Preview
ORIGINAL
CAUSE NO. C-6519-98-B
FILED
AT 9.00 ocrock AM
JON P. PATTERSON, D.C., et al, IN THE DISTRICT COURT OF
_ OCT 20 2010
Plaintiffs,
LAI
v. HIDALGO COUNBK
By.
ALLSTATE PROPERTY AND CASUALTY
INSURANCE COMPANY, et al
00 Un tn Ln Cn tin un ton en Lo
Defendants 93" JUDICIAL DISTRICT
DEFENDANT ALLSTATE PROPERTY AND CASUALTY INSURANCE
COMPANY’S MOTION TO QUASH PLAINTIFF’S OCTOBER 15, 2010
DISCOVERY REQUESTS, AND REQUEST FOR SANCTIONS
TO THE HONORABLE COURT:
Allstate Property and Casualty Insurance Company (“‘Allstate”) respectfully submits this
Motion to Quash Plaintiff's October 15, 2010 Discovery, and Request for Sanctions, and shows
the Court as follows:
Continuing his recent flurry of baseless pleadings in this matter, plaintiff's counsel has
now propounded equally baseless and harassing discovery, As this Court is aware, the class
certification and briefing on plaintiff's original class certification motion were completed more
than seven years ago, and this Court has already denied class certification. As discussed fully in
Allstate’s previously filed briefs, plaintiff's request to proceed with his Amended Class
Certification Motion should be denied. This Court granted plaintiff leave to file only one
pleading — i¢., a brief explaining why he should be allowed to proceed with his Amended
Motion. Ignoring this Court’s Order, plaintiff never filed any such pleading, but instead filed an
unauthorized merits class certification brief, as well as several other unauthorized and groundless
pleadings. Even worse, plaintiff's counsel has now propounded substantial discovery on Allstate
DEFENDANT ALLSTATE PROPERTY AND CASUALTY INSURANCE COMPANY’S MOTION TO QUASH PLAINTIFF'S
OCTOBER 15, 2010 DISCOVERY REQUESTS, AND REQUEST FOR SANCTIONS ~ PAGE Irelating to his improper Amended Class Certification Motion, see October 10, 2010 Discovery
Requests, attached as Exhibit A, even though plaintiff's counsel conceded seven years ago that
discovery was closed in this matter, and even though plaintiff's counsel has already filed his
unauthorized class certification merits brief — obviously not needing discovery to do so. Because
plaintiff should not be permitted to proceed with his Amended Motion at this late stage, and
because class discovery has long been closed, plaintiff's untimely and unauthorized discovery
requests should be quashed.
Further, this Court should impose sanctions on plaintiff's counsel. Plaintiff's counsel has
continued to flout this Court’s rulings and the relevant procedural rules by filing baseless
pleadings, and now, yet another round of unauthorized and wholly improper discovery. These
filings do nothing to advance this case, but merely unnecessarily take up this Court’s time and
energy for no reason. Accordingly, a deterrent in the form of sanctions is clearly warranted here.
BACKGROUND
This Court is no doubt familiar with the background of this litigation in light of all the
pleadings plaintiff has filed recently, and Allstate’s responses thereto. Nonetheless, for the
Court’s convenience, and to further illustrate just how egregiously improper plaintiff's latest
discovery requests are, Allstate sets forth the relevant procedural history below.
The original named plaintiff, Jon Patterson, a chiropractor, filed this action in the District
Court of Hidalgo County, Texas. The last operative petition in this case was the Twelfth
Amended Petition, filed January 1, 2004, in which Patterson purported to represent a “physician
class” pursuing claims of defamation/tortious interference against Allstate based on Allstate’s
alleged improper denial of plaintiff's claims for insurance benefits submitted to Allstate for
medical treatment allegedly provided to Allstate’s insureds. (See Twelfth Amended Petition,
DEFENDANT ALLSTATE PROPERTY AND CASUALTY INSURANCE COMPANY’S MOTION TO QUASH PLAINTIFF'S
OCTOBER 15, 2010 DISCOVERY REQUESTS, AND REQUEST FOR SANCTIONS — PAGE 2Bo
17-20, 26, 28-36.) Plaintiff alleged that insurers such as Allstate engage in improper “bill-
chopping” through use of peer reviews and other means, such as “computer data bases from
which the companies can extract [data regarding other doctors’ bills].” (Jd. 4 17-20.)
The class certification briefing and hearing as to Patterson’s original “physician class”
and his defamation/tortious interference theory against Allstate were completed more than seven
years ago, on August 8, 2003. Significantly, even before the August 8, 2003 class certification
hearing—at an Apri! 11, 2003 hearing on a discovery matter—plaintiff's counsel represented that
his submission in support of his class certification motion was complete and that he would rely
solely on that submission at the class certification hearing. In addition, at the class certification
hearing, both sides concluded their presentation of evidence, and, as was clear from the
proceedings before this Court, the class-related discovery and evidence were fully closed.
Over six years after the fact, on April 28, 2009, plaintiff's counsel filed an additional
class certification motion, with a new putative class representative (not Dr. Patterson), that
referred to a newly amended petition, though that petition was never served on Allstate (and has
apparently never been filed). Contrary to plaintiff's contention, nothing in this Motion stated it
was meant to replace the original Motion. And certainly there was no attempt by plaintiff to
withdraw the prior pending Motion.
Plaintiff's counsel. in this additional pleading, purported to add Rosendo Beltran, an
Allstate insured, as a representative of a class, which included Allstate insureds/patients, based
on Allstate’s purported wrongful denial, using a computerized medical bill review system, of
claims for personal injury protection (“PIP”) and medical payments (“med pay”) coverage. In
addition, plaintiff purported to represent the following class:
DEFENDANT ALLSTATE PROPERTY AND CASUALTY INSURANCE COMPANY'S MOTION TO QUASH PLAINTIFF'S.
OCTOBER 15, 2010 DISCOVERY REQUESTS, AND REQUEST FOR SANCTIONS — PAGE 3All covered Texas persons, their third party beneficiaries and
assignees (e.g., licensed medical providers), who, during the period
from October 4, 1994, to date of final judgment: (a) submitted first-
party claims to Allstate pursuant to automobile policy's medical
payment/personal injury protection ("PIP") coverage (collectively,
"Medpay" claims for payment of medical expenses), (b) had their
claim submitted to computer review, (c) received or were tendered
partial payment but in an amount less than the submitted medical
expenses and (d) received or were tendered an amount less than the
stated policy limits.
(April 28, 2009 Class Certification Motion at 1.)
Based on that new pleading, on May 27, 2009 Allstate removed this case to federal court
pursuant to the Class Action Fairness Act, 28 U.S.C. § 1332(d) (‘CAFA”). Plaintiff filed a
Motion to Remand. Plaintiffs counsel specifically argued that a new action had not been
“commenced” for purposes of CAFA, that his emphasis on Ailstate’s purported wrongful use of
a computer review system to assist in the adjustment of PIP and med pay claims did “not present
a novel claim,” and that his additiona! pleading “relate(d] back to the same transactions reflected
in [the] pleadings filed since this suit was originally filed.” (Plaintiff's Remand Motion at 3.)
On March 31, 2010, the district court issued an order granting plaintiff's Remand Motion.
In so ruling, the district court agreed with plaintiff that his additional pleading, including with his
emphasis on a “patient class” and Allstate’s alleged use of a computerized medical bill system to
accomplish its purported “bill chopping,” did not commence a new action for purposes of CAFA
and that a “new class was not added.” (Remand Order at 4.)
After Allstate’s petition for leave to appeal the Remand Order was denied, this case was
remanded to this Court, On August 25, 2010, this Court ruled that plaintiff's initial class
certification motion would be denied and set a hearing for September 15, 2010 on Allstate’s
pending Motion to Strike plaintiff's April 28, 2009 Class Certification Motion, in which Allstate
asked the Court to strike that Motion (e., the proposed patient/insured class who had their bills
DEFENDANT ALLSTATE PROPERTY AND CASUALTY INSURANCE COMPANY’S MOTION TO QUASH PLAINTIFF'S
OCTOBER [5, 2010 DISCOVERY REQUESTS, AND REQUEST FOR SANCTIONS — PAGE 4reduced) on res judicata grounds, based on prior rulings against plaintiffs counsel’s new
proposed class representative, Rosendo Beltran, in other matters.
On September 10, 2010, plaintiff's counsel filed a Response to Allstate’s Motion to
Strike as well as a Second Amended Motion for Class Certification. In his Response to the
Motion to Strike, plaintiff's counsel argued—even though on its face his April 28, 2009 pleading
said no such thing—that the Court should not have ruled on the initial class certification motion,
because the “December 10, 2002 motion was completely replaced and superseded by the April
28, 2009 motion and is no longer part of this case.” (Plaintiff's Response to Allstate’s Motion to
Strike at p. 1.) In addition, plaintiff's counsel argued that his September 10, 2010 amended class
certification motion was the current “live” pleading completely replacing the April 28, 2009
amended motion,” and that the case should proceed on the September 10, 2010 class certification
motion. (/d. at 2.)
Plaintiff's counsel’s September 10, 2010 class certification motion omitted any reference
to Rosendo Beltran. Instead, the original class plaintiff, Dr. Patterson, was now made the
putative representative for the patient class. Otherwise, the new Motion set forth the same
proposed class definition as that in plaintiffs April 28, 2009 Motion. (September 10, 2010
Motion at 1.)
