                                                                             ACCEPTED
                                                                        03-14-00726-CV
                                                                               4336477
                                                              THIRD COURT OF APPEALS
                                                                         AUSTIN, TEXAS
                                                                    3/2/2015 3:26:58 PM
                                                                      JEFFREY D. KYLE
                                                                                 CLERK
               NO. 03-14-00726-CV

                                                   FILED IN
      IN THE COURT OF APPEALS FOR THE 3rd AUSTIN,
                                          COURT OF APPEALS
                                                  TEXAS
           THIRD DISTRICT OF TEXAS
                                             3/2/2015 3:26:58 PM
                                               JEFFREY D. KYLE
                                                     Clerk
TEXAS SAN MARCOS TREATMENT CENTER, L.P. d/b/a
       SAN MARCOS TREATMENT CENTER
                  Appellant

                        v.

              VERONICA PAYTON
                  Appellee


        On Appeal from Hays County, Texas,
            428th Judicial District Court
         Trial Court Case Number: 13-2658


          APPELLANT’S REPLY BRIEF


                      Ryan L. Clement
                      Texas Bar No. 24036371
                      SERPE JONES ANDREWS
                      CALLENDER & BELL, PLLC
                      2929 Allen Parkway, Suite 1600
                      Houston, Texas 77019
                      Telephone: (713) 452-4400
                      Facsimile: (713) 452-4499
                      Email: rclement@serpejones.com

                      Attorneys for Appellant,
                      Texas San Marcos Treatment Center,
                      L.P. d/b/a San Marcos Treatment Center

ORAL ARGUMENT RESPECTFULLY REQUESTED
                                        TABLE OF CONTENTS


SUMMARY OF REPLY .........................................................................................1

ARGUMENT IN REPLY .......................................................................................2

   1. Dr. Reid’s Report Provides No Relevant Facts ........................................... 2

   2. Dr. Reid Fails to Identify The Applicable Standards of Care or
      Alleged Related Breaches .............................................................................. 6

   3. Dr. Reid’s Causation Opinions are Conclusory and Founded on
      Speculation....................................................................................................11

CONCLUSION AND PRAYER ...........................................................................14




                                                         ii
                                   TABLE OF AUTHORITIES

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

Austin Heart, P.A. v. Webb,
 228 S.W.3d 276 (Tex. App.—Austin 2007, no pet.) ........................................9, 13
Baylor All Saints Med. Ctr. v. Martin,
 340 S.W.3d 529 (Tex. App.—Fort Worth 2011, no pet.) .....................................11
Bowie Mem'l Hosp. v. Wright,
 79 S.W.3d 48 (Tex. 2002) .......................................................................... 4, 5, 7, 9
Earle v. Ratliff,
 998 S.W.2d 882 (Tex. 1999) ...................................................................................4
Gray v. CHCA Bayshore L.P.,
 189 S.W.3d 855 (Tex. App.—Houston [1st Dist.] 2006, no pet.) ..........................9
Hebert v. Hopkins,
 395 S.W.3d 884 (Tex. App.—Austin 2013, no pet.) ................................. 9, 14, 15
Jelinek v. Casas,
  328 S.W. 3d 526 (Tex. 2010) ......................................................... 5, 11, 12, 13, 14
Kingwood Pines Hosp., LLC v. Gomez,
 362 S.W.3d 740 (Tex. App.—Houston [14th Dist.] 2011, no pet.) ............... 11, 13
Kocurek v. Colby,
 No. 03-13-00057-CV, 2014 WL 4179454 –5
 (Tex. App.—Austin Aug. 22, 2014, no pet.) ........................................................12
Kuykendall v. Dragun,
 No. 11-05-00230-CV, 2006 WL 728068
 (Tex. App.—Eastland Mar. 23, 2006, pet. denied) .................................................5
McKenna Mem'l Hosp., Inc. v. Quinney,
 No. 03-06-00119-CV, 2006 WL 3246524
 (Tex. App.—Austin Nov. 10, 2006, pet. denied)....................................................7


