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FILED
DALLAS COUNTY
12/27/2019 3:55PM
FELICIA PITRE
DISTRICT CLERK
Rhonda Burks
CAUSE NO. DC-18-18288
SHETIYA N. HARRIS, INDIVIDUALLY § 1N THE DISTRICT COURT
AND AS NEXT FRIEND OF J.C. (MINOR) §
AND S.C. (MINOR)
§
§
V. §
44th JUDICIAL DISTRICT
§
MEREDITH WAKEFIELD § DALLAS COUNTY, TEXAS
§
DEFENDANT’S RESPONSE TO PLAINTIFFS’ MOTION TO STRIKE
DEFENDANT’S COUNTER—AFFIDAVITS
TO THE HONORABLE JUDGE OF SAID COURT:
COMES NOW, Defendant Meredith Wakefield, and file this his Response t0 Plaintifls’
Motion t0 Strike Counter-Afiidavits, and would respectfully show the Court as follows:
I. BACKGROUND
On July 30, 2019, Plaintiff Shetiya Harris filed billing and medical record affidavits
regarding Plaintiff’s medical and diagnostic treatment following a motor vehicle accident that
occurred 0n March 31, 2017. Though affidavits were later filed as to both Minor-Plaintiffs, such
are not addressed in Plaintiff’ s motion nor Defendant’s response herein.
On August 28, 2019, Defendant filed with this Court, counter-affidavits of (1) Roger
Clifford, D.C., D.A.C.N.B.; and (2) Dr. Don M. West, M.D., in accordance with TEXAS CIVIL
PRACTICE & REMEDIES CODE §18.00 1 ,
controverting the reasonableness and necessity 0f treatment
and the expenses resulting therefrom.
Plaintiff has filed two separate motions to strike as t0 both 0f the aforementioned defense
experts. Defendant responds to both of the motions in this response herein.
DEFENDANT’S RESPONSE TO PLAINTIFF’S MOTION TO STRIKE COUNTER—AFFIDAVITS PAGE 1
1000 1 - 1 4520/rholcomb
II. ARGUMENTS & AUTHORITIES
Plaintiff contends that Defendant’s counter-affidavits should be stricken as they fail t0
comply with TEX. CIV. PRAC. & REM. CODE § 18.001 (f)as follows:
o Regarding the counter-affidavit by Dr. Clifford, Plaintiff alleges he is not qualified by
knowledge, skill, experience, training, education, or other expertise t0 testify in
contravention 0f the matters contained in the medical services affidavits previously
filed by the Plaintiff. Plaintiff further alleges Dr. Clifford’s counter—affidavit fails t0
state with any specificity any reasonable basis for which expenses were 0r were not
reasonable as well as What basis was used to make such calculations.
o Regarding the counter-affidavit by Dr. Don West, Plaintiff alleges the exact same
complaints as those delineated for Dr. Clifford.
Defendant addresses each of Plaintiff’s claims individually below and argues Plaintiff’s
erroneous contentions.
1. Dr. Roger Clifford, D.C. is qualified t0 opine and testifv as to the necessitv 0f
chiropractic care provided and the reasonableness 0f costs 0f services provided
t0 Plaintiff, in accordance with S 18.001“), and Dr. Clifford’s counter-affidavit
provided a reasonable notice 0f the basis 0f his opinions.
Plaintiff generally asserts Dr. Clifford failed to establish his qualifications to testify as to
chiropractic care provided t0 Plaintiff and failed t0 state any reasonable basis 0n Which to deny the
care was necessary 0r the charges reasonable. T0 the contrary, Dr. Clifford’s controverting
affidavit identifies his medical credentials, With an attached curriculum Vitae, specifically
referencing the fact he has, “treated numerous patients in the field 0f chiropractic care, specifically
relating to pain management and independent medical review and exams for 25 years.” A medical
expert is competent t0 testify if he has practical knowledge of What is usually and customarily
DEFENDANT’S RESPONSE TO PLAINTIFF’S MOTION TO STRIKE COUNTER—AFFIDAVITS PAGE 2
1000 1 - 1 4520/rholcomb
done by a practitioner under circumstances similar to those encountered by Plaintiff’s physicians.
