Preview
FILED
3/7/2022 3:32 PM
FELICIA PITRE
DISTRICT CLERK
DALLAS CO., TEXAS
Darling Tellez DEPUTY
CAUSE NO. DC-21-03224
SHAN TE WATSON, § IN THE DISTRICT COURT
Plaintiff §
§
v. §
§ DALLAS COUNTY, TEXAS
JOSHUA BROWN; AND TOWN EAST §
HEATING & AIR CONDITIONING CO., §
LLC, §
Defendants. § 134m JUDICIAL DISTRICT
TOWN EAST HEATING & AIR CONDITIONING CO., LLC’s
RESPONSE TO THE MOTION TO STRIKE THE COUNTER/CONTRAVERTING
AFFIDAVITS OF ROGER CLIFFORD, DC, DACNB AND PAUL MARCUS MURPHY
TO THE HONORABLE COURT:
COMES NOW Town East Heating & Air Conditioning Co., Inc. (‘Town East’) and files
this its response to the above-referenced motion to strike, and in support would show:
1. Town East will respond to the arguments of Plaintiff in the order they are made by
Plaintiff in the motion. Additionally, Town East will place primary reliance on TEX. R. CIV. PRAC.
& REM. CODE §l8.001(f), and the Supreme Court’s detailed explanation of what satisfies the
requirements of this statute, In re Allstate Indemnity Company, 622 S.W.3d 870 (Tex. 2021).
ALLEGED GROUNDS FOR STRIKING DR. CLIFFORD’S AFFIDAVIT
A. Response to the alleged grounds that ‘Dr. Clifford fails to present reasonable notice
of his basis for challenging medical necessity.’
2. In this argument, Plaintiff in effect is making a conclusory complaint that Dr.
Clifford cites articles upon which he relies, but does not provide the articles. Plaintiff argues that
Dr. Clifford fails to explain ‘why’ services were unnecessary.
3. In re Allstate holds that the “reasonable notice” standard is similar in meaning to
that of the “fair notice” in Texas pleadings. Accordingly, the standard measures Whether the
DEFENDANT TOWN EAST’S RESPONSE TO PLAINTIFF’S
MOTION TO STRIKE THE COUNTER/CONTRAVERTING AFFIDAVITS
OF ROGER CLIFFORD, DC, DACNB, AND PAUL MARCUS MURPHY 1
counter/controverting affidavits “provided the opposing party sufficient information to enable that
party to prepare a defense or response.” Id., at 879 (quoting authority). Dr. Clifford’s detailed
report explains the basis for his opinion.
4. Smith Countv Treatment: Dr. Clifford opines that not allof the services were
necessary. Dr. Clifford opines that only those to September 29, 2020 were necessary. The basis
for this opinion is, among other things detailed by him:
a) there was a lack of evidence of functional improvement from treatment;
b) the injuries identified were minimal uncomplicated soft tissue strains that
would have resolved even without treatment;
C) according to the Texas Board of Chiropractic Examiners, objective findings
to support treatment are required, and they were not in this instance;
d) a specific, detailed timeline of when the injury occurred and the findings of
a lack of injuries and treatments of alleged injuries by the EMS, ER, and
hospital, all are inconsistent with the claimed injuries thereafter at the Smith
County Chiropractor. Instead, the delay confirms minor injuries that would
not require chiropractic treatment, if at all, after September 29, 2020;
e) citing authority, he notes that limited chiropractic care (6 visits) for soft
tissue injuries results in better recovery, than those with extensive care as
in this case;
the need for psychological therapy was inconsistent with the recorded
evidence of such a need in the EMS and Christus Hospital records,
primarily that of: no loss of consciousness; she was fully oriented; she
was alert; pupils were normal; no head injury or trauma; no confusion;
no sensory deficits; no cognitive deficits; CT of brain was normal.
5. In short, Plaintiff may not appreciate or agree with the stated basis for his opinions
as to a lack of necessity beyond September 29, 2020, but it cannot be argued that he did not give
a “reasonable notice” for that opinion. Of course, his professional qualifications and extensive
experience give him the additional basis for credibility and reasonable notice.
