No. 07-15-00306-CV

In the

Court of Appeals for the Seventh (7th) District of Texas

at Amarillo 

______________________

MERIDIAN LTC, LTD.; THEORA MANAGEMENT SYSTEMS,INC.;

KENNETH MIKE RICE; SCOTT STEVEN SPORE; AND MARIA STELLA BRIONES,

Appellants, 

v.

LOUIS D. BYERS, INDEPENDENT ADMINISTRATOR OF 

THE ESTATE OF WILLIE JOE BYERS, DECEASED, 

Appellee.

______________________

Interlocutory Appeal from the 72nd Judicial District Court of Lubbock County

Cause No. 2013-505,504

Hon. Ruben Gonzales Reyes, Presiding

APPELLEE’S BRIEF 

DAVID R. TOUPS

Texas Bar No. 24034711

Toups Law Firm

3010 LBJ Fwy, Ste. 1200

Dallas, Texas 75234-2710 

(214) 705-3940–Telephone

(800) 780-6834–Facsimile

DRTOUPS@TOUPSLAWFIRM.COM

ATTORNEY FOR APPELLEE

ORAL ARGUMENT REQUESTED (CONTINGENT)

ACCEPTED

07-15-00306-CV

SEVENTH COURT OF APPEALS

AMARILLO, TEXAS

11/16/2015 8:27:18 PM

Vivian Long, Clerk

 FILED IN 7th COURT OF APPEALS AMARILLO, TEXAS 11/16/2015 8:27:18 PM VIVIAN LONG CLERK
Appellee’s Brief

-iiTABLE OF CONTENTS

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

INDEX OF AUTHORITIES................................................................................... iv

STATEMENT ON ORAL ARGUMENT................................................................... v

SUMMARY OF THE ARGUMENT......................................................................... 1

ARGUMENT AND AUTHORITIES ........................................................................ 3

I. Appellants’ Objections to the Trial Court Lacked Sufficient 

Specificity and the Grounds Presented Now on Appeal were not

Detailed or Presented at the Trial Court Level. ................................... 6

II. The Trial Court Properly Exercised Its Discretion in Ruling that the 

First Amended Expert Report Constituted a Fair, Good-Faith 

Summary of the Expert’s Qualifications to Testify Regarding the 

Standard of Care. .................................................................................. 8

III. The Trial Court Properly Exercised Its Discretion in Ruling that the 

First Amended Expert Report Presented a Fair, Good-Faith Summary 

of the Expert’s Opinion Regarding the Applicable Standards of Care.10

IV. The Trial Court Properly Exercised Its Discretion in Ruling that the 

First Amended Expert Report Presented a Fair, Good-Faith Summary 

of the Expert’s Opinions Regarding the Health Care Providers’

Breaches Regarding the Standards of Care........................................ 11

V. The Trial Court Properly Exercised Its Discretion in Ruling that the 

First Amended Expert Report Presented a Fair, Good-Faith Summary 

of Expert’s Qualifications to Testify on Causation............................ 12

VI. The Trial Court Properly Exercised Its Discretion in Ruling that the 

First Amended Expert Report Presented a Fair, Good-Faith Summary 

of the Expert’s Opinions Regarding Causation. ................................ 13

CONCLUSION AND PRAYER............................................................................. 15

CERTIFICATE OF COMPLIANCE ....................................................................... 16
Appellee’s Brief

-iiiCERTIFICATE OF SERVICE............................................................................... 17

APPENDIX....................................................................................................... 18
Appellee’s Brief

-ivINDEX OF AUTHORITIES

CASES

American Transitional Care Ctrs. of Tex., Inc. v. Palacios, 46 S.W.3d 

873 (Tex.2001). .................................................................................3-4

Certified EMS, Inc. v. Potts, 392 S.W.3d 625 (Tex. 2013)............................ 5

Loaisiga v. Cerda, 379 S.W.3d 248 (Tex. 2012). .................................... 5, 12

Walker v. Gutierrez, 111 S.W.3d 56 (Tex.2003). .......................................... 4

STATUTES

TEX. CIV. PRAC. & REM. CODE § 74.351(a). ............................................3, 7-8

TEX. CIV. PRAC. & REM. CODE § 74.351(l)................................................. 4, 8

TEX. CIV. PRAC. & REM. CODE § 74.351(r)(5)(A). ......................................... 9

TEX. CIV. PRAC. & REM. CODE § 74.351(r)(5)(B)........................................... 9

TEX. CIV. PRAC. & REM. CODE § 74.351(r)(5)(C)......................................... 13

TEX. CIV. PRAC. & REM. CODE § 74.351(r)(6)................................... 4-5, 9-12

TEX. CIV. PRAC. & REM. CODE § 74.401......................................................... 9

TEX. CIV. PRAC. & REM. CODE § 74.402......................................................... 9

RULES

TEX. R. APP. P. 33.1. ................................................................................3, 6-7

TEX. R. EVID. 702.......................................................................................... 13
Appellee’s Brief

-vNo. 07-15-00306-CV

MERIDIAN LTC, LTD.; THEORA MANAGEMENT SYSTEMS,INC.;

KENNETH MIKE RICE; SCOTT STEVEN SPORE; AND MARIA STELLA BRIONES,

Appellants,

v.

LOUIS D. BYERS, INDEPENDENT ADMINISTRATOR OF 

THE ESTATE OF WILLIE JOE BYERS, DECEASED,

Appellee.

APPELLEE’S BRIEF

STATEMENT ON ORAL ARGUMENT

Appellee does not believe that oral argument is necessary and requests 

argument only if Appellants are granted oral argument.
Appellee’s Brief

Page 1 of 17

SUMMARY OF THE ARGUMENT

The trial court correctly denied the generic, non-specific, objections filed by 

Meridian LTC, Ltd., (“Meridian”); Theora Management Systems, Inc. (“Theora”); 

Kenneth Mike Rice, now Robert Timothy Rice, Independent Executor of the 

Estate of Kenneth Michael Rice, Deceased (“Rice”); Scott Steven Spore

(“Spore”); and Maria Stella Briones (“Briones”) (collectively “Appellants”), 

which sought to dismiss the health care liability claims pending against them by 

generally objecting to the amended expert report served upon them in compliance 

with the medical liability provisions of the Texas Civil Practice and Remedies 

Code. 

First, the Court should disregard the objections to the amended expert report 

that Appellants failed to specifically raise or assert in the trial court and raise now, 

for the first time, in an interlocutory appeal. Appellants assert objections to the 

amended expert report that were not sufficiently raised, specified, or ruled upon by 

the trial court. 

Second, under § 74.351 of the Texas Civil Practice and Remedies Code (the 

“Expert Report Statute”) and the objection raised by Appellants regarding the 

expert’s qualifications to opine on the standard of care, the trial court properly 

exercised its discretion in determining that the amended expert report constituted a 

fair, good-faith summary of the expert’s qualifications to testify as to the standard 
Appellee’s Brief

Page 2 of 17

of care. The express language of the amended expert report presents facts that 

establish the expert’s qualifications to testify regarding the standards of care. 

Third, the testifying expert provided a fair, good-faith summary of his 

opinions of the applicable standards of care in his amended expert report. The 

summary met the requirements of the Expert Report Statute so the trial court 

correctly denied the motion to dismiss filed by Appellants. 

Fourth, the breaches regarding the standard of care were fairly summarized 

by the testifying expert and sufficiently met the statutory requirements 

necessitating the denial of the motion to dismiss. 

Fifth, the testifying expert met the standard to testify on causation under the 

Expert Report Statute as demonstrated by the express language and facts presented 

in his curriculum vitae contained in the amended expert report. 

Lastly, the testifying expert provided a fair summary of his opinions on 

causation meeting the requirements of the Expert Report Statute. 

