Opinion issued May 9, 2023

In The

Court of Appeals 

For The

First District of Texas 

————————————

NO. 01-21-00383-CV

———————————

STEVEN I. ROCKMAN, M.D., Appellant

V.

OB HOSPITALIST GROUP, INC.; OB HOSPITALIST GROUP, LLC;

OBHG MANAGEMENT SERVICES, LLC; JAMI WALKER; AND CHCA 

CLEAR LAKE L.P. D/B/A HCA HOUSTON HEALTHCARE CLEAR 

LAKE, Appellees

On Appeal from the 281st District Court

Harris County, Texas

Trial Court Case No. 2020-59786

MEMORANDUM OPINION

Appellant Steven I. Rockman, M.D., (Dr. Rockman) sued appellees (1) Ob 

Hospitalist Group, Inc., (2) Ob Hospitalist Group, LLC, (3) OBHG Management 

Services, LLC (OBHG Management), (4) Jami Walker, and (5) CHCA Clear Lake 
2

L.P. doing business as HCA Houston Healthcare Clear Lake (Clear Lake) for 

defamation and business disparagement. Dr. Rockman brings this appeal from the 

trial court’s judgment dismissing those claims under the Texas Citizens Participation 

Act (TCPA). See TEX. CIV. PRAC. & REM. CODE §§ 27.001–.011.1 The dispositive 

issues raised by Dr. Rockman on appeal are whether the trial court abused its 

discretion in making certain evidentiary and discovery rulings and whether the trial 

court erred by dismissing his claims under the TCPA. 

Because the record does not show the error of which Dr. Rockman complains, 

we affirm.

Background

Dr. Rockman is a physician who specializes in obstetrics and gynecology 

(ob/gyn). In early 2019, he was employed by Pediatrix Medical Services, Inc., a 

company affiliated with Mednax Health Solutions Partner (together, Mednax).

Through Mednax, Dr. Rockman worked as a locums tenens2 ob/gyn physician at

Clear Lake and other hospitals.

1

In 2019, the Texas Legislature amended the TCPA. The amendments became

effective September 1, 2019. Act of May 17, 2019, 86th Leg., R.S., ch. 378, § 11, 

2019 Tex. Sess. Law Serv. 684, 687. Because this suit was filed after that date, all 

citations to the TCPA refer to the amended statute.

2

“The term ‘locum tenens’ is defined as a ‘[p]hysician who substitutes for another 

temporarily.’” Benavides v. Garcia, 278 S.W.3d 794, 797 (Tex. App.—San Antonio 

2009, pet. denied) (quoting TABER’S CYCLOPEDIC MEDICAL DICTIONARY L-38 

(10th ed. 1965)); see “locum tenens,” Merriam-Webster, https://www.merriamwebster.com/dictionary/locum%20tenens (defining “locum tenens” as “one filling 
3

On February 2, 2019, Dr. Rockman assisted a doctor employed by Clear Lake 

with a cesarean section delivery. As Dr. Rockman testified in his affidavit offered in 

support of his original and amended petitions, the delivery was difficult, and “the 

fetus was [delivered] stillborn.” The next day, Dr. Rockman received a phone call 

about the stillborn delivery from Dr. Brian Gilpin, who worked for Mednax, and he 

and Dr. Gilpin “reviewed the clinical history and outcome” of the delivery. At Dr. 

Gilpin’s request, Dr. Rockman “reviewed the case with [Mednax’s] attorney.” 

A few days later, Mednax’s operations director told Dr. Rockman that he was 

being placed on paid administrative leave. Dr. Rockman testified that, when he asked 

why, the operations director did not respond. Shortly thereafter, Clear Lake’s CEO,

Todd Caliva, sent Dr. Rockman a letter informing him that on February 7, 2019, he 

had notified Mednax that, “in [his] discretion,” he “no longer [chose to] accept”

Mednax’s “use of [Dr. Rockman] as a representative at the Hospital under the 

Professional Services Agreement between the Hospital and [Mednax].” Caliva 

explained that it was “an administrative action and [did] not entitle [Dr. Rockman] 

to a hearing or appeal” based on a provision in the hospital’s “Medical Staff 

Bylaws.” Caliva also informed Dr. Rockman that the “action [was] not reportable to 

the National Practitioner Data Bank or Texas Medical Board.”

an office for a time or temporarily taking the place of another—used especially of a 

doctor or clergyman”).
4

Caliva also explained that Dr. Rockman held “Obstetrics and Gynecological 

locum tenens privileges to provide services at [Clear Lake] through [his] affiliation”

with Mednax. And, because Mednax was no longer permitted to use Dr. Rockman 

as a representative at Clear Lake, Dr. Rockman was “unable to exercise [his] locum 

tenens privileges at the Hospital.” Caliva told Dr. Rockman that, if he sought 

privileges beyond his locum tenens privileges held through Mednax, then he was 

required to submit the request in writing to Caliva. The request would then be 

evaluated under the hospital’s credentialling policy. 

Dr. Rockman testified in his affidavit that he was “purged from the on-call 

schedules” at Clear Lake and several other hospitals. In May 2019, Dr. Gilpin called 

him “indicating [that Dr. Rockman’s] ‘case’ had been discussed at the highest 

corporate levels.” Dr. Gilpin informed Dr. Rockman that Mednax recommended “an 

assessment of [his] health, competency and cognitive skills.” 

Mednax continued to pay Dr. Rockman for several months. On September 12, 

2019, Dr. Rockman accepted Mednax’s offer for him to resign. Dr. Rockman then

pursued hospital privileges at Methodist Hospital in San Antonio. 

At that time, OBHG Management was tasked with finding ob/gyn physicians 

to staff Methodist Hospital. To locate qualified physicians, OBHG Management 

sometimes subcontracted with staffing companies, including AMN Healthcare 

(AMN). AMN would sometimes subcontract with other staffing companies to locate 
5

physicians. AMN assisted OBHG Management with Dr. Rockman’s placement at 

Methodist, and the record indicates that MPLT Healthcare (MPLT), a company 

specializing in locum tenens staffing, was in turn assisting AMN.

Before granting privileges to a physician, a hospital, such as Methodist, must 

obtain a verification from the hospitals at which the physician previously had 

privileges to confirm the physician’s work history. Pethy Dowe-Royal, an MPLT 

credentialing specialist, was assigned to facilitate the credentialing process for Dr. 

Rockman with Methodist Hospital. 

On September 24, 2019, Dowe-Royal emailed Dr. Rockman. In her email, 

Dowe-Royal stated that MPLT “just received a verification” from Clear Lake in 

which it “noted” that Dr. Rockman “was removed from staff on 2/5/2019 due to 

patient care issues.” Dowe-Royal asked Dr. Rockman to provide an explanation 

regarding the circumstances of his departure from Clear Lake. Dr. Rockman 

responded by email that day. In his response, he discussed the stillborn delivery that 

had occurred at Clear Lake on February 2, 2019 and his participation in it. Dr. 

Rockman stated that he had assisted the Clear Lake doctor who performed the 

cesarean section involved in the delivery. He claimed that, after the stillborn 

delivery, Clear Lake had ended its relationship with him to protect their staff doctor 

from criticism.
6

On October 22, 2019, MPLT sent Dr. Rockman correspondence listing the 

dates that he was scheduled to work at Methodist Hospital, starting in December

2019. The correspondence noted that Dr. Rockman’s “[s]tart date and assignment 

[were] contingent upon credentialing” with Methodist.

On November 22, 2019, Jami Walker, OBHG Management’s Director of 

Hospital Operations, sent an email about Dr. Rockman to seven recipients. Four of 

the email’s recipients worked for OBHG Management and three worked for AMN. 

The email read in part: 

(Typographical error in original).

Subsequently, Dr. Rockman’s application for privileges to work as an ob/gyn 

physician at Methodist Hospital was withdrawn from consideration, and Dr. 

Rockman was not granted privileges at the hospital. 

On September 23, 2020, Dr. Rockman filed suit, later amending his petition. 

As defendants, Dr. Rockman named Jami Walker, OBHG Management, Ob

Hospitalist Group, Inc., and Ob Hospitalist Group, LLC (together, OBHG 

Defendants). Dr. Rockman also sued Clear Lake. He asserted causes of against all 
7

defendants for defamation—specifically, defamation per se—and business 

disparagement. 

Dr. Rockman’s defamation and business disparagement claims against Clear 

Lake were based on Clear Lake’s statement in its verification—as reflected in the 

September 24 email from Dowe-Royal—that Dr. Rockman “was removed from staff 

on 2/5/2019 due to patient care issues.” Dr. Rockman asserted that Clear Lake’s 

statement was false because he “had not, to his knowledge and belief, been under 

any suspicion whatsoever concerning ‘patient care issues.’” 

Dr. Rockman’s defamation and business disparagement claims against the 

OBHG Defendants were based on Walker’s November 22 email in which she stated 

that she had learned from Methodist, at a meeting the previous day, that Dr. 

Rockman had license sanctions, privileges revoked, and was currently under 

investigation. He asserted that the statement was false because he “had no license 

sanctions, had never had privileges revoked and, to the best of his knowledge and 

belief, was not ‘under investigation.’” He alleged that Walker had acted as the agent 

of all OBHG Defendants when she sent the November 22 email.

Dr. Rockman asserted that both of the complained-of statements were 

defamatory, “impeach[ing] his professional and personal skills, conduct, honesty 

and integrity.” He alleged that Clear Lake and the OBHG Defendants had acted 

negligently and maliciously in “failing to ascertain the truth.” And he alleged that 
8

the defamatory statements caused his reputation to be “severely injured.” Dr. 

Rockman claimed that, since the publication of the two statements, he could not

obtain a hospital assignment, resulting in lost wages and benefits. He sought an 

award of actual and exemplary damages against all defendants. 

Clear Lake filed a TCPA motion to dismiss Dr. Rockman’s claims. Ob 

Hospitalist Group, Inc. and Ob Hospitalist Group, LLC each filed a special 

appearance, and subject to the special appearances, the OBHG Defendants also filed 

a TCPA motion to dismiss. All defendants asserted that Dr. Rockman’s defamation 

and business disparagement claims were based on the exercise of their right to free 

speech about Dr. Rockman’s provision of medical services and his professional 

competency, which they asserted were matters of public concern. Clear Lake also 

asserted that the claims were based on its right of association. The defendants

contended that Dr. Rockman could not present clear and specific prima facie 

evidence to support the elements of his claims. All defendants asserted that the

affirmative defense of substantial truth defeated Dr. Rockman’s defamation claims.

The OBHG Defendants claimed that the qualified privilege of common interest 

protected Walker’s complained-of statement. 

In his response, Dr. Rockman argued that the TCPA did not apply to his 

lawsuit because his claims were not based on or in response to communications 

made in connection with a matter of public concern. He also asserted that he offered 
9

clear and specific evidence to establish a prima facie case for each element of his

defamation and business disparagement claims. And he claimed that the defendants 

had not established the affirmative defenses of truth and qualified privilege.

