of her reasonable and necessary medical

expenses. To support these claimed charges, Alaniz timely served affidavits from several medical

providers under Civil Practice and Remedies Code section 18.001. The providers submitting
affidavits included Corpus Christi EMS, the hospital and other clinics where Alaniz was treated,

radiologists, an orthopedist, two physical-therapy facilities, and a pharmacy. Alaniz’s medical

expenses, as set forth in the affidavits, total around $41,000. However, the bulk of these charges—

approximately $37,000—comes from three sources: the hospital; Dr. Miguel Berastain, her

treating orthopedist; and Humpal Physical Therapy. In response, Allstate timely served a

counteraffidavit from Christine Dickison, a registered nurse experienced in medical billing and

coding. Dickison’s counteraffidavit challenged the reasonableness, but not the necessity, of the

three medical service providers’ charges constituting the majority of Alaniz’s claimed medical

expenses.1

Dickison’s counteraffidavit first sets forth her educational and professional background.

She has an associate’s degree in Nursing and a bachelor’s degree in the Science of Nursing. She

is a registered nurse and a Certified Professional Coder. Dickison is also certified as a Professional

Medical Auditor by the AAPC (formerly the American Association of Professional Coders). This

portion of the counteraffidavit concludes by stating:

My medical training, 21 years of experience in healthcare including 12 years of
medical billing review, coding and auditor certification and demonstrated
knowledge of the CPT coding system qualify me as an expert with regard to
understanding medical documentation and medical billing practices.

Dickison’s counteraffidavit next explains the process she employed to arrive at her

conclusions regarding Alaniz’s claimed medical expenses. Dickison averred that “[f]or many

years on a regular basis,” she has performed billing and coding reviews involving the same or

1
Allstate separately served counteraffidavits from Dr. Charles Kennedy addressing the necessity of the
charges by some of Alaniz’s medical providers. Those counteraffidavits have not been challenged and are not at issue
here.

2
similar medical services. She first compares the CPT codes2 on the itemized medical bills to the

medical records (or chart) of the visit to determine whether the provider chose the correct CPT

code for the medical service rendered. She then uses an online database called Context4Healthcare

to determine the median charge for the service associated with each CPT code in the zip code and

on the date on which the service was rendered. According to Dickison, “to correctly utilize this

database and interpret the analysis, the user must be proficient in the use of CPT codes, the use of

CPT modifiers, billing interpretation, and the different medical fee schedules.”

After using this methodology to evaluate the medical billing submitted by Alaniz’s medical

providers, Dickison opined that the expenses charged by three of Alaniz’s medical providers

“exceeded what would be considered a reasonable charge for the medical services that were

provided and contained billing errors and/or issues.” Dickison’s counteraffidavit specifies which

amounts she claims are excessive.3 It includes a copy of her CV, a seven-page expert report, plus

appendices and ten pages of spreadsheets reflecting details of the referenced billing data.

Alaniz filed an Objection to and Motion to Strike Dickison’s Controverting Affidavit. In

it, Alaniz contended that Dickison’s counteraffidavit should be struck for not complying with Civil

Practice and Remedies Code section 18.001(f). Alaniz argued Dickison’s counteraffidavit was

“wholly and fatally defective” because (1) it was not on its face made by a person qualified to

testify in contravention of all or part of any of the matters contained in the initial affidavit,

(2) Dickison’s opinions were unreliable, and (3) the counteraffidavit did not give reasonable notice

of the bases of its conclusions. Alaniz prayed for the trial court to strike the counteraffidavit in its

2
CPT (Current Procedural Terminology) codes are uniform codes for medical, surgical, and diagnostic
services that have been developed and published by the American Medical Association and are standardized
throughout the country.
3
Dickison’s counteraffidavit also refers to the opinions set forth in Dr. Kennedy’s counteraffidavit. But
neither Dr. Kennedy’s opinions nor Dickison’s reliance on them is at issue in this proceeding.

3
entirety and “preclude [Dickison] from offering any opinions or testimony about the

reasonableness and necessity of the medical bills that [Alaniz] has filed by affidavit to date.”

