rebecca-hart-and-wayne-hart-individually-and-on-behalf-of-the-estate-of ( 2010 )

Affirmed and Memorandum Opinion filed July 27, 2010.

In The

Fourteenth Court of Appeals

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NO. 14-09-00657-CV

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Rebecca Hart and Wayne Hart, Individually and on behalf of the Estate of Wayne Hart, Jr., Deceased, Appellants

V.

Eric Comstock, M.D., Toxicology Associates, Inc., Roxane Laboratories, Inc. and Gloria Maguadog, M.D., Appellees

On Appeal from the 212th District Court

Galveston County, Texas

Trial Court Cause No. 08-CV-0128

MEMORANDUM OPINION

            In this health-care liability case, the appellants contend the trial court erred in dismissing their claims against one defendant, denying their motion for continuance, and granting no-evidence summary judgment in favor of the three remaining defendants.  We affirm.

I.  Factual and Procedural Background

            Wayne Hart Jr. died from methadone toxicity shortly after entering an outpatient drug treatment program.  On February 8, 2008, his parents, Wayne and Rebecca Hart, filed a health-care liability suit on behalf of themselves and their son’s estate.  The defendants included methadone manufacturer Roxane Laboratories, Inc.; the methadone clinic, Toxicology Associates, Inc.; the clinic’s director, Dr. Eric Comstock; and Dr. Gloria Maguadog.[1] After receiving the Harts’ expert report, Dr. Comstock successfully moved to dismiss the claims against him on the grounds that the report, which did not mention him, did not represent a good-faith effort to comply with the statutory requirements.  Toxicology and Dr. Maguadog also challenged the adequacy of the expert report as to them, but their motions were denied. 

            In March 2009, Toxicology, Roxane, and Dr. Maguadog filed motions for no-evidence summary judgment, and a hearing on the motions was set for April 6, 2009.  The Harts moved to continue the hearing on the motions on the ground that there had been inadequate time for discovery.  The trial court denied the motion for continuance, granted summary judgment in favor of Roxane, Toxicology, and Dr. Maguadog, and denied the Harts’ motion for new trial. 

II.  Issues Presented

            In their first issue, the Harts contend that the trial court erred in denying their motion for continuance and granting summary judgment in favor of Toxicology, Roxane, and Dr. Maguadog.  In their second issue, they argue that the trial court erred in granting Dr. Comstock’s motion to dismiss. 

III.  Analysis

A.        Denial of the Motion for Continuance

            After the parties have had adequate time for discovery, a party may move for summary judgment on the grounds that there is no evidence to support one or more of the elements of a claim or defense on which the adverse party bears the burden of proof.  Tex. R. Civ. P. 166a(i). The trial court may grant a motion to continue a summary-judgment hearing if it appears “from the affidavits of a party opposing the motion that he cannot for reasons stated present by affidavit facts essential to justify his opposition.”  Tex. R. Civ. P. 166a(g).  In determining whether the respondent has had adequate time for discovery, courts may consider factors such as the nature of the claim; the evidence necessary to controvert the motion; the length of time the case was on file; the length of time the no-evidence motion was on file; whether the movant requested stricter guidelines for discovery; the amount of discovery already conducted; and whether the discovery deadlines in place were specific or vague. Cmty. Initiatives, Inc. v. Chase Bank, 153 S.W.3d 270, 278 (Tex. App.—El Paso 2004, no pet.).  We review the denial of a motion for continuance for clear abuse of discretion, defined as “a decision so arbitrary and unreasonable as to amount to a clear and prejudicial error of law.”  Joe v. Two Thirty Nine Joint Venture, 145 S.W.3d 150, 161 (Tex. 2004). 

            In their verified motion to continue the hearings on the motions for summary judgment, the Harts failed to identify any witness whom they wished to depose or any material evidence obtainable through further discovery.  They instead stated only that written discovery was “far from complete,” “additional written discovery is needed,” and “[n]o depositions have been taken.”[2] These conclusory generalizations do not meet the requirements of the Texas Rules of Civil Procedure.  See Tex. R. Civ. P. 252 (“If the ground [for continuance] be the want of testimony, the party applying therefor shall make affidavit that such testimony is material, showing the materiality thereof, and that he has used due diligence to procure such testimony, stating such diligence, and the cause of failure, if known . . . .”); Duerr v. Brown, 262 S.W.3d 63, 78–79 (Tex. App.—Houston [14th Dist.] 2008, no pet.) (stating that a movant for continuance based on the need for testimony must identify the witness and the evidence that the testimony is expected to demonstrate).  A trial court does not abuse its discretion by denying a motion for continuance where, as here, the movant fails to show why a witness could not have been deposed.  Gregg v. Cecil, 844 S.W.2d 851, 853 (Tex. App.—Beaumont 1992, no writ). 

