Deborah Rose Eezzuduemhoi, PLLC D/B/A Southeast Texas Opthalmology the Glaucoma Center and Deborah Rose Eezzuduemhoi v. Phillis Delli ( 2022 )

In The
Court of Appeals
Ninth District of Texas at Beaumont
__________________
NO. 09-22-00053-CV
__________________
DEBORAH ROSE EEZZUDUEMHOI, PLLC D/B/A/ SOUTHEAST
TEXAS OPTHALMOLOGY THE GLAUCOMA CENTER AND
DEBORAH ROSE EEZZUDUEMHOI, Appellants
V.
PHILLIS DELLI, Appellee
________________________________________________________________
On Appeal from the 172nd District Court
Jefferson County, Texas
Trial Cause No. E-208,175
__________________________________________________________________
MEMORANDUM OPINION
The Texas Medical Liability Act (“TMLA”) requires plaintiffs asserting a
health care liability claim to serve each defendant with an “adequate” expert report
or face dismissal of their claim. Tex. Civ. Prac. & Rem. Code Ann. § 74.351. In this
interlocutory appeal, Appellants Deborah Rose Eezzuduemhoi (“Dr.
Eezzuduemhoi”) and Deborah Rose Eezzuduemhoi, PLLC d/b/a Southeast Texas
Ophthalmology The Glaucoma Center (“The Glaucoma Center”) (collectively
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“Defendants” or “Appellants”) argue that the trial court abused its discretion by
denying their TMLA motion to dismiss. The Defendants contend the expert’s report
is not adequate because it is speculative, fails to consider what condition Appellee
Phillis Delli’s (“Appellee,” “Plaintiff,” or “Phillis”) eyes would be in without the
surgery, contains conclusory statements and no more than ipse dixit, and only
addresses the alleged injury to Phillis’s 1 left eye, rather than the “ultimate injury”
which Plaintiff contends she received to both eyes. Because we cannot say the trial
court abused its discretion in denying the motion to dismiss, we must affirm.
The Original Petition
Phillis Delli filed her Original Petition on August 19, 2021, naming Dr.
Eezzuduemhoi and The Glaucoma Center as defendants. Delli alleged that she went
to The Glaucoma Center on April 26, 2019 for a consultation for cataract surgery
and complaints about vision difficulties and problems with glare from headlights
when driving at night. The petition alleged that Dr. Eezzuduemhoi performed
cataract extraction with intraocular lens implant of the left eye on August 26, 2019,
and the surgery was complicated “by a posterior capsule rent with vitreous loss[,]”
and a “+21.00 D anterior chamber intraocular lens (ACIOL) was placed.” In follow-
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Phillis Delli died shortly after filing this suit, and her daughter Billie Delli
continues to prosecute the lawsuit as executrix of Phillis’s estate. The claims against
the Defendants are for negligence, they relate to complications from eye surgery,
and the appellate record contains no allegation that Phillis’s death was related to the
surgery or treatment provided by the Defendants.
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up visits over the next two months, Delli received four prescriptions and was
diagnosed with left eye corneal edema and left eye ocular hypertension, with a plan
ultimately to replace the ACIOL with a different lens implant.
On November 4, 2019, Phillis underwent ACIOL “explantation” at The
Medical Center of Southeast Texas and a “3-piece Alcon Lens Model mn60ac” was
inserted. At follow-up visits over the next month, she complained of foreign body
sensation in her left eye, and she was told that an anterior vitrectomy of the left eye
was necessary due to vitreous in the anterior chamber.
Phillis underwent a third eye surgery performed by Dr. Eezzuduemhoi on
December 9, 2019. The next day, Phillis presented with anterior vitrectomy of the
left eye, and she was instructed to continue her medications. At follow-up visits the
following month, she stated that her vision seemed to be getting worse, and on
January 27, 2020, Dr. Eezzuduemhoi told Phillis there was nothing more the doctor
could do for her, and the doctor continued two of Phillis’s prescriptions.
