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Click here for the full text of this decision FACTS: The appellant, Brandon Perez, by and through his next friend, Debra Perez, individually and on behalf of similarly situated individuals, appeals the district court’s grant of summary judgment in favor of the appellee, Blue Cross Blue Shield of Texas. HOLDING: Affirmed. Perez retains a legally cognizable interest in the outcome were a court to issue an injunction that Blue Cross discontinue its practice of denying health insurance coverage to people with Down’s syndrome. Furthermore, Perez has a live claim for actual damages. Perez’s causes of action are not moot. Perez asserts that the district court erred by failing to exclude the affidavit of Jay Ripps, Blue Cross’ actuarial expert witness. Perez contends that Ripps’ reliance on “additional materials provided to me by counsel” is improper summary judgment proof because it cannot be readily controverted. “Could have been readily controverted” does not mean that the summary judgment evidence could have been easily and conveniently rebutted, but rather signifies that the testimony could have been effectively countered by opposing evidence. Casso v. Brand, 776 S.W.2d 551 (Tex. 1989). That Ripps tied each of his opinions to specific documents gave Perez a sufficient basis on which to present opposing evidence. The district court did not abuse its discretion in admitting the Ripps’ affidavit. Perez asserts that he has a valid cause of action under article 21.21-6 of the insurance code. Although Perez agrees with Blue Cross that article 21.21-6 does not provide for a private right of action because only the insurance commissioner may assess penalties under this provision, he nevertheless contends that he may assert a claim under article 21.21-6 by way of insurance code article 21.21-8 and the DTPA “laundry list.” The provisions do not refer to each other. Without such a cross-reference or some demonstration in the legislative history of an interrelationship, the court cannot say that the remedy in article 21.21-8 encompasses that in article 21.21-6 simply because the provisions were enacted in the same legislative session. The court holds that Perez may not bring a private cause of action under article 21.21-6 by way of article 21.21-8. Blue Cross does not contend that the DTPA has no application, only that Perez has no claim under the DTPA because he is not a consumer. A consumer under the DTPA is a person who seeks or acquires goods or services by purchase or lease. However, because the record does not demonstrate that Blue Cross presented this argument to the trial court, it is waived for purposes of appeal. Assuming without deciding that the DTPA does apply, there was no evidence of a DTPA violation. The court concludes that Blue Cross’s refusal to insure Perez because he has Down’s syndrome did not constitute unfair discrimination under article 21.21-8 between individuals of the same class and essentially the same hazard. If the relevant class is all persons, both parties presented sufficient proof that persons with Down’s syndrome have greater medical risks than the average person and therefore are not of the same hazard as the average person. If the relevant class is all persons with Down’s syndrome, then Blue Cross did not unfairly discriminate because it treated all persons within that class and hazard in the same manner. OPINION: Patterson, J.; Law, C.J., Smith and Patterson, JJ.

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