William Bruce Sherrill, D.D.S. and Shaw & Sherill, D.D.S. v. Buffie G. Williams ( 2015 )

ACCEPTED
05-14-00847-CV
FIFTH COURT OF APPEALS
DALLAS, TEXAS
5/12/2015 9:34:35 AM
LISA MATZ
CLERK
No. 05-14-00847-CV
FILED IN
5th COURT OF APPEALS
In the Court of Appeals for the DALLAS, TEXAS
Fifth District of Texas 5/12/2015 9:34:35 AM
LISA MATZ
Clerk
WILLIAM BRUCE SHERRILL, DDS, AND
SHAW & SHERILL, DDS,
Appellants,
v.
BUFFIE G. WILLIAMS
Appellee.
On Appeal from 162nd District Court of Dallas County, Texas
Cause No. DC-13-10538
APPELLANTS’ MOTION FOR EN BANC RECONSIDERATION
Sean Cox Mr. Bruce W. Steckler
State Bar No. 24031980 State Bar No. 00785039
Law Offices of Sean R. Cox Steckler, LLP
P.O. Box 130864 12720 Hillcrest Road - Suite 1045
Dallas, TX 75313 Dallas, TX 75230
Telephone: 214-500-9280 Telephone: 972-387-4040
Fax: 877-270-0978 Fax: 972-387-4041
scox@coxappellate.com bruce@stecklerlaw.com
Counsel for Appellants
ORAL ARGUMENT REQUESTED
TABLE OF CONTENTS
TABLE OF AUTHORITIES……………………………………………………....iv
ISSUES PRESENTED…………………………………………………………….vi
INTRODUCTION………………………………………………………………….1
ARGUMENTS AND AUTHORITIES…………………………………………….3
I. Appellant was not required to object to the “Preliminary Report”
submitted by Appellee because it was not a report under the
requirements of Texas Civil Practice & Remedies Code § 74.351
and Texas Supreme Court precedent………………………………………...3
A. The Stewart “Preliminary Report” was not an expert report on
medical causation because it was not from an “individual with
expertise.”…………………………………………………………….3
B. Contrary to the Court’s Opinion, Appellants identified the
Scoresby standard the Stewart Preliminary Report fails to
satisfy — that the report be from an “individual with expertise.”……7
C. The Opinion in this case skips the initial step of determining
whether an expert report exist by first requiring an objection
to the report…………………………………………………………...9
D. No objection is required to a plaintiff’s failure to file an expert
report from an “individual with expertise.”…………………………10
E. The Court’s requirement that a defendant object to reports that
are not reports at all undermines the policies behind Texas Civil
Practice & Remedies Code § 74.351………………………………..14
II. Appellee’s cause of action for assault by threat of bodily injury
should have been dismissed………………………………………………..15
CONCLUSION…………………………………………………………………...17
Appellants’ Motion for En Banc Reconsideration ii
CERTIFICATE OF SERVICE……………………………………………………18
CERTIFICATE OF COMPLIANCE……………………………………………...18
APPENDIX
Opinion…………………………………………………………………Tab A
Appellants’ Motion for En Banc Reconsideration iii
TABLE OF AUTHORITIES
Cases
Am. Transitional Care Centers of Texas, Inc. v. Palacios,
46 S.W.3d 873 (Tex. 2001)………………………………………………5,15
Bakhtari v. Estate of Dumas,
317 S.W.3d 486 (Tex. App.–Dallas 2010, no pet.) …………………10-11,12
Certified EMS, Inc. v. Potts,
392 S.W.3d 625 (Tex. 2013) ………………………………………………..4
Cooper Tire & Rubber Co. v. Mendez,
204 S.W.3d 797 (Tex. 2006) ………………………………………………..5
Farishta v. Tenet Healthsystem Hospitals Dallas, Inc.,
224 S.W.3d 448 (Tex. App.–Fort Worth 2007, no pet.)……………………...16
Hollingsworth v. Springs,
353 S.W.3d 506 (Tex. App.–Dallas 2011, no pet.)………………………6,16
Hightower v. Baylor Univ. Med. Ctr.,
348 S.W.3d 512 (Tex. App.–Dallas 2011, pet. denied)……………………14
In re Jorden,
249 S.W.3d 416 (Tex.2008) (orig. proceeding)………………………...14-15
In re Lumsden,
291 S.W.3d 456 (Tex. App.–Houston [14th Dist.] 2009, no pet.)…………14
In re McAllen Med. Ctr., Inc.,
275 S.W.3d 458 (Tex.2008) (orig. proceeding)………………………...14,15
Loaisiga v. Cerda,
379 S.W.3d 248 (Tex. 2012)…………………………………………..passim
Monson v. Allen Family First Clinic, P.A.,
390 S.W.3d 598 (Tex. App.–Dallas 2012, no pet.)………………………….5
Appellants’ Motion for En Banc Reconsideration iv
Murphy v. Russell,
167 S.W.3d 835 (Tex. 2005)……………………………………………..5,14
Scoresby v. Santillan,
346 S.W.3d 546 (Tex. 2011)………………………………………………..passim
Sloan v. Farmer,
217 S.W.3d 763 (Tex. App.–Dallas 2007, pet. denied)……………………..5
Windsor v. Maxwell,
121 S.W.3d 42 (Tex. App.–Fort Worth 2003, pet. denied) ……………15-16
Statutory Authority
TEX. CIV. PRAC. & REM. CODE § 74.351……………………………………..passim
Appellants’ Motion for En Banc Reconsideration v
ISSUES PRESENTED
I. Whether the Court’s Opinion in this case errs in refusing to consider whether
a report required under Texas Civil Practice & Remedies Code § 74.351 has
been served based on the failure to meet the minimal requirement of being
from an “individual with expertise,” in the absence of an objection to the
purported report.
