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CAUSE NO.: CL-21-0207-G
TAMARA ERREQUIN, MARCO § IN THE COUNTY COURT
ERREQUIN AND JUANA §
ERREQUIN, §
Plaintiffs, §
§
VS. § AT LAW NO. 7
§
TERA TRADING FOODS, L.L.C. §
D/B/A KURAI SUSHI & CHINESE §
BUFFET, §
Defendant. § HIDALGO COUNTY, TEXAS
PLAINTIFFS’ MOTION TO EXCLUDE DEFENDANT’S EXPERT WITNESS
JOHN C. MORAN AND MOTION TO STRIKE DEFENDANT’S MEDICAL
BILLING COUNTER AFFIDAVITS
TO THE HONORABLE JUDGE OF SAID COURT:
NOW COMES, Plaintiffs, Tamara Errequin, et al, Movants herein, and files this
Expedited Plaintiffs’ Expedited Motion to Exclude Defendant’s Expert Witness John C.
Moran and Motion to Strike Defendant’s Counter Affidavits, pursuant to Rules 702, 703,
705, 401 and/or 403 of the Texas Rules of Evidence and under applicable case law and in
support thereof, would respectfully show unto the Court as follows:
I.
FACTUAL BASIS OF CLAIM
1.1 This personal injury lawsuit arises out of a slip and fall incident that
occurred at Defendants’ restaurant on January 22, 2019. Plaintiffs allege that Defendant
failed to maintain the premises in a reasonably safe condition and failed to warn Plaintiff
of an unreasonably dangerous condition on the premises. Defendant’s alleged negligence
proximately caused Plaintiffs’ injuries and damages described in Plaintiffs’ Original
Plaintiffs’ Motion to Exclude Defendant’s Expert Witness John C. Moran and Motion to Strike
Defendant’s Medical Billing Counter Affidavits
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Petition.
1.2 Plaintiff suffered serious personal injuries and damages as a result of the
magnitude and force of the impact unto the hard cement tiled floor.
II.
STANDARD OF REVIEW REQUIRED OF A TRIAL COURT BEFORE
ADMITTING EXPERT OPINION TESTIMONY
A. The Court's Role as Gatekeeper:
2.1 Trial courts serve an important gatekeeping function in determining the
admissibility of expert testimony. Whether an expert is qualified under Texas Rule of
Evidence 702 to provide testimony on specific issues in a case is a preliminary question to
be determined by this Court. Gammill v. Jack Williams Chevrolet, Inc., 972 S.W.2d 713,
718 (Tex. 1998). Trial courts must ensure that those who claim to be experts truly have
expertise concerning the actual subject about which they are offering an opinion. Id. at 719.
The party offering the expert's testimony bears the burden of proving that the witness is
qualified under Rule 702. Broders v. Heise, 924 S.W.2d 148, 151 (Tex. 1996).
2.2 This Court must carefully avoid allowing an expert to testify on a subject of
which he is not qualified. Unreliable expert testimony is of no evidentiary value. See
Merrell Dow Pharmaceuticals, Inc. v. Havner, 953 S.W.2d 706, 712 (Tex. 1997). Rule
702 requires that all expert testimony, not just scientific evidence, must be relevant and
reliable before it is admitted. Gammill, 972 S.W.2d at 727 (Tex. 1998). For that reason, the
trial court may exclude the expert testimony if there is too great an analytical gap between
the data and the opinion proffered. Id. at 727.
2.3 Expert witnesses can have an extremely prejudicial impact on the jury. As
a result, "trial judges have a heightened responsibility to ensure that expert testimony show
Plaintiffs’ Motion to Exclude Defendant’s Expert Witness John C. Moran and Motion to Strike
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some indicia of reliability." E.I. du Pont de Nemours & Co. v. Robinson, 923 S.W.2d 549,
553 (Tex. 1995) (emphasis added); see also Daubert v. Merrell Dow Pharmaceuticals,
Inc., 509 U.S. 579, 590, 113 S. Ct. 2786, 2795 (1993); Kumho Tire Co. v. Carmichael, 526
U.S. 137, 119 S. Ct. 1167 (1999).
B. The Requirements for Expert Testimony Under Robinson/Daubert:
2.4 Expert testimony is thus admissible only if "the expert's testimony is ...
based upon a reliable foundation." E. I. du Pont de Nemours & Co. v. Robinson, 923
S.W.2d 549, 566 (Tex. 1995). Texas divides reliability into at least two different
components: (1) whether the underlying foundation of the evidence is reliable, and (2)
whether the evidence itself is proven to be reliable. See Robinson, 923 S.W.2d at 556;
Havner, 953 at 714; see also Daubert, 509 U.S. at 590, n.9. If either one is lacking, then
the testimony fails to meet the requirements of Rule 702 that expert testimony be
"knowledge" that must "assist the trier of fact to understand the evidence or determine a
fact in issue." See Robinson, 923 S.W.2d at 549. For those reasons, the Texas Supreme
Court in Havner held that the assumptions and data that underlie an expert's testimony must
be carefully examined. Reliability does not exist merely because an expert relies upon an
examination, studies, or research in support of his opinion. Instead, the underlying data
needs to be independently evaluated to determine "if the opinion itself is reliable." Havner,
953 S.W.2d at 713. "[I]f the foundational data underlying opinion testimony are unreliable,
an expert will not be permitted to base an opinion on that data because any opinion drawn
from that data is likewise unreliable." Id. at 714. Additionally, evidentiary reliability must
be shown. "[An] expert's testimony is unreliable even when the underlying data are sound
if the expert draws conclusions from that data based on flawed methodology." Id. In
Plaintiffs’ Motion to Exclude Defendant’s Expert Witness John C. Moran and Motion to Strike
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applying these rules to an expert's opinion testimony, there are three determinations that a
trial court must make: (1) whether the opinion addresses a proper subject for expert
testimony; whether the expert is qualified to render the opinion testimony; and (3) whether
the expert provides a sufficient foundation to support the opinion and render it reliable.
Kumho Tire Co. v. Carmichael, 526 U.S. 137, 119 S. Ct. 1167 (1999).
C. Expert testimony must be reliable and relevant:
2.5 Following the United States Supreme Court precedent, in 1995 the Texas
Supreme Court held that scientific expert testimony must be relevant and reliable to be
admissible. E. I. DuPont de Nemours and Co. v. Robinson, 923 S.W.2d 549 (Tex. 1995).
Once the question of relevance and reliability of the expert's opinions is raised, the burden
is placed on the proponent of the testimony to demonstrate that the testimony is admissible.
Id; see also Kumho Tire Co. v. Carmichael, 119 S. Ct. 1167 (1999); Daubert v. Merrell
Dow Pharm., Inc., 509 U.S. 579, 113 S. Ct. 2786 (1993).
2.6 Since its decision in Robinson, the Texas Supreme Court, in Gammill v.
Jack Williams Chevrolet, Inc., 972 S.W.2d 713, 737 (Tex. 1998), determined that all expert
testimony must meet the requirement of Texas Rule of Evidence 702. The Court found that
all expert testimony, regardless of whether it was scientific or not, should be shown to be
reliable before it is admitted. Id. at 726. The non-exhaustive list of factors a trial court may
consider are as follows:
a) The extent to which the theory has been or can be tested;
b) The extent to which the technique relies upon the subjective interpretation of the
expert;
c) Whether the theory has been subjected to peer review and/or publication;
d) The techniques' potential rate of error;
e) Whether the underlying technique has been generally accepted as valid by the
relevant scientific community; and
f) The non-judicial uses which have been made of the theory or the technique.
Plaintiffs’ Motion to Exclude Defendant’s Expert Witness John C. Moran and Motion to Strike
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Robinson, 927 S.W.2d at 737.
2.7 To establish reliability requires a high level of specificity. See Minnesota
Mining & Mfg. Co. v. Atterbury, 978 S.W.2d 183 (Tex. App. -- Texarkana 1998, pet.
denied). When the foundation for an expert opinion is a study, the offering party must
"identify the study, get it admitted into evidence, and explain how the methodology of the
study is scientifically reliable." See id.; see also Mitchell v. Gen Corp., Inc., 165 F.2d 778,
783 (10th Cir. 1999) (observing that a scientist would not attach weight to a study that he
did not carefully examine and consider). In order for a study to have a reliable basis, it must
undergo "traditional peer review." See id. at 200. Furthermore, the proponent of the
testimony must establish the connective reliability of the testimony. See Gammill v. Jack
Williams Chevrolet, Inc., 972 S.W.2d 713 (Tex. 1998). This connective reliability focuses
on the reasoning of the expert. See id. For a reviewing court to rule on the scientific
reliability of a study that an expert cites as supporting his opinion, the study's
methodologies and rates of error must be explained. See Atterbury, 978 S.W.2d at 200.