                                                      iii
Regent Care Ctr. of San Antonio II, Ltd. P'ship v. Hargrave,
 300 S.W.3d 343 (Tex. App.—San Antonio 2009, pet. denied) ............................14
Russ v. Titus Hosp. Dist.,
 128 S.W.3d 332 (Tex. App. – Texarkana 2004, pet. denied) .................................7
Shenoy v. Jean,
 No. 01-10-01116-CV, 2011 WL 6938538
 (Tex. App.—Houston [1st Dist.] Dec. 29, 2011 .....................................................4
Smith v. Wilson,
 368 S.W.3d 574 (Tex. App.—Austin 2012, no pet.) ..................... 6, 11, 12, 14, 15
Strom v. Mem'l Hermann Hosp. Sys.,
  110 S.W.3d 216 (Tex. App.—Houston [1st Dist.] 2003, pet. denied) ...................7
Taylor v. Fossett,
 320 S.W.3d 570 (Tex. App.—Dallas 2010, no pet.)...............................................4
Texarkana Nursing & Healthcare Center, LLC v. Lyle,
 388 S.W.3d 314 (Tex. App. – Texarkana 2012, no pet.) ..................................7, 11
W.B.M. Mgmt. Co. v. Flores,
 No. 07-14-00008-CV, 2014 WL 1691362 –6
 (Tex. App.—Amarillo Apr. 25, 2014, no pet.) .......................................................4




                                                 iv
                               NO. 03-14-00726-CV


                    IN THE COURT OF APPEALS FOR THE
                         THIRD DISTRICT OF TEXAS


           TEXAS SAN MARCOS TREATMENT CENTER, L.P. d/b/a
                  SAN MARCOS TREATMENT CENTER
                             Appellant

                                        v.

                              VERONICA PAYTON
                                  Appellee


                       On Appeal from Hays County, Texas,
                           428th Judicial District Court
                        Trial Court Case Number: 13-2658


                         APPELLANT’S REPLY BRIEF


TO THE HONORABLE JUSTICES OF THE THIRD COURT OF APPEALS:

      Appellant Texas San Marcos Treatment Center, L.P. d/b/a San Marcos

Treatment Center (“San Marcos Treatment Center” or “Appellant”) files this Reply

Brief, and in support thereof, would respectfully show the Court the following:

                            SUMMARY OF REPLY

      Dr. Reid’s report contains no relevant factual information. Instead, Dr.

Reid’s report relies on vague statements, generalizations, inferences and also

speculation to address the required statutory elements of an expert report under
Chapter 74. Dr. Reid’s opinions are conclusory, as evidenced by his express

acknowledgement that he lacks specific factual information central to his opinions

and his reliance on vague statements, generalizations, inferences and speculation to

support his conclusions.

      Consequently, Dr. Reid’s report does not satisfy the requirements under

Chapter 74 or the standards established by Palacios and its progeny because the

report fails to provide enough information to fulfill the two purposes of an expert

report under the statute as it fails to inform San Marcos Treatment Center of the

specific conduct called into question and also failed to provide the trial court with a

basis to conclude that the claims have merit.

                             ARGUMENT IN REPLY

   1. Dr. Reid’s Report Provides No Relevant Facts

      On page 5 of Dr. Reid’s report, a “brief narrative” is supplied.            This

paragraph discusses the “facts” upon which Dr. Reid’s various opinions concerning

the applicable standards of care and alleged breaches rest.         The only “facts”

provided by Dr. Reid in his report concerning events preceding the assault are as

follows:

      At the time of the assault, Veronica Payton (victim) was an aide on
      the boys’ unit (patients apparently about 11 years old and up) of San
      Marcos Treatment Center (SMTC). Leroy Simon (assailant) was a 17
      year-old, “stocky” male patient with a long history of assaultive
      behavior, sex offenses, fights, borderline intellectual function or mild
      mental retardation, and chronic symptoms of intermittent explosive

                                          2
      disorder, lack of impulse control, oppositional defiance disorder, and
      other mental and behavioral problems, most of all of which were
      known to SMTC prior to January 2, 2012. Mr. Simon was housed on
      the boys’ unit to which Ms. Payton was assigned.

