Plaintiff Appendix 08 Cv 675 LY

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS

AUSTIN DIVISION

THE ASSOCIATION OF AMERICAN PHYSICIANS & SURGEONS, INC.,

Plaintiff,

v.

THE TEXAS MEDICAL BOARD (TMB), et al.,

Defendants.

) ) ) ) ) ) ) )

Civil Action

No. 1:08-cv-675-LY

APPENDIX TO PLAINTIFF AAPS’S CLOSING BRIEF

Andrew L. Schlafly Karen Tripp General Counsel Attorney at Law Association of American Physicians and Surgeons, Inc. Texas Bar No. 03420850 New Jersey Bar No. 04066-2003 P.O. Box 1301 939 Old Chester Rd. Houston, TX 77251 Far Hills, NJ 07931 Phone: (713) 658-9323 Phone: (908) 719-8608 Fax: (713) 658-9410 Fax: (908) 934-9207

Attorneys for Plaintiff

TABLE OF CONTENTS FOR PLAINTIFF’S APPENDIX

Excerpts from the Trial Transcript for Day 1 (Oct. 1, 2012) ......................................................... 1a

Excerpts from the Trial Transcript for Day 2 (Oct. 2, 2012) ....................................................... 55a

Excerpts from the Trial Transcript for Day 3 (Oct. 3, 2012) ....................................................... 87a

Plaintiff's Trial Exhibit 2 .............................................................................................................. 95a

Plaintiff's Trial Exhibit 4 .............................................................................................................. 98a

Plaintiff's Trial Exhibit 5 ............................................................................................................ 100a



Plaintiff's Trial Exhibit 16 (excerpt) .......................................................................................... 106a

Plaintiff's Trial Exhibit 34 .......................................................................................................... 108a

Defendants' Trial Exhibit 28 ...................................................................................................... 115a

Newman Marchive P'ship v Hightower, 349 Fed Appx 963 (5th Cir 2009) ............................. 116a

Walter v. Horseshoe Entm’t, 2012 U.S. App. LEXIS 11413 (5th Cir. June 6, 2012) ................................................. 119a

1 IN THE UNITED STATES DISTRICT COURTFOR THE WESTERN DISTRICT OF TEXAS

2 AUSTIN DIVISION

3 THE ASSOCIATION OF AMERICAN PHYSICIANS ) AU:08-CV-00675-LY& SURGEONS, INC., )

4 ) Plaintiff, )

5 )VS. ) AUSTIN, TEXAS

6 )THE TEXAS MEDICAL BOARD, et al. )

7 ) Defendants. ) OCTOBER 1, 2012

8**********************************************

9 TRANSCRIPT OF BENCH TRIALBEFORE THE HONORABLE LEE YEAKEL

10 VOLUME 1 OF 4**********************************************

11APPEARANCES:

12FOR THE PLAINTIFF: ANDREW LAYTON SCHLAFLY

13 939 OLD CHESTER ROAD FAR HILLS, NEW JERSEY 07931

14KAREN TRIPP

15 P.O. BOX 1301 HOUSTON, TEXAS 77251

16FOR THE DEFENDANTS: NANCY K. JUREN

17 ERIC VINSONOFFICE OF THE ATTORNEY GENERAL

18 P.O. BOX 12548 AUSTIN, TEXAS 78711

19BOBBY M. RUBARTS

20 KONING RUBARTS, LLP 1700 PACIFIC AVENUE, SUITE 1890

21 DALLAS, TEXAS 75201

22 COURT REPORTER: ARLINDA RODRIGUEZ, CSR 200 WEST 8TH STREET

23 AUSTIN, TEXAS 78701(512) 916-5143

24Proceedings recorded by computerized stenography, transcript

25 produced by computer.

ARLINDA L. RODRIGUEZ, OFFICIAL COURT REPORTERU.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (AUSTIN) 1a

1 EXAMINATION INDEX

2ROBERTA KALAFUT, D.O.

3 DIRECT BY MR. SCHLAFLY 36CROSS BY MR. RUBARTS 80

4 REDIRECT BY MR. SCHLAFLY 99RECROSS BY MS. JUREN 103

5DANIEL MUNTON, M.D.


7 CROSS BY MS. JUREN 173REDIRECT BY MR. SCHLAFLY 176

8DEBBIE CRAWFORD, D.O.

9 DIRECT BY MR. SCHLAFLY 183CROSS BY MS. JUREN 198

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25


1 EXHIBIT INDEX

2 OFFD / ADMPlaintiff

3 2 Complaint documents relating to Daniel 9 9Munton (TMB 1696, 1698-99)

4 3 December 21, 2006 Request for 9 9

5 complaint/investigation against HendrickMedical Center physicians (TMB 1685)

6 4 December 16, 2005 and November 14, 2006 9 9

7 emails opening investigations againstDebbie Crawford (TMB 1682-1683)

8 6 Declaration of Roberta Kalafut, D.O. 9 9

9 (05/22/2012) (Defs' Mot. S.J. Exh. 8)

10 7 Nov. 13, 2007 Correspondence to Texas 9 9Medical Board (attachment to Kalafut

11 Declaration)

12 8 Nov. 14, 2007 Correspondence from Robert 9 9Simpson (attachment to Kalafut

13 Declaration)

14 9 Nov. 14, 2007 Correspondence from Kalafut 9 9to Physician Colleagues (attachment to

15 Kalafut Declaration)

16 10 Jaime Garanflo Declaration (Defs Mot. S.J. 9 9Exh. 6)

17 20 Letter by Brandecker to Munton dated Feb. 117 ---

18 3, 2006 (Exh. 3 to Brandecker Deposition)

19 21 Munton's statement to Governor Perry 164 164(Exh. 8 to Munton Deposition)

20 22 Spine Abilene medical evaluation, 12/16/05 9 9

21 (Exh. 5 to Kalafut Deposition)

22 24 Employment Agreement with Daniel Munton, 153 153(Exh.12 to Kalafut Deposition)

23 27 Spine Abilene medical evaluation, 12/15/05 9 9

24 (Exh. 21 to Kalafut Deposition)

25


1 EXHIBIT INDEX

2 OFFD / ADMPlaintiff (continued)

3 30 Letter from Robinson to Crawford dated 9 901/03/08 (Exh. 9 to Robinson Deposition)

4 31 Letter from Robinson to Crawford dated 9 9

5 01/10/08 (Exh. 10 to Robinson Deposition)

6 34 TMB Minutes August 2007, 9 9http://www.tmb.state.tx.us/professional...

7 (TMB website, viewed 9/11/12)

8 40 Witness affirmation form for Roberta 9 9Kalafut (Exh. 3 to the Deposition of

9 Mari Robinson)

10 41 Witness affirmation form for Mari Robinson 9 9(Exh. 20 to the Deposition of Mari Robinson)

11Defendant

12 1 Roland F. Chalifoux, DO, TMB Temporary 10 10Suspension Order, July 19, 2002,

13 TMB 998-1000

14 2 Roland F. Chalifoux, DO, TMB Final Order, 10 10June 4, 2004, TMB 1001-26

15 3 Final Judgment, Roland F. Chalifoux, Jr., 10 10

16 D.O. v. Tex. State Bd. of Med. Exam'rs et al., Cause No. GN402591, 53rd District

17 Court, Travis County, Texas

18 4 Roland F. Chalifoux, Jr., D.O. v. Tex. 10 10State Bd. of Med. Exam'rs, et al., 2006 WL

19 3196461 (Tex.App. -- Austin (Nov. 1 ,2006)

20 5 Debbie Crawford, DO, Email opening 10 10investigation, December 16, 2005, TMB 1682

21 6 Debbie Crawford, DO, Email opening 10 10

22 investigation, TMB 1683

23 7 Debbie Crawford, DO Agreed Order, August 10 1021, 2009, TMB 5029-33

24

25


1 EXHIBIT INDEX

2 OFFD / ADMDefendant (continued)

3 8 Stephen Faehnle, MD; Steven Johnson, MD; 10 10Terry Johnson, MD; William Shudde Request

4 for complaint/investigation, December 212006, TMB 1712

5 9 Stephen Faehnle, MD Dismissal letter, 10 10

6 May 22, 2008, TMB 001805

7 10 Steven Johnson, MD Dismissal letter, 10 10May 22, 2008, TMB 001806

8 11 Terry Johnson, MD Dismissal letter, 10 10

9 May 22, 2008, TMB 001807

10 12 William Shudde, MD Dismissal letter, 10 10May 22, 2008, TMB 001808

11 22 Mark Maxwell, DO Complaint 10 10

12 January 25, 2007, TMB-001694

13 24 Daniel Munton MD and Vincent Viola PA 10 10Complaint #07-1506, December 19, 2006,

14 TMB 1696

15 25 Daniel Munton, MD Dismissal letter 10 10Complaint #07-1506, August 29, 2007,

16 TMB 001802

17 26 Vincent Viola, PA Dismissal letter 10 10July 27, 2007, TMB 001803

18 27 Daniel Munton, MD Complaint #07-2450, 10 10

19 February 26, 2007, TMB 1698-99

20 28 Daniel Munton, MD, TMB computer 10 10screenshot, Complaint #07-2450, Closure

21 approved on February 7, 2008, TMB 001810

22 29 Daniel Munton, MD, TMB Board Minutes, 10 10February 7, 2008, Dismissing complaint

23 #07-2450, TMB 001811-1815

24 30 William Rea, MD, Complaint from Sharon 10 10McCann, Oxford Health Plans, August 23

25 2005, TMB 1705


1 EXHIBIT INDEX

2 OFFD / ADMDefendant (continued)

3 31 William Rea, MD, Note on 8/23/2005 10 10complaint, TMB 1708

4 32 William Rea, MD, Complaint from Sharon 10 10

5 McCann, Oxford Health Plans, September 252005, TMB 001706-07

6 33 William Rea, MD Mediated Agreed Order, 10 10

7 August 27, 2010, TMB 1167-74

8 36 Plaintiff's Response to Defendants' First 10 10Set of Interrogatories (02/13/2012)

9 37 Plaintiff's Response to Defendants' First 10 10

10 Set of Interrogatories (02/10/2012)

11 38 Complaint filed by Edward Brandecker, 10 10M.D., re: Eric Sidaris Bennos, MD, June 9

12 2003, TMB 001680

13 39 Eric Sidaris Bennos, MD, Dismissal letter, 10 10October 12, 2004, TMB 001804

14 40 Texas Senate Committee on Health and Human 10 10

15 Services, Interim Report to the 82ndLegislature, December 2010, (available

16 online at:http://www.senate.state.tx.us/75r/Senat...

17 41 Dr. Munton's Resignation Letter 155 155

18 43 Assignment signed by Dr. Munton 150 152

19

20

21

22

23

24

25


KALAFUT - DIRECT

1 A. No, I don't.

2 Q. I'd like to turn your attention to Exhibit 2 of the

3 plaintiff's exhibits. It's the blue book. And, in particular,

4 the last handwritten page of that exhibit, is that your

5 handwriting?

6 A. It all -- the majority of it, it is my handwriting.

7 Except at the very top with the star that says "Do not without

8 Mari." And I don't know whose that is.

9 Q. And do you know who Daniel Munton is who's referenced in

10 this?

11 A. Yes, I do.

12 Q. And at this time was he a competitor of yours?

13 A. According to your definition, yes.

14 Q. And did you submit these handwritten allegations to the

15 Texas Medical Board?

16 A. Yes. I submitted them to Bob Simpson, who was general

17 counsel at the Board.

18 Q. And did you expect him to then investigate Daniel Munton

19 because of your handwritten allegations?

20 A. Not necessarily. I was passing along information from a

21 fellow physician who asked me to contact him.

22 Q. Dr. Kalafut, doesn't it say here with two asterisks next

23 to it, "Subpoena on-call records from June 2006 through

24 February of 2007"?

25 A. Yes, sir, it does.

ARLINDA L. RODRIGUEZ, OFFICIAL COURT REPORTERU.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (AUSTIN)

Q. I'd like to turn your attention to Exhibit 2 of the

3 plaintiff's exhibits. It's the blue book. And, in particular,

4 the last handwritten page of that exhibit, is that your

5 handwriting?

6 A. It all -- the majority of it, it is my handwriting.

7 Except at the very top with the star that says "Do not without

8 Mari." And I don't know whose that is.

9 Q. And do you know who Daniel Munton is who's referenced in

10 this?

11 A. Yes, I do.

12 Q. And at this time was he a competitor of yours?

13 A. According to your definition, yes.

14 Q. And did you submit these handwritten allegations to the

15 Texas Medical Board?

16 A. Yes. I submitted them to Bob Simpson, who was general

17 counsel at the Board.

18 Q. And did you expect him to then investigate Daniel Munton

19 because of your handwritten allegations?

20 A. Not necessarily. I was passing along information from a

21 fellow physician who asked me to contact him.

22 Q. Dr. Kalafut, doesn't it say here with two asterisks next

23 to it, "Subpoena on-call records from June 2006 through

24 February of 2007"?

25 A. Yes, sir, it does.

7a

KALAFUT - DIRECT

1 Q. Doesn't that suggest an investigation into Daniel Munton?

2 A. I was suggesting how to get resolution of this issue that

3 Dr. Santman had.

4 Q. Isn't it true, Dr. Kalafut, that you had actually been

5 told by your office manager, Heather Smith, that there was no

6 problem with Daniel Munton with respect to these allegations?

7 MR. RUBARTS: Your Honor, I object to him raising

8 some hearsay statement that's not in front of the Court and

9 stating it as if it were true.

10 MR. SCHLAFLY: I can rephrase, Your Honor.

11 THE COURT: Please rephrase your question.

12 Q. (BY MR. SCHLAFLY) Did you have an office manager named

13 Heather Smith at this time?

14 A. Yes, sir.

15 Q. And did you ask her to investigate the allegations

16 mentioned in this handwritten complaint that Dr. Munton

17 supposedly had a chiropractor cover his call?

18 A. No, sir. I wouldn't call it investigate. What I would

19 call it as, out of curiosity, after I passed this along from

20 Dr. Santman, I called -- I had her call. And Dr. Munton was on

21 call. And then on her own, she called -- I don't know what

22 time frame it was -- and Dr. Munton was on call.

23 Q. So doesn't that suggest that Dr. Munton was not having a

24 chiropractor cover call for him?

25 A. Yes. For those two times that were called.


Andy

Highlight

KALAFUT - DIRECT

1 Q. And isn't it true that you submitted this handwritten

2 demand to subpoena his records anyway?

3 A. No, sir. This is not --

4 MS. JUREN: Objection, Your Honor. Mischaracterizes

5 what this is and what she said it was, calling it handwritten

6 demand to subpoena records. She testified that's not what it

7 was.

8 THE COURT: Well, it is what it is, and the Court

9 will draw its own conclusion.

10 Q. (BY MR. SCHLAFLY) To rephrase, Dr. Kalafut, isn't it true

11 that you submitted this handwritten note to the Texas Medical

12 Board after you had been informed by Heather Smith that

13 Dan Munton was not having a chiropractor cover his call?

14 A. No, sir. You have it opposite.

15 Q. In terms of the time line, which came first, submitting

16 the allegation or the determination by Heather Smith?

17 A. I submitted a note first, passed along notes from

18 Mark Santman to Bob Simpson. And then sometime later, I was

19 curious to see if this really was the case. And that's when

20 the call was made.

21 Q. Okay. And did you pass on that information to the Texas

22 Medical Board that exonerated Dan Munton?

23 A. No, I did not.

24 Q. Do you know if a Dr. Eric Bennos was reading MRI images

25 for the chiropractors who practice in Abilene?


And then sometime later, I was

19 curious to see if this really was the case. And that's when

20 the call was made.

21 Q. Okay. And did you pass on that information to the Texas

22 Medical Board that exonerated Dan Munton?

23 A. No, I did not.

9a

KALAFUT - DIRECT

1 MR. RUBARTS: Your Honor, we object to this about

2 Dr. Bennos. It's something that happened in 2002-2003, well

3 before -- many years before they bring this claim. So it's --

4 THE COURT: Well, your objection may be a little

5 premature. I'm going to allow her to answer this question, but

6 I'm going to see how he develops it. So you may re-urge your

7 objection.

8 MR. RUBARTS: All right, sir.

9 A. Yes, sir.

10 Q. And did you have an objection to these chiropractors

11 practicing in Abilene?

12 A. No, sir.

13 Q. Do you think it's perfectly appropriate for chiropractors

14 to compete against physicians such as yourself?

15 A. It's part of their -- no, sir. It's part of their

16 training.

17 Q. So you think that's fine, for a chiropractor to compete

18 against you in Abilene?

19 A. Yes, sir.

20 Q. Can you file a complaint with the Texas Medical Board

21 about chiropractors?

22 A. No, sir.

23 Q. And why is that?

24 A. Because we don't have jurisdiction over the

25 chiropractors. Only the Chiropractic Board does.


Q. Can you file a complaint with the Texas Medical Board

21 about chiropractors?

22 A. No, sir.

23 Q. And why is that?

24 A. Because we don't have jurisdiction over the

25 chiropractors. Only the Chiropractic Board does.

10a

KALAFUT - DIRECT

1 Q. But you could file a complaint against the doctor who read

2 MRI images for a chiropractor, can't you?

3 A. Yes, sir.

4 Q. And did your husband file a complaint against Dr. Bennos?

5 A. He did, sir.

6 MR. RUBARTS: Your Honor, excuse me. I didn't jump

7 up quickly enough. This is a complaint that's back in 2003, so

8 we object.

9 THE COURT: Well, pin down the time, and then I'll

10 hear the objection.

11 MR. SCHLAFLY: I'll move on to another issue,

12 Your Honor.

13 MR. RUBARTS: All right.

14 Q. (BY MR. SCHLAFLY) Did you hold a position at Hendrick

15 Medical Center?

16 A. I did, yes.

17 Q. And did Hendrick Medical Center refuse to renew your

18 position?

19 A. Yes, sir. They refused to renew our four-year contract

20 after it expired.

21 Q. And was that contract a six-figure compensation contract?

22 A. Yes, sir. During the initial year, it was. But by year

23 four, it was down to five figures.

24 Q. And when did Hendrick Medical Center decline to renew that

25 contract?


Q. And did Hendrick Medical Center refuse to renew your

18 position?

19 A. Yes, sir. They refused to renew our four-year contract

20 after it expired.

Q. And was that contract a six-figure compensation contract?

22 A. Yes, sir.

11a

KALAFUT - DIRECT

1 A. The contract expired in 1996, and they did not -- they

2 informed us that they would not be renewing it.

3 Q. Did you mean 2006?

4 A. 1996.

5 Q. Isn't it true that you worked -- you had a position at

6 Hendrick Medical Center until near the end of December 2006?

7 A. No, sir. It was from 1992. We were recruited to begin

8 the rehab hospital a year before it started. So it was from

9 1992 through 1996.

10 Q. Did you hold any position at Hendrick Medical Center after

11 1996?

12 A. No, sir.

13 Q. Are you aware that an investigation was opened by the

14 Texas Medical Board against nearly every member of the medical

15 executive committee at Hendrick Medical Center?

16 A. Yes, sir.

17 Q. Is that unusual?

18 A. I believe so. Yes, sir.

19 Q. Have you ever seen that happen to a medical executive

20 committee at any other hospital?

21 A. Not to my knowledge.

22 Q. Were you a staff physician at Hendrick Medical Center when

23 that happened?