On February 26, 2021, the trial court signed an order granting Ob Hospitalist 

Group, LLC’s special appearance. Two weeks later, the trial court signed an order 

denying Ob Hospitalist Group, Inc.’s special appearance. Ob Hospitalist Group, Inc.

filed an interlocutory appeal in this Court, challenging the trial court’s denial of its 

special appearance.3

Dr. Rockman filed a motion to depose Clear Lake’s representative “with the 

most knowledge regarding the verification of Dr. Rockman that was sent to 

[Methodist] or its agent.” On April 27, 2021, the trial court conducted a hearing on 

the motion. At the hearing, Clear Lake’s counsel stipulated on the record that, as 

reflected in Dowe-Royal’s email, Clear Lake had stated in its verification that Dr. 

Rockman was removed from Clear Lake’s staff “due to patient care issues.” At the 

end of the hearing, the trial court denied Dr. Rockman’s motion.

On May 25, 2021, the trial conducted a hearing on the defendants’ TCPA 

motions to dismiss. At that hearing, the trial court also heard arguments regarding 

3 Dr. Rockman did not appeal the order granting Ob Hospitalist Group, LLC’s special 

appearance.
10

the OBHG Defendants’ hearsay objections to two exhibits offered in support of Dr. 

Rockman’s response. 

On June 24, 2021, the trial court signed an order sustaining the OBHG 

Defendants’ objections to Dr. Rockman’s evidence. The trial court also signed two 

orders (1) granting the defendants’ TCPA motions, (2) dismissing Dr. Rockman’s 

claims against all defendants with prejudice, and (3) awarding the defendants 

attorney’s fees, including conditional appellate attorney’s fees. Together, the two 

orders disposed of all parties and all claims, thus constituting a final judgment. See 

Mayfield v. N. Vill. Green I Homeowner’s Ass’n, Inc., No. 01-12-00748-CV, 2014 

WL 2538554, at *8 (Tex. App.—Houston [1st Dist.] June 5, 2014, pet. denied) 

(mem. op.) (concluding that three orders “[t]aken together . . . disposed of all issues 

and all parties and thus constitute a final and appealable judgment”).

Dr. Rockman filed the instant appeal from the final judgment. At that point, 

the record and the parties’ briefs had already been filed in Ob Hospitalist Group, 

Inc.’s interlocutory appeal from the order denying its special appearance. This Court 

then notified the parties that the order denying Ob Hospitalist Group, Inc.’s special 

appearance had merged into the final judgment. See Elec. Reliability Council of Tex., 

Inc. v. Panda Power Generation Infrastructure Fund, LLC, 619 S.W.3d 628, 635–

36 (Tex. 2021). Because the order had merged into the final judgment, the Court 

notified the parties of its intent to dismiss the interlocutory appeal and to transfer the 
11

record and the briefs to the instant final-judgment appeal. Ob Hospitalist Group, Inc. 

responded with a “Consent to Transfer and Dismissal,” agreeing that the 

interlocutory appeal should be dismissed and that the briefs and the record, including 

the notice of appeal, from the special-appearance interlocutory appeal should be 

transferred to the instant final-judgment appeal. On November 30, 2021, we 

dismissed the interlocutory appeal and transferred the record and the parties’ briefs 

from that appeal to this appeal from the final judgment. See Ob Hospitalist Grp., Inc. 

v. Rockman, No. 01-21-00156-CV, 2021 WL 5570139, at *1–2 (Tex. App.—

Houston [1st Dist.] Nov. 30, 2021, no pet.) (mem. op.) (per curiam). In its appellee’s 

brief filed in the final-judgment appeal, Ob Hospitalist Group, Inc. incorporated by 

reference its briefing from the interlocutory appeal but indicated that its challenge to 

the denial of its special appearance need not be reached if this Court affirmed the 

dismissal of Dr. Rockman’s claims against it under the TCPA.

Although Dr. Rockman raises three issues on appeal, we need only address 

Dr. Rockman’s first two issues, which are dispositive. We first address Dr. 

Rockman’s second issue because its disposition may affect the resolution of Dr. 

Rockman’s first issue. See Tex. Mut. Ins. Co. v. Sara Care Child Care Ctr., Inc., 324 

S.W.3d 305, 310 (Tex. App.—El Paso 2010, pet. denied) (considering evidentiary 

issue first because it affected analysis of summary-judgment issue).
12

Evidentiary and Discovery Complaints

Dr. Rockman’s second issue raises two sub-issues in which he complains of

the trial court’s evidentiary and discovery rulings. 

A. Evidentiary Complaint

In his first sub-issue, Dr. Rockman complains of the trial court’s order 

sustaining the OBHG Defendants’ hearsay objections to two of his exhibits, Exhibits 

B-1 and B-2, offered to support his response to the TCPA motions.

1. Relevant background

Exhibits B-1 and B-2 were attached to Exhibit B, a declaration signed by Dr. 

Rockman’s attorney. In his declaration, Dr. Rockman’s counsel attested that Exhibit 

B-1 contained “true and correct copies” of a letter, and two emails attached to the

letter, that Dr. Rockman’s counsel had received from Methodist’s in-house counsel. 

Dr. Rockman’s counsel also attested that Exhibit B-2 contained “true and correct 

copies” of “an email and all attachments” that he had received from AMN’s attorney. 

In the letter contained in Exhibit B-1, Methodist’s in-house counsel explained 

that the hospital had contracted with the “OBHG Group” to provide obstetricians to 

the meet the hospital’s obstetrical needs. He stated that the obstetricians underwent

credentialling by Methodist to obtain clinical privileges at the hospital. He explained

that Methodist’s credentialling process was privileged and confidential and that the 

OBHG Group played no part in that review process. He said that Methodist met with 
13

the OBHG Group once a week to discuss, among other things, the status of the 

applications for the OBHG Group’s obstetricians. He stated that the hospital’s 

records showed that Walker had not attended the weekly November 21, 2019

meeting, even though Walker indicated in her November 22 email that she had 

attended the meeting. Attached to the in-house counsel’s letter were two emails from 

Methodist employees about the November 21 meeting. 

Exhibit B-2 contained an email from AMN’s counsel to Dr. Rockman’s 

counsel regarding a Rule 202 pre-suit petition filed by Dr. Rockman that sought to

depose an AMN representative.

4 See TEX. R. CIV. P. 202. Among the documents

attached to the email were other emails to and from AMN personnel and records 

concerning Dr. Rockman’s education and licensing. 

The OBHG Defendants filed objections to Exhibits B-1 and B-2, asserting

that both exhibits contained inadmissible hearsay. They pointed out that Exhibit B1 was “an unsworn statement in letter form” that contained “factual allegations . . . 

not within the personal knowledge” of Methodist’s counsel. They asserted that the 

statements in the letter were also “hearsay within hearsay” because the “purported 

statements” were made “by other persons [and] allegedly conveyed to [Methodist’s 

4 The clerk’s record in this appeal does not contain the Rule 202 petition because the 

Rule 202 proceeding was filed in a different trial court under a separate cause 

number from this suit. 
14

counsel].” And they asserted that the letter was offered “for the truth of the matters 

asserted therein.” 

Similarly, the OBHG Defendants pointed out that the email from AMN’s

counsel to Dr. Rockman’s counsel in Exhibit B-2 “[was] not sworn and [was] being 

offered for the truth of the matters stated therein.” They also pointed out that the 

records regarding Dr. Rockman’s education and licensing attached to AMN’s 

counsel’s email were unauthenticated, and they emphasized that the attached emails 

from AMN employees constituted inadmissible hearsay. 

The OBHG Defendants reasserted their hearsay objections at the hearing on 

the TCPA motions. The trial court did not rule on the objections at the hearing but 

signed an order sustaining the OBHG Defendants’ objections to Exhibits B-1 and B2 the same day that it granted the TCPA motions to dismiss, thus excluding the 

exhibits from consideration in support of Dr. Rockman’s response to the motions. 

2. Standard of Review

We review a trial court’s evidentiary rulings for an abuse of discretion. Sw. 

Energy Prod. Co. v. Berry-Helfand, 491 S.W.3d 699, 727 (Tex. 2016); see Day v. 

Fed’n of State Med. Bds. of the U.S., Inc., 579 S.W.3d 810, 817 (Tex. App.—San 

Antonio 2019, pet. denied) (applying abuse of discretion evidentiary standard in 

TCPA context). A trial court abuses its discretion when it acts arbitrarily or 
15

unreasonably or without reference to any guiding rules or principles. Downer v. 

Aquamarine Operators, Inc., 701 S.W.2d 238, 241–42 (Tex. 1985).

3. Analysis

On appeal, Dr. Rockman does not argue that the contents of the Exhibits B-1 

and B-2 were not hearsay, nor does he assert that a hearsay exception applied. See 

TEX. R. EVID. 801(d) (providing that hearsay is (1) statement that declarant makes 

not while testifying at current trial or hearing (2) offered to prove truth of matter 

asserted), 803 (listing hearsay exceptions); see also Petros v. Bodine, No. 07-19-

00019-CV, 2020 WL 2107806, at *2 (Tex. App.—Texarkana May 1, 2020, no pet.) 

(mem. op.) (stating that appellant “failed to address in her appellate brief why the 

trial court erred in deeming the report and its content inadmissible hearsay,” which 

was “her burden on appeal”). 

Instead, Dr. Rockman asserts that the trial court abused its discretion in 

sustaining the hearsay objections to Exhibits B-1 and B-2 because the court applied 

the standard used to determine the admissibility of evidence in a summary-judgment

proceeding. Contrary to Dr. Rockman’s assertion, that was the correct standard to 

apply to determine whether the OBHG Defendants’ objections to Exhibits B-2 and 

B-2 should be sustained.

TCPA section 27.006(a) provides that, in a TCPA proceeding, a court should

consider evidence that it could consider in a summary-judgment proceeding: 
16

In determining whether a legal action is subject to or should be 

dismissed under this chapter, the court shall consider the pleadings, 

evidence a court could consider under Rule 166a, Texas Rules of Civil 

Procedure [the summary-judgment rule], and supporting and opposing 

affidavits stating the facts on which the liability or defense is based.

TEX. CIV. PRAC. & REM. CODE § 27.006(a) (emphasis added). In other words, aside 

from pleadings and qualifying affidavits, section 27.006(a) requires that evidence be 

admissible under Rule of Civil Procedure 166a in a summary-judgment proceeding 

for that evidence to be the type of evidence considered in a TCPA proceeding. See 

id. If it is not, then it should not be considered. See id.

Rule 166a allows evidence only in certain forms,such as affidavits, deposition 

transcripts, interrogatory answers, or other discovery responses. See TEX. R. CIV. P.

166a. The complained-of evidence contained in Exhibits B-1 and B-2, such as the 

letter from Methodist’s counsel and the attached emails, were in none of those forms.

It is well-settled that “[a] trial court may not consider inadmissible hearsay evidence 

over a party’s objection in ruling on a motion for summary judgment.” Rodriguez v. 

Karstens, No. 10-14-00143-CV, 2015 WL 7074677, at *4 (Tex. App.—Waco Nov. 

