I. Background

This action arises from a vehicular collision involving Grant and Defendant Karl O. Brooks (“Brooks”). On October 19, 2017, Grant was driving on Highway 62 in Orange County, Texas. Brooks, operating an 18-wheeler truck, failed to yield the right of way and, as a result, collided with Grant's vehicle. CRST admits that Brooks was operating the truck in the course and scope of his employment with CRST. Furthermore, CRST stipulated that Brooks's negligence caused the accident and that CRST is vicariously liable for Brooks's injuries under the doctrine of respondeat superior. The remaining issue in this case is the amount of damages Grant is entitled to recover. Grant seeks damages, in relevant part, for his past medical expenses.

Consistent with Texas Civil Practice and Remedies Code § 18.001, Grant submitted multiple affidavits, attested to by his medical providers, in an effort to prove up the reasonableness and necessity of Grant's past medical expenses. See TEX. CIV. PRAC. & REM. CODE § 18.001. In response, CRST provided a counter-affidavit, signed by Dr. Graham and dated December 24, 2018 (the “Counter-Affidavit”). The Counter-Affidavit laid out Dr. Graham's education, training, and qualifications and stated that Dr. Graham based his opinions on his experience, along with Grant's medical and billing records. In the Counter-Affidavit, Dr. Graham opined that Grant “did not sustain any significant musculoskeletal, orthopedic, or spinal injury whatsoever in the motor vehicle accident which occurred on October 19, 2017.” He further stated that there was no need or medical justification for the extensive evaluations and treatments that Grant received and, as a result, they were unnecessary and unreasonable. Dr. Graham further asserts that, even if the evaluations and treatment were necessary, the fees charged for the services afforded to Grant were unreasonable and unnecessary when compared to the usual and customary costs for such services.

*2 Additionally, pursuant to the court's Amended Scheduling Order (#63), CRST was required to designate its expert witnesses and disclose any expert reports by March 2, 2020. CRST timely designated Dr. Graham as an expert witness to provide testimony regarding the reasonableness and necessity of Grant's past medical expenses. Dr. Graham completed an expert report, dated March 2, 2020 (the “March Report”), which was timely disclosed (#129-3). In the March Report, Dr. Graham's opinion is largely the same as that set forth in the Counter-Affidavit, aside from his addition and evaluation of a few updated medical records, which did not alter his conclusion that Grant's treatment was not medically necessary. Dr. Graham, however, omits his comparison of Grant's medical fees with the usual and customary costs for such services. Instead, Dr. Graham generally asserts that Grant's charges following the collision were unnecessary and unreasonable, with the possible exception of 12 physical therapy treatments, because there was no need or medical justification for those services due to the collision.

Dr. Graham later disclosed a “supplemental” report, dated April 1, 2020 (the “April Report”) (#129-5).[2] In the April Report, Dr. Graham states that he updated his expert report to include new records. Again, the April Report is substantially the same as the March Report, except that it describes the charges incurred by Grant for his surgery at SpineTech Neurosurgery, including charges for related services rendered by Brain & Spine Center of Southeast Texas, Dowlen Center for Pain, and SpineTech Surgery Center.[3] Dr. Graham opines that while SpineTech Neurosurgery charged Grant $397,245 for the surgery, that charge was unreasonable and unnecessary because there was no need or medical justification for those services. Even assuming that there was a need for such services, Dr. Graham stated that the usual and customary cost of the services would be only $23,970.

Thereafter, Dr. Graham disclosed another “supplemental” report, dated July 13, 2020 (the “July Report”) (#144-5). In the July Report, Dr. Graham enumerates the sources he used to determine the usual, customary, and reasonable cost of medical services. He further opined that the usual and customary cost of Grant's surgery was $27,283—$3,313 higher than he had stated in the April Report.

In the instant motion, Grant argues that Dr. Graham's reports are deficient for a myriad of reasons. As an initial matter, Grant asserts that Dr. Graham's Counter-Affidavit is defective and does not, otherwise, qualify as an expert report. Grant further maintains that Graham's reports fail to meet the requirements set forth in either Federal Rule of Evidence 702 or Daubert.

II. Analysis

A. Dr. Graham's Counter-Affidavit

Grant claims that the Counter-Affidavit is defective because: (1) Dr. Graham is not qualified; (2) Dr. Graham failed to use any special skill, knowledge, experience, training, or education to render his opinions; and (3) the Counter-Affidavit fails to give reasonable notice of the basis on which CRST intends to controvert the claim reflected in Grant's initial affidavits, wherein Grant's medical providers state that Grant's medical expenses are both reasonable and necessary.

“In Texas state court, a plaintiff may prove that [his] medical expenses were reasonable and necessary either (1) by presenting expert testimony on the issue or (2) through the submission of affidavits that comply with the requirements of Section 18.001 of the Texas Civil Practice and Remedies Code.” Ramirez v. United States, No. SA-19-CV-00072-JKP, 2020 WL 2198167, at *1 (W.D. Tex. May 6, 2020) (citing Hamburger v. State Farm Mut. Auto. Ins. Co., 361 F.3d 875, 886 (5th Cir. 2004); Akpan v. United States, No. CV H-16-2981, 2018 WL 398229, at *3 (S.D. Tex. Jan. 12, 2018)). Section 18.001 provides:

TEX. CIV. PRAC. & REM. CODE § 18.001(b) (2013) (amended 2019).[4] Thus, the statute provides a streamlined method to prove up the reasonableness and necessity of medical expenses. TEX. CIV. PRAC. & REM. CODE § 18.001; Turner v. Peril, 50 S.W.3d 742, 746 (Tex. App.—Dallas 2001, pet. denied). Where, as here, a plaintiff submits a § 18.001 affidavit,[5] the defendant may counter that affidavit with its own controverting affidavit. The defendant's counter-affidavit must: (1) “give reasonable notice of the basis on which the party serving it intends at trial to controvert the claim reflected by the initial affidavit”; (2) “be taken before a person authorized to administer oaths”; and (3) “be made by a person who is qualified, by knowledge, skill, experience, training, education, or other expertise, to testify in contravention of all or part of any of the matters contained in the initial affidavit.” TEX. CIV. PRAC. & REM. CODE § 18.001(f).