For these reasons, the trial court correctly exercised its discretion, applied 

the proper standard of review, and denied the motion to dismiss filed by Meridian, 

Theora, Rice, Spore, and Briones. The Appellate Court should affirm the trial 

court’s denial of the motion to dismiss filed by Appellants.
Appellee’s Brief

Page 3 of 17

ARGUMENT AND AUTHORITIES

To the trial court the Appellants filed general, conclusory, and non-specific 

objections to the expert reports served upon them. The trial court properly 

exercised its discretion and determined that the report constituted an objective 

good-faith effort to comply with the expert report statute based upon the case law 

and the non-specific, ambiguous complaints cited in the objections filed by 

Appellants. See Tab 1 & Tab 2. Appellants wholly failed to cite or present any 

case law to support their elevated and heightened standards for expert reports in 

their filed objections, which must be filed in writing. TEX. CIV. PRAC. & REM.

CODE § 74.351(a). Upon the denial of their objections, Appellants bore the burden 

of preserving error, if any, through the record. See TEX. R. APP. P. 33.1(a). They 

didn’t. Rather, now on appeal, they seek to fly-speck the reports in detail with case 

law and factual citations and allegations, which they failed to present or assert 

before the trial court prior to it rendering its proper determination denying their 

motions to dismiss based upon the applicable statute and the documents filed and 

presented before it.

STANDARD OF REVIEW

An abuse of discretion standard applies in reviewing a trial court’s ruling on 

a defendant’s motion to dismiss a health care liability claim. American 
Appellee’s Brief

Page 4 of 17

Transitional Care Ctrs. of Tex., Inc. v. Palacios, 46 S.W.3d 873, 877-78 

(Tex.2001). An abuse of discretion occurs when the trial court acts in an 

unreasonable or arbitrary manner, or without reference to any guiding rules or 

principles. Walker v. Gutierrez, 111 S.W.3d 56, 62 (Tex.2003). In this particular 

instance, Appellants fail to show that the trial court acted in an unreasonable or 

arbitrary manner, or without reference to any guiding rules or principles in 

presenting their appeal. In fact, the trial court properly applied the guiding rules 

and principles regarding expert reports based upon the objections raised and law 

cited by the Appellants in their filed objections. 

Section 74.351 of the Texas Civil Practice and Remedies Code (“the Expert 

Report Statute”) indicates that a court shall grant a motion challenging the 

adequacy of an expert report only if it appears to the court, after hearing, that the 

report does not represent an objective good faith effort to comply with the 

definition of an expert report in Subsection (r)(6). TEX. CIV. PRAC. & REM. CODE 

§ 74.351(l) (emphasis added). An “[e]xpert report” means a written report by an 

expert that provides a fair summary of the expert’s opinions as of the date of the 

report regarding applicable standards of care, the manner in which the care 

rendered by the health care provider failed to meet the standards, and the causal 

relationship between that failure and the injury, harm, or damages claimed. TEX.
Appellee’s Brief

Page 5 of 17

CIV. PRAC. & REM. CODE § 74.351(r)(6).

The determination of whether a plaintiff’s expert report is adequate is not a 

merits determination, but rather a preliminary determination designed to 

expeditiously weed out claims that have no merit. Loaisiga v. Cerda, 379 S.W.3d 

248, 263 (Tex. 2012). A valid expert report has three elements: it must fairly 

summarize the applicable standard of care; it must explain how a physician or 

health care provider failed to meet that standard; and it must establish the causal 

relationship between the failure and the harm alleged. Certified EMS, Inc. v. Potts, 

392 S.W.3d 625, 630 (Tex. 2013). A report that satisfies these requirements, even 

if as to one theory only, entitles the claimant to proceed with a suit against the 

physician or health care provider. Id. The report needs only to inform the 

defendant of the specific conduct the plaintiff has called into question and provide 

a basis for the trial court to conclude that the claims have merit. Id. A report need 

not cover every alleged liability theory to make the defendant aware of the conduct 

that is at issue. Id.

The report can be informal in that the information in the report does not 

have to meet the same requirements as the evidence offered in a summaryjudgment proceeding or at trial. Id. at 631. If the trial court decides that a liability 

theory is supported, then the claim is not frivolous, and the suit may proceed. Id.
Appellee’s Brief

Page 6 of 17

I. Appellants’ Objections to the Trial Court Lacked Sufficient Specificity, 

and the Grounds Presented Now on Appeal were not Detailed or 

Presented at the Trial Court Level.

Appellants’ objections in the trial court regarding the expert reports lacked 

sufficient specificity and failed to present the grounds and the specific deficiencies 

for which they now detail at length on appeal. See Tab 1 & Tab 2. As a result, 

Appellants failed to present them at the trial court level, which is a necessary

prerequisite for determination on appeal. See TEX. R. APP. P. 33.1. The record must

show that the complaint was made to the trial court by a timely objection that 

stated the grounds for the ruling that the complaining party sought from the trial 

court with sufficient specificity to make the trial court aware of the complaint, 

unless the specific grounds were apparent from the context. See TEX. R. APP. P.

33.1(a) (emphasis added). In this case, the Appellants initially filed an objection 

that constituted four pages, excluding the attached expert report, followed by 

another four page objection to the amended expert report. See Tab 1 & Tab 2 (CR 

31-41 & CR Supp 4-16). The two filed objections failed to identify any specific 

deficiencies in the expert reports, but rather generically attack the expert reports

by generally asserting that the reports were conclusory or failed to show or 

establish the expert’s qualifications, the standard of care, breach, and causation

without ever detailing how or why. See Tab 1 & Tab 2. However, now on appeal, 
Appellee’s Brief

Page 7 of 17

the Appellants file a brief presenting detailed and specific objections to the 

amended expert report, including citations to case law, which were not presented 

or shown at the trial court level. In fact, not a single case law reference exists in 

either objection filed by Appellants at the trial court level or any specific fault

shown or demonstrated for either report. See Tab 1 & Tab 2. As a result, the Court 

should determine that the Appellants failed to preserve their objection on the 

record or waived the objection. See TEX. R. APP. P. 33.1(a); TEX. CIV. PRAC. &

REM. CODE § 74.351(a). 

Additionally, in their first issue, Appellants raise for the first time that the 

expert reports fail to demonstrate Dr. Kunik’s qualifications and requires 

impermissible inferences. (See Appellant’s Brief at 11 ¶ II, Tab 1 & Tab 2). 

Appellants failed to complain, present, or raise either of these objections at the 

trial court level; however, now on appeal they seek to raise that which was not 

objected to or presented to the trial court. Mr. Byers objects to all such attempts by 

Appellants, and this brief will address the objections actually asserted by 

Appellants in the objections filed and ruled upon by the trial court, which are 

attached to this brief as Tab 1 and Tab 2. Appellants also imply indirectly that 

Texas law provides fail-safe protective limited partnership sheltering 

mechanisms–employed by certain Appellants–that would perfectly shield them 
Appellee’s Brief

Page 8 of 17

from vicarious tort liability for operating insufficiently capitalized entities without 

liability insurance. (See Appellant’s Brief at 12 fn. 2). Appellants did not raise or 

assert this objection or issue in their filed objections before the trial court. 

Further, unless legitimate, specific objections identifying all alleged 

deficiencies in the expert reports were presented to the trial court and not 

addressed by Mr. Byers, a dismissal that requires the lack of an objective good 

faith effort to comply with the statute could not be forthcoming from the trial 

court. See TEX. CIV. PRAC. & REM. CODE § 74.351(l). As such, the trial court could 

not have abused its discretion in denying the Appellants’ objections when 

Appellants could not or did not express their specific complaints regarding the 

original or amended expert report to the trial court. The unidentified, non-specific, 

and unsupported generic objections of Appellants were waived. See TEX. CIV.

PRAC. & REM. CODE § 74.351(a).