12, 2015, no pet.) (mem. op.); see H & H Steel Fabricators, Inc. v. Wells Fargo 

Equip. Fin., Inc., No. 02-15-00391-CV, 2016 WL 6277371, at *3 (Tex. App.—Fort 

Worth Oct. 27, 2016, no pet.) (recognizing that affidavit “based on hearsay is 

incompetent as summary-judgment proof”); Zahorik v. Metro. Life Ins. Co., No. 14-

14-00564-CV, 2015 WL 4051972, at *2 (Tex. App.—Houston [14th Dist.] July 2, 
17

2015, no pet.) (mem. op.) (“A trial court cannot consider hearsay evidence in ruling 

on a motion for summary judgment.”). Thus, under TCPA section 27.006(a), hearsay 

evidence contained in unsworn statements, like those in Exhibits B-1 and B-2, 

should not be considered in a ruling on a TCPA motion to dismiss.5 See TEX. CIV.

PRAC. & REM. CODE § 27.006(a).

We disagree with Dr. Rockman that the trial court abused its discretion in 

sustaining the OBHG Defendants’ objections to the exhibits because the court

applied the evidentiary standard used in summary-judgment proceedings. To the 

contrary, it was the proper standard to apply. Applying that standard, the trial court

properly exercised its discretion by sustaining the hearsay objections to Exhibits B1 and B-2.

Dr. Rockman also asserts that his amended response to the TCPA motions 

was a “pleading,” and that, because Exhibits B-1 and B-2 were attached to the 

5 As mentioned, section 27.006(a) states that in determining the TCPA’s application 

to a legal action the court shall consider the pleadings and “supporting and opposing 

affidavits stating the facts on which the liability or defense is based.” TEX. CIV.

PRAC. & REM. CODE § 27.006(a). We note that at least one court has determined

that “supporting and opposing affidavits” need not comply with the summaryjudgment standard required for affidavits found in Rule 166a(f) when the affidavit

meets section 27.006(a)’s requirement of “stating the facts on which the liability or 

defense is based.” See Equine Holdings, LLC v. Jacoby, No. 05-19-00758-CV, 2020 

WL 2079183, at *4 (Tex. App.—Dallas Apr. 30, 2020, pet. denied) (citing MVS 

Int’l Corp. v. Int’l Advert. Sols., LLC, 545 S.W.3d 180, 192 (Tex. App.—El Paso 

2017, no pet.)). Because Exhibits B-1 and B-2 were not “supporting and opposing 

affidavits,” we need not consider that issue. Nor were the exhibits “pleadings” as 

we discuss infra.
18

amended response, they were part of the “pleading.” He points out that a trial court 

may consider pleadings when determining whether a legal action should be 

dismissed under the TCPA. See id. But Dr. Rockman provides no legal authority to 

support his position that his amended response was a “pleading.” We note that other 

Texas courts have concluded that neither a TCPA motion nor a response to a TCPA 

motion are considered pleadings when determining whether a legal action should be 

dismissed under the TCPA. See Te Lun Wang v. Xiangyu Cao, No. 05-19-00918-

CV, 2020 WL 7296999, at *4 n.6 (Tex. App.—Dallas Dec. 11, 2020, no pet.) (mem. 

op.) (“Wang’s unverified response to the motion to dismiss is not a pleading or an 

affidavit, so it is not evidence in a TCPA proceeding.”); MacFarland v. Le-Vel 

Brands LLC, No. 05-16-00672-CV, 2017 WL 1089684, at *17 (Tex. App.—Dallas 

Mar. 23, 2017, no pet.) (mem. op.) (explaining that TCPA motion to dismiss was not 

“part of any pleading or affidavit” and was not evidence under TCPA); Bacharach 

v. Doe, No. 14-14-00947-CV, 2016 WL 269958, at *1 (Tex. App.–Houston [14th 

Dist.] Jan. 21, 2016, no pet.) (mem. op.) (concluding defendant’s TCPA motion to 

dismiss was not “pleading” under Texas Rule of Civil Procedure 45 and unverified 

factual assertions therein could not “be considered competent evidence under the 
19

TCPA”). Thus, we conclude that Dr. Rockman’s assertion that Exhibits B-1 and B2 should have been considered by the trial court as pleadings is without merit.6

Finally, Dr. Rockman asserts that the exhibits should not have been excluded 

from evidence because his attorney authenticated them in his declaration. See TEX.

R. CIV. EVID. 902. However, admissibility and authenticity are two different 

evidentiary concepts. Petros, 2020 WL 2107806, at *1; see H2O Sols., Ltd. v. PM 

Realty Grp., LP, 438 S.W.3d 606, 623 n.6 (Tex. App.—Houston [1st Dist.] 2014, 

pet. denied) (“Authenticity of a document and admissibility of that document under 

an exception to the hearsay rule are separate inquiries.”). A document may be 

authenticated but still not admissible if it contains hearsay not subject to a hearsay 

exception. See Petros, 2020 WL 2107806, at *1. Stated differently, “while a writing 

may not be subject to exclusion on the basis that the proponent failed to authenticate 

it, it may be excluded if it constitutes inadmissible hearsay. Consequently, the

proponent would have to overcome both the hearsay and authentication bar to gain 

admission of the evidence.” Id. Here, even if the exhibits were properly 

6 Dr. Rockman’s amended response was not verified. Therefore, we need not 

determine whether a verified response could constitute an affidavit under section 

27.006(a). See Te Lun Wang v. Xiangyu Cao, No. 05-19-00918-CV, 2020 WL 

7296999, at *4 n.6 (Tex. App.—Dallas Dec. 11, 2020, no pet.) (mem. op.); cf. Evans 

v. MIPTT, L.L.C., No. 01-06-00394-CV, 2007 WL 1716443, at *5 (Tex. App.—

Houston [1st Dist.] June 14, 2007, no pet.) (mem. op.) (holding that verified 

response to motion for summary judgment was not summary-judgment evidence).
20

authenticated, Dr. Rockman has not shown on appeal that it was outside the trial 

court’s discretion to sustain the hearsay objections to them. See id. 

We overrule Dr. Rockman’s first sub-issue in his second issue.

B. Discovery Complaint

In his second sub-issue, Dr. Rockman complains of the trial court’s denial of 

his motion to depose Clear Lake’s representative “with the most knowledge 

regarding the verification of Dr. Rockman that was sent to [Methodist] or its agent.” 

We note that Dr. Rockman’s argument for this sub-issue is comprised of one 

paragraph in his brief. In that paragraph, he identifies no pertinent legal authority 

about discovery under the TCPA. 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.”). But, even construing his brief liberally, 

Dr. Rockman has failed to demonstrate that the trial court abused its discretion in 

denying his request to depose Clear Lake’s representative. See ADB Interest v. 

Wallace, 606 S.W.3d 413, 439 (Tex. App.—Houston [1st Dist.] 2020, pet. denied) 

(recognizing that abuse-of-discretion standard applies to trial court’s rulings on 

discovery motions under TCPA). 

The record shows that the trial court signed an order permitting Dr. Rockman 

to take the deposition of Dowe-Royal—the author of the September 24 email stating

that Clear Lake had noted in its verification that Dr. Rockman had been removed 
21

from staff on February 5 “due to patient care issues.” In seeking to depose Clear 

Lake’s representative, Dr. Rockman informed the trial court that he had learned that 

Dowe-Royal had limited knowledge about the verification because she had not 

directly received the verification but had acquired information about the 

verification’s contents from an outside credentialling agency retained by Methodist 

Hospital. In response, Clear Lake, through its counsel, stipulated at the hearing on 

the motion that Clear Lake had stated in its verification that Dr. Rockman was 

removed on February 5, 2019 “due to patient care issues.” But, even after the 

stipulation, Dr. Rockman told the trial court that he still wanted to depose Clear 

Lake’s representative. 

The filing of a motion to dismiss under the TCPA stays “all discovery in the 

legal action” until the trial court rules on the motion. TEX. CIV. PRAC. & REM. CODE 

§ 27.003(c). “On a motion by a party or on the court’s own motion and on a showing 

of good cause, the court may allow specified and limited discovery relevant to the 

motion [to dismiss].” Id. § 27.006(b).

As discussed in more detail below, the non-moving party responding to a 

TCPA motion has the burden to establish by “clear and specific evidence a prima 

facie case for each essential element” of his claim. Id. § 27.005(c). “Some meritsbased discovery may be relevant to the extent that it seeks information to assist the 

non-movant to meet its prima facie burden.” Bauta v. Mulvey, 646 S.W.3d 347, 357 
22

(Tex. App.—Corpus Christi 2022, pet. denied). However, “such merits-based 

discovery must still be ‘specified and limited’ because a prima facie standard 

generally ‘requires only the minimum quantum of evidence necessary to support a 

rational inference that the allegation of fact is true.’” Id. (quoting In re E.I. DuPont 

de Nemours & Co., 136 S.W.3d 218, 223 (Tex. 2004) (orig. proceeding)).

When Dr. Rockman pursued deposing a Clear Lake representative after Clear 

Lake had stipulated to making the statement in the verification, the trial court told 

Dr. Rockman that it “sound[ed] like” he was seeking “full-blown discovery.” The 

trial court asked him what he was seeking “from this limited deposition that just goes 

into the TCPA response.” Dr. Rockman, through his attorney, responded that he 

wanted to learn “the underlying factual situation that shows that he was actually let 

go for patient-care issues” and why the stipulation acknowledging that he was 

removed for patient care issues was “opposite of the letter that was sent from Mr. 

Caliva saying that [Dr. Rockman] was let go for administrative reasons.” 

Clear Lake responded that, when read in context, the administrative action

mentioned in Caliva’s letter referred to the contract between Clear Lake and Mednax

that permitted Clear Lake to cease using any of Mednax’s doctors for any reason, 

which would include patient care issues. Clear Lake also pointed out that “Dr. 

Rockman’s own affidavit show[ed] this [arose] out of a patient-care issue in which 

there was a stillborn child.” Clear Lake asserted that no further discovery was needed 
23

and that its TCPA motion was ready to be decided. Dr. Rockman responded that, if 

he was terminated for patient-care issues, then he was entitled to certain review 

processes, such as a peer review, under state and federal law, which had not 

occurred. He indicated that he needed the deposition to further explore that issue. 

The trial court then asked him, “How does that not go into the full-blown merits of 

the case?” Dr. Rockman responded that he was “not saying it won’t.” At that point, 

the trial denied Dr. Rockman’s motion. 

Given the record, we conclude that the trial court could have reasonably 

determined that Dr. Rockman’s deposition request did not seek “specified and 

limited discovery,” as required by the TCPA. See TEX. CIV. PRAC. & REM. CODE 

§ 27.006(b). We hold that the trial court did not abuse its discretion in denying Dr. 

Rockman’s motion.

We overrule Dr. Rockman’s second sub-issue in issue two.

Dismissal under the TCPA

In his first issue, Dr. Rockman contends that the trial court erred in granting 

the OBHG parties’ and Clear Lake’s motions to dismiss under the TCPA.

A. Statutory Framework & Standard of Review

The TCPA protects citizens who associate, petition, or speak on matters of 

public concern from retaliatory lawsuits that seek to intimidate or silence them. See 

id. § 27.002. That protection comes in the form of a “special motion to dismiss . . . 
24

for any suit that appears to stifle the defendant’s exercise of those rights.” Youngkin 

v. Hines, 546 S.W.3d 675, 679 (Tex. 2018) (internal quotation marks omitted).

Review of a TCPA motion to dismiss involves a three-step process. See Montelongo 

v. Abrea, 622 S.W.3d 290, 296 (Tex. 2021). In the first step, the movant must 

demonstrate that the TCPA applies. See TEX. CIV. PRAC. & REM. CODE § 27.005(b). 

