Steve F. Montoya, Jr., M.D., West Texas Renal Care and West Texas Nephrology v. San Angelo Community Medical Center and Kirk Brewer, M.D.

ACCEPTED
03-16-00510-CV
13915805
THIRD COURT OF APPEALS
AUSTIN, TEXAS
11/21/2016 5:37:30 PM
JEFFREY D. KYLE
CLERK
No. 03-16-00510-CV
IN THE COURT OF APPEALS
FOR THE THIRD DISTRICT OF TEXAS FILED IN
3rd COURT OF APPEALS
AUSTIN, TEXAS AUSTIN, TEXAS
______________________________________________________________________________
11/21/2016 5:37:30 PM
JEFFREY D. KYLE
STEVE F. MONTOYA, JR., M.D. Clerk
WEST TEXAS RENAL CARE
AND WEST TEXAS NEPHROLOGY
Appellants
v.
SAN ANGELO COMMUNITY MEDICAL CENTER
AND KIRK BREWER, M.D.
Appellees.
____________________________________________________________________________
From the 119th Judicial District Court
Tom Green County, Texas
Cause No. B-15-0285-C
______________________________________________________________________________

APPELLANTS BRIEF
______________________________________________________________________________

Paul Craig Laird II
SBOT #11795420
Paul Craig Laird II Law Firm, PLLC
800 West Airport Freeway
Suite 800, LB 6015
Irving, Texas 75062
Telephone: (972) 554-0929
Facsimile: (214) 260-4935
pcl880@aim.com
Attorney for Appellants
Paul Smith
SBOT #00791692
800 West Airport Freeway
Suite 860
Irving, Texas 75062
Telephone: (214) 922-0220
Facsimile: (214) 922-0225
paulsmith214@gmail.com
Attorney for Appellants

ORAL ARGUMENT REQUESTED
 IDENTITY OF PARTIES AND COUNSEL

The following is a complete list of the names and addresses of all parties to
the Trial Court’s Final Judgment and their counsel of record:

APPELLANTS

1. The Appellants are Steve F. Montoya, Jr., M.D. (an individual); West
Texas Renal Care (a Texas Corporation) and West Texas Nephrology (a
Texas Corporation)

2. Appellants are represented by the following counsel of record:

Paul Craig Laird II, Paul Craig Laird II Law Firm, PLLC, 800 West
Airport Freeway, Suite 800 Irving, Texas 75062 and Paul Smith, 800
West Airport Freeway, Suite 880, Irving, Texas 75062.

APPELLEES

1. Appellees are San Angelo Community Medical Center (a Delaware
Corporation authorized to do business in the State of Texas) and Kirk
Brewer, M.D. (an individual).

2. Appellee Kirk Brewer, M.D. is represented by the following counsel of
record:

Robert B. Wagstaff
McMahon Surovik Suttle, P.C.
400 Pine Street, Suite 800
Abilene, Texas 79601

Appellee San Angelo Community Medical Center is represented by the
following counsel of record:

James J. McGoldrick
Jones Carr McGoldrick, LLP
5910 N. Central Expressway, Suite 1700
Dallas, Texas 75206

ii
 TABLE OF CONTENTS

IDENTITY OF PARTIES AND COUNSEL….……………………………………i

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

INDEX OF AUTHORITIES…………………….…………………..v, v, vi, vii, viii

STATEMENT OF THE CASE..……………………………………………….….1

ISSUES PRESENTED…..……...……………………………………………..…..2

1. The trial court erred in granting the Motion to Dismiss per the Texas
Citizens Participation Act Tex.Civ.Prac. & Rem. Code §§27.001 et. seq.
and the final Order of Dismissal pursuant to Tex.R.Civ.Proc. 91(a)
dismissing all causes of action against Kirk Brewer, M.D.

2. The trial court erred in granting San Angelo Community Medical Center
a Summary Judgment based on the court’s rulings for Kirk Brewer, M.D.
when Plaintiffs raised sufficient issues of law and evidentiary facts to
deny the Defendants Motion for Summary Judgment.

3. The Defendant Dr. Brewer’s Motion to Dismiss under Tex.R.Civ.Proc.
91(a) and Tex.Civ.Prac. & Rem. Code §§27.001 et. seq. was untimely
filed and untimely heard by the Court.

STATEMENT OF FACTS……………………………………………………….3

SUMMARY OF ARGUMENT…………………………………………………..5

ARGUMENT……………………...……………………………………….…......7

CONCLUSION AND PRAYER………………………………………………...50

CERTIFICATE OF COMPLIANCE……………………….…………………….51

CERTIFICATE OF SERVICE…………………………………………………..51

APPENDIX…………………………………………..………………………52, 53

iii
 INDEX OF AUTHORITIES

CASES Page(s)

Armstrong v. Hixon,
206 S.W.3d 175 (Tex. App. Corpus Christi 2006)………………………...43

Bank One, Texas, N.A. v. Stewart,
967 S.W.2d 419, 430-31 (Tex.App. Houston [14 Dist.] 1998, pet.
denied)…………………………………………………………………30, 34

Bart Turner & Assocs. v. Krenke,
No. 3:13–CV–2921–L, 2014 WL 1315896……………………………….35

Better Business Bureau of Metropolitan Dallas, Inc. v. Ward,
401 S.W.3d 440, 443 (Tex.App.—Dallas 2013, pet. denied)……………..20

Bliss v. NRG Industries,
162 S.W.3d 434 (Tex. App. Dallas 2005)………………………………..43

Boudreau v. Fed. Trust Bank,
115 SW3d 740, 743 (Tex. App.- Dallas 2003, pet. Denied)……………....45

Bourland v. State of Texas,
528 S.W.2d 350, 354 (Tex.Civ.App.—Austin 1975, writ ref'd n.r.e.)…….36

Boyles v. Kerr,
855 S.W.2d 593, 601 (Tex.1993)………………………………………….35

Brownlee v. Brownlee,
655 S.W. 2d 111, 112 (Tex. 1984)……………………………………..….46

Cedyco Corp. v. Whitehead,
253 S.W.3d 877 (Tex. App. Beaumont 2008)…………………………......43

Cheniere Energy, Inc. v. Lotfi,
449 S.W.3d 210, 214 (Tex.App.—Houston [1st Dist.] 2014, no pet.)……18

iv
City of Dallas v. Sanchez,
494 S.W.3d 722, 724 (2016)…………………………..……6, 13, 16, 29, 43

City of Houston v. Clear Creek Basin Auth.,
589 SW29 671, 678 n.5 (Tex. 1979) Tex.R.Civ. 166a(a)……………26, 43

City of Keller v. Wilson,
168 SW3d 802, 816 (Tex. 2005)………………………………..…….…..44

Drake Ins. Co. v. King,
606 S.W.2d 812, 817 (Tex.1980)…………………………………………39

Farlow v. Harris Methodist Fort Worth Hosp.,
284 S.W.3d 903, 910 (Tex.App. Fort Worth,2009)……………………….30

G & H Towing Co. v. Magee,
347 SW3d 293, 296-97 (Tex.2011)…………………………………….26, 43

Gibson v. Methodist Hosp.,……………………………………………….…27, 43
822 SW2d 95, 17 U.C.C. Rep. Serv. 2d 81 (Tex. App.-Houston [1st Dist.}
1991, writ denied).

Hicks v. Group & Pension Administrators, Inc.,
473 S.W.3d 518, 529 (Tex.App.-Corpus Christi, 2015)…………………..20

In re E.I. DuPont de Nemours & Co
136 S.W.3d 218, 223 (Tex. 2004) (per curiam)……………………..……19

In Re Estate of Check,
438 SW3d at 836…………………………………………………….……..48

In Re Garth,
214 S.W.3d 190, 192 (Tex.App. Beaumont, 2007)…………….…………32

In Re Lipsky,
460 S.W.3d 579, 591 (Tex. 2015)…….…6, 14, 17, 18, 26, 28, 33, 43, 48, 50

In Re Memorial Hermann Hospital System,
464 S.W. 3d 686 (2015)………………5, 6, 12, 13, 14, 16, 25, 26, 29, 32, 43

v
Kirby v. Cruce,
688 S.W.2d 161, 164 (Tex.App.—Dallas 1985, writ ref'd n.r.e.)………36

Lee Homes of Limestone County, Inc. v. First National Bank,
2015 WL 5175469, at *2 (Tex.App.-Waco 2015, no pet.)………………39

Limestone Prods. Distrib., Inc. v. McNamara,
71 SW3d 308, 311 (Tex. 2002)………………………………………..…45

Mann Frankfort Stein & Lipp Advisors, Inc. v. Fielding,
289, SW3d 844, 848 (Tex. 2009)………………………………………….43

Martin v. Commercial Metals Co.,
138 S.W.3d 619 (Tex. App. Dallas 2004)………………………………...43

Means v. ABCABCO, Inc.,
315 S.W.3d 209 (Tex. App. Austin 2010)……………………………..…..43

MMP, Ltd. v. Jones,
710 SW2d 59, 60 (Tex. 1986)…………………………………………….44

Montemayor v. Ortiz,
208 S.W.3d 627 (Tex. App. Corpus Christi 2006)…………………….….43

Myers v. Southwest Bank,
2014 WL 7009956, at *6 (Tex.App.-Fort Worth 2014, pet. denied)…39, 40

Nixon v. Mr. Prop. Mgmt. Co.,
690 SW2d 546, 548 (Tex. 1985)………………………………………..…44

Pacific Mut. Life Ins. Co. v. Ernst & Young & Co.,
10 S.W.3d 798, 809 (Tex.App. Dallas,2000)………………..…………33, 35

Paulsen v. Yarrell,
455 SW3d 192 (Tex.-App.-Houston [1st Dist.] 2014, no pet.)……………..48

Radio Station KSCS v. Jennings,
750 S.W.2d 760 (Tex. 1988)……………………….………………….45, 46

vi
Rhone-Poulenc, Inc. v. Steel,
997 SW2d 217, 223 (Tex. 1999)…………………………………………..45

Roark v. Allen,
633 S.W.2d 804, 810 (Tex .1982)………………………………………..35

Serafine v. Blunt,
466 S.W.3d 352, 393-94 (Tex.App.-Austin 2015, no pet.)…..….20, 21, 22

Sloat v. Rathbun,
2015 WL 6830927, at *6-7 (Tex.App.-Austin 2015, pet. filed)……18, 23, 24

Sosa v. Central Power & Light,
909 S.W.2d 893, 895 (Tex. 1995)………………………………………….39

Spectators' Communication Network Inc. v. Colonial Country Club,
253 F.3d 215, 220-221 (5th Cir. 2001)……………………………………..29

State v. Ford Motor Co.,
169 S.W.2d 504, 513-14 (Tex.Civ.App. 1943)……………...…………33, 34

Sw. Elec. Power Co. v. Grant,
73 S.W.3d 211, 215 (Tex. 2002)…………………….……………….….…47

Tello v. Bank One, N.A.,
218 S.W.3d 109, 113 (Tex. App.—Houston [14th Dist.] 2007, no pet.……47

Tervita, LLC v. Sutterfield,
482 S.W.3d 280, 286-87 (Tex.App.-Dallas 2015, pet. denied)……...…21, 22

Transcontinental Gas Pipeline Corp. v. Texaco, Inc.,
35 S.W.3d 658, 669 (Tex.App. Houston [1 Dist.] 2000, rev. denied)……31

Wooley v. Schaffer,
447 S.W.3d 71, 76 (Tex.App. Houston [14 Dist.] 2014)………….…..34, 35

RULES

Tex.Civ.Prac. & Rem. Code §§27.001 et. seq.
……………………………………….1, 2, 3, 6, 14, 16, 19, 20, 47, 48, 49, 50
vii
Tex.R.Civ.Proc. 91(a)……….………………………………….1, 2, 3, 6, 16, 47, 49

Tex.R.Civ. 166a(a)…………………………………………….………….27, 30, 43

Texas Rule of Civil Procedure 47(a)………………………………..……………35

42 USC 1395cc …………………………………………..………………………40

42 USC 1395cc(a)(1)(I)(iii)……………………………………………….40, 41, 42

viii
 STATEMENT OF THE CASE

This is an appeal of the final Order of Dismissal per the Texas Citizens

Participation Act Tex.Civ.Prac. & Rem. Code §§27.001 et. seq. (CR 194) and the

Tex.R.Civ.Proc. 91(a) final Order of Dismissal (CR 196) dismissing all causes of

action against Kirk Brewer, M.D. Both Orders were signed on February 8, 2016.

The Order at (CR 196) states that the “Motions are so intertwined as to not allow

segregation.” Thus argument of Dr. Montoya is on both Orders. This is also an

appeal of the Summary Judgment (CR 336) that granted San Angelo Community

Medical Center a Judgment dismissing all causes of action because of the orders

dismissing the claims against Kirk Brewer, M.D. The Summary Judgment was

signed on May 17, 2016 (CR 336) and a Motion for New Trial (CR 344) and an

Amended Motion for New Trial were filed by Plaintiffs (CR 349) and were denied

(CR 363).

The underlying causes of action in this case are:

1) Tortious Interference with current and prospective business/patient

relations; 2) Illegal and anticompetitive actions of the Defendants; 3) Defendants

defamation per se; 4) Malice; 5) Business Disparagement against the Plaintiffs; 6)

Restraint of Trade- (Monopolization/Attempted Monopolization/Conspiracy to

Monopolize); 7) Group Boycott and Conspiracy in Restraint of Trade; 8) Restraint

of Trade/Tortious Interference by violating EMTALA (Emergency Medicine

Page 1
Treatment and Action Labor Act) (CR 160 and 300).

Plaintiffs timely filed a Notice of Appeal (CR 367). Plaintiffs bring this

appeal seeking a reversal of the trial courts granting of the Motion to Dismiss and

the final Order of Dismissal of all causes of action against Kirk Brewer, M.D. and

the Summary Judgment denying all causes of action against San Angelo

Community Medical Center.

For ease all Plaintiffs will be referred to as “Dr. Montoya”, Defendant Kirk

Brewer, M.D. will be referred to as “Dr. Brewer” and San Angelo Community

Medical Center will be referred to as “SACMC”.

ISSUES PRESENTED
Appellant’s Issues-

1. The trial court erred in granting the Motion to Dismiss per the Texas Citizens

Participation Act Tex.Civ.Prac. & Rem. Code §§27.001 et. seq. and the final

Order of Dismissal pursuant to Tex.R.Civ.Proc. 91(a) dismissing all causes of

action against Kirk Brewer, M.D.

2. The trial court erred in granting San Angelo Community Medical Center a

Summary Judgment based on the court’s rulings for Kirk Brewer, M.D.

when Plaintiffs raised sufficient issues of law and evidentiary facts to deny

the Defendants Motion for Summary Judgment.

Page 2
3. The Defendant Dr. Brewer’s Motion to Dismiss under Tex.R.Civ.Proc. 91(a)

and Tex.Civ.Prac. & Rem. Code §§27.001 et. seq. was untimely filed and

untimely heard by the Court.

STATEMENT OF FACTS

Dr. Montoya is a nephrologist in practice at SACMC since 1981. He filed

suit against Dr. Brewer (the hospital Chief of Staff) and SACMC for various Anti-

Competitive actions on July 6, 2015 (CR 7). Defendant SACMC filed Special

Exceptions and an answer on August 14, 2015 (CR 17). The Court granted the

Special Exceptions on December 3, 2015 (CR 75). Dr. Montoya filed a Second

Amended Petition in response to the Court Order on the Special Exceptions (CR

103). Dr. Brewer filed a Motion to Dismiss pursuant to Tex. R. Civ. Proc. 91(a)

and Tex. Civ. Prac. Rem. Code §27.001 et.seq. (CR 76) and then filed an Amended

Motion to Dismiss (CR 119). Dr. Montoya filed a response to the Motion to

Dismiss (CR 94) and a Supplemental Response to the Motion to Dismiss (CR 177).

Dr. Montoya timely filed before the hearing on the Motion to Dismiss a

Fourth Amended Original Petition (CR 160). The Court granted the Motion to

Dismiss not distinguishing which rule the Court was using to grant the dismissal

(CR 194). The Court specifically said it could not segregate the claims (CR 196).

Page 3
 SACMC filed a untimely Motion to Dismiss (CR 202). SACMC filed a

Motion for Leave to file their Motion to Dismiss (CR 216). At the same time as

filing the Motion to Dismiss SACMC filed a Motion for Summary Judgment (CR

208) based only on the Court granting Dr. Brewer’s Motion to Dismiss. The Court

denied leave to file the Motion to Dismiss of SACMC (CR 335).

Dr. Montoya filed a response to SACMC’s Motion to Dismiss (CR 331) and

a response to the Motion for Summary Judgment (Supp. CR ______). Dr.

Montoya timely filed before the Summary Judgment hearing a Sixth Amended

Original Petition (CR 300). The Court granted the Motion for Summary Judgment

of SACMC based on the ruling of dismissing all claims against Dr. Brewer (CR

336).

Dr. Montoya requested findings of fact and conclusions of law (CR 337) to

allow the court to state the facts and law it relied upon since the Court could not

segregate its prior Order (CR 196) that is the basis of the Summary Judgment. The

court did not file any findings. Dr. Montoya filed a Motion for New Trial (CR

344) and an amended Motion for New Trial (CR 349) and a Motion to Reconsider

Dr. Brewer’s Motion to Dismiss. The Court signed an Order denying the First

Amended Motion for New Trial (CR 363). Dr. Montoya timely filed Notice of

Appeal (CR 367).

Page 4
 Summary of Argument

Dr. Montoya sued the hospital SACMC and Dr. Brewer based upon causes

of action that were approved by the Texas Supreme Court in the case of a doctor

suing the hospital where he had a medical practice. The exact same causes of

action that were approved by the Texas Supreme Court in In Re Memorial

Hermann Hospital System, 464 S.W. 3d 686 (2015) are Dr. Montoya’s causes of

action. The Court in In Re Memorial Hermann case stated “We hold that Dr.

Gomez’s petition presents multiple viable anti-competitive actions” Id at 713.

Attached as Exhibit 1 to the response to the Motion to Dismiss (CR 232) is a

certified copy of the pleading of Dr. Gomez from the In Re Memorial Hermann

case that was specifically approved by the Texas Supreme Court as viable causes

of action. The causes of action approved by the Texas Supreme Court in In Re

Memorial Hermann are:

(1) Business Disparagement
(2) Defamation
(3) Tortious Interference with Prospective Business Relations
(4) Improper Restraint of Trade under the Texas Fire Enterprises and
Anti-Trust Act of 1983.

Id. At 695-696

The Petitions (Original through Sixth Amended) (CR 7, 103, 143, 160, 272,

300) of Dr. Montoya followed and alleged the approved Petition of the Texas

Supreme Court In Re Memorial Hermann. Dr. Montoya is alleging the approved
Page 5
anti-competitive and defamation causes of action of the Texas Supreme Court, by a

physician and his entities in which he practices, suing the hospital where he

practices medicine, and Dr. Brewer as Chief of Staff for Anti-Competitive actions.

This case is exactly the In Re Memorial Hermann case approved by the Texas

Supreme Court. The Texas Supreme Court determined In Re Memorial Hermann

in 2015 allowing Anti-Competitive actions against a hospital and its opinion has

not been reversed.

Using the standards set forth in City of Dallas v. Sanchez 494 S.W.3d 722,

724 (2016) for dismissal under Tex.R.Civ.Proc. 91(a) Dr. Montoya’s pleadings,

(CR 7, 103, 143, 160, 272, 300) taken as true, with the inferences reasonably

drawn from them entitle Dr. Montoya to the relief sought in his petitions and

reasonable people could believe the facts pled.

Using the standard set forth in In Re Lipsky, 460 SW3d 579 (Tex.2016) for

determination of whether the Texas Anti-Slapp Statute applies Tex.Civ.Prac. &

Rem. Code §§27.001 et. seq. Dr. Montoya proved through his pleadings and

affidavits attached to the responses to the Motion to Dismiss (CR 94, 225) and

Supplemental Response (CR 177) the case is not one seeking to intimidate or

silence the public but is a case of economic retaliation and is based upon valid

claims that have approved causes of action as set forth in In Re Memorial Hermann

Page 6
 ARGUMENT

A. Summary of Factual Allegations by Dr. Montoya in his Fourth
Amended Petition (CR 160) for Dr. Brewer. For SACMC the Sixth
Amended Original Petition (CR 300)

Dr. Montoya has practiced at San Angelo Community Hospital since 1981.

Until 2007 Dr. Montoya would receive 10-20 calls from the emergency room

per month to treat either new or existing patients at the San Angelo

Community Medical Center. Since 2008 Dr. Montoya has only received one call

from the emergency room or a hospitalist for consultation as a nephrologist, and

one time for treatment of an existing patient that suffered with kidney

disease/problems. The lack of referrals caused substantial injury to Dr. Montoya

and damaged his ability to compete, because he depended on these referrals and

consults to build and keep his practice. A majority of patients who need kidney

treatment suffering from kidney disease in a hospital will later need continuing

care for their kidneys or related problems; the most common of such continuing

treatments is kidney dialysis. A typical kidney dialysis patient will need

treatment for a n average of 6 years, and each such patient would mean

revenue to Dr. Montoya's practice of approximately $100,000 per year. Dr.

Montoya estimates that he has lost at least 100 long term kidney dialysis

patients from 2007 to the present due to the Defendants' anticompetitive scheme

to refuse to give him patient referrals or consults from the emergency room of
Page 7
SACMC. D r . M o n t o y a estimates that this lack of referrals has thus cost him

$3,000,000 to $6,500,000 over that period of time.

Dr. Montoya in developing, building and keeping his practice, has always

taken patients as an on-call staff attending physician from the emergency

room/department of SACMC.

In developing and building a practice Dr. Montoya as a nephrologist

wanted long term kidney dialysis patients to treat in his practice. Referral from

hospitals and area physicians is extremely important to a nephrologist to building

and keeping a practice. The ability to obtain referrals from a hospital and area

physicians is a primary source of patients with kidney disease. Defendants in this

case conspired to deprive Dr. Montoya of referrals needed for his nephrology

practice to continue. This case is for the anticompetitive actions of the Defendants

posing a danger of monopolization or attempted monopolization of patient

choice and causing patients to pay more for medical care and injuring consumer

patients.

Dr. Montoya during his 36 year career in San Angelo built his practice

including a dialysis unit that can serve 24 patients per shift from referring

physician and referrals of patients from the emergency room/department.

Page 8
 Dr. Brewer is an employee and/or owner of a group of hospitalists

affiliated with, and possibly created by, SACMC. Dr. Brewer was the chief of

staff of SACMC when this case was filed and head of the hospitalist group that

practices at SACMC. Dr. Montoya has been denied the referral of patients that

come into the emergency room with kidney problems/illness/disease by the

hospitalists controlled by Dr. Brewer and SACMC. These patients in need of a

nephrologists care are being referred to the hospital affiliated physician group in

competition with Dr. Montoya. Even Dr. Montoya's current patients are being

referred to the hospitalist/hospital affiliated group.

At all relevant times Dr. Kirk Brewer, himself, as a principal officer of

Community Medical Associates, SACMC and Chief of Staff of SACMC and

head of the hospitalist system at SACMC and the agents/employees of SACMC

working under his control, direction, or in furtherance of unlawful and improper

actions was and is employed by and acting in furtherance of the business of

(SACMC) and its affiliated medical practice(s).

Dr. Montoya's skill as a nephrologist was, until the hospital created its

affiliated medical practice and/or entered into an exclusive contract with the

group of hospitalists affiliated and/or managed by Dr. Brewer, a marketing asset

for SACMC. Dr. Montoya is the only Spanish speaking nephrologist at SACMC.

Page 9
Dr. Montoya received his rotating share of referrals a s r e q ui r e d b y F e d e r a l

L a w c a l l e d EM TA L A , of patients with kidney disease/illness/failure until

SACMC created its affiliated practice groups and/or entered into an exclusive

contract with the group of hospitalists affiliated and/or managed by Dr. Brewer.

One example of Dr. Brewer’s actions- On January 25, 2014 at 8:10 a.m.

Kirk Brewer, M.D. took over the hospitalist care of a patient b e i n g s e e n b y

Dr. Montoya in the hospital (SACMC) . When Dr. Brewer’s

rotation as on call hospitalist started he without ever seeing the patient or the

chart cancelled Dr. Montoya's consult and treatment ordered by Dr. Montoya and

consulted another nephrologist. This removal proves actual anti-competitive

action of Dr. Brewer against Dr. Montoya. Dr. Montoya went to the call board a t

t h e h o s p i t a l and witnessed his name on the call board as the nephrologist on

call on January 24 and 25, 2014. SACMC is required to have an official

EMTALA Medicare call list for on call physicians for the SACMC to take

Medicare patients and be paid for the medicare patients.

Dr. Montoya’s name was on the call list but he was intentionally ignored.

T h e r e m o v a l o f D r . M o n t o y a a s t h e patients p h y s i c i a n s also violates

a patient's right to choose their physician. This list was followed until Dr. Brewer

came to SACMC and took charge of hospitalists. The nephrologist he brought in

Page 10
for consult after removing Dr. Montoya is one that is in a group that Kirk Brewer,

M.D. has a contract for paid services with Dr. Brewer. Dr. Brewer did not see

the patient when he removed D r . M o n t o y a as the treating nephrologist; he

issued the change via a telephone order. Kirk Brewer, M.D. without seeing the

patient, r e mo v e d D r . M o n t o ya a s t h e patient's doctor. This change of

nephrologist was for Kirk Brewer, M.D.'s economic gain and caused Dr.

Montoya economic loss. Attached as Exhibit B (CR 175-176 and 325-326) to

the petition is a true and correct copy of the redacted hospital record showing

the facts on January 25, 2014 as stated above.

Kirk Brewer, M.D. by his actions of removing Dr. Montoya as the

nephrologist published a statement that Dr. Montoya was not a competent

nephrologist to treat patients coming to the San Angelo Community Medical

Center emergency room. Kirk Brewer, M.D. was aware that his actions would

become known to the staff physicians of San Angelo Community Medical Center

and that he was by conduct and a whisper campaign saying Dr. Montoya should

not be allowed to treat patients at San Angelo Community Medical Center. These

remarks caused hospitalists and other doctors at SACMC, as well as doctors and

nurses in the SACMC emergency department, to cease and refuse to (a) admit

patients to the care of Dr. Montoya, and (b) not to refer patients to Dr. Montoya

for nephrology consults.
Page 11
 Attached to the petition as Exhibit C (CR 175) is the true and correct

sworn statement that an existing patient of Dr. Montoya, Mrs. Welch tried to see

Dr. Montoya in the emergency room of San Angelo Community Medical Center

and that the emergency room would not call Dr. Montoya to treat his existing

patient. Mrs. Welch is over 90 years of age and Dr. Montoya has treated her for

at least 20 years.

Another patient of Dr. Montoya, whose name is withheld per privacy

rights, who is also over 90 years of age and has been a Dr. Montoya patient for at

least 10 years requested Dr. Montoya when she went to the emergency room and

she also was not allowed to see Dr. Montoya her personal physician.

These facts as stated in the Petition (CR 160) prove the defamation claim

against Dr. Brewer dismissed under the Anti-Slapp Statute was in error. The

“whisper campaign” was only for an economic reason and not made as a truthful

statement above Dr. Montoya. The Whisper Campaign was confirmed in Dr.

Hunt’s affidavit (CR 179). It also proves that Dr. Montoya’s claims under In Re

Memorial Hermann standard are valid claims. They should not have been

dismissed under Tex.R.Civ.Proc. 91(a).

The above facts are proven through the pleadings (CR 160 and 272) and the

affidavits of Dr. Montoya (CR 96, 180, 250) and Dr. Hunt (CR 179) and the sworn

Page 12
statement of a patient Mrs. Welch (CR 175).

Causes of Action

Dr. Montoya sued the hospital SACMC and Dr. Brewer based upon causes

of action that were approved by the Texas Supreme Court in the case of a doctor

suing the hospital where he had a medical practice. The exact same causes of

action that were approved by the Texas Supreme Court in In Re Memorial

Hermann Hospital System, 464 S.W. 3d 686 (2015) are Dr. Montoya’s causes of

action. The Court in In Re Memorial Hermann case stated “We hold that Dr.

Gomez’s petition presents multiple viable anti-competitive actions” Id at 713.

Attached as Exhibit 1 to the response to the Motion to Dismiss (CR 232) is a

certified copy of the pleading of Dr. Gomez from the In Re Memorial Hermann

case that was specifically approved by the Texas Supreme Court as viable causes

of action. The causes of action approved by the Texas Supreme Court in In Re

Memorial Hermann are:

(5) Business Disparagement
(6) Defamation
(7) Tortious Interference with Prospective Business Relations
(8) Improper Restraint of Trade under the Texas Fire Enterprises and
Anti-Trust Act of 1983.

Id. At 695-696

Using the standards set forth in City of Dallas v. Sanchez 494 S.W.3d 722,

724 (2016) for dismissal under Tex.R.Civ.Proc. 91(a) Dr. Montoya’s pleadings,

Page 13
taken as true, with the inference reasonably drawn from them entitle Dr. Montoya

to the relief sought in his petitions and reasonable people could believe the facts

pled.

B. Approved Causes of Action Under In Re Memorial Hermann.
Dr. Montoya’s Causes of Action.

The causes of action in this suit are:

1) Tortious Interference with current and prospective business/patient

relations; 2) Illegal and anticompetitive actions of the Defendants; 3) Defendants

defamation per se; 4) Malice; 5) Business Disparagement against the Plaintiffs; 6)

Restraint of Trade- (Monopolization/Attempted Monopolization/Conspiracy to

Monopolize); 7) Group Boycott and Conspiracy in Restraint of Trade; 8) Restraint

of Trade/Tortious Interference by violating EMTALA (Emergency Medicine

Treatment and Action Labor Act) (CR 160 and 300).

C. The Texas Citizens Participation Act standard setforth in In Re Lipsky, 460 S.W.3d 579
(Tex.2016)

“As already mentioned, HN3 the Texas Citizens Participation Act or TCPA protects
citizens from retaliatory lawsuits that seek to intimidate or silence them on matters
of public concern. See House Comm. on Judiciary & Civil Jurisprudence, Bill
Analysis, Tex. H.B. 2973, 82nd Leg., R.S. (2011). The Act provides a special
procedure for the expedited dismissal of such suits. A two-step process is initiated
by motion of a defendant who believes that the lawsuit responds to the defendant's
valid exercise of First Amendment rights. Under the first step, [**8] the burden is
initially on the defendant-movant to show "by a preponderance of the evidence"
that the plaintiff's claim "is based on, relates to, or is in response to the [movant's]
4 5
exercise of: (1) the right of free speech; (2) the right to petition; or (3) the right of

Page 14
 6
association." Tex. Civ. Prac. & Rem. Code § 27.005(b). If the movant is able to
demonstrate that the plaintiff's claim implicates one of these rights, the second step
shifts the burden to the plaintiff to "establish[] by clear and specific evidence a
prima facie case for each essential element of the claim in question." Id. §
27.005(c).

HN7 In determining whether the plaintiff's claim should be dismissed, the court is to
consider the pleadings and any supporting and opposing affidavits. Id. § 27.006(a).
Moreover, the motion to dismiss ordinarily suspends discovery, id. § 27.003(c),
although the statute leaves the possibility for a court to order limited discovery for
"good cause" as it relates to the motion itself, id. § 27.006(b). Within defined time
limits, the court must then rule on the motion and must dismiss the plaintiff's claim if
the defendant's constitutional rights are implicated and the plaintiff has not met the
required showing of a prima facie case. Id. § 27.005. The determination is to be
made promptly, ordinarily within 150 days of service of the underlying legal action.
See id. §§ 27.003(b), .004(a), .005(a).

In this proceeding, only the second step is at issue—the question being whether
the plaintiff has met its burden of "establish[ing] by clear and specific evidence a
prima facie case for each essential element of the claim in question." Id. §
27.005(c). The parties disagree about the evidentiary burden this language
imposes. Lipsky argues that the phrase "clear and specific evidence" elevates the
evidentiary standard, requiring Range to produce direct evidence as to each
element of its claim. Range, on the other hand, argues that circumstantial evidence
and rational inferences may be considered by the court in determining whether
clear and specific evidence exists and that the TCPA's prima-facie-case
requirement does not impose a higher or unique evidentiary standard. The dispute
mirrors a similar disagreement among the courts of appeals.”
(In Re Lipsky at 586-587)
4
HN4 The "right of free speech" refers to communications related to "a matter of public
concern" which is defined to include an issue related to: "(A) health or safety; (B)
environmental, economic, or community well-being; (C) the government; (D) a public official
or public figure; or (E) a good, product, or service in the marketplace." Id. § 27.001(3),
(7)(A)—(E).

5
HN5 The "right to petition" refers to a wide range of communications relating to judicial,
administrative, or other governmental proceedings. Id. § 27.001(4).

6
HN6 The "right of association" refers to people "collectively express[ing], promot[ing],
pursu[ing], or defend[ing] common interests." Id. § 27.001(2).

In this case Dr. Montoya conclusively proved through his factual statements

in pleadings (Fourth Amended and Sixth Amended Original Petition (CR 160 and

300) and affidavits attached to his response (CR 94) and Supplemental Response to

Page 15
the Motion to Dismiss in (CR 177) that there is direct and circumstantial evidence

to allow the suit to go forward.

Clear and Convincing Evidence of Dr. Montoya petitions on file and his and

Dr. Hunt’s affidavits prove that this case should not have been dismissed under

Tex.Civ.Proc.91(a) or Tex.Civ.Prac. Remedies Code §27.001 et. seq.

In the response to the Motion to Dismiss (CR 94) Dr. Montoya’s Fourth

Amended Petition (CR 160) and his affidavit (CR 97) proved that this case is a

legitimate lawsuit based upon the In Re Memorial Hermann causes of action (see

page 19 above). Dr. Montoya in the Fourth Amended Original Petition (CR 160)

specifically addressed the factual allegations of how Dr. Brewer and SACMC

harmed him by interfering with his ability to obtain new patients out of the

emergency room referral and make a living as a nephrologist (see facts starting

page 7 above). Dr. Montoya’s active pleading at the time of the hearing on the

Motion to Dismiss was the Fourth Amended Petition (CR 160). A petition is

evidence to keep a Motion to Dismiss from being granted City of Dallas at 724-

725. In Re Lipksy at 586-587. Then Dr. Montoya’s Supplemental Response to the

Motion to Dismiss (CR 177) filed an affidavit of an independent physician, John

Hunt, M.D. stating specifically he (Dr. Hunt) was aware of the whisper campaign

that Dr. Montoya was not to be referred any patients from the emergency room

Page 16
(CR 179). Also Dr. Montoya filed a Supplemental Affidavit that Dr. Brewer had

stolen his patient (CR 180) attached to the affidavit, (redacted patient name for

HIPAA privacy requirements), were patient records showing Dr. Montoya had

seen a patient referral out of the emergency room as Chief of Staff and Chief

Hospitalist Dr. Brewer removed Dr. Montoya as the nephrologist caring for the

patient. The Whisper Campaign was economic activity not a free speech activity.

This evidence was clear and convincing and the Court should have denied

Dr. Brewer’s Motion to Dismiss. Wherefore this Court should reverse the Motion

to Dismiss.

D. Plaintiffs’ Business Disparagement and Defamation Claims Should Not
Be Dismissed

“The TCPA's purpose is to identify and summarily dispose of lawsuits

designed only to chill First Amendment rights, not to dismiss meritorious

lawsuits.” In re Lipsky, 460 S.W.3d 579, 589 (Tex. 2015) (emphasis added), citing

Tex. Civ. Prac. & Rem. Code § 27.002 (balancing “the constitutional rights of

persons to petition, speak freely, associate freely, and otherwise participate in

government to the maximum extent permitted by law” against “the rights of a

person to file meritorious lawsuits for demonstrable injury”). The TCPA is not

applicable to this case, as Plaintiff’s causes of action are primarly concerned with

Defendants’ anticompetitive actions, and injury to competition in the relevant

Page 17
markets of nephrology services and referrals for nephrology services in San

Angelo, Texas. As Plaintiff’s Fourth Amended Petition makes clear, the

conspiracy which Defendants perpetrated to deprive Dr. Montoya of referrals

began in 2007. Although Plaintiff details some specific defamations which

occurred in 2014, those defamations are merely representative of the

anticompetitive scheme to which Dr. Montoya was being subjected. Defendants’

group boycott and monopolization/attempted monopolization of the relevant

market began much earlier, so even if Plaintiff’s pleadings do not set forth a prima

facie case of defamation and business disparagement, Plaintiff’s antitrust claims

should not be dismissed because they are not based on those instances of

defamation.

In any event, Plaintiff has set forth a prima facie case of defamation and

business disparagement by clear and specific evidence in his affidavit and Fifth

Amended Petition. The “clear and specific” evidence which is required to pass a

TCPA challenge can be contained in the plaintiff’s pleadings or in affidavits. In re

Lipsky, 460 S.W.3d 579, 591 (Tex. 2015). In determining if the “clear and specific

evidence” standard is met, the court must view the pleadings in the light most

favorable to the party opposing the TCPA motion. Sloat v. Rathbun, 2015 WL

6830927, at *3 (Tex.App.-Austin, 2015) (“we view the pleadings in the light most

favorable to [the non-movant]; i.e., favoring the conclusion that her claims are not
Page 18
predicated on protected expression.”); see also Cheniere Energy, Inc. v. Lotfi, 449

S.W.3d 210, 214 (Tex.App.—Houston [1st Dist.] 2014, no pet.) (reviewing

pleadings and evidence in light most favorable to non-movant)

A prima facie standard generally requires only the “minimum quantum of

evidence necessary to support a rational inference that the allegation of fact is

true.” In re Lipsky, 460 S.W.3d 579, 590 (Tex. 2015), quoting In re E.I. DuPont de

Nemours & Co., 136 S.W.3d 218, 223 (Tex. 2004) (per curiam). “In a defamation

case that implicates the TCPA, pleadings and evidence that establishes the facts of

when, where, and what was said, the defamatory nature of the statements, and how

they damaged the plaintiff should be sufficient to resist a TCPA motion to

dismiss.” In re Lipsky, 460 S.W.3d 579, 591 (Tex. 2015).

Plaintiff has plainly satisfied this requirement. As shown in Plaintiff’s

Fourth Amended Petition, Dr. Brewer’s defamation was published by conduct

when he removed Dr. Montoya from consulting with a patient on January 25, 2014

at 8:10 a.m. The defamation was published to the hospitalist overseeing that

patient, and the nephrologists who was eventually called in to consult as a

replacement for Dr. Montoya. The defamation was eventually spread to all

hospitalists and emergency room doctors at SACMC. Fourth Amended Petition, p.

8, ¶ 7.13 (CR 167). Dr. Montoya has also set forth a detailed calculation and

explanation of the damages he has suffered as a result of the Defendants’ scheme
Page 19
to deprive him of nephrology referrals and consults. With regard to the January

2014 defamation, Plaintiff has established his prima facie case with clear and

specific evidence.

E. Even if Plaintiff’s Defamations Are Dismissed, Plaintiff’s Remaining
Claims Are Not Subject to the TCPA

The TCPA is clearly meant to apply to individual claims, not to an entire

lawsuit when allegedly defamatory statements are only important to certain claims.

Breach of contract claims, for example, would not ordinarily be dismissed merely

because a Plaintiff failed to plead a prima facie defamation case under the TCPA.

The TCPA’s definition of “legal action” makes this clear. The TCPA states

that “If a legal action is based on, relates to, or is in response to a party's exercise

of the right of free speech, right to petition, or right of association, that party may

file a motion to dismiss the legal action.” Tex. Civ. Prac. & Rem. Code §

27.003(a).

The TCPA then defines a “Legal action” as “a lawsuit, cause of action,

petition, complaint, cross-claim, or counterclaim or any other judicial pleading or

filing that requests legal or equitable relief.” Tex. Civ. Prac. & Rem. Code §

27.003(a).

Page 20
 The only cases which have interpreted the TCAP’s definition of “legal

action” have held that the term “is broad and evidences a legislative intent to treat

any claim by any party on an individual and separate basis.” Hicks v. Group &

Pension Administrators, Inc., 473 S.W.3d 518, 529 (Tex.App.-Corpus Christi,

2015), citing Better Business Bureau of Metropolitan Dallas, Inc. v. Ward, 401

S.W.3d 440, 443 (Tex.App.—Dallas 2013, pet. denied). In Hicks, the court

individually examined each of the claims which allegedly violated the TCPA and

dismissed two of those claims while refusing to dismiss two other claims because

the TCPA challenge to those claims was not timely filed.

Writing a concurrence in the case of Serafine v. Blunt, 466 S.W.3d 352, 393-

94 (Tex.App.-Austin 2015, no pet.), Justice Pemberton wrote that where a “’legal

action’ is based on, relates to, or is in response to” (whatever that phrase may

mean) both expression protected by the Act and other unprotected activity, the

“legal action” is subject to dismissal only to the extent it ‘is based on, relates to, or

is in response to’ the protected conduct, as opposed to being subject to dismissal in

its entirety” Id. at 394. Justice Pemberton showed that this result finds support in

several features of the the TCPA's text, and he explained as follows:

The first is that the TCPA defines “legal action”—that which is subject to
dismissal—both expansively and variously, as previously noted, referring to
everything from an entire action or proceeding to particular facts that
underlie a claim or cause of action. This nomenclature contemplates the
Page 21
 drawing of distinctions not only between claims, but also between factual
theories, as here.

Adding further support to this construction are the dual overarching
purposes that the Legislature has declared the TCPA is to serve: “encourage
and safeguard the constitutional rights of persons to petition, speak freely,
associate freely, and otherwise participate in government to the maximum
extent permitted by law, at the same time, protect the rights of a person to
file meritorious lawsuits for demonstrable injury.” Neither purpose is
advanced by holding that a claim is wholly subject to dismissal merely
because it partly “is based on, relates to, or is in response to” protected
expression under the Act. Nor would these purposes be served by the
converse holding that the claim is wholly beyond the Act merely it “is based
on, relates to, or is in response to” some unprotected activity.

Id. at 393-394. The Serafine court later noted that “longstanding principles

of Texas jurisprudence” counsel against “a construction of the TCPA that would

mandate presumptive dismissal of an entire claim merely because its factual

underpinnings might include even one allegation that implicates the Act's

protections.” Id. at 394.

Several cases have applied the TCPA as Justice Pemberton interprets it. For

example, in Tervita, LLC v. Sutterfield, 482 S.W.3d 280, 286-87 (Tex.App.-Dallas

2015, pet. denied), the court dismissed some of the plaintiff’s claims based on

conduct that occurred during a TDI-WC hearing, but refused to dismiss other

claims because the movant had not shown “by a preponderance of the evidence,

that [plaintiff’s] allegations were based on [defendant’s] exercise of its right to

petition or its right of association.” Id. at 287. The Tervita court thus held that the

Page 22
TCPA did not apply to the plaintiff’s “employment discrimination based on (1)

creating a hostile work environment, (2) representing that he was ‘not entitled to

pursue benefits’ under the Texas Worker's Compensation Act, and (3) wrongful

discharge.” Id. at 286; see also Serafine v. Blunt, 466 S.W.3d 352, 359-60

(Tex.App.-Austin 2015) (“to the extent that the Blunts' tortious-interference

counterclaim is based in part on Serafine's alleged threats made outside the context

of the lawsuit, Serafine has not satisfied her initial burden to show that these

portions of the Blunts' counterclaims are subject to the [TCPA].”)

The same result occurred in Sloat v. Rathbun, 2015 WL 6830927, at *6-7

(Tex.App.-Austin 2015, pet. filed). In that case, the court rejected the defendants’

argument that plaintiff’s entire suit was based on conduct protected under the

TCPA, when the plaintiff had also plead facts which showed stalking and other

tortious conduct. The court rejected application of the TCPA and stated as

follows:

[Plaintiff’s claims] are garden-variety tort claims based on specific conduct
that the [Defendants] have failed to demonstrate, by a preponderance of the
evidence, implicates the exercise of their rights of “free speech,” “
association,” or “to petition.”

Sloat v. Rathbun, 2015 WL 6830927, at *8 (Tex.App.-Austin 2015, review

dismissed). The Sloat court held that the defendant had failed to demonstrate, by a

“preponderance of the evidence,” that the plaintiff’s causes of action for intentional
Page 23
infliction of emotional distress, invasion of privacy by intrusion on seclusion and

by public disclosure of private facts, and tortious interference with contract were

“based on, related to, or in response to” defendants’ “exercise of their right of free

speech, right to petition, or right of association.” Id. at *9. The defendants in Sloat

had thus failed to establish that the TCPA applied to the case. Id.

In this case, Dr. Brewer’s participation in the conspiracy aimed at depriving

Plaintiffs of referrals for nephrology patients is not based on allegedly defamatory

statements, but it instead is based on his conduct. The TCPA simply does not

apply to such claims, and the court erred when it dismissed all of Plaintiffs’ claims

against Dr. Brewer.

Wherefore the Plaintiffs request the Order dismissing Dr. Brewer be

reversed and the Summary Judgment in favor of SACMC be reversed.

F. Appellant Has Valid Causes of Action for Antitrust Violations

As noted above, Dr. Montoya’s defamation claims are examples of how

Defendant enforced its anticompetitive scheme to deprive Dr. Montoya of

nephrology referrals, but Plaintiff’s antitrust claims are primarily based on the

illegal scheme itself and not individual defamatory statements. Plaintiff has

plainly set forth valid antitrust claims as they largely mirror the causes of action

Page 24
which the Supreme Court held to be valid in In re Memorial Hermann Hospital

System, 464 S.W.3d 686 (Tex. 2015).

The causes of action in this case, along with the underlying facts, are very

similar to the causes of action approved by the Supreme Court in In re Memorial

Hermann Hospital. In both cases a doctor who has privileges at a hospital has

alleged that the defendants conspired to prevent him from obtaining patient

referrals. In re Memorial Hermann Hospital at p. 711; Plaintiff’s Sixth Amended

Petition, paragraphs 6.1, 6.2, 6.5 (CR 301-303). In both cases, the alleged

conspirators consist of the hospital itself, a physician practice group, and individual

doctors who practice at the hospital. In re Memorial Hermann Hospital at p. 695;

Plaintiff’s Sixth Amended Petition (CR 300). In both cases, the doctors have

explained how other doctors how other doctors are a primary source of referrals,

and that these referrals are required for a doctor to be able to compete. In re

Memorial Hermann Hospital at p. 711; Sixth Amended Petition, pp. 6.2, 6.3, 6.8-

6.11 (CR 301-305). Both lawsuits allege that the defendants intentionally

interfered with the plaintiff’s longstanding practice for obtaining referrals from

other doctors in the community, and that the defendants’ acts constituted a

“concerted effort . . . to restrain competition in and monopolize” the relevant

market. In re Memorial Hermann Hospital at p. 708; Plaintiff’s Sixth Amended

Petition, paragraphs 6.1, 6.2, 6.5, 7.1, 12.7 (CR 301-302, 309, 314). Both lawsuits

Page 25
allege that the defendants impugned the reputation of the plaintiff doctors through

a covert whisper campaign which convinced other doctors not to refer patients to

the plaintiff doctors. In re Memorial Hermann Hospital at p. 696; Plaintiff’s Sixth

Amended Petition, paragraph 6.15-6.17 (CR305-306). Both lawsuits allege that

the plaintiff doctor lost a substantial amount of business from referrals due to the

anticompetitive conspiracy against them. In re Memorial Hermann Hospital at p.

711 (plaintiff alleged that “referral patterns changed” so that he was no longer the

“number one” physician, and that following the conduct at issue, another physician

received more referrals); Plaintiff’s Sixth Amended Petition, paragraph 7.11 and

13.3-13.4 (Dr. Montoya received 10-20 calls per month from the SACMC

emergency room to treat new or existing patients before the anticompetitive

conspiracy began, but he has only received a single call from emergency room for

a new patient since then; all referrals now go to the nephrologists at WTMA). In

both this case and in In re Memorial Hermann Hospital, the plaintiff doctor alleges

that the defendants’ acts “constitute illegal monopolization, attempted

monopolization, and/or conspiracy to monopolize under Texas law.” in In re

Memorial Hermann Hospital; Plaintiff’s Sixth Amended Petition, paragraph 12.7

(CR 314). Plaintiff has plainly stated a valid cause of action under the antitrust

laws of Texas which is in no way designed only to chill Defendants’ First

Amendment rights. “” In re Lipsky, 460 S.W.3d 579, 589 (Tex. 2015) (“The

Page 26
TCPA's purpose is to identify and summarily dispose of lawsuits designed only to

chill First Amendment rights, not to dismiss meritorious lawsuits.”) (emphasis

added). The trial court’s granting of Dr. Brewer’s Motion to Dismiss under the

TCPA must be reversed with regard to Dr. Montoya’s antitrust claims. The trial

court’s grant of summary judgment to SACMC, which was based on the improper

dismissal of Dr. Montoya’s antitrust claims, must also be reversed.

G. Appellant’s Petition Clearly Brought Claims Directly Against SACMC
for SACMC’s Own Conduct

SACMC’s Motion for Summary Judgment argued that because the court had

previously dismissed Dr. Brewer from the case, SACMC should also be dismissed

because “Plaintiff alleges no direct or separate liability claims against SACMC

above and apart from the actions of its agent, Brewer.” SACMC’s Motion for

Summary Judgment as a Matter of Law, p. 3 (hereafter “SACMC Motion for

Summary Judgment”) (CR 208). This statement is absolutely false.

Dr. Montoya’s Sixth Amended Petition makes it clear that SACMC was

being sued for its own conduct, and not merely for the conduct or statements of Dr.

Brewer. For example, Dr. Montoya’s Petition stated as follows:

The Defendants (SACMC) and Dr. Kirk Brewer, along with WTMA and Dr.
Brewer’s group of hospitalists, acting by and through its agents/employees/
principals/officers, acted together to carry out the improper and illegal
actions and therefore are jointly and severally liable for civil conspiracy in
carrying out their wrongful activities.

Page 27
 Plaintiff’s Sixth Amended Petition, p. 5, ¶ 6.10 (CR 304). The Petition also

included allegations against all of the Defendants in each of Plaintiff’s causes of

action. See, e.g., Id., p. 10 (“Defendant’s intentionally interfered with Dr.

Montoya’s longstanding and continuous relationships with patients and referring

physicians from the emergency room/department in a concerted effort to restrain

competition and monopolize the practice of nephrology . . . in the relevant

market.”) Id., p. 10, , ¶ 7.1 (CR 309). Similar conduct was alleged against

SACMC for each of Plaintiff’s causes of action against it. As there were only ever

two Defendants in the lawsuit, Dr. Montoya’s allegations against the plural

“Defendants” plainly included SACMC. SACMS’s suggestion that there were no

“direct . . . liability” claims against it is simply false.

The causes of action against SACMC are all separate and independent of Dr.

Brewer. For example, with regard to Dr. Montoya’s group boycott claim and

claims for monopolization and attempted monopolization, Dr. Montoya has alleged

that SACMC, Dr. Brewer, Dr. Brewer’s group of hospitalists (who will be named

once Defendants have responded to Dr. Montoya’s discovery), and West Texas

Medical Associates conspired to monopolize the relevant markets defined in Dr.

Montoya’s pleadings, and to keep Dr. Montoya from competing in those markets

by a group boycott. See Plaintiff’s Sixth Amended Petition, paragraphs 12-12.8

(CR 313-314) and 13-13.4 (CR 315-317). It is obvious that each member of a

Page 28
conspiracy is liable for their participation in the conspiracy. A conspirator need

not have the same motives as the other conspirators, and need not be at the same

market level of the other conspirators to be a participant in a conspiracy that is

illegal under the Texas antitrust laws. See, e.g., Spectators' Communication

Network Inc. v. Colonial Country Club, 253 F.3d 215, 220-221 (5th Cir. 2001)

(“Antitrust law has never required identical motives among conspirators, and even

reluctant participants have been held liable for conspiracy. For acquiescence in an

illegal scheme is as much a violation of the Sherman Act as the creation and

promotion of one.”)

H. The Court Improperly Granted a Motion to Dismiss Which
Masquerades as a Grant of Summary Judgment

While styled as an order on a summary judgment motion, the court in fact

granted a Motion to Dismiss in favor of SACMC, as the court effectively ruled that

Dr. Montoya’s pleadings did not state a claim against SACMC. The mere fact that

Dr. Brewer was dismissed from the case does not mean that SACMC could not be

liable for its own conduct or the conduct of its other agents besides Dr. Brewer.

SACMC did not present any evidence in support of its summary judgment motion

which showed that it had not engaged in any of the conduct which Dr. Montoya

sued it for; SACMC instead relied solely on the fact that Dr. Brewer was dismissed

from the case under a Texas procedural rule. This “evidence” was in fact no
Page 29
evidence at all, and it resulted in the court in effect granting summary judgment to

SACMC based on Dr. Montoya’s pleadings.

At the hearing on SACMC’s summary judgment motion, the court

repeatedly stressed its belief that Dr. Montoya was required to plead specific

wrongful acts by an agent of SACMC in order to be able to maintain its lawsuit

against SACMC. However, there is simply no rule in Texas holding that in order

to plead a valid cause of action against a business entity, one must list specific

tortious or wrongful actions which company representatives undertook on behalf of

the organization. Texas pleading precedent clearly allows a party suing a business

entity to merely allege that the business entity itself did something wrongful. See,

e.g., Bank One, Texas, N.A. v. Stewart, 967 S.W.2d 419, 430-31 (Tex.App.

Houston [14 Dist.] 1998, pet. denied) (although no specific acts of company

representative were plead, court stated that “Although the allegations are broad,

both petitions raise a reasonable inference that Bank One and Weyerhaeuser

participated in a conspiracy to defraud LRI by inducing Trendmaker to avoid

liability on the Midland Note. [Plaintiff’s] pleading also gives fair notice of his

claim . . . “); Farlow v. Harris Methodist Fort Worth Hosp., 284 S.W.3d 903, 910

(Tex.App. Fort Worth,2009) (“Under the doctrine of respondeat superior, an

employer may be vicariously liable for the negligence of its agent or employee

who was acting within the scope of employment even though the employer did not

Page 30
personally commit a wrong.”). Obviously, a corporate entity itself can commit a

wrong. Companies are liable for their own actions or failures to act, and Texas

allows companies to be sued directly for those acts. Transcontinental Gas Pipeline

Corp. v. Texaco, Inc., 35 S.W.3d 658, 669 (Tex.App. Houston [1 Dist.] 2000, rev.

denied) (noting that “in usual business practice,” “companies are liable for their

own acts.”)

For example, if one sues a construction company for failing to build a fence

properly, one does not have to name in the pleading the company employees who

built the inadequate fence. If one sues a grocery store for selling tainted meat, one

does not have to name the individual butcher who packaged it. Such a rule would

as a practical matter make most lawsuits impossible, as a plaintiff almost never

knows at the pleading stage which employees or agents, if any, were involved in

the wrongful acts. Because of this, every jurisdiction in the United States,

including Texas, allows a company to be sued for the company’s own wrongful

acts. So long as the lawsuit gives the company notice of what it is being sued for

so that it can prepare a defense, the Texas pleading standards are satisfied. Dr.

Montoya’s lawsuit against SACMC plainly satisfied the Texas notice pleading

standard, and the court’s decision to grant summary judgment to SACMC because

no specific acts of SACMC’s agents were listed in the lawsuit after Dr. Brewer was

dismissed was clear error.

Page 31
I. Dr. Montoya’s Petition Meets the Texas Notice Pleading Standard

As noted above, the court’s grant of summary judgment was actually a

dismissal based on the pleadings. While the Defendants and the court persist in

their belief that this case primarily involves defamatory statements, the central

basis of Dr. Montoya’s lawsuit is that the Defendants, along with WTMA and Dr.

Brewer’s group of hospitalists, conspired to deprive Dr. Montoya of referrals for

nephrology patients. Dr. Montoya’s pleading is nearly identical to the plaintiff’s

pleading in In re Memorial Hermann Hospital System, 464 S.W.3d 686 (Tex.

2015), a case in which the Supreme Court specifically held that that a physician

had stated valid claims against a hospital and its co-conspirators. Under Hermann

Memorial, Dr. Montoya’s pleading is plainly sufficient under Texas law.

While the court need not look beyond Hermann Memorial, cases such as In re

Garth, 214 S.W.3d 190, 192 (Tex.App. Beaumont, 2007) clearly show that Dr.

Montoya’s pleadings for his conspiracy-based antitrust claims meet the Texas

notice pleading standard. The court in Garth stated as follows:

At the time the trial court entered its order, Plaintiff's First Amended Petition
was the pleading before the court. Although very broad, the First Amended
Petition clearly alleges a conspiracy by the individual defendants, asserts
that they committed overt acts, and seeks punitive damages against them . . .
Because we construe [Plaintiff’s] pleadings in her favor, we hold that her
pleadings are sufficient to notify the individual defendants that she sought to
hold them liable for punitive damages through a conspiracy theory. . .

Page 32
Id. at 192. A similar result was reached in Pacific Mut. Life Ins. Co. v. Ernst &

Young & Co., 10 S.W.3d 798, 809 (Tex.App. Dallas,2000), rev’d on other

grounds, 51 S.W.3d 573 (Tex.,2001). In that case, the court stated as follows:

Although rule 47(a) of the rules of civil procedure requires a pleading to
contain “a short statement of the cause of action sufficient to give fair notice
of the claim involved,” see tex.R. Civ. P. 47(a), this does not require that
each element of a claim be specifically alleged in a pleading. See Boyles v.
Kerr, 855 S.W.2d 593, 601 (Tex.1993) (op. on reh'g). Rather, it is sufficient
if the cause of action can be “reasonably inferred” from the pleading. See
Boyles, 855 S.W.2d at 601. In this case, Pacific's live pleading alleges that
Ernst & Young “conspired with, aided and abetted, associated with, and
assisted ... in the dissemination of false and misleading information or
omissions of material facts to prospective investors in First Republic backed
securities.” The petition also alleged that Ernst & Young's participation in
the fraud enabled First Republic to make misrepresentations to the public
after the merger. We have reviewed this language and, after doing so, we
conclude that (1) a claim for conspiracy or “aiding and abetting” may be
reasonably inferred from this language, and (2) the language was therefore
sufficient to support a conspiracy or “aiding and abetting” claim.

Pacific Mut. Life Ins. Co. v. Ernst & Young & Co., 10 S.W.3d 798, 809 (Tex.App.

Dallas,2000), rev’d on other grounds, 51 S.W.3d 573 (Tex. 2001). Importantly,

the court in Pacific Mutual held that the pleading was sufficient even though it

only named the corporate defendant as the conspirator, and did not name any

corporate agents who had participated in the conspiracy. The same result was

reached in State v. Ford Motor Co., 169 S.W.2d 504, 513-14 (Tex.Civ.App. 1943),

where the court stated as follows:

In any event, the pleader was not required to plead the exact agreement and
by whom made with respect to the unlawful combination or conspiracy

Page 33
 plead. It is only the facts constituting the cause of action for conspiracy,
particularly the acts which constitute the grounds or gravamen of the action,
that must be alleged with certainty and particularity. This the petition did. . .
We are therefore of the view that the general allegation that a trust,
combination, or conspiracy was entered into by Ford and its dealers, together
with the allegations of specific instances whereby Ford and its dealers
operated so as to limit the territory in which a dealer could resell
automobiles and parts purchased from Ford . . . fully comply with the rule
that in alleging a combination or conspiracy the facts constituting the
conspiracy, or from which it may be inferred, should be clearly and
concisely set out. . . [A]s a rule great latitude is allowed in setting out in the
petition the particular acts from which the conspiracy may be inferred.

State v. Ford Motor Co., 169 S.W.2d 504, 513-14 (Tex.Civ.App. 1943).

Again, it is important to note that the court in Ford Motor held that merely naming

the corporate entity, Ford, as a conspirator was sufficient to state a valid claim

under the Texas notice pleading standard. The same result was reached in Bank

One, Texas, N.A. v. Stewart, 967 S.W.2d 419, 430-31 (Tex.App. Houston [14 Dist.

1998) (“Although the allegations are broad, both petitions raise a reasonable

inference that Bank One and Weyerhaeuser participated in a conspiracy to defraud

LRI by inducing Trendmaker to avoid liability on the Midland Note.”). In Stewart,

as in the other cases cited above, the court held that the plaintiff had pleaded a

valid conspiracy claim where it alleged that the corporate defendants themselves

had participated in the conspiracy.

If the court had actually applied Rule 91a, the court would apply the fair

notice pleading standard applicable in Texas to determine whether the allegations

of the petition are sufficient to allege a cause of action. Wooley v. Schaffer, 447

Page 34
S.W.3d 71, 76 (Tex.App. Houston [14 Dist.] 2014), citing Roark v. Allen, 633

S.W.2d 804, 810 (Tex .1982) (“A petition is sufficient if it gives fair and adequate

notice of the facts upon which the pleader bases his claim.”); see also Bart Turner

& Assocs. v. Krenke, No. 3:13–CV–2921–L, 2014 WL 1315896, at *5 (N.D.Tex.

Mar. 31, 2014) (applying Texas's fair notice pleading standard to determine

whether to grant motion to dismiss under Rule 91a). In conducting its review, the

court must construe the pleadings liberally in favor of the plaintiff, look to the

pleader's intent, and accept as true the factual allegations in the pleadings to

determine if the cause of action has a basis in law or fact. Id. at 76. Although

Texas Rule of Civil Procedure 47(a) requires “a short statement of the cause of

action sufficient to give fair notice of the claim involved,” it does not require that

each element of the claim be specifically alleged in a pleading. See Pac. Mut. Life

Ins. v. Ernst & Young, 10 S.W.3d 798, 809 (Tex.App.-Dallas 2000, no pet.) (citing

Boyles v. Kerr, 855 S.W.2d 593, 601 (Tex.1993)). If a cause of action can be

“reasonably inferred” from the pleading, the pleading is sufficient. Pac. Mut., 10

S.W.3d at 809. Dr. Montoya’s Petition plainly meets this standard.

While the court’s decision to grant summary judgment to SACMC cannot

withstand review under the Texas notice pleading standard, the court’s decision

was particularly wrong in light of Dr. Montoyas’ antitrust claims, which allege a

conspiracy to monopolize the relevant market and a group boycott (i.e., a type of

Page 35
anticompetitive conspiracy) against Dr. Montoya by SACMC, Dr. Brewer, Dr.

Brewer’s group of hospitalists, and WTMA. Because of the secretive nature of

conspiracies, courts allow plaintiffs to show conspiracy by circumstantial rather

than direct evidence. Kirby v. Cruce, 688 S.W.2d 161, 164 (Tex.App.—Dallas

1985, writ ref'd n.r.e.). The agreement need not be formal, the understanding may

be tacit, and each conspirator need not know the details of the conspiracy. Id. at

164; Bourland v. State of Texas, 528 S.W.2d 350, 354 (Tex.Civ.App.—Austin

1975, writ ref'd n.r.e.). Given the law on this subject, it makes no sense to grant a

summary judgment in favor of SACMC merely because Dr. Montoya has not

pleaded in detail exactly which representatives of SACMC entered into the

conspiracy, whom they had conversations and agreements with, and so forth. It is

ridiculous to make Dr. Montoya plead such facts before even undertaking

discovery in this matter.1 A conspiracy never needs to be proven with direct

evidence if there is sufficient circumstantial evidence, but in dismissing SACMC

because Dr. Montoya’s pleadings did not show a specific conspiratorial action by

an agent of SACMC, the court effectively required Dr. Montoya to provide direct

evidence of the antitrust conspiracy at the pleading stage. This holding is simply

not allowed under the Texas summary judgment rule, and would not even be

allowed under Rule 91a motion to dismiss.
1
Plaintiffs did send out Requests for Production and Interrogatories in this matter, but Defendants only tendered
objections and refused to provide a single substantive answer. Plaintiff was in the process of filing a Motion to
Compel when the court granted SACMC’s Motion for Summary Judgment.

Page 36
J. The Trial Court Erred When It Failed to Consider the Allegations in
Plaintiff’s Sixth Amended Petition

Plaintiff’s Fourth Amended Petition clearly brought claims against SACMC

directly, and even under that pleading, a grant of summary judgment to SACMC

would have been erroneous. Plaintiff’s Sixth Amended Petition, however, made it

clear beyond any doubt that SACMC was being sued for its own conduct, and not

merely for Dr. Brewer’s actions. The court thus erred when it failed to consider

the new allegations in Plaintiff’s Sixth Amended Petition which was filed on May

4, 2016, a week before the summary judgment hearing on May 11, 2016. This

resulted in an erroneous grant of summary judgment to SACMC, as SACMC’s

Motion for Summary Judgment was based on stale factual allegations which were

superseded by the allegations in the Sixth Amended Petition.