Here, Grant argues that the Counter-Affidavit fails to meet the first and third requirements set forth in § 18.001(f). The court, however, is not persuaded.

As for the first requirement, Grant asserts that the Counter-Affidavit does not give reasonable notice of “what, exactly, is being challenged or why.” Grant contends that Dr. Graham was required to “show his work” in reaching his conclusions in the Counter-Affidavit, but he failed to do so when he offered merely conclusory statements.

Grant analogizes the Counter-Affidavit to the ones disclosed in Turner, 50 S.W.3d at 747-48. As in this case, the defendant in Turner filed counter-affidavits from a medical doctor, challenging the necessity and reasonableness of the plaintiff's claimed medical expenses. Id. at 745-46. The court found that the counter-affidavits were insufficient because they failed to give the plaintiff reasonable notice of the basis for challenging the reasonableness and necessity of the medical expenses. Id. at 747. The Turner counter-affidavits were insufficient as they “did not address whether the charges for the various medical services were reasonable in terms of cost.” Id. Moreover, the court determined that there was no reasonable notice in the challenge of the necessity of medical expenses. Id. at 747-48. The court explained:

*4 Id.

Similarly here, Dr. Graham opined that Grant's medical expenses were neither reasonable nor necessary. In this instance, Dr. Graham, unlike the orthopedic surgeon in Turner, explained his reasoning for his conclusions. Dr. Graham stated that the charges assessed were unreasonable because they were higher than the usual and customary costs for such services, which he determined using his education, knowledge, training, and experience. In the Counter-Affidavit, Dr. Graham also asserted that Grant did not suffer an injury from the collision, but, importantly, he gave the basis for his conclusion. Dr. Graham explained that his determination was based on the fact that Grant denied having any back or neck pain when he was undergoing examination at the emergency room immediately following the collision and that there was no evidence of injury in Grant's MRI scans, which were taken one month after the accident. As such, the court does not find that the Counter-Affidavit is analogous to the ones discussed in Turner. Rather, the court finds that Dr. Graham sufficiently explained his conclusions so as to give Grant reasonable notice of the bases for his opinions.

Grant further argues that the Counter-Affidavit was not made by a person who is qualified, by knowledge, skill, experience, training, education, or other expertise, to testify in contravention to all or part of any of the matters contained in the initial affidavits. Grant claims that Dr. Graham is not qualified to opine as to the costs of treatment in Jefferson County, Texas, because he practices in Montgomery County, Texas. Grant further argues that because Dr. Graham is an orthopedic surgeon, he has “no experience” concerning the costs for ambulance services, local hospital charges, neurosurgeon charges, local costs of surgery, and physical therapy and exam charges.

The court, however, finds that Dr. Graham is sufficiently qualified to testify in contravention of Grant's initial affidavits. Here, Dr. Graham's affidavit and curriculum vitae indicate that he is a board-certified orthopedic surgeon, has been in practice for over 28 years, has reviewed Grant's medical records, and has “experience in the diagnosis, care, and treatment of thousands of patients with musculoskeletal, orthopedic, and spinal conditions the same as, or similar to those, claimed by Emory Grant.” See TREIMee Corp. v. Garcia, No. 01-11-00971-CV, 2013 WL 4680379, at *7 (Tex. App.—Houston [1st Dist.] Aug. 29, 2013) (finding a doctor was qualified to testify on the necessity of the plaintiff's medical treatment where he had training on the musculoskeletal systems, was a chiropractor for 13 years, and had treated many patients who had sustained physical injuries); Posada v. Romero, No. 2-06-192-CV, 2007 WL 1228668, at *4 (Tex. App.—Fort Worth Apr. 26, 2007, no pet.) (citing the fact that the doctor was a “board-certified orthopedic surgeon,” was in “private practice for over thirty-five years,” “reviewed the [plaintiff's] medical records,” and “treated patients who have been injured in auto accidents with injuries such as those being claimed by [the plaintiff]” as evidence of being qualified as an expert on medical damages). Because Dr. Graham stated that he is familiar with the diagnosis, care, and treatment of patients with the same conditions claimed by Grant, this familiarity would necessarily include the determination of whether there was an injury in the first place. See Posada, 2007 WL 1228668, at *4 (stating that because the physician had familiarity with the injuries the plaintiff received, he could opine on the length of treatment required for such injuries, which encompassed his opinions concerning the plaintiff's over-treatment). Thus, Dr. Graham is qualified to opine on whether there was a need or medical justification for the evaluations or treatments Grant received after the collision. Likewise, the court finds that Dr. Graham's opinions concerning examinations, physical therapy, and the numerous charges for Grant's spinal surgery are “reasonably within the field of expertise of an orthopedic surgeon treating similar injuries.” Id. Moreover, Dr. Graham is familiar with the medical services and billing practices of medical doctors, chiropractors, physical therapists, hospitals, ambulatory surgery centers, and imaging facilities in Texas, including Beaumont. The record reflects that this experience comes from Dr. Graham's ownership of his own orthopedic practice as well as his ownership of a hospital, where spine surgeries and other ancillary medical services were performed. He also served as part of the reimbursement committee of the Texas Spine Society, in which he studied reimbursement rates for different spinal surgical procedures around the State of Texas. For these reasons, the court concludes that Dr. Graham is qualified to offer the opinions in the Counter-Affidavit.

