The State of Texas Ex Rel. Joshua LaFountain v. BLT Management Company, LLC N/K/A BLT Support Services, LLC

ACCEPTED
15-25-00067-CV
FIFTEENTH COURT OF APPEALS
AUSTIN, TEXAS
10/20/2025 11:50 AM
NO. 15-25-00067-CV CHRISTOPHER A. PRINE
______________________________________________ CLERK
FILED IN
IN THE FIFTEENTH COURT OF APPEALS 15th COURT OF APPEALS
AUSTIN, TEXAS
AUSTIN, TEXAS
10/20/2025 1:59:23 PM
______________________________________________
CHRISTOPHER A. PRINE
Clerk
THE STATE OF TEXAS
EX REL. JOSHUA LAFOUNTAIN,

V.

BLT MANAGEMENT COMPANY, LLC N/K/A
BLT SUPPORT SERVICES, LLC; et al.
_________________________________________________

BRIEF OF APPELLEES
__________________________________________________

Jane Webre Christopher S. Ayres
jwebre@scottdoug.com csayres@ayreslawoffice.com
State Bar No. 21050060 R. Jack Ayres, Jr.
SCOTT DOUGLASS & rjayres@ayreslawoffice.com
MCCONNICO LLP AYRES LAW OFFICE, P.C.
303 Colorado Street, Suite 2400 8140 Walnut Hill Lane, Suite 105
Austin, TX 78701-3234 Dallas, Texas 75231
Phone: (512) 495-6300 Phone: (972) 991-2222

Craig Cherry Chris Davis
ccherry@cjsjlaw.com cdavis@grayreed.com
CHERRY JOHNSON SIEGMUND GRAY REED
JAMES, P.C. 1601 Elm Street, Suite 4600
7901 Fish Pond Rd., Second Floor Dallas, TX 75201
Waco, Texas 76710 Phone: (214) 954-4135
Phone: (254) 732-2242

COUNSEL FOR APPELLEES

ORAL ARGUMENT REQUESTED

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IDENTITY OF PARTIES AND COUNSEL

Appellant:
State of Texas ex rel. Joshua LaFountain

Counsel for Appellant
James “Rusty” Tucker
rusty@rustytuckerlaw.com
Law Offices of James R. Tucker, P.C.
3100 Drexel Drive
Dallas, TX 75205
Phone: 214-505-0097

Appellees:
BLT Management Company, LLC N/K/A BLT Support Services, LLC; BLT Dental
Management Company, LLC N/K/A BLT Support Services, LLC; BLT Support
Services, LLC; Buckner Marketplace Dental, LLC, D/B/A Bear Creek Family
Dentistry; Pioneer Dental, PA D/B/A Bear Creek Family Dentistry; Westcliff
Dental, PA, D/B/A Bear Creek Family Dentistry; Pecan Plaza Dental, PA D/B/A
Bear Creek Family Dentistry; Spring Valley Dental, PA D/B/A Bear Creek Family
Dentistry; Plaza De Oro Dental, PA D/B/A Bear Creek Family Dentistry; Robert E.
Tafel DDS, PA D/B/A Bear Creek Family Dentistry; Robert E. Tafel, D.D.S. P.C.;
and Robert B. Tafel.

Counsel for Appellees:
Jane Webre
State Bar No. 21050060
jwebre@scottdoug.com
SCOTT DOUGLASS & MCCONNICO LLP
303 Colorado Street, Suite 2400
Austin, TX 78701-3234
Phone: (512) 495-6300

Craig Cherry
ccherry@cjsjlaw.com
CHERRY JOHNSON SIEGMUND JAMES, PLLC
7901 Fish Pond Rd., Second Floor
Waco, Texas 76710
Phone: (254) 732-2242

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Christopher S. Ayres
csayres@ayreslawoffice.com
R. Jack Ayres, Jr.
rjayres@ayreslawoffice.com
AYRES LAW OFFICE, P.C.
8140 Walnut Hill Lane, Suite 105
Dallas, Texas 75231
Phone: (972) 991-2222

Chris Davis
cdavis@grayreed.com
GRAY REED
1601 Elm Street, Suite 4600
Dallas, TX 75201
Phone: (214) 954-4135

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TABLE OF CONTENTS

IDENTITY OF PARTIES AND COUNSEL ........................................................... ii

TABLE OF AUTHORITIES ................................................................................... vi

STATEMENT OF THE CASE ................................................................................ ix

ISSUES ON APPEAL ...............................................................................................x

RECORD AND APPENDIX ................................................................................... xi

INTRODUCTION .....................................................................................................1

STATEMENT OF FACTS ........................................................................................2

A. LaFountain files suit in 2012 but does nothing until 2024. ..................2

B. Bear Creek produces substantial amounts of hard copy and
electronic files. ......................................................................................4

C. LaFountain’s expert designations are a day late and a dollar
short. ......................................................................................................8

D. The first hearing on pretrial matters. ...................................................11

E. The no-evidence summary judgment. .................................................13

SUMMARY OF THE ARGUMENT ......................................................................17

ARGUMENT ...........................................................................................................18

A. The trial court did not abuse her discretion in striking
LaFountain’s experts. ..........................................................................18

1. The standard of review is deferential to the trial court’s
determination. ...........................................................................18

2. It was not an abuse of discretion to strike Dr. Olson. ...............19

a. The expert designation was not timely and did not
disclose Dr. Olson’s expert opinions. .............................19

b. Dr. Olson’s opinions were properly excluded on
their merits. .....................................................................23

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3. It was not an abuse of discretion to strike Reaves. ...................25

a. The designation was untimely and insufficient. .............25

b. Reaves’ opinions were properly excluded on their
merits. .............................................................................26

B. The trial court did not abuse her discretion in denying
LaFountain’s motion to compel production of additional
documents. ...........................................................................................29

C. It was not an abuse of discretion to deny LaFountain’s motion to
amend the Agreed Scheduling Order. .................................................33

D. Summary judgment was proper because, after twelve years,
LaFountain had no evidence to support his TMFPA claims. ..............34

1. The trial court sustained Bear Creek’s objections to
LaFountain’s only summary judgment evidence, and he
has waived any error regarding that ruling. ..............................34

2. No-evidence summary judgment was proper. ..........................37

a. There is no evidence that Bear Creek committed
“unlawful acts” in violation of the TMFPA. ..................37

b. There is no evidence of damages....................................38

PRAYER ..................................................................................................................41

CERTIFICATE OF COMPLIANCE .......................................................................42

CERTIFICATE OF SERVICE ................................................................................42

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TABLE OF AUTHORITIES

Cases

Bertucci v. Watkins,
709 S.W.3d 534 (Tex. 2025) .........................................................................36

Broders v. Heise,
924 S.W.2d 148 (Tex. 1996) .........................................................................23

Cooper Tire & Rubber Co. v. Mendez,
204 S.W.3d 797 (Tex. 2006) .................................................................. 23, 24

E.I. du Pont de Nemours & Co., Inc. v. Robinson,
923 S.W.2d 549 (Tex. 1995) ............................................................ 24, 25, 27

ERI Consulting Eng’rs, Inc. v. Swinnea,
318 S.W.3d 867 (Tex. 2010) .........................................................................36

Fleming v. Wilson,
610 S.W.3d 18 (Tex. 2020) ...........................................................................18

Ford Motor Co. v. Ledesma,
242 S.W.3d 32 (Tex. 2007) ...........................................................................27

Fort Brown Villas III Condo. Ass’n v. Gillenwater,
285 S.W.3d 879 (Tex. 2009) .........................................................................18

Fults v. Standley,
No. 09-22-00126-CV, 2025 WL 2164868
(Tex. App.—Beaumont July 31, 2025, pet. filed) ............................ 21, 22, 26

Garrett v. Brinkley,
No. 03-14-00431-CV, 2016 WL 240896 (Tex. App.—Austin
Jan. 15, 2016, no pet.) ....................................................................................18

Houston Unlimited, Inc. Metal Processing v. Mel Acres Ranch,
443 S.W.3d 820 (Tex. 2014) .........................................................................24

Lujan v. Navistar, Inc.,
555 S.W.3d 79 (Tex. 2018) ...........................................................................16

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Merrell Dow Pharm., Inc. v. Havner,
953 S.W.2d 706 (Tex. 1997) .........................................................................24

Miller v. Kennedy & Minshew,
142 S.W.3d 325 (Tex. App.—Fort Worth 2003, pet. denied) .......................22

Paxton v. Tex. Dep’t of State Health Servs.,
500 S.W.3d 702 (Tex. App.—Austin 2016, no pet.) .....................................30

Pilgrim’s Pride Corp. v. Smoak,
134 S.W.3d 880 (Tex. App.—Texarkana 2004, pet. denied) ........................18

Pjetrovic v. Home Depot,
411 S.W.3d 639 (Tex. App.—Texarkana 2013, no pet.) ..............................18

Ross v. St. Luke’s Episcopal Hosp.,
462 S.W.3d 496 (Tex. 2015) .........................................................................36

Sw. Energy Prod. Co. v. Berry-Helfand,
491 S.W.3d 699 (Tex. 2016) .........................................................................28

Wal-Mart Stores, Inc. v. Merrell,
313 S.W.3d 837 (Tex. 2010) .........................................................................29

Statutes

Tex. Gov’t. Code § 531.1021(g) ..............................................................................30

Tex. Hum. Res. Code §§ 36.001 et seq.................................................................... ix

Tex. Hum. Res. Code § 36.002(1)-(13) .....................................................................2

Tex. Hum. Res. Code § 36.002(1) ...........................................................................37

Tex. Hum. Res. Code § 36.002(2) ...........................................................................37

Tex. Hum. Res. Code § 36.002(3) ...........................................................................37

Tex. R. App. P. 38.1(i) .............................................................................................36

Tex. R. Civ. P. 193.6(a) .................................................................................... 18, 25

Tex. R. Civ. P. 193.6(b) ...........................................................................................18

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Tex. R. Civ. P. 194.2 ..................................................................................................8

Tex. R. Civ. P. 195.5 ..................................................................................................8

Tex. R. Civ. P. 195.5(a)(3).........................................................................................8

Tex. R. Civ. P. 195.5(a)(4)(A) .................................................................................10

Tex. R. Civ. P. 196.3(c) ...................................................................................... 4, 33

Tex. R. Evid. 702 .....................................................................................................23

Tex. R. Evid. 705(c) .................................................................................................24

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STATEMENT OF THE CASE

Nature of the Case: This is a qui tam action filed under the Texas Medicaid
Fraud Prevention Act (the “TMFPA”), Tex. Hum. Res.
Code §§36.001 et seq. Appellees BLT Management
Company, LLC, et al. (together, “Bear Creek”) are a group
of affiliated dental clinics. In 2012, Appellant Joshua
LaFountain filed this qui tam suit against Bear Creek
alleging violations of the TMFPA. Supp.CR.3 (Original
Petition); CR4-61 (Fourth Amended Petition).

Trial Court: 126th District Court of Travis County. Of the orders at
issue in this appeal, Hon. Daniella Deseta Lyttle rendered
the orders striking LaFountain’s experts and denying
LaFountain’s motions to compel and to amend the
scheduling order. Hon. Jessica Mangrum rendered the
final no-evidence summary judgment.