After an evidentiary hearing at which Dickison testified, the trial court made the following

key findings:

 Dickison’s counteraffidavit “does not satisfy §18.001(f)’s requirement that a
proper counter-affidavit show, on its face, that it was made by a person who is
qualified, by knowledge, skill, experience, training, education, or other
expertise, to testify in contravention of all or part of any of the matters contained
in the initial affidavit.” While Dickison is a nurse and “a highly-qualified
medical coding and auditing expert,” she “does not have the expertise required
by the law of this State to controvert the reasonableness of the charges for the
hospital, doctors, physical therapists, pharmacies and other healthcare providers
at issue in this case.”

 Dickison’s opinions and the data on which they are based are unreliable.

 Dickison’s counteraffidavit fails to provide reasonable notice of the bases for
her contravention of Alaniz’s affidavits or show she is qualified to contravene
all the matters contained in Alaniz’s affidavits, and her familiarity with CPT
codes does not establish the requisite knowledge of the services themselves.

 Dickison’s choice of the “median” charge for determining whether a charge is
reasonable is conclusory, and her counteraffidavit fails to establish, by relevant
and reliable evidence, how a charge that exceeds the median charge is
unreasonable.

Based on these findings, the trial court granted Alaniz’s motion and rendered the order that

Allstate challenges. The order contains three key rulings:

1) Dickison’s counteraffidavit is “stricken from the record and may not be offered,
in any form or fashion, to contest the reasonableness and/or necessity of
[Alaniz]’s medical expenses, or for any other purpose”;

2) Dickison “is prohibited from testifying in this cause regarding the
reasonableness and/or necessity of the medical bills [Alaniz] has filed to date,
or for any other reason”; and

3) Allstate “is prohibited from questioning witnesses, offering evidence, or
arguing to the jury the ‘reasonableness of the medical bills’ that [Alaniz] has
submitted by affidavit to date.”

4
Allstate petitioned the court of appeals for a writ of mandamus compelling the trial court

to vacate its order. After initially granting a stay, the court denied the petition, stating only that

Allstate “has not met its burden to obtain mandamus relief.” In re Allstate Indem. Co., No. 13-19-

00346-CV, 2019 WL 5866592, at *2 (Tex. App.—Corpus Christi–Edinburg Nov. 8, 2019, orig.

proceeding) (mem. op.). Allstate then petitioned this Court for a writ of mandamus.

II

A

As the party seeking mandamus relief, Allstate must show both that the trial court clearly

abused its discretion, and that Allstate has no adequate remedy by appeal. See In re Prudential

Ins. Co. of Am., 148 S.W.3d 124, 135–36 (Tex. 2004) (orig. proceeding). A trial court abuses its

discretion when a decision is arbitrary, unreasonable, and without reference to guiding principles.

In re A.L.M.-F., 593 S.W.3d 271, 282 (Tex. 2019). Trial courts have no discretion in determining

what the law is or applying the law to the facts. In re Fox River Real Est. Holdings, Inc., 596

S.W.3d 759, 763 (Tex. 2020) (orig. proceeding); Walker v. Packer, 827 S.W.2d 833, 840 (Tex.

1992) (orig. proceeding).

B

Under Texas law, a party seeking to recover its past medical expenses must prove that the

amounts paid or incurred are reasonable. See Dall. Ry. & Terminal Co. v. Gossett, 294

S.W.2d 377, 383 (Tex. 1956) (“[R]ecovery of [past medical] expenses will be denied in the

absence of evidence showing that the charges are reasonable.”); see also TEX. CIV. PRAC. & REM.

CODE § 41.0105 (limiting the recovery of incurred medical expenses to the amount “actually paid

or incurred by or on behalf of the claimant”). As a result, claimants who do not avail themselves

of the procedure set forth in Civil Practice and Remedies Code section 18.001 must present expert

5
testimony to establish the reasonableness of their medical expenses, even if the amount is

undisputed. See Hong v. Bennett, 209 S.W.3d 795, 801 (Tex. App.—Fort Worth 2006, no pet.)

(“Without a section 18.001(b) affidavit . . . , a plaintiff must prove the reasonableness and

necessity of [medical] expenses by expert testimony.”).

In 1979, the Legislature enacted the predecessor to section 18.001, providing that, under

certain circumstances, an affidavit stating that medical expenses “were reasonable at the time and

place that the services were rendered” was sufficient evidence to support a finding that the amounts

charged were reasonable. Act of May 26, 1979, 66th Leg., R.S., ch. 721, § 1(a), 1979 Tex. Gen.

