Supreme Court of Texas

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No. 22-0286

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In re Chefs’ Produce of Houston, Inc., and Mario Alberto Rangel,

Relators

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On Petition for Writ of Mandamus

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PER CURIAM

The defendants in this personal-injury suit arising from a car 

accident petition for mandamus relief from the trial court’s order 

striking their counteraffidavit served under Section 18.001 of the Civil 

Practice and Remedies Code. Relying on our opinion in In re Allstate 

Indemnity Insurance Co., 622 S.W.3d 870 (Tex. 2021), the defendants 

argue that the trial court’s order was an abuse of discretion for which 

they lack an adequate remedy by appeal. We agree and conditionally 

grant the writ.

I. Background

Antonio Estrada was admitted to St. Luke’s Medical Center for 

treatment after being involved in a car accident with Mario Rangel in 

Houston. At the hospital, Estrada complained of head, shoulder, neck, 

and rib pain along his right side. The hospital conducted x-rays of his 

right shoulder, chest, and ribs. All three x-rays came back negative. 
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The hospital also performed a CT scan of his spine, which indicated 

injuries. 

Estrada later received a shoulder and back MRI at Memorial MRI 

and Diagnostics. The shoulder MRI indicated that he suffered from 

bicep tendinosis, which is caused by degeneration of the bicep tendon’s 

collagen due to chronic overuse. 

After the MRI, Estrada received pain-management care from 

DaVinci Pain Consultants, which administered a shoulder-block 

injection for his right shoulder pain. DaVinci indicated that it provided 

the injection to treat osteoarthritis, adhesive capsulitis, and rheumatoid 

arthritis, though Estrada’s medical records did not indicate that he 

suffered from any of these conditions in his right shoulder.

Estrada sued Rangel and his employer, Chefs’ Produce of 

Houston, Inc. (collectively, Defendants), alleging that Rangel’s 

negligence caused the car accident and Estrada’s resulting injuries. 

Estrada timely served an affidavit under Section 18.001 of the Civil 

Practice and Remedies Code, averring that he had incurred $19,321 in 

reasonable and necessary medical expenses because of the accident. 

Defendants timely served a counteraffidavit challenging the 

reasonableness and necessity of those expenses. Defendants retained 

Dr. Benny Sanchez—an anesthesiologist and pain-management doctor 

practicing in the Houston area—as its counteraffiant, attaching a copy 

of Dr. Sanchez’s curriculum vitae as an exhibit to the counteraffidavit.

The counteraffidavit and CV collectively establish Dr. Sanchez’s 

qualifications. He has practiced anesthesiology and pain management 

for over thirty years. In addition, he treats automobile-accident patients 
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as part of his practice. He is familiar with reasonable and necessary 

medical charges for pain management and anesthesiology care through 

his experience as a practicing physician.

In his counteraffidavit, Dr. Sanchez concluded that some of the 

care Estrada received was neither necessary nor reasonable. For 

example, based on imaging studies, Dr. Sanchez opined that Estrada 

had a preexisting shoulder injury that rendered the shoulder MRI 

unreasonable and medically unnecessary. Dr. Sanchez further opined 

that, based on his experience as a pain-management physician, 

Estrada’s shoulder-block injection was similarly unreasonable and 

medically unnecessary. Finally, concerning other care that Dr. Sanchez 

agreed was medically necessary, he opined that the providers charged 

substantially inflated rates. To reach this opinion, he compared the 

amounts cited in Estrada’s affidavit to three sources: the National 

Medicare Fee Guideline, the Healthcare Bluebook for the Houston area, 

and the cash price Dr. Sanchez charges his patients in his Houston-area 

practice.

The National Medicare Fee Guideline provides guidelines for 

determining the reasonable charge that Medicare will reimburse for 

various procedures. The Healthcare Bluebook is a national database of 

costs for medical services broken down by zip code. Dr. Sanchez’s 

assessment of what constituted a reasonable fee was consistently higher 

than both the Medicare guideline price and his cash price.