B. Exclusion of Expert Reports under Rule 26

*5 There are four reports that have been produced by Dr. Graham: (1) the Counter-Affidavit; (2) the March Report; (3) the April Report; and (4) the July Report. Grant contends that neither the April Report nor the July Report was timely disclosed. According to Grant, the April and July Reports included new opinions and materials and, as a result, should be excluded under Rule 26. CRST counters that the April and July Reports are merely supplemental to the Counter-Affidavit and March Report. Thus, CRST maintains that neither report should be excluded.

Under Federal Rule of Civil Procedure 26(e), parties are required to supplement previous disclosures if the party learns that, in some material respect, the disclosure or response is incomplete or incorrect, and if the additional or corrective information has not otherwise been made known. FED. R. CIV. P. 26(e)(1); In re Complaint of C.F. Bean L.L.C., 841 F.3d 365, 371 (5th Cir. 2016). Rule 26(e)(1)(A) provides:

FED. R. CIV. P. 26(e)(1)(A). The primary purpose of Rule 26(e) is to prevent a party from being prejudicially surprised by information presented at trial. EEOC v. Mazzanti, No. 2:07-CV-171, 2009 WL 927426, at *2 (N.D. Miss. Apr. 2, 2009) (citing Brower v. Staley, Inc., 306 F. App'x 36, 39 (5th Cir. 2008); Reed v. Iowa Marine & Repair Corp., 16 F.3d 82, 85 (5th Cir. 1994)). Further, “a party is not excused from making its disclosures because it has not fully investigated the case or because it challenges the sufficiency of another party's disclosures or because another party has not made its disclosures.” FED. R. CIV. P. 26(a)(1)(E); see Mazzanti, 2009 WL 927426, at *2.

This duty to supplement extends to the information contained in expert reports. In re Complaint of C.F. Bean L.L.C., 841 F.3d at 371 (citing FED. R. CIV. P. 26(e)(2)). Any additions or changes to information in expert reports must be disclosed by the time the party's pretrial disclosures under Rule 26(a)(3) are due. Id. (citing FED. R. CIV. P. 26(e)(2)). “Even though the Federal Rules of Civil Procedure provide for supplementation, parties do not have infinite time to supplement their expert opinions with new information to respond to challenges to their experts' original evidence.” Avance v. Kerr-McGee Chem. LLC, No. 5:04-CV-209, 2006 WL 3484246, at *7 (E.D. Tex. Nov. 30, 2006); accord Complaint of C.F. Bean L.L.C., 841 F.3d at 371 (explaining that “supplemental ‘disclosures are not intended to provide an extension of the deadline by which a party must deliver the lion's share of its expert information’ ” (quoting Sierra Club, Lone Star Chapter v. Cedar Point Oil Co. Inc., 73 F.3d 546, 571 (5th Cir.), cert. denied, 519 U.S. 811 (1996)). Indeed, courts have stricken or excluded expert affidavits that amount to new opinions and that were filed after the expert disclosure deadline. E.g., Cooper v. Meritor, Inc., No. 4:16-CV-52-DMB-JMV, 2019 WL 545187, at *6 (N.D. Miss. Feb. 11, 2019); Avance, 2006 WL 3484246, at *7; Brumley v. Pfizer, Inc., 200 F.R.D. 596, 604 (S.D. Tex. 2001) (“Polukoff's ... affidavit is untimely under Rule 26 to the extent that it goes beyond the opinions in his report. ... The Court strikes ... any ... opinion that was not contained in the initial Rule 26 report.”).

*6 Based on the foregoing, the court's threshold inquiry is whether a report filed subsequently to an initial report includes impermissible new opinions or, rather, appropriate supplemental ones. “In this regard, ‘[t]he line between supplemental opinions and new opinions is not always clear, and the decision regarding how to make the distinction likely depend[s] on the facts of the case.’ ” Cooper, 2019 WL 545187, at *7 (citing In re Enron Corp. Sec., Derivative & “Erisa” Litig., MDL No. 1446, 2007 WL 5023541, at *8 (S.D. Tex. Feb. 1, 2007)). Courts generally “distinguish ‘true supplementation’ (e.g., correcting inadvertent errors or omissions) from gamesmanship and have repeatedly rejected attempts by parties to bolster their position ... by ‘supplementing’ an expert report with a ‘new and improved’ expert report.” Id. (citing Petersen v. Midgett, 140 F. Supp. 3d 490, 502 (E.D.N.C. 2015) (collecting cases)); accord Kumar v. Frisco Indep. Sch. Dist., 476 F. Supp. 3d 439, 469 (E.D. Tex. 2020) (“[S]upplemental disclosures are only permissible as a means of ‘correcting inaccuracies[ ] or filling the interstices of an incomplete report that was not available at the time of the initial disclosure.’ ” (quoting Diaz v. Con-Way Truckload, Inc., 279 F.R.D. 412, 421 (S.D. Tex. 2012))). “To rule otherwise would create a system where preliminary reports could be followed by supplementary reports and there would be no finality to expert reports, as each side, in order to buttress its case or position, could ‘supplement’ existing reports and modify opinions previously given.” Cooper, 2019 WL 545187, at *7 (quoting Beller ex rel. Beller v. United States, 221 F.R.D. 696, 701 (D.N.M. 2003)); see Smith v. Chrysler Grp., L.L.C., 909 F.3d 744, 749 (5th Cir. 2018) (affirming the trial court's exclusion of an expert's supplemental report because the “supplemental report failed adequately to connect the dots between the newly discovered information and [the expert's] conclusion”); Koenig v. Beekmans, No. 5:15-CV-00822-RCL-RBF, 2018 WL 297616, at *4 (W.D. Tex. Jan. 4, 2018) (holding that a second report was not supplemental because the expert offered new opinions “well outside the scope of his original and only disclosed report”); Buxton v. Lil' Drug Store Prods., Inc., No. 2:02-CV-178KS-MTP, 2007 WL 2254492, at *5 (S.D. Miss. Aug. 1, 2007) (“Courts have ... made it clear that supplemental reports cannot be used to ‘fix’ problems in initial reports.”), aff'd, 294 F. App'x 92 (5th Cir. 2008).

