Preview
FILED
3/18/2022 11:36 AM
FELICIA PITRE
DISTRICT CLERK
DALLAS CO., TEXAS
Jenifer Trujillo DEPUTY
CAUSE NO. DC-21-03224
SHANTE WATSON; THE DISTRICT COURT OF
§§§§§§§§§
IN
Plaintiff,
VS. DALLAS COUNTY, TEXAS
JOSHUA BROWN; AND TOWN EAST
HEATING & AIR CONDITIONING CO.,
LLC;
§§
Defendants. 134T” JUDICIAL DISTRICT
PLAINTIFF’S REPLY TO DEFENDANT TOWN EAST HEATING & AIR
CONDITIONING CO., LLC’s RESPONSE TO MOTION TO STRIKE THE
COUNTER/CONTROVERTING AFFIDAVITS OF ROGER CLIFFORD, DC, DACNB
AND PAUL MARCUS MURPHY
Plaintiff SHANTE WATSON files this Reply to Defendant Town East Heating & Air
Conditioning CO., LLC’s Response to Motion to Strike the Counter/Controverting
Affidavits of Roger Clifford, DC, DACNB and Paul Marcus Murphy.
I. REPLY ARGUMENT
In response to Plaintiff’s Motion to Strike, Defendant argues that Roger Clifford,
D.C.’s Counter-Affidavit does satisfy section 18.001's reasonable-notice standard as to
his opinions on medical necessity and the reasonableness of Plaintiff’s medical bills.
Defendant also argues that Paul Marcus Murphy provides reasonable notice of the
basis for his billing opinions. Defendant mischaracterizes Plaintiff's Motion as challenging
the reliability of Mr. Murphy’s opinion; and Defendant does not address Plaintiffs grounds
for striking Mr. Murphy’s Controverting Affidavit based on his lack of qualifications.
Plaintiff stands by her positions in her Motion to Strike, but files this reply to
illuminate the flaws in Defendant’s arguments.
PLAINTIFF’S REPLY TO DEFENDANT TOWN EAST HEATING & AIR CONDITIONING CO., LLC’S
RESPONSE TO MOTION TO STRIKE THE COUNTER/CONTROVERTING AFFIDAVITS OF ROGER
CLIFFORD, DC, DACNB AND PAUL MARCUS MURPHY — Page 1
A. Dr. Clifford’s generic statements fail to account for Ms. Watson’s
medical history, conditions, and symptoms; and therefore fail to
reasonable notice of the basis for challenging her medical
provide
serVIces.
Plaintiffs argument for challenging Dr. Clifford’s opinions on medical necessity is
that (1) he fails to provide copies or meaningful citation to the studies upon which he
relies; (2) he fails to explain how those studies apply to Ms. Watson; (3) he does not
explain why any of the specific chiropractic services were unnecessary based on Ms.
Watson's symptoms, injuries, and providers’ findings (or even why he deems necessary
some of the chiropractic services provided before her re-exam); (4) his opinion on
psychological services was improperly based on causation; and (5) he does not explain
why MRls were unnecessary based on Ms. Watson's symptoms, injuries, and providers’
findings, or why imaging from seven months earlier renders the MRls unnecessary.
Defendant does not address Plaintiff’s arguments but instead iterates some of the
apparent bases Dr. Clifford gave for his opinions. Plaintiff has already addressed Dr.
Clifford’s statements in her Motion to Strike, showing that they do not amount to
reasonable notice.
However, one point should be clarified. Defendant points to Dr. Clifford’s
statements that Ms. Watson suffered only minimal soft tissue sprains and had no
functional improvement at the September 29, 2020 re-exam to support his opinion that all
chiropractic services after the re-exam were unnecessary. See Defendant’s Reply, p. 2;
Clifford Aff., at Report, pp. 8, 12. However, Ms. Watson’s providers continued diagnosing
her symptoms and injuries following the September 29, 2020 re-exam. In fact, as Dr.
PLAINTIFF’S REPLY TO DEFENDANT TOWN EAST HEATING & AIR CONDITIONING CO., LLC’S
RESPONSE TO MOTION TO STRIKE THE COUNTER/CONTROVERTING AFFIDAVITS OF ROGER
CLIFFORD, DC, DACNB AND PAUL MARCUS MURPHY — Page 2
Clifford notes, A-Medical Advantage saw Ms. Watson the same day as the chiropractic
re-exam and reported the following findings:
On 09-29-20, a medical consultation was provided by A-Medical
Advantage. Complaints were noted to include headache, neck, upper, lower
back, bilateral wrist, right shoulder, and right knee pain. Neurological exam
showed that she was unable to spell football backwards. Romberg and
tandem testing were positive. Cervical exam showed decreased ROM and
palpatory tenderness. Left hand exam showed multiple abrasions and poor
grip strength. Right hand/wrist exam showed multiple abrasions, poor grip
strength, reduced range of motion, and hyperesthesia to the right thumb.
Right shoulder exam showed limited ROM, positive right shoulder
depressor, tenderness, and 4/5 strength. Right knee exam showed limited
flexion and tenderness over the lateral aspect. Left knee exam was normal.
Low back exam showed hypertonicity and spasm and tenderness at T8.
