ACCEPTED 03-14-00732-CV 5377959 THIRD COURT OF APPEALS AUSTIN, TEXAS 5/21/2015 12:18:35 PM JEFFREY D. KYLE CLERK NO. 03-L4-00732-CV
IN THE COURT OF APPEALS FILED IN THIRD IUDICIAL DISTRICT 3rd COURT OF APPEALS AUSTIN, TEXAS AUSTIN, TEXAS 5/21/2015 12:18:35 PM JEFFREY D. KYLE Clerk ATHEER HANNA,
Appellant,
VS
MEDSTAR FUNDING, LP
Appellee.
On Appeal From The 345rH |udicial District Court for Travis County, Texas Trial Court Case No. D-1-GN-14-001432-CV
APPELLANT'S REPLY BRIEF
FRANK G. CAWLEY State Bar No. 24006978 Whitehurst & Cawley, L.L.P. 4560 Belt Line Rd., Suite 200 Addisoru Texas 75001 (e72) 503-5455 (972) 503-6155 - Facsimile Email: fcawley@whitehurstlaw.com ATTORNEYS FOR APPELLANT
ORAL ARGUMENT REQUESTED TABLE OF CONTENTS
TABLE OF CONTENTS 11, 111
INDEX OF AUTHORITIES ... iv, v
SUMMARY OF REPLY 1
ARGUMENTS AND AUTHORITIES IN REPLY .J-
A. Medstar's business model is not a true factor and is designed to circumvent Section 41.0105 and Haygood v. Escabedo .........3
B The plain language of Section 41.0105 precludes the recovery of Medstarts commission or business profït margin, which are clearly not "medical or healthcare expense.oo .......5
C. Matte's contractual liability to Medstar does not make medical expenses that have not been and will not be paid to a medical provider recoverable.. . ...6
D. Medstaros assignment of Mattets medical providers' claims does not transform Medstar into a medical provider .........8
E The amounts Medstar paid Matte's providers and the contracts between Matte and those providers are relevant to determine the reasonable value of medical services .......9
F' Medstar's proposed stipulation that it paid a reduced rate does not negate the need for payment and contract information..........11
G. Denying Appellant access to the requested information would deprive him of his due process right to be heard and present evidence ..................11
CONCLUSION AND PRAYER 13
CERTIFICATE, OF SERVICE t5
l1 CERTIFICATE OF COMPLIANCE l6
lll INDEX OF AUTHORITIES
Case Law:
Dodd v. Cruz, 223 CaI. App. 4th 933, 942 (Cal. App. 2d Dist. 2014). ... .10
Fuentes v. Shevin, 407 U.S. 67,80,92 S. Ct. 1983, 32L.F,d.2d556,569 (t972)..... .t2
Galaviz v. C.R. Eng. Inc., 2012 U.S. Dist. LEXIS 53866, *8-9 (W.D. Tex. Apr.17,2012) 10
Haygood v. Escabedo, 356 S.\M.3d 390, 391 (Tex.20ll) ......3 5 6 7 9
In the Interest of BMN, 570 S.W.2d 493,502 (Tex. Civ. App. - Texarkana 1978, no writ). ..........12
Perry v. Del Rio, 67 S.W.3d 85,92(Tex.2001). ......12
Ranger Ins. Co. v. Ward, 1 07 S.W.3 d 820, 829 (Tex. App.-Texarkana 2003, pet. denied). .......... ...5
Tex. Mut. Ins. Co. v. Apollo Enters., 2009 Tex. App. LEXIS 8315 (Tex. App.Austin Oct.29,2009). ....8,9
Turcotte v. Trevino, 499 S.W.2d 705,723 (Tex. Civ. App. - Corpus Christi 1973, writ refd
Statutes and Codes:
Tsx. Crv. Pnec. & Rpvr. Coon $41.0105 r, 2,3, 5, 6, 8,9
TBx. CoNsr. art I, $ 19 l1
U.S. Constitution... 1l
lv Miscellaneous:
Letter dated May 20,2015 from the Honorable Andrew Bench, 196th Judicial District Court for Hunt County, Texas. ..Exhibit A
v SUMMARY OF REPLY
The issue in this appeal is whether evidence of the amounts Medstar
paid to Adrian Matte's medical providers and the contracts between
Medstar and his providers is discoverable. The issue is not whether Civil
Practice & Remedies Code Section 41.0105 applies to limit Matte's recovery
or whether the amounts paid to Matte's medical providers represents the
reasonable value of the services. Those issues are for the trial court in Hunt
County to decide. This evidence is necessary for the fair adjudication of
Defendant's defenses because without it, Defendant would be deprived of
his constitutional due process right to be heard on the issues and present
evidence in his defense.
