Preview
FILED
DALLAS COUNT
5/3/2018 4:41PM
FELICIA PITRE
DISTRICT CLER
CAUSE NO. DC-1 7-1 0220
NICOLE E. DOWNlE-FRASER, IN THE DISTRICT COURT
Plaintiffs,
v. 95th JUDICIAL DISTRICT
VALERIA SAINZ,
Defendant. DALLAS COUNTY, TEXAS
PLAINTIFFS' MOTION TO STRIKE CONTROVERTING AFFIDAVITS
TO THE HONORABLE JUDGE OF SAID COURT:
COMES NOW, Plaintiff, Nicole Downie—Fraser (hereinafter referred to as the
“M“ or "MU, by and through undersigned attorney and files this Motion to Strike
Controverting Affidavits and in support would show the Court the following:
l.
BACKGROUND AND FACTS
1. On September 27, 2017, Plaintiff filed Affidavit(s) Concerning Cost and
Necessity of Services (hereinafter referred to as the “Cost Affidavit(s)”). That same date,
a true and correct copy of the Cost Affidavit(s) were served on Defendant's attorney by e-
service. A copy of the Cost Affidavit(s) and proof of service are attached to this motion as
Exhibit "A" and are incorporated reference.
in full by
2. On November 10, 201 7, Defendant Valeria Sainz (hereinafter referred to as
the “Defendant") filed the Counter Affidavit of Dr. Michael F. Duffy, M.D. (hereinafter
referred to as the “Counter Affidavit”), attacking the Cost Affidavit(s) from the following
healthcare providers:
Accident & Injury Chiropractic
North Texas Open Air MRI
Cole Wellness Center
DFW Prescriptions
Texas Interventional Pain Care, PA
A copy of the Counter Affidavit is attached to this motion as Exhibit "B" and is
incorporated in full by reference.
PLAINTIFFs' MOTION To STRIKE CONTROVERTING AFFIDAVIT(s) Page 1
3. A Scheduling Order has been entered in this case. A copy of the Scheduling
Order is attached to this motion as Exhibit "C" and is incorporated in full by reference.
4. The discovery deadline in this case ended or ends May 25, 201 8.
5. A jury trial in this cause is set for June 25, 2018.
ll.
AUTHORITIES AND ARGUMENTS
6. The public policy behind allowing a plaintiff to “prove up” his medicals
through the cost affidavits sanctioned by the Texas Civil Practice and Remedies Code
§1 8.001 isto expedite the time of trialwhile minimizing the cost to the plaintiff by mitigating
the need for the plaintiff to proffer expert medical testimony. Turner v. Peril, 50 S.W.3d
742, 2001 Tex. App. LEXIS 51 11 (Tex. App.---Dallas, writ denied); see Posada v. Romero,
2007 Tex. App. LEXIS 3294 (Tex. App.---Fort Worth, no writ).
7. An opposing party may file a counter affidavit controverting the original
affidavit. TEX. CIv. P. & REM. Code § 18.001(b). On November 10, 2017, Defendant's
attorney filed a Counter Affidavit which controverts the Cost Affidavit(s) from the following
healthcare provider(s):
Accident & Injury Chiropractic
North Texas Open Air MRI
Cole Wellness Center
DFW Prescriptions
Texas Interventional Pain Care, PA
See Ex. B.
A. Dr. Michael F. Duffv. M.D. ls Not Qualified. bv Knowledge. Skill. Experience.
Training. Education. or Other Expertise. to Testifv in Contravention of All or
Part of Anv of the Matters Contained in the Initial Affidavit as Required bv
Section 18.001(f).
8. Defendant's Counter Affidavit does not comply with Section 18.001(f), as
amended. That provision states: "The counter affidavit must give reasonable notice of the
basis on which the party filing itintends at trial to controvert the claim reflected by the initial
affidavit and must be taken before a person authorized to administer oaths. The counter
affidavit must be made by a person qualified, by knowledge, skill, experience, training,
PLAINTIFFs' MOTION To STRIKE CONTROVERTING AFFIDAVIT(s) Page 2
education, or other expertise, to testify in contravention of allor part of any of the matters
contained in the initialaffidavit." TEX. CIV. P. & REM. CODE § 18.001 (f). Movant would state
that Dr. Michael F. Duffy, M.D., is not qualified by knowledge, skill, experience, training,
education, or other expertise to testify in contravention of the matters contained in the
medical services affidavits previously filed by the Plaintiff. Dr. Michael F. Duffy, M.D. has
failed to show he is qualified to opine to the chiropractic care or the pain management
care provided, and fails to state any reasonable basis on which to deny the care was
necessary or the charges reasonable. Dr. Michael F. Duffy, M.D. has produced no
evidence that he isan expert inchiropractic care or pain management. See EX. B. Thus,
fails to meet the stringent requirements of section 18.001 ,
and the Counter Affidavit should
be stricken and should not be permitted to provide testimonial evidence of any kind related
to chiropractic care.
B. Defendant's Counter Affidavit(s) Were Filed Late and Without Leave of Court.
9. Movant further, or in the alternative, asks the Court to strike the Counter
Affidavit because the Defendant failed to timely filethe affidavit. Section 18.001 requires
the party intending to controvert the original affidavit do so no later than 30 days after the
day the party receives a copy of the affidavit and at least 14 days before the day on which
evidence is first presented at the trial or the cause serve a copy of the controverting
affidavit on each other party or the party’s attorney of record. SeeTEX. CIv. P. & REM. CODE
§ 18.001 (e)(1 )(A) & (B). With prior leave of the court, an opposing party may file a counter
affidavit at any time before the commencement of evidence at trial. Id.at 18.001 (e)(2). In
this case, the Defendant received Plaintiff's Cost Affidavit(s) on September 27, 201 7. See
EX. A. The deadline for Defendant to serve a copy of the Counter Affidavit on the Plaintiff
without leave of court would have been October 27, 201 7. See TEX. CIv. P. & REM. CODE
§ 18.001 (e)(1 )(A) & (B). Defendant's attorney filed the Counter Affidavit on November 10,
2017, without leave of the Court. See Ex. B.