Here, the court finds that the April and July Reports are supplemental to the Counter-Affidavit[6] and March Report. The Counter-Affidavit and March Report indicate that Grant did not suffer any injuries as a result of the collision. In the Counter-Affidavit, Dr. Graham asserts that “Grant did not sustain any significant musculoskeletal, orthopedic, or spinal injury whatsoever in the motor vehicle accident which occurred on October 19, 2017.” He bases his opinion on the the fact that Grant denied having any neck or back pain immediately after the collision. He further states that there was no evidence of acute traumatic injury in the MRI scans of Grant's spine. Dr. Graham states that the MRI scans showed that Grant had a pre-existing, age-related, degenerative spinal disc disease and spondylolysis, but he explains that there is no evidence in Grant's medical records showing that the collision exacerbated those problems. This conclusion was echoed in the March Report, which was updated to include the results of a second, more recent MRI scan that, according to Dr. Graham, “showed no evidence of any acute traumatic injury” and was normal for a man of Grant's age. Moreover, the Counter-Affidavit and March Report state that there was no need or medical justification for the services provided to Grant after the collision. Nevertheless, while the March Report ultimately concludes that there was no need for medical services, Dr. Graham acknowledged that there may be a possible exception—Grant may have needed “12 physical therapy treatments over a 4-week period.” The Counter-Affidavit and March Report also describe the usual and customary costs of the services Grant received. Specifically, Dr. Graham sets forth the costs charged to Grant by his medical providers and the usual and customary costs of those services, confirming his opinion that Grant was overcharged by his medical providers.

*7 The April Report reaches the same conclusions as those stated in the Counter-Affidavit and March Report, although the April Report was updated to include additional medical records. The April Report also clarifies the actual cost of Grant's spinal surgery and what the usual and customary cost of the surgery is, both of which were initially estimated in the Counter-Affidavit. The July Report, likewise, did not change the conclusions stated in the Counter-Affidavit, March Report, or April Report. The July report merely detailed the additional sources Dr. Graham used to determine the usual and customary costs of Grant's medical services. In the July Report, Dr. Graham also corrected his determination of the usual and customary cost for Grant's spine surgery—in favor of Grant—opining that it should be $3,313 more than what he had previously stated in the April Report.

Upon review, the court finds that the April and July Reports merely offer clarification to the Counter-Affidavit and the March Report. In the April and July Reports, Dr. Graham offers opinions that are within the scope of his previous reports, which address whether Grant's injuries were caused by the collision and the usual and customary costs of the medical services Grant received. C.f. Koenig, 2018 WL 297616, at *4 (holding that a second report was not supplemental because the expert offered new opinions “well outside the scope of his original and only disclosed report”). Moreover, because Dr. Graham considered medical records and invoices created after the March Report was completed, the April and July Reports merely “fill[ed] the interstices” of the Counter-Affidavit and the March Report as they were “based on information that was not available at the time of the [Counter-Affidavit and March Report's] initial disclosure.” Diaz, 279 F.R.D. at 421. Based on the contents of the April and July Reports, the court finds that Dr. Graham was merely providing updated information regarding the outstanding issue of the cost of Grant's spinal surgery and, later, correcting the usual and customary cost for that surgery. C.f. Kumar, 2020 WL 4464502, at *14 (holding that a report was not supplemental because it was apparent that the expert was not attempting to correct inaccuracies or “complete an outstanding issue in his report”). As such, the court concludes that the April and July Reports constitute proper supplementations of the Counter-Affidavit and March Report, rather than mere gamesmanship reflecting an attempt by CRST to bolster its position with a new and improved report. See Cooper, 2019 WL 545187, at *7.

Because the court determines that the April and July Reports are supplements to the Counter-Affidavit and March Report, the court must consider whether the supplements were timely filed. As explained previously, any additions or changes to information in expert reports must be disclosed by the time the party's pretrial disclosures under Rule 26(a)(3) are due. In re Complaint of C.F. Bean L.L.C., 841 F.3d at 371 (citing FED. R. CIV. P. 26(e)(2)). Rule 26(e)(3) states that, unless the court orders otherwise, pretrial disclosures must be made at least 30 days before trial. Thus, because the court did not order otherwise, Grant must file any supplemental expert reports at least 30 days before trial. Here, trial will not occur until April 2021, at the earliest. Because the April and July Reports were disclosed months before the potential trial window, they are timely and will not be excluded for being late.

C. Exclusion of Dr. Graham's Testimony for Failing to Adhere to Federal Rule of Evidence 702 or Daubert

The court addresses Grant's next arguments in favor of exclusion—that Dr. Graham's testimony is insufficient under Rule 702 and Daubert. Grant claims that Dr. Graham's testimony is not reliable because he cannot testify based on research conducted independently of litigation, as he developed his opinions solely for the purpose of testifying; he failed to employ intellectual rigor in his practice; and he based his opinion on insufficient facts. Grant also asserts that Dr. Graham's deposition testimony contradicts his opinion in his expert reports. The court, however, does not find that the exclusion of Dr. Graham as an expert in this case is proper.