The discussion regarding whether Section 41.0105 applies and the
reasonable value of medical expenses is solely for the purpose of establishing that these issues are undecided, are the subject of sharp debate, and strong arguments exist that Texas law does not allow for the
recovery of medical expenses in excess of the amount the medical providers accepted. These factors militate in favor of requiring the production of the requested information so as to allow the Hunt County
trial court to decide the issues thus paving the way for appellate court
I review of this important issue of first impression. In fact, because it lacks
the ability to compel production of this informatiory the Hunt County trial
court has postponed the trial of the case until this appeal has been
completed. This strongly suggests that the Hunt County trial court wants
this information in order to determine the admissibility of evidence of
medical care expenses.
Boiled down to its essence, Medstar's goal is to prevent any Texas
courts from deciding whether a plaintiff may recover more than the
amounts Medstar pays to medical providers in full satisfaction of a plaintiffs debt. By concealing the amounts it pays to and its contracts with
providers, Medstar effectively deprives Appellant of the right to be heard
on the issue of whether Section 41.0105 applies to Medstar's business
model or whether the amount Medstar and medical providers agree upon
represents the reasonable value of the services. Concealing this information
also deprives the trial court in Hunt County from deciding these issues and
appellate courts from reviewing the trial courls decision.
Conspicuously absent from Appellee's Brief is any argument regarding any alleged harm associated with producing information to
Appellant subject to a protective order. Neither Appellant nor his counsel
2 are competitors of Medstar, and thus, there is no danger that the
information will be used to Medstar's competitive disadvantage. In fact,
Medstar has produced this information subject to a protective order in the
past. (RR 464-469). And given the importance of the information, the lack of
harm to Medstar militates in favor of requiring the production of the
information.
ARGUMENT AND AUTHORITIES
A. Medsta{s business model is not a true factor and is designed to circumvent Section 4L.0105 and Høygood a. Escøbedo.
Medstar attempts cloak its business model into the broader "medical
factoring industry" in an effort to conceal its true purpose. While the
factoring industry in general is legitimate, Medstar's business is not a true
factoring arrangement. It is a carefully designed scheme to circumvent Section 41.0105 and the Texas Supreme Courfs decision in Høygood a
Escabedo. If successful, Escabedo and Section 41.0105 will become nullities.
In a true factoring arrangement, the factor purchases a business'
accounts receivable and proceeds to attempt to collect on the account from
the debtor with whom the factor has no pre-existing relationship. That is
inherently an adversarial, debtor-collector relationship. Flere, Medstar
J interacted with Matte before purchasing his accounts. (Appellee's Brief at
10). This involves an agreement with Matte to seek repayment from third
parties - the tort defendants. Unlike a true factoring arrangement, this is a collusive arrangement with the purpose of entrepreneurial profit.
Further distinguishing Medstar's business from true factoring
arrangements is that Medstar and Matte's medical providers agreed to
rates for services before those services were performed or any account
existed. (CR 162). The medical providers then aver that the full list charges
remain owed to the providers.l In other words, the medical providers
know the amount they have accepted, but execute affidavits swearing that
they are owed a larger amount. This is pure fiction writing. Most likely,
this is because Medstar collaborates with medical providers in crafting the
affidavits. (CR 331). This adds another layer of collusion. In addition to the
collusion between Matte and Medstar, now the medical providers are
complicit even though they no longer have any financial interest in Matte's
recovery.
The tripartite collusion inherent in Medstar's business model and
manipulation of evidence makes it clear that the object is to circumvent the
' cR 78, 81., 84, 9'J., 99, 1.06, 113, 120, 1.27, 130
4 limitations set forth in Section 41.0105 and the Texas Supreme Courfs
holding in Escnbedo. Collusive attempts to circumvent the law violate
public policy. Ranger Ins. Co. a. Wørd, 107 S.W.3d 820, 829 (Tex. App.-
Texarkana 2003, pet. denied)
B. The plain language of Section 41.0L05 precludes the recovery of Medstar's commission or business profit margin, which are clearly not "medical or healthcar" "*p"or".7 In order to be recoverable, expenses must be "medical or healthcare
expenses. Tex.Crv.Pnec.Rsir¿. Coos S41.0105. Medical or healthcare
expenses are those that are paid or will be paid to a medical or healthcare
provider. lnEscabedo, the Texas Supreme Court held:
"We agree with the court of appeals that this statute limits recovery, and consequently the evidence at trial, to expenses that the proaider has a legal right to be paid....Thus, "actually paid and incuïted" means expenses that have been or will be paid, and excludes the difference between such amount and char ges the seraice proaider bills but has no right to be pøid."
