Preview
FILED
7/28/2020 9:56 AM
FELICIA PITRE
DISTRICT CLERK
DALLAS CO., TEXAS
Darling Tellez DEPUTY
Cause N0. DC-19-13584
ALFONSO LARA § IN THE DISTRICT COURT
Plaintiff, §
§
VS. § DALLAS COUNTY, TEXAS
§
§
DAYAKAR PINDI §
Defendant. § 160th JUDICIAL DISTRICT
PLAINTIFF’SMOTION TO STRIKE THE COUNTER-AFFIDAVITS AND BAR
TESTIMONY OF RYAN ROBINSON, D.C. AND ROBERT J. NOCERINI. M.D.
TO THE HONORABLE JUDGE OF SAID COURT:
NOW COMES PLAINTIFF and files his Motion to Strike the Counter—Affidavits and Bar
Testimony 0f Ryan Robinson, D.C. and Robert J. Nocerini, M.D. controverting Plaintiff” s medical
expenses and services.
L
NATURE OF CASE
This is a personal injury lawsuit resulting from a motor vehicle collision in Which Plaintiff
alleges that the Defendant was negligent. Plaintiff suffered numerous injuries as a result 0f this
motor vehicle collision. Additionally, Plaintiff incurred medical treatment from numerous medical
providers as a result of the wreck.
II.
PROCEDURAL HISTORY OF CASE
On August 30, 2019, Plaintiff brought suit against Defendant for injuries sustained in a
motor vehicle collision. On October 10, 2019, Defendant filed an answer.
Plaintiff was injured in the car wreck that made the basis 0f this suit. He received
orthopedic, chiropractic, pain management and radiological treatment, from Cano Health and
PLAINTIFF’S MOTION TO STRIKE THE COUNTER-AFFIDAVITS AND BAR TESTIMONY OF RYAN
ROBINSON, D.C. AND ROBERT J. NOCERINI, M.D.
Page 1 of 15
Rehab, AMPM Medical Centers, Epic Pain & Orthopedics, DFW MRI, Lakewood Anesthesia,
Radiology Consultants North Texas, and Singleton Associates, PA for injuries resulting from the
incident that made the basis of this suit, and incurred medical expenses for that treatment.
Plaintiff’s medical affidavits, exchanged with Defendant, pursuant t0 §18.001, Texas Civil
Practice and Remedies Code, provide:
1) the amount of medical expenses incurred (What was paid and what was owed);
2) the necessity of the treatment for the proper care 0f the patient; and
3) the reasonableness 0f the charges for that treatment, from each medical provider.
On 0r about November 8, 2019, Plaintiff served defense counsel with a copy 0f Plaintiff’s
billing and medical records from the following medical providers: Cano Health and Rehab, Epic
Pain & Orthopedics, AM/PM Medical Centers, DFW MRI, Lakewood Anesthesia, Radiology
Consultants North Texas, and Singleton Associates, PA.
The above-mentioned billing and medical records were also sent along with appropriately
completed affidavits for each provider in accordance with Texas Civil Practice & Remedies Code
§ 18.001. Exhibit A.
On December 9, 2019, Defendant’s attorneys filed Counter-Affidavits completed Ryan
Robinson, D.C.., stating that the medical bills Plaintiff received at Cano Health and Rehab were not
reasonable and that the services were not necessary. Exhibit B.
On December 9, 2019, Defendant’s attorneys also filed Counter-Affidavits Robert J. Nocerini,
MD, stating that the medical bills Plaintiff received at AM/PM Medical Centers and Epic Pain &
Orthopedics were not reasonable and that the services were not necessary. Exhibit C.
PLAINTIFF’S MOTION TO STRIKE THE COUNTER-AFFIDAVITS AND BAR TESTIMONY OF RYAN
ROBINSON, D.C. AND ROBERT J. NOCERINI, M.D.
Page 2 of 15
fl
LEGAL AUTHORITY
A. An expert must be qualified to render an opinion.
Texas Rule 0f Evidence 702 permits a witness qualified as an expert by "knowledge, skill,
experience, training 0r education" t0 testify 0n "scientific, technical, 0r other specialized" subjects if
the testimony "Will assist the trier of fact to understand the evidence or to determine a fact in issue."
T0 meet these standards, the expert must not only be qualified, but his proposed testimony must
be relevant and reliable. See Volkswagen ofAmerica, Inc. v. Ramirez, 159 SW3d 897, 904-905 (Tex.
2004); Helena Chemical C0. v. Wilkins, 47 SW3d 486, 499 (TeX. 2001); and E.I. du Pant de Nemours
& C0. v. Robinson, 923 SW2d 549, 556 (Tex. 1995).
B. An expert's opinion is not admissible unless it helps the trier 0f fact t0 understand the
evidence 0r determine a fact in issue.
Under Rule 702, the Court has a duty t0 determine if the expert's testimony Will assist the jury.
Cammill v. Jack Williams Chevrolet, Ina, 972 S .W .2d 713, 725 (Tex . 1998) . Testimony that does
not assist the trier 0f fact is neither relevant nor admissible. See, e.g., Kumho Tire C0. v. Carmichael,
526 U.S . 137, 156-58 (1999) (holding that expert's methodology must be properly applied t0 facts 0f
the case in order to assist the jury); Daubert v. Merrell Dow Pharm., Ina, 509 U.S. 579, 591 (1993)
(noting that expert opinions that d0 not assist the trier of fact are not relevant); Robinson, 923 S .W
.2d at 557 (Tex . 1995) (noting the opinion 0f the expert must be relevant) ;
K-Mart Corp. v.
Honeycutt, 24 S.W .3d 357, 360-61 (Tex. 2000) (excluding a human factors expert because he was
not helpful t0 the jury).
C. An expert's opinion is not admissible unless it is reliable.
In order to be helpful t0 the jury, the expert's opinion must be shown to be reliable before it is
admitted. Robinson, 923 S.W.2d at 557; Gammill, 972 S.W.2d at 726. The Texas Supreme Court has
PLAINTIFF’S MOTION TO STRIKE THE COUNTER-AFFIDAVITS AND BAR TESTIMONY OF RYAN
ROBINSON, D.C. AND ROBERT J. NOCERINI, M.D.
Page 3 of 15
made clear that this rule applies t0 technical 0r other specialized knowledge. Id. at 554; TEX. R.
EVID. 702. "Because expert evidence can be hard t0 evaluate, it can be both powerful and
misleading." Robinson, 923 S .W .2d at 553. Courts should consider the following factors When
assessing the offered testimony 0f experts: the extent t0 which the expert's theories can be tested ;
Whether the expert's techniques have been subj ected to peer review; the potential rate of error for the
expert's techniques; Whether the expert's techniques have been generally accepted as valid by the
relevant community; the extent to which the technique relies on the subjective interpretation of the
expert; and the nonjudicial uses of the theory 0r technique that have been made. Id. at 557. The Court
must act as a "gatekeeper" to determine the qualifications of an expert and whether the expert's
opinion is admissible. Id. at 556. This requires the court t0 analyze the expert's techniques and
methodologies under the six Robinson factors. See id.
Further, Section 18.001 of the Civil Practice and Remedies Code provides a significant
savings 0f time and cost to litigants, particularly in personal injury cases, by providing a means t0
prove up the reasonableness and necessity 0f medical expenses incurred for treatment rendered to
alleviate the individual’s injuries. Section 18.00 1 (C)(2)(B) permits charges t0 be proved-up by a non-
expert custodian. Additionally, § 18.001(f) requires a counter-affidavit t0 give reasonable notice 0f
the basis 0n which the party on Which the party filing it intends to controvert the claim reflected by
the initial affidavit and any such affidavit must be made by a person qualified to testify in
contravention about matters contained in the initial affidavit. A copy of the §18.001 counter-
affidavits are attached as Exhibit B, and C. The counter-affidavits should be stricken for the
following reasons:
PLAINTIFF’S MOTION TO STRIKE THE COUNTER-AFFIDAVITS AND BAR TESTIMONY OF RYAN
ROBINSON, D.C. AND ROBERT J. NOCERINI, M.D.
