Motion to Limit or Exclude Specific Opinions or Testimony of Dr. James Orr

7/28/2019 Motion to Limit or Exclude Specific Opinions or Testimony of Dr. James Orr

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Respondents Motion to Limit or Exclude Dr. Orr Page 1

SOAH DOCKET NO. 529-13-0997

HHSC-OIG CASE NO.: P20111316523848911

ANTOINE DENTAL CENTER, BEFORE THE STATE OFFICE

Petitioner

v. OF

TEXAS HEALTH AND HUMAN

SERVICES COMMISSION, OFFICE

OF INSPECTOR GENERAL

Respondent ADMINISTRATIVE HEARINGS

MOTION TO LIMIT OR EXCLUDE

SPECIFIC OPINIONS OR TESTIMONY OF DR. JAMES W. ORR

COMES NOW Respondent Texas Health and Human Services Commission Office of

Inspector General (HHSC-OIG) and files this Motion to Limit or Exclude Specific Opinions or

Testimony of Dr. James W. Orr, a general dentist retained by Petitioner Antoine Dental Center as

a testifying expert in this case. Given Dr. Orrs prior testimony and conduct, Respondent

anticipates Dr. Orr will attempt to: (1) misrepresent his prior experience for a private insurance

company to claim he was the Medical Director for Medicaid for the State of Texas; (2) claim a

specialty in occlusion, a field not recognized by the Texas State Board of Dental Examiners or

the American Dental Association; and (3) offer purely speculative opinions as to what the States

Medicaid policy was for the relevant period of this lawsuit (i.e., 2008-2011) when in fact he

lacks the qualifications, knowledge, or experience to support those opinions.

Accordingly, Respondent respectfully requests the Court grant Respondents Motion to

Exclude Dr. Orrs testimony in the areas outlined above, as well as any arguments or evidence

based on such unsubstantiated opinions.


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I. APPLICABLE LEGAL STANDARD

If scientific, technical, or other specialized knowledge will assist the trier of fact to

understand the evidence or to determine a fact in issue, a witness qualified as an expert by

knowledge, skill, experience, training, or education may testify thereto in the form of an opinion

or otherwise. TEX.R.EVID. 702. The party offering the experts testimony bears the burden to

prove that the witness is qualified under [Rule] 702. Broders v. Heise, 924 S.W.2d 148, 151

(Tex. 1996). Expert testimony is admissible if (1) the expert is qualified, and (2) the testimony

is relevant and based on a reliable foundation. Cooper Tire & Rubber Co. v. Mendez, 204

S.W.3d 797, 800 (Tex. 2006), citing Helena Chem. Co. v. Wilkins, 47 S.W.3d 486, 499 (Tex.

2001);E.I. du Pont de Nemours & Co. v. Robinson, 923 S.W.2d 549, 556 (Tex. 1995).

UnderRobinson and its progeny, this Court acts as the gatekeeper of Dr. Orrs

testimony, making the initial determination about whether the expert and the proffered

testimony meet these requirements. Helena Chemical Co., 47 S.W.3d at 499; Robinson, 923

S.W.2d at 556. As the party offering Dr. Orrs testimony, Petitioner bears the burden to prove

Dr. Orr is qualified under Rule 702. See Broders, 924 S.W.2d at 151. It must demonstrate Dr.

Orr possesses special knowledge as to the very matter on which he proposes to give an

opinion. Gammill v. Jack Williams Chevrolet, 972 S.W.2d 713, 718 (Tex. 1998), quoting

Broders, 924 S.W.2d at 152-53.

The question of relevance is particularly critical in this case. As discussed below, Dr. Orr

is a general dentist who claims to be a specialist in occlusion (a specialty which does not exist,

infra), yet has been retained to offer opinions related to Petitioners orthodontic evaluation,

diagnosis, and treatment of Medicaid patients for whom Petitioner submitted prior authorization


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requests. InExxon Pipeline Co. v. Zwahr, 88 S.W.3d 623 (Tex. 2002), the Texas Supreme Court

stressed the requirement that expert testimony be relevant:

The relevance requirement, which incorporates traditional relevancy analysis

under Texas Rules of Evidence 401 and 402, is met if the expert testimony issufficiently tied to the facts of the case that it will aid the jury in resolving a

factual dispute. Robinson, 923 S.W.2d at 556 (quoting United States v.