Without such information the studies cannot be considered to support the expert's opinion.
See id.
2.8 In determining reliability, the trial court is not to determine the truth or
falsity of the expert's opinion, but is to determine whether the expert's opinion is relevant,
and whether the methods and research underlying the opinion are reliable. Robinson, 923
S.W.2d at 557. If foundational data underlying opinion testimony is unreliable, opinion
drawn from the data is likewise unreliable. See Merrell Dow Pharm., Inc. v. Havner, 953
S.W.2d 706, 714 (Tex. 1997). Even when the underlying data is sound, an expert's
testimony is unreliable if the expert draws conclusions from the data based on flawed
Plaintiffs’ Motion to Exclude Defendant’s Expert Witness John C. Moran and Motion to Strike
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methodology. Id. A flaw in an expert's reasoning from sound data may render reliance on
a study unreasonable and render the inferences drawn there from dubious. Id. Therefore,
rather than focus on the expert's conclusions, the trial court should focus on the reliability
of the principles, research, and methods underlying them as well as the expert's reasoning
and methodology. Robinson, 923 S.W.2d at 557.
2.9 Further, an expert's failure to rule out alternative causes of the injuries or
damages renders the opinion unreliable. Weiss v. Mechanical Associated Servs., 989
S.W.2d 120, 123 (Tex. App. B San Antonio 1999, pet. denied). In Merrell Dow Pharm.,
Inc. v. Havner, 953 S.W.2d 706, 711-14 (Tex. 1997), the Supreme Court described how
the foundation of an expert opinion could be unreliable:
“If the foundational data underlying opinion testimony are unreliable ... any opinion
drawn from that data is likewise unreliable. Further, an expert's testimony is
unreliable even when the underlying data are sound if the expert draws conclusions
from the data based on a flaw of methodology.” Id.
2.10 The Texas Supreme Court has held that the jury would not be assisted by
the unreliable opinion of an expert who failed to conduct tests, cite studies, or perform
calculations in support of his theory, which was not peer-reviewed. Volkswagen of Am.,
Inc. v. Ramirez, 159 S.W.3d 897 (Tex. 2004). The Supreme Court in Ramirez stated further
that: “It is well established that an expert must show the connection between the data relied
on (the evidence of eye witnesses and data) and the opinion offered. Gammill, 972 S.W.2d
at 726. An expert's bare opinion will not suffice. Havner, 953 S.W.2d at 711. “[I]t is not
so simply because ‘an expert says it is so.” Gammill, 972 S.W.2d at 726; Havner, 953
S.W.2d at 712 (quoting Viterbo v. Dow Chem. Co., 826 F.2d 420, 421 (5th Cir.1987)).” Id
at 906.
III. BASIS FOR EXCLUDING OPINION EVIDENCE:
Plaintiffs’ Motion to Exclude Defendant’s Expert Witness John C. Moran and Motion to Strike
Defendant’s Medical Billing Counter Affidavits
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1. THE OPINIONS OF THE EXPERT ARE NOT RELEVANT OR RELIABLE
OR BASED UPON THE PROPER MEDICAL BILLING SCIENTIFIC
METHODOLOGY:
A. Mr. John C. Moran Failed to Use Proper Medical Billing Scientific
Methodology:
3.1 Mr. John C. Moran’s Expert medical billing counter affidavits are attached
hereto as Exhibit “A & B”.
3.2 Mr. Moran's proposed testimony should be stricken because he failed to use
proper medical billing scientific methodology in forming his opinions. The use of
scientifically valid and reliable methodologies is crucial in expert testimony, particularly
in complex areas such as medical billing. As the Texas Supreme Court held in E.I. du Pont
de Nemours & Co. v. Robinson, 923 S.W.2d 549, 557 (Tex. 1995), scientific evidence must
be both relevant and reliable to be admissible.
3.4 In this case, Mr. Moran's failure to employ proper medical billing scientific
methodology renders his opinions unreliable and inadmissible under Texas Rule of
Evidence 702 and the standards set forth in Robinson and its progeny.
3.5 Mr. Moran, using a cherry-picking technique to determine what evidence
the jury should believe, is not basing his opinions on any scientific methodology but rather
on the fact that he is has experience in the medical insurance billing industry – ipse dixit
methodology. Mr. Moran’s counter affidavit opinions are wholly based on speculative
evidence:
a) A systematic review of current medical billing practices;
b) Application of standardized coding and billing guidelines;
c) Consideration of relevant factors such as geographic location, facility type, and
payer mix;
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d) Use of statistically valid sampling methods;
e) Proper validation of his conclusions against industry benchmarks.
3.6 These methodological deficiencies fundamentally undermine the reliability
of Mr. Moran's opinions and conclusions regarding the medical billing issues in this case.
This additional section strengthens the motion by providing another substantive reason to
strike the expert testimony, beyond just the procedural issue of late designation. It argues
that even if the expert had been properly designated, his testimony should still be excluded
due to methodological flaws.
3.7 Pursuant to E.I. du Pont de Nemours & Co., Inc. v. Robinson, 923 S.W.2d
549, 557 (Tex. 1995), and Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579,
113 S. Ct. 2786, 125 L. Ed. 2d 469, 480 (1993), Movant would show that any testimony of
Mr. Moran as to the ultimate opinions in this case is so unreliable as to be inadmissible and
of no assistance to the jury for the following reasons:
a) There is no evidence that his methodology in reaching his ultimate opinions has
been tested;
b) His methodology is not subject to accurate testing;
c) The technique used by Mr. Moran relies upon subjective interpretation;
d) There is no evidence that the theory relied upon by Mr. Moran in employing
expected reaction times in a real-world scenario has been subjected to peer review
or publication;
e) Mr. Moran’s theories have not been shown to be generally accepted as valid by any
relevant medical billing community;
f) Mr. Moran's theories have only been used for the purpose of this litigation and there
is no evidence that they have been used otherwise;
g) Mr. Moran is not presented as an expert applying medical scientific or
methodology.
Plaintiffs’ Motion to Exclude Defendant’s Expert Witness John C. Moran and Motion to Strike
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3.8 Mr. Moran should not be permitted to testify in this case because he is not
qualified to render the opinions he would present to the jury and his opinions are not based
upon any reliable foundation. Boyd v. State Farm Ins. Co., 158 F.3d 326, 331 (5th Cir.
1998) (without more than his credentials and subjective opinion, an expert's testimony
which lacks the materials or data that the opinion is based upon, as well as the reasoning
process underlying that opinion, is inadmissible); Christophersen v. Allied-Signal Corp.,
939 F.2d 1106, 1115-16 (5th Cir. 1991) (overruled on other grounds by Daubert) (witness's
"scientific hunch" which is unexplained or unsupported by any methodology that witness
utilized to reach his opinion is not admissible).
3.9 In 2004, the Texas Supreme Court found that a jury would not be assisted
by the unreliable opinion of an expert who failed to conduct tests, cite studies, or perform
calculations in support of his theory, which was not peer-reviewed. Volkswagen of Am.,
Inc. v. Ramirez, 159 S.W.3d 897 (Tex. 2004).
3.10 As stated by the Eastland Court in Discovery Operating, Inc. v. BP Am.
Prod. Co., 311 S.W.3d 140, 165-66 (Tex. App. – Eastland 2010), review denied (Apr. 15,
2011):
“An expert's opinion, to be admissible, must be relevant and reliable. State v. Cent.
Expressway Sign Assocs., 302 S.W.3d 866, 870 (Tex. 2009); Exxon Pipeline Co. v.
Zwahr, 88 S.W.3d 623, 628 (Tex. 2002). To be relevant, the expert's opinion must
be based on the facts; to be reliable, the opinion must be based on sound reasoning
and methodology. Cent. Expressway, 302 S.W.3d at 870; Zwahr, 88 S.W.3d at 629.
Expert testimony is unreliable if it is no more than “subjective belief or unsupported
speculation.” Zwahr, 88 S.W.3d at 629; City of Sugar Land v. Home & Hearth
Sugarland, L.P., 215 S.W.3d 503, 510 (Tex. App.-Eastland 2007, pet. denied).”