24 A. Excuse me. When what happened?

25 Q. When the Texas Medical Board opened an investigation


Q. Are you aware that an investigation was opened by the

14 Texas Medical Board against nearly every member of the medical

15 executive committee at Hendrick Medical Center?

16 A. Yes, sir.

17 Q. Is that unusual?

18 A. I believe so. Yes, sir.

19 Q. Have you ever seen that happen to a medical executive

20 committee at any other hospital?

21 A. Not to my knowledge.

22 Q. Were you a staff physician at Hendrick Medical Center when

23 that happened?

24 A. Excuse me. When what happened?

25 Q. When the Texas Medical Board opened an investigation

12a

KALAFUT - DIRECT

1 against nearly the entire medical executive committee?

2 A. Yes. I held privileges there.

3 Q. And, evidently, you were aware that the investigation was

4 opened, correct?

5 A. I was aware, yes.

6 Q. And did you speak about that investigation with your

7 staff?

8 A. I did not.

9 Q. It's your testimony that your staff, then -- and this is

10 your staff in Abilene in your practice -- would not have any

11 knowledge of this investigation?

12 MR. RUBARTS: Objection. He asked her to speculate

13 on what someone else knows.

14 THE COURT: Sustained.

15 Q. (BY MR. SCHLAFLY) Did you discuss other cases at the Texas

16 Medical Board with your staff in Abilene?

17 A. I did. Yes, sir.

18 Q. Is that improper?

19 A. I'd come back from a board meeting, and I would use it as

20 an example.

21 Q. Example to whom?

22 A. Example to the staff of corrective behavior we may have to

23 do.

24 Q. Did you fill out financial disclosures in connection with

25 your position with the Texas Medical Board?


against nearly the entire medical executive committee?

2 A. Yes. I held privileges there.

3 Q. And, evidently, you were aware that the investigation was

4 opened, correct?

5 A. I was aware, yes.

13a

KALAFUT - DIRECT

1 A. Yes, sir. When I was a Board Member.

2 Q. And do those disclosures require you to state conflicts of

3 interest?

4 A. I don't recall without seeing it.

5 Q. Were you aware from those disclosures of the fact that

6 Keith Miller was testifying in malpractice cases, disclosures

7 that Keith Miller would have filled out?

8 A. Sir, I don't understand the difference between my personal

9 financial statement and a conflict of medical interest on

10 behalf of Keith Miller. I'm not seeing that connection.

11 Q. Okay. Let me rephrase it. When Keith Miller resigned,

12 were you president of the Texas Medical Board?

13 A. Yes, sir.

14 Q. In your capacity as president of the Texas Medical Board,

15 how did you learn of the fact that Keith Miller was testifying

16 in malpractice cases?

17 A. It was sometime after the February board meeting. I got

18 contacted by a local physician who also was on a committee for

19 the TMA. I don't know which committee it was, but he called me

20 to say that there was information they had that perhaps one of

21 our Board Members were -- was functioning also in the role as

22 an expert witness. And I asked him who, and he said he would

23 get back to me with the name.

24 Q. And did he get back to you?

25 A. He did.


I got

18 contacted by a local physician who also was on a committee for

19 the TMA. I don't know which committee it was, but he called me

20 to say that there was information they had that perhaps one of

21 our Board Members were -- was functioning also in the role as

22 an expert witness. And I asked him who, and he said he would

23 get back to me with the name.

24 Q. And did he get back to you?

25 A. He did.

14a

KALAFUT - DIRECT

1 Q. And did he tell you it was Keith Miller?

2 A. Yes, sir.

3 Q. And what did you do next?

4 A. Then I called Donald Patrick, who was executive director

5 of the Texas Medical Board at the time, and I told him that I

6 felt that we had a conflict of interest with Keith Miller. I

7 contacted Keith Miller and asked him if it was true, and he

8 said, yes, he had a role of testifying in expert cases. I

9 don't know if they were in Texas or where, but he did serve as

10 an expert witness.

11 So I went back to Donald Patrick, and we formed

12 immediately a stakeholder's group to draw up rules on conflict

13 of interest of Board Members, since there was no rule at that

14 time. And so we drafted it. The stakeholders presented it in

15 April, which was our next board meeting. So between the

16 February and the April, we had that meeting. And then it has

17 to go through the Texas Register, drafting through that for

18 public comment. And by the time that was all said and done, it

19 was August. And you have a 30-day public comment on the rules

20 when you change them, and they were passed in August.

21 Q. And that's 2007?

22 A. I believe it was 2007.

23 Q. Isn't it true that the State Legislature also passed a law

24 prohibiting this type of conflict of interest?

25 A. I believe so.


Q. nd did he tell you it was Keith Miller?An

2 A. Yes, sir.

15a

KALAFUT - DIRECT

1 Q. And isn't it true that law became effective in June of

2 2007?

3 A. I don't recall those dates exactly. I'm sorry.

4 Q. Isn't it true that Keith Miller continued to serve on the

5 Board after you told him it was a conflict of interest?

6 A. I told him how I felt that it was a conflict of interest,

7 but we had no rules in place to enforce any kind of action one

8 way or another.

9 Q. So is it your testimony that you lack power as the

10 president of the Texas Medical Board to tell Keith Miller to

11 recuse himself?

12 A. Yes, sir.

13 Q. I'd like to turn your attention to the board minutes,

14 which are Exhibit 34 -- Plaintiff's Exhibit 34. Do you

15 recognize Plaintiff's Exhibit 34 as a copy of the Texas Medical

16 Board meeting minutes?

17 A. It looks like what we would typically generate after a

18 board meeting, yes, sir.

19 Q. And it was the practice of the Medical Board to post these

20 on the Internet, and there's an Internet address at the bottom?

21 A. Yes, sir.

22 Q. Do you see in these minutes indication that Dr. Miller

23 recused himself from consideration of disciplinary decisions at

24 this time, August 23rd and 24th of 2007?

25 A. May I take a moment to read this?


Q. So is it your testimony that you lack power as the

10 president of the Texas Medical Board to tell Keith Miller to

11 recuse himself?

12 A. Yes, sir.

Q. Do you see in these minutes indication that Dr. Miller

23 recused himself from consideration of disciplinary decisions at

24 this time, August 23rd and 24th of 2007?

16a

KALAFUT - DIRECT

1 Q. Please.

2 A. Thank you.

3 (Reviews document)

4 No, sir. The only one that recused themselves was me.

5 Q. And why did you recuse yourself?

6 A. I must have had a conflict with one of the -- it was a

7 private order, so I don't know who it was. It was only

8 identified by number.

9 Q. Was this meeting after you told Keith Miller that you

10 thought he had a conflict of interest?

11 A. Yes, sir.

12 Q. So would you have expected Keith Miller to recuse himself

13 just as you recused yourself?

14 A. I would have expected Keith Miller to recuse himself, as

15 any Board Member, if they had any knowledge of the respondent

16 or the order that was being voted upon at that board meeting.

17 Q. But we're discussing his conflict of interest from

18 testifying in malpractice cases. You've indicated you thought

19 that was a conflict of interest. Do you think that Miller

20 should have recused himself for that conflict of interest?

21 A. I don't know -- I don't know the answer to that, because I

22 didn't know at the time the details or were they Texas cases or

23 what did they involve. I just knew he was testifying as an

24 expert. And my issue was, you're a Board Member. You

25 shouldn't be testifying as an expert. That was my feelings at


No, sir. The only one that recused themselves was me.

Q. Was this meeting after you told Keith Miller that you

10 thought he had a conflict of interest?

11 A. Yes, sir.

17a

KALAFUT - DIRECT

1 the time.

2 Q. So would it matter whether it was Texas cases or not Texas

3 cases, in your opinion?

4 A. Well, I don't -- I don't speak for the whole board.

5 Nineteen Board Members have to decide that.

6 Q. I understand. I'm asking for your opinion. In your

7 opinion, should Miller have recused himself from that meeting?

8 A. Not necessarily. No, sir.

9 Q. In your opinion, should Miller have resigned?

10 A. In my opinion, he should have either -- and this is just

11 my opinion, not the full board. It's either testifying as an

12 expert or a Board Member.

13 Q. And he was testifying as an expert. So in your opinion,

14 should he have resigned as a Board Member?

15 A. No, sir. I was not aware of the time frame where he was

16 testifying, did he stop or not. I didn't know the details. I

17 just know he had a history of testifying. I don't know. I

18 didn't know any more about it than that. But I wanted to have

19 Board rules in place that was pretty clear what was expected of

20 Board Members.

21 Q. And the Board rules were that he has to resign if he's

22 testifying in malpractice cases?

23 A. I'm sorry?

24 Q. Do the Board rules require someone to resign if they're

25 testifying in malpractice cases?

ARLINDA L. RODRIGUEZ, OFFICIAL COURT REPORTERU.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (AUSTIN)18a

KALAFUT - DIRECT

1 A. I don't recall the wording of the Board rule now because

2 that was 2007. If you can read it to me, I can say yes or no.

3 Q. Is there any action that the Board could have taken to

4 require Keith Miller to recuse himself?

5 A. I think there are. Yes, sir. I think there are ethics

6 rules in place. And also I think the only one that can ask

7 somebody to resign is the governor who appointed him.

8 Q. In all your time on the Board -- and how long were you on

9 the Board in some capacity? About ten years?

10 A. I was on the actual Board from 2002 to December 2008 and

11 then just served as an ancillary committee -- District Review

12 Committee from 2009 to January 2012.

13 Q. So it's a period of about a decade that you were

14 officially associated with the Board, correct?

15 A. Yes, sir.

16 Q. In all that time, was there ever a single instance of the

17 Board requiring a Board Member or committee member to recuse

18 himself?

19 A. Can you rephrase that question for me again, please?

20 Q. Sure. In that decade that you were officially associated

21 with the Board and the Committee, was there a single instance

22 where the Board required someone to recuse himself from a case?

23 A. No, sir. Not to my knowledge.

24 Q. In all of that time, was there a single requirement

25 developed by the Board for a Board Member to disclose potential


In that decade that you were officially associated

21 with the Board and the Committee, was there a single instance

22 where the Board required someone to recuse himself from a case?

23 A. No, sir. Not to my knowledge.

19a

Andy

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KALAFUT - DIRECT

1 conflicts of interest?

2 A. I believe that is in the application for your possible

3 appointment to any government agency.

4 Q. Once you're on the Board, is there any requirement by the

5 Board of disclosure of ongoing potential conflicts of interest?

6 A. Not that I'm aware of. But I would assume that would be,

7 like, in the code of ethics.

8 Q. But the code of ethics do not apply specifically to Texas

9 Medical Board, correct?

10 A. My understanding is that it applies to all government

11 appointees and agencies.

12 Q. Let's say a doctor was receiving $100,000 a year from an

13 insurance company for consulting. Is there any requirement at

14 the Board that you're aware of that requires the disclosure of

15 that compensation by a Board Member?

16 MR. RUBARTS: Your Honor, Dr. Kalafut has not been

17 designated as an expert witness who is knowledgeable about all

18 the rules. So I object to him asking her hypothetical

19 questions as if she were an expert.

20 THE COURT: Well, I do not take his questions as

21 asking her for expert opinions. She was a member of the

22 Board. She is a physician. I will allow her to answer the

23 question from her personal knowledge, not as an expert.

24 MR. RUBARTS: Thank you, Your Honor.

25 A. Can you ask that question again, please?


KALAFUT - DIRECT

1 Q. Yes. If a doctor on the Board were receiving $100,000 a

2 year in compensation for consulting with an insurance company,

3 are you aware of any requirement of disclosure of that specific

4 potential conflict of interest?

5 A. No, sir.

6 Q. Are you familiar with a doctor named Roland Chalifoux?

7 A. Yes, sir.

8 Q. And are you aware that the Board rejected the

9 recommendation of the SOAH judge with respect to the discipline

10 that the SOAH judge suggested imposing on him?

11 A. I think the case with Dr. Chalifoux -- and I was just

12 coming on the Board. So I just -- and there were other Board

13 Members handling that. So my knowledge is not that -- it's

14 kind of scant on that, what the issues were without reading the

15 Board order.

16 Q. Are you aware that Dr. Chalifoux --

17 MS. JUREN: Excuse me, Your Honor. I object to the

18 testimony with regard to Dr. Chalifoux because, again, this

19 happened back -- his license was revoked in 2004, and it's well

20 before the statute of limitations for AAPS bringing this

21 lawsuit in December of 2007. So I object to the testimony.

22 I'm sorry I didn't jump up soon enough.

23 MR. SCHLAFLY: Your Honor, if I could respond to

24 that, I'm establishing a pattern in this case. And while this

25 case -- newspaper article was 2005, Dr. Kalafut -- Kalafut has


If a doctor on the Board were receiving $100,000 a

2 year in compensation for consulting with an insurance company,

3 are you aware of any requirement of disclosure of that specific

4 potential conflict of interest?

5 A. No, sir.

A. I think the case with Dr. Chalifoux -- and I was just

12 coming on the Board. So I just -- and there were other Board

13 Members handling that. So my knowledge is not that -- it's

14 kind of scant on that, what the issues were without reading the

15 Board order.

21a

KALAFUT - DIRECT

1 remained involved in the Board up until this year officially.

2 And as an individual, she's still involved in issues in this

3 case. So I'm not asserting a claim based on what happened in

4 2005, but it provides the history of the pattern.

5 THE COURT: I will allow him to attempt to establish

6 a pattern. He does not have a claim against Dr. Chalifoux, and

7 the Court of course will not order any recovery for anything

8 that has been barred by limitations. So the objection is

9 overruled, and I will allow the line of questioning.

10 Q. (BY MR. SCHLAFLY) Are you aware that Dr. Chalifoux left

11 Texas and began practicing in West Virginia?

12 A. I did, yes, sir, after I read the discovery.

13 Q. So aside from discovery of this case, you were not that

14 familiar with Dr. Chalifoux's situation; is that correct?

15 A. I was -- as any Board Member that didn't deal directly

16 with the specifics of the order, I was aware of the case, I was

17 aware of some of the issue with the case, but not the details.

18 Q. If you could turn to Plaintiff's Exhibit 11.

19 MS. JUREN: Your Honor, I object to Exhibit 11 --

20 P-11 on the grounds of hearsay.

21 THE COURT: Well, I suspect he's going to try to

22 prove it up. I'm not going to rule on the objection until the

23 exhibit is offered and I hear what mala fides it has.

24 Q. (BY MR. SCHLAFLY) Dr. Kalafut, do you recall speaking with

25 a reporter at the Star Telegram?


Q. (BY MR. SCHLAFLY) Dr. Kalafut, do you recall speaking with

25 a reporter at the Star Telegram?

22a

KALAFUT - DIRECT

1 A. Not until I read this.

2 Q. Did this refresh your recollection?

3 A. Vaguely. Yes, sir.

4 Q. And do you recall, now that you've read this, making a

5 statement to the Star Telegram about Dr. Chalifoux?


7 Q. And now that you've read this, do you recall saying that

8 the practice by Dr. Chalifoux in West Virginia is, quote,

9 frightening, close quote?

10 A. If this is an authenticated copy, then I would say that

11 was my -- that was what was written in the Star Telegram that I

12 said.

13 Q. And is that in fact what you said, now that you've

14 refreshed your recollection?

15 A. If this is authenticated, then I stand by this. That

16 would be a yes.

17 MS. JUREN: Your Honor, I renew my objection to both

18 the timing of this, which is July 7th, 2005, which I think is

19 too old for the Court to consider in this lawsuit, and to

20 the -- to the -- this is not an authenticated anything from the

21 Fort Worth Star Telegram. And the witness has not

22 authenticated this document. So I object to the introduction

23 of this document on two grounds, hearsay and that it's time

24 barred.

25 THE COURT: Well -- all right. Have you offered it,


A. Not until I read this.

2 Q. Did this refresh your recollection?


4 Q. And do you recall, now that you've read this, making a

5 statement to the Star Telegram m about Dr. Chalifoux?


7 Q. And now that you've read this, do you recall saying that

8 the practice by Dr. Chalifoux in West Virginia is, quote,

9 frightening, close quote?

10 A. If this is an authenticated copy, then I would say that

11 was my -- that was what was written in the Star Telegramm that I

12 said.

13 Q. And is that in fact what you said, now that you've

14 refreshed your recollection?

15 A. If this is authenticated, then I stand by this. That

16 would be a yes.

23a

KALAFUT - DIRECT

1 Mr. Schlafly?

2 MR. SCHLAFLY: I have not offered it into evidence,

3 Your Honor. I'm just using it to refresh her recollection.

4 MS. JUREN: Okay.

5 THE COURT: All right you may proceed.

6 Q. (BY MR. SCHLAFLY) Dr. Kalafut, do you recall, now that

7 your recollection has been refreshed, that you said to the Star

8 Telegram, quote, We feel that he's not safe to treat the

9 public, close quote?

10 A. If this is authenticated, then that's what I said and

11 that's what I stand by.

12 Q. Do you have any reason to doubt that you said that?

13 A. No.

14 Q. Would you from time to time make statements to the press

15 about physicians?

16 A. As a spokesperson for the Medical Board, I would.

17 Q. Did you make an inquiry into the facts of this case before

18 you would make this kind of statement to the newspaper?

19 A. No. It's -- it was done in a manner of our media

20 director, who was Jill Wiggins, whenever there was a request

21 from a media source, whether it was TV, newspaper, what have

22 you, would prepare a statement on behalf to the Board and I'd

23 read it.

24 Q. So is it your testimony that there would be a prepared

25 statement by the Board that would have these type of comments,


Andy

Highlight

KALAFUT - DIRECT

1 quote, frightening, close quote, and, quote, We feel he's not

2 safe to treat the public, close quote?

3 A. Yes, sir. But you have to understand our role is public

4 protection, public safety. And when a physician's license is

5 revoked -- and I'm talking in general and it's a serious

6 revocation -- our job is to protect the public. And if this

7 Board order resulted in a revocation and the public was at risk

8 because of everything a physician did, it is our right and our

9 duty to inform the public about a physician.

10 Q. Is it your duty to make statements without checking out

11 all of the facts before you make a statement?

12 A. As a Board, as 19 members, a consensus statement was made

13 and I read it as a spokesperson for the Board.

14 Q. And your testimony is that in this case of Dr. Chalifoux a

15 consensus statement was prepared and you merely read that

16 statement to the newspaper?

17 A. Our media director, after a Board -- after a revocation

18 and we have requests, will read -- will prepare a statement for

19 us or for me or whoever the spokesperson is for the Board at

20 the time.

21 Q. Did you ask your general counsel at the Board,

22 Robert Simpson, to prepare a statement for you that you would

23 send out to doctors in Abilene?

24 A. I did, yes.

25 Q. And did you send out such a statements to doctors in


Q. Did you ask your general counsel at the Board,

22 Robert Simpson, to prepare a statement for you that you would

23 send out to doctors in Abilene?

24 A. I did, yes.

25 Q. And did you send out such a statements to doctors in

25a

KALAFUT - DIRECT

1 Abilene?

2 A. I did, yes.

3 Q. I'd like to direct your attention to Plaintiff's

4 Exhibit 8. Is that a copy of the letter that you requested

5 Robert Simpson to prepare for you and which you then sent out

6 to doctors in Abilene?

7 A. Yes, sir.

8 Q. And when you had Dr. Robert Simpson prepare this letter,

9 did you tell him that you had passed along handwritten

10 allegations to the Board about Dan Munton?

11 A. I just waived our confidentiality and said, Tell anyone

12 and anyone who asks if we filed any complaints.