On February 5, 2020, Phillis saw Dr. Talbot for a second opinion, who
observed “significant iris abnormalities including a hole inferiorly at 5 oclock,
atrophy at 6 oclock, and iridocorneal adhesions.” Dr. Talbot concluded that Phillis
would require another surgery, including a “corneal transplant, IOL reposition or
exchange, and iris repair OS.” Dr. Talbot referred Phillis to Dr. Hamill at Baylor
College of Medicine. On February 21, 2020, Phillis saw Dr. Hamill, who diagnosed
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her with “corneal edema OS, pseudophakia OS, anterior synechiae OS, and age-
related cataract of the right eye[,]” and the left eye showed a “tilted scleral PCIOL
with severe diffuse corneal edema, a temporal vascularized corneal scar, and
multiple iridocorneal adhesions[.]” A pre-operative exam on May 18, 2020, revealed
“pseudophakic bullous keratopathy of the left eye with obscured view of the anterior
segment and posterior segment with multiple iridocorneal adhesions of peripheral
iris defects.” She underwent a fourth procedure on her left eye on July 8, 2020, for
a “PKP, iris reconstruction, IOL exchange for a trans-sclerally sutured lens of the
left eye.” One day after surgery, Phillis went for a follow-up visit, complaining of a
slight headache. An examination revealed that the graft was in a good position, and
there was some corneal edema with mild AC reaction. Phillis was to take two
medications and return in a week, and after several more follow-up visits, she was
“basically” doing well with “no complaints.”
According to the petition, “[t]he pathology of the cornea revealed diffuse
stromal edema, a retrocorneal fibrotic membrane, and near-total absence of
endothelial cells[,]” and “[t]he damage to Plaintiff’s eye was caused by Defendants’
negligence.” The petition asserted claims against Dr. Eezzuduemhoi for negligence
and gross negligence for:
1. Failing to timely correct the ACIOL haptic.
2. Failing to refer Plaintiff to a cornea specialist to expedite the timely
repair of the ACIOL haptic.
3. Failing to correct the malpositioned sclerally-fixated PCIOL.
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4. Such other and further acts of negligence as may be supplemented as
a result of discovery performed in this suit.
The petition also stated claims against The Glaucoma Clinic under a theory of
respondeat superior for negligence and gross negligence. Plaintiff sought damages
for medical bills, pain and suffering, mental anguish, loss of earning capacity,
physical impairment, and loss of enjoyment of life as well as interest and attorney’s
fees. Plaintiff also sought exemplary damages.
Dr. Bradley’s Report
Phillis served a report from Dr. Jay Cameron Bradley on October 4, 2021. 2 In
his report, Dr. Bradley stated that he is a board-certified ophthalmologist and
currently practicing as a “Cornea, External Disease, Cataract, & Refractive Surgery
specialist” in Lubbock, Texas. Bradley stated that he had reviewed Phillis’s medical
records from The Glaucoma Center, The Medical Center of Southeast Texas, and
Baylor College of Medicine, and he included a summary description of Phillis’s
history from April 26, 2019 through August 27, 2020.
Bradley stated that for patients with a haptic of an ACIOL or a malpositioned
or “tilted” sclerally-fixated posterior chamber intraocular lens, the standard of care
2
In the initial motion to dismiss under the TMLA, the Defendants argued that
the matter should be abated until a representative of Phillis’s estate had been
appointed. Plaintiff filed a Suggestion of Death of Plaintiff, Phillis Delli on
December 4, 2021, and Letters Testamentary naming Billie Delli (“Billie”) as the
executrix of Phillis’s estate. Defendants then refiled their Chapter 74 Motion to
Dismiss RE Expert Report.
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requires that the lens needs to be repositioned or exchanged as soon as possible to
avoid progressive and irreversible damage to the cornea. According to Bradley, “[i]n
both instances in this case, there were prolonged delays before the issue was
corrected.” Dr. Bradley stated that Dr. Eezzuduemhoi should have “corrected the
ACIOL haptic in the wound and the malpositioned sclerally-fixated PCIOL without
delay to prevent progressive and irreversible damage to the cornea [or] referred the
patient to a cornea specialist if she was unable to correct these issues.” In Dr.
Bradley’s opinion, Dr. Eezzuduemhoi breached the applicable standard of care by
failing to correct the ACIOL haptic in the wound for over seven weeks after the
initial surgery and failing to correct the malpositioned sclerally-fixated PCIOL.
Dr. Bradley states:
Dr. Eezzuduemhoi delayed correction of both issues for a prolonged
period of time directly resulting in progressive and irreversible corneal
damage. When intraocular lens implants are not in correct position
(such as in this case), the lens implant moves inside the eye and rubs
against the cornea. This causes the endothelial cells (which line the
inner surface of the cornea and keep the cornea clear) to progressively
die, resulting in corneal swelling and cloudiness. If the malpositioned
intraocular lens implant is not corrected, the number of endothelial cells
progressively decrease over time until the cornea is irreversibly
damaged and a corneal transplant is required to clear the cornea. The
delays in care of this case resulted in a need for additiona1 surgery and
poor outcome. With earlier intervention of the ACIOL haptic in the
wound and the malpositioned sclerally-fixated PCIOL, further surgery
would most likely have been avoided and a better outcome would most
likely been attained.