      During the evening of January 2, 2012, Mr. Simon asked to be
      escorted off the unit to do his laundry. There were two staff, both
      female, assigned to the boys’ unit at the time, including Ms. Payton.
      Ms. Payton agreed to accompany him to the functioning laundry, and
      did so.

      (CR 36).

      Dr. Reid provides no additional facts concerning the events leading up to the

assault in his report. Dr. Reid provides no facts concerning the facility’s staffing

requirements or the patient-to-staff ratio. Dr. Reid provides no facts concerning

the education, training, or instruction provided to the facility’s staff in general, or

Ms. Payton specifically. Dr. Reid provides no facts concerning the information or

notification provided to staff concerning the patient’s past mental health history.

Dr. Reid provides no facts concerning the process of the patient’s admission to the

facility and/or his placement on the unit. Dr. Reid provides no facts concerning the

care and treatment ordered for this patient (i.e. the observation level and/or any

limitations or restrictions) by his admitting physician. Dr. Reid provides no facts

concerning the patient’s admission and care while at San Marcos Treatment Center

and his interactions with patients and/or staff aside from the assault alone. In the

absence of any relevant facts, Dr. Reid, nonetheless, offers opinions as to the



                                          3
standards of care and alleged breaches with regard to all the aforementioned

subject matters.

      An expert, however, must explain the basis for his statements to link his

conclusions to the facts and not merely state conclusions. Bowie Mem’l Hosp. v.

Wright, 79 S.W.3d 48, 52 (Tex. 2002) (quoting Earle v. Ratliff, 998 S.W.2d 882,

890 (Tex. 1999)).

      Appellate courts recognize that an expert’s failure to provide any facts in the

report to support his or her conclusions on standard of care, breach, and causation

prevents the trial court from concluding the plaintiff’s claims have merit. See

Taylor v. Fossett, 320 S.W.3d 570, 578 (Tex. App.—Dallas 2010, no pet.) (finding

trial court abused its discretion in denying physician’s motion to dismiss since

expert report provided only conclusory opinions without supporting facts); W.B.M.

Mgmt. Co. v. Flores, No. 07-14-00008-CV, 2014 WL 1691362, *5–6 (Tex. App.—

Amarillo Apr. 25, 2014, no pet.) (holding that expert report was not a good faith

effort to provide a fair summary of his opinions and warranted dismissal since

expert failed to provide facts to support his conclusion); Shenoy v. Jean, No. 01-

10-01116-CV, 2011 WL 6938538, *6 (Tex. App.—Houston [1st Dist.] Dec. 29,

2011, pet. denied) (holding that “an expert report that merely asserts that a

defendant physician’s breach caused the plaintiff’s injury without providing a




                                         4
factual basis does not provide the trial court with the information necessary to

evaluate the merits of the plaintiff’s claim.”).

      The failure to set forth facts supporting an expert’s opinions on the standard

of care, breach, and causation is not an argument based on “semantics.”

Kuykendall v. Dragun, No. 11-05-00230-CV, 2006 WL 728068, *3 (Tex. App.—

Eastland Mar. 23, 2006, pet. denied). Rather, the facts are “vital” in determining

whether the plaintiff’s claims have merit. Id.

      As the Texas Supreme Court held in Jelinek v. Casas, 328 S.W. 3d 526

(Tex. 2010), when the report in question lacks any explanation linking the expert’s

conclusion to the relevant facts, the trial court abuses its discretion in denying the

defendant’s motion to dismiss. Id. at 540 (citing Bowie Mem’l, 79 S.W.3d at 52).

      Appellee’s attempts to draw comparisons between the sufficiency of Dr.

Reid’s report and those provided in other cases fall short. See Appellee’s Brief at

36-38. The primary distinction is that there were relevant facts provided in the

other reports resulting in adequate specificity. However, the report of Dr. Reid

fails to provide any relevant facts or the requisite specificity.

