Preview
FILED
1/2/2024 5:10 PM
FELICIA PITRE
DISTRICT CLERK
DALLAS CO., TEXAS
Nicole Burroughs DEPUTY
CAUSE NO. DC-18-06403
TRACEY LOGAN on behalf of THE § IN THE DISTRICT COURT OF
ESTATE OF VELMA LOGAN, §
§
Plaintiff §
§
VS. § 134th JUDICIAL DISTRICT
§
360 CLINICS PLLC; KLAIR §
MEDICOSE D/B/A 360 CLINICS; §
AND DR. NAVEED KLAIR, §
§
Defendants § DALLAS COUNTY, TEXAS
DEFENDANTS 360 CLINICS PLLC, KLAIR MEDICOSE D/B/A
360 CLINICS AND DR. NAVEED KLAIR’S REPLY BRIEF ON
MOTION TO STRIKE THE TESTIMONY OF DR. ROBERT P. MACK
TO THE HONORABLE JUDGE OF SAID COURT:
COME NOW, DEFENDANTS 360 CLINICS PLLC, KLAIR MEDICOSE D/B/A 360
CLINICS AND DR. NAVEED KLAIR’S (herein “Defendants”) and file this Reply Brief on
Defendants’ Motion to Strike the Testimony of Dr. Robert P. Mack, and in support of Defendants’
Motion would respectfully show the Court the following:
I. SUMMARY AND BACKGROUND
Plaintiff’s Response to Defendants’ Motion to Strike failed, almost completely, to respond
to Defendants’ factual and legal arguments. Defendants moved to strike the testimony of Dr.
Robert P. Mack because (1) Dr. Mack is not qualified to render an opinion on the standard of care
for physical therapy facilities, (2) Dr. Mack’s opinion is not helpful to the jury, and (3) Dr. Mack’s
opinion is not based on scientific, technical or other specialized knowledge. (See Defendants’
Motion to Strike). Even being generous, Plaintiff’s Response only addressed the first argument in
the Motion to Strike, Dr. Mack’s expert qualifications.
DEFENDANTS’ MOTION TO STRIKE DR. ROBERT MACK (962.0001) PAGE 1
II. ARGUMENT AND AUTHORITIES
A. Dr. Mack is not qualified to render an opinion on the standard of care for physical
therapy facilities.
Dr. Mack’s opinion that physical therapists have a duty to prevent the unauthorized use of
exercise equipment is unsupported by absolutely anything in the medical field, and by Dr. Mack’s
own words, this opinion is based on “just my own experience and common sense . . .” (Defendants’
Motion to Strike, Exhibit C, 75:1—16). It must follow expert foundation is lacking here, especially
when considering the fact that the ultimate opinion is one derived from common sense.
In this instance, Dr. Mack’s, decades-old experience supervising physical therapists
suggests lacking expert foundation, but this is not the only issue. Dr. Mack’s ultimate non-expert
testimony (that can be derived from common sense) makes it clear that Dr. Mack is essentially a
lay witness offering his opinion. See TEX. R. EVID. 701. Such non-expert opinions must be based
on the witness’s perception and helpful to resolve a fact issue. Id. This rule for non-expert opinions
does not apply to Dr. Mack on this case.
Plaintiff’s suggested that Dr. Mack’s opinions are based on his experience and the “Texas
Administrative Code’s regulations governing the practice of physical therapy.” (Plaintiff’s
Response to Motion to Strike, ¶ 9). However, the Response failed to mention the fact that
Plaintiff’s counsel provided Colorado physician Dr. Mack with various excerpts from the Texas
Administrative Code, the day before Dr. Mack’s deposition. (Id. Exhibit 3, 83:4—25). In line with
the Texas Administrative Code excerpts, Dr. Mack also testified to a couple of breaches of the
standard of care regarding creating treatment plans and prescribing therapy. In sum, Dr. Mack
testified that that Defendants breached the standard of care by not having a treatment plan or a
prescription for physical therapy. However, Dr. Mack had to recent his testimony when defense
DEFENDANTS’ MOTION TO STRIKE DR. ROBERT MACK (962.0001) PAGE 2
counsel pointed out the treatment plan and prescription in Plaintiff’s medical records. (Exhibit A,
Deposition of Dr. Robert Mack, 99:4—100:17);
(BY MR. BLUE) -- for this Exhibit 11, we'll have what's included
in Bates 20 through 25. Now, Dr. Mack, this was included in the
records produced for 360. And these are the records that you
reviewed for your expert report. Would you agree with me that in
these records there is actually a referral and a prescription for
physical therapy?
A: Yes. I -- I missed that.
Q: Dr. Mack, would you agree with that?
MS. SMITH: He --
A: Yes.
MS. SMITH: -- he said yes.
MR. BLUE: Oh, I'm sorry. I didn't hear him.
Q: (BY MR. BLUE) Okay. So then if that's the case, then your
testimony that there was no evidence in the records that there was a
prescription or referral, that was incorrect testimony. Right, Dr.
Mack?
A: Yes.
(Id. 405:7—105:25);
Q: (BY MR. BLUE) You also testified that there was no care plan
in -- in the documents. Is that testimony still accurate, Dr. Mack?
A: Well, not really. He -- no. He states things that need to be done
DEFENDANTS’ MOTION TO STRIKE DR. ROBERT MACK (962.0001) PAGE 3
for the patient. I guess you could call that a care plan.
