Motion for Leave in ROBERT J IRWIN vs. MARK ANTHONY RICHARD, et al| Trellis.Law

On January 11, 2017 a Motion-Secondary was filed involving a dispute between Irwin, Robert J., and Microwave Transmission Systems Inc, Richard, Mark Anthony, for MOTOR VEHICLE ACCIDENT in the District Court of Dallas County.

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FILED
DALLAS COUNTY
AM
2/22/201 9 10:49
FELICIA PITRE
DISTRICT CLERK

CAUSE NO. DC-17-00333

ROBERT J. IRWIN § IN THE DISTRICT COURT
Plaintiff, §
§
vs. § 162ml JUDICIAL DISTRICT
§
MARK ANTHONY RICHARD AND §
MICROWAVE TRANSMISSION §
SYSTEMS, INC. §
Defendants. § DALLAS COUNTY, TEXAS

PLAINTIFF’S RESPONSE TO DEFENDANTS’ MOTION
FOR LEAVE TO FILE CONTROVERTING AFFIDAVIT
TO THE HONORABLE JUDGE OF SAID COURT

NOW COMES Plaintiff, Robert J. Irwin, and makes and ﬁles this, his Response t0

Defendants’ Motion for Leave to File Controverting Afﬁdavit, and in support thereof would

show unto the Court as follows:

1. The present case is currently set for trial 011 April 9, 2019. This is the fourth

setting of the case. Plaintiff has ﬁled Afﬁdavits in the case pursuant t0 TEX. CIV. PRAC. & REM.
CODE 18.001. According to Defendants, these were ﬁled on April 4, 20171 and November 27,

20172. See Motion, pp. 1-2. Now, almost two years after the ﬁrst 0f these 18.001 ﬁlings,

Defendants seek leave t0 ﬁle a controverting afﬁdavit. However, Defendants have not shown

themselves to be entitled t0 leave for such untimely ﬁling. The Court should, therefore, deny

Defendants’ Motion.

2. The present suit relates t0 personal injuries sustained by Plaintiff in an automobile

accident. Past and ﬁJture medical expenses are recoverable elements of damages in such suits if

1
As to the following treators: Hitesh B.
Yagnik, M.D.; A11 Injury Rehab, DFW Open MRI, Greenhead Diagnostics,
MD Now, SOAR, Frisco Ambulatory Surgery Center, and Precision Medical Products. See Motion, pp. 1-2.
2
As Texas Anesthesia Group, and North Star Diagnostic Imaging.
to the following treators: Id. at p. 2.

PLAINTIFF’S RESPONSE TO DEFENDANTS’ MOTION Page 1
FOR LEAVE TO FILE CONTROVERTING AFFIDAVIT
the plaintiff can show that such expenses were or Will be necessarily incurred in treatment 0f the

injury in question and are reasonable in amount. See Dallas Railway & Terminal Company v.

Gossett, 156 TeX. 252, 294 S.W.2d 377, 382—383 (1956); Gerland’s Food Fair, Inc. v. Hare, 611

S.W.2d 113, 117 (TeX.CiV.App.—H0uston [1“ Dist] 1980, writ ref’d n.r.e.); Travelers Ins. C0.

v. Brown, 750 S.W.2d 916, 918 (TeX.App.—Amarillo 1988, writ denied). Past medical expenses

may be established for these purposes by afﬁdavit, under the general statutory provision

permitting such afﬁdavits to prove the cost and necessity 0f services. See TEX. CIV. PRAC. &
REM. CODE § 18.001. See also Haygood v.De Escabedo, 356 S.W.3d 390, 397 (TeX. 201 1).

