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FILED
6/20/2023 12:00 AM
FELICIA PITRE
DISTRICT CLERK
DALLAS CO., TEXAS
Margaret Thomas DEPUTY
CAUSE NO. DC-22-07374
HUSSEIN SOUS § m THE DISTRICT COURT
Plaintijfi §
§
V. § DALLAS COUNTY, TEXAS
§
KENT BOSTON §
Defendant. § 193KB JUDICIAL DISTRICT
DEFENDANT’S RESPONSE T0 PLAINTIFF’S MOTION T0 COMPEL
DEPOSITION TESTIMONY OF DEFENDANT’S
COUNTER-AFFIANT, KEITH AUSTIN LEPAL M.D.
TO THE HONORABLE JUDGE OF SAID COURT:
COMES NOW, Defendant KENT BOSTON (hereinafter “Defendant”), in the above-
numbered and styled cause, and files this Response to Plaintiffs Motion to Compel Deposition
Testimony of Defendant’s Counter-Affiant, Keith Austin Lepak, M.D. (“Plaintiff‘s Motion”), and
would respectfully show unto the Court the following:
I.
INTRODUCTION
Defendant opposes Plaintiff‘s Motion because (1) Dr. Lepak is only a statutory affiant, and
is not a fact Witness, consulting expert, or testifying expert, and (2) the deposition is an improper
use of discovery. Thus, Defendant respectfully requests that this Court deny Plaintiff‘s Motion.
II.
FACTUAL BACKGROUND
Plaintiff filed six Business Record Affidavits with the Court on November 16, 2022:
1. Affidavit of Linda Hernandez, Custodian of Records for Frontline ER, dated July
15, 2022 (Billing);
2. Affidavit of Linda Hernandez, Custodian of Records for Frontline ER, dated July
15, 2022 (Medical);
DEFENDANT’S RESPONSE TO PLAINTIFF’S MOTION TO COMPEL DEPOSITION TESTIMONY OF
DEFENDANT’S COUNTER-AFFIANT, KEITH AUSTIN LEPAK, M.D.
PAGE 1
3. Affidavit of Brianna Reyna, Custodian of Records for Memorial MRI, dated June
129, 2022 (Medical);
4. Affidavit of Brianna Reyna, Custodian of Records for Memorial MRI, dated June
129, 2022 (Billing);
5. Affidavit of Melissa Erwin, Custodian of Records for Greater Texas Orthopedic,
dated October 20, 2022 (Billing); and
6. Affidavit of Melissa Erwin, Custodian of Records for Greater Texas Orthopedic,
dated October 20, 2022 (Medical);
Dr. Lepak provided a counter-affidavit concerning the cost and necessity of services at
Frontline ER pursuant to Section 18.001 of the Texas Practice and Remedies Code. The counter-
affidavit was filed with the Court on December 16, 2022.
II.
RESPONSE TO PLAINTIFF’S MOTION TO COMPEL
1. Dr. Lena]; is Not a Testifying Exnert
Dr. Lepak is only a counter-affiant pursuant to Section 18.001 of the Texas Practice &
Remedies Code. He is not a fact witness. He is not a testifying expert. He is not a consulting expert.
Dr. Lepak’s only role in this lawsuit was to provide notice of the basis on which Defendant intends
to controvert the charges reflected by Plaintiff s 18.001 affidavits.
Section 18.001 simplifies the evidentiary process for both parties when showing the
reasonableness or necessity of charges. It allows for “(1) the admissibility, by affidavit, of evidence
of the reasonableness and necessity of the charges that would otherwise be inadmissible hearsay;
(2) it permits the use of otherwise inadmissible hearsay to support findings of fact by the trier of
fact; and (3) it provides for exclusion of evidence to the contrary, upon property objection, in the
absence of properly-filed controverting affidavit.” Castillo v. American Garment Finishers Corp,
965 S.W.2d 646, 654 (Tex. App.—El Paso 1998, no pet.).
DEFENDANT’S RESPONSE TO PLAINTIFF’S MOTION TO COMPEL DEPOSITION TESTIMONY OF
DEFENDANT’S COUNTER-AFFIANT, KEITH AUSTIN LEPAK, M.D.