At the September 15, 2010 hearing, this Court agreed with Allstate that the prior class
certification motion pending since 2002 had not been withdrawn, which of course it had not
been, since nothing in plaintiff's new Motion said or even intimated that the Motion which had
been argued seven years ago was withdrawn. The Court reiterated that the original Motion was
denied, as reflected in the Court’s September 8, 2010 written order. In addition, this Court stated
that it viewed plaintiffs September 10, 2010 Motion as essentially recasting the class
DEFENDANT ALLSTATE PROPERTY AND CASUALTY INSURANCE COMPANY'S MOTION TO QUASH PLAINTIFF'S
OCTOBER 15, 2010 DISCOVERY REQUESTS, AND REQUEST FOR SANCTIONS — PAGE 5certification motion the Court had just denied. Nonetheless, the Court indicated plaintiff's
counsel could submit a brief explaining why the new Motion could proceed. Plaintiff's counsel
failed to submit any such brief, and instead, on October 1, 2010, simply filed an unauthorized
merits class certification brief under his “new” theory, despite the Court’s admonition that it was
not reaching the merits of plaintiff's “new” class certification motion.
In his October 1, 2010 Class Certification Brief, plaintiffs counsel includes essentially
the same class definition as in his April 28, 2009 and September 10, 2010 Motions, except he has
now narrowed the definition so that it has the same scope as that in the original motion — i-e., it
includes only medical providers, not insureds:
All licensed medical providers who are creditor beneficiaries of
insurance contracts between Allstate and the patient or assignees of
patients’ rights against Allstate who, during the period from October
4, 1994, to date of final judgment: (a) submitted first-party claims
to Allstate pursuant to automobile policy's medical
payment/personal injury protection ("PIP") coverage (collectively,
"Medpay" claims) for payment of medical expenses; (b) had their
claim submitted to computer review, (c) received or were tendered
partial payment but in an amount less than the submitted medical
expenses and (d) received or were tendered an amount less than the
stated policy limits.
(October 1, 2010 Class Certification Brief at 6.)
In addition, plaintiff's counsel refers throughout his October 1, 2010 Class Certification
Brief to the exact same “bill chopping” theory that he has raised in his prior pleadings. For
example, plaintiff's counsel complains about Ailstate’s “unilateral computer bill reduction” as a
supposed means of failing to pay plaintiff the full amount of his bills, and that Allstate
“systematically reduced medical payment through the use of computer software.” (/d. at 1.)
Plaintiff's counsel also alleges Alistate improperly used the bill review software to place an
“arbitrarily low cap” and to reduce medical bills. (/d. at 4-6.)
DEFENDANT ALLSTATE PROPERTY AND CASUALTY INSURANCE COMPANY’S MOTION TO QUASH PLAINTIFF'S
OCTOBER 15, 2010 DISCOVERY REQUESTS, AND REQUEST FOR SANCTIONS — PAGE 6Similarly, in his discussion of the numerosity prerequisite to maintaining a class action,
plaintiff's counsel cites the affidavit of an Allstate representative which set forth bill reductions
which were made through the use of MBRS, which plaintiff's counsel notes is Allstate’s medical
bill review software. (/d at 13-14.) In his discussion of the commonality requirement,
plaintiff's counsel maintains that common questions include whether Allstate improperly
reduced bills using “MBRS Reason Codes,” and whether its conduct in using the MBRS Reason
Codes constitutes breach of contract. (/d at 17-18.) In his discussion of the typicality
requirement, plaintiff's counsel again refers to his “bill chopping” theory. (7d. at 21-22.)
Additionally, in his discussion of the adequacy of representation requirement, plaintiff's counsel
refers to plaintiff's supposed injury as having his bills improperly reduced by Allstate, as
reflected in the Explanation of Benefits Allstate sent him, which set forth the MBRS Reason
Codes. (Jd, at 23-26.) And in his discussion of the predominance and superiority requirements,
plaintiff's counsel’s brief again refers to Allstate’s improper reduction of medical bills using
Reason Codes. (/d. at 33, 36.)
As discussed fully in Allstate’s previously filed Supplemental Opposition to Plaintiff's
Request to Submit Amended Class Certification Motion, plaintiff's counsel’s new proposed class
is indeed nothing more than a rehash of his prior attempt at class certification, which plainly
included plaintiff’s counsel’s bill chopping theory, and which this Court has already rejected.
In addition, despite the fact that the only pleading this Court authorized plaintiff's counsel
to file was a an explanation as to why he can even proceed with his Amended Class Certification
Motion, in addition to the aforementioned merits class certification brief, plaintiff's counsel filed
several equally ill-founded and unauthorized pleadings. Plaintiff's counsel filed a “Nonsuit
Against Defendant Allstate of Plaintiffs Original Motion for Class Certification.” As discussed
DEFENDANT ALLSTATE PROPERTY AND CASUALTY INSURANCE COMPANY'S MOTION TO QUASH PLAINTIFF'S:
OCTOBER 15, 2010 DISCOVERY REQUESTS, AND REQUEST FOR SANCTIONS — PAGE 7fully in Allstate’s respond to that pleading, the rules and case law do not authorize a “nonsuit” as
to a motion or as to only certain claims. Accordingly, plaintiff's counsel’s nonsuit motion,
which requested a nonsuit only as to his original class motion, was wholly contrary to clear
Texas nonsuit law.
Plaintiff's counsel also filed a Motion to Modify Judgment, even though, as discussed
fully in Allstate’s response to that Motion, plaintiff's counsel had no basis for filing that Motion,
and the identical groundless argument made by plaintiffs counsel in support of that Motion was
made in another class action, which argument was soundly rejected by the Corpus Christi Court
of Appeals. Specifically, plaintiff's counsel claimed the Court had to make detailed findings in
support of its denial of plaintiff's original class certification motion, even though, as a clear
matter of Texas law, such findings are nof necessary where, as here, the original class
certification motion was nor brought under Rule 43(b)(3).
Plaintiff's counsel then filed a Motion for Sanctions based on Allstate’s supposed failure
to respond to discovery related to his now-withdrawn April 28, 2010 class certification motion.
Yet, as discussed fully in Allstate’s opposition to that motion, plaintiff's counsel neglected to tell
the Court that, not only was that discovery null and void (since plaintiff’s counsel withdrew the
motion to which it related), but also that Allstate had filed a Motion to Quash that discovery and
that plaintiff's counsel had never even objected to that Motion.
Now, on the heels of all these specious pleadings, plaintiff's counsel has filed equally
specious, unauthorized and harassing discovery requests, even though discovery has been closed
in this matter for seven years, and even though plaintiff's counsel has already filed his merits
brief—albeit unauthorized—without the need for any discovery. Allstate respectfully submits
DEFENDANT ALLSTATE PROPERTY AND CASUALTY INSURANCE COMPANY’S MOTION TO QUASH PLAINTIFF'S
OCTOBER 15, 2010 DISCOVERY REQUESTS, AND REQUEST FOR SANCTIONS — PAGE &that this Court should put an end to plaintiff's counsel’s out-of-control litigation tactics by
imposing sanctions against him for all these frivolous motions.
ARGUMENT
The Court Should Quash Plaintiffs Discovery Requests
Plaintiff's counsel’s latest discovery requests are yet another example of his baseless and
harassing filings in this matter, and they should be quashed. A trial court has “discretion to
control the scope of discovery for the cases over which it presides.” In re Mallinckrodt, Inc., 262
$.W.3d 469, 472 (Tex. App.-Beaumont 2008, xo pet.) (citation omitted). Ordering discovery
that exceeds “that permitted by the rules of procedure” constitutes an abuse of discretion. Jd. In
addition, discovery requests should “be tailored to include only matters relevant to the case,” and
the court “must make an effort to impose reasonable discovery limits.” Jd. at 473 (citing Jn re
Am, Optical Corp. 988 S.W.2d 711, 713 (Tex. 1998)), Accord Calhoun v. Ying, 2006 WL
2076038, *2 (Tex. App. — Hous. [1 Dist.] July 7, 2006, no pet.). Applying these principles,
courts have precluded discovery that is irrelevant or otherwise exceeds that permitted by the
rules, including when the discovery is unduly burdensome or harassing. See, e.g., Calhoun, 2006
WL 2076038, **2-3 (motion to quash properly granted where discovery was duplicative and
otherwise exceeded that permitted by the discovery rules); Ludlow v. DeBerry, 959 S.W.2d 265,
280 (Tex. App.-Houston [14 Dist.] 1997), reh’g overruled (Jan. 29, 1998) (noting that discovery
may be precluded to protect the movant from “undue burden, unnecessary expense, harassment
or annoyance,” and affirming trial court’s order precluding irrelevant discovery).
Here, plaintiff's counsel’s discovery requests clearly exceed what is permitted by the
discovery rules. Most fundamentally, plaintiffs counsel himself conceded at the August 2003
class certification hearing that discovery in this case was closed, and he never obtained leave to
DEFENDANT ALLSTATE PROPERTY AND CASUALTY INSURANCE COMPANY'S MOTION TO QUASH PLAINTIFF'S.
OCTOBER 15, 2010 DISCOVERY REQUESTS, AND REQUEST FOR SANCTIONS — PAGE 9serve any further discovery. The discovery period in this case was in fact closed long ago.
Pursuant to Tex. R. Civ. P. 190.3, discovery closed “the earlier of “(i) 30 days before the date set
for trial, or (ii) nine months after the earlier of the date of the first oral deposition or the due date
of the first response to written discovery.” Tex. R. Civ. P. 190.3(B)(1)(b). The first deposition
in this case occurred many years ago, so—even apart from plaintiffs counsel’s prior concession
on this point—there is no question that discovery is in fact closed. For that reason alone, the
Court should quash plaintiffs counsel’s latest discovery requests.