Course of Proceedings: The case was filed in 2012 under seal but was unsealed in
2017 after the State declined to intervene. Supp.CR4-6. In
January 2024 the court signed an Agreed Scheduling
Order that set pretrial deadlines and a trial date in April
2025, which was more than thirteen years after suit was
filed. App.7. Bear Creek moved to strike LaFountain’s two
experts on various grounds, including that the designation
was filed weeks after the deadline in the Agreed
Scheduling Order. CR62-198. LaFountain moved to
compel production of additional documents and to amend
the scheduling order. CR199-253. The court held a hearing
on all of the motions (2RR) and rendered orders striking
both experts and denying the motions to compel and to
amend the scheduling order. App.1-4.

Bear Creek moved for no-evidence summary judgment as
to many elements of the TMFPA claims. CR530-570. The
court held another hearing (3RR) and rendered an order
sustaining Bear Creek’s objections to LaFountain’s
summary judgment evidence and granting a final summary
judgment. App.5.

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ISSUES ON APPEAL

1. The trial court did not abuse her discretion in striking LaFountain’s two

expert witnesses because, among other deficiencies, their designations were

untimely and inadequate.

2. The trial court did not abuse her discretion in denying LaFountain’s

eleventh-hour motion to compel production of additional documents because

LaFountain failed to meet his burden to identify any documents he requested that

Bear Creek had not produced.

3. The trial court did not abuse her discretion in declining to amend the

Agreed Scheduling Order where the case had been on file for thirteen years and

LaFountain failed to demonstrate any measure of diligence in conducting discovery

and preparing the case for trial.

4. The no-evidence summary judgment was proper where LaFountain

lacked any evidence of the essential elements of the TMFPA claims. Summary

judgment was proper whether or not the experts were stricken.

5. LaFountain waived any error in the trial court’s order sustaining

objections to his summary judgment evidence by failing to brief the issue in this

Court. In any event, the court did not abuse her discretion in sustaining the

objections.

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RECORD AND APPENDIX

There is a Clerk’s Record and a Supplemental Clerk’s Record. Citations to

items will be to page number: CR___ or Supp.CR___. There is a three-volume

Reporter’s Record. Citations will be to volume and page: ___RR___.

The following items are included in the Appendix to this brief:

App.1 Order Granting Defendants’ Motion to Exclude or Strike the
Testimony of Sally Reeves (CR526)

App.2 Order Granting Defendants’ Motion to Exclude or Strike the
Testimony of Dr. Gregory Olson (CR527)

App.3 Order Denying Plaintiff’s Motion to Compel Production of
Documents by all Bear Creek Defendants (CR528)

App.4 Order Denying Plaintiff’s Motion to Amend Scheduling Order
(CR529)

App.5 Summary Judgment Order (CR701)

App.6 Affidavit of Sylvia Acosta (CR417-424)

App.7 Agreed Level Three Scheduling Order (CR77-81)

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INTRODUCTION

This appeal involves straightforward pre-trial issues. It involves tracing the

procedural history, reviewing the trial court’s exercise of discretion in rendering

orders regarding discovery and scheduling, and analyzing whether, just two weeks

before the trial setting, LaFountain adduced more than a scintilla of evidence to

support his claims that had been on file for more than thirteen years. LaFountain

asks this Court to give him a pass and let him start over, but his arguments find no

support in the record. He makes inflammatory accusations regarding the merits of

his TMFPA claims and the discovery issues that underlie the final judgment. But the

actual record belies his contentions.

This suit has been on file since 2012. Yet in all those years, LaFountain never

did the work required to develop his far-reaching TMFPA claims. He complains that

he was denied discovery, but he exercised no diligence for over a decade, and never

even bothered to review documents Bear Creek made available. Under all of those

circumstances, the trial court did not abuse her discretion in denying LaFountain’s

request for even more time. She did not abuse her discretion in striking two experts

who were not timely designated and who never rendered actual opinions. And the

court properly granted a no-evidence summary judgment because, after thirteen

years, LaFountain lacked even a scintilla of evidence of the essential elements of his

TMFPA claims. This Court should affirm and allow this saga to come to an end.

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STATEMENT OF FACTS

A. LaFountain files suit in 2012 but does nothing until 2024.

In March 2012, LaFountain filed this TMFPA qui tam suit against Bear Creek,

a group of affiliated dental clinics. Supp.CR3. LaFountain, who previously worked

at some of the dental clinics, brought this suit claiming that Defendants—through a

concerted scheme used at all locations—violated the TMFPA by performing

unnecessary or substandard dental procedures and submitting fraudulent bills to

Texas Medicaid. CR4-61 (Fourth Amended Petition).

Suit was filed under seal but was unsealed in 2017 after the State declined to

intervene. Supp.CR4-6. The docket sheet shows essentially no activity between

2017, when the case was unsealed, and November 2023, when new counsel appeared

for Bear Creek. CR702-05. In January 2024, the trial court signed an Agreed

Scheduling Order that set pretrial deadlines and a trial date in April 2025. App.7.

LaFountain’s claims were far-reaching and entailed significant discovery. The

TMFPA sets out a laundry list of activities relating to state health care programs that

constitute “unlawful acts” under the statute. Tex. Hum. Res. Code § 36.002(1)-(13).

LaFountain alleges that Bear Creek committed “unlawful acts” in violation of the

TMFPA, including contentions that dental services Bear Creek provided were

unnecessary and did not meet the standard of care for dentists. See, e.g., CR43-47

¶71(b) (“knowingly committing Unlawful Acts…for placing stainless steel crowns

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that were not medically necessary and/or were performed in a manner that did not

meet professionally-recognized standards of care”); ¶71(u) (“knowingly committing

Unlawful Acts by billing for x-rays that were not medically necessary and/or were

redundant”); ¶71(v) (“knowingly committing Unlawful Acts by seeking

reimbursement from Medicaid for services that were not medically necessary”).

LaFountain seeks to recover civil penalties from Bear Creek “of tens of

millions of dollars (and perhaps in excess of $100 million).” CR51. Civil penalties

under the TMFPA are imposed on a per-event basis. To prove those far-reaching

claims and recover the substantial civil penalties he seeks, LaFountain would need

to review hundreds or perhaps thousands of individual Bear Creek patient charts to

determine whether specific x-rays or specific dental services were “medically

necessary and/or redundant” or “performed in a manner that did not meet

professionally-recognized standards of care,” as he alleges. CR43-47.

The record reflects that LaFountain simply never did that work. Putting aside

the five years the case was under seal, he did no meaningful discovery or case

preparation from 2017, when it was unsealed, to January 2024, when the Agreed

Scheduling Order was signed. LaFountain brief never mentions those years of

inactivity. Discovery went forward in 2024, but LaFountain still failed to act

diligently.

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B. Bear Creek produces substantial amounts of hard copy and electronic files.

LaFountain represents that “the Bear Creek Defendants steadfastly objected

to producing ANY documents in response to over 60 requests.” Brief.8 (emphasis in

original). In fact, in May 2024, Bear Creek made significant amounts of hard-copy

documents available to LaFountain for review. App.6 (Bear Creek custodian of

records affidavit). Documents were produced in hard copy because LaFountain’s

document requests went back to 2004, and at that time Bear Creek patient-care

records were made and kept in hard copy and not electronically. App.6 ¶4; CR327

¶6 (Third Request for Production: “Unless otherwise noted, the time period for these

Requests for Production of Documents is January 1, 2004 until present.”). That

production of hard-copy materials, as they are kept in the usual course of business,

is the primary method contemplated by the Rules. See Tex. R. Civ. P. 196.3(c).

Bear Creek made available to LaFountain hundreds of boxes of documents,

which were produced in the manner in which they were kept in the usual course of

business:

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App.6 ¶5-6. These documents included “End of Day” reports, which reflect

accounting and reports documenting dentists’ services, charges, review of charges,

and billing records. Id.

Bear Creek also produced patient charts in hard copy, going back to 2004, that

included x-rays and other scans. App.6 ¶7. The charts were in filing cabinets,

organized by patient name, as they were kept in the usual course of business:

App.6 ¶7.

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LaFountain’s counsel spent less than two hours reviewing the hard copy

documents and patient charts produced to him, marked a small number for copying,

but never actually got any documents copied. CR288 (“Please hold off for now

copying any of it.”); see also 2RR9 (LaFountain counsel: “And initially I just tagged

a bunch of them just randomly to be copied.”).

Bear Creek also produced patient charts to LaFountain electronically on a

thumb drive that required particular software to allow review of x-rays and provided

a step-by-step tutorial on how to access the x-rays. CR298-300; App.6 ¶¶9-14.

LaFountain claimed that his expert could not access the data on the first thumb drive,

so Bear Creek provided a second thumb drive along with technical information

regarding how to download and use the software to view the x-rays:

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CR302; see also App.6 ¶11 (Bear Creek custodian of records: “After Bear Creek

was notified that the first thumb drive was difficult to manage for Plaintiff’s counsel,

I loaded a second thumb drive with the same information, and also loaded the

Dentrix and Dexis viewers’ ‘load files’ or applications on the thumb drive. We

likewise gave instructions on how to do so. Again, I verified all responsive data was

included and accessible.”).

LaFountain complained that he still could not access the patient files and x-

rays on the second thumb drive, so Bear Creek took the extraordinary step of

purchasing a laptop computer for LaFountain and his counsel, loading it with the

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necessary software and patient files, and providing it to LaFountain. CR310-14;

App.6 ¶¶12-14. LaFountain complains that the information on the laptop is

incomplete, but the Bear Creek custodian of records explained that all of the

electronic patient files were complete and accessible when she prepared and

produced the two thumb drives and the laptop: “Neither of the thumb drives nor the

laptop were corrupted in any manner when we produced such materials. To the

contrary, all three devices loaded and were accessible by me when utilized. I cannot

speak to what actions [LaFountain or his] counsel took in altering the devices or

data.” App.6 ¶14.

C. LaFountain’s expert designations are a day late and a dollar short.

The Agreed Scheduling Order provided that LaFountain must designate all

experts by October 15, 2024, “by describing and producing all the information set

out in” Tex. R. Civ. P. 195.5. 1 App.7. The rule requires designations to set out much

more than simply name and CV. Expert designations must disclose the actual expert

opinions: “the general substance of the expert’s mental impressions and opinions

and a brief summary of the basis for them.” Tex. R. Civ. P. 195.5(a)(3).

On November 6, 2024—three weeks after the expert deadline—LaFountain

served designations for two retained experts, Dr. Gregory Olson and Sally Reaves.

1
The Scheduling Order cites Tex. R. Civ. P. 194.2, which was the predecessor rule defining the
scope of expert designations.

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CR151-96. Bear Creek moved to strike the experts on various grounds, including

that the designations were untimely and insufficient. CR62-75; CR131-143.

Among other deficiencies, Dr. Olson’s designation failed to state any actual

opinions but promised to provide the “substance of his opinions” in a future report:

The general substance of his opinion will be based on his review of
charts of several doctors at Bear Creek as to multiple categories of
improper and/or excessive treatment as alleged in Plaintiff’s most
recent Petition which constitute unlawful acts in violation of the Texas
Medicaid Fraud and Prevention Act. The substance of his opinions will
be described in further detail in the forthcoming expert opinion of Dr.
Olsen which will be timely supplemented.

CR154 (emphasis added).

After Bear Creek moved to strike the experts, on January 31, 2025 (more than

three months past the expert designation deadline), LaFountain filed an affidavit

from Dr. Olson that tried to provide more detail regarding his expert opinions, but

even that late-filed document did no more than “recommend an audit and

investigation of a larger sample of complete records,” and explain that, only after

further discovery and analysis will Dr. Olson “then be able to be more specific and

detailed as to my opinions.” CR473; see also CR472 (“15. I will be willing to be

more specific as to the violations of the standard of care as to each completed chart

I reviewed in a deposition or otherwise. It would be helpful if I was given more time

to review additional complete charts to further clarify the opinions set forth above. I

will also identify which patients have information missing if requested to do so.”).