            The motion for continuance was insufficient for the additional reason that the Harts did not claim to have been diligent in pursuing discovery as the Rules require.  See Tex. R. Civ. P. 252.  They served no deposition notices, interrogatories, requests for production, or requests for admission.  “[T]he failure of a litigant to diligently utilize the rules of civil procedure for discovery purposes will not authorize the granting of a continuance.”  State v. Wood Oil Distrib., Inc., 751 S.W.2d 863, 865 (Tex. 1988).  The Harts made several arguments to excuse their lack of diligence.  First, the Harts stated in their motion that there was a death in the family of one of their counsel in September 2008, but they did not explain how this prevented them from initiating discovery.  Second, the Harts argued that they learned for the first time on January 9, 2009, that the trial court had signed a scheduling order in the case.  But at a hearing in Galveston on August 27, 2008, counsel for all parties, including the Harts’ counsel, obtained a trial date from the court, agreed to the deadlines in the order, signed the agreed docket control order, and left it with the court for signature.  The order was signed by the trial judge on September 9, 2008.  Even after they learned that the court had signed the order, the Harts undertook no discovery.  Finally, the Harts argued that counsel had discussions about agreeing to a new docket control order in the January-February 2009 time frame. But counsel for the Harts admitted at oral argument that he did not have the agreement of all counsel; he had no Rule 11 agreement[3]; and even with the agreement of counsel to continue the case, there is no guarantee that a trial judge will agree to the continuance.

None of the defendants moved for summary judgment before March 6, 2009, the date clearly stated in the order as the discovery deadline.  By that time, the case had been pending for more than a year, and just 38 days remained before trial. The Harts then allowed half of that time to elapse before they sought a continuance, and the motion was heard just one week before the case was to be tried.

            We conclude that the trial court did not abuse its discretion in denying the Harts’ motion for continuance and granting summary judgment in favor of Toxicology, Roxane, and Dr. Maguadog.  We overrule the Harts’ first issue and affirm the judgment as to those defendants.

B.        Motion to Dismiss

            Within 120 days after the date a health-care liability claim is filed, a claimant must serve on each party one or more expert witness reports summarizing the expert’s opinions “regarding applicable standards of care, the manner in which the care rendered by the physician or health care provider failed to meet the standards, and the causal relationship between that failure and the injury, harm, or damages claimed.”  Tex. Civ. Prac. & Rem. Code Ann. § 74.351(a), (r)(6) (Vernon 2005).  Thus, an expert report not only must “provide a basis for the trial court to conclude that the claims have merit” but also “must inform the defendant of the specific conduct the plaintiff has called into question.”  Am. Transitional Care Ctrs. of Tex., Inc. v. Palacios, 46 S.W.3d 873, 879 (Tex. 2001).  If the report is not an objective good-faith effort to comply with these requirements, a trial court must grant the health-care provider’s motion challenging the report’s adequacy.  Tex. Civ. Prac. & Rem. Code Ann. § 74.351(l).  

            In Dr. Comstock’s motion to dismiss the claims against him, he correctly notes that he is never mentioned in the Harts’ expert report.  The Harts filed no response to Dr. Comstock’s motion, but on appeal, the Harts argue that Dr. Comstock is vicariously liable for the conduct of Dr. Maguadog, and they point out that if a defendant is alleged to be vicariously liable for the conduct of the treating physician, a report that is adequate as to that physician fulfills the expert report requirement for both defendants.  See Gardner v. U.S. Imaging, Inc., 274 S.W.3d 669, 671–72 (Tex. 2008) (per curiam). 

            We cannot consider this argument because the Harts’ claims of vicarious liability were made for the first time on appeal.  See Tex. R. App. P. 33.1(a) (setting forth prerequisites for appellate review).  Although the Harts identified Dr. Comstock in their pleadings as the medical director of Toxicology at the time their son was treated, they did not impute liability to Dr. Comstock for the actions of another defendant.[4] To the contrary, their allegations against Dr. Comstock are identical to their allegations against Dr. Maguadog: in each instance, the Harts claimed only that the named physician failed to provide timely, adequate, or proper medical care and treatment.  They therefore were required to produce an expert report that specified the standard of care applicable to Dr. Comstock, identified his breach of the standard, and explained how his breach caused their son’s death.  See, e.g., Univ. of Tex. Med. Branch v. Railsback, 259 S.W.3d 860, 864 (Tex. App.—Houston [1st Dist.] 2008, no pet.); Baylor Univ. Med. Ctr.v. Biggs, 237 S.W.3d 909, 919 (Tex. App.—Dallas 2007, pet. denied).  The expert report does none of these things, nor do the Harts contend otherwise.  We therefore overrule the Harts’ second issue and affirm the trial court’s judgment.

                                                                        /s/        Tracy Christopher

                                                                                    Justice

Panel consists of Justices Brown, Sullivan, and Christopher.

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[1] An additional defendant, Mallinckrodt, Inc., was non-suited.

[2] In their motion for new trial and on appeal, the Harts point out that Hurricane Ike struck Galveston on September 13, 2008; however, they did not move for continuance on this basis or assert this as a justification for the failure to pursue discovery.  Moreover, both of the Harts’ attorneys’ offices were and are in Dallas, Texas, and the Harts have never claimed that the hurricane’s landfall nearly three hundred miles away had any effect on their attorneys’ abilities to seek evidence supporting the Harts’ claims. 

[3] See Tex. R. Civ. P. 11.

[4] In evaluating a challenge to an expert report, courts generally should look no further than the report itself.  Palacios, 46 S.W.3d at 878.  There appears to be a limited exception to this rule, allowing the court to look at the claimant’s pleadings to determine if the claimant has alleged that a health-care provider that is not named in the expert report is purely vicariously liable for the actions of its agents or employees that are identified in the report.  See Gardner, 274 S.W.3d at 671–72 and cases cited therein. The Harts made no such allegations against Dr. Comstock.