3.11 In assessing the opinion testimony of a medical billing expert in Discovery
Operating, Inc., the Eastland Court pointed out that the ipse dixit testimony (“it is so
Plaintiffs’ Motion to Exclude Defendant’s Expert Witness John C. Moran and Motion to Strike
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because I say it is so”) without being supported by the facts in evidence, is only testimony
of “subjective belief or unsupported speculation” and as such is unreliable and
inadmissible. Discovery Operating, Inc., 311 S.W.3d at 165-66.
3.12 Without the application of scientific methodology in arriving at conclusions
on pivotal issues, the Court should act to eliminate the unfair prejudice and confusion
inherent in the admission of the testimony described in this motion and exclude and/or
prevent Mr. Moran's testimony in this case.
3.13 Mr. Moran's testimony in this regard should be excluded. Mr. Moran does
not demonstrate in any way, shape, or form his qualifications to testify as to the
believability of the parties, refuses to consider all of the facts in the case - choosing to
cherry-pick facts to support his opinions, and refuses to consider alternative facts and
evidence present in this case. For the foregoing reasons, the Court is requested to exercise
its role as a gatekeeper and determine the reliability of the scientific principles and
methodology underlying Defendant’s expert's conclusions.
3.14 Moreover, in conducting a proper analysis of the reasonableness of medical
charges, it is crucial to compare the fair market value of medical bills from providers that
accept the same or substantially similar methods of payment. Providers that accept health
insurance typically have contractually negotiated rates with insurers that are lower than
their standard charges. In contrast, medical providers that do not accept health insurance
and instead operate on a cash pay or deferred payment model often charge higher rates to
account for the lack of guaranteed payment from an insurer.
3.15 Comparing charges between these fundamentally different payment models
would be like comparing apples to oranges. It would not provide an accurate assessment
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of the true fair market value for the specific services rendered to the plaintiff. A valid
analysis must control for variables like payment method to ensure an apples-to-apples
comparison when determining reasonable and customary charges in the relevant market.
3.16 There is no indication that Mr. Moran accounted for these critical differences
in payment models when conducting his analysis. By seemingly comparing charges across
providers without regard for whether they accept health insurance or use a cash pay model,
his conclusions about the reasonableness of the plaintiff's medical bills are fundamentally
flawed and unreliable. Proper methodology requires focusing the comparison on providers
with payment models substantially similar to those who treated the plaintiff in order to
ascertain the true fair market value of those services in the applicable market. Mr. Moran's
failure to do so further undermines the already deficient foundation for his opinions.
3.17 The failure to control for payment model differences when comparing charges
across providers also introduces a significant risk of bias into the analysis. Providers that
primarily operate on a cash pay or deferred payment model may have a different patient
mix, with a higher proportion of uninsured or underinsured individuals. These providers
often face higher risks of non-payment and must adjust their charges accordingly to account
for this increased financial risk.
3.18 By indiscriminately comparing these charges to those of providers that accept
health insurance and have a more reliable payer mix, Mr. Moran's analysis is likely to skew
towards finding the plaintiff's charges unreasonable, even if they are in line with the fair
market value for providers with similar payment models and patient populations. This bias
undermines the objectivity and reliability of his conclusions.
3.19 A proper analysis of reasonable charges must strive to minimize potential
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sources of bias by ensuring that comparisons are made between providers with
substantially similar relevant characteristics, including payment models and patient mixes.
Mr. Moran's failure to account for these factors renders his opinions unreliable and
unhelpful to the trier of fact.
3.20 Courts have recognized the importance of ensuring that expert testimony is
based on reliable methodologies that are free from significant sources of bias. See, e.g.,
Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 590 (1993) (noting that expert
testimony must be based on "scientifically valid principles" and that the "overarching
subject is the scientific validity—and thus the evidentiary relevance and reliability—of the
principles that underlie a proposed submission."). Mr. Moran's flawed methodology, which
fails to control for critical differences between providers and introduces a risk of bias, falls
short of this standard and should be excluded.
3.21 Admitting expert testimony that is based on flawed methodology and
introduces significant risks of bias would not only be contrary to the standards set forth in
Daubert and its progeny but would also undermine the fundamental fairness of the
proceedings. The trier of fact would be misled by opinions that have the veneer of expertise
but lack a reliable foundation, potentially leading to an unjust result.
3.22 Moreover, allowing such testimony would undermine the integrity of the
judicial process and the role of the Court as a gatekeeper tasked with ensuring that only
reliable and relevant expert testimony is presented to the jury. As the Supreme Court
observed in Kumho Tire Co. v. Carmichael, 526 U.S. 137, 152 (1999), the gatekeeping
function of the Court "is to make certain that an expert, whether basing testimony upon
professional studies or personal experience, employs in the courtroom the same level of
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intellectual rigor that characterizes the practice of an expert in the relevant field."
3.23 Mr. Moran's methodology and opinions fall far short of this standard.
Admitting his testimony would send a message that experts can eschew reliable principles
and introduce bias into their analyses without consequence, eroding the standards for expert
testimony and diminishing the role of the Court as a gatekeeper. To maintain the integrity
of the proceedings and ensure a fair trial, Mr. Moran's testimony should be excluded in its
entirety.
3.24 Due to Mr. Moran's flaws in methodology, his testimony should be stricken
to prevent the introduction of unreliable and potentially misleading evidence at trial.
B. Defendant's Failure to Properly Designate Said Expert Pursuant to Texas Rule
of Civil Procedure 195.5:
3.25 Defendant failed to properly designate John C. Moran as an expert witness
pursuant to the Court-ordered docket control order; instead, Defendant just e-served their
expert’s counter affidavits to Plaintiff’s counsel.
3.26 Defendant's untimely designation of John C. Moran fails to comply with the
requirements of Texas Rule of Civil Procedure 195.5, which mandates that a party
must designate experts by the deadline set by the Court. Furthermore,
Defendant's late designation has caused significant prejudice to Plaintiff, as Plaintiff
has been deprived of the opportunity to properly prepare for the expert's testimony,
conduct necessary discovery, and potentially designate rebuttal experts within the time
frame established by this Court.
C. Legal Standard:
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3.27 Texas Rule of Civil Procedure 195.5 states: "If a party fails to timely
respond to discovery requests under Rule 194.2(f) or this rule, to supplement a response,
or to amend a response, the party may not offer the testimony of a witness having
knowledge of a discoverable matter, or the testimony of an expert, unless the court finds
that:
a) There was good cause for the failure to timely provide the discovery or for the
failure to amend or supplement; or
b) The failure to timely provide the discovery or to amend or supplement will not
unfairly surprise or unfairly prejudice the other parties."
3.28 The Texas Supreme Court has emphasized the importance of adhering to
discovery deadlines and the consequences of failing to do so. In Alvarado v. Farah Mfg.
Co., 830 S.W.2d 911, 914 (Tex. 1992), the Court stated that "the rules of civil procedure
and the trial court's orders" should not be regarded as "mere technicalities" but rather as
"necessary tools in the orderly administration of justice."
3.29 Furthermore, in Fort Brown Villas III Condo. Ass'n v. Gillenwater, 285
S.W.3d 879, 882 (Tex. 2009), the Court held that "a party who fails to timely designate an
expert has the burden of establishing good cause or lack of unfair surprise or prejudice."
D. Defendant Failed to Properly Designate John C. Moran as Required by TRCP
195.5:
3.30 Defendant failed to properly designate Mr. John C. Moran in clear violation
of this Court's Scheduling Order and TRCP 195.5. Specifically, Defendant did not provide
all proper documentation required for expert designation, including but not limited to:
1) The expert's name, address, and telephone number;
2) The subject matter on which the expert will testify;
3) The general substance of the expert's mental impressions and opinions and a
brief summary of the basis for them;
4) As Mr. Moran is presumably retained by, employed by, or otherwise subject to
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the control of the Defendant:
a. All documents, tangible things, reports, models, or data compilations
that have been provided to, reviewed by, or prepared by or for the expert
in anticipation of the expert's testimony;
b. The expert's current resume and bibliography;
c. The expert's qualifications, including a list of all publications authored
in the previous 10 years;
d. A list of all other cases in which, during the previous four years, the
expert testified as an expert at trial or by deposition;
e. A statement of the compensation to be paid for the expert's study and
testimony in the case.
3.31 Defendant has offered no explanation for this failure to provide the required
documentation, let alone demonstrated good cause for the incomplete designation.
3.32 The purpose of expert designation requirements under TRCP 195.5 is to
allow opposing parties sufficient time to prepare for trial, including the opportunity to
thoroughly review the expert's qualifications, opinions, and the basis for those opinions.
Defendant's failure to provide complete documentation has undermined these important
objectives and prejudiced Plaintiff's ability to prepare for trial.