Page 4 of 15
IV.
ARGUMENT AND OBJECTIONS
1. DR. ROBINSON’S COUNTER—AFFIDAVIT FAILS TO GIVE REASONABLE
NOTICE OF BASIS FOR CONTROVERSION
The counter-affidavit of Dr. Robinson does not give reasonable notice of his basis and
should therefore be stricken. An expert's conclusory or unsubstantiated statements - ones that
have no factual basis stated for the opinions 0r the basis offered provides n0 support for the
opinions - are not evidence. See City ofSan Antonio v. Pollock; 284 S.W.3d 809, 816 (TeX.
2009); Burrow v. Arce, 997 S.W.2d 299, 233 (Tex. 1999); see also Travelers Ins. C0. v. Martin,
28 S.W.3d 42, 48 (TeX.App.-Texarkana 2000, no pet.) quoting In Re Jones, 974 S.W.2d 766,
769 (TeX.App.-San Antonio 1998, n0 pet), citing Casually Underwriters v. Rhone, 132 S.W.2d
97, 99 (1939); Turner, 50 S.W.3d at 747.
By way 0f his counter-affidavit (Exhibit B), Dr. Robinson offers the following opinions:
- “In reference t0 the use ofelectrical muscle stimulation, manual therapy, ultrasound,
based 0n my clinical experience, this modality has clinically been demonstrated to
provide short-term pain relief and increase spinal mobility t0 facilitate spinal
manipulation. Based 0n the article entitled "Philadelphia Panel evidence-based clinical
"
practice guidelines 0n selected rehabilitation interventionsfor neckpain dated October
2001, for several interventions and indications (eg, thermotherapy, therapeutic
ultrasound, massage, electrical stimulation), there was a lack 0f evidence regarding
eflicacy. Additionally, in my professional opinion, if used, would not be recommended
past 2-3 weeks post initial presentation t0 the treating doctor. Instead, patients
should be weaned offpassive therapies and transitioned into active care, as the use 0f
active care is associated with a much better clinical outcome. Therefore, reimbursement
”
is only reasonable and necessaryfor thefirst 3 weeks 0ftreatment.
PLAINTIFF’S MOTION TO STRIKE THE COUNTER-AFFIDAVITS AND BAR TESTIMONY OF RYAN
ROBINSON, D.C. AND ROBERT J. NOCERINI, M.D.
Page 5 of 15
Dr. Robinson concludes that any electrical muscle stimulation, manual therapy, and
ultrasound that Plaintiff received after three weeks was medically unnecessary because, based
on his experience and the Philadelphia Panel evidence-based guidelines, these treatments only
provide short—term relief. However, in making this blanket assertion, Dr. Robinson fails t0
refer t0 the treatment that Plaintiff received. Thus, he makes n0 showing that it actually was
ineffective past three weeks. Accordingly, Dr. Robinson's opinion is conclusory.
- “In reference t0 the use ofmechanical traction, based 0n my clinical experience, this
modality has clinically been demonstrated t0 provide short-term pain reliefand increase
spinal mobility t0 facilitate spinal manipulation. Based 0n the article entitled
"Philadelphia Panel evidence-based clinical practice guidelines 0n selected
rehabilitation interventionsfor neckpain " dated October 2001, studies have concluded
there is limited documentation 0f eflicacy 0f cervical traction beyond short-term pain
reduction. In general, it would not be advisable t0 use these modalities beyond 2-3 weeks
if signs 0f objective progress towards functional restoration are not demonstrated 1.
Instead, patients should be weaned offpassive therapies and transitioned into active
care, as the use 0f active care is associated with a much better clinical outcome.
Therefore, reimbursement is only reasonable and necessary up t0 the following up t0
”
thefirst 3 weeks 0ftreatment.
Dr. Robinson concludes that any mechanical traction that Plaintiff received after three
weeks was medically unnecessary because, based on his experience and the Philadelphia
Panel evidence—based guidelines, these treatments only provide short-term relief. However,
in making this blanket assertion, Dr. Robinson once again fails t0 refer t0 the treatment that
Plaintiff received. Thus, he makes no showing that it was actually ineffective past three
weeks. Accordingly, Dr. Robinson's opinion is conclusory.
PLAINTIFF’S MOTION TO STRIKE THE COUNTER-AFFIDAVITS AND BAR TESTIMONY OF RYAN
ROBINSON, D.C. AND ROBERT J. NOCERINI, M.D.
Page 6 of 15
- “In reference t0 the Chiropractic Adjustment, from my experience with the diagnosis
offhis claimant, a trialperiod oftreatment consisting of 6-8 visits in a time period 0f2-
3 weeks has been shown t0 provide an adequate sample 0fthe success 0fthe treatment.
If the chiropractor can demonstrate objective functional improvement during the trial
period, then up t0 18-22 treatments over a period ofsix weeks is recommended. In this
case, there was objective functional improvement during the trial period 0f care.
”
Therefore, reimbursement is both reasonable and necessaryfor thefirst 22 visits.
Dr. Robinson concludes that only the chiropractic adjustments that Plaintiff received
in the first 22 Visits were medically necessary. Dr. Robinson arrives at this conclusion
because he asserts that “there was objective functional improvement during the trial period
0f care.” However, he fails t0 establish how Plaintiff achieved objective functional
improvement. Thus, he makes n0 showing that only the chiropractic adjustments that Plaintiff
received in the first 22 Visits were medically necessary. Accordingly, Dr. Robinson's opinion
is conclusory.
— “In reference t0 the use 0f Therapeutic Exercises, based 0n my clinical experience with
soft tissue related injuries, I recommend up t0 ten sessions over an eight-weekperiod. The
practitioner should allowforfading 0ftreatmentfrequencyfr0m three visits per week to
one 0r less, with an emphasis 0n active self-directed home PT. If objective functional
improvement is demonstrated during thefirst ten sessions, then I recommend up t0 eight
t0 twelve more sessions. Based 0n the article titled "pitfalls and accomplishments 0f
guidelines for treatment 0f back problems" studies have concluded there is in extreme
importance in healing t0 implement exercise prescriptions for the patient t0 achieve
activity tolerance. In this case, there was objective functional improvement during the
trial period of care. Therefore, reimbursement is both reasonable and necessary for the
”
first 22 visits.
PLAINTIFF’S MOTION TO STRIKE THE COUNTER-AFFIDAVITS AND BAR TESTIMONY OF RYAN
ROBINSON, D.C. AND ROBERT J. NOCERINI, M.D.
Page 7 of 15
Dr. Robinson concludes that only the therapeutic exercises that Plaintiff received in
the first 22 Visits were medically necessary. Dr. Robinson arrives at this conclusion because
he asserts that “there was objective functional improvement during the trial period of care.”
However, Dr. Robinson once again fails t0 establish how Plaintiff achieved objective
functional improvement. Thus, he makes no showing that only the therapeutic exercises that
Plaintiffreceived in the first 22 Visits were medically necessary. Accordingly, Dr. Robinson's
opinion is conclusory.
- “In reference t0 the referral 0fthe MRI scan 0fthe lumbar and cervical spine, in my
professional opinion this service is warranted when there is failure t0 achieve success
during conservative treatment, and objectivefindings from the initial examination are
stillpresent. Typically, I utilize a one-month duration 0ftreatmentprior t0 referring out
forfurther diagnostics. In this case, the referralfor this service was 4 weeks after initial
presentation t0 the clinic. However, there were n0 neurological symptoms noted in the
initial examination. Examples 0f neurological symptoms would be changes in deep
tendon reflexes, sensation, muscle grading in specific spinal dermatomes or myotomes.
Without thesefindings, there was little medical documentation t0 warrant this referral.
