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Electronically Filed
1/6/2021 5:33 PM
Hidalgo County District Clerks
Reviewed By: Aaron Castaneda
CAUSE NO. C-5246-19-D
RAUL J. CANALES and IN THE DISTRICT COURT
EZEQUIEL ROSALES GONZALEZ
Plaintiffs,
Vv. 206 JUDICIAL DISTRICT
MS TRANSPORTATION, LLC and
SEBASTIAN S. MACIAS
Defendants. HIDALGO COUNTY, TEXAS
DEFENDANTS, MS TRANSPORTATION, LLC and SEBASTIAN S. MACIAS’
RESPONSE IN OPPOSITION TO PLAINTIFFS’ MOTION TO STRIKE
THE COUNTER-AFFIDAVITS OF CAROLE DEVOS
TO THE HONORABLE JUDGE OF SAID COURT:
Come now MS TRANSPORTATION, LLC and SEBASTIAN S. MACIAS, Defendants
herein, and file their Response in Opposition to Plaintiffs’ Motion to Strike the Counter-A ffidavits
of Carole Devos and in support would show:
I
This lawsuit arises out of a vehicular accident that occurred on September 12, 2018 when a
light pole allegedly struck the hood of a vehicle being driven by Plaintiff Raul J. Canales and in
which Plaintiff Ezequiel Rosales Gonzalez was a passenger. Plaintiffs allege that the accident in
question was caused by Defendant Sebastian S. Macias who was operating a tractor/trailer owned
by Defendant MS Transportation, LLC at the time of the accident in question. See Exhibit “A”,
Plaintiffs’ Second Petition, Jury Demand, Request for Disclosure, and Rule 193.7 Notice.
Specifically, Plaintiffs allege that they suffered “severe, excruciating, and painful debilitating
injuries.” See Id. at 5.1. Plaintiffs further contend that they have “sustained significant injuries
and damages in the past and will, in reasonable probability, sustain these damages in the future”.
See Id. at 48.1.
DEFENDANTS MS TRANSPORTATION, LLC and SEBASTIAN S. MACIAS’ RESPONSE IN OPPOSITION
TO PLAINTIFFS’ MOTION TO STRIKE THE COUNTER-AFFIDAVITS OF CAROLE DEVOS - Page 1
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Hidalgo County District Clerks
Reviewed By: Aaron Castaneda
Plaintiff Raul J. Canales alleges that he sustained injuries to his low back, neck and left
shoulder. See Id. at 95.4, 5.5, and 5.6. Plaintiff Ezequiel Rosales Gonzalez contends that he
suffered injuries to his neck, right shoulder and left foot pain. See Id. at 95.7.
IL.
On December 14, 2020 both Plaintiffs submitted to an Independent Medical Examination
conducted by Charles Kennedy M.D. in San Antonio, Texas. See attached IME Report pertaining to
Raul J. Canales as Exhibit “B” and IME Report pertaining to Ezequiel Gonzalez as Exhibit “C”. It
should be noted that Dr. Kennedy has opined that neither Plaintiff is a future surgical candidate. See
Id.
iil.
Pursuant to Section 18.001 of the Texas Civil Practice and Remedies Code, Defendants filed
the Affidavits of Carole Devos countering the charges for the services provided by:
1 Principle Diagnostics (Raul Canales) Exhibit “D”, Affidavit of Carole Devos;
2 Quantum Pain and Orthopedics (Raul Canales) Exhibit “E”, Affidavit of Carole Devos;
Dr. Sanjay Misra (Raul Canales) (June 19, 2020) - Exhibit “F”, Affidavit of Carole Devos;
Dr. Sanjay Misra (Raul Canales) (July 16, 2020) — Exhibit “G”, Affidavit of Carole Devos;
Garcia Chiropractic Clinic (Ezequiel Rosales Gonzalez) — Exhibit “H”, Affidavit of Carole
Devos; and
Premier Medical Imaging (Ezequiel Rosales Gonzalez) — Exhibit “I”, Affidavit of Carole
Devos.
In turn, Plaintiffs filed a Motion to Strike each of the Counter-Affidavits of Carole Devos.