SACMC’s Motion for Summary Judgment argued that because the court had

previously dismissed Dr. Brewer from the case, SACMC should also be dismissed

because “Plaintiff alleges no direct or separate liability claims against SACMC

above and apart from the actions of its agent, Brewer.” SACMC’s Motion for

Summary Judgment as a Matter of Law, p. 3 (hereafter “SACMC Motion for

Summary Judgment”). SACMC based its argument on the statement in Plaintiffs’

Fourth Amended Petition that Brewer “was and is employed by and acting in

furtherance of the business of [SACMC] and its medical practices” and “at all

Page 37
times acted for SACMC.” Id., p. 3. SACMC thus contended that “SACMC’s only

potential liability sounds in the doctrine of respondeat superior.” Id.

While Dr. Montoya had no need to correct his previous pleading on this

issue, as even the Fourth Amended Petition made it clear that Dr. Montoya sought

to hold SACMC liable for its own conduct and not merely the conduct of Dr.

Brewer2, Plaintiffs’ Sixth Amended Petition showed beyond doubt that SACMC is

not being sued only under a respondeat superior theory for Dr. Brewer’s actions.

Plaintiff’s Sixth Amended Petition thus includes the following statements:

Dr. Brewer is individually liable for his own illegal, improper acts and
omissions. At various times Dr. Brewer acted for himself, (SACMC) and/or
his group of hospitalists.

Each Defendant in this case (i.e., SACMC and Dr. Brewer), and
WTMA and Dr. Brewer’s group of hospitalists (eventual defendants)
are being sued for their individual roles and conduct in the
monopolization, attempted monopolization, conspiracy to
monopolize, and group boycott/concerted refusal to deal. While each
of these entities may have engaged in the illegal conduct through their
agents or representatives, they are being sued for their individual roles
and conduct and not simply under a respondeat superior theory of
liability due to actions by Dr. Brewer.

Plaintiff’s Sixth Amended Petition, p. 4, ¶ 6.6 and p. 14, ¶ 12.2 (CR 39).

After this pleading was filed, the fact that SACMC was being sued for its own

conduct became indisputable. The sole basis of SACMC’s Motion for Summary

2
Plaintiff’s Fourth Amended Petition repeatedly makes it clear that SACMC was being sued for its own conduct,
and not merely for vicarious liability for statements made by Dr. Brewer. Paragraph 6.1 of Plaintiff’s Fourth
Amended Petition, for example, clearly stated that “This case is for the anticompetitive actions of the Defendants
posing a danger of monopolization or attempted monopolization of patient choice and causing patients to pay more
for medical care and injuring consumer patients.” Plaintiff’s Fourth Amended Petition, p. 2, paragraph 6.2

Page 38
Judgment, that “SACMC’s only potential liability sounds in the doctrine of

respondeat superior,” did not exist even before the Sixth Amended Petition was

filed, and it certainly did not exist afterwards.

The Supreme Court’s opinion in Sosa v. Central Power & Light, 909 S.W.2d

893, 895 (Tex. 1995) shows that the trial court erred when it failed to consider the

allegations in Plaintiffs’ Sixth Amended Petition. In Sosa, the Court stated as

follows:

Because the Sosas timely filed their second amended original petition, it
superseded their first amended original petition containing the statements on
which the defendants based their motion for summary judgment. Contrary to
statements in live pleadings, those contained in superseded pleadings are not
conclusive and indisputable judicial admissions. Drake Ins. Co. v. King, 606
S.W.2d 812, 817 (Tex.1980). Therefore, the basis for the defendants' motion
no longer existed and summary judgment was improper.

Id. at 895. Sosa has recently been reaffirmed by cases such as Lee Homes of

Limestone County, Inc. v. First National Bank, 2015 WL 5175469, at *2

(Tex.App.-Waco 2015, no pet.). Sosa was also cited in Myers v. Southwest Bank,

2014 WL 7009956, at *6 (Tex.App.-Fort Worth 2014, pet. denied). Myers

summarized the facts and holding from Sosa as follows:

The defendants in Sosa attempted to meet their burden by arguing that the
plaintiffs' own pleadings established that the plaintiffs' claims were barred
by limitations. The plaintiffs then amended their petition to remove the
statements on which the defendants had relied in their motion. The
defendants' motion, which was based entirely on the plaintiffs pleading
themselves out of court, no longer had any basis. Summary judgment was
therefore improper.
Page 39
 Id. at *6. The same is true in this case, as Plaintiffs’ Sixth Amended Petition

made it clear that the entire basis for SACMC’s Motion for Summary Judgment no

longer existed after that amended pleading was filed. The court’s grant of

summary judgment to SACMC was therefore improper.

What is EMTALA (The Emergency Medical Treatment and Active Labor Act
Cause of Action)?

The Emergency Medical Treatment and Active Labor Act (hereinafter

EMTALA) is Section 1867(a) of the Social Security Act, and is codified within the

section of the U.S. Code which governs the Medicare program. (42 USC 1395cc)

The Healthcare Financing Administration (hereinafter HCFA) is the federal agency

that governs Medicare payments and has the statutory authority to issue regulations

concerning the implementation of EMTALA. (HCFA Interpretive Guidelines V-

15)

EMTALA is a statute which governs when and how a patient must be (1)

examined and offered treatment or (2) transferred from one hospital to another

when he is in an unstable medical condition (3) the list of doctors on staff that are

on call and the fair assignment of patients to doctors. 42 USC 1395cc(a)(1)(I)(iii),

HCFA Interpretive Guidelines V-15

Page 40
 But in this case it does not involve patient dumping but the refusal to follow

the mandatory call list of EMTALA to fairly distribute the paying nephrology

patients under Medicare or private insurance.

L. Maintaining the Call List Requirement

Medicare –participating hospitals must maintain a list of physicians who are

on call to provide emergency care to individuals presenting to the emergency

room. (42 USC 1395cc(a)(1)(I)(iii))

Under EMTALA the hospital and its officers are responsible for maintaining an

on-call roster for the emergency department. (42 USC 1395cc(a)(1)(I)(iii))

San Angelo Community Medical Center is a Medicare –participating

hospital.

M. All nephrology patients that go on to dialysis are covered under Medicare-
thus are paying patients for the doctor and hospital

The avowed purpose of the statute is to prevent hospitals from rejecting

patients, refusing to treat them, or transferring them to "charity hospitals" or

"county hospitals" because they are unable to pay or are covered under the

Medicare or Medicaid programs and to fairly distribute patients coming to the

emergency room between physicians so the physician receives paying and non-

Page 41
paying patients. (42 USC 1395cc (a)(1)(I)(iii)), HCFA Interpretive Guidelines V-

15.

This is a key in this case, the patients coming to the emergency room for
nephrology care are guaranteed to pay the doctor for services through Medicare.

Dr. Brewer wants the paying patients to go to the other nephrologist in the hospital
owned group and to not have Dr. Montoya receive his fair share of patients. Dr.
Brewer is paid by the other nephrologist for coverage.

The purpose of the call list is to allow all physicians to equally receive call and
paying and non-paying patients.

A brief to the Trial Court an EMTALA was provided after the Motion to Dismiss

hearing (CR 185). This brief has even more details.

Wherefore the Plaintiffs based upon EMTALA request the Orders

dismissing Dr. Brewer be reversed and the Summary Judgment be reversed.

N. Summary Judgment in favor of SACMC

Despite Appellants valid claims under In Re Memorial Hermann and the

legal arguments and facts proven in the response to the Motion for Summary

Judgment (Supp. CR ____) the trial court committed reversible error by granting

the Defendant SACMC Summary Judgment (CR 336). Thus this Court should

reverse the granting of the Summary Judgment and render judgment for Appellants

denying the Summary Judgment.

Summary Judgment for the Defendant is only proper if, as a matter of law,
Page 42
the Plaintiff cannot succeed on any theory pled. See G & H Towing Co. v. Magee,

347 SW3d 293, 296-97 (Tex.2011); see City of Houston v. Clear Creek Basin

Auth., 589 SW29 671, 678 n.5 (Tex. 1979) Tex.R.Civ. 166a(a); Gibson v.

Methodist Hosp., 822 SW2d 95, 17 U.C.C. Rep. Serv. 2d 81 (Tex. App.-Houston

[1st Dist.} 1991, writ denied). The function of summary judgment is not to deprive

litigants of their right to a full hearing on the merits of any real issue of fact or their

right to trial by jury. (see Tex.R.Civ.Proc 166 a) Rather, the goal of the procedure

is the prompt elimination of patently unmeritorious claims or untenable defenses

(See Means v. ABCABCO, Inc., 315 S.W.3d 209 (Tex. App. Austin 2010); Cedyco

Corp. v. Whitehead, 253 S.W.3d 877 (Tex. App. Beaumont 2008); Montemayor v.

Ortiz, 208 S.W.3d 627 (Tex. App. Corpus Christi 2006); Armstrong v. Hixon, 206

S.W.3d 175 (Tex. App. Corpus Christi 2006); and the summary termination of a

case when it clearly appears that only questions of law are involved and that there

are no genuine issues of fact. (See Bliss v. NRG Industries, 162 S.W.3d 434 (Tex.

App. Dallas 2005); Martin v. Commercial Metals Co., 138 S.W.3d 619 (Tex. App.

Dallas 2004). The trial court erred in not finding genuine issue of fact and not

following the Texas Supreme Court in In Re Memorial Hermann and In Re Lipsky

and City of Dallas.

The Appellant in the response to the Motion for Summary Judgment proved

the facts stated on pages 13-18 above through the factual affidavit attached to the

Page 43
response for Summary Judgment (Supp. CR____).

The Defendant in their Motion for Summary Judgment did not disprove any

element of the Plaintiffs cause of actions of Dr. Montoya’s Sixth Amended

Petition (CR 300). All the Defendant did was state unsworn statements that are

not facts and rely on the Order of Dismissal in favor of Dr. Brewer. The

Defendants did not attach any evidentiary affidavits to their Motion for Summary

Judgment disputing the facts of the Plaintiff and the independent affidavit of Dr.

Hunt (Supp. CR ________) (Supp. CR_____).

Thus the Motion for Summary Judgment should be reversed and denied.

To succeed on a traditional Motion for Summary Judgment, the Defendant

must show that there is no genuine issue of material fact and that it is entitled to

Summary Judgment as a matter of law. Tex.R.Civ.P. 166a(c); Mann Frankfort

Stein & Lipp Advisors, Inc. v. Fielding, 289, SW3d 844, 848 (Tex. 2009); Nixon v.

Mr. Prop. Mgmt. Co., 690 SW2d 546, 548 (Tex. 1985). To meet this burden, the

Defendant must conclusively prove all essential elements of its claim. MMP, Ltd.

v. Jones, 710 SW2d 59, 60 (Tex. 1986). A matter is conclusively established if

reasonable people could not differ on the conclusion to be drawn from the

evidence. City of Keller v. Wilson, 168 SW3d 802, 816 (Tex. 2005). If the

Defendant establishes its right to summary judgment as a matter of law, the

burden shifts to the Plaintiff to present evidence that raises a genuine issue of

Page 44
material fact. Boudreau v. Fed. Trust Bank, 115 SW3d 740, 743 (Tex. App.-

Dallas 2003, pet. Denied). In deciding whether to grant Defendant’s motion, the

court must take as true all competent evidence favorable to the Plaintiff’s favor.

Limestone Prods. Distrib., Inc. v. McNamara, 71 SW3d 308, 311 (Tex. 2002);

Rhone-Poulenc, Inc. v. Steel, 997 SW2d 217, 223 (Tex. 1999); Nixon, 690 SW2d

at 548-49.

The Plaintiffs presented proof to deny the Summary Judgment in the factual

affidavits of Dr. Montoya (Supp. CR ____) and Dr. Hunt (Supp. CR___).

No Summary Judgment evidence was presented by the Defendant SACMC.

Dr. Montoya’s response to the Motion for Summary Judgment objected to the

Motion because there is no evidence attached to the Motion (Supp. CR______).

The statements in the body of the argument are heresay and Dr. Montoya requested

the Court to strike those statements as defective and not meeting the standard for

Summary Judgment evidence. The statements in the argument are conclusory and

without factual basis as required by the Texas Rules of Civil Procedure (TRCP

166a(c)) (CR 208).

Dr. Montoya further objected to the argument because it did not meet the

standard set forth for an affidavit in the Texas Supreme Court Radio Station KSCS

v. Jennings 750 S.W.2d 760 (Tex. 1988). The Supreme Court held that affidavit

for summary judgment failed to establish that it was based on personal knowledge
Page 45
and was thus inadequate summary judgment proof. The argument in the Motion is

not a factual affidavit showing proof.

Dr. Montoya objected to the argument because it was not an affidavit which

must state facts and cannot merely recite legal conclusions. Brownlee v. Brownlee,

655 S.W. 2d 111, 112 (Tex. 1984). In this case the argument does not meet the

KSCS or Brownlee standards.

O. SUMMARY-JUDGMENT EVIDENCE PRESENTED BY PLAINTIFF

To support the facts in this response, Dr. Montoya offered the following

summary-judgment evidence attached to this response and incorporates the

evidence into this response by reference.

Exhibit 1: Certified copy of Pleading approved by the Texas Supreme Court

as valid causes of action in In Re Memorial Hermann (Supp. CR ______).

Exhibit 2: Is the affidavit of Steve F. Montoya, Jr., M.D. one of the

Plaintiffs. In the affidavit he states the facts and refutes the allegations for the

dismissal under TRCP 91(a) and the Anti-Slapp allegations (Supp. CR_______).

Exhibit 3: Is the affidavit of Dr. Hunt that confirms the causes of actions

and the facts of the Anti-Trust actions of San Angelo Community Medical Center

(Supp. CR_____).

Page 46
P. Defendant did not disprove plaintiff’s cause of action as a matter of law.
A defendant is entitled to summary judgment on a plaintiff’s cause of action

if the defendant can disprove at least one element of the cause of action as a matter

of law. Sw. Elec. Power Co. v. Grant, 73 S.W.3d 211, 215 (Tex. 2002); see Tello v.

Bank One, N.A., 218 S.W.3d 109, 113 (Tex. App.—Houston [14th Dist.] 2007, no

pet.). SACMC has not disproved any of Plaintiffs elements in their causes of

action (CR 208).

The Traditional Motion for Summary Judgment by SACMC was nothing

more than a thinly vailed attempt to get around the untimely filing of the Motion to

Dismiss under 91(a) and the Anti-Slapp Motion Tex.Civ.Prac. & Rem. Code

§§27.001 et. seq.

The trial court erred in granting the Summary Judgment because Defendant

SACMC did not show there was not genuine issue of material fact and/or

Plaintiffs’ factual affidavits proved genuine issues of material facts.

The finding of the Court dismissing Dr. Brewer (CR 194 and 196) is not

controlling to the causes of action brought against SACMC. The causes of action

against SACMC cannot be controlled by the dismissal of Dr. Brewer without valid

Summary Judgment evidence, which there is none.

Page 47
 The Defendant SACMC does not even attach a single factual affidavit or any

affidavit in support of their Summary Judgment (CR 208). The only thing relied

upon is the Court prior Order of Dismissal of Dr. Brewer’s claims.

SACMC filed a Motion for Special Exceptions on August 14, 2015 (CR 17)

and the court granted the Special Exceptions on December 3, 2015 (CR 75). The

Plaintiffs Petition was amended to comply with the Court order. SACMC should

have filed a Motion to Dismiss when it filed the Special Exception. The Motion

for Summary Judgment is a untimely Motion to Dismiss that has no evidence or

proof attached (CR 208).

The purpose of this lawsuit has nothing to do with the Defendants

Constitutional Rights to speak freely, associate freely and participate in

governmental as permitted by law. These are the requirements to meet in filing a

Motion under the Anti-Slapp Statute Tex.Civ.Prac. & Rem. Code §§27.001 et. seq.

and as set out in Paulsen v. Yarrell 455 SW3d 192 (Tex.-App.-Houston [1st Dist.]

2014, no pet.) (quoting In Re Estate of Check 438 SW3d at 836).

The Texas Supreme Court agreed that clear and specific evidence under the

Texas Anti-Slapp Statute Chapter 27 includes relevant circumstantial evidence. (In

Re Lipsky). The evidence of the Plaintiff in the Petitions and in his response

Page 48
affidavits of Dr. Montoya and Dr. Hunt meets the In Re Lipsky standard (see CR

300, 94, 177, 331and Supp. CR____ ).

The Defendant SACMC did not even join in Dr. Brewer’s Motion to

Dismiss under 91(a) or his Anti-Slapp motion (CR 76 and 119). All the actions

SACMC were untimely.

Issue 3

1. Pursuant to Tex.Civ.Proc.91(a)3(b) a Motion to Dismiss must be filed at

least 21 days before the Motion is heard. The original Motion to Dismiss

was filed on July 7, 2016 (CR 119). The hearing was set by the Court for

January 12, 2016 (CR 91-93). An amended Notice of Hearing was set on

January 29, 2016 (CR 183). The amended Notice of the Motion to Dismiss

was sent on January 13, 2016 (CR 184). This notice was less than the 21

days required by Tex.Civ.Proc.91(a)3(b). The amended Motion to Dismiss

was filed on January 7, 2016 (CR 119). Dr. Montoya objected to the

Amended Motion of Dr. Brewer as not being allowed without restarting the

period. The Court erred in allowing the Motion to Dismiss under

Tex.Civ.Proc.91(a) to be heard. Dr. Montoya objected to the hearing in his

Supplemental Response to the Motion to Dismiss (CR 177). Tex.Civ.Proc.

91(a)5(d) require the hearing to be reset Tex.Civ.Proc.91(a)6. By filing the

Amended Motion Dr. Brewer waived the right to be heard.

Page 49
2. Pursuant to Tex.Civ.Prac. & Rem. Code §§27.001 et. seq. a Motion to

Dismiss a legal action under this section must be filed not later than the 60 th

day after the date of service of the legal action Tex.Civ.Prac.Remedies Code

§27.003(b). Dr. Brewer was originally served on October 9, 2015 (Supp.

CR_____). Dr. Brewer filed his Motion to Dismiss under Tex.Civ.Prac. &

Rem. Code §§27.001 et. seq. on December 8, 2015 which was within the 60

days after the date of service. Dr. Brewer then filed an Amended Motion to

Dismiss on June 7, 2015 (CR 119) which is outside the sixty day

requirement of Tex.Civ.Prac.Remedies Code §27.003(b). Dr. Montoya

objected to the untimely filed affidavits and Amended Motion (CR 177).

The Court should strike the affidavits as untimely filed and thus the Motion

should be denied as not meeting the first proving of In Re Lipsky.

CONCLUSION AND PRAYER

The Appellants showed in their response to the Motion for Summary

Judgment and the factual affidavits in the response to Motion for Summary

Judgment that this Court should (1) reverse the granting of the Summary Judgment

and (2) remand the case to the trial court for trial. The Appellants showed valid

causes of actions and facts and the this court should reverse the Orders of

Dismissal for Dr. Brewer and remand the case to the trial court for trial.

Page 50
 Respectfully Submitted,

Paul Craig Laird II Law Firm, PLLC.

/s/ Paul Craig Laird II
By: Paul Craig Laird II
SBOT #11795420
800 West Airport Freeway
Suite 800, LB 6015
Irving, Texas 75062
(972) 554-0929
(214) 260-4935 fax
pcl880@aim.com
ATTORNEY FOR APPELLANTS
CERTIFICATE OF COMPLIANCE
Based on a word count using Microsoft Word 2007, this Appellant’s Brief
contains 12,584 words excluding the portions of the brief excluded from the word
count under T.P.A.P.94(i)(l).
/s/ Paul Craig Laird II
Paul Craig Laird II
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the above and foregoing
Appellant’s Brief was served on the following by email on the 21st day of
November, 2016.
/s/ Paul Craig Laird II
Paul Craig Laird II
Appellee Kirk Brewer, M.D. counsel of record:
Robert B. Wagstaff
McMahon Surovik Suttle, P.C.
400 Pine Street, Suite 800
Abilene, Texas 79601
Appellee San Angelo Community Medical Center counsel of record:
James J. McGoldrick
Jones Carr McGoldrick, LLP
5910 N. Central Expressway, Suite 1700
Dallas, Texas 75206

Page 51
 APPENDIX

(1) Dr. Montoya’s Fourth Amended Original Petition

(2) Dr. Montoya’s Sixth Amended Original Petition

(3) Defendant Kirk Brewer, M.D.’s Motion to Dismiss and for Recovery of
Costs and Attorney’s Fees

(4) Defendant Kirk Brewer, M.D.’s Amended Motion to Dismiss and for
Recovery of Costs and Attorney’s Fees

(5) Response to Motion to Dismiss

(6) Supplemental Response to Motion to Dismiss

(7) Order on Defendant Kirk Brewer, M.D.’s Motion to Dismiss per the Texas
Citizens Participation Act

(8) Order on Defendant Kirk Brewer, M.D.’s Motion to Dismiss per Rule 91(a)
of the Texas Rules of Civil Procedure

(9) Defendant San Angelo Community Medical Center’s Traditional Motion for
Summary Judgment

(10) Plaintiffs Steve F. Montoya, Jr. M.D., West Texas Renal Care and West
Texas Nephrology’s Response to Defendant San Angelo Community
Medical Center’s Motion for Summary Judgment and Objection and Request
for Continuance

(11) Order of Defendant San Angelo Community Medical Center’s Summary
Judgment

(12) Response to Motion to Dismiss of San Angelo Community Medical Center

(13) Texas Rule of Civil Procedure 91(a)

(14) Texas Civil Practice & Remedies Coe §27.001 et.seq.

(15) In Re Memorial Hermann Hospital System, 464 S.W. 3d 686 (2015)
Page 52
(16) In Re Lipsky, 460 SW3d 579 (Tex.2016)

(17) City of Dallas v. Sanchez, 494 S.W.3d 722, 724 (2016)

Page 53
TAB NO. 1
 Filed for Record
1/11/2016 4:15:34 PM
Sheri Woodfin, District Clerk
Tom Green County, Texas

CAUSE NO. B-15-0285-C

STEVE F. MONTOYA, JR., M.D. § IN THE DISTRICT COURT OF
WEST TEXAS RENAL CARE §
WESTTEXASNEPHROLOGY §
§
vs. § 119th JUDICIAL DISTRICT
§
SAN ANGELO COMMUNITY §
MEDICAL CENTER AND §
KIRK BREWER, M.D. § TOM GREEN COUNTY, TEXAS

PLAINTIFF'S FOURTH AMENDED ORIGINAL PETITION

Plaintiff's STEVE F. MONTOYA, JR., M.D., West Texas Renal Care and West Texas
Nephrology file this Fourth Amended Original Petition and would show:

1. This case should be conducted under Discovery Level Two until the Court enters a Level
Three Scheduling Order.

2. Plaintiff STEVE F. MONTOYA, JR., M.D. is an individual residing in Tom Green
County, Texas. Plaintiff West Texas Renal Care is a Texas Corporation with its principal
place of business in Tom Green County, Texas. Plaintiff West Texas Nephrology is a
Texas-Professional Association with its principal place of business in Tom Green County,
Texas.

3. Defendant San Angelo Community Medical Center is a Delaware LLC that is registered
to do business in the State of Texas and has its principal place of business in San Angelo,
Tom Green· County, Texas. San Angelo Medical Center can be served by serving its
registered agent Corporation Service Company d/b/a CSC-Lawyers Incorporating Service
Company as its registered address, 211 E. 7ili Street, Suite 620, Austin, Texas 78701.

Defendant Kirk Brewer, M.D. is an individual whose principal place of business and
residence is in Tom Green County, Texas. Defendant Kirk Brewer, M.D. can be served
at his office at- San Angelo Medical Center at 3501 Knickerbocker Rd., San Angelo,
Texas 76904.

4. : Venue and Jurisdiction

PLAINTIFF'S FOURTH AMENDED ORI0Ilf18(JETIT10N Page 1 of 13
 Venue is proper in Tom Green County under Tex.Civ.Prac. & Remedies Code Section
15.002(a) (1) as all or a substantial part of the events or omissions giving rise to this legal
action occurred in Tom Green County, Texas.

5. Dr. Montoya, West Texas Renal Care and West Texas Nephrology, PA have incurred and
sues for damages in the maximum amount of $ 6,400,000.00 plus three times for
exemplary damages plus attorneys and costs as allowed by law and jurisdiction is proper
in this Court.

6.1 Dr. Steve F. Montoya has practiced as a nephrologist since 1979 in San Angelo, Texas.
Dr. Montoya has practiced at San Angelo Community Hospital since 1981. Dr. Montoya
in developing, building and keeping his practice has always taken patients as an on-call
staff attending physician from the emergency room/department of San Angelo
Community Medical Center.

6.2 In developing and building a practice Dr. Montoya as a nephrologist wanted long term
kidney dialysis patients to treat in his practice. Referral from hospitals and area
physicians is extremely important to a nephrologist to building and keeping a practice.
The ability to obtain referrals from a hospital and area physicians is a primary source of
patients with kidney disease. This case is for the anticompetitive actions of the
Defendants posing a danger of monopolization or attempted monopolization of patient
choice and causing patients to pay more for medical care and injuring consumer patients.

6.3 Besides word of mouth and patient to patient referral Dr. Montoya built his patient base
from referring physicians, from referrals of patients who came to the emergency
room/department and hospital patients with kidney disease. A patient who lives in the
service area/relevant market of San Angelo Community Medical Center and needs long
term care which can include dialysis is one of the primary ways Dr. Montoya and his
entities succeed. Dr. Montoya during his 36 year career in San Angelo built his practice
including a dialysis unit that can serve 24 patients per shift.

6.4 The service area/relevant market for San Angelo Community Medical Center is Tom
Green County and contiguous counties.

PLAINTIFF'S FOURTH AMENDED ORIGilf'SfETITION Page2 of 13
6.5 Dr. Brewer is an employee of an entity owned and created by San Angelo Community
Medical Center. Dr. Brewer is the chief of staff of the hospital and head of the hospitalist
group that practices at San Angelo Community Medical Center. Dr. Montoya has been
denied the referral of patients . that come into the emergency room with kidney
problems/illness/disease. These patients are being referred to the hospital owned group.
Even Dr. Montoya's current patients are being referred to hospitalist/hospital owned
group. The group owned by the hospital is costing the patient money because the patients
have to pay for a hospitalist and are then being referred to a different nephrologist whose
group has a contract/agreement with the hospital and its owned entities. The patients are
denied the opportunity to save money. The hospitalist group charges the patients at a
higher comprehensive rate/code.

6.6 At all relevant times Dr. Kirk Brewer, as a principal officer of Community Medical
Associates and Chief of Staff of San Angelo Community Medical Center (SACMC) and
head of the hospitalist system at (SACMC) with agents/employees of (SACMC) working
under his control, direction, or in furtherance of unlawful and improper actions was and is
employed by and acting in furtherance of the business of (SACMC) and its owned
medical practice(s). Dr. Brewer is individually liable for his own illegal, improper acts
and omissions. Dr. Brewer at all times acted for (SACMC). Dr. Brewer is also liable for
the improper acts and omissions as Chief of Staff of (SACMC). Dr. Brewer, as well as
the other agents/employees of (SACMC) and/or its owned practices are liable under the
doctrine of respondeat superior and vicarious liability.

6.7 The Defendants (SACMC) and Dr. Kirk Brewer, acting by and through its
agents/employees/principals/officers acted together to carry out the improper and illegal
actions and therefore are jointly and severally liable for civil conspiracy in carrying out
their wrongful activities.

6.8 All conditions precedent to Plaintiffs recovery have been performed or have occurred.
Dr. Montoya is a hard working member of the San Angelo Medical Community. Dr.
Montoya came out of San Antonio, Texas and received a full scholarship for his
undergraduate degree at Rice University. After graduating Rice University Dr. Montoya
then went on to medical school at The University of Texas Southwestern Medical School

PLAINTIFF'S FOURTH AMENDED ORIODftr2ETITI0N Page 3 of 13
 in Dallas, Texas. After Dr. Montoya finished his residency and training he went to in
west Texas. Dr. Montoya built a stellar reputation for quality patient care, excellence in
the practice of nephrology and dialysis care of the long term illness of kidney
failure/disease.

6.9 Dr. Montoya is the only nephrologist in San Angelo that speaks Spanish. Dr. Montoya
cares about his patients, his fellow medical professionals, and his community. Dr.
Montoya's practice has expanded over the years including with the referral from local
physicians, the emergency room/department and hospital consultation because of his
well-deserved reputation for quality patient care.

6.10 Dr. Montoya's skill as a nephrologist was until the hospital created its own medical
practice, a marketing asset for SACMC. Dr. Montoya received his rotating share of
referrals of patients with kidney disease/illness/failure until SACMC created its own
practice groups.

6.11 The recommendation and referral through the emergency room/department directly
affects the patient's choice of doctor. The doctor in turn decides the patient's course of
treatment and what and how the patient is coded for billing on treatment.

6.12 The choice of doctor directly affects the patient's costs and expenses both in the short
term and for long term care of kidney disease/illness/failure. Individuals with kidney
disease can require care for the rest of their life which may include dialysis.

6.13 Improperly manipulating the doctor a patient receives care from creates a cost to the
patient and improperly distorts free and informed patient choice and options for medical
care.

6.14 The correct and appropriate way for any health care provider of emergency hospital
services and nephrology service is to provide the highest quality of care to the patient.
Patients deserve to have lower costs. The illegal and unjust way of treating patients is to
manipulate their free choice in the market place. In this case it is to only refer a patient to
a hospitalist, in a group owned by the hospital, and to them only refer a patient to a

PLAINTIFF'S FOURTH AMENDED OR1Gllf~3ETITI0N Page4 of 13
 nephrologist in a hospital owned group and to malign and smear a highly qualified
nephrologist in the practice at the same hospital.

6.15 The Defendants decided to then have a covert whisper campaign and not refer any
patients to Dr. Montoya.

6.16 The Defendants illegal and anti-competitive acts unfairly and wrongfully have cast Dr.
Montoya's stellar reputation under a dark cloud. Also the patients of Dr. Montoya have
been refused the services of Dr. Montoya when the patient is in the hospital. The patients
are suffering in paying higher costs and expenses for their care.

6.17 Dr. Montoya was brought up on charges of incompetent patient care for misspelled words
on a chart. These actions were just taken to discredit Dr. Montoya and his ability to
practice medicine in San Angelo and at San Angelo Community Medical Center. None
of the actions of the hospital were based on patient care but for retaliation after Dr.
Montoya complained about the Defendants anticompetitive actions. The actions also
were to hurt the reputation of Dr. Montoya in advanced abilities in nephrology. Dr.
Montoya corrected the "misspelled words" and harsh undeserved review of his charts
continued. Despite the efforts of Defendants the railroading of Dr. Montoya was not
successful.

6.18 The actions of the Defendants have a tendency to reduce or eliminate competition that is
not offset by any countervailing procompetitive justification.

Causes of Action

The causes of action are only under the laws of the State of Texas.

7. Tortious Interference with current and prospective business/patient relations

7.1 The actions of the Defendants are tortiously interfering with patient choice and care. The
actions are being taken by the Defendants to keep the Plaintiff from having a successful
nephrology practice. Defendant's actions are such that they know that their interference
will cause the Plaintiff damage in excess of the minimum judicial limits of the Court.

PLAINTIFF'S FOURTH AMENDED ORIGilf'84ETITION Page 5 of 13
 Defendants intentionally interfered with Dr. Montoya's longstanding and continuous
relationships with patients and referring physicians from the emergency room/department
in a concerted effort to restrain completion and monopolize the practice of nephrology
and the treatment of long term kidney disease in the relevant market described in this
petition.

7.2 Every contract, combination or competition of the relevant defendants in restraint of trade
or commerce is unlawful and is just as it is unlawful for any person to monopolize,
attempt to monopolize or conspire to monopolize any part of trade or commerce.

7.3 The Plaintiff pleads a reduction of competition in the relevant market in general to
patients. A monopoly in this case is caused by the elimination of Dr. Montoya and is just
as harmful as it would be if driving out competition in large groups. Removal of Dr.
Montoya from the hospital and its relevant market will adversely affect and unreasonably
affect overall competitive conditions and cost patients money. The Defendants through
their actions are possessing or trying to possess monopoly power in the relevant market
and the willful acquisition or maintenance of that power is distinguished from growth
through business acumen.

7.4 The Defendants are engaging anticompetitive conduct with a specific intent to
monopolize and a dangerous probability of achieving monopoly power and the
defendants' ability to lessen or destroy completion in the relevant market and cost
patients money.

7.5 Patients are damaged by the actions of the Defendants by higher cost of care.

Patients have an absolute right under the patients Bill of Rights attached as Exhibit D to
"Participate in decisions about your care, including developing your treatment plan,
discharge planning and having your family and personal physician promptly notified of
your admission. Select providers of goods and services to be received after discharge."
The Plaintiffs did not follow the Bill of· Rights and violated the patient choice and
damaged the Defendants in violating the Bill of Rights.

7.6 The actions of the Defendants are illegal and anticompetitive.

PLAINTIFF'S FOURTH AMENDED ORIGDf465ETITION Page 6 of 13
7. 7 San Angelo Community Medical Center created its own group of doctors owned by the
hospital in both hospitalist groups and in a group named Community Medical Associates.
These groups came into existence on or about 2006. Until these groups Dr. Montoya
received his share of new patients from the hospital and emergency room. After these
groups were formed Dr. Montoya received only one referral since 2007.

Facts for Cause of Action

7.8 Realleges all facts in paragraph 6 above.

7.9 Dr. Montoya was admitted to practice nephrology at San Angelo Community Medical
Center in 1981. Dr. Montoya has full staff privileges for the practice of nephrology at
San Angelo Community Medical Center. The facts of the case are that Kirk Brewer,
M.D. was during his actions an officer and/or Chief of Staff of the medical staff of San
Angelo Community Medical Center. Kirk Brewer, M.D. was hired by San Angelo
Community Medical Center to run the hospitalist service. As an officer of the staff and
Chief of Staff Kirk Brewer, M.D. owed Dr. Montoya as a member of the staff a fiduciary
duty to not interfere by direct or indirect action with his practice of nephrology at San
Angelo Community Medical Center.

7.10 Kirk Brewer, M.D. came to San Angelo Community Medical Center in 2007. Part of Dr.
Montoya and obtaining patients is that the hospital emergency room uses a rotating
system of specialists admitted in that practice to see patients in the hospital and
emergency room. When you are the named specialist you receive a call from the
emergency room physician that a doctor with your specialty is needed for a patient. A
big part of Dr. Montoya's practice was obtaining new patients and treating existing
patients that came to the emergency room and needed a nephrologist. Since 1981 Dr.
Montoya has obtained new patients from the emergency room.

7.11 Until 2007 Dr. Montoya would receive 10-20 calls from the emergency room, per month
to treat either new or existing patients at the San Angelo Community Medical Center.
Since 2008 Dr. Montoya has only received one call from the emergency room or a
hospitalist for consultation as a nephrologist, except for one time for treatment of a new
patient or existing patient that suffered with kidney problems.

PLAINTIFF'S FOURTH AMENDED ORIGDfflgETITION Page 7 of 13
7.12 The one time for a new patient is described below. On January 24, 2014 Dr. Montoya
was called by the San Angelo Community Medical Center emergency room physician on
duty and the hospitalist Dr. Bartels. Dr. Bartels and the emergency room physician
informed Dr. Montoya that a patient was diagnosed with acute renal failure. Dr.
Montoya was informed his name was on the call board in the emergency room as
nephrologist on call. Both of the above doctors asked Dr. Montoya to consult concerning
treatment for that patient. Dr. Montoya gave an initial consult advice/orders of treatment
to both doctors. This consultation call was to Dr. Montoya at 9:38 p.m. Dr. Montoya
informed them he would come see the patient and then review the test results and
determine any additional treatment for the patient. Attached as Exhibit A is a true and
correct copy of the redacted hospital record showing the facts on January 24, 2014.

7.13 On January 25, 2014 at 8:10 a.m. Kirk Brewer, M.D. took over the hospitalists care of the
I
patient as his rotation as the hospitalist started. Then without ever seeing the patieft or
the chart Kirk Brewer, M.D. cancelled Dr. Montoya consult and treatment byl Dr.
I

Montoya and consulted another nephrologist. Dr. Montoya went to the call board! and
witnessed his name on call as the nephrologist on call on January 24 and 25, 2014. !The
San Angelo Community Medical Center is required to have an official EMT!LA
Medicare call list for on call physicians for the San Angelo Community Medical C nter
I
to take Medicare patients. This is the list my name was on and was intentionally ign1red.
This also violates a patient's right to choose their physician. This list was followed pntil
Dr. Brewer caine to San Angelo Community Medical Center and took charg~ of
hospitalists. The nephrologist he brought in for consult is one that is in a group that ~irk
I
I
Brewer, M.D. has a contract for paid services. Dr. Brewer did not see the patient hen
he removed me as the treating nephrologist he issued the change via a telephone rder
(see Exhibit B). Kirk Brewer, M.D. without seeing the patient, or chart change the
patient's doctor. This change of nephrologist was for Kirk Brewer, M.D. 's econ· mic
gain and caused Dr. Montoya economic loss. Attached as Exhibit Bis a true and cohect
I
copy of the redacted hospital record showing the facts on January 25, 2014. '

PLAINTIFF'S FOURTH AMENDED ORIGDf~7ETITION Page 8 qf 13
7.14 Kirk Brewer, M.D. by his actions of removing Dr. Montoya as the nephrologist published
a statement that Dr. Montoya was not a competent nephrologist to treat patients coming
to the San Angelo Community Medical Center emergency room. Kirk Brewer, M.D. was
aware that his actions would become known to the staff physicians of San Angelo
Community Medical Center and that he was by conduct and a whisper campaign saying
Dr. Montoya should not be allowed to treat patients at San Angelo Community Medical
Center.

7.15 Attached to this petition as Exhibit C is the true and correct sworn statement that an
existing patient of Dr. Montoya, Mrs. Welch tried to see Dr. Montoya in the emergency
room of San Angelo Community Medical Center and that the emergency room would not
call Dr. Montoya to treat his existing patient Mrs. Welch is over 90 years of age and Dr.
Montoya has treated her for at least 20 years.

7.16 Another patient of mine, whose name is withheld per privacy rights, who is also over 90
years of age and has been Dr. Montoya patient for at least 10 years requested me when
she went to the emergency room and she also was refused to see Dr. Montoya.

7.17 A patient has the absolute right to be treated by their physician. Both of the above
happened when Kirk Brewer, M.D. was President of the medical staff or an officer of the
medical staff and when he was head of the hospitalist service when the above happened.

7.18 Again by the actions of the hospitalists and emergency room physicians who are
controlled by their supervisors or lead physicians Kirk Brewer, M.D. through this actions
defamed Dr. Montoya as a qualified physician or staff at San Angelo Community
Medical Center.

7.19 Furthermore, Plaintiff is entitled to exemplary damages from the Defendant, because they
acted with malice required to support an award of exemplary damages. Defendants have
acted with a specific intent to cause injury to the Plaintiff.

7.20 Plaintiff sues under this causd of action for anticompetitive conduct and/or effect.

7.21 The Plaintiff sues for damages that are within the jurisdictional limits of this ourt.

PLAINTIFF'S FOURTH AMENDED ORIGilf£ffETITION 1 age 9 of 13
8. Tortious Interference with current and prospective business relations - Exemplary
Damage

The Plaintiff will show that these actions, set forth above, of interference are done with
malicious intent in interfering with the Plaintiffs right to peaceably conduct his business
and are done out of spite and ill will towards Plaintiff. The Plaintiff is entitled to and
sues for exemplary damages within the jurisdictional limits of this Court.

Plaintiff sues under this cause of action for anticompetitive conduct and/or effect.

9. Defamation Per Se

9.1 The statements of the Defendant constitute defamation per se in that they suggest that the
Defendant is not a competent nephrologist and should not be referred patients.

9.2 The Defendant has published the above statements on numerous occasions through a
whisper campaign and his conduct.

9.3 The defamatory statements are false. Defendant has and is publishing the remarks to
individuals and entities to harm the Plaintiff and to remove all competition illegally in an
anti-competitive action.

9.4 The statements and actions of Kirk Brewer, M.D. were published by his conduct. The
actions were referring to Dr. Montoya as a non-competent nephrologist. The statement(s)
were defamatory and caused Dr. Montoya economics loss.

9.5 The total loss is between $1,000,000.00 and $6,500,000.00 from not receiving any
referrals from the emergency room or hospitalists.
9.6 The defamatory statements are untrue. Dr. Montoya is a competent and qualified
nephrologist to treat patients at San Angelo Community Medical Center.

9.7 The actions of Kirk Brewer, M.D. were intentional or done with negligence when Kirk
Brewer, M.D. knew that the statement was false and his actions would lead a reasonable
prudent physician or patient knowing/believing of its defamatory potential.

PLAINTIFF'S FOURTH AMENDED ORIGilffJ-gETITION Page 10 of 13
9.8 As officer and as President of the medical staff Kirk Brewer, M.D. must follow the rules
at San Angelo Community Medical Center and staff of San Angelo Community Medical
Center and have a new patient in the emergency room or hospital that needs a specialist
consultation assigned to the name off the rotating consultation list. By Kirk Brewer,
M.D. not following this procedure Dr. Montoya did not receive any consultation requests
from the emergency room or hospitalist at San Angelo Community Medical Center in
2008-present and one in 2014.

10. Malice

By reference Plaintiff adopts and realleges Paragraphs 6-9 of the Original Petition as if
they were set forth herein. For further cause of action, Defendant's conduct amounts to
malice under the Texas Civil Practice and Remedies Code§ 41.007 and the common law
of Texas because Defendant's actions have and are involving an extreme degree of risk
considering the probability and magnitude of the potential harm to others. Plaintiff is
entitled to exemplary damages and does hereby sue for them.

11. Business Disparagement

The Plaintiffs reallege the allegations and facts set forth above in paragraphs 6-9.

The Defendants published disparaging comments and allegations about Dr. Montoya and
his practice. Defendants took the action(s) to harm the Plaintiffs business interests.
Defendants knew the disparagement was false and the actions were done with malice.

12, Restraint of trade

12.1 The Plaintiffs reallege the allegations and facts set forth above in paragraphs 6-9.

12.2 Plaintiff makes claim under the Texas Business and Commerce Code Section 15.21
known as the Texas Free Enterprise and Antitrust Act and it recognizes as illegal
improper attempts to abuse the patient referral of the emergency room/department and
· hospital patients, as well as conspiracies to limit patient choices by concerted illegal
action as engaged by the Defendants. The Plaintiffs seek relief for this anticompetitive

PLAINTIFF'S FOURTH AMENDED ORIGilf1{JETITION Page 11 of 13
 action(s) solely under the laws established by the State of Texas concerning
anticompetitive misconduct affecting Texas citizens and patients.

12.3 In Tom Green County the Plaintiffs are in competition with the Defendants. Defendants
have derlived or attempted to derive illegal benefit and patient choice and option for care
was imp~operly
!
limited in Tom Green and contiguous counties. The area of service the
Defendants are trying to control is Tom Green and contiguous counties. The Defendants
are trying to restrain competition in these counties
I
I

12.4 Defendaiits actions are in furtherance of the combination and conspiracy and with the
I

purpose Eµtd intent of excluding the Plaintiffs from the patient care market in the relevant
market drscribed above and destroying competition from Dr. Montoya and causing a
resulting (loss and cost to patients. These acts were done with the specific intent to harm
I

both Dr. jMontoya and patients in the relevant market. These acts were done with the
specific ~tent to weaken or eliminate completion from the Plaintiffs and injure patients
and obtai~ market dominance in the relevant market. ·
I
12.5 The actitjns also hurt the patient population in the relevant market by removing or trying
I
to removt completion in the practice of nephrology.
l
12.6 The con4erted actions of the Defendants were flagrant and willful and done for the
l
purpose tf harming Dr. Montoya the Plaintiffs and patients and illegally and improperly
diverting!the patients to the hospital owned practice.
!
12.7 The acts jof the Defendants constitute illegal monopolization, attempted monopolization
and /or {onspiracy to monopolize under applicable Texas law. This case is for the
anticompbtitive actions of the Defendants posing a danger of monopolization and injuring
I
consumet patients. The Defendants are hurting patients in the overall competition in the
relevant i;narket.
i

12.8 Plaintiff ~ues under this cause of action for anticompetitive conduct and/or effect.

13. Damages~
l
The PiaiJtiffs
i
sue for actual damages including consequential damages, mental anguish,
lost busi~ess reputation, attorney's fees as allowed by law and other actual damages in
t

I
PLAINTIFF'S ~OURTH AMENDED ORIGilf-,,fETITION Page 12 of 13
 the maximum amount of$ 6,400,000.00 plus attorney's fees and costs as allowed by law.
An amount is also sued for statutorial additional trebling for exemplary damages do to the
malicious and egregious conduct of the Defendants.

Prayer for Relief

For these reasons Plaintiff requests that:

1. Plaintiff prays that citation and notice issue as required by law and that the Court
grant the relief requested in this petition.

2. Plaintiff be awarded damages within the jurisdiction limits of this Court.

3. Plaintiff be award exemplary damages within the jurisdictional limits of the
Court.

4. Reasonable attorney's fees.

5. Costs of Suit.

6. Such other and farther relief to which Plaintiff may be justly entitled including but
not limited to damages within the jurisdictional limits of this Court, pre and post
judgment interest as allowed by law.

Respectfully Submitted
Paul Craig Laird II Law Firm, PLLC
Isl Paul Craig Laird II
By: Paul Craig Laird II
800 W. Airport Freeway
Suite 880 LB 6015
Irving, TX 75062
972-554-0929
214-260-4935- fax
pcl880@aim.com
SBOT 11795420
Attorney for Plaintiff

PLAINTIFF'S FOURTH AMENDED ORIGilf~ZETITION Page 13 of 13
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MPLETE THIS SECTION FOR PATIENTS WHO WTLL DE SENT TO A PATTENT ROO:W!
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P~ysfd~n Signature

Physician Adrciissym Ot_ders . ..
NS-2701-IOHMS J0/10 (ReV. o,J12r Page l of I

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-------------·· .... ········-·-----------··-·---·--·-···--·--- · - ····--·····-···········. ···-· ..... ·-···-·-----

12/16/2015 WBD 13123 FAX 3252244284 West Toxo, Nophrology ••• CRAIG LAIRD M'TORNBV llJ003/00 3

Aprll 17, 2014

I am Karan~ Tims~· the· daughter of Eunice Welch. I am writing to you on her behalf
concerning ·hetadrnlssfon to SACMC on 11/28/2011. When -asked by the ER admission
staff.: wctr.eplled that "Dr. Montoya" was her doctor. We were admitted to the
hcspltalfsta'· aervtce. We do not appreciate the fact that we did not have our physician
of ohbfce at1he hospital. Please correct this to help maintain quality patient care.

Sincerely,
Karen Tims ?,
?(.u.-11~
Stateof ~fJ.J
County o f ~ ~ .
Su~bed and·swo~ to before me this _.f1!t;;of,__.~"""-4~-
.... ----'-..:...~---..:..l_fl'--

;·RoamiARY~,=.
My~': .. .·
• Auguat11. 20

175
 11111 !IIll11111~11111111
"2PBOR•

Notlc~ of Patient Rights and Responslbllltles
You have the right to:
• Be treated In a dignified and respectful manner and lo • Receive Information about lhe outcomes of your
receive reasonable responses to reasonable requests care, treatment and services, Including unanticipated
for service. outcomes.
• To erteotlve communication that provides fnformaUon In • Give or withhold Informed consent when making
a manner you undersland, In your preferred language
with provisions of lnterpreUng or translallon services, decisions about your care, treatment and services.
at no cost and In a manner that meets your needs In
the event of vision, speech hearing or cognitive • Receive Information about benefits, risks, side
Impairments. lnformaUon should be provided In easy to effects to proposed care, treatment and services: the
understand terms that wlll allow you to formulate likelihood of achieving your goals and any potential
Informed consent. problems that might occur during recuperation from
proposed care, treatment and service and any
• Respect for your cultural and personal values, beliefs reasonable alternatives to the care, treatment and
. and. preferences. ---·· - - - . . services proposed,
~ •.f~rsQo~! imya,.w... pr~QY Qf. Y.9.Vr heol!h loforcnaUon • Give or withhold fnformecf conseritto~recordlngs, ...
and to. receive a nollce of the faollfty'e prlVaoy
pracUces. fllmlng or obtaining Images of you for any purpose
other than your care.
• Pain management.
• Pardclpate In orrefuse to participate In research,
• Accommodation for your rellglous and other spiritual fnvestfgatJon or cllnlcal ~lals wltho~ Jeopardlzlng
services. . . - your access to care and services unrelated to the
• ·Te aooess.rreque~t a.~endmen1. to and obtarn · research.
lnformaUon on dfscf9$urea of your health lnrormallon In
accordance. with law and·regulallon within a . • Know the names of the praotJUoner who has primary
reasonable time frame. responsibility for your care, treatment or services and
the names of other practitioners providing your care.
• To have:a·tanttly:m~.rnber, friend or other support
fndfvlduano:ba.:p~Q'ent Wlt'1 you during the CQurse of • Formulate advance directives concerning care to be
~ur- stay, unless-tnat ·pereon'f.presence Infringes on received at end•of•llfe and to have those advance
others' rights, safety otls medfcally oontralndlcated. directives h~nored to the extent of the facUlty's
• eare·o, services provided withoufdlsorlmlnatlori based abfflty to do so In accordance with law and regulation.
You also have the right to review or revise any
·on ~ge, race, ethnlclty,.rellglon, culture, language,
physToal or mental·dlsablllt~ socloeconomlo stalus, advance directives. ·
sex, sexual·olfentatfon, anti gender Identity or
expression. • Be free from neglec~ exploltatlon; and verbal, mental,
physical and sexual abuse.
, Partlclpate·Jn decisions abou~ your care, lnoludlng
develdplng yo.ur. treatm•nt plan, discharge P.lannlng • An environment-that Is safe, preserves dignity and· ·
· ·and ·JiavlnU!QUJ- fainffy.encr. personal physician
promptly noUffed of your admission. contributes to a positive self-Image.

, SelecJ.r>19vlders of goods and services to be received • Be free from any forms of restral nt or secluslon. used
alterdlscharge. as a means of convenience, discipline, coercion or
retallatlonj and to have the least restrictive method
• Refuse care, treatment.or services In aooordance with of restraint or secluslon used only when necessary to
law and regulatlon and to leave the facility against ensure patient safety.
advice of tne physician.
, Have a surrogate decision-maker parllolpate In oare, , Access protective and advocacy services and to
treatment and services deol~lons when you are unable receive a list of such groups upon your request.
to make your ow,, _decisions. .
Patient BJgb·te ·and Responsibilities
ADM•l90l0f1MS,,tfX Page J of 2
J _ _ _ _ _ ___
04/11 (Rev. 08/12; 07/}_3, 03/14, 07/14)
J PAT #1
ADMIT DATB:
SEX1 AGB1
CHART #:
DOB:
ATT, OR, 1 .

176
TABN0.2 _
 Filed for Record
5/4/2016 6:35:37 PM
Sheri Woodfin, District Clerk
Tom Green County, Texas

CAUSE NO. B-15-0285-C
STEVE F. MONTOYA, JR., M.D. § IN THE DISTRICT COURT OF
WEST TEXAS RENAL CARE §
WESTTEXASNEPHROLOGY §
§
VS. § 119th JUDICIAL DISTRICT
§
SAN ANGELO COMMUNITY §
MEDICAL CENTER AND §
KIRK BREWER, M.D. § TOM GREEN COUNTY, TEXAS

PLAINTIFF'S SIXTH AMENDED ORIGINAL PETmON

Plaintiff's STEVE F. MONTOYA, JR., M.D., West Texas Renal Care and West Texas
Nephrology file this Sixth Amended Original Petition and would show:

1. This case should be conducted under Discovery Level Two until the Court enters a Level
Three Scheduling Order.

2. Plaintiff STEVE F. MONTOYA, JR., M.D. is an individual residing in Tom Green
County, Texas. Plaintiff West Texas Renal Care is a Texas Corporation with its principal
place of business in Tom Green County, Texas. Plaintiff West Texas Nephrology is a
Texas Professional Association with its principal place of business in Tom Green County,
Texas.

3. Defendant San Angelo Community Medical Center (SACMC) is a Delaware LLC that is
registered to do business in the State of Texas and has its principal place of business in
San Angelo, Tom Green County, Texas. San Angelo Medical Center can be served by
serving its registered agent Corporation Service Company d/b/a CSC-Lawyers
Incorporating Service Company as its registered address, 211 E. 7th Street, Suite 620,
Austin, Texas 78701.

Defendant Kirk Brewer, M.D. is an individual whose principal place of business and
residence is in Tom Green County, Texas. Defendant Kirk Brewer, M.D. can be served
at his office at San Angelo Medical Center at 3501 Knickerbocker Rd., San Angelo,
Texas 76904.

PLAINTIFF'S SIXTH AMENDED ORIGINAL PEmION Page 1 of25

JQQ
 Other participants in the anticompetitive conspiracy against Plaintiffs include Dr.
Brewer's group of hospitalists (exact name unknown), West Texas Medical Associates
("WTMA") and groups affiliated with the hospital. These entities and individuals are not
defendants at this time.

4. Venue and Jurisdiction
Venue is proper in Tom Green County under Tex.Civ.Prac. & Remedies Code Section
15.002(a) (1) as all or a substantial part of the events or omissions giving rise to this legal
action occurred in Tom Green County, Texas.

5. Dr. Montoya, West Texas Renal Care and West Texas Nephrology, PA have incurred and
sues for damages in the maximum amount of$ 6,400,000.00 plus three times exemplary
damages plus attorneys' fees and costs as allowed by law. Until 2007 Dr. Montoya
would receive 10-20 calls from the emergency room per month to treat either new or
existing patients at the San Angelo Community Medical Center. Since 2008 Dr.
Montoya has only received one call from the emergency room or a hospitalist for
consultation as a nephrologist, except for one time for treatment of a new or existing
patient that suffered with kidney disease/problems. The lack of referrals caused
substantial injury to Dr. Montoya and damaged his ability to compete, because he
depended on these referrals and consults to build his practice. A majority of patients who
need kidney treatment/ suffer from kidney disease in a hospital later need continuing care
for their kidneys or related problems; the most common of such continuing treatments is
kidney dialysis. A typical kidney dialysis patient will need treatment for average of 6
years, and each such patient would mean revenue to Dr. Montoya's practice of
approximately $100,000 per year. Dr. Montoya estimates that he has lost at least 100
long term kidney dialysis patients from 2007 to the present due to the Defendants'
anticompetitive scheme to refuse to give him patient referrals or consults. He estimates
that this lack of referrals has thus cost him $3,000,000 to $6,500,000 over that period of
time.

6.1 Dr. Steve F. Montoya has practiced as a nephrologist since 1979 in San Angelo, Texas.
Dr. Montoya has practiced at San Angelo Community Hospital since 1981. Dr. Montoya
in developing, building and keeping bis practice, has always taken patients as an on-call

Page 2 of25
PLAINTIFF'S SIXTH AMENDED ORIGI8~1PETITION
 staff attending physician from the emergency room/department of San Angelo
Community Medical Center.

6.2 In developing and building a practice Dr. Montoya as a nephrologist wanted long tenn
kidney dialysis patients to treat in his practice. Referral from hospitals and area
physicians is extremely important to a nephrologist to building and keeping a practice.
The ability to obtain referrals from a hospital and area physicians is a primary source of
patients with kidney disease. Defendants in this case conspired to deprive Plaintiffs of
referrals needed for his nephrology practice. This case is for the anticompetitive actions
of the Defendants posing a danger of monopoliz.ation or attempted monopoliz.ation of
patient choice and causing patients to pay more for medical care and injuring consumer
patients.

6.3 Besides word of mouth and patient to patient referral Dr. Montoya built his patient base
from referring physicians, from referrals of patients who came to the emergency
room/department and hospital patients with kidney disease. Dr. Montoya,s practice
depends on finding a patient who lives in the service area/relevant market of San Angelo
Community Medical Center and needs long tenn care which can include dialysis.
Dialysis care is one of the primary ways Dr. Montoya and his entities succeed. Dr.
Montoya during his 36 year career in San Angelo built his practice including a dialysis
unit that can serve 24 patients per shift.

6.4 The service area/relevant market for San Angelo Community Medical Center is Tom
Green County and contiguous counties. The service area/relevant geographic market, for
the purposes of all of Plaintiff's claims for antitrust violations and other anticompetitive
conduct, is Tom Green County and contiguous counties. Patients needing emergency
care for kidney ailments are not likely to travel far from their homes for such treatment,
so the relevant geographic market for hospital nephrology services and for nephrology
consults and referrals is therefore Tom Green County and contiguous counties. Patients
needing longer term nephrology services, such as kidney. dialysis, often need repeated
and frequent care from a doctor or dialysis clinic near their home or residence. Such care
is often required multiple times per week. Because patients are not likely to travel far for
such repeated and frequent doctor and clinic visits, doctors and clinics located far from

PLAINTIFF'S SIXTH AMENDED ORIGIN3'cf2TITION Page 3 of25
 Tom Green County are not a substitute for nephrology services in the Tom Green County
area, and the relevant geographic market is therefore Tom Green County and contiguous
counties. Patients needing emergency care for kidney ailments are also not likely to
travel far from their homes for such treatment, so the relevant geographic market for
hospital nephrology services and for nephrology consults and referrals is therefore Tom
Green County and contiguous counties.
6.5 Dr. Brewer is thought be an employee and/or owner of a group of hospitalists affiliated
with, and possibly created by, SACMC. Dr. Brewer is the chief of staff of the hospital
and head of the hospitalist group that practices at San Angelo Community Medical
Center. Dr. Montoya has been denied the referral of patients that come into the
emergency room with kidney problems/illness/disease. These patients are being referred
to the hospital affiliated group. Even Dr. Montoya's current patients are being referred to
the hospitalist/hospital affiliated group. The group affiliated with the hospital is costing
the patient money because the patients have to pay for a hospitalist and are then being
referred to a different nephrologist whose group has a contract/agreement with the
hospital and its affiliated entities. The patients are denied the opportunity to save money.
The hospitalist group charges the patients at a higher comprehensive rate/code.

6.6 At all relevant times Dr. Kirk Brewer, himself, as a principal officer of Community
Medical Associates, San Angelo Community Medical Center and Chief of Staff of San
Angelo Community Medical Center (SACMC) and head of the hospitalist system at
(SACMC) with agents/employees of (SACMC) working under his control, direction, or
in furtherance of unlawful and improper actions was and is employed by and acting in
furtherance of the business of (SACMC) and its affiliated medical practice(s). Dr.
Brewer is individually liable for his own illegal, improper acts and omissions. At various
times Dr. Brewer acted for himself, (SACMC) and/or his group of hospitalists. Dr.
Brewer is also liable for the improper acts and omissions as Chief of Staff of (SACMC).
Dr. Brewer, as well as the other agents/employees of (SACMC) and/or its affiliated
practices are liable under the doctrine ofrespondeat superior and vicarious liability.

6.7 The Defendants (SACMC) and Dr. Kirk Brewer, along with WTMA and Dr. Brewers
group of hospitalists acting by and through its agents/employees/principals/officers acted

PLAINTIFF'S SIXTH AMENDED ORIGIN~jTITION Page4 of25
 together to carry out the improper and illegal actions and therefore are jointly and
severally liable for civil conspiracy in carrying out their wrongful activities.

6.8 All conditions precedent to Plaintiffs recovery have been performed or have occurred.
Dr. Montoya is a hard working member of the San Angelo Medical Community. Dr.
Montoya came out of San Antonio, Texas and received a full scholarship for his
undergraduate degree at Rice University. After graduating Rice University Dr. Montoya
then went on to medical school at The University of Texas Southwestern Medical School
in Dallas, Texas. After Dr. Montoya finished his residency and training he went to in
west Texas. Dr. Montoya built a stellar reputation for quality patient care, excellence in
the practice of nephrology and dialysis care of the long term illness of kidney
failure/disease. Dr. Montoya's reputation in the medical community in the San Angelo
areaffom Green County allowed him to regularly obtain referrals for nephrology work
from the emergency room at SACMC, as well as consults for nephrology work from
other doctors at SACMC. These referrals and consults were and are necessary for Dr.
Montoya's continued presence as a competitor in the market for nephrology services in
the San Angelo/fom Green County area. Dr. Montoya relied on these consults and
referrals to build his nephrology practice, for once he had consulted on a patient, that
patient was likely to remain a patient of Dr. Montoya's if that patient needed continuing
kidney care such as dialysis.

6.9 Dr. Montoya is the only nephrologist in San Angelo that speaks Spanish. Dr. Montoya
cares about his patients, his fellow medical professionals, and his community. Dr.
Montoya's practice has expanded over the years including with the referral from local
physicians, the emergency room/department and hospital consultation because of his
well-deserved reputation for quality patient care. These referrals are necessary for Dr.
Brewer to compete.

6.10 Dr. Montoya's skill as a nephrologist was, until the hospital created its affiliated medical
practice or entered into an exclusive contract with the group of hospitalists affiliated
and/or managed by Dr. Brewer, a marketing asset for SACMC. Dr. Montoya received his
rotating share of referrals of patients with kidney disease/illness/failure until SACMC

PLAINTIFF'S SIXTH AMENDED ORIGIN~4TITION Page S of25
 created its affiliated practice groups and/or entered into an exclusive contract with the
group ofhospitalists affiliated and/or managed by Dr. Brewer.

6.11 The recommendation and referral through the emergency room/department directly
affects the patient's choice of doctor. The doctor in turn decides the patient's course of
treatment and what and how the patient is coded for billing on treatment.

6.12 The choice of doctor directly affects the patient's costs and expenses both in the short
term and for long term care of kidney disease/illness/failure. Individuals with kidney
disease can require care for the rest of their life which may include dialysis.

6.13 Improperly manipulating the doctor a patient receives care from creates a cost to the
patient and improperly distorts free and informed patient choice and options for medical
care.

6.14 The correct and appropriate way for any health care provider of emergency hospital
services and nephrology service is to provide the highest quality of care to the patient.
Patients deserve to have lower costs. The illegal and unjust way of treating patients is to
manipulate their free choice in the market place. In this case the Defendants only
referred a patient to a hospitalist; in a group affiliated with the hospital, then only refer a
patient to a nephrologist in a hospital affiliated group. Defendants also maligned and
then smeared a highly qualified nephrologist in practice at the same hospital.

6.15 Starting in 2008 Defendants decided to then have a covert whisper campaign and not
refer any patients to Dr. Montoya.

6.16 The Defendants illegal and anti-competitive acts unfairly and wrongfully have cast Dr.
Montoya's stellar reputation under a dark cloud. Also the patients of Dr. Montoya have
been refused the services of Dr. Montoya when the patient is in the hospital. The patients
are suffering in paying higher costs and expenses for their care.

6.17 Dr. Montoya was brought up on charges of incompetent patient care for misspelled words
on a chart. These actions were just taken to discredit Dr. Montoya and his ability to
practice medicine in San Angelo and at San Angelo Community Medical Center. None

PLAINTIFF'S SIXTH AMENDED ORIGIN~STITION Page 6 of25
 of the actions of the hospital were based on patient care but for retaliation after Dr.
Montoya complained about the Defendants anticompetitive actions. The actions also
were done to hurt the reputation of Dr. Montoya in advanced abilities in nephrology. Dr.
Montoya corrected the "misspelled words" and harsh undeserved review of his charts
continued. Despite the efforts of Defendants the railroading of Dr. Montoya was not
successful.

6.18 The actions of the Defendants have a tendency to reduce or eliminate competition that is
not offset by any countervailing procompetitive justification.