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According to Dr. Bradley, Phillis had complicated cataract surgery, and because
ACIOL haptic in the surgery wound and malpositioned sclerally-fixated PCIOL
were not managed “urgently[,]” Phillis developed progressive and irreversible
corneal damage. Dr. Bradley wrote that most patients who suffer these issues are
able to achieve “complete restoration of vision[,]” and Phillis was unable to achieve
such recovery due to the lack of prompt diagnosis and treatment.
Defendants’ Motion to Dismiss
In Defendants’ motion to dismiss, the Defendants argued that Dr. Bradley’s
report did not meet the requirements of the TMLA because “causation of the
‘ultimate injury’ is lacking.” Specifically, the motion states:
Dr. Bradley was not provided the affidavit of Ms. Billie Delli,
and therefore could not have addressed the “ultimate injury,” i.e., the
full scope of damages claimed in this case.
Dr. Bradley does not address the status of Ms. Delli’s right eye.
Additionally, according to the Defendants, Dr. Bradley’s statements that Phillis had
a “poor outcome[]” and that most patients in Phillis’s position “often enjoy complete
restoration of vision[]” are impermissibly conclusory. The Defendants also argued
that an expert report must address other plausible causes of the harm for which
recovery is sought, and Dr. Bradley should have addressed the problems Phillis had
with her right eye because it “would point to causes and conditions bearing on the
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left eye[.]” 3 According to the Defendants, Dr. Bradley’s report was deficient under
the TMLA standards, and the case should be dismissed.
Attached to the Defendants’ motion to dismiss was a copy of Dr. Bradley’s
report and Billie Delli’s affidavit. Billie’s affidavit was signed and sworn on
September 23, 2021. In her affidavit, Billie described her mother Phillis before the
surgery as outgoing and very involved with her family. According to Billie, after her
surgery, Phillis was unable to work, financially dependent, withdrawn, and “sorrow-
filled[.]”
At the hearing on the motion to dismiss, Defendants argued that, even though
Plaintiff’s burden at this stage of the litigation does not require it to marshal all its
proof, Plaintiff is still required to “provide a reasonably detailed explanation based
upon the facts of how they would prove proximate causation at trial.”
Plaintiff’s Response to Motion to Dismiss
In their response to the Defendants’ motion to dismiss, Plaintiff argued that
Dr. Bradley’s report provides “very specific and consistent opinions” about the
probable cause of Phillis’s injuries. According to Plaintiff, Billie’s affidavit was not
executed until forty-one days after Dr. Bradley’s report was issued, and the affidavit
has no bearing on whether the report meets the TMLA requirements. Plaintiff also
3
The Defendants’ motion to dismiss does not challenge Dr. Bradley’s
qualifications nor his opinions on standard of care and breach.
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argues that Dr. Bradley’s failure to address Phillis’s right eye is not relevant because
“only the left eye is at issue in this case.” Plaintiff argues that Dr. Bradley’s opinion
on causation is not conclusory because it provides a fair summary of the causal
relationship between the breach and the injury, it is sufficient to inform Defendants
of the specific conduct Plaintiff challenges, and it provides a sufficient basis for the
trial court to conclude that Plaintiff’s claims have merit.
At the hearing on the motion to dismiss, Plaintiff argued the “gist of this entire
case [] only has to do with [Phillis’s] left eye[]” and the allegations about Phillis’s
“life enjoyments” and how problems with her right eye may have affected the left
eye only go to the scope of damages.
After the hearing on the motion to dismiss, the trial court signed an order
denying Defendants’ motion to dismiss. Defendants timely filed a notice of
interlocutory appeal.
Standard of Review and Applicable Statutory Requirements
The TMLA governs health care liability claims and requires that the plaintiff,
to avoid dismissal, serve an expert report addressing liability and causation as to
each defendant within 120 days after the defendant files an original answer. Rogers
v. Bagley, 623 S.W.3d 343, 348 (Tex. 2021) (citing Tex. Civ. Prac. & Rem. Code
Ann. § 74.351(a)). The purpose of the expert report requirement is to weed out
frivolous malpractice claims in the early stages of litigation, not to dispose of
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potentially meritorious claims. Abshire v. Christus Health Se. Tex., 563 S.W.3d 219,
223 (Tex. 2018) (per curiam) (citing Am. Transitional Care Ctrs. of Tex., Inc. v.