Additionally, it is clear plaintiff's counsel does not need this latest discovery. This is the
same sort of discovery Allstate moved to quash in April, 2009, to which Motion plaintiff's
counsel never objected. Further, plaintiffs counsel has already filed his merits brief on his
unauthorized “new” class certification proceedings, thus clearly indicating he needs no discovery
in order to proceed with that pleading.
Moreover, plaintiff's counsel’s latest discovery requests are completely irrelevant, unduly
burdensome and harassing. Plaintiffs counsel has propounded no less than 9 requests to admit,
16 document request and 11 interrogatories, all of which relate to plaintiff's counsel’s proposed
Amended Class Certification Motion. (See Exhibit A, hereto.) Indeed, plaintiff's counsel sets
forth the class definition from his proposed Amended Motion, and he goes so far as to ask
Allstate to “admit” that he has satisfied various prerequisites to maintaining a class action. (/d. at
3.) For example, plaintiffs counsel asks Allstate to “admit” that: the “Class is so numerous that
joinder of all members is impracticable”; there “are questions of law or fact common to the
Class; the “ claims of Jon P. Patterson are typical of the claims of the Class”; that plaintiff and
his counsel “will fairly and adequately protect the interests of the Class”, and that the
predominance and superiority requirements are met. (/d.) Such requests are clearly not the sorts
DEFENDANT ALLSTATE PROPERTY AND CASUALTY INSURANCE COMPANY’S MOTION TO QUASH PLAINTIFF'S
OCTOBER 15, 2010 DISCOVERY REQUESTS, AND REQUEST FOR SANCTIONS - PAGE 10of admissions of fact allowed by the relevant rules. See, e.g, Gore v. Cunningham, 297 8.W.2d
287, 291 (Tex. Civ. App.—Beaumont 1956, writ ref'd nr.e.) (the rule regarding requests for
admissions does not contemplate or authorize admissions to questions involving points of law).
In addition, all the document requests and interrogatories relate to plaintiff's counsel’s
Amended Class Certification Motion. (/d. at 4-7.) For example, plaintiffs counsel seeks any
and all documents related to his requests to admit, copies of all Explanation of Benefits forms
and numerous documents related to Allstate’s medical bill review system. (id. at 4-6).
Plaintiff's counsel has also propounded interrogatories related to his requests to admit, and seeks
information such as the number and identity of the class members in his amended class
certification definition. (Jd. at 6-7.)
Any discovery related to plaintiff's counsel’s Amended Motion is flagrantly improper.
For all the reasons set forth in Allstate’s previously filed Supplemental Opposition to Plaintiff's
Request to Submit Amended Class Certification Motion, plaintiff's counsel’s new proposed class
is nothing more than a rehash of his prior attempt at class certification, which this Court has
already rejected when it denied plaintiff's original class certification motion. Because plaintiff's
counsel should not be permitted to proceed with his Amended Motion (and this Court certainly
has not given him leave to do so), plaintiff's counsel’s latest discovery, even if it were timely,
has no relevance whatsoever to any live issue in this case.
Indeed, that plaintiffs counsel even propounded such discovery shows a clear intent to
harass Allstate. Plaintiff's counsel knows full well that: (a) this Court has already denied class
certification in connection with plaintiffs counsel’s substantively identical original class
certification motion; and (b) plaintiff's counsel does not have permission to proceed with his
Amended Motion. Nonetheless, plaintiff's counsel has persisted in filing baseless motions
DEFENDANT ALLSTATE PROPERTY AND CASUALTY [INSURANCE COMPANY'S MOTION TO QUASH PLAINTIFF'S
OCTOBER 15, 2010 DISCOVERY REQUESTS, AND REQUEST FOR SANCTIONS — PAGE 11related to his “new” class and has now propounded discovery related to that class. So, even
though Allstate has already prevailed on class certification after years of litigating this matter,
Allstate has, as a result of plaintiff's counsel’s antics, had to incur the time and expense of
responding to plaintiffs counsel’s specious pleadings. And now plaintiffs counsel has
propounded equally specious discovery requests. These include, inter alia, every EOB Allstate
has sent without limitation, and numerous documents and information related to plaintiffs
counsel’s ill-conceived “amended” class which span more than 15 years. Allstate should not be
required to incur the time and expense of responding to any discovery, let alone such broad-
brush discovery requests — particularly where, as here, the class certification proceedings have
already been resolved in Allstate’s favor and discovery has been closed for years. The Court
should therefore grant Allstate’s Motion to Quash.
Sanctions Are Warranted Here
The Court should also impose sanctions based on the cumulative impact of plaintiff's
counsel’s latest discovery requests and baseless pleadings. These sanctions should be imposed
on the counsel that has masterminded these specious pleadings, Bryan Powers, not on plaintiff or
Mr. Powers’ local counsel, Ramon Garcia, who we have no reason to believe were involved in
creating these frivolous pleadings.
Texas Rule of Civil Procedure 13 authorizes imposition of sanctions against an attorney,
a represented party, or both, who file pleadings that are (1) groundless and brought in bad faith
or (2) groundless and brought to harass. Tex. R. Civ. P. 13; City of Houston v. Chambers, 899
$.W.2d 306, 309 (Tex. App. — Houston [14” Dist] 1995, no writ). In addition, Rule 215.3
provides that a court may impose sanctions if the “court finds a party is abusing the discovery
process in seeking, making or resisting discovery or if the court finds that any interrogatory or
DEFENDANT ALLSTATE PROPERTY AND CASUALTY INSURANCE COMPANY'S MOTION TO QUASH PLAINTIFF'S.
OCTOBER 15, 2010 DISCOVERY REQUESTS, AND REQUEST FOR SANCTIONS — PAGE 12request for inspection or production is unreasonably frivolous, oppressive, or harassing[.]” Tex.
R. Civ. P. 215.3. Sanctions are imposed to ensure compliance with discovery rules, to deter
other litigants from similar misconduct, and to punish noncompliance. See, ¢.g., Chrysler Corp.
yv. Blackmon, 841 8.W.2d 844, 849 (Tex. 1992) (“The legitimate purposes of discovery sanctions
are threefold: 1) to secure compliance with discovery rules; 2) to deter other litigants from
similar misconduct; and 3) to punish violators”); Cire v. Cummings, 134 S.W.3d 835, 839 (Tex.
2004) (“Sanctions are used to assure compliance with discovery and deter those who might be
tempted to abuse discovery in the absence of a deterrent”).
This case epitomizes the type of situation for which the imposition of sanctions is warranted.
Plaintiff's counsel’s latest pleadings—i.e., his unauthorized merits class certification brief, his
motion for nonsuit which violates the clear Texas law on nonsuits, his motion to modify judgment
to require findings even though such findings are not required in a non-Rule 43(b)(3) class
certification proceeding, which is what existed here, and his motion for discovery sanctions in the
face of a Motion to Quash that discovery to which he never objected—are not only unauthorized,
they are clearly groundless and brought in bad faith and to harass. Class certification in connection
with plaintiff's original class certification motion has been denied, and that denial applies with
equal force to plaintiffs counsel’s substantively identical Amended Motion. Knowing full well
that he does not even have permission to proceed with his Amended Motion, plaintiff's counsel
has persisted in filing a raft of groundless pleadings related to the Motion. For all the reasons set
forth fully in Allstate’s responses to plaintiff's counsel’s motions, those motions are utterly
without merit. Given the procedural posture of this case, these motions were clearly filed in bad
faith, and there could be no other purpose for filing them other than to harass Allstate.
DEFENDANT ALLSTATE PROPERTY AND CASUALTY INSURANCE COMPANY'S MOTION TO QUASH PLAINTIFF'S
OCTOBER 15, 2010 DISCOVERY REQUESTS, AND REQUEST FOR SANCTIONS - PAGE 13Further, plaintiff's counsel’s latest discovery, like the numerous outrageous pleadings he has
filed, is unreasonably frivolous, because discovery is closed and plaintiffs counsel is not entitled to
discovery related to his amended class when he does not even have permission to proceed with that
class. The discovery is also oppressive and harassing, because Allstate should not be required to
respond to such “class”-related discovery when Allstate has already prevailed on class certification
and the class certification proceedings and discovery have closed. Moreover, plaintiff's counsel’s
admission requests are, in flagrant violation of the rules, requests to admit conclusions of law rather
than requests to admit statements of fact.
Given plaintiff's counsel’s relentless filing of ludicrous pleadings, and now his equally
absurd discovery requests, it is clear plaintiff's counsel is bent on “abusing discovery in the
absence of a deterrent,” and also on filing groundless and frivolous pleadings. The Court should
put an end to plaintiff's counsel’s abusive tactics, which are only unnecessarily taking up this
Court’s time and effort, by imposing sanctions.
CONCLUSION
For all the foregoing reasons, defendant, Allstate Property and Casualty Company,
respectfully requests the Court enter a protective order quashing plaintiff's October 15, 2010
discovery requests and imposing sanctions to deter plaintiff's counsel’s abuse of the pleading
and discovery process.
DEFENDANT ALLSTATE PROPERTY AND CASUALTY INSURANCE COMPANY'S MOTION TO QUASH PLAINTIFF'S
OCTOBER 15, 2010 DISCOVERY REQUESTS, AND REQUEST FOR SANCTIONS — PAGE 14mii JO
By: ‘ ‘ ——E—E——e
ROGER D. HIGGINS
State Bar No. 09601500
THOMPSON, COE, COUSINS & [RONS, L.L-P.
700 N. Pearl Street, 25" Floor
Dallas, Texas 75201
Telephone:(214) 871-8200
Telecopy: (214) 871-8209
VICTOR VICINAIZ .
State Bar No. 20562300
ROERIG, OLIVEIRA & FISHER, L.L.P.