Q: Okay. Let me stop sharing. My computer keeps blacking out,
but good thing is, it only lasts a couple of seconds. All right. So
your testimony a moment ago that there wasn't a care plan and that
was below the standard of care, that's no longer correct; is that
right, Dr. Mack?
MS. SMITH: Objection, misstates testimony. Go ahead.
A: I -- well I --
MR. BLUE: Form is fine.
A -- there is a plan in that note or -- or an expression of goals for --
for the patient. I think that's true.
(Id. 106:10—107:3) (emphasis added).
Not only did Dr. Mack have to recent his testimony establishing a lacking care plan and
prescription for physical therapy, Dr. Mack testified that the suggested breaches of the standard of
care did not cause Plaintioff’s injuries. (Id., 109:9—109:22, 138:20—139:13, 141:5—141:20).
While Plaintiff’s Response established that Dr. Mack had experience supervising physical
therapists decades ago, this experience lacks the foundation necessary to opine on the standard of
care for physical therapists. In addition, the disputed expert foundation is irrelevant when
considering the fact that Dr. Mack’s opinion is one that can be derived using “common sense” as
opposed to scientific, technical or other specialized knowledge. The expert foundation required to
opine on matters of common sense is unnecessary, and as such, Dr. Mack is not qualified to render
an expert opinion here. Plaintiff’s attempts to bring in the Texas Administrative Code to establish
expertise is both transparent and unsupported. Defendants did not breach the standard of care
DEFENDANTS’ MOTION TO STRIKE DR. ROBERT MACK (962.0001) PAGE 4
suggested by the Code provisions (covering the use of care plans) referenced during the deposition.
Even if Defendants breached the provisions, Dr. Mack testified that any alleged breach did not
cause Plaintiff’s injuries. This all further supports striking Dr. Mack as an expert witness.
B. Dr. Mack’s opinion is not helpful to the jury.
An expert opinion derived in part from common sense, and possible contributory
negligence based on Plaintiff’s failure to use “good sense” represents the precise type of evidence
a jury can review and consider without expert analysis. A jury can use its collective “common
sense” in determining whether Plaintiff failed to use her “good sense.” Dr. Mack opining that the
Defendants should have prevented Plaintiff’s unauthorized use of the treadmill, without any
industry authority, references or even examples, does not help the jury understand or resolve any
fact issues. This is hardly an expert opinion in and of itself, and the idea that healthcare providers
are somehow mandated to prevent unauthorized use of equipment is not helpful to a jury when
jurors can use their “common sense” to decide whether Plaintiff used her “good sense."
Plaintiff failed to address this argument, at all, in the Response.
C. Dr. Mack’s opinion is not based on scientific technical or other specialized
knowledge.
Expert testimony is only permitted, “if scientific, technical, or other specialized
knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue.”
TEX. R. EVID 702; E.I. Du Pont de Nemours and Co, Inc. v. Robinson, 923 S.W.2d at 557.
Again, Dr. Mack’s ultimate and evolving opinion announces a novel therapy standard of
care that cannot be found anywhere outside of this lawsuit. Basing an expert opinion on “common
sense” that may be offset by Plaintiff’s failure to use her “good sense” is not scientific, technical
or specialized knowledge that can assist the jury in determining a fact issue. Dr. Mack did not
DEFENDANTS’ MOTION TO STRIKE DR. ROBERT MACK (962.0001) PAGE 5
conduct any analysis or rely on any industry standard, practice or custom in rendering his ultimate
opinion. Even after reading Plaintiff’s deposition, Dr. Mack’s disputed expert opinion lacks any
scientific, technical or specialized knowledge, despite attempting to use the Texas Administrative
Code to validate Dr. Mack’s analysis.
Plaintiff failed to address this argument, at all, in the Response.
III. CONCLUSION AND PRAYER FOR RELIEF
WHEREFORE, PREMISES CONSIDERED, Defendants requests that the Court grant
their Motion to Strike to Dr. Mack’s testimony, excluding his testimony and opinions from
evidence.
Respectfully submitted,
THE WILLIS LAW GROUP, LLC
____________________________
LINDA L. MALONEY
State Bar No. 00791166
R. J. BLUE
State Bar No. 24038772
CHARLES B. MITCHELL, JR.
State Bar No. 14207000
KIRK D. WILLIS
State Bar No. 21648500
1985 Forest Lane
Garland, Texas 75042
Telephone 214/736-9433
Telecopier 214/736-9994
Service: service@thewillislawgroup.com
ATTORNEYS FOR DEFENDANTS
DEFENDANTS’ MOTION TO STRIKE DR. ROBERT MACK (962.0001) PAGE 6
CERTIFICATE OF SERVICE
I do hereby certify that I have served a true and correct copy of the foregoing on Plaintiff
on this 2nd day of January 2024 via E-Service.