Defendants would submit that each of the counter-affidavits of Carole Devos meet the requirements
of Texas Civil Practice and Remedies Code 18.001 and that Plaintiffs’ Motion to Strike should be
DEFENDANTS MS TRANSPORTATION, LLC and SEBASTIAN S. MACIAS’ RESPONSE IN OPPOSITION
TO PLAINTIFFS’ MOTION TO STRIKE THE COUNTER-AFFIDAVITS OF CAROLE DEVOS - Page 2
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Hidalgo County District Clerks
Reviewed By: Aaron Castaneda
denied in its entirety.
Iv.
Under Texas Civil Practice and Remedies Code 18.001 (f), the counter affidavit must give
reasonable notice of the basis on which the party serving it intends at trial to controvert the claim
reflected by the initial affidavit and must be taken before a person authorized to administer oaths.
See Texas Civil Practice and Remedies Code 18.001 (f). The counter affidavit must be made by a
person who is qualified, by knowledge, skill, experience, training, education, or other expertise,
to testify in contravention of all or part of any of the matters contained in the initial affidavit. The
counter affidavit may not be used to controvert the causation element of the cause of action that
is the basis for the civil action. See Id. Section 18.001 goes on to state that if continuing
services are provided after a relevant deadline under this 18.001, a party that served a counter
affidavit under Subsection (e) or (e-1) may supplement the counter affidavit on or before the
30th day before the date the trial commences. See Texas Civil Practice and Remedies Code
18.001 (h)(2).
Vv.
Plaintiffs assert that Devos’ controverting amounts are irrelevant to the charges “reflected by
the initial affidavit, that Devos does not offer an opinion that would be appropriate at trial and that
Devos has not shown herself to be qualified to controvert the reasonableness of Plaintiffs’ medical
treatment. To the contrary Ms. Devos has properly controverted the amounts in the initial affidavits,
her opinions are appropriate for trial and she is more than qualified under Texas law to offer her
opinions.
VI.
Carole Devos has worked as an Office Administrator and Business Manager of medical
DEFENDANTS MS TRANSPORTATION, LLC and SEBASTIAN S. MACIAS’ RESPONSE IN OPPOSITION
TO PLAINTIFFS’ MOTION TO STRIKE THE COUNTER-AFFIDAVITS OF CAROLE DEVOS - Page 3
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Hidalgo County District Clerks
Reviewed By: Aaron Castaneda
practices for providers for the past 30 years and she is a Certified Professional Coder, Certified
Professional Biller, Certified Professional Medical Auditor and Certified Professional Compliance
Officer. See Exhibits “D-I”, Affidavits of Carole Devos. Additionally, Ms. Devos has spent an
extensive time of her professional life in “charge master review”. See Id.
Further, in her affidavits, Ms. Devos specifically sets out the factors used to establish “Usual
Customary and Reasonable Charges (Billed Charges). See Id.
VIL.
Recent holdings from Texas Courts absolutely support the admissibility of Ms. Devos’
opinions in this case. In, Jn re North Cypress Medical Center Operating Company, Ltd.,
2018 WL 1974376 (Tex. 2018), the Court found that it was proper to challenge the
chargemaster or billed charges of medical providers by comparing those charges to the
amounts the same providers typically accepted from private insurers and government
insurance programs, such as Medicare. In that case, the Court gave examples of the types of
documents that can be considered in determining whether a specific medical charge is
reasonable, as follows:
"all contracts regarding negotiated or reduced rates for the hospital services provided
to Plaintiff in which Defendant is a party, including those with Aetna, First Care,
United Healthcare, Blue Cross Blue Shield, Medicare, and Medicaid.”
In North Cypress the Texas Supreme Court agreed that the discovery of contracts
between the hospital and private insurers and government plans was necessary to establish
whether the amount that the hospital was charging the Plaintiff for emergency services was
excessive in comparison to the rates for the same services provided to other patients in the
same facility. The Court agreed that the contracts were discoverable because they would
show that the hospital customarily and regularly was paid significantly less for those
DEFENDANTS MS TRANSPORTATION, LLC and SEBASTIAN S. MACIAS’ RESPONSE IN OPPOSITION
TO PLAINTIFFS’ MOTION TO STRIKE THE COUNTER-AFFIDAVITS OF CAROLE DEVOS - Page 4
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Hidalgo County District Clerks
Reviewed By: Aaron Castaneda
services, making the contracts relevant to the issues of the reasonableness of the charges.