Therefore, this referral was not reasonable 0r necessary. ”
Next, Dr. Robinson opines that the MRIS 0f Plaintiff’s lumbar and cervical spine were
medically unnecessary because Plaintiff” s providers did not document any neurological symptoms
at his initial examination. Dr. Robinson fails t0 make any showing that neurological symptoms are
the only symptoms that would necessitate an MRI, and, once again, he fails to refer to any
symptoms that Plaintiff did report. Also, Dr. Robinson attempts t0 shift the burden t0 Plaintiff’s
provider to prove the necessity 0f the MRI, when the burden is 0n Dr. Robinson. See Tex. CiV.
Prac. & Rem. Code 18.001(b), (f).
PLAINTIFF’S MOTION TO STRIKE THE COUNTER-AFFIDAVITS AND BAR TESTIMONY OF RYAN
ROBINSON, D.C. AND ROBERT J. NOCERINI, M.D.
Page 8 of 15
- “The list below depicts treatment, and the totalfor each: the amount billed, the
reasonable and necessary allowable treatment, and the totalfor each:
Mechanical Traction $30 $30X8 $240
Manual Therapy $41 $41 X8 $328
EMS $30 $30X8 $240
Ultrasound $45 $45X8 $360
CMT3-4 $50 $50X22 $1,100
Detailed Exam $125 $125 $125
Shoulder X-rays $85 $85 $85
Total $2,478
From my experience with thefee schedules around the DFW area, the charges for the
services below were excessive. The list below shows the amount billedfor each service
and a range 0fthe reasonable chargesfor each.
Th erapeutic Exercises $120 $40—50 X 22
Cervical X-rays $265 $75-100
Thoracic X-mys $125 $75-100
Lumbar X-rays $11 5 $75-100
Cervical MRI $2,891 $400-700
Lumbar MRI $3, 012 $400—700
The total reasonable charges for the necessary treatment are between $3,583 and
”
$3,8 78.
With regard to Plaintiff” s bill from Cano Health and Rehab, Dr. Robinson does not explain
how he determined his conclusively-reasonable charge ranges. He states that his conclusion is
based 0n his “experience With the fee schedules around the DFW area,” but he fails t0 cite t0 what
those fee schedules are. And he fails t0 show why this provider's charges must be considered
PLAINTIFF’S MOTION TO STRIKE THE COUNTER-AFFIDAVITS AND BAR TESTIMONY OF RYAN
ROBINSON, D.C. AND ROBERT J. NOCERINI, M.D.
Page 9 of 15
unreasonable. He cites t0 n0 credible authority whatsoever t0 support any opinion in this regard.
Here as in Rountree, Dr. Robinson’s statement is a bare conclusion without any factual
substantiation. Dr. Robinson has failed t0 provide any more than a conclusory statement in which
he expects both Plaintiff and the Court t0 assume he is right.
In sum, Dr. Robinson either obscures the basis for challenging the charges and services 0f
Cano Health and Rehab as to Plaintiff, or he conceals the lack of any basis. This Violation 0f
Section 18.001(f)’s reasonable notice condition justifies striking Dr. Robinson's Counter-Affidavit
from use in this cause.
DR. NOCERINIS’S COUNTER—AFFIDAVIT FAILS TO GIVE REASONABLE
NOTICE OF BASIS FOR CONTROVERSION
Section 18.001(f) states that counter-affidavits “must give reasonable notice 0f the basis”
on Which the medical expenses/services are controverted. The counter-affidavit 0f Dr. Nocerini
does not give reasonable notice ofhis basis and should therefore be stricken. See Turner v. Peril,
50 S.W.3d 742,747 (TeX. App. — Dallas)(January 13, 2000). See also Burrow v. Arce, 997 S.W.2d
229, 235-6 (Tex. 1999) (holding that in a summary judgment proceeding an expert’s affidavit
must contain factual support for the expert’s opinion).
Section 18.001(f) requires a counter-affidavit t0 give reasonable notice of the basis 0n
which the party filing it intends t0 controvert the claim reflected bx the initial affidavit.
(Emphasis added) Section 18.0016), Tex.Civ.Prac.Rem.C0de. Dr. Nocerini fails t0 cite any
authority for his opinions as it relates to the medical costs he believes are reasonable and
treatment he believes is necessary.
In the matter of Rountree v. Cavazos, 0n appeal from the County Court at Law Number
4, Collin County, Texas (Trial Court Cause No. 0004-00588-2015), in The Court 0f Appeals,
Fifth District of Texas at Dallas, the Court answered the exact question posed by this Court at the
PLAINTIFF’S MOTION TO STRIKE THE COUNTER-AFFIDAVITS AND BAR TESTIMONY OF RYAN
ROBINSON, D.C. AND ROBERT J. NOCERINI, M.D.
Page 10 of 15
hearing 0f this matter. The Fifth District 0f Texas Court 0f Appeals held that:
‘
Although Dr. West does state once in the affidavit that a segment 0f the treatment
was not medical necessary and the bills for the same were not reasonable’ there is
n0 discussion ofthe amounts charged for any service and why the amounts charged
were unreasonable for the time and place the service was provided. This statement
is a bare conclusion Without any factual substantiation and is insufficient t0
controvert the reasonableness 0f the medical bills in question. See City ofLaredo
v. Limon, N0. 04-12-00616-CV, 2013 WL 5948129, at *7 (Tex. App.—San
Antonio Nov. 6, 2013, n0 pet.) (mem. 0p.) (conclusory statement that doctor was
familiar with reasonable and customary charges for various providers’ services in
south Texas was insufficient t0 controvert reasonableness 0f other professionals’
bills).
In this case, the same is true with Dr. Nocerini’s counter-affidavit. A controverting
affidavit must give reasonable notice 0f the basis 0n which the party serving it intends t0
controvert the claim reflected by the initial ajfidavit at trial. Here, Dr. Nocerini fails to identify
any medical basis/guideline/treatise/document t0 support his personal belief as t0 the rate or
reasonableness of treatment 0r costs Plaintiff received from AM/PM Medical Centers and
Epic Pain & Orthopedics in accordance With 18.001(f) TEXAS CIVIL AND PRACTICES
REMEDIES CODE, and therefore his counter—affidavit is defective as a matter oflaw. Dr.
Nocerini’s opinions as t0 the medical necessity and reasonableness 0f the charges are nothing
more than conclusory statements. There is n0 factual data t0 substantiate What is provided in his
counter—affidavit.
By way of his counter-affidavit (Exhibit C), Dr. Nocerini offers the following opinions:
- “The cervical epidural steroid injection was not necessary. There was n0 potential
PLAINTIFF’S MOTION TO STRIKE THE COUNTER-AFFIDAVITS AND BAR TESTIMONY OF RYAN
ROBINSON, D.C. AND ROBERT J. NOCERINI, M.D.
Page 11 of 15
source afradiculopathy 0n cervical MRI such as nerve root compression, displacement
”
0r significant neuralforaminal stenosis.
Dr. Nocerini concludes that Plaintiff’s cervical epidural steroid inj ection was
medically unnecessary because there was no potential source of radiculopathy on the cervical
MRI. Dr. Nocerini fails t0 establish why a lack 0f radiculopathy on Plaintiff’s cervical MRI
renders the cervical epidural steroid injection medically unnecessary. Further, Dr. Nocerini
fails t0 city to any authority to support his conclusion.
Here as in Rowntree, Dr. Nocerini’s opinion is a bare conclusion Without any factual
substantiation. Dr. Nocerini has failed t0 provide any more than a conclusory statement in Which
he expects both Plaintiff and the Court to assume he is right. Dr. Nocerini’s opinions as t0 the
medical necessity of Plaintiff’s cervical epidural steroid injection is an unsubstantiated
conclusion.
- “The chargefor the office visit t0 AMWM Medical Centers was not reasonable. A
reasonable chargefor this office visit would be $3 79. The additional $300 chargefor
a medical report is an unnecessary additional charge. The History and Physical
serves as an adequate report 0r narrative 0fthe encounter and the CPT code 99204
includes the chargefor this report. The chargefor the initial office visit t0 Epic Pain
& Orthopedics was not reasonable. A reasonable chargefor this visit would be $334.