Assessments included concussion with loss of consciousness, acute
posttraumatic headache, neck sprain, neck strain, thoracic myofascial
strain, lumbar sprain, lumbar strain, wrist and hand strain, impingement
syndrome right shoulder, and contusion of right knee. Topiramate,
gabapentin, and ibuprofen were prescribed.
Clifford Aff., at Report, p. 5. Dr. Clifford further notes that on October 6, 2020, Elevate
Health Clinics diagnosed Ms. Watson with “concussion with loss of concisions [sic], other
specified injuries of head, posttraumatic headache, mild cognitive impairment, dizziness
and giddiness, attention and concentration deficit, irritability and anger, restlessness and
agitation, and adjustment insomnia.” Clifford Aff., at Report, p. 5. Between October 10,
2020 and her final chiropractic visit at Smith County Healthcare Systems, Ms. Watson
saw providers for low back pain, cervicalgia, bilateral hand pain, bilateral knee pain, neck
pain, right shoulder pain, memory and cognitive issues. See Clifford Aff., at Report, pp.
5—6. MRls performed on March 3, 2021 showed cervical facet arthrosis resulting in mild
foraminal narrowing, mild infraspinatus insertional tendinosis and low lying acromion and
os acromiale in the right shoulder, and patellar instability but no acute osseous
PLAINTIFF’S REPLY TO DEFENDANT TOWN EAST HEATING & AIR CONDITIONING CO., LLC’S
RESPONSE TO MOTION TO STRIKE THE COUNTER/CONTROVERTING AFFIDAVITS OF ROGER
CLIFFORD, DC, DACNB AND PAUL MARCUS MURPHY — Page 3
abnormality in the left knee. See Clifford Aff., at Report, p. 7. A March 18, 2021 shoulder
MRI showed mild infraspinatus tendinosis and os acromiale. See Clifford Aff., at Report,
p. 7. Her last visit to Smith County Healthcare System was on May 5, 2021.
Dr. Clifford fails to provide reasonable notice of the basis for his opinion, especially
in light of Ms. Watson’s continuing and developing medical conditions following the initial
re-exam. Further, he does not identify any of the specific chiropractic services Ms. Watson
received and explain why any of those services were unnecessary to treat Ms. Watson’s
symptoms and conditions. Summarily stating that all chiropractic services after the first
re-exam were unnecessary because she showed no functional improvement simply does
not supply Plaintiff with reasonable notice sufficient to enable Plaintiff to develop her
attack on Dr. Clifford’s controverting opinion. See In re Allstate, 622 S.W.3d at 880.
Regarding the necessity of MRls, Defendant responds in part that Dr. Clifford's
reference to “guiding standards of the American College of Radiology and the American
College of Physicians” and “his professional credentials and experience in providing MRI
referrals based on sound reasoning, provide the basis for his opinions.” Defendant’s
Reply, p. 3. Defendant’s position conflates the qualifications and notice requirements of
section 18.001. Dr. Clifford’s detailing his credentials and knowledge of imaging
standards does not mean that he has provided reasonable notice of the basis for an
opinion that Ms. Watson’s MRls were unnecessary. As for the “guiding standards” Dr.
Clifford references, he states simply:
According to the American College of Radiology, most patients presenting
with uncomplicated acute low back pain (LBP) and/or radiculopathy do not
require imaging. (Patel, 2016) According to the American College of
Physicians, routine imaging does not seem to improve clinical outcomes
and exposes patients to unnecessary harms. (Chou, 2011).\
PLAINTIFF’S REPLY TO DEFENDANT TOWN EAST HEATING & AIR CONDITIONING CO., LLC’S
RESPONSE TO MOTION TO STRIKE THE COUNTER/CONTROVERTING AFFIDAVITS OF ROGER
CLIFFORD, DC, DACNB AND PAUL MARCUS MURPHY — Page 4
Clifford Aff., at Report, p. 16. This does nothing to support an opinion that Ms. Watson’s
MRls were unnecessary.
Regarding the necessity of psychological therapy treatment, Defendant’s response
wholly ignores that Dr. Clifford’s opinion was based on causation, which is not a proper
basis for challenging medical services in a section 18.001 counter-affidavit.
For these reasons and those stated in Plaintist Motion to Strike, Dr. Clifford’s
Affidavit does not even meet a minimal “fair notice" threshold and, consequently, fails to
satisfy section 18.001(f)’s reasonable notice condition for challenging Ms. Watson’s need
for medical services.
B. Dr. Clifford’s knowledge and experience do not supply Plaintiff with
reasonable notice of the basis for his reasonable-charge opinions.
Defendant also contends that Dr. Clifford provides reasonable notice of his billing
opinions by stating the amounts he deems reasonable for chiropractic service, along with
his blanket assertion that those amounts are based on his knowledge, skill,training, and
experience; his knowledge of the usual, customary, and reasonable charges in the DFW
area; and his knowledge of what would be paid under health insurance plans, Medicare,
Medicaid, and workers’ compensation.‘ See Defendant’s Response, pp. 3—4. In other
words, Defendant’s argument is that reasonable notice is supplied simply by listing all the
ways in which Dr. Clifford has knowledge of various charge and reimbursement amounts
from different sources. Defendant is again conflating the qualifications and notice
requirements; Defendant’s position is essentially that, because Dr. Clifford has certain
1Although not mentioned in Defendant’s Response, Dr. Clifford also says he considers "various
benchmark data, including the Chiropractic Economics 2020 Fees and Reimbursements Survey Results."