6.19 Dr. Montoya was admitted to practice nephrology at San Angelo Community Medical
Center in 1981. Dr. Montoya has full staff privileges for the practice of nephrology at
San Angelo Community Medical Center. The facts of the case are that Kirk Brewer,
M.D. was during his actions an officer and/or Chief of Staff of the medical staff of San
Angelo Community Medical Center. Kirk Brewer, M.D. was hired by San Angelo
Community Medical Center to run the hospitalist service. As an officer of the staff and
Chief of Staff Kirk Brewer, M.D. owed Dr. Montoya as a member of the staff a fiduciary
duty to not interfere by direct or indirect action with his practice of nephrology at San
Angelo Community Medical Center.
6.20 Kirk Brewer, M.D. came to San Angelo Community Medical Center in 2007. Dr.
Montoya has long relied on obtaining patients is the fact hospital emergency room uses a
rotating system of specialists admitted in that practice to see patients in the hospital and
emergency room. When you are the named specialist you receive a call from the
emergency room physician that a doctor with your specialty is needed for a patient. A
big part of Dr. Montoya's practice was obtaining new patients and treating existing
patients that came to the emergency room and needed a nephrologist. Since 1981 Dr.
Montoya has obtained new patients from the emergency room.

6.21 The one timeDr.Montoya received a consult for a new patient is described below. On
January 24, 2014 Dr. Montoya was called by the San Angelo Community Medical Center
emergency room physician on duty and the hospitalist Dr. Bartels. Dr. Bartels and the
emergency room physician informed Dr. Montoya that a patient was diagnosed with acute

PLAINTIFF'S SIXTH AMENDED ORIGINWSTITION Page 7 of25
 renal failure. Dr. Montoya was informed his name was on the call board in the emergency
room as nephrologist on call. Both of the above doctors asked Dr. Montoya to consult
concerning treatment for that patient Dr. Montoya gave initial consult advice/orders of
treatment to both doctors. This consultation call was to Dr. Montoya at 9:38 p.m. Dr.
Montoya informed them he would come see the patient and then review the test results and
determine any additional treatment for the patient. Attached as Exhibit A is a true and
correct copy of the redacted hospital record showing the facts on January 24, 2014.
Until 2007 Dr. Montoya would receive 10-20 calls from the emergency room, per month to
treat either new or existing patients at the San Angelo Community Medical Center. Since
2008 Dr. Montoya has only received one call from the emergency room or a hospitalist for
consultation as a nephrologist, except for one time for treatment of a new patient or existing
patient that suffered with kidney problems. The lack of referrals caused substantial injury to
Dr. Montoya and damaged his ability to compete, because he depended on these referrals
and consults to build his business. Many patients who need kidney treatment in a hospital
later need continuing care for their kidneys or related problems; the most common of such
continuing treatments is kidney dialysis. A typical kidney dialysis patient will need
treatment for four to eight years, and each such patient would mean revenue to Dr.
Montoya's practice of approximately $100,000 per year. Dr. Montoya estimates that he has
lost 10-12 long term kidney dialysis patients.per year from 2008 to the present due to the
Defendants' anticompetitive scheme to refuse to give him patient referrals or consults. He
estimates that this lack of referrals has thus cost him $3,000,000 to $6,500,000 over that
period of time. All referrals now go to the nephrologist at an affiliated group of the hospital.
This damage estimate is specifically incorporated by reference into all of Plaintiffs causes
of action set forth infra.

6.22 On January 25, 2014 at 8: 10 a.m. Kirk Brewer, M.D. took over the hospitalists care of the
patient as his rotation as the hospitalist started. Then without ever seeing the patient or the
chart Kirk Brewer, M.D. cancelled Dr. Montoya's consult and treatment by Dr. Montoya
and consulted another nephrologist. Dr. Montoya went to the call board and witnessed his
name on call as the nephrologist on call on January 24 and 25, 2014. The San Angelo
Community Medical Center is required to have an official EMTALA Medicare call list for
on call physicians for the San Angelo Community Medical Center to take Medicare patients.

PLAINTIFF'S SIXTH AMENDED ORIGINWtTITION Page 8 of25
 This is the list my name was on and was intentionally ignored. This also violates a patient's
right to choose their physician. This list was followed until Dr. Brewer came to San Angelo
Community Medical Center and took charge of hospitalists. The nephrologist he brough~ in
for consult is one that is in a group that Kirk Brewer, M.D. has a contract for paid services.
Dr. Brewer did not see the patient when he removed me as the treating nephrologist he
issued the change via a telephone order (see Exhibit B). Kirk Brewer, M.D. without seeing
the patient, or chart changed the patient's doctor. This change ofnephrologist was for Kirk
Brewer, M.D.'s economic gain and caused Dr. Montoya economic loss. Attached as Exhibit
Bis a true and correct copy of the redacted hospital record showing the facts on January 25,
2014.
Kirk Brewer, M.D. by his actions of removing Dr. Montoya as the nephrologist published a
statement that Dr. Montoya was not a competent nephrologist to treat patients coming to the
San Angelo Community Medical Center emergency room. Kirk Brewer, M.D. was aware
that his actions would become known to the staff physicians of San Angelo Community
Medical Center and that he was by conduct and a whisper campaign saying Dr. Montoya
should not be allowed to treat patients at San Angelo Community Medical Center. These
remarks caused hospitalists and other doctors at SACMC, as well as doctors and nurses in
the SACMC emergency department, to cease and refuse to (a) admit patients to the care of
Dr. Montoya, and (b) refer patients to Dr. Montoya for nephrology consults.

6.23 Attached to this petition as Exhibit C is the true and correct sworn statement that an
existing patient of Dr. Montoya, Mrs. Welch tried to see Dr. Montoya in the emergency
room of San Angelo Community Medical Center and that the emergency room would not
call Dr. Montoya to treat his existing patient Mrs. Welch is over 90 years of age and Dr.
Montoya has treated her for at least 20 years.
6.24 Another patient of Dr. Montoya, whose name is withheld per privacy rights, who is also
over 90 years of age and has been a Dr. Montoya patient for at least 10 years requested Dr.
Montoya when she went to the emergency room and she also was refused to see Dr.
Montoya.

PLAINTIFF'S SIXTH AMENDED ORIGIN~~TITION Page 9 of25
6.25 A patient has the absolute right to be treated by their physician. Both of the above
happened when Kirk Brewer, M.D. was President of the medical staff or an officer of the
medical staff and when he was head of the hospitalist service when the above happened.

6.26 Again by the actions of the hospitalists and emergency room physicians who are
controlled by their supervisors or lead physicians Kirk Brewer, M.D. through this actions
defamed Dr. Montoya as a qualified physician or staff at San Angelo Community Medical
Center.

6.27 Furthermore, Plaintiff is entitled to exemplary damages from the Defendant, because they
acted with malice required to support an award of exemplary damages. Defendants have
acted with a specific intent to cause injury to the Plaintiff.

6.28 Plaintiff sues under this cause of action for anticompetitive conduct and/or effect. The
Plaintiff sues for damages that are within the jurisdictional limits of this Court.
Causes of Action

The causes of action are only under the laws of the State of Texas.

7. Tortious Interference with current and prospective business/patient relations

7.1 The actions of the Defendants are tortiously interfering with patient choice and care. The
actions are being taken by the Defendants to keep the Plaintiff from having a successful
nephrology practice. Defendant's actions are such that they know that their interference
will cause the Plaintiff damage in excess of the minimum judicial limits of the Court.

Defendants intentionally interfered with Dr. Montoya's longstanding and continuous
relationships with patients and referring physicians from the emergency room/department
in a concerted effort to restrain completion and monopolize the practice of nephrology
and the treatment of long term kidney disease in the relevant market described in this
petition.

7.2 Every contract, combination or competition of the relevant defendants in restraint of trade
or commerce is unlawful and is just as it is unlawful for any person to monopolize,
attempt to monopolize or conspire to monopolize any part of trade or commerce.

PLAINTIFF'S SIXTH AMENDED ORIGIN~~TITION Page 10 of25
7.3 The Plaintiff pleads a reduction of competition in the relevant market in general to
patients. A monopoly in this case is caused by the elimination of Dr. Montoya and is just
as harmful as it would be if driving out competition in large groups. Removal of Dr.
Montoya from the hospital and its relevant market will adversely affect and unreasonably
affect overall competitive conditions and cost patients money. The Defendants through
their actions are possessing or trying to possess monopoly power in the relevant market
and the willful acquisition or maintenance of that power is distinguished from growth
through business acumen.

7.4 The Defendants are engaging in anticompetitive conduct with a specific intent to
monopolize and a dangerous probability of achieving monopoly power and the
defendants' ability to lessen or destroy completion in the relevant market and cost
patients money.

7.5 Patients are damaged by the actions of the Defendants by higher costs of care.

Patients have an absolute right under the patients Bill of Rights attached as Exhibit D to
"Participate in decisions about your care, including developing your treatment plan,
discharge planning and having your family and personal physician promptly notified of
your admission. Select providers of goods and services to be received after discharge."
The Plaintiffs did not follow the Bill of Rights and violated the patient choice and
damaged the Defendants in violating the Bill of Rights.

7.6 The actions of the Defendants are illegal and anticompetitive.

7.7 San Angelo Community Medical Center created its affiliated group of doctors affiliated
with the hospital in both hospitalist groups and in a group named Community Medical
Associates. These groups came into existence on or about 2006. Before these groups
existed Dr. Montoya received his share of new patients from the hospital and emergency
room. After these groups were formed Dr. Montoya received only one referral since
2007.

8. Tortious Interference with current and prospective business relations - Exemplary
Damage

PLAINTIFF'S SIXTH AMENDED ORIGIN~Pc,TITION Page 11 of25
 The Plaintiff will show that these actions, set forth above, of interference are done with
malicious intent in interfering with the Plaintiff's right to peaceably conduct his business
and are done out of spite and ill will towards Plaintiff. The Plaintiff is entitled to and
sues for exemplary damages within the jurisdictional limits of this Court.

Plaintiff sues under this cause of action for anticompetitive conduct and/or effect.

9. Defamation Per Se

9.1 The statements of the Defendants constitute defamation per se in that they suggest that
the Plaintiff is not a competent nephrologist and should not be referred patients.

9.2 The Defendants have published the above statements on numerous occasions through a
whisper campaign and their conduct.

9.3 The defamatory statements are false. Defendants have and are publishing the remarks to
individuals and entities to harm the Plaintiff and to remove all competition illegally in an
anti-competitive action.

9.4 The statements and actions of the Defendants were published by their conduct. The
actions were referring to Dr. Montoya as a non-competent nephrologist. The
statement(s)/ actions were defamatory and caused Dr. Montoya economics loss.

9.5 The total loss is between $3,000,000.00 and $6,500,000.00 from not receiving any
referrals from the emergency room or hospitalists. Until 2007 Dr. Montoya would receive
10-20 calls from the emergency room per month to treat either new or existing patients at
the San Angelo Community Medical Center. Since 2008 Dr. Montoya has only received
one call from the emergency room or a hospitalist for consultation as a nephrologist,
except for one time for treatment of a new or existing patient that suffered with kidney
disease/problems. The lack of referrals caused substantial injury to Dr. Montoya and
damaged his ability to compete, because he depended on these referrals and consults to
build his practice. A majority of patients who need kidney treatment/ suffer from kidney
disease in a hospital later need continuing care for their kidneys or related problems; the
most common of such continuing treatments is kidney dialysis. A typical kidney dialysis
patient will need treatment for at least ten years, and each such patient would mean

PLAINTIFF'S SIXTH AMENDED ORIGIN~PfTITION Page 12 of25
 revenue to Dr. Montoya's practice of approximately $100,000 per year. Dr. Montoya
estimates that he has lost at least 100 long term kidney dialysis patients from 2007 to the
present due to the Defendants' anticompetitive scheme to refuse to give him patient
referrals or consults. He estimates that this lack of referrals has thus cost him $3,000,000
to $6,500,000 over that period of time.

9.6 The defamatory statements are untrue. Dr. Montoya is a competent and qualified
nephrologist to treat patients at San Angelo Community Medical Center.

9.7 The actions of the Defendants were intentional or done with negligence when the
Defendants knew that the statement was false and his actions would lead a reasonable
prudent physician or patient knowing/believing of its defamatory potential.

9.8 All officers and President of the medical staff and the medical staff must follow the rules
at San Angelo Community Medical Center and staff of San Angelo Community Medical
Center and have a new patient in the emergency room or hospital that needs a specialist
consultation assigned to the name off the rotating consultation list. By the Defendants.
not following this procedure Dr. Montoya did not receive any consultation requests from
the emergency room or hospitalist at San Angelo Community Medical Center in 2008-
present and one in 2014.

10. Malice

By reference Plaintiff adopts and realleges the acts stated above as if they were set forth
herein. For further cause of action, Defendant's conduct amounts to malice under the
Texas Civil Practice and Remedies Code § 41.007 and the common law of Texas because
Defendant's actions have and are involving an extreme degree of risk considering the
probability and magnitude of the potential harm to others. Plaintiff is entitled to
exemplary damages and does hereby sue for them.

11. Business Disparagement

The Plaintiffs reallege the allegations and facts set forth above.

PLAINTIFF'S SIXTH AMENDED ORIGIN~P2TITI0N Page 13 of25
 The Defendants published disparaging comments and allegations about Dr. Montoya and
his practice. Defendants took the action(s) to harm the Plaintiff's business interests.
Defendants knew the disparagement was false and the actions were done with malice.

12. Restraint of trade (Monopolization/Attempted Monopolization/ Conspiracy to
Monopolize)

12.1 The Plaintiffs reallege and incorporate by reference the allegations and facts set forth
above.

12.2 Plaintiff makes claim under the Texas Business and Commerce Code Sections 15.0S(b)
and 15.21 known as the Texas Free Enterprise and Antitrust Act as it recognizes as illegal
improper attempts to abuse the patient referral of the emergency room/department and
hospital patients, as well as conspiracies to limit patient choices by concerted illegal
action as engaged by the Defendants. The Plaintiffs seek relief for this anticompetitive
action(s) solely under the laws established by the State of Texas concerning
anticompetitive misconduct affecting Texas citizens and patients. The Defendants (along
with WTMA and Dr. Brewer's group ofhospitalists) have monopolized and/or attempted
to monopolize the relevant markets of nephrology services and/or referrals and consults
for nephrology services by conspiring to deprive Plaintiffs of consults and referrals for
nephrology services. By conspiring against Dr. Montoya, the Defendants and unindicted
co-conspirators are attempting to remove him as a competitor to monopolize the markets
for themselves.

12.3 In Tom Green County the Plaintiffs are in competition with the Defendants. Defendants
have derived or attempted to derive illegal benefit and patient choice and option for care
was improperly limited in Tom Green and contiguous counties. The area of service the
Defendants are trying to control is Tom Green and contiguous counties. The Defendants
are trying to restrain competition in these counties

12.4 Defendants actions are in furtherance of the combination and conspiracy and with the
purpose and intent of excluding the Plaintiffs from the patient care market in the relevant
market described above and destroying competition from Dr. Montoya and causing a
resulting loss and cost to patients. These acts were done with the specific intent to harm

PLAINTIFF'S SIXTH AMENDED ORIGIN~~TITION Page 14 of25
 both Dr. Montoya and patients in the relevant market. These acts were done with the
specific intent to weaken or eliminate competition from the Plaintiffs and injure patients
and obtain market dominance in the relevant market.

12.5 The actions also hurt the patient population in the relevant market by removing or trying
to remove completion in the practice of nephrology.

12.6 The concerted actions of the Defendants were flagrant and willful and done for the
purpose of harming Dr. Montoya, the Plaintiffs and patients. Defendants illegally and
improperly diverted the patients to the hospital affiliated practice. Each Defendant in this
case (i.e., SACMC and Dr. Brewer), and WTMA and Dr. Brewer's group of hospitalists
(eventual defendants) are being sued for their individual roles and conduct in the
monopolization, attempted monopolization, conspiracy to monopolize, and group
boycott/concerted refusal to deal. While each of these entities may have engaged in the
illegal conduct through their agents or representatives, they are being sued for their
individual roles and conduct and not simply under a respondeat superior theory of
liability due to actions of Dr. Brewer.

12.7 The acts of the Defendants constitute illegal monopolization, attempted monopolization
and /or conspiracy to monopolize under applicable Texas law. The Defendants have
monopolized or have a dangerous chance of monopolizing the relevant product markets
of nephrology services and referrals and consults for nephrology services. This case is
for the anticompetitive actions of the Defendants posing a danger of monopolization and
injuring consumer patients. By restricting competition the Defendants are hurting
patients in the relevant market.

12.8 Plaintiff sues under this cause of action for anticompetitive conduct and/or effect. While
the Defendants' monopolization and attempted monopolization has harmed Dr. Montoya
and his professional practice, it has also harmed consumers and others who pay for
nephrology services in the relevant market by increasing the costs of those services. This
is demonstrated by the chart attached hereto as Exhibit B. Before Dr. Brewer's group
of hospitalists became the attending physicians for all nephrology patients at SACMC,
nephrology patients would be referred to Dr. Montoya who would serve as the attending
physician for the patient. This arrangement avoided the "middle man" which now exists,

PLAINTIFF'S SIXTH AMENDED ORIGIN~P4TITION Page 15 of25
 as the hospitalists now usually serve as an additional charging entity between the patient
and the nephrology specialist. Even if the hospitalists could do the same work as Dr.
Montoya or his partner used to provide, the patient still faces increased cost for the same
nephrology work, as the hospitalists charge more for physician services than Dr.
Montoya charges. The SACMC hospitalists charge at the "Comprehensive" Medicare
allowable rate, which adds up to average charges of$506.85 per day. See Exhibit. E. Dr.
Mont~ya, however, charges at the "Moderate,, Medicare allowable rate, which adds up to
an average cost of $346.13 per day. The difference between these charges is $160.72 per
nephrology patient per average hospital stay. Over the course of a year,
consumers/payors for nephrology services have thus paid thousands more for the
hospitalists' physician and nephrology services than they would have paid for care from
Dr. Montoya who is a physician specialist in nephrology. This is a classic example of an
antitrust injury, i.e. an injury to competition which the antitrust laws were made to
prevent. This antitrust injury arises from the Defendants monopolization and attempted
monopolization of the relevant markets for (a) nephrology services in the San
Angelo/Tom Green County area, and {b) the market for referrals and consults for
nephrology services in the San Angelo/Tom Green County area.

13. Group Boycott and Conspiracy in Restraint of trade

13.1 SACMC, Dr. Kirk Brewer, Dr. Brewer's group ofhospitalists, and West Texas Medical
Associates ("WTMA") entered into a contract, combination or conspiracy in restraint of trade in
violation of Section 15.0S(a) of the Texas Antitrust Act. See Tex.Bus. & Com. Code Ann.§
15.0S(a). In furtherance of this conspiracy, the conspirators entered into an agreement by which
all new nephrology patients entering the SACMC emergency room would be admitted to a
hospitalist working in Dr. Brewer,s group ofhospitalists. The patients were admitted to these
hospitalists even when they were already a patient of Dr. Montoya, and even if they specifically
requested Dr. Montoya to be their attending physician. The hospitals would then refer the
patients to groups affiliated with the hospital. This combination deprived Dr. Montoya of patient
referrals he should have received for (a) new patients entering the hospital through the
emergency room, and (b) nephrology consults for patients already in the hospital. By favoring
hospitalists over Dr. Montoya, Dr. Brewer increased financial remuneration for himself because
these patients were being treated by hospitalists in his own group. Dr. Brewer and his group also

PLAINTIFF'S SIXTH AMENDED ORIGIN~~TITION Page 16 of25
benefited by referring the patients groups affiliated with the hospital for nephrology services,
because Dr. Brewer and his hospitalist group receive payments from WTMA for providing
"coverage" at the SACMC emergency room for nephrology patients. In return for these
payments, Dr. Brewer and his hospitalists insure that all referrals and consults at SACMC for
nephrology services are made to groups affiliated with the hospital such as WTMA.

13.2 The combination between SACMC, Dr. Kirk Brewer, Dr. Brewer's group ofhospitalists,
and WTMA constitutes a concerted refusal to deal with Dr. Montoya which is a per se violation
of the Section 15.0S(a) of the Texas Antitrust Act. See Tex.Bus. & Com. Code Ann.§ 15.0S(a).
It would also violate the "rule of reason" as it unreasonably restrained trade and commerce in the
relevant market of nephrology services in the San Angelo area, as well as in the markets for
referrals and consults for nephrology services in the San Angelo area. This anticompetitive
conspiracy decreased patient choice and raised the price of care for those needing nephrology
services. Each Defendant in this case (i.e., SACMC and Dr. Brewer), and WTMA and Dr.
Brewer's group of hospitalists (eventual defendants) are being sued for their individual roles and
conduct in the monopolization, attempted monopolization, conspiracy to monopolize, and group
boycott/concerted refusal to deal. While each of these entities may have engaged in the illegal
conduct through their agents or representatives, they are being sued for their individual roles and
conduct and not simply under a respondeat superior theory of liability.

13.3 The conspiracy is a horizontal agreement in restraint of trade, as it involves a direct
competitor of Dr. Montoya (WTMA, a group affiliated with SACMC) that employs a
nephrologist for the provision of nephrology services in the San Angelo geographic market.
SACMC (along with Dr. Brewer and his group of hospitalists) has a dominant position and
market power in the market for nephrology services in the San Angelo area, and in the market for
referrals and consults for nephrology services in the San Angelo area. SACMC, Dr. Brewer and
Dr. Brewer's group ofhospitalists hold a dominant position in the relevant market, in that these
entities control the referral of all nephrology patients from within the SACMC hospital and
emergen~y room to specialists such as Dr. Montoya; these entities thus control access to an
element necessary to enable Dr. Montoya to compete. There are no pro-competitive effects from

PLAINTIFF'S SIXTH AMENDED ORIGIN3½P6TITION Page 17 of25
this arrangement. The hospitalists and emergency room doctors at SACMC have agreed with
SACMC, Dr. Brewer, and Dr. Brewer's group ofhospitalists to only refer patients to, and ask for
consults from, nephrology doctors in groups affiliated with the hospital who are "approved" by
Dr. Brewer because they make payments to Dr. Brewer and his group of hospitalists. This
course of dealing increases the profits of Dr. Brewer, groups affiliated with the hospital and Dr.
Brewer's group ofhospitalists at the expense of competitors such as Dr. Montoya and is not
intended to enhance overall efficiency or to make markets more competitive. These allegations
are sufficient to raise a per se violation claim.

13.4 Each Defendant in this case (i.e., SACMC and Dr. Brewer), and WTMA and Dr.
Brewer's group of hospitalists (eventual defendants) are being sued for their individual roles and
conduct in the monopolization, attempted monopolization, conspiracy to monopolize, and group
boycott/concerted refusal to deal. While each of these entities may have engaged in the illegal
conduct through their agents or representatives, they are being sued for their individual roles and
conduct and not simply under a respondeat superior theory of liability.

13.5 While the conspirators' concerted refusal to deal has harmed Dr. Montoya and his
professional practice, it has also banned consumers and others who pay for nephrology services
in the relevant market by increasing the costs of those services. This is demonstrated by the
chart attached hereto as Exhibit E. Before Dr. Brewer's group ofhospitalists became the
attending physicians for all nephrology patients at SACMC, nephrology patients would be
referred to Dr. Montoya who would serve as the attending physician for the patient. This
arrangement avoided the "middle man" which now exists, as the hospitalists now usually serve
as an additional charging entity between the patient and the nephrology specialist. Even if the
hospitalists could do the same work as Dr. Montoya or his partner used to provide, the patient
(and/or insurance and taxpayer-funded Medicare/Medicaid) still faces increased cost for the
same nephrology work, as the hospitalists charge more for physician services than Dr. Montoya
charges. The SACMC hospitalists charge at the "Comprehensive" Medicare allowable rate,
which adds up to average charges of $506.85 per day. See Exhibit E. Dr. Montoya, however,
charges at the "Moderate" Medicare allowable rate, which adds up to an average cost of $346.13
per day. The difference between these charges is $ 160.72 per nephrology patient per average

PLAINTIFF'S SIXTH AMENDED ORIGIN~PfTITION Page 18 of25
hospital stay. Over the course of a year, consumers/payors for nephrology services have thus
paid thousands more for the hospitalists' physician and nephrology services than they would
have paid for care from Dr. Montoya who is a physician specialist in nephrology. This is a
classic example of an antitrust injury, i.e. an injury to competition which the antitrust laws were
made to prevent. This antitrust injury arises from the conspirators' group boycott/concerted
refusal to deal with Dr. Montoya, as well as with the Defendants' monopolization and attempted
monopolization of the relevant market.

14. Restraint of Trade/ Tortious Interference by Violating EMTALA-

14.1 The Emergency Medical Treatment and Active Labor Act (hereinafter EMTALA) is
Section 1867(a) of the Social Security Act, and is codified within the section of the U.S. Code
which governs the Medicare program. (42 USC 1395cc) The Healthcare Financing
Administration (hereinafter HCFA) is the federal agency that governs Medicare payments and
has the statutory authority to issue regulations concerning the implementation of EMTALA.
(HCFA Interpretive Guidelines V-15)

14.2 EMTALA is a statute which governs when and how a patient must be (1) examined and
offered treatment or (2) transferred from one hospital to another when he is in an unstable
medical condition (3} the list of doctors on staff that are on call and the fair assignment of
patients to doctors. 42 USC JJ95cc(a){l)(I)(iii), HCFA Interpretive Guidelines V-15 ,
Emergency Dept. Compliance and Reimbursement Insider, May 2000,1-5. The statute is
sometimes referred to as the anti-patient dumping act.

But in this case it does not involve patient dumping but the refusal to follow the mandatory call
list of EMTALA to fairly distribute the paying nephrology patients under Medicare or private
insurance.

14.3 San Angelo Community Medical Center is Required to Maintain the Call List

Medicare -participating hospitals must maintain a list of physicians who are on call to provide
emergency care to individuals presenting to the emergency room. (42 USC 1395cc(a)(J)(I)(iii))

PLAINTIFF'S SIXTH AMENDED ORIGIN~P~TITION Page 19 of25
Under EMTALA the hospital and its officers are responsible for maintaining an on-call roster for
the emergency department. (42 USC J395cc(a)(l)(/)(iii))

San Angelo Community Medical Center is a Medicare -participating hospital.

The governing board and staff of the hospital must set standards for on-call services and a call
list and require that medical staff bylaws appropriately address the issue of call rotation, the call
list, and ensure the staff is properly accountable for the enforcement and compliance with the
requirements ofEMTALA. 42 USC 1395cc(a)(l)(l)(iii) ,42 CFR 482.11 and 42 CFR 482.22.

14.4 All nephrology patients that go on to dialysis are covered under Medicare- thus are
paying patients for the doctor and hospital

Physicians on staff are required to take all the referrals in their specialty. (HCFA Interpretive
Guidelines V-15)

A patient presenting for nephrology care is automatically placed under Medicare after their
initial diagnosis and Medicare pays the nephrology care even if the patient is under 65 and would
ordinarily be Medicare eligible. While in a hospital, inpatient hemodialysis is available, which would
be covered by Medicare Part A. This coverage by Medicare Part A is temporary and when the patient
leaves the hospital the patient is covered by Medicare Part B for hemodialysis in dialysis facilities
(Medicare Coverage of Kidney Dialysis and Transplant Services".·
www.medicare.gov/Publications/Pubs/pdf/10128.pdj)
Thus all nephrology care is paid for either by private insurance or Medicare and is a financial
benefit to the hospital and on call physician.

14.5 EMTALA apply in this case

EMTALA applies to "participating hospitalstt under Medicare - i.e., to hospitals which have
entered into "provider agreementstt under which they will accept payment from the Department
of Health and Human Services, Centers for Medicare and Medicaid Services (CMS) under the
Medicare program for services provided to beneficiaries of that program. In practical terms, this

PLAINTIFF'S SIXTH AMENDED ORIGIN~,TIT!ON Page20 of25
means that it applies to virtually all hospitals in the U.S., with the exception of the Shriners'
Hospital for Crippled Children and many military hospitals. Its provisions apply to all patients,
and not just to Medicare patients. Thus the requirements apply to San Angelo Community
Medical Center hospital as a participating hospital under Medicare.

The avowed purpose of the statute is to prevent hospitals from rejecting patients, refusing to treat
them, or transferring them to "charity hospitals" or "county hospitals" because they are unable to
pay or are covered under the Medicare or Medicaid programs and to fairly distribute patients
coming to the emergency room between physicians so the physician receives paying and non-
paying patients. (42 USC 1395cc (a)(l)(l)(iii)), HCFA Interpretive Guidelines V-15.

14.6 Does EMTALA apply only to people without insurance?
No. The statute expressly provides that the Act's provisions apply to all patients "whether or not
eligible for Medicare benefits". 42 USC 1395dd(a). Thus the facts of this case are subject to the
fair distribution of patients to all nephrologists that are on staff.

Despite the fact that the purpose of the statute is to prevent ''patient dumping", there is no
requirement that the patient in fact be unable to pay his bills or that there be an economic
motivation behind the decision to transfer the patient. Cooper v. Gulf Breeze Hospital, 839 F.
Supp. 1538 (1993). This is a key in this case, the patients coming to the emergency room for
nephrology care are guaranteed to pay the doctor for services through Medicare.

14.7 San Angelo Community Medical Center wants the paying patients to go to the other
neghrologist in the hospital owned or affiliated group and to not have Dr. Montoya receive his
fair share ofpatients.

14.8 The pumose of the call list is to allow all physicians to egually receive call and paying
and non-paying patients.

In this case the kidney disease patients are all paying patients under the government Medicare
program.

14.9 Fair Use of the Call List by the Hospital and Staff

PLAINTIFF'S SIXTH AMENDED ORIGIN~tf!TION Page 21 of25
The HCFA (Health Care Financing Administration) is concerned that the call list fairly rotate
between the specialty physicians that practice in the hospital. (HCFA interpretive guidelines V-
15).

Accepting privileges at a Medicare participating hospital, subjects a physician to the mandates
and penalties of EMTALA and thus all members of the medical staff become liable under
EMTALA. Inspector General v St. Anthony, DAB docket No C-98-460/Decision No. CR620
(Dept. of HHS Appeals Board, Civil Remedies Division, October J999) DAB docket No A-2000-
12/Decision No DAB1728, June 5, 2000. Physicians are required to follow EMTALA that have
staff privileges in a hospital that is covered by EMTALA 42 CFR 1003. J02 (C) The demands
of a hospital and the staff under EMTALA is to require the distribution of paying and non-
insured/paying patients equally. 42 USC 1395dd(I) and 42 USC 1370a-7a.

In this case the call list was not followed and the requirements of EMTALA were violated
individually and as chief of staff by Dr. Brewer and the hospital. Dr. Brewer and the hospital
violated EMTALA and interfered with Dr. Montoya receiving patients through the call list as
required by EMTALA.

All the actions of both Dr. Brewer and the hospital were for monetary gain to have the hospital
affiliated groups prosper and squeeze out the physician Dr. Montoya who is not part of the
hospital affiliated group.

14.9 Additional regulatory provisions - the "snitch rule"
The regulations do include a provision which imposes a very significant obligation on receiving
hospitals. The regulation, at 42 CFR 489.20(m), obligates a participating hospital "to report to
[CMS] or the State survey agency any time it has reason to believe it may have received an
individual who has been transferred in an unstable emergency medical condition from another
hospital in violation of the requirements of Section 489.24(d)." This regulation became effective
on September 29, 1995. Note that it requires reporting only when a patient has been improperly
transferred; it does not require reporting other known or suspected violations.
San Angelo Community Medical Center has violated this provision.

14.10 Summary of violations of EMTALA-

PLAINTIFF'S SIXTH AMENDED ORIGIN~fTITION Page22 of25
San Angelo Community Medical Center has violated EMTALA to the economic harm of the
Plaintiff Dr. Montoya.

I .EMTALA requires a fair and rotating call list for all specialists at the hospital.

2. San Angelo Community Medical Center is a Medicare -participating hospital.
3. San Angelo Community Medical Center is wider the EMTALA rules and mandates.

4. Dr. Brewer individually and as chief of staff is under the EMTALA rules and mandates.

5. Nephrolog_y patients receive Medicare and thus the hospital and treating physician are
guaranteed pument for services thus the call list generates guaranteed fees for the medical
services.

6. In this case the call list was not followed and the requirements of EMTALA were violated by
San Angelo Community Medical Center. San Angelo Community Medical Center violated
EMTALA and kept with Dr. Montoya from receiving patients through the call list as required by
EMTALA.

7. In this case the actions of the Defendants in not following the requirements of EMTALA
violated the restraint of trade and tortious interfered with existing and potential patient
relationships to the detriment of the Plaintiffs causing the Plaintiffs damage.

14.10 Each Defendant in this case (i.e., SACMC and Dr. Brewer), and WTMA and Dr. Brewer's
group of hospitalists (eventual defendants) are being sued for their individual roles and conduct
in the monopolization, attempted monopolization, conspiracy to monopolize, and group
boycott/concerted refusal to deal. While each of these entities may have engaged in the illegal
conduct through their agents or representatives, they are being sued for their individual roles and
conduct and not simply under a respondeat superior theory of liability.

15. Damages-

The Plaintiffs sue for actual damages including consequential damages, mental anguish,
lost business reputation, attorney's fees as allowed by law and other actual damages in
the maximum amount of$ 6,400,000.00 plus attorney's fees and costs as allowed by law.

PLAINTIFF'S SIXTH AMENDED ORIGIN~TITION Page23 of25
 An amount is also sued for statutorial additional trebling for exemplary damages do to the
malicious and egregious conduct of the Defendants.

Until 2007 Dr. Montoya would receive 10-20 calls from the emergency room per month
to treat either new or existing patients at the San Angelo Community Medical
Center. Since 2008 Dr. Montoya has only received one call from the emergency room or
a hospitalist for consultation as a nephrologist, except for one time for treatment of a new
or existing patient that suffered with kidney disease/problems. The lack of referrals
caused substantial injury to Dr. Montoya and damaged his ability to compete, because he
depended on these referrals and consults to build his practice. A majority of patients
who need kidney treatment/ suffer from kidney disease in a hospital later need continuing
care for their kidneys or related problems; the most common of such continuing
treatments is kidney dialysis. A typical kidney dialysis patient will need treatment for at
least six years, and each such patient would mean revenue to Dr. Montoya's practice of
approximately $100,000 per year. Dr. Montoya estimates that he has lost at least 100
long tenn kidney dialysis patients from 2007 to the present due to the Defendants'
anticompetitive scheme to refuse to give him patient referrals or consults. He estimates
that this lack of referrals has thus cost him $1,000,000 to $6,500,000 over that period of
time.

Prayer for Relief

For these reasons Plaintiff requests that:
1. Plaintiff prays that citation and notice issue as required by law and that the Court
grant the relief requested in this petition.

2. Plaintiff be awarded damages within the jurisdiction limits of this Court.

3. Plaintiff be award exemplary damages within the jurisdictional limits of the
Court.

4. Reasonable attorney's fees.

5. Costs of Suit

PLAINTIFF'S SIXTH AMENDED ORIGIN~TITION Page 24 of25
 6. Such other and farther relief to which Plaintiff may be justly entitled including but
not limited to damages within the jurisdictional limits of this Court, pre and post
judgment interest as allowed by law.

Respectfully Submitted
Paul Craig Laird II Law Firm, PLLC
Isl Paul Craig Laird II
By: Paul Craig Laird II
800 W. Airport Freeway
Suite 880 LB 6015
Irving, TX 75062
972-554-0929
214-260-4935-fax
pcl880@aim.com
SBOT 11795420
Attorney for Plaintiff

PLAINTIFF'S SIXTH AMENDED ORIGIN~~,TITION Page25 of25
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12/16/2015 lfBD 13a2J PAX )252244284 Weit Toxo, Nophrolo,v ••• CRAIG LAIRD ATTORNIY i003/00l

April 17. 2014

I am Kanm, Tf~a~; -thti' diaghter of Eunice Welch. I am writing to you on her behalf
concatnlng:her·admlsslon to SACMC on 11/28/2011. When asked by the ER admission
staff,-we.tepllad that •or. Montoyaa was her doctor. We were admitted to the
hoapftalfata•· service. We do not appreciate the fact that we dfd not have our physfcfan
of choice at1ha hospftal. Please correct this to help maintain quality patient care.

Sincerely.
Karen 11ma ?,
7(.t.u-17~
Stafeof r:J,4t: •.J
County of dr, J,u,J
Subso~ed snd·swo~ to before me t h i s $of_~~-
........· _,._;J-11
__1..,,.fe_·

·~~
{ Notary Public

327
 Notice of Patient Rights and Responslbflltles
You have the right toi
• Be treated In a c&.lnffied and respectful manner and to • Receive !nformaUon about lhe outcomes of your
receive reasonabfe rasponses to reasonabfe requesls care, lrestmenl and services, fncJudlng unanUclpated
for service. outcomes.
• To eftectfve communfcallon that proVldes lnformauon rn
a mamer you understand, In your preferred language • Give or wflhhold fnformed consent when making
wilh provl&lons of fnlerpreUng or lransfaUon services. declsfons about your care, treatment and servfces.
at no ccat and In a maMer lhat mBBts your needs In
the event of vlsfon, sP9ech hearing or oognlllve • Receive Information about benefits, risks, sfde
lmP.afrmenls, lnformaUon should ba provklad fn easy to effects to proposed care. treatment and services: lhe
uncferstand terms that wur allow you to formulate flkeHhood of achieving your goals and any potenUal
Informed consent. . . . problems that mfght occur during recuperation from
proposed care, treatment and service and any
• Respect for ycur cultural and personal values, beliefs reasonable alternatives to the care, treatment and
and praferencesi ... . . services proposed. ·
.e ..&n
rtd"R.~'1 P.,11,J~ P,llYILQYrof. Y.f.Ujl~~al1~
·cu rece,vv a nOl.i08 0 'U,e ICWI
!';l'Qrtnallon
1,, 8 pr,vacy . . • Give or withhold lnformecl' conserif torecorofngs,
pracUcea. filming or oblafnln9 Images of you for any purpose
other than your care,
• ~arn management.
• Partlcfpate rn or.refuse to partfcfpate rn researdl,
• Accommodation ror·your reDglous and other aplrltual fnvestfgaUon or cUnfoal b1afs wttho~ Jeopatdlzfng
BBM088. · · ·
your access 10 can, and services unrelated to the
, lb aocess,·requ!'Jt ~endment to and obtain · research.
lnformaUon on dlsclawrua of your health rnrormatron fn
acoordanoe with law ind·regulallon wflhfn a • Know U1e names of the praatltfoner who has primary
reasonable ·tfme frame. responsfb!llly for your care, treatment or aervfoes and
tha names of olher practrtloners provfdlng your care.
, lb hava a faJJtllY. member, friend or other support
lndMduaJ to ba present With ycu durlng the course of • Formulate advance dlreotlves concemrng oare to be
~ur a~ unJess,lfiafP.9taorte .presence 1nrr1ngea on recelved at end-of.llfe and to have those advance
other&' rfghts~ safety ~i la inedloiUy oon~lnd!cated. dlrectlves hQnored to the extent of the factUty's
• 0are·orservfoaa provlded without dlsorlmlnatlori based abHlty lo do so In aaoordance with raw and regulaUon.
'0~ age,_race, ethnfolJ».reffgJon, culture, raa,;uage, You also have the rfght to review or revrse any
pnysJC81 or mental-cfiiblU~ accloaconomro status, advance directives.
e~ sexuaJ-orfantaffon, an! gender Identity or
expression. • Be free ftom neg!ec~ expfoltatfon: and verbal, mental,
physfcal and sexual abuse.
• PartrolP.18 In declsfons about your care, fndudlng
deve~g your treatmQnt pf~tl; dlsoh1µge P.lannlng • An envlronmant,U1at ls safe, preserves dfgnlty and·
· ·and·Havlng Y.our famtfy.and r>,rsonal physfclan
p,ompUy notified of your 1dmlsslon. contributes to a posruve self.fmage.
• Select plOVfdera of goods and services to be received • Be frse from any forms of restraint or secruslon used
after dlsoharga. · aa a means of convenience, dlsclpllne. coercion or
retaffatfonj and to have the least restrfctlve method
• Refuse care, treatment.or aervfoes fn accordance with of restraint or seclusfcn used only when neceaary to
raw and regulaUon and ro leave lhe raclllly agafnal ensure patient safety.
advice al ffia physfofan.
• Have a surrogate deofsfon-maker partfo!para In care, • Access protective and advocacy sarvlces and to
treatment and aervloes declsfona when you are unable receive a Bst of such groups upon your request.
to make your O\l!J1.daoJalons. .
Patieni Rights and ResponslblUdes
ADM•l90l0JIMS.."J"Jt
04/11 (Rn081J2,07/~3. 03/14.07/14) ,
Pago I or2 ~·-------,
.j PAT 11 CKAR.'1' #1
d: ADMI'l' OATB: DOB:
SBXt AOK1
Aff, DR, I .

328
 DR MONTOYA'S CHARGES MODERATE
MEDICARE
DESCRIPTION REQUIREMENTS CPT ALLOWABLE RATE
1. A comprehensive history 2. A
comprehensive exam 3. Medtcal Decislon
INPATIENT ADMISSION MODERATE making of moderate complexity 99222 $ 134.03
1. An expanded problem focused lntetval
history 2. An expanded problem focused
examination 3. Medical decision making of
INPATIENT FOLLOW UP MODERATE moderate complexity 99232 s 70.76
1. An expanded problem focused interval
history 2. An expanded problem focused
examination 3. Medical decision making of
INh"', IENT FOLLOW UP MODERATE moderate complexity 99232 $ 70.76
1. Final Exam 2. Discussion of hospital stay
3. Instructions for continuing care to all
relevant caregivers 4. preparation of
discharge records 5. Presciptlons and
INPATIENT DISCHARGE less than 30 min Referral forms 99238 $· 7058
$ 346.13
HOSPITALIST CHARGES COMPREHENSIVE
MEDICARE
DESCRIPTION CPT ALLOWABLE RATE
1. A comprehensive history 2. A
comprehensive exam 3. Medical Decision
INPATIENT ADMISSION COMPREHENSIVE making of high complexity 99223 $ 198.47
1. A detailed interval history 2. A detailed
examination 3. Medica! decision making of
INPATIENT FOLLOW UP COMPREHENSIVE high complexity 99233 s 101.94
1. A detailed Interval history 2. Adetailed
examination 3. Medical decision making of
INPATIENT FOLLOW UP COMPREHENSIVE high complexity 99233 $ 101.94
1. Final Exam 2. Discussion of hospital stay
3. Instructions for continuing care to all
relevant caregivers 4. preparation of
discharge records 5. Presciptlons and
INPATIENT DISCHARGE more than 30 min Referral forms 99239 $ 104.50
$ 506.85
- - -
TOTAL D1FFERE8tL ~ $ (160.72)
Difference between Dr. Montoya, Independent physician billing and hospital stav $ 100 .I
for average of 4 days for an In-patient at SACMC with Dr. Montoya, bllllng
medicine at the moderate level compared to Dr. Brewer and the Hospitalist billing
comprehensive.
Multiply average admissions per day-4 $ 400
Multiply for one year $ 146,000
Multiply for total number of Independent physicians affected by Hospitalists' $ 1,460,000
pattern of restraint -10% (10) I
Multiply by number of years - 8 for one hospital ; $ 11,680,000
Multiply by 200 Hospitals $ 235,600,000
 TABN0.3

/
 Filed for Record
12/8/2015 3:47:43 PM
Sheri Woodfin, District Clerk
Tom Green County, Texas

CAUSE NO. B-150,285-C

STEVE F. MONTOYA, M.D., § IN THE 119TH DISTRICT COURT
WEST TEXAS RENAL CARE, and §
WEST TEXAS NEPHROLOGY, §
§
Plaintiffs, §
§
vs. § OF
§
SAN ANGELO COMMUNITY MEDICAL §
CENTER and KIRK BREWER, M.D. §
§
Defendants. § TOM GREEN COUNTY, TEXAS

DEFENDANT KIRK BREWER, M.D.'S MOTION TO DISMISS
AND FOR RECOVERY OF COSTS AND ATTORNEY'S FEES

TO THE HONORABLE COURT:

COMES NOW Defendant, Kirk Brewer, M.D., (hereinafter "Brewer") and

respectfully moves the Court to dismiss the following causes of action asserted against Brewer

pursuant to Tex. Civ. Prac. & Rem. Code§§ 27.001 et. seq. on the grounds that Plaintiffs causes

of action violate the Texas Citizens Participation Act, and pursuant to Rule 91 a, Tex. R. Civ.

Proc. on the grounds that Plaintiffs causes of action have no basis in law or fact as demonstrated

below.

I. Motion Timely Filed

Section 27.003, Tex. Civ. Prac. & Rem. Code and Rule 9la.3, Tex. R. Civ. P. requires

this motion to be filed within 60 days after the first pleading containing the challenged cause of

action is served on the movant. The petition in this case was served upon Defendant Brewer on

October 9, 2015. Accordingly, this motion is timely filed.

DEFENDANT KIRK BREWER, M.D. 'S MOTION TO DISMISS AND Page 1 of IS
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 II. Causes of Action Asserted Against Brewer

The causes of action alleged in the Plaintiffs' Petition are:

(1) Tortious Interference with Current and Prospective Business/Patient
Relations (pp. 5-6);
(2) Tortious Interference with Current and Prospective Business/Patient
Relations- Exemplary Damages (p. 7);
(3) Defamation Per Se (p. 7);
(4) Malice (p. 7);
(5) Business Disparagement (pp. 7-8)
(6) Restraint of Trade (Texas Free Enterprise and Antitrust Act) (p. 8-9).

As demonstrated below, none of the causes of action pleaded have any basis in law or in

fact against Brewer.

III. No Legal Basis for Claims

A. The Court should dismiss Plaintifr s claim pursuant to the Texas Citizens
Participation Act.

This Court should dismiss Plaintiffs claims pursuant to the Texas Citizens Participation

Act ("TCPA") because his claims are based on, relate to, or are in response to Defendant's

exercise of his right to free speech. See Tex. Civ. Prac. & Rem. Code Ann. § 27.00S(b) ("[A]

court shall dismiss a legal action against the moving party if the moving party shows by a

preponderance of the evidence that the legal action is based on, relates to, or is in response to the

party's exercise of: (1) the right of free speech ...."). To avoid dismissal, a plaintiff must

establish "by clear and specific evidence a prima facie case for each essential element of [its

claims]." Id. at § 27.00S(c). If a plaintiff fails to meet this burden, the court must dismiss the

action and award attorneys' fees to the moving party. Id. at § 27.009. Plaintiff cannot meet this

demanding burden; dismissal of his claims is therefore warranted.

DEFENDANT KIRK BREWER, M.D. 'S MOTION TO DISMISS AND Page 2 of IS
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 1. Plaintiffs' Claims Arise Out ofDefendant's Exercise of His Right to Free Speech

Plaintiffs claims are premised on Defendant's communications regarding a matter of

public concern. Such statements are squarely within the TCP A. Plaintiffs claims should

therefore be dismissed with prejudice. The TCPA defines "[e]xercise of the right of free speech

[as] communication made in connection with a matter of public concern." Tex. Civ. Prac. &

Rem. Code Ann. at§ 27.001(3). A '"matter of public concern' includes an issue related to: (A)

health or safety; [or] (B) environmental, economic, or community well-being." Id. at §

27.0001(7).

Specifically, Plaintiff alleges that Defendant: 1) engaged in a covert whisper campaign

and decided not to refer any patients to Plaintiff and 2) brought charges against Plaintiff relating

to incompetent patient care. Importantly, Plaintiff does not identify any actual statements in

which Defendant ever disparaged Plaintiff, or suggested that any entity should refrain from doing

business with Plaintiff. In fact, the only specific action alleged to have harmed Plaintiff - the

charges brought against Plaintiff relating to incompetent patient care - is statutorily protected

conduct pursuant to the medical committee privileges and immunities provided by the Texas

Occupations Code, §§160.001 et seq., 160.010 (and especially subsection (c) of that section), and

161.001 et seq., the Texas Health & Safety Code, §161.001 et seq. and 161.033, and the Federal

Health Care Quality Improvement Act, 42 U.SC., § 1110 I et seq.

Furthermore, these charges relating to Plaintifrs patient care constitute free speech under

the TCPA because it fits within TCPA's definition of "communication[s] made in connection

with a matter of public concern," including: "health or safety" (Plaintiff is a:physician);

"community well-being" (Plaintiff practices medicine in the community in which Defendants

work and live); or "service in the marketplace" (Plaintiff provides medical services to the

DEFENDANT KIRK BREWER, M.D. 'S MOTION TO DISMISS AND Page 3 of IS
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78
community in which Defendant works and lives). See Tex. Civ. Prac. & Rem. Code Ann. at§

27.001(7); Lippincott v. Whisenhunt, 462 S.W.3d 507, 509-10 (Tex. 2015) (holding that e-mails

sent by administrators at medical facility containing disparaging comments about certified

registered nurse anesthetist were communications made in connection with a matter of public

concern and were protected by the Texas Citizens Participation Act (TCPA); e-mails related to

whether nurse anesthetist properly provided medical services to patients, and included

allegations that nurse anesthetist failed to provide adequate coverage for pediatric cases,

administered a different narcotic than was ordered, falsified records, and violated facility's sterile

protocol policy); see also Newspaper Holdings, Inc. v. Crazy Hotel Assisted Living, Ltd., 416

S.W.3d 71, 81 (Tex. App.--Houston [1st Dist.] 2013, no. pet. h.) (holding that articles relating to

the plaintiffs obligation to meet the licensing requirements and standards for operating an

assisted living facility were made in connection with a matter of public concern and related to the

exercise of free speech).

Additionally, Plaintiffs pleadings fail to present a prima facie case on each of Plaintiffs

causes of action, because Plaintiffs pleadings are not clear and specific. "Pleadings that might

suffice in a case that does not implicate the TCPA may not be sufficient to satisfy the TCPA's

'clear and specific evidence' requirement." In re Lipsky, 460 S.W.3d 579, 590 (Tex. 2015) "[A]

plaintiff must provide enough detail to show the factual basis for its claim," including how the

"defendants damaged the plaintiff." Id. at 591. "[G]eneral allegations that merely recite the

elements of a cause of action ... will not suffice." Id. at 590. Additionally, "[b]are, baseless

opinions do not create fact questions, and neither are they a sufficient substitute for the clear and

specific evidence required to establish a prima facie case under the TCPA." Id. at 592. Without

more, allegations stating that a plaintiff suffered "direct economic losses and 'lost profits,"' are

DEFENDANT KIRK BREWER, M.D. 'S MOTION TO DISMISS AND Page 4 of IS
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79
only conclusory and do not constitute evidence. Id.; see Coastal Transp. Co. v. Crown Cent.

Petroleum, 136 S.W.3d 227, 232 (Tex. 2004); Ryland Grp., Inc. v. Hood, 924 S.W.2d 120, 122

(Tex. 1996) (per curiam); Wholesale TV & Radio Adver., LLC v. Better Bus. Bureau of Metro.

Dallas, Inc., No. 05-11-01337-CV, 2013 WL 3024692, at *4 (Tex. App.-Dallas Jun. 14, 2013,

no pet.) (mem.op.) (finding conclusory statements insufficient evidence of essential element in

TCPA case); Zanfardino v. Jeffus, 117 S.W.3d 495, 497-98 (Tex. App.-Texarkana 2003, no

pet.).

Plaintiffs entire petition is based on, relates to, or is in response to Defendant's exercise

of his right to speak freely on issues relating to public health and safety. Therefore, Plaintiffs

causes of action should be dismissed pursuant to the TCPA.

B. Plaintiff's Claims Have No Basis in Law

Rule 91 a, Tex. R. Civ. Proc., provides:

"(A) party may move to dismiss a cause of action on the
grounds that it has no basis in law or in fact. A cause of action
has no basis in law if the allegations, taken as true, together
with the inferences reasonably drawn from them, do not entitle
the claimant to the relief sought."

1. Tortious Interference with Existing and Prospective Patients and Exemplary Damages

The elements of tortious interference with an existing business relationship "are (I) the

existence of a contract subject to interference, (2) the act of interference was willful and

intentional, (3) such intentional act was a proximate cause of plaintiffs damages, and (4) actual

damage or loss occurred." Victoria Bank & Trust Co. v. Brady, 811 S. W.2d 931, 939 (Tex.199 I);

see Browning-Ferris, Inc. v. Reyna, 865 S.W.2d 925,926 (Tex.1993).

"To establish ... tortious interference with prospective business relationships, a plaintiff

must show that ( 1) there was a reasonable probability that the parties would have entered into a

DEFENDANT KIRK BREWER, M.D. 'S MOTION TO DISMISS AND Page 5 of 15
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80
business relationship; (2) the defendant committed an independently tortious or unlawful act that

prevented the relationship from occurring; (3) the defendant either acted with a conscious desire

to prevent the relationship from occurring or knew the interference was certain or substantially

certain to occur as a result of the conduct; and (4) the plaintiff suffered actual harm or damages

as a result of the defendant's interference." Plotkin v. Joekel, 304 S. W.3d 455, 487 (Tex. App.-

Houston [1st Dist.] 2009, pet. denied) (quoting Richardson-Eagle, Inc. v. William M Mercer,

Inc., 213 S.W.3d 469, 475 (Tex. App.-Houston [1st Dist.] 2006, pet. denied)); see Wal-Mart

Stores, Inc. v. Sturges, 52 S.W.3d 711, 713 (Tex. 2001). Independently tortious means "conduct

that would violate some other recognized tort duty." Sturges, 52 S.W.3d at 713. A plaintiff can

recover exemplary damages if he can show the interference was malicious. Seelbach v. Clubb, 7

S.W.3d 749, 757 (Tex. App.-Texarkana 1999, pet. denied).

All of Plaintiffs allegations regarding his claim for tortious interference with existing

business and prospective patients, if taken as true, do not entitle Plaintiff to the relief he seeks

because as to Brewer, Plaintiff fails to allege, and there are no facts which support: I) the

existence of a contract which is subject to interference; 2) that there was a reasonable probability

that the Plaintiff and these prospective patients would have entered into a doctor-patient

relationship; or 3) that Brewer committed an independently tortious or unlawful act that

prevented the doctor-patient relationship from occurring. Plaintiff alleges generally that

Defendants interfered with Plaintiffs relationships with patients and referring physicians;

however, Plaintiff alleges no specific tortious or unlawful conduct against Brewer which, if true,

constitutes tortious interference with Plaintiffs ability to enter into a relationship with patients

and referring physicians, nor does Plaintiff allege that he is under a current contract with any

patients or physicians with which Brewer could interfere, nor has Plaintiff alleged any facts

DEFENDANT KIRK BREWER. M.D. 'S MOTION TO DISMISS AND Page 6ofl5
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81
which support a finding that there was a reasonable probability that Plaintiff would have entered

into said relationships, but for Brewer's conduct. Because Plaintiff cannot establish elements

essential to his claim for tortious interference with existing and prospective patient relations,

Plaintiffs claims for the same should be dismissed; further, without proof oftortious interference,

Plaintiffs claim for exemplary damages must be denied as well.

Alternatively, Plaintifrs claim should be dismissed because a hospital, through its agents,

has a duty to engage in peer review of its physicians._Patel v. Midland Mem'l Hosp. & Med. Ctr.,

298 F.3d 333, 347 (5th Cir. 2002). Thus, any contractual interference caused by Brewer/s

exercise of this right with respect to Plaintiff was justified. See Friendswood Dev. Co. v.

McDade & Co., 926 S. W.2d 280, 282 (Tex.1996) ("A party is justified in interfering with

another's contract if it exercises (1) its own legal rights or (2) a good faith claim to a colorable

legal right, even though that claim ultimately proves to be mistaken."); Patel v. Midland Mem'l

Hosp. & Med. Ctr., 298 F.3d 333,347 (5th Cir. 2002).

2. Defamation Per Se

Defamation is a false statement about a plaintiff published to a third person without legal

excuse which damages the plaintiffs reputation. Doe v. Mobile Video Tapes, Inc., 43 S.W.3d 40,

48 (Tex. App.-Corpus Christi 2001, no pet.); Moore v. Waldrop, 166 S.W.3d 380, 384 (Tex.

App.-Waco 2005, no pet.) To be considered defamation per se, the statement must (1) impute

the commission of a crime; (2) impute contraction of a loathsome disease; (3) cause injury to a

person's office, business, profession, or calling; or (4) impute sexual misconduct. Goodman, 50

S.W.3d at 140. Whether words are capable of the defamatory meaning the plaintiff attributes to

them is a question of law for the court. Musser v. Smith Protective Serv., Inc., 123 S.W.2d 653,

654-55 (Tex.1987); Moore v. Waldrop, 166 S.W.3d 380,384 (Tex. App.-Waco 2005, no pet.).

DEFENDANT KIRK BREWER, M.D. 'S MOTION TO DISMISS AND Page7 of15
FOR RECOVERY OF COSTS AND ATTORNEY'S FEES

82
If particular language alleged to be defamatory may, or may not, be so, according to other

facts or circumstances, then an innuendo is required in order to tender as an issue the fact

that the words conveyed to hearers the defamatory meaning. Montgomery Ward & Co. v.

Peaster, 178 S.W.2d 302, 305 (Tex. Civ. App.-Eastland 1944, no writ). Consequently,

innuendo should never be considered when interpreting defamation per se. The very

definition of "per se," "in and of itself," precludes the use of innuendo. Moore v.

Waldrop, 166 S.W.3d 380, 386 (Tex. App.-Waco 2005, no pet.) If the statement, taken

by itself and as a whole, is defamatory, it will require no extrinsic evidence to clarify its

meaning; it will stand alone. Burnaman v. J.C. Penney Co., 181 F.Supp. 633, 636-37

(S.D.Tex.1960); Moore v. Waldrop, 166 S.W.3d 380, 386 (Tex. App.-Waco 2005, no

pet.).

Plaintifr s Original Petition fails to allege what, if any, defamatory statement

Brewer made against Plaintiff, and in what context, and to whom those statements were

made. Without establishing what the defamatory statement was that allegedly defamed

Plaintiff, innuendo is required to determine whether it is in fact defamatory, preventing

Plaintiff from prevailing on his claim for defamation per se. Plaintifrs defamation per se

claim should be dismissed accordingly.

3. Malice

Plaintiff claims that he is entitled to exemplary damages for his claims for tortious

interference and defamation per se under Tex. Civ. Prac. & Rem. Code § 41.007 because

Brewer's conduct involved an "extreme degree of risk considering the probability and magnitude

of the potential harm to others." Pl. Pet. p. 7. Tex. Civ. Prac. & Rem. Code §41.007 does not

entitle Plaintiff to exemplary damages, as § 41.007 only provides that "[p]rejudgment interest

DEFENDANT KIRK BREWER, M.D. 'S MOTION TO DISMISS AND Page 8 of 15
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83
may not be assessed or recovered on an award of exemplary damages." Therefore, taking all

Plaintiffs allegations as true, Plaintiff is not entitled to exemplary damages under § 41.007, Tex.

Civ. Prac. & Rem. Code.

Moreover, even if the Court allows Plaintiff to correct, what may be a typographical error

in the statute cited, Plaintiffs claim for exemplary damages for Malice fails because Plaintiff

does not allege that Brewer acted with malice, which means "a specific intent by the defendant to

cause substantial injury or harm to the claimant;" rather, Plaintiff alleges that Brewer acted with

an extreme degree of risk, considering the probability and magnitude of the potential harm to

others, which is an element of gross negligence. Mobil Oil Corp. v. Ellender, 968 S.W.2d 917,

921 (Tex. 1998) ("Gross negligence includes ... viewed objectively from the actor's standpoint,

the act or omission must involve an extreme degree of risk, considering the probability and

magnitude of the potential harm to others.") However, Plaintiff does not allege that Brewer was

grossly negligent, and cannot establish that he is entitled to exemplary damages for malice based

on the allegations contained in Plaintiffs Original Petition. Accordingly, Plaintiffs claim for

exemplary damages should be dismissed.

4. Business Disparagement

To prevail on a business disparagement claim, a plaintiff must establish that (1) the

defendant published false and disparaging information about it, (2) with malice, (3) without

privilege, (4) that resulted in special damages to the plaintiff. Hurlbut v. Gulf At/. Life Ins. Co.,

749 S.W.2d 762, 766 (Tex.1987); Forbes Inc. v. Granada Biosciences, Inc:., 124 S.W.3d 167,

170 (Tex. 2003). Actual malice is not ill will; it is the making of a statement with knowledge that

it is false, or with reckless disregard of whether it is true. Gertz v. Robert Welch, Inc., 418 U.S.

323, 328 (1974). "Reckless disregard" is defined as a high degree of awareness of probable

DEFENDANT KIRK BREWER, M.D. •s MOTION TO DISMISS AND Page 9 of 15
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84
falsity, for proof of which the plaintiff must present "sufficient evidence to permit the conclusion

that the defendant in fact entertained serious doubts as to the truth of his publication." St. Amant

v. Thompson, 390 U.S. 727, 731, (1968). An error in judgment is not enough. See Time, Inc. v.

Pape, 401 U.S. 279, 290, (1971); Carr v. Brasher, 776 S.W.2d 567, 571 (Tex. 1989).

Furthermore, a plaintiff cannot rely on a statement of opinion to support its business

disparagement claim because such statements are constitutionally protected. Carr v. Brasher,

776 S.W.2d 567, 570 (Tex. 1989).

Plaintiffs pleadings, even if taken as true, do not entitle Plaintiff to the relief sought for

business disparagement. As addressed above, Plaintiff makes no specific allegations that Brewer

published any false, defamatory statement regarding Plaintiffs business. Plaintiffs allegations

that Brewer brought him up on charges of incompetent patient care, and started a whisper

campaign to not refer business to Plaintiff does not support a claim for business disparagement.

A whisper campaign not to refer patients to Plaintiff, taken as true, does not imply that false

statements were made about Plaintiff in the alleged "whisper campaign," and any charges

Brewer brought against Plaintiff were brought as part of a medical peer review process which is

protected under the TCPA, and the privileges and immunities as set forth in the Texas

Occupations Code, §§160.001 et seq., 160.0IO(and especially subsection (c) of that section), and

161.001 et seq., the Texas Health & Safety Code, §161.001 et seq., and 161.033, and the Federal

Health Care Quality Improvement Act, 42 U .S.C., §1110 I et seq. Furthermore, Plaintiff fails to

allege or establish that Brewer's statements caused Plaintiff special damages. Proof of special

damages is an essential part of the plaintiffs' cause of action for business disparagement. Hurlbut

v. Gulf At/. Life Ins. Co., 749 S.W.2d 762, 767 (Tex. 1987). The requirement goes to the cause

of action itself and requires that plaintiff "establish pecuniary loss that has been realized or

DEFENDANT KIRK BREWER, M.D. 'S MOTION TO DISMISS AND Page 10 of 15
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85
liquidated as in the case of specific lost sales." W. Keeton, Prosser and Keeton on the Law of

Torts,§ 128 at 971 (5th Ed.1984); Hurlbut v. GulfAtl. Life Ins. Co., 749 S.W.2d 762, 767 (Tex.

1987). Plaintiff generally alleges that Defendants took the action(s) to harm Plaintiff's business

interests; this is insufficient to establish special damages under a claim for business

disparagement. Accordingly, Plaintifrs claim for business disparagement should be dismissed.

Additionally, Plaintifr s claim for business dispargement must be dismissed because the

Texas Medical Practice Act ("TMPA") affords immunity from civil liability to peer-review

participants when they act "without malice and in the reasonable belief that the action or

recommendation is warranted by the facts known to that person." Tex. 0cc. Code §

160.010(a)(2). Plaintifrs allegations against Brewer concern his actions as a peer-review

participant, and peer-review participants are always presumed to have acted without malice.

Benson v. St. Joseph Reg'l Health Ctr., 575 F.3d 542, 545 (5th Cir. 2009). To overcome the

presumption, a plaintiff bears the burden of proving the contrary by clear and convincing

evidence. Benson v. St. Joseph Reg'l Health Ctr., 575 F.3d 542, 545 (5th Cir. 2009). Plaintiff's

conclusory allegation that Defendants acted with malice falls far short of the clear and

convicning evidence standard required to establish this element and no facts alleged support his

allegation of malice. Accordingly, Brewer should be found immune from Plaintifr s business

disparagement claim, and it should be dismissed.

5. Restraint of Trade

Initially, Brewer would re-assert its argument that Plaintifr s claims must be dismissed

because the Texas Medical Practice Act ("TMPA") affords immunity from civil liability to peer-

review participants when they act "without malice and in the reasonable belief that the action or

recommendation is warranted by the facts known to that person." Tex. 0cc. Code §

DEFENDANT KIRK BREWER. M.D. 'S MOTION TO DISMISS AND Page 11 of 15
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86
160.0IO(a)(2). Plaintiffs allegations against Brewer concern his actions as a peer-review

participant, and peer-review participants are always presumed to have acted without malice.