PLAINTIFFs' MOTION To STRIKE CONTROVERTING AFFIDAVIT(s) Page 3
Ill.
PRAYER
WHEREFORE Plaintiff, Nicole Downie-Fraser, prays that, after having opportunity
to review the motion, response, the court's file, and hear the arguments of counsel, the
Court strike the Counter Affidavit of Dr. Michael F. Duffy, M.D. filed herein by Defendant
and for such other and further relief to which Plaintiff may be entitled.
State
Ben
1934
W
Respectfully
Cameron
Bar
Abbott
Garland,
Dean
No.
&
Pendleton
TX
submitted,
2408291 0
Associates,
75041
Drive
PLLC
(972) 263-5555
(81 7) 263-5555
(972) 682-7586 Facsimile
eService@benabbott.com
ATTORNEY FOR PLAINTIFF(S)/MOVANT(S)
PLAINTIFFs' MOTION To STRIKE CONTROVERTING AFFIDAVIT(s) Page 4
W
CERTIFICATE OF CONFERENCE
I, hereby certify, that Counsel for Defendant is opposed to this motion.
Certified to the Day of May 3, 201 8.
Cameron Dean
Attorney for Plaintiff(s)/Movant(s)
CERTIFICATE OF SERVICE
This is to certify that a true and correct copy of the foregoing Plaintiffs' Motion to
W
Strike Controverting Affidavits, the attached Notice of Hearing, and the proposed Order
were served on all attorneys of record and/or pro se parties in accordance with Rules
3rd
21 & 21 a of the Texas Rules of Civil Procedure on this day of May, 2018.
Cameron Dean
Attorney for Plaintiff(s)/Movant(s)
PLAINTIFFs' MOTION To STRIKE CONTROVERTING AFFIDAVIT(s) Page 5
Exhibit “A”
CAUSE NO. DC-17-10220
NICOLE E. DOWNIE-FRASER, IN THE DISTRICT COURT
Plaintiff,
v. 95th JUDICIAL DISTRICT
VALERIA SAINZ,
Defendant. DALLAS COUNTY, TEXAS
MEDICAL RECORDS AFFIDAVIT OF ACC. & INJ. CHIRO (N. DALLAS)
TO THE HONORABLE JUDGE OF SAID COURT:
Plaintiff Nicole Eugene Downie-Fraser files the attached Medical Records Affidavit
of Acc. & Inj. Chiro (N. Dallas) in accordance with 902(10) of the Texas Rules of
Evidence.
Respectfully submitted,
/s/ Cameron Dean
____________________________________
Cameron Dean
State Bar No. 24082910
Ben Abbott & Associates, PLLC
1934 Pendleton Drive
Garland, TX 75041
(972) 263-5555
(817) 263-5555
(972) 682-7586 Facsimile
eService@benabbott.com
ATTORNEYS FOR PLAINTIFF
CERTIFICATE OF SERVICE
This is to certify that a true and correct copy of the foregoing document was served
on all counsel of record and/or pro se parties in accordance with Rules 21 and 21a of
the Texas Rules of Civil Procedure on this 27th day of September, 2017.
/s/ Cameron Dean
____________________________________
Cameron Dean
MEDICAL RECORDS AFFIDAVIT OF ACC. & INJ. CHIRO (N. DALLAS) Page 8
1 ) Cause No.:
)
Plaintiff, )
) IN THE DISTRICT COURT
v5. )
} DALLAS COUNTY, TEXAS
l'
)
)
Defendant , )
)
AFFIDAVIT FOR THE AUTHEHTICATION OF BUSINESS RECORDS
Before ma, the undersigned authority, on this day personally appeared DR. LOU
SAUCEDO, JR., D.C.. who, being by ma duly sworn, deposed as follows:
My name is DR. LOU SAUCEDO, JR., D.C., I am of sound mind, capable of making
this affidavit, and personally acquainted with the facts herein stated:
10
I am the custodian of healthcare treatment records for AECIDENT 5 INJURY
11 Attached hereto are records from 09/12/2016 THRU 04/05/2017,
CHIROPRACTIC.
pertaining to NICOLE FRASER, DOB: 03/23/1970, SSN: N/A. These records are
12 kept by ACCIDENT a INJURY CHIROPRACTIC in the regular course of business, and
it was the regular course of business of ACCIDENT E INJURY CHIROPRACTIC for
l3 an employee or representative of ACCIDENT 5 INJURY CHIROPRACTIC, with
knowledge of the act, event, condition, opinion, or diagnoses recorded to
make the records or to transmit information thereof to be included in such
14
records; and the records were made at or near the time or reasonably after
the time that the service waa provided. The records attached hereto are the
15 duplicates of the original.
original or exact )
16
17 Affiant
'
18 SWORN TO AND SUBSCRIBED before me on the [J7 day of Cf? ’
t I
, 2017.
l9
20
69m fifimwfmm
NotaryJPublic, State of Texaa
21
Notary'a printed name and
22 commission expirea:05-13-2019
23 LHVLOUEESAUNAS E
Nolow Puma. State of Texas
My Commissmn Expues
24 Moy13.2019
25
CAUSE NO. DC-17-10220
NICOLE E. DOWNIE-FRASER, IN THE DISTRICT COURT
Plaintiff,
v. 95th JUDICIAL DISTRICT
VALERIA SAINZ,
Defendant. DALLAS COUNTY, TEXAS
COST OF SERVICES AFFIDAVIT OF ACC. & INJ. CHIRO (N. DALLAS)
TO THE HONORABLE JUDGE OF SAID COURT:
Plaintiff Nicole Eugene Downie-Fraser files the attached Cost of Services
Affidavit of Acc. & Inj. Chiro (N. Dallas) in accordance with section 18.001, et seq.
of the Texas Civil Practices & Remedies Code.