Palacios, 46 S.W.3d 873, 877 (Tex. 2001)); see also Loaisiga v. Cerda, 379 S.W.3d
248, 258 (Tex. 2012) (“[Expert report] requirements are meant to identify frivolous
claims and reduce the expense and time to dispose of any that are filed.”). In
accordance with that purpose, the Act provides a mechanism for dismissal of the
claimant’s suit in the event of an untimely or deficient report. Tex. Civ. Prac. &
Rem. Code Ann. § 74.351(b).
In a case under the TMLA, we review a trial court’s ruling on a motion to
dismiss challenging the adequacy of an expert report for an abuse of discretion. See
Abshire, 563 S.W.3d at 223; Van Ness v. ETMC First Physicians, 461 S.W.3d 140,
142 (Tex. 2015) (per curiam); Palacios, 46 S.W.3d at 877-78. “A trial court abuses
its discretion if it acts in an arbitrary or unreasonable manner without reference to
any guiding rules or principles.” Bowie Mem’l Hosp. v. Wright, 79 S.W.3d 48, 52
(Tex. 2002) (per curiam). A trial court’s ruling does not constitute an abuse of
discretion simply because the appellate court would have ruled differently under the
circumstances. See id. A trial court also abuses its discretion if it fails to analyze or
apply the law correctly. See In re Prudential Ins. Co. of Am., 148 S.W.3d 124, 135
(Tex. 2004) (citing Walker v. Packer, 827 S.W.2d 833, 840 (Tex. 1992)).
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When reviewing the sufficiency of a report, “we consider only the information
contained within the four corners of the report.” Abshire, 563 S.W.3d at 223 (citing
Palacios, 46 S.W.3d at 878). And we view the entirety of the report rather than
isolating specific portions or sections. See E.D. v. Tex. Health Care, P.L.L.C., 644
S.W.3d 660, 667 (Tex. 2022) (appellate review of an expert’s report must consider
“the report as a whole[]”) (citing Van Ness, 461 S.W.3d at 144); see also Baty v.
Futrell, 543 S.W.3d 689, 694 (Tex. 2018).
While the report “need not marshal all the plaintiff’s proof,” it must provide
a fair summary of the expert’s opinions as to the applicable standards of care, how
the care rendered by the health care provider failed to meet the standards, and the
causal relationship between that failure and the injury claimed. Jelinek v. Casas, 328
S.W.3d 526, 539 (Tex. 2010); see also Tex. Civ. Prac. & Rem. Code Ann.
§ 74.351(r)(6) (An expert report is sufficient under the TMLA if it “provides a fair
summary of the expert’s opinions . . . regarding applicable standards of care, the
manner in which the care rendered . . . failed to meet the standards, and the causal
relationship between that failure and the injury[.]”); Jernigan v. Langley, 195
S.W.3d 91, 93 (Tex. 2006); Palacios, 46 S.W.3d at 875, 878. In determining the
adequacy of an expert report, a court reviews the pleadings to determine the claims
alleged and whether the report addresses those claims. See Christus Health Se. Tex.
v. Broussard, 306 S.W.3d 934, 938 (Tex. App.—Beaumont 2010, no pet.) (citing
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Windsor v. Maxwell, 121 S.W.3d 42, 51 (Tex. App.—Fort Worth 2003, pet. denied)).
The report must “explain, to a reasonable degree, how and why the breach caused
the injury based on the facts presented.” Jelinek, 328 S.W.3d at 539-40. The trial
court need only find that the report constitutes a “good faith effort” to comply with
the statutory requirements. Tex. Civ. Prac. & Rem. Code Ann. § 74.351(l); see also
Abshire, 563 S.W.3d at 223; Palacios, 46 S.W.3d at 878. The Texas Supreme Court
has held that an expert report demonstrates a “good faith effort” when it
“(1) inform[s] the defendant of the specific conduct called into question and
(2) provid[es] a basis for the trial court to conclude the claims have merit.” Baty, 543
S.W.3d at 693-94.