To meet this burden, a movant must demonstrate that the legal action is based on or 

is in response to the movant’s exercise of one of the rights listed in section 27.005(b), 

including the right of free speech. See id. §§ 27.003(a), 27.005(b)(1)(A).

If the first step is met—that is, the movant has shown that the TCPA applies—

the burden then shifts to the non-movant under the second step to establish by “clear 

and specific evidence a prima facie case for each essential element of the claim in 

question.” Id. § 27.005(c). Under the third step—even if the non-movant satisfies 

the second step—the court will nonetheless dismiss the legal action “if the moving 

party establishes an affirmative defense or other grounds on which the moving party 

is entitled to judgment as a matter of law.” Id. § 27.005(d).

We review de novo the denial of a TCPA motion to dismiss. Holcomb v. 

Waller Cnty., 546 S.W.3d 833, 839 (Tex. App.—Houston [1st Dist.] 2018, pet. 

denied). We likewise interpret the TCPA and decide whether it applies to a legal 

action de novo. See Youngkin, 546 S.W.3d at 680. As mentioned, the TCPA provides 

that, when determining “whether a legal action is subject to or should be dismissed 
25

under this chapter, the court shall consider the pleadings, evidence a court could 

consider under Rule 166a, Texas Rules of Civil Procedure, and supporting and 

opposing affidavits stating the facts on which the liability or defense is based.” TEX.

CIV. PRAC. & REM. CODE § 27.006(a). We view the pleadings and evidence in the 

light most favorable to the nonmovant. Kassab v. Pohl, 612 S.W.3d 571, 577 (Tex. 

App.—Houston [1st Dist.] 2020, pet. denied).

B. TCPA’s Applicability

Clear Lake and the OBHG Defendants assert that the TCPA applies to Dr. 

Rockman’s defamation and business disparagement claims because the claims are 

based on or in response to Clear Lake’s and the OBHG Defendants’ exercise of their 

right of free speech. The TCPA defines the “exercise of the right of free speech” to 

mean “a communication made in connection with a matter of public concern.”7 TEX.

CIV. PRAC. & REM. CODE § 27.001(3). As applicable here, “matter of public 

concern” means “a statement or activity regarding . . . a matter of political, social, 

or other interest to the community” or “a subject of concern to the public.” Id.

§ 27.001(7)(B)–(C).

7 Communication” as defined in the TCPA includes “making or submitting of a 

statement or document in any form or medium, including oral, visual, written, 

audiovisual, or electronic.” TEX. CIV. PRAC. & REM. CODE § 27.001(1). Dr. 

Rockman does not dispute that each statement on which he bases his claims was a 

“communication.”
26

To determine the nature of a legal action and the applicability of the TCPA, 

the plaintiff-nonmovant’s pleadings are the best evidence. See Hersh v. Tatum, 526 

S.W.3d 462, 467 (Tex. 2017). In his pleadings, Dr. Rockman bases his defamation 

and business disparagement claims on two statements. 

The first statement underlying Dr. Rockman’s claims was Clear Lake’s 

statement in its verification that Dr. Rockman had been removed from its staff on 

February 5 “due to patient care issues.” Dr. Rockman alleged that the “defamatory 

and disparaging statement” was made by Clear Lake “in response to a verification 

request from Methodist Hospital or Defendant OBHG” and “was provided to 

Methodist.” He also alleged that the “negative verification information” was made 

“relating to” his application for hospital privileges at Methodist Hospital. 

The second statement was Walker’s statement in her November 22 email, sent 

to AMN and OBHG representatives, in which she conveyed that she had learned at 

a meeting with Methodist Hospital the previous day that Dr. Rockman “apparently 

has license sanctions, has had his privileges revoked and is under investigation 

currently.’’ The statement was made in connection with Dr. Rockman’s application 

to obtain privileges from Methodist to work as an ob/gyn physician at the hospital. 

In his pleadings, Dr. Rockman characterized the statement as being made “in regard 

to his professional integrity and clinical skills,” and he claimed that he was informed 

by MPLT that his hospital privileges at Methodist were not granted “due to [those] 
27

statements.” Dr. Rockman alleged that both statements “impeached his professional 

and personal skills.”

Clear Lake and the OBHG Defendants asserted that their complained-of 

statements each constituted a communication made in connection with a matter of 

public concern, namely, a physician’s provision of medical services and his 

competence and fitness to practice medicine. See TEX. CIV. PRAC. & REM. CODE

§ 27.001(3), (7)(B)–(C). Dr. Rockman contends that the statements do not qualify 

as a matter of public concern because they were not made publicly. He claims that 

Clear Lake’s statement in its verification was “intended to reach Methodist Hospital 

only.” He points out that Walker’s email statement was made only to representatives 

of OBHG Management and AMN. However, the Supreme Court of Texas has 

recognized that statements made in a private forum are covered by the TCPA, 

provided they were made in connection with a matter of public concern. See 

ExxonMobil Pipeline Co. v. Coleman, 512 S.W.3d 895, 901 (Tex. 2017). As the 

supreme court observed, “Had the Legislature intended to limit the [TCPA] to 

publicly communicated speech, it could have easily added language to that effect. In 

the absence of such limiting language, we must presume that the Legislature broadly 

included both public and private communication.” Lippincott v. Whisenhunt, 462 

S.W.3d 507, 508 (Tex. 2015).
28

“Under the TCPA, a matter of public concern could be any matter of ‘political, 

social, or other interest to the community’ or just a ‘subject of concern to the 

public.’” Oncology-Hematology Consultants v. Locke, No. 14-21-00733-CV, 2023 

WL 166309, at *4 (Tex. App.—Houston [14th Dist.] Jan. 12, 2023, no pet. h.) (mem. 

op.) (citing TEX. CIV. PRAC. & REM. CODE § 27.001(7)(B)–(C)). In Lippincott, the 

supreme court recognized that it had “previously acknowledged that the provision 

of medical services by a health care professional constitutes a matter of public 

concern.”8 462 S.W.3d at 510 (citing Neely v. Wilson, 418 S.W.3d 52, 70 nn.12 & 

8 Dr. Rockman pointed out that, since Lippincott was decided, the definition of 

“matter of public concern” was amended in the 2019 amendments to the TCPA, 

which apply here. See Act of May 17, 2019, 86th Leg., R.S., ch. 378, § 1, Tex. Gen. 

Laws 684, 685. For this reason, he suggests that Lippincott is irrelevant to the 

analysis of whether the TCPA applies to his claims. We disagree. The direct 

authority cited in Lippincott (and referenced in its text) to support its determination 

that “the provision of medical services by a health care professional constitutes a 

matter of public concern” was Neely v. Wilson, a case in which the court held that a 

news broadcast about a physician’s provision of medical services addressed a 

“matter of public concern” in the context of determining whether the fair-comment 

privilege applied to the broadcast. See Lippincott v. Whisenhunt, 462 S.W.3d 507, 

510 (Tex. 2015) (citing Neely v. Wilson, 418 S.W.3d 52, 70 nn.12 & 26 (Tex. 

2013)); see also TEX. CIV. PRAC. & REM. CODE § 73.002(b)(2) (providing that 

media publication is privileged if it is “reasonable and fair comment on or criticism 

of . . . matter of public concern published for general information”). The Lippincott

court cited the TCPA’s pre-amendment definition of “matter of public concern” but 

did so in conjunction with citing Neely as the direct authority supporting its holding. 

See Lippincott, 462 S.W.3d at 510 (citing Neely, 418 S.W.3d at 70 nn.12 & 26 as 

primary authority while citing as “see also” TEX. CIV. PRAC. & REM. CODE

§ 27.001(7)). We also recognize that our sister court has recently cited Lippincott to 

determine whether a statement about a physician in a defamation suit was a matter 

of public concern as defined in the 2019 TCPA amendments. See OncologyHematology Consultants v. Locke, No. 14-21-00733-CV, 2023 WL 166309, at *4 

(Tex. App.—Houston [14th Dist.] Jan. 12, 2023, no pet.) (mem. op.).
29

26 (Tex. 2013) (determining that public had right to know about doctor’s alleged 

inability to practice medicine due to his mental or physical condition)). The 

Lippincott court held that private email communications about a pediatric nurse 

anesthetist’s (1) failure to provide adequate coverage for pediatric cases, 

(2) administration of the wrong narcotic, (3) falsification of medical records, and 

(4) violation of the facility’s sterile protocol policy were “matters of public 

concern.” Id. at 509–10. “In keeping with Lippincott, intermediate appellate courts 

have agreed that when a health care provider engages in communications relevant to 

an employee’s ability to safely and competently provide medical services to patients, 

such communications relate to health and safety issues impacting the public and 

constitute matters of public concern.” Oncology-Hematology Consultants, 2023 WL 

166309, at *5; see, e.g., Pisharodi v. Columbia Valley Healthcare Sys., L.P., 622 

S.W.3d 74, 81–82 (Tex. App.—Corpus Christi 2020, no pet.) (holding that, when 

defendant’s communications center on plaintiff’s “ability to provide competent 

medical services,” they were matter of public concern); Batra v. Covenant Health 

Sys., 562 S.W.3d 696, 709 (Tex. App.—Amarillo 2018, pet. denied) (determining

that private communications relating to physician’s “handling of specific cases, his 

medical competence, and disciplinary action” were “matters of public concern”); 

Memorial Hermann Health Sys. v. Khalil, No. 01-16-00512-CV, 2017 WL 3389645, 

at *6 (Tex. App.—Houston [1st Dist.] Aug. 8, 2017, pet. denied) (mem. op. on reh’g) 
30

(holding that communications criticizing physician’s competence related to health 

and safety issues and were made in connection with matter of public concern).

We recognize that a health care provider’s statement about a health care 

worker will not automatically be a statement regarding a matter of public concern. 

See, e.g., U.S. Anesthesia Partners of Tex., P.A. v. Mahana, 585 S.W.3d 625, 629–

31 (Tex. App.—Dallas 2019, pet. denied) (recognizing that private communication 

about employee’s alleged positive drug test or addiction was not matter of public 

concern “merely because the employee happens to be a nurse” when 

communications “[did] not address [her] job performance or relate to whether she 

properly provided medical services to patients”). Rather, regardless of the parties’ 

business or occupation, the communication must have “some relevance to issues 

beyond the interests of the parties to be considered matters of public concern under 

the TCPA.” Clinical Pathology Labs., Inc. v. Polo, 632 S.W.3d 35, 48 (Tex. App.—

El Paso 2020, pet. denied) (internal quotation marks omitted); see Goldberg v. EMR 

(USA Holdings) Inc., 594 S.W.3d 818, 828 (Tex. App.—Dallas 2020, pet. denied) 

(stating that court must focus on communication itself to determine whether it was 

made in connection with matter of public concern or whether it was “simply a 

communication between private parties of matters of purely private concern”).