Respectfully submitted,
/s/ Cameron Dean
____________________________________
Cameron Dean
State Bar No. 24082910
Ben Abbott & Associates, PLLC
1934 Pendleton Drive
Garland, TX 75041
(972) 263-5555
(817) 263-5555
(972) 682-7586 Facsimile
eService@benabbott.com
ATTORNEYS FOR PLAINTIFF
CERTIFICATE OF SERVICE
This is to certify that a true and correct copy of the foregoing document was
served on all counsel of record and/or pro se parties in accordance with Rules 21 and
21a of the Texas Rules of Civil Procedure on this 27th day of September, 2017.
/s/ Cameron Dean
____________________________________
Cameron Dean
COST OF SERVICES AFFIDAVIT OF ACC. & INJ. CHIRO (N. DALLAS) Page 2
) Cause No.:
)
)
Plaintiff. ) 1N THE DISTRICT IN AND FOR COUNTY,
) TEXAS
VS. )
)
)
)
Defendant )
AFFIDAVIT OF NECESSITY OF SERVICES/REASONABLENESS OF CHARGES
Before me, the undersigned authority, on this day personally appeared DR. LOU
SAUCEDO, JR., D.C., who, being by me duly sworn, deposed as follows:
My name is DR. LOU SAUCEDO, JR., D.C., I am of sound mind, capable of making
this affidavit, and personally acquainted with the facts herein stated:
10
I am the custodian of billing records for ACCIDENT E INJURY CHIROPRACTIC.
Attached hereto are billing records from 09/12/2016 THRU 04/05/2017,
11 pertaining to NICOLE FRASER, DOB: 03/23/1970, SSN: N/A. These pages of
billing records are kept by ACCIDENT 5 INJURY CHIROPRACTIC, in the regular
12 course of business, and it was the regular course of business of ACCIDENT 5
INJURY CHIROPRACTIC, for an employee or representative of ACCIDENT E INJURY
13 CHIROPRACTIC, with knowledge of the act, event, condition, opinion, or
diagnoses recorded to make the record or to transmit information thereof to
be included in such record and the record was made at or near the time or
14
reasonably after the time that the service was provided.
15 The total cost of services for NICOLE FRASER received at this facility is
$14,325.00 (which may include a Records Summary Rsport fee of $150.00). The
16 total amount adjusted, payments, and write off is $2,500.00. The adjusted
total cost reflects billing and adjustment a5 of the date of this affidavit.
17 With the sole exception of fees related to the Records Summary Report fee of
$150.00, these services and charges were both reasonable and necessary in
connection with NICOLE FRASER treatment. The amount currently unpaid but
18
which AECIDENT E INJURY CHIROPRACTIC has a right to be paid after any
adjustments or credits is $11,325.00.
l9
I am familiar with the charges rendered in the vicinity in which they ware
2O incurred. I consider these charges to be reasonable and customary for all
like or similar services. The records attached hereto are the original or
21 exact duplicates of the original.
22
Affiant
23 swoan To AND SUBSCRIBED before me on the fl day of ffg {flag
-*
[-x'gggf,
J
2017.
4
24 r9? .
2
Nota Public, State of Taxaa
25 Notary's printed name and
commission expires:05—13~2019
LILvLouxss SALINAS l
Notow Pubilc, State DI Iexcs
{1‘
‘5
My Commissxon Expnes
May13‘2019 .1-
CAUSE NO. DC-17-10220
NICOLE E. DOWNIE-FRASER, IN THE DISTRICT COURT
Plaintiff,
v. 95th JUDICIAL DISTRICT
VALERIA SAINZ,
Defendant. DALLAS COUNTY, TEXAS
MEDICAL RECORDS AFFIDAVIT OF COLE WELLNESS CENTER
TO THE HONORABLE JUDGE OF SAID COURT:
Plaintiff Nicole Eugene Downie-Fraser files the attached Medical Records Affidavit
of Cole Wellness Center in accordance with 902(10) of the Texas Rules of Evidence.
Respectfully submitted,
/s/ Cameron Dean
____________________________________
Cameron Dean
State Bar No. 24082910
Ben Abbott & Associates, PLLC
1934 Pendleton Drive
Garland, TX 75041
(972) 263-5555
(817) 263-5555
(972) 682-7586 Facsimile
eService@benabbott.com
ATTORNEYS FOR PLAINTIFF
CERTIFICATE OF SERVICE
This is to certify that a true and correct copy of the foregoing document was served
on all counsel of record and/or pro se parties in accordance with Rules 21 and 21a of
the Texas Rules of Civil Procedure on this 27th day of September, 2017.
/s/ Cameron Dean
____________________________________
Cameron Dean
MEDICAL RECORDS AFFIDAVIT OF COLE WELLNESS CENTER Page 9
AFFIDAVIT OF MEDICAL RECORDS CUSTODIAN OF
STATE OF TEXAS
COUNTY 0F m ‘
COLE WELLNESS CENTER
§
§
§
Before me, the undersigned authority, personally appeared
being by me duly sworn, deposed as follows:
\M[
agm 7Who
1. "My name is SJ Q“ E flkw ,
Iam of sound mind, capable ofmaking this
affidavit, and personally acquainted with the facts herein stated.