DEFENDANT TOWN EAST’S RESPONSE TO PLAINTIFF’S
MOTION TO STRIKE THE COUNTER/CONTRAVERTING AFFIDAVITS
OF ROGER CLIFFORD, DC, DACNB, AND PAUL MARCUS MURPHY 2
6. Smith Cogntv Chiropractic Referral for MRIs: Smith County Chiropractic
referred Plaintiff for MRIs with Tyler Open Air MRI, that Dr. Clifford opines were an unnecessary
expense. The basis for this opinion is, among other things detailed by him:
a) There were no progressive neurological deficits such as worsening atrophy or
muscle weakness;
b) There was no evidence of radiculopathy, such as sensory loss, muscle weakness,
atrophy, reflex loss;
c) Cervical, thoracic, and lumbar CT scans has already failed to show acute findings;
d) As set out above, the timeline established in the medical records was inconsistent
with significant spinal and musculoskeletal injuries;
e) The MRIs simply confirmed no objective signs of injuries, and did not change the
chiropractic treatments.
7. Dr. Clifford references guiding standards of the American College of Radiology
and the American College of Physicians to support his opinions and the reason for the same. Those
references and his professional credentials and experience in providing MRI referrals based on
sound reasoning, provide the basis for his opinions. As with the unnecessary and excessive
chiropractic treatments addressed above, itcannot be argued that he did not give a “reasonable
notice” for that opinion.
B. Response to the alleged grounds that ‘Dr. Clifford fails to provide reasonable notice
of his basis for challenging medical bills.’
8. Plaintiff complains that Dr. Clifford does not give the basis for his objection to the
amounts charged for various procedures. However, as Plaintiff points out, Dr. Clifford opines that
he bases the opinions on his “knowledge, skill, training, licensure, and experience.” He states he
has treated thousands of patients over thirty years in the chiropractic profession. He bases his
opinions on his own practice, as well as his knowledge of the usual, customary, and reasonable
DEFENDANT TOWN EAST’S RESPONSE TO PLAINTIFF’S
MOTION TO STRIKE THE COUNTER/CONTRAVERTING AF FIDAVITS
OF ROGER CLIFFORD, DC, DACNB, AND PAUL MARCUS MURPHY 3
charges that would have been made in the DFW region, and that an amount higher than what he
opines would have been excessive and not reasonable. He also applies knowledge of what would
be paid under health insurance plans, Medicare, Medicaid, and Workers Compensation, and it is
less than what is being charged in this instance. As noted by the Supreme Court, a comparison of
median charges for those same charges during the same timeframe and zip code, is the type of
basis that provides reasonable notice. See id., at 880.
9. Dr. Clifford - based on the foregoing - then opines to what was charged, and what
a reasonable charge would have been. This is noted in Plaintiff s motion, yet Plaintiff then argues
it was not done. Based on referenced guidelines of the American Chiropractic Association Clinical
Documentation Manual, and the American Medical Association CPT Code Book, documentation
standards were not met, and as such, certain charges are not reasonable in any amount charged
because it is not permitted by the profession.
10. The remaining charges for services were each addressed as charged against what
would have been a reasonable charge. Dr. Clifford then does the simple math of applying what he
had opined as being acceptable numbers of visits against his opined reasonable charges, and sets
out total amounts of reasonable charges. Itcannot be argued that he did not give a “reasonable
notice” for that opinion.
ALLEGED GROUNDS FOR STRIKING MARCUS MURPHY’S AFFIDAVIT
C. Response to the alleged grounds that ‘Mr. Murphy also fails to show the underlying
basis for his challenge to Plaintiff’s medical bills.’
11. The crux of Plaintiff’s complaint with regard to Mr. Murphy is that his opinions
fail to state what the reasonable amount is, and if they do, they are still unreliable. Not only are
they wrong, but neither of these are grounds for challenging this counter / controverting affidavit.
DEFENDANT TOWN EAST’S RESPONSE TO PLAINTIFF’S
MOTION TO STRIKE THE COUNTER/CONTRAVERTING AFFIDAVITS
OF ROGER CLIFFORD, DC, DACNB, AND PAUL MARCUS MURPHY 4
12. The first flaw running through Plaintiff” s argument is that Mr. Murphy fails to state
clearly What is reasonable, and how he arrives at the opinion. Yet nothing in 18.001(f) requires the
affidavit set out what is a reasonable amount. All that is required is that it ‘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.’ In other words, it must give the basis for saying Why the charges are not
reasonable, not what would be reasonable. It is the burden of Plaintiff, not Town East, to prove to
the jury what is reasonable - with or without a controverting affidavit.