*8 The admission or exclusion of expert witness testimony is a matter that is left to the discretion of the district court. Kumho Tire Co. v. Carmichael, 526 U.S. 137, 152 (1999); see Hicks-Fields v. Harris Cnty., 860 F.3d 803, 810 n.22 (5th Cir.), cert. denied, 138 S. Ct. 510 (2017); Huss v. Gayden, 571 F.3d 442, 452 (5th Cir. 2009), cert. denied, 559 U.S. 1006 (2010); Nano-Proprietary, Inc. v. Cannon, Inc., 537 F.3d 394, 399 (5th Cir. 2008). Pursuant to Rule 702 of the Federal Rules of Evidence:

FED. R. EVID. 702; accord Kumho Tire Co., 526 U.S. at 152; Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 588 (1993). Prior to admitting expert testimony, “[d]istrict courts must be assured that the proffered witness is qualified to testify by virtue of his ‘knowledge, skill, experience, training, or education.’ ” Wellogix, Inc. v. Accenture, L.L.P., 716 F.3d 867, 881 (5th Cir. 2013) (quoting Wilson v. Woods, 163 F.3d 935, 937 (5th Cir. 1999)), cert. denied, 573 U.S. 904 (2014); accord FED. R. EVID. 702; Albert v. City of Petal, 819 F. App'x 200, 202 (5th Cir. 2020). Accordingly, “[t]o qualify as an expert, ‘the witness must have such knowledge or experience in [his] field or calling as to make it appear that his opinion or inference will probably aid the trier in his search for truth.’ ” United States v. Hicks, 389 F.3d 514, 524 (5th Cir. 2004) (quoting United States v. Bourgeois, 950 F.2d 980, 987 (5th Cir. 1992)), cert. denied, 546 U.S. 1089 (2006); accord United States v. Cooks, 589 F.3d 173, 179 (5th Cir. 2009), cert. denied, 559 U.S. 1024 (2010).

The trial court possesses considerable flexibility in assessing the reliability of expert testimony. Kumho Tire Co., 526 U.S. at 141; United States v. Schaffer, 439 F. App'x 344, 346 (5th Cir. 2011) (citing Guy v. Crown Equip. Corp., 394 F.3d 320, 325 (5th Cir. 2004)); United States v. Valencia, 600 F.3d 389, 424 (5th Cir.), cert. denied, 562 U.S. 893 (2010). Given the diverse contexts in which expert testimony is offered, the application of specific factors may not be appropriate in any individual case. Schaffer, 439 F. App'x at 346 (citing Kumho Tire Co., 526 U.S. at 147-49). Indeed, “Daubert's list of specific factors neither necessarily nor exclusively applies to all experts or in every case. Rather, the law grants a district court the same broad latitude when it decides how to determine reliability as it enjoys in respect to its ultimate reliability determination.” Kumho Tire Co., 526 U.S. at 141-42; accord Hicks, 389 F.3d at 525. The overarching goal “is to make certain that an expert, whether basing testimony upon professional studies or personal experience, employs in the courtroom the same level of intellectual rigor that characterizes the practice of an expert in the relevant field.” Kumho Tire Co., 526 U.S. at 152; Roman v. W. Mfg., Inc., 691 F.3d 686, 693 (5th Cir. 2012); Wells v. SmithKline Beecham Corp., 601 F.3d 375, 378 (5th Cir. 2010).

*9 The court plays the role of a gatekeeper, determining the admissibility of “all types of expert testimony, not just scientific testimony.” United States v. Ebron, 683 F.3d 105, 139 (5th Cir. 2012) (citing Pipitone v. Biomatrix, Inc., 288 F.3d 239, 244 (5th Cir. 2002)), cert. denied, 571 U.S. 989 (2013); accord Munn v. City of Ocean Springs, No. 1:14CV428-LG-RHW, 2016 WL 9779797, at *4 (S.D. Miss. Apr. 13, 2016); Bella v. Cain, No. CIV.A. 12-2323, 2015 WL 1311216, at *5 (E.D. La. Mar. 23, 2015); see Knox v. Ferrer, No. 5:07-CV-6, 2008 WL 4411326, at *2 (S.D. Miss. Sept. 22, 2008) (“The Court's role is that of a gatekeeper only, limited to determining admissibility, not credibility, of the evidence.”) (citing Pipitone, 288 F.3d at 244). In this role, “trial courts make ‘a preliminary assessment of whether the reasoning or methodology underlying the testimony is scientifically valid and of whether that reasoning or methodology properly can be applied to the facts in issue.’ ” Hathaway v. Bazany, 507 F.3d 312, 318 (5th Cir. 2007) (quoting Daubert, 509 U.S. at 592-94). The district court should approach this task “with proper deference to the jury's role as the arbiter of disputes between conflicting opinions.” United States v. 14.38 Acres of Land, 80 F.3d 1074, 1077 (5th Cir. 1996) (quoting Viterbo v. Dow Chem. Co., 826 F.2d 420, 422 (5th Cir. 1987)); accord United States ex rel. Montcrieff v. Peripheral Vascular Assocs., P.A., ___ F. Supp. 3d ___, No. SA-17-CV-317-XR, 2020 WL 7342662, at *5 (W.D. Tex. Dec. 14, 2020).

