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  • Joseph D. Devore vs. Kristin S. MunschInjury/Damage - Motor Vehicle document preview
  • Joseph D. Devore vs. Kristin S. MunschInjury/Damage - Motor Vehicle document preview
  • Joseph D. Devore vs. Kristin S. MunschInjury/Damage - Motor Vehicle document preview
  • Joseph D. Devore vs. Kristin S. MunschInjury/Damage - Motor Vehicle document preview
  • Joseph D. Devore vs. Kristin S. MunschInjury/Damage - Motor Vehicle document preview
  • Joseph D. Devore vs. Kristin S. MunschInjury/Damage - Motor Vehicle document preview
  • Joseph D. Devore vs. Kristin S. MunschInjury/Damage - Motor Vehicle document preview
  • Joseph D. Devore vs. Kristin S. MunschInjury/Damage - Motor Vehicle document preview
						
                                

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Filed: 5/7/2019 1:10 PM JOHN D. KINARD - District Clerk Galveston County, Texas Envelope No. 33366959 By: Shailja Dixit 5/7/2019 1:14 PM CAUSE NO. 18-CV-1214 JOSEPH D. DEVORE § IN THE DISTRICT COURT OF § VS. § GALVESTON COUNTY, TEXAS § KRISTIN S. MUNSCH § 405TH JUDICIAL DISTRICT PLAINTIFF'S MOTION TO STRIKE MARC J. KATZMAN, M.D. AS DEFENDANT'S DESIGNATED EXPERT TO THE HONORABLE JUDGE OF SAID COURT: COMES NOW, Plaintiff, Joseph D. Devore, and files this his Motion to Strike Marc J. Katzman, M.D., as Defendant's Designated Expert. A. Introduction 1. Plaintiff filed suit against Defendant on September 5, 2018, as a result of an automobile crash that occurred on March 14, 2018. Trial is set on the two-week docket beginning July 8, 2019. 2. The Court entered a Docket Control Order setting forth the deadline of March 29, 2019 for Plaintiff to designate experts and April 30, 2019 for Defendant to designate experts. 3. Defendant's response to Request for Disclosures was initially due on November 18, 2018. Plaintiff's counsel did not receive Defendant’s initial disclosure responses. On December 7, 2018, Defendant served her First Supplemental Response to Plaintiff’s Request for Disclosure and identified Sunil Thomas, M.D., and Julius Danziger, M.D., as retained experts. 4. On April 30, 2019, Defendant served her Amended Response to Plaintiff’s Request for Disclosure and identified Marc J. Katzman, M.D., as her retained expert and removed Sunil Thomas, M.D., and Julius Danziger, M.D., as retained experts. A copy of the designation is attached as Exhibit “A.” B. Argument & Authorities 5. Defendant is in non-compliance of Tex. R. Civ. P. 194.2(f) in that she failed to provide the subject matter on which the expert will testify, failed to provide the general substance of the retained expert’s mental impressions and opinions and a brief summary of the basis of them, and also failed to identify or provide all documents, tangible things, reports, models, or data compilations provided to, reviewed by, or prepared by or for Dr. Katzman in anticipation of his testimony. 6. Rule 193.6 of the Texas Rules of Civil Procedure requires the automatic exclusion of witness testimony that is not timely disclosed during discovery, absent a showing of good cause or lack of unfair surprise or unfair prejudice which Defendant has not shown. The burden is on the party seeking to call the witness to establish good cause or the lack of unfair surprise or unfair prejudice. In Vingcard v. Merrimac Hosp. Sys., 59 S.W.3d 847, 854-57 (Tex. App.–Ft. Worth 2001, pet. denied), the Court held that plaintiff was required to provide information in response to all components of the request and that plaintiff had completely failed to supplement its disclosure responses in accordance with Rule 193.5(a)(2). Rule 193.5 TRCP requires a party to not only amend or supplement the exert’s identity and subject matter of his testimony, but also provide any “other information” sought by written discovery. 7. The Court should exclude Defendant's the testimony of Marc J. Katzman, M.D., because Defendant has not complied with Rules 193, 194 and 195. Defendant has not met her burden of showing good cause or lack of unfair surprise or unfair prejudice. The case has been pending since September 5, 2018, Plaintiff timely produced medical and billing records, and Plaintiff timely responded to Defendant's discovery requests. It would be unfair to Plaintiff at this late date for the Court to permit Defendant to designate Dr. Katzman as her expert without providing all the information required by the rules. The designation of Marc J. Katzman, M.D., as Defendant’s designated testifying expert witness does not comport with the purpose of the discovery rules. FOR THESE REASONS, Plaintiff prays that this Court strike Defendant’s designation of Marc J. Katzman, M.D. as