10225 N. 10” Street
McAllen, Texas 78504
Telephone:(956) 393-6300
Telecopy: (956) 386-1625
ATTORNEYS FOR DEFENDANTS
CERTIFICATE OF SERVICE
I hereby certify that on October 20, 2010, a true and correct copy of the foregoing was
delivered by fax and certified mail, return receipt requested to:
Bryan Powers
Attorney at Law
P.O. Box 1685
Canyon Lake, TX 78133
Ramon Garcia
222 West University
Edinburg, TX 78539
Vdd
Victor Vicinaiz
DEFENDANT ALLSTATE PROPERTY AND CASUALTY INSURANCE COMPANY'S MOTION TO QUASH PLAINTIFF'S:
OCTOBER 15, 2010 DISCOVERY REQUESTS, AND REQUEST FOR SANCTIONS — PAGE 15na. : 830 9643763 pl
Oct 15 10 03:15 Bryan Powers
CAUSE NO, C-6519-98B
JON P. PATTERSON, D.C,, et al, IN THE DISTRICT COURT OF
Plaintiffs,
vs. HIDALGO COUNTY, TEXAS
ALLSTATE PROPERTY AND CASUALTY
INSURANCE COMPANY, e¢ al,
ee RHR ee we gy
Defendants. 93" JUDICIAL DISTRICT
PLAINTIFF'S DISCOVERY REQUESTS TO ALLSTATE
SERVED ON OCTOBER 15, 2010
INSTRUCTIONS:
L interrogatories are propounded under Texas Rule of Civil Procedure 197, Requests
for Production under Rule 196, and Requests for Admissions under Rule 198. Service of a full
Tesponse to each is required within thirty days of service hereof.
2. Full and complete Tesponses to requests for production are to be segregated by
category requested and are to be served on the undersigned by U.S. Mail.
3. Documents produced are to be Segregated and labeled by category and served on the
undersigned by serving legible duplicate originals by U.S. Mail, United Parcel Service, or Federal
Express.
4. Interrogatories are to be answered separately, in writing, and signed under oath and
the answers served on the undersigned by U.S. Mail
5. Each Request for Admission is required to be to be admitted or denied in writing and
signed. If Allstate in good faith is unable to admit the whole request, then admit the part of the
LbOct 15 10 03:15p Bryan Powers 830 9643763 p2
request that Allstate can admit and sign it. Serve the Tesponses on the undersigned by U.S. Mail.
6. Any objections to a discovery request made by Allstate raust point out the specific
discovery request objected to and must state specifically the good-faith legal and/or factual basis for
the objection and the extent to which the party is refusing to comply with the request.
7. Redact from each EOB produced the name and address of the insured and of the
patient.
DEFINITIONS:
1. “Class” means:
All licensed medical providers who are creditor beneficiaries of
insurance contracts between Allstate and the patient or assignees of
Patients’ rights against Allstate who, during the period from October
4, 1994, to date of final judgment (a) submitted first-party claims to
Allstate pursuant to an automobile policy’s medical payment/personal
injury protection (“PIP”) coverage (collectively, “Medpay” claims)
for payment of medical expenses, (b) had their claim submited to
computer review, (c) received or were tendered partial payment inan
amount less than the submitted medical expenses, and ( ‘d) received or
were tendered an amount less then the stated. policy limits.
Excluded from the Class are (a) PIP and Medpay claims that Allstate referred to its special
investigative/fraud unit and that were found to be fraudulent, (b) workers compensation medical
payment claims, and (c) claims of the Texas judiciary, employees of Allstate and their immediate
families.
2. “Controversy” means the claims of Jon P. Patterson, D.C. and the class members, as
creditor beneficiaries of the insurance contracts between Alistate and the insureds, against Allstate
for breach of the insurance contracts.
3. “EOB” means a computer generated medical audit report called “Explanation of
-2-: 763, po
Oct 15 10 03:15p Bryan Powers 830 9643)
Benefits” sent to Class members during the Class period.
4, “Reason code” means a notation on an EOB that explains the reason for the amount
that Allstate pays on a claim in the line in which the notation appears.
5. “Reduction” as shown on an EOB means the difference in the medical expenses
charged and the amount Alistate paid for each line item as shown on the EOB.
6. “Total reduction” as shown on an EOB means a total of the reductions,
EACTS TO BE ADMITTED OR DENIED
L. The Class is so numerous that joinder of all members is impracticable.
2. ‘There are questions of law or fact common to the Class.
3. The claims of Jon P. Patterson are typical of the claims of the Class.
4, Jon P. Patterson, Bryan Powers, and Ramon Garcia will fairly and adequately protect
the interests of the Class.
5. ‘Those questions of law or fact common to the members of the Class predominate over
any questions affecting only individual members of the Class,
6. A class action is superior to other available methods for the fair and efficient
adjudication of this controversy, considering the interest of members of the Class in individually
controlling the prosecution of separate actions; the extent and nature of any litigation concerning the
controversy already commenced by oragainst members of the Class; the desirability of concentrating
the litigation of plaintiff's claims in this forum; the difficulties likely to be encountered in the
management of this class action.
7. Allstate sent each member of the Class an EOB.
8. Each such EOB indicated a reduction in the PIP or Medpay claim of the Class
3.: 4
Oct 15 10 03:15p Bryan Powers 830 9643763 D.
member.
9. Bach such EOB indicated a total reduction.
Cl BE PRODUCED
1. If Allstate does not unqualifiedly admit request for admission | , identify and produce
all documents that provide factual Support for the failure to unqualificdly admit request for
admission 1.
2. if Alistate does not unqualifiedly admit request for admission 2, identify and produce
all documents that provide factual support for the failure to unqualified!y admit request for
admission 2.
3. If Allstate does not unqualifiedly admit request for admission 3. identi ‘fy and produce
all documents that provide factual support for the failure to unqualifiedly admit request for
admission 3.
4, If Allstate does not unqualifiedly admit request for admission 4, identify and produce
all documents that provide factual support for the failure to unqualifiedly admit request for
admission 4.
5. If Allstate does not unqualifiedly admit request for admission 5, identify and produce
all documents that provide factual support for the failure to unqualifiedly admit request for
admission 5.
6. If Alistate does not unqualifiedly admit request for admission 6, identify and produce
all documents that provide factual support for the failure to unqualifiedly admit request for
admission 6.
7. Produce all automobile insurance policy forms used by Allstate in Texas during the
4.Oct 15 10 03:16p Bryan Powers 830 9643763 p.5
class period.
8. Produce legible duplicate originals of all EOBs in the order in which they are kept
in the ordinary course of business or in chronological order. [Any EOBs kept on a computer may
be produced by hard copy, appropriately redacted] -
9, Produce true and legible copies of each and every contract in effect between Allstate
and National BioSystems since October 4, 1994.
10. Produce a copy of each and every EOB since October 4, 1994, that was supported by
an in-person evaluation of the patient's condition by a licensed medical practitioner other than the
medical practitioner submitting the claim which was the subject of the EOB.
Il. Produce any and all contracts existing since October 4, 1994, between Allstate and
the writer of MBRS.
12. Any and all correspondence and contracts existing since October 4, 194, between
Alistate and ADP or HNC.
13. Any and all documents that refer to, relate to, or evidence the steps that Allstate has
taken since October 4, 1994, to determine whether MRBS is a reliable determiner of the
reasonableness of medical expenses.
14, Foreach and every configuration of MRBS databases sincv October 4. 1994, un y and
all documents which aione or collectively constitute a schema for each such configuration.
15. Any and all contracts existing since October 4, 1994, between Allstate and any
software or database designer to supply software, database design, or advise on medical bill
evaluation for medpay and PIP coverage.
16. Any and all documents referring to, reflecting, or evidencing a repricing or capping
5-Oct 15 10 03:16p Bryan Powers . 830 9643763 ps6
of Medpay or PIP expenses by application of any specific EOB Reason Code for any members of
the class.
INTERROGATORIES
1, If Allstate does not unqualifiedly admit request for admission 1_ state the factual basis
for the failure te unqualifiedly admit request for admission 1,
2. If Allstate does not unqualifiedly admit request for admission 2. state the factual basis
for the failure to unqualifiedly admit request for admission 2.
3. If Allstate does not unqualifiedly admit request for admission 3, state the factual basis
for the failure to unqualifiedly admit request for admission 3.
4, IfAlistate does not unqualifiedly admit request for admission 4, state the factual basis
for the failure to unqualifiedly admit request for admission 4.
5. If Allstate does not unqualifiedly admit request for admission 5, state the factual basis
for the failure to unqualifiedly admit request for admission 5.
6. If Allstate does not unqualifiedly admit request for admission 6, state the factual basis
for the failure to unqualifiedly admit request for admission 6.
| 7. State any legal or factual objections to the trial plan set out in the proposed order on
plaintiff's second amended motion for class certification which was hand delivered to Allstate’s
attomey at the court hearing on October 6, 2010.
8. How many members of the Class are there?
9. State the name of each Texas County in which a member of the class has lived since
1994,
10, State each and every MBRS system and all EOB Reason Codes that, since October
6: eo?
Oct 15 10 03:16p Bryan Powers 830 9643763
4, 1994, have had the effect of repricing or capping Medpay or PIP expenses of covered Allstate
claimants to undisclosed, pre-determined percentiles or percentages within policy Jimits so as to
Partially deny medical bills that exceed these predetermined percentiles or percentages as
“unreasonable” or “unnecessary.”
11. State the name and address of each and every member of the class.
Respectfully submitted, ~
os } CtEx-
Bryan Péwers .