Benson v. St. Joseph Reg'/ Health Ctr., 575 F.3d 542, 545 (5th Cir. 2009). To overcome the

presumption, a plaintiff bears the burden of proving the contrary by clear and convincing

evidence. Benson v. St. Joseph Reg'/ Health Ctr., 575 F.3d 542, 545 (5th Cir. 2009). As

discussed above, Plaintiff's Petition fails to allege facts sufficient to entitle him to a finding of

malice against Brewer. Accordingly, Brewer is immune from Plaintiffs Restraint of Trade

claim, and it should be dismissed.

Alternatively, Plaintiffs bald allegations that Defendants referred patients to a hospital-

owned practice to obtain market dominance in the nephrology practice in Tom Green and

contiguous counties, coupled with Plaintiffs failure to allege that he suffered an antitrust injury

do no entitle Plaintiff to relief under a Texas Antitrust Act.

The Texas Antitrust Act provides, in relevant part, that "[e]very contract, combination, or

conspiracy in restraint of trade or commerce is unlawful," and that "[i]t is unlawful for any

person to monopolize, attempt to monopolize, or conspire to monopolize any part of trade or

commerce." Tex. Bus. & Com.Code Ann. § 15.0S(a), (b) (Vernon 2002). To establish that a

defendant contracted, combined, or conspired in restraint of trade in violation of the Texas

Antitrust Act, a plaintiff must show that the alleged contract, combination, or conspiracy is

unreasonable and has an adverse effect on competition in the relevant market. See Winston v.

Am. Med. Int'/, 930 S.W.2d 945, 951-52 (Tex.App.-Houston [1st Dist.] 1996, writ denied). The

Texas Antitrust Act does not prohibit all restraints of trade; instead, it prohibits only those that

restrain trade unreasonably. See DeSantis v. Wackenhut Corp., 793 S. W.2d 670, 687 (Tex.1990).

DEFENDANT KIRK BREWER, M.D.'S MOTION TO DISMISS AND Page 12 of 15
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 Courts have generally been reluctant to hold that a group of physicians who decide that .

they do not want to refer patients to a particular physician, because they doubt his qualifications,

have committed a per se violation of the Sherman Act. Because actions on the part of hospitals

and physicians, which might resemble group boycotts, may well be mandated by an ethically

grounded concern for patients' well-being ... such behavior, in the medical service industry,

should be analyzed in terms of the rule of reason. Marlin v. Robertson, 307 S.W.3d 418, 428-29

{Tex. App.-San Antonio 2009, no pet.) Pontius v. Children's Hosp., 552 F.Supp. 1352, 1370

(W.D.Pa.1982); see also Jackson v. Radcliffe, 795 F.Supp. 197, 205 (S.D.Tex.1992) (applying

rule of reason to physician's contention that termination of his contract with hospital was illegal

restraint of trade); Oksanen v. Page Memorial Hospital, 945 F.2d 696, 708-09 (4th Cir.1991)

(analyzing denial or revocation of medical staff privileges under rule of reason); Marin v.

Citizens Mem'l Hosp., 700 F.Supp. 354, 360 (S.D.Tex.1988) (applying rule of reason to

physician's claim that hospital for which he worked and its medical staff formed group boycott to

reduce or eliminate his competitive potential).

Furthermore, a plaintiff cannot demonstrate the unreasonableness of a restraint merely by

showing that it caused him an economic injury. Oksanen, 945 F.2d at 708. For example, the fact

that a hospital's decision caused a disappointed physician to practice medicine elsewhere does

not of itself constitute an antitrust injury. Id. "If the law were otherwise, many a physician's

workplace grievance with a hospital would be elevated to the status of an antitrust action." Id.

"To keep the antitrust laws from becoming so trivialized, the reasonableness of a restraint is

evaluated based on its impact on competition as a whole within the relevant market." Id. The fact

that a competitor's income may have been reduced by someone's conduct, does not mean that

competition was impermissibly restrained in the relevant market. Rea v. Hosp. Corp. ofAm., 892

DEFENDANT KIRK BREWER, M.D. 'S MOTION TO DISMISS AND Page 13 of 15
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F. Supp. 821, 834 (N.D. Tex. 1993) aff'd in part, rev'd in part sub nom. Johnson v. Hosp. Corp.

of Am., 95 F.3d 383 (5th Cir. 1996). To meet its burden, a plaintiff must prove what market it

contends was restrained and that the defendants played a significant role in the relevant market.

Id. at 709. Absent this market power, any restraint on trade created by the defendants' actions is

unlikely to implicate Texas Antitrust Act section 15.0S(a). See_Marlin v. Robertson, 307 S.W.3d

418, 429 (Tex. App.-San Antonio 2009, no pet.) "There must be evidence of 'demonstrable

economic effect' not just an inference of possible effect." Coca-Cola Co. v. Harmar Bottling

Co., 218 S.W.3d 671,689 {Tex.2006).

Plaintiffs allegations, even if taken as true, do not entitle him to a relief under the Texas

Antitrust Act, as his allegations do not demonstrate that Brewer' s actions play a significant role

in the nephrology market in Tom Green and contiguous counties or that Plaintiff suffered an

antitrust injury from Brewer's actions. In fact, Plaintiffs allegations demonstrate that Plaintiff

maintains his own medical practice with a dialysis unit capable of serving 24 patients per shift.

(Pl. Pet. p. 2). Any patient who wishes to use Plaintiff is still able to seek out his services. See

Nafrawi v. Hendrick Med. Ctr., 676 F. Supp. 770, 774-75 (N.D. Tex. 1987) (holding that there

was no antitrust violation by a hospital that denied a doctor staff privileges when the doctor

maintained full privileges at a comparable facility, any patient who wishes to use his services

could still seek out his services, and even if he no longer practiced medicine at all, patients in the

relevant market could still obtain services identical to those he provided.) Therefore, Plaintiffs

claim for restraint of trade should be dismissed.

IV. Conclusion and Prayer for Relief

WHEREFORE, premises considered, there being no legal and no factual bases for the

causes of action pleaded against Brewer, this Defendant respectfully prays that its motion be

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granted, that the causes of action asserted against Brewer be dismissed and for costs and

reasonable and necessary attorney's fees, all as provided under Rule 91a, Tex. R. Civ. Proc. and

Tex. Civ. Prac. & Rem. Code §§ 27.001, et. seq.

Further, Brewer respectfully prays that (1) this motion be set for hearing not less than 21

days after the date of filing, and (2) that the motion be granted within 45 days after the date of its

filing, all as required by Rule 9la.3, Tex. R. Civ. Proc.

Respectfully submitted,

MCMAHON SUROVIK SUTTLE, P.C.
400 Pine Street, Suite 800
Abilene, Texas 79601-5140
(325) 676-9183 (Phone)
(325) 676-8836 (Fax)

By: Isl Robert B. Wagstaff
Robert B. Wagstaff
State Bar No. 20665000
rwagstatff@mcmahonlawtx.com

ATTORNEYS FOR DEFENDANT
KIRK BREWER, M.D.

CERTIFICATE OF SERVICE

This hereby certifies that a true and correct copy of the foregoing instrument was
forwarded, via e-service and e-mail, to all counsel of record on the 8th day of December, 2015.

Isl Robert B. Wagstaff
ROBERTB. WAGSTAFF

DEFENDANT KIRK BREWER, M.D.'S MOTION TO DISMISS AND Page 15 of 15
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90
TABN0.4
 Flied for Record
1R/i816 -i:44:99 PM
Sheri Woodfin. District Clerk
Tom Green County, Texas

CAUSE NO. B-150,285-C

STEYE F MONTOYA, MD, § IN THE 119TH DISTRICT COURT
WEST TEXAS RENAL CARE, and §
WEST TEXAS NEPHROLOGY, §
§
Plaintiffs, §

§
SAN ANGELO COMMUNITY MEDICAL §
CENTER arid KIRK BREWER, M.D. §
§
Defendants. § TOM GREEN COUNTY, I EXAS

DEFENDANT KIRK BREWER, M.D.'S AMENDED MOTION TO
DISMISS AND FOR RECOVERY OF COSTS AND ATTORNEY'S FEES

TO TIIE IIONORABLE COURT:

COMES NOW Defendant, Kirk Brewer, M.D., (hereinafter "Brewer") and

respectfully moves the Court to dismiss the following causes of action asserted against Brewer

pursuant to Tex. Civ. Prac. & Rem. Code§§ 27.00I et. seq. on the grounds that Plaintiff's causes

of action violate the Texas Citizens Participation Act, and pursuant to Rule 91 a, Tex. R. Civ.

Proc on tbe grounds that Plaintiff's causes of action have no basis in law or fact as demonstrated

below.
I. Amended Motion Timely Filed

Seetion 27.663, 'fex. Civ. P,ac. & Rem. Cede and Rule 9Ia.3, TeK. R. Civ. P. r-equii:es a

motion to dismiss be filed within 60 days after the first pleading containing the challenged cause

of action is served on the movant. The first pleading in this case was served upon Defendant

Brewer on October 9, 2015, a first amended pleading was filed November 12, 2015, and

Defendant Brewer originally filed his motion to dismiss on December 8, 201 S, and set it for

hearing on January 12, 2016. On January 4, 2016, the Plaintiffs filed a Second Amended

DEFENDANT KJRK BREWER, M.D.'S AMENDED MOTION to DISMISS Pagel of 19
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Original Petition, with additional ailegations, but no additional claims. Further, Plaintiffs tiled a

cespaose ta the motion ta dismiss on January 4, 2016, as well. Pursuant to TRCP 91a.5, this

amended motion responsive to the latest pleading is timely filed. ·

Further, in support of this motion, attached hereto as Exhibit "I" is the affidavit of

Defendant Kirk Brewer, M.D. Attached hereto as Exl.ibit ''2" is the affidai·it efRebert 't'lagstaff

in support of attorneys' fees.

II. Causes of Action Asserted Against Brewer

The causes of action alleged in each of the Plaintiffs' Petitions, including the Second

Amended Original Petition are:

(1) Tertieus lnterfei=ee~e with Current and Prospective Business/Patient
Relatiens (pp. 5 ());
(2) Tortious Interference with Current and Prospective Business/Patient
Relations- Exemplary Damages (p. 7);
(3) Defamation Per Se (p. 7-10);
(4) Malice (p. 10);
(5) Business Disparagement (pp. 11);
(6) Restramt of Trade ( lexas Free Enterprise and Anutrust Act) (p. t 1-12),
(7) Cause of action thrown in with the factual dissertation - civil conspiracy
and joint and several liability (p.3).

Despite Plaintiffs attempts to somehow plead around the Defendant's motion to dismiss,

as demonstrated below, none of the causes of action pied have sufficient basis in law or in fact

against Brewer.

m. No Legal Basis fer Claims
A. The Court should dismiss Plaintifrs claim pursuant to the Texas Citizens
Participation Act.

This Court should dismiss Plaintiff's claims pursuant to the Texas Citizens Participation

Act (''TCPN') because his claims are based on, relate to, or are m response to Defendant's

exercise of his right to free speech. See Tex. Civ. Prac. & Rem. Code Ann. § 27.005(b) ("[A]

DEFENDANT KIRK BREWER, M.0.'S AMENOED MOIION 10 DISMISS Pagel ufl~
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court shall dismiss a legal action against the moving party if the moving party shows by a

prepaoderance nftbe evidence that the legal action is based on, relates to. or is in response to the

party's exercise of: (1) the right of free speech ...."). To avoid dismissal, a plaintiff must

establish "by clear and specific evidence a prima facie case for each essential element of [its

claims)." id. at § 27.00S(c). If a plaintiff fails to meet this burden, the court must dismiss the

action and award attorneys' fees to the moving party. Id. at§ 27.009. Plaintiff cannot meet this

demanding burden and dismissal of his claims is therefore warranted.

Plaintiffs' Claims Arise Out ofDefendant's Exercise of His Right to Free Speech

Plaintiffs claims are premised on Defendant's communications regarding a matter of

pablie eeAeem. PlaiRtiff aetes in his latest pleading on page 3 that "Dr Brewer at all times acted

for (SACMC)." Further, in Defendant Brewer's attached affidavit, he states that "[F]urther, any

discussions I have had concerning Dr. Montoya, regardless of the context, have been within the

hospital, and either directly concemmg patient care andtor associated with the pee1 1eview

process." As such, any claimed statements are squarely within the TCPA. Plaintiffs claims

should therefore be dismissed with prejudice. The TCPA defines "[e]xercise of the right of free

speech [as] communication made io connection with a matter of public concern." Tex. Civ. Prac.

& Rem. Code Ann. at§ 27.001(3). A "'matter of public concern' includes an issue related to: (A)

health or safety; [or] (B) environmental, economic, or community well-being." Id at §

27.0061(1}.

Specifically, Plaintiff alleges that Defendant: l) engaged in a covert whisper campaign

and decided not to refer any patients to Plaintiff and 2) brought charges against Plaintiff relating

to incompetent patient care. Importantly, Plaintiff does not 1dent1fy any actual statements m

which Defendant ever disparaged Plaintiff, or suggested that any entity should refrain from doing

Dt:F.ENDANT KIRK BREWER. M.D. 1S AMENDED MO I ION IO DISMISS Pagc3 of19
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business with Plaintiff. In fact, one action alleged to have hanned Plaintiff - the charges brought

against Plaintiff relating to incompetent patient care is statutorily protected conduct pursuant to

the medical committee privileges and immunities provided by the Texas Occupations Code,

§§160.001 et seq., 160.010 (and especially subsection (c) of that section), and 161.001 et seq.,

the Texas Health & Safety Code, §161.881 et seq. and 161.033, and the Federal Heeltk Care

Quality Improvement Act. 42 U.SC., §11101 et seq. The other harm is centered on the

defamation per se claim which is discussed in more detail below.

Furthermore, these charges relating to Plaintiffs patient care constitute free speech under

the TCPA because it fits within TCPA's definition of "communication[s] made in connection

with a matter ef public cgacefR," including· "health or safety" (Plaintiff is a physician);

"community well-being'' (Plaintiff practices medicine in the community in which Defendants

work and live); or "service in the marketplace" (Plaintiff provides medical services to the

community m which Defendant works and hves). See Tex. Civ. Prac. & Rem. Code Ann. at §

27.001(7); Lippincott v. Whisenhunt, 462 S.W.3d 507, 509-10 (Tex.. 2015) (holding that e-mails

sent by administrators at medical facility containing disparaging comments about certified

registered nurse anesthetist were caromuoications made in connection with a matter of public

concern and were protected by the Texas Citizens Participation Act (TCPA); e-mails related to

whether nurse anesthetist properly provided medical services to patients, and included

allegations that nurse anesthetist failed to provide adeqt1ate ee"1erage fer pediatrie Gases,

administered a different narcotic than was ordered, falsified records, and violated facility's sterile

protocol policy); see also Newspaper Holdings, Inc. v. Crazy Hotel Assisted Living, Ltd, 416

S.W.3d 71, 81 (Tex. App.--Houston [1st Dist.] 2013, no. pet. h.) (holding that arucies relating to

the plaintiff's obligation to meet the licensing requirements and standards for operating an

DEFENDANT KIRK BREWER. M.D.'S AMENDED MUI ION lO DISMISS Page4 of 19
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assisted living facility were made in connection with a matter of public concern and related to the

exercise of free speech}

Additionally, Plaintiff's pleadings fail to present a prima facie case on each of Plaintiff's

causes of action, because Plaintiff's pleadings are not clear and specific. "Pleadings that might

suffice in a case that does not implicate the TCPA n1a, not be suffieient te satisfy the TCPA's

'clear and specific evidence' requirement." In re Lipsky, 460 S.W.3d 579,590 (Tex. 2015) "[A]

plaintiff must provide enough detail to show the factual basis for its claim," including how the

"defendants damaged the plaintiff." Id. at 591. ''[G]eneral allegations that merely recite the

elements of a cause of action ... wiIJ not suffice." Id. at 590. Additionally, "[b]are, baseless

opiflions ao not GFeate faGt questicms, and neither are they a sufficient substih1te for the clear and

specific evidence required to establish a prima facie case under the TCPA." Id. at 592. Without

more, allegations stating that a plaintiff suffered ''direct economic losses and 'lost profits,"' are

only conclusory and do not constitute evidence. Ia.; see Coastal Transp. Co. v. Crown Cent.

Petroleum, 136 S.W.3d 227, 232 (Tex. 2004); Ryland Grp., Inc. v. Hood, 924 S.W.2d 120, 122

(Tex. 1996) (per curiam); Wholesale TV & Radio Adver., LLC v. Better Bus. Bureau of Metro.

Dallas, bzc, 1'10 OS 1J-01332-CY, 2013 WL 3024692. at *4 (Tex. App. Dallas Jun. 14, 2013,

no pet.) (mem. op.) (finding conclusory statements insufficient evidence of essential element in

TCPA case); Zanfardino v. Jeffus, 117 S.W.3d 495, 497-98 (Tex. App.-Texarkana 2003, no

In truth, Plaintiff's entire petition is based on, relates to, or is in response to Defendant's

exercise of his right to speak freely on issues relating to public health and safety. Therefore,

Plaintiff's causes of action should be dismissed pursuant to the 'l'CPA.

DEFENDANT kJRK BREWER; M.0. 'S AMBNDED MO IION IO DISMl&i PugeS of19
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123
B. Plaintiff's Claims Have No Basis in Law and the Factual pleadings are Conclusory
in Nature
Rule 91a, Tex. R. Civ. Proc., provides:

"(A) party may move to dismiss a cause of action on the
grounds that it has no basis in law or in fact. A cause of action
has no basis in law if the allegations, taken as true, tegether
with the inferences reasu11ably d1·awn f1 om them, do not entitle
the claimant to the relief sought."

1. Tortious Interference with Existing and Prospective Patients and Exemplary Damages

The elements of tortious interference with an existing business relationship "are (1) the

existence of a contract subject to interference, (2) the act of interference was willful and

ifttefltienal, (3) slieh intentional att was a proximate cause of plaintitFs damages, and (4) actual

damage or loss occurred." Victoria Bank & Trust Co. v. Brady, 811 S. W.2d 931, 939 (Tex.1991 );

see Browning-Ferris, Inc. v. Reyna, 865 S.W.2d 925, 926 (Tex.1993).

"To estabhsh ... tort1ous interference wnh prospective business relationships, a plaintiff

must show that (l) there was a reasonable probability that the parties would have entered into a

business relationship; (2) the defendant committed an independently tortious or unlawful act that

pnweRted the ~elationship ft:om occurring; (3) the defendant either acted with a conscious desire

to prevent the relationship from occurring or knew the interference was certain or substantially

certain to occur as a result of the conduct; and (4) the plaintiff suffered actual harm or damages

as a result of the defendant's interference." Plotk~n v. Joekel, 304 S.W.3d 455, 487 (fex. A.pp.

Houston [1st Dist.] 2009, pet. denied) (quoting Richardson-Eagle, Inc. v. William M. Mercer,

Inc., 213 S.W.3d 469, 475 (Tex. App.-Houston [1st Dist.] 2006, pet. denied)); see Wal-Mart

Stores, Inc. v. Sturges, 52 S.W.3d 711, 713 (Tex. 2001). Independently tort1ous means "conduct

that would violate some other recognized tort duty." Sturges, 52 S.W.3d at 713.

DEFENDANT KIRK BREWER, M.D. ·s AMENDED MOTION TO bISMlsS Page6oft,
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 All of Plaintiff's allegations regarding his claim for tortious interference with existing

business and prospective patients, if taken as true, do not entitle Plaintiff to the relief he seeks

because as to Brewer, Plaintiff fails to allege, and there are no facts which support: 1) the

existence of a contract which is subject to interference; 2) that there was a reasonable probability

tliat tlie Plamuff and these prospective patients would have entet ed into a doctor-patient

relationship; or 3) that Brewer committed an independently tortious or unlawful act that

prevented the doctor-patient relationship from occurring. Plaintiff alleges generally that

Defendants interfered with Plaintiff's relationships with patients and referring physicians;

however, Plaintiff alleges no specific tortious or unlawful conduct against Brewer which, if true,

eonstittttes tertiat1s interfereflee with Plaintiff's ability to enter into a relationship with patients

and referring physicians, nor does Plaintiff allege that he is under a current contract with any

patients or physicians with which Brewer could interfere, nor has Plaintiff alleged any facts

which support a finding that there was a reasonable probabll1ty tliat Plamuff WoUld have entered

into said relationships, but for Brewer's conduct. Because Plaintiff cannot establish elements

essential to his claim for tortious interference with existing and prospective patient relations,

Plaintiffs Glaims fQr the same should be dismissed; 6•ctber, without proof oftortious interference,

Plaintifrs claim for exemplary damages must be denied as well.

Alternatively, Plaintiff's claim should be dismissed because a hospital, through its agents,

has a duty to engage in peer review of its physicians._Puie/ v. Midla1td1'Jem'l Twsp. & Med. Ctr.,

298 F.3d 333, 347 (5th Cir. 2002). Thus, any contractual interference caused by Brewer/s

exercise of this right with respect to Plaintiff was justified. See Friendswood Dev. Co. v.

McDade & Co., 926 S.W.2d 280, 282 (Tex.1996) ("A party is justified in interfermg with

another's contract if it exercises {I) its own legal rights or (2) a good faith claim to a colorable

D~ENDANT KIRK BREWBR. M.D. •s AMENDBD MOTION TO DISMISS rage, ot 19
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legal right, even though that claim ultimately proves to be mistaken."); Patel v. Midland Mem'l

Hosp & Med Ctr. 298 F,3d 333, 347 (5th Cir. 2002).

2. Defamation Per Se

Defamation is a false statement about a plaintiff published to a third person without legal

excuse which damages the plaintiffs 1cputation. Doe"· Mobile Video Tapes, 1-nc., 43 S.W.3d 48,

48 (Tex. App.-Corpus Christi 2001, no pet.); Moore v. Waldrop, 166 S.W.3d 380, 384 (Tex.

App.-Waco 2005, no pet.) To be considered defamation per se, the statement must (1) impute

the commission of a crime; (2) impute contraction of a loathsome disease; (3) cause injury to a

person's office, business, profession, or calling; or (4) impute sexual misconduct. Goodman, 50

S,WJd at 140, 'Whether woJ:ds are capable of tbe defurnatocy meaning the plaintiff attributes to

them is a question of law for the court. Musser v. Smith Protective Serv., Inc., 723 S.W.2d 653,

654-55 (Tex.1987); Moore v. Waldrop, 166 S.W.3d 380,384 (Tex. App.-Waco 2005, no pet.).

If parhcular language alleged to be defamatory may, or may not, be so, according to otbe1

facts or circumstances, then an innuendo is required in order to tender as an issue the fact that the

words conveyed to hearers the defamatory meaning. Montgomery Ward & Co. v. Peaster, 178

S w 2d 3Q2 1 305 (Tex Civ App Eastland 1944, no writ). Consequently. innuendo should

never be considered when interpreting defamation per se. The very definition of "per se," "in

and of itself," precludes the use of innuendo. Moore v. Waldrop, 166 S.W.3d 380, 386 (Tex.

App. Waco 2.66S, no pet.) If the statement; taken b)' it5elf and as a whale, is defamatory, it will

require no extrinsic evidence to clarify its meaning; it will stand alone. Burnaman v. J.C. Penney

Co., 181 F.Supp. 633, 636-37 (S.D.Tex.1960); Moore v. Waldrop, 166 S.W.3d 380, 386 (Tex.

App.-Waco 2005, no pet.).

DEFENDANT KIRK BREWER, M.D. 'S AMENDED MO I ION IO DISMISS .Page8ofl!I
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 Plaintiffs Second Amended Original Petition now alleges that the so-called defamatory

statement Brewer made against Plaintiff was actually not a statement at all concerning Plaintiff,

but innuendo, an order calling for a change in attending physician to Defendant Brewer followed

by the words "Consult Dr. Stevenson,,, Allegedly, by publishing this is one patient's medical

record, this was tantamount to a defarnato1y pet se statement against the Plaintiff. Clearl), this is

nothing but innuendo and is certainly not a particular statement against the Plaintiff. Again,

when innuendo is required to determine whether a particular statement is in fact defamatory, then

the Plaintiff is prevented from prevailing on his claim for defamation per se. Plaintiff's

defamation per se claim should be dismissed accordingly.

3. Maliee

Plaintiff claims that he is entitled to exemplary damages for his claims for tortious

interference and defamation per se under Tex. Civ. Prac. & Rem. Code § 41.007 because

Brewer's conduct mvolved an "extreme degree of risk cons1dermg the probabtltty and magnitude

of the potential harm to others." Pl. Pet. p. 7. Tex. Civ. Prac. & Rem. Code §41.007 does not

entitle Plaintiff to exemplary damages, as § 41.007 only provides that "(p ]rejudgment interest

may not be assessed or recovered oo ao award of exemplary damages," Therefore, taking all

Plaintiffs allegations as true, Plaintiff is not entitled to exemplary damages under§ 41.007, Tex.

Civ. Prac. & Rem. Code.

Moreover, even if the Court allows Plaintiff to correct, what may be a typograf)hieal error

in the statute cited, Plaintifrs claim for exemplary damages for Malice fails because Plaintiff

does not allege that Brewer acted with malice, which means "a specific intent by the defendant to

cause substantial injury or harm to the claimant;" rather, Plaintiff alleges that Brewer acted with

an extreme degree of risk, considering the probability and magnitude of the potential harm to

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others, which is an element of gross negligence. Mobil Oil Corp. v. Ellender, 968 S.W.2d 917,

921 (Tex 1998) (''Gross negligence includes ... viewed objectively from the actor's standpoint,

the act or omission must involve an extreme degree of risk, considering the probability and

magnitude of the potential harm to others.'') However, Plaintiff does not allege that Brewer was

grossly negligent; and cmmot establish that lie is entitled to exemplary damages for malice based

on the allegations contained in Plaintiff's Original Petition. Accordingly, Plaintiffs claim for

exemplary damages should be dismissed.

4. Business Disparagement

To prevail on a business disparagement claim, a plaintiff must establish that (1) the

defendant published false and disparaging infum:aation about it, (2) with malice, (3) wjthnut

privilege, (4) that resulted in special damages to the plaintiff. Hurlbut v. Gulf Atl. Life Ins. Co .•

749 S.W.2d 762, 766 (Tex.1987); Forbes Inc. v. Granada Biosciences. Inc'"' 124 S.W.3d 167,

170 ( I ex. 2003). Actual mahce 1s not ul will; tt 1s the making of a statement with specific
intent/knowledge that it is false, or with reckless disregard of whether it is true. Gertz v. Robert

Welch, Inc., 418 U.S. 323, 328 (1974). "Reckless disregard" is defined as a high degree of

awar:eness of pi:obable falsicy, for proof of wbicb the plaintiff must present "sufficient evidence

to permit the conclusion that the defendant in fact entertained serious doubts as to the truth of his

publication." SI. Amant v. Thompson, 390 U.S. 727, 731, (1968). An error in judgment is not

enough. See Time, inc. v. Pape, 461 U.S. 219, 2~6, (1971), Can v. B1ashe,, 776 S.W.2d 567,

571 (Tex. 1989). Furthermore, a plaintiff cannot rely on a statement of opinion to support its

business disparagement claim because such statements are constitutionally protected. Carr v.

Brasher, 116 S.W.2d 567,570 (Tex. 1989).

DEFENDANT KIRK BREWER, M.D. 'S AMENDED MOTION TO DISMISS Page IUot 19
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 Plaintiff's pleadings, even if taken as true, do not entitle Plaintiff to the relief sought for

business disparagement As addressed above, Plaintiff makes no specific allegations that Brewer

published any false, defamatory statement regarding Plaintifrs business. Plaintiff's conclusory

allegations that Brewer made charges of incompetent patient care, evidently by innuendo, and

started a whisper campaign without any supprn ting facts to not 1efe1 business to Plaintiff does

not support a claim for business disparagement. A whisper campaign not to refer patients to

Plaintiff, taken as true, does not imply that false statements were made about Plaintiff in the

alleged "whisper campaign," and to the extent any charges were brought by Brewer against

Plaintiff were brought as part of a medical peer review process which is protected under the

TCPA, and the privileges and immunities as set furth in the Texas Occupations Code, §§160 001

et seq., 160.0lO(and especially subsection (c) of that section), and 161.001 et seq., the Texas

Health & Safety Code, §161.001 el seq., and 161.033, and the Federal Health Care Quality

Improvement Act, 42 0 .S.C., §1110 l et seq. Furthermore, Plamtlff tails to allege or establish

that Brewer's statements caused Plaintiff special damages. Proof of special damages is an

essential part of the plaintiffs' cause of action for business disparagement. Hurlbut v. Gulf At/.

Life !'118. Co., 149 S.W.2d 762, 767 (Tex 1987) The cequicement goes to the cause of action

itself and requires that plaintiff "establish pecuniary loss that has been realized or liquidated as in

the case of specific lost sales." W. Keeton, Prosser and Keeton on the Law of Torts,§ 128 at 971

(Stli Ed.1984); lturtbut v. GutfAII. Life ins. Co., 14~ 8.W.2d '7'62, 161 (Tex. 1987). While

Plaintiff generally alleges that Defendants took the action(s) to harm Plaintiff's business interests

and the alleged Defamation per se caused between $1,000,000.00 and $6,500,000.00 in damages;

this is insufficient to establish special damages under a claim for business disparagement as such

a claim is still wholly conclusory, not supported by any facts as to the number of patients,

DEFENDANT KIRK BREWER, M.D. 'S AMENDED MOTION TO DISMISS Page II of (9
AND FOR RECOVERY OF COSTS AND ATIORNEY'S FEES

129
estimated or otherwise, and the amount lost per patient. Plaintiff claims this goes back to 2007

or 2003, which would mean, even iftme, most oftbese claim wnnld be barred by limjta,tinns and

improper anyway. Regardless, Plaintiff's claim for business disparagement should be dismissed.

Additionally, Plaintiff's claim for business disparagement must be dismissed because the

Texas Medical Practice Act ("TMPA") affords immunity from civil liability to peer-review

participants when they act "without malice and in the reasonable belief that the action or

recommendation is warranted by the facts known to that person." Tex. 0cc. Code §

160.010(a)(2). PlaintiWs allegations against Brewer concern his actions as a peer-review

participant, and peer-review participants are always presumed to have acted without malice.

Benson P. St. .laseph Reg'/ Healll1 Cir., S7S F.3d 542, 545 (5th Cir. 2009). Te ev@Kome the

presumption, a plaintiff bears the burden of proving the contrary by clear and convincing

evidence. Benson v. St. Joseph Reg'/ Health Ctr., 515 F.3d 542, 545 (5th Cir. 2009). Plaintiffs

conclusory allegation that Defendants acted with mahce falls far short of the clear and

convincing evidence standard required to establish this element and no facts alleged support his

allegation of malice. Accordingly, Brewer should be found immune from Plaintiff's business

disparagement elaim, and it should be dismissed.

5. Restraint of Trade

Initially, Brewer would re-assert its argument that Plaintiff's claims must be dismissed

because the I exas Medical Practice Act ("TMPA") affords tmmunlty from civil liability to peer-

review participants when they act "without malice and in the reasonable belief that the action or

recommendation is warranted by the facts known to that person." Tex. 0cc. Code §

l60.010(a)(2). Plaintiffs allegations against Brewer concern his actions as a peer-review

participant, and peer-review participants are always presumed to have acted without malice.

DEPENDANT KIRK BREWER. M.O.'S AMENDED MOTION TO DISMISS Page 12 of 19
AND FOR RECOVERY OF COSTS AND A1TORNEY'S FEES

130
Benson v. St. Joseph Reg'/ Health Ctr., 515 F.3d 542, 545 (5th Cir. 2009). To overcome the

presumption, a plaintiff hears the burden of proving the contrar_y by clear and convincing
evidence. Benson v. St. Joseph Reg'/ Health Ctr., 515 F.3d 542, 545 (5th Cir. 2009). As

discussed above, Plaintiff's Petition fails to allege facts sufficient to entitle him to a fmding of

malice against B1twe1, much less evidence of the elem and convincing btuden. The Plaintiff has

attached his own affidavit in response to the Defendant's Motion to Dismiss. As is noted below,

the affidavit is conclusory in nature and legally insufficient to defeat this motion. Accordingly,

Brewer is immune from Plaintifrs Restraint of Trade claim, and it should be dismissed.

Further, Plaintifrs conclusory allegations that Defendants referred patients to a hospital-

0v. M.D.

___ day of January,
SWORN TO AND SUBSCRIBED TO BEFORE me on this _:]
2016.

Notu~~Ttate
~~·o£B= ofTexas

139
 '•\'EST TEXAS NEPHROLOGY ASSOCIATES
STEVEF. MONTOVA,JR., M.D.

,ae East conc·,o 3501 Execu1tva onve
San Angelo, T11118S 7G903.S94T
San Angelo. TexaB 75904-8813

December 1 o. 2015
Coar Dr Kirk Bcewec
As a staff physician at SACMC, I have noticed that my referral of patients from
the ER and consults from the hospitalist service has Jncreesed. I therefore would like to
address the following questions to the MEC:
1. Hae thaFe .beeA a change ll'l the admJssJon poficles lo the ER
2 Has there been a change ln the referral patters of the hospttalist.
3. Is the hospital going to adopt the same policy ae the CMA ollnlc of "not tolerating
anti-competitive behavior".

Respectfully,

P C32S> 653.6773 F(325) 653-3B49 e aml2000@vdtdgney ooJ

d9~:eo 9~ 90 uer

EXflltfr A
 CAUSE MO . .8-1 S0,285-C

STEVE F. MONTOYA, M.D., § IN THE 119THDISTRICTCOURT
WEST TEXAS RENAL CARE, and §
WEST TRXAS NEPHROLOGY, §

P{aintiffi, §
§
vs. § OF
§
SAN ANGELO COMMUNITY MEDICAL §
CBNTBR end KIRK BRBWBR, M.D. §

Defendants. § TOM GREEN COUNTY, TEXAS

AFFIDAVIT OF ROBERT B. WAGSTAFF

STATE OF TEXAS §

COUNTY OF TAYLOR §

BEFORE ME. the undersigned authority, personally appeared Robert B. Wagstaff, who,
after being duly sworn upon his oath stated as follows:

"My name is Robert B. Wagstaff. I am over the age of eighteen (18) years, have never
been convicted of a crime, and I am otherwise qualified to make this affidavit. I am the attomey
of record for Defendant Kirk Brewer, M.D. in the above-styled cause and as such, I have
pe1 sonal know ledge of the fuJlawing arttl it is true and eerreet.
lam a 1989 graduate of Texas Tech School of Law and have been licensed to pl'actice in
Texas since November of 1989. I am also licensed to practice 1n all four U.S. District Courts in
Texas and before the Fifth Circuit Court of AppeaJs. I have handled civil litigation cases in Tom
Green County since J 996 I am board <'terti:6ed in Persona] lnjucy Trial l aw by the Texas Board
of Legal Specialization (since 1995) and as a Civil Trial Advocate by the National Board of Trial
Advocacy (since 2001). As such, I am familiar with the prosecution and defense of cases such as
this and what is reasonable and necessary for attorneys' fees and expenses. Further, I am
familiar witJ1 the case law and Texas Disciplioary Rules of Professional Conduct concerning
reasonable and necessary attorneys' fees and expenses. In reaching my opinions, l considered
the various rectors as required in making my determination, including the complexity of the

E~IT2
mattert the amount of damages claimed, all lawyers involved on all sides, the time and skill
required. my ability and reputation, a11d also the experience of my partner, Jessica Hat le~ who has
assisted in the case. I believe that a reasonable and necessary hourly rate for this type of work in
a civil defamation/business interruption case in Tom Green County is no less than $250. 00 per
hour. We have ex.pended a total of 26.8 hours in this case through the filing of the amended
motio1t to dismiss. It is antieipated the.t an additional l heYrs will bu spetit traveling to and fi:om
San Angelo and arguing the motion to dismiss, plus reasonable and necessary expenses.
Accordingly, it is my opinion that the reasonable and nec.essary attorneys~ fees and expenses for
Defeadaat Boower tlu:ough January 1, 20J6, are $67QQ oo and likely an additional $1250,00
through the hearing plus $89.64 in expenses.
Finally, the work on each cause of action bas been so intertwined as to be difficult to
separate one cause from the other. As such, it is my opinion that the entu:e fees should be
awarded ti one or more causes of action ore d1smissed.1'
Further Affiant Saith Not.

~/4,(~"~ ··---
ltobetF~ Wagstaff

SWORN TO AND SUBSCRIBED TO BEFORE me on this ih day of January, 2016.

142
TABN0.5
 Filed for Record
1/4/2016 3:52:21 PM
Sheri Woodfin, District Clerk
Tom Green County, Texas

CAUSE NO. B-15-0285-C

STEVE F. MONTOYA, JR., M.D. § IN THE DISTRICT COURT OF
WESTTEXASRENALCARE §
WESTTEXASNEPHROLOGY §
§
vs. § 119111 JUDICIAL DISTRICT
§
SAN ANGELO COMMUNITY §
MEDICAL CENTER AND §
KIRK BREWER, M.D. § TOM GREEN COUNTY, TEXAS

RESPONSE TO MOTION TO DISMISS

COMES NOW, Dr. Montoya, Plaintiff and responds to the Motion to Dismiss by
Defendant Kirk Brewer, M.D.

1. The Motion to Dismiss is based upon Texas Anti-Slapp Statute, Chapter 27 Actions
invoking the exercise of certain Constitutional Rights.

2. No affidavits are attached to the Motion.

3. Attached hereto is the affidavit of Dr. Montoya as evidence in support of his
response.

4. The purpose of this lawsuit has nothing to do with the Defendants Constitutional
Rights to speak freely, associate freely and participate in governmental as permitted
by law. These are the requirements to meet in filing a Motion under the Anti-Slapp
Statute Tex.C.P.R.C.§27.005(b) and as set out in Paulsen v. Yarrell 455 SW3d 192
(Tex.-App.-Houston {r' Dist.] 2014, no pet.) (quoting In Re Estate of Check 438
SW3d at 836).

5. The evidence presented by Dr. Montoya is that this case deals with the same standard
as setforth in the recent Texas Supreme Court of In Re Memorial Herman Hospital et
al 464 SW3d 686 2015. This case is on concerning anti-trust, business damages and a
campaign to stop competition by Dr. Montoya at San Angelo Community Medical
Center.

6. The Texas Supreme Court agreed that clear and specific evidence under the Texas
Statute includes relevant circumstantial evidence. (In Re Lipsky, 2015 WL1870073).
This evidence of Dr. Montoya meets the standard.

7. In this case th~ evidence is both direct, actual and circumstantial. The pleadings and
affidavit of Dr. Montoya prove that his case is real and not a continually protected
case.

94
8. The remaining part of the Motion under TRCP 91a is really a Special Exception.
These have been answered by Plaintiff's Amended Petition filed pursuant to the
Order on Special Exceptions.

Plaintiff requests attorney fees and costs be awarded for having to respond to this
frivolous motion.

Respectfully Submitted
Paul Craig Laird II Law Firm, PLLC
Isl Paul Craig Laird II
By: Paul Craig Laird II
800 W. Airport Freeway
Suite 880 LB 6015
Irving, TX 75062
972-554-0929
214-260-4935- fax
pcl880@aim.com
SBOT 11795420
Attorney for Plaintiff

95
STATE OF TEXAS §
§ AFFIDAVIT
COUNTY OF TOM GREEN §

BEFORE ME the undersigned authority appeared Steve F. Montoya, Jr. M.D. and after
being duly sworn under oath stated.

"My name is Steve F. Montoya, Jr. M.D. I am the Plaintiff in this case. I have
knowledge of all the facts of this affidavit as Plaintiff and all facts are within my personal
knowledge true and correct and that I was involved with facts stated.

I have not used any patient name, except where authorized by the patient or their agent, to
avoid any HIPAA or privacy violation.

1. I was admitted to practice nephrology at San Angelo Community Medical Center in
1981. I have full staff privileges for the practice of nephrology at San Angelo
Community Medical Center. This case does not involve the rights of Defendant Kirk
Brewer, M.D. to speak freely, associate freely, and participate in government as
permitted by law. The facts of the case are that Kirk Brewer, M.D. was during his
actions an officer and/or Chief of Staff of the medical staff of San Angelo
Community Medical Center. Kirk Brewer, M.D. was hired by San Angelo
Community Medical Center to run the hospitalist service. As an officer of the staff
and Chief of Staff Kirk Brewer, M.D. owed me a member of the staff a fiduciary duty
to not interfere by direct or indirect action with my practice of nephrology at San
Angelo Community Medical Center.

2. Kirk Brewer, M.D. came to San Angelo Community Medical Center in 2007. Part of
my practice and obtaining patients is that the hospital emergency room uses a rotating
system of specialists admitted in that practice to see patients in the hospital and
emergency room. When you are the named specialist you receive a call from the
emergency room physician that a doctor with your specialty is needed for a patient.
A big part of my practice was obtaining new patients and treating existing patients
that came to the emergency room and needed a nephrologist. Since 1981 I have
gotten new patients from the emergency room.

96
3. Until 2007 I would receive 10-20 calls from the emergency room, per month to treat
either new or existing patients at the San Angelo Community Medical Center. Since
2008 I have received only one call from the emergency room or a hospitalist for
consultation as a nephrologist, except for one time for treatment of a new patient or
existing patient that suffered with kidney problems.

4. The one time for a new patient is described below. On January 24, 2014 I was called
by the San Angelo Community Medical Center emergency room physician on duty
and the hospitalist Dr. Bartels. Dr. Bartels and the emergency room physician
informed me that a patient was diagnosed with acute renal failure. I was informed my
name was on the call board in the emergency room as nephrologist on call. Both of
the above doctors asked me to consult concerning treatment for that patient. I gave
my initial consult advice/orders of treatment to both doctors. This consultation call
was to me at 9:38 p.m. I informed them I would come see the patient and then review
the test results and determine any additional treatment for the patient. Attached as
Exhibit A is a true and correct copy of the redacted hospital record showing the facts
on January 24, 2014.

5. On January 25, 2014 at 8:10 a.m. Kirk Brewer, M.D. took over the hospitalists care of
the patient as his rotation as the hospitalist started. Then without ever seeing the
patient or the chart Kirk Brewer, M.D. cancelled my consult and treatment by me and
consulted another nephrologist. The nephrologist he brought in for consult is one that
is in a group that Kirk Brewer, M.D. has a contract for paid services. Kirk Brewer,
M.D. without seeing the patient, or chart changed the patient's doctor. This change of
nephrologist was for Kirk Brewer, M.D. 's economic gain and caused me economic
loss. Attached as Exhibit B is a true and correct copy of the redacted hospital record
showing the facts on January 25, 2014.

6. Kirk Brewer, M.D. by his actions of removing me as the nephrologist published a
statement that I was not a competent nephrologist to treat patients coming to the San
Angelo Community Medical Center emergency room. Kirk Brewer, M.D. was aware
that his actions would become known to the staff physicians of San Angelo

97
 Community Medical Center and that he was by conduct and a whisper campaign
saying I should not be allowed to treat patients at San Angelo Community Medical
Center.

7. The statements and actions of Kirk Brewer, M.D. were published by his conduct. The
actions were referring to me as a non-competent nephrologist. The statement(s) were
defamatory and caused me economics loss.

8. The total loss is between $1,000,000.00 and $6,500,000.00 from not receiving any
referrals from the emergency room or hospitalists.

9. The defamatory statements are untrue. I am a competent and qualified nephrologist
to treat patients at San Angelo Community Medical Center.

10. The actions of Kirk Brewer, M.D. were intentional or done with negligence when
Kirk Brewer, M.D. knew that the statement was false and his actions would lead a
reasonable prudent physician or patient knowing/believing of its defamatory
potential.

11. As officer and as President of the medical staff Kirk Brewer, M.D. must follow the
rules at San Angelo Community Medical Center and staff of San Angelo Community
Medical Center and have a new patient in the emergency room or hospital that needs
a specialist consultation assigned to the name off the rotating consultation list. By
Kirk Brewer, M.D. not following this procedure I did not receive any consultation
requests from the emergency room or hospitalist at San Angelo Community Medical
Center in 2008-present and one in 2014.

12. Attached to this affidavit as Exhibit C is the true and correct sworn statement that an
existing patient of mine Mrs. Welch tried to see me in the emergency room of San
Angelo Community Medical Center and that the emergency room would not call me
to treat my existing patient Mrs. Welch is over 90 years of age and I have treated her
for at least 20 years.

98
 ----~-·--·----···--- - - - .

13, Another patient of mine, whose name is withheld per privaoy rights, who is also over
90 years of age and has been my patient fo1· a.t least lOyears requested roe when she
went to t~ emergency room and she also was refused to see me,

14. A patient ~as the absolute· right to be treated by their physician. Both of the above
i
happened when Kirk Brewer, M.O. was President of the medical std' or an officer of
I •
the medicai staff and when he was head of the hospitalist service when the above
hap~ened. '.

Again by the =actions of the hospitalists and emergency toom physicians. who are
• • • t I. I •

controlled by thoir su~erv1aors or lead physicians Kirk Brewer, MD. ~u.gb t~ actions
or
defamed me as a quaUfied physioian staff at' San Ang~lo Community Medical Center.
?

Furthet affi.ant saith not,·~

Signed this·4t11 day of January, 2016.

Subscribed and sworn to me the undersigned notacy by Steve F. Montoya, Jr., M.D. on
th
the 4 day of January, 2016.

~ oAULACRUZ \i,
~ MV COMMISSION EXPIRES t'
~M May 151 2018
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12/16/2015 WED 13,23 PAX 3252244284 West Texas Nephrology ~~~ CRAIG LAIRD ATTORNEY ll)003/003

April 17, 2014

I am Karen·,·TJms; the· daughter of Eunice Welch. I am writing to you on her behalf
concerning her admission to SACMC on 11/28/2011. When asked by the ER admission
staff, we replied that "Dr. Montoya" was her doctor. We were admitted to the
hospitalists' service. We do not appreciate the fa_ct that we did not have our physician
of choice at the hospital. Please correct this to help maintain quality patient care.

Sincerely,

Karen Tims ?,
J('ttu---17~
Stateof ~
County of c:zim ~
Subscribed and swo~ to before me this _jJ!f;;of ~ , ;)..() I f

e
....
ROSEMARY ANDROS
My Commrssron Exolres
August 1~, 2017
' . ''''''''''"'
/~~~
{ Notary Public

. I ' j ' f-
£,th., J-.:,,
c.., 1"02
TAB NO. 6
 Filed for Record
1/11/2016 4:15:34 PM
Sheri Woodfin, District Clerk
Tom Green County, Texas

CAUSE NO. B-15-0285-C

STEVE F. MONTOYA, JR., M.D. § IN THE DISTRICT COURT OF
WEST TEXAS RENAL CARE §
WESTTEXASNEPHROLOGY §
§
vs. § 119th JUDICIAL DISTRICT
§
SAN ANGELO COMMUNITY §
MEDICAL CENTER AND §
KIRK BREWER, M.D. § TOM GREEN COUNTY, TEXAS

SUPPLEMENTAL RESPONSE TO MOTION TO DISMISS

COMES NOW, Stephen F. Montoya, Jr., M.D., Plaintiff and files this Supplemental
Response to the Amended Motion to Dismiss.

1. Pursuant to T.R.C.P. 9I(a)3(b) a Motion to Dismiss must be filed at least 21 days
before the Motion is heard. Respondent objects to Amended Motion as not allowed
without restarting the period of T.R.C.P.91(a). (T.R.C.P.91(a).5(d)) and requires the
hearing be reset T.R.C.P.91(a)6. By filing the Amended Motion the Movant has
waived the right to be heard.

2. Pursuant to T.C.R.C.P. Chapter 27 a Motion to Dismiss a legal action under this
section must be filed not later than the 60th day after the date of service of the legal
action T.C.P.R.C.§27.003(b). Respondent objects to the untimely filed affidavits and
Amended Motion. The Court should strike the affidavits as untimely filed.

3. Attached to this Motion is the affidavits of John Hunt, M.D. (Exhibit I) attached
hereto as if setforth at length and a second affidavit of Plaintiff Stephen F. Montoya,
M.D. (Exhibit 2) attached hereto as if setforth at length that prove the whisper
campaign and that the call list is a requirement of Medicare rules and that the actions
of Dr. Brewer were to hurt Dr. Montoya economically and professionally.

Prayer

The Respondent prays the Court deny the Motion to Dismiss.

177
 Respectfully Submitted
Paul Craig Laird II Law Firm, PLLC
Isl Paul Craig Laird II
By: Paul Craig Laird II
800 W. Airport Freeway
Suite 880 LB 6015
Irving, TX 75062
972-554-0929
214-260-4935- fax
pcl880@aim.com
SBOT 11795420
Attorney for Plaintiff

CERTIFICATE OF SERVICE

This is to certify that this Supplemental Response was serviced via the e-filing system on the 11 th
day of January, 2016.

Isl Paul Craig Laird II

178
 STATBOPTBXAS §
§ AFFIDAVIT
COUNTY OF TOM GREEN§

·BBPORB MB the undersigned authority appeared John Hunt, M.D. and after bejng duly
sworn under oath stat~d. ·

"My name is Joh11 Hunt, M.D. I have knowledge of all the faots of'tbis affidavit and all
facts aro within my personal knowledge true and ootrect end that I was involved with. facts
stated.

"J was on the staff of San Angelo Community Medical Center when Dr. Brewer was
brought ln to head up the hospitalist service and emergency room of San Angelo Community
Medical Center. San Angelo Comt'0.\1~lty Medical Conte\' ha.cl a call list in the emergenoy room.
that listed on-01111 physicians to be referred patients. Tbis list was kept pursuant to Medicare
regulations. The lt$t was to be followed pursuant to the Medicare regulations unless the patient
requested a differ"'nt physician. I learned of the whisper campaign against Or, Montoya that he
was- not to bo re!emd patien1s by the e1nergency room and haspftallst. Dr, Montoya Is an
indepen:dent-pbysician. Until Pt. Brewer came to San Angelo Co.l1)1ttumty MedfcaJ Center the
lnd,_pettd~t physjcians would receive referrals ftom.hospitallsts. Dr• .Brewer lead a campaign to
not use:fadepehdent physicians, Independent physicians are physicians that do work for or are
affiliated with the hospital owned groups.

Further filftlant saith not."
Sjgned this 11 th day oUanuary, 2016.

Joiii M.D. without seeing the patient. Dr chart changed the patient's doctor. This
change of nephrologlst was for Kirk Brewer, MJ). 's economic gain nnd caused me economic
loss.

Again by the aotions of the hospitalists ao.d emergency room physicians who are
controlled by tbelr. sµpeJ;Visors or lead. physicians. Kirk- Brewer, M.D. through this actions
...defamed ine· as a qualified physician or staff at San Angelo Community Medical Center.

Further affiant saith not..,

Signed this 1Ith day of Januacy, 2016.

Steve

Subsctt"bed and sworn to me tho undersigned notary F. Montoya, Jr., M.D. on
tho 11 th day of January. 201G. ~
(Jab-~ (;t4--
. '
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z:' i, _: b-/ ,f t
TAB NO. 7
 CAUSE NO. B-150,285-C

STEVE F. MONTOYA, M.D., § IN THE 119TH DISTRICT COURT
WEST TEXAS RENAL CARE, and §
WEST TEXAS NEPHROLOGY, §
§
Plaintiffs, §
§
vs. § OF
§
SAN ANGELO COMMUNITY MEDICAL §
CENTER and KIRK BREWER, M.D. §
§
Defendants. § TOM GREEN COUNTY, TEXAS

ORDER ON DEFENDANT KIRK BREWER, M.D.'S MOTION TO DISMISS
PER THE TEXAS CITIZENS PARTICIPATION ACT

On the 12th day of January, 2016, came on to be heard Defendant Kirk Brewer, M.D.'s

Motion to Dismiss and for Recovery of Costs and Attorney's Fees per the Texas Citizens

Participation Act, and the Court having considered same, is of the opinion that said motion is well

taken and should be granted.

IT IS, THEREFORE, ORDERED, ADJUDGED and DECREED that Plaintifrs claims for

tortious interference with current and prospective patient relations, defamation per se, malice,

business disparagement, restraint of trade, and conspiracy be dismissed.

IT IS, FURTHER ORDERED, ADJUDGED, and DECREED that Defendant Kirk Brewer,
$7,950 + $89.64 Expenses
M.D. be awarded his reasonable and necessary attorney's fees in the amount of$_ _ _ _ _ as

well as costs of court ia the amouat of$- - -

IT IS, THEREFORE, ORDERED, ADJUDGED and DECREED by the Court that Kirk

Brewer, M.D.'s motion to dismiss per the Texas Citizens Participation Act is GRANTED, that

ORDER ON DEFENDANT KIRK BREWER, M.D. 'S MOTION TO DISMISS Page 1 of2
PER THE TEXAS CITIZENS PARTICIPATION ACT

194
Defendant Kirk Brewer, M.D. is hereby dismissed from this cause as there are no remaining claims

against him, and costs and attorney's fees are to be paid as set forth above.
SIGNED this _ _ day of February B, 2016 2016.

~Lir.4~
JUDGE PRESIDING ~

ORDER ON DEFENDANT KIRK BREWER, M.D. 'S MOTION TO DISMISS Page 2 of2
PER THE TEXAS CITIZENS PARTICIPATION ACT

195
TAB NO. 8

1
 CAUSE NO. B-150,285-C

STEVE F. MONTOYA, M.D., § IN THE 119TH DISTRICT COURT
WEST TEXAS RENAL CARE, and §
WEST TEXAS NEPHROLOGY, §
§
Plaintiffs, §
§
vs. § OF
§
SAN ANGELO COMMUNITY MEDICAL §
CENTER and KIRK BREWER, M.D. §
§
Defendants. § TOM GREEN COUNTY, TEXAS

ORDER ON DEFENDANT KIRK BREWER, M.D.'S MOTION TO DISMISS
PER RULE 9Ha} OF THE TEXAS RULES OF CIVIL PROCEDURE

On the 29th day of January, 2016, came on to be heard Defendant Kirk Brewer, M.D.'s

Motion to Dismiss and for Recovery of Costs and Attorney's Fees per Rule 91(a) of the Texas Rules

of Civil Procedure, and the Court having considered same, is of the opinion that said motion is well

taken and should be granted as follows:

IT IS, THEREFORE, ORDERED, ADJUDGED and DECREED that Plaintifr s claims for

tortious interference with current and prospective patient relations, defamation per se, malice,

business disparagement, restraint of trade, and conspiracy be dismissed.

IT IS, FURTHER ORDERED, ADJUDGED, and DECREED that Defendant Kirk Brewer,
$7,950.00 + $89.64 Expenses
M.D. be awarded his reasonable and necessary attorney's fees in the amount of $_ _ _ _ _ as

:well as costs of court iff the awo~t i ~ boll ti ,is Order
une ;provided however that Defendant may recover

~
~" ~. J tnese amounts Only one 1me an no I and the Order graniting the Chapter 27 Motion; provided
"oJ,(.,A,,,,' the Court finds that the claims are so intertwined that segr~tion of fees between the 2 motions is noJ_possible.
IT IS, THEREFORE, ORDERED, ADJUDGED and DECREED by the Court that Kirk

Brewer, M.D.'s motion to dismiss per Rule 91(a) of the Texas Rules of Civil Procedure is

ORDER ON DEFENDANT KIRK BREWER, M.D. 'S MOTION TO DISMISS Page 1 of2
PER RULE 91(a} OF THE TEXAS RULES OF CIVIL PROCEDURE

196
GRANTED, that Defendant Kirk Brewer, M.D. is hereby dismissed from this cause as there are no

remaining claims against him, and costs and attorney's fees are to be paid as set forth above.
February 8, 2016
SIGNED this _ _ day of _ _ _ _ _ _ 2016.

~ul/rlJJ-~"tM~
JUDGE P R E S I D I N G ~

ORDER ON DEFENDANT KIRK BREWER, M.D. 'S MOTION TO DISMISS Page 2 of2
PER RULE 9l(a) OF THE TEXAS RULES OF CIVIL PROCEDURE

197
TAB NO. 9
 Filed for Record
4/1/20164:11:24 PM
Sheri Woodfin, District Clerk
Tom Green County, Texas

CAUSE NO. B150285C

STEVE F. MONTOYA, M.D. § IN THE DISTRICT COURT OF
WEST TEXAS RENAL CARE §
WESTTEXASNEPHROLOGY §
§
Plaintiffs, §
§
v. § 119th JUDICIAL DISTRICT
§
SAN ANGELO COMMUNITY §
MEDICAL CENTER §
§
§
Defendants. § TOM GREEN COUNTY, TEXAS

DEFENDANT SAN ANGELO COMMUNITY MEDICAL CENTER'S TRADITIONAL
MOTION FOR SUMMARY JUDGMENT

TO THE HONORABLE JUDGE OF SAID COURT:

COMES NOW, Defendant San Angelo Community Medical Center (hereinafter

"Defendant") and files this Traditional Motion for Summary Judgment, and respectfully shows

the Court as follows 1:

I. BACKGROUND & SUMMARY OF THE ARGUMENT

Plaintiff originally filed this lawsuit in July of 2015 against Dr. Kirk Brewer ("Brewer")

and the moving defendant, San Angelo Community Medical Center ("SACMC"), alleging

numerous causes of action related to supposed ill-treatment of Plaintiff and his medical

practice's reputation. 2 After a several amendments to his Original Petition, this Court granted

Brewer's Motion to Dismiss and ordered the case against Brewer to be dismissed under Texas

Rules of Civil Procedure rule 91(a) and the Texas Citizens Participation Act on February 8,

1
For judicial economy, this Motion is concurrently filed with Defendant's Motion to Dismiss and Motion for leave
to File Its Motion to Dismiss.
2
See Plaintiffs Original Petition.

SACMC's Motion For Summary Judgment as a Matter of Law Page 1

208
2016. 3 As explained more fully below, because all of Plaintiff's claims of liability against

SACMC derive from Brewer's alleged bad acts and Brewer has been dismissed from this case,

SACMC now moves this Court to dismiss all claims for relief, with prejudice.

ARGUMENT

A. STANDARD OF REVIEW

Traditional summary judgment under Texas Rule of Civil Procedure 166a(c) is proper

when a movant establishes that there is no genuine issue of material fact and that it is entitled to

judgment as a matter oflaw. Gary E. Patterson & Assocs., P.C. v. Holub, 264 S.W.3d 180, 190

{Tex.App.-Houston [1st Dist.] 2008, pet. denied) (citing Randall's Food Mkts., Inc. v. Johnson,

891 S.W.2d 640, 644 {Tex.1995) and Tex.R. Civ. P. 166a(c)). "A defendant is entitled to

summary judgment if the evidence disproves as a matter of law at least one element of each of

the plaintiffs causes of action or if it conclusively establishes all elements of an affirmative

defense." Id.

B. SACMC IS ENTITLED TO SUMMARY JUDGMENT ON ALL OF PLAINTIFFS' CLAIMS
BECAUSE PLAINTIFF'S CLAIMS AGAINST BREWER HAVE BEEN DISMISSED.

As best SACMC can glean, Plaintiff's Fourth Amended Petition, his current live

pleading, alleges six causes of action:

1) Tortious Interference with current and prospective business/patient relations (Pl.' s 4th
Am. Pet. ,r,r 7-7.7);
2) Tortious Interference with current and prospective business/patient relations - Exemplary
Damage (Id. at ,r 8);
3) Defamation Per Se (Id. at ,r,r 9-9.8);
4) Malice (Id. at ,r 1O);
5) Business Disparagement (Id. at ,r 11 ); and
6) Restraint of trade (Id. at ,r 12-12.8).

3
See Order On Defendant Kirk Brewer, M.D.'s Motion to Dismiss Per The Texas Citizens Participation Act,
attached as Exhibit A.

SACMC's Motion For Summary Judgment as a Matter of Law Page2

209
 The gravamen of Plaintiffs allegations concern Brewer's supposed "whisper campaign"

to "wrongly ... cast Dr. Montoya's stellar reputation under a dark cloud" and the bringing up of

Plaintiff on charges of improper care "to discredit Dr. Montoya and his ability to practice

medicine in San Angelo and at San Angelo Community Medical Center." Id. at 11 6.15-17.
Plaintiff further alleges that Brewer "was and is employed by and acting in furtherance of the

business of (SACMC) and its medical practices" and "at all times acted for (SACMC)." Id. at ,I

6.6. Aside from Brewer, Plaintiff does not specifically allege in his live pleading any other

individuals who took part in the alleged various defamatory and conspiratorial schemes Brewer

supposedly perpetrated. Further, Plaintiff alleges no direct or separate liability claims against

SACMC above and apart from the actions of its agent, Brewer. Instead, SACMC's only

potential liability sounds in the doctrine of respondeat superior.

Under Texas law, a master can only be held liable for the servant's misdeeds if the

servant committed misdeeds. The Texas Supreme Court has repeatedly made this clear. See

Knutson v. Morton Foods, Inc., 603 S.W.2d 805, 807 n. 2 (Tex.1980) (noting "that where the

employer's liability rests solely on respondeat superior, an adjudication acquitting the employee

of negligence will [bar] a subsequent suit against the employer"); see also Johnson v. Ram, 01-

13-00404-CV, 2014 WL 3697881, at *8 (Tex. App.-Houston [1st Dist.] July 24, 2014)

(refusing to reverse summary judgment dismissing doctor for vicarious liability because

plaintiffs couldn't recover against nurses as a matter of law.)

In G & H Towing Co. v. Magee, 347 S. W.3d 293 (Tex. 2011 ), the plaintiffs filed a

negligent entrustment suit against an employee and a suit against his employer. Id. at 294-95.

After the employee obtained summary judgment in his favor, the trial court granted summary

judgment in favor of the employer even though the employer had not specifically sought it. Id.

SACMC's Motion For Summary Judgment as a Matter of Law Page3

210
at 295-296. Finding that "an employer cannot be vicariously liable in tort when its agent or

employee has not engaged in tortious conduct," the Texas Supreme Court held that even where

summary judgment is not specifically sought and but nonetheless granted, "the error is harmless

when the omitted cause of action is precluded as a matter of law by other grounds raised in the

case." Id. at 298.

This Court has already dismissed Brewer from this case under Texas Rules of Civil

Procedure rule 91 (a) and the Texas Citizens Participation Act. As such, it has held that Brewer's

actions or omissions were 1) constitutionally protected and/or 2) had "no basis in law or in fact."

In other words, Brewer, like the employee in G & H Towing, committed no tortious act.

Therefore, under plain and settled Texas law, SACMC cannot be held liable for Plaintiffs claims

as a matter of law.

CONCLUSION

WHEREFORE, PREMISES CONSIDERED, Defendant SACMC respectfully requests

that this grant this Motion for Summary Judgment and that judgment be entered dismissing all of

Plaintiffs claims against Defendant with prejudice, and for such other and further relief at law or

in equity as may be shown that Defendant is justly entitled to receive.

SACM C's Motion For Summary Judgment as a Matter of Law Page4

211
 Respectfully submitted,

CARR MCGOLDRICK, LLP

f'Ld,.o
J . M.£ GOLDRICK
State Bar No. 00797044
JEFFREY F. WOOD
State Bar No. 24025725
J. CHEVES LIGON
State Bar No. 24070147
5910 N. Central Expy., Ste. 1700
Premier Place
Dallas, Texas 75206
(214) 828-9200
(214) 828-9229 (Facsimile)

ATTORNEYS FOR DEFENDANT
SAN ANGELO COMMUNITY MEDICAL
CENTER

CERTIFICATE OF SERVICE

The undersigned hereby certifies that a copy of the foregoing pleading has been
forwarded to all counsel of record on this the 1st day of April, 2016, as follows:

Via TexFile
Paul Craig Laird II
800 W. Airport Freeway
Suite 880 LB 6015
Irving, TX 75062

JEFFREY F. WOOD

SACMC's Motion For Summary Judgment as a Matter of Law Page5

212
EXHIBIT '' A''

213
TAB NO. 10
 Filed for Record
5/4/201610:49:17 AM
Sheri Woodfin, District Clerk
Tom Green County, Texas

CAUSE NO. B-15-0285-C

STEVE F. MONTOYA, JR., M.D. § IN THE DISTRICT COURT OF
WEST TEXAS RENAL CARE §
WEST TEXAS NEPHROLOGY §
§
vs. § 119th JUDICIAL DISTRICT
§
SAN ANGELO COMMUNITY §
MEDICAL CENTER AND §
KIRK BREWER, M.D. § TOM GREEN COUNTY, TEXAS

PLAINTIFFS STEVE F. MONTOYA, JR., M.D., WEST TEXAS RENAL CARE AND
WEST TEXAS NEPHROLOGY'S RESPONSE TO
DEFENDANT SAN ANGELO COMMUNITY MEDICAL CENT.ER'S
MOTION FOR SUMMARY JUDGMENT AND OBJECTION AND
REQUEST FOR CONTINUANCE

Plaintiffs, STEVE F. MONTOYA, JR., M.D., WEST TEXAS RENAL CARE AND
WEST TEXAS NEPHROLOGY ask the Court to deny Defendant SAN ANGELO
COMMUNITY MEDICAL CENTER'S Motion for Summary Judgment.