Defendant's Designated Testifying Expert and exclude Dr. Katzman from testifying at trial, and for all such other relief to which Plaintiff may show himself to be justly entitled. Respectfully submitted, THE LAW OFFICE OF DANIEL D. HOROWITZ, III, PC By: __/S/ DANIEL D. HOROWITZ, III DANIEL D. HOROWITZ State Bar No. 24036804 2100 Travis Street, Suite 280 Houston TX 77002 832-460-5181 832-266-1478 Facsimile daniel@ddhlawyers.com ATTORNEY FOR PLAINTIFF CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing instrument has been served upon all counsel of record pursuant to the Texas Rules of Civil Procedure on this the 7th day of May, 2019. /s/ DANIEL D. HOROWITZ, III Daniel D. Horowitz Certificate of Conference _____ A conference has been held on the merits of the Motion. _____ I have been unsuccessful in my attempts to contact the attorney for Defendant but assume he is opposed to the Motion. _____ I have been unsuccessful in my attempts to discuss this matter with the attorney for Defendant as said attorney has not returned my telephone calls and/or responded to my correspondence. _____ This matter has been discussed with opposing counsel and no agreement on the Motion could be reached. _XX__ The attorney for Defendant is opposed to Movant’s request under this Motion. /s/ DANIEL D. HOROWITZ, III Daniel D. Horowitz CAUSE NO. 18-CV-1214 JOSEPH D. DEVORE § IN THE DISTRICT COURT OF § v. § GALVESTON COUNTY, TEXAS § KRISTIN S. MUNSCH § 405TH JUDICIAL DISTRICT DEFENDANT’S FIRST AMENDED RESPONSES TO PLAINTIFF’S REQUESTS FOR DISCLOSURE TO: Plaintiff, by and through Plaintiff’s attorney of record, Daniel D. Horowitz, daniel@ddhlawyers.com. Pursuant to the Texas Rules of Civil Procedure, Defendant serves the following First Amended Responses to Plaintiff’s Requests for Disclosure. Respectfully submitted, MARTIN, DISIERE, JEFFERSON & WISDOM, L.L.P. By: /s/ Lionel Sims III W. Shane Osborn State Bar No. 24068343 Augusto I. Molina State Bar No. 24092848 Lionel Sims III State Bar No.: 24107465 808 Travis Street, 20th Floor Houston, Texas 77002 Telephone: (713) 632-1700 Facsimile: (713) 222-0101 E-mail: eservice@mdjwlaw.com ATTORNEYS FOR DEFENDANT CERTIFICATE OF SERVICE This is to certify that a true and correct copy of Defendant’s First Amended Responses to Plaintiff’s Requests for Disclosure has been forwarded to opposing counsel in accordance with the Texas Rules of Civil Procedure on April 30, 2019. /s/ Lionel Sims III Lionel Sims III Page 1 of 5 EXHIBIT "A" DEFENDANT’S FIRST AMENDED RESPONSES TO PLAINTIFF’S REQUESTS FOR DISCLOSURE 194.2 (a) The correct names of the parties to the lawsuit. RESPONSE: The parties are correctly named to the best of Defendant’s knowledge. (b) The name, address, and telephone number of any potential parties. RESPONSE: None at this time. (c) The legal theories and, in general, the factual bases of your claims or defenses. RESPONSE: Defendant generally denies the material allegations contained in Plaintiff’s Original Petition and any subsequent petitions and asserts that Plaintiff must prove each and every allegation by a preponderance of the evidence. Plaintiff’s damages are barred, in whole or in part, because any damages sustained by Plaintiff were the result of Plaintiff’s own acts or omissions or the result of acts or omissions of other persons or entities over which Defendant had no control. Plaintiff failed to mitigate his damages. Plaintiff’s medical damages were proximately caused by Plaintiff’s prior or subsequent medical conditions unrelated to the accident made the basis of this lawsuit. Plaintiff’s claims are barred, in whole or in part, because Texas Civil Practice and Remedies Code 41.0105 limits medical expenses to those actually paid or incurred by Plaintiff. Defendant is entitled to a credit for all amounts already paid by any party to Plaintiff for the damages that are the subject matter of this lawsuit, pursuant to Texas Civil Practices and Remedies Code 33.012. Plaintiff’s recovery, if any, for lost wages is limited to net wages as set forth in Section 18.091 of the Texas Civil Practice and Remedies Code. (d) The amount and any method of calculating economic damages. RESPONSE: Defendant is not making a claim for damages. Plaintiff is not entitled to any economic damages from Defendant, and Defendant disputes any calculation for Plaintiff’s damages. (e) The name, address, and telephone number of persons with knowledge of relevant facts, and a brief statement of each identified person’s connection with the case. RESPONSE: Joseph D. Devore c/o Daniel D. Horowitz The Law Office of Daniel D. Horowitz, III, PC 800 Sawyer Street Houston, Texas 77007 Plaintiff Page 2 of 5 Kristin S. Munsch c/o Shane Osborn MARTIN, DISIERE, JEFFERSON & WISDOM, LLP 808 Travis, 20th Floor Houston, Texas 77002 713-632-1700 Defendant (f) For any testifying expert please disclose the following. 