                                                                                        ACCEPTED
                                                                                   07-15-00306-CV
                                                                      SEVENTH COURT OF APPEALS
                                                                                AMARILLO, TEXAS
                                                                             11/16/2015 8:27:18 PM
                                                                                  Vivian Long, Clerk


                           No. 07-15-00306-CV

                                                                  FILED IN
                                 In the                    7th COURT OF APPEALS
                                                               AMARILLO, TEXAS
                                                           11/16/2015 8:27:18 PM
Court of Appeals for the Seventh (7th) District of Texas         VIVIAN LONG
                                                                    CLERK

                                at Amarillo

                        ______________________

     MERIDIAN LTC, LTD.; THEORA MANAGEMENT SYSTEMS, INC.;
KENNETH MIKE RICE; SCOTT STEVEN SPORE; AND MARIA STELLA BRIONES,

                                Appellants,

                                     v.

           LOUIS D. BYERS, INDEPENDENT ADMINISTRATOR OF
            THE ESTATE OF WILLIE JOE BYERS, DECEASED,

                               Appellee.
                        ______________________

Interlocutory Appeal from the 72nd Judicial District Court of Lubbock County
                         Cause No. 2013-505,504
                  Hon. Ruben Gonzales Reyes, Presiding

                          APPELLEE’S BRIEF

                                    DAVID R. TOUPS
                                    Texas Bar No. 24034711
                                    Toups Law Firm
                                    3010 LBJ Fwy, Ste. 1200
                                    Dallas, Texas 75234-2710
                                    (214) 705-3940–Telephone
                                    (800) 780-6834–Facsimile
                                    DRTOUPS@TOUPSLAWFIRM.COM

                      ATTORNEY FOR APPELLEE
           ORAL ARGUMENT REQUESTED (CONTINGENT)
                                        TABLE OF CONTENTS

TABLE OF CONTENTS ....................................................................................... ii

INDEX OF AUTHORITIES................................................................................... iv

STATEMENT ON ORAL ARGUMENT ................................................................... v

SUMMARY OF THE ARGUMENT ......................................................................... 1

ARGUMENT AND AUTHORITIES ........................................................................ 3

I.       Appellants’ Objections to the Trial Court Lacked Sufficient
         Specificity and the Grounds Presented Now on Appeal were not
         Detailed or Presented at the Trial Court Level. ................................... 6

II.      The Trial Court Properly Exercised Its Discretion in Ruling that the
         First Amended Expert Report Constituted a Fair, Good-Faith
         Summary of the Expert’s Qualifications to Testify Regarding the
         Standard of Care. .................................................................................. 8

III.     The Trial Court Properly Exercised Its Discretion in Ruling that the
         First Amended Expert Report Presented a Fair, Good-Faith Summary
         of the Expert’s Opinion Regarding the Applicable Standards of Care.10

IV.      The Trial Court Properly Exercised Its Discretion in Ruling that the
         First Amended Expert Report Presented a Fair, Good-Faith Summary
         of the Expert’s Opinions Regarding the Health Care Providers’
         Breaches Regarding the Standards of Care. ....................................... 11

V.       The Trial Court Properly Exercised Its Discretion in Ruling that the
         First Amended Expert Report Presented a Fair, Good-Faith Summary
         of Expert’s Qualifications to Testify on Causation............................ 12

VI.      The Trial Court Properly Exercised Its Discretion in Ruling that the
         First Amended Expert Report Presented a Fair, Good-Faith Summary
         of the Expert’s Opinions Regarding Causation. ................................ 13

CONCLUSION AND PRAYER............................................................................. 15

CERTIFICATE OF COMPLIANCE ....................................................................... 16


Appellee’s Brief
                                                          -ii-
CERTIFICATE OF SERVICE ............................................................................... 17

APPENDIX ....................................................................................................... 18




Appellee’s Brief
                                                            -iii-
                                      INDEX OF AUTHORITIES

                                                      CASES

American Transitional Care Ctrs. of Tex., Inc. v. Palacios, 46 S.W.3d
     873 (Tex.2001). ................................................................................. 3-4

Certified EMS, Inc. v. Potts, 392 S.W.3d 625 (Tex. 2013). ........................... 5

Loaisiga v. Cerda, 379 S.W.3d 248 (Tex. 2012). .................................... 5, 12

Walker v. Gutierrez, 111 S.W.3d 56 (Tex.2003). .......................................... 4

                                                   STATUTES

TEX. CIV. PRAC. & REM. CODE § 74.351(a). ............................................ 3, 7-8

TEX. CIV. PRAC. & REM. CODE § 74.351(l). ................................................ 4, 8

TEX. CIV. PRAC. & REM. CODE § 74.351(r)(5)(A). ......................................... 9

TEX. CIV. PRAC. & REM. CODE § 74.351(r)(5)(B)........................................... 9

TEX. CIV. PRAC. & REM. CODE § 74.351(r)(5)(C)......................................... 13

TEX. CIV. PRAC. & REM. CODE § 74.351(r)(6). .................................. 4-5, 9-12

TEX. CIV. PRAC. & REM. CODE § 74.401. ........................................................ 9

TEX. CIV. PRAC. & REM. CODE § 74.402. ........................................................ 9

                                                      RULES

TEX. R. APP. P. 33.1. ................................................................................ 3, 6-7

TEX. R. EVID. 702. ......................................................................................... 13




Appellee’s Brief
                                                          -iv-
                                No. 07-15-00306-CV

        MERIDIAN LTC, LTD.; THEORA MANAGEMENT SYSTEMS, INC.;
   KENNETH MIKE RICE; SCOTT STEVEN SPORE; AND MARIA STELLA BRIONES,

                                    Appellants,

                                        v.

                   LOUIS D. BYERS, INDEPENDENT ADMINISTRATOR OF
                    THE ESTATE OF WILLIE JOE BYERS, DECEASED,

                                     Appellee.

                               APPELLEE’S BRIEF

                       STATEMENT ON ORAL ARGUMENT

          Appellee does not believe that oral argument is necessary and requests

argument only if Appellants are granted oral argument.




Appellee’s Brief
                                        -v-
                        SUMMARY OF THE ARGUMENT

        The trial court correctly denied the generic, non-specific, objections filed by

Meridian LTC, Ltd., (“Meridian”); Theora Management Systems, Inc. (“Theora”);

Kenneth Mike Rice, now Robert Timothy Rice, Independent Executor of the

Estate of Kenneth Michael Rice, Deceased (“Rice”); Scott Steven Spore

(“Spore”); and Maria Stella Briones (“Briones”) (collectively “Appellants”),

which sought to dismiss the health care liability claims pending against them by

generally objecting to the amended expert report served upon them in compliance

with the medical liability provisions of the Texas Civil Practice and Remedies

Code.

        First, the Court should disregard the objections to the amended expert report

that Appellants failed to specifically raise or assert in the trial court and raise now,

for the first time, in an interlocutory appeal. Appellants assert objections to the

amended expert report that were not sufficiently raised, specified, or ruled upon by

the trial court.

        Second, under § 74.351 of the Texas Civil Practice and Remedies Code (the

“Expert Report Statute”) and the objection raised by Appellants regarding the

expert’s qualifications to opine on the standard of care, the trial court properly

exercised its discretion in determining that the amended expert report constituted a

fair, good-faith summary of the expert’s qualifications to testify as to the standard
Appellee’s Brief
                                                                              Page 1 of 17
of care. The express language of the amended expert report presents facts that

establish the expert’s qualifications to testify regarding the standards of care.

        Third, the testifying expert provided a fair, good-faith summary of his

opinions of the applicable standards of care in his amended expert report. The

summary met the requirements of the Expert Report Statute so the trial court

correctly denied the motion to dismiss filed by Appellants.

        Fourth, the breaches regarding the standard of care were fairly summarized

by the testifying expert and sufficiently met the statutory requirements

necessitating the denial of the motion to dismiss.

        Fifth, the testifying expert met the standard to testify on causation under the

Expert Report Statute as demonstrated by the express language and facts presented

in his curriculum vitae contained in the amended expert report.