Laws 1778, 1778. Under the original version of the statute, a party could controvert this claim

simply by filing a counteraffidavit giving “reasonable notice of the basis upon which the party

filing it intends at trial to controvert all or part of the claim covered by the initial affidavit.” Id.

§ 1(b). This counteraffidavit could be made “upon information and belief by the party filing it, or

such party’s attorney.” Id. Once a counteraffidavit was filed, the claimant could no longer rely

on the original affidavit to constitute sufficient evidence at trial that its medical expenses were

reasonable. Id.

Over the years, the Legislature modified the requirements for affidavits and

counteraffidavits. The version applicable here, codified as section 18.001 of the Civil Practice and

Remedies Code, allows the claimant to submit to the jury the issue of the reasonableness of her

medical expenses without bringing an expert to testify by serving a compliant affidavit that goes

uncontroverted:

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 . . . is sufficient evidence to support a finding of fact
by judge or jury that the amount charged was reasonable . . . .

6
TEX. CIV. PRAC. & REM. CODE § 18.001(b).4 This initial affidavit must be made either by the

person who provided the service or the person in charge of records showing the service provided

and charge made. Id. § 18.001(c).

As the plain text of section 18.001(b) shows, the claimant’s serving of this initial affidavit

will not always allow her to reach the jury on reasonableness without expert testimony because a

party may controvert the claimant’s affidavit by serving a “counteraffidavit.” Section 18.001(f)

sets forth the requirements of a compliant counteraffidavit:

The counteraffidavit must give reasonable notice of the basis on which the party
serving it intends at trial to controvert the claim reflected by the initial affidavit and
must be taken before a person authorized to administer oaths. The counteraffidavit
must be made by a person who is qualified, by knowledge, skill, experience,
training, education, or other expertise, to testify in contravention of all or part of
any of the matters contained in the initial affidavit.

Id. § 18.001(f).

III

The issue in this proceeding is whether Dickison’s counteraffidavit complies with

section 18.001(f). We hold that it does, and that the trial court abused its discretion both by holding

it does not and by penalizing Allstate for its purportedly noncompliant affidavit in a manner not

authorized by section 18.001.

A

The trial court first concluded that Dickison lacks the required expertise to controvert the

reasonableness of the charges in the initial affidavits. Section 18.001(f) requires that the

4
All references to section 18.001 are to the version in effect before the 2019 amendments. In 2019, section
18.001 was amended to state that neither the initial affidavits nor the counteraffidavits constitute evidence regarding
causation. Act of May 20, 2019, 86th Leg., R.S., ch. 779, § 1, 2019 Tex. Sess. Law Serv. 2210, 2210–12 (amending
TEX. CIV. PRAC. & REM. CODE § 18.001). The 2019 amendments also modified the deadlines for filing affidavits. Id.
Because these amendments apply only to actions commenced after September 1, 2019, id. § 2, they do not apply to
this case. However, our disposition would be the same under the current version.

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counteraffidavit “must be made by a person who is qualified, by knowledge, skill, experience,

training, education, or other expertise, to testify in contravention of all or part of any of the matters

contained in the initial affidavit.” Id. This statutory text tracks the portion of Texas Rule of

Evidence 702 that establishes who may be qualified to provide expert opinion testimony. See TEX.

R. EVID. 702 (limiting expert opinion testimony to a witness who is “qualified as an expert by

knowledge, skill, experience, training, or education”). Dickison’s counteraffidavit recites her

extensive education and training in nursing and reflects she is a licensed registered nurse. She has

twenty-one years of experience in healthcare, including twelve years reviewing medical bills,

during which she further developed an understanding of medical documentation and medical

billing practices.

Yet Alaniz argues that Dickison is not qualified to testify because the reasonableness of

medical charges by a hospital or other medical provider can be challenged only by someone who

is in the same field of medicine. We disagree. In Gunn v. McCoy, we noted that, given the

complexity of modern health care costs and the lack of transparency in health care pricing, “it is

not uncommon or surprising that a given medical provider may have no basis for knowing what is

a ‘reasonable’ fee for a specific service.” 554 S.W.3d 645, 673 (Tex. 2018). However, we

concluded that insurance agents who have access to national and regional databases on which they

can compare prices “are generally well-suited to determine the reasonableness of medical

expenses.” Id.