PAGE 2
The purpose of the counter-affidavit is to give opposing party reasonable notice of the
intention to controvert the claim that is reflected in the initial affidavit. The controverting affidavit
requires the Plaintiff to bring an expert to testify at trial on the reasonableness and necessity of the
charges. Id. Section 18.001(c)(2)(B) permits the reasonableness and necessity of charges to be
proved by a non-expert custodian. Tex. Civ. Prac. & Rem. Code Ann. § 18.001.
Dr. Lepak’s only involvement in this matter was to prepare a counter-affidavit in
compliance with Section 18.001. Defendant did not retain Dr. Lepak in any other capacity.
Defendant did not intend to present Dr. Lepak for deposition or by live testimony at trial, but only
to have him prepare a counter-affidavit which is not admissible evidence. Once a controverting
affidavit has been filed, it is Plaintiff’s burden to present expert testimony to prove the
reasonableness and necessity by expert testimony at trial. Neither party has designated Dr. Lepak
as a testifying expert.
2. Imnroper Use of Discovery
Plaintiff’s Motion to Compel the deposition of Dr. Lepak will not lead to the discovery of
admissible evidence and is only for the purpose of harassment, which is a wrongful use of
discovery under Tex. R. Civ. P. 192. The filing of controverting affidavits is an evidentiary and
procedural mechanism; a finder of fact will not consider the opinions in controverting affidavits
when looking at the evidence at trial. In this case, Dr. Lepak has not been designated as a testifying
expert and his affidavit is not admissible evidence. Nothing in Tex. Civ. Prac. & Rem. Code Ann.
§ 18.001 requires the author of the controverting affidavit be designated as an expert Witness. Nor
is it required that a defendant use their counter-affiant as an expert at trial. Castillo 965 S.W.2d at
654.
DEFENDANT’S RESPONSE TO PLAINTIFF’S MOTION TO COMPEL DEPOSITION TESTIMONY OF
DEFENDANT’S COUNTER-AFFIANT, KEITH AUSTIN LEPAK, M.D.
PAGE 3
3. In the Alternative. Plaintiff is to Pav the Fees for the Denositfl
Defendant requests that the Court deny Plaintiff s Motion in its entirety. In the alternative,
should the Court allow the deposition of Dr. Lepak, Defendant would object to any questioning
that is beyond the scope of the controverting affidavit and would request that Plaintiff pay all the
fees that are associated with the deposition, including Dr. Lepak’s fees.
WHEREFORE, PREMISES CONSIDERED, Defendant prays that Plaintiffs Motion to
Compel Deposition Testimony of Defendant’s Counter-Affiant, Keith Austin Lepak, M.D. be
denied in its entirety, and for such other and further relief to which Defendants may be justly
entitled and will ever pray.
Respectfully submitted,
WALTERS, BALIDO & CRAIN, L.L.P.
/s/Ashlev Whatlev
ASHLEY G. WHATLEY
Texas Bar No. 24050687
Meadow Park Tower
10440 North Central Expressway, Suite 1500
Dallas, Texas 75231
Tel: 214-749-4805
Fax: 214-760-1670
WhatlevVFax@wbclawfirm.com
ATTORNEY FOR DEFENDANT
DEFENDANT’S RESPONSE TO PLAINTIFF’S MOTION TO COMPEL DEPOSITION TESTIMONY OF
DEFENDANT’S COUNTER-AFFIANT, KEITH AUSTIN LEPAK, M.D.
PAGE 4
CERTIFICATE OF SERVICE
This is to certify that a true and correct copy of the foregoing document has been mailed,
faxed, e-served, or hand delivered to all parties of record, in compliance with Rule 21a of the Texas
Rules of Civil Procedure, on June 19, 2023.