        Lastly, the testifying expert provided a fair summary of his opinions on

causation meeting the requirements of the Expert Report Statute.

        For these reasons, the trial court correctly exercised its discretion, applied

the proper standard of review, and denied the motion to dismiss filed by Meridian,

Theora, Rice, Spore, and Briones. The Appellate Court should affirm the trial

court’s denial of the motion to dismiss filed by Appellants.




Appellee’s Brief
                                                                             Page 2 of 17
                       ARGUMENT AND AUTHORITIES

        To the trial court the Appellants filed general, conclusory, and non-specific

objections to the expert reports served upon them. The trial court properly

exercised its discretion and determined that the report constituted an objective

good-faith effort to comply with the expert report statute based upon the case law

and the non-specific, ambiguous complaints cited in the objections filed by

Appellants. See Tab 1 & Tab 2. Appellants wholly failed to cite or present any

case law to support their elevated and heightened standards for expert reports in

their filed objections, which must be filed in writing. TEX. CIV. PRAC. & REM.

CODE § 74.351(a). Upon the denial of their objections, Appellants bore the burden

of preserving error, if any, through the record. See TEX. R. APP. P. 33.1(a). They

didn’t. Rather, now on appeal, they seek to fly-speck the reports in detail with case

law and factual citations and allegations, which they failed to present or assert

before the trial court prior to it rendering its proper determination denying their

motions to dismiss based upon the applicable statute and the documents filed and

presented before it.

                               STANDARD OF REVIEW

        An abuse of discretion standard applies in reviewing a trial court’s ruling on

a defendant’s motion to dismiss a health care liability claim. American



Appellee’s Brief
                                                                            Page 3 of 17
Transitional Care Ctrs. of Tex., Inc. v. Palacios, 46 S.W.3d 873, 877-78

(Tex.2001). An abuse of discretion occurs when the trial court acts in an

unreasonable or arbitrary manner, or without reference to any guiding rules or

principles. Walker v. Gutierrez, 111 S.W.3d 56, 62 (Tex.2003). In this particular

instance, Appellants fail to show that the trial court acted in an unreasonable or

arbitrary manner, or without reference to any guiding rules or principles in

presenting their appeal. In fact, the trial court properly applied the guiding rules

and principles regarding expert reports based upon the objections raised and law

cited by the Appellants in their filed objections.

        Section 74.351 of the Texas Civil Practice and Remedies Code (“the Expert

Report Statute”) indicates that a court shall grant a motion challenging the

adequacy of an expert report only if it appears to the court, after hearing, that the

report does not represent an objective good faith effort to comply with the

definition of an expert report in Subsection (r)(6). TEX. CIV. PRAC. & REM. CODE

§ 74.351(l) (emphasis added). An “[e]xpert report” means a written report by an

expert that provides a fair summary of the expert’s opinions as of the date of the

report regarding applicable standards of care, the manner in which the care

rendered by the health care provider failed to meet the standards, and the causal

relationship between that failure and the injury, harm, or damages claimed. TEX.


Appellee’s Brief
                                                                           Page 4 of 17
CIV. PRAC. & REM. CODE § 74.351(r)(6).

        The determination of whether a plaintiff’s expert report is adequate is not a

merits determination, but rather a preliminary determination designed to

expeditiously weed out claims that have no merit. Loaisiga v. Cerda, 379 S.W.3d

248, 263 (Tex. 2012). A valid expert report has three elements: it must fairly

summarize the applicable standard of care; it must explain how a physician or

health care provider failed to meet that standard; and it must establish the causal

relationship between the failure and the harm alleged. Certified EMS, Inc. v. Potts,

392 S.W.3d 625, 630 (Tex. 2013). A report that satisfies these requirements, even

if as to one theory only, entitles the claimant to proceed with a suit against the

physician or health care provider. Id. The report needs only to inform the

defendant of the specific conduct the plaintiff has called into question and provide

a basis for the trial court to conclude that the claims have merit. Id. A report need

not cover every alleged liability theory to make the defendant aware of the conduct

that is at issue. Id.

        The report can be informal in that the information in the report does not

have to meet the same requirements as the evidence offered in a summary-

judgment proceeding or at trial. Id. at 631. If the trial court decides that a liability

theory is supported, then the claim is not frivolous, and the suit may proceed. Id.


Appellee’s Brief
                                                                              Page 5 of 17
I.      Appellants’ Objections to the Trial Court Lacked Sufficient Specificity,
        and the Grounds Presented Now on Appeal were not Detailed or
        Presented at the Trial Court Level.

        Appellants’ objections in the trial court regarding the expert reports lacked

sufficient specificity and failed to present the grounds and the specific deficiencies

for which they now detail at length on appeal. See Tab 1 & Tab 2. As a result,

Appellants failed to present them at the trial court level, which is a necessary

prerequisite for determination on appeal. See TEX. R. APP. P. 33.1. The record must

show that the complaint was made to the trial court by a timely objection that

stated the grounds for the ruling that the complaining party sought from the trial

court with sufficient specificity to make the trial court aware of the complaint,

unless the specific grounds were apparent from the context. See TEX. R. APP. P.

33.1(a) (emphasis added). In this case, the Appellants initially filed an objection

that constituted four pages, excluding the attached expert report, followed by

another four page objection to the amended expert report. See Tab 1 & Tab 2 (CR

31-41 & CR Supp 4-16). The two filed objections failed to identify any specific

deficiencies in the expert reports, but rather generically attack the expert reports

by generally asserting that the reports were conclusory or failed to show or

establish the expert’s qualifications, the standard of care, breach, and causation

without ever detailing how or why. See Tab 1 & Tab 2. However, now on appeal,


Appellee’s Brief
                                                                            Page 6 of 17
the Appellants file a brief presenting detailed and specific objections to the

amended expert report, including citations to case law, which were not presented

or shown at the trial court level. In fact, not a single case law reference exists in

either objection filed by Appellants at the trial court level or any specific fault

shown or demonstrated for either report. See Tab 1 & Tab 2. As a result, the Court

should determine that the Appellants failed to preserve their objection on the

record or waived the objection. See TEX. R. APP. P. 33.1(a); TEX. CIV. PRAC. &

REM. CODE § 74.351(a).

        Additionally, in their first issue, Appellants raise for the first time that the

expert reports fail to demonstrate Dr. Kunik’s qualifications and requires

impermissible inferences. (See Appellant’s Brief at 11 ¶ II, Tab 1 & Tab 2).

Appellants failed to complain, present, or raise either of these objections at the

trial court level; however, now on appeal they seek to raise that which was not

objected to or presented to the trial court. Mr. Byers objects to all such attempts by

Appellants, and this brief will address the objections actually asserted by

Appellants in the objections filed and ruled upon by the trial court, which are

attached to this brief as Tab 1 and Tab 2. Appellants also imply indirectly that

Texas      law     provides   fail-safe   protective   limited   partnership   sheltering

mechanisms–employed by certain Appellants–that would perfectly shield them


Appellee’s Brief
                                                                               Page 7 of 17
from vicarious tort liability for operating insufficiently capitalized entities without

liability insurance. (See Appellant’s Brief at 12 fn. 2). Appellants did not raise or

assert this objection or issue in their filed objections before the trial court.

        Further, unless legitimate, specific objections identifying all alleged

deficiencies in the expert reports were presented to the trial court and not

addressed by Mr. Byers, a dismissal that requires the lack of an objective good

faith effort to comply with the statute could not be forthcoming from the trial

court. See TEX. CIV. PRAC. & REM. CODE § 74.351(l). As such, the trial court could

not have abused its discretion in denying the Appellants’ objections when

Appellants could not or did not express their specific complaints regarding the

original or amended expert report to the trial court. The unidentified, non-specific,

and unsupported generic objections of Appellants were waived. See TEX. CIV.

PRAC. & REM. CODE § 74.351(a).

        Therefore, the Court should find that the Appellants failed to adequately

present their objections to the expert reports at the trial court level or failed to

preserve them for appeal, and affirm the trial court’s proper exercise of its

discretion in denying Appellants’ motion to dismiss Appellee’s claims.