II. Whether the Court’s Opinion in this case errs in refusing to consider whether
a report required to be served under Texas Civil Practice & Remedies Code
§ 74.351satisfies the minimal requirement of identifying the specific conduct
at issue, in the absence of an objection to the purported report.
Appellants’ Motion for En Banc Reconsideration vi
No. 05-14-00847-CV
In the Court of Appeals for the
Fifth District of Texas
WILLIAM BRUCE SHERRILL, DDS, AND
SHAW & SHERILL, DDS,
Appellants,
v.
BUFFIE G. WILLIAMS
Appellee.
On Appeal from the 162nd District Court of Dallas County, Texas
Cause No. DC-13-10538
APPELLANTS’ MOTION FOR EN BANC RECONSIDERATION
COME NOW, Appellants, William Bruce Sherrill, D.D.S. and Shaw &
Sherrill, D.D.S., d/b/a Dental Associates of North Dallas, a/k/a North Central
Dental, and file this Motion for En Banc Reconsideration. In support thereof,
Appellants would show the Court as follows:
INTRODUCTION
The Court should grant en banc reconsideration in this case because the
Opinion issued by the Court conflicts with well-established precedent of the Texas
Appellants’ Motion for En Banc Reconsideration 1
Supreme Court regarding the minimum requirements for an expert report under
Texas Civil Practice & Remedies Code § 74.351. Specifically, the Court’s holding
that an objection is required to challenge a report submitted under Section 74.351,
before a determination that the document even qualifies as a report, is inconsistent
with the Texas Supreme Court precedent of Scoresby v. Santillan, 346 S.W.3d 546,
557 (Tex. 2011) and Loaisiga v. Cerda, 379 S.W.3d 248, 260 (Tex. 2012). No
objection is necessary to a document that does not satisfy the most fundamental
requirement of being from an individual with expertise. If the purported report is
not from an individual with expertise, it is not a mere deficiency, but rather no
report at all. In such circumstances, the defendant need only move to dismiss.
Here, the submitted “Preliminary Report” is not from an individual with expertise
in medical causation. Thus, no objection was necessary and the trial court should
have dismissed the case because 120 days had expired since the filing of
Defendants’ Answer and no report from an individual with expertise in causation
was submitted by plaintiff.1
Additionally, this Court should have reversed the trial court’s refusal to
dismiss the plaintiff’s cause of action for assault by threat because no specific
threat is identified in the “Preliminary Report.” Because a report is required to
1
Essentially, this Court has held that a plaintiff can submit no report at all on causation and
unless the defendant objects to such failure within 21 days of the plaintiff filing another report
solely on the standard of care, the defendant is barred from moving to dismiss based on the
complete failure to file a causation report. This result is contrary to Texas law and undermines
the purposes and policies underlying the expert report.
Appellants’ Motion for En Banc Reconsideration 2
identify the specific conduct of which the plaintiff complains, and no such
identification appears in the “Preliminary Report,” the report does not satisfy the
basic requirements of a report. No objection was required, yet this Court did not
consider the complaint because a timely objection was not raised.
In sum, the Court has held that none of the trial court’s errors need be
addressed because no objection was raised to the adequacy of the “Preliminary
Report”, regardless of the fact that the “Preliminary Report” does not satisfy the
Texas Supreme Court’s definition of a report. En banc reconsideration is
warranted to correct these errors.
ARGUMENTS AND AUTHORITIES
I. Appellant was not required to object to the “Preliminary Report”
submitted by Appellee because it was not a report under the
requirements of Texas Civil Practice & Remedies Code § 74.351 and
Texas Supreme Court precedent.
A. The Stewart “Preliminary Report” was not an expert report on
medical causation because it was not from an “individual with
expertise.”
In its Opinion in this case, this Court held Appellants waived all objections
to the “Preliminary Report” of Dr. Larry Stewart by not timely objecting to the
report. The Court’s Opinion is in error in several respects.