Therefore, the Court should find that the Appellants failed to adequately

present their objections to the expert reports at the trial court level or failed to 

preserve them for appeal, and affirm the trial court’s proper exercise of its 

discretion in denying Appellants’ motion to dismiss Appellee’s claims. 

II. The Trial Court Properly Exercised Its Discretion in Ruling that the 

First Amended Expert Report Constituted a Fair, Good-Faith 

Summary of the Expert’s Qualifications to Testify Regarding the 

Standard of Care.
Appellee’s Brief

Page 9 of 17

Based upon the objection asserted by Appellants to the expert report, the 

trial court properly exercised its discretion in determining that the amended expert 

report showed Dr. Kunik qualified to opine on the standard of care. (CR Supp. 9, 

16-65). Under the statute, to testify regarding a standard of care, an expert must 

qualify under Texas Civil Practice and Remedies Code § 74.401 regarding 

physicians and § 74.402 regarding health care providers. See TEX. CIV. PRAC. &

REM. CODE § 74.351(r)(5)(A)&(B). The amended expert report has Dr. Kunik’s 

curriculum vitae attached and incorporated by reference. (CR Supp. 9, 16-65).

Appellants failed to raise any issue or complaint with the trial court regarding the 

incorporation by reference of Dr. Kunik’s curriculum vitae in their filed objection

to the amended expert report. See Tab 2. Dr. Kunik is a board certified geriatric 

psychiatrist and serves as a full professor teaching psychiatry & behavioral 

sciences at the Baylor College of Medicine in Houston. (Tab 2; CR Supp. 9, 16, 

18). Additionally, he is the acting director of a clinical center. (Tab 2; CR Supp. 9, 

16). These credentials alone qualify him under either section of the Texas Civil 

Practice and Remedies Code to opine as to the standard of medical care. See TEX.

CIV. PRAC. & REM. CODE §§ 74.401 and 74.402.

Appellants also objected in the trial court that Dr. Kunik’s qualifications are 

conclusory; however, the actual statute itself indicates that the expert report is 
Appellee’s Brief

Page 10 of 17

supposed to be a summary. See TEX. CIV. PRAC. & REM. CODE § 74.351(r)(6); (CR 

Supp. 6, objection A). As a result, the trial court properly exercised its discretion 

and determined that the amended expert report represented an objective good faith 

effort to comply with the statute and correctly denied the defendants’ motion to 

dismiss. 

III. The Trial Court Properly Exercised Its Discretion in Ruling that the 

First Amended Expert Report Presented a Fair, Good-Faith Summary 

of the Expert’s Opinion Regarding the Applicable Standards of Care.

Based upon Appellants’ raised objection to the expert report at the trial 

court level, the amended expert report presented a fair, good-faith summary of Dr. 

Kunik’s opinions as to the applicable standards of care as required by the statute. 

Appellants objected in the trial court that the standards of care were stated in 

conclusory terms inadequate to meet the statute’s requirements. (CR Supp. 6, 

objection B). Other than indicating that a fair summary must be given of the 

applicable standards of care, the statute does not indicate any additional specificity 

required for stating the standard of care in an expert report nor did Appellants cite 

or specify any in their objections to the report. See Tab 1 & Tab 2; TEX. CIV. PRAC.

& REM. CODE § 74.351(r)(6). Dr. Kunik provided a fair summary of the applicable 

standards of care in the amended expert report in caring for patients with 

dementia. (Tab 2; CR Supp. 11). Additionally, Appellants have failed demonstrate 
Appellee’s Brief

Page 11 of 17

in their brief how the trial court acted in an unreasonable or arbitrary manner, or 

without reference to any guiding rules or principles regarding this objection to the 

report. As a result, the trial court properly exercised its discretion and determined 

that the amended expert report represented an objective good faith effort to 

comply with the statute and correctly denied the defendants’ motion to dismiss.

Therefore, the Court should affirm the trial court’s denial of the motion to dismiss. 

IV. The Trial Court Properly Exercised Its Discretion in Ruling that the 

First Amended Expert Report Presented a Fair, Good-Faith Summary 

of the Expert’s Opinions Regarding the Health Care Providers’ 

Breaches Regarding the Standards of Care.

Based upon the objection presented by Appellants to the expert report at the 

trial court level, in compliance with the statute, the amended expert report 

provided a fair, good-faith summary of the manner in which the care rendered by 

the health care providers failed to meet the applicable standards of care. In their 

motion to dismiss in the trial court, Appellants objected that the alleged breaches

of the standard of care stated in the amended expert report was only in conclusory 

terms inadequate to meet the statute’s requirements. (CR Supp. 6, objection C).

Appellants attempt to impose an inapplicable enhanced or elevated specificity 

requirement for expert reports. As discussed above, the statute does not require 

anything more than a fair summary of the manner in which the care rendered failed 

to meet the standard, and Appellants failed to inform or cite anything elevating the 
Appellee’s Brief

Page 12 of 17

statutory requirements in their objection to the trial court. See TEX. CIV. PRAC. &

REM. CODE § 74.351(r)(6). 

An expert report must represent only a good-faith effort to provide a fair 

summary of the expert’s opinions. Loaisiga, 379 S.W.3d at 257. A report need not 

marshal all of the plaintiff’s proof, but it must include the expert’s opinion on each 

of the elements identified in the statute. Id. Dr. Kunik’s report meets the applicable 

standard, as the trial court in its discretion correctly determined. (CR Supp. 11-14).

Once again on this point, Appellants failed to demonstrate how the trial court 

acted in an unreasonable or arbitrary manner, or absent guiding rules or principles

regarding this objection. Using its discretion, the trial court correctly ruled that the 

amended expert report represented an objective good faith effort and denied the 

defendants’ motion. Therefore, the Court should affirm the trial court’s denial of 

the motion to dismiss.

V. The Trial Court Properly Exercised Its Discretion in Ruling that the 

First Amended Expert Report Presented a Fair, Good-Faith Summary 

of Expert’s Qualifications to Testify on Causation.

Based upon the objection stated by Appellants to the expert report at the 

trial court level, using its discretion, the trial court properly determined that the 

amended expert report showed Dr. Kunik qualified to opine on causation. (CR 

Supp. 9, 16-65). In their trial court motion, Appellants raised the objection that the 
Appellee’s Brief

Page 13 of 17

amended expert report does not show Dr. Kunik qualified to testify as to causation 

or does so in a conclusory manner. (CR Supp. 6, objection D). The expert report 

statute indicates that to testify as to causation, a physician need only qualify under 

the Texas Rules of Evidence. See TEX. CIV. PRAC. & REM. CODE 

§§ 74.351(r)(5)(C). Rule 702 of the Texas Rules of Evidence provides that a 

witness qualified by knowledge, skill, experience, training, or education may 

testify as an expert. See TEX. R. EVID. 702. Dr. Kunik’s report demonstrates that he 

qualifies under both the statute and the rules of evidence to opine as an expert 

witness. See TEX. CIV. PRAC. & REM. CODE §§ 74.351(r)(5)(C); TEX. R. EVID. 702; 

(CR Supp. 9, 16-65).

As to Appellants’ additional objection that Dr. Kunik’s qualifications to 

testify are stated in a conclusory manner, the statute does not indicate a manner in 

which the expert’s qualifications should be stated, nor do the Appellants cite any 

statute or case law in their trial court motion to support this particular objection to 

the report. As a result, the trial court properly applied the guiding rules and 

principles provided and denied the defendants’ motion to dismiss. Therefore, the 

Court should affirm the trial court’s ruling. 