Clifford Aff.,at Report, p.13.
PLAINTIFF’S REPLY TO DEFENDANT TOWN EAST HEATING & AIR CONDITIONING CO., LLC’S
RESPONSE TO MOTION TO STRIKE THE COUNTER/CONTROVERTING AFFIDAVITS OF ROGER
CLIFFORD, DC, DACNB AND PAUL MARCUS MURPHY — Page 5
knowledge and qualifications, Plaintiff should simply take Dr. Clifford at his word that he
considered all the data he says he considers, without knowing what that data says or how
he factors that data into his opinion.
Defendant quotes In re Allstate as support; but Dr. Clifford's Affidavit is nothing like
the counter-affidavit addressed there. See In re Allstate, 622 S.W.3d at 874. In Allstate,
the controverting witness, Nurse Dickison, itemized each charge that she controverted
and compared each charge to the median charges from the Context4 Healthcare
database for the same services in the same timeframe and zip code as the plaintiff’s
services. See id. at 874. The Texas Supreme Court held that the counter-affidavit satisfied
section 18.001 ’s reasonable-notice requirement because itexplained in detail the reasons
why such charges were being controverted. Id. at 879—80.
Unlike Nurse Dickison, Dr. Clifford does not provide any data he considered or
explain whether that data was from the same timeframe and zip code as the plaintiff’s
services. Plaintiff has no way to know how Dr. Clifford arrived at his reasonable-charge
rates and ultimate opinion that her providers’ charges were unreasonable. Dr. Clifford’s
Affidavit, therefore, fails to satisfy section 18.001(f)’s reasonable notice condition for
challenging Ms. Watson’s providers’ charges.
C. Mr. Murphy’s confusing and contradictory statements on Ms.
Watson’s providers’ charges fail to satisfy section 18.001’s
reasonable-notice requirement.
Defendant mischaracterizes Plaintiff’s Motion with respect to Paul Marcus Murphy
as challenging the reliability and trustworthiness of Mr. Murphy’s opinion. See
Defendant’s Response, pp. 4, 8. To the contrary, Plaintiff’s Motion never even uses the
words “unreliable” or “untrustworthy.” Plaintiff acknowledges that the Texas Supreme
PLAINTIFF’S REPLY TO DEFENDANT TOWN EAST HEATING & AIR CONDITIONING CO., LLC’S
RESPONSE TO MOTION TO STRIKE THE COUNTER/CONTROVERTING AFFIDAVITS OF ROGER
CLIFFORD, DC, DACNB AND PAUL MARCUS MURPHY — Page 6
Court explained in In re Allstate that “[n]othing in the text of section 18.001 (f) requires that
an opinion expressed in a counteraffidavit must meet the admissibility requirements for
expert testimony.” In re Allstate Indemnity Co., 622 S.W.3d 870, 880 (Tex. 2021). The
standard, as stated in In re Allstate, is reasonable (i.e.,fair) notice.
Regarding Mr. Murphy’s Controverting Affidavit, Defendant first contends that Mr.
Murphy was not required, under section 18.001, to opine on what he deems a reasonable
charge for Plaintiff’s services. See Defendant’s Response, p. 5. However, what a counter-
affiant deems a reasonable charge is part and parcel to an opinion that a specific
provider’s charges are unreasonable. Without an opinion on what is a reasonable charge,
the counter-affiant’s opinion is not much more than an urging that he is qualified to opine
that a charge is unreasonable. Without knowing how Mr. Murphy arrived at an opinion
that her charges were unreasonable, Ms. Watson has no way to develop her attack on
his controverting opinion.
Defendant also points to the following statement by Mr. Murphy in an effort to show
that he does opine as to what he deems a reasonable charge:
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.
Defendant’s Response, p. 5—6.
An in-depth dissection of Mr. Murphy’s Affidavit reveals how he arrived at those
two figures, at least mathematically; but nothing in his Affidavit reveals why he did so. The
PLAINTIFF’S REPLY TO DEFENDANT TOWN EAST HEATING & AIR CONDITIONING CO., LLC’S
RESPONSE TO MOTION TO STRIKE THE COUNTER/CONTROVERTING AFFIDAVITS OF ROGER
CLIFFORD, DC, DACNB AND PAUL MARCUS MURPHY — Page 7
first figure in the quoted paragraph above ($6,862.46) is the sum of the CMS values for
both PHI Air Medical and Christus Mother Frances. The second figure ($10,230.70) is the
sum of the 125%-of—CMS value for PHI Air Medical and the TWC value for Christus Trinity.
Thus, it appears from this statement that Mr. Murphy is attempting to opine that the
maximum reasonable charge for PHI Air Medical is 125% of the Medicare reimbursement
rate and, for Christus Trinity, is the Texas Workers' Compensation reimbursement rate.
The problem is that he also includes a third benchmark figure for both providers but fails
to explain why he does not factor those amounts into this reasonable-charge opinion or
why, elsewhere in his Affidavit, he does consider those amounts.
