Preview
CAUSE NO. 23-DCV-301421
SHAFFER BROOKS IN THE DISTRICT COURT OF
Plaintiff,
FORT BEND COUNTY, TEXAS
DISCOUNT TIRE DIRECT, INC.
AND JOHN DOE
Defendants. TH JUDICIAL DISTRICT
DEFENDANT DISCOUNT TIRE COMPANY OF TEXAS, INC.’S OBJECTIONS AND
MOTION TO STRIKE PLAINTIFF’S NOTICE OF FILING OF
MEDICAL AND BILLING RECORDS AFFIDAVITS
Defendant, Discount Tire Company of Texas, Inc. (“DT-TX”), hereby files its Objections
and Motion to Strike Plaintiff’s Notice of Filing of Medical and Billing Records Affidavits
(“Plaintiff’s Notice”). In support, DT-TX would respectfully show the Court as follows:
NTRODUCTION ACKGROUND
This case arises out of an incident that occurred on October 28, 2021. Plaintiff alleges he
visited the DT-TX store located at 9440 Highway 6, Missouri City, Texas 77459 to purchase a left
front tire. Plaintiff alleges the tire fell off his vehicle as he exited the parking lot, causing injuries.
On February 20, 2023, Plaintiff filed his Original Petition. On April 3, 2023, DT-TX timely filed
its Answer.
On July 7, 2023, Plaintiff filed his Notice of Filing of Medical and Billing Records
Affidavits listing eleven (11) affidavits from six (6) different providers. As discussed infra,
See Plaintiff’s First Amended Petition, a copy of which is on file with the Court.
See id.
See Plaintiff’s Original Petition, a copy of which is on file with the Court.
See DT-TX’s Original Answer, a copy of which is on file with the Court.
See Plaintiff’s Notice, a copy of which is on file with the Court. The Court will note Plaintiff failed to produce
corresponding medical records from Nexus Perioperative Consulting.
Plaintiff’s Notice is untimely and the affidavits should be stricken from the record as they fail to
comply with the requirements set forth in Texas Civil Practice and Remedies Code §18.001.
II.
RGUMENT
The Texas Civil Practice and Remedies Code sets forth the deadlines for Plaintiff to serve
and file affidavits concerning the cost and necessity of services. Specifically, the Texas Civil
Practice and Remedies Code states the following with respect to the service of affidavits:
(d) The party offering the affidavit in evidence or the party’s attorney must serve a
copy of the affidavit on each other party to the case by the earlier of:
(1) 90 days after the date the defendant files an answer;
(2) the date the offering party must designate any expert witness under a court
order; or
(3) the date the offering party must designate any expert witness as required by
the Texas Rules of Civil Procedure.
(d-1) Notwithstanding Subsection (d), if services are provided for the first time by a
provider after the date the defendant files an answer, the party offering the affidavit
in evidence or the party’s attorney must serve a copy of the affidavit for services
provided by that provider on each other party to the case by the earlier of:
(1) the date the offering party must designate any expert witness under a court
order; or
(2) the date the offering party must designate any expert witness as required by
the Texas Rules of Civil Procedure.
Here, the medical and billing affidavits identified in Plaintiff’s Notice reflect treatment he
received (and completed) before DT-TX filed its Answer on April 3, 2023. Thus, the deadlines
set forth in Texas Civil Practice and Remedies Code §18.001(d) apply. As such, Plaintiff was
required to file his notice by July 3, 2023. He did not. Therefore, DT-TX objects to Plaintiff’s
Notice as untimely and requests the Court strike all eleven (11) affidavits from the record.
See TEX IV RAC EM ODE § 18.001.
See TEX IV RAC EM ODE § 18.001(d).
See TEX IV RAC EM ODE § 18.001(d-1).
2
III.
ONCLUSION
WHEREFORE, PREMISES CONSIDERED, Defendant Discount Tire Company of
Texas, Inc. respectfully requests that the Court sustain its objections and grant its Motion, striking
in their entirety the medical and billing record affidavits identified in Plaintiff’s Notice of Filing
of Medical and Billing Record Affidavits and preclude Plaintiff from introducing these medical
and billing record affidavits into evidence. DT-TX also asks that the Court grant such other relief
to which it may be justly entitled.
Respectfully Submitted,
JOHNSON, TRENT & TAYLOR, L.L.P.
By: /s/ T. Christopher Trent
T. Christopher Trent
Texas Bar No. 20209400
David J. Baluk
Texas Bar No. 24078186
919 Milam, Suite 1500
Houston, Texas 77002
Telephone: (713) 222-2323
Facsimile: (713) 222-2226
Email: ctrent@johnsontrent.com
Email: dbaluk@johnsontrent.com
-and-
Christian K.G. Henrichsen
Texas Bar No. 24073395
DISCOUNT TIRE
20225 N. Scottsdale Road
Scottsdale, Arizona 85255
Telephone: (480) 606-6973
ATTORNEYS FOR DEFENDANT
DISCOUNT TIRE COMPANY OF TEXAS, INC.
3
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the foregoing document was served upon all
counsel of record in accordance with the Texas Rules of Civil Procedure on this 7th day of August
2023.
Alex P. Boylhart Via E-Service
WOK ANIEL TD., L.L.P.