The charges for the follow-up visits were not reasonable. A reasonable charge for
each follow-up visit would be $226. The charge for the lumbar epidural steroid
injection was not reasonable. A reasonable chargefor this injection would be $2,227.
The charge for the cervical epidural steroid injection was not reasonable. A
reasonable chargefor this injection would be $1,803. ”
Dr. Nocerini concludes that some 0f the charges 0f AM/PM Medical Centers and
PLAINTIFF’S MOTION TO STRIKE THE COUNTER-AFFIDAVITS AND BAR TESTIMONY OF RYAN
ROBINSON, D.C. AND ROBERT J. NOCERINI, M.D.
Page 12 of 15
Epic Pain & Orthopedics were not reasonable. Critically, Dr. Nocerini does not explain how
he determined his conclusively-reasonable charges, some 0f Which are oddly specific, such as
"$379" and "$1,803." Dr. Nocerini fails to show why AM/PM Medical Centers’ and Epic
Pain & Orthopedics’ charges must be considered unreasonable.
Here as in Rowntree, Dr. Nocerini’s opinion is a bare conclusion without any factual
substantiation. Dr. Nocerini has failed t0 provide any more than a conclusory statement in
which he expects both Plaintiff and the Court to assume he is right.
Dr. Nocerini either obscures the basis for challenging the charges 0f AM/PM Medical
Centers and Epic Pain & Orthopedics, 0r he conceals the lack of any basis. This Violation of
Section 18.001(f)'s reasonable notice condition justifies striking Dr. Nocerini's Counter-
Affidavits from use in this cause.
IV.
CONCLUSION & PRAYER
Defendant's experts, Dr. Robinson and Dr. Nocerini, fail t0 reasonably apprise
Plaintiff of the underlying bases for their opinions regarding their providers' services and
charges. Allowing deficient Counter-Affidavits t0 controvert Plaintiff’s initial section
18.001 affidavits would frustrate the savings intended by the statute. Plaintiff, accordingly,
prays that the Court strike Dr. Robinson’s and Dr. Nocerini’s Counter-Affidavits from use
in this cause for all purposes and bar their testimony.
WHEREFORE, PREMISES CONSIDERED, Plaintiff respectfully prays that the
Court grant his motion to strike. Plaintiff seeks such other and further relief to which he
may be justly entitled, Whether at law 0r in equity.
PLAINTIFF’S MOTION TO STRIKE THE COUNTER-AFFIDAVITS AND BAR TESTIMONY OF RYAN
ROBINSON, D.C. AND ROBERT J. NOCERINI, M.D.
Page 13 of 15
Respectfully submitted,
Hernandez & Browning
By:
/s/ Sabrina L. Galvan
Sabrina L. Galvan
Texas Bar Number: 24096871
Juan C. Hernandez
Texas Bar Number: 24002270
16850 Dallas Parkway
Dallas, Texas 75248
(214) 900-0000 Telephone
(972) 235-4454 Telecopy
Counselfor Plaintfl
CERTIFICATE OF SERVICE
This is to certify that a true and correct copy ofthe foregoing and attached have been served
upon all counsel 0f record, in accordance with the Texas Rules 0f Civil Procedure, 0n this 28th day
of July 2020.
Via E-Service
Scott A. Whitcomb
Susan L. Florence & Associates
1201 Elm Street, Suite 5050
Dallas, Texas 75270
T: 214-659-4325
F: 877-678-4763
swhim@allstate.com
Attorneyfor Defendant
/s/ Sabrina L. Galvan
SABRINA L. GALVAN
PLAINTIFF’S MOTION TO STRIKE THE COUNTER-AFFIDAVITS AND BAR TESTIMONY OF RYAN
ROBINSON, D.C. AND ROBERT J. NOCERINI, M.D.
Page 14 of 15
CERTIFICATE OF CONFERENCE
Ihereby certify that an attempt has been made to resolve the issues presented in this
motion and that the parties could not come t0 an agreement. Defense Counsel is opposed t0 this
motion.
/s/ Sabrina L. Galvan
SABRINA L. GALVAN
PLAINTIFF’S MOTION TO STRIKE THE COUNTER-AFFIDAVITS AND BAR TESTIMONY OF RYAN
ROBINSON, D.C. AND ROBERT J. NOCERINI, M.D.
Page 15 of 15
Exhibit A
AFFIDAVIT BY THE PERSON WHO IS IN CHARGE OF BILLING RECORDS
BEFORE ME,
(Affidavit per § 18.001 et seq. of the Civil Practices and Remedies
(name of affiant), who, bei g by
,
Code and lRule 902(10) b of the Texas Rules of Civil Evidence)
the lmdersigned authority, personally appeared
me duly sworn, deposed as follows:
mm
My name is \b ‘.|/\ DmeDS (name of affiant). I am of sound mind and
capable of making this affijlavit, and am personally acquainted with the facts herein stated:
I am the person in charge and the custodian of records of AMPM Medical Centers.
Attached to this affidavit ane
I
pages of billing records that provide an itemized statement
of the service and the charge for the service that AMPM Medical Centers provided to
A\G’)fl©® Law (name ofpatient) from I
[Q] Z I
q
[FIRST DATE 0F SERVICE] through IM‘ Z M [LAST DATE 0F SERVICE]. The
attached billing records are a part of this affidavit. The total charge for the services provided is
00
$ ‘ :gfio . The total of these charges that has been paid is
$ \®\ . The total of these charges that are still owed is
oO
$ ll.
960
The attached billing records are kept by me in the regular course of business. The
information contained in th0
‘
V
a -¢
( V“
”a
.
Notary Publlc, State ofTexas
W 25
7
-.
,_
m
wmm
‘
2
U)
\ v 5 5
\V 6v
X) For ;;~
Ill;
/
.
U25 Le
AFFIDAVIT BY TH PERSON WHO IS IN CHARGE 0F
MEDICAL RECORDS
(Affidavit a per § 18.001, et seq. of the Civil Practi
ce Remedies &
Code a d Rule 902(10) b of the Texas Rules of Evide
nce)
BEFORE ME, the ndersigned authority, personally appeared
.
i fl W03
(name of affiant), who, bei g by me duly sworn, depos
ed as follows:
My name is \Ja6 } A I u S (name of affiant). Iam of sound mind and
capable of making this affi avit, and personally acquainted with the facts herein stated:
I am the custodian of records and the person in charge of records of AMPM Medical
Centers. Attached hereto a e
__(Q_ pages ofrecords from AMPM Medical Centers for services
provided to A\ 5‘ g arm (name of patient) from I i ’0‘ to
l q (ates of services).
I I
These said records are kept by AMPM Medical
Centers in the regular couse of business, and it was the regular course of business of AMPM
Medical Centers em
for an p loyee or representative of AMPM Medical Centers, with knowledge
of the act, event, conditio opinion, or diagnosis, recorded to
,
make the record or to transmit
information thereof to be in luded in such record
; and the record was made at or near the time of
the act, event, condition, opi ion, or diagnosis
recorded or reasonably soon thereafter. The records
attached hereto are the origi a1 or exact duplic
ates of the original and are part of this affidav
it.
The service provideu was necessary and the amount charg
ed for the service was reasonable
at the time and place that the service was provided.
2019.
A11 statements
SWORN TO AND SUBSCRIBED before me on the
\\\\\
made
\mm
‘
1,
herein by
l/l.
OAW
me are within my personal knowledge.
/ Q
/
1"”
I
.r\
«'
/
day of \J ,
\\\ r ’//
,/
®\\
V3958; A (£04 /J,,/ K,
é‘
w
_
§.-"?\\’P¢"u“d’/2 7’.
S .- Ix?“
52/ '.