2. I am the custodian 0f records of Cole Wellness Center. Attached to this affidavit are
records of the medical services that Cole Wellness Center provided to Nicole Eugene Downie—Fraser.
The attached records are a part of this affidavit.
3. The attached records are kept by Cole Wellness Center in the regular course of
business, and it was in the regular course of business of Cole Wellness Center for an employee or
representative of Cole Wellness Center, with knowledge of the act, event condition, opinion, or
diagnosis, recorded to make the record or to transmit information thereof to be included in such
record; and record was made at 0r near the time or reasonably soon thereafter‘ The records attached
to this affidavit are the original 0r exact duplicates of the on'ginal."
Affiant
$012 To and SUBSCRIB Dbeforeme bthl EQHmfg onthis lg
day of ‘
My Commission expires: '7
)aqlgl
MEDICAL RECORD AFFIDAVIT (253616)
COLE WELLNESS CENTER
CAUSE NO. DC-17-10220
NICOLE E. DOWNIE-FRASER, IN THE DISTRICT COURT
Plaintiff,
v. 95th JUDICIAL DISTRICT
VALERIA SAINZ,
Defendant. DALLAS COUNTY, TEXAS
COST OF SERVICES AFFIDAVIT OF COLE WELLNESS CENTER
TO THE HONORABLE JUDGE OF SAID COURT:
Plaintiff Nicole Eugene Downie-Fraser files the attached Cost of Services Affidavit
of Cole Wellness Center in accordance with section 18.001, et seq. of the Texas Civil
Practices & Remedies Code.
Respectfully submitted,
/s/ Cameron Dean
____________________________________
Cameron Dean
State Bar No. 24082910
Ben Abbott & Associates, PLLC
1934 Pendleton Drive
Garland, TX 75041
(972) 263-5555
(817) 263-5555
(972) 682-7586 Facsimile
eService@benabbott.com
ATTORNEYS FOR PLAINTIFF
CERTIFICATE OF SERVICE
This is to certify that a true and correct copy of the foregoing document was served
on all counsel of record and/or pro se parties in accordance with Rules 21 and 21a of
the Texas Rules of Civil Procedure on this 27th day of September, 2017.
/s/ Cameron Dean
____________________________________
Cameron Dean
COST OF SERVICES AFFIDAVIT OF COLE WELLNESS CENTER Page 3
AFFIDAVIT 0F COST 0F SERVICES BY CUSTODIAN OF
COLE WELLNESS CENTER
STATE OF TEXAS §
§
COUNTY 0F a
W
\ §
Before me, the undersigned authority, personally appeared \fal [_.,
who, being by me duly sworn deposed as follows:
"My name is NO . Iam of sound mind and capable of making this
affidavit, and personally acquainted with the facts herein stated.
Iam a custodian of records of Cole Wellness Center. Attached to this affidavit are records
that provide an itemized statement of the service and the charge f0 th t service that Cole
Wellness Center provided to Nicole Eugene Downie- Fraser on H2 I2; M
" lI
22’ l!
‘2 .
l
The attached records are a part of this affidavit.
The attached records are kept by Cole Wellness Center in the regular course of business,
and itwas the regular course of business of Cole Wellness Center for an employee or
representative of Cole Wellness Center, with knowledge 0f the service provided, to make the
record or to transmit information t0 be included in the record. The records were made in the
regular course of business at or near the time 0r reasonably soon after the time the service was
provided. The records are the ofiginal or a duplicate of the original.
The services provided were necessary and the amount charged for the services was
reasonable at the time and place that the services were provided.
The total amount paid for the services was $ O and the amount currently
a right to be paid after any adjustments or credits
quaid butfifi'ih Cole Wellness Center has
is
$
\[MD/ 00 " \J
Signature ofXfiant
SWORN O and SUBSCRIBED before me byVSZ’Q l E l/Q I’
M IQ 2 on this
i El day of
‘
Notary Pubc and for
Nomry Pu
’
the State Of
My C
COST OF SERVICE AFFIDAVIT
COLE WELLNESS CENTER
(253616)
“'1
WM
My Commissi n expires:
CAUSE NO. DC-17-10220
NICOLE E. DOWNIE-FRASER, IN THE DISTRICT COURT
Plaintiff,
v. 95th JUDICIAL DISTRICT
VALERIA SAINZ,
Defendant. DALLAS COUNTY, TEXAS
COST OF SERVICES AFFIDAVIT OF DFW PRESCRIPTIONS
TO THE HONORABLE JUDGE OF SAID COURT:
Plaintiff Nicole Eugene Downie-Fraser files the attached Cost of Services Affidavit
of DFW Prescriptions in accordance with section 18.001, et seq. of the Texas Civil
Practices & Remedies Code.
Respectfully submitted,
/s/ Cameron Dean
____________________________________
Cameron Dean
State Bar No. 24082910
Ben Abbott & Associates, PLLC
1934 Pendleton Drive
Garland, TX 75041
(972) 263-5555
(817) 263-5555
(972) 682-7586 Facsimile
eService@benabbott.com
ATTORNEYS FOR PLAINTIFF
CERTIFICATE OF SERVICE
This is to certify that a true and correct copy of the foregoing document was served
on all counsel of record and/or pro se parties in accordance with Rules 21 and 21a of
the Texas Rules of Civil Procedure on this 27th day of September, 2017.