Here, focusing on Clear Lake’s and the OBHG Defendants’ complained-of 

statements reveals that neither statement was a communication regarding “purely 
31

private matters” between the parties, such as an employment dispute. Cf. Clinical 

Pathology Labs, 632 S.W.3d at 48–49 (holding that communications regarding 

phlebotomist’s absence from work and decision to terminate him were not related to 

public health concern but rather to parties’ private employment dispute). Instead, the 

complained-of statements had relevance beyond the private or pecuniary interests of 

the parties. Specifically, they were statements concerning Dr. Rockman’s 

professional competence and fitness to practice medicine—a subject matter that has 

consistently been recognized by Texas courts as a matter of public concern. See 

Lippincott, 462 S.W.3d at 510 (citing Neely, 418 S.W.3d at 70 nn.12 & 26);

Pisharodi, 622 S.W.3d at 81–82; Batra, 562 S.W.3d at 709; Khalil, 2017 WL 

3389645, at *6. 

Not only does the content of the statements show that they were matters of 

public concern, but so does the context in which the statements were made. See Saks 

& Co., LLC v. Li, 653 S.W.3d 306, 316 (Tex. App.—Houston [14th Dist.] 2022, no 

pet.) (“To determine whether speech relates to a matter of public concern, courts 

consider the content, form, and context of the speech.”). The statements were made 

during the credentialing process used to verify and assess Dr. Rockman’s 

qualifications and work history to ensure that he possessed sufficient competence to 

practice obstetrics at Methodist Hospital in San Antonio. We agree with the OBHG 

Defendants’ statement that “[t]he fitness of a physician to practice at a major 
32

metropolitan hospital is certainly a matter of interest to the community and a subject 

of concern to the public.” See TEX. CIV. PRAC. & REM. CODE § 27.001(7)(B)–(C).

Dr. Rockman also argues that the complained-of statements do not qualify as 

an exercise of Clear Lake’s or OBHG Defendants’ right of free speech because the 

statements were false. But “the truthfulness of the complained-of statements is not 

determinative of whether the TCPA applies.” QBE Americas, Inc. v. Walker, No. 

05-20-00439-CV, 2021 WL 1976459, at *5 (Tex. App.—Dallas May 18, 2021, no 

pet.) (mem. op.) (citing, inter alia, Adams v. Starside Custom Builders, LLC, 547 

S.W.3d 890, 897 (Tex. 2018)); see Garton v. Shiloh Vill. Partners, LLC, No. 12-16-

00286-CV, 2017 WL 6884451, at *3 (Tex. App.—Tyler Aug. 23, 2017, no pet.) 

(mem. op.) (explaining that movant had no burden to substantiate truth of her 

communications as part of initial TCPA burden).

Dr. Rockman further contends that his claims against Clear Lake are exempt

from the TCPA’s application. He cites the TCPA provision exempting “a legal 

action in which a moving party raises a defense” pursuant to certain federal and state 

statutes that provide immunity from liability for medical peer review and committee 

activities. See TEX. R. CIV. P. § 27.010(a)(8) (providing that TCPA does not apply 

to “a legal action in which a moving party raises a defense pursuant to Section 

160.010, Occupations Code, Section 161.033, Health and Safety Code, or the Health 

Care Quality Improvement Act of 1986 (42 U.S.C. 11101 et seq.”)). In his brief, Dr. 
33

Rockman claims that, “in response to [his] pre-suit depositions and discovery 

requests, Clear Lake claimed the medical committee privilege to successfully avoid 

discovery in this case.”

As the party asserting the TCPA exemption, Dr. Rockman bore the burden of 

establishing the applicability of the exemption to his suit. Sullo v. Kubosh, 616 

S.W.3d 869, 886 (Tex. App.—Houston [1st Dist.] 2020, no pet.). To show that his 

claims against Clear Lake are exempt, Dr. Rockman points to a document—

purportedly from the separately filed Rule 202 proceeding—attached to his brief.

However, he does not point to where the document appears in the appellate record, 

nor can we locate it in the record. Because we may not consider attachments not in

the record, we do not consider the attached document. See Holland v. Mem’l 

Hermann Health Sys., No. 01-14-00283-CV, 2015 WL 7455328, at *3 (Tex. App.—

Houston [1st Dist.] Nov. 24, 2015, no pet.) (mem. op.). 

We also note that, in his response to the TCPA motions, Dr. Rockman 

acknowledged that “Clear Lake withdrew the defense of immunity under the medical 

committee [privilege that] it initially asserted in its 202 [pre-suit] petition.” From 

our review of the record, the only reference that Clear Lake made to the privilege 

was at the hearing on Dr. Rockman’s motion to depose Clear Lake’s representative. 

There, with respect to discovery, Clear Lake mentioned that “there are privileges, 

especially in the credentialing area” relating to “communications that [Clear Lake] 
34

had with Methodist.” Clear Lake indicated that, to avoid a dispute involving 

Methodist’s claim of privilege, Clear Lake had agreed to stipulate that it made the 

complained-of statement in its verification. But the record does not show, as Dr. 

Rockman claims, that Clear Lake affirmatively invoked the privilege.

Clear Lake also points out that the statutory provisions referenced in section 

27.010(a)(8) pertain to peer review and committee privileges against liability, not 

against discovery. Defenses against discovery for medical peer review and 

committee privileges are contained in different statutory provisions than those 

referenced in TCPA section 27.010(a)(8). See TEX. OCC. CODE § 160.007(a)

(medical peer review privilege); TEX. HEALTH & SAFETY CODE § 161.032 (medical 

committee privilege). In short, Dr. Rockman did not meet his burden to show that 

his claims were exempted from the TCPA because Clear Lake raised the affirmative 

defense of medical peer review or committee privilege under the statutory provisions 

listed in the TCPA. See TEX. R. CIV. P. § 27.010(a)(8).

Dr. Rockman also asserts two additional grounds for exemption under the 

TCPA. First, he contends that, if he was removed from Clear Lake’s staff due to 

patient care issues, state and federal law required Clear Lake to engage in the medical 

peer review process before it withdrew his locum tenens privileges. He argues that, 

because it did not engage in the peer-review process, Clear Lake should not be

permitted to use the TCPA to obtain dismissal of his claims and that his claims 
35

should be exempt from the TCPA for that reason. Second, Dr. Rockman argues that

his claims should be exempt from the TCPA because the defendants asserted the 

affirmative defense of common-law qualified privilege. 

The TCPA does not provide either of the grounds cited by Dr. Rockman as a 

basis to exempt claims from the TCPA’s application. See id. § 27.010(a) (listing 

types of legal actions exempted from TCPA). Courts must enforce statutory 

requirements as written and “cannot add equitable or practical exceptions . . . that 

the legislature did not see fit to enact.” In re Geomet Recycling LLC, 578 S.W.3d 82, 

87 (Tex. 2019) (orig. proceeding). Accordingly, the final two grounds cited by Dr. 

Rockman do not serve as a basis to exempt his claims from the TCPA.

After reviewing the record, we conclude that Dr. Rockman’s claims are not 

exempt under the TCPA. And, as discussed, we conclude that the complained-of 

communications concerning Dr. Rockman’s professional competency, which were 

conveyed in the context of determining whether he was fit to practice obstetrics at 

Methodist Hospital in San Antonio, were made in connection with matters of public 

concern because they each contained statements regarding “a matter of . . . interest 

to the community” and “a subject of concern to the public.” See TEX. CIV. PRAC. &

REM. CODE § 27.001(7)(B)–(C). The defendants were therefore exercising their

“right[s] of free speech,” as defined by the TCPA, when they made the complainedof communications, and Dr. Rockman filed his legal action against them based on 
36

or in response to those communications. See id. §§ 27.001(3), (7), 27.003(a).9 As a 

result, Clear Lake and the OBHG Defendants were entitled to file a motion to dismiss

Dr. Rockman’s defamation and business disparagement causes of action under the 

TCPA. See id. § 27.003(a) (“If a legal action is based on or is in response to a party’s 

exercise of the right of free speech. . . that party may file a motion to dismiss the 

legal action.”).

Because Clear Lake and the OBHG Defendants carried their burden under the 

first step to show that the TCPA applied, Dr. Rockman was required, under the 

second step, to establish “by clear and specific evidence a prima facie case for each 

essential element” of his claims. Id. § 27.005(c). But, even if Dr. Rockman met that

burden, the trial court was required to dismiss his claims if Clear Lake and the 

OBHG Defendants established a valid defense as a matter of law. See id. 

§ 27.005(d).

C. Defamation Claims

Because, as explained below, we conclude that Clear Lake and the OBHG 

Defendants each established an affirmative defense to Dr. Rockman’s defamation 

claim as a matter of law, we need not determine whether Dr. Rockman established a 

9 Because we have determined that the OBHG Defendants were exercising their freespeech rights, we need not determine whether they were also exercising their right 

of association. See TEX. CIV. PRAC. & REM. CODE § 27.005(b); Drerup v. 

McQuilling, No. 01-20-00844-CV, 2021 WL 3555727, at *7 n.4 (Tex. App.—

Houston [1st Dist.] Aug. 12, 2021, pet. denied) (mem. op.).
37

prima facie case for each element of that claim. See Sinkin & Barretto, P.L.L.C. v. 

Cohesion Props., Ltd., No. 04-20-00106-CV, 2021 WL 1649525, at *5 (Tex. App.—

San Antonio Apr. 28, 2021, no pet.) (mem. op.) (“[B]ecause we ultimately conclude 

that S&B established affirmative defenses as to each of Cohesion’s counterclaims, 

we need not address [the prima facie] step in the TCPA analysis.”); Choctaw Constr. 

Servs. LLC v. Rail-Life R.R. Servs., LLC, 617 S.W.3d 143, 151 (Tex. App.—Houston 

[1st Dist.] 2020, no pet.) (determining that defendant-movant established affirmative 

defense after assuming, without deciding, that TCPA non-movant had met its burden 

of establishing prima facie case).

When determining whether the third step has been met, at least three of our 

sister courts have applied a standard of review “essentially equivalent to a motion 

for summary judgment on an affirmative defense.”10 Batra, 562 S.W.3d at 708; see 

Zidan v. Zidan, No. 05-20-00786-CV, 2022 WL 17335693, at *5 (Tex. App.—

Dallas Nov. 30, 2022, no pet.) (mem. op.); Rosales v. Comm’n for Lawyer 

Discipline, No. 03-18-00725-CV, 2020 WL 1934815, at *4 (Tex. App.—Austin 

Apr. 22, 2020, no pet.) (mem. op.). A defendant moving for summary judgment on 

an affirmative defense has the burden to conclusively establish every element of that 

10 While the 2019 amendments to the TCPA did not apply in Batra and Rosales, that

distinction is meaningless given section 27.005(d)’s “matter of law” phrasing

resulting from those amendments. Zidan v. Zidan, No. 05-20-00786-CV, 2022 WL 

17335693, at *5 (Tex. App.—Dallas Nov. 30, 2022, no pet.) (mem. op.).
38

defense. See Draughon v. Johnson, 631 S.W.3d 81, 88 (Tex. 2021). A matter is 

conclusively established—that is, established as a matter of law—if reasonable 

jurors could not differ as to the conclusion to be drawn from the evidence. See City 

of Keller v. Wilson, 168 S.W.3d 802, 815–16 (Tex. 2005); see United Servs. Auto. 

Ass’n v. Hayes, 507 S.W.3d 263, 282 (Tex. App.—Houston [1st Dist.] 2016, pet. 

granted, judgm’t vacated w.r.m.) (“A proposition is established as a matter of law 

when a reasonable fact finder can draw only one conclusion from the evidence 

presented.”).