The expert report “‘must set forth specific information about what the
defendant should have done differently’”; that is, “‘what care was expected, but not
given.’” E.D., 644 S.W.3d at 664 (quoting Abshire, 563 S.W.3d at 226). A report
adequately addresses causation when the expert explains “how and why” the breach
of the standard caused the injury in question by “explain[ing] the basis of his
statements and link[ing] conclusions to specific facts.” Abshire, 563 S.W.3d at 224.
The report need only make “‘a good-faith effort to explain, factually, how proximate
cause is going to be proven.’” Id. (quoting Columbia Valley Healthcare Sys., L.P. v.
Zamarripa, 526 S.W.3d 453, 460 (Tex. 2017)). The report presents a sufficient
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causation analysis when it “draws a line directly” from the alleged breach of the
standard of care to the ultimate injury. See id. at 225.
As to causation, “[n]o particular words or formality are required[]” to explain
how the healthcare provider’s negligence caused the patient’s injury, but the report
must contain more than a conclusory statement explaining the expert’s theory of
causation to comply with the good-faith-report requirements of the TMLA. Scoresby
v. Santillan, 346 S.W.3d 546, 556 (Tex. 2011) (footnotes omitted); Jelinek, 328
S.W.3d at 539-40. At this stage, an expert’s report does not have to meet the
evidentiary requirements needed to make an expert’s opinion relevant and
admissible in a summary judgment proceeding or a trial. Miller v. JSC Lake
Highlands Operations, LP, 536 S.W.3d 510, 517 (Tex. 2017) (per curiam).
Analysis
Here, the Appellants’ primary challenge to the report pertains to its alleged
insufficiency on causation. Appellants argue that Dr. Bradley’s report is inadequate
as to causation because (1) it does not address how bad Delli’s vision was in both
eyes before she saw Dr. Eezzuduemhoi, (2) it does not address Delli’s vision at key
points in the timeline, (3) it does not address whether Delli’s vision improved after
the cornea transplant, (4) it does not address how the condition in Delli’s right eye
“informs what could or could not have been accomplished with the left eye,” and
(5) it does not address how “vague terms such as ‘poor outcome’” actually affect the
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life activities Delli’s daughter’s affidavit describes. Appellants also argue that Dr.
Bradley’s opinion that there was a “poor outcome” with Delli’s left eye is vague and
conclusory. In addition, Appellants argue that Dr. Bradley did not compare what
Delli’s vision would have been without Dr. Eezzuduemhoi’s treatment, and
Bradley’s opinion “about ‘complete restoration of vision’ is speculative and
conclusory ipse dixit.” According to Appellants, Dr. Bradley speculates that a
different course of action by Dr. Eezzuduemhoi would have improved Delli’s
chances for a “complete restoration of vision” and this is nothing more than a “last
chance” theory that the Texas Supreme Court rejected in Kramer v. Lewisville
Memorial Hospital, 858 S.W.2d 397, 400 (Tex. 1993). Finally, Appellants argue that
even if the complaints against Dr. Eezzuduemhoi are accepted as true, Dr. Bradley’s
report only addresses Delli’s left eye, and because the report does not address Delli’s
right eye, it is inadequate for failing to address the “ultimate injury.”
At this stage of the proceeding we may not require a claimant to “present
evidence in the report as if it were actually litigating the merits[,]” and we cannot
say that the trial court abused its discretion in reaching the conclusion that Dr.
Bradley’s amended report constitutes a good faith effort to comply with the TMLA’s
requirement to provide a fair summary of his opinion with respect to the causal
relationship between Defendants’ alleged breach and Phillis’s claimed injury. We
also cannot say that the amended report failed to inform the Defendants of the
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specific conduct called into question or that it fails to provide a basis for the trial
court to conclude the claims have merit. See Abshire, 563 S.W.3d at 226 (citing Tex.
Civ. Prac. & Rem. Code Ann. § 74.351(l), (r)(6); Palacios, 46 S.W.3d at 879); Baty,