II.     The Trial Court Properly Exercised Its Discretion in Ruling that the
        First Amended Expert Report Constituted a Fair, Good-Faith
        Summary of the Expert’s Qualifications to Testify Regarding the
        Standard of Care.

Appellee’s Brief
                                                                                   Page 8 of 17
        Based upon the objection asserted by Appellants to the expert report, the

trial court properly exercised its discretion in determining that the amended expert

report showed Dr. Kunik qualified to opine on the standard of care. (CR Supp. 9,

16-65). Under the statute, to testify regarding a standard of care, an expert must

qualify under Texas Civil Practice and Remedies Code § 74.401 regarding

physicians and § 74.402 regarding health care providers. See TEX. CIV. PRAC. &

REM. CODE § 74.351(r)(5)(A)&(B). The amended expert report has Dr. Kunik’s

curriculum vitae attached and incorporated by reference. (CR Supp. 9, 16-65).

Appellants failed to raise any issue or complaint with the trial court regarding the

incorporation by reference of Dr. Kunik’s curriculum vitae in their filed objection

to the amended expert report. See Tab 2. Dr. Kunik is a board certified geriatric

psychiatrist and serves as a full professor teaching psychiatry & behavioral

sciences at the Baylor College of Medicine in Houston. (Tab 2; CR Supp. 9, 16,

18). Additionally, he is the acting director of a clinical center. (Tab 2; CR Supp. 9,

16). These credentials alone qualify him under either section of the Texas Civil

Practice and Remedies Code to opine as to the standard of medical care. See TEX.

CIV. PRAC. & REM. CODE §§ 74.401 and 74.402.

        Appellants also objected in the trial court that Dr. Kunik’s qualifications are

conclusory; however, the actual statute itself indicates that the expert report is

Appellee’s Brief
                                                                             Page 9 of 17
supposed to be a summary. See TEX. CIV. PRAC. & REM. CODE § 74.351(r)(6); (CR

Supp. 6, objection A). As a result, the trial court properly exercised its discretion

and determined that the amended expert report represented an objective good faith

effort to comply with the statute and correctly denied the defendants’ motion to

dismiss.

III.    The Trial Court Properly Exercised Its Discretion in Ruling that the
        First Amended Expert Report Presented a Fair, Good-Faith Summary
        of the Expert’s Opinion Regarding the Applicable Standards of Care.

        Based upon Appellants’ raised objection to the expert report at the trial

court level, the amended expert report presented a fair, good-faith summary of Dr.

Kunik’s opinions as to the applicable standards of care as required by the statute.

Appellants objected in the trial court that the standards of care were stated in

conclusory terms inadequate to meet the statute’s requirements. (CR Supp. 6,

objection B). Other than indicating that a fair summary must be given of the

applicable standards of care, the statute does not indicate any additional specificity

required for stating the standard of care in an expert report nor did Appellants cite

or specify any in their objections to the report. See Tab 1 & Tab 2; TEX. CIV. PRAC.

& REM. CODE § 74.351(r)(6). Dr. Kunik provided a fair summary of the applicable

standards of care in the amended expert report in caring for patients with

dementia. (Tab 2; CR Supp. 11). Additionally, Appellants have failed demonstrate


Appellee’s Brief
                                                                           Page 10 of 17
in their brief how the trial court acted in an unreasonable or arbitrary manner, or

without reference to any guiding rules or principles regarding this objection to the

report. As a result, the trial court properly exercised its discretion and determined

that the amended expert report represented an objective good faith effort to

comply with the statute and correctly denied the defendants’ motion to dismiss.

Therefore, the Court should affirm the trial court’s denial of the motion to dismiss.

IV.     The Trial Court Properly Exercised Its Discretion in Ruling that the
        First Amended Expert Report Presented a Fair, Good-Faith Summary
        of the Expert’s Opinions Regarding the Health Care Providers’
        Breaches Regarding the Standards of Care.

        Based upon the objection presented by Appellants to the expert report at the

trial court level, in compliance with the statute, the amended expert report

provided a fair, good-faith summary of the manner in which the care rendered by

the health care providers failed to meet the applicable standards of care. In their

motion to dismiss in the trial court, Appellants objected that the alleged breaches

of the standard of care stated in the amended expert report was only in conclusory

terms inadequate to meet the statute’s requirements. (CR Supp. 6, objection C).

Appellants attempt to impose an inapplicable enhanced or elevated specificity

requirement for expert reports. As discussed above, the statute does not require

anything more than a fair summary of the manner in which the care rendered failed

to meet the standard, and Appellants failed to inform or cite anything elevating the

Appellee’s Brief
                                                                           Page 11 of 17
statutory requirements in their objection to the trial court. See TEX. CIV. PRAC. &

REM. CODE § 74.351(r)(6).

        An expert report must represent only a good-faith effort to provide a fair

summary of the expert’s opinions. Loaisiga, 379 S.W.3d at 257. A report need not

marshal all of the plaintiff’s proof, but it must include the expert’s opinion on each

of the elements identified in the statute. Id. Dr. Kunik’s report meets the applicable

standard, as the trial court in its discretion correctly determined. (CR Supp. 11-14).

Once again on this point, Appellants failed to demonstrate how the trial court

acted in an unreasonable or arbitrary manner, or absent guiding rules or principles

regarding this objection. Using its discretion, the trial court correctly ruled that the

amended expert report represented an objective good faith effort and denied the

defendants’ motion. Therefore, the Court should affirm the trial court’s denial of

the motion to dismiss.

V.      The Trial Court Properly Exercised Its Discretion in Ruling that the
        First Amended Expert Report Presented a Fair, Good-Faith Summary
        of Expert’s Qualifications to Testify on Causation.

        Based upon the objection stated by Appellants to the expert report at the

trial court level, using its discretion, the trial court properly determined that the

amended expert report showed Dr. Kunik qualified to opine on causation. (CR

Supp. 9, 16-65). In their trial court motion, Appellants raised the objection that the


Appellee’s Brief
                                                                             Page 12 of 17
amended expert report does not show Dr. Kunik qualified to testify as to causation

or does so in a conclusory manner. (CR Supp. 6, objection D). The expert report

statute indicates that to testify as to causation, a physician need only qualify under

the Texas Rules of Evidence. See TEX. CIV. PRAC. & REM. CODE

§§ 74.351(r)(5)(C). Rule 702 of the Texas Rules of Evidence provides that a

witness qualified by knowledge, skill, experience, training, or education may

testify as an expert. See TEX. R. EVID. 702. Dr. Kunik’s report demonstrates that he

qualifies under both the statute and the rules of evidence to opine as an expert

witness. See TEX. CIV. PRAC. & REM. CODE §§ 74.351(r)(5)(C); TEX. R. EVID. 702;

(CR Supp. 9, 16-65).

        As to Appellants’ additional objection that Dr. Kunik’s qualifications to

testify are stated in a conclusory manner, the statute does not indicate a manner in

which the expert’s qualifications should be stated, nor do the Appellants cite any

statute or case law in their trial court motion to support this particular objection to

the report. As a result, the trial court properly applied the guiding rules and

principles provided and denied the defendants’ motion to dismiss. Therefore, the

Court should affirm the trial court’s ruling.

VI.     The Trial Court Properly Exercised Its Discretion in Ruling that the
        First Amended Expert Report Presented a Fair, Good-Faith Summary
        of the Expert’s Opinions Regarding Causation.