The central problem with the Court’s Opinion is confusion over whether a
report that does not meet the minimum requirements set forth by the Texas
Supreme Court is a deficient report or no report at all. If the report is merely
Appellants’ Motion for En Banc Reconsideration 3
deficient, then an objection must be timely raised. If, however, the submission
does not meet the minimum requirements for an expert report, then no objection is
necessary and the case must be dismissed for failure to file the required report.
Here, the Stewart “Preliminary Report” could not serve as the required
expert report because it did not meet the minimal requirements for a report as set
forth by the Texas Supreme Court in Scoresby v. Santillan, 346 S.W.3d 546, 557
(Tex. 2011). In Scoresby, the Texas Supreme Court held that in order to be a valid
expert report, the submission must be from “an individual with expertise” and
fairly summarize the applicable standard of care; explain how a physician or health
care provider failed to meet that standard; and establish the causal relationship
between the failure and the harm alleged. See Scoresby v. Santillan, 346
S.W.3d 546, 549 (Tex. 2011); see also Certified EMS, Inc. v. Potts, 392 S.W.3d
625, 630 (Tex. 2013) (citing TEX. CIV. PRAC. & REM. CODE § 74.351(r)(6)). “[I]f a
report does not meet the standard set in Scoresby, it is not an expert report
under the statute, and the trial court must dismiss the plaintiff’s claims if the
defendant has properly moved for dismissal.” Loaisiga v. Cerda, 379 S.W.3d 248,
260 (Tex. 2012) (emphasis added); TEX. CIV. PRAC. & REM. CODE § 74.351(b).
Failing to satisfy these minimum requirements is not a mere deficiency. Rather, “it
is not an expert report under the statute.” Loaisiga, 379 S.W.3d at 260.
The key failing in the Stewart Preliminary Report is that it was not from an
Appellants’ Motion for En Banc Reconsideration 4
“individual with expertise” regarding medical causation. 2 Indeed, Stewart’s lack
of expertise in medical causation is not even in dispute. The only arguments
raised by Appellee regarding the lack of an expert causation opinion is that a
timely objection to the Stewart Preliminary Report was not raised and that medical
causation testimony is not needed in this case.3 At no time, however, does Plaintiff
claim Stewart is an “individual with expertise” in medical causation. 4
Importantly, in considering the Scoresby requirement that the report be from
an “individual with expertise,” the proffered medical expert’s qualifications must
be evident from the four corners of the expert report and curriculum vitae, and
demonstrate expertise in regard to the “actual subject about which they are offering
an opinion.” Cooper Tire & Rubber Co. v. Mendez, 204 S.W.3d 797, 800 (Tex.
2006); see generally Am. Transitional Care Centers of Texas, Inc. v. Palacios, 46
S.W.3d 873, 878 (Tex. 2001). Here, the only proffered expert report even
mentioning causation was from an oral surgeon offering opinions on causation of
2
To the extent Dr. Stewart offers any opinions on causation they are purely conclusory. This is
unsurprising considering Dr. Stewart is no more qualified than any laymen at drawing a causal
connection to the alleged injuries and damages in this case.
3
Appellees argument that an expert report from an individual with expertise in causation is not
required because it allegedly will not be necessary at trial has been rejected by this Court and the
Texas Supreme Court. Murphy v. Russell, 167 S.W.3d 835, 838 (Tex. 2005) (“A claim may be a
health care liability claim to which the damage caps and expert report requirements are
applicable and yet not require expert testimony to prevail at trial.”); Monson v. Allen Family
First Clinic, P.A., 390 S.W.3d 598, 603 (Tex. App.–Dallas 2012, no pet.) (citing Sloan v.
Farmer, 217 S.W.3d 763, 768 (Tex. App.–Dallas 2007, pet. denied).
4
Notably, this Court did not hold Dr. Stewart’s report to be from an “individual with expertise”
in medical causation.
Appellants’ Motion for En Banc Reconsideration 5
back injuries, emotional trauma, and economic losses related to an alleged assault
by a dentist. CR 20, 23. This simply cannot satisfy even the most strained
interpretation of the expert report requirements. Even if the Stewart “Preliminary
Report” could satisfy the requirements as to the standard of care, 5 the four corners
of his expert report and curriculum vitae demonstrate he cannot in regard to
medical causation.
Given that Dr. Stewart is obviously not an “individual with expertise” as to
medical causation in this case, Appellee needed to submit a separate report from an
expert in medical causation by the deadline contained in Texas Civil Practice &
Remedies Code § 74.351. See Hollingsworth v. Springs, 353 S.W.3d 506, 512
(Tex. App.–Dallas 2011, no pet.) (submitting expert reports from an
anesthesiologist, a health care administration consultant, and a perioperative
nurse). This procedure is specifically permitted by Texas Civil Practice &
Remedies Code § 74.351, which provides that reports may be furnished by “one or
more expert reports” in order to satisfy the report requirements. TEX. CIV. PRAC. &
REM. CODE ANN. § 74.351(a).