Downing, 753 F.2d 1224, 1242 (3d Cir. 1985)). Evidence that has no relationshipto any issue in the case does not satisfy rule 702 and is thus inadmissible under

rule 702, as well as rules 401 and 402.Robinson, 923 S.W.2d at 556.

Zwahr, 88 S.W.3d at 629. Because the expert witness occupies a unique place in our

adversarial system of justice, it is critical the Court exercise its gate-keeping authority to

prevent purported experts from presenting testimony that is not based on the requisite

knowledge, training, or experience, and outside the scope of his expertise.

II. ARGUMENTS & AUTHORITIES

Petitioner has designated Dr. Orr as an expert witness who will offer opinions as to

whether Petitioner misrepresented information on prior authorization (PA) forms submitted for

reimbursement from the Texas Medicaid Program and as to the orthodontic services rendered by

Petitioner to its Medicaid patients. As shown below, Dr. Orrs veneer of credibility begins to

dissolve when his prior testimony and conduct is contrasted with the factual record in this case.

A. Dr. Orr Was Not the Medical Director for Medicaid for the State of Texas, nor

Has He Ever Been a Government Employee in a Policy-making Role

Dr. Orr is a general dentist with a private practice in Austin, Texas. Exhibit 1, Orr

Curriculum Vitae, at 1. In his resume, incorporated into Petitioners discovery responses in this

case, he describes himself as the Dental Director of The Texas Medicaid Program from 1995

to 2004. Id. at 2. In prior sworn testimony, Dr. Orr has described himself as the Medical

Director for Medicaid for the State of Texas. Exhibit 2, Deposition of James W. Orr, DDS,


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Apr. 3, 2012, at 15:20-23, 17:9-14, 18:2-4 (stating he served as Texas Medicaid Director from

1995 to the end of 2003); Exhibit 3,Hearing Transcript, Harlingen Family Dentistry v. Health

and Human Servs. Commn , SOAH Docket No. 529-12-3180, Apr. 25, 2012, at 370:25-371:2.

This misrepresentation regarding his role in the Texas Medicaid program is not limited to

litigation Dr. Orr also promotes this fiction to the general public. Exhibit 4, Have You Been

Sued Yet? New Challenges in Risk Management and Recordkeeping,Description of Lecture

Course presentation by Robert Anderton, DDS, JD, LLM and James W. Orr, DDS, June 14, 2013

(describing Dr. Orr as the former Director of the Texas Medicaid Program).

These statements are patently false. Dr. Orr was employed by the National Heritage

Insurance Corporation (NHIC), a private insurance company, as its Dental Director from 1995 to

2003. Exhibit 2, at 18:5-19:6. NHIC was a contractor retained by the Texas Health and Human

Services Commission (HHSC) to assist in implementation of the Texas Medicaid Program.

After NHICs contract with the State ended in 2003, the NHIC dissolved and Dr. Orr returned to

private practice. See id. (noting he was glad to get out). While Dr. Orr attempts to conflate his

work for NHIC a private contractor with that of a State employee or policymaker, the fact

remains he was nothing more than a claims administrator for an outside contractor which went

out of business and whose contract the State let expire nearly 10 years ago. See Exhibit 3 at

376:20-377:4, 378:19-21 (agreeing with the description of NHIC as contractors or the

administrators of the Texas Medicaid program). Furthermore, Dr. Orr was not selected to fill

the role of Dental Director for TMHP, the new contractor, when the position became open in

2004. Moreover, while at NHIC, Dr. Orr did not recall ever implementing any Medicaid policies

related to the orthodontics. Exhibit 2, at 19:14-17. Even for dental policy, Dr. Orr was one of

30 something people on the Medicaid Policy Committee. Id. at 19:18-23.


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The contrast between the false portrayal of Dr. Orr as the Director of the Texas Medicaid

Program and the truth that he was the (head) claims administrator for a private contractor hired

by the State to administer the dental portion of its Medicaid program is significant.

Respondent anticipates Petitioner will attempt to excuse or justify its conduct by offering

testimony of Dr. Orr, based on the knowledge and experience derived (or implied) by his role at

Texas Medicaid when the factual record does not support the pedestal on which Petitioner

attempts to place him. Accordingly, Respondent requests the Court exclude any statements by

Dr. Orr that he was the Director, Medical Director, Dental Director or any such title of the

Texas Medicaid program, or any state agency responsible for administration and implementing

the Medicaid program. Respondent further requests Petitioner be precluded from offering any

opinions or arguments based on such statements by Dr. Orr.