The Texas Supreme Court based its opinion on a number of authoritative studies that
have documented the increasingly arbitrary nature of chargemaster prices, noting that these
charges have lost any direct connection to actual costs or to the amount the hospital actually
expects to receive in exchange for its goods or services. The Court stated its reasoning, as
follows:
"However, the issue is not whether Roberts may take advantage of insurance she did not
have. Rather, because a valid hospital lien may not secure charges that exceed a reasonable
and regular rate, the central issue in a case challenging such a lien is what a reasonable
and regular rate would be. And because of the way chargemaster pricing has evolved, the
charges themselves are not dispositive of what is reasonable, irrespective of whether the
patient being charged has insurance. By contrast, a hospital's reimbursements from
private insurers and public payers comprise the vast majority of its payments for services
rendered. We fail to see how the amounts a hospital accepts as payment from most of its
patients are wholly irrelevant to the reasonableness of its charges to other patients for the
same services... reimbursements from insurers and government payers comprise the bulk
of a hospital's income for services rendered. It defies logic to conclude that those payments
have nothing to do with the reasonableness of charges to the small number of patients who
pay directly ... we hold that the trial court did not abuse its discretion in concluding that
the amounts North Cypress is willing to accept as payment for services rendered to the vast
majority of its patients is relevant to the reasonableness of its charges for those same
services to uninsured patients." Id
VIL.
The methodology utilized by Ms. Devos in evaluating whether the charges for the
medical providers in this case were reasonable is the exact same methodology that was
expressly approved by the Texas Supreme Court in the North Cypress case. Therefore, in
addition Plaintiffs Motion is unmeritorious because Ms. Devos used the precise
methodology that has been expressly approved by the Texas Supreme Court for the purpose
of evaluating whether medical charges are reasonable.
IX.
In Jn re Larry Brown and JBS Carriers, Inc., 2019 WL 1032458 (Tex. App. Tyler
DEFENDANTS MS TRANSPORTATION, LLC and SEBASTIAN S. MACIAS’ RESPONSE IN OPPOSITION
TO PLAINTIFFS’ MOTION TO STRIKE THE COUNTER-AFFIDAVITS OF CAROLE DEVOS - Page 5
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Hidalgo County District Clerks
Reviewed By: Aaron Castaneda
2019), the Court of Appeals in Brown found that a non-practicing nurse, who had case
management and claims analysis experience with insurance companies and had worked with
databases for medical costs and was familiar with medical coding and billing practices, was
qualified to file a controverting affidavit under Chapter 18. The Court found that it was not
necessary for such a person to be a medical doctor or have medical training in order to
perform this function. The Court expressly relied on the Supreme Court case of Gunn v.
McCoy, 554 S.W. 3d 645 (Tex. 2018), where the Court held that insurance subrogation
agents were qualified to use their databases to create affidavits regarding the reasonableness
of medical expenses.
X.
Here, Carole Devos’ affidavits give reasonable notice of the basis on which the
Defendants intend at trial to controvert. Specifically, Ms. Devos’ calculations are based on the
Usual Customary and Reasonable (UCR) for each procedure code submitted by each provider.
As such, Defendants have demonstrated that Carole Devos is certainly qualified by her education,
training and experience to testify concerning the reasonableness of medical charges, including the
medical charges at issue involving Plaintiffs. Ms. Devos has over 30 years in the medical billing
industry. While it is undisputed that only medical doctors can testify that medical treatment is
necessary to treat a certain condition, persons with the knowledge, skill, training, and experience
like Ms. Devos can certainly testify whether bills are reasonable.
In addition, the methodology used by Ms. Devos is based on United States government and
Texas Department of Insurance databases, and methodologies which are utilized by these databases
and by various agencies of the United States and Texas governments to determine reasonable
medical charges for specific medical procedures.
DEFENDANTS MS TRANSPORTATION, LLC and SEBASTIAN S. MACIAS’ RESPONSE IN OPPOSITION
TO PLAINTIFFS’ MOTION TO STRIKE THE COUNTER-AFFIDAVITS OF CAROLE DEVOS - Page 6
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Hidalgo County District Clerks
Reviewed By: Aaron Castaneda
Ms. Devos’ methodology for evaluating medical charges is based on current methodologies
and data which are approved by experts in the field. Accordingly, Defendants have met their
burden of proof to show that Ms. Devos’ affidavits meet the standards set out in Texas Civil
Practice and Remedies Code 18.001.