      Because Dr. Reid’s report fails to provide any relevant facts, the opinions

are purely conclusory and the report does not represent a good faith effort. If an

expert report contains only conclusions about the statutory elements in section

74.351, the trial court has “no discretion but to conclude ... that the report does not


                                            5
represent a good-faith effort” to satisfy the statute. Smith v. Wilson, 368 S.W.3d

574, 577 (Tex. App.—Austin 2012, no pet.) (citing American Transitional Care

Ctrs. of Tex., Inc. v. Palacios, 46 S.W.3d 873, 877, 880 (Tex. 2001)).

      The trial court abused its discretion in holding that Dr. Reid’s report was

adequate and in denying San Marcos Treatment Center’s motion to dismiss under

Chapter 74 because Dr. Reid’s report fails to link relevant facts to his conclusions

on any of the required elements of a Chapter 74 expert report.

   2. Dr. Reid Fails to Identify The Applicable Standards of Care or Alleged
      Related Breaches

      On page 1 of his report, under the heading “Duties, Standards and Breaches

Thereof”, Dr. Reid offers the following conclusory opinions concerning the

applicable standards of care:

      That employer (SMTC), by itself and through its various parts or
      assigns, had duties to its unit employee Ms. Payton, which included,
      but may not have been limited to, (a) adequate staffing and staff
      support in her work environment (sufficient to meet reasonable levels
      of staff safety, as well as patient safety and care), (b) adequate
      training with regard to recognizing and managing situations that
      might arise in which her safety could be compromised, (c) adequate
      notification of work situations or persons in her work environment
      that could reasonably present a danger to her or others, (d) adequate
      care in avoiding or declining admission of patients/clients who are
      inappropriate for the unit on which she worked, and (e) elimination or
      amelioration of reasonably known risks to her and other staff or
      patients created by patients/clients who are admitted to and housed on
      the unit on which she worked.

      (CR 32-33).


                                         6
      As this Court is aware, whether a defendant healthcare provider breached its

duty cannot be determined absent specific information about what the defendant

should have done differently. Russ v. Titus Hosp. Dist., 128 S.W.3d 332, 341-42

(Tex. App. – Texarkana 2004, pet. denied) (quoting Palacios, 46 S.W.3d at 880)).

In other words, one must be able to determine from the report what was required

by the standard of care, which requires “specific information about what the

defendant should have done differently”.      Texarkana Nursing & Healthcare

Center, LLC v. Lyle, 388 S.W.3d 314 (Tex. App. – Texarkana 2012, no pet.)

(quoting Palacios, 46 S.W.3d at 880)). Identifying the standard of care is critical

because whether a defendant breached its duty cannot be determined absent

specific information about what the defendant should have done differently.

McKenna Mem'l Hosp., Inc. v. Quinney, No. 03-06-00119-CV, 2006 WL 3246524,

*4 (Tex. App.—Austin Nov. 10, 2006, pet. denied) (mem. op.) (citing to Bowie

Mem’l Hosp. v. Wright, 79 S.W.3d 48, 53 (Tex. 2002) (per curium); Russ, 128

S.W.3d at 343). Moreover, the standard of care is defined by what an ordinarily

prudent health-care provider would have done under the same or similar

circumstances. See id. (citing to Palacios, 46 S.W.3d at 880; Strom v. Mem'l

Hermann Hosp. Sys., 110 S.W.3d 216, 222 (Tex. App.—Houston [1st Dist.] 2003,

pet. denied)).




                                        7
      Dr. Reid’s opinions concerning the standards of care provide nothing more

than vague, generalized statements that are wholly reliant on inferences because

they are devoid of any factual information and lack the specificity required under

the statute. In summary, Dr. Reid’s opinions provide no information as to what the

standard of care applicable to San Marcos Treatment Center is in this context and

under the facts.