3.33 Courts have consistently held that the failure to properly designate an expert
witness, including providing all required documentation, is grounds for exclusion of that
expert's testimony. For example, in Ersek v. Davis & Davis, P.C., 69 S.W.3d 268, 274
(Tex. App.—Austin 2002, pet. denied), the court upheld the trial court's decision to strike
an expert witness who was not properly designated in accordance with the rules.
E. Defendant Cannot Demonstrate Good Cause or Lack of Unfair Surprise or Prejudice:
3.34 Under TRCP 195.5, the burden falls on Defendant to establish either good
cause for the improper designation or that the failure to properly designate will not unfairly
surprise or prejudice Plaintiff. Defendant cannot meet this burden.
3.35 Defendant has provided no explanation for the incomplete designation that
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would constitute good cause. The requirements for proper expert designation were clearly
set forth in TRCP 195.5, and Defendant was aware of these requirements well in advance.
3.36 The improper designation of John C. Moran has caused unfair surprise and
prejudice to Plaintiff. Specifically:
a. Plaintiff has been deprived of the opportunity to thoroughly investigate Mr. Moran's
qualifications, opinions, and the basis for those opinions;
b. Plaintiff has lost valuable time to prepare cross-examination strategies and to
consult with their own experts regarding Mr. Moran's opinions;
c. Plaintiff has been denied the chance to timely designate rebuttal experts to address
Mr. Moran's opinions; and,
d. Plaintiff's trial preparation has been significantly disrupted, as they must now
scramble to address this improper designation with trial rapidly approaching.
3.37 The prejudice to Plaintiff is particularly acute given the proximity of the
trial date. Allowing Defendant to proceed with John C. Moran's testimony despite the
improper designation would reward Defendant's disregard for this Court's Scheduling
Order and the rules of civil procedure, while unfairly disadvantaging Plaintiff.
F. Striking John C. Moran is the Appropriate Remedy:
3.38 Given Defendant's clear violation of TRCP 195.5 and this Court's Scheduling
Order, and the resulting prejudice to Plaintiff, the appropriate remedy is to strike John C.
Moran as an expert witness and preclude Defendant from offering Mr. Moran's testimony
at trial.
3.39 This remedy is consistent with the Texas Supreme Court's guidance in
Alvarado, where the Court emphasized that "the failure to meet discovery deadlines should
not be condoned by courts where the circumstances do not warrant such indulgence."
Alvarado, 830 S.W.2d at 915. Moreover, striking John C. Moran as an expert witness
Plaintiffs’ Motion to Exclude Defendant’s Expert Witness John C. Moran and Motion to Strike
Defendant’s Medical Billing Counter Affidavits
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serves the important purpose of enforcing compliance with discovery rules and court
orders, which is essential to the fair and efficient administration of justice.
3.40 The lack of proper documentation fundamentally undermines the reliability of
Mr. Moran's opinions and conclusions regarding the medical billing issues in this case.
Given these deficiencies in Mr. Moran's designation, his testimony should be stricken to
prevent the introduction of potentially unreliable and misleading evidence at trial.
3.41 Therefore, Plaintiff respectfully requests that this Court strike the testimony
of John C. Moran and preclude Defendant from offering his testimony at trial due to
Defendant's failure to properly designate him as an expert witness in compliance with
TRCP 195.5 and this Court's Scheduling Order.
IV.
OBJECTIONS AND MOTION TO STRIKE DEFENDANT’S MEDICAL
BILLING COUNTER AFFIDAVITS
4.1 For the reasons more fully described below, Plaintiff objects to the counter-
affidavits signed by Mr. John C. Moran, and moves to strike on the following grounds:
1) With respect to the counter-affidavits itself, the affidavits do not give reasonable
notice of the basis on which the party filing it intends at trial to controvert the claim
reflected by the initial affidavits.
2) The affidavits were signed by an individual who was not properly disclosed in
Defendant’s discovery responses, including but not limited to Texas Rules of Civil
Procedure 195.5, and therefore, are inadmissible.
3) Plaintiff objects on the grounds that Mr. Moran’s testimony lacks proper
methodology, foundation and constitutes mere speculation, conjecture and/or a
conclusion of law.
4) Mr. Moran’ affidavits never refutes that the bills were not reasonable and customary
for the time and place the services rendered. As such, his affidavits is not relevant
and does not sufficiently contradict Plaintiff’s bill affidavits such that they are put
into controversy for purposes of trial.
Plaintiffs’ Motion to Exclude Defendant’s Expert Witness John C. Moran and Motion to Strike
Defendant’s Medical Billing Counter Affidavits
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5) Plaintiff objects to Mr. Moran’ affidavits on the basis that it is a “cookie cutter”
affidavits which is, on its face, both overly broad and vague and thus abusive. TEX.
CIV. PRAC. & REM. CODE § 18.001 was meant to simplify litigation by eliminating
the requirement of proving up basic matters unless they were truly controverted.
Mr. Moran’ affidavits are literally a fill-in-the-blank form. Their affidavits do not
refer to a single complaint or type of treatment nor make even one factual reference
in support of their blanket conclusion that “any” treatment or fees were neither
reasonable nor necessary.
6) Mr. Moran’ have not stated in their counter-affidavits that they are qualified, by
knowledge, skill, experience, training, education, or other expertise in the types of
injuries and sustained by Plaintiff or the type of treatment administered to Plaintiff
by his doctors.
A. § 18.001. Affidavits Concerning Cost and Necessity of Services:
4.2 Section 18.001 of the Texas Civil Practice & Remedies Code states as follows:
1) Unless a controverting affidavit is filed as provided by this section, an affidavit that
the amount a person charged for a service was reasonable at the time and place that
the service was provided and that the service was necessary is sufficient evidence
to support a finding of fact by judge or jury that the amount charged was reasonable
or that the service was necessary.
2) The affidavits must: (1) be taken before an officer with authority to administer
oaths; (2) be made by: (A) the person who provided the service; (B) or the person
in charge of records showing the service provided and charge made; and (3) include
an itemized statement of the service and charge.
3) The party offering the affidavits in evidence or the party's attorney must e-file the
affidavits with the clerk of the court and serve a copy of the affidavits on each other
party to the case.
4) The counter affidavits must give reasonable notice of the basis on which the party
filing it intends at trial to controvert the claim reflected by the initial affidavits and
must be taken before a person authorized to administer oaths.
5) The counter-affidavits must be made by a person who is qualified, by knowledge,
skill, experience, training, education, or other expertise, to testify in contravention
of all or part of any of the matters contained in the initial affidavits. Tex. Civ. Prac.
& Rem.Code Ann. § 18.001 (Vernon 1997).