WHEREFORE, Defendants MS TRANSPORTATION, LLC and SEBASTIAN S.
MACIAS request that the Court Deny Plaintiffs’ Motion to Strike the Counter-Affidavits of Carole
Devos in its entirety and further relief to which Defendants may show themselves to be justly
entitled.
Respectfully submitted,
CHAVES, OBREGON & PERALES, L.L.P.
802 N. Carancahua, Suite 2100
Corpus Christi, TX 78470
(361) 884-5400
(361) 884-5401 (facsimile)
By: ___/s/ Douglas E. Chaves
DOUGLAS E. CHAVES
State Bar No. 04161400
dchaves@errlawfirm.com
AIDAN PERALES
State Bar No. 24027604
aperales@crrlawfirm.com
ATTORNEYS FOR DEFENDANTS,
MS TRANSPORTATION, LLC and
SEBASTIAN S. MACIAS
DEFENDANTS MS TRANSPORTATION, LLC and SEBASTIAN S. MACIAS’ RESPONSE IN OPPOSITION
TO PLAINTIFFS’ MOTION TO STRIKE THE COUNTER-AFFIDAVITS OF CAROLE DEVOS - Page 7
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Hidalgo County District Clerks
Reviewed By: Aaron Castaneda
CERTIFICATE OF SERVICE
Thereby certify that a copy of the foregoing instrument has been served upon all counsel of
record to this proceeding by the manner indicated below, on this the 6" day of January 2021.
/s/ Douglas E. Chaves
DOUGLAS E. CHAVES
Via e-serve
Langdon “Trey” Smith
lsmith@jimadler.com
Michael Gomez
mgomez@jimadler.com
JIM S. ADLER & ASSOCIATES
3D/International Tower
1900 West Loop South, 20" Floor
Houston, Texas 77027
713/735-2114-Telephone
713/781-2514-Facsimile
Attorneys for Plaintiff
DEFENDANTS MS TRANSPORTATION, LLC and SEBASTIAN S. MACIAS’ RESPONSE IN OPPOSITION
TO PLAINTIFFS’ MOTION TO STRIKE THE COUNTER-AFFIDAVITS OF CAROLE DEVOS - Page 8
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Electronically Filed 1/6/2021 5:33 PM Hidalgo County District Clerks Reviewed By: Aaron Castaneda CAUSE NO. C-5246-19-D RAUL J. CANALES and IN THE DISTRICT COURT EZEQUIEL ROSALES GONZALEZ Plaintiffs, Vv. 206 JUDICIAL DISTRICT MS TRANSPORTATION, LLC and SEBASTIAN S. MACIAS Defendants. HIDALGO COUNTY, TEXAS DEFENDANTS, MS TRANSPORTATION, LLC and SEBASTIAN S. MACIAS’ RESPONSE IN OPPOSITION TO PLAINTIFFS’ MOTION TO STRIKE THE COUNTER-AFFIDAVITS OF CAROLE DEVOS TO THE HONORABLE JUDGE OF SAID COURT: Come now MS TRANSPORTATION, LLC and SEBASTIAN S. MACIAS, Defendants herein, and file their Response in Opposition to Plaintiffs’ Motion to Strike the Counter-A ffidavits of Carole Devos and in support would show: I This lawsuit arises out of a vehicular accident that occurred on September 12, 2018 when a light pole allegedly struck the hood of a vehicle being driven by Plaintiff Raul J. Canales and in which Plaintiff Ezequiel Rosales Gonzalez was a passenger. Plaintiffs allege that the accident in question was caused by Defendant Sebastian S. Macias who was operating a tractor/trailer owned by Defendant MS Transportation, LLC at the time of the accident in question. See Exhibit “A”, Plaintiffs’ Second Petition, Jury Demand, Request for Disclosure, and Rule 193.7 Notice. Specifically, Plaintiffs allege that they suffered “severe, excruciating, and painful debilitating injuries.” See Id. at 5.1. Plaintiffs further contend that they have “sustained significant injuries and damages in the past and will, in reasonable probability, sustain these damages in the future”. See Id. at 48.1. DEFENDANTS MS TRANSPORTATION, LLC and SEBASTIAN S. MACIAS’ RESPONSE IN OPPOSITION TO PLAINTIFFS’ MOTION TO STRIKE THE COUNTER-AFFIDAVITS OF CAROLE DEVOS - Page 1 Electronically Filed 1/6/2021 5:33 PM Hidalgo County District Clerks Reviewed By: Aaron Castaneda Plaintiff Raul J. Canales alleges that he sustained injuries to his low back, neck and left shoulder. See Id. at 95.4, 5.5, and 5.6. Plaintiff Ezequiel Rosales Gonzalez contends that he suffered injuries to his neck, right shoulder and left foot pain. See Id. at 95.7. IL. On December 14, 2020 both Plaintiffs submitted to an Independent Medical Examination conducted by Charles Kennedy M.D. in San Antonio, Texas. See attached IME Report pertaining to Raul J. Canales as Exhibit “B” and IME Report pertaining to Ezequiel Gonzalez as Exhibit “C”. It should be noted that