B. Dr. Orrs Claim of Specialization in Occlusion is False and Contrary to State

Regulations and Recognized Industry Standards

Dr. Orr is not an orthodontist. He is a general dentist. Yet he claims to be an occlusion

specialist, which he defines as a person who has studied and works at the way that the teeth

contact each other both sideways and up and down. Exhibit 3, at 368:22-23 (Q: What is your

specialty? A: Occlusion.), 370:3-5. In prior deposition testimony, Dr. Orr indicated he

completed a two-year residency in occlusion at the University of Texas. Exhibit 2, at 13:14-

20.1

He later backtracked; occlusion was only a major study area within a general dentistry

residency. Id. at 33:2-11. Dr. Orr also claims to be an occlusion professor, who instructs and

teaches orthodontists where and why I want the teeth. Id. at 33:7-11; Exhibit 3, at 370:6-10

(noting that he directs orthodontists, who then move the teeth).

1 He also stated he completed two years of postgraduate study in occlusion in Miami, though this specialty

coursework is not indicated on his CV. Exhibit 3, at 370:15-19; Exhibit 1, Orr Curriculum Vitae, at 1.


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Despite Dr. Orrs insistence that he possesses a specialty in occlusion, no such

specialty exists or is recognized by the Texas State Board of Dental Examiners or the American

Dental Association. See 22 Tex. Admin. Code 108.54(a),(b)(specifying the exclusive list of

nine specialties for which a dentist may advertise or use the terms specialty or specialist to

describe professional services in Texas);2 Exhibit 5, Specialty Definitions, American Dental

Assn, 1995-2013 (available at http://www.ada.org/495.aspx) (last visited May 16, 2013).

Similarly, none of the examination boards used by the State of Texas to administer specialty

examinations to Texas dentists recognize occlusion as a specialty. See 22 Tex. Admin. Code

101.2(c); Exhibit 6, Licensure by Specialty Examination, Texas State Board of Dental

Examiners; Exhibit 7, 2013 Specialty Exam Information,Western Regional Examining Board

(2013); Exhibit 8, Specialty Exam Information, North East Region Board of Dental Examiners,

Inc. (2013).

Leaving aside the open question of whether Dr. Orr has committed a violation of the

Texas Dental Practice Act by claiming and representing to the public and the court that he

has specialty training in an unrecognized field,3 Respondent urges the Court to strike Dr. Orrs

testimony to the extent he bases his opinions on any specialized knowledge or training in

occlusion as it relates to orthodontic evaluation, diagnosis, and treatment of patients. Even Dr.

Irwin Ornish, a practicing orthodontist of over 45 years who has been retained by Petitioner as an

expert in this case, rejected Dr. Orrs claimed specialty and his supposed role in instructing

orthodontists:

2 The Texas Dental Practice Act specifies that, [a]s professionals, dentists have the duty to communicate truthfully

and without deception to the public. 22 Tex. Admin. Code 108.50(b)(emphasis added).

3See 22 Tex. Admin. Code 108.54(a),(b), supra.


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Q: Have you ever used an occlusionist in your practice?

A: I'm not sure what an occlusionist is.

Q: Have you ever picked up the phone and called an occlusionist?

A: I'm not sure what an occlusionist is. It's not a recognized specialty in

dentistry.

Exhibit 9,Deposition of Irwin Ornish, DDS, May 9, 2013, at 37:3-9 (emphasis added).

Dr. Orrs lack of qualifications to provide expert opinions with regard to orthodontics is

underscored his own sworn testimony:

Q: Are you currently a practicing orthodontist?

A: No, sir.

Q: Are you a board certified orthodontist?

A: No, sir.

Q: Have you ever practiced as an orthodontist?

A: No, sir.

Q: In the last five years have you solely or independently treated apatient in the field of orthodontia from beginning stages to the end of

treatment?

A: No, sir.

Q: Are you a member of any dental associations, trade groups, specificallythat are related to the field of orthodontia?

A: No, sir.

Q: In the last year have you attended any trainings or courses related to

orthodontics?

A: No, sir.

Q: Do you have any postgraduate residency in orthodontia?


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A: No, sir.

