Confirming and applying its previous opinion in In re Allstate Indemnity Insurance Co., 622 S.W.3d 870 (Tex. 2021), the Texas Supreme Court granted a Petition for Mandamus in In re Chefs’ Produce of Hous., Inc., ___ S.W.3d ___, 2023 WL ___ (Tex. Apr. 21, 2023) (per curiam) [22-0286], holding that the trial court abused its discretion by striking the counteraffidavits and testimony of Chefs’ Produce’s retained expert because the opinions expressed in a counteraffidavit need not be admissible to provide the reasonable notice required under Section 18.001(f), and that the inclusion of a causation opinion in a counteraffidavit is not a proper basis for striking it.

Plaintiff Antonio Estrada filed suit for personal injuries he sustained as the result of a collision with Mario Rangel, who was driving a truck owned by his employer, Chefs’ Produce.  Estrada timely served an affidavit under Section 18.001 asserting that he had incurred $19,321 in reasonable and necessary medical expenses because of the accident.  Chefs’ Produce timely served a counteraffidavit challenging the reasonableness and necessity of Estrada’s medical expenses from anesthesiologist and pain management specialist Dr. Benny Sanchez, along with a copy of Dr. Sanchez’s CV establishing that he practices in the Houston area, that he treats patients injured in auto accidents, and has over 30 years of experience as a treating physician.  In his counteraffidavit, Dr. Sanchez concluded that some of the treatment provided was unnecessary based on evidence that Estrada suffered from a preexisting shoulder injury.  With respect to the care that he agreed was necessary, Dr. Sanchez opined that the charges were substantially inflated compared to the rates for the same services under the National Medicare Fee Guidelines, the Healthcare Bluebook for the Houston area, and the cash prices he charges his own patients in the Houston area.

Estrada moved to strike Dr. Sanchez’s counteraffidavit and testimony, arguing that the counteraffidavit improperly challenged the cause of Estrada’s injuries, not the necessity of the treatment provided.  He also argued that comparison with the Medicare rates and Dr. Sanchez’s own pricing are unreliable methods of determining that the charges were unreasonable. The trial court granted the motion, striking the counteraffidavit “and the statements, opinions, and testimony contained therein,” and precluding Chefs’ Produce from calling Dr. Sanchez to testify as a witness on those matters.

More than nine months after the order was signed, the Texas Supreme Court issued its opinion in In re Allstate Indemnity Insurance Co., 622 S.W.3d 870 (Tex. 2021), which clarified that the “reasonable notice” required under Section 18.001(f) does not hinge on the admissibility of the counteraffiant’s testimony, but rather on whether the counteraffidavit allows 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.”  622 S.W.3d at 879.

Based on the Allstate opinion, Chefs’ Produce moved the trial court to reconsider the order, but the court denied the motion without stating the basis for its ruling.  A divided Houston Court of Appeals  (14^th District) denied a petition for mandamus, and Chefs’ Produce sought mandamus relief from the Texas Supreme Court.

The Texas Supreme Court granted the petition to consider whether the trial court properly applied Civil Practice and Remedies Code Section 18.001.  Noting that Dr. Sanchez explained the basis for his opinions that specified treatment was unnecessary and that medically necessary treatment was billed at an inflated rate, the Court found that his counteraffidavit provides the reasonable notice the statute requires, holding that Estrada could challenge the reliability of his opinions in a Robinson motion to exclude the testimony or through cross-examination at trial.  The Court rejected Estrada’s argument that the counteraffidavit was properly stricken because it “impermissibly challenges causation,” holding that although the statute provides that “the  counteraffidavit may not be used to controvert the causation element of the cause of action,” this does not mean that the presence of a causation opinion renders an otherwise compliant counteraffidavit invalid.  The Court held that Dr. Sanchez’s counteraffidavit easily satisfied all of the requirements of Section 18.001(f), particularly in light of its ruling in Allstate, and that Chefs’ Produce lacked an adequate appellate remedy because under the circumstances, the trial court’s improper order effectively foreclosed Chefs’ Produce from presenting rebuttal testimony on the reasonableness and necessity of Estrada’s past medical expenses.