Dr. Kennedy has opined that neither Plaintiff is a future surgical candidate. See Id. iil. Pursuant to Section 18.001 of the Texas Civil Practice and Remedies Code, Defendants filed the Affidavits of Carole Devos countering the charges for the services provided by: 1 Principle Diagnostics (Raul Canales) Exhibit “D”, Affidavit of Carole Devos; 2 Quantum Pain and Orthopedics (Raul Canales) Exhibit “E”, Affidavit of Carole Devos; Dr. Sanjay Misra (Raul Canales) (June 19, 2020) - Exhibit “F”, Affidavit of Carole Devos; Dr. Sanjay Misra (Raul Canales) (July 16, 2020) — Exhibit “G”, Affidavit of Carole Devos; Garcia Chiropractic Clinic (Ezequiel Rosales Gonzalez) — Exhibit “H”, Affidavit of Carole Devos; and Premier Medical Imaging (Ezequiel Rosales Gonzalez) — Exhibit “I”, Affidavit of Carole Devos. In turn, Plaintiffs filed a Motion to Strike each of the Counter-Affidavits of Carole Devos. Defendants would submit that each of the counter-affidavits of Carole Devos meet the requirements of Texas Civil Practice and Remedies Code 18.001 and that Plaintiffs’ Motion to Strike should be DEFENDANTS MS TRANSPORTATION, LLC and SEBASTIAN S. MACIAS’ RESPONSE IN OPPOSITION TO PLAINTIFFS’ MOTION TO STRIKE THE COUNTER-AFFIDAVITS OF CAROLE DEVOS - Page 2 Electronically Filed 1/6/2021 5:33 PM Hidalgo County District Clerks Reviewed By: Aaron Castaneda denied in its entirety. Iv. Under Texas Civil Practice and Remedies Code 18.001 (f), the counter affidavit must give reasonable notice of the basis on which the party serving it intends at trial to controvert the claim reflected by the initial affidavit and must be taken before a person authorized to administer oaths. See Texas Civil Practice and Remedies Code 18.001 (f). The counter affidavit must be made by a person who is qualified, by knowledge, skill, experience, training, education, or other expertise, to testify in contravention of all or part of any of the matters contained in the initial affidavit. The counter affidavit may not be used to controvert the causation element of the cause of action that is the basis for the civil action. See Id. Section 18.001 goes on to state that if continuing services are provided after a relevant deadline under this 18.001, a party that served a counter affidavit under Subsection (e) or (e-1) may supplement the counter affidavit on or before the 30th day before the date the trial commences. See Texas Civil Practice and Remedies Code 18.001 (h)(2). Vv. Plaintiffs assert that Devos’ controverting amounts are irrelevant to the charges “reflected by the initial affidavit, that Devos does not offer an opinion that would be appropriate at trial and that Devos has not shown herself to be qualified to controvert the reasonableness of Plaintiffs’ medical treatment. To the contrary Ms. Devos has properly controverted the amounts in the initial affidavits, her opinions are appropriate for trial and she is more than qualified under Texas law to offer her opinions. VI. Carole Devos has worked as an Office Administrator and Business Manager of medical DEFENDANTS MS TRANSPORTATION, LLC and SEBASTIAN S. MACIAS’ RESPONSE IN OPPOSITION TO PLAINTIFFS’ MOTION TO STRIKE THE COUNTER-AFFIDAVITS OF CAROLE DEVOS - Page 3 Electronically Filed 1/6/2021 5:33 PM Hidalgo County District Clerks Reviewed By: Aaron Castaneda practices for providers for the past 30 years and she is a Certified Professional Coder, Certified Professional Biller, Certified Professional Medical Auditor and Certified Professional Compliance Officer. See Exhibits “D-I”, Affidavits of Carole Devos. Additionally, Ms. Devos has spent an extensive time of her professional life in “charge master review”. See Id. Further, in her affidavits, Ms. Devos specifically sets out the factors used to establish “Usual Customary and Reasonable Charges (Billed Charges). See Id. VIL. Recent holdings from Texas Courts absolutely support the admissibility of Ms. Devos’ opinions in this case. In, Jn re North Cypress Medical Center Operating Company, Ltd., 2018 WL 1974376 (Tex. 2018), the Court found