SBN; 16215700
P.O. Box 1685
Canyon Lake, Texas 78133
Tel, 830-964-3762
Fax. 830964-3763
Ramon Garcia
SBN: 07641800
222 West University
Edinburg, Texas 78539
Tel, 956-383-7441
Fax. 956-381-0825
Attomeys for Plaintiff and the Class
CATE 0) ICE
I certify that I served the following person the foregaing document as indicated on October '
15, 2010. :
Roger D. Higgins by fax to 214-871-8209
Thompson, Coe, Cousins & Irons, L.L.P. . 2
700 North Pearl, 25" Floor } D
Dallas, Texas a
Bryan P
1.
Preview
ORIGINAL CAUSE NO. C-6519-98-B FILED AT 9.00 ocrock AM JON P. PATTERSON, D.C., et al, IN THE DISTRICT COURT OF _ OCT 20 2010 Plaintiffs, LAI v. HIDALGO COUNBK By. ALLSTATE PROPERTY AND CASUALTY INSURANCE COMPANY, et al 00 Un tn Ln Cn tin un ton en Lo Defendants 93" JUDICIAL DISTRICT DEFENDANT ALLSTATE PROPERTY AND CASUALTY INSURANCE COMPANY’S MOTION TO QUASH PLAINTIFF’S OCTOBER 15, 2010 DISCOVERY REQUESTS, AND REQUEST FOR SANCTIONS TO THE HONORABLE COURT: Allstate Property and Casualty Insurance Company (“‘Allstate”) respectfully submits this Motion to Quash Plaintiff's October 15, 2010 Discovery, and Request for Sanctions, and shows the Court as follows: Continuing his recent flurry of baseless pleadings in this matter, plaintiff's counsel has now propounded equally baseless and harassing discovery, As this Court is aware, the class certification and briefing on plaintiff's original class certification motion were completed more than seven years ago, and this Court has already denied class certification. As discussed fully in Allstate’s previously filed briefs, plaintiff's request to proceed with his Amended Class Certification Motion should be denied. This Court granted plaintiff leave to file only one pleading — i¢., a brief explaining why he should be allowed to proceed with his Amended Motion. Ignoring this Court’s Order, plaintiff never filed any such pleading, but instead filed an unauthorized merits class certification brief, as well as several other unauthorized and groundless pleadings. Even worse, plaintiff's counsel has now propounded substantial discovery on Allstate DEFENDANT ALLSTATE PROPERTY AND CASUALTY INSURANCE COMPANY’S MOTION TO QUASH PLAINTIFF'S OCTOBER 15, 2010 DISCOVERY REQUESTS, AND REQUEST FOR SANCTIONS ~ PAGE Irelating to his improper Amended Class Certification Motion, see October 10, 2010 Discovery Requests, attached as Exhibit A, even though plaintiff's counsel conceded seven years ago that discovery was closed in this matter, and even though plaintiff's counsel has already filed his unauthorized class certification merits brief — obviously not needing discovery to do so. Because plaintiff should not be permitted to proceed with his Amended Motion at this late stage, and because class discovery has long been closed, plaintiff's untimely and unauthorized discovery requests should be quashed. Further, this Court should impose sanctions on plaintiff's counsel. Plaintiff's counsel has continued to flout this Court’s rulings and the relevant procedural rules by filing baseless pleadings, and now, yet another round of unauthorized and wholly improper discovery. These filings do nothing to advance this case, but merely unnecessarily take up this Court’s time and energy for no reason. Accordingly, a deterrent in the form of sanctions is clearly warranted here. BACKGROUND This Court is no doubt familiar with the background of this litigation in light of all the pleadings plaintiff has filed recently, and Allstate’s responses thereto. Nonetheless, for the Court’s convenience, and to further illustrate just how egregiously improper plaintiff's latest discovery requests are, Allstate sets forth the relevant procedural history below. The original named plaintiff, Jon Patterson, a chiropractor, filed this action in the District Court of Hidalgo County, Texas. The last operative petition in this case was the Twelfth Amended Petition, filed January 1, 2004, in which Patterson purported to represent a “physician class” pursuing claims of defamation/tortious interference against Allstate based on Allstate’s alleged improper denial of plaintiff's claims for insurance benefits submitted to Allstate for medical treatment allegedly provided to Allstate’s insureds. (See Twelfth Amended Petition, DEFENDANT ALLSTATE PROPERTY AND CASUALTY INSURANCE COMPANY’S MOTION TO QUASH PLAINTIFF'S OCTOBER 15, 2010 DISCOVERY REQUESTS, AND REQUEST FOR SANCTIONS — PAGE 2Bo 17-20, 26, 28-36.) Plaintiff alleged that insurers such as Allstate engage in improper “bill- chopping” through use of peer reviews and other means, such as “computer data bases from which the companies can extract [data regarding other doctors’ bills].” (Jd. 4 17-20.) The class certification briefing and hearing as to Patterson’s original “physician class” and his defamation/tortious interference theory against Allstate were completed more than seven years ago, on August 8, 2003. Significantly, even before the August 8, 2003 class certification hearing—at an Apri! 11, 2003 hearing on a discovery matter—plaintiff's counsel represented that his submission in support of his class certification motion was complete and that he would rely solely on that submission at the class certification hearing. In addition, at the class certification hearing, both sides concluded their presentation of evidence, and, as was clear from the proceedings before this Court, the class-related discovery and evidence were fully closed. Over six years after the fact, on April 28, 2009, plaintiff's counsel filed an additional class certification motion, with a new putative class representative (not Dr. Patterson), that referred to a newly amended petition, though that petition was never served on Allstate (and has apparently never been filed). Contrary to plaintiff's contention, nothing in this Motion stated it was meant to replace the original Motion. And certainly there was no attempt by plaintiff to withdraw the prior pending Motion. Plaintiff's counsel. in this additional pleading, purported to add Rosendo Beltran, an Allstate insured, as a representative of a class, which included Allstate insureds/patients, based on Allstate’s purported wrongful denial, using a computerized medical bill review system, of claims for personal injury protection (“PIP”) and medical payments (“med pay”) coverage. In addition, plaintiff purported to represent the following class: DEFENDANT ALLSTATE PROPERTY AND CASUALTY INSURANCE COMPANY'S MOTION TO QUASH PLAINTIFF'S. OCTOBER 15, 2010 DISCOVERY REQUESTS, AND REQUEST FOR SANCTIONS — PAGE 3All covered Texas persons, their third party beneficiaries and assignees (e.g., licensed medical providers), who, during the period from October 4, 1994, to date of final judgment: (a) submitted first- party claims to Allstate pursuant to automobile policy's medical payment/personal injury protection ("PIP") coverage (collectively, "Medpay" claims for payment of medical expenses), (b) had their claim submitted to computer review, (c) received or were tendered partial payment but in an amount less than the submitted medical expenses and (d) received or were tendered an amount less than the stated policy limits. (April 28, 2009 Class Certification Motion at 1.) Based on that new pleading, on May 27, 2009 Allstate removed this case to federal court pursuant to the Class Action Fairness Act, 28 U.S.C. § 1332(d) (‘CAFA”). Plaintiff filed a Motion to Remand. Plaintiffs counsel specifically argued that a new action had not been “commenced” for purposes of CAFA, that his emphasis on Ailstate’s purported wrongful use of a computer review system to assist in the adjustment of PIP and med pay claims did “not present a novel claim,” and that his additiona! pleading “relate(d] back to the same transactions reflected in [the] pleadings filed since this suit was originally filed.” (Plaintiff's Remand Motion at 3.) On March 31, 2010, the district court issued an order granting plaintiff's Remand Motion. In so ruling, the district court agreed with plaintiff that his additional pleading, including with his emphasis on a “patient class” and Allstate’s alleged use of a computerized medical bill system to accomplish its purported “bill chopping,” did not commence a new action for purposes of CAFA and that a “new class was not added.” (Remand Order at 4.) After Allstate’s petition for leave to appeal the Remand Order was denied, this case was remanded to this Court, On August 25, 2010, this Court ruled that plaintiff's initial class certification motion would be denied and set a hearing for September 15, 2010 on Allstate’s pending Motion to Strike plaintiff's April 28, 2009 Class Certification Motion, in which Allstate asked the Court to strike that Motion (e., the proposed patient/insured class who had their bills DEFENDANT ALLSTATE PROPERTY AND CASUALTY INSURANCE COMPANY’S MOTION TO QUASH PLAINTIFF'S OCTOBER [5, 2010 DISCOVERY REQUESTS, AND REQUEST FOR SANCTIONS — PAGE 4reduced) on res judicata grounds, based on prior rulings against plaintiffs counsel’s new proposed class representative, Rosendo Beltran, in other matters. On September 10, 2010, plaintiff's counsel filed a Response to Allstate’s Motion to Strike as well as a Second Amended Motion for Class Certification. In his Response to the Motion to Strike, plaintiff's counsel argued—even though on its face his April 28, 2009 pleading said no such thing—that the Court should not have ruled on the initial class certification motion, because the “December 10, 2002 motion was completely replaced and superseded by the April 28, 2009 motion and is no longer part of this case.” (Plaintiff's Response to Allstate’s Motion to Strike at p. 1.) In addition, plaintiff's counsel argued that his September 10, 2010 amended class certification motion was the current “live” pleading completely replacing the April 28, 2009 amended motion,” and that the case should proceed on the September 10, 2010 class certification motion. (/d. at 2.) Plaintiff's counsel’s September 10, 2010 class certification motion omitted any reference to Rosendo Beltran. Instead, the original class plaintiff, Dr. Patterson, was now made the putative representative for the patient class. Otherwise, the new Motion set forth the same proposed class definition as that in plaintiffs April 28, 2009 Motion. (September 10, 2010 Motion at 1.) At the September 15, 2010 hearing, this