Appellee’s Brief
                                                                            Page 13 of 17
        Based upon the objection asserted by Appellants to the expert report at the

trial court level, the trial court properly determined that the amended expert report

provided a fair summary of the causation links between the defendants’ failure to

comply with the standard of care and Willie Byers’ death. Appellants objected in

their trial court motion to dismiss that the amended expert report failed to identify

causation or did so in conclusory terms. (CR Supp. 6, objection E). As mentioned

above, a fair summary of the expert’s opinion on causation is all that is required,

and Dr. Kunik linked the defendants’ failures to meet the standard of care with the

death that Willie Byers suffered in full compliance with the statute. (CR Supp. 10-

14). As to the appellants’ assertions that no particular mention of them is indicated

in the expert report, Rice and Spore are specifically identified as Management

Agents for Meridian, formerly known as the Tumbleweed Care Center, as well as

in each of the capacities in which they were sued. (CR Supp. 10). The report also

specifically identifies Briones as an Employee-Agent of the Tumbleweed Care

Center. (CR Supp. 10). The amended expert report identifies the breaches of the

standards of care and provides the causation links to Willie’s death, indicating

those breaches in which the Tumbleweed Care Center is implicated and addressing

and differentiating whether a Management Agent or an Employee-Agent of

Tumbleweed Care Center is liable. Just as before, Appellants failed to demonstrate


Appellee’s Brief
                                                                          Page 14 of 17
how the trial court acted in an unreasonable or arbitrary manner, or absent guiding

rules or principles on the objection they raised at the trial court level. Using its

discretion, the trial court correctly ruled that the amended expert report

represented an objective good faith effort and denied the defendants’ motion.

Therefore, the Court should affirm the trial court’s denial of the motion to dismiss.

                         CONCLUSION AND PRAYER

        For the reasons set forth, Appellee–Louis D. Byers, Independent

Administrator of the Estate of Willie Joe Byers, Deceased–asks that the Court

(i) find that the Appellants failed to adequately present their objections to the

expert reports at the trial court level or failed to preserve them for appeal; (ii)

affirm the trial court’s exercise of discretion in denying the motion to dismiss filed

by Appellants; and (iii) grant such other relief to which he may be justly entitled.

                                           Respectfully Submitted,

                                           TOUPS LAW FIRM


                                           By:
                                                 /s/   David R. Toups
                                                 DAVID R. TOUPS
                                                 State Bar No. 24034711
                                                 3010 LBJ Fwy, Ste. 1200
                                                 Dallas, Texas 75234-2710
                                                 (214) 705-3940–Telephone
                                                 (800) 780-6834–Facsimile
                                                 DRToups@ToupsLawFirm.com


Appellee’s Brief
                                                                            Page 15 of 17
                                        ATTORNEY FOR APPELLEE,
                                        LOUIS D. BYERS, INDEPENDENT
                                        ADMINISTRATOR OF THE ESTATE OF
                                        WILLIE JOE BYERS, DECEASED


                        CERTIFICATE OF COMPLIANCE
           RULE 9.4(i)(3) OF THE TEXAS RULES OF APPELLATE PROCEDURE

      I certify that this document was computer generated and that according to
the word count function of the software program used to prepare the document, the
document has 3,462 words.



                                         /s/   David R. Toups
                                         DAVID R. TOUPS




Appellee’s Brief
                                                                       Page 16 of 17
                         CERTIFICATE OF SERVICE

      I hereby certify that a true and correct copy of this document has been
served on all parties or their counsel as listed below on this 16th day of November
2015.

   VIA TEXAS E-FILE SYSTEM                  VIA TEXAS E-FILE SYSTEM
   Robin M. Green, Esq.                     Andrew R. Seger, Esq.
   Richards, Elder & Green, LLC             Key Terrell & Seger, LLP
   3223 South Loop 289, Ste. 424            4825 50th St., Ste. A
   Lubbock, Texas 79423-1368                Lubbock, Texas 79499
   (806) 798-8868–Telephone                 (806) 793-1906–Telephone
   (806) 798-8878–Facsimile                 (806) 792-2135–Facsimile
   rgreen@regllp.com–E-mail                 aseger@thesegerfirm.com–E-mail
   ATTORNEY        FOR      APPELLANTS,     ATTORNEY         FOR      APPELLANTS,
   MERIDIAN      LTC     LTD,    F/D/B/A    MERIDIAN       LTC      LTD,   F/D/B/A
   TUMBLEWEED CARE CENTER; THEORA           TUMBLEWEED CARE CENTER; THEORA
   MANAGEMENT         SYSTEMS,      INC.,   MANAGEMENT           SYSTEMS,     INC.,
   GENERAL PARTNER OF MERIDIAN LTC,         GENERAL PARTNER OF MERIDIAN LTC,
   LTD.; KENNETH MIKE RICE; SCOTT           LTD.; KENNETH MIKE RICE; SCOTT
   STEVEN SPORE; AND MARIA STELLA           STEVEN SPORE; AND MARIA STELLA
   BRIONES                                  BRIONES


                                            /s/   David R. Toups
                                            DAVID R. TOUPS




Appellee’s Brief
                                                                         Page 17 of 17
                                              No. 07-15-00306-CV

        MERIDIAN LTC, LTD.; THEORA MANAGEMENT SYSTEMS, INC.;
   KENNETH MIKE RICE; SCOTT STEVEN SPORE; AND MARIA STELLA BRIONES,

                                                      Appellants,

                                                             v.

                      LOUIS D. BYERS, INDEPENDENT ADMINISTRATOR OF
                       THE ESTATE OF WILLIE JOE BYERS, DECEASED,

                                                       Appellee.

                                         APPELLEE’S APPENDIX

                                          LIST OF DOCUMENTS

1. Objections to the Sufficiency of Plaintiff's Expert Report of Mark
   E. Kunik. M.D., M.P.H. less portions of Dr. Kunik’s CV (CR 31-
   41). ...................................................................................................... Tab 1

2. Objections to the Sufficiency of Plaintiff's First Amended Expert
   Report of Mark E. Kunik. M.D., M.P.H. less portions of Dr.
   Kunik’s CV (CR Supp 4-16) .............................................................. Tab 2




Appellee’s Brief–Appendix
Tab 1
                                                       NO. 2013-505.504

 LOUIS D. BYERS, INDEPENDENT
 ADMINISTRATOROFTHEESTATEOF
                                                                        §
                                                                        §§
                                                                             IN THE 99tb DISTRICT CTT
                                                                                                .
                                                                                                     IS.
 WILLIE JOE BYERS,
 Plaintiff,                                                             §
                                                                        §
                                                                                                      =
                                                                                                      !I




                                                                                                 J
 v.                                                                     §
                                                                        §    IN AND FOR
 MERIDIAN LTC LTD., F/K/A                                               §
 TUMBLEWEED CARE CENTER;                                                §
 THEORA MANAGEMENT SYSTEMS,                                             §
 INC., GENERAL PARTNER OF                                               §
 MERIDIAN LTC, LTD.; HONOR                                              §
 SERVICES, INC., F/D/B/A                                                §
 TUMBLEWEED AND CHILDREN OF                                             §
 THE PIONEERS; JON JAY KIRKSEY;                                         §
 EDNA FAYE HOWELL STOWE;                                                §
 MARIA STELLA BRIONES; CARMEN                                           §
 SERRATA JEWEL; KENNETH MIKE                                            §
 RICE; SCOTT STEVEN SPORE; AND                                          §
 AARON VERGE JEWELL;                                                    §
 Defendant.                                                             §    LUBBOCK COUNTY, TEXAS




                        OBJECTIONS TO THE SUFFICIENCY OF
              PLAINTIFF'S EXPERT REPORT OF MARK E. KUNIK. M.D.. M.P.H.

TO THE HONORABLE JUDGE OF SAID COURT:

          NOW COMES Meridian LTC Ltd., f/d/b/a Tumbleweed Care Center, Theora

Management Systems, Inc., General Partner of Meridian LTC, Ltd., Kenneth Michael Rice,

M.D., Scott Steven Spore, M.D., and Maria Stella Briones (hereinafter referred to as

"Defenda.11ts"), Defendants in the above-entitled and nutnbered cause, a.'ld file their Objections

to the Sufficiency of Plaintiffs Expert Report of Mark E. Kunik, M.D., M.P.H and would

respectfully show the Court as follows:


Defendants Objections to Expert Report of Mark E. Kunik, M.D., M.P.H.                                 Pagel




                                                                                                              31
                                                                    I.

           This lawsuit was filed after September 1, 2003. Therefore, the provisions of TEX. CIV.