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Dr. Olson’s designation also failed to identify “documents, tangible things,

reports, models, or data compilations that have been provided to, reviewed by, or

prepared by or for the expert in anticipation of the expert’s testimony,” as required

by Rule 195.5(a)(4)(A). Id. Reaves’ designation similarly fails to produce or identify

the documents she reviewed or relied on. CR84.

Regarding Reaves’ expert opinions, her designation includes a report that is

limited to a statistical analysis of work by one dentist—Dr. Benitez—at a Bear Creek

clinic between February 19, 2008 and May 30, 2009. CR97-105. She opines that

Dr. Benitez billed Texas Medicaid for an excessive number of procedures during

that period based on how much time each procedure should take. CR97-105. Reaves

is not a dentist; she cannot opine as to whether any given dental procedure took an

appropriate length of time. But in addition, her report makes clear that her work is

incomplete: “This report will be timely supplemented to include information as to

other Bear Creek doctors as well as an analysis of additional charts of Dr. Benitez.

She may also testify to the amount of civil monetary penalties and other remedies

allowable under the” TMFPA. CR84 (emphasis added).

As he had done with Dr. Olson, LaFountain submitted a supplemental report

by Reaves on January 31, 2025 (more than three months after the expert designation

deadline and just two months before the trial setting). CR511-16. The supplemental

report is also limited to Dr. Benitez, and it explains that her opinions depend on

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further expert work by Dr. Olson to “review the clinical records, such as x-rays, that

should support each billed claim data record.” CR516.

D. The first hearing on pretrial matters.

In February 2025 (two months before the trial date), the court held a hearing

on Bear Creek’s motions to strike the experts and LaFountain’s motions to compel

discovery of additional documents and to amend the Agreed Scheduling Order to

continue the trial setting and give him more time to work up his case. CR199 (motion

to compel); CR238 (motion to amend scheduling order); 2RR (hearing transcript).

LaFountain argued that the court should amend the Agreed Scheduling Order

and grant his motion to compel because Bear Creek had not produced responsive

documents in discovery, and his expert had been unable to access the patient files on

the thumb drives and laptop Bear Creek provided. But the record shows otherwise.

In addition to evidence that Bear Creek had produced all of the information in hard

copy, at the hearing Bear Creek demonstrated to the court, on an identical mirrored

laptop, that all of the requested patient files were on the laptop, and all of the x-ray

images on the laptop could be opened and viewed. 2RR31-41; see also 2RR45 (Bear

Creek counsel: “We produced the 90 charts. We produced them on the first thumb

drive. We produced them on the second thumb drive. We produced them on the

laptop. If Mr. Tucker had brought the laptop with him here today, we could open it

up and see whether or not they’re on there. We went through the effort of purchasing

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a laptop and loading it up….I mean, that’s such an extraordinary length. So we’ve

produced them, and I submit that the expert’s inability to find the information on

that laptop or on the thumb drives is not a default on our part.”). Through the in-

court demonstration, the court was able to see the patient charts LaFountain

complained were insufficient and confirm that no data was corrupted and the charts

contained x-rays that could be opened and viewed.

Throughout the hearing, the court pressed LaFountain’s counsel to identify

specifically what information he contended was or was not produced: “Please tell

me what you asked for, what you received, and what’s deficient.” 2RR17. The court

denied LaFountain’s motions to amend the scheduling order and to compel because

he had the burden on the motions, and he never identified what information Bear

Creek failed to provide:

Court: I think the problem here is you’re saying, “I didn’t get it.”
They’re saying, “We provide everything in full.” And then when I come
back to you, you’re not able to show me exactly -- you’re not able to
show the Court what exactly they provided and what they didn’t and
exactly where it’s deficient. It’s just a very global, “I didn’t get it.” They
say, “We gave it to you.” And you have the burden in a motion to
compel to show me exactly what you received and how it’s deficient.
And what I’m hearing is not helpful to the Court on a motion to compel.
Usually what I see are people showing me charts of exactly what
they’ve received and what is deficient. And then there’s a back and
forth, and I can make a determination. But here I’ve got you saying, “I
didn’t get it. I didn’t get it.” I’ve got them saying, “We provided you
the full chart.” And then you’re not able to pinpoint -- you’re not able
to give me the specificity needed.

2RR48-49.

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The court also heard argument on Bear Creek’s motions to strike Dr. Olson

and Reaves. 2RR53-65. In addition to being untimely, the designations failed to

disclose any actual opinions because the experts had not yet done their work:

Bear Creek counsel: That’s the exact thing that is prohibited by the rules
and the case law and why you can’t have that. And when someone says,
“I would like to receive completed charts in order to give my opinion,
larger numbers of charts so that I can confirm a pattern that I have
observed,” that’s telling me that they don’t have the information. And
when they come back and then, basically, say, “Upon Miss Reaves
completion of any analysis she might do, I can then give a detailed
opinion in this regard,” that means she didn’t. That means you didn’t.

2RR64.

At that point, the case had been on file 13 years, and trial was two months

away. Under all of those circumstances, the court rendered orders (1) denying

LaFountain’s motions to compel and to amend the Agreed Scheduling Order, and

(2) granting Bear Creek’s motion to strike Dr. Olson and Reaves. App.1-App.4.

E. The no-evidence summary judgment.

Bear Creek filed a no-evidence motion for summary judgment addressing

numerous elements of LaFountain’s TMFPA claims. CR530-70. LaFountain filed a

response that attached only two exhibits: (1) an Affidavit of Josh LaFountain, and

(2) the petition from a different TMFPA suit filed in Dallas. CR571-700.

Bear Creek filed objections to LaFountain’s evidence, particularly the

LaFountain Affidavit, which was replete with hearsay, ipse dixit assertions,

conclusory contentions, and purported expert testimony regarding the standard of

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care and medical necessity of dental procedures performed by Bear Creek.

Supp.CR.15-20. Among other things, Bear Creek raised the following objections:

• Objection 1: The Affidavit purports to identify extrinsic evidence supporting

the TMFPA claims, but it fails to supply that evidence. LaFountain asserts

that there are documents within Defendants’ control that “would clearly assist

in proving each and every element of each and every cause of action,” and

that there are “dozens of witnesses that can support my allegations with

respect to each cause of action,” but does not provide any such documents or

proffer any witness testimony by deposition or affidavit. [CR600 ¶7] He

states that he has personal knowledge that Defendants billed Medicaid for

specific dental services but provides no billing or payment records. He asserts

that Defendants performed unnecessary or inadequate dental services but

provides no patient charts or x-rays or other evidence of the work actually

performed…Defendants object that such references are no evidence at all,

they rely on pure hearsay, and they violate the best evidence rule. The Court

should strike the following portions of the Affidavit on this basis: Paragraphs

6, 7, 8, 9, 10, 11, 12, 13, 16, 17, 20, 21, 24, 25, 28, 29, 32, 34, 37, 39, 42, 46,

48, 49.

• Objection 2: The Affidavit asserts that Defendants billed Medicaid for dental

services that were not necessary or that “did not meet professionally-

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recognized standards of care.” [CR600-01 ¶8(a)] LaFountain thereby is

proffering opinion testimony that only an expert witness can provide. This is

the sort of expert testimony that [LaFountain] designated Dr. Gregory Olson

to provide, but Dr. Olson has been stricken as an expert. The Affidavit also

purports to use statistical modeling regarding one dentist, Dr. Benito Benitez,

whose “Medicaid billings far exceeded the standard deviation for a dentist in

the same or similar clinic setting.” [CR605 ¶10] This testimony is taken

directly from the work of Relator’s other stricken expert, Sally Reaves.

Indeed, the Affidavit recites expressly that the testimony regarding Dr.

Benitez comes “via the expert reports of Sally Reaves.” [CR606 ¶12]

LaFountain was never designated as an expert witness in this case. Moreover,

LaFountain is not a dentist or a statistician and would not be qualified to offer

such expert testimony even if he had been properly designated. LaFountain’s

purported expert testimony is not admissible in an effort to avoid a no-

evidence motion for summary judgment. The Court should strike the

following portions of the Affidavit on this basis: Paragraphs 8, 10, 11, 12, 14,

15, 16, 17, 20, 29, 32, 34, 36, 39, 42, 46.

• Objection 6: The Affidavit is replete with conclusory allegations that

Defendants committed “unlawful acts” in violation of the TMFPA and did so

“knowingly.” For example, LaFountain states that “I personally observed

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numerous actions by multiple dentists, employees, and agents of one or more

dental clinics which are systematically designed to defraud Medicaid in

violation of the” TMFPA. [CR599-600 ¶6] Yet the Affidavit provides no

specific information in support. The Court should strike the following

portions of the Affidavit on this basis: Paragraphs 6, 8, 20, 24, 25, 28, 29, 32,

34, 37, 39, 42, 45, 46, 48, 49.

• Objection 9: The response purports to rely on alleged documents that

Defendants never produced to him and “dozens” of witnesses who can

support Realtor’s contentions. None of that claimed evidence is filed or made

part of the summary judgment record. Relators’ statements that such evidence

exists are hearsay and violate the best evidence rule.

Supp.CR15-20.

Bear Creek also objected that the LaFountain Affidavit’s allegations regarding

the use of fluoride varnish were subject to automatic exclusion because they were

never disclosed in discovery responses, nor were any such allegations included in

LaFountain’s lengthy petition. Supp.CR18-19. 2 Because LaFountain never disclosed

any “evidence” of an alleged lack of fluoride varnish in response to interrogatories,

his sham Affidavit could not raise the issue for the first time in an effort to defeat

2
LaFountain’s brief repeats the allegations regarding a supposed lack of fluoride varnish in Bear
Creek clinics. Brief.6, 33, 37, 39, 40, 42-44, 49.

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summary judgment. See Lujan v. Navistar, Inc., 555 S.W.3d 79, 85 (Tex. 2018)

(striking sham affidavit: “The basis for the rule is that allowing manufactured

affidavits to defeat summary judgment would thwart the very object of summary

judgment….”). Supp.CR19.

On March 31, 2025—just two weeks before the agreed trial setting—the court

held a hearing on the no-evidence motion for summary judgment. 3RR. The court

rendered an order sustaining Bear Creek’s evidentiary objections and granting

summary judgment. App.5.

SUMMARY OF THE ARGUMENT

This Court should affirm the judgment here because it was high time for this

suit to end. At the time of the February 4 hearing on the pretrial motions, the suit

had been pending for thirteen years and unsealed for six years. LaFountain had

engaged in essentially zero case preparation between 2017 and the end of 2023, but

his brief makes no mention of those years of inactivity. LaFountain complains that

he was denied discovery in 2024, but the record showed that he never reviewed or

copied the hard copy documents produced to him, the Bear Creek custodian of

records confirmed that the two thumb drives and laptop provided all of the requested

patient charts to him, and LaFountain made no attempt to meet his burden and

demonstrate for the trial court what was deficient in the discovery Bear Creek

provided to him.

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Under all of those circumstances, it was not an abuse of discretion for the trial

court to hold LaFountain to the pretrial deadlines in the Agreed Scheduling Order

and strike his late-designated experts. The court then properly granted the no-

evidence motion for summary judgment because, although LaFountain makes

inflammatory allegations of unlawful acts, he had no actual evidence to support his

TMFPA claims.

