Pitfalls for Texas Lawyers in Federal Court

 

Texas personal injury lawyers who handle a wide variety of personal injury claims, typically prefer to file in state court since this is where most of their cases are and they are most familiar with the Texas rules. However, this is not always possible. There are certain claims which must be filed in the federal court system such as claims against the federal government or a branch thereof or claims involving federal questions of law.  Additionally, some cases may be removed to federal court under federal diversity jurisdiction which allows a defendant to remove a case from state court to federal court when the defendants are from different states than the plaintiffs.

State vs Federal law Application

When a case is removed to federal court, the federal court still applies state substantive law but applies federal procedural law. Erie Railroad v. Tompkins, 304 U.S. 64 (1938). Failure to adhere to proper procedure may result in your case being dismissed. Thus, it is important for a Texas personal injury attorney to be familiar with the differences in Texas Rules of Civil Procedure vs Federal Rules of Procedure.

Differences in State vs Federal Procedure

There are three main differences in the Federal vs Texas procedural rules that commonly cause problems for Texas plaintiff’s lawyers whose cases have been removed to federal court.   1) Automatic Initial Disclosures; 2) How to properly disclose/designate experts, and; 2) How and when to properly prove up past medical bills.  This paper will discuss those pitfalls and how to avoid them as well as discuss the implications of these differences.

Automatic Initial Disclosures

In Texas, discovery is conducted by one side sending you Requests for Disclosures, Interrogatories, Requests for Production and/or Requests for Admissions. A party has no duty to disclose anything until asked by the other party, generally.  Under Federal Rule of Procedure 26, certain discovery is required to be produced automatically “without awaiting a discovery request.” This is done in the form of Initial Disclosures.  It is largely the Plaintiff’s burden to make sure this happens. The disclosures that take place must be performed within 14 days after the initial conference set by the Court.  Failure to make these disclosures can result in critical evidence and/or witnesses being excluded.  Thus, to avoid this trap, one needs to familiarize themselves with Federal Rule of Civil Procedure 26 and prepare timely disclosures accordingly.

Identification and Designation of Medical Experts

Another federal court procedural trap for the unwary Texas lawyer is the identification and disclosure of medical experts—specifically, treating physicians. Under the Texas Rules of Civil Procedure, all experts are required to be identified and their opinions disclosed vis Responses to Requests for Disclosure. Failure on the part of the opposing side to send these may result in no duty to disclose experts. (Some courts further impose a duty to disclose experts in a separate document via local rules.)  Texas disclosure of experts generally only requires that the lawyer provide the identify, address, and a basic description of the subject matter upon which he expert with testify. Producing a report is optional.

Federal Court is very different. One of the requirements of Rule 26 is that the disclosure be timely supplement with not just the above information, but also that expert reports be produced for testifying experts. This Rule has been the subject of much debate in the Courts when it comes to treating physicians.  In the past, treating physicians have been treated as fact witnesses vs expert witnesses in federal court. Fact witnesses only require disclosure, not reports. However, federal courts have since clarified that treating physicians are not treated exactly as fact witnesses nor testifying experts.

In Bowman v Cheeseman, LLC, 2014 WL 11515575 ((N.D.Tex.2014), the Court discussed in length the identification and designation requirements for treating medical providers as follows:

 

“Whether to consider treating physicians as fact witnesses or expert witnesses under Rule 26(a)(2) has been a topic of much discussion among courts. Prior to 2010, treating physicians were often exempt from Rule 26(a)(2)’s disclosure in so much as they testified to facts related to the medical records and treatment. Yet, ‘where physicians’ testimony was prepared in anticipation of litigation…courts have found that the treating physician acts more like an expert.’

Congress amended Rule 26 in 2010 and the 2010 Advisory Committee Notes specifically address treating physicians, thus leading courts to the conclusion that any testimony not contained in the medical records is more aptly considered expert testimony and subject to disclosure under section (a)(2)(C).”

Id. at *2. The Court then goes on to cite Massey v. United States, 2013 WL 960273 at *3 (S.D. Miss. 2012) for the proposition “A party’s treating physicians are not required to comply with the expert report requirement of Rule 26(a)(2)(B), but the must be designated in accordance with Rule 26(a)(2)(A).”   Thus, according to Bowman v. Cheeseman, LLC, you have to designate treating physicians like experts and disclose the nature of their testimony, but you do not have to produce a report.