__________________________
Of The Willis Law Group
DEFENDANTS’ MOTION TO STRIKE DR. ROBERT MACK (962.0001) PAGE 7
CAUSE NO. DC-18-06403
TRACEY LOGAN on behalf of THE § IN THE DISTRICT COURT OF
ESTATE OF VELMA LOGAN, §
§
Plaintiff §
§
VS. § 134th JUDICIAL DISTRICT
§
360 CLINICS PLLC; KLAIR §
MEDICOSE D/B/A 360 CLINICS; §
AND DR. NAVEED KLAIR, §
§
Defendants § DALLAS COUNTY, TEXAS
DEFENDANTS 360 CLINICS PLLC, KLAIR MEDICOSE D/B/A
360 CLINICS AND DR. NAVEED KLAIR’S REPLY BRIEF ON
MOTION TO STRIKE THE TESTIMONY OF DR. ROBERT P. MACK
TO THE HONORABLE JUDGE OF SAID COURT:
COME NOW, DEFENDANTS 360 CLINICS PLLC, KLAIR MEDICOSE D/B/A 360
CLINICS AND DR. NAVEED KLAIR’S (herein “Defendants”) and file this Reply Brief on
Defendants’ Motion to Strike the Testimony of Dr. Robert P. Mack, and in support of Defendants’
Motion would respectfully show the Court the following:
I. SUMMARY AND BACKGROUND
Plaintiff’s Response to Defendants’ Motion to Strike failed, almost completely, to respond
to Defendants’ factual and legal arguments. Defendants moved to strike the testimony of Dr.
Robert P. Mack because (1) Dr. Mack is not qualified to render an opinion on the standard of care
for physical therapy facilities, (2) Dr. Mack’s opinion is not helpful to the jury, and (3) Dr. Mack’s
opinion is not based on scientific, technical or other specialized knowledge. (See Defendants’
Motion to Strike). Even being generous, Plaintiff’s Response only addressed the first argument in
the Motion to Strike, Dr. Mack’s expert qualifications.
DEFENDANTS’ MOTION TO STRIKE DR. ROBERT MACK (962.0001) PAGE 1
II. ARGUMENT AND AUTHORITIES
A. Dr. Mack is not qualified to render an opinion on the standard of care for physical
therapy facilities.
Dr. Mack’s opinion that physical therapists have a duty to prevent the unauthorized use of
exercise equipment is unsupported by absolutely anything in the medical field, and by Dr. Mack’s
own words, this opinion is based on “just my own experience and common sense . . .” (Defendants’
Motion to Strike, Exhibit C, 75:1—16). It must follow expert foundation is lacking here, especially
when considering the fact that the ultimate opinion is one derived from common sense.
In this instance, Dr. Mack’s, decades-old experience supervising physical therapists
suggests lacking expert foundation, but this is not the only issue. Dr. Mack’s ultimate non-expert
testimony (that can be derived from common sense) makes it clear that Dr. Mack is essentially a
lay witness offering his opinion. See TEX. R. EVID. 701. Such non-expert opinions must be based
on the witness’s perception and helpful to resolve a fact issue. Id. This rule for non-expert opinions
does not apply to Dr. Mack on this case.
Plaintiff’s suggested that Dr. Mack’s opinions are based on his experience and the “Texas
Administrative Code’s regulations governing the practice of physical therapy.” (Plaintiff’s
Response to Motion to Strike, ¶ 9). However, the Response failed to mention the fact that
Plaintiff’s counsel provided Colorado physician Dr. Mack with various excerpts from the Texas
Administrative Code, the day before Dr. Mack’s deposition. (Id. Exhibit 3, 83:4—25). In line with
the Texas Administrative Code excerpts, Dr. Mack also testified to a couple of breaches of the
standard of care regarding creating treatment plans and prescribing therapy. In sum, Dr. Mack
testified that that Defendants breached the standard of care by not having a treatment plan or a
prescription for physical therapy. However, Dr. Mack had to recent his testimony when defense
DEFENDANTS’ MOTION TO STRIKE DR. ROBERT MACK (962.0001) PAGE 2
counsel pointed out the treatment plan and prescription in Plaintiff’s medical records. (Exhibit A,
Deposition of Dr. Robert Mack, 99:4—100:17);
(BY MR. BLUE) -- for this Exhibit 11, we'll have what's included
in Bates 20 through 25. Now, Dr. Mack, this was included in the
records produced for 360. And these are the records that you
reviewed for your expert report. Would you agree with me that in
these records there is actually a referral and a prescription for
physical therapy?
A: Yes. I -- I missed that.
Q: Dr. Mack, would you agree with that?
MS. SMITH: He --
A: Yes.
MS. SMITH: -- he said yes.
MR. BLUE: Oh, I'm sorry. I didn't hear him.
Q: (BY MR. BLUE) Okay. So then if that's the case, then your
testimony that there was no evidence in the records that there was a
prescription or referral, that was incorrect testimony. Right, Dr.
Mack?
A: Yes.
(Id. 405:7—105:25);
Q: (BY MR. BLUE) You also testified that there was no care plan
in -- in the documents. Is that testimony still accurate, Dr. Mack?
A: Well, not really. He -- no. He states things that need to be done
DEFENDANTS’ MOTION TO STRIKE DR. ROBERT MACK (962.0001) PAGE 3
for the patient. I guess you could call that a care plan.
Q: Okay. Let me stop sharing. My computer keeps blacking out,
but good thing is, it only lasts a couple of seconds. All right. So
your testimony a moment ago that there wasn't a care plan and that
was below the standard of care, that's no longer correct; is that
right, Dr. Mack?
MS. SMITH: Objection, misstates testimony. Go ahead.
A: I -- well I --
MR. BLUE: Form is fine.
A -- there is a plan in that note or -- or an expression of goals for --
for the patient. I think that's true.
(Id. 106:10—107:3) (emphasis added).