There is absolutely no requirement that a defendant object to a report
because it only addresses the standard of care and not causation. Under Section
5
Appellants dispute Dr. Stewart is qualified to offer standard of care opinions in this case. For
purposes of this motion for rehearing, however, Appellants focus on Dr. Stewart’s lack of
expertise regarding to medical causation because it is obvious and undisputed.
Appellants’ Motion for En Banc Reconsideration 6
74.351, a defendant may wait until the plaintiff submits an expert report from
separate individuals with expertise in standard of care and medical causation, and
if one of those reports is not submitted within 120 days of the defendant's original
answer being filed, as here, the defendant may obtain a dismissal of the suit.
Defendants are not required to guess that the report that is furnished will be the
only report to be filed, nor are defendants required to object to the report as not
being from an individual with expertise as to medical causation. It is the plaintiff’s
burden to submit appropriate reports that at least met the minimum requirement of
being from an “individual with expertise.”
Because the “Preliminary Report” was not from an “individual with
expertise” it was not a report at all. This is not simply a question of inadequacy,
but existence. Because the “Preliminary Report” does not satisfy the minimum
requirements for an expert report, the trial court should have dismissed the case.
B. Contrary to this Court’s Opinion, Appellants identified the
Scoresby standard the Stewart Preliminary Report fails to satisfy
— that the report be from an “individual with expertise.”
This appeal is primarily based on the Texas Supreme Court cases of
Scoresby v. Santillan and Loaisiga v. Cerda. In fact, the majority of the briefing
focuses on the standards set forth in Scoresby, and later relied upon by Loaisiga.
Inexplicably, this Court’s Opinion, in refusing to address the argument that the
“Preliminary Report” was no report at all, based its refusal in part on Appellants’
Appellants’ Motion for En Banc Reconsideration 7
alleged failure to “identify the ‘standard set in Scoresby’ to which Loaisiga refers.”
Opinion at 4. This statement is incorrect. Appellants’ briefing identifies the
specific Scoresby standard to which Loaisiga refers and which Appellee failed to
satisfy in this case – that the report be from an “individual with expertise.” 6 This
standard is repeatedly referenced throughout Appellants’ briefing. Regardless, this
Court itself identified the standard when quoting Scoresby in its Opinion – “a
report meets the minimal standard ‘if it contains the opinion of an individual with
expertise that the claim has merit, and if the defendant’s conduct is implicated.’”
Opinion at 4 (quoting Scoresby v. Santillan, 346 S.W.3d 546, 557 (Tex. 2011)).
Obviously, the relevant standard referred to in Loaisiga is that the report must be
from an “individual with expertise.”
The Court’s statement that Appellants did not identify the Scoresby standard
to which Loaisiga refers suggests the Court did not consider whether the Stewart
“Preliminary Report” was authored by an “individual with expertise.” If this is
true, then the Court never considered whether Appellee’s submission was an actual
report. Given the fundamental nature of this inquiry, the Court should grant this
motion for en banc reconsideration and consider whether the Stewart “Preliminary
Report” is from an individual with expertise in medical causation.
6
See e.g., Appellants’ Brief at 1-2, 17-23, 26; Appellants’ Reply Brief at 10-12 (“A report from
an individual who is not an ‘individual with expertise,’ does not meet the minimum requirements
for an expert report, and such is not a mere deficiency, ‘it is not an expert report under the
statute.’ Loaisiga, 379 S.W.3d at 260.”).
Appellants’ Motion for En Banc Reconsideration 8
C. The Opinion in this case skips the initial step of determining
whether an expert report exist by first requiring an objection to
the report.
The most troubling aspect of the Opinion is that it reverses the analysis
called for by the Texas Supreme Court. As stated in the Opinion, “Appellants
failed to make a proper challenge to the Preliminary Report, so we need not
determine whether the report meets the minimal Scoresby standard.” Opinion at 4.
This turns the analysis completely on its head. It is necessary to first determine if
the report meets the minimal Scoresby standard in order to determine if any report
exists to which an objection to a deficiency might be necessary. The question of
whether a report is deficient is never reached if the minimal requirements are not
met. Because the Court did not first determine if the report met the Scoresby
standard of being from an individual with expertise in medical causation, the Court
skipped over the most fundamental consideration —whether the Stewart
submission was a report at all.
Before a court can analyze the necessity of an objection, it is necessary that
the Court determine that a report satisfying the Scoresby standard even exists.
Because the Court did not perform the analysis called for by the Texas Supreme
Court, the question of whether the “Preliminary Report” was from an “individual
with expertise” in medical causation was never answered. If no such report exists,
then no objection could possibly be required.
Appellants’ Motion for En Banc Reconsideration 9
The Court should take this opportunity to reconsider this appeal, determine
if the report at issue meets the minimal Scoresby standard of being from an
“individual with expertise” in medical causation, and if it does not, dismiss the
case.