Estrada moved to strike Dr. Sanchez’s counteraffidavit and 

testimony. Estrada argued that the counteraffidavit improperly 

challenged the cause of Estrada’s injuries, not the necessity of his 
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treatment. He further argued that Medicare rates and Dr. Sanchez’s 

cash rates were unreliable methods for approximating a reasonable 

charge for medical services. The trial court granted the motion, striking 

Dr. Sanchez’s counteraffidavit “and the statements, opinions, and 

testimony contained therein,” and precluding Defendants from calling 

Dr. Sanchez as a witness to provide such testimony. 

Over nine months after the trial court signed that order, we 

issued our opinion in Allstate, which substantially clarifies 

Section 18.001 practice. Shortly thereafter, Defendants moved the trial 

court to reconsider its order. The trial court denied the motion without 

stating its grounds, and a divided court of appeals denied Defendants’ 

petition for writ of mandamus. ___ S.W.3d ___, 2022 WL 619680, at *1 

(Tex. App.—Houston [14th Dist.] Mar. 3, 2022). Defendants now seek 

mandamus relief in this Court.

II. Discussion

A party is entitled to mandamus relief if the trial court clearly 

abused its discretion and the party lacks an adequate remedy at law. In 

re Gonzales, 619 S.W.3d 259, 261 (Tex. 2021). A trial court abuses its 

discretion if it fails to apply a statutory requirement properly because 

courts have no discretion in determining what the law is or applying it 

to facts. Id. Here, the issue is whether the trial court properly applied 

Civil Practice and Remedies Code Section 18.001, which relates to 

proving the reasonableness of expenses a claimant seeks to recover.

A. Abuse of Discretion

Generally, parties seeking to recover past medical expenses must 

prove that the amounts they paid or incurred are reasonable. Allstate, 
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622 S.W.3d at 87. Unless claimants avail themselves of the procedures 

outlined in Section 18.001, they must present expert testimony at trial 

to establish that their medical expenses are reasonable and necessary. 

Id. This is true even if the amount is undisputed. Id.

Section 18.001, however, allows claimants to present such 

evidence by an uncontroverted affidavit that complies with the statute. 

See TEX. CIV. PRAC. & REM. CODE § 18.001(b). To qualify, the affidavit 

must be prepared by the person who provided the medical services or 

the person in charge of the records showing that the claimant received 

the services and incurred the charges. Id. § 18.001(c). An 

uncontroverted affidavit under Section 18.001(b) is sufficient evidence—

but not conclusive—that medical expenses are reasonable and 

necessary. Allstate, 622 S.W.3d at 881. At trial, defendants may still 

challenge—through evidence and argument—a claimant’s assertion 

that medical expenses are reasonable or necessary. Id.

Section 18.001 also provides defendants a means to controvert the 

claimant’s affidavit. In particular, a defendant can serve the claimant 

with a counteraffidavit that provides reasonable notice of the basis on 

which the defendant intends to controvert the reasonableness and 

necessity of the proffered medical expenses at trial. TEX. CIV. PRAC. &

REM. CODE § 18.001(f). The counteraffiant must be “qualified, by 

knowledge, skill, experience, training, education, or other expertise, to 

testify in contravention of all or part of any of the matters contained in 

the initial affidavit.” Id. In the face of a compliant counteraffidavit, the 

claimant may not reach the jury on the reasonableness and necessity of 

her medical expenses without expert testimony. In effect, the claimant’s 
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evidentiary burden on that issue is the same as if the initial affidavit 

had never been served. Allstate, 622 S.W.3d at 877.

