Bexar County Judge Nelson Wolff told the San Antonio Express-Newsthat Martin Phipps’ firm “screwed up” the submission of certain expert-witness testimony for the county’s lawsuit against opioid manufacturers.
Wolff commented on a summary of Dr. Bryan Alsip’s purported opinions about aspects of the opioid case that the Phipps firm turned into the court without Alsip ever having signed off on what Phipps' team had written.
Alsip is the chief medical officer for University Health System, which is a plaintiff along with the county in the case and also one of the biggest hospitals in the area. In his capacity as CMO he could potentially testify about treating and overseeing the treatment of hundreds, if not thousands, of addicted people and the lives lost in battle against a national epidemic of opioid use. He could also testify about how drug companies marketed and sold drugs.
As one of the leaders of Bexar County’s opioid task force, he could also testify about the community impact of that epidemic based on the work of the task force.
Such opinions could be used by attorneys representing Bexar County to try to establish whether those companies are responsible for deaths in Bexar County and how much those companies might be responsible for in damages.
So by not letting Alsip write his own summary and by failing to consult with him, the Phipps firm made a serious misstep, according to veteran San Antonio attorney August Toudouze, who is not involved in the case.
Toudouze, a 38-year veteran of the state courts and a board certified personal-injury attorney, said if a witness in Alsip’s position were to be put on the stand, things could go poorly.
“It’s just stupid,” Toudouze said. “He's going to get torn apart because, obviously, that witness would have to verify or stand behind the opinions in the report. Once the other attorney gets him on examination, the doctor is going to say, ‘No, those aren't my opinions. I didn't write the report.’”
Then that witness and his expert opinion could easily be thrown out, Toudouze added.
A spokesman for Phipps’ firm disputed the allegations around Alsip’s expert testimony.
“We categorically deny that anything improper occurred and regret that a former colleague is mischaracterizing the facts for his own purposes,” said a spokesman for Phipps’ firm, which is now called PhippsOrtizTalafuse.
Phipps’ spokesman referred to a four-page sworn affidavit submitted by former Phipps law partner TJ Mayes as part of a complaint filed with the State Bar about Phipps. It alleged that Phipps behaved unethically and erratic and was often intoxicated.
TPR confirmed that Alsip was so upset by the fact that he wasn’t consulted on his own supposed expert opinion submitted in the case that he lawyered up. He hired Laura Cavaretta to intervene.
One of Cavaretta’s first jobs was finding out what opinions Phipps’ firm attributed to Alsip in its summary of expert testimony. Phipps' firm wasn’t providing Alsip access to the summary submitted in the case containing his supposed views, according to Mayes' State Bar complaint about Phipps.
More than a month passed between when Phipps submitted the purported summary of Alsip’s opinion with the court and when the doctor learned what was in that document, according to Mayes’ complaint.
Neither Alsip nor his attorney responded to questions sent by TPR.
Toudouze said the mistake could have spelled disaster for the county’s case.
But ultimately it wasn’t an issue.
Because of COVID, the trial start date was delayed first from October of last year to April of this year and then to September, and now it’s set for early 2022. That delay allowed Phipps’ firm to find new experts.
The county and its lawyers essentially got a do-over on their experts. Phipps’ firm “de-designated” or withdrew nearly all of its experts and the summaries for their testimony late last year.
While any major impact to the case going forward seems unlikely at this point, the alleged behavior surrounding the original expert testimony summaries remains worrisome to many involved with the case.
In his affidavit to the state bar, Mayes paints a drug-fueled portrait of Phipps who rants and rages against his staff. Mayes blamed Phipps’ behavior for the fact that the team was late submitting the expert testimony summaries.
“I observed Martin Phipps behaving highly erratically and under the influence of large and dangerous quantities of controlled substances and alcohol on the days before and the day of August 21, 2020 (the deadline for submitting expert summaries),” Mayes said in his sworn affidavit.
Phipps’ attorney Michael McCrum has said Mayes' accusations were part of a “scorched-earth campaign” against Phipps.
Mayes’ allegation that Phipps used drugs and was abusive comes on the heels of hisex-wife Brenda Vega’s assertion that Phipps was under the influence of drugswhen he harassed her, which was made in a warrant filed by San Antonio police for Phipps’ arrest. Lana Cop, a former employee of his bar Paramour that he dated last year, also said Phipps used drugs and sent her “evil” text messages around the time their relationship ended. McCrum, Phipps’s lawyer, has specifically disputed these accusations.
As of Jan. 13, Mikal Watts of the firm Watts Guerra — rather than Martin Phipps — will be running the Bexar opioid case, according to County Judge Wolff.
“I am hereby authorizing you to take any action, which in your legal opinion as Co-Lead Counsel for Bexar County you deem procedurally necessary to preserve the legal rights of Bexar County as Plaintiff,” said Wolff, in a letter to Watts obtained by TPR.
Watts declined to comment for this story, but his role in the case may encourage the doctor to participate.
“I would think the new attorney could repair whatever damage has been done with this doctor,” Toudouze said.
Bexar County may have dodged a bullet as a result of the global pandemic.
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