D. No objection is required to a plaintiff’s failure to file an expert
report from an “individual with expertise.”
This Court also incorrectly held that the only way to make a proper
challenge to a report (that is actually no report at all), is for a defendant to object to
the report within 21 days of it being filed. In so holding, the Court relies on
Bakhtari v. Estate of Dumas, 317 S.W.3d 486 (Tex. App.–Dallas 2010, no pet.).
Such reliance is misplaced. In Bakhtari, the issue was not whether the report was
from an individual with expertise. Instead, the complaint in Bakhtari was that the
report was not from a physician of the same geographic location. This is a perfect
example of a report that meets the minimal requirement of being from an
“individual with expertise,” but still being deficient. There was no dispute that the
expert in Bakhtari was a physician and an “individual with expertise.” The
objection in Bakhtari was simply that the expert was “not qualified to render an
expert opinion on the standard of care in this case in light of the common-law
‘community-standard rule, or the locality rule.’” Id. at 494. Thus, this Court held
an objection to the expert’s qualifications was required. Had the expert in Bakhtari
not been a physician and had no expertise in medical causation, as here, the report
Appellants’ Motion for En Banc Reconsideration 10
would not be merely deficient, but rather no report at all. Thus, although an
objection was necessary in Bakhtari, none was necessary here, and Bakhtari does
not serve as precedent for refusing to consider Defendants’ complaints.
The Opinion in this case also appears to err by interpreting “challenge” to
only mean “objection.” Although challenging a deficient expert report may require
an objection, when no report is filed, an objection is not required. Rather, the
proper way to challenge the failure to file an expert report is simply moving to
dismiss. TEX. CIV. PRAC. & REM. CODE 74.351(b);7 Loaisiga, 379 S.W.3d at 260
(“But if a report does not meet the standard set in Scoresby, it is not an expert
report under the statute, and the trial court must dismiss the plaintiff's claims if the
defendant has properly moved for dismissal.”). Likewise, the proper way to
challenge the failure to file an expert report satisfying the Scoresby standard is by
moving to dismiss because failure to satisfy the Scoresby standard means no report
was actually submitted. The Court’s interpretation of the term “challenge” is
unjustifiably narrow. As provided by statute and the Texas Supreme Court, the
proper manner to challenge a report that does not meet the standard set in Scoresby
7
(b) If, as to a defendant physician or health care provider, an expert report has not been served
within the period specified by Subsection (a), the court, on the motion of the affected physician
or health care provider, shall, subject to Subsection (c), enter an order that:
(1) awards to the affected physician or health care provider reasonable attorney's fees and
costs of court incurred by the physician or health care provider; and
(2) dismisses the claim with respect to the physician or health care provider, with
prejudice to the refiling of the claim.
TEX. CIV. PRAC. & REM. CODE ANN. § 74.351(b).
Appellants’ Motion for En Banc Reconsideration 11
is by moving to dismiss.
The Court’s Opinion also creates problems with the timing requirements
under Texas Civil Practice & Remedies Code § 74.351. For instance, plaintiffs can
satisfy the expert report requirements by submitting multiple expert reports (such
as one from an expert on standard of care and one from an expert on causation).8
The plaintiff has 120 days from the date the answer is filed to submit such reports.
The timing problem occurs when both reports are not filed at the same time, such
as one being filed immediately after the answer and another report being filed
months later. Must a defendant object within 21 days of the first expert report
being submitted because it does not address both standard of care and medical
causation, or may a defendant wait the 120 days and then move to dismiss if the
second expert report is not submitted? If defendants wait to see if the second
expert report is filed, have they waived any challenge to the fact that the report is
inadequate or no report at all? This is very similar to the situation in the present
case, where a “Preliminary Report” was submitted by an individual without
expertise in medical causation, and Defendants waited until the time period expired
to submit expert reports before complaining as to the absence of a medical
causation report. Can it honestly be said that a defendant must object to the
absence of a report when there is still time for the plaintiff to serve the report? No
8
Interestingly, this is what was done in Bakhtari.
Appellants’ Motion for En Banc Reconsideration 12
such requirement appears in case law or the language of the health care liability
statutes, at least until this Court’s Opinion.
Another way to look at the effect of the Opinion is in the circumstances of a
“safety” health care liability case wherein a hospital administrator would be the
appropriate standard of care expert. Under this Court’s opinion, the hospital
administrator providing the report as to the standard of care could also provide
causation opinions and a defendant would have to object to the administrator’s
report as inadequate, rather than waiting until an individual with expertise in
causation submits a report. It is obvious the administrator would not be an
individual with expertise in causation, yet by merely mentioning a speculative
opinion on causation, the administrator’s report would be treated, according to this
Court’s Opinion, as being from an “individual with expertise.”