PRAC. & REM. CODE Chapter 74 apply to this case.

                                                                   II.

           Plaintiff filed this suit on January 30, 2013.                 Plaintiff alleges that Defendants were

negligent in the medical care (in a nursing home) rendered to Willie Byers. As such, Plaintiff

asserts a "healthcare liability claim" against Defendants. See TEx. CIV. PRAC. & REM. CODE

§74.001 (13)(Vemon's 2004).

           On or about May 31, 2013, in an effort to comply with TEx. CIV. PRAC. & REM. CODE

Chapter 74, Plaintiff served upon Defendants a report from Mark E. Kunik, M.D., M.P.H.

(hereinafter referred to as "Kunik Report"). A copy of the Kunik Report is attached as Exhibit

"A" and incorporated herein by reference. Defendants file and serve these objections to the

Kunik Report within 21 days after the date the report was served on Defendants.

                                                                   III.

          Defendants make the following objections to the sufficiency of the Kunik Report:

          A.         The Kunik Report fails to establish that Mark E. Kunik, M.D., M.P.H. is qualified

to render an opinion on the standard of care applicable to Defendants, or in the alternative, the

same is stated in conclusory terms;

          B.         The Kunik Report states the standard of care applicable to Defendants in

conclusory terms;

          C.         The Kunik Report states the alleged breach in the standard of care applicable to

Defendants in conclusory terms;

          D.         The Kunik Report fails to establish that Mark E. Kunik, M.D., M.P.H. is qualified

Defendants Objections to Expert Report of Mark E. Kunik, M.D., M.P.H.                                   Page2




                                                                                                                32
to render an opinion on the causal connection between any alleged breach and the injury, harm,

or damages claimed by Plaintiff, or alternatively, the same is stated in conclusory terms; and

          E.         The Kunik Report fails to identify the causal relationship between the alleged

failure of Defendants to comply with the applicable standard of care and the injury, harm and

damages claimed, or alternatively, the same is stated in conclusory terms.

                                                                   IV.

          Upon sustaining these objections to the Kunik Report, Defendants request that the Court

dismiss this cause with prejudice, enter an award of attorney fees and grant any other relief as

allowed by Tex. Civ. Prac. & Rem. Code §74.35l(b).

           WHEREFORE, PREMISES CONSIDERED, Defendants, request that this matter be set

for hearing and that, upon hearing, the Cou...rt sustain these                     Objectior~   to the Sufficiency of

Plaintiff's Expert Report of Mark E. Kunik, M.D., M.P.H. dismiss this cause with prejudice,

enter an award of attorney fees, and for such other and further relief to which Defendants may be

entitled.


                                                                         Respectfully submitted,

                                                                         RICHARDS, ELDER & GREEN, PLLC
                                                                         3223 South Loop 289, Suite 424 (79423)
                                                                         P.O. Box 64657




                                                                         y:~~~~==~~~~­
                                                                         Ro mM. Green
                                                                         Texas Bar No. 08369000

                                                                         Dana Garay
                                                                         Texas Bar. No. 24007220
                                                                         Attorneys for Defendants

Defendants Objections to Expert Report of Mark E. Kunik, M.D., M.P.H.                                        Page3




                                                                                                                     33
                                     CERTIFICATE OF SERVICE

        I certify that on Jl)Yaay of June, 2013, a true and correct copy of Objections to the
Sufficiency of Plaintiff's Expert Report of Mark E. Kunik, MD., MP.H was served on David R.
Toups, Bennett, Weston, Lajone & Turner, P.C., 1603 LBJ Fwy, Ste. 280, Dallas, Texas 75234-
6040 via facsimile transmission to (800) 780-6834.




                                                   DANA GARAY




Defendants Objections to Expert Report of Mark Kunik, M.D ..                         Page4




                                                                                             34
Defendants Objections to Expert Report of Mark E.Kunik, M.D., M.P.H.   PageS




                                                                               35
                                   Cause No. 2013-505,504

         In the 99ili District Court of
                   Lubbock County, Texas

                LoUlS D. BYERS, INDEPENDENT ADMINISTRATOR OF THE
                      ESTATE OF WILLIE JOE BYERS, DECEASED,

                                             Plaintiff,

                                                 v.
      MERIDIANLTC,LTD., FIKIA TuMBLEWEEDCARECENTER; THEORA
   MANAGEMENT SYSTEMS, INC., GENERAL PARTNER OF MERIDIAN LTC, LTD.;
 HONOR SERVICES, INC., F/D/B/A TUMBLEWEED AND CHILDREN OF THE PIONEERS;
  JON JAY KIRKsEY; EDNA FAYE HOWELL STOWE; MARIA STELLA BRIONES;
 CARMEN SERRATA JEWEL, KENNEm MIKE RICE; SCOTT STEVEN SPORE; AND
                        DONNALD AARON JEWELL,

                                           Defendants.




                                      EXPERT REPORT




                                          Prepared by:

                                 MARK E. KUNIK, MD, MPH 1




     1
       See Ex. A-Curriculum Vitae of Mark E. KuniA:, a true and correct copy of which is attached as
Exhibit A and incorporated by reference to this expert report.




                                                                                                       36
        Expert Opinion Summary. At this time, based upon my conversations with

counsel for Louis D. Byers, Independent Administrator of the Estate of Willie Joe Byers,

Deceased, and my review of the following docwnents that have been provided to me:

               •   an Original Petition filed Janua..-y 30, 2013;
               •   a Texas Department of Aging and Disability Investigation Report
                   containing 103 pages regarding the incident;
               •   weather station information from Weathersource for February I, 2011 to
                   February 3, 2011 for Brownfield, Texas; and
               •   KCBD news stories of the incident dated February 04, 2011; March 17,
                   2011; July 21, 2011; and July 25, 2011;

it is my opinion-to a reasonable medical probability-that the care for Willie Joe Byers

provided by the Tumbleweed Care Center and the Children of the Pioneers nursing care

facilities-and their employees and agents-failed to meet the standard in Texas for caring

for patients suffering from dementia, and these failures caused Willie Joe Byer's death.

        Specifically, the standards of care in Texas which were not met are as follows:

       (i) a facility caring for patients with dementia owes a duty to professionally
               supervise, monitor, and protect patients, and exercise reasonable care for their
               safety based upon their known mental and physical condition;

       (ii) a facility caring for patients with dementia owes a duty to select and train staff
               to care for patients suffering from this illness;

       (iii)   a facility caring for patients with dementia owes a duty to provide adequate
               facilities to care for them; and

       (iv) a facility ca.ri..ng for patients with dementia owes a duty to provide ""tequate
               policies, procedures, and supervision of staff to accommodate their care.

       Using these standards, the care provided by the Tumbleweed Care Center and the

Children of the Pioneers falls short regarding the care provided to Willie Joe Byers on the

2nd and 3rd of February 2011, which caused his death. Each ofthese failures contributed

to Willie Joe's de"ath and had a foreseeable result, which occurred, for failing to meet the

standard of care.



                                                                                       Page 1 of3




                                                                                                    37
        First, despite unusually severe cold weather across the region, the Children of the

 Pioneers transferred Willie Joe-a patient known to have dementia-late in the day on

 February 2nd to the Twnbleweed Car~ Center, in a different town. The new facility would

 have been an environment unfamiliar to him and this was done without the family's

consent. The Children of the Pioneers and . the Tumbleweed Care Center failed to

supervise, monitor, or protect Willie Joe on the night of February 2nd and the morning of

February 3rd, which allowed him to leave the Twnbleweed Care Center facility unnoticed

on February 3rd, become disoriented in the facility's yard, and die of hypothermia in the

snow. Additionally, had routine supervision or monitoring have taken place, his absence

would have been discovered; however, his absence took four hours to discover. Had the

Children of the Pioneers and the    Twnblewee~     Care Center supervised, monitored, and

protected Willie Joe, he would not have died of hypothermia outside the facility.