13 Q. Is that a, no, that you did not tell Robert Simpson about

14 the handwritten allegations that you passed on to the Board?

15 MR. RUBARTS: Your Honor, I object. She's already

16 answered this question. She testified that she gave the notes

17 to Mr. Simpson. So this question has been asked and answered.

18 THE COURT: No, no. The objection is overruled. Go

19 ahead and state your question one more time, Mr. Schlafly.

20 Listen, carefully.

21 MR. SCHLAFLY: Yeah. The --

22 THE COURT: Pardon me. Listen carefully,

23 Dr. Kalafut.

24 Q. (BY MR. SCHLAFLY) The handwritten allegations, that second

25 page of Plaintiff's Exhibit 2 about Dan Munton that you wrote,


Abilene?

2 A. I did, yes.

3 Q. I'd like to direct your attention to Plaintiff's

4 Exhibit 8. Is that a copy of the letter that you requested

5 Robert Simpson to prepare for you and which you then sent out

6 to doctors in Abilene?

7 A. Yes, sir.

26a

KALAFUT - DIRECT

1 complaints against Abilene physicians, especially competitors.

2 And so to clear our name, because this was being circulated, we

3 asked to waive our confidentiality. And I don't believe any

4 President or any Board Member has ever had to waive

5 confidentiality. And we asked that because we wanted to

6 preserve our reputations.

7 Q. So your testimony is that rumors were circulating that you

8 and Ed Brandecker were doing this, correct?

9 A. Yes. This was after that October hearing that y'all had.

10 Q. And to whom did you send this letter?

11 A. To physicians in Abilene.

12 Q. Did you send it to all physicians in Abilene?

13 A. No, sir.

14 Q. Whom did you not send that letter?

15 A. We didn't send it to pediatricians. We did not send it to

16 Dr. Munton.

17 Q. And why did you not send it to Dr. Munton?

18 A. Well, you know, it was one of those when he came back to

19 town, he circulated a letter coming back to town and he sent it

20 to everybody but us. So ...

21 Q. Did his letter say anything negative about you when he

22 came back to town?

23 A. I don't believe so. I'd have to read it.

24 Q. Can you see how this letter that you sent out

25 November 14th, 2007 to physicians other than Dan Munton could


Q. And to whom did you send this letter?

11 A. To physicians in Abilene.

27a

KALAFUT - DIRECT

1 Q. Isn't it true that there were only two designated doctors

2 in Brown County at the time, your husband and Debbie Crawford?

3 MS. JUREN: Objection, Your Honor. It's a vague

4 question. What time?

5 THE COURT: Pin down the time. Pin down a time

6 period.

7 Q. (BY MR. SCHLAFLY) Time period of 2005-2006.

8 A. No, sir. There were many more.

9 Q. Did you evaluate a patient for the Workers' Comp system

10 who had been seen by Debbie Crawford?

11 A. Are you referring to the designated doctor visit?

12 Q. Yes.

13 A. Yes, sir.

14 Q. And did you find any defects in the care provided by

15 Debbie Crawford herself with respect to that patient?

16 A. No, sir.

17 Q. And I'd like to turn your attention to Plaintiff's

18 Exhibit 22. And do you recognize this as being an evaluation

19 that you performed in the Designated Doctor Program?

20 A. Yes, sir.

21 Q. And when you performed these evaluations do you have all

22 of the patient's medical records?

23 A. By the TDI rules, we're supposed to have all the records

24 ten days prior to the exam.

25 Q. Do you recall if you had all the records in this case?


Q. And did you find any defects in the care provided by

15 Debbie Crawford herself with respect to that patient?

16 A. No, sir.

28a

KALAFUT - DIRECT

1 she would have retaliated against him for. You may have

2 alleged it. But on the state of the record at this time, I

3 haven't heard anything about any situation between them or any

4 action or any relationship that would establish any kind of

5 arguable ground that she retaliated against him.

6 MR. SCHLAFLY: Your Honor, I'll try to lay that

7 foundation.

8 THE COURT: All right. Well, I'm going to let you

9 lay it after lunch so you can think about it a little bit.

10 It's 11:50. We're going to recess at this time until 1:30.

11 I'm hopeful that we will be upstairs, but please check before

12 you go to one place or the other. Court's in recess. You may

13 be at ease. I just want to straighten some things up here

14 before I leave the bench.

15 (Recess)

16 THE COURT: I think maybe we're through with musical

17 courtrooms for a while. Mr. Schlafly, I think you were

18 examining the witness, and you may proceed.

19 MR. SCHLAFLY: Thank you, Your Honor.

20 Q. (BY MR. SCHLAFLY) Dr. Kalafut, if you could turn to

21 Plaintiff's Exhibit 20 and let us know if you had anything to

22 do with this letter in Plaintiff's Exhibit 20.

23 A. (Reviews document)

24 No, sir.

25 Q. Does Dr. Dan Munton compete with you in Abilene?


Q. Does Dr. Dan Munton compete with you in Abilene?

29a

KALAFUT - DIRECT

1 A. Yes, sir.

2 Q. Have you said to any patients that you would take away

3 Dr. Munton's license?

4 A. No, sir.

5 Q. Have you disagreed with some of Dr. Munton's treatment for

6 patients?

7 MS. JUREN: Objection, Your Honor. Relevance.


9 Q. (BY MR. SCHLAFLY) Did Vickie Meyers work for you?

10 A. Yes, sir.

11 Q. What was her position there?

12 A. She initially came on as an office manager and then was

13 promoted to a business manager.

14 Q. Have you ever had any confrontations with Vickie Meyers

15 after she left?

16 A. Yes, sir.

17 Q. And what were those?

18 A. I believe it was at a groundbreaking of the new rehab

19 hospital.

20 MR. RUBARTS: Excuse me, Your Honor. I object to the

21 relevance of confrontations she had with someone named

22 Vickie Meyers.

23 THE COURT: I'm going to let him develop a little bit

24 further. I don't know if it has any relevancy or not, but I

25 need to know more about it.


A. Yes, sir.

30a

KALAFUT - REDIRECT

1 Q. Do you recall walking over to her assistant in the middle

2 of that hearing and ordering her to stop taking notes?

3 A. No, sir.

4 Q. You testified that Dr. Crawford asserted the same claims

5 against you that AAPS has asserted against you in this case; is

6 that correct?

7 A. Yes, sir.

8 Q. What are those claims?

9 A. The claims are that we turned her into the Medical Board,

10 my husband and I, and caused her harm.

11 Q. Did Dr. Crawford sue you under Section 1983?

12 A. I don't know, sir.

13 Q. Did someone advise you that they were the same claims?

14 A. Well, it was turned over to the malpractice carrier who

15 said it was similar.

16 Q. You testified about stepping down as president of the

17 Medical Board and serving on a District Review Committee.

18 Isn't it true that by changing from the Medical Board to the

19 District Review Committee, then you no longer had to file any

20 financial disclosures?

21 A. Yes, sir.

22 Q. So just to clarify, by making that shift from president to

23 review committee, that enabled you to stop disclosing your

24 finances. Isn't that right?

25 A. Yes, sir.


Q. So just to clarify, by making that shift from president to

23 review committee, that enabled you to stop disclosing your

24 finances. Isn't that right?

25 A. Yes, sir.

Q. You testified about stepping down as president of the

17 Medical Board and serving on a District Review Committee.

18 Isn't it true that by changing from the Medical Board to the

19 District Review Committee, then you no longer had to file any

20 financial disclosures?

21 A. Yes, sir.

22 Q. So just to clarify,

31a

MUNTON - DIRECT

1 opportunity to cross-examine him. Proceed, Mr. Schlafly.

2 Q. (BY MR. SCHLAFLY) And please explain one or two of those

3 discussions that bothered you.

4 A. She would come into my office and lay down a Board

5 Member. She said that these Board Members were coming in front

6 of her at the Board and asked if I knew any of these bad

7 doctors. She would -- if I said I knew any of them, one of

8 them was a colleague of mine in residency. She went on to tell

9 me throughout the course of while she's seeing this patient or

10 seeing this doctor in front of her at the Board the intimate

11 details of his case while it's ongoing.

12 She would -- she would tell me that her husband was

13 going to turn in a doctor who was working for a competitor of

14 ours in to the Medical Board. She would recuse herself from

15 the case. But when the verdict came back regarding that

16 doctor -- can I use the name of the doctor?

17 Q. Yes.

18 A. He has name is Dr. Eric Bennos. He was a radiologist who

19 read for chiropractors that she said that she despised and put

20 them out of business. She would -- then she did not like the

21 verdict that came down from the Medical Board. She even said

22 she was going to call the Medical Board and try to change the

23 verdict. She called someone named Donald and said, Donald, we

24 have to change this. This can't stand. This is a doctor in

25 Abilene that works for Abilene practitioners who is actually


A. He has name is Dr. Eric Bennos. He was a radiologist who

19 read for chiropractors that she said that she despised and put read for

20 them out of business. She would -- then she did not like the

21 verdict that came down from the Medical Board. She even said

22 she was going to call the Medical Board and try to change the

23 verdict. She called someone named Donald and said, Donald, we

24 have to change this. This can't stand. This is a doctor in

25 Abilene that works for Abilene practitioners who is actually

32a

Andy

Highlight

MUNTON - DIRECT

1 out of Dallas doing teleradiography for the Abilene

2 practitioners. And she spoke with him regarding trying to

3 change that verdict.

4 With regard to my friend -- colleague that she was

5 talking about, Dr. Tony Bui, I called him and I said, Tony,

6 Dr. Kalafut is telling me that you're in front of her at the

7 Medical Board. If you need help from me, if you're having any

8 problems -- substance abuse issues and those types of things --

9 let me know. He said, I don't want to rock any boats. I don't

10 want to do anything rash.

11 MS. JUREN: Objection, Your Honor. This is hearsay.

12 THE COURT: That's sustained.

13 MR. SCHLAFLY: The objection with respect to what

14 Dr. Bui said? Is that what you're referring to?

15 MS. JUREN: Yes.

16 THE COURT: Yes.

17 A. But she told me the intimate details of Dr. Bui's case and

18 said it was before her at the Board. She said when she laid

19 the packet down in front of me that she shouldn't be showing me

20 this packet, but do you know any of these physicians? They're

21 going to be in front of me at the Board.

22 She spoke of a Dr. Rodger Haglund and told me his

23 case that was at the Board at the time regarding his sexual

24 impropriety with patients. She would talk about cases before

25 her at the Board where she would receive the information in our


out of Dallas doing teleradiography for the Abilene

2 practitioners. And she spoke with him regarding trying to

3 change that verdict.

33a

MUNTON - DIRECT

1 office and then distribute that information to myself, to staff

2 members, to office managers. She would talk about it openly in

3 front of patients, to patients, regarding cases that were in

4 front of her at the Board at that time.

5 Q. And did Dr. Kalafut seem to enjoy discussing this

6 information with you and others in the office?

7 MS. JUREN: Objection, Your Honor. Relevance.

8 THE COURT: What's the basis?

9 MS. JUREN: It calls for speculation.


11 MR. SCHLAFLY: I'm asking for Dr. Munton's perception

12 of a defendant.

13 THE COURT: Well, you can -- you can get your answer

14 to the question. I can tell you I'm not going to consider it

15 for any weight, what he thought she thought.

16 MR. SCHLAFLY: I'll withdraw it then, Your Honor.

17 Q. (BY MR. SCHLAFLY) You had mentioned Dr. Kalafut calling

18 the Board in Dr. Bennos' case. And at the time was

19 Donald Patrick the executive director of the Texas Medical

20 Board?

21 A. Yes, he was.

22 Q. And is your testimony that you could hear Dr. Kalafut on

23 the phone talking to Donald at the Texas Medical Board to try

24 to get him to change the decision and impose harsher discipline

25 on Dr. Eric Bennos?


Andy

Highlight

Andy

Highlight

MUNTON - DIRECT

1 A. Yes.

2 Q. And your testimony is the reason for that was because

3 Dr. Bennos was reading MRIs for chiropractors that were in

4 competition with Dr. Kalafut?

5 MR. RUBARTS: Your Honor, I object to the continued

6 leading the witness.

7 MS. JUREN: Also.


9 Q. (BY MR. SCHLAFLY) Why was Dr. Kalafut intent on obtaining

10 harsher discipline for Dr. Bennos?

11 MS. JUREN: Objection, Your Honor. Assumes what --

12 that several things. One, that Dr. Kalafut was intent and that

13 the witness would know why she was intent on something.

14 MR. SCHLAFLY: I'll reword. I'll reword it.

15 Q. (BY MR. SCHLAFLY) Why do you think Dr. Kalafut made a call

16 to the Medical Board to try to get harsher discipline for

17 Dr. Bennos?

18 A. She told me that she did not feel like the verdict that

19 came out of that finding was harsh enough, given the fact that

20 she said that her husband, Ed, had turned in this physician

21 and that she felt like it needed to be a harsher punishment

22 than was divvied out.

23 Q. And was there a competitive issue there also?

24 MS. JUREN: Objection. Calls for speculation.



She told me that she did not feel like the verdict that

19 came out of that finding was harsh enough, given the fact that

20 she said that her husband, Ed, had turned in this physician

21 and that she felt like it needed to be a harsher punishment

22 than was divvied out.

A.

35a

Andy

Highlight

MUNTON - DIRECT

1 Q. Okay. So in an 11-year period, you had never had a single

2 complaint filed against you with the Medical Board?

3 A. Yes.

4 Q. But once you returned to Abilene, how quickly did you have

5 a complaint filed against you with the Medical Board?

6 A. Within the first six months.

7 Q. And then was there a second complaint filed against you

8 with the Medical Board?

9 A. Yeah. Shortly thereafter.

10 Q. And was the medical claim also filed against your

11 physician assistant?

12 A. Yes. He had one in the first six months working with me

13 as well. He had previously been a physician assistant in their

14 practice.

15 Q. So is it correct that you had no complaints filed against

16 you in 11 years, but upon your return to Abilene, you had two

17 complaints filed against you and one against your physician

18 assistant in a period of time of, what, perhaps nine months?

19 A. Eight months.

20 Q. Could you explain for the Court what the process was when

21 you had that first complaint filed against you?

22 A. You receive a complaint. And in the complaint, the one I

23 received, it said failure to supervise physician assistant.

24 So, you know, I see 30 patients a day with my physician

25 assistant. So you get subpoenaed in your office to receive the


Q. So is it correct that you had no complaints filed against

16 you in 11 years, but upon your return to Abilene, you had two

17 complaints filed against you and one against your physician

18 assistant in a period of time of, what, perhaps nine months?

19 A. Eight months.

36a

MUNTON - DIRECT

1 complaint.

2 Q. Let me just interrupt about that. You get subpoenaed.

3 Does that mean somebody actually came into your medical office

4 with a waiting room full of patients and served you with a

5 subpoena for your records?

6 A. Yes.

7 Q. And is that upsetting to your practice?

8 A. Absolutely.

9 Q. Do -- does a room full of patients draw an impression --

10 would you expect -- would you expect that to have a negative --

11 a negative effect on your reputation?

12 A. Yes.

13 MS. JUREN: Objection. Relevance.

14 THE COURT: Overruled.

15 Q. (BY MR. SCHLAFLY) Okay, so once you got that subpoena,

16 then what happened next?

17 A. The complaint itself says failure to supervise physician

18 assistant, so you don't get to see who your accuser is. This

19 is always something that's difficult to understand. We've

20 talked about anonymous complaints. It's always confidential to

21 the doctor. You don't get to know your accuser. In other

22 words, I didn't know who brought the complaint. I didn't get

23 to see the actual complaint that was brought against me. You

24 get to see what Board rule you broke. It only said failure to

25 supervise physician assistant -- not what patient in regards


MUNTON - DIRECT

1 to; not with what case it had to do with; you didn't know your

2 accuser.

3 So I called the Board. This is my first time I ever

4 experienced this. I called the Board and said, How am I

5 supposed to answer a complaint with failure to supervise your

6 physician assistant when I don't know what -- when and if I

7 ever failed to supervise my physician assistant? It was just a

8 broad base, broad stroke. You don't actually get to see the

9 complaint. They just said, Send in everything that's

10 pertinent.

11 So 30 patients a day, six months. We sent in a log.

12 We shut down our office. We start in a log with every patient

13 I've seen with my physician assistant, what I've documented on

14 all of those cases, a log individually on what we did and what

15 the treatment plan was to show that I had seen my -- seen

16 patients with my physician assistant all the way along. That

17 was just my case.

18 My physician assistant also, he was turned in as

19 well. So because he's my employee, you know, I have -- he's my

20 responsibility as well. His case actually had a patient's name

21 in it. It said improper care of -- improper medical management

22 of the patient and gave the name. So on that case, we

23 called -- the patient had seen us one time. We had recommended

24 that she have an imaging study done. She was an elderly

25 patient. And she was supposed to come back and see me. She


MUNTON - DIRECT

1 saw my physician assistant, and she was supposed to come back

2 and follow up and see me.


4 narrative response. I don't even know what the question is at

5 this point.

6 THE COURT: All right. Try to break it up.

7 THE WITNESS: Okay.

8 Q. (BY MR. SCHLAFLY) How long did that take you, to gather

9 this response to the Medical Board?

10 A. You receive the complaint. The date on it was January

11 8th, I believe it was. I had to have everything in by the

12 17th. That was the date they gave me. So I had about a week's

13 time to get all of that put together and sent in. So they say

14 that's your rebuttal time. So we sent it in -- the day we sent

15 it in was the day I'm sent to investigation. In other words,

16 mine is in the mail, I received in the mail that day that I'm

17 going to formal investigation. There is no way possible that

18 anybody had even looked at that information I put together in

19 that week's period of time.

20 Q. So, in other words, the time line and such was impossible

21 for the Medical Board to even consider the information you

22 gave?

23 A. My response to them was in the mail.

24 MS. JUREN: Your Honor, there's been no foundation

25 laid for how he would know whether the Medical Board had time


long did that take you, to gather

9 this response to the Medical Board?

10 A. You receive the complaint. The date on it was January

11 8th, I believe it was. I

Q. (BY MR. SCHLAFLY) HowHow

had to have everything in by the

12 17th. That was the date they gave me. So I had about a week's

13 time to get all of that put together and sent in. So they say

14 that's your rebuttal time. So we sent it in -- the day we sent

15 it in was the day I'm sent to investigation. In other words,

16 mine is in the mail, I received in the mail that day that I'm

17 going to formal investigation. There is no way possible that

18 anybody had even looked at that information I put together in

19 that week's period of time.

20 Q. So, in other words, the time line and such was impossible

21 for the Medical Board to even consider the information you

22 gave?

23 A. My response to them was in the mail.

39a

MUNTON - DIRECT

1 to respond or not.

2 THE COURT: Well, I thought he said he got the reply

3 the same day he sent the materials in.

4 THE WITNESS: Same day.

5 THE COURT: I think the Court can figure out that the

6 Postal Service is not so good that it could have gotten from

7 Abilene to Austin and something back in the same day.

8 MS. JUREN: It seemed -- I must have had some other

9 thought here that I didn't express.

10 THE COURT: Go ahead Mr. Schlafly. You may proceed.

11 Q. (BY MR. SCHLAFLY) What was the impact on you when you got

12 this notice that you were going to formal investigation?