Jessica Bebawi
State Bar No. 24108867
DASPIT LAW FIRM
600 N Pearl Street, Suite 2205
Dallas, Texas 75201
(P) 713.322.4878
(F) 713.587.9086
e-service@dasnitlaw.com
/s/Ashlev Whatlev
ASHLEY G. WHATLEY
DEFENDANT’S RESPONSE TO PLAINTIFF’S MOTION TO COMPEL DEPOSITION TESTIMONY OF
DEFENDANT’S COUNTER-AFFIANT, KEITH AUSTIN LEPAK, M.D.
PAGE 5
Automated Certificate of eService
This automated certificate of service was created by the efiling system.
The filer served this document via email generated by the efiling system
on the date and to the persons listed below. The rules governing
certificates of service have not changed. Filers must still provide a
certificate of service that complies with all applicable rules.
Fernanda Ranero on behalf of Ashley Whatley
Bar No. 24050687
fernanda.ranero@wbclawfirm.com
Envelope ID: 76755581
Filing Code Description: Response
Filing Description: DEFENDANT RESPONSE TO (PL) MTN COMPEL
DEPO TESTIMONY/(DF) (LEPAK)
Status as of 6/20/2023 10:39 AM CST
Associated Case Party: HUSSEIN SOUS
Name BarNumber Email TimestampSubmitted Status
Taylor McElmoyl tmcelmoyl@daspitlaw.com 6/19/2023 6:14:14 PM SENT
Case Contacts
Name BarNumber Email TimestampSubmitted Status
DLF Intake intake@daspitlaw.com 6/19/2023 6:14:14 PM SENT
Alma Lira Alira@proactivelegal.com 6/19/2023 6:14:14 PM SENT
Jaime Holder jholder@proactivelegal.com 6/19/2023 6:14:14 PM SENT
John Daspit e-service@daspitlaw.com 6/19/2023 6:14:14 PM SENT
Jessica Bebawi bebawi@daspitlaw.com 6/19/2023 6:14:14 PM SENT
Associated Case Party: KENT BOSTON
Name BarNumber Email TimestampSubmitted Status
Ashley G.Whatley whatleyvfax@wbclawfirm.com 6/19/2023 6:14:14 PM SENT
Fernanda Ranero fernanda.ranero@wbclawfirm.com 6/19/2023 6:14:14 PM SENT
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FILED 6/20/2023 12:00 AM FELICIA PITRE DISTRICT CLERK DALLAS CO., TEXAS Margaret Thomas DEPUTY CAUSE NO. DC-22-07374 HUSSEIN SOUS § m THE DISTRICT COURT Plaintijfi § § V. § DALLAS COUNTY, TEXAS § KENT BOSTON § Defendant. § 193KB JUDICIAL DISTRICT DEFENDANT’S RESPONSE T0 PLAINTIFF’S MOTION T0 COMPEL DEPOSITION TESTIMONY OF DEFENDANT’S COUNTER-AFFIANT, KEITH AUSTIN LEPAL M.D. TO THE HONORABLE JUDGE OF SAID COURT: COMES NOW, Defendant KENT BOSTON (hereinafter “Defendant”), in the above- numbered and styled cause, and files this Response to Plaintiffs Motion to Compel Deposition Testimony of Defendant’s Counter-Affiant, Keith Austin Lepak, M.D. (“Plaintiff‘s Motion”), and would respectfully show unto the Court the following: I. INTRODUCTION Defendant opposes Plaintiff‘s Motion because (1) Dr. Lepak is only a statutory affiant, and is not a fact Witness, consulting expert, or testifying expert, and (2) the deposition is an improper use of discovery. Thus, Defendant respectfully requests that this Court deny Plaintiff‘s Motion. II. FACTUAL BACKGROUND Plaintiff filed six Business Record Affidavits with the Court on November 16, 2022: 1. Affidavit of Linda Hernandez, Custodian of Records for Frontline ER, dated July 15, 2022 (Billing); 2. Affidavit of Linda Hernandez, Custodian of Records for Frontline ER, dated July 15, 2022 (Medical); DEFENDANT’S RESPONSE TO PLAINTIFF’S MOTION TO COMPEL DEPOSITION TESTIMONY OF DEFENDANT’S COUNTER-AFFIANT, KEITH AUSTIN LEPAK, M.D. PAGE 1 3. Affidavit of Brianna Reyna, Custodian of Records for Memorial MRI, dated June 129, 2022 (Medical); 4. Affidavit of Brianna Reyna, Custodian of Records for Memorial