3. Unless controverted, such an afﬁdavit or declaration is sufﬁcient to support a

ﬁnding 0f fact that the amount charged was reasonable 0r that the service was necessary. See

TEX. CIV. PRAC. & REM. CODE § 18.001(b). See also Gunn v. McCoy, 489 S.W.3d 75, 102

(TeX.App.—Houston [14th Dist] 2016, pet. ﬁled). If a controverting afﬁdavit is served,

however, the general rule is that the initial afﬁdavit may not be used as evidence, and the cost

and necessity 0f the services must be proved as though the afﬁdavit were never ﬁled. See Hang

v. Bennett, 209 S.W.3d 795, 802—804 (Tex.App.—Fort Worth 2006, no pet). Any such

controverting afﬁdavit must, however, be served not later than thirty (30) days after receipt of

the 18.001 afﬁdavit(s) which a party seeks t0 controvert:

A party intending to controvert a claim reﬂected by the afﬁdavit must serve a
copy of the counterafﬁdavit on each other party or the party’s attorney of record:

(1) not later than:

(A) 30 days after the day the party receives a copy 0f the afﬁdavit; and

(B) at least 14 days before the day 0n Which evidence is ﬁrst presented
at the trial of the case. ..

PLAINTIFF’S RESPONSE TO DEFENDANTS’ MOTION Page 2
FOR LEAVE TO FILE CONTROVERTING AFFIDAVIT
TEX. CIV. PRAC. & REM. CODE 18.001(e). This was not done in the present case, nor do

Defendants suggest otherwise.

4. Afﬁdavits under Section 18.001 were tendered herein on April 4, 20173 and

November 27, 2017.4 Controverting afﬁdavits would have been due, respectively, on May 4,

2017 and December 27, 2017. Defendants ﬁrst asked this Court t0 allow the ﬁling 0f such their

controverting afﬁdavit on December 12, 2018 — more than a year and seven months after this

convtroverting afﬁdavit would have been due as t0most of Plaintiff’s treators. See TEX. CIV.

PRAC. & REM. CODE 18.001(e). For unknown reasons, Defendants waited more than a month t0

seek to set it for hearing.5

5. Defendants make a series 0f nonsensical, and at times inconsistent arguments as

t0 Why the Court should allow this. First, they argue that because the medical expenses in this

case total $1 14,616.14, “[c]ontesting the reasonableness and necessity of Plaintiff’s past medical

expenses is essential in presenting a defense 0n damages in this case.” Motion, pp. 2-3. They

make n0 attempt t0 describe Why, given the alleged “essential” importance 0f this controverting

afﬁdavit, theV made no attempt to seek leave to ﬁle it before any of the prior trial settings.

Defendants’ own actions speak louder than their words in this regard. The Court should,

therefore, deny Defendants’ Motion.

6. Next, Defendants suggest to their court that the burden in this Motion is on

Plaintiff to show some prejudice 0r surprise, and claim that this cannot be done because they had

previously designated the afﬁant as an expert. See Motion, pp. 3-4. This ignores the fact that

regardless 0f this designation, the expert would never have been allowed to testify as to the

3
As Yagnik, M.D.; A11 Injury Rehab,
t0 the following treators: Hitesh B. DFW Open MRI, Greenhead Diagnostics,
MD Now, SOAR, Frisco Ambulatory Surgery Center, and Precision Medical Products. See Motion, pp. 1-2.
4
As to the following treators:Texas Anesthesia Group, and North Star Diagnostic Imaging. Id. at p. 2.
5
Notice 0f the initialhearing upon this motion was ﬁrst served 0n January 23, 2019.

PLAINTIFF’S RESPONSE TO DEFENDANTS’ MOTION Page 3
FOR LEAVE TO FILE CONTROVERTING AFFIDAVIT
issues 0f reasonableness and necessity 0f Plaintiff’s treatment, since they had never ﬁled a

Controverting afﬁdavit:

One of the purposes of a section 18.001 afﬁdavit is that it "provides for exclusion
of evidence to the contrary, upon proper objection, in the absence of a properly-
ﬁled counterafﬁdavit." Beauchamp, 901 S.W.2d at 749. As a result, and in the
absence 0f a proper counterafﬁdavit, we cannot say that the trial court abused its

discretion When it excluded Sklar's trial testimony controverting the Castros’
section 18.001 afﬁdavits. See generally Haygood v. De Escabedo, 356 S.W.3d
390, 399 (Tex. 201 1) (noting section 18.001 provides "for any dispute over
reasonable and necessary expenses t0 be teed up by affidavit").