Foster v. Richardson, 303 S.W.3d 833, 844 (Tex.App.––Fort Worth 2009, no pet.). Dr. Clifford
referenced the lack of objective evidence within chiropractic records to justify many of the
chiropractic services rendered, based on the standard of care, which Dr. Clifford is familiar with
in his practice. Dr. Clifford’s expert report also references his treatment of thousands of patients
that include patients following motor vehicle accidents. Additionally, Dr. Clifford’s affidavit
asserts his certification as to impairment ratings and that he has, “performed numerous record
reviews and served as an expert witness for both plaintiffs and defendants in Dallas County and
throughout the state of Texas.” Dr. Clifford opined only on chiropractic services and chiropractic
referrals, which clearly fall within his area of expertise. Plaintiff fails to provide a compelling or
substantive argument as to how such knowledge, skill, and experience does not meet the standard
established under TEX. CIV. PRAC. & REM. CODE §18.001(f).
Plaintiff also asserts Dr. Clifford did not establish his qualifications to opine as to costs for
services provided to Plaintiff. TEX. CIV. PRAC. & REM. CODE §18.001 focuses on whether the
charges are “reasonable.” The controverting affidavit by Dr. Clifford states he is, “familiar with
reasonable and customary charges for evaluation and treatment thereof in Dallas County and
throughout the state of Texas.” Dr. Clifford’s report establishes that he is a practicing, full-time
chiropractor in Dallas and is knowledgeable and familiar with the customary charges for
chiropractic and chiropractic referred services. Dr. Clifford delineated his charges for the services
he controverts and referenced his status as a preferred provider for almost all of the major health
insurance plans, as well as his work providing Expert Peer Reviews. This clearly provides the basis
of his expertise, and certainly establishes the “reasonable notice of the basis” of his opinions.
DEFENDANT’S RESPONSE TO PLAINTIFF’S MOTION TO STRIKE COUNTER-AFFIDAVITS PAGE 3
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Additionally, Exhibit “D” to Dr. Clifford’s counter-affidavit includes the professional medical
materials referenced Within his counter-affidavit.
2. Dr. Don West, M.D. is qualified to opine and testifv as t0 the necessitv 0f
chiropractic care provided and the reasonableness 0f costs 0f services provided
t0 Plaintiff, in accordance with S 18.001“), and Dr. Clifford’s counter-affidavit
provided a reasonable notice 0f the basis 0f his opinions.
Plaintiff generally asserts Dr. West failed to establish his qualifications to testify as to
chiropractic care provided t0 Plaintiff and failed t0 state any reasonable basis on which t0 deny
the care was necessary or the charges reasonable. Plaintiff further asserts Don M. West, M.D. has
produced no evidence that he is an expert in chiropractic care or emergency care. While he did
provide a summary 0f all medical treatment received by Plaintiff after review of records, which
included chiropractic treatment, Dr. West did not opine as to chiropractic care. Rather, Dr. West,
as a Diplomate 0f the American Board of Physical Medicine and Rehabilitation, provided opinions
strictly within the realm 0f treatment rendered by medical doctors consistent with treatment Dr.
West is familiar with.
Further, Dr. West’s controverting affidavit identifies his medical credentials, With an
attached curriculum Vitae, specifically referencing the fact he is,
“a licensed physician and [has]
been a Diplomate 0f the American Board 0f Physical Medicine & Rehabilitation since 1992.”
Additionally, Dr. West’s affidavit addresses that he is, “board certified in Physical Medicine &
Rehabilitation with [his] primary specialty in Pain Management/Rehab” and he has practiced in
the North Texas region from 1986 t0 present. Dr. West treats patients who have sustained injuries
in motor vehicle accidents t0 include determining reasonable charges for all types of medical
procedures and services including, but not limited to, those procedures and services of Plaintiff s
post-accident treatment; thus Dr. West’s counter-affidavit is appropriate pursuant t0 the
DEFENDANT’S RESPONSE TO PLAINTIFF’S MOTION TO STRIKE COUNTER—AFFIDAVITS PAGE 4
1000 1 - 1 4520/rholcomb
requirements of TEX. CIV. PRAC. & REM. CODE §18.001(f). A medical expert is competent to testify
if he has practical knowledge of what is usually and customarily done by a practitioner under
circumstances similar to those encountered by Plaintiff’s physicians. Foster v. Richardson, 303
S.W.3d 833, 844 (Tex.App.––Fort Worth 2009, no pet.). Dr. West delineated alternative and less-
invasive treatment options, such as medication and passive physical therapy, rather than a course
of invasive interventional pain management procedures in the form of the lumbar medial branch
blocks and the proposed lumbar facet radio-frequency rhizotomy procedures by Plaintiff’s
providers Drs. Chun and Choi. Plaintiff fails to provide a compelling or substantive argument as
to how such knowledge, skill, and experience does not meet the standard established under TEX.