4.3 Section 18.001 provides a significant savings of time and cost to litigants,
particularly in personal injury cases, by providing a means to prove up the reasonableness
Plaintiffs’ Motion to Exclude Defendant’s Expert Witness John C. Moran and Motion to Strike
Defendant’s Medical Billing Counter Affidavits
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Hidalgo County Clerk
Accepted by: Carlos Guerra
and necessity of medical expenses. See Turner v. Peril, 50 S.W.3d 732 (Tex. App.-Dallas
2001, n.w.h.). Significantly, while section 18.001(c)(2)(B) permits charges to be proved
by a non-expert custodian, section 18.001(f) requires a counter-affidavits to give
reasonable notice of the basi
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Electronically Submitted 6/24/2024 5:26 PM Hidalgo County Clerk Accepted by: Carlos Guerra CAUSE NO.: CL-21-0207-G TAMARA ERREQUIN, MARCO § IN THE COUNTY COURT ERREQUIN AND JUANA § ERREQUIN, § Plaintiffs, § § VS. § AT LAW NO. 7 § TERA TRADING FOODS, L.L.C. § D/B/A KURAI SUSHI & CHINESE § BUFFET, § Defendant. § HIDALGO COUNTY, TEXAS PLAINTIFFS’ MOTION TO EXCLUDE DEFENDANT’S EXPERT WITNESS JOHN C. MORAN AND MOTION TO STRIKE DEFENDANT’S MEDICAL BILLING COUNTER AFFIDAVITS TO THE HONORABLE JUDGE OF SAID COURT: NOW COMES, Plaintiffs, Tamara Errequin, et al, Movants herein, and files this Expedited Plaintiffs’ Expedited Motion to Exclude Defendant’s Expert Witness John C. Moran and Motion to Strike Defendant’s Counter Affidavits, pursuant to Rules 702, 703, 705, 401 and/or 403 of the Texas Rules of Evidence and under applicable case law and in support thereof, would respectfully show unto the Court as follows: I. FACTUAL BASIS OF CLAIM 1.1 This personal injury lawsuit arises out of a slip and fall incident that occurred at Defendants’ restaurant on January 22, 2019. Plaintiffs allege that Defendant failed to maintain the premises in a reasonably safe condition and failed to warn Plaintiff of an unreasonably dangerous condition on the premises. Defendant’s alleged negligence proximately caused Plaintiffs’ injuries and damages described in Plaintiffs’ Original Plaintiffs’ Motion to Exclude Defendant’s Expert Witness John C. Moran and Motion to Strike Defendant’s Medical Billing Counter Affidavits Page 1 Electronically Submitted 6/24/2024 5:26 PM Hidalgo County Clerk Accepted by: Carlos Guerra Petition. 1.2 Plaintiff suffered serious personal injuries and damages as a result of the magnitude and force of the impact unto the hard cement tiled floor. II. STANDARD OF REVIEW REQUIRED OF A TRIAL COURT BEFORE ADMITTING EXPERT OPINION TESTIMONY A. The Court's Role as Gatekeeper: 2.1 Trial courts serve an important gatekeeping function in determining the admissibility of expert testimony. Whether an expert is qualified under Texas Rule of Evidence 702 to provide testimony on specific issues in a case is a preliminary question to be determined by this Court. Gammill v. Jack Williams Chevrolet, Inc., 972 S.W.2d 713, 718 (Tex. 1998). Trial courts must ensure that those who claim to be experts truly have expertise concerning the actual subject about which they are offering an opinion. Id. at 719. The party offering the expert's testimony bears the burden of proving that the witness is qualified under Rule 702. Broders v. Heise, 924 S.W.2d 148, 151 (Tex. 1996). 2.2 This Court must carefully avoid allowing an expert to testify on a subject of which he is not qualified. Unreliable expert testimony is of no evidentiary value. See Merrell Dow Pharmaceuticals, Inc. v. Havner, 953 S.W.2d 706, 712 (Tex. 1997). Rule 702 requires that all expert testimony, not just scientific evidence, must be relevant and reliable before it is admitted. Gammill, 972 S.W.2d at 727 (Tex. 1998). For that reason, the trial court may exclude the expert testimony if there is too great an analytical gap between the data and the opinion proffered. Id. at 727. 2.3 Expert witnesses can have an extremely prejudicial impact on the jury. As a result, "trial judges have a heightened responsibility to ensure that expert testimony show Plaintiffs’ Motion to Exclude Defendant’s Expert Witness John C. Moran and Motion to Strike Defendant’s Medical Billing Counter Affidavits Page 2 Electronically Submitted 6/24/2024 5:26 PM Hidalgo County Clerk Accepted by: Carlos Guerra some indicia of reliability." E.I. du Pont de Nemours & Co. v. Robinson, 923 S.W.2d 549, 553 (Tex. 1995) (emphasis added); see also Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 590, 113 S. Ct. 2786, 2795 (1993); Kumho Tire Co. v. Carmichael, 526 U.S. 137, 119 S. Ct. 1167 (1999). B. The Requirements for Expert Testimony Under Robinson/Daubert: 2.4 Expert testimony is thus admissible only if "the expert's testimony is ... based upon a reliable foundation." E. I. du Pont de Nemours & Co. v. Robinson, 923 S.W.2d 549, 566 (Tex. 1995). Texas divides reliability into at least two different components: (1) whether the underlying foundation of the evidence is reliable, and (2) whether the evidence itself is proven to be reliable. See Robinson, 923 S.W.2d at 556; Havner, 953 at 714; see also Daubert, 509 U.S. at 590, n.9. If either one is lacking, then the testimony fails to meet the requirements of Rule 702 that expert testimony be "knowledge" that must "assist the trier of fact to understand the evidence or determine a fact in issue." See Robinson, 923 S.W.2d at 549. For those reasons, the Texas Supreme Court in Havner held that the assumptions and data that underlie an expert's testimony must be carefully examined. Reliability does not exist merely because an expert relies upon an examination, studies, or research in support of his opinion. Instead, the underlying data needs to be independently evaluated to determine "if the opinion itself is reliable." Havner, 953 S.W.2d at 713. "[I]f the foundational data underlying opinion testimony are unreliable, an expert will not be permitted to base an opinion on that data because any opinion drawn from that data is likewise unreliable." Id. at 714. Additionally, evidentiary reliability must be shown. "[An] expert's testimony is unreliable even when the underlying data are sound if the expert draws conclusions from that data based on flawed methodology." Id. In Plaintiffs’ Motion to Exclude Defendant’s Expert Witness John C. Moran and Motion to Strike Defendant’s Medical Billing Counter Affidavits Page 3 Electronically Submitted 6/24/2024 5:26 PM Hidalgo County Clerk Accepted by: Carlos Guerra applying these rules to an expert's opinion testimony, there are three determinations that a trial court must make: (1) whether the opinion addresses a proper subject for expert testimony; whether the expert is qualified to render the opinion testimony; and (3) whether the expert provides a sufficient foundation to support the opinion and render it reliable. Kumho Tire Co. v. Carmichael, 526 U.S. 137, 119 S. Ct. 1167 (1999). C. Expert testimony must be reliable and relevant: 2.5 Following the United States Supreme Court precedent, in 1995 the Texas Supreme Court held that scientific expert testimony must be relevant and reliable to be admissible. E. I. DuPont de Nemours and Co. v. Robinson, 923 S.W.2d 549 (Tex. 1995). Once the question of relevance and reliability of the expert's opinions is raised, the burden is placed on the proponent of the testimony to demonstrate that the testimony is admissible. Id; see also Kumho Tire Co. v. Carmichael, 119 S. Ct. 1167 (1999); Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 113 S. Ct. 2786 (1993). 2.6 Since its decision in Robinson, the Texas Supreme Court, in Gammill v. Jack Williams Chevrolet, Inc., 972 S.W.2d 713, 737 (Tex. 1998), determined that all expert testimony must meet the requirement of Texas Rule of Evidence 702. The Court found that all expert testimony, regardless of whether it was scientific or not, should be shown to be reliable before it is admitted. Id. at 726. The non-exhaustive list of factors a trial court may consider are as follows: a) The extent to which the theory has been or can be tested; b) The extent to which the technique relies upon the subjective interpretation of the expert; c) Whether the theory has been subjected to peer review and/or publication; d) The techniques' potential rate of error; e) Whether the underlying technique has been generally accepted as valid by the relevant scientific community; and f) The non-judicial uses which have been made of the theory or the technique. Plaintiffs’ Motion to Exclude Defendant’s Expert Witness John C. Moran and Motion to Strike Defendant’s Medical Billing Counter Affidavits Page 4 Electronically Submitted 6/24/2024 5:26 PM Hidalgo County Clerk Accepted by: Carlos Guerra Robinson, 927 S.W.2d at 737. 