13 A. It's chilling. It's the unknown. It's your medical

14 practice. Your ability to practice medicine, you feel like

15 your licensure may be on the line. Plus in my case, I felt as

16 though -- and based on the facts of the patient that I had seen

17 with my physician assistant that had then gone on to see

18 Dr. Kalafut, that between the letter I received in February and

19 between the Medical Board President being my former competitor,

20 that this may be being brought to me by the President of the

21 Medical Board, which was even more chilling. And the fact that

22 they didn't have a chance to even see my rebuttal. So I felt

23 as though it was chilling to say the least. Trepidation would

24 probably be the word.

25 Q. Was there any merit to this allegations?


MUNTON - DIRECT

1 A. No. In fact, even by the Texas Medical Board --

2 MS. JUREN: Excuse me, Your Honor. I object to a

3 line of questioning having to do with the merits of the case,

4 because we went through this before, we went up to the Fifth

5 Circuit, that this is not supposed to be a case about the

6 individual merits of individual cases. I think it was the

7 grounds upon which AAPS convinced the Fifth Circuit to give

8 them representational standing.

9 So I think Defendants expected that we were going to

10 be trying a lot of individual docket cases, but I believe

11 that's not what AAPS represented to the Fifth Circuit.

12 MR. SCHLAFLY: Your Honor, I'm just asking if the

13 allegations were frivolous.

14 THE COURT: I'll allow him to express his opinion.

15 A. Yes. And they were -- I was exonerated at the Texas

16 Medical Board level.

17 Q. How long did it take the Texas Medical Board to exonerate

18 you?

19 A. The first two that I had were over six months. I then

20 shortly thereafter received a third one that stood for over a

21 year.

22 Q. Is there any reasonable way that it should have taken them

23 so long to clear you?

24 A. In my opinion, no. My third case was so simple, I had

25 somebody take a call for me after hours. I sent in my entire


Andy

Highlight

MUNTON - DIRECT

1 log of every call that had ever come in to me after hours. It

2 was simple. I had a note from my answering service, a note

3 from who took call for me. It took over a year to clear that.

4 Q. And if they had looked at those logs, how long would it

5 have taken them to conclude that the charges were frivolous?

6 MS. JUREN: Objection, Your Honor. Calls for

7 speculation, and it assumes that that's the only thing they

8 did.

9 THE COURT: Well, you will have an opportunity to

10 cross-examine him. I'm going to overrule the objection.

11 A. A matter of minutes.

12 Q. It would have taken them only a matter of minutes to

13 dismiss the charges?

14 A. Yes.

15 Q. I'd like to -- for you to turn to one of the early

16 exhibits -- I guess it would be Plaintiff's Exhibit 2 -- and

17 identify the specific allegations that Texas Medical Board

18 should have resolved in a matter of minutes?

19 MR. RUBARTS: Excuse me, Your Honor. Are we talking

20 about the first page? second page?

21 MR. SCHLAFLY: Well, I'm asking the witness which of

22 the --

23 THE COURT: He's asking him right now to look at the

24 entire exhibit and then to state what his position is on what

25 could have been resolved.


Q. And if they had looked at those logs, how long would it

5 have taken them to conclude that the charges were frivolous?

A. A matter of minutes.

42a

Andy

Highlight

MUNTON - DIRECT

1 MR. RUBARTS: Okay. Thank you.

2 A. If you look at the one that says Dr. Daniel Munton

3 allegation had chiropractor coverage on-call responsibilities.

4 Q. And is that the last page of Plaintiff's Exhibit 2?

5 A. Yes.

6 Q. And is this the one you're testifying that the Texas

7 Medical Board should have been able to resolve in a matter of

8 minutes?

9 A. Yes.

10 Q. And you see that handwriting in the upper right-hand

11 corner that says, Do not without Mari?

12 A. Yes.

13 Q. Does that suggest to you what happened internally?

14 MR. RUBARTS: Objection. Calls for speculation.

15 THE COURT: Well, you're going to have to lay a

16 predicate for that. Sustained

17 Q. (BY MR. SCHLAFLY) It's your understanding that this

18 complaint was held open much longer by the Medical Board than

19 it should have been?

20 A. In my opinion, all of them were.

21 Q. And does that harm you, when a medical board holds open an

22 allegation like that longer than it should?

23 A. Yes.

24 Q. And how does that harm you?

25 A. Multiple different ways. One is you have attorney fees,


Q. And does that harm you, when a medical board holds open an

22 allegation like that longer than it should?

23 A. Yes.

24 .Q And how does that harm you?

25 A. Multiple different ways. One is you have attorney fees,

Q. (BY MR. SCHLAFLY) It's your understanding that this

18 complaint was held open much longer by the Medical Board than

19 it should have been?

20 A. In my opinion, all of them were.

43a

MUNTON - DIRECT

1 and you're talking to your attorneys and trying to get these

2 cases exonerated. So it's expensive to do it. You then get

3 requests for further records, and so you have to take time off

4 of your practice to do the further records and have more

5 information sent in. Like I said, we spent an entire eight

6 days, my staff put together, to get all my logs to try to send

7 in every patient I've ever seen with my physician assistant.

8 Obviously, it's a chilling effect to your staff. It's hard to

9 explain it to your staff. And it's just an emotional toll that

10 takes a big part of it.

11 Q. When you fill out applications -- well, let me ask you

12 this: Do you have hospital privileges?

13 A. Yes.

14 Q. When you fill out applications to renew your hospital

15 privileges or obtain hospital privileges, are you asked about

16 whether you have an investigation pending by the Medical Board?

17 A. Yes. And we have to explain.

18 Q. So when an investigation is held open a long time like

19 this, does that require you to put that on your applications

20 for hospital privileges?

21 A. Yes, it does.

22 Q. And if a hospital decides to reject your application for

23 hospital privileges, does that then cause you problems?

24 A. Yes.

25 Q. Does that get reported to the National Practitioner Data


and you're talking to your attorneys and trying to get these

2 cases exonerated. So it's expensive to do it. You then get

3 requests for further records, and so you have to take time off

4 of your practice to do the further records and have more

5 information sent in. Like I said, we spent an entire eight

6 days, my staff put together, to get all my logs to try to send

7 in every patient I've ever seen with my physician assistant.

8 Obviously, it's a chilling effect to your staff. It's hard to

9 explain it to your staff. And it's just an emotional toll that

10 takes a big part of it.

11 Q. When you fill out applications -- well, let me ask you

12 this: Do you have hospital privileges?

13 A. Yes.

14 Q. When you fill out applications to renew your hospital

15 privileges or obtain hospital privileges, are you asked about

16 whether you have an investigation pending by the Medical Board?

17 A. Yes. And we have to explain.

18 Q. So when an investigation is held open a long time like

19 this, does that require you to put that on your applications

20 for hospital privileges?

21 A. Yes, it does.

22 Q. And if a hospital decides to reject your application for

23 hospital privileges, does that then cause you problems?

24 A. Yes.

25 Q. Does that get reported to the National Practitioner Data

44a

MUNTON - DIRECT

1 Bank?

2 A. I believe it does.

3 Q. Is Dr. Kalafut continuing to cause any problems in your

4 practice in Abilene?

5 A. Yes.

6 Q. And what are some of the ways that she's continuing to

7 cause you problems?

8 MR. RUBARTS: Excuse me, Your Honor. I object to

9 this line of questioning. She's not on the Board, and so

10 anything else they're talking about, I mean, he's just asking

11 for some kind of personal dispute that doesn't have any place

12 here.

13 MS. JUREN: I join that objection.

14 MR. SCHLAFLY: Your Honor, Dr. Kalafut is an

15 individual defendant, and we're seeking equitable relief here

16 against her personally.

17 MR. RUBARTS: Your Honor, there is not one word about

18 any equitable relief against Dr. Kalafut. We can pull out the

19 complaint and look at it right now, and it all talks about a

20 claim against TMB declaratory and injunctive relief. There is

21 not a single request for injunction against Dr. Kalafut.

22 THE COURT: Mr. Schlafly, tell me where in the

23 complaint it's found.

24 MR. SCHLAFLY: Your Honor, our position is that

25 Dr. Kalafut is working with the TMB even though she is not


Bank?

2 A. I believe it does.

45a

MUNTON - DIRECT

1 officially on the Board, and we are seeking -- we have sought

2 equitable injunctive relief against her from the beginning on a

3 personal level.

4 THE COURT: Well, I'm going to sustain the

5 objection. If you can link up something which I haven't heard

6 so far about her continuing to work with the Board, if he has

7 some testimony about that, Dr. Munton does, I will hear it as

8 opposed to just now opening this up. This whole thing is about

9 the Board, and Dr. Kalafut is sued in her individual capacity,

10 but that doesn't mean we go beyond what the allegations in the

11 pleadings are. So you're going to need a better predicate than

12 what's been laid so far.

13 Q. (BY MR. SCHLAFLY) Dr. Munton, are you concerned that after

14 this case is over that Dr. Kalafut may pass more allegations to

15 the Board that are baseless about you?

16 A. Yes.

17 MR. RUBARTS: He answered so fast.

18 THE COURT: I'm going to overrule the objection. I'm

19 going to let him say what he thinks. There is clearly a

20 situation here between the two of them. You know, I recognize

21 that. I sit up here and hear these allegations. Go ahead,

22 Mr. Schlafly.

23 Q. (BY MR. SCHLAFLY) Does Dr. Kalafut disparage you to

24 patients whom you've seen?

25 A. Yes.


Q. (BY MR. SCHLAFLY) Dr. Munton, are you concerned that after

14 this case is over that Dr. Kalafut may pass more allegations to

15 the Board that are baseless about you?

16 A. Yes.

46a

MUNTON - DIRECT

1 against you because of how you provided some information to the

2 Legislative Committee?

3 MS. JUREN: Object to leading, Your Honor.


5 Q. (BY MR. SCHLAFLY) Do you feel that the letters that

6 Kalafut sent out in 2007, November of 2007, were retaliation

7 against you?

8 A. Yes.

9 Q. Did you provide some information to the Legislative

10 Committee before the Texas Medical Board hearing in October of

11 2007?

12 A. Yes.

13 Q. Have you testified before the Legislative Committees?

14 A. Yes.

15 Q. Do you feel that Kalafut is retaliating against you by

16 deliberately contradicting some of your medical advice to

17 patients?

18 MS. JUREN: Objection. Leading and relevance.

19 THE COURT: I'll sustain the leading.

20 Q. (BY MR. SCHLAFLY) Are there other ways that you feel that

21 Dr. Kalafut is retaliating against you?

22 A. Yes.

23 Q. What are those other ways?

24 A. Speaking disparagingly against me in the community. Sends

25 out letters to my referral sources. I am a referral-based


Do you feel that the letters that

6 Kalafut sent out in 2007, November of 2007, were retaliation

7 against you?

8 A. Yes.

9 Q. Did you provide some information to the Legislative

10 Committee before the Texas Medical Board hearing in October of

11 2007?

12 A. Yes.

13 Q. Have you testified before the Legislative Committees?

14 A. Yes.

47a

CRAWFORD - DIRECT

1 Q. And when was that?

2 A. I went from 1990 to 1994.

3 Q. And why did you decide to go to medical school?

4 A. I'd always wanted to. It was a dream to go.

5 Q. How old were you when you went to medical school?

6 A. Thirty-four.

7 Q. And you have a child now?

8 A. Yes. He was 14.

9 Q. Fourteen years old?

10 A. Maybe 12 when I started.

11 Q. Uh-huh. And did you begin practicing in Brownwood, Texas

12 in 1995?

13 A. Yes, sir.

14 Q. And did you practice -- practice medicine in proximity to

15 Ed Brandecker?

16 A. Yes, sir.

17 Q. And were you one of two designated doctors in

18 Brown County?

19 MS. JUREN: Objection. Time period. Excuse me.

20 Vague question. Doesn't ask what time period.

21 MR. SCHLAFLY: Okay.

22 Q. (BY MR. SCHLAFLY) In the time period of 2005 to 2006, were

23 you one of two designated doctors in Brown County?

24 A. In that general time period, yes, sir.

25 Q. If you could turn to Plaintiff's Exhibit 33 in the book --


Q. And did you practice -- practice medicine in proximity to

15 Ed Brandecker?

16 A. Yes, sir.

17 Q. And were you one of two designated doctors in

18 Brown County?

Q. (BY MR. SCHLAFLY) In the time period of 2005 to 2006, were

23 you one of two designated doctors in Brown County?

24 A. In that general time period, yes, sir.

48a

CRAWFORD - DIRECT

1 the blue book, do you recognize that to be a listing of

2 designate Doctors in Brown County?

3 A. Yes, sir.

4 Q. And do you see your own name on that list?

5 A. Yes.

6 THE COURT: What exhibit are we looking at?

7 MR. SCHLAFLY: Plaintiff's 33.

8 THE COURT: All right. I've got it.

9 Q. (BY MR. SCHLAFLY) And were you and Ed Brandecker the only

10 two designated doctors in Brown County?

11 A. During that time period -- and I checked this multiple

12 times -- we were. However, there were some doctors that would

13 come and go off the list. But in that general time period

14 you're referring to, yes, sir, most of the time we were the

15 only two.

16 Q. And what does it mean to be a designated doctor?

17 A. It means that you do impairment ratings for Work Comp

18 patients, and that you would be the highest authority in that

19 impairment rating and you would overturn the treating doctor's

20 impairment in most cases. You have the strongest -- you would

21 have to have a preponderance of the evidence to overturn a

22 designated doctor's impairment rating.

23 Q. And are those designated doctor evaluations relatively

24 profitable compared to other types of office visits?

25 A. Yes, sir.


Q. (BY MR. SCHLAFLY) And were you and Ed Brandecker the only

10 two designated doctors in Brown County?

11 A. During that time period -- and I checked this multiple

12 times -- we were. However, there were some doctors that would

13 come and go off the list. But in that general time period

14 you're referring to, yes, sir, most of the time we were the

15 only two.

16 Q. And what does it mean to be a designated doctor?

17 A. It means that you do impairment ratings for Work Comp

18 patients, and that you would be the highest authority in that

19 impairment rating and you would overturn the treating doctor's

20 impairment in most cases. You have the strongest -- you would

21 have to have a preponderance of the evidence to overturn a

22 designated doctor's impairment rating.

23 Q. And are those designated doctor evaluations relatively

24 profitable compared to other types of office visits?

25 A. Yes, sir.

49a

CRAWFORD - DIRECT

1 Q. So is it desirable to be on the designated doctor list?

2 A. Yes.

3 Q. And if you were removed from that designated doctor list,

4 would Ed Brandecker receive some of that business that you had?

5 A. Yes. Every month they go through and do a rotation basis

6 of the assignment. So if they have so many in a week's period

7 of time, they rotate from one doctor to the next as far as I

8 understand that, unless there's a conflict.

9 Q. Did you have a complaint filed against you with the Texas

10 Medical Board relating to two different patients, one that was

11 seen by Ed Brandecker and one that was seen by Roberta Kalafut,

12 in the same complaint?

13 A. Yes, sir.

14 Q. Is there any possible source for that complaint other than

15 Brandecker and Kalafut's office?

16 A. Not to my --


18 THE COURT: I'll let her state her opinion.

19 A. In my opinion, no, sir. They had different insurance

20 companies. And I continued to see the patients, so it wasn't

21 the patients that were the source.

22 Q. So the patients did not file the complaint?

23 A. No, sir.

24 Q. And the insurance companies did not file the complaint?

25 A. No. They were two different insurance companies.


Q. And if you were removed from that designated doctor list,

4 would Ed Brandecker receive some of that business that you had?

5 A. Yes. Every month they go through and do a rotation basis

6 of the assignment. So if they have so many in a week's period

7 of time, they rotate from one doctor to the next as far as I

8 understand that, unless there's a conflict.

Q. Did you have a complaint filed against you with the Texas

10 Medical Board relating to two different patients, one that was

11 seen by Ed Brandecker and one that was seen by Roberta Kalafut,

12 in the same complaint?

13 A. Yes, sir.

14 Q. Is there any possible source for that complaint other than

15 Brandecker and Kalafut's office?

16 A. Not to my

A. In my opinion, no, sir. They had different insurance

20 companies. And I continued to see the patients, so it wasn't

21 the patients that were the source.

50a

CRAWFORD - DIRECT

1 Q. And did Ed Brandecker see that patient on one day and then

2 Roberta Kalafut see the other patient on the very next day?

3 A. Yes, sir.

4 Q. And how quickly after Ed Brandecker saw one patient and

5 Roberta Kalafut saw the other patient did you receive a

6 complaint about that?

7 A. I'm not sure, but in a matter of a day or two. Maybe long

8 enough for it to come in the mail.

9 Q. So the timing is such that there could be no other

10 possible source of that complaint?



13 Q. (BY MR. SCHLAFLY) Was there anything wrong with your care

14 that you provided for either of those two patients?

15 MS. JUREN: Objection, Your Honor, on the grounds of

16 relevance. The -- none of the complaints against Dr. Crawford

17 had anything to do with her standard of care, and that's not

18 what she was disciplined for or what she entered into her

19 agreed order on.

20 THE COURT: I'm sure that can be brought out in

21 cross-examination. I'm going to let her state her opinion on

22 the complaint that was filed against her.

23 Overruled. You may proceed, Mr. Schlafly.

24 Q. (BY MR. SCHLAFLY) Was there anything wrong with the care

25 that you provided on either of those two patients?


Q. And how quickly after Ed Brandecker saw one patient and

5 Roberta Kalafut saw the other patient did you receive a

6 complaint about that?

7 A. I'm not sure, but in a matter of a day or two. Maybe long

8 enough for it to come in the mail.

51a

CRAWFORD - DIRECT

1 Q. Okay. And it was a member of the panel who told your

2 attorney to shut up or words to that effect?

3 A. They wanted to talk to me.

4 Q. And were they abusive towards you?

5 MS. JUREN: Objection. Leading.

6 A. No, sir. I don't feel that they were.

7 Q. Okay. Was a discipline offered to you?

8 A. Yes, sir.

9 Q. And did you decline to agree to it?

10 A. I did.

11 Q. And what happened after you declined to agree to the

12 discipline that was offered to you by the Board?

13 A. I got another complaint for the same issue.

14 Q. And you got another complaint even though you had told

15 them that you weren't doing that anymore?

16 A. I got another complaint involving the nerve conduction

17 studies, the same issue that I was in the informal hearing

18 for. I got another complaint on the same issue with a

19 different patient that had been to see another doctor in

20 Dr. Kalafut's office. I don't know if I'm explaining myself

21 well.

22 Q. And this additional complaint that you received after you

23 declined to settle with the Board, who was the doctor who had

24 seen that patient after you saw the patient?

25 A. Doctor -- the patient was sent to Dr. Trifilo.


Q. And this additional complaint that you received after you

23 declined to settle with the Board, who was the doctor who had

24 seen that patient after you saw the patient?

25 A. Doctor -- the patient was sent to Dr. Trifilo.

I got another complaint on the same issue with a

19 different patient that had been to see another doctor in

20 Dr. Kalafut's office.

52a

CRAWFORD - DIRECT

1 Q. And does -- is he a partner of Dr. Kalafut and

2 Dr. Brandecker?

3 A. He had the same address.

4 Q. And the issue that the Board was complaining about, did it

5 relate to your using an out-of-state physician to review nerve

6 conduction tests?

7 A. Yes, sir.

8 MS. JUREN: Your Honor, I guess that wasn't so bad,

9 but the counsel is continuingly leading the witness.