INTRODUCTION

1. The Plaintiffs are Steve F. Montoya, Jr., M.D., West Texas Renal Care and West Texas
Nephrology. The Plaintiffs sued the hospital based tipon causes of action that were approved by
the Texas Supreme Court in a case of a doctor suing the hospital where he had a medical
practice. The exact same causes of action were approved by the Texas Supreme Court in In Re
Memorial Hermann Hospital System. 464 S.W. 3d 6'86 (2015). The justices in Memorial
Hermailn case stated "We hold that Dr. Gomez's petition presents multiple viable anti-competent
actions;' Id at 713. Attached as Exhibit 1 is a certified copy of the pleading of Dr. Gomez from
the Memorial Hermann case that was specifically approved by as viable the Texas Supreme
Court causes of action. The causes of action approved by the Texas Supreme Court in Memorial
Hermann are:

( 1) Business Disparagement
(2) Defamation
(3) Tortious Interference with Prospective Business Relations
(4) Improper Restraint of Trade under the Texas Fire Enterprises and Anti-Trust Act
of 1983.

Id. At 695-696

The Petition of the Plaintiffs followed the approved Petition of Dr. Gomez.

PLAINTlFFS RESPONSE TO DEFENDANTS MOTION FOR SUMMARY JUDGMENT-
PAGE l OF4
 The Plaintiffs ask the Court to take judicial notice of the Original Petition of the Plaintiffs
and the Amended Petitions on file to verify that the Plaintiffs are alleging the approved causes of
action of the Texas Supreme Court, by a physician and his entities in which he practices suing
the hospital where he practices medicine. This case is exactly the Memorial Hermann case
approved by the Texas Supreme Court. The Texas Supreme Court determined Memorial
Hermann in 2015 and has not changed its opinion in the year following the ruling.

This Traditional Motion for Summary is nothing more than a thinly vailed attempt to get
around the untimely filing of the Motion to Dismiss under 9I(a) and the Anti-Slapp Motion.

The finding of the Court concerning Dr. Brewer has no relevance to the causes of action
brought against San Angelo Community Medical Center. The causes of action against San
Angelo Community Medical Center are all separate and independent of Dr. Brewer.

The Defendant San Angelo Community Medical Center does not even attach a single
factual affidavit or any affidavit in support of the Summary Judgment.

The Motion for Summary Judgment is a untimely Motion to Dismiss that has no evidence
or proof attached.

San Angelo Community Medical Center filed a Motion for Special Exceptions on August
14, 2015 the court granted the Special Exceptions on December 3, 2015. The Plaintiffs Petition
was amended to comply with the Court order.

Since the Order of Dismissal of Defendant Dr. Brewer hearing the Plaintiffs have added
Anti-Trust violations concerning group boycott and violations of the EMTALA standards against
San Angelo Community Medical Center.

The purpose of this lawsuit has nothing to do with the Defendants Constitutional Rights
to speak freely, associate freely and participate in governmental as permitted by law. These are
the requirements to meet in filing a Motion under the Anti-Slapp Statute Tex. C.P.R. C.§27. 005(b)
and as set out in Paulsen v. Yarrell 455 SW3d 192 (Tex.-App.-Houston [1 st Dist.] 2014, no pet.)
(quoting In Re Estate o,[Check 438 SW3d at 836).

The Texas Supreme Court agreed that clear and specific evidence under the Texas Anti-
Slapp Statute Chapter 27 includes relevant circumstantial evidence. (In Re Lipsky, 2015
WLJ870073). The evidence of the Plaintiff meets the standard.

The Defendant San Angelo Community Medical Center did not even join in Dr. Brewer's
Motion to Dismiss w1der 9l(a) or his Anti-Slapp motion.

Request to Strike/Objection

No Summary Judgment evidence is presented by the Defendant San Angelo Community
Medical Center. Respondents to the Motion for Summary Judgment object to the Motion
because there is no evidence attached to the Motion. The statements in the body of the argument

PLAINTIFFS RESPONSE TO DEFENDANTS MOTION FOR SUMMARY JUDGMENT-
PAGE20F 4
are heresay and Respondents request the Court to strike those statements as defective and not
meeting the standard for Summary Judgment evidence. The statements in the argument are
conclusory and without factual basis as required by the Texas Rules of Civil Procedure (TRCP
166a(c)).

The Respondents further object to the argument because it does not meet the standard set
forth for an affidavit in the Texas Supreme Court Radio Station KSCS v. Jennings 750 S.W.2d
760 (Tex. 1988). The Supreme Court held that affidavit for summary judgment failed to
establish that it was based on personal knowledge and was thus inadequate summary judgment
proof. The argument in the Motion is not a factual affidavit showing proof.

The Plaintiff objects to the argument because it is not an affidavit which must state
facts and cannot merely recite legal conclusions. Brownlee v. Brownlee, 655 S.W. 2d 111, 112
(Tex. 1984). In this case the argument does not meet the KSCS or Brownlee standards.

SUMMARY-JUDGMENT EVIDENCE PRESENTED BY PLAINTIFF

2. To support the facts in this response, Plaintiffs offer the following summary-judgment
evidence attached to this response and incorporates the evidence into this response by reference.

Exhibit 1: Certified copy of Pleading approved by the Texas Supreme Court as valid
causes of action in Memorial Hennann Hospital System.

Exhibit 2: Is the affidavit of Steve F. Montoya, Jr., M.D. one of the Plaintiffs. In the
affidavit he states the facts and refutes the allegations for the dismissal under TRCP 9l(a) and
the Anti-Slapp allegations.

Exhibit 3: Is the affidavit of Dr. Hunt that confirms the causes of actions and the facts of
the Anti-Trust actions of San Angelo Community Medical Center.

A. Defendant did not disprove plaintiff's cause of action as a matter of law.

3. A defendant is entitled to summary judgment on a plaintiff's cause of action if the
defendant can disprove at least one element of the cause of action as a matter of law. Sw. Elec.
Power Co. v. Grant, 73 S.W.3d 211, 215 (Tex. 2002); see Tello v. Bank One, N.A., 218 S.W.3d
109, 113 (Tex. App.-Houston [14th Dist.] 2007, no pet.). The Defendant has not disproved any
of Plaintiffs elements in their causes of action.

PRAYER

4. For these reasons, Plaintiffs ask the Court to deny Defendant's Motion for Summary
Judgment. Plaintiffs ask the Court to grant Plaintiffs objections so they will be preserved for
appeal.

PLAINTIFFS RESPONSE TO DEFENDANTS MOTION FOR SUMMARY JUDGMENT-
PAGE 3 OF4
 Respectfully Submitted

Paul Craig Laird II Law Firm, PLLC

Isl Paul Craig Laird II
By: Paul Craig Laird II
800 W. Airport Freeway
. Suite 880 LB 6015
Irving, TX 75062
972-554-0929
214-260-4935- fax
pcl880@aim.com
SBOT 11795420
Attorney for Plaintiffs

CERTIFICATE OF SERVICE

This is to certify that this Response was serviced via thee-filing system on the 4 th day of
May, 2016.

Isl Paul Craig Laird II

PLAINTIFFS RESPONSE TO DEFENDANTS MOTION FOR SUMMARY JUDGMENT-
PAGE40F 4
12/26/2012 09:19:22 AM 713-755-1451 Page 2 / 18
Filed 12 December 26 A9:19
Chris Daniel - District Clerk
Harris County
FAX15376415

Cause No. 2012-53962

Ml GUEL A. GOMEZ, III, M.D. and § IN THE DISTRICT COURT OF
MIGUEL A. GOMEZ, M.D., P.A., §
§
Plainlij]s, §
§
V. § HARRIS COUNTY, TEXAS
§
MEMORIAL HERMANN HOSPITAL §
SYSTEM; MEMORIAL HERMANN §
PHYSICIAN NETWORK; MICHAEL P. §
MACRIS, M.D.; MICHAEL P. MACRIS, §
M.D., P.A.; ai1.d KEITH ALEXANDER, §
§
Defendants. § 333fd JUD1CIAL DISTRICT

PLAINTIFFS' FIRST AMENDED ORIGINAL PETITION AND JURY DEMAND

To THE HONORABLE JUDGE HALBACH & OUR JURY OF HARRIS COUNTY CITIZENS:

Plaintiffs Miguel A. Gomez, III, M.D. and Miguel A. Gomez, M.D.., P.A.

(together., "Dr. Gomez") file this First Amended Original Petition and Jury Demand

against Defendants Memorial Hermann Hospital System ("Memorial Herma.1.m");

Memorial Hermann Physician Network ("MHMD"); Michael P. Macris., M.D.; Michael

P. Macris, M.D., P.A. (both together, "Dr. Macris"); and Keith Alexander (all together,

"Defendants")., and wuuld respectfully state:

DISCOVERY CONTROL PLAN

1.1 Dr. Gomez intends to conduct discovery under Level 2 of Texas Rule of Civil

Procedw·e 190.

Sh,'b:+-2
12/26/2012 09:19:22 AM 713-755-1451 Page 3 / 18

PARTIES

2.1 Miguel A. Gomez, III, M.D. ("Dr. Miguel Gomez) is a resident and citizen of

Harris County, Texas.

2.2 Miguel A. Gomez, M.D., P.A. ("Dr. Gomez P.A. 11 ) is a professional association

organized under the laws of the State of Texas.

2.3 Memorial Hermann Hospital System is a business entity organized under the laws

of the State of Texas that controls and manages a number of hospitals, out-patient

facilities, and other health care service centers throughout the Houston Metropolitan area,

including Memorial Hermann Memorial City Medical Center. Memorial Hermann has

appeared an.d answered herein.

2.4 MHMD a/k/ a Memorial Hermann Physician Network is a business entity

organized tmde.r the laws of the State of Te.xas that acts to deliver medical services on

behalf of Memorial Hermann, and ha:; appeared and aru;wered he1·ein.

2.5 Michael P. Macl'is, M.D. ("Dr. Michael Ma.eris") is a natural pei·son residing in

Harris County, Te.xas, and has appeared and answered herein.

2.6 Michael P. Macris, M.D., P.A. ("Dr. Macris P.A.") is a professional association

-
r--
organized under the laws of the State of Texas and has appeared and answered herein.

2.7 Keith Alexander ("Mr. Alexander") is a natural person employed at all relevant

times as the Chief Executive Officer for Memorial Hermann Memorial City Medical

Center, and has appeared and answered herein.

-2-
12/26/2012 09:19:22 AM 713-755-1451 Page 4 / 18

VENUE & JURISDICTION

3.1 Venue is pl'oper in Harris County unde1· Tex. Civ. Prac. & Rem. Code Section

15.002(a)(1), as all or a ~-ubstantial pa11 of the events or om.issions giving rise to this legal

action occuued in Hards County, Te.xas, an.d Defendants all reside :i11. Harris County,

Texas.

3.2 Dr. Gomez has incurred and sues for damages well in excess of $125,000, and

jmisdiction is proper in this Court.

RESPONDEAT SUPERIOR/VICc\RIOUS LIABILITY/ CIVIL CONSPJRA.CY

3.3 At all relevant times, Keith Alexander, as a p1·:i11cipal officer of Memorial

Hermann, and other agents/ employees of Memorial Herma1m and MHMD working

under his direction or in furtherance of unlawful and impl'Ope1· actions, was employed

by and acting in furtherance of the business of Memorial Hermann and/MHMD. Keith

Alex-antler is individually liable for his own illegal and improper actions. Memorial

Hermann is also Jiable for the improper acts and omissions of its principal officer, Keith

Alexander, as well as the other agents/ employees of Memorial Hermann, under the

legal doctrines of respondeat superior and vicarious liability. MHMD is also liable for

the improper acts and omissions of its agents/ employees of MHMD, under the legal

doctrines of respondeat superior and vicarious liability.

3.4 At all relevai.1t times., Dr. Macl'is, as a principal officer of Dr. Macris P.A., and

other agents/ employees of Dr. Macris P.A. workh1.g under his direction or in

furthernnce of his unlawful a11.d improper actions, was employed by and acting in

furtherance of the bus:iness of Dr. Maeris P.A.. Dr. Mac1·is is individually liable for his

"\
-.:,-
12/26/2012 09:19:22 AM 713-755-1451 Page 5 / 18

own illegal and improper actions. Dr. Macris P.A. is also liable for the improper acts

and omissions of its principal officer, Dr. Macris , as well as the other agents/ employees

of Dr. Macris, under the legal doctrines of respondeat superior and vicarious liability.

3.5 Defendants Memorial Hermann (acting by and through its

agents/ employees/principal officers); MHMD (acting by and tluough its

agents/employees/principal officers) and Dr. Macris (acting by and through his

age11ts /employees/principal office1·) acted tugethe1· to carry out the improper and

illegal actions., and are therefore jointly and seve1·ally liable for civil conspiracy in

carrying out their wrongful activities.

CoNDITTONS PRECEDENT & INAPPLICABIUTY OF AFFmMATIVE DEFENSES

4.1 All conditions precedent to Dr. Gomez' right to recover have been performed or

have occurred.

4.2 To the extent necessary, Plaintiffs rely on and plead the discovery rule to any

statute of limitations defense asse1ted by Defendants, including fraudulent

con.ceahnen.t.

FACTUAL BACKGROUND

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5.1 Since retmning after advanced training to practice mediciii.e in his hometown of
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care., teclmical excellence, and outstanding professionalism in cardiothoracic and
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12/26/2012 09:19:22 AM 713-755-1451 Page 6 / 18

aware of his well-deserved reputation for outstanding patient care.

5.2 Dr. Gomez's skills and specialized abilities fm patients requiring cardio-thoracic

and general surgeries, from "basic" open heart surgery to advanced robotic-assisted

surgical procedw·es, were actively promoted for many years by Memorial Hermann as

pa1t of its own marketing effo1ts in the West Houston and Katy medical community.

Dr. Gomez's practice was further enhanced by his pioneering implementation of "off

the pump" surgery a11d robotic-assisted cat·diothoracic proceduxes in the Houston

medical community. "Off the pump surgery" eliminates the need fo1· the use of a heart-

lung machine by-pass during surgery and greatly enli.anced patient care and outcomes.

Robotic-assisted surgery, which typically eliminates the need to crack open the patient's

sternum in favor of much smaller entry ports for the robotic surgical tools, likewise led

to better outcomes and quicker recoveries for patients fortunate enough to come unde:r

Dr. Gomez' care.

5.3 The recommendation of the referring physicians to the patient directly impacts

the choice of the specific surgeon entrm,ted with patient ca1·e. The su1·geon in turn

determines, based upon the quality of the surgical and post-surgical equipment, staff,

and facilities, the hospital in which the surgical care is delivered. The surgeon's

decisions as tu whel'e tu perform his or her surgeries directly impact the profitability of

the h08pitals in the specific conununity (in the West Houston and Katy community, the

surgical market is primarily at Memorial Hermann Memorial City Medical Center and

The Methodist We.st Houston Hospital). As a result, the ability to fairly compare the

reputations of surgeons in a medical market community such as West Houston and

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12/26/2012 09:19:22AM 713-755-1451 Page 7 / 18

Katy affects patient choice and the continued availability of the highest quality patient

care. Improperly manipulating comparative information and reputations of suxgeons in

a medical market such as West Houston and Katy creates an improper distortion of free

and informed patient choice and options for medical care.

5.4 The appropriate way for any health ca1·e provider to attract patients in a

competitive market is by actually providing and being known for providing the highest

quality of care. The illegal and unjust way (11utti11g patients and their free choice in the

market in jeopardy) is to malign., spread w1true 01" misleading ill.formation, or othe1wise

smear the reputation of a highly qualified surgeon in the same medical community.

5.5 With new management and operational changes at Memorial City Memorial

Hermann, including the arrival of Mr. Alexander as CEO, Dr. Gomez became

increasingly concerned about a decline in the quality of patient care at the hospital The

decline in patient care arose from the understaffing of qualified nurses in the hospital's

intensive care unit (ICU), general care units and the emergency room; the lack of

consistent procedurnl safeguards fo1· monitoring patients; and the failure to update

critical equipment. Memmial Hermann also began deliberate efforts to restrict surgical

care for the most critically ill patients, pushing for abandonment of "salvage" cases (for

example, eme1·gency surgery on patients in active cardiac arrest, able to be saved ill

some but not all cfrcumstances by a qualified surgeon). \I\Jhat this meant to patients

most in need of a surgeon with Dr. Gomez' unique qualifications was the elimination of

patient choice and poten.tially life-saving prncedw·es ill favor of potentially higher

statistical ranking for Memorial Hermann as calculated by U. S. News and World

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12/26/2012 09:19:22 AM 713-755-1451 Page 8 / 18

Report.

5.6 In response to D1·. Gomez repeatedly speaking out about these concerns, as well

as the likelihood Dr. Gomez would move his surgeries to The Methodist Hospital-

West Houston as the staffing and equipment dysfun.ctions contm.ued, Dr. Macris and

Mr. Alexander, and others, joined in a calculated and deliberate scheme to destroy

Dr. Gomez' reputation and ability to practice medicine in the West Houston and Katy

conununity. Dr. Macris wanted to disadvantage a skilled competitor, and Memorial

Hermann needed to avoid losing patients by working with D1·. MaCI"is in capturing the

patients that would have otherwise been treated by Dr. Gomez at another facility.

5.7 Quality patient care is the most important goal of any legitimate health care

provider. Under both fedel'al and state law, hospitals and their medical staff are

required to follow st1·ict standards for peer review evaluation and monitoring. These

peer review standards rely upon a consistent and well-developed process to ensure that

favoritism, improper motives, a:t'ld manipulation for unjust purposes play no role.

Memorial Hermann had such a process in place at all relevant timesr but Defendants

acted to evade and avoid its safeguards while manipulating the rules for peer review

and utilization review for their own wrongful purposes.

5.8 In order to disa·edit Dr. Gomez and Cl'ush his ability to practice medicine in the

We~t Houston and Katy comm.unity, Dr. Macri::; and Memorial Hermann began

com.piling (and distorting) statistical data related to the mortality rates of Dr. Gomez's

patients. The manipulated data, which was reported using neither the generally

accepted methodologies for proper peer review comparison nor basic scientific

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12/26/2012 09:19:22 AM 713-755-1451 Page 9 I 18

principles, was intended to create the appearance that patients were more likely to die

in Dr. Gomez's care as compared to other surgeons at Memorial Hermann. At bottom,

the statistical information compiled and manipulated by Dr. Macris and Memorial

Hermann was geared to demonstrating a fa1sehood: that Dr. Gomez was an

incompetent physician undersel'ving of his reputation and the trust his hard work had

earned in the West Houston and Katy medical commwlity.

5.9 Rather than comply with the medical peer review process and its safeguards

against im.prnper :i1-ulue11ce, Defendants attempted to evade these well-e.stablished

protocols and the standing medical peer review committee at the hospital. Defendants

then set up an emergency "meeting" and presented Dr. Gomez with the option of either

immediately suspending his practice or agreemg to active interventional monitoring

under Defendants' supervision. Both "options" would have effectively destroyed

Dr. Gomez' reputati011. iJ.1 the medical community, severely curtailing patient choice, as

well as the opportunity for these and future patients to benefit from Dr. Gomez'

advanced abilities in cardiothoracic and surgical procedures.

5.10 At the time Dr. Gomez was presented with these "options" by Defendants, he

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was also told that he would not be able to review at any meaningful level the alleged

data supporting the emergency action outside the usual peer review process (the data

that ultimately proved to be improperly manipulated and without a basic medical and

scientific grounding). Defendants also refused Dr. Gomez the opportunity to meet with

or present any information. to Defendants and those acting with Defendants, and

instead insisted that Dr. Gomez' quahty of care could not be evaluated by the

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12/26/2012 09:19:22 AM 713-755-1451 Page 10 / 18

established medical peer l'eview committee.

5.11 Fortuitously, and despite Defendants' best efforts to continue the railroading of

Dr. Gomez, the actual peer review committee at Memorial Hermann intervened to

require Defendants to present their data, and other alleged reasons for attempting to

block Dr. Gomez' continued practice at Memol'ial Hermann, to the peer 1·eview process.

Notwithstanding Defendants' presentation of the manipulated patient data, the

evaluation of the peer 1·eview committee exunernted D1·. Gomez. During the process,

Defeudants were provided with clear and convincing evidence that the manipulated

data used to" compare" Dr. Gomez could not be relied upon for any legitimate purpose.

5.12 After completing its comprehensive evaluation, including comparison with

D1·. Macris' own patient care outcome statistics, the pee1· review committee's rejection of

Defendants' anti-competitive and unlawful abuse of the peer review process should

have deterred Defendants from. their continued misconduct. Unfortunately, Defendants

elected to instead continue a whisper campaign of selective and improper

dissemination of both the manipulated data and othe1· misinformation within the

medical community. The first indication Dr. Gomez received that Defendants' smear

campaign had continued w1.abated was when the same type of manipulated and

misleading data was presented by Dr. Macris on November 1, 2011 at a non-peer review

meeting organized by MHMD i11. a publicly displayed "comparison", readily

identifiable with Dr. Gomez and intended to be seen as such. The circumstances and

details uf this public defamation are set forth in greate1· detail in Paragraph 7.3 below,

based on the infmmation available at this time.

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12/26/2012 09:19:22 AM 713-755-1451 Page 11 / 18

5.13 Mark Twain once noted that, "A lie can travel around the world before the truth

can even finish putting on its pants." Defendants' illegal and anti-competitive acts

unfairly cast Dr. Gomez' stellar reputation under a dark cloud. As could be anticipated,

if not intended, Defendants' calculated wrongdoing also imposed substantial economic,

emotional, and physical impacts upon Dr. Gomez. Facing continuing hal'assment and

improper attempts to interfere with his practice at Memorial Hermann, Dr. Gomez

resigued his pdvileges at Memorial Herma1m in May 2012. However, the loss to the

community, and Dr. Gomez, from Defendants' misconduct remains 011goi11g and

umemedied.

CAUSES OF A<.."TION

FIRsT COUNT - BUSINESS DISP.ARAGEl\fENT

6.1 Dr. Gomez 1·e-alleges and incorporates each allegation contained in Paragraphs

1-5.13 of this Petition as if folly set forth herein.

6.2 Defendants published disparaging w01·ds about Dr. Gomez' busin.ess and

economic interests. As set forth h1 Parngraph 7.3 below, and at other times tu be

.furthe1· detailed upon necessary discovery, Defendants did and intended to harm Dr.
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6.3 Defe11.dants pubhshed these disparaging words knowing they were false and

with malice.

6.4 Defendants published these disparaging words without privilege

SECOND COUNT-0EF.AMATION

7.1 Plaintiffs re-allege and incorporate each allegation contained in Pal'agraphs 1-6.4 of

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12/26/2012 09:19:22 AM 713-755-1451 Page 12 / 18

this Petition as if fully set for th herein.

7.2 Both lies and half-truths presented in. a misleading manner are equally false.

Defendants' statements and 111.isstatements, including alleged comparative data, were in

proper context wholly false, libelous, and slanderous. Defendants knowingly,

recklessly,, and maliciously spread falsehoods about Dr. Gomez, and Defendants had no

right., privilege, or justification to make the statements.

7.3 Specifically, at a Cardiovascular and Thoracic CPC Meeting arranged by MHMD

on November 1., 2011, which is open and outside the peer review process,, D1·. Macris,

individually and on behalf of MHMD, Memorial He1·mann, and Alexander, displayed

and comm.wucated libelous statements and false data including, but not limited to, false

data and statements regarding D1·. Gomez's practice and mortality rates of his patients,

to an entire room filled with Dr. Gomez's professional colleagues, intending that it be

thereafter widely dissetni.n.ated. Among those colleagues believed to be present at the

meeting where Dr. Macris disse:rrrinated the false data and statements were the

following:

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• Imran Mohiuddin, MD

• Jaime Roman-Pavajeau, MD

• Patti Peyma1U1

• Ann Guercio

• Tim Bevelacqua

• Bymn Auze1me

• Richard Alexander, MD

• Michael Sha bot, MD

These people in attendance at the November 1, 2011, meeting had the false, libelous,

and slanderous material directly communicated to them by Dr. Macris, with the full

intent of Defendants that it be further shared to attempt to harm Dr. Gomez' practice.

7.4 As described above, the statements and 1·epresentations were defamiI1g to

D1·. Gomez, both personally and in the conduct of his medical practice. Furthermore,

the statements and 1·epl'esentations by Defendants were so egregious and obviously

hurtful as to constitute libel and slander per se.

THIRD COUNT-TORTIOUS INTERFERENCE WITH PROSPECTIVE RELATIONS
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continuous relationships, there was a reasonable probability that Dr. Gomez would

have been selected to perform surgical prncedures for these patients. In addition, there

is a reasonable probability that Dr. Gomez would have entered into various other

business relationships with thiJ:d persons or entities, but for Defendants' improper acts

and omissions, as set forth herein.

8.3 Defendants intentionally interfered with the relationships between Defendants

and these persons and entities. This interference impacted al.'l.d caused economic loss in

the past and future to Dr. Gomez.

FOURTH COUNT - IMPROPER RESIRAINI OF TRADE

9.1 Plaintiffs re-allege and incorporate each allegation contained in Paragraphs 1-8.3

of this Petition as if .fully set forth herein.

9.2 Section 15.21 of the Texas Business and Commerce Cude, also kn.own as the

Texas Free Ente.rprise and Antit1ust Act uf 1983, recognizes as illegal improper attempts

to abuse the peer review process., as well as conspiracies tu limit patient choice by

concerted illegal action such as engaged in by Defendants. Dr. Gomez therefore seeks

~ relief for this anti-competitive solely under the laws estabhshed by the State of Texas for

this anti-competitive nusconduct affecting Texas' citizens residing in the West Houston

and Katy communities.

9.3 In the West Houston and Katy communities, Dr. Gomez was in competition with

D1·. Macris, while Memorial Hermann was in competition with other surgical facilities,

primarily including The Methodist Hospital West Houston. Defendants both derived

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12/26/2012 09:19:22 AM 713-755-1451 Page 15 / 18

illegal benefit, and patient choice was improperly limited in the West Houston and Katy

community, by the concerted effort of Defendants to restrain competition in and

monopolize surgical procedures in the West Houston and Katy communities.

9.4 In furtherance of the combination and conspiracy, and with the pmpose and

intent of excluding Dr. Gomez from the patient care market and destroying competition

from Dr. Gomez (and i-esulting loss of patients at Memorial Hermann), Defendants not

only attempted to curtail or limit Dr. Gomez' surgical procedures, but also defamed

Dr. Gomez' skill and qualifications as a surgeon in the West Houston and Katy

conununity. The~e acts wel'e done with the specific intent to weaken or eliminate

competition from Dr. Gomez, and because of the market dominance that would 1·esult

had a dangerous probability uf success.

9.5 Defendants' willful actions have also harmed and threatened the general public

by inte1·feri11g with the urdedy practice of medicine in the conunw'lity, by reducing the

number uf ~urgeons activd.y practicing in cardiuthOl'acic and general surgery in the

community, and by depriving patients of the highest quality of medical care they would

have been able to receive but for Defendants' concerted actions against Defendants.

9.4 This concerted conduct was flagrant and willful, and was done for the specific

purpose of harming Dr. Gomez, illegally and improperly taking Dr. Gomez' practice,

and diverting it tu Dr. Macris and others p1·acti.cing solely at Memorial Hermaru1.

9.5 The acts of Defendants constitute illegal monopolization, attempted

monopulizatiun, and/or conspiracy tu monopolize under applicable Texas law.

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RESULTING LEGAL DAMAGES

10.1 Dr. Gomez is entitled to the actual damages re~mlting from Defendants'

violations of the law. TI.1.ese damages include the consequential damages to Dr. Gomez'

economic welfal'e; the mental anguish and physical ~~ering re~"Ulting from

Defendants' conduct and the continued impact on Dr. Gomez; lost business reputation;

attorneys' fees as allowed by law; and the other actual damages permitted by law.

10.2 Dr. Gomez trusts the jury to evaluate the evidence-including documentation

and expert and lay witness testimony-and to properly assess the dam.ages sustained

by Dr. Gomez. The law permits Defendants to demand that Plaintiff state the

maximum amount of damages that Plaintiff will seek, and only in response to that

demand, Plaintiff states that he expects to request the jury to award a maximum

amount of $15,000.,000.00 in compensation for the damages asserted based on the must

current available inform.ation. As additional information of the amonnt of the harm

inflicted by Defendants becomes available, and as permitted by law, Dr. Gomez will

amend this determination tu as best possible provide a fair estimate fur our juror's

consideration.
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'o 10.3 Defendants are also liable for statutory additional trebling and exemplary

damages warranted by Defendants' malicious and egregious conduct.

PRAYER

WHEREFORE, PREMISES CONSIDERED., Dr. Gomez respectfully requests

judgme.nt against Defendants fur actual damages in excess of the minimum

jw·isdictional limits of this Court, pre- and post-judgment interest as allowed by law,

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costs of suit, and all other relief, at law or in equity, to which Plaintiffs may be justly

entitled.

Respectfully submitted,

DOYLE RAIZNER LLP

MICHAEL PATRICK DOYLE
State Bar. No. 06095650
LyondellBassell Tower
1221 McKinney, Suite 4100
Houston, Texas 77010
Phone: 713.571.1146
Fax: 713.571.1148
mdoyle@doyleraizner.com

ATTORNEYS FOR PLAINTIFFS

JURY DEMAND

Dr. Gomez hereby demands a trial by jury, a riglzL- enshrined in llze Constitutions of tlze
United States of America and the State of Texas and preserved try the sacrifices of many. The
necessan1 jury fee hllS been paid.

MICHAEL PATRICK DOYLE

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12/26/2012 09:19:22 AM 713-755-1451 Page 18 / 18

CERTIFICATE OF SERVICE

I, the undersigned atto1ney, do hereby ce1tify that a tiue and couect copy of the
foregoing document was forwarded to the following counsel of record on this the 26 th
day of December, 2012 via hand delivery, overnight courier, U.S. Mail, certified mail,
return receipt request, and/ or facsilnile, pursuant to the Texas Rules of Civil Procedure:

Robert Swift
Jesse Coleman
Fulbright & Jaworski
1301 McKinney, Suite 5100
Houston, TX 77010

ATTORNEYS FOR DEFENDANTS

MICHAEL PATRICK DOYLE

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I, Chris Daniel, District Clerk of Harris
County, Texas certify that this is a true and
correct copy of the original record filed and or
recorded in my office, electronically or hard
copy, as it appears on this date.
Witness my official hand and seal of office
this May 3. 2016

Certified Document Number: 54275000 Tota] Pages: 17

Chris Daniel, DISTRICT CLERK
HARRIS COUNTY, TEXAS

In accordance with Texas Government Code 406.013 electronically transmitted authenticated
documents are valid. If there is a question regarding the validity of this document and or seal
please e-mail support@hcdistrictclerk.com
STATE OF TEXAS §
§ AFFIDAVIT
COUNTY OF TOM GREEN §

BEFORE ME the undersigned authority appeared Steve F. Montoya, Jr. M.D. and after
being duly sworn under oath stated.

"My name is Steve F. Montoya, Jr. M.D. I am the Plaintiff in this case. I have
knowledge of all the facts of this affidavit as Plaintiff and all facts are within my personal
knowledge true and correct and that I was involved with facts stated.

I have not used any patient name, except where authorized by the patient or their agent, to
avoid any HIP AA or privacy violation.

1. I was admitted to practice nephrology at San Angelo Community Medical Center in
1981. I have full staff privileges for the practice of nephrology at San Angelo
Community Medical Center. This case does not involve the rights of Defendant San
Angelo Community Medical Center to speak freely, associate freely, and participate
in government as permitted by law. The facts of the case are that I have full staff
privileges to practice nephrology medicine at San Angelo Community Medical Center

2. Part of my practice and obtaining patients is that the hospital emergency room uses a
rotating system of specialists admitted in that practice to see patients in the hospital
and emergency room pursuant to the EMTALA Medicare call list. When you are the
named specialist you receive a call from the emergency room physician that a doctor
with your specialty is needed for a patient. A big part of my practice was obtaining
new patients and treating existing patients that came to the emergency room that
needed a nephrologist. Since 1981 I have gotten new patients from the emergency
room.

3. Until 2007 I would receive 10-20 calls from the emergency room, per month to treat
either new or existing patients for nephrology care at the San Angelo Community
Medical Center. Since 2008 I have received only one call from the emergency room
or a hospitalist for consultation as a nephrologist. A nephrologist treats patients with
kidney problems and or disease. The one call I received was for treatment of a new
patient or existing patient that suffered with kidney problems.
4. The one time call for a new patient is described below. On January 24, 2014 I was
called by the San Angelo Community Medical Center emergency room physician on
duty and the hospitalist Dr. Bartels. Dr. Bartels and the emergency room physician
informed me that a patient was diagnosed with acute renal failure. I was informed my
name was on the call board in the emergency room as nephrologist on call. Both of
the above doctors asked me to consult concerning treatment for that patient. I gave
my initial consult advice/orders of treatment to both doctors. This consultation call
was to me at 9:38 p.m. I informed them I would come see the patient and then review
the test results and determine any additional treatment for the patient. Attached as
Exhibit A is a true and correct copy of the redacted hospital record, removing the
name of the patient for HIPPA privacy, showing the facts on January 24, 2014.

5. On January 25, 2014 at 8:10 a.m. Kirk Brewer, M.D. took over the hospitalists care of
the patient as his rotation as the hospitalist started. Then without ever seeing the
patient or the chart Kirk Brewer, M.D. cancelled my consult and treatment by me and
consulted another nephrologist. The nephrologist he brought in for consult is one that
is in a group that Kirk Brewer, M.D. has a contract for paid services. Kirk Brewer,
M.D. without seeing the patient, or chart changed the patient's doctor. This change of
nephrologist was for Kirk Brewer, M.D.'s economic gain and caused me economic
loss. Attached as Exhibit B is a true and correct copy of the redacted hospital record
showing the facts on January 25, 2014.

6. In removing me as the nephrologist the hospital published a statement that I was not a
competent nephrologist to treat patients coming to the San Angelo Community
Medical Center emergency room. San Angelo Community Medical Center through
its agents and representatives was aware that its actions would become known to the
staff physicians of San Angelo Community Medical Center and that there was by
conduct and a whisper campaign saying I (Steve F. Montoya, Jr. M.D.) should not be
allowed to treat patients at San Angelo Community Medical Center.
7. The statements and actions of San Angelo Community Medical Center by and
through its agents and representatives were published by conduct. The actions were
referring to keep from treating my own patients and any new patient coming to the
San Angelo Community Medical Center emergency room. The statement(s) and
actions were defamatory and caused me economic loss.

8. Until 2007 I would receive 10-20 calls from the emergency room per month to treat
either new or existing patients at the San Angelo Community Medical Center. Since
2008 I have only received one call from the emergency room or a hospitalist for
consultation as a nephrologist, except for one time for treatment of a new or existing
patient that suffered with kidney disease/problems. The lack of referrals caused
substantial injury to the Plaintiffs and damaged their ability to compete, because the
Plaintiffs depend on these referrals and consults to build and maintain the nephrology
practice. A majority of patients who need kidney treatment/ suffer from kidney
disease in a hospital later need continuing care for their kidneys or related problems;
the most common of such continuing treatments is kidney dialysis. A typical kidney
dialysis patient will need treatment for six years, and each such patient would mean
revenue to the Plaintiffs practice of approximately $100,000 per year. I estimates that
the Plaintiffs have lost at least I 00 long term kidney dialysis patients from 2007 to the
present due to the Defendants' anticompetitive scheme to refuse to give me patient
referrals or consults. I estimate that this lack of referrals has thus cost Plaintiffs
$1,000,000 to $6,500,000 over that period of time.

9. The defamatory statements and actions are untrue. I am a competent and qualified
nephrologist to treat patients at San Angelo Community Medical Center. If I were
not a competent and qualified nephrologist I would have been removed from the staff
of the hospital.

10. The actions of San Angelo Community Medical Center by and through its agents and
representatives were intentional or done with negligence when San Angelo
Community Medical Center knew that the statement was false and the actions would
lead a reasonable prudent physician or patient knowing/believing of its defamatory
 potential. The actions interred with my ability to make a living as a nephrologist on
staff at San Angelo Community Medical Center.

11. The rules at San Angelo Community Medical Center and of the staff of San Angelo
Community Medical Center are to have a new patient in the emergency room or
hospital that needs a specialist consultation assigned to the name off the rotating
consultation list. The consultation list is kept by San Angelo Community Medical
Center by and through its agents and representatives. By San Angelo Community
Medical Center not following this procedure I did not receive any consultation
requests from the emergency room or hospitalist at San Angelo Community Medical
Center in 2008-present and one in 2014.

12. Attached to this affidavit as Exhibit C is the true and correct sworn statement that an
existing patient of mine Mrs. Welch tried to see me in the emergency room of San
Angelo Community Medical Center and that the emergency room would not call me
to treat my existing patient Mrs. Welch is over 90 years of age and I have treated her
for at least 20 years. These actions interfered with my right to treat my patient and to
the patient's rights to pick her physician and to her rights under the patients' bill of
rights (see attached Exhibit D) and the patients' dialysis bill of rights (see attached
Exhibit E)

13. Another patient of mine, whose name is withheld per privacy rights, who is also over
90 years of age and has been my patient for at least 10 years requested me when she
went to the emergency room and she also was refused to see me. This action
interfered with my right to treat my patient and to the patient's rights to pick her
physician and to her rights under the patients' bill of rights (see attached Exhibit D)
and the patients' dialysis bill of rights (see attached exhibit E)

14. A patient has the absolute right to be treated by their physician. Attached as Exhibit
F is a true and correct copy of the patient bill of rights posted at the San Angelo
 Community Medical Center. Attached as Exhibit E a true and correct copy of the
dialysis patient bill of rights concerning care of a dialysis patient. Both of these
patient bills of rights were violated by San Angelo Community Medical Center.

15. On January 25, 2014 at 8:10 a.m. Kirk Brewer, M.D. took over the hospitalists care of
the patient referred in Exhibits A and B as his rotation as the hospitalist started. Then
without ever seeing the patient or the chart Kirk Brewer, M.D. cancelled my consult
and treatment and consulted another nephrologist. I went to the call board and
witnessed my name on call as the nephrologist on call on January 24 and 25, 2014.
The San Angelo Community Medical Center is required to have an official EMTALA
Medicare call list for on call physicians for the San Angelo Community Medical
Center to take Medicare patients. This is the list my name was on and was
intentionally ignored. This also violates a patient's right to choose their physician.
This list was followed until Dr. Brewer came to San Angelo Community Medical
Center and took charge of hospitalists. The nephrologist he brought in for consult is
one that is in a group that Kirk Brewer, M.D. has a contract for paid services. Dr.
Brewer did not see the patient when he removed me as the treating nephrologist he
issued the change via a telephone order (see Exhibit B). Kirk Brewer, M.D. without
seeing the patient, or chart changed the patient's doctor. This change of nephrologist
was for Kirk Brewer, M.D.'s economic gain and caused me economic loss.

16. By the actions of the hospitalists and emergency room physicians who are controlled
by their supervisor or lead physician Kirk Brewer, M.D. through the above actions
intentionally interfered with my practice of medicine at San Angelo Community
Medical Center to keep me from receiving patients as required by the EMTALA
Medicare call list.

17. The Defendants' anticompetitive conduct has harmed consumers and others who pay
for nephrology services in the relevant market by increasing the costs of those
services. This is demonstrated by the chart attached hereto as Exhibit G. Before Dr.
Brewer's group of hospitalists became the attending physicians for all nephrology
 patients at SA.CMC, nephrology patients would be referred to nie (Dr. Montoya) who
would serve as the attending physician for the patient. This arrangement avoided the
"middle man" which now exists, as the hospitalists now usually serve as an additional
charging entity between the patient and the nephrology specialist. Even if the
hospitalists could do the same work as me or my partner used to provide, the patient
(and/or insurance and taxpayer-funded Medicare/Medicaid) still faces increased cost
for the same nephrology work, as the hospitalists charge more for physician services
than I charge. The SACMC hospitalists charge at the "Comprehensive" Medicare
allowable rate, which adds up to average charges of $506.85 per day. See Exhibit
G. In approximately 2010, at the SACMC emergency room, Dr. Brewer
explicitly told me that he and his group of hospitalists will always charge at the
comprehensive rate, regardless of medical necessity, because those charges
maximize revenue for Dr. Brewer and his group of hospitalists. · I, however,
charge at the "Moderate" Medicare allowable rate, which adds up to an average cost
of $346.13 per day. The difference between these charges is $160.72 per nephrology
patient per average hospital stay. Over the course of a year, consumers/payors for
nephrology services have thus paid thousands more for the hospitalists' physician and
nephrology services than they would have paid for care from me who is a physician
specialist in nephrology.
All of the actions described in this affidavit are done by or for the Defendant San Angelo
Community Medical Center.

Further affiant saith not."

Signed this 4th day of May, 2016.

Subscribed and sworn to me the undersigned notary by Steve F. Montoya, Jr., M.D. on
the 4th day of May, 2016.

~9!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!~";'{
~··"'"~ DALILA CRUZ ~
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i2/16/2015 WED 13:23 FAX 3 •4 28 4 West Texas Nephrology ......... Cl. "'.AIRD ATTORNEY ~003/003

April 17, 2014

r am Karen, Tims; thef daughter of Eunice Welch. I am writing to you on her behalf
concerning her admission to SACMC on 11/28/2011. When asked by the ER admission
staff, we replied that "Dr. Montoya" was her doctor. We were admitted to the
hospitalists' service. We do not appreciate the fact that we did not have our physician
of choice at the hospital. Please correct this to help maintain _quality patient care.

Sincerely,

Karen Tims ?.
J("'au-11~
State of ~
County of dm ~ J
~

~ G~~~~~--t~~ts_ tl:t~ iW.:Y tc;, eval~ate the evidence-~cluding dQ~ment~tion

and expert and lay witness testimony- and to properly assess the damages sustained

by Dr. Gomez. The law permits Defendants to demand that Plaintiff state the

maximum amount of damages that Plaintiff will seek, and only in response to that

demand, Plaintiff states that he expects to request the jury to award a maximum

amount of $15,000,000.00 in compensation for the damages asserted based on the most

current available information. As additional information of the amount of the harm

inflicted by Defendants becomes available, and as permitted by law, Dr. Gomez will

amend this determination to as best possible provide a fair estimate for our juror's

co11sideratiu11.

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10.3 Defendants are also liable for statutory additional trebling and exemplary
-
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damages warranted by Defendants' malicious and egregious conduct.

PRAYER

WHEREFORE, PREMISFS CONSIDERED, Dr. Gomez respectfully requests

judgment against Defendants for actual damages in excess of the n'lilumum

jw·isdictional limits of this Court, pre- and post-judgment interest as allowed by law,

-15-

246
---··-----------------

12/26/2012 09:19:22 AM 713-755-1451 Page 17 / 18

costs of suit, and all other relief, at law or in equity, to which Plaintiffs may be justly

entitled.

Respect.fully submitted,

DOYLE RAIZNER LLP

MICHAEL PATRICK DOYLE
State Bar. No. 06095650
LyondellBassell Towei·
1221 McKinney, Suite 4100
Houston, Texas 77010
Phone: 713.571.1146
Fax: 713.571.1148
mdoyle@doyleraizner.com

ATTORNEYS FOR PLAINTIFFS

JURY DEMAND

Dr. Gomez heteby demands a trial by jury, a 11g1tt enshrined in the Constitutions of t1ze
United States of America and the State of Texas and i,reserved by the sacrifices ofmany. The
necessanJ junJ fee has been paid.

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MICHAEL PATIUCK DOYLE

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247
12/26/2012 09:19:22 AM 713-755-1451 Page 18 / 18

CERTIFICATE OF SERVICE

Ii the undersigned attorney, do hereby ce1tify that a true and correct copy of the
foregoing document was forwarded to the followi11g counsel of record on this the 26 th
day of December, 2012 via 1-umd delivery, overnight courier, U.S. Mail, certified mail,
return receipt request, and/ or facsimile, pursuant to the Texas Rules of Civil Procedure:

Robert Swift
Jesse Coleman
Fulbright & Jaworski
1301 McKinney, Suite 5100
Houston, TX 77010
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ATTORNEYS FOR DEFENDANTS

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MICHAEL PATRICI< DOYLE

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I, Chris Daniel, District Clerk of Harris
County, Texas certify that this is a true and
correct copy of the original record filed and or
recorded in my office, electronically or hard
copy, as it appears on this date.
Witness my official hand and seal of office
this May 3, 2016

Certified Document Number: 54275000 Total Pa,:es; 17

Chris Daniel, DISTRICT CLERK
HARRIS COUNTY, TEXAS

In accordance with Texas Government Code 406.013 electronically transmitted authenticated
documents are .valid. If there is a questiQn regarding the validity of this document and or seal
please e-mail support@hcdistrictclerk.com

249
----·---------·--------------

STATE OF TEXAS §
§ AFFIDAVIT
COUNTY OF TOM GREEN §

BEFORE ME the undersigned authority appeared Steve F. Montoya, Jr. M.D. and after
being duly sworn under oath stated.

"My name is Steve F. Montoya, Jr. M.D. I am the Plaintiff in this case. I have
knowledge of all the facts of this affidavit as Plaintiff and all facts are within my personal
knowledge true and correct and that I was involved with facts stated.

I have not used any patient name, except where authorized by the patient or their agent, to
avoid any HIPAA or privacy violation.

1. I ·was ·admitted to practice nephrology at San Angelo Community Medical Center in
1981. I have full staff privileges for the practice of nephrology at San Angelo
Community Medical Center. This case does not involve the rights of Defendant San
Angelo Community Medical Center to speak freely, associate freely, and participate
in government as permitted by law. The facts of the case are that I have full staff
privileges to practice nephrology medicine at San Angelo Community Medical Center

2. Part of my practice and obtaining patients is that the hospital emergency room uses a
rotating system of specialists admitted in that practice to see patients in the hospital
and emergency room pursuant to the EMTALA Medicare call list. When you are the
named specialist you receive a call from the emergency room physician that a doctor
with your specialty is needed for a patient. A big part of my practice was obtaining
. new patients and treating existing patients that came to the emergency room that
needed a nephrologist. Since 1981 I have gotten new patients from the emergency
room.

3. Until 2007 I would receive 10-20 calls from the emergency room, per month to treat
either new or existing patients for nephrology care at the San Angelo Community
Medical Center. Since 2008 I have received only one call from the emergency room
or a hospitalist for consultation as a nephrologist. A nephrologist treats patients with
kidney problems and or disease. The one call I received was for treatment of a new
patient or existing patient that suffered with kidney problems.

£.1. Ji; bi f L 250
 ·-------·--·····-·--·-------··--· -- •....

4. The one time call for a new patient is described below. On January 24, 2014 I was
called by the San Angelo Community Medical Center emergency room physician on
duty and the hospitalist Dr. Bartels. Dr. Bartels and the emergency room physician
informed me that a patient was diagnosed with acute renal failure. I was informed my
name was on the call board in the emergency room as nephrologist on call. Both of
the above doctors asked me to consult concerning treatment for that patient. I gave
my initial consult advice/orders of treatment to both doctors. This consultation call
was to me at 9:38 p.m. I informed them I would come see the patient and then review
the test results and determine any additional treatment for the patient. Attached as
Exhibit A is a true and correct copy of the redacted hospital record, removing the
name of the patient for HIPPA privacy, showing the facts on January 24, 2014.

5. On January 25, 2014 at 8:10 a.m. Kirk Brewer, M.D. took over the hospitalists care of
the patient as his rotation as the hospitalist started. Then without ever seeing the
patient or the chart Kirk Brewer, M.D. cancelled my consult and treatment by me and
consulted another nephrologist. The nephrologist he brought in for consult is one that
is in a group that Kirk Brewer, M.D. has a contract for paid services. Kirk Brewer,
M.D. without seeing the patient, or chart changed the patient's doctor. This change of
nephrologist was for Kirk Brewer, M.D.'s economic gain and caused me economic
loss. Attached as Exhibit B is a true and correct copy of the redacted hospital record
showing the facts on January 25, 2014.

6. In removing me as the nephrologist the ~ospital published a statement that I was not a
competent nephrologist to treat patients coming to the San Angelo Community
Medical Center emergency room. San Angelo Community Medical Center through
its agents and representatives was aware that its actions would become known to the
staff physicians of San Angelo Community Medical Center and that there was by
conduct and a whisper campaign saying I (Steve F. Montoya, Jr. M.D.) should not be
allowed to treat patients at San Angelo Community Medical Center.

251
7. The statements and actions of San Angelo Community Medical Center by and
through its agents and representatives were published by conduct. The actions were
referring to keep from treating my own patients and any new patient coming to the
San Angelo Community Medical Center emergency room. Toe statement(s) and
actions were defamatory and caused me economic loss.

8. Until 2007 I would receive l 0-20 calls from the emergency room per month to treat
either new or existing patients at the San Angelo Community Medical Center. Since
2008 I have only received one call from the emergency room or a hospitalist for
consultation as a nephrologist, except for one time for treatment of a new or existing
patient that suffered with kidney disease/problems. The lack of referrals caused
substantial injury to the Plaintiffs and damaged their ability to compete, because the
Plaintiffs depend on these referrals and consults to build and maintain the nephrology
practice. A majority of patients who need kidney treatment/ suffer from kidney
disease in a hospital later need continuing care for their kidneys or related problems;
the most common of such continuing treatments is kidney dialysis. A typical kidney
dialysis patient will need treatment for six years, and each such patient would mean
revenue to the Plaintiffs practice of approximately $100,000 per year. I estimates that
the Plaintiffs have lost at least 100 long term kidney dialysis patients from 2007 to the
present due to the Defendants' anticompetitive scheme to refuse to give me patient
referrals or consults. I estimate that this lack of referrals has thus cost Plaintiffs
$1,000,000 to-$6,500,000 over that period of time.

9. The defamatory statements and actions are untrue. I am a competent and qualified
nephrologist to treat patients at San Angelo Community Medical Center. If I were
not a competent and qualified nephrologist I would have been removed from the staff
of the hospital.

10. The actions of San Angelo Community Medical Center by and through its agents and
representatives were intentional or done with negligence when San Angelo
Community Medical Center knew that the statement was false and the actions would
lead a reasonable prudent physician or patient knowing/believing of its defamatory

252
 potential. The actions interred with my ability to make a living as a nephrologist on
staff at San Angelo Community Medical Center.

11. The rules at San Angelo Community Medical Center and of the staff of San Angelo
Community Medical Center are to have a new patient in the emergency room or
hospital that needs a specialist consultation assigned to the name off the rotating
consultation list. The consultation list is kept by San Angelo Community Medical
Center by and through its agents and representatives. By San Angelo Community
Medical Center not following this procedure I did not receive any consultation
requests from the emergency room or hospitalist at San Angelo Community Medical
Center in 2008-present and one in 2014.

12. Attached to this affidavit as Exhibit C is the true and correct sworn statement that an
existing patient of mine Mrs. Welch tried to see me in the emergency room of San
Angelo Community Medical Center and that the emergency room would not call me
to treat my existing patient Mrs. Welch is over 90 years of age and I have treated her
for at least 20 years. These actions interfered with my right to treat my patient and to
the patient's rights to pick her physician and to her rights under the patients' bill of
rights (see attached Exhibit D) and the patients' dialysis bill of rights (see attached
Exhibit E)

13. Another patient of mine, whose name is withheld per privacy rights, who is also over
90 years of age and has been my patient for at least 10 years requested me when she
went to the emergency room and she also was refused to see me. This action
interfered with my right to treat my patient and to the patient's rights to pick her
physician and to her rights under the patients' bill of rights (see attached Exhibit D)
and the patients' dialysis bill of rights (see attached exhibit E)

14. A patient has the absolute right to be treated by their physician. Attached as Exhibit
F is a true and correct copy of the patient bill of rights posted at the San Angelo

253
 Community Medical Center. Attached as Exhibit E a true and correct copy of the
dialysis patient bill of rights concerning care of a dialysis patient. Both of these
patient bills of rights were violated by San Angelo Community Medical Center.

15. On January 25, 2014 at 8: 10 a.m. Kirk Brewer, M.D. took over the hospitalists care of
the patient referred in Exhibits A and B as his rotation as the hospitalist started. Then
without ever seeing the patient or the chart Kirk Brewer, M.D. cancelled my consult
and treatment and consulted another nephrologist. I went to the call board and
witnessed my name on call as the nephrologist on call on January 24 and 25, 2014.
The. San Angelo Community. Medical Center is required to have. an official EMTALA
Medicare call list for on call physicians for the San Angelo Community Medical
Center to take Medicare patients. This is the list my name was on and was
intentionally ignored. This also violates a patient's right to choose their physician.
This list ·was· followed until Dr.· Brewer came to San Angelo Community Medical
Center and took charge of hospitalists. The nephrologist he brought in for consult is
one that is in a group that Kirk Brewer, M.D. has a contract for paid services. Dr.
Brewer did not see the patient when he removed me as the treating nephrologist he
issued the change via a telephone order (see Exhibit B). Kirk Brewer, M.D. without
seeing the patient, or chart changed the patient's doctor. This change of nephrologist
was for Kirk Brewer, M.D.'s economic gain and caused me economic loss.

16. By the. actions of the hospitalists and emergency room physicians who are controlled
by their supervisor or lead physician Kirk Brewer, M.D. through the above actions
intentionally interfered with my practice of medicine at San Angelo Community
Medical Center to keep me from receiving patients as required by the EMTALA
Medicare call list.

17. The Defendants' anticompetitive conduct has harmed consumers and others who pay
for nephrology services in the relevant market by increasing the costs of those
services. This is demonstrated by the chart attached hereto as Exhibit G. Before Dr.
Brewer's group of hospitalists became the attending physicians for all nephrology

254
 patients at SACMC, nephrology patients would be referred to rrie (Dr. Montoya) who
would serve as the attending physician for the patient. This arrangement avoided the
"middle man'' which now exists, as the hospitalists now usually serve as an additional
charging entity between the patient and the nephrology specialist. Even if the
hospitalists could do the same work as me or my partner used to provide, the patient
(and/or insurance and taxpayer-funded Medicare/Medicaid) still faces increased cost
for the same nephrology work, as the hospitalists charge more for physician services
than I charge. The SACMC hospitalists charge at the "Comprehensive" Medicare
allowable rate, which adds up to average charges of $506.85 per day. See Exhibit
·-·G.· In· approximately , 2010, at· the SACMC · emergency room, -Dr. ·Brewer · · ·
explicitly told me that he and his group of hospitalists will always charge at the
comprehensive rate, regardless of medical necessity, because those charges
maximize revenue for Dr. Brewer and his group of hospitalists. I, however,
·charge· at the "Moderate" Medicare allowable rate, which adds up to an average cost
of $346.13 per day. The difference between these charges is $160. 72 per nephrology
patient per· average hospital stay. Over the course of a year, consumers/payors for
nephrology services have thus paid thousands more for the hospitalists' physician and
nephrology services than they would have paid for care from me who is a physician
specialist in nephrology.
All of the actions described in this affidavit are done by or for the Defendant San Angelo
Community Medical Center.

Further affiant saith not."

Signed this 4th day of May, 2016.

Subscribed and sworn to me the undersigned notary by Steve F. Montoya, Jr., M.D. on
the 4th clay of May, 2016.

(ili4 {J
Notary Public 4
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OAUlACRUZ
~ MY COMMISSION EXPIRES
May 16, 2018

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Date Time
P~ysician Signature

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NS-270 l -!OHMS I0/10 (Rev. 07/12) Page I of I
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t2/l~/2015 WED 13: 23 FAX 3; · 4284 West Texas Nei;,hrology .. - ... ci. ',AI RD ATTORNEY 121003/003

April 17, 2014

I am Karen·, Tims; the daughter of Eunice Welch. I am writing to you on her behalf
concerning her admission to SACMC on 11/28/2011. When asked by the ER admission
staff, we. repf~ed that ~Dr. Montoya" was her doctor. We were admitted to the
hospitalfsts' service. We do not appreciate the fact that we did not have our physician
of choice at t~e hospital. Please correct this to help maintain quality patient care.

Sincerely,·

Karen nms ?,
7(~7~
stateof ~
County of c:z?tm ~
Subscribed and swo~ to before me this _!J!/;;of ~ , ',a-tJ / 1/:

e
~~----
ROSEMARVANDROS
My Commlssfon Expires
August 19, 2017
.........."""'"

258
. ,.
·----~-·-----·---------·--·--·-·--·-------

Know Your Rights and Responsibilities.
You have the right to:

• Be treated In a dignified and respectful manner and to receive reasonable responses to reasonable
requests for service.
• To effective communication that provides information in a manner you understand, in your
preferred language with provisions of interpreting or translation services, at no cost, and in a
manner that meets your needs in the event of vision, speech, hearing or cognitive impairments.
Information should be provided in easy to understand terms that will allow you to formulate
informed consent.
• Respect for your cultural and personal values, beliefs and preferences.
• Personal privacy, privacy of your health information and to receive a notice of the facility's privacy
practices.
• Pain management.
• Accommodation for your religious and other spiritual services.
• To access, requestamendment to and obtain information on disclosures of your health information in
accordance with law and regulation within a reasonable time frame.
• To have a family member, friend or other support individual to be present with you during the
course of your stay, unless that person's presence infringes on others' rights, safety or Is medically
contraindicated.
• Care or services provided without discrimination based on age, race, ethnicity, religion, culture,
language, physical or ·mental disability, socioeconomic status, sex, sexual orientation, and gender
identity or expression.
• Participate in decisions about your care, including developing your treatment plan, discharge
planning and having your family and personal physician promptly notified of your admission.
• Select providers of goods and services to be received after discharge.
• Refuse care, treatment or services in accordance with law and regulation and to leave the facility
against advice of the physician.
• Have a surrogate decision-maker participate in care, treatment and services decisions when you are
unable to make your own decisions.
• Receive Information about the outcomes of your care, treatment and services, Including
unanticipated outcomes.
• Give or withhold informed consent when making decisions about your care, treatment and services.
• Receive information about benefits, risks, side effects to proposed care, treatment and services; the
likelihood of achieving your goals and any potential problems that might occur during recuperation
from proposed care, tr.eatment and service and any.reasonable alternatives to the care, treatment
and services proposed.
• Give or with hold informed consent to recordings, filming or obtaining images of you for any purpose
other than your care.
• Participate In or refuse to participate in research, investigation or clinical trials without jeopardizing
your access to care and services unrelated to the research.
• Know the names of the practitioner who has primary responsibility for your care, treatment or
services and the names of other practitioners providing your care.
• Formulate advance directives concerning care to be received at end-of-life and to have those advance
directives honored to the extent of the facility's ability to do so in accordance with law and
regulation. You also have the right to review or revise any advance directives.
• Be rree from neglect; exploitation; and verbal, mental, physical and sexual abuse.
• An environment that Is safe, preserves dignity and contributes to a positive self-image..
• Be free from any forms of restraint or seclusion used as a means of convenience, discipline, coercion
or retaliation; and to have the least restrictive method of restraint or seclusion used only when
necessary to ensure patient safety.
• Access protective and advocacy services and to receive a list of such groups upon your request.
 • Receive the visitors whom you designate, including but not limited to a spouse, a domestic partner
(including same-sex domestic partner), another family member, or a friend. You may deny or
withdraw your consent to receive any visitor at any time. To the extent this facility places limitations
or restrictions on visitation; you have the right to set any preference of order or priority for your
visitors to satisfy those limitations or restrictions.
• Examine and receive an explanation of the bill for services, regardless of the source of payment.

You have the responsibility to:

• Provide accurate and complete information concerning your present medical condition, past illnesses
or hospitalization and any other matters concerning your health.
• Tell your caregivers if you do not completely understand your plan of care.
• Follow the caregivers' instructions.
• Follow all medical center policies and procedures while being considerate of the rights of other
patients, medical center employees and medical center properties.

You also have the"rfght to: . ..

Lodge a concern with the state, whether you have used the hospital's grievance process or not. If you have
. concerns regarding the quality of your care, coverage decisions or want to appeal a premature discharge,
contact the State Quality Improvement Organization (QIO),

Quality Improvement Organization
Phone: (216) 447-9604
Toll Free: (844) 430-9504
Fax: (844) 878-7921
Mail: KEPRO
5700 Lombardo Center Dr.
Suite 100
Seven Hills, OH 44131

If you have a Medicare complaint you may contact:

Texas Department of State Health Services
Phone: (512) 834-6700
Mall: Texas Department of State Health Services
P.O! Box 149347
Austin, TX 78714-9347

Regarding problem resolution, you have the right to:

Express your concerns about patient care and safety to facility personnel and/or management without being
subject to coercion, discrimination, reprisal or unreasonable interruption of care; and to be informed of the
resolution process for your concerns. If your concerns and questions cannot be resolved at this level, contact
the accrediting agency Indicated below:

The Joint Commission .
Phone: (800) 994-6610 Fax: (630) 792-5636
Email: COMPLAINT@JOINTCOMMISSION.ORG
Mail: Office of Quality Monitoring/the Joint Commission
One Renaissance Boulevard
Oakbrook Terrace, IL 60181
 National Kidney
FoundationN

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GFR • Glomerulor Filtration Rate; T • Kid ney Transplant; D • Dialysis
0

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30 East 3 3rd Slreet
N ew York. NY 100 16
800.622 .90 10

www.kidney.org
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2006 Editio n. All righ ts reserved. 11 -65·1639
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PATIENTS' Rights
1:1 Quality Care
s Information
ci Individual Treatment
a Privacy and Confidentiality
:;i Services Without Discrimination
c Treatment Options
Iii. Kidney Transplantation
111Home Care
e Self-Care Treatment
a Emergency Care
~ Dietary Counseling
Your Rights
a Social Work Services
1. Quality Care
ti Facility Management
You hove lhe right to:
til Formal Complaint Process
o Refusal ond Advance Directives D Receive high-quolily heolt~ core thol meels recognized
professional goals .
e Medical Consultation
B Research Programs c Be port of. the health core learn, along wilh a social worker,
nurse, doctor and dietitian. .
i'I Treatment Costs
a Expecl that slaff members in training will be direcliy
PATIENTS' Responsibilities supervised.
c Be Informed ·
a Plan and Follow a Treatment Program 2. Information
sBe on Time You hove lhe righl lo:

liJ Follow Facility Policies a Receive informolion from your nephrologisl \kidney doctor) in
words 1h01 you con underslond. This should include informo·
lion oboul _your medical condilions, treolment choices, lest
resulls and possible problems. If lhis information cannot be
given lo you direclly, the doclor should speak to your family
or lhe person ocling on your behalf.
 Q Be informed about current dialysis treatments for kidney
disease.
Iii Be informed of the process of dialyzer re-use and your
options.
lil Receive a complete review of any test results and treatment
by your doctor or a member of the heohh core team.
a Be informed of any possible side effects of medications
y~u ore toking.

3. Individual Treatment
You hove the right to:
E Be treated wi th dignity, respect and consideration.
m Suggest a change in the type of treatment.
6. Treatment Options
r.J Expect your kidney doctor and other members of your
health care team to listen to you when you suggest You hove the right to:
changes in your dialysis treatment. a Receive a full explanation of all treatment options for kidney dis-
ease, including their advantages and disadvantages.
fl Expect that treatment will be tailored to your individual
health needs. 7. Kidney Transplantation
a Expect that the patient-to-staff ra tio at your facility conforms You hove the right to:
to state regulations.
a Receive a full explanation of the kidney transplant process
4. Priva cy and Confidentiality including all transplant options.
,'
You hove the right to: a Select the transplant center at which you desire to hove a
transplant evaluation ofter consultation w ith the nephrologist.
B Expect privacy when receiving medical care.
a Expect examinations and discussions about your core to 8. Home Core
be held in private. You hove the right to:
a Expect that your personal med ical information will be kept iiJ Be informed of new advances in home core and hove the
confidential . opportunity to make a change. to that treatment option.