2.7 To establish reliability requires a high level of specificity. See Minnesota Mining & Mfg. Co. v. Atterbury, 978 S.W.2d 183 (Tex. App. -- Texarkana 1998, pet. denied). When the foundation for an expert opinion is a study, the offering party must "identify the study, get it admitted into evidence, and explain how the methodology of the study is scientifically reliable." See id.; see also Mitchell v. Gen Corp., Inc., 165 F.2d 778, 783 (10th Cir. 1999) (observing that a scientist would not attach weight to a study that he did not carefully examine and consider). In order for a study to have a reliable basis, it must undergo "traditional peer review." See id. at 200. Furthermore, the proponent of the testimony must establish the connective reliability of the testimony. See Gammill v. Jack Williams Chevrolet, Inc., 972 S.W.2d 713 (Tex. 1998). This connective reliability focuses on the reasoning of the expert. See id. For a reviewing court to rule on the scientific reliability of a study that an expert cites as supporting his opinion, the study's methodologies and rates of error must be explained. See Atterbury, 978 S.W.2d at 200. Without such information the studies cannot be considered to support the expert's opinion. See id. 2.8 In determining reliability, the trial court is not to determine the truth or falsity of the expert's opinion, but is to determine whether the expert's opinion is relevant, and whether the methods and research underlying the opinion are reliable. Robinson, 923 S.W.2d at 557. If foundational data underlying opinion testimony is unreliable, opinion drawn from the data is likewise unreliable. See Merrell Dow Pharm., Inc. v. Havner, 953 S.W.2d 706, 714 (Tex. 1997). Even when the underlying data is sound, an expert's testimony is unreliable if the expert draws conclusions from the data based on flawed Plaintiffs’ Motion to Exclude Defendant’s Expert Witness John C. Moran and Motion to Strike Defendant’s Medical Billing Counter Affidavits Page 5 Electronically Submitted 6/24/2024 5:26 PM Hidalgo County Clerk Accepted by: Carlos Guerra methodology. Id. A flaw in an expert's reasoning from sound data may render reliance on a study unreasonable and render the inferences drawn there from dubious. Id. Therefore, rather than focus on the expert's conclusions, the trial court should focus on the reliability of the principles, research, and methods underlying them as well as the expert's reasoning and methodology. Robinson, 923 S.W.2d at 557. 2.9 Further, an expert's failure to rule out alternative causes of the injuries or damages renders the opinion unreliable. Weiss v. Mechanical Associated Servs., 989 S.W.2d 120, 123 (Tex. App. B San Antonio 1999, pet. denied). In Merrell Dow Pharm., Inc. v. Havner, 953 S.W.2d 706, 711-14 (Tex. 1997), the Supreme Court described how the foundation of an expert opinion could be unreliable: “If the foundational data underlying opinion testimony are unreliable ... any opinion drawn from that data is likewise unreliable. Further, an expert's testimony is unreliable even when the underlying data are sound if the expert draws conclusions from the data based on a flaw of methodology.” Id. 2.10 The Texas Supreme Court has held that the jury would not be assisted by the unreliable opinion of an expert who failed to conduct tests, cite studies, or perform calculations in support of his theory, which was not peer-reviewed. Volkswagen of Am., Inc. v. Ramirez, 159 S.W.3d 897 (Tex. 2004). The Supreme Court in Ramirez stated further that: “It is well established that an expert must show the connection between the data relied on (the evidence of eye witnesses and data) and the opinion offered. Gammill, 972 S.W.2d at 726. An expert's bare opinion will not suffice. Havner, 953 S.W.2d at 711. “[I]t is not so simply because ‘an expert says it is so.” Gammill, 972 S.W.2d at 726; Havner, 953 S.W.2d at 712 (quoting Viterbo v. Dow Chem. Co., 826 F.2d 420, 421 (5th Cir.1987)).” Id at 906. III. BASIS FOR EXCLUDING OPINION EVIDENCE: Plaintiffs’ Motion to Exclude Defendant’s Expert Witness John C. Moran and Motion to Strike Defendant’s Medical Billing Counter Affidavits Page 6 Electronically Submitted 6/24/2024 5:26 PM Hidalgo County Clerk Accepted by: Carlos Guerra 1. THE OPINIONS OF THE EXPERT ARE NOT RELEVANT OR RELIABLE OR BASED UPON THE PROPER MEDICAL BILLING SCIENTIFIC METHODOLOGY: A. Mr. John C. Moran Failed to Use Proper Medical Billing Scientific Methodology: 3.1 Mr. John C. Moran’s Expert medical billing counter affidavits are attached hereto as Exhibit “A & B”. 3.2 Mr. Moran's proposed testimony should be stricken because he failed to use proper medical billing scientific methodology in forming his opinions. The use of scientifically valid and reliable methodologies is crucial in expert testimony, particularly in complex areas such as medical billing. As the Texas Supreme Court held in E.I. du Pont de Nemours & Co. v. Robinson, 923 S.W.2d 549, 557 (Tex. 1995), scientific evidence must be both relevant and reliable to be admissible. 3.4 In this case, Mr. Moran's failure to employ proper medical billing scientific methodology renders his opinions unreliable and inadmissible under Texas Rule of Evidence 702 and the standards set forth in Robinson and its progeny. 3.5 Mr. Moran, using a cherry-picking technique to determine what evidence the jury should believe, is not basing his opinions on any scientific methodology but rather on the fact that he is has experience in the medical insurance billing industry – ipse dixit methodology. Mr. Moran’s counter affidavit opinions are wholly based on speculative evidence: a) A systematic review of current medical billing practices; b) Application of standardized coding and billing guidelines; c) Consideration of relevant factors such as geographic location, facility type, and payer mix; Plaintiffs’ Motion to Exclude Defendant’s Expert Witness John C. Moran and Motion to Strike Defendant’s Medical Billing Counter Affidavits Page 7 Electronically Submitted 6/24/2024 5:26 PM Hidalgo County Clerk Accepted by: Carlos Guerra d) Use of statistically valid sampling methods; e) Proper validation of his conclusions against industry benchmarks. 3.6 These methodological deficiencies fundamentally undermine the reliability of Mr. Moran's opinions and conclusions regarding the medical billing issues in this case. This additional section strengthens the motion by providing another substantive reason to strike the expert testimony, beyond just the procedural issue of late designation. It argues that even if the expert had been properly designated, his testimony should still be excluded due to methodological flaws. 3.7 Pursuant to E.I. du Pont de Nemours & Co., Inc. v. Robinson, 923 S.W.2d 549, 557 (Tex. 1995), and Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S. Ct. 2786, 125 L. Ed. 2d 469, 480 (1993), Movant would show that any testimony of Mr. Moran as to the ultimate opinions in this case is so unreliable as to be inadmissible and of no assistance to the jury for the following reasons: a) There is no evidence that his methodology in reaching his ultimate opinions has been tested; b) His methodology is not subject to accurate testing; c) The technique used by Mr. Moran relies upon subjective interpretation; d) There is no evidence that the theory relied upon by Mr. Moran in employing expected reaction times in a real-world scenario has been subjected to peer review or publication; e) Mr. Moran’s theories have not been shown to be generally accepted as valid by any relevant medical billing community; f) Mr. Moran's theories have only been used for the purpose of this litigation and there is no evidence that they have been used otherwise; g) Mr. Moran is not presented as an expert applying medical scientific or methodology. Plaintiffs’ Motion to Exclude Defendant’s Expert Witness John C. Moran and Motion to Strike Defendant’s Medical Billing Counter Affidavits Page 8 Electronically Submitted 6/24/2024 5:26 PM Hidalgo County Clerk Accepted by: Carlos Guerra 3.8 Mr. Moran should not be permitted to testify in this case because he is not qualified to render the opinions he would present to the jury and his opinions are not based upon any reliable foundation. Boyd v. State Farm Ins. Co., 158 F.3d 326, 331 (5th Cir. 1998) (without more than his credentials and subjective opinion, an expert's testimony which lacks the materials or data that the opinion is based upon, as well as the reasoning process underlying that opinion, is inadmissible); Christophersen v. Allied-Signal Corp., 939 F.2d 1106, 1115-16 (5th Cir. 1991) (overruled on other grounds by Daubert) (witness's "scientific hunch" which is unexplained or unsupported by any methodology that witness utilized to reach his opinion is not admissible). 3.9 In 2004, the Texas Supreme Court found that a jury would not be assisted by the unreliable opinion of an expert who failed to conduct tests, cite studies, or perform calculations in support of his theory, which was not peer-reviewed. Volkswagen of Am., Inc. v. Ramirez, 159 S.W.3d 897 (Tex. 2004). 3.10 As stated by the Eastland Court in Discovery Operating, Inc. v. BP Am. Prod. Co., 311 S.W.3d 140, 165-66 (Tex. App. – Eastland 2010), review denied (Apr. 15, 2011): “An expert's opinion, to be admissible, must be relevant and reliable. State v. Cent. Expressway Sign Assocs., 302 S.W.3d 866, 870 (Tex. 2009); Exxon Pipeline Co. v. Zwahr, 88 S.W.3d 623, 628 (Tex. 2002). To be relevant, the expert's opinion must be based on the facts; to be reliable, the opinion must be based on sound reasoning and methodology. Cent. Expressway, 302 S.W.3d at 870; Zwahr, 88 S.W.3d at 629. Expert testimony is unreliable if it is no more than “subjective belief or unsupported speculation.” Zwahr, 88 S.W.3d at 629; City of Sugar Land v. Home & Hearth Sugarland, L.P., 215 S.W.3d 503, 510 (Tex. App.-Eastland 2007, pet. denied).” 3.11 In assessing the opinion testimony of a medical billing expert in Discovery Operating, Inc., the Eastland Court pointed out that the ipse dixit testimony (“it is so Plaintiffs’ Motion to Exclude Defendant’s Expert Witness John C. Moran and Motion to Strike Defendant’s Medical Billing Counter Affidavits Page 9 Electronically Submitted 6/24/2024 5:26 PM Hidalgo County Clerk Accepted by: Carlos Guerra because I say it is so”) without being supported by the facts in evidence, is only testimony of “subjective belief or unsupported speculation” and as such is unreliable and inadmissible. Discovery Operating, Inc., 311 S.W.3d at 165-66. 