13. Regardless, Mr. Murphy’s affidavit meets this requirement. As a basis - in addition
to his extensive billing and coding analysis experience - Mr. Murphy notes that he is familiar with
what providers typically receive for similar services in Texas and east/north Texas where these
services were provided. He states that he is familiar with billing charges in these regions and what
typically gets paid for similar services using national databases that are peer reviewed by the AMA
which include the very doctors who are billing charge rates that are much higher than what they
typically accept for payment. “Based on the provided documentation, the forensic comparative
analysis utilizing national databases that provide specific payments for specific geographical
regions with more than two decades of billing charge data and payment data for medical goods
and services, and my expertise as described within this affidavit, it is my opinion, within a
reasonable probability, on the basis that when compared to what typically is paid for similar
services in this region, the billing charges are excessive and unreasonable. The reasonable
value/reasonable expense for these medical goods and services is between $6,862.46 and
$10,230.70.” In other words, and as Mr. Murphy specifically states, “the forensic comparative
analysis will show the disparity and discrepancy in what was billed to the reasonable values as
DEFENDANT TOWN EAST’S RESPONSE TO PLAINTIFF’S
MOTION TO STRIKE THE COUNTER/CONTRAVERTING AFFIDAVITS
OF ROGER CLIFFORD, DC, DACNB, AND PAUL MARCUS MURPHY 5
documented in the benchmarks.” His opinions relate to specific benchmarks that he discusses in
detail.
14. As noted by Mr. Murphy, his opinions rely on data that is generated by over
900,000 medical providers across multiple specialties and multiple locations nationwide. This
database is peer reviewed by the doctors and their associations, the AMA, along with the AMA
RUC (Review Utilization Committee).1 As for this review, he explains that in this case, he
compared the billed charges by each provider for the dates of service to the calculated reasonable
value offered in the AMA peer reviewed national databases of CMS for the appropriate date and
locale and to other sources as noted. He then identified which billed charges are excessive, or
unreasonable, and offered the reasonable value range that a provider in this region typically accepts
for similar services in the Texas region for Dallas, Texas and Locality # 99 for the greater region
that includes Tyler and Smith County?
15. Plaintiff attacks as untrustworthy Mr. Murphy’s mean values tied to CMS values.
As explained, however, “The rationale for using these AMA peer reviewed publicly available
national databases is to offer a reasonable value that again links CPT codes to the specific
geographical region and to the time frame with a higher “markup” or ratio based on the actual Tier
1 nationwide listprices of providers which offers a separate reasonable value for comparison
purposes.”3
16. It really cannot be argued that Mr. Murphy fails to give a ‘reasonable notice’ of
how he opines that the charges of these entities were unreasonable. And although he is not required
1
Murphy report, p. 8
2
Murphy report, p. 26-27
3
Murphy report, p. 32
DEFENDANT TOWN EAST’S RESPONSE TO PLAINTIFF’S
MOTION TO STRIKE THE COUNTER/CONTRAVERTING AFFIDAVITS
OF ROGER CLIFFORD, DC, DACNB, AND PAUL MARCUS MURPHY 6
to do so, he opines to what the reasonable values are.4
17. Plaintiff argues that it cannot be deteImined What Mr. Murphy represents to be the
“maximum reasonable charge” for services by the providers. Again, even though he does state the
maximum when arriving at a mean, that is not the obligation of Mr. Murphy in the affidavit. He
must only show the basis for his criticism of the amounts charged as not being reasonable, and he
does this in great detail. The Tier I chargemaster rate is being challenged by him for the reasons
he states. This analysis was specifically recognized recently in In re Auto K&L Auto Crushers,
LLC, 627 S.W.3d 239 (Tex. 2021), when the Court again confirmed that chargemaster rates “are
not dispositive of what is reasonable.” Id., at 248-49 (quoting authority). This is true, even if in
this case Plaintiff is legally bound to pay this higher Tier I chargemaster rate, because the jury can
still find it to be unreasonable. See id., at 250. Consequently, the Tier II negotiated rates referenced
by Mr. Murphy as relevant and of which Plaintiff Watson complains, is the basis recognized by
the Auto Crushers Court as reasonable. That Court, quoting a previous decision of the Court,5
reiterated the relevance of the Murphy analysis:
while certainly “ not dispositive,” the negotiated rates the providers charged
to private insurers and public payors for the medical services and devices
provided to Walker, and the costs the providers incurred to provide those
services and devices, are “at least relevant” to whether the chargemaster
rates the providers billed to Walker for the same services and devices are
reasonable. (citation omitted)
While Plaintiff Watson may complain that Murphy was compelled to pick a “maximum”
Tier II charge that he opines as reasonable, nothing in the statute requires that. Instead, it is
sufficient that he set forth the correct reasonableness analysis that he described in detail.