5. Services W ithout Discrimination ra Receive educational materials about new procedures.
You hove the right to: El Suggest changes in your home core treatment.
0 Expect medical core without regard to your race, color, a Receive folfow-up core by dietary, social work and nursing
gender, sexual preference, religion or notional origin. services.
9. Self-Core Treatment 11. Dietary Counseling
You hove the right to: You hove the right to:
1:1 Receive information about dialysis facilities that offer 11 Receive counseling from a qualified d ietitian according to
self-care . federal and state low.
c Receive nufritionol educational material and instruction.
10. Emergency Core 1
You have the right to: Receive core and counseling on a regular basis .
J 1.1

.i Receive emergency medical core w ithout ur)necessary 12. Social Work Services
delay.
You have the right to:
Iii Be informed by the dialysis facility about their emergency
pion in case of a disaster (e.g., snow storm , fire, loss of ci Receive counseling from a qualified social worker
power) . according to federal and state low.

il Be informed of the facility's pion of action in case o f a Receive an evaluation and follow-up care, including a
medical emergencies. vocational rehabilitation review.
a Receive referra ls to community services when needed.

13. Facility Management
You hove the right to:

e Expect the dialysis faci lity to employ skilled staff and
provide safe, clean, comfortable and professional
surroundings.
c Expect the facil ity to make every effort to make you com-
fortable and give you your treatment on time, according to
o schedule that meets special needs whenever possible.
a Expect the facility to monitor the quality of treatment and
equipment according to regulations.

14. Formal Complaint Process
You hove the right to:

l c

E:1
Make a complaint to your facility management and
request that _they try to resolve o problem.
Ask and be instructed on your dialysis facility's grievance
process.
a File a complaint with the End-Stage Renal Disease
Network in the region, and/ or your state health
deportment in on attempt to resolve a problem.
15. Refusal, Advance Directives a nd End-of-Lile Care 18. Treatment Costs

You hove the right to: You hove the right to:

c Make decisions about your health core based on informa- n Receive o full explanation of oil charges by the facility and
tion given to you by your kidney doctor. doctor.

e Complete on advance directive stating your wishes. s Be informed about your financial responsibilities ofter·
Medicare or Medicaid and/ or other health core insurance
.. Be informed by your kidney doctor of the possible results coverage.
of refusing drugs, treatments or procedures.
c Obtain assistance with completing insurance forms.
fl Be informed of how the facility cores for those regarding
end-of-life needs. 111 Get information about how you con poy your bill and
about programs available to help you.
c Refuse any drugs, treatments or procedures offered to you.
El Indicate your refusal in writing. Your Responsibilities
El Accept full responsibility for the medical outcomes of your 1. Be Informed
refusal. It is your responsibility to:
16. Medical Consulta tion ci Learn as much as you con
You hove the right to: about your kidney disease and
how it is treated .
D Request consultation with another doctor for any kidney- or
non-kidney-related medical problem. r:i Talk to your health core tea m
about your concerns regarding
lil Know that payment for consultation may not be covered your treatment.
under Medicare or other health core coverage, and you
may be responsible for payment. 2. Plan and Follow a Treatment
Program
17. Research Programs
It is your responsibility to:
You hove the right to:
a Supply a ll i"nformotion about your health n~eded to pion
El Receive a full explanation of any research program in and carry out a treatment p rogram that will give you the
which you may be able to participate. best results.
c Know that the study will not be conducted without your I!] Find out about the other services and referrals that ore
informed consent or that of the person acting on your recommended by your health ~ore team.
behalf.
3. Be On Time
!ii Refuse or withdraw from the research study at any time.
It is your responsibility to:
o Make every effort to be on time for your scheduled dialysis.
G Tell the dialysis facility ahead of time if you ore unable to
attend your next treatment dote.
 o Understand tha t your treatment li me may be shortened if you
arrive late.

4 . Follow Facility Policies
It is your responsibility to:
u Follow the facility policies and procedures that have been
developed to provide safety and quality of care to all patients.

5. Be Considerate
Ii is your responsibility to:
a Treat other patients and staff members with respect, d ignity
and consideration.
e Never threaten others, act in a violent manner or cause any
physical harm. Many thanks to the following organiza[ans for their role in assisting with the
developm~nt of the Dialysis Patients"'Bill of Rights and Responsibilities •
6. Fulfill Financial Obligations American Society of NKF Council on Reno! Nutrilion
Tronsplontolion NKF Council of N ephrology
It is your responsibility to: Cenlers for N\edicore & N urses and Technicians
i'Aedicoid Services NKF Polient & family Council
lil Make every effo rt to poy your bills for core from the dialysis ESRD Network d Executive Commitlee
facility and doctor(s}. ESRD Nelwork 7 Nolionol Renal Adminislrotors
ESRD Network 8 Association
El Obtain Medicare Part B coverage or co-in su rance through a ESRD Nerwork l 3 Renal Physicians Association
private carrier. ESRD Nerwork l 8 TronsPocific Renal Network
NKF Council of Nephrology
ril Inform the facility business office of all health insurance pro- Social Workers
g rams and policies from which you receive d irect payment for
services in the trea tment of kidney disease.
c Pay the d ialysis facil ity and doctor when you receive payments
from your health insura nce company or med ical policies.
 DR MONTOYA'S CHARGES MODERATE
MEDICARE
DESCRIPTION REQUIREMENTS CPT ALLOWABLE RATE
1. A,Comprehenslve h~tory 2. A
comprehensive exam 3. Medlcal Decision
INPATIENT ADMISSION MODERATE making of moderate complexity 99222 $ 134.03
1. An expanded problem focused Interval
history 2. An expanded problem focused
examination 3. Medl~I decision making of
INPATIENT FOLLOW UP MODERATE moderate complexity 99232 $ 70.76
1. An expanded problem focused interval
history 2. An expanded problem focused
e~mlnatlon ~- Medtcal decision making of
INh-n lENT FOLLOW UP MODERATE moderate complexity 99232 s 70.76
1. Final E> STATE RULES > TEXAS RULES OF CIVIL PROCEDURE > PART II. RULES
OF PRACTICE IN DISTRICT AND COUNTY COURTS > SECTION 4. Pleading > C. PLEADINGS
OF DEFENDANT

Rule 91a Dismissal of Baseless Causes of Action
and Grounds. -Except in a case brought under the Family Code or a case governed by Chapter 14 of the
Texas Civil Practice and Remedies Code, a party may move to dismiss a cause of action on the grounds
that it has no basis in law or fact. A cause of action has no basis in law if the allegations, taken as true,
together with inferences reasonably drawn from them, do not entitle the claimant to the relief sought. A
cause of action has no basis in fact if no reasonable person could believe the facts pleaded.
--A motion to dismiss must state that it is made pursuant to this rule, must identify each cause of action to
which it is addressed, and must state specifically the reasons the cause of action has no basis in law, no
basis in fact, or both.
and Ruling. -A motion to dismiss must be:
(a) filed within 60 days after the first pleading containing the challenged cause of action is served on the
movant;
(b) filed at least 21 days before the motion is heard; and
(c) granted or denied within 45 days after the motion is filed.
Time for Response. -Any response to the motion must be filed no later than 7 days before the date of
the hearing.
t; Withdrawal of
(a) The court may not rule on a motion to dismiss if, at least 3 days before the date of the hearing, the
respondent files a nonsuit of the challenged cause of action, or the movant files a withdrawal of the
motion.
(b) If the respondent amends the challenged cause of action at least 3 days before the date of the hearing,
the movant may, before the date of the hearing, file a withdrawal of the motion or an amended motion
directed to the amended cause of action.
(c) Except by agreement of the parties, the court must rule on a motion unless it has been withdrawn or
the cause of action has been non suited in accordance with {a) or {b). In ruling on the motion, the
court must not consider a nonsuit or amendment not filed as permitted by paragraphs {a) or {b).
(d) An amended motion filed in accordance with {b) restarts the time periods in this rule.
Hearing; No Evidence Cons/dered.-Each party is entitled to at least 14 days' notice of the hearing on the
motion to dismiss. The court may, but is not required to, conduct an oral hearing on the motion. Except
as required by 91a.7, the court may not consider evidence in ruling on the motion and must decide the
motion based solely on the pleading of the cause of action, together with any pleading exhibits permitted
by Rule 59.
Award of Costs and Attorney Fees Required.-Except in an action by or against a governmental entity or a
public official acting in his or her official capacity or under color of law, the court must award the prevailing
 Page2 of2
Tex. R. Civ. P. 91 a

party on the motion all costs and reasonable and necessary attorney fees incurred with respect to the
challenged cause of action in the trial court. The court must consider evidence regarding costs and fees in
determining the award.
Effect on Venue and Personal Jurisdiction.-This rule is not an exception to the pleading requirements of
Rules 86 and 120a, but a party does not, by filing a motion to dismiss pursuant to this rule or obtaining a
ruling on it, waive a special appearance or a motion to transfer venue. By filing a motion to dismiss. a
party submits to the court's jurisdiction in proceedings on the motion and is bound by the court's ruling,
including an award of attorney fees and costs against the party.
Dismissal Procedure Cumulative.--This rule is in addition to, and does not supersede or affect, other
procedures that authorize dismissal.

History

Added by Texas Supreme Court, Misc. Docket No. 13-9022, effective March 1, 2013.

EDITOR'S NOTE. --

Texas Supreme Court Misc. Docket No. 13-9022 provides: "Rule of Civil Procedure 91a and Rule of Evidence
902(10)(c) apply to all cases, including those pending on March 1, 2013. 11
Comment to 2013 change by G.O. 13-9022 Rule 91a is a new rule implementing section 22.004/q) of the Texas
Government Code, which was added in 2011 and calls for rules to provide for the dismissal of causes of action that
have no basis in law or fact on motion and without evidence. A motion to dismiss filed under this rule must be
ruled on by the court within 45 days unless the motion, pleading, or cause of action is withdrawn, amended, or non
suited as specified in 91a.5. If an amended motion is filed in response to an amended cause of action in
accordance with 91a.5(b), the court must rule on the motion within 45 days of the filing of the amended motion
and the respondent must be given an opportunity to respond to the amended motion. The term "hearing" in the rule
includes both submission and an oral hearing. Attorney fees awarded under 91 a. 7 are limited to those associated
with challenged cause of action, including fees for preparing or responding to the motion to dismiss.
TABN0.14
Texas Statutes
Civil Practice and Remedies Code
Title 2. Trial, Judgment, And Appeal
Subtitle B. Trial Matters
Chapter 27. Actions Involving The Exercise Of Certain Constitutional Rights
Current with legislation passed during the 2015 Regular Session effective through 1/1/2016

Browse this section
§ 27.001. Definitions

In this chapter:

11
(1) Communication 11 includes the making or submitting of a statement or
document in any form or medium, including oral, visual, written,
audiovisual, or electronic.

(2) "Exercise of the right of association" means a communication between
individuals who join together to collectively express, promote, pursue, or
defend common interests.

(3) "Exercise of the right of free speech" means a communication made in
connection with a matter of public concern.

(4) "Exercise of the right to petition" means any of the following:
(A) a communication in or pertaining to:
(i) a judicial proceeding;

(ii) an official proceeding, other than a judicial proceeding, to administer the
law;

(iii) an executive or other proceeding before a department of the state or federal
government or a subdivision of the state or federal government;

(iv) a legislative proceeding, including a proceeding of a legislative committee;

(v) a proceeding before an.entity that requires by rule that public notice be given
before proceedings of that entity;

(vi) a proceeding in or before a managing board of an educational or
eleemosynary institution supported directly or indirectly from public
 revenue;

(vii) a proceeding of the governing body of any political subdivision of this
state;

(viii) a report of or debate and statements made in a proceeding described by
Subparagraph (iii), (iv), (v), (vi), or (vii); or

(ix) a public meeting dealing with a public purpose, including statements and
discussions at the meeting or other matters of public concern occurring at
the meeting;

(B) a communication in connection with an issue under consideration or review by a
legislative, executive, judicial, or other governmental body or in another
governmental or official proceeding;

(C) a communication that is reasonably likely to encourage consideration or review of
an issue by a legislative, executive, judicial, or other governmental body or in
another governmental or official proceeding;

(D) a communication reasonably likely to enlist public participation in an effort to effect
consideration of an issue by a legislative, executive, judicial, or other governmental
body or in another governmental or official proceeding; and

(E) any other communication that falls within the protection of the right to petition
government under the Constitution of the United States or the constitution of this
state.

(5) "Governmental proceeding" means a proceeding, other than a judicial
proceeding, by an officer, official, or body of this state or a political
subdivision of this state, including a board or commission, or by an officer,
official, or body of the federal government.

(6) "Legal action" means a lawsuit, cause of action, petition, complaint, cross-
claim, or counterclaim or any other judicial pleading or filing that requests
legal or equitable relief.

(7) "Matter of public concern" includes an issue related to:
(A) health or safety;

(B) environmental, economic, or community well-being;
 (C) the government;

(D) a public official or public figure; or

(E) a good, product, or service in the marketplace.

(8) "Official proceeding" means any type of administrative, executive,
legislative, or judicial proceeding that may be conducted before a public
servant.

(9) "Public servant" means a person elected, selected, appointed, employed, or
otherwise designated as one of the following, even if the person has not yet
qualified for office or assumed the person's duties:
(A) an officer, employee, or agent of government;

(B) ajuror;

(C) an arbitrator, referee, or other person who is authorized by law or private written
agreement to hear or determine a cause or controversy;

(D) an attorney or notary public when participating in the performance of a
governmental function; or

(E) a person who is performing a governmental function under a claim of right but is not
legally qualified to do so.

Cite as Tex. Civ. Prac. and Rem. Code § 27.001

History. Added by Acts 2011, 82nd Leg., R.S., Ch. 341, Sec. 2, eff. June 17, 2011.

Browse this section I Top
§ 27.002. Purpose

The purpose of this chapter is to encourage and safeguard the constitutional
rights of persons to petition, speak freely, associate freely, and otherwise
participate in government to the maximum extent permitted by law and, at the
same time, protect the rights of a person to file meritorious lawsuits for
demonstrable injury.
Cite as Tex. Civ. Prac. and Rem. Code § 2 7.002

History. Added by Acts 2011, 82nd Leg., R.S., Ch. 341, Sec. 2, eff. June 17, 2011.

Browse this section I Top
§ 27.003. Motion To Dismiss

(a) If a legal action is based on, relates to, or is in response to a party's
exercise of the right of free speech, right to petition, or right of association,
that party may file a motion to dismiss the legal action.

(b) A motion to dismiss a legal action under this section must be filed not later
than the 60th day after the date of service of the legal action. The court
may extend the time to file a motion under this section on a showing of
good cause.

(c) Except as provided by Section 27.006(b), on the filing of a motion under
this section, all discovery in the legal action is suspended until the court
has ruled on the motion to dismiss.
Cite as Tex. Civ. Prac. and Rem. Code § 27.003

History. Added by Acts 2011, 82nd Leg., R.S., Ch. 341, Sec. 2, eff. June 17, 2011.

Browse this section I Top
§ 2 7.004. Hearing

(a) A hearing on a motion under Section 27.003 must be set not later than the
60th day after the date of service of the motion unless the docket
conditions of the court require a later hearing, upon a showing of good
cause, or by agreement of the parties, but in no event shall the hearing
occur more than 90 days after service of the motion under Section 27.003,
except as provided by Subsection (c).
(b) In the event that the court cannot hold a hearing in the time required by
Subsection (a), the court may take judicial notice that the court's docket
conditions required a hearing at a later date, but in no event shall the
hearing occur more than 90 days after service of the motion under Section
27.003, except as provided by Subsection (c).

(c) If the court allows discovery under Section 2 7.006(b), the ~ourt may extend
the hearing date to allow discovery under that subsection, but in no event
shall the hearing occur more than 120 days after the service of the motion
under Section 27.003.
Cite as Tex. Civ. Prac. and Rem. Code § 27.004

History. Amended by Acts 2013, 83rd Leg. - Regular Session, ch. 1042, Sec. 1, eff. 6/14/2013.

Added by Acts 2011, 82nd Leg., R.S., Ch. 341, Sec. 2, eff. June 17, 2011.

Browse this section I Top
§ 27.005. Ruling

(a) The court must rule on a motion under Section 27.003 not later than the
30th day following the date of the hearing on the motion.

(b) Except as provided by Subsection (c), on the motion of a party under
Section 27.003, a court shall dismiss a legal action against the moving
party if the moving party shows by a preponderance of the evidence that
the legal action is based on, relates to, or is in response to the party's
exercise of:
( 1) the right of free speech;

(2) the right to petition; or

(3) the right of association.

(c) The court may not dismiss a legal action under this section if the party
 bringing the legal action establishes by clear and specific evidence a prima
facie case for each essential element of the claim in question.

(d) Notwithstanding the provisions of Subsection (c), the court shall dismiss a
legal action against the moving party if the moving party establishes by a
preponderance of the evidence each essential element of a valid defense to
the nonmovant's claim.
Cite as Tex. Civ. Prac. and Rem. Code § 27.005

History. Amended by Acts 2013, 83rd Leg. - Regular Session, ch. 1042, Sec. 2, eff. 6/14/2013.

Added by Acts 2011, 82nd Leg., R.S., Ch. 341, Sec. 2, eff. June 17, 2011.

Browse this section I Top
§ 2 7.006. Evidence

(a) In determining whether a legal action should be dismissed under this
chapter, the court shall consider the pleadings and supporting and
opposing affidavits stating the facts on which the liability or defense is
based.

(b) On a motion by a party or on the court's own motion and on a showing of
good cause, the court may allow specified and limited discovery relevant to
the motion.
Cite as Tex. Civ. Prac. and Rem. Code § 2 7.006

History. Added by Acts 2011, 82nd Leg., R.S., Ch. 341, Sec. 2, eff. June 17, 2011.

Browse this section I Top
§ 27.007. Additional Findings
(a) At the request of a party making a motion under Section 27.003, the court
shall issue findings regarding whether the legal action was brought to deter
or prevent the moving party from exercising constitutional rights and is
brought for an improper purpose, including to harass or to cause
unnecessary delay or to increase the cost of litigation.

(b) The court must issue findings under Subsection (a) not later than the 30th
day after the date a request under that subsection is made.
Cite as Tex. Civ. Prac. and Rem. Code § 27.007

History. Added by Acts 2011, 82nd Leg., R.S., Ch. 341, Sec. 2, eff. June 17, 2011.

Browse this section I Top
§ 2 7.008. Appeal

(a) If a court does not rule on a motion to dismiss under Section 27.003 in the
time prescribed by Section 27.005, the motion is considered to have been
denied by operation of law and the moving party may appeal.

(b) An appellate court shall expedite an appeal or other writ, whether
interlocutory or not, from a trial court order on a motion to dismiss a legal
action under Section 27.003 or from a trial court's failure to rule on that
motion in the time prescribed by Section 27.005.

(c) An appeal or other writ under this section must be filed on or before the
60th day after the date the trial court's order is signed or the time
prescribed by Section 27.005 expires, as applicable.
Cite as Tex. Civ. Prac. and Rem. Code § 27.008

History. Amended by Acts 2013, 83rd Leg. - Regular Session, ch. 1042, Sec. 5, eff. 6/14/2013.

Added by Acts 2011, 82nd Leg., R.S., Ch. 341, Sec. 2, eff. June 17, 2011.
Browse this section I Top
§ 27.009. Damages And Costs

(a) If the court orders dismissal of a legal action under this chapter, the court
shall award to the moving party:
( 1) court costs, reasonable attorney's fees, and other expenses incurred in defending
against the legal action as justice and equity may require; and

(2) sanctions against the party who brought the legal action as the court determines
sufficient to deter the party who brought the legal action from bringing similar
actions described in this chapter.

(b) If the court finds that a motion to dismiss filed under this chapter is
frivolous or solely intended to delay, the court may award court costs and
reasonable attorney's fees to the responding party.
Cite as Tex. Civ. Prac. and Rem. Code § 27.009

History. Added by Acts 2011, 82nd Leg., R.S., Ch. 341, Sec. 2, eff. June 17, 2011.

Browse this section I Top
§ 27.01 0. Exemptions

(a) This chapter does not apply to an enforcement action that is brought in the
name of this state or a political subdivision of this state by the attorney
general, a district attorney, a criminal district attorney, or a county attorney.

(b) This chapter does not apply to a legal action brought against a person
primarily engaged in the business of selling or leasing goods or services, if
the statement or conduct arises out of the sale or lease of goods, services,
or an insurance product, insurance services, or a commercial transaction in
which the intended audience is an actual or potential buyer or customer.

(c) This chapter does not apply to a legal action seeking recovery for bodily
 injury, wrongful death, or survival or to statements made regarding that
legal action.

(d) This chapter does not apply to a legal action brought under the Insurance
Code or arising out of an insurance contract.
Cite as Tex. Civ. Prac. and Rem. Code § 27.010

History. Amended by Acts 2013, 83rd Leg. - Regular Session, ch. 1042, Sec. 3, eff. 6/14/2013.

Added by Acts 2011, 82nd Leg., R.S., Ch. 341, Sec. 2, eff. June 17,2011.

Browse this section I Top
§ 27.011 . Construction

(a) This chapter does not abrogate or lessen any other defense, remedy,
immunity, or privilege available under other constitutional, statutory, case,
or common law or rule provisions.

(b) This chapter shall be construed liberally to effectuate its purpose and intent
fully.
Cite as Tex. Civ. Prac. and Rem. Code§ 27.011

History. Added by Acts 2011, 82nd Leg., R.S., Ch. 341, Sec. 2, eff. June 17, 2011.
TAB NO. 15
In re Memorial Hermann Hospital System, ••• S.W.3d - (2015)

involving a heart surgeon who claims his former hospital
2015 WL 2438752
retaliated against him for joining a competing hospital-
Only the Westlaw citation is currently available. we must determine whether either the medical committee
privilege or the medical peer review committee privilege
NOTICE: THIS OPINION HAS NOT BEEN protects certain documents from disclosure. The trial court
RELEASED FOR PUBLICATION IN THE concluded the documents sought were discoverable, and the
PERMANENT LAW REPORTS. UNTIL RELEASED, court of appeals denied relief, prompting the parties resisting
ITIS SUBJECTTO REVISION OR WITHDRAWAL. production to seek mandamus relief here. We hold that some
of the documents are protected, and we conditionally grant
Supreme Court of Texas. mandamus relief as to them. But we are unconvinced that
the remainder of the documents are confidential under either
In re Memorial Hermann Hospital System;
privilege.
Memorial Hermann Physician Network;
Michael Macris, M.D.; Michael Macris,
M.D., P.A.; and Keith Alexander, Relators
BACKGROUND
NO. 14-0171 Argued Februacy 25,
Plaintiffs Miguel A. Gomez, ill, M.D. and Miguel A. Gomez,
2015 OPINION DELIVERED: May 22, 2015
M.D., P.A. (collectively, "Dr. Gomez") filed suit against
ON PETITION FOR WRIT OF MANDAMUS. defendants Memorial Hermann Hospital System, 2 Memorial
Hermann Physician Network, Michael P. Macris, M.D.,
Attorneys and Law Firms
Michael P. Macris, M.D., P.A., 3 and Keith Alexander 4
Donald P. Wilcox, Attorney, Texas Medical Association, 401 (collectively, "defendants" or "Memorial Hermann") on
West 15th Street, 10th Floor, Austin TX 78701-1632, for September 17, 2012. Dr. Gomez's original petition asserted
Amicus Curiae Texas Medical Association. causes of action for business disparagement, defamation,
tortious interference with prospective business relations, and
Kimberly Rae Daspit Goodling, Doyle Raizner LLP, 1221 improper restraint of trade under the Texas Free Enterprise
McKinney, Suite 4100, One Houston Center, Houston TX and Antitrust Act of 1983 ("TFEAA").
77010, Michael P. Doyle, Doyle Raizner LLP, 2402 Dunlavy
Street, Houston TX 77006, Peter M. Kelly, Kelly, Durham & Dr. Gomez is a cardiothoracic surgeon who practiced
Pittard, L.L.P., 1005 Heights Boulevard, Houston TX 77008, at Memorial Hermann Memorial City Medical Center
Attorneys, for Real Party in Interest Miguel A. Gomez, III, ("Memorial City") 5 from 1998 until 2012 when he resigned
M.D. and Miguel A. Gomez, M.D., P.A.
his privileges with Memorial City. 6 During his years of
Jesse Coleman, Robert J. Swift, Warren Szutse Huang, practice at Memorial City, Dr. Gomez built a reputation in
Fulbright & Jaworski LLP, 1301 McKinney, Suite 5100, the "West Houston and Katy community" for "quality patient
Houston TX 77010-3095, Attorneys, for Relator Memorial care, technical excellence, and outstanding professionalism in
Hermann Hospital System, Memorial Hermann Physician heart and general surgery."
Network; Michael Macris, M.D.; Michael Macris, M.D.,
P.A.; and Keith Alexander. Dr. Gomez's "skills and specialized abilities" for patients
who require heart and general surgeries range from" 'basic'
Opinion open heart surgery to advanced robotic-assisted surgical
procedures." Robotic heart surgery "eliminates the need to
Justice Willett delivered the opinion of the Court. mechanically crack open a patient's chest." Robotic heart
surgery always involves significantly less recovery time than
*1 A decade ago, we observed: "While the medical
its non-robotic surgical analogue, and depending on the
privileges are important in promoting free discussion in the
particular procedure, can spare the patient up to six days of
evaluation of health care professionals and health services, the
recovery time in the hospital. Robotic heart surgery therefore
right to evidence is also important, and therefore privileges
has the potential to save an individual patient $50,000 or more
must be strictly construed." 1 In this original proceeding-
in medical expenses.

WestlawNexr © 2015 Thomson Reuters. No claim to original U.S. Government Works.
In re Memorial Hermann Hospital System, -S.W.3d-(2015)

assisted heart surgeries. Memorial City faced sharing, or
*2 In the Houston medical community, Dr. Gomez worse, losing that distinction to Methodist West.
"pioneer[ed] implementation of 'off-pump' surgery and
robotic-assisted heart surgeries." Memorial City heavily When the defendants learned that Dr. Gomez was willing
promoted robotic heart surgery as well as Dr. Gomez himself to associate himself with Methodist West, the defendants
-the only heart surgeon at Memorial City who was capable began conducting a "whisper campaign" against Dr. Gomez.
of performing robotic heart surgeries. The hospital invested in According to Dr. Gomez, the purpose of the campaign was "to
a million dollar "DA VINCI" machine, and spent significant cast doubt on robotic heart surgery procedures," throughout
advertising dollars promoting the robotic-assisted surgical the entire city of Houston and "evaporate" the "robotic heart
procedures. surgery market." If the campaign was successful, it would
inoculate Memorial City from the advantage Methodist West
Referrals from other physicians are extremely important to would otherwise gain from the ability to offer the superior
surgeons and specialists. The primary means for a physician procedure.
"to build his practice is ... actually going out on his own
to doctor's offices, meeting the doctors, [and] developing Rumors began spreading across the Memorial City campus
relationships" in order to get referrals from physicians. The that Dr. Gomez was "having problems" with his mortality
success of a surgeon's practice depends on his ability to attract rate, and the marketing director at Memorial City did an
referrals, and cardiologists are a cardiovascular surgeon's "about-face" regarding Dr. Gomez. Portia Willis, who was
primary referral source. In turn, the surgeon's decision to then employed in Memorial City's marketing department,
perform his surgeries at one hospital over another directly had scheduled speaking engagements and other promotional
impacts the profitability of the hospitals. engagements for Dr. Gomez on behalf of Memorial City. But
amidst the rumors, Ms. Willis was told not to push forward
In 2009, another hospital-Methodist West Houston Hospital with any type of marketing or promotion of Dr. Gomez
-was in the process of opening, which caused a change in indefinitely. Although the reasons for the marketing hiatus
the atmosphere at Memorial City. There was a growing fear were not explained, Ms. Willis had the impression that the
at Memorial City that staff would leave to go to Methodist move was related to the rumors that Dr. Gomez was "a crappy
West. Around this time, the then-CEO of Memorial City and surgeon." By this point, rumors had become "rampant" that
the Chief of Staff 7 met with at least one of Memorial City's Dr. Gomez "wasn't the surgeon that [the Hospital workers]
physicians, Dr. Jo Pollack, in order to express disapproval of thought he was," and the hospital's employees began to
Dr. Pollack's pattern of referring her patients to non-affiliated wonder how much longer Dr. Gomez's practice could endure.
facilities and physicians. According to Dr. Pollack's affidavit,
she was told she would be "committing political suicide" and *3 At a "Cardiovascular and Thoracic CPC" meeting on
her practice "could be in jeopardy" if she did not refer her November l, 2011, Dr. Macris displayed "false data and
patients to the Memorial City affiliated medical oncologists, statements regarding Dr. Gomez's practice and mortality
radiation oncologists and imaging. Memorial City also began rates of his patients to an entire room filled with Dr.
holding "Town Hall" meetings in order to "gain information Gomez's professional colleagues, intending that it be
about who wanted to leave and to attempt to persuade people thereafter widely disseminated." The presentation "create[d]
to stay at Memorial City." the appearance that patients were more likely to die in
Dr. Gomez's care." Dr. Macris had "manipulated" the
Of the heart surgeons who practiced at Memorial City, Dr. presented data, eschewing generally accepted methodologies
Gomez was the first to agree to practice at Methodist West. for proper peer review comparison as well as basic scientific
Dr. Gomez asserts that, because of his complaints about principles. Although the "true" peer review committee at
staffing and equipment dysfunctions as well as Memorial Memorial Hermann 8 intervened and ultimately determined
City's priorities regarding patient care, Memorial City knew Dr. Macris's comparative data could not be relied upon for any
he would perform his surgeries at Methodist West in the legitimate purpose, the defendants continued to disseminate
future. Consequently, despite having invested heavily in the manipulated data within the medical community. This
promoting robotic-assisted heart surgery, Memorial City spread the false impression of Dr. Gomez's practice. After
would no longer be the sole Houston hospital offering robotic- Dr. Gomez's abilities were assessed in the cardiology section

WestlawNexr © 2015 Thomson Reuters. No claim to original U.S. Government Works. 2
In re Memorial Hermann Hospital System, -S.W.3d-(2015)

meeting, his "referral patterns were ruined," and he lost his the only reasonable conclusion on such matters. 16 A less
status as one of the most sought-after surgeons. deferential standard applies to the trial court's determination
of the legal principles governing the discovery, however. 17
At a January 2012 meeting, Mr. Alexander publicly ridiculed
Dr. Gomez's skills as a heart surgeon. Mr. Alexander let the
physicians, nurses, and administrators in the room "know that II. The trial court did not abuse its discretion in holding
he had targeted Dr. Gomez because of his affiliation with that the "anticompetitive action" exception to the
Methodist West." Mr. Alexander "made clear ... he would medical peer review committee privilege applied.
not tolerate physicians taldng business to Methodist West."
Destroying Dr. Gomez's reputation "served as a preemptive A. Under certain circumstances, the medical peer review
warning" to other physicians considering an affiliation with committee privilege limits the accessibility of the records
Methodist West. of, proceedings of, and communications to a medical
peer review committee.
Dr. Gomez brought suit on the claims described above *4 A medical peer review committee includes "a committee
and moved to compel the production of certain documents. of a health care entity [including a hospital licensed under
Memorial Hermann asserted the documents were protected Chapter 241 or 577 of the Health and Safety Code] ... or
from discovery under the medical committee privilege and the medical staff of a health care entity" that (1) "operates
the medical peer review committee privilege. Following an in under written bylaws" approved by either the policy-making
camera inspection, the trial court ordered Memorial Hermann or governing board of the health care entity, and (2) "is
to produce certain documents. After the court of appeals authorized to evaluate the quality of medical and health care
denied Memorial Hermann's petition for writ of mandamus, 9 services or the competence of physicians." 18
Memorial Hermann sought mandamus relief in this Court.
"All proceedings and records of a medical peer review
committee are confidential, and all records of, determinations
of, and communications to a committee are privileged and
DISCUSSION
are not discoverable, with certain exceptions...." 19 The
I. Standard of review provision of confidentiality extends to the committee's initial
"Mandamus is proper when the trial court erroneously orders and subsequent credentialing decisions, 20 as well as to
the disclosure of privileged information because the trial documents "generated" by a committee or "prepared by or at
court's error cannot be corrected on appeal." 10 Pleading and . . of the committee
the d1recuon . tior comm1ttee
. purposes."
21
producing evidence establishing the existence of a privilege The minutes and recommendations of the committee as well
11 as the committee's inquiries about a physician to outside
is the burden of the party seeking to avoid discovery. The
party asserting the privilege must establish by testimony or sources and responses thereto are also protected. 22 However,
affidavit a prima facie case for the privilege. 12 The party "simply passing a document through a peer review committee
need produce "only the 'minimum quantum of evidence does not make it privileged." 23 The privilege does not
necessary to support a rational inference that the allegation prevent a party from discovering from a nonprivileged source
of fact is true,' " and tender the documents to the trial court, 24
material that has been presented to the committee.
at which point, "the trial court must conduct an in camera
inspection of [the] documents before deciding to compel
Texas Occupations Code section 160.007's provisions
production." 13 "expressly delineate and limit the circumstances under
which the records of and communications to a peer
A reviewing court may not substitute its judgment for that
review committee may [or must] be accessed." 25 The
of the trial court regarding "the resolution of fact issues
committee may disclose its records and proceedings, and
or matters committed to the trial court's discretion." 14 communications made by the committee to other medical
"The scope of discovery and the admission of evidence is peer review committees, appropriate governmental agencies,
principally within the discretion of the trial court." 15 The national accreditation bodies, the Texas Medical Board,
relator must establish that the trial court failed to reach and another state's board of registration or licensing of

WestlawNexr © 2015 Thomson Reuters. No claim to original U.S. Government Works. 3
In re Memorial Hermann Hospital System, - S.W.3d - (2015)

physicians. 26 The committee may disclose to a physician committee privilege applies," which inherently implies a
under its review confidential infonnation relevant to the finding that the relevant committees were medical peer
review committees. Dr. Gomez argues that Memorial
matter without waiving confidentiality. 27 The committee
Hennann failed to establish that the investigations were
must provide the physician with a written copy of its
perfonned for the purpose of quality assessment, or that the
recommendation and final decision for certain actions,
committee was established by bylaws.
including those that could result in "censure, suspension,
restriction, limitation, revocation, or denial of membership
With one exception, 33 the medical peer review committee
or privileges in a health care entity." 28 Certain parties are
privilege affords confidential status to the records of,
entitled to use the confidential infonnation in their defense
proceedings of, and communications to a medical peer
or in rebuttal to such a defense. 29 Otherwise, the records review committee regardless of whether the individual record,
and determinations of a medical peer review committee, as proceeding, or communication relates to a peer review
well as communications to the committee, are "not subject to
action. 34 Memorial Hennann submitted the committees'
subpoena or discovery and [are] not admissible as evidence in
bylaws as well as affidavits stating that the committees
any civil judicial or administrative proceeding without waiver
engaged in peer review. Although Dr. Gomez points us to
of the privilege of confidentiality executed in writing by the
evidence to the contrary, the trial court had sufficient evidence
committee." 30 before it to make a reasonable finding that the committees
are medical peer review committees. We will not disturb that
*S However, under certain circumstances, the infonnation finding.
may not be confidential, in which case it would not be
subject to a privilege. For example, the "records made
or maintained in the regular course of business by a C. An "anticompetitive action" is one that requires proof
hospital ... [or] medical organization" are not covered by of a net negative impact on competition within a defmed
section 160.007 and therefore are not confidential under market.
that section. 31 In addition, section 160.007(b) provides a The trial court found that the documents at issue "are relevant
limited exception to confidentiality for proceedings, records, to an anticompetitive action." Before we can resolve the
or communications that are relevant to an anticompetitive parties' dispute regarding the correctness of this finding, we
action. The anticompetitive action exception provides in full: must first detennine the meaning of the statutory phrase
"relevant to an anticompetitive action." 35
If a judge makes a preliminary finding
that a proceeding or record of a Statutory construction is a question of law we review de
medical peer review committee or a
novo. 36 Our objective is to determine and give effect to
communication made to the committee
is relevant to an anticompetitive the Legislature's intent, 37 and "the truest manifestation of
action, or to a civil rights proceeding what lawmakers intended is what they enacted." 38 Proper
brought under 42 U.S.C. Section construction requires reading the statute as a whole rather than
1983, the proceeding, record, or interpreting provisions in isolation. 39 "[C]ourts should not
communication is not confidential to give an undefined statutory tenn a meaning out of harmony
the extent it is considered relevant. 32 or inconsistent with other provisions, although it might be
40
susceptible of such a construction if standing alone." "We
The parties dispute the applicability of this exception.
presume that the Legislature chooses a statute's language with
care," and we will not ignore the statute's use of a tenn that
B. The committees at issue are medical peer review carries a "particular meaning." 41 "Privileges are not favored
committees. 42
in the law and are strictly construed."
As an initial matter, Dr. Gomez disputes that Memorial
Hennann proved the relevant committees are medical *6 Neither section 160.007 nor any other peer
peer review committees. The trial court found "that the review committee privilege that incorporates the phrase
anticompetitive exception to the medical peer review
"anticompetitive action" defines the tenn. 43 Black's Law

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In re Memorial Hermann Hospital System, ••• S.W.3d •••• (2015)

Dictionary defines "anticompetitive" as "[h]aving a tendency by the merger must be weighed against anticompetitive
to reduce or eliminate competition" in contrast to the tenn consequences in the final determination whether the net
procompetitive. 44 Procompetitive is in tum defined as effect on competition is substantially adverse." 56 Ultimately,
"[i]ncreasing, encouraging, or preserving competition." 45 the "use of the word 'competition' [is] a shorthand for the
Competition itself is defined as "[t]he struggle for commercial invocation of the benefits of a competitive market," 57 and
advantage; the effort or action of two or more commercial antitrust law acknowledges that "it is sometimes difficult to
interests to obtain the same business from third parties." 46 distinguish robust competition from conduct with long-run
The dictionary also notes that the tenn anticompetitive anticompetitive effects." 58
"describes the type of conduct or circumstances generally
targeted by antitrust laws," 47 although the statement is "not *7 We have no trouble holding that the Legislature intended
the tenn "anticompetitive" in section 160.007 to denote an
purely definitional." 48
overall substantially adverse effect on competition, rather
than the existence of some negative effects. However, we
This framework accurately maps out the meaning afforded
reject Memorial Hennann's characterization of the tenn
the tenn "anticompetitive" in court decisions in the antitrust
"anticompetitive action" as synonymous with "antitrust
context. As noted by the Supreme Court of the United
action." Although we agree that the tenn anticompetitive
States, to restrain competition is the "very essence" of every
"describes the type of conduct or circumstances generally
agreement and regulation of trade. 49 Therefore, regarding
targeted by antitrust laws," 59 the tenn itself is broader
restraints of trade, "[t]he true test of legality is whether the
because the law of antitrust does not encompass all conduct
restraint imposed is such as merely regulates and perhaps
that could substantially lessen competition in a particular
thereby promotes competition or whether it is such as
market. For example, certain conduct-regardless of its
may suppress or even destroy competition." 50 As such, an overall impact on competition-is immune from antitrust law
"abbreviated or 'quick-look' analysis" is appropriate only
under the state action doctrine, 60 the exemption for political
when "an observer with even a rudimentary understanding
of economics could conclude that the arrangements in activity, 61 or the exemptions, both implicit and explicit, for
question would have an anticompetitive effect on customers labor unions. 62 The tenns anticompetitive and antitrust are
and markets." 51 The goal of judicial scrutiny of restraints therefore not inherently coextensive, and we cannot ignore
on trade is to "distinguish[ ] between restraints with the Legislature's use of the broader tenn, particularly in
anticompetitive effect that are harmful to the consumer and juxtaposition to section 160.007(b)'s specificity regarding its
restraints stimulating competition that are in the consumer's application to civil rights proceedings. 63
best interest." 52
However, this does not mean that a litigant may successfully
Judicial scrutiny in other areas of antitrust law confinns rely on subsection (b) simply by adding a gratuitous
that the antitrust laws were designed as a "consumer allegation that the conduct at issue is anticompetitive.
welfare prescription" that requires consideration of both Section 160.007(b) requires a "preliminary finding that a
proceeding or record of a medical peer review committee or
anticompetitive and procompetitive effects. 53 Thus, proof
a communication made to the committee is relevant to an
that a firm's dominant position is the "consequence
anticompetitive action" and provides that "the proceeding,
of a superior product, business acumen, or historic
record, or communication is not confidential to the extent it is
accident"-circumstances that either benefit the consumer
or are outside the flan's control-will defeat a claim of considered relevant." 64 Relevance cannot be detennined in
isolation of the elements of an asserted cause of action.
monopoly. 54 Claims of attempted monopolization require
the further showing that the defendant "pose[s] a danger of
*8 Dr. Gomez's contrary construction treats the tenns action
monopolization," because judging unilateral conduct absent
actual potential to achieve a monopoly would "risk that and conduct as synonymous, 65 but as we have previously
the antitrust laws will dampen the competitive zeal of a noted, this Court has "equated 'action' with 'suit.' " 66
single aggressive entrepreneur." 55 Similarly, in scrutinizing Although we have not previously discussed the meaning of
a proposed merger, the "economic efficiencies produced the word action in this particular context, we have held that
generally the term is "synonymous with 'suit,' which is a

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In re Memorial Hermann Hospital System, -S.W.3d-(2015)

demand of one's rights in court." 67 Had the Legislature property has been injured by reason of any conduct declared
intended the focus to be on the defendant's conduct apart from unlawful" in the Act. 80 This requires a plaintiff to prove
any asserted cause of action, it would have been more natural "antitrust injury, which is to say injury of the type the
to say "an anticompetitive act" or "anticompetitive conduct." antitrust laws were intended to prevent and that flows from
But the Legislature chose the term "action," which is a well- that which makes defendants' acts unlawful." 81 Furthermore,
68
established legal term of art synonymous with lawsuit. pennissible recovery is limited to "actual damages sustained"
This meaning also better fits the parallelism of the phrases as a result of the unlawful conduct. 82 The damages must
"anticompetitive action" 69 and "a civil rights proceeding" 70 "reflect the anticompetitive effect either of the violation or of
in subsection (b). anticompetitive acts made possible by the violation" 83 -in
other words, "the type of loss that the claimed violations of
At any rate, the exception's reference to relevance confirms
the antitrust laws would be likely to cause." 84
that the Legislature intended the term action to refer to a "civil
or criminal judicial proceeding." 71 Our rules of evidence In contrast, tortious interference with business relations
provide that evidence is relevant if "it has any tendency "provides a remedy for injurious conduct that other tort
to make a fact more or less probable than it would be actions might not reach ... but only for conduct that is
without the evidence" and if that "fact is of consequence in already recognized to be wrongful under the common law
determining the action." 72 A purely voluntary showing that or by statute." 85 Thus, in Wal-Mart Stores, Inc. v. Sturges,
the defendant's conduct is anticompetitive cannot constitute we provided the example of "a defendant who threatened
a fact of consequence in a lawsuit-the limited waiver of a customer with bodily harm if he did business with the
confidentiality for proceedings, records, and communications
plaintiff." 86 We stated that such a defendant would be
"relevant to an anticompetitive action" 73 can only apply if liable because the defendant's "conduct toward the customer
the plaintiff asserts a cause of action that requires proof of -assault-was independently tortious," even though the
anticompetitive conduct or effects. 74 plaintiff would not be able to sue the defendant for the assault
itself. 87
In light of the rarity of claims that require proof of a net
anticompetitive effect, as a practical matter, our interpretation In sum, we hold that the exception to the medical peer review
will not greatly expand the scope of an "anticompetitive committee privilege for anticompetitive actions applies when
action" beyond valid antitrust claims. However, our caselaw the plaintiff asserts a cause of action that requires proof
has already identified at least one cause of action that that the conduct at issue has "a tendency to reduce or
potentially falls within the interstice between anticompetitive
eliminate competition" 88 that is not offset by countervailing
and antitrust-tortious interference with prospective business
procompetitive justifications. 89
relations. 75 As we have previously held, recovery for
tortious interference with a prospective business relation
requires a plaintiff to "prove that the defendant's conduct D. Subsection (b) requires a plaintiff to plead, not
was independently tortious or wrongful" as an element of present evidence of, an anticompetitive action.
the cause of action. 76 Thus, even without asserting a cause We also reject Memorial Hermann's contention that section
of action under the TFEAA, 77 a plaintiff who asserts that 160.007(b) conditions its exception to confidentiality on
a defendant's conduct is independently wrongful because it the plaintiffs satisfaction of an evidentiary burden. The
Legislature knows how to provide this type of gatekeeping
violates the laws of antitrust 78 would, as part of proving
the violation, be required to show a negative effect on function, 90 and subsection (b) is devoid of any language
competition. indicating intent to do so. The statute does not reference
expert reports, 91 affidavits, 92 or categories of evidence
*9 Such a plaintiff would still need to plead a valid antitrust to be considered. 93 Significantly, other than requiring a
violation, however, he would not need to plead a valid "preliminary finding" that the material be "relevant to
antitrust claim. 79 The TFEAA grants a private right of an anticompetitive action," 94 subsection (b) contains no
action to bring suit, but only to persons ''whose business or
indication of a threshold quantum of proof. 95 Determinations

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In re Memorial Hermann Hospital System, -S.W.3d--(2015)

of potential relevancy or privilege typically do not require a
litigant to produce evidence on the merits of his claim-as E. Dr. Gomez pleaded an anticompetitive action.
Dr. Gomez alleged that the defendants intentionally interfered
opposed to the merits of the privilege. 96 Furthermore, it is
with his "longstanding and continuous relationships with
counter to the notion that "[a]ffording parties full discovery
referring physicians in the West Houston and Katy medical
promotes the fair resolution of disputes by the judiciary," 97 community" and that the defendants' acts constituted a
to condition access to documents that could substantiate a "concerted effort ... to restrain competition in and monopolize
plaintiffs claim on the plaintiffs ability to substantiate his surgical procedures." Dr. Gomez also asserted that the
claim without the documents' aid. defendants' acts "constitute illegal monopolization, attempted
monopolization, and/or conspiracy to monopolize under
*10 Although Memorial Hermann's concern that plaintiffs applicable Texas law."
may circumvent the privilege through artful pleading is a
compelling one, defendants are not left without protection. Memorial Hermann does not dispute that Dr. Gomez
First, by permitting defendants to recover costs incurred alleged that Memorial Hermann violated the TFEAA, but
from defending against frivolous or bad faith pleadings, rather, argues Dr. Gomez failed to plead a valid antitrust
section 160.00B(c) discourages the addition of groundless claim. Memorial Hermann challenges the sufficiency of
allegations of injury to competition. 98 Second, nothing in Dr. Gomez's allegations, taken as true, to establish (1) a
section 160.007 prevents defendants from seeking, as they legally cognizable injury to competition, and (2) an adverse
do in all civil cases, to limit discovery on the grounds effect on competition in the relevant market. The crux of
that ''the discovery sought is unreasonably cumulative or Memorial Hermann's argument is its contention that caselaw
duplicative, or is obtain [able] from some other source that overwhelmingly establishes that a claim for an injury to
is more convenient, less burdensome, or less expensive." 99 a single physician at a single hospital is insufficient. We
Defendants may also assert that "the burden or expense of the disagree with Memorial Hermann's characterization of Dr.
proposed discovery outweighs its likely benefit, taking into Gomez's allegations as well as its characterization of the law.
account the needs of the case ... the importance of the issues
I
at stake in the litigation, and the importance of the proposed *11 We "construe the TFEAA in harmony with federal
antitrust caselaw to promote competition for consumers'
discovery in resolving the issues." 100 Defendants may also
seek protective orders to protect themselves "from undue benefit." 106 "Because our own caselaw is limited, we rely
burden, unnecessary expense, harassment, annoyance, or heavily on the jurisprudence of the federal courts." 107
invasion of personal, constitutional, or property rights." 101
The TFEAA declares that "[e]very contract, combination, or
Finally, because the statute provides that information "is conspiracy in restraint of trade or commerce is unlawful," and
that "it is unlawful for any person to monopolize, attempt to
not confidential to the extent it is considered relevant," 102
monopolize, or conspire to monopolize any part of trade or
the exception's scope is still narrower than the otherwise
applicable scope of discovery, which permits discovery of commerce." 108 As discussed above, however, the TFEAA
information that "appears reasonably calculated to lead to does not operate as a qui tam provision, 109 but rather limits
the discovery of admissible evidence." 103 Defendants may the ability to bring suit under the TFEAA to persons "whose
further limit the scope of discovery through the judicious use business or property has been injured by reason of any
of special exceptions, which are "the appropriate vehicle ... conduct declared unlawful in Subsection (a), (b), or (c) of
by which an adverse party may force clarification of vague Section 15.05 of [the] Act." 110 Thus, courts have held that
pleadings," 104 thereby narrowing the range of facts that will standing to pursue an antitrust suit exists only if a plaintiff
shows (1) injury-in-fact, an injury to the plaintiff proximately
be of consequence in the action. lOS
caused by the defendant's conduct; (2) antitrust injury; and (3)
proper plaintiff status, which assures that other parties are not
As such, we hold that judges are to determine a subsection (b)
"preliminary finding" on the basis of the plaintiffs pleadings. better situated to bring suit. 111
We now tum to the application of subsection (b) to Dr.
Gomez's pleadings. On its own, the elimination of a single competitor does
not constitute proof of an anticompetitive effect for every

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In re Memorial Hermann Hospital System, -- S.W.3d---(2015)

market and context. 112 Claims of improper restraint of trade competition in that market." 125 However, the disposition
require a plaintiff to "plead ... a reduction of competition of the question of "a dangerous probability of achieving
in the market in general and not mere injury to their own monopoly power" is "typically one that is not resolved at the
positions as competitors in the market." 113 However, it is pleading stage unless it is clear on the face of the complaint
also well established that the United States Supreme Court has that the 'dangerous probability' standard cannot be met as a
"forb[idden] as a matter of law, a defense based upon a claim matter of law." 126
that only one small firm, not competition itself, had suffered
114 *13 Here, Dr. Gomez is not complaining that the defendants
mJury,
• • " because "[m ]onopoIy can as sure1y thri ve by the
elimination of such small businessmen, one at a time, as it can have prevented him from obtaining privileges at any of the
hospitals in the area, but rather that the defendants have
by driving them out in large groups." 115
prevented him from obtaining referrals. 127 According to Dr.
*12 "In order to successfully allege injury to competition, Gomez's petition, the number one source of referrals for a
a ... claimant may not merely recite the bare legal conclusion cardiovascular surgeon is a cardiologist, and his ability to
compete-regardless of whether he has staff privileges with
that competition has been restrained unreasonably." 116 At
one hospital or another-is contingent upon his reputation
a minimum, the claimant must "sketch the outline of the
antitrust violation with allegations of supporting factual with those cardiologists. 128 The alleged injury to Dr.
Gomez's reputation is therefore not confined to a single
deta1·1." 117 Whether the practice
. constitutes
· ·
an improper
restraint of trade will depend upon whether the plaintiffs hospital, 129 particularly if Dr. Gomez is able to show that
allegations "suggest[ ] a market in which the removal of Memorial Hermann has the capacity to impact a substantial
[a single competitor] from the pool of competing sellers number of the market's cardiologists' willingness to refer
would adversely and unreasonably affect overall competitive patients to him. 130
conditions." 118 Under the rule ofreason, 119 courts consider
"a variety of factors, including 'specific information about the Dr. Gomez also alleges that by disseminating false
relevant business, its condition before and after the restraint information about his mortality rate, Memorial Hermann
was imposed, and the restraint's history, nature, and effect.' cast doubt on robotic heart surgery procedures throughout
Houston, inoculating itself from competition from a medical
" 120 A s sueh , "the ad equacy o f a phys1c1an
. . 's contentions
.
service that Memorial Hermann could no longer offer. The
regarding the effect on competition is typically resolved after
deposition excerpts attached to and quoted in Dr. Gomez's
discovery, either on summary judgment or after trial." 121 petition suggest that "referral patterns changed" and that
Dr. Gomez used to be the "Number One" physician, but
A successful claim of monopoly requires proof of "(1) that following the conduct at issue, another physician, a Dr.
the possession of monopoly power in the relevant market
Gibson, received more referrals. 131 Dr. Gomez also suggests
and (2) the willful acquisition or maintenance of that
in his briefing that Dr. Macris may have improperly benefitted
power as distinguished from growth or development as
from an increase in patients due to Dr. Gomez's decrease in
a consequence of a superior product, business acumen,
patients.
or historic accident." 122 "The term 'relevant market'
encompasses notions of geography as well as product use, Dr. Gomez alleges that as a result of the loss of trust in
quality, and description. The geographic market extends to robotic heart surgery, patients would incur $50,000 or more
the 'area of effective competition' ... where buyers can turn
in medical expenses due to longer hospital stays. 132 Dr.
123
for alternate sources of supply." Demonstrating attempted Gomez also disputes the existence of any procompetitive
monopolization requires proof "(1) that the defendant has 133
justifications for presenting manipulated mortality data.
engaged in predatory or anticompetitive conduct with (2) a
As Dr. Gomez has not yet had an opportunity to obtain full
specific intent to monopolize and (3) a dangerous probability
discovery, we are not in a position to predict whether he will
of achieving monopoly power." 124 ultimately be able to sustain his burden of proof on these
issues, however, his petition sufficiently alleges an injury to
Under either claim, it is "necessary to consider the relevant
competition under the TFEAA. 134
market and the defendant's ability to lessen or destroy

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In re Memorial Hermann Hospital System, -- S.W.3d - (2015)

*14 As for Memorial Hermann's arguments regarding Dr. West, 140 Dr. Gomez could rely on the violation to show that
Gomez's identification of a relevant market in which the the interference with his prospective business relations was
alleged injury to competition occurred, we hold that Dr.
independently wrongful. 141
Gomez's petition sufficiently pleads viable markets. It may
be unlikely that the relevant market for a valid injury to
*15 We hold that Dr. Gomez's petition presents multiple
competition can be limited to the market for robotic-assisted
viable anticompetitive actions.
heart surgery. For example, if Memorial Hermann does not
have a heart surgeon capable of performing those surgeries,
then Memorial Hermann could not have hoped to capture the F. The trial court did not abuse its discretion in making
patients who would otherwise have gone to Dr. Gomez. 135 a preliminary finding that the documents in question are
On the other hand, if those patients are willing to substitute relevant to the anticompetitive actions pleaded by Dr.
traditional heart surgery procedures, then a cross-elasticity Gomez.
of demand between the two types of procedures must exist, The trial court ordered Memorial Hermann to produce a
in which case review of the competitive impact cannot be number of documents. We review the trial court's preliminary
limited to robotic-assisted heart procedures. 136 finding of relevance to each set of documents in the sealed
record for an abuse of discretion. 142
However, although the trial court noted that Dr. Gomez
alleged that Memorial Hermann's actions "impacted the Memorial Hermann argues that the various categories
referral market for heart surgeons specializing in robotic- of documents are not relevant to Dr. Gomez's alleged
assisted heart surgeries in Houston," the trial court did not anticompetitive action because (1) a number of the documents
base its conclusion that the anticompetitive exception applied predate November 2011, which Dr. Gomez identified
on a finding of a particular market. Dr. Gomez's petition in his deposition as the relevant time period for the
alleges multiple service markets, including the market for case; (2) Dr. Gomez's action involves the purportedly
surgical procedures, the heart surgery market, and the referral improper publication of false material through different
market. Precisely because Dr. Gomez alleged so many peer review committees, but he has not alleged that
different potential markets for his claims-as Memorial the documents themselves were publicly disseminated; (3)
Hermann itself complains 137 -the flaw at this stage can only certain documents do not discuss individual or aggregated
be with the state of evidence regarding the relevant market physician mortality rates, instead focusing on physician
and not with Dr. Gomez's pleadings. The same criticism volume; (4) certain documents do not refer to Dr. Gomez;
applies to Memorial Hermann's complaints about Dr. Gomez and (5) with regard to one particular slide, the slide is not
having alternatively pleaded different geographies for the relevant to any actionable antitrust conduct under Texas
relevant market for services. law. We conclude that the majority of the documents in
the sealed record are relevant to essential elements of
Finally, Dr. Gomez's allegations suggest that Memorial the anticompetitive causes of actions that Dr. Gomez has
Hermann targeted not only his own ability to compete for asserted.
surgeries, but also Methodist West's competitive position.
Dr. Gomez claims the destruction of his reputation served to Before discussing the relevance of otherwise protected
deter Memorial Hermann's other physicians from practicing documents, however, we note that some of the documents
at Methodist West or from referring patients to physicians included in the sealed record do not qualify for protection
under the medical peer review committee privilege. Any
who are not affiliated with Memorial Hermann. 138 Dr.
affidavits prepared for and submitted to the trial court are
Gomez's allegations, taken as true, suggest that Memorial
neither records nor proceedings of the committees at issue nor
Hermann may have attempted to ( 1) intimidate a number of
communications to that committee. They therefore receive no
physicians from making referrals to specialists at Methodist
protection under either the medical peer review committee
West, thus cutting off Methodist West's patient base, and
privilege or the medical committee privilege. The committee
(2) intimidate other doctors-Methodist West's "supply" for
bylaws attached as exhibits to the affidavits also do not
its services-from practicing at Methodist West. 139 Even qualify as a record of, proceeding of, or communication to
if Dr. Gomez himself would not have standing to bring a
the committee, and are therefore not protected. 143 However,
suit under the TFEAA based on antitrust injury to Methodist
the remaining documents in the sealed record are records

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In re Memorial Hermann Hospital System, -S.W.3d-(2015)

or proceedings of the committees, or communications to the We note that the data on mortality and physician volume are
committee. associated with assigned numbers rather than the names of
particular physicians in a number of the documents. However,
Dr. Gomez alleges that Memorial Hermann manipulated and although Memorial Hermann would be free to present
disseminated data on his mortality rates in order to harm evidence suggesting that the code effectively concealed the
his ability to compete for surgical procedures as well as to physicians' identities, the existing overlap between some of
intimidate other doctors from defecting to Methodist West. the coded and un-coded documents is sufficient to support a
As such, the withheld documents are relevant if they would preliminary finding that the presentations' audiences as well
tend to make more or less probable Dr. Gomez's allegations as a judicial fact finder would be able to understand which
that Memorial Hermann disseminated manipulated data on physicians' rates and volumes appear in the documents.
Dr. Gomez's mortality rates, that the dissemination caused
Dr. Gomez's referral rates to decline, or that other doctors Other documents are relevant because they discuss Memorial
were fearful that they could also be targeted in such a fashion. Hermann's plans to differentiate itself from other hospitals'
These fact issues are at the core of Dr. Gomez's claims cardiovascular surgery departments. This focus could make
that Memorial Hermann violated the TFEAA and tortiously more or less probable the likelihood that Dr. Gomez's unique
interfered with his prospective business relations. services were of sufficient importance to provide the impetus
for the alleged improper conduct.
*16 A number of the documents at issue are relevant
because they either contain data on mortality rates of Another category of relevant documents consists of maps
cardiovascular surgeons, discuss obtaining or direct others to that identify the locations of doctors or hospitals in the
obtain mortality rates of cardiovascular surgeons, establish surrounding geographic area, and maps demarcating the
plans to review mortality data, or reference appropriate geographic areas from which Memorial Hermann draws
parameters for calculating mortality data. Even if Memorial its patients. Because they provide a basis for determining
Hermann never published some of the documents that contain the feasibility of alternatives for patients in the area, these
data on mortality rates, the data could still be relevant to documents-in conjunction with expert testimony-could
the veracity of any data that Memorial Hermann did publish, make a particular geographic market for Dr. Gomez's claims
particularly if discrepancies appeared between the different under the TFEAA more or less probable.
reports of the data. Similarly, evidence establishing that
Memorial Hermann did not follow what it knew to be the On the other hand, Exhibit B to E. Leticia Mireles' affidavit,
appropriate parameters for calculating mortality data could which consists of an email to a number of persons, is not
support an inference that Memorial Hermann intended to cast relevant to Dr. Gomez's allegations. The body of the email
doubt on Dr. Gomez's ability as a surgeon. does not include any information that would make any of
Dr. Gomez's allegations more or less probable. Although the
The documents discussing physician volume are relevant. email includes an attachment, nothing before us suggests
Memorial Hermann's argument that these documents lack that a record of the sending of this particular attachment to
any discussion of Dr. Gomez's mortality rates does not a number of persons would make Dr. Gomez's allegations
negate the documents' potential relevance to Dr. Gomez's more or less probable, because the attachment itself does not
allegations that he suffered a loss of referrals. The documents contain any data about Dr. Gomez or a relevant competitive
could also tend to prove or disprove a corresponding market. This email, appearing on pages 365-68 of the sealed
increase in referrals to Memorial Hermann's other physicians, record, is therefore not relevant to an anticompetitive action,
which could support Dr. Gomez's allegations that Memorial and retains its protection under the medical peer review
Hermann violated the TFEAA. Furthermore, although the committee privilege.
data on physician volume predates the time period in which
Dr. Gomez alleges his referral rate declined, such data could *17 In addition, the documents appearing on pages 119,
still provide a baseline for measuring the effect of the alleged 122-23, 129-30, 135,138,140,142,145, 154-55, 160-61,
conduct. Documents relating to referral patterns, either of 166-67, 174-75, 180-81, 188-89, 195-98, and 243 of the
particular physicians or Memorial Hermann itself, are also sealed record also retain their protection under the medical
relevant for the same reasons. peer review committee privilege. These documents do not
discuss any data on mortality rates, physician volume, or

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In re Memorial Hermann Hospital System, -- S.W.3d--(2015)

referral pattern. Nor do they discuss plans to disseminate such the same exception, 153 the "records and proceedings of a
data, any staffing concerns of the hospital, or the competitive medical committee are confidential and are not subject to
positions of the hospital or Dr. Gomez. These documents lack
court subpoena." 154
any apparent relevance to Dr. Gomez's claims, and we hold
the trial court therefore abused its discretion in compelling
*18 Section 161.032 of the Health and Safety Code suggests
Memorial Hermann to produce them.
that medical committees are at least potentially distinct

However, the trial court did not abuse its discretion in making from medical peer review committees. 155 However, the
a preliminary finding that the other materials in the record definitions of the two committees contain significant overlap.
are relevant to an anticompetitive action. We therefore tum to Provided that the other statutory requirements are met, 156
whether these documents enjoy any residual protection under the definition of a medical peer review committee includes
the medical committee privilege. committees "of a health care entity, the governing board of
a health care entity, or the medical staff of a health care
entity." 157 But any "entity ... that provides or pays for
m. When both are applicable, the anticompetitive medical care or health services" and "follows a formal peer
exception to the medical peer review committee privilege
review process to further quality medical care or health care"
limits the provision of confidentiality under the medical
committee privilege. will be considered a health care entity. 158
This question is contingent on the extent to which overlapping
provisions of two different statutes can concurrently As such, although the committees of some health care entities

operate. 144 To the extent possible, we will construe the may not be medical committees, 159 every committee of
different provisions in a way that harmonizes rather than every entity listed in the definition of a medical committee
that "follows a formal peer review process to further quality
conflicts. 145 When the provisions are irreconcilable, the
general rule is that the terms of the later-enacted statute should medical care or health care" 160 will be considered a medical
peer review committee-unless the committee does not
control. 146 However, conflicts between general and specific
"operate[ ] under written bylaws approved by the policy-
provisions favor the specific, and when the literal terms of the
making board or the governing board of the health care
two provisions cannot both be true, the terms of the specific
entity." 161 By extension, no medical committee that satisfies
provision ordinarily will prevail. 147 We will construe the
these two additional provisions necessary to be deemed a
general provision as controlling only when the manifest intent
medical peer review committee can credibly claim that its
is that the general provision will prevail and the general
records and proceedings are not governed by section 160.007
provision is also the later-enacted statute. 148
of the Occupations Code. 162

Section 161.031 of the Health and Safety Code broadly
*19 Here, because Memorial Hermann stipulated that the
defines a "medical committee" to include "any committee,
relevant committees are medical peer review committees,
including a joint committee" of certain types of entities,
the documents at issue cannot be considered confidential
including "a hospital'' or "a medical organization." 149 under section 161.032(a) of the Health and Safety Code
Medical committees may be "appointed ad hoc to conduct a without ignoring section 160.007 of the Occupations Code.
specific investigation or established ... under the bylaws or Memorial Hermann's argument that a document should enjoy
rules of the organization or institution." 150 the combined protection of all applicable privileges relies on
our previous references to section 161.032 of the Health and
The records and proceedings of a medical committee are Safety Code and section 160.007 of the Occupations Code
governed by section 161.032 of the Health and Safety as "the medical committee privilege" and "the medical peer
Code. With the exception of "records maintained in the review committee privilege," respectively. 163 However,
regular course of business by a hospital ... [or] medical the statutes themselves confer confidentiality on records
organization," 151 medical committees and their members and proceedings-not the committee itself. 164 Because the
may use the committee's records and proceedings "only in records and proceedings here are subject to both sections,
the exercise of proper committee functions." 152 Subject to both sections' provisions regarding confidentiality apply.