10 THE COURT: Yes. Try not to lead, Mr. Schlafly.

11 MR. SCHLAFLY: Yes, Your Honor.

12 Q. (BY MR. SCHLAFLY) Had you checked with an attorney before

13 you used an out-of-state physician?

14 A. Yes, sir.

15 MS. JUREN: Objection. Relevance.


17 A. Yes, sir, I did.

18 Q. And what did the attorney tell you?

19 A. The attorney --

20 MS. JUREN: Objection. Hearsay.


22 Q. (BY MR. SCHLAFLY) What was your understanding of the

23 legality of that, of using an out-of-state attorney? What was

24 your understanding after you spoke to your attorney?

25 A. Using an out-of-state physician?


Q. And does -- is he a partner of Dr. Kalafut and

2 Dr. Brandecker?

3 A. He had the same address.

53a

CRAWFORD - DIRECT

1 Q. Yes.

2 A. The attorney reviewed all the documents and told me

3 that --

4 MS. JUREN: Again --


6 MS. JUREN: Objection. Hearsay.


8 But the problem is not your question. It was the

9 answer when she was going to say what the attorney told her.

10 Q. (BY MR. SCHLAFLY) What was your -- after you checked with

11 an attorney, what was your understanding of the legality of

12 using an out-of-state physician to review these tests?

13 A. I'm not sure what you want -- what I'm -- I'm not really

14 sure of the question. If you could, state it again.

15 Q. Was your understanding that it was perfectly legal for you

16 to use an out-of-state physician to review these tests?

17 A. Yes, sir.

18 Q. And was it your understanding that there was even a law in

19 place at the time that allowed this?

20 A. It was Work Comp -- it was commonly done in the

21 Workers' Comp system.

22 Q. Was it your understanding that other physicians were doing

23 this also?


25 leading and hearsay.


Q. Was your understanding that it was perfectly legal for you

16 to use an out-of-state physician to review these tests?

17 A. Yes, sir.

18 Q. And was it your understanding that there was even a law in

19 place at the time that allowed this?

20 A. It was Work Comp -- it was commonly done in the

21 Workers' Comp system.

54a


2 AUSTIN DIVISION


4 ) Plaintiff, )




8**********************************************


10 VOLUME 2 OF 4**********************************************

11APPEARANCES:



14KAREN TRIPP





19BOBBY M. RUBARTS




23 AUSTIN, TEXAS 78701(512) 916-5143




1 EXAMINATION INDEX

2DEBBIE CRAWFORD, D.O.

3 CROSS BY MS. JUREN 4CROSS BY MR. RUBARTS 7

4 REDIRECT BY MR. SCHLAFLY 13RECROSS BY MS. JUREN 15

5 FURTHER DIRECT BY MR. SCHLAFLY 17

6 WILLIAM REA, M.D.DIRECT BY MR. SCHLAFLY 19

7 CROSS BY MS. JUREN 33

8 KEITH MILLER, M.D.DIRECT BY MR. SCHLAFLY 45

9 CROSS BY MR. VINSON 58REDIRECT BY MR. SCHLAFLY 62

10EDWARD BRANDECKER, M.D.

11 DIRECT BY MR. SCHLAFLY 70

12 ROLAND CHALIFOUX, D.O.DIRECT BY MR. SCHLAFLY 90

13 CROSS BY MR. VINSON 99CROSS BY MR. RUBARTS 115

14 REDIRECT BY MR. SCHLAFLY 117

15 VICKIE MEYERSDIRECT BY MR. SCHLAFLY 128

16 VOIR DIRE BY MR. RUBARTS 148VOIR DIRE BY MR. SCHLAFLY 149

17 DIRECT BY MR. SCHLAFLY 151VOIR DIRE BY MR. RUBARTS 162


19 REDIRECT BY MR. SCHLAFLY 187

20 MARI ROBINSON, J.D.DIRECT BY MR. SCHLAFLY 189

21

22

23

24

25


1 EXHIBIT INDEX


3 1 June 9, 2003 Complaint filed by Edward 73 73Brandecker against Eric Bennos (TMB 1680)

4 5 Complaint documents relating to William 194 194

5 Rea, (TMB 1705-1708)

6 20 Letter by Brandecker to Munton dated Feb. 76 ---3, 2006 (Exh. 3 to Brandecker Deposition)

7 32 Letter from Pease to Maxwell dated 241 ---

8 02/17/06, (Exh. 11 to Robinson Deposition)

9 33 Designated doctor information (Exh. 12 to 13 14Robinson Deposition)

10Defendant

11 42 Letter of December 11, 2004 from 172 173Vickie Meyers

12 44 Note to Dr. Kalafut from Vickie Meyers 176 177

13 45 Email from Vickie Meyers dated 185 185

14 February 1, 2006

15

16

17

18

19

20

21

22

23

24

25


CRAWFORD - REDIRECT

1 MR. SCHLAFLY: Your Honor, the Web site says it comes

2 from the State itself, so I think there can be judicial notice

3 of that. And I think --

4 THE COURT: Is there any reason to believe that the

5 information contained in this document is not accurate?

6 MR. VINSON: Absolutely.

7 MS. JUREN: Yes.

8 THE COURT: Why is that?

9 MS. JUREN: Other printouts from other evidence from

10 the same Web site.

11 THE COURT: Well, I'm going to admit it under the

12 residual clause, and you may seek to admit other documents to

13 impeach it. So Plaintiff's Exhibit No. 33 is admitted.

14 Q. (BY MR. SCHLAFLY) Dr. Crawford, did you edit this document

15 in any way?

16 A. No, sir.

17 Q. Dr. Crawford, do you still own your office building in

18 Brownwood?

19 A. Yes, I do.

20 Q. Would you like to return to practice medicine in

21 Brownwood?

22 A. Yes. Some day.

23 Q. And would you feel comfortable returning to practice in

24 Brownwood if -- if the Court provided some protection against

25 additional complaints against you?


Q. Would you like to return to practice medicine in

21 Brownwood?

22 A. Yes. Some day.

23 Q. And would you feel comfortable returning to practice in

24 Brownwood if -- if the Court provided some protection against

25 additional complaints against you?

58a

CRAWFORD - RECROSS

1 A. Yes.

2 MR. SCHLAFLY: No further questions.

3 MS. JUREN: Your Honor, I just have one more.

4 THE COURT: All right.

5 RECROSS-EXAMINATION

6 BY MS. JUREN:

7 Q. Dr. Crawford, looking at Plaintiff's Exhibit 33 --

8 A. Yes.

9 Q. -- would you say it indicates that there were only two

10 designated doctors in Brown County during this time period?

11 A. At the time I printed this off, that's all there were.

12 Q. Okay. So you printed this off, I now see looking at a

13 different copy, that it that was on January 3rd, 2008; is that

14 correct?

15 A. Yes, it was.

16 Q. Okay. And you're not offering any other evidence of any

17 other time period other than January 3rd, 2008; is that

18 correct?

19 A. Yes. I never thought to print it out earlier.

20 Q. Okay. And so the -- according to Defendants' Exhibit 5 --

21 excuse me -- 7 ...

22 A. Is that in a different book or the blue book?

23 Q. It's in the different book.

24 A. Which one?

25 Q. Let me -- let me -- according to -- excuse me --


A. Yes.

59a

REA - DIRECT

1 inquiry that said there were five patients that needed to be

2 reviewed because I had received a complaint. It turned out all

3 five patients were from Manhattan and that they -- all five

4 patients apparently had the same insurance company. I didn't

5 know this at the time, of course, and it turned out that three

6 of the patients wrote to the Board that I had saved their

7 lives, which I had, and the other two I got back --

8 MS. JUREN: Your Honor, excuse me. I object to the

9 narrative response and not responsive to the question. So I

10 object as nonresponsive.

11 THE COURT: Break it up.

12 MS. JUREN: And hearsay.

13 THE COURT: Break it up. I'll deal with objections

14 on a question-by-question basis.

15 MR. SCHLAFLY: Yes.

16 Q. (BY MR. SCHLAFLY) Did you receive one complaint from the

17 Medical Board on five patients?

18 A. Yes.

19 Q. And did you track down which insurance carrier or carriers

20 those five patients had?

21 A. Yes.

22 Q. And which was that?

23 A. Well, I think it was -- I can't remember the name of it.

24 It was a defunct company that was apparently bought then by

25 United Health Care.


Q. (BY MR. SCHLAFLY) Did you receive one complaint from the

17 Medical Board on five patients?

18 A. Yes.

19 Q. And did you track down which insurance carrier or carriers

20 those five patients had?

21 A. Yes.

22 Q. And which was that?

23 A. Well, I think it was -- I can't remember the name of it.

24 It was a defunct company that was apparently bought then by

25 United Health Care.

60a

REA - DIRECT

1 Q. The point is, was it one insurance company or multiple

2 insurance companies?

3 A. One.

4 Q. Had you submitted any bills to the insurance company?

5 A. I don't recall. That would be my billing people.

6 Q. Did you respond to that complaint that you received from

7 the Texas Medical Board?

8 A. Yes, I did. In very good detail.

9 Q. And is your testimony that three of those patients --

10 well, let me ask you: Did any of those patients file a

11 complaint?

12 A. No.

13 Q. Did the Texas Medical Board dismiss the complaint once

14 they received your response?

15 A. No.

16 Q. Were you required to seek -- or were -- did they hold an

17 informal settlement conference with you?

18 A. Yes.

19 Q. Did you attend that personally?

20 A. Yes.

21 Q. Could you describe what that was like?

22 A. Well, it was my first one, and they had a physician called

23 Keith Miller from Centerville, Texas. And there were two or

24 three other laypeople there, I believe, as I recall.

25 Q. Did they present you with any experts who had reviewed


Q. Were you required to seek -- or were -- did they hold an

17 informal settlement conference with you?

18 A. Yes.

19 Q. Did you attend that personally?

20 A. Yes.

21 Q. Could you describe what that was like?

22 A. Well, it was my first one, and they had a physician called

23 Keith Miller from Centerville, Texas.

61a

REA - DIRECT

1 things up here, it's -- in Defendants' Exhibit 33 is the

2 mediated agreed order. It has the date of the ISC. It's

3 November 16th, 2006.

4 THE COURT: All right. Does that sound right,

5 Mr. Schlafly?

6 MR. SCHLAFLY: Yes.

7 THE COURT: All right. You may proceed.

8 Q. (BY MR. SCHLAFLY) When you were in the ISC with

9 Dr. Miller, did he disclose to you at any time that he was

10 being paid by an insurance company for consulting with the

11 insurance company?

12 A. No, he did not.

13 Q. In fact, throughout your whole process that lasted several

14 years -- I'll get to that in a minute -- was there any

15 disclosure by Keith Miller or anyone at the Board about a

16 possible conflict of interest of being compensated by insurance

17 companies?

18 A. No.

19 MS. JUREN: Excuse me, objection, in that it assumes

20 it was a conflict of interest. It's a loaded question.


22 Q. (BY MR. SCHLAFLY) What happened next after the ISC

23 hearing?

24 A. Well, they said they would have to go to a higher group of

25 people, so that was several -- a long time later, then.


Q. In fact, throughout your whole process that lasted several

14 years -- I'll get to that in a minute -- was there any

15 disclosure by Keith Miller or anyone at the Board about a

16 possible conflict of interest of being compensated by insurance

17 companies?

18 A. No.

Q. (BY MR. SCHLAFLY) When you were in the ISC with

9 Dr. Miller, did he disclose to you at any time that he was

10 being paid by an insurance company for consulting with the

11 insurance company?

12 A. No, he did not.

62a

REA - DIRECT

1 at issue in this lawsuit.


3 A. Could you repeat the question?

4 Q. Sure. In treating allergies, is it common practice

5 sometimes to inject a small -- a very small amount of the

6 material someone is allergic to?

7 A. Yes. It's been tradition for years and years.

8 Q. Do vaccines operate in a similar manner?

9 A. Yes.

10 Q. Is there anything else you'd like to add about your

11 experiences with Texas Medical Board?

12 A. Would that be narrative, Judge?

13 No. I think that at those times, they had some --

14 some ideas that they were going to hurt certain physicians, and

15 I just happened to be one of them. I had other friends that

16 had been hurt.

17 MS. JUREN: Excuse me -- well, never mind.

18 Q. (BY MR. SCHLAFLY) And are you fully licensed today to

19 practice medicine?

20 A. Yes.

21 Q. And are you going to be flying back this afternoon to see

22 more patients?

23 A. Yes.

24 MR. SCHLAFLY: No further questions, Your Honor.

25 THE COURT: Ms. Juren, cross-examination?


some ideas that they were going to hurt certain physicians, and

15 I just happened to be one of them. I had other friends that

16 had been hurt.

63a

MILLER - DIRECT

1 KEITH MILLER, M.D.,

2 having been first duly sworn, testified as follows:

3 DIRECT EXAMINATION

4 BY MR. SCHLAFLY:

5 Q. Dr. Miller, could you state your name for the record,

6 please.

7 A. Dr. Keith Miller.

8 Q. And could you just briefly provide your background.

9 A. I'm a family physician in Center, Texas. I practice

10 family practice there. I've been there about 25 years.

11 Q. And did you serve on the Texas Medical Board?

12 A. Correct. I did.

13 Q. And what time period did you serve on the Texas Medical

14 Board?

15 A. From early 2003 until late 2007.

16 Q. And why did you -- did you resign before your term was

17 over on the Texas Medical Board?

18 A. Yes.

19 Q. And why did you resign?

20 A. Toward the end of my term, with passage of House Bill

21 1973, if that's the correct number, that excluded Board Members

22 from serving in the capacity as an expert medical witness in

23 certain civil litigation, I had been involved in that. And at

24 that time I was near the end of my term, and so I chose to

25 resign from the Board to continue in that work so there would


Q. And what time period did you serve on the Texas Medical

14 Board?

15 A. From early 2003 until late 2007.

64a

MILLER - DIRECT

1 be no conflicts.

2 Q. Did you disagree that that was a conflict of interest,

3 your testifying in malpractice cases while serving on the

4 Board?

5 A. I did not see that as a conflict.

6 Q. Did you try to stay on the Board even though -- well, let

7 me back up a little bit.

8 Did President Kalafut express to you her view that it

9 was a conflict?

10 A. The first discussion I ever recall of -- well, there's two

11 discussions. Back early in 2004, the first time I was ever

12 approached about serving as an expert medical witness, our

13 then-president, Dr. Lee Anderson, was president of the Board.

14 I discussed the matter with him.

15 Dr. Anderson conveyed to me that he did not see that

16 as a difficulty as long as, of course, the same person was

17 not -- did not have business before the Board that was

18 represented in the case and also that I did not work to testify

19 as to the proceedings of the Board. In other words,

20 Dr. Anderson himself, who was an ophthalmologist himself, said

21 that he had been contacted to serve as an expert witness in

22 cases that he thought involved ophthalmology and it turned out

23 it involved having inner workings of the Board. He thought

24 that was inappropriate. But other than that, he thought that

25 would be okay.


MILLER - DIRECT

1 Then the next conversation that I recall, the only

2 one -- the first one with Dr. Kalafut or anyone else on the

3 Board was in June of 2007 at our Board meeting. At that time a

4 number of our Board Members were involved in serving as expert

5 witnesses in a number of capacities. We had some Board Members

6 who were expert in areas of child abuse and testified in those

7 areas. Other doctors testified in other areas.

8 So in June of 2007 I asked the Board, as I think

9 Dr. Kalafut did also, for us to develop a policy regarding the

10 appropriateness of Board Members serving as expert medical

11 witness and have that ready by next Board meeting, which would

12 be August 2007.

13 At the August 2007 meeting we learned for the first

14 time that House Bill 1973 had been passed. We adopted that as

15 Board rule, which I unanimously -- which I voted for on a

16 Friday. The next week I resigned from the Board.

17 Q. Did you recuse yourself from any cases during your entire

18 tenure on the Board?

19 A. I seem to recall a case maybe one or two times that I

20 recused myself, not that it involved anything in the area of

21 testifying as an expert medical witness but, rather, I had some

22 personal knowledge of the respondent doctors involved. And I

23 simply didn't want to be involved because I knew them

24 personally. But other than that, I never recused myself

25 because I never came across a situation of physicians in cases


Q. Did you recuse yourself from any cases during your entire

18 tenure on the Board?

19 A. I seem to recall a case maybe one or two times that I

20 recused myself, not that it involved anything in the area of

21 testifying as an expert medical witness but, rather, I had some

22 personal knowledge of the respondent doctors involved. And I

23 simply didn't want to be involved because I knew them

24 personally. But other than that, I never recused myself

66a

MILLER - DIRECT

1 that I worked with as both an expert and on the Board.

2 Q. Are you aware of any policy at the Medical Board about

3 recusal? In other words, are you aware of any conflict of

4 interest policy at the Board other than the one you just

5 testified about with these malpractice cases?

6 A. No. It's simply in general. Our -- our executive

7 director and general counsel had always told us that if at any

8 time we felt for any reason that we could not be an unbiased,

9 nonpartisan member of the Board to do our job, then we should

10 recuse ourselves in the general sense. But other than that, I

11 was not aware of any policy regarding that.

12 Q. And is the decision to recuse in the sole discretion of

13 the Board Member?

14 A. Well, if there were no stated policy, otherwise, I would

15 think that would be true.

16 Q. So there was never a time when -- when the Board would

17 sort of indicate that one of the Board Members should really

18 recuse themselves from a case? In other words, there was never

19 a time when the Board or other Board Members would tell another

20 Board Member that he really should recuse himself; is that

21 right?

22 A. Well, that never happened to me. I have no personal

23 knowledge of that ever happening.

24 Q. In terms of disclosure, did you file disclosure forms

25 while you were on the Board?


Q. So there was never a time when -- when the Board would

17 sort of indicate that one of the Board Members should really

18 recuse themselves from a case? In other words, there was never

19 a time when the Board or other Board Members would tell another

20 Board Member that he really should recuse himself; is that

21 right?

22 A. Well, that never happened to me. I have no personal

23 knowledge of that ever happening.

67a

MILLER - DIRECT

1 A. That's very common, yes.

2 Q. But in the case of Dr. Rea, do you recall whether one of

3 those terms of settlement was offered to him?

4 A. As I said, I don't.

5 Q. Would you have been able to recall if terms of settlement

6 had been offered to him?

7 A. Well, I don't know. That's been a long time ago. I don't

8 know.

9 Q. I'd like to turn your attention to a plaintiff's exhibit

10 which is in the blue book. I'll give you the number here.

11 It's number 34.

12 MR. SCHLAFLY: This has been accepted into evidence?

13 MS. JUREN: Yes.

14 Q. (BY MR. SCHLAFLY) Dr. Miller, the Texas Medical Board has

15 accepted this into evidence as a printout of the Texas Medical

16 Board Meeting Minutes of August 23rd-24th, 2007. And is that

17 the meeting that you referred to earlier in your testimony?

18 A. Yes. That's the last Medical Board Meeting I attended as

19 a member.

20 Q. Did you recuse yourself from any matters that were under

21 discipline at this meeting? And you can look through it. You

22 can take your time to look through it?

23 A. As we sit here this moment, I don't recall that I did. If

24 I did, you could probably help me find it.

25 Q. No. I don't think you did.


Q. Did you recuse yourself from any matters that were under

21 discipline at this meeting? And you can look through it. You

22 can take your time to look through it?