5;-
\
Mom mm W} w
From: SL6 Tum Fu: 12144425801 To: 4695471404®RCFux.com Fax: (459) 547-1404 Page: s ot 9 01I13I2019 9:37 AM
AFFIDAVIT BY THE PERSON WHO IS IN CHARGE 0F BILLING RECORDS
(Affidavit per § 18.001, e! seq. ofthe Civil Practices and Remedies
Code and Rule 902(10) b of the Texas Rules ofCivil Evidence)
BEFORE ME, the undersigned authority, personally appeared f Bhm L,
5m! ‘ W1“ s
(name of affiant), who, being by me duly swom, depose
Preview
FILED 7/28/2020 9:56 AM FELICIA PITRE DISTRICT CLERK DALLAS CO., TEXAS Darling Tellez DEPUTY Cause N0. DC-19-13584 ALFONSO LARA § IN THE DISTRICT COURT Plaintiff, § § VS. § DALLAS COUNTY, TEXAS § § DAYAKAR PINDI § Defendant. § 160th JUDICIAL DISTRICT PLAINTIFF’SMOTION TO STRIKE THE COUNTER-AFFIDAVITS AND BAR TESTIMONY OF RYAN ROBINSON, D.C. AND ROBERT J. NOCERINI. M.D. TO THE HONORABLE JUDGE OF SAID COURT: NOW COMES PLAINTIFF and files his Motion to Strike the Counter—Affidavits and Bar Testimony 0f Ryan Robinson, D.C. and Robert J. Nocerini, M.D. controverting Plaintiff” s medical expenses and services. L NATURE OF CASE This is a personal injury lawsuit resulting from a motor vehicle collision in Which Plaintiff alleges that the Defendant was negligent. Plaintiff suffered numerous injuries as a result 0f this motor vehicle collision. Additionally, Plaintiff incurred medical treatment from numerous medical providers as a result of the wreck. II. PROCEDURAL HISTORY OF CASE On August 30, 2019, Plaintiff brought suit against Defendant for injuries sustained in a motor vehicle collision. On October 10, 2019, Defendant filed an answer. Plaintiff was injured in the car wreck that made the basis 0f this suit. He received orthopedic, chiropractic, pain management and radiological treatment, from Cano Health and PLAINTIFF’S MOTION TO STRIKE THE COUNTER-AFFIDAVITS AND BAR TESTIMONY OF RYAN ROBINSON, D.C. AND ROBERT J. NOCERINI, M.D. Page 1 of 15 Rehab, AMPM Medical Centers, Epic Pain & Orthopedics, DFW MRI, Lakewood Anesthesia, Radiology Consultants North Texas, and Singleton Associates, PA for injuries resulting from the incident that made the basis of this suit, and incurred medical expenses for that treatment. Plaintiff’s medical affidavits, exchanged with Defendant, pursuant t0 §18.001, Texas Civil Practice and Remedies Code, provide: 1) the amount of medical expenses incurred (What was paid and what was owed); 2) the necessity of the treatment for the proper care 0f the patient; and 3) the reasonableness 0f the charges for that treatment, from each medical provider. On 0r about November 8, 2019, Plaintiff served defense counsel with a copy 0f Plaintiff’s billing and medical records from the following medical providers: Cano Health and Rehab, Epic Pain & Orthopedics, AM/PM Medical Centers, DFW MRI, Lakewood Anesthesia, Radiology Consultants North Texas, and Singleton Associates, PA. The above-mentioned billing and medical records were also sent along with appropriately completed affidavits for each provider in accordance with Texas Civil Practice & Remedies Code § 18.001. Exhibit A. On December 9, 2019, Defendant’s attorneys filed Counter-Affidavits completed Ryan Robinson, D.C.., stating that the medical bills Plaintiff received at Cano Health and Rehab were not reasonable and that the services were not necessary. Exhibit B. On December 9, 2019, Defendant’s attorneys also filed Counter-Affidavits Robert J. Nocerini, MD, stating that the medical bills Plaintiff received at AM/PM Medical Centers and Epic Pain & Orthopedics were not reasonable and that the services were not necessary. Exhibit C. PLAINTIFF’S MOTION TO STRIKE THE COUNTER-AFFIDAVITS AND BAR TESTIMONY OF RYAN ROBINSON, D.C. AND ROBERT J. NOCERINI, M.D. Page 2 of 15 fl LEGAL AUTHORITY A. An expert must be qualified to render an opinion. Texas Rule 0f Evidence 702 permits a witness qualified as an expert by "knowledge, skill, experience, training 0r education" t0 testify 0n "scientific, technical, 0r other specialized" subjects if the testimony "Will assist the trier of fact to understand the evidence or to determine a fact in issue." T0 meet these standards, the expert must not only be qualified, but his proposed testimony must be relevant and reliable. See Volkswagen ofAmerica, Inc. v. Ramirez, 159 SW3d 897, 904-905 (Tex. 2004); Helena Chemical C0. v. Wilkins, 47 SW3d 486, 499 (TeX. 2001); and E.I. du Pant de Nemours & C0. v. Robinson, 923 SW2d 549, 556 (Tex. 1995). B. An expert's opinion is not admissible unless it helps the trier 0f fact t0 understand the evidence 0r determine a fact in issue. Under Rule 702, the Court has a duty t0 determine if the expert's testimony Will assist the jury. Cammill v. Jack Williams Chevrolet, Ina, 972 S .W .2d 713, 725 (Tex . 1998) . Testimony that does not assist the trier 0f fact is neither relevant nor admissible. See, e.g., Kumho Tire C0. v. Carmichael, 526 U.S . 137, 156-58 (1999) (holding that expert's methodology must be properly applied t0 facts 0f the case in order to assist the jury); Daubert v. Merrell Dow Pharm., Ina, 509 U.S. 579, 591 (1993) (noting that expert opinions that d0 not assist the trier of fact are not relevant); Robinson, 923 S .W .2d at 557 (Tex . 1995) (noting the opinion 0f the expert must be relevant) ; K-Mart Corp. v. Honeycutt, 24 S.W .3d 357, 360-61 (Tex. 2000) (excluding a human factors expert because he was not helpful t0 the jury). C. An expert's opinion is not admissible unless it is reliable. In order to be helpful t0 the jury, the expert's opinion must be shown to be reliable before it is admitted. Robinson, 923 S.W.2d at 557; Gammill, 972 S.W.2d at 726. The Texas Supreme Court has PLAINTIFF’S MOTION TO STRIKE THE COUNTER-AFFIDAVITS AND BAR TESTIMONY OF RYAN ROBINSON, D.C. AND ROBERT J. NOCERINI, M.D. Page 3 of 15 made clear that this rule applies t0 technical 0r other specialized knowledge. Id. at 554; TEX. R. EVID. 702. "Because expert evidence can be hard t0 evaluate, it can be both powerful and misleading." Robinson, 923 S .W .2d at 553. Courts should consider the following factors When assessing the offered testimony 0f experts: the extent t0 which the expert's theories can be tested ; Whether the expert's techniques have been subj ected to peer review; the potential rate of error for the expert's techniques; Whether the expert's techniques have been generally accepted as valid by the relevant community; the extent to which the technique relies on the subjective interpretation of the expert; and the nonjudicial uses of the theory 0r technique that have been made. Id. at 557. The Court must act as a "gatekeeper" to determine the qualifications of an expert and whether the expert's opinion is admissible. Id. at 556. This requires the court t0 analyze the expert's techniques and methodologies under the six Robinson factors. See id. Further, Section 18.001 of the Civil Practice and Remedies Code provides a significant savings 0f time and cost to litigants, particularly in personal injury cases, by providing a means t0 prove up the reasonableness and necessity 0f medical expenses incurred for treatment rendered to alleviate the individual’s injuries. Section 18.00 1 (C)(2)(B) permits charges t0 be proved-up by a non- expert custodian. Additionally, § 18.001(f) requires a counter-affidavit t0 give reasonable notice 0f the basis 0n which the party on Which the party filing it intends to controvert the claim reflected by the initial affidavit and any such affidavit must be made by a person qualified to testify in contravention about matters contained in the initial affidavit. A copy of the §18.001 counter- affidavits are attached as Exhibit B, and C. The counter-affidavits should be stricken for the following reasons: PLAINTIFF’S MOTION TO STRIKE THE COUNTER-AFFIDAVITS AND BAR TESTIMONY OF RYAN ROBINSON, D.C. AND ROBERT J. NOCERINI, M.D. Page 4 of 15 IV. ARGUMENT AND OBJECTIONS 1. DR. ROBINSON’S COUNTER—AFFIDAVIT FAILS TO GIVE REASONABLE NOTICE OF BASIS FOR CONTROVERSION The counter-affidavit of Dr. Robinson does not give reasonable notice of his basis and should therefore be stricken. An expert's conclusory or unsubstantiated statements - ones that have no factual basis stated for the opinions 0r the basis offered provides n0 support for the opinions - are not evidence. See City ofSan Antonio v. Pollock; 284 S.W.3d 809, 816 (TeX. 2009); Burrow v. Arce, 997 S.W.2d 299, 233 (Tex. 1999); see also Travelers Ins. C0. v. Martin, 28 S.W.3d 42, 48 (TeX.App.