4
Murphy report, pgs. 5 and 45
5
In re N. Cypress Med. Ctr.Operating Co., 559 S.W.3d 128, 129 (Tex. 2018) (orig. proceeding)
DEFENDANT TOWN EAST’S RESPONSE TO PLAINTIFF’S
MOTION TO STRIKE THE COUNTER/CONTRAVERTING AF FIDAVITS
OF ROGER CLIFFORD, DC, DACNB, AND PAUL MARCUS MURPHY 7
18. Plaintiff s main challenge can be better characterized as Mr. Murphy’s opinions
being unreliable and not trustworthy. But, the Supreme Court has made it clear that such is not a
legal basis for challenging the counter-affidavit. In re Allstate., at 880. The question of whether an
affidavit meets the reasonable-notice standard, “does not require a court to assess the reliability of
the expert’s opinions under Rule 702 or Robinson.” Id., at 880-81 (quotations added).
l9. If Plaintiff believes Mr. Murphy’s opinions to be unreliable, then Plaintiff will have
a chance to make such a challenge. Plaintiff‘ s motion to strike is neither the time nor place. Mr.
Murphy’s affidavit satisfies the requirement that he give a “reasonable notice” for his opinions.
CONCLUSION
WHEREFORE, Plaintiff has failed to show that Dr. Clifford’s and/or Mr. Murphy’s
affidavits failed to comply with TEX. R. CIV. PRAC. & REM. CODE §18.001(f) and its “reasonable
notice” requirements. Defendant Town East Heating & Ari Conditioning Co., LLC requests that
upon hearing the motion, Plaintiff’s motion to strike should be in all respects denied.
DEFENDANT TOWN EAST’S RESPONSE TO PLAINTIFF’S
MOTION TO STRIKE THE COUNTER/CONTRAVERTING AFFIDAVITS
OF ROGER CLIFFORD, DC, DACNB, AND PAUL MARCUS MURPHY 8
Respectfully submitted,
/s/ David M Kennedy
David M. Kennedy
State Bar No. 11284400
E: david@saunderswalsh.com
SAUNDERS, WALSH & BEARD
Craig Ranch Professional Plaza
6850 TPC Drive, Ste 210
McKinney, Texas 75070
P: 214/919-3555
F: 214/945-4060
ATTORNEYS FOR TOWN EAST
CERTIFICATE OF SERVICE
This is to certify that a true and correct copy of the foregoing document was served upon
all counsel of record on this 7th day of March 2022, pursuant to the Texas Rules of Civil Procedure
21 and 2 1 a.
/s/ David M. Kennedy
David M. Kennedy
DEFENDANT TOWN EAST’S RESPONSE TO PLAINTIFF’S
MOTION TO STRIKE THE COUNTER/CONTRAVERTING AFFIDAVITS
OF ROGER CLIFFORD, DC, DACNB, AND PAUL MARCUS MURPHY 9
Automated Certificate of eService
This automated certificate of service was created by the efiling system.
The filer served this document via email generated by the efiling system
on the date and to the persons listed below. The rules governing
certificates of service have not changed. Filers must still provide a
certificate of service that complies with all applicable rules.