When analyzing PHI Air Medical’s charges, Mr. Murphy provides the CMS value,
125% of the CMS value, and 150% of the CMS value. If Mr. Murphy intends to opine that
the maximum reasonable charge for PHI Air Medical’s services is 125% of the CMS value,
not only does he fail to explain why that figure represents the maximum reasonable-
charge amount, but he also fails to explain why he even provides the 150%-of-CMS
values in his Affidavit. Even more confusing, he also says:
It is my experience that these multiplier values are used by many in the
payer industry and the reasonable value of 150% the CMS value is in line
with study data which seeks to establish CMS payments to cover costs of
the services utilizing the AMA CPT codes and the Harvard RBRVS system
for covering costs and a margin of profit.
Murphy Aff., p. 34 (emphasis added). Plaintiff cannot tell which of Mr. Murphy’s
contradictory statements form the basis for his opinion.
PLAINTIFF’S REPLY TO DEFENDANT TOWN EAST HEATING & AIR CONDITIONING CO., LLC’S
RESPONSE TO MOTION TO STRIKE THE COUNTER/CONTROVERTING AFFIDAVITS OF ROGER
CLIFFORD, DC, DACNB AND PAUL MARCUS MURPHY — Page 8
Similarly, for Christus Trinity’s charges, Mr. Murphy includes the CMS value, the
TWC value, and a “Mean” charge, which is higher than the first two charges? When
describing the Mean value, he states, “This helps establishes the reasonable value range
for that service." Murphy Aff., p. 31. Yet it appears Mr. Murphy may not have considered
the Mean charges at all ifhis opinion is that any amount above the Texas Workers’
Compensation reimbursement rate is unreasonable. Even if Mr. Murphy could supply
reasonable notice without opining to what he deems a maximum reasonable charge, his
contradictory and confusing statements fail to do so.
ll.CONCLUSION
Allowing the Counter-Affidavits of Roger Clifford, DC, DACNB and the
Controverting Affidavit of Paul Marcus Murphy to negate Ms. Watson’s medical providers’
initial affidavits without demanding strict compliance with section 18.001 (f), frustrates the
savings intended by the statute. Accordingly, Plaintiff asks that the Court strike Dr.
Clifford’s and Mr. Murphy’s Affidavits for all purposes.
WHEREFORE, PREMISES CONSIDERED, Plaintiff SHANTE WATSON prays
that this Honorable Court grant her amended motion to strike. Plaintiff seeks such other
and further relief to which she may be justly entitled, whether at law or in equity.
2He says the “Mean" value is the average of the CMS value and “the Texas State median billed
charge/Tier 1 List Price from historicalclaims data collected by CMS forthe specific CPT code forthat same
period." Murphy Aff., p. 30.
PLAINTIFF’S REPLY TO DEFENDANT TOWN EAST HEATING & AIR CONDITIONING CO., LLC’S
RESPONSE TO MOTION TO STRIKE THE COUNTER/CONTROVERTING AFFIDAVITS OF ROGER
CLIFFORD, DC, DACNB AND PAUL MARCUS MURPHY — Page 9
Respectfully submitted,
WITHERITE LAW GROUP, PLLC
BY: /s/Adewa/e Odetunde
ADEWALE ODETUNDE
State Bar No. 24088146
adewale.odetunde@witheritelaw.com
SHELLY GRECO
State Bar No. 24008168
shel|v.qreco@witheritelaw.com
10440 N. Central Expressway
Suite 400
Dallas, TX 75231-2228
214/378-6665
214/378-6670 (fax)
ATTORNEYS FOR PLAINTIFF
CERTIFICATE 0F SERVICE
l hereby certify that a true and correct copy of the above and foregoing document
has been forwarded to all counsel of record on this 18‘“ day of March, 2022, pursuant to
the Texas Rules of Civil Procedure.
