April 2023
The Texas Supreme Court clarified the standard for use of a counter-affidavit under Texas Civil Practice and Remedies Code section 18.001. In a case in which the plaintiff filed a section 18.001 affidavit to prove the reasonableness and necessity of his medical expenses, the court held that a counter-affidavit is effective to dispute those issues if the counter-affidavit contains sufficient information to allow the claimant to understand “the nature and basic issues in controversy and what testimony will be relevant,” such that the claimant has “sufficient information to enable that party to prepare a defense or a response.” The counter-affidavit explained the counter-affiant's credentials, his opinion that some of the medical care in the 18.001 was not medically necessesary and why, and his opinion that some of the costs were excessive and why. The TSC held that this was sufficient to put plaintiff to his proof of those issues at trial. This would now require plaintiff to call an expert at trial preventing his reliance on the 18.001 affidavit.
Read the opinion by clicking here.
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