Liz Jobes on behalf of David Kennedy
Bar No. 11284400
liz@saunderswalsh.com
Envelope ID: 62368856
Status as of 3/8/2022 9:53 AM CST
Associated Case Party: JOSHUA BROWN
Name BarNumber Email TimestampSubmitted Status
Grant Liser gliser@namanhowell.com 3/7/2022 3:32:30 PM SENT
Sandra Liser sliser@namanhowell.com 3/7/2022 3:32:30 PM SENT
Case Contacts
Name BarNumber Email TimestampSubmitted Status
Adewale WaleOdetunde Adewale.Odetunde@witheritelaw.com 3/7/2022 3:32:30 PM SENT
Shelly Tomlin Greco 24008168 shelly.greco@witheritelaw.com 3/7/2022 3:32:30 PM SENT
Francine Ly fly@dallascourts.org 3/7/2022 3:32:30 PM SENT
Associated Case Party: TOWN EAST HEATING & AIR CONDITION CO, LLC
Name BarNumber Email TimestampSubmitted Status
David Kennedy david@saunderswalsh.com 3/7/2022 3:32:30 PM SENT
Liz Jobes liz@saunderswalsh.com 3/7/2022 3:32:30 PM SENT
Preview
FILED 3/7/2022 3:32 PM FELICIA PITRE DISTRICT CLERK DALLAS CO., TEXAS Darling Tellez DEPUTY CAUSE NO. DC-21-03224 SHAN TE WATSON, § IN THE DISTRICT COURT Plaintiff § § v. § § DALLAS COUNTY, TEXAS JOSHUA BROWN; AND TOWN EAST § HEATING & AIR CONDITIONING CO., § LLC, § Defendants. § 134m JUDICIAL DISTRICT TOWN EAST HEATING & AIR CONDITIONING CO., LLC’s RESPONSE TO THE MOTION TO STRIKE THE COUNTER/CONTRAVERTING AFFIDAVITS OF ROGER CLIFFORD, DC, DACNB AND PAUL MARCUS MURPHY TO THE HONORABLE COURT: COMES NOW Town East Heating & Air Conditioning Co., Inc. (‘Town East’) and files this its response to the above-referenced motion to strike, and in support would show: 1. Town East will respond to the arguments of Plaintiff in the order they are made by Plaintiff in the motion. Additionally, Town East will place primary reliance on TEX. R. CIV. PRAC. & REM. CODE §l8.001(f), and the Supreme Court’s detailed explanation of what satisfies the requirements of this statute, In re Allstate Indemnity Company, 622 S.W.3d 870 (Tex. 2021). ALLEGED GROUNDS FOR STRIKING DR. CLIFFORD’S AFFIDAVIT A. Response to the alleged grounds that ‘Dr. Clifford fails to present reasonable notice of his basis for challenging medical necessity.’ 2. In this argument, Plaintiff in effect is making a conclusory complaint that Dr. Clifford cites articles upon which he relies, but does not provide the articles. Plaintiff argues that Dr. Clifford fails to explain ‘why’ services were unnecessary. 3. In re Allstate holds that the “reasonable notice” standard is similar in meaning to that of the “fair notice” in Texas pleadings. Accordingly, the standard measures Whether the DEFENDANT TOWN EAST’S RESPONSE TO PLAINTIFF’S MOTION TO STRIKE THE COUNTER/CONTRAVERTING AFFIDAVITS OF ROGER CLIFFORD, DC, DACNB, AND PAUL MARCUS MURPHY 1 counter/controverting affidavits “provided the opposing party sufficient information to enable that party to prepare a defense or response.” Id., at 879 (quoting authority). Dr. Clifford’s detailed report explains the basis for his opinion. 4. Smith Countv Treatment: Dr. Clifford opines that not allof the services were necessary. Dr. Clifford opines that only those to September 29, 2020 were necessary. The basis for this opinion is, among other things detailed by him: a) there was a lack of evidence of functional improvement from treatment; b) the injuries identified were minimal uncomplicated soft tissue strains that would have resolved even without treatment; C) according to the Texas Board of Chiropractic Examiners, objective findings to support treatment are required, and they were not in this instance; d) a specific, detailed timeline of when the injury occurred and the findings of a lack of injuries and treatments of alleged injuries by the EMS, ER, and hospital, all are inconsistent with the claimed injuries thereafter at the Smith County Chiropractor. Instead, the delay confirms minor injuries that would not require chiropractic treatment, if at all, after September 29, 2020; e) citing authority, he notes that limited chiropractic care (6 visits) for soft tissue injuries results in better recovery, than those with extensive care as in this case; the need for psychological therapy was inconsistent with the recorded evidence of such a need in the EMS and Christus Hospital records, primarily that of: no loss of consciousness; she was fully oriented; she was alert; pupils were normal; no head injury or trauma; no confusion; no sensory deficits; no cognitive deficits; CT of brain was normal. 