3.12 Without the application of scientific methodology in arriving at conclusions on pivotal issues, the Court should act to eliminate the unfair prejudice and confusion inherent in the admission of the testimony described in this motion and exclude and/or prevent Mr. Moran's testimony in this case. 3.13 Mr. Moran's testimony in this regard should be excluded. Mr. Moran does not demonstrate in any way, shape, or form his qualifications to testify as to the believability of the parties, refuses to consider all of the facts in the case - choosing to cherry-pick facts to support his opinions, and refuses to consider alternative facts and evidence present in this case. For the foregoing reasons, the Court is requested to exercise its role as a gatekeeper and determine the reliability of the scientific principles and methodology underlying Defendant’s expert's conclusions. 3.14 Moreover, in conducting a proper analysis of the reasonableness of medical charges, it is crucial to compare the fair market value of medical bills from providers that accept the same or substantially similar methods of payment. Providers that accept health insurance typically have contractually negotiated rates with insurers that are lower than their standard charges. In contrast, medical providers that do not accept health insurance and instead operate on a cash pay or deferred payment model often charge higher rates to account for the lack of guaranteed payment from an insurer. 3.15 Comparing charges between these fundamentally different payment models would be like comparing apples to oranges. It would not provide an accurate assessment Plaintiffs’ Motion to Exclude Defendant’s Expert Witness John C. Moran and Motion to Strike Defendant’s Medical Billing Counter Affidavits Page 10 Electronically Submitted 6/24/2024 5:26 PM Hidalgo County Clerk Accepted by: Carlos Guerra of the true fair market value for the specific services rendered to the plaintiff. A valid analysis must control for variables like payment method to ensure an apples-to-apples comparison when determining reasonable and customary charges in the relevant market. 3.16 There is no indication that Mr. Moran accounted for these critical differences in payment models when conducting his analysis. By seemingly comparing charges across providers without regard for whether they accept health insurance or use a cash pay model, his conclusions about the reasonableness of the plaintiff's medical bills are fundamentally flawed and unreliable. Proper methodology requires focusing the comparison on providers with payment models substantially similar to those who treated the plaintiff in order to ascertain the true fair market value of those services in the applicable market. Mr. Moran's failure to do so further undermines the already deficient foundation for his opinions. 3.17 The failure to control for payment model differences when comparing charges across providers also introduces a significant risk of bias into the analysis. Providers that primarily operate on a cash pay or deferred payment model may have a different patient mix, with a higher proportion of uninsured or underinsured individuals. These providers often face higher risks of non-payment and must adjust their charges accordingly to account for this increased financial risk. 3.18 By indiscriminately comparing these charges to those of providers that accept health insurance and have a more reliable payer mix, Mr. Moran's analysis is likely to skew towards finding the plaintiff's charges unreasonable, even if they are in line with the fair market value for providers with similar payment models and patient populations. This bias undermines the objectivity and reliability of his conclusions. 3.19 A proper analysis of reasonable charges must strive to minimize potential Plaintiffs’ Motion to Exclude Defendant’s Expert Witness John C. Moran and Motion to Strike Defendant’s Medical Billing Counter Affidavits Page 11 Electronically Submitted 6/24/2024 5:26 PM Hidalgo County Clerk Accepted by: Carlos Guerra sources of bias by ensuring that comparisons are made between providers with substantially similar relevant characteristics, including payment models and patient mixes. Mr. Moran's failure to account for these factors renders his opinions unreliable and unhelpful to the trier of fact. 3.20 Courts have recognized the importance of ensuring that expert testimony is based on reliable methodologies that are free from significant sources of bias. See, e.g., Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 590 (1993) (noting that expert testimony must be based on "scientifically valid principles" and that the "overarching subject is the scientific validity—and thus the evidentiary relevance and reliability—of the principles that underlie a proposed submission."). Mr. Moran's flawed methodology, which fails to control for critical differences between providers and introduces a risk of bias, falls short of this standard and should be excluded. 3.21 Admitting expert testimony that is based on flawed methodology and introduces significant risks of bias would not only be contrary to the standards set forth in Daubert and its progeny but would also undermine the fundamental fairness of the proceedings. The trier of fact would be misled by opinions that have the veneer of expertise but lack a reliable foundation, potentially leading to an unjust result. 3.22 Moreover, allowing such testimony would undermine the integrity of the judicial process and the role of the Court as a gatekeeper tasked with ensuring that only reliable and relevant expert testimony is presented to the jury. As the Supreme Court observed in Kumho Tire Co. v. Carmichael, 526 U.S. 137, 152 (1999), the gatekeeping function of the Court "is to make certain that an expert, whether basing testimony upon professional studies or personal experience, employs in the courtroom the same level of Plaintiffs’ Motion to Exclude Defendant’s Expert Witness John C. Moran and Motion to Strike Defendant’s Medical Billing Counter Affidavits Page 12 Electronically Submitted 6/24/2024 5:26 PM Hidalgo County Clerk Accepted by: Carlos Guerra intellectual rigor that characterizes the practice of an expert in the relevant field." 3.23 Mr. Moran's methodology and opinions fall far short of this standard. Admitting his testimony would send a message that experts can eschew reliable principles and introduce bias into their analyses without consequence, eroding the standards for expert testimony and diminishing the role of the Court as a gatekeeper. To maintain the integrity of the proceedings and ensure a fair trial, Mr. Moran's testimony should be excluded in its entirety. 3.24 Due to Mr. Moran's flaws in methodology, his testimony should be stricken to prevent the introduction of unreliable and potentially misleading evidence at trial. B. Defendant's Failure to Properly Designate Said Expert Pursuant to Texas Rule of Civil Procedure 195.5: 3.25 Defendant failed to properly designate John C. Moran as an expert witness pursuant to the Court-ordered docket control order; instead, Defendant just e-served their expert’s counter affidavits to Plaintiff’s counsel. 3.26 Defendant's untimely designation of John C. Moran fails to comply with the requirements of Texas Rule of Civil Procedure 195.5, which mandates that a party must designate experts by the deadline set by the Court. Furthermore, Defendant's late designation has caused significant prejudice to Plaintiff, as Plaintiff has been deprived of the opportunity to properly prepare for the expert's testimony, conduct necessary discovery, and potentially designate rebuttal experts within the time frame established by this Court. C. Legal Standard: Plaintiffs’ Motion to Exclude Defendant’s Expert Witness John C. Moran and Motion to Strike Defendant’s Medical Billing Counter Affidavits Page 13 Electronically Submitted 6/24/2024 5:26 PM Hidalgo County Clerk Accepted by: Carlos Guerra 3.27 Texas Rule of Civil Procedure 195.5 states: "If a party fails to timely respond to discovery requests under Rule 194.2(f) or this rule, to supplement a response, or to amend a response, the party may not offer the testimony of a witness having knowledge of a discoverable matter, or the testimony of an expert, unless the court finds that: a) There was good cause for the failure to timely provide the discovery or for the failure to amend or supplement; or b) The failure to timely provide the discovery or to amend or supplement will not unfairly surprise or unfairly prejudice the other parties." 3.28 The Texas Supreme Court has emphasized the importance of adhering to discovery deadlines and the consequences of failing to do so. In Alvarado v. Farah Mfg. Co., 830 S.W.2d 911, 914 (Tex. 1992), the Court stated that "the rules of civil procedure and the trial court's orders" should not be regarded as "mere technicalities" but rather as "necessary tools in the orderly administration of justice." 3.29 Furthermore, in Fort Brown Villas III Condo. Ass'n v. Gillenwater, 285 S.W.3d 879, 882 (Tex. 2009), the Court held that "a party who fails to timely designate an expert has the burden of establishing good cause or lack of unfair surprise or prejudice." D. Defendant Failed to Properly Designate John C. Moran as Required by TRCP 195.5: 3.30 Defendant failed to properly designate Mr. John C. Moran in clear violation of this Court's Scheduling Order and TRCP 195.5. Specifically, Defendant did not provide all proper documentation required for expert designation, including but not limited to: 1) The expert's name, address, and telephone number; 2) The subject matter on which the expert will testify; 3) The general substance of the expert's mental impressions and opinions and a brief summary of the basis for them; 4) As Mr. Moran is presumably retained by, employed by, or otherwise subject to Plaintiffs’ Motion to Exclude Defendant’s Expert Witness John C. Moran and Motion to Strike Defendant’s Medical Billing Counter Affidavits Page 14 Electronically Submitted 6/24/2024 5:26 PM Hidalgo County Clerk Accepted by: Carlos Guerra the control of the Defendant: a. All documents, tangible things, reports, models, or data compilations that have been provided to, reviewed by, or prepared by or for the expert in anticipation of the expert's testimony; b. The expert's current resume and bibliography; c. The expert's qualifications, including a list of all publications authored in the previous 10 years; d. A list of all other cases in which, during the previous four years, the expert testified as an expert at trial or by deposition; e. A statement of the compensation to be paid for the expert's study and testimony in the case. 3.31 Defendant has offered no explanation for this failure to provide the required documentation, let alone demonstrated good cause for the incomplete designation. 