        Second, the Twnbleweed Care Center and the Children of the Pioneers failed

either to select staff capable of caring for demented patients or they failed to train their

staff in the proper care of them. The facilities' staff should have been familiar with

disorientation that often worsens in the evening and in new settings. Willie Joe was

transferred in the evening to an unsecured, unfamiliar facility:· and he had wandered

before. Had the facilities' staff been properly selected or trained properly, they would

have been able to anticipate Willie Joe's behaviors that commonly occur in a person

suffering from dementia. The failure of the staff to recognize and anticipate behaviors

common to persons with dementia demonstrates a lack of capability or training which

was a contributing factor to Willie Joe's death.




                                                                                    Page2of3




                                                                                               38
          Third, the Tumbleweed Care Center was an unsecured facility and ill equipped to

 handle residents with dementia. Willie Joe was transferred from a secure unit at The

 Children of the Pioneers, to an unsecured setting, Tumbleweed Care Center, which

 lacked the secured area to protect patients with dementia. T'ne faiiure of the Tumbieweed

Care Center to provide adequate facilities to care for demented patients caused Willie

Joe's death.

          Fourth, the Tumbleweed Care Center and the Children of the Pioneers failed to

provide adequate policies, procedures, and supervision of staff to care for demented

patients. The staff of each facility contributed to the death of Willie Joe Byers through a

series of failures in good discretion and judgment. Had adequate policies and procedures

been in place, along with supervision to implement their compliance, Willie Joe's death

due to exposure could have been prevented.

          Signed this   2 ~~day of May 2013.


                                                 MARK E. KUNlK, M.D.




Expert &port
                                                                                  Page3 ofJ




                                                                                              39
                  Exhibit A
                   True and Co"ect Copy of the
                Curriculum Vitae ofMark E. Kunik




Expert Report




                                                   40
Mark E. Kunik, MD, MPH
May 20,2013



                     I. GENERAL BIOGRAPHICAL INFORMATION

A.     Personal
       I. Name: Mark Edwin Kunik
       2. Date of Birth; citizenship: May 5, 1961, Houston, TX; US citizen

B.     Education
       1. Undergraduate Education: BA, Psychology, Honors, University of Texas, 1979-1982
       2. Medical Education: MD, Baylor College of Medicine, 1983-1987
       3. Postgraduate Training:
          a. Combined Internship/Residency in Psychiatry, Baylor Affiliated Hospitals,
              Baylor College of Medicine, 1987-1991
          b. Geriatric Psychiatry Fellow, Western Psychiatric Institute and Ciinic, University
              of Pittsburgh School of Medicine, 1991-1992
          c. MPH, University ofTexas School of Public Health, 2000

C.     Academic Appointments
       l. Current faculty positions at BCM:
           a. Professor, Menninger Department of Psychiatry & Behavioral Sciences, Baylor
              College of Medicine, Houston, TX, 2007-present
           b. Associate Professor, Department of Medicine, Baylor College of Medicine,
              Houston, TX, 2002-present
           c. Acting Director, South Central Mental Illness Research, Education, & Clinical
              Center (MIRECC), 2012-present, annual budget $2,500,000
           d. Associate Director and Chief, Health Services Delivery & Organization, Houston
              Center for Quality of Care & Utilization Studies: A Veterans Affairs Health
              Services Research & Development Center of Excellence, Michaei E. DeBakey
              Veterans Affairs Medical Center, Houston, TX, 2003-present, annual budget
              $10,000,000
           e. Psychiatry Director, Advanced Fellowship Program in Mental Illness Research
              and Treatment, 200 1-present
           f. Co-Chief, Education & Mentoring, Houston Center for Quality of Care &
              Utilization Studies: A Veterans Affairs Health Services Research & Development
              Center of Excellence, Michael E. DeBakey Veterans Affairs Medical Center,
              Houston, TX, 2007-2008
           g. Associate Director, Research Training, South Central Mental Illness Research,
              Education, & Clinical Center (MIRECC), 2004-2012, annual budget $2,500,000
           h. Associate Professor, Menninger Department of Psychiatry & Behavioral Sciences,
              Baylor College of Medicine, Houston, TX, 1999-2007
           i. Physician Investigator, Houston Veterans Affairs Medical Center, Houston Center
              for Quality of Care & Utiiization Studies: A Veterans Affairs Heaith Services
              Research & Development Center of Excellence, Houston, TX, 1999-2003.
          j. Assistant Professor, Department of Psychiatry & Behavioral Sciences, Baylor
              College of Medicine, Houston, TX, 1992-1999




                                                                                                 41
Tab 2
                                                         NO. 2013-505.504

   LOUIS D. BYERS, INDEPENDENT                                         §      IN THE 99th DISTRICT COURT
   ADMINISTRATOR OF THE ESTATE OF                                      §            \
                                                                                        \
   WILLIE JOE BYERS,                                                   §
   Plaintiff,                                                                               \\\
                                                                       §                      '-.\
                                                                       §
   v.                                                                  §
                                                                       §      INANDFOR
  MERIDIAN LTC LTD., F/K/A                                             §
  TUMBLEWEED CARE CENTER;                                              §
  THEORA MANAGEMENT SYSTEMS,                                           §
  INC., GENERAL PARTNER OF                                             §
  MERIDIAN LTC, LTD.; HONOR                                            §
  SERVICES, INC., F/D/B/A                                              §
  TUMBLEWEED AND CHILDREN OF                                           §
  THE PIONEERS; JON JAY KIRKSEY;                                       §
  EDNA FAYE HOWELL STOWE;                                              §
  MARIA STELLA BRIONES; CARMEN                                         §
  SERRATA JEWEL; KENNETH MIKE                                          §
  RICE; SCOTT STEVEN SPORE; AND                                        §
  AARON VERGE JEWELL;                                                  §
  Defendant.                                                           §     LUBBOCK COUNTY, TEXAS




                               OBJECTIONS TO THE SUFFICIENCY OF
                            PLAINTIFF'S FIRSTAMENDED EXPERT REPORT
                                  OF MARK E. KUNIK. M.D.. M.P.H.

TO THE HONORABLE JUDGE OF SAID COURT:

           NOW COMES Meridian LTC Ltd., f/d/b/a Tumbleweed Care Center ("Meridian"),

Theora Management Systems, Inc., General Partner of Meridian LTC, Ltd. ("Theora"),

Kenneth Michael Rice, M.D., Scott Steven Spore, M.D., and Maria Stella Briones

(hereinafter referred to as "Defendants"), Defendants in the above-entitled and numbered cause,

and file their Objections to the Sufficiency of Plaintiffs First Amended Expert Report of Mark

E. Kunik, M.D., M.P.H dated September 15,2013 and received by Defendants on September 21,

Defendants Objections to Plaintiffs First Amended Expert Report of Mark E. Kunik, M.D., M.P.H.         Page I




                                                                                                                4
 2013, and would respectfully show the Court as follows:

                                                                      I.

            This lawsuit was filed after September 1, 2003. Therefore, the provisions of TEx. CIV.

 PRAC. & REM. CODE Chapter 74 apply to this case.

                                                                     II.

           Plaintiff filed this suit on January 30, 2013.                           Plaintiff alleges that Defendants were

 negligent in the medical care (in a nursing home) rendered to Willie Byers. As such, Plaintiff

 asserts a "healthcare liability claim" against Defendants. See TEX.                              CIV. PRAC.   & REM. CODE

 §74.001 (13)(Vemon's 2004).

           On or about May 31, 2013, in an effort to comply with TEX. CIV. PRAC. & REM. CODE

Chapter 74, Plaintiff served upon Defendants a report from Mark E. Kunik, M.D., M.P.H.