Similarly, Dickison is qualified to testify as to the reasonableness of medical charges. As

set forth in her affidavit, she has education and over two decades’ experience as a registered

nurse—including a dozen years’ experience with medical billing and coding—and experience

using a nationwide database that compiles the amounts charged for the same medical services or

8
devices identified in the initial affidavits through standardized codes used by medical providers

across the country. The trial court itself described Dickison as “a highly-qualified medical coding

and auditing expert.” Dickison’s affidavit establishes that she is qualified to testify about the

reasonableness of the medical expenses described in Alaniz’s initial affidavits.5

Alaniz asserts that Gunn is inapplicable because it concerned the sufficiency of a claimant’s

initial affidavit under section 18.001(c), which (unlike section 18.001(f)) does not expressly

require the affiant to be “qualified . . . to testify” about the reasonableness of the expenses. But

the issue in Gunn was whether the claimant presented legally sufficient evidence of her past

medical expenses, and our discussion was not confined to section 18.001(c). Instead, we noted

that, while the statute’s intent is to “streamline” proof of reasonableness and necessity of medical

expenses, the statute does not negate the requirement that “reasonableness and necessity be in fact

proven by legally sufficient evidence.” Id. at 672–73. We therefore considered whether the affiant

in that case—a subrogation agent—was “in a position to testify to the reasonableness and necessity

of medical expenses.” Id. at 673. Having concluded in Gunn that an insurance agent who relies

on databases of medical expenses was qualified to testify that those expenses were reasonable, we

hold that Dickison’s affidavit similarly establishes her qualification to testify that certain medical

expenses were not.

The trial court’s order cited two court of appeals opinions in support of its finding that

Dickison lacked the required expertise to controvert the reasonableness of the medical expenses.

See Hong, 209 S.W.3d at 803; Turner v. Peril, 50 S.W.3d 742, 747 (Tex. App.—Dallas 2001, pet.

5
In contrast to reasonableness, we recognized in Gunn that medical providers are in the best position to
determine what treatments or procedures, and resulting expenses, are necessary. 554 S.W.3d at 674. So medical
providers “ideally” would be the ones to testify about the necessity of medical expenses or, put differently, whether a
particular course of treatment was necessary under the relevant standard of care. Id. But even as to necessity, we
stated that “the ideal paradigm does not reflect today’s complex health care system,” and the reality of our health care
system does not require that testimony about the necessity of medical expenses be limited to medical providers. Id.

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denied). Alaniz claims these cases support her assertion that only someone with expertise in a

particular medical field can be qualified to challenge the reasonableness of medical expenses in

that field. But neither case announces such a broad rule. Instead, they merely hold that an affiant’s

credentials in a particular field of medicine, in the absence of any other showing, are insufficient

to establish the required qualifications to controvert the reasonableness and necessity of medical

expenses in another field. See Hong, 209 S.W.3d at 804 (holding chiropractor’s counteraffidavit

was insufficient to controvert reasonableness and necessity of medical expenses of a physician, a

radiologist, and a pharmacist because the chiropractor affiant failed to state how he was qualified

to opine on those expenses); Turner, 50 S.W.3d at 747 (holding orthopedic surgeon’s

counteraffidavit was insufficient to controvert the reasonableness and necessity of medical

expenses that did not involve examination or treatment by an orthopedic surgeon because the

affiant failed to show how he was qualified to controvert those expenses).

In Broders v. Heise, we held that a physician is not automatically qualified to testify as an

expert on all medical matters. 924 S.W.2d 148, 152 (Tex. 1996). But we expressly recognized

that even non-doctors could provide expert testimony on a specific medical issue, provided that

the offering party establishes the expert’s knowledge, skill, experience, training, or education

regarding the specific issue. Id. at 153–54. The trial court abused its discretion in concluding that

Dickison’s counteraffidavit fails to establish that she is qualified to testify about the reasonableness

of Alaniz’s medical expenses.