VI. The Trial Court Properly Exercised Its Discretion in Ruling that the 

First Amended Expert Report Presented a Fair, Good-Faith Summary 

of the Expert’s Opinions Regarding Causation.
Appellee’s Brief

Page 14 of 17

Based upon the objection asserted by Appellants to the expert report at the 

trial court level, the trial court properly determined that the amended expert report 

provided a fair summary of the causation links between the defendants’ failure to 

comply with the standard of care and Willie Byers’ death. Appellants objected in 

their trial court motion to dismiss that the amended expert report failed to identify 

causation or did so in conclusory terms. (CR Supp. 6, objection E). As mentioned 

above, a fair summary of the expert’s opinion on causation is all that is required, 

and Dr. Kunik linked the defendants’ failures to meet the standard of care with the 

death that Willie Byers suffered in full compliance with the statute. (CR Supp. 10-

14). As to the appellants’ assertions that no particular mention of them is indicated 

in the expert report, Rice and Spore are specifically identified as Management 

Agents for Meridian, formerly known as the Tumbleweed Care Center, as well as

in each of the capacities in which they were sued. (CR Supp. 10). The report also 

specifically identifies Briones as an Employee-Agent of the Tumbleweed Care 

Center. (CR Supp. 10). The amended expert report identifies the breaches of the 

standards of care and provides the causation links to Willie’s death, indicating 

those breaches in which the Tumbleweed Care Center is implicated and addressing 

and differentiating whether a Management Agent or an Employee-Agent of 

Tumbleweed Care Center is liable. Just as before, Appellants failed to demonstrate 
Appellee’s Brief

Page 15 of 17

how the trial court acted in an unreasonable or arbitrary manner, or absent guiding 

rules or principles on the objection they raised at the trial court level. Using its 

discretion, the trial court correctly ruled that the amended expert report 

represented an objective good faith effort and denied the defendants’ motion. 

Therefore, the Court should affirm the trial court’s denial of the motion to dismiss.

CONCLUSION AND PRAYER

For the reasons set forth, Appellee–Louis D. Byers, Independent 

Administrator of the Estate of Willie Joe Byers, Deceased–asks that the Court

(i) find that the Appellants failed to adequately present their objections to the 

expert reports at the trial court level or failed to preserve them for appeal; (ii) 

affirm the trial court’s exercise of discretion in denying the motion to dismiss filed 

by Appellants; and (iii) grant such other relief to which he may be justly entitled. 

Respectfully Submitted,

TOUPS LAW FIRM

By: /s/ David R. Toups

DAVID R. TOUPS

State Bar No. 24034711

3010 LBJ Fwy, Ste. 1200

Dallas, Texas 75234-2710

(214) 705-3940–Telephone

(800) 780-6834–Facsimile

DRToups@ToupsLawFirm.com
Appellee’s Brief

Page 16 of 17

ATTORNEY FOR APPELLEE,

LOUIS D. BYERS, INDEPENDENT 

ADMINISTRATOR OF THE ESTATE OF 

WILLIE JOE BYERS, DECEASED

CERTIFICATE OF COMPLIANCE

RULE 9.4(i)(3) OF THE TEXAS RULES OF APPELLATE PROCEDURE

I certify that this document was computer generated and that according to 

the word count function of the software program used to prepare the document, the 

document has 3,462 words. 

/s/ David R. Toups

DAVID R. TOUPS
Appellee’s Brief

Page 17 of 17

CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of this document has been 

served on all parties or their counsel as listed below on this 16th day of November 

2015.

VIA TEXAS E-FILE SYSTEM

Robin M. Green, Esq.

Richards, Elder & Green, LLC

3223 South Loop 289, Ste. 424

Lubbock, Texas 79423-1368

(806) 798-8868–Telephone

(806) 798-8878–Facsimile

rgreen@regllp.com–E-mail

ATTORNEY FOR APPELLANTS,

MERIDIAN LTC LTD, F/D/B/A 

TUMBLEWEED CARE CENTER; THEORA 

MANAGEMENT SYSTEMS, INC.,

GENERAL PARTNER OF MERIDIAN LTC,

LTD.; KENNETH MIKE RICE; SCOTT 

STEVEN SPORE; AND MARIA STELLA 

BRIONES

VIA TEXAS E-FILE SYSTEM

Andrew R. Seger, Esq.

Key Terrell & Seger, LLP

4825 50th St., Ste. A

Lubbock, Texas 79499

(806) 793-1906–Telephone

(806) 792-2135–Facsimile

aseger@thesegerfirm.com–E-mail

ATTORNEY FOR APPELLANTS,

MERIDIAN LTC LTD, F/D/B/A 

TUMBLEWEED CARE CENTER; THEORA 

MANAGEMENT SYSTEMS, INC.,

GENERAL PARTNER OF MERIDIAN LTC,

LTD.; KENNETH MIKE RICE; SCOTT 

STEVEN SPORE; AND MARIA STELLA 

BRIONES

/s/ David R. Toups

DAVID R. TOUPS
Appellee’s Brief–Appendix

No. 07-15-00306-CV

MERIDIAN LTC, LTD.; THEORA MANAGEMENT SYSTEMS,INC.;

KENNETH MIKE RICE; SCOTT STEVEN SPORE; AND MARIA STELLA BRIONES,

Appellants,

v.

LOUIS D. BYERS, INDEPENDENT ADMINISTRATOR OF 

THE ESTATE OF WILLIE JOE BYERS, DECEASED,

Appellee.

APPELLEE’S APPENDIX

LIST OF DOCUMENTS

1. Objections to the Sufficiency of Plaintiff's Expert Report of Mark 

E. Kunik. M.D., M.P.H. less portions of Dr. Kunik’s CV (CR 31-

41). ......................................................................................................Tab 1

2. Objections to the Sufficiency of Plaintiff's First Amended Expert 

Report of Mark E. Kunik. M.D., M.P.H. less portions of Dr. 

Kunik’s CV (CR Supp 4-16)..............................................................Tab 2
Tab 1
31

NO. 2013-505.504 

LOUIS D. BYERS, INDEPENDENT § IN THE 99tb DISTRICT CTT I 

ADMINISTRATOROFTHEESTATEOF §§ . S. 

WILLIE JOE BYERS, !I 

Plaintiff, § = 

v. 

MERIDIAN LTC LTD., F/K/A 

TUMBLEWEED CARE CENTER; 

THEORA MANAGEMENT SYSTEMS, 

INC., GENERAL PARTNER OF 

MERIDIAN LTC, LTD.; HONOR 

SERVICES, INC., F/D/B/A 

TUMBLEWEED AND CHILDREN OF 

THE PIONEERS; JON JAY KIRKSEY; 

EDNA FAYE HOWELL STOWE; 

MARIA STELLA BRIONES; CARMEN 

SERRATA JEWEL; KENNETH MIKE 

RICE; SCOTT STEVEN SPORE; AND 

AARON VERGE JEWELL; 

Defendant. 

§ 

§ 

§ IN AND FOR 

§ 

§ 

§ 

§ 

§ 

§ 

§ 

§ 

§ 

§ 

§ 

§ 

§ 

J 

§ LUBBOCK COUNTY, TEXAS 

OBJECTIONS TO THE SUFFICIENCY OF 

PLAINTIFF'S EXPERT REPORT OF MARK E. KUNIK. M.D .. M.P.H. 

TO THE HONORABLE JUDGE OF SAID COURT: 

NOW COMES Meridian LTC Ltd., f/d/b/a Tumbleweed Care Center, Theora 

Management Systems, Inc., General Partner of Meridian LTC, Ltd., Kenneth Michael Rice, 

M.D., Scott Steven Spore, M.D., and Maria Stella Briones (hereinafter referred to as 

"Defenda.11ts"), Defendants in the above-entitled and nutnbered cause, a.'ld file their Objections 

to the Sufficiency of Plaintiffs Expert Report of Mark E. Kunik, M.D., M.P.H and would 

respectfully show the Court as follows: 

Defendants Objections to Expert Report of Mark E. Kunik, M.D., M.P.H. Pagel 
32

I. 

This lawsuit was filed after September 1, 2003. Therefore, the provisions of TEX. CIV. 

PRAC. & REM. CODE Chapter 74 apply to this case. 