1. Substantial-Truth Defense

Clear Lake asserted that Dr. Rockman’s defamation claim should be 

dismissed because it established the affirmative defense of substantial truth.11 We 

note that, at the end of the TCPA hearing, the trial court found that Clear Lake had 

proven its “affirmative defense of truth,” entitling it to dismissal of Dr. Rockman’s 

defamation claim. 

11 Dr. Rockman contends that, if a nonmovant-plaintiff meets his TCPA burden to 

provide prima facie evidence of the falsity element of his defamation claim, then 

the defendant-movant cannot obtain dismissal of the claim by establishing the 

affirmative defense of truth. However, Dr. Rockman’s assertion is contrary to our 

holding in ProPublica, Inc. v. Frazier in which we determined that the substantialtruth defense may be proved by a defendant even after a plaintiff has made a prima 

facie showing of all elements, including falsity. No. 01-19-00009-CV, 2020 WL 

370563, at *6 (Tex. App.—Houston [1st Dist.] Jan. 23, 2020, pet. denied) (mem. 

op.). We held that the trial court had erred by not affording the defendant an

opportunity to establish the substantial-truth defense after the plaintiff had proven 

his prima facie case for defamation. See id. at *7.
39

“Truth is a complete defense to defamation.” Randall’s Food Mkts., Inc. v. 

Johnson, 891 S.W.2d 640, 646 (Tex. 1995); see TEX. CIV. PRAC. & REM. CODE

§ 73.005(a) (“The truth of the statement in the publication on which an action for 

libel is based is a defense to the action.”). The complained-of statement need not be 

true in every detail, but a defendant must show the substantial truth of the statement 

to establish the defense. McIlvain v. Jacobs, 794 S.W.2d 14, 15–16 (Tex. 1990); see 

KBMT Operating Co. v. Toledo, 492 S.W.3d 710, 714 (Tex. 2016) (“A statement 

need not be perfectly true; as long as it is substantially true, it is not false.”). The test 

for substantial truth is “whether the alleged defamatory statement was more 

damaging to [the plaintiff’s] reputation, in the mind of the average listener, than a 

truthful statement would have been.” McIlvain, 794 S.W.2d at 16. In other words, 

“the substantial truth doctrine precludes liability for a publication that correctly 

conveys a story’s ‘gist’ or ‘sting’ although erring in the details.” Turner v. KTRK 

Television, Inc., 38 S.W.3d 103, 115 (Tex. 2000). We note that the term “gist” means 

“the main point or part” or “essence.” Reedy v. Webb, 113 S.W.3d 19, 24 (Tex. 

App.—Tyler 2002, pet. denied) (citing WEBSTER’S COLLEGIATE DICTIONARY 493 

(10th ed. 1993)).

Here, because Clear Lake conclusively showed that the statement correctly 

conveyed the gist of the circumstances surrounding Dr. Rockman’s removal, Clear 

Lake established, as a matter of law, that its statement that Dr. Rockman “was 
40

removed from staff on 2/5/2019 due to patient care issues” was substantially true. 

To establish its substantial truth defense, Clear Lake relied on Dr. Rockman’s 

pleadings, his affidavit attached to his pleadings, and documents appended to his 

affidavit. The referenced pleadings and evidence showed that, on February 2, 2019, 

doctor Dr. Rockman assisted a Clear Lake physician in a cesarean section delivery 

that ended in a stillbirth. The next day, Dr. Gilpin of Mednax—Dr. Rockman’s 

employer—called Dr. Rockman about the stillborn delivery, and they “reviewed the 

clinical history and outcome.” At Dr. Gilpin’s request, Dr. Rockman “reviewed the 

case with [Mednax’s] attorney.” A few days later, Mednax’s operations director told 

Dr. Rockman that he was being placed on paid administrative leave. 

Dr. Rockman then received a letter from Todd Caliva, Clear Lake’s CEO. 

Caliva conveyed that he had notified Mednax on February 7 that he was exercising

his discretion under the professional services agreement between Clear Lake and 

Mednax “to no longer accept” Mednax’s use of Dr. Rockman at the hospital. Citing 

a provision in the hospital’s medical staff bylaws, Caliva stated that his decision not 

to accept Mednax’s continued use of Dr. Rockman was “an administrative action 

and [did] not entitle [Dr. Rockman] to a hearing or appeal.” He also informed Dr. 

Rockman that the “action [was] not reportable to the National Practitioner Data Bank 

or Texas Medical Board.” Caliva stated that Dr. Rockman held “locum tenens

privileges to provide services at [Clear Lake] through [his] affiliation” with his 
41

employer, Mednax. He explained that, because Mednax could “no longer use [him]

as a representative at [Clear Lake],” Dr. Rockman was “unable to exercise his locum 

tenens privileges at the Hospital.” After receiving Caliva’s letter, Dr. Rockman was 

removed from on-call schedules at Clear Lake. 

In May 2019, Dr. Gilpin called Dr. Rockman “indicating [that his] ‘case’ had 

been discussed at the highest corporate levels” and that “an assessment of [Dr. 

Rockman’s] health, competency and cognitive skills” was recommended. Mednax 

continued to pay Dr. Rockman for several months until September 12, 2019, when 

Dr. Rockman accepted Mednax’s offer for him to resign. 

On September 24, 2019, Dowe-Royal emailed Dr. Rockman to inform him 

that Clear Lake had stated in its verification that he had been removed from its staff 

on February 5 “due to patient care issues.” Dowe-Royal asked Dr. Rockman to 

explain the circumstances of the removal. 

About an hour later, Dr. Rockman responded to Dowe-Royal’s email. In his 

response, Dr. Rockman discussed the stillborn delivery that had occurred on 

February 2, 2019. He stated that the delivery had been by cesarean section and that 

he had assisted Clear Lake’s staff doctor who had performed the procedure. He 

claimed that Clear Lake had ended its relationship with him to protect their doctor 

from criticism by shifting the blame for the stillborn delivery to him. 
42

Given the forgoing evidence obtained from Dr. Rockman’s pleadings, his 

affidavit, and the documents appended to his affidavit, we agree with Clear Lake 

that it conclusively established that its statement that Dr. Rockman was removed 

from its staff due to patient care issues was substantially true.

Dr. Rockman argues that the evidence cited by Clear Lake does not establish 

the truth of its statement because he was not expressly told why he was removed. 

However, the evidence relied on by Clear Lake showed that, when Dowe-Royal 

asked him to comment on Clear Lake’s reason for his removal, Dr. Rockman’s

immediate response was to discuss the stillborn delivery and to claim that Clear Lake 

was shifting the blame for the stillborn delivery to him. In other words, Dr. Rockman 

appeared to know why he was removed from staff when asked to explain Clear 

Lake’s statement. 

Dr. Rockman also points out that Caliva’s letter stated that Clear Lake’s 

decision not to accept Mednax’s use of Dr. Rockman was an “administrative action” 

under the hospital’s bylaws. He contends this indicated that he was not removed for 

patient care issues. The reference to “administrative action” immediately followed 

Caliva’s statement that, under the professional services agreement with Mednax, 

Caliva was exercising his discretion as Clear Lake’s CEO not to use Dr. Rockman

any further. The parties do not dispute that, under the agreement, Clear Lake had the 

right to discontinue Mednax’s use of Dr. Rockman for any reason, including for 
43

patient care reasons, or, as his attorney stated at the TCPA hearing, “if they [didn’t] 

like Dr. Rockman’s tie.” Thus, when read in context, the reference to “administration 

action” did not indicate the specific reason for Clear Lake’s decision to discontinue 

use of Dr. Rockman. Instead, it referenced the process by which Dr. Rockman was 

removed. 

Dr. Rockman also points out that Caliva indicated in his letter that his decision 

not to permit Mednax’s further use of Dr. Rockman did not trigger the medical peer 

review process or the duty to report the decision to the Texas Medical Board (Board) 

or the National Practitioner Data Bank (NPDB). Dr. Rockman asserts that, if Clear 

Lake had removed him from staff for patient care issues, as stated in its verification, 

then federal and state law required Clear Lake to engage in the medical peer review 

process and to report any findings of the peer review committee to the Board and to 

the NPDB. Similarly, Dr. Rockman contends that Clear Lake’s “withdrawal” of his 

locum tenens privileges was subject to the peer review and reporting requirements. 

He reasons that Caliva’s letter stating that neither the peer review nor the reporting 

requirements applied to the situation showed that his removal had not been for 

patient care issues. But, to infer that Dr. Rockman was not removed for patient care 

issues based on Caliva’s statement that the peer review and reporting requirements 

did not apply would first require us to infer that Clear Lake would have engaged in 

peer review and reporting if Dr. Rockman’s removal was for patient care issues. 
44

Stated differently, before we could infer that Caliva’s statements meant that Dr. 

Rockman was not removed for patient care issues, we would first need to infer that 

Clear Lake believed that, even under the contractual relationship it had with Dr. 

Rockman and his employer, it was required to engage in the peer review and 

reporting requirements if Dr. Rockman was removed for patient care issues. While 

we indulge reasonable inferences in Dr. Rockman’s favor, reaching the conclusion 

urged by Dr. Rockman would require us to impermissibly stack one inference upon 

another. See Zavala v. Burlington N. Santa Fe Corp., 355 S.W.3d 359, 373 (Tex. 

App.—El Paso 2011, no pet.) (“Stacking inferences is insufficient to create a fact 

issue precluding summary judgment.”).

Moreover, the record does not support an inference that Clear Lake believed 

it was required to engage in the peer review process or abide by the reporting 

requirements if it discontinued Mednax’s use of Dr. Rockman for patient care issues.

To the contrary, it is not disputed that Clear Lake’s position was that the peer review 

and reporting requirements did not apply because Dr. Rockman did not obtain his 

locus tenens privileges to practice at Clear Lake directly from the hospital but had 

obtained them through Mednax, which had a professional services agreement with 

Clear Lake allowing it to discontinue Mednax’s use of Dr. Rockman for any reason. 

On appeal, Dr. Rockman asserts that “[t]he duty to report to the NPDB and the Board 

may not be nullified by contract.” But the question of whether state and federal law 
45

required Clear Lake to abide by the peer review and reporting requirements if it 

removed Dr. Rockman for patient care issues is a separate question from the question 

of whether Clear Lake actually removed him for patient care issues.

We conclude that Clear Lake proved, as a matter of law, its affirmative 

defense of substantial truth. We hold that the trial court properly dismissed Dr. 

Rockman’s defamation claim against Clear Lake.