ARGUMENT

A. The trial court did not abuse her discretion in striking LaFountain’s experts.

1. The standard of review is deferential to the trial court’s determination.

This Court reviews the trial court’s decision to strike LaFountain’s experts for

abuse of discretion. Fleming v. Wilson, 610 S.W.3d 18, 21 (Tex. 2020) (per curiam);

Garrett v. Brinkley, No. 03-14-00431-CV, 2016 WL 240896, at *2 (Tex. App.—

Austin Jan. 15, 2016, no pet.).

When a party fails to timely designate an expert, as here, exclusion is

“mandatory and automatic unless the court finds there was good cause for the failure

to amend or supplement, or the failure will not unfairly surprise or prejudice the

other party.” Pilgrim’s Pride Corp. v. Smoak, 134 S.W.3d 880, 902 (Tex. App.—

Texarkana 2004, pet. denied) (emphasis added); Tex. R. Civ. P. 193.6(a); see also

Fort Brown Villas III Condo. Ass’n v. Gillenwater, 285 S.W.3d 879, 881 (Tex. 2009)

(per curiam). “The burden of establishing good cause or the lack of unfair surprise

or unfair prejudice is on the party seeking to introduce the evidence or call the
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witness. A finding of good cause or the lack of unfair surprise must be supported by

the record.” Tex. R. Civ. P. 193.6(b) (emphasis added); see also Pjetrovic v. Home

Depot, 411 S.W.3d 639, 646 (Tex. App.—Texarkana 2013, no pet.) (party seeking

to proffer the expert testimony “has the burden of establishing good cause or a lack

of unfair surprise or prejudice”).

2. It was not an abuse of discretion to strike Dr. Olson.

a. The expert designation was not timely and did not disclose Dr.
Olson’s expert opinions.

The deadline for designating experts under the Agreed Scheduling Order was

October 15, 2024. App.7. LaFountain served the original designation of Dr. Olson

on November 6, 2024, which was three weeks late. CR151-55. Moreover, the

original designation did not include any actual opinions by Dr. Olson. CR154 (“The

substance of his opinions will be described in further detail in the forthcoming expert

opinion of Dr. Olson.”). After Bear Creek moved to strike Dr. Olson, LaFountain

filed a supplemental affidavit by Dr. Olson on January 31, 2025, more than three

months after the expert designation deadline, and that eleventh-hour supplement

acknowledged that Dr. Olson still had not done his work. CR472-73 (“I recommend

an audit and investigation of a larger sample…I will then be able to be more specific

and detailed as to my opinions.”).

Because Dr. Olson was not timely designated, exclusion is automatic unless

LaFountain met his burden to show either good cause or lack of prejudice as

19
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established by the record. The trial court did not abuse her discretion in determining

that he did not meet that burden.

LaFountain argues that Dr. Olson could not view patient charts and x-rays on

either of the two thumb drives or the laptop that Bear Creek provided, and that

establishes good cause for his failure to designate Dr. Olson timely. But those bare

assertions do not establish good cause for the late designation, for numerous reasons.

First, LaFountain ignores his wholesale failure to conduct discovery or otherwise

develop his case between 2017 and late 2023. Second, LaFountain failed to review

or copy the hard copy documents and patient charts (which included x-rays and

scans) that were produced to him many months before the expert deadline. Third,

the Bear Creek custodian of records testified that both thumb drives and the laptop

had all of the requested patient charts—including x-rays and scans—at the time they

were given to LaFountain’s counsel. App.6. Fourth, at the hearing, counsel for Bear

Creek demonstrated how the patient charts on the laptop could be opened and x-rays

viewed using the software provided.

It was not an abuse of discretion for the trial court to consider all of those facts

and conclude that LaFountain did not meet his burden to demonstrate good cause for

his late designation, particularly given the parties’ competing contentions regarding

what was produced and what was not. 2RR48-49 (Court: “But here I’ve got you

saying, ‘I didn’t get it. I didn’t get it.’ I’ve got them saying, ‘We provided you the

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full chart.’ And then you’re not able to pinpoint—you’re not able to give me the

specificity needed.”). Under such a record, where there are “attorneys’ competing

representations about production or nonproduction of records,” this Court in review

must defer to the trial court’s determination:

In light of the attorneys’ competing representations about production
or nonproduction of records the issue was one for the trial court to
resolve. To the extent the trial court’s ruling excluding Dr. Smith's
deposition implies a finding that neither set of records from Spring
Spine Center was timely produced, we may not set that finding aside in
the absence of an abuse of discretion since the trial court was in the
best position to make the determination based on firsthand assessments
of credibility. Without specific information showing what medical
records were produced at what time, we cannot say the trial court
abused its discretion in deciding Spring Spine Center’s records had not
been timely and properly produced as a method of disclosing the
general substance of Dr. Smith’s opinions and the bases therefor.

Fults v. Standley, No. 09-22-00126-CV, 2025 WL 2164868, at *7 (Tex. App.—

Beaumont July 31, 2025, pet. filed) (emphasis added).

Nor did LaFountain meet his burden to show a lack of prejudice to Bear Creek

by the untimely designation. The initial expert designation was served November 6,

2024, which was just nine days before Bear Creek’s expert designation deadline of

November 15. App.7. Dr. Olson’s supplemental affidavit—which was the first time

LaFountain attempted to disclose any expert opinions at all—was filed January 31,

2025, more than two months after Bear Creek’s response expert designation

deadline, two weeks before the close of discovery on February 14, and two months

before the trial date in April. App.7. It was not an abuse of discretion for the trial

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court to consider the entire timetable and conclude that Bear Creek would be

prejudiced because it could not designate its own experts, complete discovery, or

prepare for trial in April given LaFountain’s untimely designations.

Independent of the timeliness issue, it was not an abuse of discretion to strike

Dr. Olson because his designation failed to adequately disclose his opinions. In fact,

both the original and the supplemental submissions made clear that Dr. Olson had

not done his expert work yet. LaFountain argues that he is permitted to state in the

designation that opinions would be provided through future supplementation.

Brief.15. That is not correct. Rule 195.5(a)(3) requires that the expert’s opinions be

included in the actual designations, not merely a promise to supplement with the

opinions at some unidentified point in the future.

“The purpose of this pretrial disclosure rule is to give the opposing party

sufficient information about the expert’s opinions to prepare to cross-examine the

expert and to prepare expert rebuttal evidence.” Miller v. Kennedy & Minshew, 142

S.W.3d 325, 348 (Tex. App.—Fort Worth 2003, pet. denied); Fults v. Standley, 2025

WL 2164868, at *6. The inadequate designations of Dr. Olson’s opinions do not

come anywhere near that standard. Nothing in the vague description provides Bear

Creek with any detail about Dr. Olson’s opinion. It does not identify the patient

charts that Dr. Olson will opine about or identify which categories of treatment Dr.

Olson believes were improper or excessive. Nor does it identify why Dr. Olson

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believes particular categories of treatment were improper or excessive. In fact, it

does not even identify a single opinion, and it was not an abuse of discretion for the

trial court to strike him as an expert.

b. Dr. Olson’s opinions were properly excluded on their merits.

In addition to the untimeliness and failure to disclose expert opinions, the trial

court did not abuse her discretion in striking Dr. Olson because his testimony does

not meet the level of reliability required by Tex. R. Evid. 702. A court must exclude

the opinion testimony of an expert witness who is not qualified to give an opinion

by knowledge, skill, experience, training or education in the actual subject matter

about which they are offering an opinion. Tex. R. Evid. 702; Broders v. Heise, 924

S.W.2d 148, 153–54 (Tex. 1996); Cooper Tire & Rubber Co. v. Mendez, 204 S.W.3d

797, 800 (Tex. 2006).

For example, LaFountain designated Dr. Olson as an expert who may “testify

to the amount of civil monetary penalties and other remedies allowable under the

Texas Medicaid Fraud and Prevention Act based on his findings.” CR153. Nothing

in Dr. Olson’s CV indicates that he is qualified to reach an opinion about statutory

remedies. Dr. Olson is an orthodontist, pediatric dentist, and a professor at UTHealth

Houston School of Dentistry. Because Dr. Olson has no background, expertise,

training, or education related to the TMFPA or calculating penalties under it, the trial

court did not abuse her discretion in striking him as an expert on this topic.

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It was also proper to strike Dr. Olson’s designation because his opinions are

unreliable. If the underlying facts or data upon which the expert’s opinion is based

are flawed or insufficient, the resulting opinion will also be unreliable. Tex. R. Evid.

705(c); Merrell Dow Pharm., Inc. v. Havner, 953 S.W.2d 706, 714 (Tex. 1997).

Moreover, if the expert’s factual assumptions have no evidentiary support in the

record or are contrary to proven facts, the expert’s testimony based on those

assumptions is not competent. See Houston Unlimited, Inc. Metal Processing v. Mel

Acres Ranch, 443 S.W.3d 820, 833 (Tex. 2014). Further, even when the underlying

data are sound, an expert’s testimony is unreliable if the expert draws conclusions

from that data based on flawed methodology. Merrell, 953 S.W.2d at 714.

Dr. Olson’s ipse dixit opinion that the unidentified “charts of several

[unidentified] doctors at Bear Creek” show “multiple categories of improper and/or

excessive treatment” is “devoid of any scientific testing or peer-reviewed studies

confirming the hypothesis.” Cooper Tire, 204 S.W.3d at 802. Because Dr. Olson’s

opinions are devoid of any testing or studies confirming his hypothesis, the potential

rate of error is unknown, and there is no way to know whether his theory has been

accepted as valid by the dental community. Id.; see also E.I. du Pont de Nemours &

Co., Inc. v. Robinson, 923 S.W.2d 549, 557 (Tex. 1995). Dr. Olson’s opinion also

lacks any quantitative analysis. Id. In fact, it contains no analysis at all—just a vague

reference that his review of unnamed doctors’ charts led to his opinion that the charts

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contained “multiple categories of improper and/or excessive treatment.” Because Dr.

Olson’s opinion does not satisfy any of the Robinson factors for reliability, it was

not an abuse of discretion to strike him.

3. It was not an abuse of discretion to strike Reaves.

Reaves’ designation suffers from many of the same defects as Dr. Olson’s,

and the trial court properly struck Reaves for the same reasons she struck Dr. Olson.

a. The designation was untimely and insufficient.

LaFountain designated Reaves as an expert witness regarding “data analysis

and claims reviews of data received from Texas HHSC as well as the Defendants.”

CR84. She is not a dentist and thus cannot opine as to whether any given treatment

or x-ray was unnecessary or not performed to the standard of care. Reaves’ testimony

is thus limited to statistical analysis of dental treatments and billing.

LaFountain designated Reaves on November 6, 2024, three weeks after the

October 15 deadline. Because Reaves was not timely designated, exclusion is

automatic unless LaFountain met his burden to show good cause or lack of prejudice

as established by the record. Tex. R. Civ. P. 193.6(a). LaFountain asserts that there

was a lack of prejudice because he provided Reaves’ initial report and an e-mail

explanation of her testimony to Bear Creek’s counsel in March 2024. Brief.21-22

(citing CR495-96). In support of that representation, his citations to the Clerk’s

Record are to his own pleadings in the trial court, not to any actual evidence of such

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alleged communications such as copies of e-mails or a declaration. The trial court

did not abuse her discretion in determining that he did not meet his burden.