Not only did Dr. Mack have to recent his testimony establishing a lacking care plan and
prescription for physical therapy, Dr. Mack testified that the suggested breaches of the standard of
care did not cause Plaintioff’s injuries. (Id., 109:9—109:22, 138:20—139:13, 141:5—141:20).
While Plaintiff’s Response established that Dr. Mack had experience supervising physical
therapists decades ago, this experience lacks the foundation necessary to opine on the standard of
care for physical therapists. In addition, the disputed expert foundation is irrelevant when
considering the fact that Dr. Mack’s opinion is one that can be derived using “common sense” as
opposed to scientific, technical or other specialized knowledge. The expert foundation required to
opine on matters of common sense is unnecessary, and as such, Dr. Mack is not qualified to render
an expert opinion here. Plaintiff’s attempts to bring in the Texas Administrative Code to establish
expertise is both transparent and unsupported. Defendants did not breach the standard of care
DEFENDANTS’ MOTION TO STRIKE DR. ROBERT MACK (962.0001) PAGE 4
suggested by the Code provisions (covering the use of care plans) referenced during the deposition.
Even if Defendants breached the provisions, Dr. Mack testified that any alleged breach did not
cause Plaintiff’s injuries. This all further supports striking Dr. Mack as an expert witness.
B. Dr. Mack’s opinion is not helpful to the jury.
An expert opinion derived in part from common sense, and possible contributory
negligence based on Plaintiff’s failure to use “good sense” represents the precise type of evidence
a jury can review and consider without expert analysis. A jury can use its collective “common
sense” in determining whether Plaintiff failed to use her “good sense.” Dr. Mack opining that the
Defendants should have prevented Plaintiff’s unauthorized use of the treadmill, without any
industry authority, references or even examples, does not help the jury understand or resolve any
fact issues. This is hardly an expert opinion in and of itself, and the idea that healthcare providers
are somehow mandated to prevent unauthorized use of equipment is not helpful to a jury when
jurors can use their “common sense” to decide whether Plaintiff used her “good sense."
Plaintiff failed to address this argument, at all, in the Response.
C. Dr. Mack’s opinion is not based on scientific technical or other specialized
knowledge.
Expert testimony is only permitted, “if scientific, technical, or other specialized
knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue.”
TEX. R. EVID 702; E.I. Du Pont de Nemours and Co, Inc. v. Robinson, 923 S.W.2d at 557.
Again, Dr. Mack’s ultimate and evolving opinion announces a novel therapy standard of
care that cannot be found anywhere outside of this lawsuit. Basing an expert opinion on “common
sense” that may be offset by Plaintiff’s failure to use her “good sense” is not scientific, technical
or specialized knowledge that can assist the jury in determining a fact issue. Dr. Mack did not
DEFENDANTS’ MOTION TO STRIKE DR. ROBERT MACK (962.0001) PAGE 5
conduct any analysis or rely on any industry standard, practice or custom in rendering his ultimate
opinion. Even after reading Plaintiff’s deposition, Dr. Mack’s disputed expert opinion lacks any
scientific, technical or specialized knowledge, despite attempting to use the Texas Administrative
Code to validate Dr. Mack’s analysis.
Plaintiff failed to address this argument, at all, in the Response.
III. CONCLUSION AND PRAYER FOR RELIEF
WHEREFORE, PREMISES CONSIDERED, Defendants requests that the Court grant
their Motion to Strike to Dr. Mack’s testimony, excluding his testimony and opinions from
evidence.
Respectfully submitted,
THE WILLIS LAW GROUP, LLC
____________________________
LINDA L. MALONEY
State Bar No. 00791166
R. J. BLUE
State Bar No. 24038772
CHARLES B. MITCHELL, JR.
State Bar No. 14207000
KIRK D. WILLIS
State Bar No. 21648500
1985 Forest Lane
Garland, Texas 75042
Telephone 214/736-9433
Telecopier 214/736-9994
Service: service@thewillislawgroup.com
ATTORNEYS FOR DEFENDANTS
DEFENDANTS’ MOTION TO STRIKE DR. ROBERT MACK (962.0001) PAGE 6
CERTIFICATE OF SERVICE
I do hereby certify that I have served a true and correct copy of the foregoing on Plaintiff
on this 2nd day of January 2024 via E-Service.
__________________________
Of The Willis Law Group
DEFENDANTS’ MOTION TO STRIKE DR. ROBERT MACK (962.0001) PAGE 7
DEFENDANTS’
EXHIBIT
A
Reply Brief Motion to Strike
Automated Certificate of eService
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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.
