Anthony, III v. Gorney et al

United States District Court
EASTERN DISTRICT OF TEXAS
SHERMAN DIVISION

ANDREW ANTHONY, III,

Plaintiff,
v.

VERNON GORNEY and THE RV
FACTORY, LLC,

Defendants.
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Civil Action No. 4:25-cv-856
Judge Mazzant
MEMORANDUM OPINION AND ORDER
Pending before the Court is Plaintiff’s Motion to Admit 18.001 Billing Affidavits (Dkt. #21).
Having considered the Motion and the relevant pleadings, the Court finds that the Motion should
be GRANTED.
BACKGROUND
This is a personal injury lawsuit. On June 13, 2025, Plaintiff Andrew Anthony, III
(“Plaintiff”) initiated this lawsuit against Defendants Vernon Gorney and The RV Factory, LLC
(“Defendants”) in the 493rd Judicial District Court of Collin County, Texas (Dkt. #2). On August
8, 2025, Defendants removed the suit to the Eastern District of Texas, Sherman Division (Dkt. #1).
On July 15, 2026, Plaintiff filed the instant Motion (Dkt. #21), wherein Plaintiff requests
that the Court apply the provisions of Texas Civil Practice and Remedies Code § 18.001 to permit
introduction of Plaintiff’s billing affidavits and bills over any objections. Defendants did not
respond. The Motion is ripe for adjudication.
LEGAL STANDARD
Under Texas law, a plaintiff bears the burden of proving the necessity, reasonableness, and
actual amount of their past medical expenses. See Hamburger v. State Farm Mut. Auto. Ins. Co., 361
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F.3d 875, 886 (5th Cir. 2004). Texas Civil Practice and Remedies Code § 18.001 provides plaintiffs
with a method to prove these expenses without the use of an expert witness testifying at trial, and
states in relevant part:
Unless a controverting affidavit is served as provided by this section, an affidavit
that the amount a person charged for a service was reasonable at the time and place
that the service was provided and that the service was necessary is sufficient
evidence to support a finding of fact by judge or jury that the amount charged was
reasonable or that the service was necessary.

TEX. CIV. PRAC. & REM. CODE. § 18.001(b).
ANALYSIS
After careful review of the record and the arguments, the Court finds that Plaintiff’s
Motion should be granted. “We apply Texas substantive law, as this case falls under our diversity
jurisdiction.” Homoki v. Conversion Servs., Inc., 717 F.3d 388, 396 (5th Cir. 2013). While some
courts have held that § 18.001 is procedural and therefore inapplicable in federal court, see, e.g.,
Perez v. Tyczynski, No. 5:21-CV-00109, 2023 WL 2020980, at *4 (S.D. Tex. Feb. 15, 2023), the Fifth
Circuit has held that “[t]he law governing what damages are recoverable is substantive, and
therefore in a diversity case[,] state law governs what damages are available for a given claim and
the manner in which those damages must be proved.” Homoki, 717 F.3d at 398 (citing Coursey v.
Broadhurst, 888 F.2d 338, 344 (5th Cir. 1989) (per curiam)). Other courts in the Eastern District of
Texas have applied this precedent to Texas Civil Practice and Remedies Code § 18.001 affidavits,
finding them to be substantive. See Barnes v. Burlington Coat Factory of Tex., Inc., No. 4:21-CV-
00008-SDJ-CAN, 2021 WL 12310948, at *3 (E.D. Tex. July 23, 2021) (collecting cases); see also
Bagley v. Dollar Tree Stores, Inc., No. 1:18-CV-580, 2019 WL 6492585, at *7 (E.D. Tex. Dec. 2, 2019)
(finding that “with the exception of the time limits set forth in § 18.001(d)-(i)—which are clearly
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procedural—Tex. Civ. Prac. & Rem. Code § 18.001 applies in this diversity action”). This Court
agrees with Barnes and Bagley and finds that § 18.001 “applies in federal courts to the extent
[§] 18.001 permits a party to submit affidavits to prove the reasonableness and necessity of its
medical expenses.” Barnes, 2021 WL 12310948, at *3 (citing Vansill v. Dollar Tree Stores, Inc., No.
4:19-CV-612-SDJ-KPJ, 2021 WL 860457, at *5 (E.D. Tex. Feb. 18, 2021)).
Here, Plaintiff asks the Court to hold that his § 18.001 affidavits and bills are admissible
evidence at trial over Defendants’ objections. Plaintiff notes that Defendants did not file any
controverting affidavits pursuant to § 18.001. Defendants did not respond or otherwise dispute
this.
1
Accordingly, Plaintiff’s Motion should be granted.
CONCLUSION
It is therefore ORDERED that Plaintiff’s Motion to Admit 18.001 Billing Affidavits
(Dkt. #21) is hereby GRANTED.
IT IS SO ORDERED.

1
“A party’s failure to oppose a motion in the manner prescribed herein creates a presumption that the party does not
controvert the facts set out by movant and has no evidence to offer in opposition to the motion.” LOCAL RULE
CV-7(d).
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