B

The trial court also found that Dickison’s counteraffidavit fails to meet the statute’s

“reasonable notice” requirement. See TEX. CIV. PRAC. & REM. CODE § 18.001(f) (requiring

“reasonable notice of the basis on which the party serving [the counteraffidavit] intends at trial to

10
controvert the claim reflected by the initial affidavit”).6 It gave two reasons. First, the trial court

found that Dickison’s counteraffidavit fails to show that she is familiar with or knowledgeable

about the services and products in dispute.7 Second, the court found the counteraffidavit

conclusory insofar as it uses the median charge for a particular medical service in a specified

geographical area as the litmus test for opining whether an expense is reasonable. These may be

potential bases on which to challenge the admissibility and weight to be ascribed to Dickison’s

opinions at trial. But section 18.001 does not charge trial courts with determining the admissibility

of an affiant’s opinions, and a trial court’s doubts about admissibility are not a proper basis for

striking a section 18.001 counteraffidavit.

The inquiry the Legislature directs trial courts to make in assessing a section 18.001

counteraffidavit is whether it provides “reasonable notice of the basis on which the party serving

it intends at trial to controvert the claim reflected by the initial affidavit.” Section 18.001 does not

define “reasonable notice,” but its meaning is similar to the familiar “fair notice” requirement for

pleadings under Texas Rule of Civil Procedure 47. TEX. R. CIV. P. 47(a). Under Rule 47, we have

held that a pleading sufficiently provides “fair notice of the claim involved” if the opposing party

can ascertain from the pleading the nature and basic issues in controversy and what testimony will

be relevant. First United Pentecostal Church of Beaumont v. Parker, 514 S.W.3d 214, 224–25

6
Section 18.001(f) also requires that the counteraffidavit “must be taken before a person authorized to
administer oaths.” TEX. CIV. PRAC. & REM. CODE § 18.001(f); see also id. § 18.001(c)(1) (imposing the same
requirement for a claimant’s initial affidavit). This requirement is consistent with the general definition of “affidavit”
applicable to all civil statutes. TEX. GOV’T CODE § 312.011(1) (defining “affidavit” as a signed, written statement of
facts sworn to before an officer authorized to administer oaths). It is undisputed that Dickison’s counteraffidavit
satisfies this requirement.
7
In support of this finding, the trial court stated that Dickison “did not review the medical records underlying
the charges she audited.” However, Dickison states in her counteraffidavit that she reviewed the medical records for
the three challenged medical providers. She also testified at the hearing that she looked at the medical records to
compare what was charged by the medical provider to what was documented in the records.

11
(Tex. 2017); Horizon/CMS Healthcare Corp. v. Auld, 34 S.W.3d 887, 896–97 (Tex. 2000). This

standard measures whether the pleadings or, in this case, the counteraffidavit “provided the

opposing party sufficient information to enable that party to prepare a defense or a response.”

Parker, 514 S.W.3d at 225.

Dickison’s counteraffidavit unquestionably satisfies the reasonable-notice requirement.

The counteraffidavit itemizes each charge that is being controverted as unreasonable. And

Dickison explains in detail the bases on which she and Allstate challenge the reasonableness of

those charges: primarily, her comparison of the charges set forth in the initial affidavits with the

median charges for those same services during the same timeframe and in the same zip code,

according to the Context4Healthcare database. Indeed, Alaniz’s ability to fully develop her attack

on the reliability of Dickison’s methodology is ample evidence that the counteraffidavit provides

reasonable notice of the bases for Allstate’s challenges. The trial court abused its discretion by

concluding that Dickison’s counteraffidavit fails to satisfy the reasonable-notice requirement of

section 18.001(f).

C

Finally, the trial court concluded that “Dickison’s opinions are unreliable.” Allstate argues

that the trial court abused its discretion by importing a reliability requirement to the section 18.001

analysis. Alaniz counters that the opinions expressed in the counteraffidavit must meet the

standard for admissibility at trial because the second sentence of section 18.001(f) requires the

person making the counteraffidavit to be qualified “to testify” regarding matters contained in the

initial affidavit. Alaniz contends this phrase—“to testify”—requires courts to determine

admissibility under E.I. du Pont de Nemours & Co. v. Robinson, 923 S.W.2d 549 (Tex. 1995). We

disagree.