23 A. As we sit here this moment, I don't recall that I did. If

24 I did, you could probably help me find it.

Q. (BY MR. SCHLAFLY) Dr. Miller, the Texas Medical Board has

15 accepted this into evidence as a printout of the Texas Medical

16 Board Meeting Minutes of August 23rd-24th, 2007. And is that

17 the meeting that you referred to earlier in your testimony?

18 A. Yes. That's the last Medical Board Meeting I attended as

19 a member.

68a

MILLER - DIRECT

1 A. I don't recall that I did, no.

2 Q. But isn't it -- well, let me rephrase that.

3 Dr. Miller, had the state law against the conflict of

4 interest for testifying in malpractice cases already been

5 passed and become effective by the time of this meeting?

6 A. Well, yes. We adopted that as Board rule during this

7 meeting.

8 Q. But had the state law become effective before this

9 meeting?

10 A. I don't know about effective dates. The first thing I

11 ever knew about the law was during -- during this meeting when

12 we adopted it as Board rule.

13 Q. Did you announce your resignation at this meeting?

14 A. No.

15 Q. Did you decide -- did you vote to discipline a

16 Dr. Chris Kuhne -- that's spelled K-u-h-n-e -- as one of your

17 final decisions before you resigned?

18 A. If it says here in the records. I recall participating in

19 a meeting and taking votes. So if it says it here, then I did.

20 Q. Well, I'm not sure it says everything here, because I

21 believe you went into a private session. So if you could just

22 take a moment. And it would be, I believe, near the end of

23 this. But if it's not all here because you did an executive

24 session. When you go into executive session, are the minutes

25 from the executive session made public as part of these public


Q. Did you decide -- did you vote to discipline a

16 Dr. Chris Kuhne -- that's spelled K-u-h-n-e -- as one of your

17 final decisions before you resigned?

18 A. If it says here in the records. I recall participating in

19 a meeting and taking votes. So if it says it here, then I did.

1 A. I don't recall that I did, no.

69a

MILLER - DIRECT

1 minutes?

2 A. I don't think so.

3 Q. So I would like you to just take a moment and see if you

4 can recall whether you participated in the decision to

5 discipline Dr. Chris Kuhne.

6 A. I don't recall that as we sit here today.

7 Q. Is it your testimony that you did not recuse yourself from

8 any decision to discipline doctors, including Chris Kuhne or

9 anybody else?

10 A. I don't recall that I did during that meeting.

11 Q. In your testimony as an expert in malpractice cases, were

12 you testifying predominantly for the plaintiff or predominantly

13 for the defendant?

14 A. As it turned out, predominantly for plaintiff. I don't --

15 I don't advertise my services. I don't speak at seminars. I

16 don't seek business. I take the business that comes to me. I

17 do work for both plaintiffs and defendants. It has come to me

18 predominantly for plaintiffs.

19 Q. And do you know why that is?

20 A. I think so. The first work I received was from a personal

21 friend of mine, an attorney who I attended school with who does

22 work in such cases. He gave my name by word of mouth to other

23 attorneys who do similar cases, and so I submit that's how it

24 happened.

25 Q. When you testify for plaintiff, would you cite as one of


Q. Is it your testimony that you did not recuse yourself from

8 any decision to discipline doctors, including Chris Kuhne or

9 anybody else?

10 A. I don't recall that I did during that meeting.

70a

MILLER - REDIRECT

1 THE WITNESS: I'm clearly not understanding your

2 question, if that's not responsive then.

3 Q. (BY MR. SCHLAFLY) Let me break it down a little bit. Did

4 you disclose in any of your public disclosures that you were

5 receiving monthly compensation from an insurance company?

6 A. Apparently not. The only disclosure I had was this form

7 that was required, and I filled it out as it was asked to be

8 filled out.

9 Q. And isn't it true, Dr. Miller, that in my deposition of

10 you, you declined to answer in that deposition whether you were

11 receiving monthly compensation and how much that was?

12 A. At first. But I eventually did.

13 Q. And isn't it true that you eventually did because the

14 judge ordered you to?

15 A. Yes.

16 MR. VINSON: Objection. Relevance, Your Honor.

17 Q. (BY MR. SCHLAFLY) Well, the point is: How is someone --

18 oh, I'm sorry.

19 THE COURT: Are you responding to his objection or

20 are you moving on.

21 MR. SCHLAFLY: I was just going to ask another

22 question.

23 THE COURT: All right. Move along.

24 Q. (BY MR. SCHLAFLY) How is someone who is before the Board

25 going to be able to seek recusal of a Board Member if there's


Q. (BY MR. SCHLAFLY) Let me break it down a little bit. Did

4 you disclose in any of your public disclosures that you were

5 receiving monthly compensation from an insurance company?

6 A. Apparently not. The only disclosure I had was this form

7 that was required, and I filled it out as it was asked to be

8 filled out.

Q. And isn't it true, Dr. Miller, that in my deposition of

10 you, you declined to answer in that deposition whether you were

11 receiving monthly compensation and how much that was?

12 A. At first. But I eventually did.

13 Q. And isn't it true that you eventually did because the

14 judge ordered you to?

15 A. Yes.

71a

CHALIFOUX - DIRECT

1 Q. So in other words, did the SOAH judge recommend that you

2 start practicing again?

3 A. Exactly.

4 Q. What happened next?

5 A. Well, after we received the information from the SOAH

6 judges that they recommended that I keep my license and still

7 practice but, again, be proctored for several cases and things

8 like that, the Board of Medical Examiners basically overruled

9 what the SOAH judges had recommended. And they said we don't

10 care, basically, what the SOAH judges say. We are going to

11 still remove your license.

12 Q. So did the Medical Board then flatly reject what the SOAH

13 judge had found?

14 A. Exactly.

15 Q. Did anyone else, any other entity -- medical societies,

16 for example --

17 Let me ask you this: Are you board certified with

18 any medical societies?

19 A. At the time of this SOAH issue, my suspension, I had been

20 certified -- board certified by the American College of

21 Osteopathic Neurosurgeons for I think about three or four years

22 prior to this event. So I had taken the boards, I passed all

23 the boards, and I was up to date on my CME credits.

24 Q. Did any of the certifying boards find any fault with what

25 you had done?


A. Well, after we received the information from the SOAH

6 judges that they recommended that I keep my license and still

7 practice but, again, be proctored for several cases and things

8 like that, the Board of Medical Examiners basically overruled

9 what the SOAH judges had recommended. And they said we don't

10 care, basically, what the SOAH judges say. We are going to

11 still remove your license.

12 Q. So did the Medical Board then flatly reject what the SOAH

13 judge had found?

14 A. Exactly.

72a

CHALIFOUX - DIRECT

1 facts not in evidence. There is no evidence of any West

2 Virginia publications of, quote, Dr. Kalafut or any other Board

3 Member.

4 MR. SCHLAFLY: I can ask him that.

5 Q. (BY MR. SCHLAFLY) Was there a newspaper article that ran

6 in West Virginia?

7 MR. RUBARTS: Calls for hearsay.

8 THE WITNESS: Yes, there was.

9 THE COURT: No. He asked him if there was a

10 newspaper article. That's not hearsay, whether there was a

11 newspaper article. It's a yes or no question. Answer the

12 question.

13 A. The answer is yes.

14 Q. And was that newspaper article damaging to your

15 reputation?

16 A. It sent chills throughout the entire state. The Board of

17 Regents at WVU was all confused about this.

18 Q. And were you about to sign a contract at the time that

19 newspaper article hit?

20 A. I was. And, in fact, the unfortunate thing was that the

21 chairman told me that because of what was going on, he could

22 not offer me the job.

23 Q. So you lost a contract because of the statement by the

24 president of the Texas Medical Board to the West Virginia

25 publication, correct?


Q. And was that newspaper article damaging to your

15 reputation?

16 A. It sent chills throughout the entire state. The Board of

17 Regents at WVU was all confused about this.

18 Q. And were you about to sign a contract at the time that

19 newspaper article hit?

20 A. I was. And, in fact, the unfortunate thing was that the

21 chairman told me that because of what was going on, he could

22 not offer me the job.

23 Q. So you lost a contract because of the statement by the

24 president of the Texas Medical Board to the West Virginia

25 publication, correct?

73a

CHALIFOUX - CROSS

1 MR. VINSON: Objection. Leading.


3 MR. SCHLAFLY: I'll rephrase it.

4 Q. (BY MR. SCHLAFLY) Did you lose a contract because of the

5 statements by the Texas Medical Board to the press in West

6 Virginia?

7 MR. RUBARTS: Your Honor, this question calls for

8 hearsay. The only way he can know whether he lost the contract

9 is based on what someone told him.

10 THE COURT: I'm going to let him state his opinion as

11 to whether he lost a contract because of a newspaper article.

12 Q. (BY MR. SCHLAFLY) Did you lose a contract because of the

13 newspaper article we've been discussing?

14 A. Yes, I did.

15 Q. Is there anything else you'd like to add?

16 MR. VINSON: Objection, Your Honor. Vague.


18 MR. SCHLAFLY: Okay. No further questions.

19 CROSS-EXAMINATION

20 BY MR. VINSON:

21 Q. And just so I'm pronouncing it, is it Chalifoux?

22 A. Yes, it is.

23 Q. Okay. Thank you. Dr. Chalifoux, it's true, isn't it,

24 that before any Board proceedings were instigated against you,

25 certain hospitals revoked your privileges. Isn't that correct?


Q. (BY MR. SCHLAFLY) Did you lose a contract because of the

13 newspaper article we've been discussing?

14 A. Yes, I did.

74a

MEYERS - DIRECT

1 Q. And where do you live?

2 A. Abilene, Texas.

3 Q. What is your occupation?

4 A. I'm the office manager for Texas Sport & Spine.

5 Q. And starting in, say, 1995, could you just give a brief

6 background of where you've worked.

7 A. I worked at Hendrick Center for Rehabilitation in Abilene,

8 Texas. And after that I left and worked for Spine Abilene.

9 And then after that, I worked for Texas Sport & Spine.

10 Q. When you refer to Spine Abilene, was that the company that

11 was owned by Roberta Kalafut and Ed Brandecker?

12 A. Yes.

13 Q. And what years did you work with Spine Abilene?

14 A. It was from August of 2000 to February of 2006.

15 Q. And what was your position there?

16 A. I was the office manager.

17 Q. And what's the function of an office manager?

18 A. It is to oversee the day-to-day operations of the

19 practice.

20 Q. Did you have many encounters, then -- I mean, many

21 discussions with Dr. Kalafut during that period?

22 A. Yes.

23 Q. Did you hear Dr. Kalafut talk about some of her

24 competitors at that time?

25 A. Yes.


Q. When you refer to Spine Abilene, was that the company that

11 was owned by Roberta Kalafut and Ed Brandecker?

12 A. Yes.

13 Q. And what years did you work with Spine Abilene?

14 A. It was from August of 2000 to February of 2006.

15 Q. And what was your position there?

16 A. I was the office manager.

75a

MEYERS - DIRECT

1 THE COURT: Well, where have you alleged something

2 about Dr. Dozier?

3 MR. SCHLAFLY: No. I didn't put that in my

4 compliant, Your Honor. That's -- my allegation is that

5 Dr. Kalafut was filing complaints against her competitors or

6 had been filing --

7 THE COURT: So suppose she said in the presence of

8 Ms. Meyers the worst things I could ever imagine about

9 Dr. Dozier. How does that make any allegation you have made in

10 your amended complaint more likely or less likely?

11 MR. SCHLAFLY: I'll withdraw the question. I'll ask

12 more directly with respect to the complaint process.

13 THE COURT: All right. You may proceed.

14 Q. (BY MR. SCHLAFLY) Did Dr. Kalafut discuss the possibility

15 of having complaints filed against her competitors?

16 A. Yes.

17 Q. And could you elaborate on that? What were those

18 discussions? What would she say, to the extent you can

19 remember? You don't need to have exact words.

20 MR. RUBARTS: Your Honor, I have to object to that

21 question because it's not limited to any competitors that has

22 anything to do with this lawsuit.

23 THE COURT: No. I'm going to hear it.

24 MR. RUBARTS: Okay.



14 Q. (BY MR. SCHLAFLY) Did Dr. Kalafut discuss the possibility

15 of having complaints filed against her competitors?

16 A. Yes.

76a

MEYERS - DIRECT

1 A. She would get very upset at a patient that would come into

2 the medical practice that had seen one of these physicians.

3 And she'd make comments that she was going to turn their,

4 quote, ass in and various comments about their ability to care

5 for a patient. And she would get them.

6 Q. And would this be after a patient had seen the competitor

7 and then came in to Kalafut's office?

8 A. Correct.

9 MR. RUBARTS: Your Honor, could I have a time frame

10 on these questions so I'll be able to --

11 THE COURT: All right. Pin it down to a time frame

12 so he can cross-examine.

13 MR. SCHLAFLY: Yeah. Your Honor, she said she worked

14 there --

15 THE COURT: No. Don't tell me. Everybody has a

16 right to -- are we talking about 2010? Or we talking about

17 1956? You know, pin it down to some range here.

18 MR. SCHLAFLY: I understand, Your Honor. But she

19 testified she worked from 2000 to 2006.

20 I can ask you, can you pin that down within the six

21 years you've already given us.

22 THE COURT: In addition to me, there is some reason

23 to believe that the Circuit may look at this case again. And

24 it would be nice if they could understand from the record

25 what's going on.


A. She would get very upset at a patient that would come into

2 the medical practice that had seen one of these physicians.

3 And she'd make comments that she was going to turn their,

4 quote, ass in and various comments about their ability to care

5 for a patient. And she would get them.

6 Q. And would this be after a patient had seen the competitor

7 and then came in to Kalafut's office?

8 A. Correct.

77a

MEYERS - DIRECT

1 MR. SCHLAFLY: Yes, Your Honor. Thank you.

2 Q. (BY MR. SCHLAFLY) Can you pin that down within the time

3 period you worked for Drs. Kalafut and Brandecker?

4 A. I believe it was around 2002. Between 2002 and 2006.

5 Q. Was Dr. Kalafut on the Board during that time period?

6 A. Yes.

7 Q. I'm sorry. Let me be more clear. Was Dr. Kalafut a

8 member of the Texas Medical Board during that time period?

9 A. Yes.

10 Q. Did Dr. Kalafut have friends on the Board whom she would

11 work with in filing or processing or manipulating such

12 complaints?

13 MS. JUREN: Objection, Your Honor. No foundation

14 laid for how this worked.

15 THE COURT: Overruled. I'm going to let him proceed

16 away here on this for a while.

17 A. Do you mind repeating that?

18 Q. Fine. I'd be happy to. Did Dr. Kalafut have friends that

19 she would work with who were located at the Texas Medical Board

20 or the staff in connection with the complaint process?

21 A. Yes.

22 Q. And do you recall the names of some of those individuals?

23 A. I believe one was Ms. Robinson and Donald Patrick. And

24 there was another physician that was on there, but I can't

25 remember his name.


Did Dr. Kalafut have friends that

19 she would work with who were located at the Texas Medical Board

20 or the staff in connection with the complaint process?

21 A. Yes.

Q. And do you recall the names of some of those individuals?

23 A. I believe one was Ms. Robinson and Donald Patrick.

78a

Andy

Highlight

MEYERS - DIRECT

1 competes with another. When that firm takes business away from

2 the other firm or has business that could have gone to the

3 first firm. Do you understand what the word "compete" means?

4 A. Yes.

5 MS. JUREN: Your Honor, also there's no narrowing of

6 this competition to any particular type of practice.

7 THE COURT: You're making it too tedious, Ms. Juren.

8 Your objection is overruled. I think you understand these

9 questions. I understand these questions. So you may proceed,

10 Mr. Schlafly.

11 A. Do you mind repeating your question?

12 Q. Sure. Did the chiropractic group for which Dr. Bennos

13 read the MRIs, did that chiropractic group compete with Drs.

14 Kalafut and Brandecker?

15 A. Yes.

16 Q. Do you have any other knowledge about this complaint that

17 was filed against Dr. Bennos that's in Plaintiff's Exhibit 1?

18 A. Yes.

19 Q. And what's that?

20 A. Well, I just recall the conversations leading up to the

21 filing of that complaint.

22 Q. And what were those conversations?

23 A. That Dr. Kalafut and Dr. Brandecker had a very heated

24 conversation about the chiropractic group and using this

25 company to read MRIs and that they possibly misdiagnosed


Did the chiropractic group for which Dr. Bennos

13 read the MRIs, did that chiropractic group compete with Drs.

14 Kalafut and Brandecker?

15 A. Yes.

79a

MEYERS - DIRECT

1 something.

2 Q. And do you recall hearing Dr. Kalafut speak with

3 Dr. Brandecker about Dr. Bennos before this complaint was

4 filed?

5 A. Yes.

6 Q. And do you recall if Dr. Kalafut was in favor of filing

7 this complaint against Dr. Bennos?

8 A. Yes.

9 Q. And was Dr. Kalafut in favor of filing this complaint

10 against Dr. Bennos?

11 A. Yes.

12 Q. And did Dr. Kalafut ask or agree with Dr. Brandecker that

13 this complaint would be filed against Dr. Bennos?

14 MS. JUREN: Your Honor, I object to the leading of

15 this witness.

16 MR. RUBARTS: Well, the question was also compound.

17 MR. SCHLAFLY: I can break it down, Your Honor.

18 THE COURT: All right. I'll sustain both

19 objections. So ask short questions, and don't lead.

20 MR. SCHLAFLY: Yes, Your Honor.

21 Q. (BY MR. SCHLAFLY) Did Dr. Kalafut ask Dr. Brandecker to

22 file this complaint?

23 A. Yes.

24 Q. Was there a time when Dr. Kalafut learned of how the

25 Medical Board was going to handle this complaint, or was she


Q. (BY MR. SCHLAFLY) Did Dr. Kalafut ask Dr. Brandecker to

22 file this complaint?

23 A. Yes.

80a

MEYERS - DIRECT

1 THE COURT: I'm not considering this testimony right

2 now. But bear in mind, I may reconsider that ruling. Go

3 ahead.

4 Q. (BY MR. SCHLAFLY) What information did Lana Rodgers give

5 you about this?

6 A. She had said that Dr. Kalafut was behind submitting a

7 complaint on a group of physicians and executive committee.

8 Q. And did she say why Dr. Kalafut was behind submitting that

9 complaint?

10 A. She said that Dr. Kalafut hated Hendrick and hated the

11 doctors there.

12 Q. And did she say why Dr. Kalafut hated Hendrick and hated

13 the doctors there?

14 A. Because of how they treated her when she was a director

15 there.

16 THE COURT: And when did this conversation take place

17 with Ms. Rogers.

18 THE WITNESS: I don't remember the exact date, but it

19 was in -- I believe it was in January. I'm not for sure. I

20 really don't know for sure.

21 THE COURT: January of what year?

22 THE WITNESS: Excuse me. 2007.

23 THE COURT: Was Ms. Rogers employed by Dr. Kalafut's

24 clinic when you had this conversation with her?

25 THE WITNESS: I'm just not totally sure. I don't


Q. (BY MR. SCHLAFLY) What information did Lana Rodgers give

5 you about this?

6 A. She had said that Dr. Kalafut was behind submitting a

7 complaint on a group of physicians and executive committee.

8 Q. And did she say why Dr. Kalafut was behind submitting that

9 complaint?

10 A. She said that Dr. Kalafut hated Hendrick and hated the

11 doctors there.

12 Q. And did she say why Dr. Kalafut hated Hendrick and hated

13 the doctors there?

14 A. Because of how they treated her when she was a director

15 there.