      Using the first standard of care expressed by Dr. Reid as an example (though

the others are equally as deficient), Dr. Reid opines that San Marcos Treatment

Center had a duty to provide “adequate staffing and staff support” and “failed to

provide adequate staffing to meet the foreseeable needs for patient care and staff

and patient safety.” (CR 32-33). However, Dr. Reid also openly acknowledges in

his report that, “Specific staffing data from SMTC is not yet available to me.” (CR

33). Thus, his statement as to the standard of care for adequate staffing is without

any factual support and, therefore, because his conclusions are not linked to any

relevant facts his opinion as to this standard of care is purely conclusory. All of

Dr. Reid’s opinions concerning the standards of care and breach suffer from the

same failure to link any relevant factual information to the opinions expressed or

provide sufficient specificity as to the specific conduct called into question.

Because there is no link to any relevant factual information, all of the Dr. Reid’s

opinions concerning the standards of care are expressed in vague, general terms


                                         8
and lack the specificity required by the statute. None of the standards of care

and/or alleged breaches offered by Dr. Reid are sufficiently tied to any facts or

provide any information beyond vague, general statements and, therefore, Appellee

has failed to provide an adequate expert report supportive of any of her legal

theories.

      In so far as Dr. Reid makes any attempt to link any “facts” to his

conclusions, Dr. Reid merely refers to materials listed under “Sources Reviewed

and/or Relied Upon.” (CR 37-38). However, those materials are neither described

within his report nor are they attached and incorporated. Thus, Dr. Reid’s opinions

rely repeatedly on inferences as to the contents of those materials cited and

whether or not support they support his conclusions.          The only information

relevant to determining whether a report complies with the statute is “within the

four corners of the document.” Palacios, 46 S.W.3d at 878. This requirement

precludes a court from filling gaps in a report by drawing inferences or guessing as

to what the expert likely meant or intended. Austin Heart, P.A. v. Webb, 228

S.W.3d 276, 279 (Tex. App.—Austin 2007, no pet.) (citing Bowie Mem’l, 79

S.W.3d at 53; Gray v. CHCA Bayshore L.P., 189 S.W.3d 855, 859 (Tex. App.—

Houston [1st Dist.] 2006, no pet.)). This Court declared, “neither the trial court nor

this Court may infer additional opinions or underlying facts to fill in gaps that the

report itself leaves open.” Hebert v. Hopkins, 395 S.W.3d 884, 890 (Tex. App.—


                                          9
Austin 2013, no pet.). Because Dr. Reid provides no relevant facts, his report is

fatally reliant on inferences for any support and naturally requires that gaps be

filled in to complete and support his conclusions. However, Dr. Reid’s report’s

reliance on inference is impermissible under the statute and the interpretive legal

precedent.

      Appellee misunderstands that purpose for which Appellant referred to

materials outside the four corners of the report. See Appellee’s Brief at 25. The

materials referenced were not provided for this Court’s consideration of their

substance or contents, but rather, to provide a description of available materials in

Ms. Payton’s personnel file as an illustration of Dr. Reid’s reliance on inference

because he fails to describe or detail what particular contents he reviewed in her

personnel file, what materials he anticipated finding in her personnel file, and how

the absence of specifically described items support his opinions. Dr. Reid offers

no such description but, instead, merely offers:

      Review of Ms. Payton’s SMTC personnel file and relevant portions of
      the SMTC Employee Handbook reveals no indication that Ms. Payton
      received any SMTC training regarding her safety in the workplace,
      and particularly none related to recognizing potentially dangerous
      patients, recognizing potentially assaultive patients, or protection
      herself from patient assault.

      (CR 33).

      Dr. Reid’s vague statement, which lacks any factual reference to specific

materials (present or absent), naturally required the trial court to infer as to the

                                         10
materials that should be present but were not found and to then fill in the gap by

making assumptions.

      Dr. Reid’s vague, generalized statements concerning the standards of care

(without any reference to relevant facts) are similar to those found in other reports

served in assault cases where similar reports were likewise found to be deficient.