12
Nothing in the text of section 18.001(f) requires that an opinion expressed in a

counteraffidavit must meet the admissibility requirements for expert testimony. Alaniz points to

the phrase “to testify” in the second sentence of section 18.001(f). However, the plain text focuses

not on the substance of the testimony, but only on the qualifications of the affiant. TEX. CIV. PRAC.

& REM. CODE § 18.001(f). Whether a witness is qualified to provide expert testimony and whether

the expert’s testimony is reliable are distinct inquiries. See, e.g., Helena Chem. Co. v. Wilkins, 47

S.W.3d 486, 499 (Tex. 2001) (“A two-part test governs whether expert testimony is admissible:

(1) the expert must be qualified; and (2) the testimony must be relevant and be based on a reliable

foundation.”).

Alaniz also argues that if the opinions in Dickison’s counteraffidavit are unreliable, then

the counteraffidavit fails to give “reasonable notice” of the bases on which Allstate intends to

controvert. But this argument is flawed because determining whether a counteraffidavit meets

section 18.001(f)’s reasonable-notice standard does not require a court to assess reliability of the

expert’s opinions under Rule 702 or Robinson. As discussed above, a determination of whether

Dickison’s opinions are reliable is distinct from the question of whether the counteraffidavit

provides reasonable notice to Alaniz of the bases on which Allstate intends to controvert the

reasonableness of Alaniz’s medical expenses. The trial court erred by importing a reliability

requirement into its section 18.001 analysis.

Dickison’s counteraffidavit establishes that she is qualified to controvert the

reasonableness of the charges at issue, and the counteraffidavit satisfies section 18.001(f)’s

reasonable-notice requirement. The trial court abused its discretion by finding otherwise and by

13
imposing an additional reliability requirement not prescribed by section 18.001 and then striking

the counteraffidavit based on its failure to satisfy it.8

IV

Even if the trial court’s decision to strike Dickison’s counteraffidavit had been correct, we

would nevertheless grant mandamus relief because the trial court also abused its discretion by

overcorrecting for its perceived defects. The trial court (1) prohibited Dickison from testifying at

trial and, more broadly, (2) prohibited Allstate from “questioning witnesses, offering evidence, or

arguing to the jury the ‘reasonableness of the medical bills’” in Alaniz’s initial affidavits.

As this Court explained in Haygood v. De Escabedo, section 18.001 is a “purely

procedural” statute that is designed to “streamline proof of the reasonableness and necessity of

medical expenses.” 356 S.W.3d 390, 397 (Tex. 2011). In the absence of a proper controverting

affidavit, section 18.001(b) merely provides that a claimant may rely on an affidavit setting forth

the necessity and reasonableness of medical expenses to avoid adducing expert testimony on those

issues at trial, and, if she does so, the affidavit “is sufficient evidence to support a finding of fact . . .

that the amount charged was reasonable or that the service was necessary.” TEX. CIV. PRAC. &

REM. CODE § 18.001(b). While an uncontroverted section 18.001(b) affidavit may constitute

sufficient evidence of reasonableness and necessity, nothing in section 18.001 even suggests an

uncontroverted affidavit may be conclusive on reasonableness and necessity. There is no textual

support for the assertion that the absence of a proper counteraffidavit constitutes a basis to

constrain the defendant’s ability to challenge—through evidence or argument—the claimant’s

assertion that her medical expenses are reasonable and necessary. The claimant’s decision to file

8
Our holding is limited to counteraffidavits submitted under section 18.001 for the purpose of controverting
a claimant’s affidavit on the reasonableness and necessity of services and their costs. We do not address the standards
for testing affidavits offered for some other evidentiary purpose.

14
initial affidavits may relieve her of the burden to adduce expert trial testimony on reasonableness

and necessity, but the opposing party’s failure to serve a compliant counteraffidavit has no impact

on its ability to challenge reasonableness or necessity at trial.