CIV. PRAC. & REM. CODE §18.001(f).
Plaintiff also asserts Dr. We did not establish his qualifications to opine as to costs for services
provided to Plaintiff. As addressed above, TEX. CIV. PRAC. & REM. CODE §18.001 focuses on
whether the charges are “reasonable.” The controverting affidavit by Dr. West states the following:
“My opinions regarding costs/charges are based on my more than 30 years of
experience in the direct care of thousands of patients with similar musculoskeletal
pain syndromes as the result of motor vehicle accidents in the DFW area. During
this time, I have performed thousands of sets of interventional pain management
procedures including trigger point injections, facet and other joint injections and
epidural steroid injections. Because of this, I am fully knowledgeable regarding the
usual costs of the full array of interventional pain management procedures.
Furthermore, I have owned and operated an ambulatory surgery center dedicated
exclusively to interventional pain management procedures and am thus fully
knowledgeable regarding costs for the services rendered at these types of clinics,
including facility fees and anesthesia services. I am fully knowledgeable regarding
office charges based not only on my own charges but also on my knowledge of the
charges of colleagues and associates.”
This clearly provides the basis of his expertise and qualifications to opine as to costs of services,
and thoroughly establishes the “reasonable notice of the basis” of his opinions.
DEFENDANT’S RESPONSE TO PLAINTIFF’S MOTION TO STRIKE COUNTER-AFFIDAVITS PAGE 5
10001-14520/rholcomb
III. PRAYER
In consideration of the foregoing arguments, the counter-affidavits of Dr. Clifford and Dr.
West should not be stricken in any part, as both satisfy the requirements of Texas Civil Practice &
Remedies Code § 18.001. The counter-affidavits appropriately establish the qualifications of the
affiants and provide reasonable notice of the basis of the arguments in contravention of Plaintiff’s
medical and billing record affidavits. Defendant requests the Court deny Plaintiff’s Motion to
Strike Defendant’s Counter-Affidavits as to both expert counter-affidavits.
DEFENDANT’S RESPONSE TO PLAINTIFF’S MOTION TO STRIKE COUNTER-AFFIDAVITS PAGE 6
10001-14520/rholcomb
Respectfully submitted,
THE LECRONE LAW FIRM, PC
Wall Street Plaza
123 North Crockett Street, Suite 200
Sherman, TX 75090
TEL: 903.813.1900
FAX: 903.813.1944
By: /s/ Rfiona’a Q). ?{okomE
ADAM B. LECRONE
State Bar N0. 00786447
JOHN W. BREEZE
State Bar N0. 00796248
MARK A. TEAGUE
State Bar No. 24003039
HILLARY LUCKETT CLARK
State Bar N0. 24077714
MICHAEL S. KELLY
State Bar N0. 24055767
TREVOR J. BEATY
State Bar No. 24091220
ALEXANDRIA K. CARPENTER
State Bar N0. 24101596
RHONDA D. HOLCOMB
State Bar N0. 24099024
BLAISE S. WILCOTT
State Bar No. 24086481
ESERVICE@LECRONELAW.COM
ATTORNEYS FOR DEFENDANTS
CERTIFICATE OF SERVICE
This is to cettify that on the 27th day of December, 2019 the foregoing instrument was
forwarded to the following counsel 0f record:
James Bauguss III
Ben Abbott & Associates, PLLC
1934 Pendleton Drive Garland, TX 75041
(972) 682-7586 Facsimile
eSerVice(anenabbott.com
/s/ RfionJa Q). Hol'comE
RHONDA D. HOLCOMB
DEFENDANT’S RESPONSE TO PLAINTIFF’S MOTION TO STRIKE COUNTER-AFFIDAVITS PAGE 7
10001-14520/rholcomb
Preview