Hay good a. D e Escøbedo, 356 S.W.3d 390, 391 (Tex. 2011) (emphasis added).
Here, the difference between the amount Medstar paid Matte's
providers and the list charges does not constitute "medical or healthcare
expenses" because this amount is not and never will be paid to a medical
provider. Rather, this amount constitutes Medstar's commission or
5 business profit margirç not "medical or healthcare expenses." It is
undisputed that Matte's medical providers have no right to any additional
payments. Thus, according to the plain language of Section 41.0105 and the
holding inË,scnbedo, this amount is not recoverable.
Medstar contends that Section 41.0105 does not apply to their
business model because Medstar does not pay the medical providers on
Matte's behalf. Flowever, Medstar admits that it reached agreements with
Matte's medical providers to pay a reduced rate for services before any
treatment was provided. (CR 162). This arrangement can only be described
as paying Matte's medical providers for his benefit, or in other words, on
his behalf. At the very least, the Hunt County trial court could interpret
this arrangement as payment on Matte's behalf and only submit evidence
of actual payments to the jrry. Thus, evidence of the contracts and actual
payments is necessary for a decision on this issue.
liability to Medstar does not make medical C. Matte's contractual expenses that have not been and will not be paid to a medical provider recoverable.
As set forth above, according to the Texas Supreme Court, Section
41.0105 limits recovery to expenses that are paid or will be paid to a
medical or healthcare provider. Medstar argues that Section 4L.0105 does
6 not apply here because the rationale underlying the Texas Supreme Court's
holding in Escøbedo was to prevent the plaintiff from obtaining a windfall
Flere, the argument goes, Matte will not obtain a windfall because he owes
the medical providers' full list charges to Medstar. And semantically,
Medstar contends that it will not receive a windfall because it expected to
earn a profit all along. So according to Medstar, the identity of the
beneficiary of the amount in excess of what the medical providers accepted
(whether called a windfall or a profit) is the distinguishing factor.
However, Matte's obligation to repay Medstar has no connection to
the amount he can recover in a tort lawsuit. As an example, if a jury finds
that a plaintiff's medical expenses are urueasonably high and awards a
lesser amount, that plaintiff is still obligated to pay his medical providers
for their full charges. That plaintiff's separate contractual obligation to pay
his providers does not compel an award for the full amount of the charges
The same result applies here. The fact that Matte obligated himself to pay
Medstar an amount in excess of what his providers agreed to accept does
not render that amount recoverable
In additiory Medstar's argument is essentially that the legislature and
the Texas Supreme Court prohibit a plaintiff from obtaining a windfall by
7 recovering an amount in excess of the amount paid or owed to medical
providers, but allow such a recovery if the windfall is transferred to a third
par$ in the form of business profit. Whether characterized as a windfall or
profit, the amount in excess of what the providers accepted is not
recoverable. If it were, juries will not be determining medical expenses,brt
instead, they will be deciding profits for a non-party lurking in the
shadows.
D. Medstar's assignment of Matte's medical providers' claims does not transform Medstar into a medical provider.
Medstar acknowledges that the Texas Supreme Court held that
Section 41.0105 limits a claimant's recovery to medical expenses the provider has a legal right to be paid. (Appellee's Brief at 20). Flowever,
Medstar appears to contend that by virtue of the assignments from Matte's
medical providers, Medstar is transformed into a medical provider for
purposes of interpreting Section 41.0105. However, although an assignee
stands in the shoes of an assignor, an assignee of a healthcare provider
does not become a healthcare provider. Tex. MuL Ins. Co. u. ApoIIo Enters,,
2009 Tex. App. LEXIS 8315 (Tex. App.Austin Oct.29,2009)(not designated
for publication). Further, the common law principle that an assignee stands
I in the shoes of an assignor does not apply where it would frustrate the
legislature's intent as reflected in statutes. Id.