In addition to being untimely, Reaves’ designation was insufficient. Though

it included a report with certain time-limited statistical findings regarding one

dentist, the designation also stated that Reaves had not completed her work, and her

report “will be timely supplemented to include information as to other Bear Creek

doctors as well as an analysis of additional charts of Dr. Benitez.” CR84; see also

CR103 (report: dental records regarding Dr. Benitez’s patients “warrant further

review for veracity and medical necessity”). Putting aside the notion that LaFountain

could “timely” supplement a designation that was already weeks late, the designation

does not give Bear Creek “sufficient information about the expert’s opinions to

prepare to cross-examine the expert and to prepare expert rebuttal evidence.” Fults

v. Standley, 2025 WL 2164868, at *6. After all, Bear Creek’s responsive expert

deadline was just nine days after LaFountain’s late-filed designation, so the

inadequate designation leaves Bear Creek wholly unable to prepare that rebuttal

expert evidence. App.7. The trial court did not abuse her discretion in striking

Reaves for this reason.

b. Reaves’ opinions were properly excluded on their merits.

The trial court also properly struck Reaves testimony as unreliable. Reaves

opined that each and every instance of Dr. Benitez’s billing for certain procedures

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was fraudulent because www.healthline.com stated that those procedures take a

certain amount of time to perform. CR101. But the website Reaves cites as the basis

for her opinion states that its content “is general in nature and for informational

purposes only and does not constitute medical advice….Healthcare Media does not

recommend or endorse any specific…opinion, service or other information that may

be mentioned in Healthline Media’s websites, apps, and Content.” 3 Reaves’ opinion

thus relies on a website that specifically advises its users not to rely on it.

Reaves also relies on a website called “www.dentaldepot.net” to support her

opinion that a pulpotomy procedure takes 30 to 60 minutes. CR101. The website’s

logo is a train and there is no indication that it is the type of resource an expert can

properly rely upon:

“Expert testimony is unreliable if it is based on unreliable data.” Ford Motor

Co. v. Ledesma, 242 S.W.3d 32, 39 (Tex. 2007). Unreliable expert testimony is

3
Disclaimer, https://www.healthline.com/about/additional-information (last visited Oct. 9, 2025).

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inadmissible. Robinson, 923 S.W.2d at 557. Reaves’s opinions regarding Dr. Benitez

are based on an assumption that any billing for certain procedures is inherently

fraudulent because of the amount of time those procedures take, but the basis of her

opinion regarding the amount of time those procedures require are websites with no

indicia of reliability.

LaFountain also designated Reaves as an expert who may also “testify to the

amount of civil monetary penalties and other remedies allowable under the Texas

Medicaid Fraud and Prevention Act based on his findings.” CR84. To reach her

opinion as to the amount of TMFPA civil penalties or other remedies, Reaves opines

about what constitutes improper or excessive dental procedures. But Reaves is not a

dentist; she is an actuary. She is thus not qualified to opine regarding whether

specific procedures were proper or not.

Reaves’s opinions are unreliable because the analytical gap between the data

she relied on and the testimony offered is too great. In assessing the analytical gap,

the court should consider whether (1) the expert’s field of expertise is legitimate,

(2) the subject matter of the testimony is within the scope of the expert's field of

expertise, (3) the testimony properly relies on principles involved in the expert's field

of expertise, and (4) the expert showed a connection between the data relied on and

the opinion offered. See Sw. Energy Prod. Co. v. Berry-Helfand, 491 S.W.3d 699,

717 (Tex. 2016). Reaves has shown no connection between the data she relied upon

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and the opinion she offered. Rather, her opinions are entirely conclusory. “An

expert’s failure to explain or adequately disprove alternative theories...makes his or

her own theory speculative and conclusory.” Wal-Mart Stores, Inc. v. Merrell, 313

S.W.3d 837, 840 (Tex. 2010). Here, Reaves has not offered any opinion as to what

portion of the procedures she has identified may be legitimate, proper, and not

excessive. She simply opines that a certain number of a particular procedure by a

provider makes them all per se fraudulent. Because her opinion contains no

connection between the data she relied upon and the opinion she offers, it was not

an abuse of discretion to strike her.

B. The trial court did not abuse her discretion in denying LaFountain’s motion to
compel production of additional documents.

LaFountain’s eleventh-hour motion to compel involves documents requested

in his Second, Third, and Fourth requests for production. LaFountain argues that the

hundreds of boxes of hard copy documents Bear Creek produced to him in May 2024

did not contain any of the documents he seeks through the motion to compel because

the Second, Third, and Fourth requests for production were served after that

production. Brief.29. But LaFountain ignores that the documents produced in May

2024 are responsive to many of his subsequent requests, and he never identified to

the trial court what information was lacking. 2CR48-49 (Court: “I think the problem

here is you’re saying, ‘I didn’t get it.’ They’re saying, ‘We provide everything in

full.’ And then when I come back to you, you’re not able to show me exactly --

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you’re not able to show the Court what exactly they provided and what they didn’t

and exactly where it’s deficient.”).

The trial court did not abuse her discretion in denying the motion to compel

because the documents LaFountain seeks are either privileged, irrelevant, or already

produced in the manner they are kept in the usual course of business.

For example, LaFountain seeks production of documents compiled as part of

a regular, periodic audit of Bear Creek by the Texas Attorney General’s Office of

Inspector General (“OIG”). Brief.30-31. But by statute, all such information is

privileged. The Texas Government Code protects from discovery exactly this sort of

information gleaned during a government audit:

All information and materials subpoenaed or compiled by the office in
connection with an audit or investigation or by the office of the attorney
general in connection with a Medicaid fraud investigation are
confidential and not subject to disclosure under Chapter 552, and not
subject to disclosure, discovery, subpoena, or other means of legal
compulsion for their release to anyone other than the office or the
attorney general or their employees or agents involved in the audit or
investigation conducted by the office or the attorney general, except
that this information may be disclosed to the state auditor's office, law
enforcement agencies, and other entities as permitted by other law.

Tex. Gov’t. Code § 531.1021(g); Paxton v. Tex. Dep’t of State Health Servs., 500

S.W.3d 702, 708 (Tex. App.—Austin 2016, no pet.) (“Of course, under our holding

here, information collected in an OIG investigation concerning the subject matter of

Subchapter C would be confidential under section 531.1021(g) and not subject to

disclosure.”). LaFountain does not mention the statutory privilege in his brief.

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LaFountain also moved to compel 90 patient charts that Bear Creek had

already provided to him three times—on two thumb drives and a laptop. He

acknowledges that counsel for Bear Creek demonstrated at the hearing that specific

patient files that Dr. Olson swore were missing x-rays were in fact on the laptop and

included x-rays that could be opened and viewed. 4 But he insists that the trial court

should not have accepted the demonstration “without any proof whatsoever offered

by the Defendants” that all of the files were complete and viewable. Brief.32. But

Bear Creek does not have the burden on this issue. That is on LaFountain. He must

demonstrate, through evidence in the record, that he was not provided specific,

responsive discovery items, and he made no attempt to do so.

LaFountain complains that Bear Creek did not produce documents “reflecting

the average amount billed to Medicaid per patient for Bear Creek dentists.” Brief.33.

That request improperly asks Bear Creek to do LaFountain’s work for him. In the

May 2024 hard copy document production, Bear Creek produced “End of Day”

reports, which include all of the treatment, accounting, and billing information for

Bear Creek patients as that information is kept in the usual course of business. From

4
The discussion of the laptop demonstration appears at 2RR35-39. Dr. Olson made a list of
electronic patient charts he claimed had no x-ray images. CR338. Dr. Olson’s list identified a
dentist, Henegar, working at the Spring Valley clinic, and listed seven patient charts for Dr.
Henegar that allegedly did not include x-ray image files. Id. The first patient on that list was
Beltran. Id. At the hearing, counsel for Bear Creek walked the court through the patient files on
the laptop and demonstrated that there were x-ray images in Beltran’s file that could be opened
and viewed. 2RR35-39.

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that accounting and billing information, LaFountain could do the work to calculate

the per-patient Medicaid billing.

The same is true of the request for documents reflecting when certain specific

dentists billed a certain code. Brief.33. Bear Creek produced the billing and

accounting information, and LaFountain could have reviewed those documents to

identify when the dentists used that code. Nothing in the Rules of Civil Procedure

require a party responding to discovery to create new documents or summaries of

information that is already produced in the manner in which it was kept in the usual

course of business.

The documents LaFountain sought through the motion to compel are thus

either privileged, already produced, or irrelevant. Moreover, the motion to compel

was too late. LaFountain filed his motion to compel on January 23, 2025—less than

three months before the April trial setting. CR199. The trial court asked counsel

several times whether he had filed a motion to compel earlier, at a time when the

court could have given meaningful relief if the request had merit. See, e.g., 2RR12;

2RR13 (“No. My question was: And did you file a motion to compel at that time?

Because now we’re on the third incident, right?”); 2RR14 (“The third time it’s a

laptop. And you’re saying it was deficient as well…When you found out it was

deficient, did you file a motion to compel at that time?”). LaFountain’s counsel

admitted that, although he threatened multiple times during 2024 to file a motion to

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compel, he only actually did so in January 2025, after Bear Creek filed motions to

strike his experts and such a short time before trial.

For all of these reasons, the trial court did not abuse her discretion in denying

the motion to compel.

C. It was not an abuse of discretion to deny LaFountain’s motion to amend the
Agreed Scheduling Order.

Through his motion to amend the Agreed Scheduling Order, LaFountain

asked the trial court to push back all of the deadlines—including the upcoming trial

setting—by eight months to give him more time to work up his case. CR239. The

timing and procedural history of this case are discussed thoroughly above, including

LaFountain’s utter lack of diligence in working up his case for five years after the

sealing was lifted in 2017, his failure to review hard copy patient files and accounting

and billing files that were made available to him, his technical inability to open

patient charts and x-rays on the thumb drives and laptop, the late and incomplete

expert designations, and his failure to meet his burden to identify for the trial court

what had been produced to him and what was deficient.

LaFountain complains about how the hard copy boxes of documents were

produced. Brief.36-37. But producing documents as they are kept in the usual course

of business is the primary method of organization under the discovery rules: “The

responding party must either produce documents and tangible things as they are kept

33
4903-6921-7390
in the usual course of business or organize and label them to correspond with the

categories in the request.” Tex. R. Civ. P. 196.3(c) (emphasis added).

The trial court considered all of that history, including that the case had been

on file for twelve years and the trial setting was just two months away. Given all of

those circumstances, the trial court did not abuse her discretion in holding

LaFountain to the Agreed Scheduling Order and declining to kick the can further

down the road.

D. Summary judgment was proper because, after twelve years, LaFountain had
no evidence to support his TMFPA claims.

1. The trial court sustained Bear Creek’s objections to LaFountain’s only
summary judgment evidence, and he has waived any error regarding
that ruling.

Bear Creek filed a no-evidence motion for summary judgment because, after

adequate time for discovery, LaFountain had no actual evidence of essential

elements of his TMFPA claims. CR530-68. In response, LaFountain filed only two

exhibits as “evidence” of his claims: (1) his own affidavit, and (2) the petition in a

different TMFPA suit filed in Dallas County. CR597-698. Bear Creek filed detailed

objections to those exhibits, including paragraph-by-paragraph objections to the

LaFountain Affidavit and its exhibits. Supp.CR15-20. The trial court sustained the

objections to LaFountain’s summary judgment evidence. App.5 (“IT IS FURTHER

ORDERED that Defendants’ Objections to Relator’s summary judgment evidence

are sustained.”).