9805 Katy Freeway, Suite 850
Houston, Texas 77024
Telephone: (713) 773.3380
Facsimile: (713) 773.3960
Email: aboylhart@kwoklaw.com
Attorney for Plaintiff Shaffer Brooks
/s/ T. Christopher Trent
T. Christopher Trent
4
Preview
CAUSE NO. 23-DCV-301421 SHAFFER BROOKS IN THE DISTRICT COURT OF Plaintiff, FORT BEND COUNTY, TEXAS DISCOUNT TIRE DIRECT, INC. AND JOHN DOE Defendants. TH JUDICIAL DISTRICT DEFENDANT DISCOUNT TIRE COMPANY OF TEXAS, INC.’S OBJECTIONS AND MOTION TO STRIKE PLAINTIFF’S NOTICE OF FILING OF MEDICAL AND BILLING RECORDS AFFIDAVITS Defendant, Discount Tire Company of Texas, Inc. (“DT-TX”), hereby files its Objections and Motion to Strike Plaintiff’s Notice of Filing of Medical and Billing Records Affidavits (“Plaintiff’s Notice”). In support, DT-TX would respectfully show the Court as follows: NTRODUCTION ACKGROUND This case arises out of an incident that occurred on October 28, 2021. Plaintiff alleges he visited the DT-TX store located at 9440 Highway 6, Missouri City, Texas 77459 to purchase a left front tire. Plaintiff alleges the tire fell off his vehicle as he exited the parking lot, causing injuries. On February 20, 2023, Plaintiff filed his Original Petition. On April 3, 2023, DT-TX timely filed its Answer. On July 7, 2023, Plaintiff filed his Notice of Filing of Medical and Billing Records Affidavits listing eleven (11) affidavits from six (6) different providers. As discussed infra, See Plaintiff’s First Amended Petition, a copy of which is on file with the Court. See id. See Plaintiff’s Original Petition, a copy of which is on file with the Court. See DT-TX’s Original Answer, a copy of which is on file with the Court. See Plaintiff’s Notice, a copy of which is on file with the Court. The Court will note Plaintiff failed to produce corresponding medical records from Nexus Perioperative Consulting. Plaintiff’s Notice is untimely and the affidavits should be stricken from the record as they fail to comply with the requirements set forth in Texas Civil Practice and Remedies Code §18.001. II. RGUMENT The Texas Civil Practice and Remedies Code sets forth the deadlines for Plaintiff to serve and file affidavits concerning the cost and necessity of services. Specifically, the Texas Civil Practice and Remedies Code states the following with respect to the service of affidavits: (d) The party offering the affidavit in evidence or the party’s attorney must serve a copy of the affidavit on each other party to the case by the earlier of: (1) 90 days after the date the defendant files an answer; (2) the date the offering party must designate any expert witness under a court order; or (3) the date the offering party must designate any expert witness as required by the Texas Rules of Civil Procedure. (d-1) Notwithstanding Subsection (d), if services are provided for the first time by a provider after the date the defendant files an answer, the party offering the affidavit in evidence or the party’s attorney must serve a copy of the affidavit for services provided by that provider on each other party to the case by the earlier of: (1) the date the offering party must designate any expert witness under a court order; or (2) the date the offering party must designate any expert witness as required by the Texas Rules of Civil Procedure. Here, the medical and billing affidavits identified in Plaintiff’s Notice reflect treatment he received (and completed) before DT-TX filed its Answer on April 3, 2023. Thus, the deadlines set forth in Texas Civil Practice and Remedies Code §18.001(d) apply. As such, Plaintiff was required to file his notice by July 3, 2023. He did not. Therefore, DT-TX objects to Plaintiff’s Notice as untimely and requests the Court strike all eleven (11) affidavits from the record. See TEX IV RAC EM ODE § 18.001. See TEX IV RAC EM ODE § 18.001(d). See TEX IV RAC EM ODE § 18.001(d-1). 2 III. ONCLUSION WHEREFORE, PREMISES CONSIDERED, Defendant Discount Tire Company of Texas, Inc. respectfully requests that the Court sustain its objections and grant its Motion, striking in their entirety the medical and billing record affidavits identified in Plaintiff’s Notice of Filing of Medical and Billing Record Affidavits and preclude Plaintiff from introducing these medical and billing record affidavits into evidence. DT-TX also asks that the Court grant such other relief to which it may be justly entitled. Respectfully Submitted, JOHNSON, TRENT & TAYLOR, L.L.P. By: /s/ T. Christopher Trent T. Christopher Trent Texas Bar No. 20209400 David J. Baluk Texas Bar No. 24078186 919 Milam, Suite 1500 Houston, Texas 77002 Telephone: (713) 222-2323 Facsimile: (713) 222-2226 Email: ctrent@johnsontrent.com Email: dbaluk@johnsontrent.com -and- Christian K.G. Henrichsen Texas Bar No. 24073395 DISCOUNT TIRE 20225 N. Scottsdale Road Scottsdale, Arizona 85255 Telephone: (480) 606-6973 ATTORNEYS FOR DEFENDANT DISCOUNT TIRE COMPANY OF TEXAS, INC. 3 CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing document was served upon all counsel of record in accordance with the Texas Rules of Civil Procedure on this 7th day of August 2023. Alex P. Boylhart Via E-Service WOK ANIEL TD., L.L.P. 9805 Katy Freeway, Suite 850 Houston, Texas 77024 Telephone: (713) 773.3380 Facsimile: (713) 773.3960 Email: aboylhart@kwoklaw.com Attorney for Plaintiff Shaffer Brooks /s/ T. Christopher Trent T. Christopher Trent 4