-Texarkana 2000, no pet.) quoting In Re Jones, 974 S.W.2d 766, 769 (TeX.App.-San Antonio 1998, n0 pet), citing Casually Underwriters v. Rhone, 132 S.W.2d 97, 99 (1939); Turner, 50 S.W.3d at 747. By way 0f his counter-affidavit (Exhibit B), Dr. Robinson offers the following opinions: - “In reference t0 the use ofelectrical muscle stimulation, manual therapy, ultrasound, based 0n my clinical experience, this modality has clinically been demonstrated to provide short-term pain relief and increase spinal mobility t0 facilitate spinal manipulation. Based 0n the article entitled "Philadelphia Panel evidence-based clinical " practice guidelines 0n selected rehabilitation interventionsfor neckpain dated October 2001, for several interventions and indications (eg, thermotherapy, therapeutic ultrasound, massage, electrical stimulation), there was a lack 0f evidence regarding eflicacy. Additionally, in my professional opinion, if used, would not be recommended past 2-3 weeks post initial presentation t0 the treating doctor. Instead, patients should be weaned offpassive therapies and transitioned into active care, as the use 0f active care is associated with a much better clinical outcome. Therefore, reimbursement ” is only reasonable and necessaryfor thefirst 3 weeks 0ftreatment. PLAINTIFF’S MOTION TO STRIKE THE COUNTER-AFFIDAVITS AND BAR TESTIMONY OF RYAN ROBINSON, D.C. AND ROBERT J. NOCERINI, M.D. Page 5 of 15 Dr. Robinson concludes that any electrical muscle stimulation, manual therapy, and ultrasound that Plaintiff received after three weeks was medically unnecessary because, based on his experience and the Philadelphia Panel evidence-based guidelines, these treatments only provide short—term relief. However, in making this blanket assertion, Dr. Robinson fails t0 refer t0 the treatment that Plaintiff received. Thus, he makes n0 showing that it actually was ineffective past three weeks. Accordingly, Dr. Robinson's opinion is conclusory. - “In reference t0 the use ofmechanical traction, based 0n my clinical experience, this modality has clinically been demonstrated t0 provide short-term pain reliefand increase spinal mobility t0 facilitate spinal manipulation. Based 0n the article entitled "Philadelphia Panel evidence-based clinical practice guidelines 0n selected rehabilitation interventionsfor neckpain " dated October 2001, studies have concluded there is limited documentation 0f eflicacy 0f cervical traction beyond short-term pain reduction. In general, it would not be advisable t0 use these modalities beyond 2-3 weeks if signs 0f objective progress towards functional restoration are not demonstrated 1. Instead, patients should be weaned offpassive therapies and transitioned into active care, as the use 0f active care is associated with a much better clinical outcome. Therefore, reimbursement is only reasonable and necessary up t0 the following up t0 ” thefirst 3 weeks 0ftreatment. Dr. Robinson concludes that any mechanical traction that Plaintiff received after three weeks was medically unnecessary because, based on his experience and the Philadelphia Panel evidence—based guidelines, these treatments only provide short-term relief. However, in making this blanket assertion, Dr. Robinson once again fails t0 refer t0 the treatment that Plaintiff received. Thus, he makes no showing that it was actually ineffective past three weeks. Accordingly, Dr. Robinson's opinion is conclusory. PLAINTIFF’S MOTION TO STRIKE THE COUNTER-AFFIDAVITS AND BAR TESTIMONY OF RYAN ROBINSON, D.C. AND ROBERT J. NOCERINI, M.D. Page 6 of 15 - “In reference t0 the Chiropractic Adjustment, from my experience with the diagnosis offhis claimant, a trialperiod oftreatment consisting of 6-8 visits in a time period 0f2- 3 weeks has been shown t0 provide an adequate sample 0fthe success 0fthe treatment. If the chiropractor can demonstrate objective functional improvement during the trial period, then up t0 18-22 treatments over a period ofsix weeks is recommended. In this case, there was objective functional improvement during the trial period 0f care. ” Therefore, reimbursement is both reasonable and necessaryfor thefirst 22 visits. Dr. Robinson concludes that only the chiropractic adjustments that Plaintiff received in the first 22 Visits were medically necessary. Dr. Robinson arrives at this conclusion because he asserts that “there was objective functional improvement during the trial period 0f care.” However, he fails t0 establish how Plaintiff achieved objective functional improvement. Thus, he makes n0 showing that only the chiropractic adjustments that Plaintiff received in the first 22 Visits were medically necessary. Accordingly, Dr. Robinson's opinion is conclusory. — “In reference t0 the use 0f Therapeutic Exercises, based 0n my clinical experience with soft tissue related injuries, I recommend up t0 ten sessions over an eight-weekperiod. The practitioner should allowforfading 0ftreatmentfrequencyfr0m three visits per week to one 0r less, with an emphasis 0n active self-directed home PT. If objective functional improvement is demonstrated during thefirst ten sessions, then I recommend up t0 eight t0 twelve more sessions. Based 0n the article titled "pitfalls and accomplishments 0f guidelines for treatment 0f back problems" studies have concluded there is in extreme importance in healing t0 implement exercise prescriptions for the patient t0 achieve activity tolerance. In this case, there was objective functional improvement during the trial period of care. Therefore, reimbursement is both reasonable and necessary for the ” first 22 visits. PLAINTIFF’S MOTION TO STRIKE THE COUNTER-AFFIDAVITS AND BAR TESTIMONY OF RYAN ROBINSON, D.C. AND ROBERT J. NOCERINI, M.D. Page 7 of 15 Dr. Robinson concludes that only the therapeutic exercises that Plaintiff received in the first 22 Visits were medically necessary. Dr. Robinson arrives at this conclusion because he asserts that “there was objective functional improvement during the trial period of care.” However, Dr. Robinson once again fails t0 establish how Plaintiff achieved objective functional improvement. Thus, he makes no showing that only the therapeutic exercises that Plaintiffreceived in the first 22 Visits were medically necessary. Accordingly, Dr. Robinson's opinion is conclusory. - “In reference t0 the referral 0fthe MRI scan 0fthe lumbar and cervical spine, in my professional opinion this service is warranted when there is failure t0 achieve success during conservative treatment, and objectivefindings from the initial examination are stillpresent. Typically, I utilize a one-month duration 0ftreatmentprior t0 referring out forfurther diagnostics. In this case, the referralfor this