Exhibit 3, at 368:1:22 (emphasis added);4

see also Exhibit 1, Orr Curriculum Vitae (indicating

lack of publications, peer-reviewed or otherwise, relating to orthodontics). The factual record is

clear: there are four designated experts in this case; three are orthodontists, and Dr. Orr is not

one of them. Accordingly, any opinions Dr. Orr seeks to proffer regarding orthodontic

evaluation, diagnosis, or treatment, based on his claimed specialty in occlusion, should be

excluded.

C. Dr. Orrs Opinions as to Texas Medicaid Policy in 2008-2011 are Purely Speculative

Despite Dr. Orrs attempt to portray himself as the voice of the Texas Medicaid Program

as it related to dental and orthodontic claims, the evidence does not support, and in fact, refutes,

such a characterization. Moreover, there is no evidence Dr. Orr has any personal knowledge or

relevant insight as to what Medicaid policy related to dental or orthodontic claims would have

been during the 2008 to 2011 period at issue in this lawsuit. Even while at NHIC, Dr. Orr had no

role in implementing Medicaid policy with regard to orthodontics and was one of 30 something

people on the Medicaid Policy Committee for dental policy. Id. at 19:14-23. In addition, Dr.

Orr himself concedes he has had no meetings with anyone at TMHP or the Medicaid program

regarding dental policies since his departure from NHIC in 2003. Exhibit 2, at 19:14-20:15

(noting his only knowledge in recent years regarding the Texas Medicaid policy is through

reading the Texas Medicaid Provider Manual). Similarly, in prior deposition testimony Dr. Orr

conceded he has no knowledge of the Medicaid prior authorization process after he left his

position at NHIC:

4 Petitioner may argue Dr. Orrs qualifications in orthodontia arise from his experience evaluating claims

submitted for Medicaid reimbursement while Dr. Orr was employed by NHIC. However, his NHIC position was

not a clinical one; Dr. Orr never actually saw or evaluated any of the patients only their score sheets. Exhibit 3, at372:9-15.


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Q: And how is the prior authorization process differ today than when you

were Dental Director?

A: Counsel, I do not know. I'm not familiar with the process as it's been

since I left on a detailed basis, to answer your question.

Exhibit 2, at 21:6-10 (emphasis added).

To summarize, Dr. Orrs only personal knowledge and experience with the Texas

Medicaid program is as a claims administrator through his employment with NHIC, a private

insurance company contracted by the State to administer the Medicaid program until 2003. He

has no continuing knowledge regarding Medicaid policy since the time NHICs contract expired

in 2003, nor has he had any policymaking role with the Texas Medicaid program in the ensuing

10 years, including the years at issue in this lawsuit. As such, any opinions he would render as to

whether Petitioner committed any policy violations between 2008 and 2011 under the Texas

Medicaid Program would be purely speculative and not based on any relevant, specialized

training, knowledge, or experience.

III. CONCLUSION & PRAYER

Respondent respectfully requests the Court grant Motion to Limit or Exclude Dr. Orrs

testimony in each of the areas outlined above, including: (1) any statement implying that he was

a Director (or any such title) of the Texas Medicaid Program or made policy regarding Texas

Medicaid, when in fact he was a claims administrator for a private insurance company hired as

an outside contractor; (2) any statement or opinion based on his claimed specialty in

occlusion, when there is no such specialty in dentistry or orthodontics; or (3) any opinions as

to what Texas Medicaid policy was in 2008-2011 during the years Petitioner allegedly engaged

in conduct that was unlawful, fraudulent, or otherwise in violation of the Texas Medicaid

program. Respondent further requests any additional relief to which it is justly entitled.


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Respectfully submitted,

Dan Hargrove________________________

Dan Hargrove

State Bar No. 00790822WATERS & KRAUS, LLP

3219 McKinney Avenue

Dallas, Texas 75204(214) 357-6244 Telephone

(214) 357-7252 Facsimile

~and~

Jim Moriarty_______________________

James Moriarty

State Bar No. 14459000MORIARTY LEYENDECKER, PC

4203 Montrose Blvd, Suite 150

Houston, TX 77006(713) 528-0700 Telephone

CERTIFICATION OF SERVICE

The undersigned counsel for Respondent, hereby certifies that a true and correct copy of

the foregoing document was served on counsel for Petitioner via facsimile and certified mail,

return receipt requested on this the 20th day of May, 2013.

Dan Hargrove_______________________

DAN HARGROVE


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Documents

Motion to Limit or Exclude Specific Opinions or Testimony of Dr. James Orr