Defendants argue that the trial court clearly abused its discretion 

by striking Dr. Sanchez’s counteraffidavit and testimony because the 

affidavit comports with Section 18.001(f)’s requirements. In response, 

Estrada argues that the counteraffidavit contains prohibited challenges 

to causation, fails to provide reasonable notice, and is unreliable.1

As noted, in Allstate we clarified many aspects of Section 18.001 

practice, including what constitutes “reasonable notice” of the 

defendant’s basis for controverting the initial affidavit’s claims and 

whether the opinions expressed in a counteraffidavit must meet the 

standards for admissibility at trial. 622 S.W.3d at 877-80. In that case, 

Alaniz sued her insurer for failing to pay her underinsured motorist 

benefits. Id. at 873. Alaniz provided affidavits indicating she had 

incurred approximately $41,000 in reasonable and necessary medical 

expenses. Id. The insurer offered a counteraffidavit from a registered 

nurse with twelve years of medical billing review experience. Id. at 873-

74. Alaniz moved to strike the counteraffidavit, arguing in pertinent 

part that it did not give reasonable notice of the basis of its conclusions 

and the nurse’s opinions were unreliable. Id. at 874. We disagreed on 

both points. Id. at 879-80. 

Addressing Section 18.001(f)’s “reasonable notice” requirement, 

we held that satisfaction of this requirement does not hinge on the 

admissibility of the counteraffiant’s testimony. 622 S.W.3d at 879. 

1 Estrada does not claim Dr. Sanchez is unqualified to testify.
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Rather, the trial court must determine 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.” Id.

Applying these principles here, we hold that Dr. Sanchez’s 

counteraffidavit provides Estrada with the reasonable notice the statute 

requires. The counteraffidavit assesses the treatment Estrada received. 

Where Dr. Sanchez believes that Estrada received medically 

unnecessary treatment, Dr. Sanchez outlines the basis for his opinion. 

Where he believes that Estrada’s treatment was medically necessary 

but billed at an inflated rate, Dr. Sanchez explains what data he used to 

formulate that opinion. If, as Estrada contends, the data Dr. Sanchez 

used to calculate a reasonable cost is unreliable, Estrada can make that 

argument either on a motion to exclude the testimony under E.I. du Pont 

de Nemours & Co. v. Robinson, 923 S.W.2d 549, 556 (Tex. 1995), or at 

trial on cross-examination. See Allstate, 622 S.W.3d at 880. 

Estrada further argues that Dr. Sanchez’s counteraffidavit 

impermissibly challenges causation and was thus properly stricken. 

However, a counteraffidavit’s inclusion of an opinion on causation has 

no bearing on its validity under Section 18.001(f). True, the statute 

expressly provides that “[t]he counteraffidavit may not be used to 

controvert the causation element of the cause of action.” TEX. CIV. PRAC.

& REM. CODE § 18.001(f). But that does not mean that the presence of a 

causation opinion in an otherwise compliant counteraffidavit renders 

either the counteraffidavit or the opinion invalid; rather, 
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Section 18.001(f) simply clarifies that the causation opinion is not 

admissible solely by virtue of its inclusion in the counteraffidavit. Thus, 

provided that the counteraffidavit complies with Section 18.001(f), the 

counteraffidavit’s mere inclusion of a causation opinion is not a proper 

basis for striking it.2

In sum, Dr. Sanchez’s counteraffidavit easily satisfies 

Section 18.001(f)’s requirements, particularly in light of Allstate. As a 

result, the trial court clearly abused its discretion in striking the 

affidavit and Dr. Sanchez’s testimony.3

B. No Adequate Remedy by Appeal

In addition to showing an abuse of discretion, a party seeking 

mandamus relief must demonstrate that it lacks an adequate remedy by

ordinary appeal. Walker v. Packer, 827 S.W.2d 833, 842 (Tex. 1992). 

Appellate review is inadequate when an erroneous discovery order 

vitiates or severely compromises a party’s ability to present a viable 

claim or defense at trial. Id. at 843. 

2 We express no opinion on the merits of any challenge to the ultimate 

admissibility of the causation testimony in Dr. Sanchez’s counteraffidavit.