Ten Hagen Excavating, Inc. v. Castro-Lopez, 503 S.W.3d 463, 494 (TeX.App.—Dallas 2016, pet.

denied). Plaintiff would certainly be prejudiced if at this late stage a controverting afﬁdavit were

allowed, because if granted they would now have t0 undertake the impossible task 0f deposing

and/or arranging for the live testimony 0f multiple treators a mere six weeks before tria1.6Courts

recognize that this burden warrants the denial 0f a request for leave t0 ﬁle a Controverting

afﬁdavit.

7. The case of Wal—Mart Stores Tex, LLC v. Bishop, 553 S.W.3d 648, 670 (TeX.

App.—Da11as 2018), for example, involved personal injuries sustained by a retail store customer

When a box fell from a high shelf onto her head. See Bishop, 553 S.W.3d at 657-658. The injured

plaintiff “began ﬁling section 18.001 afﬁdavits pertaining to the reasonableness and necessity of

past medical expenses in January 0f 2015, and continued t0 d0 so until October of 2015.” Id. at

672. In March of 2015, the defendant timely designated a physician as a testifying expert

witness and provided plaintiff With a copy of the expert’s report. Id. On January 29, 2016, the

defendant ﬁled a motion for leave t0 ﬁle a controverting afﬁdavit in response to objections made

as t0 their expert.7 Id. at 672.

6
Less, if the Courtis not inclined to rule 0n this Motion 0n the date 0f the hearing.
7
It had been argued by the Plaintiff that the expert could not testify as t0 reasonableness and necessity because n0
controverting afﬁdavits had been timely ﬁled. Id. at 672-673.

PLAINTIFF’S RESPONSE TO DEFENDANTS’ MOTION Page 4
FOR LEAVE TO FILE CONTROVERTING AFFIDAVIT
8. Wal-Mart, like Defendants in this case, argued in part in the trial court that they

should be granted leave t0 ﬁle the controverting afﬁdavit because “the timely designation of Dr.

Morgan as a testifying witness provided notice that Walmart had engaged a testifying witness on

that issue.” Id. The Plaintiff argued against the granting 0f leave, noting that “she had every

reason t0 believe that [she] would not be required t0 arrange - and pay - for all 0f her treating

physicians to testify live at trial, and it was not feasible t0 do so ten weeks before trial.” Id. at

671.

9. The trial court denied defendant’s motion for leave t0 ﬁle the controverting

afﬁdavit. The Dallas Court of Appeals upheld the trial court’s ruling, noting that regardless of

the prior designation 0f such an expert, plaintiff had been reasonable in presuming that it would

not be necessary t0 incur the time and expense 0f addressing the issue of reasonableness and

necessity at trial,given that no controverting afﬁdavits had been ﬁled:

One of the purposes 0f a section 18.001 afﬁdavit isthat it'provides for exclusion
of evidence to the contrary, upon proper objection, in the absence of a properly-
ﬁled counterafﬁdavit.’ Ten Hagen Excavating, Ina, 503 S.W.3d at 494 (internal
citation omitted). Allowing Dr. Morgan t0 testify would have undermined a
purpose of the statute, which is to spare Bishop the expense of hiring an expert
witness to testify at trial if the issue of the reasonableness and necessity 0f
medical expenses has not been joined by Walmart's ﬁling 0f a counterafﬁdavit.
See id. at 491, 494 ("in the absence of a proper counterafﬁdavit, we cannot say
that the trial court abused its discretion when it excluded [doctor's] trial testimony

controverting the [plaintiffs'] section 18.001 afﬁdavits"); see also Roum‘ree, 2017
Tex. App. LEXIS 5888, 2017 WL 2730422, at *1.