service was 4 weeks after initial presentation t0 the clinic. However, there were n0 neurological symptoms noted in the initial examination. Examples 0f neurological symptoms would be changes in deep tendon reflexes, sensation, muscle grading in specific spinal dermatomes or myotomes. Without thesefindings, there was little medical documentation t0 warrant this referral. Therefore, this referral was not reasonable 0r necessary. ” Next, Dr. Robinson opines that the MRIS 0f Plaintiff’s lumbar and cervical spine were medically unnecessary because Plaintiff” s providers did not document any neurological symptoms at his initial examination. Dr. Robinson fails t0 make any showing that neurological symptoms are the only symptoms that would necessitate an MRI, and, once again, he fails to refer to any symptoms that Plaintiff did report. Also, Dr. Robinson attempts t0 shift the burden t0 Plaintiff’s provider to prove the necessity 0f the MRI, when the burden is 0n Dr. Robinson. See Tex. CiV. Prac. & Rem. Code 18.001(b), (f). PLAINTIFF’S MOTION TO STRIKE THE COUNTER-AFFIDAVITS AND BAR TESTIMONY OF RYAN ROBINSON, D.C. AND ROBERT J. NOCERINI, M.D. Page 8 of 15 - “The list below depicts treatment, and the totalfor each: the amount billed, the reasonable and necessary allowable treatment, and the totalfor each: Mechanical Traction $30 $30X8 $240 Manual Therapy $41 $41 X8 $328 EMS $30 $30X8 $240 Ultrasound $45 $45X8 $360 CMT3-4 $50 $50X22 $1,100 Detailed Exam $125 $125 $125 Shoulder X-rays $85 $85 $85 Total $2,478 From my experience with thefee schedules around the DFW area, the charges for the services below were excessive. The list below shows the amount billedfor each service and a range 0fthe reasonable chargesfor each. Th erapeutic Exercises $120 $40—50 X 22 Cervical X-rays $265 $75-100 Thoracic X-mys $125 $75-100 Lumbar X-rays $11 5 $75-100 Cervical MRI $2,891 $400-700 Lumbar MRI $3, 012 $400—700 The total reasonable charges for the necessary treatment are between $3,583 and ” $3,8 78. With regard to Plaintiff” s bill from Cano Health and Rehab, Dr. Robinson does not explain how he determined his conclusively-reasonable charge ranges. He states that his conclusion is based 0n his “experience With the fee schedules around the DFW area,” but he fails t0 cite t0 what those fee schedules are. And he fails t0 show why this provider's charges must be considered PLAINTIFF’S MOTION TO STRIKE THE COUNTER-AFFIDAVITS AND BAR TESTIMONY OF RYAN ROBINSON, D.C. AND ROBERT J. NOCERINI, M.D. Page 9 of 15 unreasonable. He cites t0 n0 credible authority whatsoever t0 support any opinion in this regard. Here as in Rountree, Dr. Robinson’s statement is a bare conclusion without any factual substantiation. Dr. Robinson has failed t0 provide any more than a conclusory statement in which he expects both Plaintiff and the Court t0 assume he is right. In sum, Dr. Robinson either obscures the basis for challenging the charges and services 0f Cano Health and Rehab as to Plaintiff, or he conceals the lack of any basis. This Violation 0f Section 18.001(f)’s reasonable notice condition justifies striking Dr. Robinson's Counter-Affidavit from use in this cause. DR. NOCERINIS’S COUNTER—AFFIDAVIT FAILS TO GIVE REASONABLE NOTICE OF BASIS FOR CONTROVERSION Section 18.001(f) states that counter-affidavits “must give reasonable notice 0f the basis” on Which the medical expenses/services are controverted. The counter-affidavit 0f Dr. Nocerini does not give reasonable notice ofhis basis and should therefore be stricken. See Turner v. Peril, 50 S.W.3d 742,747 (TeX. App. — Dallas)(January 13, 2000). See also Burrow v. Arce, 997 S.W.2d 229, 235-6 (Tex. 1999) (holding that in a summary judgment proceeding an expert’s affidavit must contain factual support for the expert’s opinion). Section 18.001(f) requires a counter-affidavit t0 give reasonable notice of the basis 0n which the party filing it intends t0 controvert the claim reflected bx the initial affidavit. (Emphasis added) Section 18.0016), Tex.Civ.Prac.Rem.C0de. Dr. Nocerini fails t0 cite any authority for his opinions as it relates to the medical costs he believes are reasonable and treatment he believes is necessary. In the matter of Rountree v. Cavazos, 0n appeal from the County Court at Law Number 4, Collin County, Texas (Trial Court Cause No. 0004-00588-2015), in The Court 0f Appeals, Fifth District of Texas at Dallas, the Court answered the exact question posed by this Court at the PLAINTIFF’S MOTION TO STRIKE THE COUNTER-AFFIDAVITS AND BAR TESTIMONY OF RYAN ROBINSON, D.C. AND ROBERT J. NOCERINI, M.D. Page 10 of 15 hearing 0f this matter. The Fifth District 0f Texas Court 0f Appeals held that: ‘ Although Dr. West does state once in the affidavit that a segment 0f the treatment was not medical necessary and the bills for the same were not reasonable’ there is n0 discussion ofthe amounts charged for any service and why the amounts charged were unreasonable for the time and place the service was provided. This statement is a bare conclusion Without any factual substantiation and is insufficient t0 controvert the reasonableness 0f the medical bills in question. See City ofLaredo v. Limon, N0. 04-12-00616-CV, 2013 WL 5948129, at *7 (Tex. App.—San Antonio Nov. 6, 2013, n0 pet.) (mem. 0p.) (conclusory statement that doctor was familiar with reasonable and customary charges for various providers’ services in south Texas was insufficient t0 controvert reasonableness 0f other professionals’ bills). In this case, the same is true with Dr. Nocerini’s counter-affidavit. A controverting affidavit must give reasonable notice 0f the basis 0n which the party serving it intends t0 controvert the claim reflected by the initial ajfidavit at trial. Here, Dr. Nocerini fails to identify any medical basis/guideline/treatise/document t0 support his personal belief as t0 the rate or reasonableness of treatment 0r costs Plaintiff received from AM/PM Medical Centers and Epic Pain & Orthopedics in accordance With 18.001(f) TEXAS CIVIL AND PRACTICES REMEDIES CODE, and therefore his counter—affidavit is defective as a matter oflaw. Dr. Nocerini’s opinions as t0 the medical necessity and reasonableness 0f the charges are nothing more than conclusory statements. There is n0 factual data t0 substantiate What is provided in his counter—affidavit. By way of his counter-affidavit (Exhibit C), Dr. Nocerini offers the following opinions: - “The cervical epidural steroid injection was not necessary. There was n0 potential PLAINTIFF’S MOTION TO STRIKE THE COUNTER-AFFIDAVITS AND BAR TESTIMONY OF RYAN ROBINSON, D.C. AND ROBERT J. NOCERINI, M.D. Page 11 of 15 source afradiculopathy 0n cervical MRI such as nerve root compression, displacement ” 0r significant neuralforaminal stenosis. Dr. Nocerini concludes that Plaintiff’s cervical epidural steroid inj ection was medically unnecessary because there was no potential source of radiculopathy on the cervical MRI. Dr. Nocerini fails t0 establish why a lack 0f radiculopathy on Plaintiff’s cervical MRI renders the cervical epidural steroid injection medically unnecessary. Further, Dr. Nocerini fails t0 city to any authority to support his conclusion. Here as in Rowntree, Dr. Nocerini’s opinion is a bare conclusion Without any factual substantiation. Dr. Nocerini has failed t0 provide any more than a conclusory statement in Which he expects both Plaintiff and the Court to assume he is right. Dr. Nocerini’s opinions as t0 the medical necessity of Plaintiff’s cervical epidural steroid injection is an unsubstantiated conclusion. - “The chargefor the office