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In re Memorial Hermann Hospital System, --S.W.3d-(2015)

That the records and proceedings of some medical peer committee, section 160.007(b) provides that those documents
review committees may not be considered records and are "not confidential to the extent [they are] considered
proceedings of a medical committee-or the reverse-has no relevant." 168 It is impossible to reconcile that provision with
bearing on the question before us, because such documents a provision stating that the same documents "are confidential
would never be subject to both sections. and are not subject to court subpoena." 169 Section 160.007
is both the later enacted statute as well as the more specific
Because the documents are subject to both sections, any
regarding when records and proceedings are confidential. 170
reconcilable provisions will apply in concert. 165 For We therefore hold that the records and proceedings of a dual
example, a medical committee that is also a medical peer medical committee and medical peer review committee do
review committee could not use its records or proceedings not enjoy any greater confidentiality under section 161 .032(a)
in the exercise of improper committee functions simply than they do under section 160.007(b).
because section 160.007 does not explicitly forbid it. 166
By the same token, a dual medical committee and medical
peer review committee could not rely on the provision of CONCLUSION
confidentiality in section 16I.032(a) to shirk its duty under We hold that the trial court abused its discretion in ordering
section 160.007(d) to provide a physician with a written Memorial Hermann to produce pages 119, 122-23, 129-30,
copy of its recommendation to suspend the physician's 135, 138, 140, 142, 145, 154-55, 160-61, 166-67, 174-
75, 180-81, 188-89, 195-98, 243, and 365-68 of the sealed
privileges. 167
record. We conditionally grant Memorial Hermann's writ of
mandamus, directing the trial court to modify its discovery
However, a record or proceeding is either confidential or
order insofar as the order compelled production of those
not; it cannot be both. As we have already discussed at
documents. We are confident the trial court will comply, and
length, the majority of the documents that Dr. Gomez
the writ will issue only if it does not. In all other respects,
seeks are relevant to an anticompetitive action. Because
Memorial Hermann's petition for writ of mandamus is denied.
Memorial Hermann has stipulated that those documents
are the records and proceedings of a medical peer review

Footnotes
1 In re Living Ctrs. of Tex., Inc., 175 S.W.3d 253,258 (Tex.2005).
2 Memorial Hermann Hospital System is a business entity organized under the laws of the State of Texas that controls
and manages a number of hospitals, out-patient facilities, and other health care seivice centers throughout the Houston
Metropolitan area, Including Memorial Hermann Memorial City Medical Center.
3 Michael P. Maoris, M.D., P.A. is a professional association organized under the laws of Texas, and Michael P. Maoris,
M.D. is its principal officer.
4 Mr. Alexander is the Chief Executive Officer of Memorial Hermann Memorial City Medical Center.
5 Memorial City is one of Memorial Hermann Hospital System's medical campuses.
6 The facts described in this section are drawn from allegations in Dr. Gomez's live petition and attached exhibits. They
are presented in the light most favorable to the trial court's finding.
7 At the time of the meeting, Dave Jones was the CEO of Memorial City and Dr. Joel Abramowitz was the Chief of Staff.
Shortly after the meeting took place, Mr. Alexander became CEO.
8 Dr. Gomez disputes whether the committee to which Dr. Macris presented the data falls within the definition of a medical
peer review committee.
9 In re Mem'I Hermann Hosp. Sys., 2014 WL 866069 (Tex.App.-Houston [1st Dist.] March 4, 2014, orig. proceeding).
10 In re E.I. DuPont de Nemours & Co., 136 S.W.3d 218, 222 (Tex.2004).
11 State v. Low,y, 802 S.W.2d 669, 671 (Tex.1991); Jordan v. Court of Appeals for Fourth Supreme Judicial Dist., 701
S.W.2d 644, 648-49 (Tex.1985).
12 In re Living Ctrs. of Tex., Inc., 175 S.W.3d at 261; Lowry, 802 S.W.2d at 671.
13 In re E.I. DuPont de Nemours & Co., 136 S.W.3d at 222 (quoting Tex. Tech. Univ. Health Scis. Ctr. v. Apodaca, 876
S.W.2d 402,407 (Tex.App.-EI Paso 1994, writ denied)).
14 Wa/kerv. Packer, 827 S.W.2d 833, 839-40 (Tex.1992).

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In re Memorial Hermann Hospital System, -S.W.3d-(2015)

15 Flores v. Fourth Court of Appeals, 777 S.W.2d 38, 41 (Tex.1989).
16 Id.
17 Walker, 827 S.W.2d at 840 ("In determining whether the trial court abused its discretion in the present case, we treat the
trial court's erroneous denial of the requested discovery on the sole basis of Russell as a legal conclusion to be reviewed
with limited deference to the trial court."); see also Marathon Oil Co. v. Moye, 893 S.W.2d 585, 589 (Tex.App.-Dallas
1994, orig. proceeding) ('When a trial court's interpretation of discovery law is at issue, we treat the trial court's order as
a legal conclusion. We review the legal conclusion with limited deference to the trial court.").
18 TEX. OCC. CODEE § 151.002(a)(8); see also id. § 151.002(a)(5) (defining "Health care entity").
19 In re Univ. of Tex. Health Ctr. at Tyler, 33 S.W.3d 822,825 (Tex.2000); see also TEX. OCC. CODEE§ 160.007(a) ("Except
as otherwise provided by this subtitle, each proceeding or record of a medical peer review committee is confidential, and
any communication made to a medical peer review committee is privileged.").
20 Mem'I Hosp.-The Woodlands v. Mccown, 927 S.W.2d 1, 3-5 (Tex.1996).
21 Id. at 10; see also In re Living Ctrs. of Tex., Inc., 175 S.W.3d at 257.
22 In re Living Ctrs. of Tex., Inc., S.W.3d at 257.
23 Id.
24 Id. at 260; Mccown, 927 S. W.2d at 1o.
25 Irving Healthcare Sys. v. Brooks, 927 S.W.2d 12, 16 (Tex.1996).
26 TEX. acc. CODEE§ 160.007(c); see also id.§ 151.002(a)(1) (" 'Board' means the Texas Medical Board.").
27 Id. § 160.007(d).
28 Id.
29 See id. § 160.007(f).
30 Id. § 160.007(e).
31 TEX. HEALTH & SAFETY CODE § 161.032(f). However, the fact that a committee reviewed such records is protected.
See In re Living Ctrs. of Tex., 175 S.W.3d at 257 ("The peer review privilege protects the products of the peer review
process: reports, records (including those produced for the committee's review as part of the investigative review process),
and deliberations."); Brooks, 927 S.W.2d at 18.
32 TEX. OCC. CODEE § 160.007(b).
33 See id.§ 151.002(a)(8)(B).
34 Compare id. § 151.002(a)(7) (defining medical peer review) with id. § 151.002(a)(8) (defining medical peer review
committee).
35 TEX. acc. CODEE§ 160.007(b).
36 Tex. Dep'tof Transp. v. Needham, 82 S.W.3d 314,318 (Tex.2002).
37 LibertyMut. Ins. Co. v. Garrison Contractors, Inc., 966 S.W.2d 482,484 (Tex.1998).
38 Combs v. Roark Amusement & Vending, L.P., 422 S.W.3d 632,635 (Tex.2013).
39 Tex. Dep't of Transp. v. City of Sunset Valley, 146 S.W.3d 637, 642 (Tex.2004).
40 Needham, 82 S.W.3d at 318.
41 TGS-NOPEC Geophysical Co. v. Combs, 340 S.W.3d 432,439 (Tex.2011).
42 Jordan, 701 S.W.2d at 647.
43 See, e.g., TEX. OCC. CODEE§§ 261.051 (dental peer review committee); 202.454(b) (podiatric peer review committee);
564.103(b) (pharmacy peer review committee).
44 BLACK'S LAW DICTIONARY 113 (10th ed. 2014).
45 Id. at 1400.
46 Id. at 344.
47 Id. at 113.
48 See id. at xxxii (noting that "(b]ullets are used to separate definitional information (before the bullet) from information that
is not purely definitional (after the bullet), such as encyclopedic information or usage notes").
49 Bd. of Trade of City of Chi. v. United States, 246 U.S. 231, 238, 38 S.Ct. 242, 62 L.Ed. 683 (1918).
50 Id.; see also State Oil Co. v. Khan, 522 U.S. 3, 10, 118 S.Ct. 275, 139 L.Ed.2d 199 (1997) ("Although the Sherman Act, by
its terms, prohibits every agreement 'in restraint of trade,' this Court has long recognized that Congress intended to outlaw
only unreasonable restraints."); F. T.C. v. Ind. Fed'n of Dentists, 476 U.S. 447,459,106 S.Ct. 2009, 90 L.Ed.2d 445 (1986)
("Absent some countervailing procompetitive virtue-such as, for example, the creation of efficiencies in the operation

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In re Memorial Hermann Hospital System, ••• S.W.3d •••• (2015)

of a market or the provision of goods and services ...-such an agreement limiting consumer choice by impeding the
'ordinary give and take of the market place' cannot be sustained under the Rule of Reason."); United States v. Trans-
Missouri Freight Ass'n, 166 U.S. 290,342, 17 S.Ct. 540, 41 L.Ed. 1007 (1897) (''The necessary effect of the agreement
is to restrain trade or commerce, no matter what the intent was on the part of those who signed it.").
51 Ca/. Dental Ass'n v. F. T.C., 526 U.S. 756, 770, 119 S.Ct. 1604, 143 L.Ed.2d 935 (1999).
52 Leegin Creative Leather Prods., Inc. v. PSKS, Inc., 551 U.S. 877,886, 127 S.Ct. 2705, 168 L.Ed.2d 623 (2007).
53 Nat'/ Collegiate Athletic Ass'n v. Bd. of Regents of Univ. of Ok., 468 U.S. 85, 107, 104 S.Ct. 2948, 82 L.Ed.2d 70 (1984)
(internal quotation marks omitted). See also TEX. BUS. & COMM. CODE § 15.04 ("The purpose of this Act is to maintain
and promote economic competition in trade and commerce occurring wholly or partly within the State of Texas and to
provide the benefits of that competition to consumers in the state.").
54 United States v. Grinnell Corp., 384 U.S. 563, 570-71, 86 S.Ct. 1698, 16 L.Ed.2d 778 (1966).
55 Copperweld Corp. v. Independence Tube Corp., 467 U.S. 752, 767-68, 104 S.Ct. 2731, 81 L.Ed.2d 628 (1984); Swift &
Co. v. United States, 196 U.S. 375, 402, 25 S.Ct. 276, 49 L.Ed. 518 (1905) ("Not every act that may be done with intent
to produce an unlawful result is unlawful, or constitutes an attempt. It is a question of proximity and degree.").
56 F. T.C. v. Procter& Gamble Co., 386 U.S. 568,597, 87 S.Ct. 1224, 18 L.Ed.2d 303 (1967) (emphasis added).
57 Id.
58 Copperweld Corp., 467 U.S. at 767-68, 104 S.Ct. 2731.
59 BLACK'S LAW DICTIONARY 113 (10th ed. 2014) (emphasis added).
60 See, e.g., Cmty. Commc'ns Co. v. City of Boulder, Colo., 455 U.S. 40, 48,102 S.Ct. 835, 70 L.Ed.2d 810 (1982) (holding
that federal antitrust law does not 11prohibit[ ] a State, in the exercise of its sovereign powers, from imposing certain
anticompetitive restraints E.R.R. Presidents Conference v. Noerr Motor Freight, Inc., 365 U.S. 127, 136, 81 S.Ct. 523,
11
);

5 L.Ed.2d 464 (1961) ("[W]here a restraint upon trade or monopolization is the result of valid governmental action, as
opposed to private action, no violation of the [Sherman] Act can be made out.''); Parker v. Brown, 317 U.S. 341, 351,
63 S.Ct. 307, 87 L.Ed. 315 (1943) ( ''The Sherman Act makes no mention of the state as such, and gives no hint that
it was intended to restrain state action or official action directed by a state."). See also TEX. BUS. & COMM. CODE §
15.05(g) ("Nothing In this section shall be construed to prohibit activities that are exempt from the operation of the federal
antitrust laws ... except that an exemption otherwise available under the McCarran-Ferguson Act ... does not serve to
exempt activities under this Act.").
61 Noerr Motor Freight, Inc., 365 U.S. at 136, 81 S.Ct. 523 ("[T]he Sherman Act does not prohibit two or more persons
from associating together in an attempt to persuade the legislature or the executive to take particular action with respect
to a law that would produce a restraint or a monopoly."); see also Cal. Motor Transp. Co. v. Trucking Unlimited, 404
U.S. 508, 92 S.Ct. 609, 611, 30 L.Ed.2d 642 (1972) (extending Noerr to "the approach of citizens ... to administrative
agencies ... and to courts").
62 Brown v. Pro Football, Inc., 518 U.S. 231, 237, 116 S.Ct. 2116, 135 L.Ed.2d 521 (1996) ("[T]he implicit exemption
recognizes that, to give effect to federal labor laws and policies and to allow meaningful collective bargaining to take place,
some restraints on competition imposed through the bargaining process must be shielded from antitrust sanctions.");
Connell Constr. Co. v. Plumbers & Steamfitters Local Union No. 100,421 U.S. 616, 621-22, 95 S.Ct. 1830, 44 L.Ed.2d
418 (1975) (holding that certain federal statutes "declare that labor unions are not combinations or conspiracies in restraint
of trade, and exempt specific union activities, including secondary picketing and boycotts, from the operation of the
antitrust laws").
63 11
See TEX. OCC. CODEE§ 160.007(b) (limiting the exception's application to civil rights proceeding[s] brought under
42 U.S.C. Section 1983").
64 Id. (emphases added).
65 See BLACK'S LAW DICTIONARY 35 (10th ed. 2014) (listing "[t]he process of doing something; conduct or behavior''
as one definition of action).
66 Thomas v. Oldham, 895 S.W.2d 352,356 (Tex.1995).
67 Id.
68 See id. See also BLACK'S LAW DICTIONARY 35 (10th ed. 2014) (''The terms 'action' and 'suit' are nearly if not quite
synonymous. But lawyers usually speak of proceedings in courts of law as 'actions,' and those In courts of equity as
'suits.' " (quoting Edwin E. Bryant, The Law of Pleading Under the Codes of Civil Procedure 3 (2d ed. 1899))).
69 TEX. acc. CODEE § 160.007(b).
70 Id.

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71 BLACK'S LAW DICTIONARY 28 (7th ed. 1999), quoted in Jaster v. Comet II Constr., Inc., 438 S.W.3d 556, 564
(Tex.2014) (plurality op.).
72 TEX. R. EVID. 401 (emphasis added).
73 TEX. OCC. CODEE§ 160.007(b).
74 As already illustrated in our brief review of the meaning of "anticompetitive," there is no practical difference between the
terms anticompetitive conduct and anticompetitive effects as used in the caselaw, because we do not deem conduct
anticompetitive unless it has a net anticompetitive effect.
75 Memorial Hermann argues that our decision in Irving Healthcare Sys. v. Brooks, 927 S.W.2d 12 (Tex.1996), forecloses
argument that section 160.007(b)'s anticompetitive action exception encompasses routine business torts, including
interference with prospective business relations. In Brooks, we noted that ''the statute provides that if a court makes a
preliminary finding that a medical peer review committee's proceedings, records, or communications are relevant to an
anticompetitive action ... they are not confidential," but that "a similar provision for a libel action in which the plaintiff claims
malice" was "[n]oticeably absent from the statute." 927 S.W.2d at 16. We also held that the statute did not "explicitly
exclude from its confidentiality provisions any of [the plaintiff's] other causes of action." Id.
The plaintiff in Brooks sued for libel, slander, "intentional infliction of mental anguish," and interference with business
relations. Id. at 14-15. The plaintiff alleged that the defendant had "Intentionally and maliciously supplied false
information, thereby damaging or destroying [the plaintiff's] ability to gain admittance to the medical staffs of the
hospitals to which he applied." Id. Thus, Brooks did not require us to review the applicability of subsection (b), because
the trial court never made the required preliminary finding of relevance to an anticompetitive action. Furthermore,
aithough the plaintiff's "other causes of action," Included an allegation that the defendant tortiously interfered with
prospective business relations, the plaintiff did not allege that the conduct was independently wrongful because the
provision of false information had a negative effect on competition and constituted an antitrust violation. Our decision
today is therefore consistent with our holding in Brooks.
76 Wal-Mart Stores, Inc. v. Sturges, 52 S.W.3d 711, 726 (Tex.2001 ).
77 TEX. BUS. & COMM. CODE § 15.01 et seq.
78 See Sturges, 52 S. W.3d at 726 ("[A] plaintiff could recover for tortious interference by showing an illegal boycott, although
a plaintiff could not recover against a defendant whose persuasion of others not to deal with the plaintiff was lawful.").
79 See generally Phillip Areeda, Antitrust Violations Without Damages Recoveries, 89 HARV. L. REV.. 1127 (1976)
(discussing '1hree superficially paradoxical possibilities," each of which hypothesizes circumstances under which a
plaintiff might be able to prove an antitrust violation, but not be able to recover damages under the antitrust laws).
80 TEX. BUS. & COMM. CODE § 15.21 (a)(1 ).
81 Brunswick Corp. v. PuebloBowl-0-Mat, Inc., 429 U.S. 4n, 489, 97 S.Ct. 690, 50 L.Ed.2d 701 (1977); see also Austin v.
Blue Cross & Blue Shield of Ala., 903 F.2d 1385, 1389-90 (11th Cir.1990) (" 1The antitrust injury concept ..• requires the
private antitrust plaintiff to show that his own injury coincides with the public detriment tending to result from the alleged
violation. This requirement increases the likelihood that public and private enforcement of the antitrust laws will further the
same goal of increased competition.'" (quoting P. Areeda and H. Hovenkamp, Antitrust Law, 335.1, at 261 (Supp. 1987)).
82 TEX. BUS. & COMM. CODE § 15.21 (a)(1 ).
83 Brunswick Corp., 429 U.S. at 489, 97 S.Ct. 690.
84 Zenith Radio Corp. v. Hazeltine Research, Inc., 395 U.S. 100, 125, 89 S.Ct. 1562, 23 L.Ed.2d 129 (1969).
85 Sturges, 52 S.W.3d at 713.
86 Id.
87 Id. Compare Brunswick Corp., 429 U.S. at 488, 97 S.Ct. 690 (rejecting the lower court holding that "once a merger is
found to violate [section 7 of the Clayton Act], all dislocations caused by the merger are actionable, regardless of whether
those dislocations have anything to do with the reason the merger was condemned").
88 BLACK'S LAW DICTIONARY 113 (10th ed. 2014).
89 Cf. Ind. Fed'n of Dentists, 476 U.S. at 459, 106 S.Ct. 2009.
90 Cf. Bioderm Skin Care, LLC v. Sok, 426 S.W.3d 753, 756 (Tex.2014) (holding the Texas Medical Liability Act "requires
claimants asserting health care liability claims to substantiate their claims with an expert report"); Crosstex Energy Srvs.,
L.P. v. Pro Plus, Inc., 430 S.W.3d 384, 387 (Tex.2014) (holding that the certificate of merit statute requires plaintiffs to
"file an affidavit ... [that] substantiate[s] the plaintiffs claim on each theory of recovery").
91 Compare TEX. CIV. PRAC. & REM. CODEE§§ 74.351 (a) ("In a health care liability claim, a claimant shall ... serve on that
[defendant] or the [defendant's] attorney one or more expert reports .... "); 128.053(a) ("In a suit against a sport shooting

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range •.. a claimant shall ... serve on each party or the party's attorney one or more expert reports ..•."); see also TEX.
HEALTH & SAFETY CODE § 841.101 (b) ("In preparation for a judicial review conducted under Section 841.102, the case
manager shall provide a report of the biennial examination to the judge.").
92 Compare TEX. CIV. PRAC. & REM. CODEE§§ 14.004(a) ("An inmate who files an affidavit or unsworn declaration of
inability to pay costs shall file a separate affidavit or declaration...."); 150.002(a) ("In any action or arbitration proceeding
for damages arising out of the provision of professional services by a licensed or registered professional, the plaintiff
shall be required to file with the complaint an affidavit of a third-party licensed architect, licensed professional engineer,
registered landscape architect, or registered professional land surveyor....").
93 Compare id.§ 27.00S(a) ("[T]he court shall consider the pleadings and supporting and opposing affidavits stating the
facts on which the liability or defense is based.").
94 TEX. acc. CODEE§ 160.007(b). Compare Md. Am. Gen. Ins. Co. v. Blackmon, 639 S.W.2d 455, 457 (Tex.1982) ('We
will assume for purposes of this opinion that the information ordered to be disclosed is relevant.").
95 Compare TEX. CIV. PRAC. & REM. CODEE § 27.005(c) ("The court may not dismiss a legal action under this standard
if the party bringing the legal action establishes by clear and specific evidence a prima facie case for each essential
element of the claim in question." (emphasis added)); TEX. HEALTH & SAFETY CODE§ 841.102(c) ("The judge shall
set a hearing if the judge determines at the biennial review that ... probable cause exists to believe that the person•s
behavioral abnormality has changed to the extent that the person is no longer likely to engage in a predatory act of sexual
violence." (emphasis added)).
96 Cf. TEX. R. CIV. P. 193.4(a) (''The party making the objection or asserting the privilege must present any evidence
necessary to support the objection or privilege." (emphasis added)); see also Lunsford v. Morris, 746 S.W.2d 471, 473
(Tex.1988) CUAbsent a privilege or specifically enumerated exemption, our rules permit discovery of any 'relevant' matter;
thus, there is no evidentiary threshold a litigant must cross before seeking discovery.").
97 See Lowry, 802 S.W.2d at 673 ("[Alli of the information sought to be discovered was gathered by the State during
the investigation that led to the filing of this antitrust enforcement action. The State has refused to provide materials
requested by the insurers that could lead to evidence supporting their defense. It is difficult for the insurers to make a
more particularized showing of need for these documents, the contents of which are unknown to them.").
98 See TEX. acc. CODEE § 160.00S(c) ("A defendant subject to this section may file a counterclaim in a pending action
or may prove a cause of action in a subsequent action to recover defense costs, including court costs, attorney's fees,
and damages incurred as a result of the civil action, if the plaintiff's original action is determined to be frivolous or brought
in bad faith.").
99 TEX. R. CIV. P. 192.4(a).
100 TEX. R. CIV. P. 192.4(b).
101 TEX. R. CIV. P. 192.6(b).
102 TEX. acc. CODEE§ 160.007(b) (emphasis added).
103 TEX. R. CIV. P. 192.3(a) (emphasis added).
104 Fort Bend Cnty. v. Wilson, 825 S.W.2d 251, 253 (Tex.App.-Houston [14th Dist.] 1992, no writ).
105 See Roark v. Allen, 633 S.W.2d 804, 810 (Tex.1982) ("A petition is sufficient if it gives fair and adequate notice of the
facts upon which the pleader bases his claim. The purpose of this rule is to give the opposing party information sufficient
to enable him to prepare a defense.").
106 Coca-Co/a Co. v. Harmar Bottling Co., 218 S.W.3d 671, 688-89 (Tex.2006); see also TEX. BUS. & COMM. CODE§
15.04.
107 Coca-Co/a Co., 218 S.W.3d at 688-89. Accord Caller-Times Pub. Co. v. Triad Commc'ns, Inc., 826 S.W.2d 576,580
(Tex.1992) ( "Because section 15.05(b) of the Texas Antitrust Act is comparable to section 2 of the Sherman Antitrust
Act, we look to federal law interpreting section 2 of the Sherman Act for guidance in interpreting section 15.05(b) of the
Texas Antitrust Act."); Desantis v. Wackenhut Corp., 793 S.W.2d 670, 687 (Tex.1990) ("Section 15.05 is comparable
to, and indeed taken from, section 1 of the Sherman Antitrust Act, 15 U.S.C. § 1 (1988). Accordingly, we look to federal
judicial interpretations of section 1 of the Sherman Act in applying section 15.05(a) of our state antitrust law.").
108 TEX. BUS. & COMM. CODE§ 15.0S(a)-(b).
109 Cf. BLACK'S LAW DICTIONARY 1443 (10th ed. 2014) (defining qui tam action as "[a]n action brought under a statute
that allows a private person to sue for a penalty, part of which the government or some specified public institution will
receive"). See, e.g., TEX. HUM. RES. CODEE § 36.110.
11 0 TEX. BUS. & COMM. CODE § 15.21 (a)(1 ).

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111 Doctor's Hosp. of Jefferson, Inc. v. Se. Med. Alliance, Inc., 123 F.3d 301, 305 (5th Cir.1997); but see Levine v. Cent. Fla.
Med. Affiliates, Inc., 72 F.3d 1538, 1548 (11th Cir.1996) (" 'When a court concludes that no violation has occurred, it has
no occasion to consider standing ... An increasing number of courts, unfortunately, deny standing when they really mean
11
that no violation has occurred.' (quoting P. Areeda & H. Hovenkamp, Antitrust Law,i 360f, at 202-03 (rev. ed. 1995))).
112 Austin v. McNamara, 979 F.2d 728, 739 (9th Cir.1992) (emphasis removed); see also Les Shockley Racing, Inc. v.
Nat'/ Hot Rod Ass'n, 884 F.2d 504, 508 (9th Cir.1989) ("[R]emoval of one or more competing sellers from any market
necessarily has an effect on competitive conditions within that market. But removal of one or a few competitors need
not equate with injury to competition.").
113 Les Shockley Racing, Inc., 884 F.2d at 508.
114 NYNEX Corp. v. Discon, Inc., 525 U.S. 128, 134-35, 119 S.Ct. 493, 142 L.Ed.2d 510 (1998) (discussing Klor's, Inc. v.
Broadway-Hale Stores, Inc., 359 U.S. 207, 79 S.Ct. 705, 3 L.Ed.2d 741 (1959)); see also Klor's, Inc., 359 U.S. at 213,
79 S.Ct. 705 (holding that a group boycott was "not to be tolerated merely because the victim is just one merchant whose
business is so small that his destruction makes little difference to the economy'').
115 Klor's Inc., 359 U.S. at 213, 79 S.Ct. 705. Cf. U.S. Healthcare, Inc. v. Healthsource, Inc., 986 F.2d 589,597 (1st Cir.1993)
( "Ultimately the issue turns upon antitrust policy, where a permanent tension prevails between the 'no sparrow shall fall'
concept of antitrust ... and the ascendant view that antitrust protects 'competition, not competitors.' ").
116 Les Shockley Racing, Inc., 884 F.2d at 508.
117 Id.
118 Id. at 509. Compare Jefferson Parish Hosp. Dist. No. 2 v. Hyde, 466 U.S. 2, 7, 104 S.Ct. 1551, 80 L.Ed.2d 2 (1984)
(affirming dismissal of the claim where the defendant was only one hospital of several in a large metropolitan area)
with Full Draw Prods. v. Easton Sports, Inc., 182 F.3d 745, 754 (10th Cir.1999) (holding that the loss of one or two
competitors alleged an injury to competition where "[t]he allegation describes the anticompetitive effect of the boycott to
be the loss of competition through the elimination of AMMO's sole archery trade show competitor and the resultant loss
in exhibition space outpur) and Oltz v. St. Peter's Comm. Hosp., 861 F.2d 1440, 1446-47 (9th Cir.1988) (exclusion of a
single nurse anesthetist from a single hospital constituted an unreasonable restraint of trade where that hospital "enjoyed
the overwhelming majority of the market for general surgery" and "there was no evidence that patients could effectively
turn outside [the hospital] for alternate sources of anesthesia services").
119 We note that "[o]nce experience with a particular kind of restraint enables [courts] to predict with confidence that the rule
of reason will condemn it, [courts will] appl[y] a conclusive presumption that the restraint is unreasonable." Arizona v.
Maricopa Cnty. Med. Soc., 457 U.S. 332, 344, 102 S.Ct. 2466, 73 L.Ed.2d 48 (1982). Dr. Gomez has not alleged that
the conduct at issue falls within a category of behavior deemed unreasonable per se, however.
120 Ginzburg v. Mem'I Healthcare Sys., Inc., 993 F.Supp. 998, 1009 (S.D.Tex.1997) (quoting State Oil Co., 522 U.S. at 10,
118 S.Ct. 275).
121 Brader v. Allegheny Gen. Hosp., 64 F.3d 869, 876 (3d Cir.1995).
122 Grinnell Corp., 384 U.S. at 570-71, 86 S.Ct. 1698.
123 Oltz, 861 F.2d at 1446.
124 Spectrum Sports, Inc. v. McQuillan, 506 U.S. 447,456,113 S.Ct. 884,122 L.Ed.2d 247 (1993).
125 Id.
126 Brader, 64 F.3d at 876; see also Oltz, 861 F.2d at 1446 ("Defining the relevant market is a factual Inquiry ordinarily
reserved for the jury.").
127 See Brader, 64 F.3d at 877 ("rr]he type of injury alleged by Brader (the loss of income due to an Inability to practice in
the relevant market area) is directly related to the illegal activity in which the defendant allegedly engaged: a conspiracy
to exclude Brader from the relevant market.").
128 See, e.g., Fuentes v. S. Hills Cardiology, 946 F.2d 196, 202 (3d Cir.1991) ("Fuentes alleges that the defendants acted in
concert to deny Fuentes, a provider of cardiological services, access to the Pittsburgh cardiological market. Consequently,
Fuentes asserts, that by eliminating him as a competitor, the boycott successfully reduced competition for the defendants'
cardiological services.''). Compare BCB Anesthesia Care, Ltd. v. Passavant Mem'I Area Hosp. Ass'n, 36 F.3d 664, 668
(7th Cir.1994) ('rrhe plaintiffs can practice at Passavant or elsewhere-they are not disabled from practicing wherever
they choose.").
129 Cf. Bolt v. Halifax Hosp. Med. Ctr., 891 F.2d 81 o, 820 (11th Cir.1990) ("[A]s the defendants' own arguments suggest, a
negative decision at one hospital could affect the decision at another hospital; therefore ... a negative decision by one
hospital could be tantamount to excluding a doctor from the profession as a whole." (internal quotation marks omitted)),

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overruled in pat1 on other grounds by City of Columbia v. Omni Outdoor Adver., 499 U.S. 365, 111 S.Ct. 1344, 113
L.Ed.2d 382 (1991 ).
130 Compare Coca-Cola Co., 218 S. W.3d at 688 (reversing a jury verdict where uthere is only evidence of harm in relatively
isolated instances and no evidence of substantial foreclosure or anti-competitive effect in any relevant market'').
131 Compare id. ("There must be evidence of demonstrable economic effect, not just an inference of possible effect." (internal
quotation marks omitted)).
132 Cf. Leegin Creative Leather Prods., Inc., 551 U.S. at 886, 127 S.Ct. 2705 (holding that the goal of judicial scrutiny is to
"distinguish[ ] between restraints with anticompetitive effect that are harmful to the consumer and restraints stimulating
competition that are in the consumer's best interest").
133 We note that there may be procompetitive justifications for allowing the presentation of even misleading data, such as
allowing for freer and more informed discussions-particularly in light of procedures available to physicians to challenge
the peer review process. For example, ensuring that the data cannot be challenged might delay the hospital's ability to
respond to concerns raised by the data. It may be that such increased responsiveness is of greater value than the Interim
damage to a physician's reputation.
As we have already discussed, the inclusion and wording of the anticompetitive exception to the medical peer review
committee privilege does not condition the exception on a pre-determination that the behavior at Issue is indeed
anticompetitive. It requires only that the action seeks to establish that the behavior is anticompetitive. This case
presents Itself to us at the discovery phase rather than summary judgment. The procompetitive value of allowing for
the presentation of false data is a factual determination-one likely requiring the aid of expert reports-and it is not a
determination that we can make as a matter of law.
134 See Brader, 64 F.3d at 876.
135 Cf. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574,598, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986) ("[A]s
presumably rational businesses, petitioners had every incentive notto engage in the conduct with which they are charged,
for its likely effect would be to generate losses for petitioners with no corresponding gains."). But see Boczar v. Manatee
Hasps. & Health Sys., Inc., 993 F.2d 1514, 1518 (11th Cir.1993) {''The jury could believe that the hospital would benefit
economically by securing its pre-existing ob/gyn staff and revenues ....").
136 See United States v. E.I. du Pont de Nemours & Co., 351 U.S. 377, 393, 76 S.Ct. 994, 100 L.Ed. 1264 (1956)
("Determination of the competitive market for commodities depends on how different from one another are the offered
commodities in character or use, how far buyers will go to substitute one commodity for another.").
137 We note that Memorial Hermann filed special exceptions regarding Dr. Gomez's allegations of the relevant market.
Memorial Hermann has not requested relief regarding the trial court's denial of those special exceptions, however, and we
do not consider whether pleading these markets in the alternative provides Memorial Hermann with "information sufficient
to enable [it] to prepare a defense." See Roark, 633 S.W.2d at 810.
138 See Boczar, 993 F.2d at 1517 ("When Dr. Boczar joined its staff, Manatee Hospital had suffered defections by members
of its ob/gyn staff and feared still more ob/gyn departures to a competing hospital.").
139 Cf. Brown Shoe Co. v. United States, 370 U.S. 294, 323-24, 82 S.Ct. 1502, 8 L.Ed.2d 51 O(1962) ("The primary vice of a
vertical merger or other arrangement tying a consumer to a supplier is that, by foreclosing the competitors of either party
from a segment of the market otherwise open to them, the arrangement may act as a 'clog on competition.'" (emphasis
added)); Klor's, Inc., 359 U.S. at 209, 79 S.Ct. 705 (''The concerted refusal to deal with Klor1s has seriously handicapped
its ability to compete and has already caused it a great loss of profits, goodwill, reputation and prestige.").
140 See Doctor's Hosp. of Jefferson, Inc., 123 F.3d at 305 (holding that standing to bring suit for antitrust requires "proper
plaintiff status, which assures that other parties are not better situated to bring suit").
141 See Sturges, 52 S.W.3d at 713.
142 All page references in this section are to the sealed record.
143 See Brownwood Reg'/ Hosp. v. Eleventh Cout1 of Appeals, 927 S.W.2d 24, 27 (Tex.1996) (holding "the bylaws, rules, and
regulations of [the hospital's] medical staff or Board of Trustees ... are not records, reports, or proceedings of a hospital
or medical peer review committee, nor do they reveal communications to such a committee").
144 See City of Waco v. Lopez, 259 S.W.3d 147, 153 (Tex.2008).
145 TEX. GOV'T CODE §§ 311.025, 311.026(a); Tex. Indus. Energy Consumers v. CenterPoint Energy Hous. Elec., LLC,
324 S.W.3d 95, 107 (Tex.2010).
146 TEX. GOV'T CODE § 311.025(a); Jackson v. State Office of Admin. Hearings, 351 S.W.3d 290, 297 (Tex. 2011 ).
147 TEX. GOV'T CODE § 311.026(b); TracFone Wireless, Inc. v. Comm'n on State Emergency Commc'ns, 397 S.W.3d 173,
181 (Tex.2013).

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148 TEX. GOV'T CODE§ 311.026(b); Lopez, 259 S.W.3d at 153.
149 TEX. HEALTH & SAFETY CODE § 161.031 (a). The other categories of entities include university medical schools and
health science centers, health maintenance organizations licensed under Chapter 843 of the Insurance Code, extended
care facilities, hospital districts, and hospital authorities. Id. § 161.031 (a)(3)-(7).
150 Id.§ 161.031 (b).
151 Id. § 161.032(f).
152 Id.§ 161.032(d).
153 Id. § 161.032(f).
154 Id. § 161.032(a).
155 See id. § 161.032(b)(1) (proving that "a proceeding of a medical peer review committee ... or medical committee" may
be held in a closed meeting (emphasis added)); id. § 161.032(b)(2) (providing for closed meetings of the governing
board of certain hospitals or health maintenance organizations if at the meeting, ''the governing body receives records,
information, or reports provided by a medical committee [or] medical peer review committee"); id.§ 161.032(c) (providing
that the "[r]ecords, information, or reports of a medical committee [ot1 medical peer review committee" as well as "records,
information or reports provided by a medical committee [ot1 medical peer review committee ••. to the governing board
of a public hospital, hospital district, or hospital authority'' are exempt from the disclosure provisions of Chapter 552 of
the Government Code).
156 In order to be considered a medical peer review committee, the committee must (1) "operate[ ] under written bylaws
approved by the policy-making board or the governing board of the health care entity'' and (2) be "authorized to evaluate
the quality of medical and health care services or the competence of physicians." TEX. OCC. CODEE§ 151.002(a)(8).
157 Id.
158 Id.§ 151.002(a)(5).
159 By way of example, "a health care collaborative certified under Chapter 848, Insurance Code" is specifically designated
as a health care entity, TEX. OCC. CODEE§ 151.002(a)(5)(E), but such entitles would not fall neatly within any of the
entity categories listed in the definition of a medical committee. Compare id. with TEX. HEALTH & SAFETY CODE §
161.031(a)(1)-(8). But see Brooks, 926 S.W.2d at 20 ("[T]he statutory definition of "medical committee" is broad ... That
definition encompasses a medical peer review committee....").
160 TEX. acc. CODEE§ 151.002(a)(5)(8)(ii).
161 Id. § 151.002(a)(8). In other words, any medical committee that both "operates under written bylaws" approved by either
its policy-making or governing board, and follows a formal peer review process will also be considered a medical peer
review committee. Id.
162 There is only one potential exception to this rule, and that exception applies to the records and proceedings of governing
bodies of "public hospital[s] owned or operated by a governmental entity, ... hospital authorit[ies] created under Chapter
262 or 264, Health and Safety Code, ... [or] hospital district[s] created under Article IX, Texas Constitution." TEX. OCC.
CODEE§ 151.002(a)(8)(8). These governing bodies are considered to be medical peer review committees only in relation
to their evaluation of the quality of the medical and health care services they provide or a physician's competence-
and only "to the extent that the evaluation ... involves discussions or records that specifically or necessarily identify an
individual patient or physician." Id. § 151.002(a)(B)(B)(i)-(ii). Thus, none of the governing bodies' records or proceedings
that does not "specifically or necessarily identify an individual patient or physician," id. § 151.002(a)(8)(ii), would be
subject to section 160.007 of the Occupations Code, although they would still enjoy the protections of section 161.032
of the Health and Safety Code.
163 See, e.g., In re Living Ctrs. of Tex., Inc., 175 S.W.3d at 256.
164 See TEX. HEALTH & SAFETY CODE § 161.032(a) ("The records and proceedings of a medical committee are
confidential and are not subject to court subpoena." (emphasis added)); TEX. OCC. CODEE§ 160.007(a) ( "Except as
otherwise provided by this subtitle, each proceeding or record of a medical peer review committee is confidential, and
any communication made to a medical peer review committee is privileged." (emphasis added)).
165 See Lopez, 259 S.W.3d at 153.
166 See TEX. HEALTH & SAFETY CODE § 161.032(d).
167 See TEX. acc. CODEE § 160.007(d).
168 Id. § 160.007(b).
169 TEX. HEALTH & SAFETY CODE § 161.032(a).
170 See TEX. GOV'T CODE§§ 311.025(a); 311.026(b).

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TABN0.16
 In re Lipsky
Supreme Court of Texas
December 4, 2014, Argued; April 24, 2015, Opinion Delivered
NO. 13-0928

Reporter
460 S.W.3d 579; 2015 Tex. LEXIS 350; 58 Tex. Sup. J. 707; 45 ELR 20082; 43 Media L. Rep. 1793

IN RE STEVEN LIPSKY, RELATOR LexisNexis® Headnotes
Prior History: Lipsky v. Range Prod. Co., 2012 Tex.
App. LEXIS 7059 (Tex. App. Fort Worth, Aug. 23, 2012) Constitutional Law> ... > Fundamental
Freedoms > Freedom of Speech > Strategic Lawsuits
Core Terms Against Public Participation
Evidence > Burdens of Proof > Clear & Convincing Proof
specific evidence, defamation, disparagement, court of
appeals, contamination, defamatory, pet, circumstantial Civil Procedure > ... > Defenses, Demurrers &
Objections > Motions to Dismiss > Failure to State Claim
evidence, motion to dismiss, damages, trial court,
reputation, essential element, defamation per se, prima Evidence > Types of Evidence > Circumstantial Evidence
facie case, operations, argues, cases, evidentiary Evidence > Relevance > Relevant Evidence
standard, defamation claim, general damages, aquifer,
no evidence, pleadings, drilling, defeat, interlocutory HN1 The Texas Citizens Participation Act protects
appeal, special damage, inferences, remarks citizens who petition or speak on matters of public
concern from retaliatory lawsuits that seek to intimidate
Case Summary or silence them. Tex. Civ. Prac. & Rem. Code Ann. §§
27.001-27.011. The protection consists of a special
motion for an expedited consideration of any suit that
Overview
appears to stifle the defendant's communication on a
matter of public concern. Tex. Civ. Prac. & Rem. Code
HOLDINGS: [1)-ln determining whether there was clear
Ann. § 27.003. In reviewing that motion, the trial court is
and specific evidence to establish plaintiffs' prima facie
directed to dismiss the suit unless "clear and specific
case and avoid dismissal pursuant to Tex. Civ. Prac. &
evidence11 establishes the plaintiffs' "prima facie case."
Rem. Code Ann. § 27.005fc) of the Texas Citizens
Tex. Civ. Prac. & Rem. Code Ann. § 27.005fc). Some
Participation Act (TCPA), Tex. Civ. Prac. & Rem. Code
courts hold that only direct evidence is relevant when
Ann.§§ 27.001-27.011, relevant circumstantial evidence
considering a motion to dismiss under the Act, while
could be considered; [2)-The Supreme Court of Texas
others have concluded that relevant circumstantial
accordingly disapproved those cases that interpreted
evidence must also be considered. The Supreme Court
the TCPA to require direct evidence of each essential
of Texas agrees that clear and specific evidence under
element of the underlying claim to avoid dismissal; [3]-A
the Act includes relevant circumstantial evidence.
gas well driller's defamation counterclaim against a
property owner was properly not dismissed because Constitutional Law> ... > Fundamental
clear and specific evidence showed the owner's Freedoms> Freedom of Speech> Strategic Lawsuits
statements were defamatory per se, as they reflected on Against Public Participation
the driller's fitness and abilities as a natural gas
Civil Procedure > Appeals > Appellate
producer, and proof of particular damage was not
Jurisdiction> Interlocutory Orders
required.
HN2 An interlocutory appeal is permitted from any
Outcome
interlocutory order denying a motion to dismiss under
Requested writ of mandamus denied.
the Texas Citizens Participation Act, Tex. Civ. Prac. &
Rem. Code Ann. §§ 27.001-27.011. Tex. Civ. Prac. &
 Page 2 of 17
In re Lipsky

Rem. Code Ann. § 51.014(a)(12). HN5 The "right to petition," as used in Tex. Civ. Prac. &
Rem. Code Ann. § 27.005(b), refers to a wide range of
Constitutional Law > ... > Fundamental communications relating to judicial, administrative, or
Freedoms > Freedom of Speech > Strategic Lawsuits other governmental proceedings. Tex. Civ. Prac. &
Against Public Participation Rem. Code Ann.§ 27.001(4).
Evidence > Burdens of Proof > Burden Shifting
Constitutional Law > ... > Fundamental
Evidence > Burdens of Proof > Clear & Convincing Proof Freedoms > Freedom of Speech > Strategic Lawsuits
Evidence > Burdens of Proof > Preponderance of Evidence Against Public Participation
Constitutional Law > ... > Fundamental
HN3 The Texas Citizens Participation Act, Tex. Civ. Freedoms > Freedom of Speech > Scope
Prac. & Rem. Code Ann. §§ 27.001-27.011, protects
citizens from retaliatory lawsuits that seek to intimidate HN6 The "right of associationi" as used in Tex. Civ.
or silence them on matters of public concern. The Act Prac. & Rem. Code Ann. § 27.005(b), refers to people
provides a special procedure for the expedited dismissal collectively expressing, promoting, pursuing, or
of such suits. A two-step process is initiated by motion defending common interests. Tex. Civ. Prac. & Rem.
of a defendant who believes that the lawsuit responds to Code Ann. § 27. 001 (2).
the defendant's valid exercise of First Amendment, U.S.
Const. amend. I, rights. Under the first step, the burden Constitutional Law> ... > Fundamental
is initially on the defendant-movant to show "by a Freedoms > Freedom of Speech > Strategic Lawsuits
preponderance of the evidence" that the plaintiffs claim Against Public Participation
is based on, relates to, or is in response to the movant's Civil Procedure> ... > Defenses, Demurrers &
exercise of: (1) the right of free speech; (2) the right to Objections > Motions to Dismiss > Failure to State Claim
petition; or (3) the right of association. Tex. Civ. Prac. &
Civil Procedure > Pleading & Practice > Pleadings > Rule
Rem. Code Ann. § 27.005(b). If the movant is able to
Application & Interpretation
demonstrate that the plaintiffs claim implicates one of
these rights, the second step shifts the burden to the Evidence > Burdens of Proof > Allocation
plaintiff to establish by clear and specific evidence a
prima facie case for each essential element of the claim HN7 In determining whether a plaintiffs claim under the
in question. § 27.005(c). Texas Citizens Participation Act, Tex. Civ. Prac. & Rem.
Code Ann. §§ 27.001-27.011, should be dismissed, the
Constitutional Law > ... > Fundamental court is to consider the pleadings and any supporting
Freedoms > Freedom of Speech > Strategic Lawsuits and opposing affidavits. Tex. Civ. Prac. & Rem. Code
Against Public Participation Ann. § 27.006(a). Moreover, the motion to dismiss
ordinarily suspends discovery, Tex. Civ. Prac. & Rem.
Constitutional Law > ... > Fundamental
Freedoms > Freedom of Speech > Scope Code Ann. § 27.003(cJ, although the statute leaves the
possibility for a court to order limited discovery for "good
HN4 The "right of free speech," as used in Tex. Civ. cause" as it relates to the motion itself. § 27.006(b).
Prac. & Rem. Code Ann. § 27.005(b), refers to Within defined time limits, the court must then rule on
communications related to "a matter of public concern" the motion and must dismiss the plaintiffs claim if the
which is defined to include an issue related to: (A) defendant's constitutional rights are implicated and the
health or safety; (B) environmental, economic, or plaintiff has not met the required showing of a prima
community well-being; (C) the government; (D) a public facie case. Tex. Civ. Prac. & Rem. Code Ann.§ 27.005.
official or public figure; or (E) a good, product, or service The determination is to be made promptly, ordinarily
in the marketplace. Tex. Civ. Prac. & Rem. Code Ann.§ within 150 days of service of the underlying legal action.
27.001 (3), .0.{dl-(E). Tex. Civ. Prac. & Rem. Code Ann. §§ 27.003(b).
27.004(a), 27.005(a).
Constitutional Law > ... > Fundamental
Freedoms > Freedom of Speech > Strategic Lawsuits Evidence > Burdens of Proof > Clear & Convincing Proof
Against Public Participation Civil Procedure > ... > Defenses, Demurrers &
Constitutional Law > Bill of Rights > Fundamental Objections > Motions to Dismiss > Failure to State Claim
Freedoms > Freedom to Petition Constitutional Law > ... > Fundamental
Freedoms > Freedom of Speech > Strategic Lawsuits
 Page 3 of 17
In re Lipsky

Against Public Participation Evidence > Burdens of Proof > General Overview
Evidence > Types of Evidence > Circumstantial Evidence
HN12 The applicable evidentiary standard is generally
HNB Some courts, focusing on the requirement of "clear determined by the nature of the case or particular claim.
and specific evidence, 11 have interpreted Tex. Civ. Prac. Criminal cases require proof beyond a reasonable
& Rem. Code Ann. § 27.005/c) of the Texas Citizens doubt, a near certainty, whereas civil cases typically
Participation Act, Tex. Civ. Prac. & Rem. Code Ann. §§ apply the preponderance-of-the-evidence standard, that
27. 001-27. 011, to require a heightened evidentiary is, a fact-finder's determination that the plaintiffs version
standard, unaided by inferences. Implicit in these of the events is more likely than not true. Some civil
decisions is the assumption that circumstantial evidence claims, including some defamation claims, elevate the
is not sufficiently "clear and specific" to satisfy the evidentiary standard to require proof by clear-and-
statutory burden. Other courts, focusing on the prima- convincing evidence. This standard requires that the
facie-case language, have concluded that the statute strength of the plaintiffs proof produces in the mind of
the trier of fact a firm belief or conviction as to the truth
permits the court to draw rational inferences from
circumstantial evidence when determining whether the of the allegations.
plaintiff has met its threshold factual burden.
Evidence > Burdens of Proof > General Overview
Evidence > Burdens of Proof> Clear & Convincing Proof Evidence > Burdens of Proof > Clear & Convincing Proof
Civil Procedure > ... > Defenses, Demurrers & Evidence > Admissibility > Circumstantial & Direct Evidence
Objections > Motions to Dismiss > Failure to State Claim
Constitutional Law > ... > Fundamental
Constitutional Law > ... > Fundamental Freedoms > Freedom of Speech > Strategic Lawsuits
Freedoms > Freedom of Speech > Strategic Lawsuits Against Public Participation
Against Public Participation
HN13 Clear and specific evidence is not a recognized
HN9 Tex. Civ. Prac. & Rem. Code Ann. § 27. 005/c) evidentiary standard. Although it sounds similar to clear
does not define "clear and specific evidence." and convincing evidence, the phrases are not .legally
synonymous. The Legislature well understands the
Evidence > Inferences & Presumptions > Inferences clear-and-convincing-evidence standard and uses that
Evidence > Types of Evidence > Circumstantial Evidence standard when it so intends. But even were courts to
assume that the Legislature intended to apply the clear-
Torts > ... > Fraud & Misrepresentation > Actual
and-convi ncing standard in the Texas Citizens
Fraud > Elements
Participation Act, Tex. Civ. Prac. & Rem. Code Ann. §§
27.001-27.011, it would still not exclude circumstantial
HN10 Intent to defraud is not susceptible to direct proof
evidence.
and invariably must be proven by circumstantial
evidence. Fraud could not be inferred from the "vague,
Evidence > Burdens of Proof > Clear & Convincing Proof
indefinite, and inconclusive" testimony of interested
witnesses. Evidence > Admissibility > Circumstantial & Direct Evidence
Evidence > Relevance > Relevant Evidence
Evidence > Inferences & Presumptions > Inferences
Governments > Legislation > Interpretation
Evidence > Admissibility > Circumstantial & Direct Evidence
Civil Procedure > ... > Defenses, Demurrers &
HN11 Circumstantial evidence can be vague, indefinite, Objections > Motions to Dismiss > Failure to State Claim
or inconclusive, but it is not so by definition. Rather, it is
simply indirect evidence that creates an inference to HN14 All evidentiary standards, including clear and
establish a central fact. It is admissible unless the convincing evidence, recognize the relevance of
connection between the fact and the inference is too circumstantial evidence. In fact, courts have
weak to be of help in deciding the case. Tex. R. Evid. acknowledged that the determination of certain facts in
401-402. The common law has developed several particular cases may exclusively depend on such
distinct evidentiary standards, but none of these evidence. Circumstantial evidence may be used to
standards categorically rejects the use of circumstantial prove one's case-in-chief or to defeat a motion for
evidence. directed verdict, and so it would be odd to deny its use
to defeat a preliminary motion to dismiss under the
 Page 4 of 17
In re Lipsky

Texas Citizens Participation Act, Tex. Civ. Prac. & Rem. Freedoms > Freedom of Speech > Strategic Lawsuits
Code Ann. §§ 27.001-27.011. That the statute should Against Public Participation
create a greater obstacle for the plaintiff to get into the Evidence > Burdens of Proof> Clear & Convincing Proof
courthouse than to win its case seems nonsensical.
Courts interpret statutes to avoid an absurd result. Civil Procedure > ... > Defenses, Demurrers &
Objections > Motions to Dismiss > Failure to State Claim
Civil Procedure > ... > Defenses, Demurrers & Evidence > Inferences & Presumptions > Inferences
Objections > Motions to Dismiss > Failure to State Claim
Constitutional Law > ... > Fundamental HN17 The Texas Citizens Participation Act, Tex. Civ.
Freedoms > Freedom of Speech > Strategic Lawsuits Prac. & Rem. Code Ann.§§ 27.001-27.011, requires not
Against Public Participation only "clear and specific evidence" but also a "prima facie
case." In contrast to "clear and specific evidence." a
Evidence > Burdens of Proof> Clear & Convincing Proof
"prima facie case" has a traditional legal meaning. It
refers to evidence sufficient as a matter of law to
HN15 The purpose of the Texas Citizens Participation
establish a given fact if it is not rebutted or contradicted.
Act (TCPA), Tex. Civ. Prac. & Rem. Code Ann. §§
It is the minimum quantum of evidence necessary to
27.001-27.011, is to identify and summarily dispose of
support a rational inference that the allegation of fact is
lawsuits designed only to chill First Amendment, U.S.
true.
Const. amend. /, rights, not to dismiss meritorious
lawsuits. Tex. Civ. Prac. & Rem. Code Ann. § 27.002 Evidence > Burdens of Proof > Clear & Convincing Proof
balances the constitutional rights of persons to petition,
speak freely, associate freely, and otherwise participate Constitutional Law> ... > Fundamental
in government to the maximum extent permitted by law Freedoms > Freedom of Speech > Strategic Lawsuits
Against Public Participation
against the rights of a person to file meritorious lawsuits
for demonstrable injury. To accomplish its purpose, the Civil Procedure > ... > Defenses, Demurrers &
TCPA endorses a summary process, requiring judicial Objections > Motions to Dismiss > Failure to State Claim
review of the pleadings and limited evidence, typically
within 150 days following service. Tex. Civ. Prac. & HN18 The direction of the Texas Citizens Participation
Rem. Code Ann. §§ 27.003(bJ, 27.004/a), 27.005/a). Act (TCPA), Tex. Civ. Prac. & Rem. Code Ann. §§
To defeat an appropriate TCPA motion to dismiss, the 27.001-27.011, that a claim should not be dismissed if
opponent must establish by clear and specific evidence the party bringing the legal action establishes by clear
a prima facie case for each essential element of the and specific evidence a prima facie case for each
claim in question. § 27. 005/c). essential element of the claim in question describes the
clarity and detail required to avoid dismissal. Tex. Civ.
Evidence > Burdens of Proof> Clear & Convincing Proof Prac. & Rem. Code Ann. § 27. 005/c). Courts are further
directed to make that determination early in the
Governments > Legislation > Interpretation
proceedings, typically on the basis of the pleadings and
Constitutional Law> ... > Fundamental affidavits. But pleadings that might suffice in a case that
Freedoms > Freedom of Speech > Strategic Lawsuits does not implicate the TCPA may not be sufficient to
Against Public Participation satisfy the TCPA's "clear and specific evidence"
requirement.
HN16 Neither the Texas Citizens Participation Act, Tex.
Civ. Prac. & Rem. Code Ann. §§ 27.001-27.011, nor the Civil Procedure > ... > Defenses, Demurrers &
common law provides a definition for "clear and specific Objections > Motions to Dismiss > Failure to State Claim
evidence. Words and phrases that are not defined by
11

Civil Procedure > Pleading & Practice > Pleadings > Rule
statute and that have not acquired a special or technical
Application & Interpretation
meaning are typically given their plain or common
meaning. The words "clear'' and "specific" in the context Civil
of the Act have been interpreted respectively to mean, Procedure > ... > Pleadings > Complaints > Requirements
for the former, "unambiguous," "sure," or "free from for Complaint
doubt" and, for the latter, "explicit" or "relating to a Constitutional Law> ... > Fundamental
particular named thing." Freedoms > Freedom of Speech > Strategic Lawsuits
Against Public Participation
Constitutional Law > ... > Fundamental
Evidence > Burdens of Proof > Clear & Convincing Proof
 Page 5 of 17
In re Lipsky

HN19 Texas procedural rules merely require that the HN21 Though the Texas Citizens Participation Act
pleadings provide fair notice of the claim and the relief (TCPA), Tex. Civ. Prac. & Rem. Code Ann. §§ 27.001-
sought such that the opposing party can prepare a 27. 011, initially demands more information about the
defense. Tex. R. Civ. P. 45 and 47. Even the omission underlying claim, the TCPA does not impose an
of an element is not fatal if the cause of action may be elevated evidentiary standard or categorically reject
reasonably inferred from what is specifically stated. circumstantial evidence. In short, it does not impose a
Moreover, under notice pleading, a plaintiff is not higher burden of proof than that required of the plaintiff
required to set out in his pleadings the evidence upon at trial. The Supreme Court of Texas accordingly
which he relies to establish his asserted cause of action. disapproves those cases that interpret the TCPA to
But the Texas Citizens Participation Act, Tex. Civ. Prac. require direct evidence of each essential element of the
& Rem. Code Ann. §§ 27.001-27.011. requires that on underlying claim to avoid dismissal.
motion the plaintiff present "clear and specific evidence"
of "each essential element. 11
Torts> Intentional Torts> Defamation> General Overview
Torts> Business Torts> Trade Libel> General Overview
Evidence > Burdens of Proof > Clear & Convincing Proof

Torts> ... > Defamation> Elements> General Overview HN22 Business disparagement and defamation are
similar in that both involve harm from the publication of
Constitutional Law > ... > Fundamental
false information. The respective torts, however, serve
Freedoms > Freedom of Speech > Strategic Lawsuits
Against Public Participation
different interests. Whereas defamation actions chiefly
serve to protect the personal reputation of an injured
Civil Procedure > ... > Defenses, Demurrers & party, a business disparagement claim protects
Objections > Motions to Dismiss > Failure to State Claim economic interests. Business disparagement or
Civil injurious falsehood applies to derogatory publications
Procedure > ... > Pleadings > Complaints > Requirements about the plaintiff's economic or commercial interests.
for Complaint The tort does not seek to redress dignitary harms to the
business owner, but rather redresses aspersions cast
HN20 Fair notice of a claim under the Texas procedural on the business's commercial product or activity that
11
rules may require something less than clear and diminishes those interests.
specific evidence" of each essential element of the
claim. Because the Texas Citizens Participation Act Torts> Business Torts> Trade Libel> General Overview
(TCPA), Tex. Civ. Prac. & Rem. Code Ann. §§ 27.001-
Torts> Intentional Torts> Defamation> General Overview
27. 011, requires more, mere notice pleading - that is,
general allegations that merely recite the elements of a HN23 A corporation or other business entity that asserts
cause of action - will not suffice. Instead, a plaintiff must a claim for defamation may assert an additional or
provide enough detail to show the factual basis for its alternative claim for business disparagement if it seeks
claim. In a defamation case that implicates the TCPA, to recover economic damages for injury to the business.
pleadings and evidence that establishes the facts of Impugning one's reputation is possible without
when, where, and what was said, the defamatory nature disparaging its commercial interests and vice versa.
of the statements, and how they damaged the plaintiff Depending on the circumstances, then, a plaintiff may
should be sufficient to resist a TCPA motion to dismiss. have a claim for defamation, or for business
disparagement, or both.
Civil
Procedure > ... > Pleadings > Complaints > Requirements
Torts> Business Torts> Trade Libel> General Overview
for Complaint

Civil Procedure > ... > Defenses, Demurrers & HN24 A number of examples of commercial
Objections > Motions to Dismiss > Failure to State Claim disparagement or trade libel that are not strictly
Constitutional Law > ... > Fundamental speaking defamatory in the sense of dignitary harm
Freedoms > Freedom of Speech > Strategic Lawsuits include: A publication that says the defendant's product
Against Public Participation is poisonous and contaminates the land or one that says
the plaintiff's wood products are inferior and will not
Evidence > Burdens of Proof > Allocation
stand up. A false statement that the ratings of the
Evidence > Types of Evidence > Circumstantial Evidence plaintiff's radio show are too low to justify continuing the
show. A publication falsely stating the price the plaintiff
 Page 6 of 17
In re Lipsky

charges for his goods or that the plaintiff is no longer Torts > Business Torts > Trade Libel > General Overview
carrying on a business or has insufficient funds to
continue in business. HN28 Corporations and other business entities have
reputations that can be libeled apart from the
Torts> Business Torts> Trade Libel> Elements businesses they own, and such entities can prosecute
Evidence > Burdens of Proof > Allocation
an action for defamation in their own names. Moreover,
a corporation or other business entity asserting a claim
Evidence > Burdens of Proof > Clear & Convincing Proof for business disparagement may also assert additional
Constitutional Law > ... > Fundamental or alternative claims for defamation to recover non-
Freedoms > Freedom of Speech > Strategic Lawsuits economic general damages such as injury to reputation
Against Public Participation that are not recoverable on a business-disparagement
claim.
Civil Procedure > ... > Defenses, Demurrers &
Objections > Motions to Dismiss > Failure to State Claim
Torts> ... > Defamation> Elements> General Overview

HN25 To defend against a dismissal motion, a plaintiff's Torts> Intentional Torts> Defamation> Procedural Matters
burden under the Texas Citizens Participation Act, Tex. Torts> ... > Defamation> Public Figures> Actual Malice
Civ. Prac. & Rem. Code Ann. §§ 27.001-27.011, is to
establish by clear and specific evidence a prima facie HN29 Defamation's elements include: (1) the publication
case for each essential element of the claim in question. of a false statement of fact to a third party; (2) that was
Tex. Civ. Prac. & Rem. Code Ann. § 27. 005(c). To defamatory concerning the plaintiff; (3) with the requisite
prevail on a business disparagement claim, a plaintiff degree of fault; and (4) damages, in some cases. The
must establish that: (1) the defendant published false status of the person allegedly defamed determines the
and disparaging information about it; (2) with malice; (3) requisite degree of fault. A private individual need only
without privilege; (4) that resulted in special damages to prove negligence, whereas a public figure or official
the plaintiff. must prove actual malice. "Actual malice" in this context
means that the statement was made with knowledge of
Torts > ... > Defamation > Remedies > Damages
its falsity or with reckless disregard for its truth. Finally,
Torts > Remedies > Damages > Types of Damages the plaintiff must plead and prove damages, unless the
defamatory statements are defamatory per se.
HN26 Special damages are synonymous with economic
damages and are distinguishable from general Torts> Intentional Torts> Defamation> Procedural Matters
damages. General damages are recoverable under a Torts> Intentional Torts> Defamation> Defamation Per Se
defamation claim for non-economic losses, such as loss
of reputation and mental anguish. Torts> ... > Defamation> Remedies> Damages

Evidence > Inferences &
Evidence > Burdens of Proof > Clear & Convincing Proof Presumptions > Presumptions > Effects
Civil Procedure > ... > Defenses, Demurrers &
Objections > Motions to Dismiss > Failure to State Claim HN30 Defamation per se refers to statements that are
so obviously harmful that general damages may be
Constitutional Law > ... > Fundamental
presumed. General damages include non-economic
Freedoms > Freedom of Speech > Strategic Lawsuits
losses, such as loss of reputation and mental anguish.
Against Public Participation
Special damages, on the other hand, are never
HN27 Bare, baseless opinions do not create fact presumed as they represent specific economic losses
questions, and neither are they a sufficient substitute for that must be proven. And even though Texas law
the clear and specific evidence required to establish a presumes general damages when the defamation is per
prima facie case under the Texas Citizens Participation se, it does not presume any particular amount of
Act (TCPA), Tex. Civ. Prac. & Rem. Code Ann. §§ damages beyond nominal damages. Any award of
27. 001-27. 011. General averments of direct economic general damages that exceeds a nominal sum is thus
losses and lost profits, without more, do not satisfy the reviewed for evidentiary support.
minimum requirements of the TCPA.
Torts > ... > Defamation > Elements > General Overview

Torts> Intentional Torts> Defamation> General Overview Torts> Intentional Torts> Defamation> Procedural Matters
 Page 7 of 17
In re Lipsky

HN31 It is well settled that the meaning of a publication, reputation are presumed, although the presumption
and thus whether it is false and defamatory, depends on alone will support only an award of nominal damages.
a reasonable person's perception of the entirety of a Pleading and proof of particular damage is not required
publication and not merely on individual statements. to prevail on a claim of defamation per se, and thus
actual damage is not an essential element of the claim
Torts> Intentional Torts> Defamation> Defamation Per Se to which the burden under the Texas Citizens
Torts> Intentional Torts> Defamation> Procedural Matters Participation Act, Tex. Civ. Prac. & Rem. Code Ann. §§
27.001-27.011, of clear and specific evidence might
HN32 When an offending publication qualifies as apply.
defamation per se, a plaintiff may recover general
damages without proof of any specific loss. Judges: [**1] JUSTICE DEVINE delivered the opinion
of the Court.
Torts> Intentional Torts> Defamation> Defamation Per
Quod Opinion by: John P. Devine
Torts> Intentional Torts> Defamation> Defamation Per Se
Opinion
Torts> Intentional Torts> Defamation> Procedural Matters

HN33 The common law distinguishes defamation claims rs84] ON PETITION FOR WRIT OF MANDAMUS
as either per se or per quod. Defamation per se refers to
statements that are so obviously harmful that general JUSTICE DEVINE delivered the opinion of the Court.
damages, such as mental anguish and loss of 1
reputation, are presumed. Defamation per quod is HN1 The Texas Citizens Participation Act (TCPA)
defamation that is not actionable per se. Defamation per protects citizens who petition or speak on matters of
se is itself broken down into separate categories of public concern from retaliatory lawsuits that seek to
falsehoods. Accusing someone of a crime, of having a intimidate or silence them. Tex. Civ. Prac. & Rem. Code
foul or loathsome disease, or of engaging in serious §§ 27.001-.011. The protection consists of a special
sexual misconduct are examples of defamation per se. motion for an expedited consideration of any suit that
Remarks that adversely reflect on a person's fitness to appears to stifle the defendant's communication on a
conduct his or her business or trade are also deemed matter of public concern. Id. § 27.003. In reviewing that
defamatory per se. And whether a statement qualifies motion, the trial court is directed to dismiss the suit
as defamation per se is generally a question of law. The unless "clear and specific evidence" establishes the
common law distinction between defamation per se and plaintiffs' "prima facie case." Id. § 27. 005{cJ. When
per quod has been criticized as anachronistic and has applying the Act's requirement for clear and specific
been abandoned in some jurisdictions, but Texas has evidence, however, the courts of appeals disagree
not abandoned this distinction. about the role of circumstantial evidence.