3 Estrada further argues that Defendants are not entitled to mandamus 

relief because they waited almost a year to seek reconsideration of and 

mandamus relief from the trial court’s order. Estrada did not complain about 

Defendants’ timeliness in either the trial court or the court of appeals, and, in 

any event, the argument is meritless. Defendants sought reconsideration and 

then mandamus relief shortly after we issued our opinion in Allstate, which 

firmly establishes that the trial court’s original order striking Dr. Sanchez’s 

counteraffidavit and testimony was erroneous. Seeking reconsideration—and 

when that failed, mandamus relief—in light of a significant, on-point opinion 

from the state’s civil court of last resort is hardly dilatory.
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In Allstate, we held that Allstate lacked an adequate appellate 

remedy where the order striking its counteraffidavit (1) allowed the 

claimant to avoid presenting expert testimony to support a finding of the 

reasonableness of her medical expenses, (2) excluded the

counteraffiant’s testimony on any issue, and (3) prohibited Allstate from 

challenging the reasonableness of the claimant’s medical expenses at 

trial. 622 S.W.3d at 883 (holding that the order “would preclude Allstate 

from engaging in meaningful adversarial adjudication of [plaintiff’s] 

claim for payment of medical expenses, vitiating or severely 

compromising Allstate’s defense”). Estrada argues that the order here 

is narrower than the one at issue in Allstate because it does not include 

the wholesale prohibition against challenging the reasonableness of his 

medical expenses at trial. Defendants respond that the order’s effect is 

the same because “[i]t prevents Defendants’ only retained expert from 

testifying” about either the reasonableness of Estrada’s medical costs or 

the medical necessity of the treatment he received. 

We agree with Defendants that, if the order effectively forecloses 

them from presenting expert testimony at trial to challenge the 

reasonableness and necessity of Estrada’s medical expenses, 

Defendants’ ability to present a defense has been severely compromised 

and they in turn lack an adequate appellate remedy. See In re Kings 

Ridge Homeowners Ass’n, 303 S.W.3d 773, 786 (Tex. App.—Fort Worth

2009, orig. proceeding) (holding that the relator lacked an adequate 

remedy by appeal where the trial court struck its expert designation as 

untimely and the expert would have testified on matters essential to its 

claims); Beamon v. O’Neill, 865 S.W.2d 583, 585 (Tex. App.—Houston 
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[14th Dist.] 1993, orig. proceeding) (holding, in a personal-injury suit, 

that the defendants lacked an adequate remedy by appeal from the trial 

court’s order striking their expert-witness designations as untimely 

where the “experts were to testify on key rebuttal issues such as the 

cause of the injury and damages”). 

Estrada’s petition reflects that discovery in this case was to be 

conducted under a Level 3 discovery control plan, meaning that the 

discovery plan was to be “tailored to the circumstances of the specific 

suit” by court order. TEX. R. CIV. P. 190.4(a). Although the discovery 

control plan is not in the mandamus record, on June 24, 2022, we 

granted an emergency motion to stay the trial that had been reset for 

July 2022. Any extended deadline to designate experts necessarily 

passed before that date. Therefore, the trial court’s order effectively 

forecloses Defendants from presenting expert testimony at trial on key 

rebuttal issues, including the reasonableness and necessity of Estrada’s 

medical expenses.

III. Conclusion

The trial court clearly abused its discretion by striking Dr. 

Sanchez’s counteraffidavit and testimony, and Defendants lack an 

adequate remedy to address this error by appeal. As a result, without 

hearing oral argument, we conditionally grant Defendants’ petition for 

writ of mandamus and order the trial court to vacate its order striking 

Dr. Sanchez’s counteraffidavit and testimony. TEX. R. APP. P. 52.8(c).

Our writ will issue only if the trial court fails to comply.

OPINION DELIVERED: April 21, 2023