If you are defense counsel in a personal injury suit, you may be accustomed to receiving an affidavit concerning cost and necessity of services from plaintiff’s counsel immediately or shortly following your answer to the suit. In many cases you may not know whether the case warrants hiring an expert to controvert the affidavit within Texas Civil Practice and Remedies Code Section 18.001’s thirty-day time frame.  To avoid possible exclusion of controverting evidence, you will need to file a motion for leave with the court or secure a Rule 11 agreement with plaintiff’s counsel to file a controverting affidavit.

But what if you receive notice of a deposition on written questions by plaintiff’s counsel to the plaintiff’s medical service providers and subsequently have the responses served on you? If those written questions include whether the costs of those services were reasonable and the services necessary, could plaintiff’s counsel use the deposition on written questions to prove the reasonableness and necessity of costs and services under Section 18.001?

Defense counsel must be prepared to respond appropriately. So the question arises: Is there any meaningful difference between an affidavit and a deposition that would prevent the application of Section 18.001 to the latter?

Black’s Law Dictionary distinguishes between an “affidavit” and a “deposition.” An affidavit is defined as a “voluntary declaration of facts written down and sworn to by a declarant.” Affidavit, Black’s Law Dictionary (10th ed. 2014).  A “deposition” is defined as a “witness’s out-of-court testimony that is reduced to writing for later use in court or for discovery purposes.” Deposition, Black’s Law Dictionary (10th ed. 2014).

On their face, these definitions look similar, but affidavits and depositions are different in practice:

“Definition of the term ‘Deposition’ (Depositio). In the civil law it meant simply the testimony of a witness. In very old English practice, simply the written testimony of a witness. In modern practice it means the testimony of a witness given or taken down in writing, under oath or affirmation, before a commissioner, examiner, or other judicial officer, in answer to interrogatories and cross interrogatories, and usually subscribed by the witness. A deposition is therefore distinguished from an affidavit, which is always an ex parte statement drawn up in writing without any formal interrogation, and signed and sworn to by the party making it, although in affidavits the party making it is constantly called a deponent, and said to depose.”

Deposition, Black’s Law Dictionary (10th ed. 2014).

Section 18.001 requires a party to serve an “affidavit.” A strict reading of the statute would exclude a deposition on written questions. After all, a deposition on written questions to a non-party, like a medical service provider, employs the coercive power of a court to require the non-party to answer. See Tex. R. Civ. P. 200, 205.  This is not present with affidavits.  Also, unlike with affidavits, another party may object to the written questions and serve cross-questions “on all other parties,” and the other parties may subsequently serve “redirect questions on all other parties.” See Tex. R. Civ. P. 200.

On the other hand, the purpose of the statute was to save time and expenses to litigants and inconvenience to medical providers by providing a simple procedure to prove up the reasonableness and necessity of medical expenses.  Were one to look at the purpose of the statute, he or she may conclude that form should not be put before substance, so that either an affidavit or deposition on written questions may be used so long as the information included in the latter satisfies Section 18.001.  This conclusion would be especially compelling if an opposing party chose to forego serving or failed to serve objections and cross-questions in response to the notice of deposition on written questions by the plaintiff.

For defense counsel, pending some clarification by the legislature or the courts, the best practice would be to treat a deposition on written questions as if it satisfies Section 18.001. Depending on when the notice of deposition on written questions to a plaintiff’s medical service provider is served, you may not be in a position to serve (meaningful) objections and cross questions in response.  File a controverting-affidavit within the statutory time frame or file a motion for leave to do so.  If for some reason you did not file a controverting affidavit, or if you filed a motion for leave which was denied, then object in your pretrial materials—for example in a motion in limine—and in trial to the use of a deposition on written questions as a means to prove the reasonableness and necessity of costs and services.