Karen Moseley on behalf of R. J. Blue
Bar No. 24038772
kmoseley@thewillislawgroup.com
Envelope ID: 83012377
Filing Code Description: Brief Filed
Filing Description: REPLY BRIEF ON MOTION TO STRIKE
Status as of 1/4/2024 10:09 AM CST
Associated Case Party: VELMA LOGAN
Name BarNumber Email TimestampSubmitted Status
Dawn Smith Dawn.smith.esq@gmail.com 1/2/2024 5:10:22 PM SENT
Case Contacts
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.. SACHEEN.ANTHONY@DALLASCOUNTY.ORG 1/2/2024 5:10:22 PM SENT
Francine Ly fly@dallascourts.org 1/2/2024 5:10:22 PM SENT
Charles BMitchell service@thewillislawgroup.com 1/2/2024 5:10:22 PM SENT
Linda Maloney service@thewillislawgroup.com 1/2/2024 5:10:22 PM SENT
Alicia I.Molina alicia@fightingelderabuse.com 1/2/2024 5:10:22 PM SENT
Leighton Hooks lhooks@fightingelderabuse.com 1/2/2024 5:10:22 PM SENT
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Preview
FILED 1/2/2024 5:10 PM FELICIA PITRE DISTRICT CLERK DALLAS CO., TEXAS Nicole Burroughs DEPUTY CAUSE NO. DC-18-06403 TRACEY LOGAN on behalf of THE § IN THE DISTRICT COURT OF ESTATE OF VELMA LOGAN, § § Plaintiff § § VS. § 134th JUDICIAL DISTRICT § 360 CLINICS PLLC; KLAIR § MEDICOSE D/B/A 360 CLINICS; § AND DR. NAVEED KLAIR, § § Defendants § DALLAS COUNTY, TEXAS DEFENDANTS 360 CLINICS PLLC, KLAIR MEDICOSE D/B/A 360 CLINICS AND DR. NAVEED KLAIR’S REPLY BRIEF ON MOTION TO STRIKE THE TESTIMONY OF DR. ROBERT P. MACK TO THE HONORABLE JUDGE OF SAID COURT: COME NOW, DEFENDANTS 360 CLINICS PLLC, KLAIR MEDICOSE D/B/A 360 CLINICS AND DR. NAVEED KLAIR’S (herein “Defendants”) and file this Reply Brief on Defendants’ Motion to Strike the Testimony of Dr. Robert P. Mack, and in support of Defendants’ Motion would respectfully show the Court the following: I. SUMMARY AND BACKGROUND Plaintiff’s Response to Defendants’ Motion to Strike failed, almost completely, to respond to Defendants’ factual and legal arguments. Defendants moved to strike the testimony of Dr. Robert P. Mack because (1) Dr. Mack is not qualified to render an opinion on the standard of care for physical therapy facilities, (2) Dr. Mack’s opinion is not helpful to the jury, and (3) Dr. Mack’s opinion is not based on scientific, technical or other specialized knowledge. (See Defendants’ Motion to Strike). Even being generous, Plaintiff’s Response only addressed the first argument in the Motion to Strike, Dr. Mack’s expert qualifications. DEFENDANTS’ MOTION TO STRIKE DR. ROBERT MACK (962.0001) PAGE 1 II. ARGUMENT AND AUTHORITIES A. Dr. Mack is not qualified to render an opinion on the standard of care for physical therapy facilities. Dr. Mack’s opinion that physical therapists have a duty to prevent the unauthorized use of exercise equipment is unsupported by absolutely anything in the medical field, and by Dr. Mack’s own words, this opinion is based on “just my own experience and common sense . . .” (Defendants’ Motion to Strike, Exhibit C, 75:1—16). It must follow expert foundation is lacking here, especially when considering the fact that the ultimate opinion is one derived from common sense. In this instance, Dr. Mack’s, decades-old experience supervising physical therapists suggests lacking expert foundation, but this is not the only issue. Dr. Mack’s ultimate non-expert testimony (that can be derived from common sense) makes it clear that Dr. Mack is essentially a lay witness offering his opinion. See TEX. R. EVID. 701. Such non-expert opinions must be based on the witness’s perception and helpful to resolve a fact issue. Id. This rule for non-expert opinions does not apply to Dr. Mack on this case. Plaintiff’s suggested that Dr. Mack’s opinions are based on his experience and the “Texas Administrative Code’s regulations governing the practice of physical therapy.” (Plaintiff’s Response to Motion to Strike, ¶ 9). However, the Response failed to mention the fact that Plaintiff’s counsel provided Colorado physician Dr. Mack with various excerpts from the Texas Administrative Code, the day before Dr. Mack’s deposition. (Id. Exhibit 3, 83:4—25). In line with the Texas Administrative Code excerpts, Dr. Mack also testified to a couple of breaches of the standard of care regarding creating treatment plans and prescribing therapy. In sum, Dr. Mack testified that that Defendants breached the standard of care by not having a treatment plan or a prescription for physical therapy. However, Dr. Mack had to recent his testimony when defense DEFENDANTS’ MOTION TO STRIKE DR. ROBERT MACK (962.0001) PAGE 2 counsel pointed out the treatment plan and prescription in Plaintiff’s medical records. (Exhibit A, Deposition of Dr. Robert Mack, 99:4—100:17); (BY MR. BLUE) -- for this Exhibit 11, we'll have what's included in Bates 20 through 25. Now, Dr. Mack, this was included in the records produced for 360. And these are the records that you reviewed for your expert report. Would you agree with me that in these records there is actually a referral and a prescription for physical therapy? A: Yes. I -- I missed that. Q: Dr. Mack, would you agree with that? MS. SMITH: He -- A: Yes. MS. SMITH: -- he said yes. MR. BLUE: Oh, I'm sorry. I didn't hear him. Q: (BY MR. BLUE) Okay. So then if that's the case, then your testimony that there was no evidence in the records that there was a prescription or referral, that was incorrect