FILED DALLAS COUNTY 12/27/2019 3:55PM FELICIA PITRE DISTRICT CLERK Rhonda Burks CAUSE NO. DC-18-18288 SHETIYA N. HARRIS, INDIVIDUALLY § 1N THE DISTRICT COURT AND AS NEXT FRIEND OF J.C. (MINOR) § AND S.C. (MINOR) § § V. § 44th JUDICIAL DISTRICT § MEREDITH WAKEFIELD § DALLAS COUNTY, TEXAS § DEFENDANT’S RESPONSE TO PLAINTIFFS’ MOTION TO STRIKE DEFENDANT’S COUNTER—AFFIDAVITS TO THE HONORABLE JUDGE OF SAID COURT: COMES NOW, Defendant Meredith Wakefield, and file this his Response t0 Plaintifls’ Motion t0 Strike Counter-Afiidavits, and would respectfully show the Court as follows: I. BACKGROUND On July 30, 2019, Plaintiff Shetiya Harris filed billing and medical record affidavits regarding Plaintiff’s medical and diagnostic treatment following a motor vehicle accident that occurred 0n March 31, 2017. Though affidavits were later filed as to both Minor-Plaintiffs, such are not addressed in Plaintiff’ s motion nor Defendant’s response herein. On August 28, 2019, Defendant filed with this Court, counter-affidavits of (1) Roger Clifford, D.C., D.A.C.N.B.; and (2) Dr. Don M. West, M.D., in accordance with TEXAS CIVIL PRACTICE & REMEDIES CODE §18.00 1 , controverting the reasonableness and necessity 0f treatment and the expenses resulting therefrom. Plaintiff has filed two separate motions to strike as t0 both 0f the aforementioned defense experts. Defendant responds to both of the motions in this response herein. DEFENDANT’S RESPONSE TO PLAINTIFF’S MOTION TO STRIKE COUNTER—AFFIDAVITS PAGE 1 1000 1 - 1 4520/rholcomb II. ARGUMENTS & AUTHORITIES Plaintiff contends that Defendant’s counter-affidavits should be stricken as they fail t0 comply with TEX. CIV. PRAC. & REM. CODE § 18.001 (f)as follows: o Regarding the counter-affidavit by Dr. Clifford, Plaintiff alleges he is not qualified by knowledge, skill, experience, training, education, or other expertise t0 testify in contravention 0f the matters contained in the medical services affidavits previously filed by the Plaintiff. Plaintiff further alleges Dr. Clifford’s counter—affidavit fails t0 state with any specificity any reasonable basis for which expenses were 0r were not reasonable as well as What basis was used to make such calculations. o Regarding the counter-affidavit by Dr. Don West, Plaintiff alleges the exact same complaints as those delineated for Dr. Clifford. Defendant addresses each of Plaintiff’s claims individually below and argues Plaintiff’s erroneous contentions. 1. Dr. Roger Clifford, D.C. is qualified t0 opine and testifv as to the necessitv 0f chiropractic care provided and the reasonableness 0f costs 0f services provided t0 Plaintiff, in accordance with S 18.001“), and Dr. Clifford’s counter-affidavit provided a reasonable notice 0f the basis 0f his opinions. Plaintiff generally asserts Dr. Clifford failed to establish his qualifications to testify as to chiropractic care provided t0 Plaintiff and failed t0 state any reasonable basis 0n Which to deny the care was necessary 0r the charges reasonable. T0 the contrary, Dr. Clifford’s controverting affidavit identifies his medical credentials, With an attached curriculum Vitae, specifically referencing the fact he has, “treated numerous patients in the field 0f chiropractic care, specifically relating to pain management and independent medical review and exams for 25 years.” A medical expert is competent t0 testify if he has practical knowledge of What is usually and customarily DEFENDANT’S RESPONSE TO PLAINTIFF’S MOTION TO STRIKE COUNTER—AFFIDAVITS PAGE 2 1000 1 - 1 4520/rholcomb done by a practitioner under circumstances similar to those encountered by Plaintiff’s physicians. Foster v. Richardson, 303 S.W.3d 833, 844 (Tex.App.––Fort Worth 2009, no pet.). Dr. Clifford referenced the lack of objective evidence within chiropractic records to justify many of the chiropractic services rendered, based on the standard of care, which Dr. Clifford is familiar with in his practice. Dr. Clifford’s expert report also references his treatment of thousands of patients that include patients following motor vehicle accidents. Additionally, Dr. Clifford’s affidavit asserts his certification as to impairment ratings and that he has, “performed numerous record reviews and served as an expert witness for both plaintiffs and defendants in Dallas County and throughout the state of Texas.” Dr. Clifford opined only on chiropractic