Court agreed with Allstate that the prior class certification motion pending since 2002 had not been withdrawn, which of course it had not been, since nothing in plaintiff's new Motion said or even intimated that the Motion which had been argued seven years ago was withdrawn. The Court reiterated that the original Motion was denied, as reflected in the Court’s September 8, 2010 written order. In addition, this Court stated that it viewed plaintiffs September 10, 2010 Motion as essentially recasting the class DEFENDANT ALLSTATE PROPERTY AND CASUALTY INSURANCE COMPANY'S MOTION TO QUASH PLAINTIFF'S OCTOBER 15, 2010 DISCOVERY REQUESTS, AND REQUEST FOR SANCTIONS — PAGE 5certification motion the Court had just denied. Nonetheless, the Court indicated plaintiff's counsel could submit a brief explaining why the new Motion could proceed. Plaintiff's counsel failed to submit any such brief, and instead, on October 1, 2010, simply filed an unauthorized merits class certification brief under his “new” theory, despite the Court’s admonition that it was not reaching the merits of plaintiff's “new” class certification motion. In his October 1, 2010 Class Certification Brief, plaintiffs counsel includes essentially the same class definition as in his April 28, 2009 and September 10, 2010 Motions, except he has now narrowed the definition so that it has the same scope as that in the original motion — i-e., it includes only medical providers, not insureds: All licensed medical providers who are creditor beneficiaries of insurance contracts between Allstate and the patient or assignees of patients’ rights against Allstate who, during the period from October 4, 1994, to date of final judgment: (a) submitted first-party claims to Allstate pursuant to automobile policy's medical payment/personal injury protection ("PIP") coverage (collectively, "Medpay" claims) for payment of medical expenses; (b) had their claim submitted to computer review, (c) received or were tendered partial payment but in an amount less than the submitted medical expenses and (d) received or were tendered an amount less than the stated policy limits. (October 1, 2010 Class Certification Brief at 6.) In addition, plaintiff's counsel refers throughout his October 1, 2010 Class Certification Brief to the exact same “bill chopping” theory that he has raised in his prior pleadings. For example, plaintiff's counsel complains about Ailstate’s “unilateral computer bill reduction” as a supposed means of failing to pay plaintiff the full amount of his bills, and that Allstate “systematically reduced medical payment through the use of computer software.” (/d. at 1.) Plaintiff's counsel also alleges Alistate improperly used the bill review software to place an “arbitrarily low cap” and to reduce medical bills. (/d. at 4-6.) DEFENDANT ALLSTATE PROPERTY AND CASUALTY INSURANCE COMPANY’S MOTION TO QUASH PLAINTIFF'S OCTOBER 15, 2010 DISCOVERY REQUESTS, AND REQUEST FOR SANCTIONS — PAGE 6Similarly, in his discussion of the numerosity prerequisite to maintaining a class action, plaintiff's counsel cites the affidavit of an Allstate representative which set forth bill reductions which were made through the use of MBRS, which plaintiff's counsel notes is Allstate’s medical bill review software. (/d at 13-14.) In his discussion of the commonality requirement, plaintiff's counsel maintains that common questions include whether Allstate improperly reduced bills using “MBRS Reason Codes,” and whether its conduct in using the MBRS Reason Codes constitutes breach of contract. (/d at 17-18.) In his discussion of the typicality requirement, plaintiff's counsel again refers to his “bill chopping” theory. (7d. at 21-22.) Additionally, in his discussion of the adequacy of representation requirement, plaintiff's counsel refers to plaintiff's supposed injury as having his bills improperly reduced by Allstate, as reflected in the Explanation of Benefits Allstate sent him, which set forth the MBRS Reason Codes. (Jd, at 23-26.) And in his discussion of the predominance and superiority requirements, plaintiff's counsel’s brief again refers to Allstate’s improper reduction of medical bills using Reason Codes. (/d. at 33, 36.) As discussed fully in Allstate’s previously filed Supplemental Opposition to Plaintiff's Request to Submit Amended Class Certification Motion, plaintiff's counsel’s new proposed class is indeed nothing more than a rehash of his prior attempt at class certification, which plainly included plaintiff’s counsel’s bill chopping theory, and which this Court has already rejected. In addition, despite the fact that the only pleading this Court authorized plaintiff's counsel to file was a an explanation as to why he can even proceed with his Amended Class Certification Motion, in addition to the aforementioned merits class certification brief, plaintiff's counsel filed several equally ill-founded and unauthorized pleadings. Plaintiff's counsel filed a “Nonsuit Against Defendant Allstate of Plaintiffs Original Motion for Class Certification.” As discussed DEFENDANT ALLSTATE PROPERTY AND CASUALTY INSURANCE COMPANY'S MOTION TO QUASH PLAINTIFF'S: OCTOBER 15, 2010 DISCOVERY REQUESTS, AND REQUEST FOR SANCTIONS — PAGE 7fully in Allstate’s respond to that pleading, the rules and case law do not authorize a “nonsuit” as to a motion or as to only certain claims. Accordingly, plaintiff's counsel’s nonsuit motion, which requested a nonsuit only as to his original class motion, was wholly contrary to clear Texas nonsuit law. Plaintiff's counsel also filed a Motion to Modify Judgment, even though, as discussed fully in Allstate’s response to that Motion, plaintiff's counsel had no basis for filing that Motion, and the identical groundless argument made by plaintiffs counsel in support of that Motion was made in another class action, which argument was soundly rejected by the Corpus Christi Court of Appeals. Specifically, plaintiff's counsel claimed the Court had to make detailed findings in support of its denial of plaintiff's original class certification motion, even though, as a clear matter of Texas law, such findings are nof necessary where, as here, the original class certification motion was nor brought under Rule 43(b)(3). Plaintiff's counsel then filed a Motion for Sanctions based on Allstate’s supposed failure to respond to discovery related to his now-withdrawn April 28, 2010 class certification motion. Yet, as discussed fully in Allstate’s opposition to that motion, plaintiff's counsel neglected to tell the Court that, not only was that discovery null and void (since plaintiff’s counsel withdrew the motion to which it related), but also that Allstate had filed a Motion to Quash that discovery and that plaintiff's counsel had never even objected to that Motion. Now, on the heels of all these specious pleadings, plaintiff's counsel has filed equally specious, unauthorized and harassing discovery requests, even though discovery has been closed in this matter for seven years, and even though plaintiff's counsel has already filed his merits brief—albeit unauthorized—without the need for any discovery. Allstate respectfully submits DEFENDANT ALLSTATE PROPERTY AND CASUALTY INSURANCE COMPANY’S MOTION TO QUASH PLAINTIFF'S OCTOBER 15, 2010 DISCOVERY REQUESTS, AND REQUEST FOR SANCTIONS — PAGE &that this Court should put an end to plaintiff's counsel’s out-of-control litigation tactics by imposing sanctions against him for all these frivolous motions. ARGUMENT The Court Should Quash Plaintiffs Discovery Requests Plaintiff's counsel’s latest discovery requests are yet another example of his baseless and harassing filings in this matter, and they should be quashed. A trial court has “discretion to control the scope of discovery for the cases over which it presides.” In re Mallinckrodt, Inc., 262 $.W.3d 469, 472 (Tex. App.-Beaumont 2008, xo pet.) (citation omitted). Ordering discovery that exceeds “that permitted by the rules of procedure” constitutes an abuse of discretion. Jd. In addition, discovery requests should “be tailored to include only matters relevant to the case,” and the court “must make an effort to impose reasonable discovery limits.” Jd. at 473 (citing Jn re Am, Optical Corp. 988 S.W.2d 711, 713 (Tex. 1998)), Accord Calhoun v. Ying, 2006 WL 2076038, *2 (Tex. App. — Hous. [1 Dist.] July 7, 2006, no pet.). Applying these principles, courts have precluded discovery that is irrelevant or otherwise exceeds that permitted by the rules, including when the discovery is unduly burdensome or harassing. See, e.g., Calhoun, 2006 WL 2076038, **2-3 (motion to quash properly granted where discovery was duplicative and otherwise exceeded that permitted by the discovery rules); Ludlow v. DeBerry, 959 S.W.2d 265, 280 (Tex. App.-Houston [14 Dist.] 1997), reh’g overruled (Jan. 29, 1998) (noting that discovery may be precluded to protect the movant from “undue burden, unnecessary expense, harassment or annoyance,” and affirming trial court’s order precluding irrelevant discovery). Here, plaintiff's counsel’s discovery requests clearly exceed what is permitted by the discovery rules. Most fundamentally, plaintiffs counsel himself conceded at the August 2003 class certification hearing that discovery in this case was closed, and he never obtained leave to DEFENDANT ALLSTATE PROPERTY AND CASUALTY INSURANCE COMPANY'S MOTION TO QUASH PLAINTIFF'S. OCTOBER 15, 2010 DISCOVERY REQUESTS, AND REQUEST FOR SANCTIONS — PAGE 9serve any further discovery. The discovery period in this case was in fact closed long ago. Pursuant to Tex. R. Civ. P. 190.3, discovery closed “the earlier of “(i) 30 days before the date set for trial, or (ii) nine months after the earlier of the date of the first oral deposition or the due date of the first response to written discovery.” Tex. R. Civ. P. 190.3(B)(1)(b). The first deposition in this case occurred many years ago, so—even apart from plaintiffs counsel’s prior concession on this point—there is no question that discovery is in fact closed. For that reason alone, the Court should quash plaintiffs counsel’s latest discovery requests. Additionally, it is clear plaintiff's counsel does not need this latest discovery. This is the same sort of discovery Allstate moved to quash in April, 2009, to which Motion plaintiff's counsel never objected. Further, plaintiffs counsel has already filed his merits brief on his unauthorized “new” class certification proceedings, thus clearly indicating he needs no discovery in order to proceed with that pleading. Moreover, plaintiff's counsel’s latest discovery requests are completely irrelevant, unduly burdensome and harassing. Plaintiffs counsel has propounded no less than 9 requests to admit, 16 document request and 11 interrogatories, all of which relate to plaintiff's counsel’s proposed Amended Class Certification Motion. (See Exhibit A, hereto.) Indeed, plaintiff's counsel sets forth the class definition from his proposed Amended Motion, and he goes so far as to ask Allstate to “admit” that he has satisfied various prerequisites to maintaining a class action. (/d. at 3.) For example, plaintiffs counsel asks Allstate to “admit” that: the “Class is so numerous that joinder of all members is impracticable”; there “are questions of law or fact common to the Class; the “ claims of Jon P. Patterson are typical of the claims of the Class”; that plaintiff and his counsel “will fairly and adequately protect the interests of the Class”, and that the predominance and superiority requirements are met. (/d.) Such requests are clearly not the sorts DEFENDANT ALLSTATE PROPERTY AND CASUALTY INSURANCE COMPANY’S MOTION TO QUASH PLAINTIFF'S OCTOBER 15, 2010 DISCOVERY REQUESTS, AND REQUEST FOR SANCTIONS - PAGE 10of admissions of fact allowed by the relevant rules. See, e.g, Gore v. Cunningham, 297 8.W.2d 287, 291 (Tex. Civ. App.