Nevertheless, several Texas courts have held that, when a counteraffidavit is struck for not

complying with section 18.001(f), the party serving the counteraffidavit is precluded from

presenting any other evidence at trial to oppose the reasonableness or necessity of the medical

expenses in the initial affidavit. See, e.g., Ten Hagen Excavating, Inc. v. Castro-Lopez, 503

S.W.3d 463, 494 (Tex. App.—Dallas 2016, pet. denied) (concluding the trial court properly

excluded testimony controverting the plaintiff’s medical expenses “in the absence of a proper

counteraffidavit”); see also In re Savoy, 607 S.W.3d 120, 130 (Tex. App.—Austin 2020, orig.

proceeding [mand. pending]) (“[I]f no counteraffidavit is filed, an opposing party may not

introduce contrary evidence at trial . . . .”). This rule appears to originate from the court of appeals’

opinion in Beauchamp v. Hambrick, 901 S.W.2d 747 (Tex. App.—Eastland 1995, no writ). In its

discussion of section 18.001, the Beauchamp court made the following observation:

Section 18.001 is an evidentiary statute which accomplishes three things: (1) it
allows for the admissibility, by affidavit, of evidence of the reasonableness and
necessity of charges which would otherwise be inadmissible hearsay; (2) it permits
the use of otherwise inadmissible hearsay to support findings of fact by the trier of
fact; and (3) it provides for exclusion of evidence to the contrary, upon proper
objection, in the absence of a properly-filed counteraffidavit.

Id. at 749. The first two accomplishments of the statute as described in Beauchamp are consistent

with the text of section 18.001: it allows claimants to introduce evidence of reasonableness and

necessity through affidavits that would otherwise be hearsay, and it dictates that those affidavits

are sufficient to support findings that those medical expenses were reasonable and necessary. Id.;

TEX. CIV. PRAC. & REM. CODE § 18.001(b); see also City of Austin v. Flink, 454 S.W.2d 389, 390

(Tex. 1970) (recognizing that an affidavit is hearsay evidence). But the third “accomplishment”

15
described by Beauchamp has no basis in the statute’s text. Section 18.001 nowhere provides for

the exclusion of any evidence based on the absence of a proper counteraffidavit. The Beauchamp

court provided no rationale for its expansion of the statutory text. See Beauchamp, 901 S.W.2d

at 749.

By creating an exclusionary sanction for the failure to satisfy section 18.001(f) that finds

no basis in the statutory text, Beauchamp and the courts following it have turned this “purely

procedural” statute into a death penalty on the issue of past medical expenses. The trial court’s

order here did exactly that: because the court found Dickison’s counteraffidavit did not comply

with section 18.001(f), it precluded Dickison from testifying on the reasonableness or necessity of

Alaniz’s medical expenses “or for any other reason,” and it prohibited Allstate from “offering

evidence” of any kind regarding the reasonableness of the medical expenses addressed in Alaniz’s

affidavits. The trial court abused its discretion by excluding this testimony and evidence without

a valid legal basis. See In re Tex. Ass’n of Sch. Bds., Inc., 169 S.W.3d 653, 656 (Tex. 2005) (orig.

proceeding) (“[T]rial courts have no discretion in determining the legal principles controlling their

rulings or in applying the law to the facts . . . .”).

In addition to preventing Allstate from introducing its own evidence to contradict the

reasonableness of Alaniz’s medical expenses, the trial court’s order further prohibited Allstate

from “questioning witnesses” or “arguing to the jury” about the reasonableness of Alaniz’s claimed

expenses. Just as the exclusion of evidence is not justified by a party’s failure to comply with

section 18.001(f), the trial court’s prohibition on questioning witnesses or presenting jury

argument on the topics of reasonableness and necessity of medical expenses has no legal basis.

The inclusion of these prohibitions was also an abuse of the trial court’s discretion. See Tex. Ass’n

of Sch. Bds., 169 S.W.3d at 656.

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Alaniz points to section 18.001(e) to support the trial court’s order. Subsection (e), which

establishes the timing and procedure for serving a counteraffidavit, begins by referring to “[a] party

intending to controvert a claim reflected by the [initial] affidavit.” TEX. CIV. PRAC. & REM. CODE

§ 18.001(e). Alaniz argues that, because the trial court found Allstate failed to serve a sufficient

counteraffidavit under section 18.001(f), the trial court correctly concluded that Allstate was not a

“party intending to controvert” the initial affidavits, and Allstate waived its intent to controvert

Alaniz’s initial affidavits. We reject this reading of the statute. Section 18.001(e) identifies the

party to whom its timing and procedural requirements apply: the “party intending to controvert”

an initial affidavit. Nothing in the statute suggests that a party’s failure to comply with

section 18.001(f) demonstrates that party lacked the intent to controvert the initial affidavit. Nor

is a mere failure to comply with section 18.001(f) evidence of the type of intentional conduct

necessary to establish a waiver of the intent to controvert the initial affidavit. See Sun Expl. &

Prod. Co. v. Benton, 728 S.W.2d 35, 37 (Tex. 1987) (defining waiver as “an intentional

relinquishment of a known right or intentional conduct inconsistent with claiming that right”).