MRI, dated June 129, 2022 (Billing); 5. Affidavit of Melissa Erwin, Custodian of Records for Greater Texas Orthopedic, dated October 20, 2022 (Billing); and 6. Affidavit of Melissa Erwin, Custodian of Records for Greater Texas Orthopedic, dated October 20, 2022 (Medical); Dr. Lepak provided a counter-affidavit concerning the cost and necessity of services at Frontline ER pursuant to Section 18.001 of the Texas Practice and Remedies Code. The counter- affidavit was filed with the Court on December 16, 2022. II. RESPONSE TO PLAINTIFF’S MOTION TO COMPEL 1. Dr. Lena]; is Not a Testifying Exnert Dr. Lepak is only a counter-affiant pursuant to Section 18.001 of the Texas Practice & Remedies Code. He is not a fact witness. He is not a testifying expert. He is not a consulting expert. Dr. Lepak’s only role in this lawsuit was to provide notice of the basis on which Defendant intends to controvert the charges reflected by Plaintiff s 18.001 affidavits. Section 18.001 simplifies the evidentiary process for both parties when showing the reasonableness or necessity of charges. It allows for “(1) the admissibility, by affidavit, of evidence of the reasonableness and necessity of the charges that would otherwise be inadmissible hearsay; (2) it permits the use of otherwise inadmissible hearsay to support findings of fact by the trier of fact; and (3) it provides for exclusion of evidence to the contrary, upon property objection, in the absence of properly-filed controverting affidavit.” Castillo v. American Garment Finishers Corp, 965 S.W.2d 646, 654 (Tex. App.—El Paso 1998, no pet.). DEFENDANT’S RESPONSE TO PLAINTIFF’S MOTION TO COMPEL DEPOSITION TESTIMONY OF DEFENDANT’S COUNTER-AFFIANT, KEITH AUSTIN LEPAK, M.D. PAGE 2 The purpose of the counter-affidavit is to give opposing party reasonable notice of the intention to controvert the claim that is reflected in the initial affidavit. The controverting affidavit requires the Plaintiff to bring an expert to testify at trial on the reasonableness and necessity of the charges. Id. Section 18.001(c)(2)(B) permits the reasonableness and necessity of charges to be proved by a non-expert custodian. Tex. Civ. Prac. & Rem. Code Ann. § 18.001. Dr. Lepak’s only involvement in this matter was to prepare a counter-affidavit in compliance with Section 18.001. Defendant did not retain Dr. Lepak in any other capacity. Defendant did not intend to present Dr. Lepak for deposition or by live testimony at trial, but only to have him prepare a counter-affidavit which is not admissible evidence. Once a controverting affidavit has been filed, it is Plaintiff’s burden to present expert testimony to prove the reasonableness and necessity by expert testimony at trial. Neither party has designated Dr. Lepak as a testifying expert. 2. Imnroper Use of Discovery Plaintiff’s Motion to Compel the deposition of Dr. Lepak will not lead to the discovery of admissible evidence and is only for the purpose of harassment, which is a wrongful use of discovery under Tex. R. Civ. P. 192. The filing of controverting affidavits is an evidentiary and procedural mechanism; a finder of fact will not consider the opinions in controverting affidavits when looking at the evidence at trial. In this case, Dr. Lepak has not been designated as a testifying expert and his affidavit is not admissible evidence. Nothing in Tex. Civ. Prac. & Rem. Code Ann. § 18.001 requires the author of the