E.g. Lyle, 388 S.W.3d 314; Baylor All Saints Med. Ctr. v. Martin, 340 S.W.3d 529

(Tex. App.—Fort Worth 2011, no pet.); Kingwood Pines Hospital, LLC, v. Gomez,

362 S.W.3d 740 (Tex. App.––Houston [14th Dist.] 2011, no pet.).

      Dr. Reid’s report fails to identify the applicable standards of care in

connection with any factual information or discuss any related alleged breaches

but, instead, relies on vague, general statements and inferences to reach purely

conclusory opinions as to these required elements.

   3. Dr. Reid’s Causation Opinions Are Conclusory and Founded on
      Speculation

      As this Court recently noted in Smith v. Wilson, an expert must explain, with

supporting facts, how the defendant’s alleged breach in the standard of care caused

the injury in question. Smith, 368 S.W.3d at 577–78. A conclusory statement on

causation is wholly insufficient. Id.

      Further, as the Supreme Court has recognized, “[a]n expert cannot simply

opine that the breach caused the injury. … Instead, the expert must go further and

explain, to a reasonable degree, how and why the breach caused the injury based

                                         11
on the facts presented.” Jelinek, 328 S.W.3d at 539–40. (emphasis added).

Without this explanation, the trial court cannot conclude the claims have merit. Id.;

see also Smith, 368 S.W.3d at 578 (Austin Court reversing trial court’s denial of

motion to dismiss after finding report failed to provide facts explaining the causal

link between alleged breach and the occurrence or injury); Kocurek v. Colby, No.

03-13-00057-CV, 2014 WL 4179454, *4–5 (Tex. App.—Austin Aug. 22, 2014, no

pet.).

         This Court has also stated that an expert report must explain how taking the

suggested measures would have prevented the particular injuries complained of.

Smith, 368 S.W.3d at 577-578.

         Appellee’s reliance on UHS of Timberlawn, Inc. is misapplied.           See

Appellee’s Brief at 34-36. While assault may not be a medical condition, this does

not eliminate the required element of causation and how that element must be

sufficiently addressed within an expert report served pursuant to Chapter 74. As

discussed later in Appellee’s Brief, causation remains a required element in an

expert report in assault cases. See id. at 35-36. However, Dr. Reid’s report fails to

adequately address causation.

         Concerning causation, Dr. Reid opines, “But for one or more of the breaches

by SMTC, summarized in items 2-6, it is more likely than not that the January 2,

2012, assault would not have occurred, and thus the above damages to Ms. Payton,


                                          12
would not have occurred.” (CR 035). However, Dr. Reid’s causation opinion is

purely conclusory because it fails to explain how and why the alleged failures by

San Marcos Treatment Center resulted in the assault. Kingwood Pines Hosp., LLC,

362 S.W.3d at 750. In short, Dr. Reid’s conclusions as to causation amount to

nothing more than an ipse dixit, which the Supreme Court has consistently

criticized. Jelinek, 328 S.W. 3d at 539.

      Dr. Reid’s report offers no explanation, with supporting facts, how San

Marcos Treatment Center’s alleged breach (of an unidentified standard of care)

caused Ms. Payton’s injuries, or for that matter, caused her to decide to go to the

laundry room with the patient alone.            Dr. Reid offers nothing more than

speculation and conjecture in his report to support his conclusions as to causation.

In short, Dr. Reid opines that Ms. Payton would not have escorted the patient alone

on that occasion. (CR 35). In support of this speculative opinion, Dr. Reid refers

to a statement by Ms. Payton. However, the statement is never described within

his report and is also not attached is support of his opinion.           This again

demonstrates Dr. Reid’s reliance on inference, which this Court has correctly noted

is specifically precluded. Austin Heart, P.A., 228 S.W.3d at 279. Additionally, it

is also pure speculation and conjecture for Dr. Reid to opine as to the state of mind

of Ms. Payton on January 2, 2012 and what she would or would not have done in

relation to this patient under varying scenarios.


                                           13
      Conclusory (and speculative) statements on causation, like those offered in

Dr. Reid’s report, will not satisfy Chapter 74’s expert report requirements. See

Palacios, 46 S.W.3d at 875; Regent Care Ctr. of San Antonio II, Ltd. P'ship v.