2. Qualified-Privilege Defense

The OBHG Defendants argued that Dr. Rockman’s defamation claim should 

be dismissed against them because they had established the affirmative defense of 

common-law qualified privilege. See Burbage v. Burbage, 447 S.W.3d 249, 254 

(Tex. 2014) (recognizing that qualified privilege “operates as an affirmative defense

in the nature of confession and avoidance”). Qualified privilege attaches to a 

communication made in good faith between people with an interest sufficiently 

affected by the communication. See id. (citing Cain v. Hearst Corp., 878 S.W.2d 

577, 582 (Tex. 1994)). The privilege “may be proven through several factual 

scenarios.” Durant v. Anderson, No. 02-14-00283-CV, 2020 WL 1295058, at *25 

(Tex. App.—Fort Worth Mar. 19, 2020, pet. denied) (mem. op.). For instance, the 

privilege may apply to a good-faith communication “between people having a 

common business interest in employment-related matters or in reference to matters 

that the speaker has a duty to communicate to the other.” Id. This Court has 
46

recognized that “[a] qualified privilege attaches to statements made under 

circumstances in which any one of several persons having a common interest in a 

particular subject matter may reasonably believe that facts exist that another, sharing 

that common interest, is entitled to know.” Holloway v. Tex. Med. Ass’n, 757 S.W.2d 

810, 813 (Tex. App.—Houston [1st Dist.] 1988, writ denied); see Saudi v. Brieven, 

176 S.W.3d 108, 118 (Tex. App.—Houston [1st Dist.] 2004, pet. denied) (stating 

qualified privilege may be shown when statement made “in good faith on a subject 

matter in which the speaker has a common interest with the other person”); see also 

Steinhaus v. Beachside Envtl., LLC, 590 S.W.3d 672, 677 (Tex. App.—Houston 

[14th Dist.] 2019, pet. denied) (listing circumstances that may give rise to qualified 

privilege, including when publisher holds “a belief that a person sharing a common 

interest in the published information is entitled to know that information”). 

Qualified privilege is defeated if the defendant made the statement with actual 

malice. See Randall’s Food Mkts., 891 S.W.2d at 646. Because they were seeking 

dismissal under the TCPA, the OBHG Defendants had the burden to prove the 

defense of qualified privilege as a matter of law, including an absence of actual 

malice. See Zidan, 2022 WL 17335693, at *12 (concluding that, as part of burden to 

prove affirmative defense of qualified privilege as matter of law, TCPA movant must 

prove lack of malice); see also Tindall v. Kahlig Auto Grp. Mgmt. LLC, No. 04-21-

00368-CV, 2022 WL 16952890, at *2 (Tex. App.—San Antonio Nov. 16, 2022, no 
47

pet.) (mem. op.) (recognizing that, if defendant establishes qualified privilege at trial, 

burden shifts to plaintiff to prove defendant made statements with actual malice, but, 

in context of summary-judgment proceeding, defendant must establish that 

statement was made without malice).

In their TCPA motion, the OBHG Defendants claimed that the defense of 

qualified privilege protected them from liability for Walker’s statement in her 

November 22 email. They argued that the privilege applied because Walker’s 

statement “was a communication furthering the common interest of the OBHG 

Defendants and the recipients [of the email] at AMN Healthcare.” They offered the 

email and Walker’s affidavit in support of their qualified-privilege defense.

12

In her affidavit, Walker testified that she was OBHG Management’s Director 

of Hospital Operations. She stated that OBHG Management assists “medical entities, 

such as those that employ physicians who work as ob/gyn hospitalists.” OBHG 

Management’s services include “providing assistance in locating suitable ob/gyn

physicians” to work as hospitalists and “checking to ensure those physicians have 

the requisite qualifications to practice in the particular hospital.” To perform these 

services, OBHG Management subcontracts with other companies, such as AMN.

12 Walker’s original affidavit offered in support of the OBHG Defendants’ TCPA 

motion was amended to clarify certain facts. When we refer to Walker’s affidavit, 

we refer to her amended affidavit. 
48

Walker stated that, “[b]eginning in the late summer of 2019, [she] was 

involved in administration of efforts to fulfill staffing needs of Methodist Hospital 

in San Antonio.” OBHG Management was tasked with assisting in the review of 

potential physicians and in checking to ensure that they obtained the appropriate 

credentials to practice at Methodist. Walker testified that her “role [was] of a general 

administrator; [she did] not typically interact directly with physicians or become 

involved in the substance of credentialing decisions or the credentialing process.” 

As part of her role, Walker “participated in weekly conference calls with 

representatives from Methodist Hospital to update the status of efforts to obtain 

privileges for candidates to work as ob/gyn hospitalist physicians at the hospital.”

Walker explained that Dr. Rockman “was identified as a potential candidate 

to become an ob/gyn hospitalist at Methodist Hospital.” However, “[t]hrough the 

late summer and fall of 2019, it became apparent that the credentialing process for 

Dr. Rockman was taking longer than expected,” and “his projected start date had to 

be delayed.” 

Walker received an email from Ledia Cano, Medical Staff Services Manager 

for Methodist Healthcare. In the email, which was attached to Walker’s affidavit, 

Cano “indicated that Dr. Rockman’s ‘credential file [would] not be presented’ to 

Methodist that month because the ‘file requires additional review.’” Cano further 

indicated that “Methodist [would] aim for November review” of Dr. Rockman’s 
49

credential file with “[a] final outcome [of the review] on November 21,” the day of 

the weekly conference call between OBHG Management and Methodist.

Walker testified that she attended the November 21 teleconference between 

Methodist and OBHG Management. During the teleconference, “one or more 

Methodist Hospital representatives informed [OBHG Management] that the hospital 

would not grant privileges to Dr. Rockman.” Walker attested that, during the call,

Methodist representatives told her the information that she later conveyed in her 

November 22 email: that Dr. Rockman had license sanctions, has had privileges 

revoked, and was currently under investigation. She stated that it was “possible that 

some of these statements were made to [her] in a follow-up conversation” with two 

of Methodist representatives that same day. But Walker testified that she was 

“certain . . . that these statements were made directly to me by Methodist Hospital 

representatives on November 21, 2019.”

On the afternoon of November 21, Walker received an email from Taj Castle, 

a Methodist employee. In the email—which is attached to Walker’s affidavit—

Castle explained that Dr. Rockman’s status was “up in the air” and that Methodist 

was “likely cancelling his credentials.”

Walker explained in her affidavit that she had sent her November 22 email to

four OBHG Management representatives and to three AMN representatives,

“recounting what [she] had been told by Methodist Hospital representatives.” 
50

Walker attested that she sent the email to AMN Healthcare representatives “to 

inform them of Methodist Hospital’s decision to not issue privileges to Dr. Rockman 

so his application could be withdrawn, so he would not have a denial of privileges 

on his record.”

In sum, the record shows that Walker shared the information relating to Dr. 

Rockman’s professional competency with OBHG Management and AMN 

representatives because they were working together toward a common goal of 

providing suitable physicians to meet Methodist Hospital’s ob/gyn staffing needs. 

Accomplishing that common goal would naturally entail not only communicating 

with the other representatives about the physician’s credentialling status but would 

also entail sharing information about the physician’s professional competency, 

including whether he had license sanctions, privileges revoked, or was currently 

under investigation. The record indicates that sharing that information was necessary 

to ensure that OBHG Management and AMN met their joint goal of offering only 

qualified ob/gyn physicians to Methodist. And it indicates that Walker shared the 

information so that the email recipients would know how to proceed with Dr.

Rockman’s application. Thus, the OBHG Defendants met their burden of showing, 

as a matter of law, that the common-interest qualified privilege applied to Walker’s 

complained-of statement in her email. See Saudi, 176 S.W.3d at 118 (concluding 

that common-interest qualified privilege applied to defamatory statements made 
51

during meeting and phone call between representatives of three companies because 

there was “[an] interlocking business relationship” among them). 

We must next consider whether the OBHG Defendants’ evidence established 

that Walker’s statement was made without actual malice. See Randall’s Food Mkts., 

891 S.W.2d at 646. “Actual malice” means that the statement was made with 

knowledge of its falsity or with reckless disregard for its truth. In re Lipsky, 460 

S.W.3d 579, 593 (Tex. 2015) (original proceeding). Reckless disregard exists when 

“the defendant in fact entertained serious doubts as to the truth of his publication” 

or had a “high degree of awareness of [its] probable falsity.” Bentley v. Bunton, 94 

S.W.3d 561, 591 (Tex. 2002). “A defendant can negate actual malice as a matter of 

law by presenting evidence that she did not publish the statement with knowledge of 

its falsity or reckless disregard for its truth.” Hardy v. Commc’n Workers of Am., 

Inc., No. 05-19-01388-CV, 2021 WL 5860922, at *5 (Tex. App.—Dallas Dec. 10, 

2021, pet. denied) (mem. op.) (citing Huckabee v. Time Warner Entm’t Co., 19 

S.W.3d 413, 420 (Tex. 2000)). 

Dr. Rockman correctly points out that the Supreme Court of Texas has 

indicated that proof of actual malice is not alone defeated by a defendant’s selfserving protestation of sincerity. See Bentley, 94 S.W.3d at 597. Rather, to negate 

actual malice, an affidavit from an interested witness, such as Walker, “must 
52

establish the defendant’s belief in the challenged statements’ truth and provide a 

plausible basis for this belief.” Huckabee, 19 S.W.3d at 424.

In her affidavit, Walker testified that, as OBHG Management’s Director of 

Hospital Operations, she was “involved in administration of efforts to fulfill staffing 

needs of Methodist Hospital in San Antonio.” As part of her job, she “participated

in weekly conference calls with representatives from Methodist Hospital to update 

the status of efforts to obtain privileges for candidates to work.” It was either during 

the weekly teleconference with Methodist, or in a follow-up conversation with two 

Methodist representatives that same day, that she learned that Dr. Rockman had 

license sanctions, had privileges revoked, and was under investigation. Walker 

testified that she was told that information “by [Methodist representatives] 

Kassandra Meadows and/or Ledia Cano.” She identified Meadows as “VP of 

Nursing” and Cano as “Medical Staff Services Manager.” Her affidavit and an email 

attached to it also showed that Walker received an email that same day from another 

Methodist representative, Taj Castle, indicating that Dr. Rockman would likely not 

receive credentials to practice there.

Walker testified that she “had no actual doubts about the truth of the 

information that was provided to [her at the meeting] and that [she] conveyed” to the 

OBHG Management and AMN representatives in her email the next day. She 
53

testified that she “had no reason to doubt the information’s truthfulness” and that 

“[t]he information was provided to [her] by sources [she] considered to be reliable.”

In short, Walker’s affidavit (1) established her belief in the challenged 

statements’ truth and (2) provided a plausible basis for that belief. See id. The OBHG 

Defendants also offered (1) Cano’s email indicating that there were delays with Dr. 

Rockman’s credentialing because the hospital was gathering additional information 

and (2) Castle’s email in which she indicated that Dr. Rockman credentialing was 

“up in the air” and that Methodist Hospital was “likely cancelling his credentials.” 

Thus, the OBHG Defendants sufficiently negated actual malice. See WFAA-TV, Inc. 

v. McLemore, 978 S.W.2d 568, 574 (Tex. 1998).

In his TCPA response, Dr. Rockman cited evidence that he claimed 

controverted Walker’s affidavit testimony. Among that evidence was the letter from 

Methodist’s counsel contained in Exhibit B-1 and an email from AMN’s attorney

contained in Exhibit B-2. As discussed, the trial court sustained the OBHG 

Defendants’ objections to the letter and to the email, and we have overruled Dr. 

Rockman’s challenge to the trial court’s ruling. By sustaining the objections to 

Exhibits B-1 and B-2, the trial court in effect struck the exhibits, see Saudi, 176 

S.W.3d at 112, and we may not consider evidence struck from the record, see 

Hudson v. Mem’l Hosp. Sys., No. 01-19-00300-CV, 2021 WL 1414283, at *10 (Tex. 