We conclude the trial court clearly abused its discretion, both by erroneously holding that

Dickison’s counteraffidavit fails to comply with the section 18.001(f) requirements and by

precluding Allstate from controverting Alaniz’s medical expenses through evidence or argument

based on an erroneous reading of section 18.001.

V

We next address whether mandamus relief is warranted. Mandamus is an “extraordinary”

remedy, not issued as a matter of right, but at the Court’s discretion. Prudential, 148 S.W.3d

at 138 (quoting Rivercenter Assocs. v. Rivera, 858 S.W.2d 366, 367 (Tex. 1993) (orig.

proceeding)). In deciding whether to grant mandamus relief, we look to whether an appeal is an

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inadequate remedy. In re Garza, 544 S.W.3d 836, 840 (Tex. 2018) (orig. proceeding). “No

specific definition captures the essence of or circumscribes what comprises an ‘adequate’ remedy;

the term is ‘a proxy for the careful balance of jurisprudential considerations,’ and its meaning

‘depends heavily on the circumstances presented.’” Id. (quoting Prudential, 148 S.W.3d at 136–

37).

Alaniz urges us to deny mandamus relief, describing the trial court’s order as a “routine

evidentiary ruling.” But this understates the effect of the trial court’s order, which (1) allows

Alaniz to avoid presenting expert testimony at trial to establish evidence sufficient to support a

finding of reasonableness as to her medical expenses; (2) excludes Dickison’s testimony on any

issue; and (3) prohibits Allstate from “offering evidence,” “questioning witnesses,” or “arguing to

the jury” about the reasonableness of Alaniz’s medical expenses. The trial court’s order is far from

routine.

An appeal is not an adequate remedy when “the party’s ability to present a viable claim or

defense at trial is vitiated or severely compromised” by the trial court’s error. Walker, 827 S.W.2d

at 843. The trial court’s order not only precludes Allstate from presenting its own evidence

regarding the reasonableness of Alaniz’s medical expenses, but it also prohibits Allstate from

challenging Alaniz’s evidence through cross-examination or jury argument. The trial court’s order

would preclude Allstate from engaging in meaningful adversarial adjudication of Alaniz’s claim

for payment of medical expenses, vitiating or severely compromising Allstate’s defense.

Mandamus relief is therefore appropriate.

Alaniz contends that Allstate still has a viable defense because it can challenge other

elements of Alaniz’s claims, including liability. But the mere fact that Allstate could present

different, possibly less compelling, arguments does not minimize the crippling effect the trial

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court’s order would have on Allstate’s ability to challenge the reasonableness of Alaniz’s medical

expenses, a central component of her claimed damages. We conclude that an appeal provides an

inadequate remedy from the trial court’s order; therefore, mandamus relief is appropriate.9

* * * * *

The trial court abused its discretion when it concluded that Dickison’s counteraffidavit fails

to comply with the requirements of section 18.001(f) of the Civil Practice and Remedies Code.

The court also abused its discretion by granting relief that finds no legal basis in section 18.001

for the purported failure to comply with the statute. We conditionally grant Allstate’s petition for

writ of mandamus and direct the trial court to vacate its May 24, 2019 Amended Order granting

Alaniz’s motion to strike the counteraffidavit. We are confident the trial court will comply, and

the writ will issue only if the court does not.

______________________________
Rebeca A. Huddle
Justice

OPINION DELIVERED: May 7, 2021

9
We do not hold that mandamus relief is appropriate in every case in which a trial court erroneously strikes
a counteraffidavit under section 18.001. But under the particular set of facts here, and given the expansive relief
granted by the trial court’s order, Allstate has established its entitlement to mandamus relief in this proceeding.

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