Hargrave, 300 S.W.3d 343, 346 (Tex. App.—San Antonio 2009, pet. denied).

Since Dr. Reid only offered conclusory opinions concerning the statutory elements

required of an expert report, the trial court had “no discretion but to conclude ...

that the report does not represent a good-faith effort” to satisfy the statute. Smith,

368 S.W.3d at 577. The trial court’s ruling amounted to an abuse of discretion. Id.

                           CONCLUSION & PRAYER

      To constitute a good faith effort, the report must, at a minimum: (1) inform

the defendant of the specific conduct called into question; and (2) provide a basis

for the trial court to conclude the claims have merit. Palacios, 46 S.W.3d at 879.

“A report that merely states the expert’s conclusions about the standard or care,

breach, and causation does not fulfill the two purposes of a good-faith effort.”

Hebert, 395 S.W.3d at 890 (quoting Jelinek, 328 S.W.3d at 539).

      Because Dr. Reid provides absolutely no facts to support his conclusions on

the applicable standard of care, breach, and causation he also fails to inform San

Marcos Treatment Center of the specific conduct called into question. Similarly,

because Dr. Reid fails to link his conclusions on the applicable standard of care,

breach, and causation to any relevant facts, but instead relies on vague, general


                                         14
statements, inferences and speculation, his report also fails to provide a basis for

the trial court to conclude the claims have merit. As such, the trial court abused its

discretion in finding the report was sufficient. See Smith, 368 S.W.3d at 577.1 As a

result, San Marcos Treatment Center requests that the Court reverse the trial

court’s order.

       WHEREFORE, PREMISES CONSIDERED, San Marcos Treatment Center

respectfully requests that this Court reverse the trial court’s order denying

Appellant’s Chapter 74 Motion to Dismiss and remand to the trial court with an

order that all claims and causes of action asserted by Appellee against San Marcos

Treatment Center be dismissed with prejudice and that San Marcos Treatment

Center be awarded its reasonably attorneys’ fees and costs as allowed by Chapter

74 of the Texas Civil Practices and Remedies Code. San Marcos Treatment Center

further prays for such other relief that it may be justly entitled.




1
   Also, without the relevant facts, the trial court either misapplied the law regarding the
sufficiency of expert report or inferred additional underlying facts to fill in gaps that the report
itself left open. This amounts to an abuse of discretion. See Hebert, 395 S.W.3d at 890.

                                                15
                                     Respectfully submitted,

                                     SERPE, JONES, ANDREWS,
                                     CALLENDER & BELL, PLLC


                                     By:   /s/ Ryan L. Clement
                                           Ryan L. Clement
                                           Texas Bar No. 24036371
                                           rclement@serpejones.com
                                     America Tower
                                     2929 Allen Parkway, Suite 1600
                                     Houston, Texas 77019
                                     Telephone: (713) 452-4400
                                     Facsimile: (713) 452-4499

                                     Attorneys for Appellant,
                                     Texas San Marcos Treatment Center,
                                     L.P. d/b/a San Marcos Treatment Center



                     CERTIFICATE OF COMPLIANCE

       I hereby certify that the foregoing Reply Brief for Appellant is computer
generated, has been prepared in a conventional typeface no smaller than 14-point
for text and 12-point for footnotes, contains 3,405 words according to word count
function of the computer program used to prepare this Reply Brief, excluding any
parts exempted by TEX. R. APP. P. 9.4(i)(1), and otherwise complies with Texas
Rule of Appellate Procedure 9.4.


                                     /s/ Ryan L. Clement
                                     Ryan L. Clement




                                       16
                       CERTIFICATE OF SERVICE

      I hereby certify that a true and correct copy of the above and foregoing
instrument has been forwarded to all known counsel of record in accordance with
the Texas Rules of Appellate Procedure on this the 2nd day of March, 2015.

      Adam S. Ward
      Aaron Allison
      Keely Allison Ward
      Allison & Ward
      2001 N. Lamar Blvd.
      Austin, Texas 78705-4907




                                    /s/ Ryan L. Clement
                                    Ryan L. Clement




                                      17