/s/ Adewale Odetunde
ADEWALE ODETUNDE
Sandra Liser
Naman Howell Smith & Lee, PLLC
306 West 7th Street, Suite 405
Fort Worth Club Building
Fort Worth, TX 76102-4911
David M. Kennedy
Saunders, Walsh & Beard
6850 TPC Drive
Suite 210
McKinney, TX 75070
PLAINTIFF’S REPLY TO DEFENDANT TOWN EAST HEATING & AIR CONDITIONING CO., LLC’S
RESPONSE TO MOTION TO STRIKE THE COUNTER/CONTROVERTING AFFIDAVITS OF ROGER
CLIFFORD, DC, DACNB AND PAUL MARCUS MURPHY — Page 10
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Status as of 3/18/2022 12:41 PM CST
Associated Case Party: JOSHUA BROWN
Name BarNumber Email TimestampSubmitted Status
Grant Liser gliser@namanhowell.com 3/18/2022 11:36:48 AM SENT
Sandra Liser sliser@namanhowell.com 3/18/2022 11:36:48 AM SENT
Case Contacts
Name BarNumber Email TimestampSubmitted Status
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Francine Ly fly@dallascourts.org 3/18/2022 11:36:48 AM SENT
Associated Case Party: TOWN EAST HEATING & AIR CONDITION CO, LLC
Name BarNumber Email TimestampSubmitted Status
David Kennedy david@saunderswalsh.com 3/18/2022 11:36:48 AM SENT
Liz Jobes liz@saunderswalsh.com 3/18/2022 11:36:48 AM SENT
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FILED 3/18/2022 11:36 AM FELICIA PITRE DISTRICT CLERK DALLAS CO., TEXAS Jenifer Trujillo DEPUTY CAUSE NO. DC-21-03224 SHANTE WATSON; THE DISTRICT COURT OF §§§§§§§§§ IN Plaintiff, VS. DALLAS COUNTY, TEXAS JOSHUA BROWN; AND TOWN EAST HEATING & AIR CONDITIONING CO., LLC; §§ Defendants. 134T” JUDICIAL DISTRICT PLAINTIFF’S REPLY TO DEFENDANT TOWN EAST HEATING & AIR CONDITIONING CO., LLC’s RESPONSE TO MOTION TO STRIKE THE COUNTER/CONTROVERTING AFFIDAVITS OF ROGER CLIFFORD, DC, DACNB AND PAUL MARCUS MURPHY Plaintiff SHANTE WATSON files this Reply to Defendant Town East Heating & Air Conditioning CO., LLC’s Response to Motion to Strike the Counter/Controverting Affidavits of Roger Clifford, DC, DACNB and Paul Marcus Murphy. I. REPLY ARGUMENT In response to Plaintiff’s Motion to Strike, Defendant argues that Roger Clifford, D.C.’s Counter-Affidavit does satisfy section 18.001's reasonable-notice standard as to his opinions on medical necessity and the reasonableness of Plaintiff’s medical bills. Defendant also argues that Paul Marcus Murphy provides reasonable notice of the basis for his billing opinions. Defendant mischaracterizes Plaintiff's Motion as challenging the reliability of Mr. Murphy’s opinion; and Defendant does not address Plaintiffs grounds for striking Mr. Murphy’s Controverting Affidavit based on his lack of qualifications. Plaintiff stands by her positions in her Motion to Strike, but files this reply to illuminate the flaws in Defendant’s arguments. PLAINTIFF’S REPLY TO DEFENDANT TOWN EAST HEATING & AIR CONDITIONING CO., LLC’S RESPONSE TO MOTION TO STRIKE THE COUNTER/CONTROVERTING AFFIDAVITS OF ROGER CLIFFORD, DC, DACNB AND PAUL MARCUS MURPHY — Page 1 A. Dr. Clifford’s generic statements fail to account for Ms. Watson’s medical history, conditions, and symptoms; and therefore fail to reasonable notice of the basis for challenging her medical provide serVIces. Plaintiffs argument for challenging Dr. Clifford’s opinions on medical necessity is that (1) he fails to provide copies or meaningful citation to the studies upon which he relies; (2) he fails to explain how those studies apply to Ms. Watson; (3) he does not explain why any of the specific chiropractic services were unnecessary based on Ms. Watson's symptoms, injuries, and providers’ findings (or even why he deems necessary some of the chiropractic services provided before her re-exam); (4) his opinion on psychological services was improperly based on causation; and (5) he does not explain why MRls were unnecessary based on Ms. Watson's symptoms, injuries, and providers’ findings, or why imaging from seven months earlier renders the MRls unnecessary. Defendant does not address Plaintiff’s arguments but instead iterates some of the apparent bases Dr. Clifford gave for his opinions. Plaintiff has already addressed Dr. Clifford’s statements in her Motion to Strike, showing that they do not amount to reasonable notice. However, one point should be clarified. Defendant points to Dr. Clifford’s statements that Ms. Watson suffered only minimal soft tissue sprains and had no functional improvement at the September 29, 2020 re-exam to support his opinion that all chiropractic services after the re-exam were unnecessary. See Defendant’s Reply, p. 2; Clifford Aff., at Report, pp. 8, 12. However, Ms. Watson’s providers continued diagnosing her symptoms and injuries following the September 29, 2020 re-exam. In fact, as Dr. PLAINTIFF’S REPLY TO DEFENDANT TOWN EAST HEATING & AIR CONDITIONING CO., LLC’S RESPONSE TO MOTION TO STRIKE THE COUNTER/CONTROVERTING AFFIDAVITS OF ROGER CLIFFORD, DC, DACNB AND PAUL MARCUS MURPHY — Page 2 Clifford notes, A-Medical Advantage saw Ms. Watson the same day as the chiropractic re-exam and reported the following findings: On 09-29-20, a medical consultation was provided by A-Medical Advantage. Complaints were noted to include headache, neck, upper, lower back, bilateral wrist, right shoulder, and right knee pain. Neurological exam showed that she was