Torts> Intentional Torts> Defamation> Defamation Per Se Some courts hold that only direct evidence is relevant
when considering a motion to dismiss under the Act,
HN34 To qualify as defamation per se under the while others have concluded that relevant circumstantial
category of injuring one in his business, the disparaging evidence must also be considered. The court of
words must affect the plaintiff in some manner that is appeals [**2) here considered circumstantial evidence,
peculiarly harmful to the plaintiff's trade, business, or and we agree that clear and specific evidence under the
profession and not merely upon the plaintiff's general Act includes relevant circumstantial evidence. 411
characteristics. S. W.3d 530, 546 {Tex. App.-Fort Worth 2013}. We
further agree, generally, with the court of appeals's
Torts> Intentional Torts> Defamation> Defamation Per Se disposition of the proceedings below and accordingly
Torts> ... > Defamation> Elements> General Overview deny all relief requested here.

Torts> Intentional Torts> Defamation> Procedural Matters
Evidence> Inferences &
1
Presumptions > Presumptions > Effects See Act of May 18, 2011, 82nd Leg., R.S., ch. 341, § 1, 2011
Tex. Gen. Laws 961 (stating that "Act may be cited as the
HN35 As defamation per se, damages to one's Citizens Participation Act'').
 Page 8 of 17
In re Lipsky

I. Background and Procedural History EPA's action and his expert's opinions.

Steven and Shyla Lipsky own several acres in The Lipskys thereafter sued Range and others involved
Weatherford, Texas. In 2005 they drilled a well on their in developing their residential area. As to Range, they
property to a depth of about two hundred feet to provide alleged that its tracking operations near their property
water to a cabin and boathouse. In 2009 they finished a were negligent, grossly negligent, and a nuisance. They
house on the property, connecting the well to their new asserted that Range's operations contaminated their
home. That same year, Range Resources Corporation water well, causing the water to become flammable and
and Range Production Company drilled two gas wells their home uninhabitable. Range answered the suit and
about a half-mile from the Lipskys' property. moved to dismiss all claims as an improper collateral
attack on the Railroad Commission's ruling. Range also
A few months after moving into their new home, the
filed a counterclaim against the Lipskys and a third-party
Lipskys experienced mechanical problems with their claim against Rich (the Lipskys' environmental
well. They contacted a well-servicing company, which consultant) alleging defamation, business
identified the problem as "gas locking.'' a condition disparagement, and a civil conspiracy. The Lipskys and
typically associated with an excess of natural gas in the Rich responded by moving to dismiss Range's counter-
ground water. A submersible pump's ability to transport attack as an improper attempt to suppress their First
water from a well can be affected when too much gas is Amendment rights guaranteed r·s1 under the
in the water. Constitution and protected by the Texas Citizens
Participation Act. Tex. Civ. Prac. & Rem. Code §
rsssJ Concerned about the gas in their well water, the
27.005.
Lipskys contacted local r*3] health officials who
referred them to Alisa Rich, an environmental consultant The trial court granted Range's motion to dismiss,
with Wolf Eagle Environmental. After tests, Rich agreeing that the Lipskys' claims were an improper
confirmed the presence of methane and other gases in collateral attack on the Commission's determination.
the well. About this time, Lipsky made a video of himself The court also declined to dismiss Range's claims
lighting gas escaping from a garden hose attached to against the Lipskys and Rich by denying their motions to
his well. To produce this effect, Lipsky connected the dismiss under the Texas Citizens Participation Act. The
hose to a vent on his water well. He shared his video Lipskys and Rich attempted an interlocutory appeal from
with the Environmental Protection Agency (EPA) and this latter ruling, but the court of appeals dismissed the
the media, which reported on the flammable nature of appeal for want of jurisdiction.
2
See Lipsky v.
Lipsky's water well. He also complained about the gas in Range rsB61 Prod. Co., No. 02-12-00098-CV 2012
his well to the Texas Railroad Commission. Lipsky's
own investigation led him to believe that Range, the oil
and gas operator closest to his property, had some 2
At the time, the courts of appeals disagreed about whether
responsibility for contaminating his ground water. the Texas Citizens Participation Act granted an interlocutory
appeal from a signed order denying dismissal. Compare
Both the EPA and Railroad Commission began
Jennings v. Wal/Builder Presentations Inc., 378 S. W.3d 519,
investigating Lipsky's complaints. The EPA initially 524-29 (Tex. App. Fort Worth 2012, pet. denied} (rejecting
concluded that Range's production activities had interlocutory appeal), with San Jacinto Title Servs. of Corpus
contributed to the gas in the Lipskys' well water and that Christi, LLC. v. Kingsley Props., LP. 452 S.W.3d 343, 349
the situation could be hazardous to health and safety. (Tex. App. Corpus Christi 2013, pet. denied) (accepting
The federal agency ordered Range to provide the interlocutory appeal); see also r*6] Justice Nora Longoria &
Lipskys potable water and to install explosivity meters at Nathaniel Beal, 'What Is A SLAPP Case?" Interlocutory
their property. Appeals and the Texas Citizens' Participation Act, 26 APP.
ADVOC. 390, 395-96 (2014). The Legislature has since
The Railroad Commission completed its clarified that HN2 an interlocutory appeal is permitted from any
investigation r*4] a few months later. Although invited interlocutory order denying a motion to dismiss under the
to participate in the Commission's evidentiary hearing, TCPA. See Tex. Civ. Prac. & Rem. Code§ 51.014faJf12); see
the Lipskys declined. The Commission thereafter also Miller Weisbrod, L.L.P. v. L/amas-Soforo, S. W.3d , ,
concluded that Range's operations in the area were not 2014 Tex. App. LEXIS 12745, 2014 WL 6679122, at *6 fTex.
App.-EI Paso 2014, no pet.). Although an interlocutory
the source of the contamination. Lipsky immediately
appeal is clearly the appropriate remedy going forward, we
denounced the Railroad Commission's decision in the
nevertheless consider the issues presented here in the context
media and continued to blame Range, pointing to the of the original mandamus proceedings filed in this Court.
 Page 9 of 17
In re Lipsky

Tex. App. LEXIS 7059, 2012 WL 3600014, at *1 (Tex. evidence" that the plaintiff's claim "is based on, relates
App.-Fort Worth Aug. 23, 2012, pet. denied) (mem. to, or is in response to the [movant's] exercise of: (1) the
4
op.). The court, however, allowed the challenge to right of free speech; (2) the right to petition; 5 or (3) the
proceed as an original proceeding. 411 S. W 3d at 536. right of association. 116 rsa7] Tex. Civ. Prac. & Rem.
Meanwhile, the EPA withdrew its administrative order Code§ 27.005(b). If the movant is able to demonstrate
against Range without explanation. See Joint Stipulation that the plaintiff's claim implicates one of these rights,
of Dismissal Without Prejudice, United States v. Range the second step shifts the burden to the plaintiff to
Prod. Co., No. 3:11-CV-00116-F (N.D. Tex. Mar. 30, "establish[] by clear and specific evidence a prima facie
2012). case for each essential element of the claim in
question." Id. § 27. 005(c).
The court of appeals thereafter determined that the
Texas Citizens Participation Act required the dismissal HN7 In determining whether the plaintiff's [**9] claim
of Range's claims against Lipsky's wife, Shyla, and his should be dismissed, the court is to consider the
environmental consultant, Rich, and that the trial court pleadings and any supporting and opposing affidavits.
had accordingly abused its discretion in not dismissing Id. § 27.006(aJ. Moreover, the motion to dismiss
those claims. 411 S. W3d at 554. The court further ordinarily suspends discovery, id. § 27.003fcJ, although
determined that the TCPA did not similarly require the statute leaves the possibility for a court to order
dismissal of all of Range's claims against Lipsky.3 Id. at limited discovery for "good cause" as it relates to the
546. The court of appeals granted mandamus relief to motion itself, id. § 27.006(b). Within defined time limits,
Lipsky's wife and consulant, while denying similar relief the court must then rule on the motion and must dismiss
to Lipsky, prompting both Lipsky and Range to seek the plaintiffs claim if the defendant's constitutional rights
mandamus relief in this Court. In their respective are implicated and the plaintiff has not met the required
petitions, Lipsky argues that the TCPA required the trial showing of a prima facie case. Id. § 27. 005. The
court to dismiss all claims [**7] against him also, while determination is to be made promptly, ordinarily within
Range argues that the TCPA did not require the 150 days of service of the underlying legal action. See
dismissal of any claims. The Lipsky petition accordingly id. §§ 27.003(bJ, .004(a), .005(a).
concludes that the trial court abused its discretion in
failing to grant his TCPA motion. The Range petition, on In this proceeding, only the second step is at issue-the
the other hand, concludes that the court of appeals question being whether the plaintiff has met its burden
abused its discretion in granting mandamus relief to of "establish[ing] by clear and specific evidence a prima
Lipsky's wife, his environmental consultant, and Lipsky facie case for each essential element of the claim in
himself (in part) because the TCPA did not require it. question." Id. § 27.005(cJ. The parties disagree about
the evidentiary burden this language imposes. Lipsky
II. The Texas Citizens Participation Act argues that the phrase "clear and specific evidence"
elevates the evidentiary standard, requiring Range to
As already mentioned, HN3 the Texas Citizens produce direct evidence as to each element of its claim.
Participation Act or TCPA protects citizens from Range, on the other r·10J hand, argues that
retaliatory lawsuits that seek to intimidate or silence
them on matters of public concern. See House Comm.
on Judiciary & Civil Jurisprudence, Bill Analysis, Tex. 4
HN4 The "right of free speech" refers to communications
H.B. 2973, 82nd Leg., R.S. (2011). The Act provides a
related to "a matter of public concern" which is defined to
special procedure for the expedited dismissal of such
include an issue related to: "(A) health or safety; (B)
suits. A two-step process is initiated by motion of a
environmental, economic, or community well-being; (C) the
defendant who believes that the lawsuit responds to the government; (D) a public official or public figure; or (E) a good,
defendant's valid exercise of First Amendment rights. product, or service in the marketplace." Id. § 27.001(3),
Under the first step, [**8] the burden is initially on the f7)(Al-fE).
defendant-movant to show "by a preponderance of the
5
HN5 The "right to petition" refers to a wide range of
communications relating to judicial, administrative, or other
governmental proceedings. Id.§ 27.001(4).
3
The court of appeals concluded that the trial court should
6
have dismissed the civil conspiracy and aiding and abetting HN6 The "right of association" refers to people "collectively
claims against all defendants, including Steven Lipsky. Id. at express[ing], promotpng], pursu[ing], or defend[ing] common
551-52. interests." Id. § 27.001f2J.
 Page 10 of 17
In re Lipsky

circumstantial evidence and rational inferences may be (Tex. Civ. App.-Tyler 1971, no writ) and S. Cantu &
considered by the court in determining whether clear Son v. Ramirez, 101 S. W2d 820, 822 (Tex. Civ. App.
and specific evidence exists and that the TCPA's prima- San Antonio 1936, no writ)); Rehak Creative Servs., 404
facie-case requirement does not impose a higher or S. W3d at 726 (relying on same two cases).
unique evidentiary standard. The dispute mirrors a
similar disagreement among the courts of appeals. Both cases involved fraud claims. In McDonald, the trial
court granted summary judgment on the fraud claim,
HNB Some courts, focusing on the requirement of "clear and the appellate court affirmed, concluding no material
and specific evidence," have interpreted the statute to fact issue existed as to one or more of the claim's
require a heightened evidentiary standard, unaided by essential elements. McDonald, 464 S. W.2d at 456. The
inferences. See Shipp v. Malouf, 439 S. W.3d 432, 439 court noted that the summary judgment could not be
(Tex. App.-Dallas 2014, pet. denied); Young v. Krantz, reversed on the presumption of fraud but rather required
434 S.W.3d 335, 342-43 ([ex. App.-Dallas 2014, no the existence of a fact issue raised by more than mere
/JfilJ.; KBMT Operating Co. v. Toledo, 434 S.W.3d 276, conjecture:
282 (Tex. App.-Beaumont 2014, pet. granted); Farias
v. Gana, 426 S.W.3d 808, 814 (Tex. App.-San As to appellants' claim of fraud, the burden was
Antonio 2014, pet. filed); Rio Grande H20 Guardian v. upon them to raise a fact issue as to its existence
Robert Muller Family P'ship, Ltd., No. 04-13-00441-cv, by competent evidence. This burden could not be
2014 Tex. App. LEXIS 915, 2014 WL 309776, at *2 discharged in the absence of a showing that all of
(Tex. App.-San Antonio Jan. 29, 2014, no pet.) (mem the elements of actionable fraud were present.
op.); Sierra Club v. Andrews Cnty., Tex., 418 S.W.3d Mere conjecture or evidence which does not
711, 715 (Tex. App.-EI Paso 2013, pet. filed); necessarily tend to that conclusion is insufficient.
Alphonso v. Deshotel, 417 S. W.3d 194, 198 (Tex. Charges of fraud must be established by clear and
App.-EI Paso 2013, no pet.J; Fitzmaurice v. Jones, 417 specific evidence unaided by
S.W3d 627, 632 (Tex. App.-Houston [14th Dist.12013, presumptions, [**12] inferences or intendments.
no pet.J; Rehak Creative Servs., Inc. v. Witt, 404 S.W.3d Until or unless fraud is proved, the presumption is
716, 726 (Tex. App.-Houston [14th Dist.1 2013, pet. in favor of the fairness of a transaction and specific
denied). Implicit in these decisions is the assumption acts of fraud must be both alleged and proved by
that circumstantial evidence is not sufficiently "clear and appellants in response to appellee's motion for
11
specific to satisfy the statutory burden. Other courts, summary judgment.
focusing on the prima-facie-case language, have
Id. (emphasis added).
concluded that the statute permits the court to draw
rational inferences from circumstantial evidence when
The context establishes that the court was not
determining whether the plaintiff has met its threshold
attempting to define "clear and specific evidence" to
factual burden. See Schimmel [*5881 v. McGregor. 438
exclude circumstantial evidence or to require only direct
S. W3d 847, 855 (Tex. App.-Houston [1st Dist.12014,
evidence to create a fact question. Such a definition
pet. denied); Combined Law Enforcement Ass'ns of Tex.
would, of course, have been erroneous "[s]ince HN10
v. Sheffield, No. 03-13-00105-CV, 2014 Tex. App.
intent to defraud is not susceptible to direct proof [and]
LEXIS 1098, 2014 WL 411672, at *10 (Tex. App.-
invariably must be proven by circumstantial evidence."
Austin Jan. 31, 2014, pet. filed) (mem. op.); Newspaper
Spo/iaric v. Percival Tours, Inc., 708 S. W 2d 432, 435
Holdings, Inc. v. Crazy Hotel Assisted Living, Ltd., 416
(Tex. 1986). Similarly, the court in S. Cantu & Son did
S.W3d 71, 80 (Tex. App.-Houston [1st Dist.I 2013,
not define "clear and specific evidence" to exclude
pet. denied}; In re Lipskv, 411 S. W.3d at 539.
circumstantial evidence but instead said that fraud could
not be inferred from the "vague, indefinite, and
HN9 The statute does not define clear and specific
11
7
inconclusive" testimony of interested witnesses.
evidence," but the courts that r•111 have interpreted the
phrase to impose a heightened evidentiary standard
have purportedly found support in the case law. Those
7
courts invariably rely on two cases predating the Act for The court wrote:
the proposition that "clear and specific evidence" means
"evidence unaided by presumptions, inferences or Charges of fraud must be established by clear and
specific evidence, which may not be aided by
intendments." See, e.g., Sierra Club, 418 S. W3d at 715
presumptions or inferences, or intendment. The evidence
(citing McDonald v. Clemens, 464 S. W. 2d 450, 456
and findings of the representations complained of in this
 Page 11 of 17
In re Lipsky

HN11 Circumstantial evidence can, of course, be vague, HN14 All evidentiary standards, including clear and
indefinite, or inconclusive, but it is not so by definition. convincing evidence, recognize the relevance of
Rather, rss9] it is simply indirect evidence that creates circumstantial evidence. In fact, we have acknowledged
an inference to establish a central fact. See Felker v. that the determination of certain facts in particular cases
Petro/on, Inc., 929 S.W.2d 460, 463-64 fTex. App.- may exclusively depend on such evidence. See, e.g.,
Houston {1st Dist.1 1996, writ denied). It is admissible Bentley, 94 S. W.3d at 596 (noting, in a defamation
unless the connection between the fact and the case, that claims involving an element of a
inference is too weak to be of help in deciding the case. defendant's r•1s1 state of mind "must usually [] be
Tex. R. Evid. 401-02. The common law has developed proved by circumstantial evidence"). Circumstantial
several distinct evidentiary standards, but none of these evidence may be used to prove one's case-in-chief or to
standards categorically rejects the use of circumstantial defeat a motion for directed verdict, and so it would be
evidence. odd to deny its use here to defeat a preliminary motion
to dismiss under the TCPA. That the statute should
HN12 The applicable evidentiary standard is generally create a greater obstacle for the plaintiff to get into the
determined by the nature of the case or particular claim. courthouse than to win its case seems nonsensical. See
Criminal cases require proof beyond a reasonable Carreras v. Marroquin, 339 S. W.3d 68, 73 (Tex. 2011)
doubt, a near certainty, whereas civil cases typically (noting that we "interpret statutes to avoid an absurd
apply the preponderance-of-the-evidence standard, that result").
is, a fact-finder's determination that the plaintiff's version
of the events is more likely than not true. Some civil HN15 The TCPA's purpose is to identify and summarily
claims, including some defamation claims, elevate the dispose of lawsuits designed only to chill First
evidentiary standard to require proof by clear-and- Amendment rights, not to dismiss meritorious lawsuits.
convincing evidence. Bentley v. Bunton, 94 S. W.3d 561, See Tex. Civ. Prac. & Rem. Code § 27. 002 (balancing
596 fTex. 2002). This standard requires that "the constitutional rights of persons to petition, speak
the [**14] strength of the plaintiff's proof produces in the freely, associate freely, and otherwise participate in
mind of the trier of fact a firm belief or conviction as to government to the maximum extent permitted by law"
the truth of the allegations. Id. at 597. against "the rights of a person to file meritorious lawsuits
for demonstrable injury"). To accomplish its purpose, the
HN13 Clear and specific evidence is not a recognized Act endorses a summary process, requiring judicial
evidentiary standard. Although it sounds similar to clear review of the pleadings and limited evidence, typically
and convincing evidence, the phrases are not legally within 150 days following service. Tex. Civ. Prac. &
synonymous. The Legislature well understands the Rem. Code §§ 27.003fbJ, rs90J .004fa}, .005faJ;
clear-and-convincing-evidence standard and uses that Jennings, 378 S. W.3d at 526. To defeat an appropriate
standard when it so intends. See, e.g., Tex. Civ. Prac. & TCPA motion to dismiss, the opponent must
Rem. Code §§ 18.033(c), 41.001(2), 41.003(b), {Ql, establish [**16] "by clear and specific evidence a prima
8
134A.004fb}. 147.122. But even were we to assume facie case for each essential element of the claim in
that the Legislature intended to apply the clear-and- question." Tex. Civ. Prac. & Rem. Code§ 27.005fc).
convincing standard in this statute, the statute would still
not exclude circumstantial evidence. As discussed, HN16 neither the Act nor the common
law provides a definition for "clear and specific
evidence. 119 Words and phrases that are not defined by
case are vague, indefinite, and inconclusive, and,
statute and that have not acquired a special or technical
moreover, are so qualified by the testimony [**13] of
appellee and her sister-in-law, upon which her case rests,
meaning are typically given their plain or common
as to rob them of the implications of active fraud meaning. FKM P'ship, Ltd. v. Bd. of Regents of Univ. of
necessary to destroy a written contract. Hous. Sys., 255 S.W.3d 619, 633 (Tex. 2008). The
words "clear'' and "specific" in the context of this statute
S. Cantu & Sons, 101 S. W.2d at 822.

8
The phrase 11clear and specific evidence" appears in only
9
three statutes. See Tex. Civ. Prac. & Rem. Code §§ 22.025, Before the TCPA's enactment, the phrase appeared in two
27.005fc); Tex. Code Crim Proc. art. 38.11, §6. "Clear and reported cases. See McDonald, 464 S. W.2d at 456; S. Cantu
specific showing" appears in two others. See Tex. Civ. Prac. & & Son, 101 S. W.2d at 822. Since its enactment, the phrase
Rem. Code§ 22.024; Tex. Code Crim. Proc. art. 38.11 §§ has appeared in over thirty reported cases tied to a discussion
4fa), {Ql, 5fa). of the statute.
 Page 12 of 17
In re Lipsky

have been interpreted respectively to mean, for the evidence" of each essential element of the claim.
former, "'unambiguous,' 'sure,' or 'free from doubt"' and, Because the Act requires more, mere notice pleading-
for the latter, "'explicit' or 'relating to a particular named that is, general allegations that merely recite the
thing."' See KTRK Television, Inc. v. Robinson, 409 elements of rss11 a cause of action-will not suffice.
S.W3d 682, 689 fTex. App.-Houston (1st Dist.I 2013, Instead, a plaintiff must provide enough detail to show
pet. denied) (quoting BLACK'S LAW DICTIONARY 268, the factual basis for its claim. In a defamation case that
1434 (8th ed. 2004)). implicates the TCPA, pleadings and evidence that
establishes the facts of when, where, and what was
HN17 The statute, however, requires not only "clear and said, the defamatory nature of the statements, and how
specific evidence" but also a "prima facie case." In they damaged the plaintiff should be sufficient to resist a
contrast to "clear and specific evidence," a "prima facie TCPA motion to dismiss.
case" has a traditional legal meaning. It refers to
evidence sufficient as a matter of law to establish a HN21 Though the TCPA initially demands more
given fact if it is not rebutted r•111 or contradicted. information about the underlying claim, the Act does not
Simonds v. Stano/ind Oil & Gas Co.• 134 Tex. 348, 136 impose an elevated evidentiary standard or categorically
S.W.2d 207, 209 (Tex. 1940). It is the "minimum reject circumstantial evidence. In short, it does not
quantum of evidence necessary to support a rational impose a higher burden of proof than that required of
inference that the allegation of fact is true." In re E.I. the plaintiff at trial. We accordingly disapprove those
DuPont de Nemours & Co., 136 S.W.3d 218. 223 (Tex. cases that interpret the TCPA r•1s1 to require direct
2004} (per curiam) (quoting Tex. Tech Univ. Health evidence of each essential element of the underlying
Scis. Ctr. v. Apodaca, 876 S.W.2d 402, 407 (Tex. claim to avoid dismissal. With that understanding of the
App.-EI Paso 1994, writ deniedJJ. Act's requirements, we turn to pleadings and evidence
in this case.
HN18 The TCPA's direction that a claim should not be
dismissed "if the party bringing the legal action Ill. Steven Lipsky's Petition
establishes by clear and specific evidence a prima facie
case for each essential element of the claim in question" Range sued Steven Lipsky, alleging defamation,
thus describes the clarity and detail required to avoid business disparagement, and civil conspiracy. The court
dismissal. Tex. Civ. Prac. & Rem. Code § 27. 005(cJ of appeals found no evidence of a civil conspiracy, but
(emphasis added). Courts are further directed to make some evidence of the other claims, concluding "that the
that determination early in the proceedings, typically on trial court did not abuse its discretion by denying Steven
the basis of the pleadings and affidavits. But pleadings Lipsky's motion to dismiss Range's defamation and
that might suffice in a case that does not implicate the business disparagement claims." 411 S.W.3d at 547.
TCPA may not be sufficient to satisfy the TCPA's "clear Contrary to the court of appeals's opinion, Lipsky argues
and specific evidence" requirement. that no clear and specific evidence shows he defamed
Range or disparaged its business. He concludes then
HN19 Our procedural rules merely require that the that the trial court should have granted his motion to
pleadings provide fair notice of the claim and the relief dismiss pursuant to the TCPA.
sought such that the opposing party can prepare a
defense. See Tex. R. Civ. P. 45 & 47. Even the HN22 Business disparagement and defamation are
omission of an element is not fatal if the cause of action similar in that both involve harm from the publication of
"may be reasonably inferred from what is specifically false information. Waste Mgmt. of Tex., Inc. v. Tex.
stated." Boyles v. Kerr, 855 S. W.2d 593, 601 (Tex. Disposal Sys. Landfill, Inc., 434 S.W.3d 142, 155 fTex.
1993}. Moreover, under notice pleading, a plaintiff is not 2014}. The respective torts, however, serve different
required to "set out in his pleadings the r*1 B] evidence interests. Whereas "defamation actions chiefly serve to
upon which he relies to establish his asserted cause of protect the personal reputation of an injured party, [] a
action." Paramount Pipe & Supply Co. v. Muhr. 749 business disparagement claim protects economic
S. W.2d 491, 494-95 (Tex. 1988}. But the TCPA requires interests." Forbes Inc. v. Granada Biosciences, Inc.. 124
that on motion the plaintiff present "clear and specific S. W.3d 167. 170 fTex. 2003}. Business disparagement
evidence" of "each essential element." or "injurious r•201 falsehood applies to derogatory
publications about the plaintiff's economic or commercial
HN20 Fair notice of a claim under our procedural rules interests." 3 DAN B. DOBBS, PAUL T. HAYDEN & ELLEN M.
11
thus may require something less than clear and specific BUBLICK, THE LAW OF TORTS§ 656, at 615 (2d ed. 2011 ).
 Page 13 of 17
In re Lipsky

The tort does not seek to redress dignitary harms to the S. W.2d at 766). Lipsky contends that the trial court
business owner, but rather redresses aspersions cast should have dismissed Range's business-
on the business's commercial product or activity that disparagement claim because no evidence established
diminishes those interests. Hurlbut v. Gulf At/. Life Ins. that his remarks caused Range any special or economic
Co., 749 S.W.2d 762, 766-67 /Tex. 1987). damages.

HN23 A corporation or other business entity that asserts The court of appeals disagreed. It concluded that an
a claim for defamation may assert an additional or affidavit from Range's senior vice president was
alternative claim for business disparagement if it seeks sufficient proof of Range's damages, at this stage, to
to recover economic damages for injury to the business. defeat Lipsky's motion to dismiss. See 411 S. W.3d at
Burbage v. Burbage. 447 S.W.3d 249. 261 n.6 /Tex. 547 (noting that the affidavit "provided the trial court with
2014}. Impugning one's reputation is possible without minimum but sufficient facts, at this stage in the
disparaging its commercial interests and vice versa. litigation, to raise a rational inference, and therefore
Depending on the circumstances, then, a plaintiff may serve as prima facie proof' of Range's losses).
have a claim for defamation, or for business
10
disparagement, or both. Range's vice president averred in general terms that
Lipsky's statements caused Range to suffer "direct
rs92J A. Business Disparagement (Injurious pecuniary and economic losses and costs, lost profits,
Falsehood) loss of its reputation, and loss of goodwill in the
communities in which it operates ... in excess of three
HN25 To defend against Lipsky's dismissal motion, million dollars. 1112 The court of appeals concluded that
Range's burden under the TCPA was to "establish[] by the affidavit, "by stating that Range had suffered direct
clear and specific evidence a prima facie case for each economic losses and 'lost profits,"' was sufficient "to
essential element of the claim in question." Tex. Civ. raise a rational inference . . . that Range lost 'trade or
Prac. & Rem. Code § 27.00S(c). "To prevail on a other dealings' as a result of statements made by
business disparagement claim, a plaintiff must establish Steven Lipsky." Id. (quoting Hurlbut. 749 S. W.2d at
that (1) the defendant published false and disparaging 76l).
information about it, (2) with malice, (3) without
11
privilege, (4) that resulted in special damages to the Lipsky argues, however, that the affidavit is conclusory
11
plaintiff. Forbes, 124 S. W.3d at 170 (citing Hurlbut. 749
12
The court of appeals quoted from the vice president's
10
affidavit as indicated below: r*23]
Professor Dobbs offers HN24 a number of examples of
commercial disparagement or trade libel that are not strictly As a direct and proximate result and consequence of the
speaking defamatory in the sense of dignitary harm: ... false, disparaging, and defamatory public statements
made by Steven Lipsky . . . regarding Range and its
[A] publication that says the defendant's product is operations, Range's business and reputation have been
a
poisonous and contaminates the land or one that says harmed . . . . The numerous false, disparaging, and
the plaintiffs wood products are inferior and will not stand defamatory public statements made by Mr. Lipsky . . .
up.... A false statement that the ratings [**21] of the have caused Range to be associated in the public as a
plaintiffs radio show are too low to justify continuing the polluter of water and the environment, and nothing could
show . . . . [A] publication falsely stating the price the be further from the truth.
plaintiff charges for his goods [or] that the plaintiff is no
longer carrying on a business or has insufficient funds to ... As a direct and proximate result and consequence of
continue in business. the false, disparaging, and defamatory statements made
by Mr. Lipsky ... , Range has suffered direct pecuniary
3 DAN 8. DOBBS, PAUL T. HAYDEN & ELLEN M. BUBLICK, THE l.AW and economic losses and costs, lost profits, loss of its
OF TORTS§ 656, at 618-19 (2d ed. 2011) (footnotes omitted). reputation, and loss of goodwill in the communities in
which it operates. To date, the damages suffered by
11
HN26 Special damages are synonymous with economic Range as a direct and proximate result and consequence
damages and are distinguishable from general of the conspiracy and . . . defamatory public statements
damages. [**22) General damages are recoverable under a made by Lipsky and Rich are in excess of three million
defamation claim for non-economic losses, such as loss of dollars.
reputation and mental anguish. Hancock v. Varivam, 400
S. W.3d 59, 65 (Tex. 2013). 411 S. W.3d at 546-47 {omissions in original).
 Page 14 of 17
In re Lipsky

and therefore insufficient to satisfy the TCPA's at 146 n. 7. The status of the person allegedly defamed
requirement of "clear and specific evidence, 11 and we determines the requisite degree of fault. A private
agree. HN27 Bare, baseless opinions do not individual need only prove negligence, whereas a public
create r*24] fact questions, and neither are they a figure or official must prove actual malice. WFAA-TV,
sufficient substitute for the clear and specific evidence Inc.• 978 S. W.2d at 571. "Actual malice" in this context
required to establish a prima facie case under the means that the statement was made with knowledge of
TCPA. See Elizondo v. C5931 Krist, 415 S.W.3d 259, its falsity or with reckless disregard for its truth.
264 fTex. 2013) ("Conclusory statement[s] . . . [are] Huckabee v. Time Warner Entm't Co., 19 S.W.3d 413.
insufficient to create a question of fact to defeat 420 (Tex. 2000). Finally, the plaintiff must plead
summary judgment."); City of San Antonio v. Pollock. and r•2s1 prove damages, unless the defamatory
284 S. W.3d 809. 816 fTex. 2009) (holding conclusory, statements are defamatory per se. Waste Mgmt. of
baseless testimony to be no evidence). Opinions must Tex., 434 S. W.3d at 162 n. 7.
be based on demonstrable facts and a reasoned basis.
Elizondo, 415 S. W.3d at 265. We accordingly disagree HN30 Defamation per se refers to statements that are
with the court of appeals that general averments of so obviously harmful that general damages may be
direct economic losses and lost profits, without more, presumed. Hancock, 400 S.W.3d at 63-64. General
satisfy the minimum requirements of the TCPA. damages include non-economic losses, such as loss of
Although the affidavit states that Range "suffered direct reputation and mental anguish. Id. Special damages, on
pecuniary and economic losses," it is devoid of any the other hand, are never presumed as they represent
specific facts illustrating how Lipsky's alleged remarks specific economic losses that must be proven. Id. at 65-
about Range's activities actually caused such losses. 66. And even though Texas law presumes general
See, e.g., Burbage. 447 S.W.3d at 262 {noting that a damages when the defamation is per se, it does not
jury could not reasonably infer that cancellations for a "presume any particular amount of damages beyond
funeral home business were caused by defamation nominal damages." Salinas v. Salinas. 365 S.W.3d 318.
when any number of reasons could have caused the 320 (Tex. 2012) {per curiam). Any award of general
cancellations). damages that exceeds a nominal sum is thus reviewed
for evidentiary support. Burbage. 447 S. W.3d at 259;
Range, however, asserted not only business see also Bentley, 94 S. W. 3d at 606-07 (criticizing award
disparagement but also defamation. HN28 Corporations of mental anguish damages in defamation per rs94] se
and other business entities have reputations that can be case because it was excessive and beyond any figure
libeled apart from the businesses they own, and such the evidence supported).
entities can prosecute r·2s1 an action for defamation in
their own names. See Waste Mgmt. of Tex .. 434 S. W.3d { 1) The Falsehoods
at 147, 150-51 & n.35 {recognizing that a corporation,
Lipsky complains that the trial court should have
as owner of a business, may sue for defamation that
dismissed the defamation claim against him because
injures its reputation). Moreover, a corporation or other
Range failed to establish the defamatory nature of his
business entity asserting a claim for business
alleged statements. The court of appeals listed the
disparagement may also assert additional or alternative
following published statements as potentially
claims for defamation to recover non-economic general
defamatory to Range:
damages such as injury to reputation that are not
recoverable on a business-disparagement claim. Id. at · Range's drilling went under the Lipskys house
155-156 & n.81. We turn then to Range's defamation while omitting that Range's wellbore r•211 was
claim and Lipsky's complaint that the trial court should over a mile below the surface;
have also dismissed it.
· the Lipskys' well no longer pumped water (when it
B. Defamation actually could);

HN29 Defamation's elements include (1) the publication · the Lipskys had found unnatural detergents in the
of a false statement of fact to a third party, (2) that was water;
defamatory concerning the plaintiff, (3) with the requisite
degree of fault, and (4) damages, in some cases. · the Lipskys could not live in their home (although
WFAA-TV. Inc. v. Mclemore, 978 S. W.2d 568, 571 they continued to do so);
fTex. 1998); see also Waste Mgmt. of Tex .. 434 S. W.3d
 Page 15 of 17
In re Lipsky

· Range would eventually "own" the Lipskys' home nevertheless continued its investigation.
(which implied that Range was responsible for
contaminating the Lipskys' water source and would Meanwhile, the EPA decided that Range's two gas wells
be liable for doing so); were an "imminent and substantial endangerment to a
public drinking water aquifer," and issued an Emergency
· Range was politically powerful and had prevailed Administrative Order to that effect on December 7
with the Railroad Commission through corruption, 2010. The next day, rs95] the Commission issued it~
even though the Railroad Commission had Notice of Hearing, inviting the EPA and the Lipskys to
considered extensive evidence to support its participate in an evidentiary hearing on the cause of the
decision and the Lipskys had not participated in the aquifer's contamination. Neither the EPA nor the Lipskys
Railroad Commission's hearing; chose to participate, however.

· the Lipskys could literally light their water on fire, After hearing testimony on the groundwater
and the water was unsafe to drink; investigation and Range's operations in the area, as well
. Range's drilling operations contaminated the as expert testimony on geology, hydrogeology,
microseismic analysis, hydraulic fracturing, geochemical
water (even though the Ra1·1road Comm1·ss1·on had gas fingerprinting, and petroleum engineering, the
found that the operations had not); and Commission's hearing examiners concluded that
Range's gas wells had not contributed to the
· Range treated the Lipskys like "criminals."
contamination of any domestic water wells. The
411 S.W.3d at 545 (footnotes omitted). Lipsky argues examiners concluded instead that the Strawn formation
that these statements are not defamatory either was the most likely source of the gas in the Lipskys'
because they are true, do not explicitly refer to Range, well.
are unverifiable statements of opinion, or are statements
The Strawn is a shallow formation, lying directly beneath
subject to a bona fide scientific dispute. Lipsky made
the Trinity aquifer at a depth of 200 to 400 feet. There
these [**28] statements to the media and to his family
had been gas production from the Strawn in r*30] the
and friends, as well as to the EPA, the Parker County
mid-1980s about a mile from Range's current wells.
Appraisal Review Board, and the Texas Railroad
Range's two wells, however, did not produce from the
Commission.
Strawn. They were instead completed in the Barnett
Shale, a formation lying more than a mile below the
HN31 "It is well settled that the meaning of a publication,
aquifer. And although Range used hydraulic fracturing
and thus whether it is false and defamatory, depends on
of the Barnett Shale to extract its gas, the examiners
a reasonable person's perception of the entirety of a
found that this caused no communication with the
publication and not merely on individual statements."
aquifer, as nearly a mile of rock remained between the
Bentley. 94 S. W. 3d at 579 (internal quotation marks
highest fracture point and the aquifer. The examiners
omitted). While some of the statements may, in
further confirmed the mechanical integrity of Range's
isolation. not be actionable, in looking at the entirety of
wells, finding its production casings properly cemented
Lipsky's publications the gist of his statements were that
and in compliance with the Texas Commission on
Range was responsible for contaminating his well water
Environmental Quality's recommendations for water
and the Railroad Commission was unduly influenced to
quality protection. The examiners noted that gas
rule otherwise.
contamination in water wells throughout the county had
The Commission's investigation coincided with the occurred since at least 2003, several years before
EPA's, beginning in August 2010, after Lipsky Range drilled the two wells in question.
complained to the Abilene District Office about gas in
his water well. That month, the Commission collected Adopting the examiners' findings and conclusions, the
water and gas samples from the Lipskys' well, asked Railroad Commission signed its final order on March 22,
Range to test the mechanical integrity of its wells, and 2011. Afterward, Lipsky was quoted in news articles to
further obtained a gas analysis from Range's operations state that the Commission's decision was "ridiculous,"
for comparison with the gas in the Lipskys' well. After the product of a "corrupt system," and that "it was kind
comparing the respective gas samples, the Abilene of sad." Although he had not participated in [**31] the
District Office found them to have hearing, he referenced the earlier EPA order and his
"distinct [**29] characteristics, 11 but the Commission own expert, who suspected that the contamination
resulted from Range's nearby drilling. Thus, despite the
 Page 16 of 17
In re Lipsky

Commission's conclusions to the contrary, Lipsky itself broken down into separate categories of
continued to maintain that Range was responsible for falsehoods. Accusing someone of a crime, of having a
contaminating the aquifer and his domestic water well. foul or loathsome disease, or of engaging in serious
The court of appeals concluded that there was some sexual misconduct are examples of defamation per se.
evidence of a defamatory statement concerning Range Moore v. Waldrop, 166 S.W.3d 380, 384 /Tex. App.-
sufficient to defeat Lipsky's TCPA motion to dismiss, Waco 2005, no pet.). Remarks that adversely reflect on
and we agree. His statements were not presented as a person's fitness to conduct his or her
opinion but were "sufficiently factual to be susceptible of business r*33] or trade are also deemed defamatory
being proved true or false. 11 Milkovich v. Lorain Journal per se. Hancock, 400 S. W.3d at 66. And whether a
Co., 497 U.S. 1, 21, 110 S. Ct. 2695, 111 L. Ed. 2d 1 statement qualifies as defamation per se is generally a
(1990). question of law. Id.

(2) The Damages Range argues that Lipsky's remarks in this case were
defamatory per se because they reflected on Range's
Lipsky also argues that the trial court should have fitness and abilities as a natural gas producer. HN34 To
dismissed Range's defamation claim because no qualify as defamation per se under this category the
evidence established that his remarks caused the disparaging words must affect the plaintiff in some
company specific damages. The court of appeals again manner that is peculiarly harmful to the plaintiff's trade,
disagreed. It concluded that the affidavit from Range's business, or profession and not merely upon the
senior vice president, which discussed Range's losses plaintiff's general characteristics. See id. at 66-67
in very general terms, was sufficient to defeat Lipsky's (noting that a statement injures one in his profession
TCPA motion to dismiss. See 411 S.W.3d at 547. As we when it would "adversely affect his fitness for the proper
have already determined, the vice president's affidavit conduct" of the business). Range submits that by being
was insufficient proof of Range's special damages for falsely branded as a polluter and a threat to public
purposes of the TCPA. health and safety, Lipsky has portrayed Range as
incompetent, even reckless, as a gas producer, thereby
Range argues, however, that it did [**32) not have to injuring the company's reputation.
submit proof of special damages as part of its
defamation claim because Lipsky's statements were Environmental responsibility is an attribute particularly
defamatory rs9&] per se. HN32 When an offending important to those in [**34) the energy industry-none
publication qualifies as defamation per se, a plaintiff more so than natural gas producers, such as Range,
may recover general damages without proof of any who employ horizontal drilling and hydraulic fracturing in
specific loss. Hancock, 400 S. W 3d at 63-64. Thus, if their business. Accusations that Range's tracking
Lipsky's remarks concerning Range are actionable per operations contaminated the aquifer thus adversely
se, then any failure in proof as to special damages is affect the perception of Range's fitness and abilities as a
irrelevant. In other words, if such losses are not an natural gas producer. HN35 As defamation per se,
essential element of Range's defamation claim, they can damages to its reputation are presumed, although the
have no bearing on Lipsky's dismissal motion under the presumption alone will support only an award of nominal
TCPA. See Tex. Civ. Prac. & Rem. Code § 27. 005/c). damages. Salinas, 365 S. W.3d at 320. Pleading and
proof of particular damage is not required to prevail on a
HN33 The common law distiniuishes defamation claims claim of defamation per se, and thus actual damage is
1
as either per se or per quod. Hancock. 400 S. W.3d at not an essential element of the claim to which the
63. Defamation per se refers to statements that are so TCPA's burden of clear and specific evidence might
obviously harmful that general damages, such as apply. Although Range's affidavit on damages may have
mental anguish and loss of reputation. are presumed. been insufficient to substantiate its claim to special
Id. at 63-64. Defamation per quod is defamation that is damages, it was not needed to defeat Lipsky's dismissal
not actionable per se. Id. at 64. Defamation per se is motion because Range's defamation claim was
actionable per se. The trial court accordingly did not
abuse its discretion in denying Lipsky's motion to
13
The common law distinction between defamation per se and dismiss.
per quod has been criticized as anachronistic and has been
abandoned in some jurisdictions, but Texas has not IV. Range's Petition
abandoned this distinction. See Waste Mgmt. of Tex., 434
S.W.3d at 146 & nn.8-9.
 Page 17 of 17
In re Lipsky

The court of appeals concluded that the TCPA required media reports about "water being lit on fire." Id. The
the dismissal of rss11 Range's business- court of appeals considered the evidence of Rich's
disparagement and defamation claims against Shyla alleged predisposition but concluded it was not clear
Lipsky and Alisa Rich because no (**35] evidence and specific evidence that "Rich had conspired with the
showed that either party published any false statements Lipskys to blame Range on this occasion." Id. The court
about Range concerning contamination of the aquifer in further considered the email documenting Rich's
general or the Lipsky well in particular. 411 S. W 3d at "strategy," but found it to be no evidence of a conspiracy
547-49. The court also concluded that the TCPA to defame or disparage Range. Instead, the court
required the dismissal of Range's civil conspiracy claim observed that the email focused 110n the contamination
because no evidence established that the Lipskys and of the Lipksys' well and on executing a plan to trigger an
Rich agreed to defame Range, an essential element of investigation into the contamination rather than on
Range's civil-conspiracy claim as pied. Id. at 551. In its blaming Range or pursuing an action against Range for
petition, Range seeks reinstatement of its defamation the contamination." Id.
and business-disparagement claims against Shyla
Lipsky, as well as reinstatement of its civil-conspiracy We agree that no clear and specific evidence
claim against all defendants. establishes a prima facie case that Shyla Lipsky or Alisa
Rich published any defamatory remarks concerning
Range complains that the court of appeals failed to give Range or conspired with Steven Lipsky "to publicly
it the benefit of rational inferences drawn from the blame Range for the contamination." r*37] Id. The court
voluminous evidence it presented. It argues that Rich of appeals accordingly did not abuse its discretion in
had a history of publicly blaming drilling, in general- holding that the TCPA required the dismissal of Range's
and Range in particular-for contaminating the claims against Steven Lipsky's wife and environmental
environment and that she devised a "strategy" to get the
consultant and Range's conspiracy claim against all
EPA to investigate the Lipsky contamination claim,
parties.
which she documented in an email to the Lipskys.
Range further complains that Rich played a role in the
***
distribution of Lipsky's "misleading" garden hose video
in furtherance of the conspiracy to defame and The respective petitions filed in this Court by Steven
disparage Range. r*36]
Lipsky and by Range Production Co. and Range
The court observed, however, that Rich, although Resources Corp. are denied.
mentioning Lipsky's video to the EPA, had not used it to
John P. Devine
mislead the agency but rather explained that the hose
had been attached to the well vent. 411 S.W3d at 551. Justice
The court found no evidence that Rich participated in
distributing the video to the media or contributed to Opinion Delivered: April 24, 2015

End of Document
TABN0.17
~ Positive
As of: November 7, 2016 12:50 PM EST

City of Dallas v. Sanchez
Supreme Court of Texas
July 1, 2016, Opinion Delivered
NO. 15-0094

Reporter
494 S.W.3d 722; 2016 Tex. LEXIS 615; 59 Tex. Sup. J. 1540

CITY OF DALLAS, PETITIONER, v. DIANE SANCHEZ, Outcome
INDIVIDUALLY AND AS REPRESENTATIVE OF THE Court of appeals' judgment reversed; judgment
ESTATE OF MATTHEW SANCHEZ, DECEASED, AND rendered dismissing the case.
ARNOLD SANCHEZ, RESPONDENTS
LexisNexis® Headnotes
Prior History: r·11 ON
PETITION FOR REVIEW
FROM THE COURT OF APPEALS FOR THE FIFTH
DISTRICT OF TEXAS. Governments > Local Governments > Claims By & Against
Torts> ... > Liability> State Tort Claims Acts> Construction
City of Dallas v. Sanchez, 449 S. W.3d 645, 2014 Tex. & Interpretation
App. LEXIS 11755 /Tex. App. Dallas, 2014)
HN1 Tex. Civ. Prac. & Rem. Code Ann. § 101.021(2)
Core Terms provides a limited waiver of governmental immunity
arising from the condition or use of tangible personal
malfunction, proximate cause, dispatcher, responders, property.
emergency, pleadings, phone, governmental immunity,
causing injury, disconnected, telephone, immunity, Civil Procedure > ... > Defenses, Demurrers &
overdose, waived Objections > Motions to Dismiss > Failure to State Claim

Case Summary HN2 Tex. R. Civ. P. 91a authorizes dismissal of a cause
of action that has no basis in law or fact.

Overview Civil Procedure > ... > Defenses, Demurrers &
Objections > Motions to Dismiss > Failure to State Claim
HOLDINGS: [1]-An alleged defect in a city's 9-1-1
telephone system was not the proximate cause of a HN3 Dismissal is appropriate under Tex. R. Civ. P. 91 a
drug overdose victim's death because the defect did not if the allegations, taken as true, together with inferences
actually cause the victim's death, nor was his death reasonably drawn from them, do not entitle the claimant
hastened or exacerbated by a telephone malfunction; to the relief sought, or no reasonable person could
the malfunction was merely one of a series of factors believe the facts pleaded. Tex. R. Civ. P. 91a.1.
that contributed to the victim not receiving timely Whether the dismissal standard is satisfied depends
medical assistance; [2)-The victim's death was caused solely on the pleading of the cause of action. Tex. R.
by drugs, the passage of time, and misinterpretation of Civ. P. 91 a.6.
information by dispatchers and emergency responders,
who had received two 9-1-1 calls ten minutes apart, Civil Procedure > Appeals > Standards of Review > De
both seeking assistance for a drug-overdose victim in Novo Review
the same apartment complex; [3)-Because public Civil Procedure > ... > Defenses, Demurrers &
property did not cause the victim's death, city immunity Objections > Motions to Dismiss > Failure to State Claim
was not waived under Tex. Civ. Prac. & Rem. Code
Ann. § 101.021(2). and dismissal under Tex. R. Civ. P. HN4 An appellate court reviews the merits of a Tex. R.
91a was proper. Civ. P. 91 a motion de novo because the availability of a
remedy under the facts alleged is a question of law, and
the rule's factual-plausibility standard is akin to a legal- of Harm
sufficiency review. Torts> ... > Elements> Causation> Causation in Fact

Civil Procedure > ... > Defenses, Demurrers &
HNB Proximate cause requires both cause in fact and
Objections > Motions to Dismiss > Failure to State Claim
foreseeability. For a condition of public property to be a
Civil Procedure > Appeals > Standards of Review > De cause in fact so that governmental immunity is waived
Novo Review under Tex. Civ. Prac. & Rem. Code Ann. § 101.021(2).
the condition must serve as a substantial factor in
HN5 The dismissal grounds under Tex. R. Civ. P. 91a causing the injury and without which the injury would not
have been analogized to a plea to the jurisdiction, which have occurred. When a condition or use of property
requires a court to determine whether the pleadings merely furnishes a circumstance that makes the injury
allege facts demonstrating jurisdiction. Whether a possible, the condition or use is not a substantial factor
pleader has alleged facts affirmatively demonstrating in causing the injury. To be a substantial factor, the
the existence of subject-matter jurisdiction is a question condition or use of the property must actually have
of law reviewed de novo. In a suit against a government caused the injury. Thus, the use of property that simply
entity claiming immunity, to determine whether dismissal hinders or delays treatment does not actually cause the
under Rule 91a is required, an appellate court considers injury and does not constitute a proximate cause of an
whether the pleadings, liberally construed, allege injury.
sufficient facts to invoke a waiver of governmental
immunity under the Tort Claims Act. Counsel: For City of Dallas, Petitioner: Barbara E.
Rosenberg, James B. Pinson, Patricia Medrano De La
Civil Procedure > Appeals > Appellate Jurisdiction > State Garza, Assistant City Attorney, Dallas TX; Warren M.S.
Court Review Ernst, Dallas City Attorney, Dallas TX.

HN6 The Supreme Court of Texas has jurisdiction over For Arnold Sanchez, Diane Sanchez, Respondents:
a petition for review if the court of appeals' decision is Charles {Chad) E. Baruch, Johnston Tobey Baruch,
inconsistent with prior Supreme Court decisions. Tex. P.C., Dallas TX; Michael Brett Anthony, Anthony &
Gov't Code Ann. §§ 22.001(a)(2). lfil., 22.225(b). {Ql, lfil., Peterson, L.L.P, Corpus Christi TX.
51.014{a}{8}.

Torts> ... > Elements> Causation> Proximate Cause Opinion
Torts > Public Entity Liability > Immunities > Qualified
Immunity r124J PER CURIAM
Governments > Local Governments > Claims By & Against
Hours before Matthew Sanchez died from a drug
Torts> ... > Liability> State Tort Claims Acts> Construction overdose, a 9-1-1 operator dispatched an ambulance to
& Interpretation his apartment complex. Once on scene, however,
emergency personnel provided assistance to a different
HN7 The Texas Tort Claims Act waives governmental drug-overdose victim at the same complex and then left
immunity from suit for personal injury and death so the premises without aiding Sanchez, erroneously
caused by a condition or use of tangible personal or real concluding that two closely timed 9-1-1 calls concerning
property if the governmental unit would, were it a private overdose victims at the same locale were redundant. In
person, be liable to the claimant according to Texas law. a wrongful-death suit against the City of Dallas,
Tex. Civ. Prac. & Rem. Code Ann. § 101.02112). For Sanchez's parents allege the 9-1-1 telephone system
immunity to be waived under § 101.021(2), personal malfunctioned and disconnected Sanchez's call before
injury or death must be proximately caused by a the responders could establish the overdose reports
condition or use of tangible personal or real property. were not duplicative.

Governments > Local Governments > Claims By & Against The issue in this Rule 91a dismissal proceeding is
Torts> Public Entity Liability> Immunities> Qualified whether the Texas Tort Claims Act waives the
Immunity City's [**2] immunity from suit based on allegations in
the wrongful-death suit that a condition of the City's
Torts> ... > Liability> State Tort Claims Acts> Construction
telephone system proximately caused Sanchez's death
& Interpretation
by preventing him from receiving potentially life-saving
Torts> ... > Causation> Proximate Cause> Foreseeability medical care. See HN1 Tex. Civ. Prac. & Rem. Code §
101.02112) (providing a limited waiver of governmental Miranda, 133 S. W. 3d at 226; see a/so Ryder Integrated,
immunity arising from the "condition or use" of tangible 453 S. W.3d at 926.
personal property); HN2 Tex. R. Civ. P. 91a (authorizing
dismissal of a cause of action that has no basis in law or In the early hours of November 16, 2012, City of Dallas
fact). We hold governmental immunity is not waived and 9-1-1 dispatchers received two 9-1-1 calls within
dismissal is required because the requisite causal nexus approximately ten minutes of one another. Both calls
between the alleged condition and Sanchez's injury is originated from the same apartment complex and both
lacking. See Dallas County v. Posey. 290 S. W.3d 869. requested assistance for a drug-overdose victim;
872 /Tex. 2009) (the alleged condition must actually however, the calls were placed from different phone
have caused the injury to invoke the Tort Claims Act's numbers and concerned different residents.
immunity waiver; mere involvement of property is not
This wrongful-death and survival action arises from the
sufficient). We therefore reverse the court of appeals'
second 9-1-1 call, which was placed at 2:55 a.m. on
judgment and render judgment dismissing the case.
Matthew Sanchez's behalf. The 9-1-1 dispatcher
acquired information regarding the nature of the
HN3 Dismissal is appropriate under Rule 91a "if the
emergency and Sanchez's address, including the
allegations, taken as true, together with inferences
apartment number, and informed the caller that
reasonably drawn from them, do not entitle the claimant
emergency responders were en route. The call was
to the relief sought . . . [or] no reasonable person could
subsequently disconnected and not reestablished. After
believe the facts pleaded." Tex. R. Civ. P. 91a.1.
emergency responders arrived at the apartment
Whether the dismissal standard is satisfied depends
complex to assist the subject of the first 9-1-1 call, they
"solely on the pleading of the cause of action." Tex. R.
erroneously concluded that the two 9-1-1 calls were
Civ. P. 91 a. 6. HN4 We review r*3] the merits of a Rule
redundant and that a single individual was the subject of
91 a motion de nova because the availability of a
both calls. Consequently, the emergency responders
~edy under the facts alleged is a question of law and
never went to Sanchez's apartment to provide aid.
the rule's factual-plausibility standard is akin to a legal-
Sanchez died at approximately 8:40 a.m.
sufficiency review. See Wooley v. Schaffer, 447 S.W.3d
71. 75-76 /Tex. App. Houston (14th Dist.1 2014. pet.
denied}; cf. Marsh USA Inc. v. Cook. 354 S. W.3d 764.
Sanchez's parents sued the City of Dallas r·51 for
negligence alleging: (1) the City's 9-1-1 dispatcher
768 /Tex. 2011) (application of the law to undisputed misused the phone system by hanging up before
facts is reviewed de nova); City of Keller v. Wilson. 168 emergency responders arrived to assist Sanchez, or in
S.W.3d 802. 827 /Tex. 2005) ("[L]egal-sufficiency review the alternative, the 9-1-1 phone system malfunctioned,
in the proper light must credit favorable evidence if causing the call to disconnect prematurely; (2) the 9-1-1
reasonable jurors could, and disregard contrary dispatcher failed to follow proper procedure and violated
evidence unless reasonable jurors could not."). various federal, state, and local laws and regulations by
either disconnecting the call or failing to redial after the
HN5 The dismissal grounds under Rule 91a have been
call disconnected; and (3) if the emergency responders
analogized to a plea to the r12s1 jurisdiction, which
had located Sanchez before leaving the premises, they
requires a court to determine whether the pleadings
"would have most likely saved [his] life."
allege facts demonstrating jurisdiction. See Wooley. 447
s. W.3d at 75. In this case, the analogy is particularly apt In a Rule 91a motion to dismiss asserting
because the City's Rule 91 a motion challenges the trial governmental immunity from suit, the City argued the
court's subject-matter jurisdiction on the pleaded facts. allegations in the lawsuit did not invoke a waiver of
Whether a pleader has alleged facts affirmatively immunity under the Tort Claims Act because (1) the
demonstrating the existence of subject-matter allegations complained about communication of
jurisdiction is a question of law reviewed de nova. See information and the failure to dispatch an ambulance,
Tex. Dep't of Parks & Wildlife v. Miranda. 133 S. W 3d not a condition or misuse of tangible property, and (2)
217, 226 /Tex. 2004); see a/so Ryder Integrated Sanchez's death was caused by a drug overdose, not
Logistics, Inc. v. Fayette County, 453 S.W.3d 922. 927 the 9-1-1 telephone system. See Tex. Civ. Prac. & Rem.
/Tex. 2015) (per curiam) ('We review jurisdiction and Code§ 101.021(2). Alternatively, to the extent immunity
pleading sufficiency de nova."). To determine whether might otherwise be waived under the Tort Claims Act,
dismissal under Rule 91a is required in this case, we the City asserted the pleadings failed to overcome a
thus consider whether the pleadings, liberally construed, statutory exception making r·&J the Act inapplicable to
allege sufficient facts to invoke a waiver of 9-1-1 emergency services, except for actions that
governmental r*4] immunity under the Tort Claims Act. "violate[] a statute or ordinance applicable to the action."
Id.§ 101.062fb}. more than mere involvement of property; rather, the
condition must actually have caused the injury."). Thus,
The trial court granted the City's motion to dismiss as the use of property that simply hinders or delays
to all claims except the allegation r12s1 that the 9-1-1 treatment does not "actually cause[] the injury" and does
phone system failed or malfunctioned. On interlocutory not constitute a proximate cause of an injury. See Miller.
appeal, the court of appeals affirmed, holding Sanchez's 51 S.W.3d at 588.
parents (1) sufficiently alleged a defect in the phone
system proximately caused his death and (2) In Miller, prison staff misdiagnosed a prisoner's
adequately pleaded a violation of a statute or ordinance meningitis and provided treatment-including pain-
1 relievers, anti-nausea medicine, and fluids-
as an exception to section 101. 062's waiver exclusion.
449 S.W.3d 645, 653-54. that r*B] masked the symptoms and made it more
difficult to correctly diagnose the meningitis. Id. We
HN6 We have jurisdiction over the City's petition for concluded the treatment was not a proximate cause of
review because the court of appeals' decision is the prisoner's death because it "did not actually cause
inconsistent with our decisions in Dallas County v. his death." Id. Instead, the prisoner's death was caused
Posey, 290 S.W.3d 869 (Tex. 2009}. and Texas by meningitis, "the passage of time[,] and an alleged
Department of Criminal Justice v. Miller, 51 S. W.3d 583 error in medical judgment." Id.
fTex. 2001 }. See Tex. Gov'T Code §§ 22. 001 fa}(2}, {!U,
22.225fb}, {Ql, ffil, 51.014fa}(8J; see also Austin State Even construing the pleadings liberally, see Miranda,
Hosp. v. Graham, 347 S.W.3d 298, 300 (Tex. 2011}. 133 S. W. 3d at 226, the alleged telephone-system
malfunction was not a proximate cause of Sanchez's
HN7 The Texas Tort Claims Act waives governmental death. Between the alleged malfunction and Sanchez's
immunity from suit for 11 personal injury and death so death, emergency responders erroneously concluded
caused by a condition or use of tangible personal or real separate 9-1-1 calls r1271 were redundant and left the
property if the governmental unit would, were it a private apartment complex without checking the specific
person, be liable to the claimant according to Texas apartment unit the dispatcher had provided to them.
law." Tex. Civ. Prac. & Rem. Code § 101.021(2). For Moreover, approximately six hours passed between the
immunity to be waived under section 101.021(2}, phone malfunction and Sanchez's death, further
"personal injury or death must be attenuating the causal connection. Although
proximately r•11 caused by a condition or use of disconnection of the telephone call may have
tangible personal or real property." Dallas Cty. Mental contributed to circumstances that delayed potentially
Health & Mental Retardation v. Bossley, 968 S. W. 2d life-saving assistance, the malfunction was too
339, 342-43 fTex. 1998). To establish a waiver of the attenuated from the cause of Sanchez's death-a drug
City's immunity under section 101. 021 (2}. we must overdose-to be a proximate cause. See Bossley, 968
therefore determine whether the phone's condition was S. W.2d at 343 (use of property is not a proximate cause
a proximate cause of Sanchez's death. when it is too attenuated from the injury). The
alleged r*9] defect did not actually cause Sanchez's
HNB Proximate cause requires both "cause in fact and death nor was his death "hastened or exacerbated" by a
foreseeability." Ryder. 453 S. W.3d at 929. For a telephone malfunction. See Posey, 290 S.W.3d at 872;
condition of property to be a cause in fact, the condition Miller, 51 S. W.3d at 588. The malfunction was merely
must "serve[] as 'a substantial factor in causing the one of a series of factors that contributed to Sanchez
injury and without which the injury would not have not receiving timely medical assistance. See Miller, 51
occurred."' Id. (quoting Del Lago Partners. Inc. v. Smith, S. W. 3d at 588. Sanchez's death was caused by drugs,
307 S.W.3d 762. 774 fTex. 2010V. When a condition or the passage of time, and misinterpretation of
use of property merely furnishes a circumstance "that information. See id. (concluding the death was caused
makes the injury possible," the condition or use is not a by meningitis, time, and an alleged error in judgment,
substantial factor in causing the injury. Bossley, 968 not by symptom-masking treatment). Accordingly, the
S. W.2d at 343. To be a substantial factor, the condition pleadings do not establish a defect in the 9-1-1
or use of the property "must actually have caused the telephone system was a proximate cause of Sanchez's
injury." Posey, 290 S. W.3d at 872 ("This nexus requires death as required to establish a waiver of governmental
immunity under the Tort Claims Act.

1
The court of appeals also affirmed dismissal of the Without hearing oral argument, we reverse the court of
Sanchezes' negligent use/misuse claim, but they have not appeals' judgment and render judgment dismissing the
appealed that ruling.
case. See Tex. R. App. P. 59. 1.
OPINION DELIVERED: July 1, 2016