The trial court's role as a gatekeeper “is not intended to serve as a replacement for the adversary system: ‘Vigorous cross-examination, presentation of contrary evidence, and careful instruction on the burden of proof are the traditional and appropriate means of attacking shaky but admissible evidence.’ ” Primrose Operating Co. v. Nat'l Am. Ins. Co., 382 F.3d 546, 562 (5th Cir. 2004) (quoting 14.38 Acres of Land, 80 F.3d at 1078); accord Dearmond v. Wal-Mart La. LLC, 335 F. App'x 442, 444 (5th Cir. 2009) (“Cross-examination at trial ... is the proper forum for discrediting testimony, and credibility determinations are, of course, the province of [the fact finder].”). “The Daubert analysis should not supplant trial on the merits.” Mathis v. Exxon Corp., 302 F.3d 448, 461 (5th Cir. 2002) (citing Pipitone, 288 F.3d at 250). Rather, “[t]he focus ... must be solely on principles and methodology [of the expert witness], not on the conclusions that they generate.” Watkins v. Telsmith, Inc., 121 F.3d 984, 989 (5th Cir. 1997) (quoting Daubert, 509 U.S. at 594-95); see Valencia, 600 F.3d at 419. Indeed, “it is the role of the adversarial system, not the court, to highlight weak evidence.” Primrose Operating Co., 382 F.3d at 563.

As an orthopedic surgeon with 28 years of experience, Dr. Graham is qualified to make determinations regarding the cause of Grant's injuries and the necessary medical treatment for such injuries, as well as the usual and customary costs of such treatment. In particular, the court finds that Dr. Graham's testimony will be sufficiently reliable, despite the fact that he routinely testifies as an expert witness for defendants in personal injury cases and gets paid for such services.[7] As Grant points out, to determine whether expert testimony is sufficiently reliable, the court may consider “[w]hether experts are proposing to testify about matters growing naturally and directly out of research they have conducted independent of litigation or whether they have developed their opinions for the purposes of testifying.” FED. R. EVID. 702 advisory committee note (2000) (citing Daubert v. Merrell Dow Pharm., Inc., 43 F.3d 1311, 1317 (9th Cir.), cert. denied, 516 U.S. 869 (1995)). Courts have “warned that when ‘an expert becomes an advocate for a cause, he therefore departs from the ranks of an objective expert witness, and any resulting testimony would be unfairly prejudicial and misleading.’ ” Betts v. Gen. Motors Corp., No. 3:04-CV-169-M-A, 2008 WL 2789524, at *12 (N.D. Miss. July 16, 2008) (quoting Viterbo v. Dow Chem. Co., 646 F. Supp. 1420, 1425 (E.D. Tex. 1986), aff'd, 826 F.2d 420 (5th Cir. 1987)). Nevertheless, the fact that an expert is paid for his testimony “does not necessarily cast doubt on the reliability of his testimony,” as few experts do their work for charitable purposes. Id. (quoting Daubert, 43 F.3d at 1317).

*10 Here, Dr. Graham's reliability stems from his 28 years of experience as an orthopedic surgeon—diagnosing, treating, and caring for “thousands of patients” with injuries similar to those Grant claims to have sustained. He has experience in the costs of similar medical services, as he owns his own orthopedic practice and was previously an owner of a hospital. He also served as part of the reimbursement committee of the Texas Spine Society, in which he studied reimbursement rates for different spinal surgical procedures around the State of Texas. See Cantu v. Wayne Wilkens Trucking, LLC, ___ F. Supp. 3d ___, No. 5:19-CV-1067-XR, 2020 WL 5558094, at *4 (W.D. Tex. Sept. 16, 2020) (finding a doctor to be qualified to give reliable testimony as to the costs of medical services because he had “over twenty-four years of experience billing and reviewing the bills of his patients form[ing] the basis of the reliability of his testimony regarding Plaintiff's medical costs,” and “his role as a treating physician allow[ed] him to regularly review and become familiar with reasonable charges regarding treatments for neck and spinal injuries”). For these reasons, the court is not persuaded by Grant's characterization of Dr. Graham as an expert for hire and, instead, finds that Dr. Graham is qualified to testify as to the medical causation of Grant's alleged injuries and the billing for the medical services Grant received in this case.[8] See Dixon v. Home Depot, No. CIV.A. 13-2776, 2015 WL 2254861, at *3 (W.D. La. May 13, 2015) (rejecting the defendant's argument that the plaintiff's expert was an “expert for hire,” determining that the expert's 35 years of experience in the relevant field established that he was qualified to testify); Betts, 2008 WL 2789524, at *12 (finding an expert was qualified based on her thirty years of experience in that field even though she had only ever testified on behalf of the defendant).

Moreover, the court finds that Dr. Graham's methodology is reliable. Notably, Dr. Graham reviewed Grant's past medical history and post-collision medical records, including diagnostic imagery, before formulating his opinions based on his knowledge, skill, experience, training, and education as an orthopedic surgeon. Courts have found this to be a reliable method for reaching conclusions regarding the causation of a person's injuries and the necessary treatment for such injuries. Cf. Mendoza v. Lafarge N. Am., Inc., No. CV 15-1257, 2016 WL 153952, at *3 (E.D. La. Jan. 13, 2016) (holding that the expert's reliance on written medical records, without reviewing diagnostic imagery or physically examining the plaintiff, was a scientifically valid methodology); see McNabney v. Lab. Corp. of Am., 153 F. App'x 293, 295 (5th Cir. 2005) (stating that “medical causation experts must have considered and excluded other possible causes of injury” and that they “must be aware of the plaintiff's pertinent medical history”); Allstate Ins. Co. v. Plambeck, No. 3-08-CV-0388-M-BD, 2012 WL 12885053, at *2 (N.D. Tex. June 26, 2012) (explaining that each expert's evaluation of the treatment provided to patients based on their experience as treating chiropractors “is the same methodology used day-in and day-out by the medical community in the regular course of diagnosing and treating patients and is, therefore, “both valid and reliable”). Contrary to Grant's assertion, the fact that Dr. Graham did not examine Grant personally does not prevent his expert testimony from being reliable. Indeed, “[n]umerous courts have held that an expert witness need not personally examine a plaintiff in rendering his opinion.” Mendoza, 2016 WL 153952, at *3 (collecting cases).[9] Moreover, Dr. Graham was questioned about the lack of a physical examination at his deposition (#125-15). He stated: “In Mr. Grant's case, if I felt like I needed to examine him in order to make an opinion, then I would have asked to examine him. But in Mr. Grant's case, I did not.” Thus, Dr. Graham's reliance on Grant's medical records, instead of personally examining him, does not compel the conclusion that his opinion must be excluded; rather, that issue goes to the weight—not the admissibility—of his testimony. See, e.g., Moultrie v. Coloplast Corp., No. 2:18-CV-00231-PLD, 2020 WL 1248913, at *4 (W.D. Pa. Mar. 16, 2020) (finding that the expert's reliance on another doctor's assessment did not require the expert's exclusion, but it would go to the weight of his testimony); Mendoza, 2016 WL 153952, at *3 (“[The expert]'s examination of the pertinent medical records is an acceptable methodology; the lack of a physical examination does not render [the expert]'s testimony inadmissible. Plaintiff is free to challenge [the expert]'s testimony on cross-examination.”).