unable to spell football backwards. Romberg and tandem testing were positive. Cervical exam showed decreased ROM and palpatory tenderness. Left hand exam showed multiple abrasions and poor grip strength. Right hand/wrist exam showed multiple abrasions, poor grip strength, reduced range of motion, and hyperesthesia to the right thumb. Right shoulder exam showed limited ROM, positive right shoulder depressor, tenderness, and 4/5 strength. Right knee exam showed limited flexion and tenderness over the lateral aspect. Left knee exam was normal. Low back exam showed hypertonicity and spasm and tenderness at T8. Assessments included concussion with loss of consciousness, acute posttraumatic headache, neck sprain, neck strain, thoracic myofascial strain, lumbar sprain, lumbar strain, wrist and hand strain, impingement syndrome right shoulder, and contusion of right knee. Topiramate, gabapentin, and ibuprofen were prescribed. Clifford Aff., at Report, p. 5. Dr. Clifford further notes that on October 6, 2020, Elevate Health Clinics diagnosed Ms. Watson with “concussion with loss of concisions [sic], other specified injuries of head, posttraumatic headache, mild cognitive impairment, dizziness and giddiness, attention and concentration deficit, irritability and anger, restlessness and agitation, and adjustment insomnia.” Clifford Aff., at Report, p. 5. Between October 10, 2020 and her final chiropractic visit at Smith County Healthcare Systems, Ms. Watson saw providers for low back pain, cervicalgia, bilateral hand pain, bilateral knee pain, neck pain, right shoulder pain, memory and cognitive issues. See Clifford Aff., at Report, pp. 5—6. MRls performed on March 3, 2021 showed cervical facet arthrosis resulting in mild foraminal narrowing, mild infraspinatus insertional tendinosis and low lying acromion and os acromiale in the right shoulder, and patellar instability but no acute osseous PLAINTIFF’S REPLY TO DEFENDANT TOWN EAST HEATING & AIR CONDITIONING CO., LLC’S RESPONSE TO MOTION TO STRIKE THE COUNTER/CONTROVERTING AFFIDAVITS OF ROGER CLIFFORD, DC, DACNB AND PAUL MARCUS MURPHY — Page 3 abnormality in the left knee. See Clifford Aff., at Report, p. 7. A March 18, 2021 shoulder MRI showed mild infraspinatus tendinosis and os acromiale. See Clifford Aff., at Report, p. 7. Her last visit to Smith County Healthcare System was on May 5, 2021. Dr. Clifford fails to provide reasonable notice of the basis for his opinion, especially in light of Ms. Watson’s continuing and developing medical conditions following the initial re-exam. Further, he does not identify any of the specific chiropractic services Ms. Watson received and explain why any of those services were unnecessary to treat Ms. Watson’s symptoms and conditions. Summarily stating that all chiropractic services after the first re-exam were unnecessary because she showed no functional improvement simply does not supply Plaintiff with reasonable notice sufficient to enable Plaintiff to develop her attack on Dr. Clifford’s controverting opinion. See In re Allstate, 622 S.W.3d at 880. Regarding the necessity of MRls, Defendant responds in part that Dr. Clifford's reference to “guiding standards of the American College of Radiology and the American College of Physicians” and “his professional credentials and experience in providing MRI referrals based on sound reasoning, provide the basis for his opinions.” Defendant’s Reply, p. 3. Defendant’s position conflates the qualifications and notice requirements of section 18.001. Dr. Clifford’s detailing his credentials and knowledge of imaging standards does not mean that he has provided reasonable notice of the basis for an opinion that Ms. Watson’s MRls were unnecessary. As for the “guiding standards” Dr. Clifford references, he states simply: According to the American College of Radiology, most patients presenting with uncomplicated acute low back pain (LBP) and/or radiculopathy do not require imaging. (Patel, 2016) According to the American College of Physicians, routine imaging does not seem to improve clinical outcomes and exposes patients to unnecessary harms. (Chou, 2011).\ PLAINTIFF’S REPLY TO DEFENDANT TOWN EAST HEATING & AIR CONDITIONING CO., LLC’S RESPONSE TO MOTION TO STRIKE THE COUNTER/CONTROVERTING AFFIDAVITS OF ROGER CLIFFORD, DC, DACNB AND PAUL MARCUS MURPHY — Page 4 Clifford Aff., at Report, p. 16. This does nothing to support an opinion that Ms. Watson’s MRls were unnecessary. Regarding the necessity of psychological therapy treatment, Defendant’s response wholly ignores that Dr. Clifford’s opinion was based on causation, which is not a proper basis for challenging medical services in a section 18.001 counter-affidavit. For these reasons and those stated in Plaintist Motion to Strike, Dr. Clifford’s Affidavit does not even meet a minimal “fair notice" threshold and, consequently, fails to satisfy section 18.001(f)’s reasonable notice condition for challenging Ms. Watson’s need for medical services. B. Dr. Clifford’s knowledge and experience do not supply Plaintiff with reasonable notice of the basis for his reasonable-charge opinions. Defendant also contends that Dr. Clifford provides reasonable notice of his billing opinions by stating the amounts he deems reasonable for chiropractic service, along with his blanket assertion that those amounts are based on his knowledge, skill,training, and experience; his knowledge of the usual, customary, and reasonable charges in the DFW area; and his knowledge of what would be paid under health insurance plans, Medicare, Medicaid, and workers’ compensation.