3.32 The purpose of expert designation requirements under TRCP 195.5 is to allow opposing parties sufficient time to prepare for trial, including the opportunity to thoroughly review the expert's qualifications, opinions, and the basis for those opinions. Defendant's failure to provide complete documentation has undermined these important objectives and prejudiced Plaintiff's ability to prepare for trial. 3.33 Courts have consistently held that the failure to properly designate an expert witness, including providing all required documentation, is grounds for exclusion of that expert's testimony. For example, in Ersek v. Davis & Davis, P.C., 69 S.W.3d 268, 274 (Tex. App.—Austin 2002, pet. denied), the court upheld the trial court's decision to strike an expert witness who was not properly designated in accordance with the rules. E. Defendant Cannot Demonstrate Good Cause or Lack of Unfair Surprise or Prejudice: 3.34 Under TRCP 195.5, the burden falls on Defendant to establish either good cause for the improper designation or that the failure to properly designate will not unfairly surprise or prejudice Plaintiff. Defendant cannot meet this burden. 3.35 Defendant has provided no explanation for the incomplete designation that Plaintiffs’ Motion to Exclude Defendant’s Expert Witness John C. Moran and Motion to Strike Defendant’s Medical Billing Counter Affidavits Page 15 Electronically Submitted 6/24/2024 5:26 PM Hidalgo County Clerk Accepted by: Carlos Guerra would constitute good cause. The requirements for proper expert designation were clearly set forth in TRCP 195.5, and Defendant was aware of these requirements well in advance. 3.36 The improper designation of John C. Moran has caused unfair surprise and prejudice to Plaintiff. Specifically: a. Plaintiff has been deprived of the opportunity to thoroughly investigate Mr. Moran's qualifications, opinions, and the basis for those opinions; b. Plaintiff has lost valuable time to prepare cross-examination strategies and to consult with their own experts regarding Mr. Moran's opinions; c. Plaintiff has been denied the chance to timely designate rebuttal experts to address Mr. Moran's opinions; and, d. Plaintiff's trial preparation has been significantly disrupted, as they must now scramble to address this improper designation with trial rapidly approaching. 3.37 The prejudice to Plaintiff is particularly acute given the proximity of the trial date. Allowing Defendant to proceed with John C. Moran's testimony despite the improper designation would reward Defendant's disregard for this Court's Scheduling Order and the rules of civil procedure, while unfairly disadvantaging Plaintiff. F. Striking John C. Moran is the Appropriate Remedy: 3.38 Given Defendant's clear violation of TRCP 195.5 and this Court's Scheduling Order, and the resulting prejudice to Plaintiff, the appropriate remedy is to strike John C. Moran as an expert witness and preclude Defendant from offering Mr. Moran's testimony at trial. 3.39 This remedy is consistent with the Texas Supreme Court's guidance in Alvarado, where the Court emphasized that "the failure to meet discovery deadlines should not be condoned by courts where the circumstances do not warrant such indulgence." Alvarado, 830 S.W.2d at 915. Moreover, striking John C. Moran as an expert witness Plaintiffs’ Motion to Exclude Defendant’s Expert Witness John C. Moran and Motion to Strike Defendant’s Medical Billing Counter Affidavits Page 16 Electronically Submitted 6/24/2024 5:26 PM Hidalgo County Clerk Accepted by: Carlos Guerra serves the important purpose of enforcing compliance with discovery rules and court orders, which is essential to the fair and efficient administration of justice. 3.40 The lack of proper documentation fundamentally undermines the reliability of Mr. Moran's opinions and conclusions regarding the medical billing issues in this case. Given these deficiencies in Mr. Moran's designation, his testimony should be stricken to prevent the introduction of potentially unreliable and misleading evidence at trial. 3.41 Therefore, Plaintiff respectfully requests that this Court strike the testimony of John C. Moran and preclude Defendant from offering his testimony at trial due to Defendant's failure to properly designate him as an expert witness in compliance with TRCP 195.5 and this Court's Scheduling Order. IV. OBJECTIONS AND MOTION TO STRIKE DEFENDANT’S MEDICAL BILLING COUNTER AFFIDAVITS 4.1 For the reasons more fully described below, Plaintiff objects to the counter- affidavits signed by Mr. John C. Moran, and moves to strike on the following grounds: 1) With respect to the counter-affidavits itself, the affidavits do not give reasonable notice of the basis on which the party filing it intends at trial to controvert the claim reflected by the initial affidavits. 2) The affidavits were signed by an individual who was not properly disclosed in Defendant’s discovery responses, including but not limited to Texas Rules of Civil Procedure 195.5, and therefore, are inadmissible. 3) Plaintiff objects on the grounds that Mr. Moran’s testimony lacks proper methodology, foundation and constitutes mere speculation, conjecture and/or a conclusion of law. 4) Mr. Moran’ affidavits never refutes that the bills were not reasonable and customary for the time and place the services rendered. As such, his affidavits is not relevant and does not sufficiently contradict Plaintiff’s bill affidavits such that they are put into controversy for purposes of trial. Plaintiffs’ Motion to Exclude Defendant’s Expert Witness John C. Moran and Motion to Strike Defendant’s Medical Billing Counter Affidavits Page 17 Electronically Submitted 6/24/2024 5:26 PM Hidalgo County Clerk Accepted by: Carlos Guerra 5) Plaintiff objects to Mr. Moran’ affidavits on the basis that it is a “cookie cutter” affidavits which is, on its face, both overly broad and vague and thus abusive. TEX. CIV. PRAC. & REM. CODE § 18.001 was meant to simplify litigation by eliminating the requirement of proving up basic matters unless they were truly controverted. Mr. Moran’ affidavits are literally a fill-in-the-blank form. Their affidavits do not refer to a single complaint or type of treatment nor make even one factual reference in support of their blanket conclusion that “any” treatment or fees were neither reasonable nor necessary. 6) Mr. Moran’ have not stated in their counter-affidavits that they are qualified, by knowledge, skill, experience, training, education, or other expertise in the types of injuries and sustained by Plaintiff or the type of treatment administered to Plaintiff by his doctors. A. § 18.001. Affidavits Concerning Cost and Necessity of Services: 4.2 Section 18.001 of the Texas Civil Practice & Remedies Code states as follows: 1) Unless a controverting affidavit is filed as provided by this section, an affidavit that the amount a person charged for a service was reasonable at the time and place that the service was provided and that the service was necessary is sufficient evidence to support a finding of fact by judge or jury that the amount charged was reasonable or that the service was necessary. 2) The affidavits must: (1) be taken before an officer with authority to administer oaths; (2) be made by: (A) the person who provided the service; (B) or the person in charge of records showing the service provided and charge made; and (3) include an itemized statement of the service and charge. 3) The party offering the affidavits in evidence or the party's attorney must e-file the affidavits with the clerk of the court and serve a copy of the affidavits on each other party to the case. 4) The counter affidavits must give reasonable notice of the basis on which the party filing it intends at trial to controvert the claim reflected by the initial affidavits and must be taken before a person authorized to administer oaths. 5) The counter-affidavits must be made by a person who is qualified, by knowledge, skill, experience, training, education, or other expertise, to testify in contravention of all or part of any of the matters contained in the initial affidavits. Tex. Civ. Prac. & Rem.Code Ann. § 18.001 (Vernon 1997). 4.3 Section 18.001 provides a significant savings of time and cost to litigants, particularly in personal injury cases, by providing a means to prove up the reasonableness Plaintiffs’ Motion to Exclude Defendant’s Expert Witness John C. Moran and Motion to Strike Defendant’s Medical Billing Counter Affidavits Page 18 Electronically Submitted 6/24/2024 5:26 PM Hidalgo County Clerk Accepted by: Carlos Guerra and necessity of medical expenses. See Turner v. Peril, 50 S.W.3d 732 (Tex. App.-Dallas 2001, n.w.h.). Significantly, while section 18.001(c)(2)(B) permits charges to be proved by a non-expert custodian, section 18.001(f) requires a counter-affidavits to give reasonable notice of the basi