81a

Andy

Highlight

MEYERS - DIRECT

1 know.

2 THE COURT: All right. Anything else on your bill,

3 Mr. Schlafly?

4 MR. SCHLAFLY: No, Your Honor.

5 THE COURT: All right.

6 Q. (BY MR. SCHLAFLY) If you could turn to Plaintiff's

7 Exhibit 4. And this references a Dr. Debbie Crawford. And

8 maybe I can just ask this question to see whether we need to

9 even consider this exhibit further.

10 Do you know who Dr. Debbie Crawford is?

11 A. Yes. I know who she is.

12 Q. Did you know who she was back at the time of this E-mail

13 in late 2005?

14 A. I only knew she was a physician in Brownwood.

15 Q. Did you have any knowledge whether or not Dr. Crawford was

16 a competitor of Dr. Brandecker?

17 A. Yes.

18 Q. And does that -- well, what do you mean by yes?

19 A. I know that she saw Workers' Compensation work injuries

20 through Workers' Compensation.

21 Q. And did that make her a competitor of Dr. Brandecker?

22 A. Yes.

23 Q. Did you hear any discussions by Dr. Kalafut or

24 Dr. Brandecker about Dr. Debbie Crawford?

25 A. Yes.


Q. And did that make her a competitor of Dr. Brandecker?

22 A. Yes.

82a

MEYERS - DIRECT

1 Q. (BY MR. SCHLAFLY) Okay. Did you hear comments by

2 Dr. Kalafut or Dr. Brandecker relating to a complaint filed

3 against Dr. Crawford?

4 A. Yes.

5 Q. And what was the -- what were the contents of those

6 comments?

7 A. I just recall that Dr. Kalafut was very upset about

8 Dr. Crawford. And Dr. Brandecker had talked to her a little

9 bit about what was going on with the EMG and this doctor out of

10 state. And Dr. Kalafut was very upset and said that she was

11 going to file a complaint.

12 Q. If you could look at Plaintiff's Exhibits 8 and 9. I'm

13 just going to ask you if you've ever seen these letters before

14 or have any information about -- really nine is the first one.

15 Eight is an attachment to nine?

16 A. Yes. I'm familiar with it.

17 Q. Were you working for Dr. Dan Munton when -- at this time

18 period 2000, November 14th, 2007?

19 A. Yes.

20 Q. Did you receive a copy of this letter into Dr. Munton's

21 office?

22 A. No. It came from another source.

23 Q. And who was the other source?

24 A. It was Dr. Dale Funk.

25 Q. And was this -- did you consider this letter to be hurtful


Dr. Kalafut was very upset and said that she was

11 going to file a complaint.

83a

ROBINSON - DIRECT

1 eliminate the position of enforcement that you held previously?

2 A. Right. I eliminated the position of enforcement director.

3 Q. And does that mean that you have those responsibilities in

4 addition to being executive director?

5 A. Some of them.

6 Q. And what are those other responsibilities held?

7 A. So the enforcement director oversaw a grouping of four

8 managers. And when that position was eliminated, some of those

9 responsibilities went to those four managers. And I retained a

10 few of them as executive director.

11 Q. Which of those responsibilities did you retain. And, in

12 particular, I'm focusing obviously on the complaint process?

13 A. The higher level type of things remained with me. So, for

14 example, when I am in the office, I still participate on

15 quality review and I will have input on the rules and policy.

16 And I help run the committee. But the day-to-day operations on

17 individual complaints or cases as a general rule are handled by

18 the individual managers.

19 Q. Do you have any medical background?

20 A. No, I do not.

21 Q. Do you ever review medical records?

22 A. I do not review them to give an opinion on them. We have

23 a medical director.

24 Q. And who is your current medical director?

25 A. Dr. Robert Bredt.


Q. Do you have any medical background?

20 A. No, I do not.

21 Q. Do you ever review medical records?

22 A. I do not review them to give an opinion on them. We have

23 a medical director.

84a

ROBINSON - DIRECT

1 Q. And has that always been true throughout your tenure at

2 the Texas Medical Board, that you do not review medical records

3 to give an opinion on them?

4 A. I have never given a medical opinion on medical records in

5 my tenure.

6 Q. And by "medical opinion," I mean have you ever looked at

7 medical records and made a determination that a doctor was

8 doing something improper?

9 A. I have never made a determination about the standard of

10 care in a case.

11 Q. Are there other determinations that you have made about

12 medical records?

13 A. Well, when we are reviewing cases, what we are trying to

14 do -- in various positions, but in my current position, we're

15 trying to determine if we believe we have enough evidence to go

16 forward for the next level of the process. And I have been

17 involved in those decisions, to move something along the

18 process. I've never been the final decision-maker in the

19 outcome of a case.

20 Q. But how about an initial decision-maker? Have you ever

21 reviewed medical records to decide that either care was

22 improper or that care was not therapeutic or that care was

23 below the standard of care?

24 A. I've never made that determination. I might review

25 records and ask those questions, but I have never made the


Q. And has that always been true throughout your tenure at

2 the Texas Medical Board, that you do not review medical records

3 to give an opinion on them?

4 A. I have never given a medical opinion on medical records in

5 my tenure.

Q. And by "medical opinion," I mean have you ever looked at

7 medical records and made a determination that a doctor was

8 doing something improper?

9 A. I have never made a determination about the standard of

10 care in a case.

85a

ROBINSON - DIRECT

1 MS. JUREN: Assumes facts not in evidence.

2 MR. SCHLAFLY: -- I think it's inevitable.


4 MR. SCHLAFLY: Okay.

5 Q. (BY MR. SCHLAFLY) Now, when the licensee doesn't know that

6 someone has a financial conflict of interest, is there any way

7 the licensee challenge it? Can a licensee ask for that

8 disclosure, for example?

9 A. Not that I'm aware of outside of the governmental

10 filings. I mean, I suppose he could ask the Board Member, Do

11 you have any interest in some specific thing, meaning -- that

12 would be something that would be difficult. The licensee would

13 have to ask a specific question. I don't think that you could

14 ask a Board Member to list every possible conflict there ever

15 could be. That would be incredibly broad. I -- I -- honestly,

16 I would have to say that the licensee could probably ask an

17 individual question, but I don't know that I've ever seen that

18 happen.

19 Q. What would be the procedure for licensee to raise that

20 question, though? I mean, it can't -- if you're in a Board

21 Meeting for the final determination, the licensee subject to

22 discipline, he can't ask questions of Board Members, can he?

23 A. Well, at the informal settlement conference which happens

24 prior to determination, it actually is relatively informal.

25 The licensees and Board Members do talk back and forth and ask


Q. (BY MR. SCHLAFLY) Now, when the licensee doesn't know that

6 someone has a financial conflict of interest, is there any way

7 the licensee challenge it? Can a licensee ask for that

8 disclosure, for example?

9 A. Not that I'm aware of outside of the governmental

10 filings.

86a


2 AUSTIN DIVISION


4 ) Plaintiff, )




8**********************************************


10 VOLUME 3 OF 4**********************************************

11APPEARANCES:



14KAREN TRIPP





19BOBBY M. RUBARTS




23 AUSTIN, TEXAS 78701(512) 916-5143




1 EXAMINATION INDEX

2MARI ROBINSON, J.D.

3 DIRECT BY MR. SCHLAFLY 3CROSS BY MS. JUREN 31

4 CROSS BY MR. RUBARTS 75REDIRECT BY MR. SCHLAFLY 88

5 RECROSS BY MS. JUREN 96

6 MARI ROBINSON, J.D.DIRECT BY MS. JUREN 145

7 DIRECT BY MR. RUBARTS 177CROSS BY MR. SCHLAFLY 182

8

9

10

11 EXHIBIT INDEX


13 15 Temporary Restraining Order obtained by 29 ---Ryan Nelson Potter, M.D. (March 20, 2009

14 (Pl. Exh. 9 in Opposition to Defs. Mot.S.J.)

15 16 Formal Complaint filed against Ryan Nelson 22 27

16 Potter, M.D. (January 12, 2012) (Pl. Exh.10 in Opposition to Defs. Mot. S.J.)

17Defendant

18 13 Robert Kuhne, MD, TMB Final Order, 98 99April 11, 2006, TMB 5000-6

19 46 Letter from Texas Medical Board to 68 69

20 Dr. Munton Dated January 3, 2007

21 47 Texas Medical Board Record - Letter to 71 71Dr. Robinson Dated January 16, 2007

22 48 Letter from Texas Medical Board Dated 73 73

23 January 18, 2007 to Dr. Munton

24 49 Report of Historical Review of DDVs 79 ---Assigned to Physicians

25


ROBINSON - DIRECT

1 did inform that individual that no more complaints would be

2 accepted from that source. Unless something happened like

3 that, I'm not aware of any exception that the Board would make

4 to following its standard policy.

5 Q. And you have no plans to make any exceptions in the

6 future?

7 A. Well, we can't change the statute. So, generally, no.

8 Q. Okay. So you feel you are constrained by the statute to

9 process complaints even if you have knowledge or reason to

10 believe that the complaint was filed in bad faith; is that

11 correct?

12 A. Well, it would depend on what you mean by "knowledge." So

13 every complaint has to be investigated. If in the course of

14 investigating that, we found that there was no truth to the

15 violations and it appeared that all of the allegations were

16 false and that it was in bad faith, then, no, I think at that

17 point we could investigate it. But the statute does require us

18 to look at it. So in that way I feel that we must do it

19 because the statute says we have to.

20 Q. And I understand that. I'm just trying to establish that

21 that's the way you will handle -- continue to handle it in the

22 future.

23 So let me just give an example. If someone sends a

24 complaint to TMB, and there are, like, racist remarks all over

25 the complaint, the TMB procedure is to process that complaint


If someone sends a

24 complaint to TMB, and there are, like, racist remarks all over

25 the complaint, the TMB procedure is to process that complaint

89a

ROBINSON - DIRECT

1 regardless of the racial animus that's in it, correct?

2 A. If the only thing in it were racial remarks, then, no,

3 that would be non-jurisdictional. If there were other

4 allegations related to potential violations, then, yes, it

5 would be processed like any other complaint.

6 Q. Even though it's obvious from the face of the complaint

7 that this was a racist who filed it?

8 A. Yes. That doesn't mean they're lying about what occurred.

9 Q. How about a politically motivated complaint? Same answer?

10 A. We will always look to determine if the allegations are

11 accurate. So assuming that they are alleged violations of the

12 Act, then, yes, it would be put through the process.

13 Q. And the process includes getting the patient records from

14 the physician, correct?

15 A. Sometimes.

16 Q. So, for example, if someone knew that Mitt Romney had seen

17 a physician in Texas and somebody, a stranger, a political

18 hack, filed a complaint about the care provided to Mitt Romney

19 by a physician in Texas, then the process would require the TMB

20 to order those records -- those patient records about

21 Mitt Romney to go up to the TMB, correct?

22 A. Not necessarily. It would depend on what point in the

23 process it was dismissed.

24 Q. Well, I mean, if it's not dismissed -- I mean, the face of

25 the complaint is that some doctor, you know, injected stem


1 regardless of the racial animus that's in it, correct?

2 A. If the only thing in it were racial remarks, then, no,

3 that would be non-jurisdictional. If there were other

4 allegations related to potential violations, then, yes, it

5 would be processed like any other complaint.

6 Q. Even though it's obvious from the face of the complaint

7 that this was a racist who filed it?

8 A. Yes. That doesn't mean they're lying about what occurred.

9 Q. How about a politically motivated complaint? Same answer?

10 A. We will always look to determine if the allegations are

11 accurate. So assuming that they are alleged violations of the

12 Act, then, yes, it would be put through the process.

90a

ROBINSON - DIRECT

1 physician to a confidential agency would harass Mitt Romney.

2 Q. Isn't there a likelihood that those records could leak

3 out?

4 A. Not from my agency.

5 Q. Have you ever done any analysis as to whether foreign or

6 minority doctors are subjected to discipline at a higher rate

7 than Caucasian doctors?

8 MS. JUREN: I object to this. They have not made any

9 such allegation in their lawsuit.


11 Q. (BY MR. SCHLAFLY) Have you ever done any analysis whether

12 competitors of Kalafut have been disciplined at a higher rate

13 than comparable physicians in other parts of the State?

14 A. Do you mean me or the TMB

15 Q. You or the TMB.

16 A. I have personally not. It is my understanding that

17 Robert Simpson did several years ago.

18 Q. And you're referring to the letter that we -- the letter

19 that he wrote on behalf of Kalafut?

20 A. No, I am not.

21 Q. Okay. What are you referring to?

22 A. At some point -- and I will tell you I do not know the

23 date -- he was creating -- these allegations came up in

24 legislative hearings. So he did an analysis to see if the

25 percentage of doctors that reside in Abilene per our statistics


Q. Isn't there a likelihood that those records could leak

3 out?

4 A. Not from my agency.

91a

ROBINSON - DIRECT

1 MS. JUREN: I don't -- well, we object on grounds of

2 authentication.

3 THE COURT: Well, I'm going to sustain the objection

4 to P-15 because a review of it by the Court indicates it was an

5 ex parte order. The Court is familiar with the way ex parte

6 orders come about. The fact that the Court entered an ex parte

7 order does not affect any issue in this suit. To the extent

8 that any of this has relevance, it's merely due to the filing

9 of the complaint. So I'm going to sustain the objection to

10 Plaintiff's Exhibit 15.

11 MR. SCHLAFLY: Okay, Your Honor. And just a final

12 point.

13 THE COURT: There's hesitance over here.

14 MS. JUREN: Well, Your Honor, I was going to say

15 subject to the objection -- I mean, the objections is already

16 made. We ...

17 Q. (BY MR. SCHLAFLY) Okay. Just a few final questions,

18 Ms. Robinson. Based on what you've seen at the trial here or

19 otherwise, are there any plans to change the procedures at the

20 TMB with respect to the filing of complaints and keeping them

21 confidential from the accused?

22 A. The law says the complaints are confidential. I can't

23 change the law.

24 Q. So isn't it correct, Mrs. Robinson, that you feel you

25 cannot change any of the TMB procedures relevant to what we've


Q. So isn't it correct, Mrs. Robinson, that you feel you

25 cannot change any of the TMB procedures relevant to what we've

92a

ROBINSON - CROSS

1 been talking about at this trial unless either the law is

2 changed or there's a court order?

3 A. Mr. Schlafly, that's not what I feel. The truth of the

4 matter, you and I both know, the statute says complaints are

5 confidential. I don't have the authority to change that. So,

6 no, I can't change it because I don't have the authority to

7 change the statute.

8 MR. SCHLAFLY: Very good. No further questions.

9 CROSS-EXAMINATION

10 BY MS. JUREN:

11 Q. Good morning, Doctor -- Ms. Robinson.

12 A. Good morning.

13 Q. Yesterday I believe Mr. Schlafly asked you about the

14 guidelines or safeguards that are in effect at Texas Medical

15 Board regarding conflicts of interests of physicians serving on

16 the Board. Do you recall that?

17 A. Yes.

18 Q. And just to reiterate what those safeguards are, there is

19 a state statute, is there not?

20 A. Yes. 572 of the Government Code.

21 Q. And it provides what exactly?

22 A. It expressly says that state officials, including

23 governmental appointees, shall not have a conflict of interest,

24 including financial conflict of interest, in the discharge of

25 their duties in that rule.


been talking about at this trial unless either the law is

2 changed or there's a court order?

3 A. Mr. Schlafly, that's not what I feel. The truth of the

4 matter, you and I both know, the statute says complaints are

5 confidential. I don't have the authority to change that. So,

6 no, I can't change it because I don't have the authority to

7 change the statute.

93a

ROBINSON - REDIRECT

1 working with an out-of-state physician such as Eddie Sassoon

2 for reading images in Texas?

3 A. I don't know if there's anything that specific. I know we

4 have investigated other physicians for similar things. The one

5 I'm remembering is not a needle EMG. It related to testing of

6 the eyes, but it was a similar setup, yes.

7 Q. Were those other physicians disciplined for doing that?

8 A. I don't recall right now because I can't remember their

9 name. I do remember that scenario coming up, and it is a

10 violation of the law.

11 Q. Did Eddie Sassoon review tests for other physicians in

12 Texas?

13 A. I do not know the answer to that.

14 Q. But isn't it true that you knew about Eddie Sassoon beyond

15 the work he had done for Debbie Crawford?

16 A. I knew the information that Ms. Garanflo gave me from the

17 licensure department. That's what we knew.

18 Q. And do you recall whether that information included work

19 that Eddie Sassoon had done for other physicians in Texas?

20 A. I don't. I don't know what all that included.

21 Q. And one final question: You had mentioned that anonymous

22 complaints are no longer allowed. But does the TMB do any

23 verification that that name put on the complaint identifying a

24 complainant is actually that person?

25 A. There is a requirement that they're swearing to affirm


Q. Were those other physicians disciplined for doing that?

8 A. I don't recall right now because I can't remember their

9 name.

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Page 1

NEWMAN MARCHIVE PARTNERSHIP, INC., Plaintiff-Appellant, versus KEITH HIGHTOWER, Individual Capacity; CEDRIC GLOVER, In His Official Capacity

as Mayor of the City of Shreveport; CITY OF SHREVEPORT, Defendants-Appellees.

No. 09-30129 Summary Calendar

UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

349 Fed. Appx. 963; 2009 U.S. App. LEXIS 23339

October 22, 2009, Filed NOTICE: PLEASE REFER TO FEDERAL RULES OF APPELLATE PROCEDURE RULE 32.1 GOVERN-ING THE CITATION TO UNPUBLISHED OPINIONS. SUBSEQUENT HISTORY: Summary judgment grant-ed, in part, summary judgment denied, in part by, Partial summary judgment granted by, Partial summary judg-ment denied by, On remand at Newman Marchive P'ship v. Hightower, 2010 U.S. Dist. LEXIS 85301 (W.D. La., Aug. 18, 2010) PRIOR HISTORY: [**1] Appeal from the United States District Court for the Western District of Louisiana. No. 5:06-CV-1664. Newman Marchive P'ship v. Hightower, 2009 U.S. Dist. LEXIS 8945 (W.D. La., Feb. 6, 2009) COUNSEL: For NEWMAN MARCHIVE PARTNER-SHIP INC, Plaintiff - Appellant: John Hodge, John M. Madison, Jr., Michael Allyn Stroud, Wiener, Weiss & Madison, Shreveport, LA. For KEITH HIGHTOWER, Individual Capacity, CEDRIC GLOVER, In His Official Capacity as Mayor of the City of Shreveport, CITY OF SHREVEPORT, Defendant - Appellees: Kenneth Patrick Haines, Brian D. Landry, Weems, Schimpf, Gilsoul, Haines, Landry & Carmouche, Shreveport, LA. JUDGES: Before DAVIS, SMITH, and DENNIS, Cir-cuit Judges. OPINION BY: JERRY E. SMITH

OPINION

[*964] JERRY E. SMITH, Circuit Judge: *

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be pub-lished and is not precedent except under the lim-ited circumstances set forth in 5TH CIR. R. 47.5.4.

Newman Marchive Partnership, Inc. ("Newman"), won judgments against the City of Shreveport for the unpaid balance on two architectural contracts. The city agreed to pay the principal but refused to pay judicial interest. Newman appeals the summary judgment deny-ing its equal protection and constitutional retaliation claims. We vacate in part, reverse in part, and remand. I.