‘ See Defendant’s Response, pp. 3—4. In other words, Defendant’s argument is that reasonable notice is supplied simply by listing all the ways in which Dr. Clifford has knowledge of various charge and reimbursement amounts from different sources. Defendant is again conflating the qualifications and notice requirements; Defendant’s position is essentially that, because Dr. Clifford has certain 1Although not mentioned in Defendant’s Response, Dr. Clifford also says he considers "various benchmark data, including the Chiropractic Economics 2020 Fees and Reimbursements Survey Results." Clifford Aff.,at Report, p.13. PLAINTIFF’S REPLY TO DEFENDANT TOWN EAST HEATING & AIR CONDITIONING CO., LLC’S RESPONSE TO MOTION TO STRIKE THE COUNTER/CONTROVERTING AFFIDAVITS OF ROGER CLIFFORD, DC, DACNB AND PAUL MARCUS MURPHY — Page 5 knowledge and qualifications, Plaintiff should simply take Dr. Clifford at his word that he considered all the data he says he considers, without knowing what that data says or how he factors that data into his opinion. Defendant quotes In re Allstate as support; but Dr. Clifford's Affidavit is nothing like the counter-affidavit addressed there. See In re Allstate, 622 S.W.3d at 874. In Allstate, the controverting witness, Nurse Dickison, itemized each charge that she controverted and compared each charge to the median charges from the Context4 Healthcare database for the same services in the same timeframe and zip code as the plaintiff’s services. See id. at 874. The Texas Supreme Court held that the counter-affidavit satisfied section 18.001 ’s reasonable-notice requirement because itexplained in detail the reasons why such charges were being controverted. Id. at 879—80. Unlike Nurse Dickison, Dr. Clifford does not provide any data he considered or explain whether that data was from the same timeframe and zip code as the plaintiff’s services. Plaintiff has no way to know how Dr. Clifford arrived at his reasonable-charge rates and ultimate opinion that her providers’ charges were unreasonable. Dr. Clifford’s Affidavit, therefore, fails to satisfy section 18.001(f)’s reasonable notice condition for challenging Ms. Watson’s providers’ charges. C. Mr. Murphy’s confusing and contradictory statements on Ms. Watson’s providers’ charges fail to satisfy section 18.001’s reasonable-notice requirement. Defendant mischaracterizes Plaintiff’s Motion with respect to Paul Marcus Murphy as challenging the reliability and trustworthiness of Mr. Murphy’s opinion. See Defendant’s Response, pp. 4, 8. To the contrary, Plaintiff’s Motion never even uses the words “unreliable” or “untrustworthy.” Plaintiff acknowledges that the Texas Supreme PLAINTIFF’S REPLY TO DEFENDANT TOWN EAST HEATING & AIR CONDITIONING CO., LLC’S RESPONSE TO MOTION TO STRIKE THE COUNTER/CONTROVERTING AFFIDAVITS OF ROGER CLIFFORD, DC, DACNB AND PAUL MARCUS MURPHY — Page 6 Court explained in In re Allstate that “[n]othing in the text of section 18.001 (f) requires that an opinion expressed in a counteraffidavit must meet the admissibility requirements for expert testimony.” In re Allstate Indemnity Co., 622 S.W.3d 870, 880 (Tex. 2021). The standard, as stated in In re Allstate, is reasonable (i.e.,fair) notice. Regarding Mr. Murphy’s Controverting Affidavit, Defendant first contends that Mr. Murphy was not required, under section 18.001, to opine on what he deems a reasonable charge for Plaintiff’s services. See Defendant’s Response, p. 5. However, what a counter- affiant deems a reasonable charge is part and parcel to an opinion that a specific provider’s charges are unreasonable. Without an opinion on what is a reasonable charge, the counter-affiant’s opinion is not much more than an urging that he is qualified to opine that a charge is unreasonable. Without knowing how Mr. Murphy arrived at an opinion that her charges were unreasonable, Ms. Watson has no way to develop her attack on his controverting opinion. Defendant also points to the following statement by Mr. Murphy in an effort to show that he does opine as to what he deems a reasonable charge: 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. Defendant’s Response, p. 5—6. An in-depth dissection of Mr. Murphy’s Affidavit reveals how he arrived at those two figures, at least mathematically; but nothing in his Affidavit reveals why he did so. The PLAINTIFF’S REPLY TO DEFENDANT TOWN EAST HEATING & AIR CONDITIONING CO., LLC’S RESPONSE TO MOTION TO STRIKE THE COUNTER/CONTROVERTING AFFIDAVITS OF ROGER CLIFFORD, DC, DACNB AND PAUL MARCUS MURPHY — Page 7 first figure in the quoted paragraph above ($6,862.46) is the sum of the CMS values for both PHI Air Medical and Christus Mother Frances. The second figure ($10,230.70) is the sum of the 125%-of—CMS value for PHI Air Medical and the TWC value for Christus Trinity. Thus, it appears