(hereinafter referred to as "Kunik Report"). In a letter dated July 17, 2013, the Court indicated

that he intended to find that this Report was not sufficient to comply with the law as to some of

the Defendants and allow the Defendant thirty days to cure the insufficiencies. Thereafter, on

September 18, 2013, the Plaintiff forwarded the "First Amended Expert Report" to Defendants

(hereinafter referred to as the "Amended Report"). That Amended Report was received by

Defendants on September 21, 2013. A copy of the Amended Report is attached as Exhibit "A"

and incorporated herein by reference. Defendants file and serve these objections to the Kunik

Report within 21 days after the date the report was served on Defendants. Although, Defendants

are aware that the Court has stated its intention to sustain the sufficiency of the Kunik Report as

to Defendants Meridian and Theora, these two Defendants are included among those objecting to

these Objections to the Sufficiency ofthe First Amended Expert Report of Mark E. Kunik, M.D.,

M.P.H.
Defendants Objections to Plaintiff's First Amended Expert Report of Mark E. Kunik, M.D., M.P.H.                     Page2




                                                                                                                             5
                                                                    III.

            Defendants make the following objections to the sufficiency of the Amended Report:

            A.         The Amended Report, like the prior Kunik Report, fails to establish that Mark E.

 Kunik, M.D., M.P.H. is qualified to render an opinion on the standard of care applicable to

 Defendants, or in the alternative, the same is stated oniy in conciusory terms inadequate to meet

 the requirements of the Statute. In fact, as to Dr. Kunik's qualifications, the Report appears to be

 exactly the same;

            B.        The Amended Report, like the prior Kunik Report, states the standard of care

 applicable to Defendants only in conclusory terms inadequate to meet the requirements of the

 statute;

            C.        The Amended Report, like the prior Kunik Report, states the alleged breach in the

standard of care applicable to Defendants only in conclusory terms inadequate to meet the

requirements of the statute;

            D.        The Amended Report, like the prior Kunik Report, fails to establish that Mark E.

Kunik, M.D., M.P.H. is qualified to render an opinion on the causal connection between any

alleged breach and the injury, harm, or damages claimed by Plaintiff, or alternatively, the same

is stated only in conclusory terms inadequate to meet the requirements of the statute; and

           E.        The Amended Report, like the prior Kunik Report, fails to identify the causal

relationship between the alleged failure of Defendants to comply with the applicable standard of

care and the injury, harm and damages claimed, or alternatively, the same is stated only in

conclusory terms inadequate to meet the requirements of the statute.

                                                                   IV.

          Upon sustaining these objections to the Kunik Report, Defendants request that the Court

Defendants Objections to Plaintiff's First Amended Expert Report of Mark E. Kunik, M.D., M.P.H.   Page 3




                                                                                                           6
  dismiss this cause with prejudice, enter an award of attorney fees and grant any other relief as

 allowed by Tex. Civ. Prac. & Rem. Code §74.35l(b).

            WHEREFORE, PREMISES CONSIDERED, Defendants, request that this matter be set

 for hearing and that, upon hearing, the Court sustain these Objections to the Sufficiency of

 Plaintiff's First Amended Expert Report of Mark E. Kunik, M.D., M.P.H. dismiss this cause

 with prejudice, enter an award of attorney fees, and for such other and further relief to which

 Defendants may be entitled.


                                                                            Respectfully submitted,

                                                                            RICHARDS, ELDER & GREEN, PLLC
                                                                            3223 South Loop 289, Suite 424 (79423)
                                                                            P.O. Box 64657
                                                                            Lubb~ TX 79464-4657
                                                                            Tel. 806) 98-8868
                                                                            Fax.(806 98-8878

                                                                       By: -~=:::==:~--J.-J~:::::_:~..:__­
                                                                          RobinM. Gre
                                                                          Texas Bar No. 08369000

                                                                           Attorneys for Above Named Defendants


                                              CERTIFICATE OF SERVICE

        I certify that on 30th day of SeptemberJune, 2013, a true and correct copy of Objections to
the Sufficiency of Plaintiff's Expert Report of Mark E. Kunik, MD., MP.H was served on Mr.
David R. Toups, The Toups Law Firm, 3010 LBJ Fwy, 12th Floor, Dallas, Texas 75234-2710 via
facsimile transmission to (800) 780-6834.




Defendants Objections to Plaintiff's First Amended Expert Report of Mark E. Kunik, M.D., M.P.H.               Page4




                                                                                                                      7
                                                       EXHIBIT A




Defendants Objections to Plaintiff's First Amended Expert Report of Mark E.Kunik, M.D., M.P.H.   Page 5




                                                                                                          8
                                      Cause No. 2013-505,504

                    IN THE 99TH DISTRICT COURT OF
                              LTJBBOCK COlJt-iTY, TEXAS


                    LOUIS D. BYERS, INDEPENDENT ADMINIS1RA TOR OF THE
                               ESTATE OF WILLIE JOE BYERS, DECEASED,

                                             Plaintiff,

                                                 v.
      MERIDIAN LTC, LTD., F/K/A TuMBLEWEED CARE CENTER; THEORA
  MANAGEMENT SYSTEMS, INC., GENERAL PARTNER OF MERIDIAN LTC, LTD.;
 HONOR SERVICES, INC., FIDIBIA TUMBLEWEED AND CHILDREN OF THE PIONEERS;
  JON JAY KIRKsEY; EDNA FAYE HOWELL STOWE; MARIA STELLA BRIONES;
 CARMEN SERRATA JEWEL, KENNETH MIKE RICE; SCOTT STEVEN SPORE; AND
                        DONNALD AARON JEWELL,

                                            Defendants.




                                FIRST AMENDED EXPERT REPORT




                                           Prepared by:

                                    MARK E. KUNIK, MD, MPH 1




      1
       See Ex. A-Curriculum Vitae of Mark E. Kunile, a true and correct copy of which is attached as
Exhibit A and incorporated by reference to this expert report.

First Amended Expert Report
                                                                                           Pagel of6




                                                                                                       9
          Identification of Parties. (i) Defendant, Meridian LTC, Ltd., formerly known as

Tumbleweed Care Center ("Tumbleweed Care Center"), a Texas limited partnership;

(ii) Defendant, Theora Management Systems, Inc.-general partner responsible for

Meridian LTC, Ltd., flk/a Tumbleweed Care Center-("Theora Corp."), a Texas

corporation; (iii) Defendant, Honor Services, Inc., d/b/a Tumbleweed and Children of the

Pioneers ("Children of the Pioneers"), a Texas corporation that forfeited its existence by

failing to maintain it status with the Texas Secretary of State; (iv) Defendant, Carmen

Serrata Jewel a/k/a Carmen Jewell Jewell ("Jewel" or "Management Agent")-

individually and as a shareholder, officer, and director of the business formerly known as

Honor Services, Inc., and doing business as Tumbleweed and as Children of the Pioneers;

(v) Defendant, Jon Jay Kirksey ("Employee-Agent") of the Tumbieweed Care Center;

(vi) Defendant, Edna Faye Howell Stowe, ("Employee-Agent") of the Tumbleweed Care

Center; (vii) Defendant, Maria Stella Briones ("Employee-Agent") of the Tumbleweed

Care Center; (viii) Defendant, Kenneth Mike Rice ("Management Agent")-individually

and as a shareholder, officer, and director of Theora Corp., general partner responsible

for Meridian LTC, Ltd., flkla Tumbleweed Care Center; (ix) Defendant, Scott Steven

Spore ("Management Agent")-individually and as a shareholder, officer, and director of

Theora Corp., general partner responsible for Meridian LTC, Ltd., flk/a Tumbleweed

Care Center; (x) Defendant, Donnald Aaron Jewell ("'Management Agent")-individually

and as a shareholder, officer, and director of Theora Corp., general partner responsible

for Meridian LTC, Ltd., f/k/a Tumbleweed Care Center.




First Amended Expert Report
                                                                                  Page 2 of6




                                                                                               10
           Expert Opinion Summary. At this time, based upon my conversations with

 counsel for Louis D. Byers, Independent Administrator of the Estate of Willie Joe Byers,

 Deceased, and my review of the following documents that have been provided to me:
                        ~·     ~ ~-
                  •           •
                      a namtw·s   nrst Amenaea·~
                                  .•   .   o    •
                                                 retmon mea·~r
                                                       .o.o   -·       ~A·A 2
                                                               May JU, L.U u;-
                                                                          AA




                  •   a Texas Department of Aging and Disability Investigation Report
                      containing 103 pages regarding the incident; 3
                  •   weather station information from Weathersource for February 1, 2011 to
                      February 3, 2011 for Brownfield, Texas; 4 and
                  •   KCBD news stories of the incident dated February 04, 2011; March 17,
                      2011; July 21, 2011; and July 25, 2011; 5

 it is my opinion-to a reasonable medical probability-that the care for Willie Joe Byers

 provided by the Tumbleweed Care Center nursing care facility, including its Management

 Agents and Employee-Agents, and the Children of the Pioneers nursing care facility,

 including its Management Agent and employees, failed to meet the standard in Texas for

caring for patients suffering from dementia, and these failures caused Willie Joe Byer's

death.