34
4903-6921-7390
Because the trial court sustained the objections, LaFountain had, literally, no

summary judgment evidence. None at all. In his brief to this Court, however,

LaFountain cites extensively and exclusively to the stricken LaFountain Affidavit as

providing evidence of his claims. In LaFountain’s argument claiming that he

adduced evidence regarding the elements of his TMFPA claims, all of the citations

to evidence are to the LaFountain Affidavit and its exhibits, which appear at CR597-

679. Brief.42-53; see also Brief.55 (LaFountain “submitted enough evidence in the

form of the Affidavit of Relator that shows that there are genuine issues of material

fact.”) (emphasis added). LaFountain does not cite to any evidence other than the

stricken LaFountain Affidavit.

LaFountain lists the trial court’s decision to sustain the evidentiary objections

as an issue on appeal. Brief.2, Issue No.5. But he includes no actual argument or

discussion of the objections themselves, relevant case law, or the merits of the trial

court’s decision. Brief.54. Issue No.5 states that the trial court should have denied

the evidentiary objections “for the reasons set forth below under the legal sufficiency

standard.” Brief.6. But the discussion of the legal sufficiency standard is limited to

the general standards for no-evidence motions for summary judgment and does not

mention the evidentiary objections. Id. The entire discussion of the evidentiary

ruling is a short, three-sentence paragraph with the conclusory statement that

LaFountain “was simply providing factual testimony in his Affidavit based on his

35
4903-6921-7390
personal knowledge that showed that there were disputed issues of material fact as

to whether sections of the TMFPA were violated.” Id.

The “appellate-procedure rules, of course, ‘require adequate briefing.’”

Bertucci v. Watkins, 709 S.W.3d 534, 541 (Tex. 2025) (citing ERI Consulting

Eng’rs, Inc. v. Swinnea, 318 S.W.3d 867, 880 (Tex. 2010); see Tex. R. App. P.

38.1(i) (“The brief must contain a clear and concise argument for the contentions

made, with appropriate citations to authorities and to the record.”). A failure to

comply with these rules can result in waiver. Ross v. St. Luke’s Episcopal Hosp., 462

S.W.3d 496, 500 (Tex. 2015) (“Failure to provide citations or argument and analysis

as to an appellate issue may waive it.”). Because LaFountain failed to adequately

brief the evidentiary issue, he has waived any error in sustaining objections to the

LaFountain Affidavit. And without the LaFountain Affidavit, he has, literally, no

evidence at all to meet his burden in responding to the no-evidence summary

judgment motion.

To be sure, the trial court was correct on the merits in sustaining Bear Creek’s

objections to LaFountain’s summary judgment evidence, including the LaFountain

Affidavit and its exhibits. See Supp.CR15-20. Because LaFountain did not bother to

brief the merits of the evidentiary objections, however, this Court need not wade

through the issue.

36
4903-6921-7390
2. No-evidence summary judgment was proper.

a. There is no evidence that Bear Creek committed “unlawful acts”
in violation of the TMFPA.

Claims under the TMFPA, at their core, involve billing to Texas Medicaid and

receiving benefits from Texas Medicaid. The laundry list of “unlawful acts” all turn

on whether a provider has improperly billed Texas Medicaid or acted to receive an

improper benefit from Texas Medicaid. See, e.g., Tex. Hum. Res. Code §36.002(1)

(“knowingly makes or causes to be made a false statement or misrepresentation of a

material fact to permit a person to receive a benefit or payment under a health care

program that is not authorized or that is greater than the benefit or payment that is

authorized”); §36.002(2) (“knowingly conceals or fails to disclose information that

permits a person to receive a benefit or payment under a health care program that is

not authorized or that is greater than the benefit or payment that is authorized”);

§36.002(3) (“knowingly applies for and receives a benefit or payment on behalf of

another person under a health care program and converts any part of the benefit or

payment to a use other than for the benefit of the person on whose behalf it was

received”).

Those are the core elements of a TMFPA claim, but LaFountain offered no

evidence of them. There are no patient charts to show what dental work was done,

whether it was necessary, or whether it was performed consistent with the standard

of care. There are no billing records to reflect what Bear Creek billed to Texas

37
4903-6921-7390
Medicaid and how they coded the dental treatments. There are no records to reflect

what Bear Creek was paid for the dental services they provided. LaFountain offered

only his ipse dixit Affidavit claiming that such evidence exists but failing to identify

or produce any actual records or testimony. 5 Independent of the fact that the trial

court struck it, the LaFountain Affidavit provides no evidence at all that Bear Creek

committed “unlawful acts” in violation of the TMFPA.

b. There is no evidence of damages.

One issue on summary judgment involves LaFountain’s claimed measure of

damages. In discovery, Bear Creek asked LaFountain to “state the total amount of

monetary relief/remedies you are seeking to recover in this lawsuit and provide the

factual basis and methodology for the amount you are seeking to recover.”

Supp.CR41 No.6. LaFountain’s response, filed on February 14, 2025 (shortly before

the summary judgment proceeding), was this:

Response: Relator has not yet determined the amount of monetary
relief/remedies/penalties he plans to seek at trial. In terms of the
methodology for calculating remedies, Relator will request that the
State of Texas be reimbursed for (a) the amount of claims for all
5
For example, the LaFountain Affidavit included this conclusory allegation as supposed
“evidence” of unlawful acts by Bear Creek in violation of TMFPA section 36.002(1): “20. I have
personal knowledge from (a) my interactions with Bob Tafel in the form of individual meetings,
breakfast and lunch meetings, conversations before and after hours with Bob Tafel; (b) my
interactions with other management of Bear Creek, (c) my attendance at meetings where it was
obvious that the activities of the company were committed knowingly; (d) my participation in
government audits of the company wherein he observed charts being altered at the direction of
Bob Tafel in advance of the audits; (e) my personal observations of the actions of the dentists
involved; and (f) my review of charts identified in paragraphs 32-39 in my Fourth Amended
Petition showing excessive and/or unnecessary treatment, that the Unlawful Acts in violation of
TMFPA Section 36.002(1) were committed knowingly.” CR611 ¶20.

38
4903-6921-7390
Unlawful Acts, (b) civil penalties be assessed in the amount of two
times the amount of the claims per Chapter 36.052(a)(4); and (c) civil
penalties of $5,500-$11,000 per Unlawful Act be assessed as set forth
in Chapter 36.052(a)(3) above for the time period 2011 until July 31,
2016. For the time period August 1, 2016 until time of trial the civil
penalties are $10,781.40 to $21,562.80 per claim.

As for certain civil monetary remedies and penalties pertaining to
patients of Dr. Benito Benitez, the expert reports of Sally Reaves
submitted as exhibits to Plaintiff’s Designation of Experts on
November 6, 2024, as well as Plaintiff’s Supplemental Designation of
Experts on January 31, 2025 set forth remedies and penalties ranging
from approximately $17-24 Million pertaining to patients of this dentist
alone. All such expert reports are incorporated by reference as being
responsive to this Interrogatory.

Supp.CR41.

That interrogatory response states that LaFountain has not yet calculated the

amount of money he seeks to recover at trial (which was just 2 months away), and

cannot identify (1) the number of “Unlawful Acts” he contends Defendants

committed, or (2) the amount of civil penalties he will seek for each Unlawful Act.

Bear Creek sought summary judgment because LaFountain has no evidence that a

health care program provided a payment or benefit as a result of such unlawful act,

which is the standard under the TMFPA. In response, LaFountain failed to provide

evidence regarding any claimed payment or benefit to Bear Creek.

TMFPA claims require evidence in the form of patient charts and billing

records. LaFountain provided neither, and that is fatal to his claims. Without billing

records, LaFountain cannot prove what Bear Creek billed Texas Medicaid for and

39
4903-6921-7390
how they coded the treatments. Without patient charts, he cannot establish what did

or did not occur in the clinical setting. Without the charts, he also cannot prove

whether the dental work was necessary or properly performed. Without the charts

and billing records, he cannot prove that fraudulent billing occurred. Without the

bills and charts, the trier of fact cannot compare what Bear Creek billed for versus

what did or did not occur clinically.

The lack of actual billing records and patient charts is not the only fatal defect.

Only an expert dentist can analyze the charts and offer testimony about whether or

not treatments were necessary and performed to the standard of care. LaFountain is

not a dentist, and his designated expert Dr. Olson was struck (because, in part, he

never undertook that actual analysis of patient charts). Nor was there an expert to

analyze whether the services Defendants rendered were properly coded and billed.

LaFountain’s expert on that topic—Reaves—was struck also because, in large part,

she did not do that analysis either.

Which led to the inevitable conclusion that LaFountain’s claims were properly

dismissed on summary judgment. LaFountain pleads many salacious allegations,

and his Affidavit repeats those allegations as if they were facts within his personal

knowledge. But at the time of the summary judgment, this lawsuit had been pending

for 13 years, and it was set for trial in two weeks. In all of that time LaFountain has

wholly failed to adduce evidence—actual, direct evidence—to support his

40
4903-6921-7390
allegations. The trial court properly granted the no-evidence motion for summary

judgment because it was time to end things.

PRAYER

WHEREFORE, Bear Creek respectfully prays that the Court affirm the final

judgment in all things.

Respectfully submitted,

SCOTT DOUGLASS & MCCONNICO LLP
303 Colorado Street, Suite 2400
Austin, TX 78701-3234
Phone: (512) 495-6300
Fax: (512) 495-6399

By: ___________________________
Jane Webre
State Bar No. 21050060
jwebre@scottdoug.com

CRAIG D. CHERRY
Bar No. 24012419
ccherry@cjsjlaw.com
CHERRY JOHNSON SIEGMUND JAMES, PLLC
7901 Fish Pond Rd., Second Floor
Waco, Texas 76710
Phone: (254) 732-2242
Fax: (866) 627-3509

41
4903-6921-7390
CHRISTOPHER S. AYRES,
Bar No. 24036167
csayres@ayreslawoffice.com
R. JACK AYRES, JR.
Bar No. 01473000
rjayres@ayreslawoffice.com
AYRES LAW OFFICE, P.C.
8140 Walnut Hill Lane, Suite 105
Dallas, Texas 75231
Phone: (972) 991-2222
Fax: (972) 386-0091

Chris Davis
cdavis@grayreed.com
GRAY REED
1601 Elm Street, Suite 4600
Dallas, TX 75201
Phone: (214) 954-4135

Counsel for Appellees

CERTIFICATE OF COMPLIANCE

I certify that this brief was prepared using Microsoft Word 2019. According
to its word-count function, the sections covered by Tex. R. App. P. 9.4(i)(1) contain
9,643 words in a 14-point font size and footnotes in a 12-point font size.

___________________________
Jane Webre

CERTIFICATE OF SERVICE

I certify that I served this brief through the electronic filing system on counsel
of record on October 20, 2025.

___________________________
Jane Webre

42
4903-6921-7390
App.1
02/04/2025 12:21:35 PM
Velva L. Price
District Clerk
Travis County
D-1-GV-12-000277
CAUSE NO. O-l - GV-12-000277

TffE STATE OF TEXAS § 1N THE DISTIUCT counT OF
Ex rel. JOSHUA LAFOUNTAIN §
§
Plaintiffs, §
§
ss 1261' 11 JUDICIAL DISTRlCT
§
BLT MANAGEMENT COMPANY, LLC n/k/a §
BLT SUPPORT SERVICES, LLC; cf 111 §
§
Defe11da11ts. § TRAVIS COUNTY, TEXAS

ORl>ER GRANTI NG DEFENDANTS' MOTION TO EXCLUDE OR STRIKE Tiffi
J'ESTIMONY OF SALLY RE AYES

On this day came lo be considered Defendants' Motion to Exclude or Strike lhe Testimony

of Sal ly Reaves (lhe "Mo1ion'). 'fhc Coun, huving considered the Motion. Plaintiffs response.

and the arguments of counsel, is of the opinion that Defenda111s· Motion should be granted.