services and chiropractic referrals, which clearly fall within his area of expertise. Plaintiff fails to provide a compelling or substantive argument as to how such knowledge, skill, and experience does not meet the standard established under TEX. CIV. PRAC. & REM. CODE §18.001(f). Plaintiff also asserts Dr. Clifford did not establish his qualifications to opine as to costs for services provided to Plaintiff. TEX. CIV. PRAC. & REM. CODE §18.001 focuses on whether the charges are “reasonable.” The controverting affidavit by Dr. Clifford states he is, “familiar with reasonable and customary charges for evaluation and treatment thereof in Dallas County and throughout the state of Texas.” Dr. Clifford’s report establishes that he is a practicing, full-time chiropractor in Dallas and is knowledgeable and familiar with the customary charges for chiropractic and chiropractic referred services. Dr. Clifford delineated his charges for the services he controverts and referenced his status as a preferred provider for almost all of the major health insurance plans, as well as his work providing Expert Peer Reviews. This clearly provides the basis of his expertise, and certainly establishes the “reasonable notice of the basis” of his opinions. DEFENDANT’S RESPONSE TO PLAINTIFF’S MOTION TO STRIKE COUNTER-AFFIDAVITS PAGE 3 10001-14520/rholcomb Additionally, Exhibit “D” to Dr. Clifford’s counter-affidavit includes the professional medical materials referenced Within his counter-affidavit. 2. Dr. Don West, M.D. is qualified to opine and testifv as t0 the necessitv 0f chiropractic care provided and the reasonableness 0f costs 0f services provided t0 Plaintiff, in accordance with S 18.001“), and Dr. Clifford’s counter-affidavit provided a reasonable notice 0f the basis 0f his opinions. Plaintiff generally asserts Dr. West failed to establish his qualifications to testify as to chiropractic care provided t0 Plaintiff and failed t0 state any reasonable basis on which t0 deny the care was necessary or the charges reasonable. Plaintiff further asserts Don M. West, M.D. has produced no evidence that he is an expert in chiropractic care or emergency care. While he did provide a summary 0f all medical treatment received by Plaintiff after review of records, which included chiropractic treatment, Dr. West did not opine as to chiropractic care. Rather, Dr. West, as a Diplomate 0f the American Board of Physical Medicine and Rehabilitation, provided opinions strictly within the realm 0f treatment rendered by medical doctors consistent with treatment Dr. West is familiar with. Further, Dr. West’s controverting affidavit identifies his medical credentials, With an attached curriculum Vitae, specifically referencing the fact he is, “a licensed physician and [has] been a Diplomate 0f the American Board 0f Physical Medicine & Rehabilitation since 1992.” Additionally, Dr. West’s affidavit addresses that he is, “board certified in Physical Medicine & Rehabilitation with [his] primary specialty in Pain Management/Rehab” and he has practiced in the North Texas region from 1986 t0 present. Dr. West treats patients who have sustained injuries in motor vehicle accidents t0 include determining reasonable charges for all types of medical procedures and services including, but not limited to, those procedures and services of Plaintiff s post-accident treatment; thus Dr. West’s counter-affidavit is appropriate pursuant t0 the DEFENDANT’S RESPONSE TO PLAINTIFF’S MOTION TO STRIKE COUNTER—AFFIDAVITS PAGE 4 1000 1 - 1 4520/rholcomb requirements of TEX. CIV. PRAC. & REM. CODE §18.001(f). A medical expert is competent to testify if he has practical knowledge of what is usually and customarily done by a practitioner under circumstances similar to those encountered by Plaintiff’s physicians. Foster v. Richardson, 303 S.W.3d 833, 844 (Tex.App.