/s/ Cameron Dean
____________________________________
Cameron Dean
COST OF SERVICES AFFIDAVIT OF DFW PRESCRIPTIONS Page 4
STATE OF TEXAS
COUNTY OJCUTQQW
Iam a
AFFIDAVIT
custodian
that provide: nu itcrnizcd
0F COST OF SERVICES BY CUSTODIAN OF
of records of
DFW PRESCRIPTIONS
§
g
Bcfove me, the undersigned authority, parsonally appcared
who. being by me duly swam deposed 41.5 follows.
“My namei
affidavit, 41nd personally
Harmspr"
acquainted with
DFW
Iarn
Prescriptions. Attached
Preview
FILED DALLAS COUNT 5/3/2018 4:41PM FELICIA PITRE DISTRICT CLER CAUSE NO. DC-1 7-1 0220 NICOLE E. DOWNlE-FRASER, IN THE DISTRICT COURT Plaintiffs, v. 95th JUDICIAL DISTRICT VALERIA SAINZ, Defendant. DALLAS COUNTY, TEXAS PLAINTIFFS' MOTION TO STRIKE CONTROVERTING AFFIDAVITS TO THE HONORABLE JUDGE OF SAID COURT: COMES NOW, Plaintiff, Nicole Downie—Fraser (hereinafter referred to as the “M“ or "MU, by and through undersigned attorney and files this Motion to Strike Controverting Affidavits and in support would show the Court the following: l. BACKGROUND AND FACTS 1. On September 27, 2017, Plaintiff filed Affidavit(s) Concerning Cost and Necessity of Services (hereinafter referred to as the “Cost Affidavit(s)”). That same date, a true and correct copy of the Cost Affidavit(s) were served on Defendant's attorney by e- service. A copy of the Cost Affidavit(s) and proof of service are attached to this motion as Exhibit "A" and are incorporated reference. in full by 2. On November 10, 201 7, Defendant Valeria Sainz (hereinafter referred to as the “Defendant") filed the Counter Affidavit of Dr. Michael F. Duffy, M.D. (hereinafter referred to as the “Counter Affidavit”), attacking the Cost Affidavit(s) from the following healthcare providers: Accident & Injury Chiropractic North Texas Open Air MRI Cole Wellness Center DFW Prescriptions Texas Interventional Pain Care, PA A copy of the Counter Affidavit is attached to this motion as Exhibit "B" and is incorporated in full by reference. PLAINTIFFs' MOTION To STRIKE CONTROVERTING AFFIDAVIT(s) Page 1 3. A Scheduling Order has been entered in this case. A copy of the Scheduling Order is attached to this motion as Exhibit "C" and is incorporated in full by reference. 4. The discovery deadline in this case ended or ends May 25, 201 8. 5. A jury trial in this cause is set for June 25, 2018. ll. AUTHORITIES AND ARGUMENTS 6. The public policy behind allowing a plaintiff to “prove up” his medicals through the cost affidavits sanctioned by the Texas Civil Practice and Remedies Code §1 8.001 isto expedite the time of trialwhile minimizing the cost to the plaintiff by mitigating the need for the plaintiff to proffer expert medical testimony. Turner v. Peril, 50 S.W.3d 742, 2001 Tex. App. LEXIS 51 11 (Tex. App.---Dallas, writ denied); see Posada v. Romero, 2007 Tex. App. LEXIS 3294 (Tex. App.---Fort Worth, no writ). 7. An opposing party may file a counter affidavit controverting the original affidavit. TEX. CIv. P. & REM. Code § 18.001(b). On November 10, 2017, Defendant's attorney filed a Counter Affidavit which controverts the Cost Affidavit(s) from the following healthcare provider(s): Accident & Injury Chiropractic North Texas Open Air MRI Cole Wellness Center DFW Prescriptions Texas Interventional Pain Care, PA See Ex. B. A. Dr. Michael F. Duffv. M.D. ls Not Qualified. bv Knowledge. Skill. Experience. Training. Education. or Other Expertise. to Testifv in Contravention of All or Part of Anv of the Matters Contained in the Initial Affidavit as Required bv Section 18.001(f). 8. Defendant's Counter Affidavit does not comply with Section 18.001(f), as amended. That provision states: "The counter affidavit must give reasonable notice of the basis on which the party filing itintends at trial to controvert the claim reflected by the initial affidavit and must be taken before a person authorized to administer oaths. The counter affidavit must be made by a person qualified, by knowledge, skill, experience, training, PLAINTIFFs' MOTION To STRIKE CONTROVERTING AFFIDAVIT(s) Page 2 education, or other expertise, to testify in contravention of allor part of any of the matters contained in the initialaffidavit." TEX. CIV. P. & REM. CODE § 18.001 (f). Movant would state that Dr. Michael F. Duffy, M.D., is not qualified by knowledge, skill, experience, training, education, or other expertise to testify in contravention of the matters contained in the medical services affidavits previously filed by the Plaintiff. Dr. Michael F. Duffy, M.D. has failed to show he is qualified to opine to the chiropractic care or the pain management care provided, and fails to state any reasonable basis on which to deny the care was necessary or the charges reasonable. Dr. Michael F. Duffy, M.D. has produced no evidence that he isan expert inchiropractic care or pain management. See EX. B. Thus, fails to meet the stringent requirements of section 18.001 , and the Counter Affidavit should be stricken and should not be permitted to provide testimonial evidence of any kind related to chiropractic care. B. Defendant's Counter Affidavit(s) Were Filed Late and Without Leave of Court. 