In short, no objection is required to an expert report that fails to satisfy the
Scoresby minimal requirements for an expert report because “if a report does not
meet the standard set in Scoresby, it is not an expert report under the statute, and
the trial court must dismiss the plaintiff’s claims if the defendant has properly
moved for dismissal.” 379 S.W.3d 248, 260 (Tex. 2012). Failing to file a report
from an “individual with expertise” is not an objectionable deficiency. It is as if no
report has been filed at all. No objection is required. A defendant must simply
move for dismissal. That is precisely what was done here.
Appellants’ Motion for En Banc Reconsideration 13
E. The Court’s requirement that a defendant object to reports that
are not reports at all undermines the policies behind Texas Civil
Practice & Remedies Code § 74.351.
In addition to conflicting with the Texas Supreme Court’s holdings in
Scoresby and Loaisiga, this Court’s ruling undermines the entire purpose of Texas
Civil Practice & Remedies Code § 74.351 — to “identify frivolous claims and
reduce the expense and time to dispose of any that are filed.” Loaisiga, 379 S.W.3d
at 258; Scoresby, 346 S.W.3d at 554 (citations omitted) (“The purpose of the expert
report requirement is to deter frivolous claims, not to dispose of claims regardless
of their merits.”); Hightower v. Baylor Univ. Med. Ctr., 348 S.W.3d 512, 522 (Tex.
App.–Dallas 2011, pet. denied) (“With the expert report requirement, the
legislature imposed a threshold to prevent frivolous lawsuits from proceeding until
a good-faith effort has been made to demonstrate that at least one expert believes
that a breach of the applicable standard of care caused the claimed injury.”)(citing
Murphy v. Russell, 167 S.W.3d 835, 838 (Tex. 2005)).
“The Legislature has repeatedly found that traditional rules of litigation
create an ongoing crisis in the cost and availability of medical care.” In re
Lumsden, 291 S.W.3d 456, 460-61 (Tex. App.–Houston [14th Dist.] 2009, no pet.)
(citing In re McAllen Med. Ctr., Inc., 275 S.W.3d 458, 461 (Tex.2008) (orig.
proceeding)). “To decrease the costs associated with frivolous suits, expert reports
are required soon after filing as a means of separating meritorious claims from
Appellants’ Motion for En Banc Reconsideration 14
frivolous or premature claims.” Id. at 461 (citing In re Jorden, 249 S.W.3d 416,
420 (Tex.2008) (orig. proceeding)); see also In re McAllen Med. Ctr., Inc., 275
S.W.3d at 461 (explaining, to address crises in cost of healthcare, Legislature
requires that health care claims must be supported with expert reports). If an
expert report from an individual completely lacking in expertise regarding medical
causation is sufficient, it would render the requirements under Texas Civil Practice
& Remedies Code § 74.351 essentially meaningless and would ignore the
Legislature’s goals. The Court should grant this motion for en banc
reconsideration and clarify that a report must first satisfy the minimal requirement
of being from an “individual with expertise” before requiring an objection.
II. Appellee’s cause of action for assault by threat of bodily injury should
have been dismissed.
This Court also held that Appellee’s cause of action for assault by threat of
bodily injury is not subject to dismissal because no objection was raised within 21
days of the filing of the Stewart “Preliminary Report.” This was error because the
report fails to satisfy the Scoresby requirements for an expert report in that it fails
to identify any alleged threat of bodily injury. As held by the Texas Supreme court
in Palacios, “the report must inform the defendant of the specific conduct the
plaintiff has called into question.” Am. Transitional Care Centers of Texas, Inc. v.
Palacios, 46 S.W.3d 873, 879 (Tex. 2001) (emphasis added); Loaisiga, 379
S.W.3d at 260 (citing Scoresby, 346 S.W.3d at 556); see also Windsor v. Maxwell,
Appellants’ Motion for En Banc Reconsideration 15
121 S.W.3d 42, 51 (Tex. App.–Fort Worth 2003, pet. denied) (“To inform the
defendant of the specific conduct the plaintiff has called into question, the report
must support the cause of action alleged by the plaintiff in its pleadings. To hold
otherwise would lead to easily imagined absurd results.”). If the report does not
even inform the defendant of the specific conduct alleged to form the plaintiff’s
cause of action, it does not meet even the minimum requirements of an expert
report, at least for that cause of action. Hollingsworth, 353 S.W.3d at 512;
Windsor, 121 S.W.3d at 51. Any plain reading of the expert report demonstrates
that it does not even mention a threat of bodily harm. The failure of Stewart’s
“Preliminary Report” to address the allegation that Appellant Sherrill threatened to
inflict bodily injury upon Appellee is fatal to this cause of action, 9and it should
have been dismissed. Hollingsworth, 353 S.W.3d at 522 (Tex. App.–Dallas 2011,
no pet.); Farishta v. Tenet Healthsystem Hospitals Dallas, Inc., 224 S.W.3d 448,
455 (Tex. App.–Fort Worth 2007, no pet.) (sustaining dismissal of claims not
addressed in expert report). This Court’s Opinion does not address this failure, but
rather holds that any failings in the expert report must be objected to within 21
days after it is served, even when those failings result in a submission that is the
equivalent of no report at all. This is contrary to Texas Supreme Court precedent
9
Although Stewart does mention allegations that Appellee was placed in fear of physical assault
and that a party subjected to a threat of physical violence can suffer damages, nowhere does
Stewart identify an actual threat of bodily injury.