II. 

Plaintiff filed this suit on January 30, 2013. Plaintiff alleges that Defendants were 

negligent in the medical care (in a nursing home) rendered to Willie Byers. As such, Plaintiff 

asserts a "healthcare liability claim" against Defendants. See TEx. CIV. PRAC. & REM. CODE 

§74.001 (13)(Vemon's 2004). 

On or about May 31, 2013, in an effort to comply with TEx. CIV. PRAC. & REM. CODE 

Chapter 74, Plaintiff served upon Defendants a report from Mark E. Kunik, M.D., M.P.H. 

(hereinafter referred to as "Kunik Report"). A copy of the Kunik Report is attached as Exhibit 

"A" and incorporated herein by reference. Defendants file and serve these objections to the 

Kunik Report within 21 days after the date the report was served on Defendants. 

III. 

Defendants make the following objections to the sufficiency of the Kunik Report: 

A. The Kunik Report fails to establish that Mark E. Kunik, M.D., M.P.H. is qualified 

to render an opinion on the standard of care applicable to Defendants, or in the alternative, the 

same is stated in conclusory terms; 

B. The Kunik Report states the standard of care applicable to Defendants in 

conclusory terms; 

C. The Kunik Report states the alleged breach in the standard of care applicable to 

Defendants in conclusory terms; 

D. The Kunik Report fails to establish that Mark E. Kunik, M.D., M.P.H. is qualified 

Defendants Objections to Expert Report of Mark E. Kunik, M.D., M.P.H. Page2 
33

to render an opinion on the causal connection between any alleged breach and the injury, harm, 

or damages claimed by Plaintiff, or alternatively, the same is stated in conclusory terms; and 

E. The Kunik Report fails to identify the causal relationship between the alleged 

failure of Defendants to comply with the applicable standard of care and the injury, harm and 

damages claimed, or alternatively, the same is stated in conclusory terms. 

IV. 

Upon sustaining these objections to the Kunik Report, Defendants request that the Court 

dismiss this cause with prejudice, enter an award of attorney fees and grant any other relief as 

allowed by Tex. Civ. Prac. & Rem. Code §74.35l(b). 

WHEREFORE, PREMISES CONSIDERED, Defendants, request that this matter be set 

for hearing and that, upon hearing, the Cou...rt sustain these Objectior~ to the Sufficiency of 

Plaintiff's Expert Report of Mark E. Kunik, M.D., M.P.H. dismiss this cause with prejudice, 

enter an award of attorney fees, and for such other and further relief to which Defendants may be 

entitled. 

Defendants Objections to Expert Report of Mark E. Kunik, M.D., M.P.H. 

Respectfully submitted, 

RICHARDS, ELDER & GREEN, PLLC 

3223 South Loop 289, Suite 424 (79423) 

P.O. Box 64657 

y:~~~~==~~~~­

Ro mM. Green 

Texas Bar No. 08369000 

Dana Garay 

Texas Bar. No. 24007220 

Attorneys for Defendants 

Page3 
34

CERTIFICATE OF SERVICE 

I certify that on Jl)Yaay of June, 2013, a true and correct copy of Objections to the 

Sufficiency of Plaintiff's Expert Report of Mark E. Kunik, MD., MP.H was served on David R. 

Toups, Bennett, Weston, Lajone & Turner, P.C., 1603 LBJ Fwy, Ste. 280, Dallas, Texas 75234-

6040 via facsimile transmission to (800) 780-6834. 

DANA GARAY 

Defendants Objections to Expert Report of Mark Kunik, M.D .. Page4 
35

Defendants Objections to Expert Report of Mark E.Kunik, M.D., M.P.H. PageS 
36

Cause No. 2013-505,504 

In the 99ili District Court of 

Lubbock County, Texas 

LoUlS D. BYERS, INDEPENDENT ADMINISTRATOR OF THE 

ESTATE OF WILLIE JOE BYERS, DECEASED, 

Plaintiff, 

v. 

MERIDIANLTC,LTD., FIKIA TuMBLEWEEDCARECENTER; THEORA 

MANAGEMENT SYSTEMS, INC., GENERAL PARTNER OF MERIDIAN LTC, LTD.; 

HONOR SERVICES, INC., F/D/B/ A TUMBLEWEED AND CHILDREN OF THE PIONEERS; 

JON JAY KIRKsEY; EDNA FAYE HOWELL STOWE; MARIA STELLA BRIONES; 

CARMEN SERRATA JEWEL, KENNEm MIKE RICE; SCOTT STEVEN SPORE; AND 

DONNALD AARON JEWELL, 

Defendants. 

EXPERT REPORT 

Prepared by: 

MARK E. KUNIK, MD, MPH 1 

1 See Ex. A-Curriculum Vitae of Mark E. KuniA:, a true and correct copy of which is attached as 

Exhibit A and incorporated by reference to this expert report. 
37

Expert Opinion Summary. At this time, based upon my conversations with 

counsel for Louis D. Byers, Independent Administrator of the Estate of Willie Joe Byers, 

Deceased, and my review of the following docwnents that have been provided to me: 

• an Original Petition filed Janua..-y 30, 2013; 

• a Texas Department of Aging and Disability Investigation Report 

containing 103 pages regarding the incident; 

• weather station information from Weathersource for February I, 2011 to 

February 3, 2011 for Brownfield, Texas; and 

• KCBD news stories of the incident dated February 04, 2011; March 17, 

2011; July 21, 2011; and July 25, 2011; 

it is my opinion-to a reasonable medical probability-that the care for Willie Joe Byers 

provided by the Tumbleweed Care Center and the Children of the Pioneers nursing care 

facilities-and their employees and agents-failed to meet the standard in Texas for caring 

for patients suffering from dementia, and these failures caused Willie Joe Byer's death. 

Specifically, the standards of care in Texas which were not met are as follows: 

(i) a facility caring for patients with dementia owes a duty to professionally 

supervise, monitor, and protect patients, and exercise reasonable care for their 

safety based upon their known mental and physical condition; 

(ii) a facility caring for patients with dementia owes a duty to select and train staff 

to care for patients suffering from this illness; 

(iii) a facility caring for patients with dementia owes a duty to provide adequate 

facilities to care for them; and 

(iv) a facility ca.ri..ng for patients with dementia owes a duty to provide ""tequate 

policies, procedures, and supervision of staff to accommodate their care. 

Using these standards, the care provided by the Tumbleweed Care Center and the 

Children of the Pioneers falls short regarding the care provided to Willie Joe Byers on the 

2nd and 3rd of February 2011, which caused his death. Each ofthese failures contributed 

to Willie Joe's de"ath and had a foreseeable result, which occurred, for failing to meet the 

standard of care. 

Page 1 of3 
38

First, despite unusually severe cold weather across the region, the Children of the 

Pioneers transferred Willie Joe-a patient known to have dementia-late in the day on 

February 2nd to the Twnbleweed Car~ Center, in a different town. The new facility would 

have been an environment unfamiliar to him and this was done without the family's 

consent. The Children of the Pioneers and . the Tumbleweed Care Center failed to 

supervise, monitor, or protect Willie Joe on the night of February 2nd and the morning of 

February 3rd, which allowed him to leave the Twnbleweed Care Center facility unnoticed 

on February 3rd, become disoriented in the facility's yard, and die of hypothermia in the 

snow. Additionally, had routine supervision or monitoring have taken place, his absence 

would have been discovered; however, his absence took four hours to discover. Had the 

Children of the Pioneers and the Twnblewee~ Care Center supervised, monitored, and 

protected Willie Joe, he would not have died of hypothermia outside the facility. 