controverting affidavit be designated as an expert Witness. Nor is it required that a defendant use their counter-affiant as an expert at trial. Castillo 965 S.W.2d at 654. DEFENDANT’S RESPONSE TO PLAINTIFF’S MOTION TO COMPEL DEPOSITION TESTIMONY OF DEFENDANT’S COUNTER-AFFIANT, KEITH AUSTIN LEPAK, M.D. PAGE 3 3. In the Alternative. Plaintiff is to Pav the Fees for the Denositfl Defendant requests that the Court deny Plaintiff s Motion in its entirety. In the alternative, should the Court allow the deposition of Dr. Lepak, Defendant would object to any questioning that is beyond the scope of the controverting affidavit and would request that Plaintiff pay all the fees that are associated with the deposition, including Dr. Lepak’s fees. WHEREFORE, PREMISES CONSIDERED, Defendant prays that Plaintiffs Motion to Compel Deposition Testimony of Defendant’s Counter-Affiant, Keith Austin Lepak, M.D. be denied in its entirety, and for such other and further relief to which Defendants may be justly entitled and will ever pray. Respectfully submitted, WALTERS, BALIDO & CRAIN, L.L.P. /s/Ashlev Whatlev ASHLEY G. WHATLEY Texas Bar No. 24050687 Meadow Park Tower 10440 North Central Expressway, Suite 1500 Dallas, Texas 75231 Tel: 214-749-4805 Fax: 214-760-1670 WhatlevVFax@wbclawfirm.com ATTORNEY FOR DEFENDANT DEFENDANT’S RESPONSE TO PLAINTIFF’S MOTION TO COMPEL DEPOSITION TESTIMONY OF DEFENDANT’S COUNTER-AFFIANT, KEITH AUSTIN LEPAK, M.D. PAGE 4 CERTIFICATE OF SERVICE This is to certify that a true and correct copy of the foregoing document has been mailed, faxed, e-served, or hand delivered to all parties of record, in compliance with Rule 21a of the Texas Rules of Civil Procedure, on June 19, 2023. Jessica Bebawi State Bar No. 24108867 DASPIT LAW FIRM 600 N Pearl Street, Suite 2205 Dallas, Texas 75201 (P) 713.322.4878 (F) 713.587.9086 e-service@dasnitlaw.com /s/Ashlev Whatlev ASHLEY G. WHATLEY DEFENDANT’S RESPONSE TO PLAINTIFF’S MOTION TO COMPEL DEPOSITION TESTIMONY OF DEFENDANT’S COUNTER-AFFIANT, KEITH AUSTIN LEPAK, M.D. PAGE 5 Automated Certificate of eService This automated certificate of service was created by the efiling system. The filer served this document via email generated by the efiling system on the date and to the persons listed below. The rules governing certificates of service have not changed. Filers must still provide a certificate of service that complies with all applicable rules. Fernanda Ranero on behalf of Ashley Whatley Bar No. 24050687 fernanda.ranero@wbclawfirm.com Envelope ID: 76755581 Filing Code Description: Response Filing Description: DEFENDANT RESPONSE TO (PL) MTN COMPEL DEPO TESTIMONY/(DF) (LEPAK) Status as of 6/20/2023 10:39 AM CST Associated Case Party: HUSSEIN SOUS Name BarNumber Email TimestampSubmitted Status Taylor McElmoyl tmcelmoyl@daspitlaw.com 6/19/2023 6:14:14 PM SENT Case Contacts Name BarNumber Email TimestampSubmitted Status DLF Intake intake@daspitlaw.com 6/19/2023 6:14:14 PM SENT Alma Lira Alira@proactivelegal.com 6/19/2023 6:14:14 PM SENT Jaime Holder jholder@proactivelegal.com 6/19/2023 6:14:14 PM SENT John Daspit e-service@daspitlaw.com 6/19/2023 6:14:14 PM SENT Jessica Bebawi bebawi@daspitlaw.com 6/19/2023 6:14:14 PM SENT Associated Case Party: KENT BOSTON Name BarNumber Email TimestampSubmitted Status Ashley G.Whatley whatleyvfax@wbclawfirm.com 6/19/2023 6:14:14 PM SENT Fernanda Ranero fernanda.ranero@wbclawfirm.com 6/19/2023 6:14:14 PM SENT