testimony. Right, Dr. Mack? A: Yes. (Id. 405:7—105:25); Q: (BY MR. BLUE) You also testified that there was no care plan in -- in the documents. Is that testimony still accurate, Dr. Mack? A: Well, not really. He -- no. He states things that need to be done DEFENDANTS’ MOTION TO STRIKE DR. ROBERT MACK (962.0001) PAGE 3 for the patient. I guess you could call that a care plan. Q: Okay. Let me stop sharing. My computer keeps blacking out, but good thing is, it only lasts a couple of seconds. All right. So your testimony a moment ago that there wasn't a care plan and that was below the standard of care, that's no longer correct; is that right, Dr. Mack? MS. SMITH: Objection, misstates testimony. Go ahead. A: I -- well I -- MR. BLUE: Form is fine. A -- there is a plan in that note or -- or an expression of goals for -- for the patient. I think that's true. (Id. 106:10—107:3) (emphasis added). Not only did Dr. Mack have to recent his testimony establishing a lacking care plan and prescription for physical therapy, Dr. Mack testified that the suggested breaches of the standard of care did not cause Plaintioff’s injuries. (Id., 109:9—109:22, 138:20—139:13, 141:5—141:20). While Plaintiff’s Response established that Dr. Mack had experience supervising physical therapists decades ago, this experience lacks the foundation necessary to opine on the standard of care for physical therapists. In addition, the disputed expert foundation is irrelevant when considering the fact that Dr. Mack’s opinion is one that can be derived using “common sense” as opposed to scientific, technical or other specialized knowledge. The expert foundation required to opine on matters of common sense is unnecessary, and as such, Dr. Mack is not qualified to render an expert opinion here. Plaintiff’s attempts to bring in the Texas Administrative Code to establish expertise is both transparent and unsupported. Defendants did not breach the standard of care DEFENDANTS’ MOTION TO STRIKE DR. ROBERT MACK (962.0001) PAGE 4 suggested by the Code provisions (covering the use of care plans) referenced during the deposition. Even if Defendants breached the provisions, Dr. Mack testified that any alleged breach did not cause Plaintiff’s injuries. This all further supports striking Dr. Mack as an expert witness. B. Dr. Mack’s opinion is not helpful to the jury. An expert opinion derived in part from common sense, and possible contributory negligence based on Plaintiff’s failure to use “good sense” represents the precise type of evidence a jury can review and consider without expert analysis. A jury can use its collective “common sense” in determining whether Plaintiff failed to use her “good sense.” Dr. Mack opining that the Defendants should have prevented Plaintiff’s unauthorized use of the treadmill, without any industry authority, references or even examples, does not help the jury understand or resolve any fact issues. This is hardly an expert opinion in and of itself, and the idea that healthcare providers are somehow mandated to prevent unauthorized use of equipment is not helpful to a jury when jurors can use their “common sense” to decide whether Plaintiff used her “good sense." Plaintiff failed to address this argument, at all, in the Response. C. Dr. Mack’s opinion is not based on scientific technical or other specialized knowledge. Expert testimony is only permitted, “if scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue.” TEX. R. EVID 702; E.I. Du Pont de Nemours and Co, Inc. v. Robinson, 923 S.W.2d at 557. Again, Dr. Mack’s ultimate and evolving opinion announces a novel therapy standard of care that cannot be found anywhere outside of this lawsuit. Basing an expert opinion on “common sense” that may be offset by Plaintiff’s failure to use her “good sense” is not scientific, technical or specialized knowledge that can assist the jury in determining a fact issue. Dr. Mack did not DEFENDANTS’ MOTION TO STRIKE DR. ROBERT MACK (962.0001) PAGE 5 conduct any analysis or rely on any industry standard, practice or custom in rendering his ultimate opinion. Even after reading Plaintiff’s deposition, Dr. Mack’s disputed expert opinion lacks any scientific, technical or specialized knowledge, despite attempting to use the Texas Administrative Code to validate Dr. Mack’s analysis. Plaintiff failed to address this argument, at all, in the Response. III. CONCLUSION AND PRAYER FOR RELIEF WHEREFORE, PREMISES CONSIDERED, Defendants requests that the Court grant their Motion to Strike to Dr. Mack’s testimony, excluding his testimony and opinions from evidence. Respectfully submitted, THE WILLIS LAW GROUP, LLC ____________________________ LINDA L. MALONEY State Bar No. 00791166 R. J. BLUE State Bar No. 24038772 CHARLES B. MITCHELL, JR. State Bar No. 14207000 KIRK D. WILLIS State Bar No. 21648500 1985 Forest Lane Garland, Texas 75042 Telephone 214/736-9433 Telecopier 214/736-9994 Service: service@thewillislawgroup.com ATTORNEYS FOR DEFENDANTS DEFENDANTS’ MOTION TO STRIKE DR. ROBERT MACK (962.0001) PAGE 6 CERTIFICATE OF SERVICE I do hereby certify that I have served a true and correct copy of the foregoing on Plaintiff on this 2nd day of January 2024 via E-Service. __________________________ Of The Willis Law Group DEFENDANTS’ MOTION TO STRIKE DR. ROBERT MACK (962.0001) PAGE 7 