that it was proper to challenge the chargemaster or billed charges of medical providers by comparing those charges to the amounts the same providers typically accepted from private insurers and government insurance programs, such as Medicare. In that case, the Court gave examples of the types of documents that can be considered in determining whether a specific medical charge is reasonable, as follows: "all contracts regarding negotiated or reduced rates for the hospital services provided to Plaintiff in which Defendant is a party, including those with Aetna, First Care, United Healthcare, Blue Cross Blue Shield, Medicare, and Medicaid.” In North Cypress the Texas Supreme Court agreed that the discovery of contracts between the hospital and private insurers and government plans was necessary to establish whether the amount that the hospital was charging the Plaintiff for emergency services was excessive in comparison to the rates for the same services provided to other patients in the same facility. The Court agreed that the contracts were discoverable because they would show that the hospital customarily and regularly was paid significantly less for those DEFENDANTS MS TRANSPORTATION, LLC and SEBASTIAN S. MACIAS’ RESPONSE IN OPPOSITION TO PLAINTIFFS’ MOTION TO STRIKE THE COUNTER-AFFIDAVITS OF CAROLE DEVOS - Page 4 Electronically Filed 1/6/2021 5:33 PM Hidalgo County District Clerks Reviewed By: Aaron Castaneda services, making the contracts relevant to the issues of the reasonableness of the charges. The Texas Supreme Court based its opinion on a number of authoritative studies that have documented the increasingly arbitrary nature of chargemaster prices, noting that these charges have lost any direct connection to actual costs or to the amount the hospital actually expects to receive in exchange for its goods or services. The Court stated its reasoning, as follows: "However, the issue is not whether Roberts may take advantage of insurance she did not have. Rather, because a valid hospital lien may not secure charges that exceed a reasonable and regular rate, the central issue in a case challenging such a lien is what a reasonable and regular rate would be. And because of the way chargemaster pricing has evolved, the charges themselves are not dispositive of what is reasonable, irrespective of whether the patient being charged has insurance. By contrast, a hospital's reimbursements from private insurers and public payers comprise the vast majority of its payments for services rendered. We fail to see how the amounts a hospital accepts as payment from most of its patients are wholly irrelevant to the reasonableness of its charges to other patients for the same services... reimbursements from insurers and government payers comprise the bulk of a hospital's income for services rendered. It defies logic to conclude that those payments have nothing to do with the reasonableness of charges to the small number of patients who pay directly ... we hold that the trial court did not abuse its discretion in concluding that the amounts North Cypress is willing to accept as payment for services rendered to the vast majority of its patients is relevant to the reasonableness of its charges for those same services to uninsured patients." Id VIL. The methodology utilized by Ms. Devos in evaluating whether the charges for the medical providers in this case were reasonable is the exact same methodology that was expressly approved by the Texas Supreme Court in the North Cypress case. Therefore, in addition Plaintiffs Motion is unmeritorious because Ms. Devos used the precise methodology that has been expressly approved by the Texas Supreme Court for the purpose of evaluating whether medical charges are reasonable. IX. In Jn re Larry Brown and JBS Carriers, Inc., 2019 WL 1032458 (Tex. App. Tyler DEFENDANTS MS TRANSPORTATION, LLC and SEBASTIAN S. MACIAS’ RESPONSE IN OPPOSITION TO PLAINTIFFS’ MOTION TO STRIKE THE COUNTER-AFFIDAVITS OF CAROLE DEVOS - Page 5 Electronically Filed 1/6/2021 5:33 PM Hidalgo County