9. Movant further, or in the alternative, asks the Court to strike the Counter Affidavit because the Defendant failed to timely filethe affidavit. Section 18.001 requires the party intending to controvert the original affidavit do so no later than 30 days after the day the party receives a copy of the affidavit and at least 14 days before the day on which evidence is first presented at the trial or the cause serve a copy of the controverting affidavit on each other party or the party’s attorney of record. SeeTEX. CIv. P. & REM. CODE § 18.001 (e)(1 )(A) & (B). With prior leave of the court, an opposing party may file a counter affidavit at any time before the commencement of evidence at trial. Id.at 18.001 (e)(2). In this case, the Defendant received Plaintiff's Cost Affidavit(s) on September 27, 201 7. See EX. A. The deadline for Defendant to serve a copy of the Counter Affidavit on the Plaintiff without leave of court would have been October 27, 201 7. See TEX. CIv. P. & REM. CODE § 18.001 (e)(1 )(A) & (B). Defendant's attorney filed the Counter Affidavit on November 10, 2017, without leave of the Court. See Ex. B. PLAINTIFFs' MOTION To STRIKE CONTROVERTING AFFIDAVIT(s) Page 3 Ill. PRAYER WHEREFORE Plaintiff, Nicole Downie-Fraser, prays that, after having opportunity to review the motion, response, the court's file, and hear the arguments of counsel, the Court strike the Counter Affidavit of Dr. Michael F. Duffy, M.D. filed herein by Defendant and for such other and further relief to which Plaintiff may be entitled. State Ben 1934 W Respectfully Cameron Bar Abbott Garland, Dean No. & Pendleton TX submitted, 2408291 0 Associates, 75041 Drive PLLC (972) 263-5555 (81 7) 263-5555 (972) 682-7586 Facsimile eService@benabbott.com ATTORNEY FOR PLAINTIFF(S)/MOVANT(S) PLAINTIFFs' MOTION To STRIKE CONTROVERTING AFFIDAVIT(s) Page 4 W CERTIFICATE OF CONFERENCE I, hereby certify, that Counsel for Defendant is opposed to this motion. Certified to the Day of May 3, 201 8. Cameron Dean Attorney for Plaintiff(s)/Movant(s) CERTIFICATE OF SERVICE This is to certify that a true and correct copy of the foregoing Plaintiffs' Motion to W Strike Controverting Affidavits, the attached Notice of Hearing, and the proposed Order were served on all attorneys of record and/or pro se parties in accordance with Rules 3rd 21 & 21 a of the Texas Rules of Civil Procedure on this day of May, 2018. Cameron Dean Attorney for Plaintiff(s)/Movant(s) PLAINTIFFs' MOTION To STRIKE CONTROVERTING AFFIDAVIT(s) Page 5 Exhibit “A” CAUSE NO. DC-17-10220 NICOLE E. DOWNIE-FRASER, IN THE DISTRICT COURT Plaintiff, v. 95th JUDICIAL DISTRICT VALERIA SAINZ, Defendant. DALLAS COUNTY, TEXAS MEDICAL RECORDS AFFIDAVIT OF ACC. & INJ. CHIRO (N. DALLAS) TO THE HONORABLE JUDGE OF SAID COURT: Plaintiff Nicole Eugene Downie-Fraser files the attached Medical Records Affidavit of Acc. & Inj. Chiro (N. Dallas) in accordance with 902(10) of the Texas Rules of Evidence. Respectfully submitted, /s/ Cameron Dean ____________________________________ Cameron Dean State Bar No. 24082910 Ben Abbott & Associates, PLLC 1934 Pendleton Drive Garland, TX 75041 (972) 263-5555 (817) 263-5555 (972) 682-7586 Facsimile eService@benabbott.com ATTORNEYS FOR PLAINTIFF CERTIFICATE OF SERVICE This is to certify that a true and correct copy of the foregoing document was served on all counsel of record and/or pro se parties in accordance with Rules 21 and 21a of the Texas Rules of Civil Procedure on this 27th day of September, 2017. /s/ Cameron Dean ____________________________________ Cameron Dean MEDICAL RECORDS AFFIDAVIT OF ACC. & INJ. CHIRO (N. DALLAS) Page 8 1 ) Cause No.: ) Plaintiff, ) ) IN THE DISTRICT COURT v5. ) } DALLAS COUNTY, TEXAS l' ) ) Defendant , ) ) AFFIDAVIT FOR THE AUTHEHTICATION OF BUSINESS RECORDS Before ma, the undersigned authority, on this day personally appeared DR. LOU SAUCEDO, JR., D.C.. who, being by ma duly sworn, deposed as follows: My name is DR. LOU SAUCEDO, JR., D.C., I am of sound mind, capable of making this affidavit, and personally acquainted with the facts herein stated: 10 I am the custodian of healthcare treatment records for AECIDENT 5 INJURY 11 Attached hereto are records from 09/12/2016 THRU 04/05/2017, CHIROPRACTIC. pertaining to NICOLE FRASER, DOB: 03/23/1970, SSN: N/A. These records are 12 kept by ACCIDENT a INJURY CHIROPRACTIC in the regular course of business, and it was the regular course of business of ACCIDENT E INJURY CHIROPRACTIC for l3 an employee or representative of ACCIDENT 5 INJURY CHIROPRACTIC, with knowledge of the act, event, condition, opinion, or diagnoses recorded to make the records or to transmit information thereof to be included in such 14 records; and the records were made at or near the time or reasonably after the time that the service waa provided. The records attached hereto are the 15 duplicates of the original. original or exact ) 16 17 Affiant ' 18 SWORN TO AND SUBSCRIBED before me on the [J7 day of Cf? ’ t I , 2017. l9 20 69m fifimwfmm NotaryJPublic, State of Texaa 21 Notary'a printed name and 22 commission expirea:05-13-2019 23 LHVLOUEESAUNAS E Nolow Puma. State of