Reed v. USA

Filing 69

MEMORANDUM OPINION denying as moot 13 MOTION for Partial Summary Judgment on Damages (Signed by Magistrate Judge Nancy K Johnson) Parties notified.(sjones, 4)

United States District Court
Southern District of Texas

ENTERED
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
CAROLE REED and
RUSSIE REED,

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Plaintiffs,
v.
UNITED STATES OF AMERICA,
Defendant.

March 22, 2019
David J. Bradley, Clerk

Civil Action No. H-17-1491

MEMORANDUM OPINION
Pending before the court1 are Defendant’s Motion for Summary
Judgment on Damages (Doc. 13) and the responses and replies filed
thereto.

The motion is DENIED.
I.

Case Background

The facts of this action have been recounted in more detail in
the court’s opinion denying Defendant’s motion for summary judgment
on liability.

Relevant herein, Plaintiff Carole Reed (“Reed”)

seeks recovery for medical expenses and personal injury arising
from a collision with a postal vehicle.
On September 15, 2017, the court entered a docket control
order requiring Plaintiffs to file their expert reports by December
16, 2017.

See Doc. 11, Docket Control Order.

On May 14, 2018, Defendant filed the instant motion seeking a
summary judgment in its favor on the issue of damages on the ground

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The parties consented to proceed before the undersigned magistrate
judge for all proceedings, including trial and final judgment, pursuant to 28
U.S.C. § 636(c) and Federal Rule of Civil Procedure 73. See Doc. 35, Ord.
Dated June 26, 2018.

that

Plaintiffs

had

not

supplied

expert

reports

on

the

reasonableness of Reed’s past medical expenses.
In response, Reed attached twelve affidavits supporting the
reasonableness of the claimed medical expenses.

See Exs. 1-12,

attached to Doc. 19, Pls.’ Resp. to Def.’s Mot. for Partial Summ.
J., Affs. of Custodians of Record.

Each affidavit explained the

expenses claimed and opined that the expenses were reasonable for
like or similar services at the time and place that the services
were provided.

See id.
II.

Analysis

This is a case brought under the Federal Tort Claims Act, and
Texas provides the applicable law.
15 F.3d 400, 402 (5th Cir. 1994).

See Charles v. United States,

In Texas, in order to recover for

past medical expenses, a plaintiff must show that the amount of
medical expenses

was

actually

paid

or

expenses were reasonable and necessary.

incurred

and

that the

See Hamburger v. State

Farm Mut. Auto Ins., 361 F.3d 875, 886 (5th Cir. 2004).
Defendant argues that Reed must have “direct expert testimony”
to establish that medical expenses are reasonable and necessary and
that those experts must follow the protocol set forth in Federal
Rule of Civil Procedure 26(a)(2).

Reed counters that Section

18.001 of the Texas Civil Practice & Remedies Code permits the use
of affidavits to support the reasonableness of medical expenses.
The court acknowledges that federal courts have been divided

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on whether Section 18.001 affidavits may be used to establish the
reasonableness of a plaintiff’s claim for recovery of medical
expenses in federal court.

See Carreon v. King, Case No. 3:15-CV-

CV-2089, 2016 WL 7669514 *4, n.1 (N.D. Tex. 2016)(collecting
cases).

However, the court need not reach this issue of whether

Section 18.001 affidavits are permissible in federal court.
After Defendant filed its motion for summary judgment on
damages, Reed supplemented her disclosures to include the expert
testimony of her treating physician concerning Reed’s medical care
and

the

reasonableness

Defendant’s

objections,

of

Reed’s

the

medical

court

allowed

treatment.
Reed’s

Over
treating

physician, Steven Esses, to offer expert testimony on Reed’s past
medical treatment, past and future medical expenses, and whether
the medical treatment was reasonable and necessary.

See Doc. 54,

Minute Entry Order Dated September 26, 2018.
As

it

testimony

appears
on

the

that

Reed

will

reasonableness

be offering
of

the

direct expert

medical

expenses,

Defendant’s Motion for Partial Summary Judgment on Damages (Doc.
13) is DENIED as MOOT.
SIGNED this 22nd day of March, 2019.

______________________________
U.S. MAGISTRATE JUDGE

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