Appellants’ Motion for En Banc Reconsideration 16
and Texas Civil Practice & Remedies Code § 74.351. The Court should grant
rehearing and address all of the complaints raised by Appellants.
CONCLUSION
For the foregoing reasons, Appellants respectfully request that this Court
grant this Motion for En Banc Reconsideration, reverse the trial court’s denial of
Appellants’ motion to dismiss Appellee’s causes of action, dismiss Appellee’s
claims with prejudice (or remand to the trial court with instructions to do the
same), and award Appellants attorneys’ fees and costs incurred in this case.
Respectfully submitted,
/s/ Bruce W. Steckler
Bruce W. Steckler
State Bar No. 00785039
STECKLER, LLP
12720 Hillcrest Road - Suite 1045
Dallas, TX 75230
Telephone: 972-387-4040
Fax: 972-387-4041
bruce@stecklerlaw.com
Sean Cox
State Bar No. 24031980
LAW OFFICES OF SEAN R. COX
P.O. Box 130864
Dallas, TX 75313
Telephone: 214-500-9280
Fax: 877-270-0978
scox@coxappellate.com
Appellants’ Motion for En Banc Reconsideration 17
CERTIFICATE OF SERVICE
This is to certify that on the 12th day of May, 2015, a true and correct copy
of the above and foregoing instrument was served via U.S. Mail, Fax and/or
Electronic Service, upon the following counsel of record in accordance with the
Texas Rules of Civil Procedure:
Price L. Johnson
The Johnson Firm
8750 N. Central Expressway, Suite 1010
Dallas, TX 75231
/s/ Bruce W. Steckler
Bruce W. Steckler
CERTIFICATE OF COMPLIANCE
Based on a word count run in Microsoft Word 2010, this Appellants’ Motion
for En Banc Reconsideration contains 4210 words, excluding the portions of the
document exempt from the word count under Texas Rule of Appellate Procedure
9.4(i)(1).
/s/ Bruce W. Steckler
Bruce W. Steckler
Appellants’ Motion for En Banc Reconsideration 18
Appendix Tab A
Appellants’ Motion for En Banc Reconsideration 19
AFFIRM; and Opinion Filed April 28, 2015.
S In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-14-00847-CV
WILLIAM BRUCE SHERRILL, D.D.S. AND SHAW & SHERRILL, D.D.S., Appellants
V.
BUFFIE G. WILLIAMS, Appellee
On Appeal from the 162nd Judicial District Court
Dallas County, Texas
Trial Court Cause No. DC-13-10538
MEMORANDUM OPINION
Before Justices Francis, Myers, and Brown
Opinion by Justice Brown
In this interlocutory appeal, appellants William Bruce Sherrill, D.D.S. and Shaw &
Sherrill, D.D.S. challenge the trial court’s refusal to dismiss appellee Buffie G. Williams’s
claims against them pursuant to Chapter 74 of the Texas Civil Practice and Remedies Code. In
three issues, appellants contend the trial court erred in denying their motion to dismiss because
Williams “fail[ed] to serve an expert report” as to the appropriate standard of care and causation,
and failed completely to address one cause of action in the report. Because appellants waived
these objections to Williams’s report, we affirm the trial court’s order.
Williams was employed by appellants as a dental assistant. Her claims grow out of a
confrontation with Sherrill during work hours. Williams contends the altercation culminated
with Sherrill pushing her to the ground, kicking her, and holding her down. Appellants contend
Williams tripped and fell. Following this incident, Williams no longer worked for appellants.
Williams contends she was fired by Sherrill; appellants contend she abandoned her job.
Williams filed suit against appellants, pleading causes of action for assault and
negligence. She attached a document titled the “Preliminary Report” of Larry R. Stewart,
D.D.S., M.S. and his curriculum vitae to her petition and served them on appellants
simultaneously with the petition. Appellants answered, generally denying Williams’s
allegations, asserting a number of affirmative defenses, and pleading counterclaims for
defamation, tortious interference, breach of contract, malicious prosecution, intentional infliction
of emotional distress, fraud, and abuse of process.
On May 9, 2014, appellants filed their motion to dismiss. See TEX. CIV. PRAC. & REM.
CODE ANN. § 74.351 (West Supp. 2014). Appellants argued Williams had asserted health care
liability claims within the meaning of Chapter 74, but she had failed to provide an expert report
required by that chapter. Specifically, appellants argued Stewart, an oral surgeon, was not
qualified to provide an expert report (a) on human resources or office administration issues in a
dentistry practice, or (b) on medical or psychiatric causation. Appellants argued further that the
Preliminary Report did not address Williams’s claim for assault by threat of bodily injury.