           Specifically, the standards of care in Texas which were not met are as follows:

          (i) a facility caring for patients     with dementia owes a. duty to professionally
                  supervise, monitor, and protect patients, and exercise reasonable care for their
                  safety based upon their known mental and physical condition;

          (ii) a facility caring for patients   with dementia owes a duty to select and train staff
                  to care for patients suffering from this illness;

          (iii)   a facility caring for patients with dementia owes a duty to provide adequate
                  facilities to care for them; and

          (iv) a facility caring for patients with dementia owes a duty to provide adequate
                  policies, procedures, and supervision of staff to accommodate their care.


      2
        Which is incorporated by reference to this expert report, which is filed in Cause No. 2013-505,504,
in the 99th District Court of Lubbock County, Texas.
      3
        See Ex. B-a true and correct copy of which is attached as Exhibit B and incorporated by reference to
this expert report.
      4
        Which is incorporated by reference to this expert report.
      s Which are incorporated by reference to this expert report.

First Amended Expert Report
                                                                                                  Page 3 of6




                                                                                                               11
          Using these standards, the care provided by the Tumbleweed Care Center nursing

care facility, including its Management Agents and Employee-Agents, and the Children

of the Pioneers nursing care facility, including its Management Agent and employees,

fails short regarding the care provided to Wiiiie Joe Byers on the   2nd    and 3rd ofFebn.wry

2011, which caused his death. Each of these failures contributed to Willie Joe's death and

had a foreseeable result, which occurred, for failing to meet the standard of care.

          First, despite unusually severe cold weather across the region, the Children of the

Pioneers, with the approval of its Management Agent, transferred Willie Joe-a patient

known to have dementia-late in the day on February 2nd to the Tumbleweed Care Center,

in a different town. The new facility would have been an environment unfamiliar to him

and this was done without the family's consent. The Children of the Pioneers, including

its Management Agent and employees, and the Tumbleweed Care Center, including its

Management Agents and Employee-Agents, failed to supervise, monitor, or protect

Willie Joe on the night of February     znd   and the morning of February   3rd,   which allowed

him to leave the Tumbleweed Care Center facility unnoticed on February               3rd,   become

disoriented in the facility's yard, and die of hypothermia in the snow. Additionally, had

routine supervision or monitoring have taken place, his absence would have been

discovered; however, his absence took four hours to discover when he was found dead

outside the facility. Had the Children of the Pioneers, including its Management Agent

and employees, and the Tumbleweed Care Center, including its Management Agents and

Employee-Agents, supervised, monitored, and protected Willie Joe, he would not have

frozen to death outside the facility.




First Amended Expert Report
                                                                                            Page4of6




                                                                                                       12
            Second, the Tumbleweed Care Center, including its Management Agents, and the

 Children of the Pioneers, including its Management Agent, failed either to select staff

 capable of caring for patients suffering from dementia or they failed to train their staff in

 the proper ca..1'C of t..l].em. The facilities' staff should have been fa..TUiliar with evening

 disorientation that patients suffering from dementia experience. Willie Joe was

 transferred in the evening to an unsecured place unfamiliar to him, and he had wandered

 before. Had the facilities' staff been properly selected or trained properly, they would

 have been able to anticipate Willie Joe's behaviors that are consistent with a person

 suffering from dementia. The failure of the staff to recognize and anticipate behaviors

 consistent with patients suffering from dementia demonstrates a lack of capability or

 training which was a contributing factor to Wiilie Joe's deat..~.

           Third, the Tumbleweed Care Center was an unsecured facility and ill equipped to

handle patients suffering from dementia, which was known or should have been known

by the Management Agents of the facility. The Children of the Pioneers, a facility with a

secured area where Willie Joe lived, transferred Willie Joe to the Tumbleweed Care

Center, which lacked the secured area to protect patients suffering from dementia. The

failure of the Tumbleweed Care Center to provide adequate facilities to care for patients

suffering from dementia caused Willie Joe's death.

          Fourth, the Tumbleweed Care Center, including its Management Agents, and the

Children of the Pioneers, including its Management Agents, failed to provide adequate

policies, procedures, and supervision of staff to care for patients suffering from dementia.

The staff of each facility contributed to the death of Willie Joe Byers through a series of

failures in good discretion and judgment. Had adequate policies and procedures been in



First Amended Expert Report
                                                                                       Page 5 of6




                                                                                                    13
 place, along with supervision to implement their compliance, Willie Joe's death due to

 exposure could have been prevented.

           Signed this/~ ft, day of September 2013.


                                                      1)11(/?---
                                                  MARK E. KUNIK, M.D.




First Amended Expert Report
                                                                              Page6of6




                                                                                          14
                                Exhibit A
                                True and Co"ect Copy of the
                              Curriculum Vitae of1"fark E. J(unik




First Amended Expert Report




                                                                    15
Mark E. Kunik, MD, MPH
May20, 2013



                     I. GENERAL BIOGRAPHICAL INFORMATION

A.     Personal
       I. Name: Mark Edwin Kunik
       2. Date of Birth; citizenship: May 5, 1961, Houston, TX; US citizen

B.     Education
       1. Undergraduate Education: BA, Psychology, Honors, University of Texas, 1979-1982
       2. Medical Education: MD, Baylor College of Medicine, 1983-1987
       3. Postgraduate Training:
          a. Combined Internship/Residency in Psychiatry, Baylor Affiliated Hospitals,
              Baylor College of Medicine, 1987-1991
          b. Geriatric Psychiatry Feilow, Western Psychiatric institute and Ciinic, University
              of Pittsburgh School of Medicine, 1991-1992
          c. MPH, University of Texas School of Public Health, 2000

C.     Academic Appointments
       I. Current faculty positions at BCM:
           a. Professor, Menninger Department of Psychiatry & Behavioral Sciences, Baylor
              College of Medicine, Houston, TX, 2007-present
           b. Associate Professor, Department of Medicine, Baylor College of Medicine,
              Houston, TX, 2002-present
           c. Acting Director, South Central Mental Illness Research, Education, & Clinical
              Center (MIRECC), 2012-present, annual budget $2,500,000
           d. Associate Director and Chief, Health Services Delivery & Organization, Houston
              Center for Quality of Care & Utilization Studies: A Veterans Affairs Health
              Services Research & Development Center of Excellence, Michael E. DeBakey
              Veterans Affairs Medical Center, Houston, TX, 2003-present, annual budget
              $10,000,000
           e. Psychiatry Director, Advanced Fellowship Program in Mental Illness Research
              and Treatment, 2001-present
           f. Co-Chief, Education & Mentoring, Houston Center for Quality of Care &
              Utilization Studies: A Veterans Affairs Health Services Research & Development
              Center of Excellence, Michael E. DeBakey Veterans Affairs Medical Center,
              Houston, TX, 2007-2008
           g. Associate Director, Research Training, South Central Mental Illness Research,
              Education, & Clinical Center (MIRECC), 2004-2012, annual budget $2,500,000
           h. Associate Professor, Menninger Department of Psychiatry & Behavioral Sciences,
              Baylor College of Medicine, Houston, TX, 1999-2007
           1. Physician Investigator, Houston Veterans Affairs Medical Center, Houston Center
              for Quality of Care & Utilization Studies: A Veterans Affairs Health Services
              Research & Development Center of Excellence, Houston, TX, 1999-2003.
          j. Assistant Professor, Department of Psychiatry & Behavioral Sciences, Baylor
              College of Medicine, Houston, TX, 1992-1999




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