Id. at 672-673. In the end, the Court held: “Walmart had sufﬁcient notice 0f the need to timely

ﬁle a section 18.001 counterafﬁdavit, however it did not attempt t0 ﬁle a counterafﬁdavit until

long after the statutory deadline had passed.” Id. at 673.

10. In this case, we are even closer t0 trial than in the Bishop case.8 And in the present

case, Defendants waited even longer than in Bishop to seek leave to ﬁle their controverting

8
Six weeks from case versus ten weeks from
trial in this Bishop.
trial in

PLAINTIFF’S RESPONSE TO DEFENDANTS’ MOTION Page 5
FOR LEAVE TO FILE CONTROVERTING AFFIDAVIT
afﬁdavit.9 Defendants seek t0 upend this case mere weeks before trial based upon nothing but

their own clear lack 0f diligence. The Court should, therefore, deny Defendants’ Motion.

11. Finally, Defendants argue that a case which issued from the Texas Supreme Court

approximately ten months ago“) — In re N. Cypress Med. Ctr. Operating C0., 559 S.W.3d 128

(TeX. 2018) — somehow supports their request for leave t0 ﬁle a controverting afﬁdavit. Motion,

pp. p. 4. In this regard they argue that “[h]ad the In re N. Cypress decision and its relationship t0

T.C.P.R.C. 18.001 been in place and known t0 Defendant at the time that Plaintiff served his

18.001 afﬁdavits, Defendant could have taken the necessary steps t0 obtain and serve

counterafﬁdavits...” Motion, p. 4. However, the In re N. Cypress case had nothing to d0 with

18.001 afﬁdavits. N0 case since has even suggested that the decision has some impact 0n 18.001

afﬁdavits. Nor has any law review so-argued in this regard.

12. According to the court in that case, the subject matter of In re N. Cypress Med.

Ctr. Operating C0,, 559 S.W.3d 128 (Tex. 2018) “involves the enforceability of a hospital lien

securing payment 0f charges for services rendered to an uninsured patient.” In re N. Cypress

Med. Ctr. Operating C0., 559 S.W.3d at 129. An uninsured individual who was injured in an

automobile accident was treated at a local hospital. After bringing suit for those injuries, the

plaintiff settled With the defendant’s liability insurer. Id. The injured party thereafter sought t0

negotiate the hospital’s bill, and ﬁled suit against the hospital when no agreement could be

reached. Id.

13. In the course of discovery in her suit against the hospital, the plaintiff sought

discovery 0f the hospital’s reimbursement rates and annual cost reports. The hospital objected,

and the plaintiff sought t0 compel the production of this information. The trial court ordered

9
In Bishop the Defendant waited approximately a year from the date 0f the ﬁrst-ﬁled afﬁdavits, in the present case
they waited more than a year and seven months.
1°
The decision in question issued0n April 27, 2018.

PLAINTIFF’S RESPONSE TO DEFENDANTS’ MOTION Page 6
FOR LEAVE TO FILE CONTROVERTING AFFIDAVIT
production, but limited t0 the relevant time period. The hospital ﬁled a petition for writ of

mandamus in the court 0f appeals, Which was denied. They then ﬁled for mandamus relief in the

Texas Supreme Court.

14. In looking t0 the question of relevance Which itfaced, the Court recognized that it

necessarily involved an application 0f the principles underlying the state’s hospital lien statute:

“Because the subject matter of this action involves a dispute over a hospital lien, in evaluating

the relevance 0f the requested information we must begin with a discussion of Texas's hospital-

lien statute.” Id. at 131. In so-doing, the court determined that “the statute is replete With

language that the hospital recover the full amount of its lien, subject only to the right to question

the reasonableness 0f the charges comprising the lien.” Id. (internal quotations omitted). But in

looking to the question 0f reasonableness so-invoked, the court further noted that the question

necessarily highlighted the two-tier pricing system in healthcare — insured pricing vs. uninsured

pricing:

This case highlights the "two-tiered" healthcare billing structure that has evolved
over the past several decades. In Haygood, on which North Cypress heavily relies,

we described these tiers as encompassing (1)
"'list'or 'full' rates [also described as
chargemaster rates] sometimes charged to uninsured patients, but frequently
uncollected," and (2) "reimbursement rates for patients covered by government
and private insurance." Id. at 393 (footnotes omitted). We noted that "[ﬂew
patients today ever pay a hospital's full charges," id. (alteration in original) (Citing
Linnstaedter, 226 S.W.3d at 410), but that hospitals are pressured to set these
charges as high as possible because reimbursement rates typically increase along
With them, id.

Id. at 132. Looked at from this standpoint, the court held that the reimbursement rates paid t0 the

hospital by “private insurers and public payers,” Whom the court found “comprise the vast

majority 0f its payments for services rendered,” was relevant in determining the question 0f

whether the rates charged to uninsured patients, and reﬂected in the lien at issue in the case, was

reasonable. Id. at 133.

PLAINTIFF’S RESPONSE TO DEFENDANTS’ MOTION Page 7
FOR LEAVE TO FILE CONTROVERTING AFFIDAVIT
15. As can be seen, the referenced case in n0 way involved TEX. CIV. PRAC. & REM.
CODE 18.001.“ Nor does the question 0f reasonableness considered therein have any application

in this case, since Mr. Irwin was insured. The suggestion that this case is somehow of import to

the issues before this Court isdisingenuous. But even if it were, the question would remain as t0

why they waited seven and a half months from the issuance 0f this decision t0 seek leave t0 ﬁle a

controverting afﬁdavit. Indeed, they were perfectly comfortable going into the December 11,

2018 trial setting in this case without a controverting afﬁdavit, despite the In re N. Cypress

decision having issued more than half a year prior.

16. For each 0f the above and foregoing reasons the Court should deny Defendants’

Motion.

WHEREFORE, PREMISES CONSIDERED, Plaintiff prays Defendants’ Motion for

Leave to File Controverting Afﬁdavit be in all things denied, and that Defendants otherwise be

barred from proffering, ﬁling or otherwise submitting any controverting afﬁdavits as to those

providers of Plaintiff Whose treatment were the subject 0f 18.001 afﬁdavits tendered t0 them by

Plaintiff s counsel on April 4, 2017 and November 27, 2017. Plaintiff prays for such other and

further relief, general 0r special, at law or in equity, to which he may show himself justly

entitled.

Respectfully submitted,

/s/Daniel P. Sullivan
STEPHEN C. MAXWELL
11
Nor has any case since purported t0 apply the decision t0 any issue related to Section 18.001.

PLAINTIFF’S RESPONSE TO DEFENDANTS’ MOTION Page 8
FOR LEAVE TO FILE CONTROVERTING AFFIDAVIT
State Bar No. 13258500
smaxwell@maxlawyers.com
DANIEL P. SULLIVAN
State Bar No. 24054465
dsullivan@maxlawyers.com

BAILEY & GALYEN
1300 Summit Avenue, Ste. 650
Fort Worth, Texas 76102
(817) 276-6000 Phone
(817) 276-6010 Fax
ATTORNEYS FOR PLAINTIFF

CERTIFICATE OF SERVICE

I certify that on February 22, 2019, the foregoing was served on counsel for Defendants

by and through the electronic ﬁling manager for the relevant service provider used, pursuant to

TEX. R. CIV. P. 21(a)(1).

/s/ Daniel P. Sullivan
DANIEL P. SULLIVAN

PLAINTIFF’S RESPONSE TO DEFENDANTS’ MOTION Page 9
FOR LEAVE TO FILE CONTROVERTING AFFIDAVIT

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MOORE, MARICELA Track Judge’s New Case

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Document Filed Date

February 22, 2019

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January 11, 2017

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Motion-Secondary: ROBERT J IRWIN vs. MARK ANTHONY RICHARD, et al

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