Second, the Twnbleweed Care Center and the Children of the Pioneers failed 

either to select staff capable of caring for demented patients or they failed to train their 

staff in the proper care of them. The facilities' staff should have been familiar with 

disorientation that often worsens in the evening and in new settings. Willie Joe was 

transferred in the evening to an unsecured, unfamiliar facility:· and he had wandered 

before. Had the facilities' staff been properly selected or trained properly, they would 

have been able to anticipate Willie Joe's behaviors that commonly occur in a person 

suffering from dementia. The failure of the staff to recognize and anticipate behaviors 

common to persons with dementia demonstrates a lack of capability or training which 

was a contributing factor to Willie Joe's death. 

Page2of3 
39

Third, the Tumbleweed Care Center was an unsecured facility and ill equipped to 

handle residents with dementia. Willie Joe was transferred from a secure unit at The 

Children of the Pioneers, to an unsecured setting, Tumbleweed Care Center, which 

lacked the secured area to protect patients with dementia. T'ne faiiure of the Tumbieweed 

Care Center to provide adequate facilities to care for demented patients caused Willie 

Joe's death. 

Fourth, the Tumbleweed Care Center and the Children of the Pioneers failed to 

provide adequate policies, procedures, and supervision of staff to care for demented 

patients. The staff of each facility contributed to the death of Willie Joe Byers through a 

series of failures in good discretion and judgment. Had adequate policies and procedures 

been in place, along with supervision to implement their compliance, Willie Joe's death 

due to exposure could have been prevented. 

Signed this 2 ~~day of May 2013. 

MARK E. KUNlK, M.D. 

Expert &port 

Page3 ofJ 
40

Expert Report 

Exhibit A 

True and Co"ect Copy of the 

Curriculum Vitae of Mark E. Kunik 
41

Mark E. Kunik, MD, MPH 

May 20,2013 

I. GENERAL BIOGRAPHICAL INFORMATION 

A. Personal 

I. Name: Mark Edwin Kunik 

2. Date of Birth; citizenship: May 5, 1961, Houston, TX; US citizen 

B. Education 

1. Undergraduate Education: BA, Psychology, Honors, University of Texas, 1979-1982 

2. Medical Education: MD, Baylor College of Medicine, 1983-1987 

3. Postgraduate Training: 

a. Combined Internship/Residency in Psychiatry, Baylor Affiliated Hospitals, 

Baylor College of Medicine, 1987-1991 

b. Geriatric Psychiatry Fellow, Western Psychiatric Institute and Ciinic, University 

of Pittsburgh School of Medicine, 1991-1992 

c. MPH, University ofTexas School of Public Health, 2000 

C. Academic Appointments 

l. Current faculty positions at BCM: 

a. Professor, Menninger Department of Psychiatry & Behavioral Sciences, Baylor 

College of Medicine, Houston, TX, 2007-present 

b. Associate Professor, Department of Medicine, Baylor College of Medicine, 

Houston, TX, 2002-present 

c. Acting Director, South Central Mental Illness Research, Education, & Clinical 

Center (MIRECC), 2012-present, annual budget $2,500,000 

d. Associate Director and Chief, Health Services Delivery & Organization, Houston 

Center for Quality of Care & Utilization Studies: A Veterans Affairs Health 

Services Research & Development Center of Excellence, Michaei E. DeBakey 

Veterans Affairs Medical Center, Houston, TX, 2003-present, annual budget 

$10,000,000 

e. Psychiatry Director, Advanced Fellowship Program in Mental Illness Research 

and Treatment, 200 1-present 

f. Co-Chief, Education & Mentoring, Houston Center for Quality of Care & 

Utilization Studies: A Veterans Affairs Health Services Research & Development 

Center of Excellence, Michael E. DeBakey Veterans Affairs Medical Center, 

Houston, TX, 2007-2008 

g. Associate Director, Research Training, South Central Mental Illness Research, 

Education, & Clinical Center (MIRECC), 2004-2012, annual budget $2,500,000 

h. Associate Professor, Menninger Department of Psychiatry & Behavioral Sciences, 

Baylor College of Medicine, Houston, TX, 1999-2007 

i. Physician Investigator, Houston Veterans Affairs Medical Center, Houston Center 

for Quality of Care & Utiiization Studies: A Veterans Affairs Heaith Services 

Research & Development Center of Excellence, Houston, TX, 1999-2003. 

j. Assistant Professor, Department of Psychiatry & Behavioral Sciences, Baylor 

College of Medicine, Houston, TX, 1992-1999 
Tab 2
4

NO. 2013-505.504 

LOUIS D. BYERS, INDEPENDENT 

ADMINISTRATOR OF THE ESTATE OF 

WILLIE JOE BYERS, 

Plaintiff, 

v. 

MERIDIAN LTC LTD., F/K/A 

TUMBLEWEED CARE CENTER; 

THEORA MANAGEMENT SYSTEMS, 

INC., GENERAL PARTNER OF 

MERIDIAN LTC, LTD.; HONOR 

SERVICES, INC., F/D/B/A 

TUMBLEWEED AND CHILDREN OF 

THE PIONEERS; JON JAY KIRKSEY; 

EDNA FAYE HOWELL STOWE; 

MARIA STELLA BRIONES; CARMEN 

SERRATA JEWEL; KENNETH MIKE 

RICE; SCOTT STEVEN SPORE; AND 

AARON VERGE JEWELL; 

Defendant. 

§ 

§ 

§ 

§ 

§ 

§ 

§ 

§ 

§ 

§ 

§ 

§ 

§ 

§ 

§ 

§ 

§ 

§ 

§ 

§ 

§ 

IN THE 99th DISTRICT COURT 

\ 

\ 

\\\ 

'-.\ 

INANDFOR 

LUBBOCK COUNTY, TEXAS 

OBJECTIONS TO THE SUFFICIENCY OF 

PLAINTIFF'S FIRSTAMENDED EXPERT REPORT 

OF MARK E. KUNIK. M.D .. M.P.H. 

TO THE HONORABLE JUDGE OF SAID COURT: 

NOW COMES Meridian LTC Ltd., f/d/b/a Tumbleweed Care Center ("Meridian"), 

Theora Management Systems, Inc., General Partner of Meridian LTC, Ltd. ("Theora"), 

Kenneth Michael Rice, M.D., Scott Steven Spore, M.D., and Maria Stella Briones 

(hereinafter referred to as "Defendants"), Defendants in the above-entitled and numbered cause, 

and file their Objections to the Sufficiency of Plaintiffs First Amended Expert Report of Mark 

E. Kunik, M.D., M.P.H dated September 15,2013 and received by Defendants on September 21, 

Defendants Objections to Plaintiffs First Amended Expert Report of Mark E. Kunik, M.D., M.P.H. Page I 
5

2013, and would respectfully show the Court as follows: 

I. 

This lawsuit was filed after September 1, 2003. Therefore, the provisions of TEx. CIV. 

PRAC. & REM. CODE Chapter 74 apply to this case. 

II. 

Plaintiff filed this suit on January 30, 2013. Plaintiff alleges that Defendants were 

negligent in the medical care (in a nursing home) rendered to Willie Byers. As such, Plaintiff 

asserts a "healthcare liability claim" against Defendants. See TEX. CIV. PRAC. & REM. CODE 

§74.001 (13)(Vemon's 2004). 

On or about May 31, 2013, in an effort to comply with TEX. CIV. PRAC. & REM. CODE 

Chapter 74, Plaintiff served upon Defendants a report from Mark E. Kunik, M.D., M.P.H. 

(hereinafter referred to as "Kunik Report"). In a letter dated July 17, 2013, the Court indicated 

that he intended to find that this Report was not sufficient to comply with the law as to some of 

the Defendants and allow the Defendant thirty days to cure the insufficiencies. Thereafter, on 

September 18, 2013, the Plaintiff forwarded the "First Amended Expert Report" to Defendants 

(hereinafter referred to as the "Amended Report"). That Amended Report was received by 

Defendants on September 21, 2013. A copy of the Amended Report is attached as Exhibit "A" 

and incorporated herein by reference. Defendants file and serve these objections to the Kunik 

Report within 21 days after the date the report was served on Defendants. Although, Defendants 

are aware that the Court has stated its intention to sustain the sufficiency of the Kunik Report as 

to Defendants Meridian and Theora, these two Defendants are included among those objecting to 

these Objections to the Sufficiency ofthe First Amended Expert Report of Mark E. Kunik, M.D., 

M.P.H. 