visit t0 AMWM Medical Centers was not reasonable. A reasonable chargefor this office visit would be $3 79. The additional $300 chargefor a medical report is an unnecessary additional charge. The History and Physical serves as an adequate report 0r narrative 0fthe encounter and the CPT code 99204 includes the chargefor this report. The chargefor the initial office visit t0 Epic Pain & Orthopedics was not reasonable. A reasonable chargefor this visit would be $334. The charges for the follow-up visits were not reasonable. A reasonable charge for each follow-up visit would be $226. The charge for the lumbar epidural steroid injection was not reasonable. A reasonable chargefor this injection would be $2,227. The charge for the cervical epidural steroid injection was not reasonable. A reasonable chargefor this injection would be $1,803. ” Dr. Nocerini concludes that some 0f the charges 0f AM/PM Medical Centers and PLAINTIFF’S MOTION TO STRIKE THE COUNTER-AFFIDAVITS AND BAR TESTIMONY OF RYAN ROBINSON, D.C. AND ROBERT J. NOCERINI, M.D. Page 12 of 15 Epic Pain & Orthopedics were not reasonable. Critically, Dr. Nocerini does not explain how he determined his conclusively-reasonable charges, some 0f Which are oddly specific, such as "$379" and "$1,803." Dr. Nocerini fails to show why AM/PM Medical Centers’ and Epic Pain & Orthopedics’ charges must be considered unreasonable. Here as in Rowntree, Dr. Nocerini’s opinion is a bare conclusion without any factual substantiation. Dr. Nocerini has failed t0 provide any more than a conclusory statement in which he expects both Plaintiff and the Court to assume he is right. Dr. Nocerini either obscures the basis for challenging the charges 0f AM/PM Medical Centers and Epic Pain & Orthopedics, 0r he conceals the lack of any basis. This Violation of Section 18.001(f)'s reasonable notice condition justifies striking Dr. Nocerini's Counter- Affidavits from use in this cause. IV. CONCLUSION & PRAYER Defendant's experts, Dr. Robinson and Dr. Nocerini, fail t0 reasonably apprise Plaintiff of the underlying bases for their opinions regarding their providers' services and charges. Allowing deficient Counter-Affidavits t0 controvert Plaintiff’s initial section 18.001 affidavits would frustrate the savings intended by the statute. Plaintiff, accordingly, prays that the Court strike Dr. Robinson’s and Dr. Nocerini’s Counter-Affidavits from use in this cause for all purposes and bar their testimony. WHEREFORE, PREMISES CONSIDERED, Plaintiff respectfully prays that the Court grant his motion to strike. Plaintiff seeks such other and further relief to which he may be justly entitled, Whether at law 0r in equity. PLAINTIFF’S MOTION TO STRIKE THE COUNTER-AFFIDAVITS AND BAR TESTIMONY OF RYAN ROBINSON, D.C. AND ROBERT J. NOCERINI, M.D. Page 13 of 15 Respectfully submitted, Hernandez & Browning By: /s/ Sabrina L. Galvan Sabrina L. Galvan Texas Bar Number: 24096871 Juan C. Hernandez Texas Bar Number: 24002270 16850 Dallas Parkway Dallas, Texas 75248 (214) 900-0000 Telephone (972) 235-4454 Telecopy Counselfor Plaintfl CERTIFICATE OF SERVICE This is to certify that a true and correct copy ofthe foregoing and attached have been served upon all counsel 0f record, in accordance with the Texas Rules 0f Civil Procedure, 0n this 28th day of July 2020. Via E-Service Scott A. Whitcomb Susan L. Florence & Associates 1201 Elm Street, Suite 5050 Dallas, Texas 75270 T: 214-659-4325 F: 877-678-4763 swhim@allstate.com Attorneyfor Defendant /s/ Sabrina L. Galvan SABRINA L. GALVAN PLAINTIFF’S MOTION TO STRIKE THE COUNTER-AFFIDAVITS AND BAR TESTIMONY OF RYAN ROBINSON, D.C. AND ROBERT J. NOCERINI, M.D. Page 14 of 15 CERTIFICATE OF CONFERENCE Ihereby certify that an attempt has been made to resolve the issues presented in this motion and that the parties could not come t0 an agreement. Defense Counsel is opposed t0 this motion. /s/ Sabrina L. Galvan SABRINA L. GALVAN PLAINTIFF’S MOTION TO STRIKE THE COUNTER-AFFIDAVITS AND BAR TESTIMONY OF RYAN ROBINSON, D.C. AND ROBERT J. NOCERINI, M.D. Page 15 of 15 Exhibit A AFFIDAVIT BY THE PERSON WHO IS IN CHARGE OF BILLING RECORDS BEFORE ME, (Affidavit per § 18.001 et seq. of the Civil Practices and Remedies (name of affiant), who, bei g by , Code and lRule 902(10) b of the Texas Rules of Civil Evidence) the lmdersigned authority, personally appeared me duly sworn, deposed as follows: mm My name is \b ‘.|/\ DmeDS (name of affiant). I am of sound mind and capable of making this affijlavit, and am personally acquainted with the facts herein stated: I am the person in charge and the custodian of records of AMPM Medical Centers. Attached to this affidavit ane I pages of billing records that provide an itemized statement of the service and the charge for the service that AMPM Medical Centers provided to A\G’)fl©® Law (name ofpatient) from I [Q] Z I q [FIRST DATE 0F SERVICE] through IM‘ Z M [LAST DATE 0F SERVICE]. The attached billing records are a part of this affidavit. The total charge for the services provided is 00 $ ‘ :gfio . The total of these charges that has been paid is $ \®\ . The total of these charges that are still owed is oO $ ll. 960 The attached billing records are kept by me in the regular course of business. The information contained in th0 ‘ V a -¢ ( V“ ”a . Notary Publlc, State ofTexas W 25 7 -. ,_ m wmm ‘ 2 U) \ v 5 5 \V 6v X) For ;;~ Ill; / . U25 Le AFFIDAVIT BY TH PERSON WHO IS IN CHARGE 0F MEDICAL RECORDS (Affidavit a per § 18.001, et seq. of the Civil Practi ce Remedies & Code a d Rule 902(10) b of the Texas Rules of Evide nce) BEFORE ME, the ndersigned authority, personally appeared . i fl W03 (name of affiant), who, bei g by me duly sworn, depos ed as follows: My name is \Ja6 } A I u S (name of affiant). Iam of sound mind and capable of making this affi avit, and personally acquainted with the facts herein stated: I am the custodian of records and the person in charge of records of AMPM Medical Centers. Attached hereto a e __(Q_ pages ofrecords from AMPM Medical Centers for services provided to A\ 5‘ g arm (name of patient) from I i ’0‘ to l q (ates of services). I I These said records are kept by AMPM Medical Centers in the regular couse of business, and it was the regular course of business of AMPM Medical Centers em for an p loyee or representative of AMPM Medical Centers, with knowledge of the act, event, conditio opinion, or diagnosis, recorded to , make the record or to transmit information thereof to be in luded in such record ; and the record was made at or near the time of the act, event, condition, opi ion, or diagnosis recorded or reasonably soon thereafter. The records attached hereto are the origi a1 or exact duplic ates of the original and are part of this affidav it. The service provideu was necessary and the amount charg ed for the service was reasonable at the time and place that the service was provided. 2019. A11 statements SWORN TO AND SUBSCRIBED before me on the \\\\\ made \mm ‘ 1, herein by l/l. OAW me are within my personal knowledge. / Q / 1"” I .r\ «' / day of \J , \\\ r ’// ,/ ®\\ V3958; A (£04 /J,,/ K, é‘ w _ §.-"?\\’P¢"u“d’/2 7’. S .- Ix?“ 52/ '. 5;- \ Mom mm W} w From: SL6 Tum Fu: 12144425801 To: 4695471404®RCFux.com Fax: (459) 547-1404 Page: s ot 9 01I13I2019 9:37 AM AFFIDAVIT BY THE PERSON WHO IS IN CHARGE 0F BILLING RECORDS (Affidavit per § 18.001, e! seq. ofthe Civil Practices and Remedies Code and Rule 902(10) b of the Texas Rules ofCivil Evidence) BEFORE ME, the undersigned authority, personally appeared f Bhm L, 5m! ‘ W1“ s (name of affiant), who, being by me duly swom, depose