*11 Dr. Graham's methodology for determining the usual and customary costs of medical services is also reliable. He relied on his education, knowledge, training, and experience as an orthopedic surgeon in making an assessment. Dr. Graham also utilized: (1) his “30 years of experience in the usual and customary reimbursement for medical and surgical services provided to [his] patients in [his] practice”; (2) published reimbursement data by Medicare and by major private healthcare insurance companies for all types of musculoskeletal, medical, and surgical services, including radiological imaging and pain management services; (3) cash pay prices for radiological imaging, surgical services, and pain management services in the State of Texas; (4) cash pay prices for services provided by hospitals and ambulatory surgery centers in the State of Texas; and (5) billing and reimbursement data obtained from peer reviewed medical literature. Using the codes assigned to each of Grant's medical services, called “CPT codes,” Dr. Graham compared the costs charged by Grant's medical providers with the costs for each service as determined by his sources (#144-10). This is a reliable method for determining the usual and customary charges for medical services. See Perez v. Boecken, No. SA-19-CV-375-XR, 2020 WL 3074420, at *12 (W.D. Tex. June 10, 2020).

Importantly, in its gatekeeping function, the court does not assess the credibility of specific conclusions proffered by expert witnesses. Once experts have employed reliable principles and methods in reaching their conclusions, the court will not adjudge the conclusions themselves. Daubert, 509 U.S. at 595; Guy, 394 F.3d at 325 (citing Daubert, 509 U.S. at 593-94). Nevertheless, in upholding its duty as a gatekeeper, the court must consider whether the expert relied on insufficient or incorrect facts to form his opinion. See Jacked Up, L.L.C. v. Sara Lee Corp., 807 F. App'x 344, 348 (5th Cir. 2020) (quoting ZF Meritor, LLC v. Eaton Corp., 696 F.3d 254, 294 (3d Cir. 2012)) (agreeing with the Court of Appeals for the Third Circuit that “the ‘suggestion that the reasonableness of an expert's reliance on facts or data to form his opinion is somehow an inappropriate inquiry under Rule 702 results from an unduly myopic interpretation of Rule 702 and ignores the mandate of Daubert that the district court must act as a gatekeeper’ ”). “Although the basis of an expert's opinion usually goes to the weight and not the admissibility of expert testimony, in some cases ‘the source upon which an expert's opinion relies is of such little weight that the jury should not be permitted to receive that opinion.’ ” Id. (quoting Viterbo, 826 F.2d at 422). That is not the case here.

Grant challenges Dr. Graham's opinions as being based on insufficient or incorrect facts, but the court is not convinced. Grant asserts that Dr. Graham based his conclusion that Grant had pre-existing back problems, in part, on the fact that Grant's deposition testimony revealed that Grant took Skelaxin, a muscle relaxer.[10] Grant argues that this was either a typographical error by the court reporter or a misstatement by Grant. Grant also has an issue with Dr. Graham's assertion that Grant was hospitalized for back pain in 2016. Although Grant went to the hospital claiming that he suffered from acute pain in his “entire spine” (#139-6), Grant now argues that he was hospitalized for a virus and that there was no indication of a back or neck issue in that instance. Further, Grant maintains that in determining the usual and customary costs of Grant's medical services, Dr. Graham should not have used data from Medicare and private health insurance because Grant did not use either in procuring his medical care.[11] Grant also details certain inconsistencies between Dr. Graham's reports and his deposition testimony.

*12 None of these issues, however, renders Dr. Graham's opinion unreliable. Although Grant may disagree with Dr. Graham's conclusions or question the sources he used to reach his conclusions, those contentions go to the weight rather than the admissibility of the evidence. See Puga v. RCX Sols., Inc., 922 F.3d 285, 295-96 (5th Cir. 2019) (explaining that “[i]f [the expert] missed any important facts, the oversight should go to the weight of his opinion, not its admissibility”); Cantu, 2020 WL 5558094, at *4 (“[Q]uestions relating to the bases and sources of an expert's opinion affect the weight of the evidence rather than its admissibility, and should be left for the finder of fact.” (citing Viterbo, 826 F.2d at 422)). Accordingly, the court denies Grant's request to exclude or limit Dr. Graham's testimony.

IV. Conclusion

Based on the foregoing, Grant's Motion to Strike Experts (#75) is DENIED as moot. It is further ordered that Grant's Motions to Exclude or Limit Expert Testimony (#s 125, 126, 129) and Motion to Strike Counter Affidavit (#123) are DENIED.

SIGNED at Beaumont, Texas, this 28th day of January, 2021.