Defendants Objections to Plaintiff's First Amended Expert Report of Mark E. Kunik, M.D., M.P.H. Page2 
6

III. 

Defendants make the following objections to the sufficiency of the Amended Report: 

A. The Amended Report, like the prior Kunik Report, fails to establish that Mark E. 

Kunik, M.D., M.P.H. is qualified to render an opinion on the standard of care applicable to 

Defendants, or in the alternative, the same is stated oniy in conciusory terms inadequate to meet 

the requirements of the Statute. In fact, as to Dr. Kunik's qualifications, the Report appears to be 

exactly the same; 

B. The Amended Report, like the prior Kunik Report, states the standard of care 

applicable to Defendants only in conclusory terms inadequate to meet the requirements of the 

statute; 

C. The Amended Report, like the prior Kunik Report, states the alleged breach in the 

standard of care applicable to Defendants only in conclusory terms inadequate to meet the 

requirements of the statute; 

D. The Amended Report, like the prior Kunik Report, fails to establish that Mark E. 

Kunik, M.D., M.P.H. is qualified to render an opinion on the causal connection between any 

alleged breach and the injury, harm, or damages claimed by Plaintiff, or alternatively, the same 

is stated only in conclusory terms inadequate to meet the requirements of the statute; and 

E. The Amended Report, like the prior Kunik Report, fails to identify the causal 

relationship between the alleged failure of Defendants to comply with the applicable standard of 

care and the injury, harm and damages claimed, or alternatively, the same is stated only in 

conclusory terms inadequate to meet the requirements of the statute. 

IV. 

Upon sustaining these objections to the Kunik Report, Defendants request that the Court 

Defendants Objections to Plaintiff's First Amended Expert Report of Mark E. Kunik, M.D., M.P.H. Page 3 
7

dismiss this cause with prejudice, enter an award of attorney fees and grant any other relief as 

allowed by Tex. Civ. Prac. & Rem. Code §74.35l(b). 

WHEREFORE, PREMISES CONSIDERED, Defendants, request that this matter be set 

for hearing and that, upon hearing, the Court sustain these Objections to the Sufficiency of 

Plaintiff's First Amended Expert Report of Mark E. Kunik, M.D., M.P.H. dismiss this cause 

with prejudice, enter an award of attorney fees, and for such other and further relief to which 

Defendants may be entitled. 

Respectfully submitted, 

RICHARDS, ELDER & GREEN, PLLC 

3223 South Loop 289, Suite 424 (79423) 

P.O. Box 64657 

Lubb~ TX 79464-4657 

Tel. 806) 98-8868 

Fax.(806 98-8878 

By: -~=:::==:~--J.-J~:::::_:~..:__­

RobinM. Gre 

Texas Bar No. 08369000 

Attorneys for Above Named Defendants 

CERTIFICATE OF SERVICE 

I certify that on 30th day of SeptemberJune, 2013, a true and correct copy of Objections to 

the Sufficiency of Plaintiff's Expert Report of Mark E. Kunik, MD., MP.H was served on Mr. 

David R. Toups, The Toups Law Firm, 3010 LBJ Fwy, 12th Floor, Dallas, Texas 75234-2710 via 

facsimile transmission to (800) 780-6834. 

Defendants Objections to Plaintiff's First Amended Expert Report of Mark E. Kunik, M.D., M.P.H. Page4 
8

EXHIBIT A 

Defendants Objections to Plaintiff's First Amended Expert Report of Mark E.Kunik, M.D., M.P.H. Page 5 
9

Cause No. 2013-505,504 

IN THE 99TH DISTRICT COURT OF 

LTJBBOCK COlJt-iTY, TEXAS 

LOUIS D. BYERS, INDEPENDENT ADMINIS1RA TOR OF THE 

ESTATE OF WILLIE JOE BYERS, DECEASED, 

Plaintiff, 

v. 

MERIDIAN LTC, LTD., F/K/A TuMBLEWEED CARE CENTER; THEORA 

MANAGEMENT SYSTEMS, INC., GENERAL PARTNER OF MERIDIAN LTC, LTD.; 

HONOR SERVICES, INC., FIDIBI A TUMBLEWEED AND CHILDREN OF THE PIONEERS; 

JON JAY KIRKsEY; EDNA FAYE HOWELL STOWE; MARIA STELLA BRIONES; 

CARMEN SERRATA JEWEL, KENNETH MIKE RICE; SCOTT STEVEN SPORE; AND 

DONNALD AARON JEWELL, 

Defendants. 

FIRST AMENDED EXPERT REPORT 

Prepared by: 

MARK E. KUNIK, MD, MPH 1 

1 See Ex. A-Curriculum Vitae of Mark E. Kunile, a true and correct copy of which is attached as 

Exhibit A and incorporated by reference to this expert report. 

First Amended Expert Report 

Pagel of6 
10

Identification of Parties. (i) Defendant, Meridian LTC, Ltd., formerly known as 

Tumbleweed Care Center ("Tumbleweed Care Center"), a Texas limited partnership; 

(ii) Defendant, Theora Management Systems, Inc.-general partner responsible for 

Meridian LTC, Ltd., flk/a Tumbleweed Care Center-("Theora Corp."), a Texas 

corporation; (iii) Defendant, Honor Services, Inc., d/b/a Tumbleweed and Children of the 

Pioneers ("Children of the Pioneers"), a Texas corporation that forfeited its existence by 

failing to maintain it status with the Texas Secretary of State; (iv) Defendant, Carmen 

Serrata Jewel a/k/a Carmen Jewell Jewell ("Jewel" or "Management Agent")-

individually and as a shareholder, officer, and director of the business formerly known as 

Honor Services, Inc., and doing business as Tumbleweed and as Children of the Pioneers; 

(v) Defendant, Jon Jay Kirksey ("Employee-Agent") of the Tumbieweed Care Center; 

(vi) Defendant, Edna Faye Howell Stowe, ("Employee-Agent") of the Tumbleweed Care 

Center; (vii) Defendant, Maria Stella Briones ("Employee-Agent") of the Tumbleweed 

Care Center; (viii) Defendant, Kenneth Mike Rice ("Management Agent")-individually 

and as a shareholder, officer, and director of Theora Corp., general partner responsible 

for Meridian LTC, Ltd., flkla Tumbleweed Care Center; (ix) Defendant, Scott Steven 

Spore ("Management Agent")-individually and as a shareholder, officer, and director of 

Theora Corp., general partner responsible for Meridian LTC, Ltd., flk/a Tumbleweed 

Care Center; (x) Defendant, Donnald Aaron Jewell ("'Management Agent")-individually 

and as a shareholder, officer, and director of Theora Corp., general partner responsible 

for Meridian LTC, Ltd., f/k/a Tumbleweed Care Center. 

First Amended Expert Report 

Page 2 of6 
11

Expert Opinion Summary. At this time, based upon my conversations with 

counsel for Louis D. Byers, Independent Administrator of the Estate of Willie Joe Byers, 

Deceased, and my review of the following documents that have been provided to me: 

~· • .• ~ ~- . o • ·~ .o.o -· ·~r AA ~A·A 2 

• a namtw·s nrst Amenaea retmon mea May JU, L.U u;-

• a Texas Department of Aging and Disability Investigation Report 

containing 103 pages regarding the incident; 3 

• weather station information from Weathersource for February 1, 2011 to 

February 3, 2011 for Brownfield, Texas; 4 and 

• KCBD news stories of the incident dated February 04, 2011; March 17, 

2011; July 21, 2011; and July 25, 2011; 5 

it is my opinion-to a reasonable medical probability-that the care for Willie Joe Byers 

provided by the Tumbleweed Care Center nursing care facility, including its Management 

Agents and Employee-Agents, and the Children of the Pioneers nursing care facility, 

including its Management Agent and employees, failed to meet the standard in Texas for 

caring for patients suffering from dementia, and these failures caused Willie Joe Byer's 

death. 