1. The experts’ 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 or if the expert is not retained by, employed by, or otherwise subject to your control, documents reflecting such information; 4. If the expert is retained by, employed by, or otherwise subject to your control; 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; and b. The expert’s current resume and bibliography; RESPONSE: (1) Dr. Marc Katzman 330 South Service Road, Suite 121 Melville, New York 11747 888-920-4440 (2) The subject matter on which Dr. Katzman will testify includes Plaintiff’s history, condition, care, treatment, and prognosis. Dr. Katzman may also render opinions about the necessity of Plaintiff’s treatment and may provide rebuttal testimony to any witness or expert designated by Plaintiff, to the extent necessary. (3) The general substance of Dr. Katzman’s mental impressions and opinions can be found in his report that will be completed upon receipt and evaluation of Plaintiff’s discovery responses, MRI films, and Dr. Katzman’s training, skill, education, and experience as set forth in his curriculum vitae, which is also attached hereto. Defendant may elicit expert testimony, through direct or cross examination, from any experts or representatives who have been or who may be designated by or called by Plaintiff, or who have been or may be named by Plaintiff in any discovery responses or depositions or documents produced or to be produced in this litigation, and their Custodian of Records. In reserving the right to potentially elicit expert opinion testimony from any of the Plaintiff’s experts, Defendant does not concede that any expert witnesses designated by Plaintiff are legally qualified as experts under the Texas Rules of Evidence or that their testimony is reliable or reasonably calculated to aid the jury in its evaluation of relevant issues as required by the Texas Rules of Evidence. Defendant does not waive, and Page 3 of 5 expressly reserves, the right to challenge the designations of any of the Plaintiff’s experts or their qualifications as warranted and as permitted by the Court’s docket control order, the Texas Rules of Evidence and any other provisions of Texas law. Defendant may call to testify as expert witnesses in this cause, any of the custodians of records for: (1) any healthcare providers; (2) personnel or payroll files; and (3) all other records identified in any discovery responses, depositions or documents produced during discovery. Individuals identified as custodians of records may be called to testify regarding the authenticity of any such records and the amount and reasonableness of any charges reflected in such records. Those records will serve as each such custodian’s reports. Defendant further reserves the right to call unidentified rebuttal witnesses, whose testimony cannot be anticipated or predicted until evidence is heard at trial. Defendant reserves the right to supplement this designation and otherwise identify or call witnesses in accordance with all Court orders, agreements by the parties, the Texas Rules of Civil Procedure, the Texas Rules of Evidence and Texas case law. Defendant further reserves the right to withdraw the designation of any expert and to aver positively that any such previously designated expert will not be called as a witness at trial, and to re-designate same as a consulting expert, who cannot be called by opposing counsel, in accordance with the Texas Rules of Civil Procedure. (g) Any discoverable indemnity and insuring agreements. RESPONSE: Defendant was insured by State Farm Mutual Automobile Insurance Company and had $50,000 in coverage for bodily injuries per person and a total of $100,000 in coverage for all bodily injuries at the time of the accident. (h) Any discoverable settlement agreements. RESPONSE: None at this time. (i) Any discoverable witness statements. RESPONSE: None at this time. (j) In a suit alleging physical or mental injury and damages from the occurrence that is the subject of the case, all medical records and bills that are reasonably related to the injuries or damages asserted or, in lieu thereof, an authorization permitting the disclosure of such medical records and bills. RESPONSE: None at this time. (k) All medical records and bills obtained by the responding party by virtue of an authorization furnished by the requesting party. Page 4 of 5 RESPONSE: None at this time. (l) The name, address, and telephone number of any person who may be designated as a responsible third party. RESPONSE: None at this time. Page 5 of 5