––Fort Worth 2009, no pet.). Dr. West delineated alternative and less- invasive treatment options, such as medication and passive physical therapy, rather than a course of invasive interventional pain management procedures in the form of the lumbar medial branch blocks and the proposed lumbar facet radio-frequency rhizotomy procedures by Plaintiff’s providers Drs. Chun and Choi. Plaintiff fails to provide a compelling or substantive argument as to how such knowledge, skill, and experience does not meet the standard established under TEX. CIV. PRAC. & REM. CODE §18.001(f). Plaintiff also asserts Dr. We did not establish his qualifications to opine as to costs for services provided to Plaintiff. As addressed above, TEX. CIV. PRAC. & REM. CODE §18.001 focuses on whether the charges are “reasonable.” The controverting affidavit by Dr. West states the following: “My opinions regarding costs/charges are based on my more than 30 years of experience in the direct care of thousands of patients with similar musculoskeletal pain syndromes as the result of motor vehicle accidents in the DFW area. During this time, I have performed thousands of sets of interventional pain management procedures including trigger point injections, facet and other joint injections and epidural steroid injections. Because of this, I am fully knowledgeable regarding the usual costs of the full array of interventional pain management procedures. Furthermore, I have owned and operated an ambulatory surgery center dedicated exclusively to interventional pain management procedures and am thus fully knowledgeable regarding costs for the services rendered at these types of clinics, including facility fees and anesthesia services. I am fully knowledgeable regarding office charges based not only on my own charges but also on my knowledge of the charges of colleagues and associates.” This clearly provides the basis of his expertise and qualifications to opine as to costs of services, and thoroughly establishes the “reasonable notice of the basis” of his opinions. DEFENDANT’S RESPONSE TO PLAINTIFF’S MOTION TO STRIKE COUNTER-AFFIDAVITS PAGE 5 10001-14520/rholcomb III. PRAYER In consideration of the foregoing arguments, the counter-affidavits of Dr. Clifford and Dr. West should not be stricken in any part, as both satisfy the requirements of Texas Civil Practice & Remedies Code § 18.001. The counter-affidavits appropriately establish the qualifications of the affiants and provide reasonable notice of the basis of the arguments in contravention of Plaintiff’s medical and billing record affidavits. Defendant requests the Court deny Plaintiff’s Motion to Strike Defendant’s Counter-Affidavits as to both expert counter-affidavits. DEFENDANT’S RESPONSE TO PLAINTIFF’S MOTION TO STRIKE COUNTER-AFFIDAVITS PAGE 6 10001-14520/rholcomb Respectfully submitted, THE LECRONE LAW FIRM, PC Wall Street Plaza 123 North Crockett Street, Suite 200 Sherman, TX 75090 TEL: 903.813.1900 FAX: 903.813.1944 By: /s/ Rfiona’a Q). ?{okomE ADAM B. LECRONE State Bar N0. 00786447 JOHN W. BREEZE State Bar N0. 00796248 MARK A. TEAGUE State Bar No. 24003039 HILLARY LUCKETT CLARK State Bar N0. 24077714 MICHAEL S. KELLY State Bar N0. 24055767 TREVOR J. BEATY State Bar No. 24091220 ALEXANDRIA K. CARPENTER State Bar N0. 24101596 RHONDA D. HOLCOMB State Bar N0. 24099024 BLAISE S. WILCOTT State Bar No. 24086481 ESERVICE@LECRONELAW.COM ATTORNEYS FOR DEFENDANTS CERTIFICATE OF SERVICE This is to cettify that on the 27th day of December, 2019 the foregoing instrument was forwarded to the following counsel 0f record: James Bauguss III Ben Abbott & Associates, PLLC 1934 Pendleton Drive Garland, TX 75041 (972) 682-7586 Facsimile eSerVice(anenabbott.com /s/ RfionJa Q). Hol'comE RHONDA D. HOLCOMB DEFENDANT’S RESPONSE TO PLAINTIFF’S MOTION TO STRIKE COUNTER-AFFIDAVITS PAGE 7 10001-14520/rholcomb