—Beaumont 1956, writ ref'd nr.e.) (the rule regarding requests for admissions does not contemplate or authorize admissions to questions involving points of law). In addition, all the document requests and interrogatories relate to plaintiff's counsel’s Amended Class Certification Motion. (/d. at 4-7.) For example, plaintiffs counsel seeks any and all documents related to his requests to admit, copies of all Explanation of Benefits forms and numerous documents related to Allstate’s medical bill review system. (id. at 4-6). Plaintiff's counsel has also propounded interrogatories related to his requests to admit, and seeks information such as the number and identity of the class members in his amended class certification definition. (Jd. at 6-7.) Any discovery related to plaintiff's counsel’s Amended Motion is flagrantly improper. For all the reasons set forth in Allstate’s previously filed Supplemental Opposition to Plaintiff's Request to Submit Amended Class Certification Motion, plaintiff's counsel’s new proposed class is nothing more than a rehash of his prior attempt at class certification, which this Court has already rejected when it denied plaintiff's original class certification motion. Because plaintiff's counsel should not be permitted to proceed with his Amended Motion (and this Court certainly has not given him leave to do so), plaintiff's counsel’s latest discovery, even if it were timely, has no relevance whatsoever to any live issue in this case. Indeed, that plaintiffs counsel even propounded such discovery shows a clear intent to harass Allstate. Plaintiff's counsel knows full well that: (a) this Court has already denied class certification in connection with plaintiffs counsel’s substantively identical original class certification motion; and (b) plaintiff's counsel does not have permission to proceed with his Amended Motion. Nonetheless, plaintiff's counsel has persisted in filing baseless motions DEFENDANT ALLSTATE PROPERTY AND CASUALTY [INSURANCE COMPANY'S MOTION TO QUASH PLAINTIFF'S OCTOBER 15, 2010 DISCOVERY REQUESTS, AND REQUEST FOR SANCTIONS — PAGE 11related to his “new” class and has now propounded discovery related to that class. So, even though Allstate has already prevailed on class certification after years of litigating this matter, Allstate has, as a result of plaintiff's counsel’s antics, had to incur the time and expense of responding to plaintiffs counsel’s specious pleadings. And now plaintiffs counsel has propounded equally specious discovery requests. These include, inter alia, every EOB Allstate has sent without limitation, and numerous documents and information related to plaintiffs counsel’s ill-conceived “amended” class which span more than 15 years. Allstate should not be required to incur the time and expense of responding to any discovery, let alone such broad- brush discovery requests — particularly where, as here, the class certification proceedings have already been resolved in Allstate’s favor and discovery has been closed for years. The Court should therefore grant Allstate’s Motion to Quash. Sanctions Are Warranted Here The Court should also impose sanctions based on the cumulative impact of plaintiff's counsel’s latest discovery requests and baseless pleadings. These sanctions should be imposed on the counsel that has masterminded these specious pleadings, Bryan Powers, not on plaintiff or Mr. Powers’ local counsel, Ramon Garcia, who we have no reason to believe were involved in creating these frivolous pleadings. Texas Rule of Civil Procedure 13 authorizes imposition of sanctions against an attorney, a represented party, or both, who file pleadings that are (1) groundless and brought in bad faith or (2) groundless and brought to harass. Tex. R. Civ. P. 13; City of Houston v. Chambers, 899 $.W.2d 306, 309 (Tex. App. — Houston [14” Dist] 1995, no writ). In addition, Rule 215.3 provides that a court may impose sanctions if the “court finds a party is abusing the discovery process in seeking, making or resisting discovery or if the court finds that any interrogatory or DEFENDANT ALLSTATE PROPERTY AND CASUALTY INSURANCE COMPANY'S MOTION TO QUASH PLAINTIFF'S. OCTOBER 15, 2010 DISCOVERY REQUESTS, AND REQUEST FOR SANCTIONS — PAGE 12request for inspection or production is unreasonably frivolous, oppressive, or harassing[.]” Tex. R. Civ. P. 215.3. Sanctions are imposed to ensure compliance with discovery rules, to deter other litigants from similar misconduct, and to punish noncompliance. See, ¢.g., Chrysler Corp. yv. Blackmon, 841 8.W.2d 844, 849 (Tex. 1992) (“The legitimate purposes of discovery sanctions are threefold: 1) to secure compliance with discovery rules; 2) to deter other litigants from similar misconduct; and 3) to punish violators”); Cire v. Cummings, 134 S.W.3d 835, 839 (Tex. 2004) (“Sanctions are used to assure compliance with discovery and deter those who might be tempted to abuse discovery in the absence of a deterrent”). This case epitomizes the type of situation for which the imposition of sanctions is warranted. Plaintiff's counsel’s latest pleadings—i.e., his unauthorized merits class certification brief, his motion for nonsuit which violates the clear Texas law on nonsuits, his motion to modify judgment to require findings even though such findings are not required in a non-Rule 43(b)(3) class certification proceeding, which is what existed here, and his motion for discovery sanctions in the face of a Motion to Quash that discovery to which he never objected—are not only unauthorized, they are clearly groundless and brought in bad faith and to harass. Class certification in connection with plaintiff's original class certification motion has been denied, and that denial applies with equal force to plaintiffs counsel’s substantively identical Amended Motion. Knowing full well that he does not even have permission to proceed with his Amended Motion, plaintiff's counsel has persisted in filing a raft of groundless pleadings related to the Motion. For all the reasons set forth fully in Allstate’s responses to plaintiff's counsel’s motions, those motions are utterly without merit. Given the procedural posture of this case, these motions were clearly filed in bad faith, and there could be no other purpose for filing them other than to harass Allstate. DEFENDANT ALLSTATE PROPERTY AND CASUALTY INSURANCE COMPANY'S MOTION TO QUASH PLAINTIFF'S OCTOBER 15, 2010 DISCOVERY REQUESTS, AND REQUEST FOR SANCTIONS - PAGE 13Further, plaintiff's counsel’s latest discovery, like the numerous outrageous pleadings he has filed, is unreasonably frivolous, because discovery is closed and plaintiffs counsel is not entitled to discovery related to his amended class when he does not even have permission to proceed with that class. The discovery is also oppressive and harassing, because Allstate should not be required to respond to such “class”-related discovery when Allstate has already prevailed on class certification and the class certification proceedings and discovery have closed. Moreover, plaintiff's counsel’s admission requests are, in flagrant violation of the rules, requests to admit conclusions of law rather than requests to admit statements of fact. Given plaintiff's counsel’s relentless filing of ludicrous pleadings, and now his equally absurd discovery requests, it is clear plaintiff's counsel is bent on “abusing discovery in the absence of a deterrent,” and also on filing groundless and frivolous pleadings. The Court should put an end to plaintiff's counsel’s abusive tactics, which are only unnecessarily taking up this Court’s time and effort, by imposing sanctions. CONCLUSION For all the foregoing reasons, defendant, Allstate Property and Casualty Company, respectfully requests the Court enter a protective order quashing plaintiff's October 15, 2010 discovery requests and imposing sanctions to deter plaintiff's counsel’s abuse of the pleading and discovery process. DEFENDANT ALLSTATE PROPERTY AND CASUALTY INSURANCE COMPANY'S MOTION TO QUASH PLAINTIFF'S OCTOBER 15, 2010 DISCOVERY REQUESTS, AND REQUEST FOR SANCTIONS — PAGE 14mii JO By: ‘ ‘ ——E—E——e ROGER D. HIGGINS State Bar No. 09601500 THOMPSON, COE, COUSINS & [RONS, L.L-P. 700 N. Pearl Street, 25" Floor Dallas, Texas 75201 Telephone:(214) 871-8200 Telecopy: (214) 871-8209 VICTOR VICINAIZ . State Bar No. 20562300 ROERIG, OLIVEIRA & FISHER, L.L.P. 10225 N. 10” Street McAllen, Texas 78504 Telephone:(956) 393-6300 Telecopy: (956) 386-1625 ATTORNEYS FOR DEFENDANTS CERTIFICATE OF SERVICE I hereby certify that on October 20, 2010, a true and correct copy of the foregoing was delivered by fax and certified mail, return receipt requested to: Bryan Powers Attorney at Law P.O. Box 1685 Canyon Lake, TX 78133 Ramon Garcia 222 West University Edinburg, TX 78539 Vdd Victor Vicinaiz DEFENDANT ALLSTATE PROPERTY AND CASUALTY INSURANCE COMPANY'S MOTION TO QUASH PLAINTIFF'S: OCTOBER 15, 2010 DISCOVERY REQUESTS, AND REQUEST FOR SANCTIONS — PAGE 15na. : 830 9643763 pl Oct 15 10 03:15 Bryan Powers CAUSE NO, C-6519-98B JON P. PATTERSON, D.C,, et al, IN THE DISTRICT COURT OF Plaintiffs, vs. HIDALGO COUNTY, TEXAS ALLSTATE PROPERTY AND CASUALTY INSURANCE COMPANY, e¢ al, ee RHR ee we gy Defendants. 