CAUSE NO. DC-18-06403 TRACEY LOGAN on behalf of THE § IN THE DISTRICT COURT OF ESTATE OF VELMA LOGAN, § § Plaintiff § § VS. § 134th JUDICIAL DISTRICT § 360 CLINICS PLLC; KLAIR § MEDICOSE D/B/A 360 CLINICS; § AND DR. NAVEED KLAIR, § § Defendants § DALLAS COUNTY, TEXAS DEFENDANTS 360 CLINICS PLLC, KLAIR MEDICOSE D/B/A 360 CLINICS AND DR. NAVEED KLAIR’S REPLY BRIEF ON MOTION TO STRIKE THE TESTIMONY OF DR. ROBERT P. MACK TO THE HONORABLE JUDGE OF SAID COURT: COME NOW, DEFENDANTS 360 CLINICS PLLC, KLAIR MEDICOSE D/B/A 360 CLINICS AND DR. NAVEED KLAIR’S (herein “Defendants”) and file this Reply Brief on Defendants’ Motion to Strike the Testimony of Dr. Robert P. Mack, and in support of Defendants’ Motion would respectfully show the Court the following: I. SUMMARY AND BACKGROUND Plaintiff’s Response to Defendants’ Motion to Strike failed, almost completely, to respond to Defendants’ factual and legal arguments. Defendants moved to strike the testimony of Dr. Robert P. Mack because (1) Dr. Mack is not qualified to render an opinion on the standard of care for physical therapy facilities, (2) Dr. Mack’s opinion is not helpful to the jury, and (3) Dr. Mack’s opinion is not based on scientific, technical or other specialized knowledge. (See Defendants’ Motion to Strike). Even being generous, Plaintiff’s Response only addressed the first argument in the Motion to Strike, Dr. Mack’s expert qualifications. DEFENDANTS’ MOTION TO STRIKE DR. ROBERT MACK (962.0001) PAGE 1 II. ARGUMENT AND AUTHORITIES A. Dr. Mack is not qualified to render an opinion on the standard of care for physical therapy facilities. Dr. Mack’s opinion that physical therapists have a duty to prevent the unauthorized use of exercise equipment is unsupported by absolutely anything in the medical field, and by Dr. Mack’s own words, this opinion is based on “just my own experience and common sense . . .” (Defendants’ Motion to Strike, Exhibit C, 75:1—16). It must follow expert foundation is lacking here, especially when considering the fact that the ultimate opinion is one derived from common sense. In this instance, Dr. Mack’s, decades-old experience supervising physical therapists suggests lacking expert foundation, but this is not the only issue. Dr. Mack’s ultimate non-expert testimony (that can be derived from common sense) makes it clear that Dr. Mack is essentially a lay witness offering his opinion. See TEX. R. EVID. 701. Such non-expert opinions must be based on the witness’s perception and helpful to resolve a fact issue. Id. This rule for non-expert opinions does not apply to Dr. Mack on this case. Plaintiff’s suggested that Dr. Mack’s opinions are based on his experience and the “Texas Administrative Code’s regulations governing the practice of physical therapy.” (Plaintiff’s Response to Motion to Strike, ¶ 9). However, the Response failed to mention the fact that Plaintiff’s counsel provided Colorado physician Dr. Mack with various excerpts from the Texas Administrative Code, the day before Dr. Mack’s deposition. (Id. Exhibit 3, 83:4—25). In line with the Texas Administrative Code excerpts, Dr. Mack also testified to a couple of breaches of the standard of care regarding creating treatment plans and prescribing therapy. In sum, Dr. Mack testified that that Defendants breached the standard of care by not having a treatment plan or a prescription for physical therapy. However, Dr. Mack had to recent his testimony when defense DEFENDANTS’ MOTION TO STRIKE DR. ROBERT MACK (962.0001) PAGE 2 counsel pointed out the treatment plan and prescription in Plaintiff’s medical records. (Exhibit A, Deposition of Dr. Robert Mack, 99:4—100:17); (BY MR. BLUE) -- for this Exhibit 11, we'll have what's included in Bates 20 through 25. Now, Dr. Mack, this was included in the records produced for 360. And these are the records that you reviewed for your expert report. Would you agree with me that in these records there is actually a referral and a prescription for physical therapy? A: Yes. I -- I missed that. Q: Dr. Mack, would you agree with that? MS. SMITH: He -- A: Yes. MS. SMITH: -- he said yes. MR. BLUE: Oh, I'm sorry. I didn't hear him. Q: (BY MR. BLUE) Okay. So then if that's the case, then your testimony that there was no evidence in the records that there was a prescription or referral, that was incorrect testimony. Right, Dr. Mack? A: Yes. (Id. 405:7—105:25); Q: (BY MR. BLUE) You also testified that there was no care plan in -- in the documents. Is that testimony still accurate, Dr. Mack? A: Well, not really. He -- no. He states things that need to be done DEFENDANTS’ MOTION TO STRIKE DR. ROBERT MACK (962.0001) PAGE 3 for the patient. I guess you could call that a care plan. Q: Okay. Let me stop sharing. My computer keeps blacking out, but good thing is, it only lasts a couple of seconds. All right. So your testimony a moment ago that there wasn't a care plan and that was below the standard of care, that's no longer correct; is that right, Dr. Mack? MS. SMITH: Objection, misstates testimony. Go ahead. A: I -- well I -- MR. BLUE: Form is fine. A -- there is a plan in that note or -- or an expression of goals for -- for the patient. I think that's true. (Id. 106:10—107:3) (emphasis added). Not only did Dr. Mack have to recent his testimony establishing a lacking care plan and