App.—Houston [1st Dist.] Apr. 15, 2021, no pet.) (mem. op.) (“When reviewing 
54

whether a summary judgment was properly granted, we may not consider evidence 

struck from the record because that evidence is not a part of the summary-judgment 

record considered by the trial court.”).

Dr. Rockman also pointed to the October 2019 letter from MPLT, which listed

the dates that he was scheduled to work at Methodist Hospital, starting in December 

2019. He asserts that the letter showed that the OBHG Defendants had already 

determined that he was suitable to work at Methodist, and thus, Walker should have 

known that the information she learned from Methodist was false. However, Dr. 

Rockman offered no evidence to show MPLT’s statements in its letter were

attributable to the OBHG Defendants. Nor did he show that the OBHG Defendants 

had engaged in a review process of his credentials at that point or had been provided 

information about his credentials. And, more specifically, his evidence did not show 

that Walker was aware of her statement’s falsity. In addition, the October 2019 letter 

stated that Dr. Rockman’s “[s]tart date and assignment [were] contingent upon 

credentialing,” indicating that his fitness and suitability were still under review. 

Dr. Rockman further asserted that it was Walker’s job to determine whether 

he was suitable to work at Methodist and that she should have known that the 

information she received from Methodist was false. He asserted that, if she had 

inquired with the Board and the NPDB, she would have learned that he had no 

license sanctions or privilege revocations. But Dr. Rockman offered no evidence to 
55

show that it was Walker’s job to investigate his suitability. To the contrary, Walker 

testified that her “role [was] of a general administrator” and that she did not “become 

involved in the substance of credentialing decisions or the credentialing process.” 

We note that “the mere failure to investigate the facts, by itself, is no evidence of 

actual malice.” Bentley, 94 S.W.3d at 595; see Akin v. Santa Clara Land Co., 34 

S.W.3d 334, 341–42 (Tex. App.—San Antonio 2000, pet. denied) (“Negligence, 

failure to investigate the truth or falsity of the statements prior to publication, or 

failure to act as a reasonable prudent person is insufficient to support a finding of 

malice.”).

Finally, Dr. Rockman asserts that he provided reports from the Board and the 

NPDB to the OBHG Defendants reflecting that he had no license sanctions. To 

support this assertion, Dr. Rockman points to two emails in the record. He cites an 

email from MPLT to a general OBHG email address (and to other named recipients)

that discusses Walker’s November 22 email, but MPLT’s email does not indicate 

that the OBHG Defendants, and more particularly Walker, were provided with 

information from the Board or the NPDB before Walker sent the email. Dr. Rockman 

also cites an October 2019 email between MPLT and AMN, indicating that 

Methodist was delaying a credentialling decision on Dr. Rockman’s file for 

additional review, but the email provided no indication that reports from the Board 

or the NPDB had been sent to the OBHG Defendants. In other words, Dr. Rockman 
56

offered no evidence that controverted the OBHG Defendants’ evidence 

demonstrating that Walker acted without actual malice.

We conclude that, with respect to Dr. Rockman’s defamation claim, the 

OBHG Defendants proved, as a matter of law, their affirmative defense of qualified 

privilege and that Walker did not act with actual malice. We hold that the trial court 

properly dismissed Dr. Rockman’s defamation claim against the OBHG Defendants.

D. Business Disparagement Claims

Next, we turn to Dr. Rockman’s business disparagement claims to determine 

whether he met his TCPA burden to establish by “clear and specific evidence a prima 

facie case for each essential element” of those claims. See TEX. CIV. PRAC. & REM.

CODE § 27.005(c). A “prima facie case” refers to evidence that is “sufficient as a 

matter of law to establish a given fact if it is not rebutted or contradicted.” Landry’s, 

Inc. v. Animal Legal Def. Fund, 631 S.W.3d 40, 54 (Tex. 2021). It is “the minimum 

quantum of evidence necessary to support a rational inference that the allegation of 

fact is true.” Id. (internal quotation marks omitted). Evidence of a prima facie case 

must be clear and specific to avoid dismissal, meaning that a “plaintiff must provide 

enough detail to show the factual basis for its claim.” Id.

1. The OBHG Defendants: No Clear and Specific Evidence of Malice

To meet his TCPA burden for his business disparagement claim against the 

OBHG Defendants, Dr. Rockman was required to offer clear and specific evidence 
57

that (1) the OBHG Defendants published false and disparaging information about 

him, (2) with malice, (3) without privilege, and (4) that resulted in special damages 

to him. Lipsky, 460 S.W.3d at 592; ADB Int., LLC v. Wallace, 606 S.W.3d 413, 435 

(Tex. App.—Houston [1st Dist.] 2020, pet. denied). The malice element of a 

business disparagement claim may be proven by evidence that the defendant made 

a statement with knowledge of its falsity, reckless disregard, ill will, or intent to 

interfere with the economic interest of the plaintiff. Hurlbut v. Gulf Atl. Life Ins. Co., 

749 S.W.2d 762, 766 (Tex. 1987). 

As discussed in the preceding section, the evidence that Dr. Rockman relied 

on to show that Walker made the complained-ofstatement in her November 22 email 

with knowledge of falsity or with reckless disregard for the falsity of the statement

did not controvert the OBHG Defendants’ evidence establishing no actual malice. 

As to ill will and intent to interfere with his economic interests, Dr. Rockman does 

not cite to any evidence, and we have found no evidence in our independent review 

of the record, supporting an inference that Walker had ill will toward him or intended 

to interfere with his economic interests by making the complained-of statement to 

the representatives of OBHG Management and AMN. See Robert B. James, DDS, 

Inc. v. Elkins, 553 S.W.3d 596, 613 (Tex. App.—San Antonio 2018, pet. denied).

We conclude that Dr. Rockman did not produce clear and specific evidence 

to establish a prima facie case for the malice element of his business disparagement 
58

claim against the OBHG Defendants. See TEX. CIV. PRAC. & REM. CODE

§ 27.005(c). Therefore, we hold that the trial court properly dismissed that claim.

2. Clear Lake: No Clear and Specific Evidence of Special Damages

In the context of business disparagement, special damages “are economic 

damages such as for lost income.” Waste Mgmt. of Texas, Inc. v. Texas Disposal Sys. 

Landfill, 434 S.W.3d 142, 155 (Tex. 2014). To meet his TCPA burden against Clear 

Lake, Dr. Rockman was required to offer clear and specific evidence that Clear 

Lake’s statement about patient care issues resulted in special damages to him. 

In his pleadings, Dr. Rockman alleged that, “[a]s a direct and proximate result 

of Defendants’ publication of the defamatory and disparaging statements, [his] 

employment was terminated by Clear Lake on February 7, 2019.” In his TCPA 

response, he pointed to his affidavit testimony in which he stated that, in addition to 

Clear Lake, he was removed from the on-call schedules of other hospitals in 

February 2019. However, Clear Lake’s complained-of statement concerning his 

removal from Clear Lake’s staff in February 2019 was made in September 2019. 

Thus, the September 2019 statement could not have caused Dr. Rockman to incur 

economic damages in February 2019. 

In his TCPA response, Dr. Rockman claimed that, “once the September 24, 

2019 verification for Clear Lake was provided to Methodist, it delayed his start date 

and eventually caused the cancelation of Dr. Rockman’s hospitalist coverage for 
59

Methodist, all of which is directly attributable to the false publications made by Clear 

Lake.” But Dr. Rockman offered no evidence to prove that Methodist received Clear 

Lake’s statement. Instead, in his appellate brief, Dr. Rockman states that “[i]t is 

logical to conclude Clear Lake gave the negative misinformation to Methodist,

presumably causing Methodist to reject Rockman as an applicant.” But, beyond his 

conjecture, he provided no evidence showing Methodist received Clear Lake’s 

statement. But even assuming it received the statement, Dr. Rockman offered no 

evidence proving the fundamental facts essential to reach the conclusion that Clear 

Lake’s statement caused Methodist not to grant him privileges. 

The only evidence of causation Dr. Rockman points to shows that he had 

learned from MPLT that he had been rejected by Methodist “due to statements made 

in regard to my professional integrity and clinical skills based on the untrue 

statements regarding sanctions against me, purported revocation of privileges, and 

ongoing and current investigation(s).” In other words, the only evidence of causation 

cited by Dr. Rockman indicated that he was rejected because of Walker’s statement, 

not because of Clear Lake’s statement, and Dr. Rockman offered no evidence linking 

Walker’s statement to Clear Lake. See Landry’s, 631 S.W.3d at 55 (holding that 

plaintiff failed to make prima facie showing of economic damages for business 

disparagement claim when its evidence was “insufficient to support a causal link 

between any particular statement of the defendants” and plaintiffs’ lost revenue). 
60

Dr. Rockman further alleged in his pleadings that he had “found it impossible 

to find an assignment [after Clear Lake’s statement] whereas he previously had no 

issues securing employment.” He claimed that, “[b]ecause of the publication of the 

defamatory and disparaging statements, and their effect on [his] reputation, [he was] 

unable to obtain any comparable employment.” But, beyond a temporal correlation, 

Dr. Rockman offered no evidence to show a causal link between Clear Lake’s 

complained-of statement and his inability to secure employment. His lack of 

evidence was confirmed at the TCPA hearing when the trial court asked Dr. 

Rockman, “So your entire argument [regarding causation of damages] is temporal?”

to which he responded, “That’s the evidence that I have right now.” As this Court

has previously recognized, a temporal connection “is insufficient to establish 

damages for purposes of the TCPA.” ABD Interest, 606 S.W.3d at 437 (citing Better 

Bus. Bureau of Metro. Hous., Inc. v. John Moore Servs., Inc., 441 S.W.3d 345, 361

(Tex. App.—Houston [1st Dist.] 2013, pet. denied) (holding that evidence of 

business’s declining general revenue in wake of negative online review was not clear 

and specific evidence establishing damages element of tortious interference claim)).

We conclude that Dr. Rockman did not produce clear and specific evidence 

to establish a prima facie case for the special damages element of his business

disparagement claim against Clear Lake. See TEX. CIV. PRAC. & REM. CODE

§ 27.005(c). Therefore, we hold that the trial court properly dismissed that claim.
61

Having held that the trial court properly dismissed Dr. Rockman’s defamation 

and business disparagement claims against Clear Lake and the OBHG Defendants

under the TCPA, we overrule Dr. Rockman’s first issue.13

Conclusion

We affirm the judgment of the trial court.

Richard Hightower

Justice

Panel consists of Justices Goodman, Hightower, and Guerra.

13 Because we affirm the dismissal of Dr. Rockman’s claims against the OBHG

Defendants under the TCPA, we need not reach Dr. Rockman’s third issue

pertaining to his request for exemplary damages. See TEX. R. APP. P. 47.1 (“The 

court of appeals must hand down a written opinion that is as brief as practicable but 

that addresses every issue raised and necessary to final disposition of the appeal.”). 

We also need not reach Ob Hospitalist Group, Inc.’s alternative issue challenging 

the denial of its special appearance. See id.; Jack H. Brown & Co. v. Nw. Sign Co., 

718 S.W.2d 397, 398 (Tex. App.—Dallas 1986, writ ref’d n.r.e.) (stating that,

because it affirmed summary judgment in defendant’s favor, appellate court need 

not reach defendant’s alternative challenge to denial of its special appearance).