5. In short, Plaintiff may not appreciate or agree with the stated basis for his opinions as to a lack of necessity beyond September 29, 2020, but it cannot be argued that he did not give a “reasonable notice” for that opinion. Of course, his professional qualifications and extensive experience give him the additional basis for credibility and reasonable notice. DEFENDANT TOWN EAST’S RESPONSE TO PLAINTIFF’S MOTION TO STRIKE THE COUNTER/CONTRAVERTING AFFIDAVITS OF ROGER CLIFFORD, DC, DACNB, AND PAUL MARCUS MURPHY 2 6. Smith Cogntv Chiropractic Referral for MRIs: Smith County Chiropractic referred Plaintiff for MRIs with Tyler Open Air MRI, that Dr. Clifford opines were an unnecessary expense. The basis for this opinion is, among other things detailed by him: a) There were no progressive neurological deficits such as worsening atrophy or muscle weakness; b) There was no evidence of radiculopathy, such as sensory loss, muscle weakness, atrophy, reflex loss; c) Cervical, thoracic, and lumbar CT scans has already failed to show acute findings; d) As set out above, the timeline established in the medical records was inconsistent with significant spinal and musculoskeletal injuries; e) The MRIs simply confirmed no objective signs of injuries, and did not change the chiropractic treatments. 7. Dr. Clifford references guiding standards of the American College of Radiology and the American College of Physicians to support his opinions and the reason for the same. Those references and his professional credentials and experience in providing MRI referrals based on sound reasoning, provide the basis for his opinions. As with the unnecessary and excessive chiropractic treatments addressed above, itcannot be argued that he did not give a “reasonable notice” for that opinion. B. Response to the alleged grounds that ‘Dr. Clifford fails to provide reasonable notice of his basis for challenging medical bills.’ 8. Plaintiff complains that Dr. Clifford does not give the basis for his objection to the amounts charged for various procedures. However, as Plaintiff points out, Dr. Clifford opines that he bases the opinions on his “knowledge, skill, training, licensure, and experience.” He states he has treated thousands of patients over thirty years in the chiropractic profession. He bases his opinions on his own practice, as well as his knowledge of the usual, customary, and reasonable DEFENDANT TOWN EAST’S RESPONSE TO PLAINTIFF’S MOTION TO STRIKE THE COUNTER/CONTRAVERTING AF FIDAVITS OF ROGER CLIFFORD, DC, DACNB, AND PAUL MARCUS MURPHY 3 charges that would have been made in the DFW region, and that an amount higher than what he opines would have been excessive and not reasonable. He also applies knowledge of what would be paid under health insurance plans, Medicare, Medicaid, and Workers Compensation, and it is less than what is being charged in this instance. As noted by the Supreme Court, a comparison of median charges for those same charges during the same timeframe and zip code, is the type of basis that provides reasonable notice. See id., at 880. 9. Dr. Clifford - based on the foregoing - then opines to what was charged, and what a reasonable charge would have been. This is noted in Plaintiff s motion, yet Plaintiff then argues it was not done. Based on referenced guidelines of the American Chiropractic Association Clinical Documentation Manual, and the American Medical Association CPT Code Book, documentation standards were not met, and as such, certain charges are not reasonable in any amount charged because it is not permitted by the profession. 10. The remaining charges for services were each addressed as charged against what would have been a reasonable charge. Dr. Clifford then does the simple math of applying what he had opined as being acceptable numbers of visits against his opined reasonable charges, and sets out total amounts of reasonable charges. Itcannot be argued that he did not give a “reasonable notice” for that opinion. ALLEGED GROUNDS FOR STRIKING MARCUS MURPHY’S AFFIDAVIT C. Response to the alleged grounds that ‘Mr. Murphy also fails to show the underlying basis for his challenge to Plaintiff’s medical bills.’ 11. The crux of Plaintiff’s complaint with regard to Mr. Murphy is that his opinions fail to state what the reasonable amount is, and if they do, they are still unreliable. Not only are they wrong, but neither of these are grounds for challenging this counter / controverting affidavit. DEFENDANT TOWN EAST’S RESPONSE TO PLAINTIFF’S MOTION TO STRIKE THE COUNTER/CONTRAVERTING AFFIDAVITS OF ROGER CLIFFORD, DC, DACNB, AND PAUL MARCUS MURPHY 4 12. The first flaw running through Plaintiff” s argument is that Mr. Murphy fails to state clearly What is reasonable, and how he arrives at the opinion. Yet nothing in 18.001(f) requires the affidavit set out what is a reasonable amount. All that is required is that it ‘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.’ In other words, it must give the basis for saying Why the charges are not reasonable, not what would be reasonable. It is the burden of Plaintiff, not Town East, to prove to the jury what is reasonable - with or without a controverting affidavit. 13. Regardless, Mr. Murphy’s affidavit meets this requirement. As a basis - in addition to his extensive billing and coding analysis experience - Mr. Murphy notes that he is familiar with what providers typically receive for similar services in Texas and east/north Texas where these services were provided. He states that he is familiar with billing charges in these regions and what typically gets paid for similar services using national databases that are peer reviewed by the AMA which include the very doctors who are billing charge rates that are much higher than what they typically accept for payment. “Based on the provided documentation, the forensic comparative analysis utilizing national databases that provide specific payments for specific geographical regions with more than two decades of billing charge data and payment data for medical goods and services, and my expertise as described within this affidavit, it is my opinion, within a reasonable probability, on the basis that when compared to what typically is paid for similar services in this region, the billing charges are excessive and unreasonable. The reasonable value/reasonable expense for these medical goods and services is between $6,862.46 and $10,230.70.” In other words, and as Mr. Murphy specifically states, “the forensic comparative analysis will show the disparity and discrepancy in what was billed to the reasonable values as DEFENDANT TOWN EAST’S RESPONSE TO PLAINTIFF’S MOTION TO STRIKE THE COUNTER/CONTRAVERTING AFFIDAVITS OF ROGER CLIFFORD, DC, DACNB, AND PAUL MARCUS MURPHY 5 documented in the benchmarks.” His opinions relate to specific benchmarks that he discusses in detail. 14. As noted by Mr. Murphy, his opinions rely on data that is generated by over 900,000 medical providers across multiple specialties and multiple locations nationwide. This database is peer reviewed by the doctors and their associations, the AMA, along with the AMA RUC (Review Utilization Committee).1 As for this review, he explains that in this case, he compared the billed charges by each provider for the dates of service to the calculated reasonable value offered in the AMA peer reviewed national databases of CMS for the appropriate date and locale and to other sources as noted. He then identified which billed charges are excessive, or unreasonable, and offered the reasonable value range that a provider in this region typically accepts for similar services in the Texas region for Dallas, Texas and Locality # 99 for the greater region that includes Tyler and Smith County? 15. Plaintiff attacks as untrustworthy Mr. Murphy’s mean values tied to CMS values. As explained, however, “The rationale for using these AMA peer reviewed publicly available national databases is to offer a reasonable value that again links CPT codes to the specific geographical region and to the time frame with a higher “markup” or ratio based on the actual Tier 1 nationwide listprices of providers which offers a separate reasonable value for comparison purposes.”3 16. It really cannot be argued that Mr. Murphy fails to give a ‘reasonable notice’ of how he opines that the charges of these entities were unreasonable. And although he is not required 1 Murphy report, p. 8 2 Murphy report, p. 26-27 3 Murphy report, p. 32 DEFENDANT TOWN EAST’S RESPONSE TO PLAINTIFF’S MOTION TO STRIKE THE COUNTER/CONTRAVERTING AFFIDAVITS OF ROGER CLIFFORD, DC, DACNB, AND PAUL MARCUS MURPHY 6 to do so, he opines to what the reasonable values are.4 17. Plaintiff argues that it cannot be deteImined What Mr. Murphy represents to be the “maximum reasonable charge” for services by the providers. Again, even though he does state the maximum when arriving at a mean, that is not the obligation of Mr. Murphy in the affidavit. He must only show the basis for his criticism of the amounts charged as not being reasonable, and he does this in great detail. The Tier I chargemaster rate is being challenged by him for the reasons he states. This analysis was specifically recognized recently in In re Auto K&L Auto Crushers, LLC, 627 S.W.3d 239 (Tex. 2021), when the Court again confirmed that chargemaster rates “are not dispositive of what is reasonable.” Id., at 248-49 (quoting authority). This is true, even