Specifically, the standards of care in Texas which were not met are as follows: 

(i) a facility caring for patients with dementia owes a. duty to professionally 

supervise, monitor, and protect patients, and exercise reasonable care for their 

safety based upon their known mental and physical condition; 

(ii) a facility caring for patients with dementia owes a duty to select and train staff 

to care for patients suffering from this illness; 

(iii) a facility caring for patients with dementia owes a duty to provide adequate 

facilities to care for them; and 

(iv) a facility caring for patients with dementia owes a duty to provide adequate 

policies, procedures, and supervision of staff to accommodate their care. 

2 Which is incorporated by reference to this expert report, which is filed in Cause No. 2013-505,504, 

in the 99th District Court of Lubbock County, Texas. 3 See Ex. B-a true and correct copy of which is attached as Exhibit B and incorporated by reference to 

this expert report. 4 Which is incorporated by reference to this expert report. 

s Which are incorporated by reference to this expert report. 

First Amended Expert Report 

Page 3 of6 
12

Using these standards, the care provided by the Tumbleweed Care Center nursing 

care facility, including its Management Agents and Employee-Agents, and the Children 

of the Pioneers nursing care facility, including its Management Agent and employees, 

fails short regarding the care provided to Wiiiie Joe Byers on the 2nd and 3rd ofFebn.wry 

2011, which caused his death. Each of these failures contributed to Willie Joe's death and 

had a foreseeable result, which occurred, for failing to meet the standard of care. 

First, despite unusually severe cold weather across the region, the Children of the 

Pioneers, with the approval of its Management Agent, transferred Willie Joe-a patient 

known to have dementia-late in the day on February 2nd to the Tumbleweed Care Center, 

in a different town. The new facility would have been an environment unfamiliar to him 

and this was done without the family's consent. The Children of the Pioneers, including 

its Management Agent and employees, and the Tumbleweed Care Center, including its 

Management Agents and Employee-Agents, failed to supervise, monitor, or protect 

Willie Joe on the night of February znd and the morning of February 3rd, which allowed 

him to leave the Tumbleweed Care Center facility unnoticed on February 3rd, become 

disoriented in the facility's yard, and die of hypothermia in the snow. Additionally, had 

routine supervision or monitoring have taken place, his absence would have been 

discovered; however, his absence took four hours to discover when he was found dead 

outside the facility. Had the Children of the Pioneers, including its Management Agent 

and employees, and the Tumbleweed Care Center, including its Management Agents and 

Employee-Agents, supervised, monitored, and protected Willie Joe, he would not have 

frozen to death outside the facility. 

First Amended Expert Report 

Page4of6 
13

Second, the Tumbleweed Care Center, including its Management Agents, and the 

Children of the Pioneers, including its Management Agent, failed either to select staff 

capable of caring for patients suffering from dementia or they failed to train their staff in 

the proper ca..1'C of t..l].em. The facilities' staff should have been fa..TUiliar with evening 

disorientation that patients suffering from dementia experience. Willie Joe was 

transferred in the evening to an unsecured place unfamiliar to him, and he had wandered 

before. Had the facilities' staff been properly selected or trained properly, they would 

have been able to anticipate Willie Joe's behaviors that are consistent with a person 

suffering from dementia. The failure of the staff to recognize and anticipate behaviors 

consistent with patients suffering from dementia demonstrates a lack of capability or 

training which was a contributing factor to Wiilie Joe's deat..~. 

Third, the Tumbleweed Care Center was an unsecured facility and ill equipped to 

handle patients suffering from dementia, which was known or should have been known 

by the Management Agents of the facility. The Children of the Pioneers, a facility with a 

secured area where Willie Joe lived, transferred Willie Joe to the Tumbleweed Care 

Center, which lacked the secured area to protect patients suffering from dementia. The 

failure of the Tumbleweed Care Center to provide adequate facilities to care for patients 

suffering from dementia caused Willie Joe's death. 

Fourth, the Tumbleweed Care Center, including its Management Agents, and the 

Children of the Pioneers, including its Management Agents, failed to provide adequate 

policies, procedures, and supervision of staff to care for patients suffering from dementia. 

The staff of each facility contributed to the death of Willie Joe Byers through a series of 

failures in good discretion and judgment. Had adequate policies and procedures been in 

First Amended Expert Report 

Page 5 of6 
14

place, along with supervision to implement their compliance, Willie Joe's death due to 

exposure could have been prevented. 

Signed this/~ ft, day of September 2013. 

1)11(/?---

MARK E. KUNIK, M.D. 

First Amended Expert Report 

Page6of6 
15

First Amended Expert Report 

Exhibit A 

True and Co"ect Copy of the 

Curriculum Vitae of1"fark E. J(unik 
16

Mark E. Kunik, MD, MPH 

May20, 2013 

I. GENERAL BIOGRAPHICAL INFORMATION 

A. Personal 

I. Name: Mark Edwin Kunik 

2. Date of Birth; citizenship: May 5, 1961, Houston, TX; US citizen 

B. Education 

1. Undergraduate Education: BA, Psychology, Honors, University of Texas, 1979-1982 

2. Medical Education: MD, Baylor College of Medicine, 1983-1987 

3. Postgraduate Training: 

a. Combined Internship/Residency in Psychiatry, Baylor Affiliated Hospitals, 

Baylor College of Medicine, 1987-1991 

b. Geriatric Psychiatry Feilow, Western Psychiatric institute and Ciinic, University 

of Pittsburgh School of Medicine, 1991-1992 

c. MPH, University of Texas School of Public Health, 2000 

C. Academic Appointments 

I. Current faculty positions at BCM: 

a. Professor, Menninger Department of Psychiatry & Behavioral Sciences, Baylor 

College of Medicine, Houston, TX, 2007-present 

b. Associate Professor, Department of Medicine, Baylor College of Medicine, 

Houston, TX, 2002-present 

c. Acting Director, South Central Mental Illness Research, Education, & Clinical 

Center (MIRECC), 2012-present, annual budget $2,500,000 

d. Associate Director and Chief, Health Services Delivery & Organization, Houston 

Center for Quality of Care & Utilization Studies: A Veterans Affairs Health 

Services Research & Development Center of Excellence, Michael E. DeBakey 

Veterans Affairs Medical Center, Houston, TX, 2003-present, annual budget 

$10,000,000 

e. Psychiatry Director, Advanced Fellowship Program in Mental Illness Research 

and Treatment, 2001-present 

f. Co-Chief, Education & Mentoring, Houston Center for Quality of Care & 

Utilization Studies: A Veterans Affairs Health Services Research & Development 

Center of Excellence, Michael E. DeBakey Veterans Affairs Medical Center, 

Houston, TX, 2007-2008 

g. Associate Director, Research Training, South Central Mental Illness Research, 

Education, & Clinical Center (MIRECC), 2004-2012, annual budget $2,500,000 

h. Associate Professor, Menninger Department of Psychiatry & Behavioral Sciences, 

Baylor College of Medicine, Houston, TX, 1999-2007 

1. Physician Investigator, Houston Veterans Affairs Medical Center, Houston Center 

for Quality of Care & Utilization Studies: A Veterans Affairs Health Services 

Research & Development Center of Excellence, Houston, TX, 1999-2003. 

j. Assistant Professor, Department of Psychiatry & Behavioral Sciences, Baylor 

College of Medicine, Houston, TX, 1992-1999