543 S.W.3d at 693-94.
We disagree with Appellant’s argument that the report contains nothing more
than the mere ipse dixit of the expert. “[T]he mere ipse dixit of [an] expert—that is,
asking the jury to take the expert’s word for it—will not suffice.” Windrum v. Kareh,
581 S.W.3d 761, 769 (Tex. 2019) (citing City of San Antonio v. Pollock, 284 S.W.3d
809, 816 (Tex. 2009); see also Cooper Tire & Rubber Co. v. Mendez, 204 S.W.3d
797, 806 (Tex. 2006) (explaining that testimony is fundamentally unsupported when
“the only basis for the link between the [expert’s] observations and his conclusions
was his own say-so[]” (citing Volkswagen of Am., Inc. v. Ramirez, 159 S.W.3d 897,
912-13 (Tex. 2004) (Hecht, J., concurring))). Here, the report contains Dr. Bradley’s
opinion that: Dr. Eezzuduemhoi delayed correction of the ACIOL haptic in the
surgery wound and the malpositioned sclerally-fixated PCIOL; that when intraocular
lens implants are not in the correct position, the implant rubs against the cornea; and
that this causes the endothelial cells to die, which results in corneal swelling and
cloudiness. Dr. Bradley also explained the basis of his opinions when he wrote that
delayed correction of both issues for a prolonged period of time directly resulted in
progressive and irreversible corneal damage, and that with earlier intervention of the
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ACIOL haptic in the wound and the malpositioned sclerally-fixated PCIOL, further
surgery would most likely have been avoided and a better outcome would most
likely have been attained. Dr. Bradley’s report “draws a line directly from” the
Defendants’ breach of the standard of care, to the delay in diagnosis and treatment,
and to the eye injury. See Abshire, 563 S.W.3d at 225. Dr. Bradley explains “to a
reasonable degree, how and why the breach caused the injury based on the facts
presented.” See Jelinek, 328 S.W.3d at 539-40.
The trial court could have also rejected Appellants’ argument that the report
was deficient because it only addressed the left eye and failed to address Phillis’s
right eye. The report explained sufficient detail at this preliminary stage to provide
a basis for the trial court to conclude that Plaintiff’s claims may have merit. The
report contained an explanation with respect to the alleged causal relationship
between Defendants’ alleged breach and Phillis’s left eye injury. We need not
determine whether the report is deficient for failing to address an injury to Phillis’s
right eye because the Supreme Court has explained that an expert report is sufficient
so long as it adequately addresses at least one liability theory against a defendant
health care provider. See Certified EMS, Inc. v. Potts, 392 S.W.3d 625, 630 (Tex.
2013); see also Abshire, 563 S.W.3d at 224 (explaining that the expert report need
not account for every known fact).
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We also cannot say the trial court abused its discretion in rejecting Appellants’
suggestion that the claims alleged are nothing more than the “last chance” or “lost
chance of survival” claims rejected in Kramer. See 858 S.W.2d at 400; see also
Columbia Rio Grande Healthcare, L.P. v. Hawley, 284 S.W.3d 851, 859-62 (Tex.
2009) (addressing Kramer and explaining that the Texas Supreme Court has rejected
the notion that the lost chance of survival or improved health is a distinct,
compensable injury). At this stage of the litigation, the plaintiff is not required to
marshal all evidence, and “the expert need not prove the entire case or account for
every known fact[]” as long as it is a good-faith effort to explain factually how the
plaintiff will prove proximate cause. Abshire, 563 S.W.3d at 224 (citing Zamarripa,
526 S.W.3d at 460).
Nor can we say that the trial court erred in rejecting Appellants’ argument that
Dr. Bradley’s opinion on causation was deficient because it did not address “all the
activities set forth in the affidavit of Ms. Billie Delli, i.e., the ‘ultimate injury’ for
which recovery in dollar damages is sought.” In evaluating the sufficiency of the
expert report, the trial court “could not look beyond the four corners of the report at
this stage to determine whether the facts asserted in the pleading and the report were
false.” See Broussard, 306 S.W.3d at 939 (citing Wright, 79 S.W.3d at 52; Palacios,
46 S.W.3d at 878). Billie’s affidavit was first filed with the Defendants’ motion to
dismiss, and it was not available to Dr. Bradley when he wrote his report. Any
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alleged deficiency in failing to address certain activities described in Billie’s
affidavit may be the subject of further development in discovery or the subject of
other pretrial motions, but it is not instructive at this stage of the litigation because
the failure to address Billie’s affidavit does not render Dr. Bradley’s expert report
deficient under section 74.351. See Tex. Civ. Prac. & Rem. Code Ann. § 74.351;
Broussard, 306 S.W.3d at 939.
We overrule Appellants’ issue, and we affirm the trial court’s order.
AFFIRMED.
_________________________
LEANNE JOHNSON
Justice
Submitted on August 3, 2022
Opinion Delivered November 17, 2022
Before Kreger, Horton and Johnson, JJ.
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