In Grant's reply to CRST's response to the Motion to Strike Experts (#179), Grant withdraws the portion of the motion as it pertains to Dr. Graham, although he maintains the motion as it relates to Irmo Marini, Ph.D. (“Dr. Marini”), CRST's vocational expert. Because the court permitted CRST to file a rebuttal expert report from Dr. Marini in its December 16, 2020, order (#219), the remainder of Grant's motion is now moot. Accordingly, Grant's Motion to Strike Experts (#75) is denied as moot.

Grant takes issue with the fact that the April Report was not disclosed until May 1, 2020—a month after its creation. Because Grant did not adequately brief the issue, however, the court will not consider it. See, e.g., Domain Prot., LLC v. Sea Wasp, LLC, 426 F. Supp. 3d 355, 377 (E.D. Tex. 2019) (citing Audler v. CBC Innovis Inc., 519 F.3d 239, 255 (5th Cir. 2008)) (finding that the defendant's argument was inadequately briefed and, therefore, waived); Watson v. Astrue, No. 6:12-CV-315, 2013 WL 6662828, at *2 (E.D. Tex. Dec. 17, 2013) (determining that the plaintiff waived his argument based on his inadequate briefing because he did not develop his argument further than stating his objection).

The charge for the surgery was initially only estimated in the Counter-Affidavit.

Section 18.001 was last amended on September 1, 2019. Because this case was filed in 2018, the prior version of the statute applies here. Notably, the current version of the statute amends primarily procedural requirements, which are not at issue in this case.

Months after the filing of the instant motions, the parties expressed to the court that there was a dispute regarding whether one of Grant's purported § 18.001 affidavits is sufficient. That issue, however, was not addressed in the parties' briefing, so the court will not consider it.

The court compares the April and July Reports to the Counter-Affidavit in determining whether the reports are supplemental under Rule 26. Grant challenges Dr. Graham's reports as being insufficient under Rule 26(e), which requires the parties to supplement previous disclosures “only ‘if the information has not otherwise been made known during the discovery process or in writing.’ ” Better Mouse Co., LLC v. SteelSeries Aps, No. 2:14-CV-198-RSP, 2016 WL 7665908, at *2 (E.D. Tex. Jan. 7, 2016) (quoting FED. R. CIV. P. 26(e)); see Hernandez v. Results Staffing, Inc., 907 F.3d 354, 362 (5th Cir. 2018) (quoting FED. R. CIV. P. 26(e)). Because the Counter-Affidavit was previously made known to Grant in January 2019, the court includes the Counter-Affidavit in its Rule 26 analysis. See Better Mouse Co., LLC, 2016 WL 7665908, at *2 (finding no Rule 26 violation where the expert was testifying on an issue that was “explored in numerous depositions during discovery”); ZiiLabs Inc., Ltd. v. Samsung Elecs. Co., No. 2:14-CV-203-JRG-RSP, 2015 WL 8293585, at *3 (E.D. Tex. Dec. 8, 2015) (finding no Rule 26 violation in the plaintiff's failure to supplement an interrogatory response where the communication at issue was explored in the deposition of the plaintiff and other witnesses).

Contrary to Grant's claim, Dr. Graham is not “exclusively a defense expert.” He has served as an expert witnesses for both plaintiffs and defendants (#125-3).

The court's determination is further affirmed by an exchange between Dr. Graham and Paul Ferguson, Grant's counsel, during Dr. Graham's deposition (#s 125-7, 125-8):

See Walker v. Soo Line R.R. Co., 208 F.3d 581, 591 (7th Cir. 2000) (admitting opinion testimony from a physician who performed a records review without an examination, noting that “[t]he lack of an examination ... does not render [the physician's] testimony inadmissible”); Sementilli v. Trinidad Corp., 155 F.3d 1130, 1134 (9th Cir. 1998) (admitting expert testimony of a physician who had not personally examined the plaintiff, noting that the physician's opinions and inferences “were based on his review of [the plaintiff's] medical records, as well as his knowledge, experience, training and education”); Kannankeril v. Terminix Int'l, Inc., 128 F.3d 802, 807 (3d Cir. 1997) (explaining that in the context of medical testimony, “it is perfectly acceptable, in arriving at a diagnosis, for a physician to rely on examinations and tests performed by other medical practitioners” and the fact that the physician did not himself perform a physical examination does not necessarily diminish his opinion); Carroll v. Morgan, 17 F.3d 787, 790 (5th Cir. 1994) (holding that a doctor was qualified under Daubert to give an expert opinion as to causation based on his review of the plaintiff's medical records, the coroner's records, and a broad spectrum of published materials); Woods v. Abrams, No. 06-757, 2008 WL 4950149, at *1 (W.D. Pa. Nov. 17, 2008) (“The case law is clear that an expert witness need not personally examine a plaintiff, and that an examination of the pertinent medical records is ‘perfectly acceptable.’ ”).

In his affidavit, Grant states that he never took Skelaxin; rather, he took Celexa, an anxiety medication (#125-42).

To the extent that Grant may assert that Dr. Graham's use of data from Medicare and private insurance companies is barred under the collateral source rule, that argument must be rejected. The collateral source rule prohibits the reduction in a defendant's liability because of benefits received by the plaintiff from another source. Haygood v. De Escabedo, 356 S.W.3d 390, 394-95 (Tex. 2011). The rule, however, “has no applicability to [Dr. Graham]'s proposed expert testimony.” Perez, 2020 WL 3074420, at *13. Although Dr. Graham uses data from Medicare and private insurance companies to determine the usual and customary costs for the medical services Grant received, he “does not offer evidence of ‘benefits received by [Grant] from someone else.’ ” Id. (quoting Haygood, 356 S.W.3d at 394). Thus, any objection to Dr. Graham's use of Medicare and private insurance data would go to the “bases and sources of the opinion, not to inadmissible evidence of a collateral source of payment to [Grant] in this case.” Id. (internal quotation marks omitted).