Texas My Commissmn Expues 24 Moy13.2019 25 CAUSE NO. DC-17-10220 NICOLE E. DOWNIE-FRASER, IN THE DISTRICT COURT Plaintiff, v. 95th JUDICIAL DISTRICT VALERIA SAINZ, Defendant. DALLAS COUNTY, TEXAS COST OF SERVICES AFFIDAVIT OF ACC. & INJ. CHIRO (N. DALLAS) TO THE HONORABLE JUDGE OF SAID COURT: Plaintiff Nicole Eugene Downie-Fraser files the attached Cost of Services Affidavit of Acc. & Inj. Chiro (N. Dallas) in accordance with section 18.001, et seq. of the Texas Civil Practices & Remedies Code. Respectfully submitted, /s/ Cameron Dean ____________________________________ Cameron Dean State Bar No. 24082910 Ben Abbott & Associates, PLLC 1934 Pendleton Drive Garland, TX 75041 (972) 263-5555 (817) 263-5555 (972) 682-7586 Facsimile eService@benabbott.com ATTORNEYS FOR PLAINTIFF CERTIFICATE OF SERVICE This is to certify that a true and correct copy of the foregoing document was served on all counsel of record and/or pro se parties in accordance with Rules 21 and 21a of the Texas Rules of Civil Procedure on this 27th day of September, 2017. /s/ Cameron Dean ____________________________________ Cameron Dean COST OF SERVICES AFFIDAVIT OF ACC. & INJ. CHIRO (N. DALLAS) Page 2 ) Cause No.: ) ) Plaintiff. ) 1N THE DISTRICT IN AND FOR COUNTY, ) TEXAS VS. ) ) ) ) Defendant ) AFFIDAVIT OF NECESSITY OF SERVICES/REASONABLENESS OF CHARGES Before me, the undersigned authority, on this day personally appeared DR. LOU SAUCEDO, JR., D.C., who, being by me duly sworn, deposed as follows: My name is DR. LOU SAUCEDO, JR., D.C., I am of sound mind, capable of making this affidavit, and personally acquainted with the facts herein stated: 10 I am the custodian of billing records for ACCIDENT E INJURY CHIROPRACTIC. Attached hereto are billing records from 09/12/2016 THRU 04/05/2017, 11 pertaining to NICOLE FRASER, DOB: 03/23/1970, SSN: N/A. These pages of billing records are kept by ACCIDENT 5 INJURY CHIROPRACTIC, in the regular 12 course of business, and it was the regular course of business of ACCIDENT 5 INJURY CHIROPRACTIC, for an employee or representative of ACCIDENT E INJURY 13 CHIROPRACTIC, with knowledge of the act, event, condition, opinion, or diagnoses recorded to make the record or to transmit information thereof to be included in such record and the record was made at or near the time or 14 reasonably after the time that the service was provided. 15 The total cost of services for NICOLE FRASER received at this facility is $14,325.00 (which may include a Records Summary Rsport fee of $150.00). The 16 total amount adjusted, payments, and write off is $2,500.00. The adjusted total cost reflects billing and adjustment a5 of the date of this affidavit. 17 With the sole exception of fees related to the Records Summary Report fee of $150.00, these services and charges were both reasonable and necessary in connection with NICOLE FRASER treatment. The amount currently unpaid but 18 which AECIDENT E INJURY CHIROPRACTIC has a right to be paid after any adjustments or credits is $11,325.00. l9 I am familiar with the charges rendered in the vicinity in which they ware 2O incurred. I consider these charges to be reasonable and customary for all like or similar services. The records attached hereto are the original or 21 exact duplicates of the original. 22 Affiant 23 swoan To AND SUBSCRIBED before me on the fl day of ffg {flag -* [-x'gggf, J 2017. 4 24 r9? . 2 Nota Public, State of Taxaa 25 Notary's printed name and commission expires:05—13~2019 LILvLouxss SALINAS l Notow Pubilc, State DI Iexcs {1‘ ‘5 My Commissxon Expnes May13‘2019 .1- CAUSE NO. DC-17-10220 NICOLE E. DOWNIE-FRASER, IN THE DISTRICT COURT Plaintiff, v. 95th JUDICIAL DISTRICT VALERIA SAINZ, Defendant. DALLAS COUNTY, TEXAS MEDICAL RECORDS AFFIDAVIT OF COLE WELLNESS CENTER TO THE HONORABLE JUDGE OF SAID COURT: Plaintiff Nicole Eugene Downie-Fraser files the attached Medical Records Affidavit of Cole Wellness Center in accordance with 902(10) of the Texas Rules of Evidence. Respectfully submitted, /s/ Cameron Dean ____________________________________ Cameron Dean State Bar No. 24082910 Ben Abbott & Associates, PLLC 1934 Pendleton Drive Garland, TX 75041 (972) 263-5555 (817) 263-5555 (972) 682-7586 Facsimile eService@benabbott.com ATTORNEYS FOR PLAINTIFF CERTIFICATE OF SERVICE This is to certify that a true and correct copy of the foregoing document was served on all counsel of record and/or pro se parties in accordance with Rules 21 and 21a of the Texas Rules of Civil Procedure on this 27th day of September, 2017. /s/ Cameron Dean ____________________________________ Cameron Dean MEDICAL RECORDS AFFIDAVIT OF COLE WELLNESS CENTER Page 9 AFFIDAVIT OF MEDICAL RECORDS CUSTODIAN OF STATE OF TEXAS COUNTY 0F m ‘ COLE WELLNESS CENTER § § § Before me, the undersigned authority, personally appeared being by me duly sworn, deposed as follows: \M[ agm 7Who 1. "My name is SJ Q“ E flkw , Iam of sound mind, capable ofmaking this affidavit, and personally acquainted with the facts herein stated. 2. I am the custodian 0f records of Cole Wellness Center. Attached to this affidavit are records of the medical services that Cole Wellness Center provided to Nicole Eugene Downie—Fraser. The attached records are a part of this affidavit. 