However, an older case suggests the issue is not as clear cut. In Cooper v. Wal-Mart Transp., L.L.C., No. H-08-0085, 2009 WL 290477, at *1 (S.D. Tex. Feb. 5, 2009) the court opined “…the treating physician exception to the expert report requirement applies only when the treating physician's opinion testimony is based on personal knowledge obtained from examining and treating an individual. If the physician's opinion testimony is based on information learned outside the course of treatment, a written report is required.”   This case was addressing doctors who were designated late in order to testify whether a person was competent to return to work, but the generic language should give practitioners pause. Until the 5th Circuit decides to clarify the issue, the law is subject to change.

As a practical matter, the safest way to ensure the law doesn’t suddenly change and catch you unprepared is to have the expert you anticipate will testify at trial write a report early on during the case. This way you do not find yourself scrambling to get a doctor beyond your control to respond and write a detailed report so that you can respond to a Motion to Strike or a Motion for Summary Judgment. Then, if a Motion for Summary Judgment comes up before a deposition can be obtained, you will be able to ask the doctor to sign an affidavit establishing his credentials and authenticating his opinions in the report for your response.

Proving up Past Medical Bills in Federal Court

Under the Texas Civil Practices and Remedies Code section 18.001, there is a cost-saving rule that allows a personal injury attorney to prove that the medical bills are both reasonable and necessary by having the records custodian sign an affidavit to this effect. This rule not only effectively authorizes custodians to give expert testimony, but it also exempts their affidavit from the hearsay rule.  The defense is given a limited window in which to file counter-affidavits. Failure to do so timely means they waive the right to challenge on those issues.

What makes this rule so important in Texas is that the alternative is to 1) order up the records by Deposition Upon Written Question and 2) have a doctor testify as to the reasonableness and necessity of the bills. Doing this means sending out a subpoena, and having an agent sit down and administer an oath to the records custodians before having them answer specific questions under oath to authenticate the records as business records, and then finally paying a doctor to review them and testify.  It is a process that can run tens of thousands of dollars depending upon the case.

Federal Court does not have a comparable Rule 18.001.  Until recently, the Federal Courts have always allowed these affidavits to be used in cases removed to federal court under the justification that 18.001 is a Rule that contains both substantive law and procedural law effects.   See Rahmi v. United States, 474 F.Supp.2d 825, 829 (N.D. Tex. 2006).  In recent years, however,  this has come under question. A recent judicial opinion in the Southern District indicated that Judge Atlas sees 18.001 as purely procedural in light of the dicta in a recent Texas Supreme Court opinion--Haygood v. De Escobedo., 356 S.W.3d 390 (Tex.2011). See: Akpan v. United States, No. 4-16-2981, 2018 WL 398229, *3 (S.D. Tex Jan. 12, 2018) (Atlas, N.). However, other recent federal courts have continued to follow Rahmi by allowing finding that 18.001 is both substantive law and procedural law in nature. Gorman v. ESA Management, LLC, No. 3:17-CV-0792-D, 2018 WL 295793 * 1 (N.D. Tex. January 4, 2018) (Fitzwater, S.); Butler v United States, No 3:15-CV-2969 at *3 (N.D. Tex. June 2, 2017) (Lynn, C.J.)(order); Bowman v. Cheesman, LLC, 2014 WL 11515575, at *1 (N.D. Tex., Dec. 9, 2014)(Godbey, J.).

As a practical matter, one cannot rely on the18.001 affidavits being admitted into evidence. Even if the court a person is in has done so in the past, there is no guarantee that the 5th Cirvuit will not take it up and rewrite the law yet again.  Thus, to protect oneself, the Texas personal injury lawyer should 1) authenticate the medical bills and records as business records by Deposition By Written Question AND 2) obtain testimony from a medical expert establishing the reasonableness and necessity of the medical expenses.  Again, as discussed previously, one would also be wise to procure and produce a report from the testifying doctor to cover all possibilities.

Conclusion

Texas procedural law and federal procedural law are very different. There are a number of traps that the plaintiff’s lawyer can get caught up in if he/she attempts to handle a federal court case in the same manner as a Texas state court case. These traps can be avoided by 1) retaining, obtaining a report from and deposing a medical expert early on in the case, and 2) authenticating medical records via Deposition by Written Questions.  Although these methods drastically increase the cost of bringing a claim, failure to take note of these differences and prepare accordingly could be fatal to one’s case.

 

About the Author:

 

Paul H. Cannon is a shareholder, trial attorney and online marketing manager at Simmons and Fletcher, P.C. He has been practicing personal injury law since 1995 and is certified in personal injury trial law by the Texas Board of Legal Specialization. 

 

 

 

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