District Clerks Reviewed By: Aaron Castaneda 2019), the Court of Appeals in Brown found that a non-practicing nurse, who had case management and claims analysis experience with insurance companies and had worked with databases for medical costs and was familiar with medical coding and billing practices, was qualified to file a controverting affidavit under Chapter 18. The Court found that it was not necessary for such a person to be a medical doctor or have medical training in order to perform this function. The Court expressly relied on the Supreme Court case of Gunn v. McCoy, 554 S.W. 3d 645 (Tex. 2018), where the Court held that insurance subrogation agents were qualified to use their databases to create affidavits regarding the reasonableness of medical expenses. X. Here, Carole Devos’ affidavits give reasonable notice of the basis on which the Defendants intend at trial to controvert. Specifically, Ms. Devos’ calculations are based on the Usual Customary and Reasonable (UCR) for each procedure code submitted by each provider. As such, Defendants have demonstrated that Carole Devos is certainly qualified by her education, training and experience to testify concerning the reasonableness of medical charges, including the medical charges at issue involving Plaintiffs. Ms. Devos has over 30 years in the medical billing industry. While it is undisputed that only medical doctors can testify that medical treatment is necessary to treat a certain condition, persons with the knowledge, skill, training, and experience like Ms. Devos can certainly testify whether bills are reasonable. In addition, the methodology used by Ms. Devos is based on United States government and Texas Department of Insurance databases, and methodologies which are utilized by these databases and by various agencies of the United States and Texas governments to determine reasonable medical charges for specific medical procedures. DEFENDANTS MS TRANSPORTATION, LLC and SEBASTIAN S. MACIAS’ RESPONSE IN OPPOSITION TO PLAINTIFFS’ MOTION TO STRIKE THE COUNTER-AFFIDAVITS OF CAROLE DEVOS - Page 6 Electronically Filed 1/6/2021 5:33 PM Hidalgo County District Clerks Reviewed By: Aaron Castaneda Ms. Devos’ methodology for evaluating medical charges is based on current methodologies and data which are approved by experts in the field. Accordingly, Defendants have met their burden of proof to show that Ms. Devos’ affidavits meet the standards set out in Texas Civil Practice and Remedies Code 18.001. WHEREFORE, Defendants MS TRANSPORTATION, LLC and SEBASTIAN S. MACIAS request that the Court Deny Plaintiffs’ Motion to Strike the Counter-Affidavits of Carole Devos in its entirety and further relief to which Defendants may show themselves to be justly entitled. Respectfully submitted, CHAVES, OBREGON & PERALES, L.L.P. 802 N. Carancahua, Suite 2100 Corpus Christi, TX 78470 (361) 884-5400 (361) 884-5401 (facsimile) By: ___/s/ Douglas E. Chaves DOUGLAS E. CHAVES State Bar No. 04161400 dchaves@errlawfirm.com AIDAN PERALES State Bar No. 24027604 aperales@crrlawfirm.com ATTORNEYS FOR DEFENDANTS, MS TRANSPORTATION, LLC and SEBASTIAN S. MACIAS DEFENDANTS MS TRANSPORTATION, LLC and SEBASTIAN S. MACIAS’ RESPONSE IN OPPOSITION TO PLAINTIFFS’ MOTION TO STRIKE THE COUNTER-AFFIDAVITS OF CAROLE DEVOS - Page 7 Electronically Filed 1/6/2021 5:33 PM Hidalgo County District Clerks Reviewed By: Aaron Castaneda CERTIFICATE OF SERVICE Thereby certify that a copy of the foregoing instrument has been served upon all counsel of record to this proceeding by the manner indicated below, on this the 6" day of January 2021. /s/ Douglas E. Chaves DOUGLAS E. CHAVES Via e-serve Langdon “Trey” Smith lsmith@jimadler.com Michael Gomez mgomez@jimadler.com JIM S. ADLER & ASSOCIATES 3D/International Tower 1900 West Loop South, 20" Floor Houston, Texas 77027 713/735-2114-Telephone 713/781-2514-Facsimile Attorneys for Plaintiff DEFENDANTS MS TRANSPORTATION, LLC and SEBASTIAN S. MACIAS’ RESPONSE IN OPPOSITION TO PLAINTIFFS’ MOTION TO STRIKE THE COUNTER-AFFIDAVITS OF CAROLE DEVOS - Page 8