3. The attached records are kept by Cole Wellness Center in the regular course of business, and it was in the regular course of business of Cole Wellness Center for an employee or representative of Cole Wellness Center, with knowledge of the act, event condition, opinion, or diagnosis, recorded to make the record or to transmit information thereof to be included in such record; and record was made at 0r near the time or reasonably soon thereafter‘ The records attached to this affidavit are the original 0r exact duplicates of the on'ginal." Affiant $012 To and SUBSCRIB Dbeforeme bthl EQHmfg onthis lg day of ‘ My Commission expires: '7 )aqlgl MEDICAL RECORD AFFIDAVIT (253616) COLE WELLNESS CENTER CAUSE NO. DC-17-10220 NICOLE E. DOWNIE-FRASER, IN THE DISTRICT COURT Plaintiff, v. 95th JUDICIAL DISTRICT VALERIA SAINZ, Defendant. DALLAS COUNTY, TEXAS COST OF SERVICES AFFIDAVIT OF COLE WELLNESS CENTER TO THE HONORABLE JUDGE OF SAID COURT: Plaintiff Nicole Eugene Downie-Fraser files the attached Cost of Services Affidavit of Cole Wellness Center in accordance with section 18.001, et seq. of the Texas Civil Practices & Remedies Code. Respectfully submitted, /s/ Cameron Dean ____________________________________ Cameron Dean State Bar No. 24082910 Ben Abbott & Associates, PLLC 1934 Pendleton Drive Garland, TX 75041 (972) 263-5555 (817) 263-5555 (972) 682-7586 Facsimile eService@benabbott.com ATTORNEYS FOR PLAINTIFF CERTIFICATE OF SERVICE This is to certify that a true and correct copy of the foregoing document was served on all counsel of record and/or pro se parties in accordance with Rules 21 and 21a of the Texas Rules of Civil Procedure on this 27th day of September, 2017. /s/ Cameron Dean ____________________________________ Cameron Dean COST OF SERVICES AFFIDAVIT OF COLE WELLNESS CENTER Page 3 AFFIDAVIT 0F COST 0F SERVICES BY CUSTODIAN OF COLE WELLNESS CENTER STATE OF TEXAS § § COUNTY 0F a W \ § Before me, the undersigned authority, personally appeared \fal [_., who, being by me duly sworn deposed as follows: "My name is NO . Iam of sound mind and capable of making this affidavit, and personally acquainted with the facts herein stated. Iam a custodian of records of Cole Wellness Center. Attached to this affidavit are records that provide an itemized statement of the service and the charge f0 th t service that Cole Wellness Center provided to Nicole Eugene Downie- Fraser on H2 I2; M " lI 22’ l! ‘2 . l The attached records are a part of this affidavit. The attached records are kept by Cole Wellness Center in the regular course of business, and itwas the regular course of business of Cole Wellness Center for an employee or representative of Cole Wellness Center, with knowledge 0f the service provided, to make the record or to transmit information t0 be included in the record. The records were made in the regular course of business at or near the time 0r reasonably soon after the time the service was provided. The records are the ofiginal or a duplicate of the original. The services provided were necessary and the amount charged for the services was reasonable at the time and place that the services were provided. The total amount paid for the services was $ O and the amount currently a right to be paid after any adjustments or credits quaid butfifi'ih Cole Wellness Center has is $ \[MD/ 00 " \J Signature ofXfiant SWORN O and SUBSCRIBED before me byVSZ’Q l E l/Q I’ M IQ 2 on this i El day of ‘ Notary Pubc and for Nomry Pu ’ the State Of My C COST OF SERVICE AFFIDAVIT COLE WELLNESS CENTER (253616) “'1 WM My Commissi n expires: CAUSE NO. DC-17-10220 NICOLE E. DOWNIE-FRASER, IN THE DISTRICT COURT Plaintiff, v. 95th JUDICIAL DISTRICT VALERIA SAINZ, Defendant. DALLAS COUNTY, TEXAS COST OF SERVICES AFFIDAVIT OF DFW PRESCRIPTIONS TO THE HONORABLE JUDGE OF SAID COURT: Plaintiff Nicole Eugene Downie-Fraser files the attached Cost of Services Affidavit of DFW Prescriptions in accordance with section 18.001, et seq. of the Texas Civil Practices & Remedies Code. Respectfully submitted, /s/ Cameron Dean ____________________________________ Cameron Dean State Bar No. 24082910 Ben Abbott & Associates, PLLC 1934 Pendleton Drive Garland, TX 75041 (972) 263-5555 (817) 263-5555 (972) 682-7586 Facsimile eService@benabbott.com ATTORNEYS FOR PLAINTIFF CERTIFICATE OF SERVICE This is to certify that a true and correct copy of the foregoing document was served on all counsel of record and/or pro se parties in accordance with Rules 21 and 21a of the Texas Rules of Civil Procedure on this 27th day of September, 2017. /s/ Cameron Dean ____________________________________ Cameron Dean COST OF SERVICES AFFIDAVIT OF DFW PRESCRIPTIONS Page 4 STATE OF TEXAS COUNTY OJCUTQQW Iam a AFFIDAVIT custodian that provide: nu itcrnizcd 0F COST OF SERVICES BY CUSTODIAN OF of records of DFW PRESCRIPTIONS § g Bcfove me, the undersigned authority, parsonally appcared who. being by me duly swam deposed 41.5 follows. “My namei affidavit, 41nd personally Harmspr" acquainted with DFW Iarn Prescriptions. Attached