IT IS THEREFORE ORDERED thut Defondan1s· Motion 10 Exclude or Strike 1he

Testimony of Solly Reaves is GRANTED,

SIGNED on February 4. 2025.

DANIELLA DESETA L vrrLE
.Judge Presiding, 26 1st District Courj

l, VELVA L PRICE, District Clerk, Travis County,
Texas, do hereby cenify that this is a true and
correct copy as same appears of record in my
office. Witness my hand and seal of office
On _ __ _ _ _ _ _ _ _ _ __
05/06/2025 10:31:18

~Jili€3
VELVA L. PRICE
;c:;
DISTRICT CLERK
By Deputy:: ) H
Page 526
App.2
02/04/2025 12:22:13 PM
Velva L. Price
District Clerk
Travis County
D-1-GV-12-000277
CAUSE NO. 0-I-CV-12-000277

T HE STATE OF TEXAS § IN THE DISTRICT COURT OF
Ex rel . .JOSHUA L AFOUNTAIN §
§
P/1Jintiffs , §
§
V, § 126n1 J UDICIAL DTSTRJCT
§
BLT MANAG'EM ENT COMPANY, LLC o/)<Ja §
BLT SUPl>ORT SER\fl CES, LLC; ct al §
§
Defe111/tmts. § TRAVlS CO UNTY, TEXAS

ORDER GRANTING DEFENDAl'1TS' M OT ION TO EXCLUD E QR ST RIKE THE
TESTCMONY OF DR. GREGORY OLSON

On this day came lo be considered Defendants' Motion to Excl ude or Stri ke the Testimony

of D r. Gregory Olson (the .. Motion''). The Court. havi ng considered thtt Motion, Plaintiffs

response, and the arguments of counsel, 'is of the opinion that Defondnn1s· Motion should be

granted.

IT IS THEREFORE ORDERED that Oefcndnnts' Motion to Excl ude or Strikll th~

Testimony of Dr. Gregory Olson is GRANT ED.

SIGNED o n February 4, 2025.

DANIELLA DESETA LYTTLE
Judge Presiding, 26 Ist District Court

I, VELVA L PRICE, District Clerk, Travis County,
Texas, do hereby cenify that this is a true and
correct copy as same appears of record in my
office. Witness my hand and seal of office
On _ __ _ _ _ _ _ _ _ __
05/06/2025 10:31:18

-7fj1)ii#0 ~
VELVA L. PRICE
DISTRICT CLERK
By Deputy:: ) /-f
Page 527
App.3
02/04/2025 12:22:37 PM
Velva L. Price
District Clerk
Travis County
D-1-GV-12-000277
CAUSE NO. D-l •-GV-J2-0011277

T H E STAT E OF TEXAS § IN THE OISTRlCT COURT OF
E~ rcl. JOSH UA L AFO UNTAI N §
§
Plaintiffs, §
§
v. § 126't 11 ,JU DICIAL DISTRICT
§
BLT MANAGEMENT COMPANY, L LC o/kla §
BLT SUPPORT SERVI CES, LLC; et al

Defendw,ts. TRAVlS COUNTY, TEXAS

ORDER DENYING PLAlNTlFF'S MOTION TO COMPEL PRODUCTION OF
DOCUMENTS BY ALL BEAR CREEK DEFENDANTS

On this day caoie to '"be considered Plaintiffs Motion 10 Compel J>roduetion of Documents

by All Bear Creek 1Jefendan1~ (the "Motion''). The Court, having, considered the Motion,

Defend:anis· response, and the argumcnls of counsel. is of the opinion 1ha1 Pluintiffs Motio11

should oo denied,

IT IS THEREFORE ORDERED tha1 Plaintiffs Moti.on to Compel Produc1ion of

Documents bv All Bear Creek Defe1idan1s is DENIED.

SIGNED on February 4, 2025.

DANIELLA DES ETA L Y1TLE
Judge Prosiding. 26Jst District Court

I, VELVA L PRICE, District Clerk, Travis County,
Texas, do hereby cenify that !his is a true and
correct copy as same appears of record in my
office. Witness my hand and seal of office
On _ __ _ _ _ _ _ _ _ __
05/06/2025 10:31:18

~Jili€3
VELVA L. PRICE
DISTRICT CLERK
;c:;
By Deputy:: ) H
Page 528
App.4
02/04/2025 12:23:00 PM
Velva L. Price
District Clerk
Travis County
D-1-GV-12-000277
CAUSE NO. D-l-GV-12-000277

THE ST ATE OF TEXAS g IN T HE DIST RICT COURT OF
s
Bx rel. JOSH UA 1,..AFOUNT AIN §
~
~
Plni11tiff5, §
§
v. § 126rn JUDICIAL DISTRI CT
§
BLT MANAGEMENT COMPANY, LLC 11/k./a §
BLT SUPPORT SERVI CES, LLC; et :11 §
§
D e/e1u/a11I$. § T RAVIS COUNTY, TEXAS

ORDER OENYlNG PLAINT IFF'S MOT ION TO AMEND SCHEDULING ORDER

On this day came 10 be considered Plaintiff's Motion to Amend Scheduling Order (the

"Motion''), T"e Coun , having considered the Motion. Defendants' response. and the arguments of

counsel, is ol'lheopi nion that Plaintiff's Modon should be denied.

IT JS THEREFORE ORDERED that Pla:i nliffs Motion 10 Amend Scheduling Order is

DENI ED.

SIGNED on February 4.1025.

DAN IELLA DESETA LYTTLE
Judge Presiding, 261 st District Coun

I, VELVA L PRICE, District Clerk, Travis County,
Texas, do hereby cenify that !his is a true and
correct copy as same appears of record in my
office. Witness my hand and seal of office
On _ __ _ _ _ _ _ _ _ __

;c:;
05/06/2025 10:31:19

-7fj1)ii#0
VELVA L. PRICE
DISTRICT CLERK
By Deputy:: ) H
Page 529
App.5
03/31/2025 05:55:02 PM
Velva L. Price
District Clerk
Travis County
D-1-GV-12-000277
CAUSE NO. D-1-GV-12-000277

THE STATE OF TEXAS § IN THE DISTRICT COURT OF
Ex rel. JOSHUA LAFOUNTAIN §
§
Relator, §
§
V. § 126TH JUDICIAL DISTRICT
§
BLT MANAGEMENT COMPANY, LLC n/k/a §
BLT SUPPORT SERVICES, LLC; et al §
§
Defendants. § TRAVIS COUNTY, TEXAS

SUMMARY JUDGMENT ORDER

Before the Court is Defendants' Second Amended No-Evidence Motion for Summary

Judgment (the "Motion"). Also before the Court are Defendants' objections to Relator's summary

judgment evidence (the "Objections"). The Court considered the Motion, Relator's response,

Defendants' reply, the Objections, and the arguments of counsel. The Court rules as follows:

IT IS ORDERED that the Motion is GRANTED, and Relator's claims are DISMISSED

WITH PREJUDICE.

IT IS FURTHER ORDERED that Defendants' Objections to Relator's summary judgment

evidence are SUSTAINED.

This is a final judgment. It disposes of all parties and all claims and is appealable.

SIGNED this ~~y of March 2025.

I, VELVA L PRJCE, Di9trict C erk, Trav· Cou ty, ~b'YYi{R)
Texas, do hereby ce ·1y that this is a lrue and PRS!DING JUDGE
11J1~-
correct copy as same ppe rs of record in my
office. Wttness rny hand and seal of office
On _ _- -
05/06/2025 r-------~--
10:31:20

f~~- ~~ ~
VELVA L. PRICE
DISTRICT CLERK
By Deputy:::) H
4929-2361-5791

Page 701
App.6
CAUSE NO. D-1-GV-12000277

THE STATE OF TEXAS § IN THE DISTRICT COURT OF
Ex rel. JOSHUA LAFOUNTAIN §
§
Plaintiffs, §
§
v. § 126TH JUDICIAL DISTRICT
§
BLT MANAGEMENT COMPANY, LLC §
n/k/a BLT SUPPORT SERVICES, LLC; et al §
§ TRAVIS COUNTY, TEXAS
Defendants.

AFFIDAVIT OF SYLVIA ACOSTA

STATE OF TEXAS §
§
COUNTY OF DALLAS §

BEFORE ME, the undersigned authority, on this day personally appeared Sylvia Acosta,

who swore on her oath the following:

1. "My name is Sylvia Acosta. I am of sound mind, over the age of 21 years, have

personal knowledge of each of the matters stated herein, and am fully competent to testify to the

matters stated herein. The matters stated herein are true, correct, and accurate to the best of my

personal knowledge.

2. I am employed by Bear Creek Dentistry. I have worked at Bear Creek since

August of 2003. Recently, my role and responsibilities have involved compliance, audits,

credentialing and other delegated tasks.

3. I am familiar with how Bear Creek creates, stores, and manages its internal patient

records, patient charts, billing and other records (the ''Records").

Prior to 2006, Bear Creek created, stored and maintained the Records in a paper

e time frame between 2006-2008, Bear Creek began transitioning the creating,

YLVIA ACOSTA
Page I

Page 417
storing and maintaining of the Records in a predominately electronic format. Following 2008,

the Records were all largely electronic.

5. I am familiar with the requests sent and received by Bear Creek to produce

documents. I personally verified and assisted in locating responsive documents in paper and

electronic form, as they were stored and maintained.

6. I have reviewed the following photos of the warehouse where the paper Records

are stored and maintained:

These Records comprise all accounting and reports documenting dentists' services, charges,

review of said charges, and all billing records. These are the exact billing and other records that

would show all billing efforts, submissions and data and are directly responsive to Plaintiff's

• oduction. These boxes were all provided to Plaintiff at their May inspection. In

photo is a still-shot from video showing Plaintiff's counsel ' s review of such

ay inspection.

Page 2

Page 418
7. The warehouse also contains additional Records of patient charts in hard-copy form

that were stored in several filing cabinets. Those items reflected the care and treatment justifying

the work, services and billing for the patients. The charts also included hard copies of x-rays or

other radiographs studied. There were multiple filing cabinets provided at the May inspection

that contained relevant charts, organized by patient name:

8. The photos above reflect an accurate depiction of the types, volume and

presentation of the paper Records at the time of the May inspection.

9. As to electronic documents, Plaintiff sent requests for certain information. Bear

Creek then produced a thumb drive that contained the data. I personally verified all the

responsible data to the requests was transferred to the thumb drive.

10. To access the data, any user would need to utilize two software programs - Dentrix

and Dexis. Dentrix is predominately a record and/or management software. For example, when

a patient is seen and charted, that data is housed in Dentrix. Dexis, on the other hand, is an

imaging software that displays x-rays or other images. Both Dentrix and Dexis are the "gold

standard" in dental practice management. Whenever Bear Creek communicates or exchanges

electronic records, including with the government, insurance providers, attorneys, etc., that

ansmitted and reviewed with these programs.

fter Bear Creek was told that the first thumb drive was difficult to manage for

Page 3

Page 419
Plaintiffs counsel, I loaded a second thumb drive with the same information, and also loaded the

Dentrix and Dexis viewers' "load files" or applications on the thumb drive. Load files/applications

allow the software to be fully loaded and installed onto a separate computer. We likewise gave

instructions on how to do so. Again, I verified all responsive data was included and accessible.