from this statement that Mr. Murphy is attempting to opine that the maximum reasonable charge for PHI Air Medical is 125% of the Medicare reimbursement rate and, for Christus Trinity, is the Texas Workers' Compensation reimbursement rate. The problem is that he also includes a third benchmark figure for both providers but fails to explain why he does not factor those amounts into this reasonable-charge opinion or why, elsewhere in his Affidavit, he does consider those amounts. When analyzing PHI Air Medical’s charges, Mr. Murphy provides the CMS value, 125% of the CMS value, and 150% of the CMS value. If Mr. Murphy intends to opine that the maximum reasonable charge for PHI Air Medical’s services is 125% of the CMS value, not only does he fail to explain why that figure represents the maximum reasonable- charge amount, but he also fails to explain why he even provides the 150%-of-CMS values in his Affidavit. Even more confusing, he also says: It is my experience that these multiplier values are used by many in the payer industry and the reasonable value of 150% the CMS value is in line with study data which seeks to establish CMS payments to cover costs of the services utilizing the AMA CPT codes and the Harvard RBRVS system for covering costs and a margin of profit. Murphy Aff., p. 34 (emphasis added). Plaintiff cannot tell which of Mr. Murphy’s contradictory statements form the basis for his opinion. PLAINTIFF’S REPLY TO DEFENDANT TOWN EAST HEATING & AIR CONDITIONING CO., LLC’S RESPONSE TO MOTION TO STRIKE THE COUNTER/CONTROVERTING AFFIDAVITS OF ROGER CLIFFORD, DC, DACNB AND PAUL MARCUS MURPHY — Page 8 Similarly, for Christus Trinity’s charges, Mr. Murphy includes the CMS value, the TWC value, and a “Mean” charge, which is higher than the first two charges? When describing the Mean value, he states, “This helps establishes the reasonable value range for that service." Murphy Aff., p. 31. Yet it appears Mr. Murphy may not have considered the Mean charges at all ifhis opinion is that any amount above the Texas Workers’ Compensation reimbursement rate is unreasonable. Even if Mr. Murphy could supply reasonable notice without opining to what he deems a maximum reasonable charge, his contradictory and confusing statements fail to do so. ll.CONCLUSION Allowing the Counter-Affidavits of Roger Clifford, DC, DACNB and the Controverting Affidavit of Paul Marcus Murphy to negate Ms. Watson’s medical providers’ initial affidavits without demanding strict compliance with section 18.001 (f), frustrates the savings intended by the statute. Accordingly, Plaintiff asks that the Court strike Dr. Clifford’s and Mr. Murphy’s Affidavits for all purposes. WHEREFORE, PREMISES CONSIDERED, Plaintiff SHANTE WATSON prays that this Honorable Court grant her amended motion to strike. Plaintiff seeks such other and further relief to which she may be justly entitled, whether at law or in equity. 2He says the “Mean" value is the average of the CMS value and “the Texas State median billed charge/Tier 1 List Price from historicalclaims data collected by CMS forthe specific CPT code forthat same period." Murphy Aff., p. 30. PLAINTIFF’S REPLY TO DEFENDANT TOWN EAST HEATING & AIR CONDITIONING CO., LLC’S RESPONSE TO MOTION TO STRIKE THE COUNTER/CONTROVERTING AFFIDAVITS OF ROGER CLIFFORD, DC, DACNB AND PAUL MARCUS MURPHY — Page 9 Respectfully submitted, WITHERITE LAW GROUP, PLLC BY: /s/Adewa/e Odetunde ADEWALE ODETUNDE State Bar No. 24088146 adewale.odetunde@witheritelaw.com SHELLY GRECO State Bar No. 24008168 shel|v.qreco@witheritelaw.com 10440 N. Central Expressway Suite 400 Dallas, TX 75231-2228 214/378-6665 214/378-6670 (fax) ATTORNEYS FOR PLAINTIFF CERTIFICATE 0F SERVICE l hereby certify that a true and correct copy of the above and foregoing document has been forwarded to all counsel of record on this 18‘“ day of March, 2022, pursuant to the Texas Rules of Civil Procedure. /s/ Adewale Odetunde ADEWALE ODETUNDE Sandra Liser Naman Howell Smith & Lee, PLLC 306 West 7th Street, Suite 405 Fort Worth Club Building Fort Worth, TX 76102-4911 David M. Kennedy Saunders, Walsh & Beard 6850 TPC Drive Suite 210 McKinney, TX 75070 PLAINTIFF’S REPLY TO DEFENDANT TOWN EAST HEATING & AIR CONDITIONING CO., LLC’S RESPONSE TO MOTION TO STRIKE THE COUNTER/CONTROVERTING AFFIDAVITS OF ROGER CLIFFORD, DC, DACNB AND PAUL MARCUS MURPHY — Page 10 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. Nora Garcia on behalf of Adewale Odetunde Bar No. 24088146 nora.garcia@witheritelaw.com Envelope ID: 62739029 Status as of 3/18/2022 12:41 PM CST Associated Case Party: JOSHUA BROWN Name BarNumber Email TimestampSubmitted Status Grant Liser gliser@namanhowell.com 3/18/2022 11:36:48 AM SENT Sandra Liser sliser@namanhowell.com 3/18/2022 11:36:48 AM SENT Case Contacts Name BarNumber Email TimestampSubmitted Status Adewale WaleOdetunde Adewale.Odetunde@witheritelaw.com 3/18/2022 11:36:48 AM SENT Francine Ly fly@dallascourts.org 3/18/2022 11:36:48 AM SENT Associated Case Party: TOWN EAST HEATING & AIR CONDITION CO, LLC Name BarNumber Email TimestampSubmitted Status David Kennedy david@saunderswalsh.com 3/18/2022 11:36:48 AM SENT Liz Jobes liz@saunderswalsh.com 3/18/2022 11:36:48 AM SENT