if in this case Plaintiff is legally bound to pay this higher Tier I chargemaster rate, because the jury can still find it to be unreasonable. See id., at 250. Consequently, the Tier II negotiated rates referenced by Mr. Murphy as relevant and of which Plaintiff Watson complains, is the basis recognized by the Auto Crushers Court as reasonable. That Court, quoting a previous decision of the Court,5 reiterated the relevance of the Murphy analysis: while certainly “ not dispositive,” the negotiated rates the providers charged to private insurers and public payors for the medical services and devices provided to Walker, and the costs the providers incurred to provide those services and devices, are “at least relevant” to whether the chargemaster rates the providers billed to Walker for the same services and devices are reasonable. (citation omitted) While Plaintiff Watson may complain that Murphy was compelled to pick a “maximum” Tier II charge that he opines as reasonable, nothing in the statute requires that. Instead, it is sufficient that he set forth the correct reasonableness analysis that he described in detail. 4 Murphy report, pgs. 5 and 45 5 In re N. Cypress Med. Ctr.Operating Co., 559 S.W.3d 128, 129 (Tex. 2018) (orig. proceeding) DEFENDANT TOWN EAST’S RESPONSE TO PLAINTIFF’S MOTION TO STRIKE THE COUNTER/CONTRAVERTING AF FIDAVITS OF ROGER CLIFFORD, DC, DACNB, AND PAUL MARCUS MURPHY 7 18. Plaintiff s main challenge can be better characterized as Mr. Murphy’s opinions being unreliable and not trustworthy. But, the Supreme Court has made it clear that such is not a legal basis for challenging the counter-affidavit. In re Allstate., at 880. The question of whether an affidavit meets the reasonable-notice standard, “does not require a court to assess the reliability of the expert’s opinions under Rule 702 or Robinson.” Id., at 880-81 (quotations added). l9. If Plaintiff believes Mr. Murphy’s opinions to be unreliable, then Plaintiff will have a chance to make such a challenge. Plaintiff‘ s motion to strike is neither the time nor place. Mr. Murphy’s affidavit satisfies the requirement that he give a “reasonable notice” for his opinions. CONCLUSION WHEREFORE, Plaintiff has failed to show that Dr. Clifford’s and/or Mr. Murphy’s affidavits failed to comply with TEX. R. CIV. PRAC. & REM. CODE §18.001(f) and its “reasonable notice” requirements. Defendant Town East Heating & Ari Conditioning Co., LLC requests that upon hearing the motion, Plaintiff’s motion to strike should be in all respects denied. DEFENDANT TOWN EAST’S RESPONSE TO PLAINTIFF’S MOTION TO STRIKE THE COUNTER/CONTRAVERTING AFFIDAVITS OF ROGER CLIFFORD, DC, DACNB, AND PAUL MARCUS MURPHY 8 Respectfully submitted, /s/ David M Kennedy David M. Kennedy State Bar No. 11284400 E: david@saunderswalsh.com SAUNDERS, WALSH & BEARD Craig Ranch Professional Plaza 6850 TPC Drive, Ste 210 McKinney, Texas 75070 P: 214/919-3555 F: 214/945-4060 ATTORNEYS FOR TOWN EAST CERTIFICATE OF SERVICE This is to certify that a true and correct copy of the foregoing document was served upon all counsel of record on this 7th day of March 2022, pursuant to the Texas Rules of Civil Procedure 21 and 2 1 a. /s/ David M. Kennedy David M. Kennedy DEFENDANT TOWN EAST’S RESPONSE TO PLAINTIFF’S MOTION TO STRIKE THE COUNTER/CONTRAVERTING AFFIDAVITS OF ROGER CLIFFORD, DC, DACNB, AND PAUL MARCUS MURPHY 9 Automated Certificate of eService This automated certificate of service was created by the efiling system. The filer served this document via email generated by the efiling system on the date and to the persons listed below. The rules governing certificates of service have not changed. Filers must still provide a certificate of service that complies with all applicable rules. Liz Jobes on behalf of David Kennedy Bar No. 11284400 liz@saunderswalsh.com Envelope ID: 62368856 Status as of 3/8/2022 9:53 AM CST Associated Case Party: JOSHUA BROWN Name BarNumber Email TimestampSubmitted Status Grant Liser gliser@namanhowell.com 3/7/2022 3:32:30 PM SENT Sandra Liser sliser@namanhowell.com 3/7/2022 3:32:30 PM SENT Case Contacts Name BarNumber Email TimestampSubmitted Status Adewale WaleOdetunde Adewale.Odetunde@witheritelaw.com 3/7/2022 3:32:30 PM SENT Shelly Tomlin Greco 24008168 shelly.greco@witheritelaw.com 3/7/2022 3:32:30 PM SENT Francine Ly fly@dallascourts.org 3/7/2022 3:32:30 PM SENT Associated Case Party: TOWN EAST HEATING & AIR CONDITION CO, LLC Name BarNumber Email TimestampSubmitted Status David Kennedy david@saunderswalsh.com 3/7/2022 3:32:30 PM SENT Liz Jobes liz@saunderswalsh.com 3/7/2022 3:32:30 PM SENT