Fifteen years ago, [**2] Newman entered into two architectural contracts with the city to renovate Inde-pendence Stadium and to develop a "Campus Plan" for governmental facilities. In 2002, Newman sued the city in state court on the Independence Stadium contract for the unpaid balance, and the jury awarded $ 251,304.34. The Louisiana Court of Appeal amended the judgment to include legal interest from the date of judicial demand. Newman sued the city on the Campus Plan contract and was awarded $ 414,200.45. The city made an uncondi-tional tender of the principal amount of the judgments but refused to pay judicial interest of $ 70,301.66. II.

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While simultaneously pursuing state court remedies, Newman filed this federal [*965] suit against the city and its former mayor, Keith Hightower (jointly "the city"), under 42 U.S.C. § 1983. Newman alleged that the refusal to pay judicial interest violated the Equal Protec-tion Clause of the Fourteenth Amendment and was an unconstitutional retaliation against its exercise of the First Amendment right to sue. The district court granted motions for summary judgment in favor of the city, dis-missing the suit in its entirety.

Summary judgment is appropriate where "there is no genuine issue [**3] as to any material fact and . . . the movant is entitled to judgment as a matter of law." FED. R. CIV. P. 56. This court reviews summary judgments de novo. Settlement Funding, LLC v. TransAmerica Occi-dental Life Ins. Co., 555 F.3d 422, 424 (5th Cir. 2009) (citations omitted). III.

A.

Newman argues that the city violated the Equal Pro-tection Clause of the Fourteenth Amendment when it refused to pay judicial interest. That clause requires that similarly-situated persons be treated alike. City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 105 S. Ct. 3249, 87 L. Ed. 2d 313 (1985). If claims do not in-volve a suspect class or a fundamental right, courts re-view state action using a rational-basis test. Differential treatment survives rational-basis scrutiny if the classifi-cation is rationally related to achieving a legitimate gov-ernment interest. Delahoussaye v. City of New Iberia, 937 F.2d 144, 149 (5th Cir. 1991). The actual reason for a state action is irrelevant for claims reviewed under ra-tional-basis scrutiny and will be upheld if "any state of facts reasonably may be conceived to justify [its discrim-ination]." McGowan v. Maryland, 366 U.S. 420, 426, 81 S. Ct. 1101, 6 L. Ed. 2d 393 (1961).

A plaintiff alleging discrimination on grounds other than [**4] membership in a protected group may never-theless prevail on an equal protection claim under a "class of one" theory. Vill. of Willowbrook v. Olech, 528 U.S. 562, 564, 120 S. Ct. 1073, 145 L. Ed. 2d 1060 (2000). We review such claims under a two-prong test: The plaintiff must show (1) that it was intentionally treated differently from others similarly situated and (2) that there was no rational basis for the difference in treatment. Whiting v. Univ. of S. Miss., 451 F.3d 339, 348 (5th Cir. 2006).

The district court found that Newman had satisfied the first prong but failed to meet the second. The court rejected all of the potential rational bases supplied by the city but nevertheless held that refusal to pay legal interest was rationally based on the legitimate state goal of pro-

tecting taxpayer money. Although that is a laudable state objective, and refusing to pay helps to achieve it, the district court's analysis is based on a misconception re-garding equal protection analysis.

To pass rational basis review, it is not sufficient for the state action merely to serve some legitimate govern-ment purpose. Instead, there must be some rational basis for the classification, which must serve legitimate state ends. In other words, [**5] there must be some rational basis for the government to treat an individual or group differently from others similarly situated. City of Cleburne, 473 U.S. at 440-42.

The objective of protecting the public fisc in no way serves to distinguish Newman from the sixteen other judgment creditors whose judgments were paid in full. The same can be said of the district court's assertion that the unenforceability of judgments against the city pro-vides another rational basis for denying this plaintiff le-gal interest. Neither of the supposedly [*966] rational bases offered by the district court provides any explana-tion for distinguishing Newman and subjecting it to dif-ferential treatment. 1

1 In the district court, the city also argued that a new city ordinance establishing a policy of not paying interest on judgments provides a rational basis on which to deny payment of interest on the Campus Plan judgment. The court, having al-ready found what it considered to be a rational basis, declined to reach the merits of that argu-ment. Because we conclude that the rationales proposed by the court are insufficient, it may wish, on remand, to address the new ordinance on the merits.

That analysis, however, does not [**6] end the in-quiry. Under the rational-basis test, the defendant does not bear the burden of demonstrating a rational basis for its discriminating treatment. Instead, the plaintiff bears the burden of showing that there is no conceivable ra-tional basis. Bd. of Trs. of Univ. of Ala. v. Garrett, 531 U.S. 356, 367, 121 S. Ct. 955, 148 L. Ed. 2d 866 (2001). Thus, even if, as here, the explanations offered by the city and the district court fail to pass rational-basis scru-tiny, there may be another reasonably-imaginable ra-tionale that would survive the test. It is Newman's burden to show that there is none.

Though yet more arguments supporting classifica-tion are plausible, it is not the job of this court to invent them. The summary judgment on Newman's equal pro-tection claim is based on the erroneous belief that New-man had failed to negative the public-fisc rationale. Be-cause that reasoning provides no explanation for treating Newman's claim differently from that of the other judg-

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ment creditors, the summary judgment was premature. A conceivable rational basis may still exist, however, for defendants' actions. We thus vacate the summary judg-ment on the equal protection claim and remand for fur-ther proceedings.

B.

Newman argues [**7] that the refusal to pay legal interest was in retaliation for its exercising its constitu-tional right to seek judicial relief. The district court re-viewed the retaliation claim under the four-prong test in Reeves v. Wood, 206 F. App'x 368, 369 (5th Cir. 2006), under which the elements are "(1) a specific constitution-al right, (2) the defendant's intent to retaliate against the [plaintiff] for his or her exercise of that right, (3) a retali-atory adverse act, and (4) causation." The court found that there was no retaliatory adverse act, because "New-man was not deprived of a substantive or vested property right" (citing Minton v. St. Bernard Parish Sch. Bd., 803 F.2d 129 (5th Cir. 1986)). The court held that, because Newman had no right to enforce its judgment against the city, the company did not suffer the requisite injury to show an adverse act.

To the contrary, though Newman lacked a "vested property right," it did suffer an injury sufficient to meet the third prong of Reeves. Minton involved a claim based on the Due Process Clause, which requires showing a deprivation of life, liberty, or property, but the injury required to meet the "adverse act" prong of a retaliation claim has [**8] no such threshold inquiry.

Regardless of whether a plaintiff has a right to pub-lic funds, governments may not deny payment based on the exercise of a constitutional right. Instead, the plaintiff must show only some injury that is more than de mini-mis--that is, action that is "capable of deterring a person of ordinary firmness from further exercising his constitu-

tional rights." Morris v. Powell, 449 F.3d 682, 686 (5th Cir. 2006). A decision by a city not to pay a plaintiff interest because it has sued the city has such potential to chill the exercise of First Amendment [*967] rights and is therefore sufficient to satisfy the third prong.

The district court held, in the alternative, that even if Newman satisfied the first three prongs, its claim would fail for lack of causation. Once a prima facie retaliation claim has been established, the burden shifts to the de-fendant to show that it would have taken the same action regardless of any retaliatory motive. Hartman v. Moore, 547 U.S. 250, 260, 126 S. Ct. 1695, 164 L. Ed. 2d 441 (2006). The district court held that the city had satisfied that burden through deposition testimony indicating that its actions were motivated primarily by a desire to save taxpayer money.

There is, however, [**9] insufficient summary judgment evidence showing that the city would have taken the same actions regardless of retaliatory animus. In fact, the city's discovery responses indicate that New-man's decision to litigate was precisely the trigger for the city's adverse actions. Assuming, as did the district court, that the plaintiff made out its prima facie retaliation claim, the city failed to satisfy its summary judgment burden to show lack of causation. We therefore reverse the summary judgment on the retaliation claim and re-mand for consideration of the remaining elements of the retaliation analysis.

For the foregoing reasons, the summary judgment on Newman's equal protection claim is VACATED, the summary judgment on the retaliation claim is RE-VERSED, and this matter is REMANDED for further action in accord with this opinion. We express no view on what decisions the district court should make on re-mand or on the ultimate merits of any claims.

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ROSE WALTER and SYLVESTER SHELTON, Plaintiffs-Appellants v. HORSESHOE ENTERTAINMENT, Defendant-Appellee

No. 11-30867

UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

2012 U.S. App. LEXIS 11413

June 6, 2012, Filed NOTICE: PLEASE REFER TO FEDERAL RULES OF APPELLATE PROCEDURE RULE 32.1 GOVERNING THE CITATION TO UNPUBLISHED OPINIONS. PRIOR HISTORY: [*1] Appeal from the United States District Court for the Western District of Louisiana, Shreveport Division. No. 5:11-CV-463. Shelton v. Horseshoe Casino & Hotel, 2011 U.S. Dist. LEXIS 90100 (W.D. La., Aug. 12, 2011) COUNSEL: For ROSE WALTER, SYLVESTER SHELTON, Plaintiff - Appellants: Nelson Welch Cameron, Shreveport, LA. For HORSESHOE ENTERTAINMENT, Defendant - Appellee: Scott Louis Zimmer, Attorney, Elizabeth Mendell Carmody, Esq., Cook, Yancey, King & Galloway, A P.L.C., Shreveport, LA. JUDGES: Before DAVIS, SMITH, and DENNIS, Circuit Judges. OPINION

PER CURIAM: *

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4.

Appellants Rose Walter and Sylvester Shelton appeal the district court's grant of summary judgment in

favor of Horseshoe Entertainment and its order dismissing appellants' suit, alleging that Horseshoe Entertainment violated their constitutional rights by permitting the use of excessive force against them and permitting their unlawful arrest. Because we find that the appellants' claims are barred by Heck v. Humphrey 1, we AFFIRM the district court's grant of summary judgment and DENY the appellants' motions to continue discovery and to amend their complaint. [*2] 2

1 Heck v. Humphrey, 512 U.S. 477, 114 S. Ct. 2364, 129 L. Ed. 2d 383 (1994). 2 The appellants argue in their brief that this court does not have jurisdiction over their appeal, asserting that the district court "improperly accepted removal" of the case. The district court had federal question subject matter jurisdiction over the appellants' § 1983 claims. The district court entered a final appealable order, and there was a timely notice of appeal. We therefore have jurisdiction to hear the appeal.

I.

This case arises from an incident taking place at the Horseshoe Casino and Hotel in Bossier City, Louisiana. On March 12, 2004, appellants Rose Walter (Walter) and Sylvester Shelton (Shelton) were at the casino when a member of their group became involved in a verbal incident with another Horseshoe patron. The assistant security supervisor, Dylan James (James), and the shift manager Ronnie Tubbs responded to the incident.

Some time after that incident was resolved, James received notice that the same patrons were involved in another altercation. When James arrived at the scene, he found Walter very upset and unable to calm down. James

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asked that Walter leave the casino for 24 hours. James also called for police assistance, and [*3] Officer Christoper Estess (Estess) of the Bossier City Police Department responded.

James and Estess began escorting Walter and Shelton from the premises. Walter abruptly stopped, apparently because she heard someone call her name. The security guard escorting Walter jerked her arm, and Walter pulled away. This triggered an altercation between the police officer, the security guard, Walter and Shelton. Walter and Shelton refused to proceed out of the casino, and the officer and security guard forcibly restrained and handcuffed them. Walter and Shelton were charged with remaining after being forbidden and resisting arrest. Both Walter and Shelton were convicted of those offenses in Bossier City Court.

Walter and Shelton filed a petition in state court in 2005 against Bossier City, Officer Estess and the Horseshoe Casino and Hotel. That petition was later amended to include Horseshoe Entertainment as a defendant. The state court granted summary judgment in favor of the Officer and City. Horseshoe Entertainment then removed the sole remaining claim, a constitutional claim under 42 U.S.C. § 1983, to federal court. The district court granted Horseshoe's motion for summary judgment, finding [*4] that Horseshoe was entitled to qualified immunity. The district court also denied the plaintiffs' motion for an extension of time to conduct discovery and motion to amend their complaint. II.

We review a grant of summary judgment de novo, applying the same standards as the district court. Bishop v. Arcuri, 674 F.3d 456, 460 (5th Cir. 2012). III.

To state a claim under § 1983, the appellants must establish that they were deprived of a constitutional right, and that the alleged deprivation was committed under color of state law. Am. Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 49-50, 119 S. Ct. 977, 143 L. Ed. 2d 130 (1999). While employees of private enterprises are not generally considered to be state actors, a private person such as a security guard may be considered a state actor for the purposes of § 1983 when "he is a willful participant in joint activity with the State or its agents." Meade v. Dillard Dept. Stores, 275 F.3d 43 (5th Cir. 2001) (quoting Adickes v. S.H. Kress & Co., 398 U.S. 144, 152, 90 S. Ct. 1598, 26 L. Ed. 2d 142 (1970)). Because we hold that the appellants' claims are in any event barred by the rule established in Heck v. Humphrey, 512 U.S. 477, 114 S. Ct. 2364, 129 L. Ed. 2d 383 (1994), we do not reach the question of whether the

Horseshoe security staff should be [*5] considered state actors for the purposes of § 1983. 3

3 The district court found that the Horseshoe security staff was entitled to qualified immunity, which "protects government officials from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Pearson v. Callahan, 555 U.S. 223, 231, 129 S. Ct. 808, 172 L. Ed. 2d 565 (2009) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S. Ct. 2727, 73 L. Ed. 2d 396 (1982)). The law is not established in this circuit, however, as to whether private entities such as these are entitled to the protections of qualified immunity. While individuals who are retained by the government to perform a particular task are entitled to qualified immunity when performing that task, it is less clear whether a security guard working in concert with the police is entitled to the protections. See Filarsky v. Delia, 132 S.Ct. 1657, 1661-68, 182 L. Ed. 2d 662 (2012) (holding that an individual retained by the government may be entitled to qualified immunity regardless of whether he is a full-time employee); Bishop v. Karney, 408 Fed. Appx. 846, 848 (5th Cir. 2011) (holding that a private doctor under contract with a state prison to provide [*6] medical care is entitled to qualified immunity). Cf. Richardson v. McKnight, 521 U.S. 399, 412, 117 S. Ct. 2100, 138 L. Ed. 2d 540 (1997) (holding that prison guards employed by a private prison are not entitled to qualified immunity).

In Heck v. Humphrey, 512 U.S. 477, 114 S. Ct. 2364, 129 L. Ed. 2d 383 (1994), the Supreme Court held that "in order to recover damages for allegedly unconstitutional conviction or imprisonment, or for other harm caused by actions whose unlawfulness would render a conviction or sentence invalid, a § 1983 plaintiff must prove that the conviction or sentence has been reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal authorized to make such determination, or called into question by a federal court's issuance of a writ of habeas corpus . . . ." Heck at 486-87. The Heck rule was formulated in deference to the principle that "civil tort actions are not appropriate vehicles for challenging the validity of outstanding criminal judgments." Id. at 486.

The appellants allege that they were arrested unlawfully, despite having been convicted in Bossier City Court of resisting arrest and remaining in a place after being forbidden. In order to support a claim for

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unlawful arrest, a plaintiff must [*7] show that he was arrested without probable cause. Burge v. Parish of St. Tammany, 187 F.3d 452, 481 (5th Cir. 1999). Here, the plaintiffs were arrested for crimes of which they were ultimately convicted. Heck therefore bars recovery for the false arrest claim, because the conviction necessarily implies that there was probable cause for the arrest. Sappington v. Bartee, 195 F.3d 234, 237 (5th Cir. 1999). As we held in Wells v. Bonner, 45 F.3d 90, 95 (5th Cir. 1995), "[i]f there was probable cause for any of the charges made . . . then the arrest was supported by probable cause, and the claim for false arrest fails. Thus [plaintiff's] proof to establish . . . false arrest, i.e., that there was no probable cause to arrest . . . would demonstrate the invalidity of [plaintiff's] conviction . . . ." A § 1983 claim that would invalidate a conviction is barred by Heck.

The Heck principle also operates to bar the appellants' claims of excessive force. We have held that "a successful claim of excessive force would necessarily undermine [a] conviction for resisting arrest." Thomas v. Louisiana State Police, 170 F.3d 184, 184 (5th Cir. 1999). A claim of excessive force that is "temporally and conceptually [*8] distinct" from the conviction would not be barred by Heck. See Bush v. Strain, 513 F.3d 492, 498 (5th Cir. 2008). But appellants' claims are not derived from distinct incidents. Their convictions for resisting arrest and their claim of use of excessive force stem from a single interaction. The appellants argue that they did not resist arrest when asked to leave the casino, and that the force used against them was therefore excessive. That claim can only be read as an attack on the validity of their conviction for resisting arrest, and it is therefore barred by Heck. 4

4 We recognize that the predicate for Horseshoe's liability is respondeat superior, i.e., its responsibility for the conduct of its employees. The law is clear that Heck operates to protect employers sued for failure to train or supervise as well as liability for the wrongful acts of their agents. Connors v. Graves, 538 F.3d 373, 376 (5th Cir. 2008).

Appellants assert that Heck should not apply, because their convictions have been set aside pursuant to Article 894 of the Louisiana Code of Criminal Procedure. Article 894 gives the criminal court discretion to suspend sentencing and set aside criminal convictions for misdemeanants. [*9] La. C. Cr. P. 894. 5 The text of the article makes it clear, however, that granting relief under Article 894 does not invalidate the conviction or call into question the court's finding of guilt. A dismissal under Article 894 has the procedural effect of an acquittal, but the dismissed conviction "may be

considered as a first offense and provide the basis for subsequent prosecution of the party as a multiple offender." La. C. Cr. P. 894B(2). The Article 894 set-aside is meant as an "act of grace to one convicted of a crime." See State v. Gordon, 38 So. 2d 794, 796, 214 LA. 822 (La. 1949) (describing a predecessor to Article 894). It is fundamentally different in character from the exceptions provided by Heck, each of which describes a situation where the legal validity or factual basis of the conviction itself has been called into question.

5 The article provides in relevant part:

A. (1) Notwithstanding any other provision of this Article to the contrary, when a defendant has been convicted of a misdemeanor, except criminal neglect of family, or stalking, the court may suspend the imposition or the execution of the whole or any part of the sentence imposed, provided suspension is not prohibited by [*10] law, and place the defendant on unsupervised probation or probation supervised by a probation office, agency, or officer designated by the court, other than the division of probation and parole of the Department of Public Safety and Corrections, upon such conditions as the court may fix. Such suspension of sentence and probation shall be for a period of two years or such shorter period as the court may specify.

. . . B. (1) When the imposition of sentence has been deferred by the court, as authorized by this Article, and the court finds at the conclusion of the period of deferral that the defendant has not been convicted of any other offense during the period of the deferred sentence, and that no criminal charge is pending against him, the court may set the conviction aside and dismiss the prosecution . . . .

(2) The dismissal of the prosecution shall have the same effect as an acquittal, except that the conviction may be considered

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as a first offense and provide the basis for subsequent prosecution of the party as a multiple offender. Discharge and dismissal under this provision may occur only once with respect to any person during a five-year period . . . .

La. C. Cr. P. 894A-B.

IV.

Because [*11] we conclude that the appellants' claims that Horseshoe staff used excessive force against them and unlawfully arrested them are attacks on the validity of their criminal convictions, we AFFIRM the district court's grant of summary judgment for the appellees.

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Documents

Plaintiff Appendix 08 Cv 675 LY