93" JUDICIAL DISTRICT PLAINTIFF'S DISCOVERY REQUESTS TO ALLSTATE SERVED ON OCTOBER 15, 2010 INSTRUCTIONS: L interrogatories are propounded under Texas Rule of Civil Procedure 197, Requests for Production under Rule 196, and Requests for Admissions under Rule 198. Service of a full Tesponse to each is required within thirty days of service hereof. 2. Full and complete Tesponses to requests for production are to be segregated by category requested and are to be served on the undersigned by U.S. Mail. 3. Documents produced are to be Segregated and labeled by category and served on the undersigned by serving legible duplicate originals by U.S. Mail, United Parcel Service, or Federal Express. 4. Interrogatories are to be answered separately, in writing, and signed under oath and the answers served on the undersigned by U.S. Mail 5. Each Request for Admission is required to be to be admitted or denied in writing and signed. If Allstate in good faith is unable to admit the whole request, then admit the part of the LbOct 15 10 03:15p Bryan Powers 830 9643763 p2 request that Allstate can admit and sign it. Serve the Tesponses on the undersigned by U.S. Mail. 6. Any objections to a discovery request made by Allstate raust point out the specific discovery request objected to and must state specifically the good-faith legal and/or factual basis for the objection and the extent to which the party is refusing to comply with the request. 7. Redact from each EOB produced the name and address of the insured and of the patient. DEFINITIONS: 1. “Class” means: All licensed medical providers who are creditor beneficiaries of insurance contracts between Allstate and the patient or assignees of Patients’ rights against Allstate who, during the period from October 4, 1994, to date of final judgment (a) submitted first-party claims to Allstate pursuant to an automobile policy’s medical payment/personal injury protection (“PIP”) coverage (collectively, “Medpay” claims) for payment of medical expenses, (b) had their claim submited to computer review, (c) received or were tendered partial payment inan amount less than the submitted medical expenses, and ( ‘d) received or were tendered an amount less then the stated. policy limits. Excluded from the Class are (a) PIP and Medpay claims that Allstate referred to its special investigative/fraud unit and that were found to be fraudulent, (b) workers compensation medical payment claims, and (c) claims of the Texas judiciary, employees of Allstate and their immediate families. 2. “Controversy” means the claims of Jon P. Patterson, D.C. and the class members, as creditor beneficiaries of the insurance contracts between Alistate and the insureds, against Allstate for breach of the insurance contracts. 3. “EOB” means a computer generated medical audit report called “Explanation of -2-: 763, po Oct 15 10 03:15p Bryan Powers 830 9643) Benefits” sent to Class members during the Class period. 4, “Reason code” means a notation on an EOB that explains the reason for the amount that Allstate pays on a claim in the line in which the notation appears. 5. “Reduction” as shown on an EOB means the difference in the medical expenses charged and the amount Alistate paid for each line item as shown on the EOB. 6. “Total reduction” as shown on an EOB means a total of the reductions, EACTS TO BE ADMITTED OR DENIED L. The Class is so numerous that joinder of all members is impracticable. 2. ‘There are questions of law or fact common to the Class. 3. The claims of Jon P. Patterson are typical of the claims of the Class. 4, Jon P. Patterson, Bryan Powers, and Ramon Garcia will fairly and adequately protect the interests of the Class. 5. ‘Those questions of law or fact common to the members of the Class predominate over any questions affecting only individual members of the Class, 6. A class action is superior to other available methods for the fair and efficient adjudication of this controversy, considering the interest of members of the Class in individually controlling the prosecution of separate actions; the extent and nature of any litigation concerning the controversy already commenced by oragainst members of the Class; the desirability of concentrating the litigation of plaintiff's claims in this forum; the difficulties likely to be encountered in the management of this class action. 7. Allstate sent each member of the Class an EOB. 8. Each such EOB indicated a reduction in the PIP or Medpay claim of the Class 3.: 4 Oct 15 10 03:15p Bryan Powers 830 9643763 D. member. 9. Bach such EOB indicated a total reduction. Cl BE PRODUCED 1. If Allstate does not unqualifiedly admit request for admission | , identify and produce all documents that provide factual Support for the failure to unqualificdly admit request for admission 1. 2. if Alistate does not unqualifiedly admit request for admission 2, identify and produce all documents that provide factual support for the failure to unqualified!y admit request for admission 2. 3. If Allstate does not unqualifiedly admit request for admission 3. identi ‘fy and produce all documents that provide factual support for the failure to unqualifiedly admit request for admission 3. 4, If Allstate does not unqualifiedly admit request for admission 4, identify and produce all documents that provide factual support for the failure to unqualifiedly admit request for admission 4. 5. If Allstate does not unqualifiedly admit request for admission 5, identify and produce all documents that provide factual support for the failure to unqualifiedly admit request for admission 5. 6. If Alistate does not unqualifiedly admit request for admission 6, identify and produce all documents that provide factual support for the failure to unqualifiedly admit request for admission 6. 7. Produce all automobile insurance policy forms used by Allstate in Texas during the 4.Oct 15 10 03:16p Bryan Powers 830 9643763 p.5 class period. 8. Produce legible duplicate originals of all EOBs in the order in which they are kept in the ordinary course of business or in chronological order. [Any EOBs kept on a computer may be produced by hard copy, appropriately redacted] - 9, Produce true and legible copies of each and every contract in effect between Allstate and National BioSystems since October 4, 1994. 10. Produce a copy of each and every EOB since October 4, 1994, that was supported by an in-person evaluation of the patient's condition by a licensed medical practitioner other than the medical practitioner submitting the claim which was the subject of the EOB. Il. Produce any and all contracts existing since October 4, 1994, between Allstate and the writer of MBRS. 12. Any and all correspondence and contracts existing since October 4, 194, between Alistate and ADP or HNC. 13. Any and all documents that refer to, relate to, or evidence the steps that Allstate has taken since October 4, 1994, to determine whether MRBS is a reliable determiner of the reasonableness of medical expenses. 14, Foreach and every configuration of MRBS databases sincv October 4. 1994, un y and all documents which aione or collectively constitute a schema for each such configuration. 15. Any and all contracts existing since October 4, 1994, between Allstate and any software or database designer to supply software, database design, or advise on medical bill evaluation for medpay and PIP coverage. 16. Any and all documents referring to, reflecting, or evidencing a repricing or capping 5-Oct 15 10 03:16p Bryan Powers . 830 9643763 ps6 of Medpay or PIP expenses by application of any specific EOB Reason Code for any members of the class. INTERROGATORIES 1, If Allstate does not unqualifiedly admit request for admission 1_ state the factual basis for the failure te unqualifiedly admit request for admission 1, 2. If Allstate does not unqualifiedly admit request for admission 2. state the factual basis for the failure to unqualifiedly admit request for admission 2. 3. If Allstate does not unqualifiedly admit request for admission 3, state the factual basis for the failure to unqualifiedly admit request for admission 3. 4, IfAlistate does not unqualifiedly admit request for admission 4, state the factual basis for the failure to unqualifiedly admit request for admission 4. 5. If Allstate does not unqualifiedly admit request for admission 5, state the factual basis for the failure to unqualifiedly admit request for admission 5. 6. If Allstate does not unqualifiedly admit request for admission 6, state the factual basis for the failure to unqualifiedly admit request for admission 6. | 7. State any legal or factual objections to the trial plan set out in the proposed order on plaintiff's second amended motion for class certification which was hand delivered to Allstate’s attomey at the court hearing on October 6, 2010. 8. How many members of the Class are there? 9. State the name of each Texas County in which a member of the class has lived since 1994, 10, State each and every MBRS system and all EOB Reason Codes that, since October 6: eo? Oct 15 10 03:16p Bryan Powers 830 9643763 4, 1994, have had the effect of repricing or capping Medpay or PIP expenses of covered Allstate claimants to undisclosed, pre-determined percentiles or percentages within policy Jimits so as to Partially deny medical bills that exceed these predetermined percentiles or percentages as “unreasonable” or “unnecessary.” 11. State the name and address of each and every member of the class. Respectfully submitted, ~ os } CtEx- Bryan Péwers . SBN; 16215700 P.O. Box 1685 Canyon Lake, Texas 78133 Tel, 830-964-3762 Fax. 830964-3763 Ramon Garcia SBN: 07641800 222 West University Edinburg, Texas 78539 Tel, 956-383-7441 Fax. 956-381-0825 Attomeys for Plaintiff and the Class CATE 0) ICE I certify that I served the following person the foregaing document as indicated on October ' 15, 2010. : Roger D. Higgins by fax to 214-871-8209 Thompson, Coe, Cousins & Irons, L.L.P. . 2 700 North Pearl, 25" Floor } D Dallas, Texas a Bryan P 1.