With respect to Section 41.0105, the Texas Supreme Court has held
that a claimanfs recovery is limited to medical expenses that have been or
will be paid to a medical or healthcare provider. Because Medstar's
assignments do not transform it into a medical provider, Matte cannot
recover amounts owed to Medstar. Further, the common law principle that
an assignee stands in the shoes of an assignor does not apply here because
it would frustrate the legislature's intent to limit recovery to amounts paid
or owed to medical providers, not entrepreneurial financiers.
E. The amounts Medstar paid Matte's providers and the contracts between Medstar and those providers are relevant to determine the reasonable value of medical services.
The rule the Texas Supreme Court set out in Escnbedo is that a
plaintiff is entitled to recover the lesser of the reasonable value of medical
services or the amount actually paid or the amount the medical provider is
legally entitled to recover. Thus, even if Section 41.0105 does not apply to a
factoring arrangement, the evidence reflecting the amount Matte's medical
providers agreed to accept is necessary for the fair adjudication of the
reasonable value of the services provided
9 Medstar contends that Matte's medical providers' acceptance of a
reduced rate has no bearing on the reasonable value of the services. Rather,
Medstar argues that the reduced rate simply reflects the amount the
providers are willing to accept to avoid the uncertainties and risk associated with collections. Ffowever, the timing of the transactions undermines this argument.
As set forth above, Medstar and Matte's providers agreed upon a
reduced rate before any treatment was provided. (CR 162). The providers
were under no compulsion to treat Matte if they thought the proposed
rates were urueasonable. In other words, it is safe to presume that a for-
profit concern will only provide goods and services if the compensation is
sufficient to cover costs plus a reasonable profit. Otherwise, there is no
reason to provide the goods and services. The fact that Matte's medical
providers provided treatment knowing the amount they would be paid is
at least some evidence that the agreed upon rates were reasonable. Galaaiz
u. C.R. Erg. lnc.,2012U.S. Dist. LEXIS 53866, *8-9 (W.D. Tex. Apt. 17,2012);
Dodd u. Cruz, 223 Cal. App. 4th 933, 942 (CaL App. 2d Dist. 2014)(not
designated for publication).
t0 F. Medstar's proposed stipulation that it paid a reduced rate does not negate the need for payment and contract information.
Medstar argues that it will stipulate that it paid a reduced rate for
Matte's medical accounts, and thus, the issue is preserved for appellate
review. This argument ignores the other reasons payment and contract
information is necessary. For example, if the Hunt County trial court agrees
with Appellanfs arguments that only the paid amount is admissible, there
is no evidence to submit to the jury without this information.2 Second, if
the trial court decides that both the full amount of the providers' charges
and the amount actually paid should be submitted to the jury to determine
the reasonable value of the services, payment and contract information is
obviously necessary. Thus, Medstar's proposed stipulation does not negate
the need for this information.
G. Denying Appellant access to the requested information would deprive him of his due process right to be heard and present evidence.
Both the fourteenth amendment to the U.S. Constitution and article 1,
section 19 of the Texas Constitution provide that a person shall not be
deprived of life, liberty, or property without due process of law
2 This is a scenario that Medstar has apparently not anticipated. If the trial court takes this approach, it could result in no recovery ofmedical expenses at all.
1l Fundamental to the concept of due process is the right to be heard. Fuentes
a. Sheain, 407 U.S. 67,80,92 S. Ct. 1983,32L. Ed. 2d 556,569 (1972).The
right to be heard assures a full hearing before a court having jurisdiction
of the matter, the right to introduce evidence at a meaningful time and in a
meaningful manner, and to have judicial findings based upon that
evidence. Perry u. DeI Rio, 67 S.W.3d 85, 92 (Tex. 2001); Turcotte a. Treaino,
499 5.W.2d705,723 (Tex. Civ. App. -- Corpus Christi 1973, writ ref'd n.r.e.).
It includes also an opportunity to cross-examine witnesses, to produce witnesses, and to be heard on questions of law.In the Interest of BMN,570
S.W.2d 493,502 (Tex. Civ. App. -- Texarkana 1978, no writ).