Williams responded to the motion, arguing appellants had waived any objections to the
Preliminary Report by failing to lodge those objections within twenty-one days of filing their
answer. She argued alternatively that the Preliminary Report was adequate to satisfy the
requirements of Chapter 74 or, again in the alternative, that she should be granted an extension to
provide an amended report. The trial court heard arguments and denied the motion.
Appellants filed this interlocutory appeal, making the same arguments concerning the
Preliminary Report,” namely that Stewart was unqualified to offer expert testimony in this case
and his report did not address all of Williams’s claims. We review the denial of a motion to
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dismiss filed pursuant to section 74.351 under an abuse of discretion standard. Nexus Recovery
Ctr., Inc. v. Mathis, 336 S.W.3d 360, 364 (Tex. App.—Dallas 2011, no pet.).
The threshold issue for our determination is whether appellants’ complaints were
untimely and waived as a result. Williams relies on Chapter 74’s dictates concerning expert
reports. The relevant provision begins by describing the claimant’s responsibility to file her
report “not later than the 120th day after the date each defendant’s original answer is filed.”
TEX. CIV. PRAC. & REM. CODE ANN. § 74.351(a). The statute goes on to provide that:
Each defendant physician or health care provider whose conduct is implicated in a
report must file and serve any objection to the sufficiency of the report not later
than the later of the 21st day after the date the report is served or the 21st day after
the date the defendant’s answer is filed, failing which all objections are waived.
Id. Williams served the Preliminary Report on September 6, 2013, and appellants answered on
October 7, 2013. Thus, appellants’ objections to the Preliminary Report were to be filed and
served by October 28, 2013, twenty-one days after appellants answered. See id. Appellants filed
no objections to the Preliminary Report until they filed their motion to dismiss on May 9, 2014,
which was 193 days after objections were due.
Appellants argue that because Stewart was unqualified to offer expert opinions in this
case as to both standard of care and causation, his report was the equivalent of no report at all. In
the absence of any valid expert report, he contends, he had no obligation to file objections. This
Court has considered and rejected appellants’ argument that a report from a purportedly
unqualified expert is tantamount to no report at all. See Bakhtari v. Estate of Dumas, 317
S.W.3d 486, 492 (Tex. App.—Dallas 2010, no pet.). In that case, we applied the plain language
of section 74.351(a) and concluded that “when a report and CV are timely served on a defendant
physician, any objections to the expert’s qualifications, and any objections to the sufficiency of
the report, must be raised by the defendant within 21 days after service of the report and CV.”
Id. at 493.
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Appellants rely on the Texas Supreme Court’s opinion in Loaisiga v. Cerda, in which
that court said “if a report does not meet the standard set in Scoresby [v. Santillan], it is not an
expert report under the statute, and the trial court must dismiss the plaintiff’s claims if the
defendant has properly moved for dismissal.” 379 S.W.3d 248, 260 (Tex. 2012). But appellants
fail to identify the “standard set in Scoresby” to which Loaisiga refers. In Scoresby, the Supreme
Court concluded a report meets the minimal standard “if it contains the opinion of an individual
with expertise that the claim has merit, and if the defendant’s conduct is implicated.” Scoresby
v. Santillan, 346 S.W.3d 546, 557 (Tex. 2011). More important for our purposes, the Supreme
Court makes clear that any determination as to whether a report meets these minimal Scoresby
requirements is to be made “[w]hen the document purporting to be an expert report is timely
served in an HCLC and is properly challenged.” Loaisiga, 379 S.W.3d at 260. A report is
“properly challenged” by objections filed within the relevant twenty-one day window. TEX. CIV.
PRAC. & REM. CODE ANN. § 74.351(a). Appellants failed to make a proper challenge to the
Preliminary Report, so we need not determine whether the report meets the minimal Scoresby
standard.
We reject appellants’ argument that they were not required to file timely objections, and
we conclude appellants waived all objections to the Preliminary Report. See id. Accordingly,
we overrule appellants’ three issues. 1
1
Both parties’ briefs address whether Williams’s claims are health care liability claims within the meaning of Chapter 74. That issue was
not raised below, and the trial court has not had an opportunity to rule on it. We will not deprive the trial court of its authority to rule first on
such an issue. See Daughety v. Nat’l Ass’n of Homebuilders of U.S., 970 S.W.2d 178, 182 (Tex. App.—Dallas 1998, no pet.) (“Addressing
matters not specifically presented to the trial court usurps the trial court’s authority to evaluate and rule on issues before it and denies the
appellate court the benefit of the trial court’s decision.”).
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We affirm the trial court’s order denying appellants’ motion to dismiss.
/Ada Brown/
ADA BROWN
JUSTICE
140847F.P05
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