prescription for physical therapy, Dr. Mack testified that the suggested breaches of the standard of care did not cause Plaintioff’s injuries. (Id., 109:9—109:22, 138:20—139:13, 141:5—141:20). While Plaintiff’s Response established that Dr. Mack had experience supervising physical therapists decades ago, this experience lacks the foundation necessary to opine on the standard of care for physical therapists. In addition, the disputed expert foundation is irrelevant when considering the fact that Dr. Mack’s opinion is one that can be derived using “common sense” as opposed to scientific, technical or other specialized knowledge. The expert foundation required to opine on matters of common sense is unnecessary, and as such, Dr. Mack is not qualified to render an expert opinion here. Plaintiff’s attempts to bring in the Texas Administrative Code to establish expertise is both transparent and unsupported. Defendants did not breach the standard of care DEFENDANTS’ MOTION TO STRIKE DR. ROBERT MACK (962.0001) PAGE 4 suggested by the Code provisions (covering the use of care plans) referenced during the deposition. Even if Defendants breached the provisions, Dr. Mack testified that any alleged breach did not cause Plaintiff’s injuries. This all further supports striking Dr. Mack as an expert witness. B. Dr. Mack’s opinion is not helpful to the jury. An expert opinion derived in part from common sense, and possible contributory negligence based on Plaintiff’s failure to use “good sense” represents the precise type of evidence a jury can review and consider without expert analysis. A jury can use its collective “common sense” in determining whether Plaintiff failed to use her “good sense.” Dr. Mack opining that the Defendants should have prevented Plaintiff’s unauthorized use of the treadmill, without any industry authority, references or even examples, does not help the jury understand or resolve any fact issues. This is hardly an expert opinion in and of itself, and the idea that healthcare providers are somehow mandated to prevent unauthorized use of equipment is not helpful to a jury when jurors can use their “common sense” to decide whether Plaintiff used her “good sense." Plaintiff failed to address this argument, at all, in the Response. C. Dr. Mack’s opinion is not based on scientific technical or other specialized knowledge. Expert testimony is only permitted, “if scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue.” TEX. R. EVID 702; E.I. Du Pont de Nemours and Co, Inc. v. Robinson, 923 S.W.2d at 557. Again, Dr. Mack’s ultimate and evolving opinion announces a novel therapy standard of care that cannot be found anywhere outside of this lawsuit. Basing an expert opinion on “common sense” that may be offset by Plaintiff’s failure to use her “good sense” is not scientific, technical or specialized knowledge that can assist the jury in determining a fact issue. Dr. Mack did not DEFENDANTS’ MOTION TO STRIKE DR. ROBERT MACK (962.0001) PAGE 5 conduct any analysis or rely on any industry standard, practice or custom in rendering his ultimate opinion. Even after reading Plaintiff’s deposition, Dr. Mack’s disputed expert opinion lacks any scientific, technical or specialized knowledge, despite attempting to use the Texas Administrative Code to validate Dr. Mack’s analysis. Plaintiff failed to address this argument, at all, in the Response. III. CONCLUSION AND PRAYER FOR RELIEF WHEREFORE, PREMISES CONSIDERED, Defendants requests that the Court grant their Motion to Strike to Dr. Mack’s testimony, excluding his testimony and opinions from evidence. Respectfully submitted, THE WILLIS LAW GROUP, LLC ____________________________ LINDA L. MALONEY State Bar No. 00791166 R. J. BLUE State Bar No. 24038772 CHARLES B. MITCHELL, JR. State Bar No. 14207000 KIRK D. WILLIS State Bar No. 21648500 1985 Forest Lane Garland, Texas 75042 Telephone 214/736-9433 Telecopier 214/736-9994 Service: service@thewillislawgroup.com ATTORNEYS FOR DEFENDANTS DEFENDANTS’ MOTION TO STRIKE DR. ROBERT MACK (962.0001) PAGE 6 CERTIFICATE OF SERVICE I do hereby certify that I have served a true and correct copy of the foregoing on Plaintiff on this 2nd day of January 2024 via E-Service. __________________________ Of The Willis Law Group DEFENDANTS’ MOTION TO STRIKE DR. ROBERT MACK (962.0001) PAGE 7 DEFENDANTS’ EXHIBIT A Reply Brief Motion to Strike 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. Karen Moseley on behalf of R. J. Blue Bar No. 24038772 kmoseley@thewillislawgroup.com Envelope ID: 83012377 Filing Code Description: Brief Filed Filing Description: REPLY BRIEF ON MOTION TO STRIKE Status as of 1/4/2024 10:09 AM CST Associated Case Party: VELMA LOGAN Name BarNumber Email TimestampSubmitted Status Dawn Smith Dawn.smith.esq@gmail.com 1/2/2024 5:10:22 PM SENT Case Contacts Name BarNumber Email TimestampSubmitted Status .. SACHEEN.ANTHONY@DALLASCOUNTY.ORG 1/2/2024 5:10:22 PM SENT Francine Ly fly@dallascourts.org 1/2/2024 5:10:22 PM SENT Charles BMitchell service@thewillislawgroup.com 1/2/2024 5:10:22 PM SENT Linda Maloney service@thewillislawgroup.com 1/2/2024 5:10:22 PM SENT Alicia I.Molina alicia@fightingelderabuse.com 1/2/2024 5:10:22 PM SENT Leighton Hooks lhooks@fightingelderabuse.com 1/2/2024 5:10:22 PM SENT DS alexis@smithclinesimith.com 1/2/2024 5:10:22 PM ERROR