If Appellant is denied access to the information requested, he will be
deprived of his right to present evidence to the Hunt County trial court in
support of the argument that Matte is not entitled to recover amounts in
excess of the amount paid to the providers. Appellant will also be deprived
of the right to present evidence of the reasonable value of medical services
performed on Matte. Muted by the absence of evidence, Appellant will not
be heard. And Appellant will be deprived of the right to have judicial findings based upon the evidence. Accordingly, Appellant is entitled to the
requested as a matter of fundamental due process.
T2 In fact, because it lacks the ability to compel production of this information, the Hunt County trial court has postponed the trial of the case
until this appeal has been completed. (Exhibit A). This strongly suggests
that the Hunt County trial court wants this information in order to
determine the admissibility of evidence of medical care expenses.
CONCLUSION AND PRAYER
Evidence of the amounts Medstar paid to and contracts with Matte's
medical providers is relevant and necessary to a fair adjudication of Appellant's defenses against Matte's damage claims in the Hunt County
Action. If Appellant is denied access to this evidence, he will be deprived
of the ability to present it to the trial court and jury in the Hunt County
Action and consequently, to the court of appeals if necessary in violation of
fundamental due process rights. This evidence is unavailable from any
other source. Accordingly, the trial court abused its discretion in granting
Medstar's Objections, Motion To Quash and Motion For Protective Order.
13 Respectfully submitted,
. Erank , G. Cawley FRANK G. CAWLEY State Bar No. 24006978 Whitehurst & Cawley, L.L.P. 4560 Belt Line Road, Suite 200 Addison, Texas 75001 972 / 503-5455 Telephone 972 / 503-6155 Facsimile Email: fcaw hitehurstlaw.com
Attorneys for Appellant
t4 CERTIFICATE OF SERVICE
The undersigned hereby certifies that a true and correct copy of the foregoing document was forwarded to all counsel of record pursuant to the Texas Rule of Appellate Procedure 9.5 on the 2L"t day of May, 2015.
Kirk L. Pittard KEnY, DuRuev & PrrrenD, L.L.P. 1005 Heights Boulevard Houston, Texas 77008 Email: kpittard@texasappeals.com
joe K. Crews Cn¡ws Lew Fmv PC 70'l.Brazos, Suite 900 Austin, Texas 7870'/.,
Donald L. Crook, ]r. WRyNg WnIGHT, L.L.P. 5707 Interstate Ten West Antonio, Texa s 7820'I', San Email: dcrook@waynewright.com
/s/ Frank G. Cawlev Frank G. Cawley
15 CERTIFICATE OF COMPLIANCE
As required by Texas Rule of Appellate Procedure 9.a(i)(3), I certify that there is a total of 3240 words in the foregoing computer-generated document.
/ s/Frank G. Cawley Frank G. Cawley
t6 T96TH JTII}ICIAL I}ISTRICT COURT F.O. BOX 1097 . GREDNVTLLE? TEXAS 754t13-r097 (903) 408.419û . FAx: (903) 40E-4189
J. ANDRTWSENÇH ruNGE JULIE DEARY ÇOURT COORDIN.ÀTOR
May 20,2015
Vin Fac¡imile {9721 503-df55 Mr. Frank G. Cnwley 4560 Belt Line Road, Suite 200 Addiso¡t, Texas 75001
llia Facei¡üile (210) 734-996_5. M¡. Donald L. Cook, Jr. 5707 Intersmæ Tsn lVest San Antonio, Texa$ 78201
Re: cnuse No, 78573; Adricn Matte v. Atheer Am¡nuel Hanna, Edmor¡d Amanuel H&nna, nnd Bcbyton Transportrtion, Inc"; In the lg6th Di*trict court, Hunt Çountyo Texae
Dear Gentlemgn,
AftE¡ considering the argument and authorities of counsel, the Cou¡t has decided to continue the trial of this oEse until suc]r !ìme as the Appeal of the Protective Order issued in Travis County, and curently before the Third Court of Appeals, has been fully resolved. Due t0 t¡e unique t*otuut çirçumstanoes of this case, and the Çou¡t's inability to compel the production of d.ocuments relevant to the alleged dnmages in this Êase, a jury trial wixhout an opinion on thg relevance of the Medstar Contracts would be a waste ofjudioial rËsources. Ouce the issue has been finally resolved, the Court will immediately set the case for kial. Counsel for the Defendant is directed to prepare an ordçr c'oneistent with this letter.
J. AndrewBench Judge, 196ù Judicial Disuict Court
J,A_B/jd
EXHIBIT It *0 a ft