12. Likewise, after continued issues, Bear Creek decided to simply purchase a laptop.

I worked with our IT professionals to do so, loading not only the data but actually installing Dentrix

and Dexis on to the laptop. Again, I verified all responsive data was included and accessible, and

verified the data was viable in the software programs.

13. Plaintiffs requests for JPEG images are not customary or reliable. Bear Creek

does not create or keep images in this format, nor does Dentrix or Dexis. X-rays and imaging are

only reliable if a viewer has contrast. JPEG's have no contrast controls, by definition. Without

contrast, diagnosis is unreliable. That is why Dexis files are the reliable and generally recognized

standard in the dental industry because they allow for adjustments in contrast..

14. Neither of the thumb drives nor the laptop were corrupted in any manner when we

produced such materials. To the contrary, all three devices loaded and were accessible by me

when utilized. I cannot speak to what actions Plaintiffs or Plaintiffs counsel took in altering the

devices or data.

15. I am familiar with Plaintiffs assertions that not all files contained charts. I can

confirm that seven patient records have no imaging whatsoever. Those charts are noted below.

Additionally, two charts Plaintiff identified are not valid charts in the Dentrix system.

16. The following represents a list of the patient materials submitted on each thumb

. The doctors and locations folders are shown in the initial box, and then the files

llow:

SYLVIA ACOSTA
Page 4

Page 420
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pecanJ sl lis _cle ments

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G OOOI_Jor3t Gu:i rgu l.:r 1,---- -G-ts- - - . F,I r.! • •
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peca nJ5l list_cle m ents & be nitez

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ESJ3tti 111 r3noa Es:i ui ,1 F:!e ·,Ii.,
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FURTHER AFFIANT SAYETH NOT."

Syl~Acosta

SWORN TO AND SUBSCRIBED before me on this the 30th day of January, 20025.

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Notary Public, State ofTexas

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Page 8

Page 424
App.7
01/18/2024 04:29:36 PM
Velva L. Price
District Clerk
Travis County
D-1-GV-12-000277
CAUSE NO. D-1-GV-12000277

THE STATE OF TEXAS § IN THE DISTRICT COURT OF
Ex rel. JOSHUA LAFOUNTAIN §
§
Plaintiffs, §
§ 126TH JUDICIAL DISTRICT
v. §
§
BLT MANAGEMENT COMPANY, LLC n/k/a §
BLT SUPPORT SERVICES, LLC; et al §
§ TRAVIS COUNTY, TEXAS
Defendants. §

AGREED LEVEL 3 SCHEDULING ORDER

The following Agreed Level 3 Discovery Control Plan shall apply to this case, unless
modified by the Court or, if permissible, by written agreement of the parties under Rule 11 of the
Texas Rules of Civil Procedure. In compliance with local rules, effective May 1, 2023, and by their
respective signatures, below, counsel of record certify: (1) that none of the deadlines, below, are
shorter than days-before-trial deadlines provided in the Court’s Standing Pretrial Scheduling Order,
but, if such deadlines are altered at all, the same are prior to the deadlines in the Court’s Standing
Pretrial Scheduling Order; and (2) that none of the days-before-trial deadlines in the Court’s
Standing Pretrial Scheduling Order shall be shortened without leave of Court, even if the parties
agree:

1. July 15, 2024 DEADLINE TO JOIN ADDITIONAL PARTIES

2. July 15, 2024 DEADLINE FOR PLAINTIFF TO AMEND OR SUPPLEMENT
PLEADINGS.

3. August 15, 2024 DEADLINE FOR DEFENDANT TO AMEND OR
SUPPLEMENT PLEADINGS.

.4. October 15, 2024 PLAINTIFF’S DEADLINE TO DESIGNATE EXPERT
WITNESSES. Plaintiff (and those seeking affirmative relief) must
designate testifying experts by describing and producing all the
information set forth in TEX. R. CIV. P. 194.2(f).

5. November 15, 2024 DEFENDANT(S) DEADLINE TO DESIGNATE EXPERT
WITNESSES: Defendant(s) must designate testifying experts by
describing and producing all the information set forth in TEX. R. CIV.
P. 194.2(f). The deposition(s) of said expert(s) will take place within
a reasonable time period after the deposition(s) of Plaintiff’s experts.

Page 77
6. February 28, 2025 DEADLINE FOR FILING ALL MOTIONS FOR SUMMARY
JUDGMENT OR OTHER DISPOSITIVE MOTIONS.

7. February 14, 2025 DEADLINE BY WHICH DISCOVERY MUST BE
COMPLETED. All discovery, including expert discovery, shall be
completed by this date.

8. March 3, 2025 DEADLINE TO OBJECT TO PLAINTIFF/DEFENDANT’S
DESIGNATED EXPERTS (including Daubert/Robinson/Havner
motions).

9. March 7, 2025 MEDIATION DEADLINE. Counsel and parties shall proceed in a
good faith effort to try and resolve this case and shall agree upon a
mediation date to take place no later than March 7, 2025. Fees for
mediation are to be divided and borne equally by the parties unless
agreed otherwise, and shall be paid by the parties directly to the
Mediator, and shall be taxed as costs.

10. March 14, 2025 All challenges to expert witnesses shall be filed on or before this date.

11. March 14, 2025 DEADLINE TO IDENTIFY TRIAL WITNESSES, INCLUDING
EXPERT AND REBUTTAL WITNESSES REASONABLY
EXPECTED TO BE CALLED TO TRIAL.

12. March 14, 2025 DEADLINE TO EXCHANGE TRIAL EXHIBITS. Each party
will forward to every other party of record a copy of all trial exhibits
and/or list of documents to be used as trial exhibits (if previously
provided).

13. April 2, 2025 DEPOSITION TESTIMONY – Counsel shall exchange page and
line references for all deposition testimony to be offered in the case in
chief.

14. April 4, 2025 MOTIONS IN LIMINE – Counsel shall exchange motions in limine,
which shall not include the matters in the Travis County Standing
Order in Limine.

15. April 8, 2025 DEPOSITION TESTIMONY (Cross Designations) – Counsel shall
exchange cross-designations of page and line references of all
deposition testimony to be used at trial. Deposition Testimony
(Objections) – Counsel shall also provide a written statement of page
and line references to their respective designations on which they seek
a ruling on any evidentiary objections, including the basis for the

Page 78
objections. Failure to timely object will be deemed a waiver of any
objections.

JURY CHARGE – Each party shall file and serve on all other parties
a proposed jury charge, including questions, definitions, and
instructions, which shall include citations to the Texas Pattern Jury
Charge and other authority that supports the submission.

16. April 10, 2025 DEPOSITION TESTIMONY (Objections to Cross Designations)
Counsel shall provide a written statement of page and line references
to cross- designations on which they seek a ruling on any evidentiary
objections, including the basis for the objections. Failure to timely
object will be deemed a waiver of the objection.

17. April 11, 2025 MEET & CONFER – Counsel shall confer in person or by telephone,
in good faith, in an attempt to resolve (a) all objections to deposition
designation and exhibits, (b) all disputed motion in limine filed by an
opposing party, and (c) all disputed language in the opposing party’s
proposed jury charge. Any objections not resolved by conference will
be heard at the pretrial conference, which is generally held on the first
morning of trial.

18. April 14, 2025 JURY TRIAL SET TO BEGIN.

SIGNED this the ______ January
17th day of ______________________, _______.
2024

_________________________________
PRESIDING JUDGE
AMY CLARK MEACHUM

Page 79
AGREED AS TO FORM AND ENTRY:

/s/ Craig Cherry___
Craig D. Cherry
State Bar No. 24012419
ccherry@cjsjlaw.com
Justin Allen
State Bar No. 24081977
jallen@cjsjlaw.com
CHERRY JOHNSON SIEGMUND JAMES, PLLC
400 Austin Ave., 9th Floor
Waco, Texas 76701
Telephone: (254) 732-2242
Facsimile: (866) 627-3509

AND

_/s/Chris Davis
Chris Davis
State Bar No. 24050483
cdavis@grayreed.com
Angela Laughlin Brown
State Bar No. 24034533
abrown@grayreed.com
GRAY REED
1601 Elm Street, Suite 4600
Dallas, Texas 75201

Attorneys for Buckner Marketplace Dental PA,
Pecan Plaza Dental PA, Pioneer Dental PA,
Plaza De Oro Dental PA, Spring Valley
Crossing Dental PA, Robert E. Tafel, DDS, PA
Robert E. Tafel DDS, PC and Westcliff Dental
PA

/s/ Christopher S. Ayres
CHRISTOPHER S. AYRES, SBN 24036167
csayres@ayreslawoffice.com
R. JACK AYRES, JR., SBN 01473000
rjayres@ayreslawoffice.com
AYRES LAW OFFICE, P.C.
8140 Walnut Hill Lane, Suite 830
Dallas, Texas 75231
972-991-2222 – Phone
972-386-0091 – Fax

Page 80
Attorneys for Defendants BLT Dental
Management Company, LLC, BLT
Management LLC n/k/a BLT Support
Services, LLC and Robert E. Tafel

/s/ J. Rusty Tucker
James “Rusty” Tucker
State Bar No. 20272020
rusty@rustytuckerlaw.com
Law Offices of James R. Tucker, P.C.
5522 Ellsworth Avenue
Dallas, Texas 75206
(214) 505-0097
(214) 599-8874 (fax)

Attorney for Relator Joshua LaFountain

Page 81
Automated Certificate of eService
This automated certificate of service was created by the efiling system.
The filer served this document via email generated by the efiling system
on the date and to the persons listed below. The rules governing
certificates of service have not changed. Filers must still provide a
certificate of service that complies with all applicable rules.

Melissa Patterson on behalf of Jane Webre
Bar No. 21050060
mpatterson@scottdoug.com
Envelope ID: 107048101
Filing Code Description: Brief Requesting Oral Argument
Filing Description: Brief Requesting Oral Argument
Status as of 10/20/2025 2:05 PM CST

Case Contacts

Name BarNumber Email TimestampSubmitted Status

Michaelle Peters mpeters@scottdoug.com 10/20/2025 1:59:23 PM SENT

Luis Garcia lgarcia@scottdoug.com 10/20/2025 1:59:23 PM SENT

Christopher Davis 24050483 cdavis@grayreed.com 10/20/2025 1:59:23 PM SENT

Rowe Ayres 1473000 rjayres@ayreslawoffice.com 10/20/2025 1:59:23 PM SENT

Angela Brown 24034533 abrown@grayreed.com 10/20/2025 1:59:23 PM SENT

Jane Webre jwebre@scottdoug.com 10/20/2025 1:59:23 PM SENT

Nicollette Morton filings@ayreslawoffice.com 10/20/2025 1:59:23 PM SENT

Christopher Ayres csayres@ayreslawoffice.com 10/20/2025 1:59:23 PM SENT

Associated Case Party: Joshua LaFountain

Name BarNumber Email TimestampSubmitted Status

James Tucker 20272020 rusty@rustytuckerlaw.com 10/20/2025 1:59:23 PM SENT

Associated Case Party: Buckner Marketplacce Dental, P.A. et. al.

Name BarNumber Email TimestampSubmitted Status

Craig Cherry ccherry@cjsjlaw.com 10/20/2025 1:59:23 PM SENT