DocketNumber: 11-11-00097-CV
Filed Date: 6/9/2011
Status: Precedential
Modified Date: 2/1/2016
Order filed June 9, 2011
In The
Eleventh Court of Appeals
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No. 11-11-00097-CV
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ABILENE REGIONAL MEDICAL CENTER, DEBBIE MARSH,
APRIL NICHOLS, AND TARENA SISK, Appellants
V.
ADANELICA ALLEN AND DAVID ALLEN, INDIVIDUALLY AND
AS NEXT FRIENDS OF MADISON ALLEN, Appellees
On Appeal from the 259th District Court
Jones County, Texas
Trial Court Cause No. 022317
A M E N D E D O R D E R
This accelerated appeal arises from the trial court’s denial of appellants’ motion to dismiss appellees’ health care liability claims. In this appeal, appellants challenge the adequacy of appellees’ expert reports under Section 74.351 of the Civil Practice and Remedies Code.[1] On April 28, 2011, we entered an order staying discovery in the underlying case in Cause No. 022317, styled Adanelica Allen and David Allen, Individually and as Next Friends of Madison Allen, Plaintiffs v. Abilene Regional Medical Center, Debbie Marsh, April Nichols, and Tarena Sisk, Defendants, pending in the 259th District Court of Jones County. Appellees have filed a “Motion to Clarify or Alternatively Reconsider in Part Order on Appellants’ Motion for Temporary Relief of a Stay of Discovery.” Appellants have filed an opposition to appellees’ motion. Having considered the motion and the opposition to the motion, we conclude that appellees’ motion to reconsider should be granted. Therefore, the motion to reconsider is granted as set forth below.
In our earlier order, we stayed discovery in the underlying case pending a resolution of this appeal. Section 74.351(s) permits a claimant to conduct limited discovery until the claimant has filed the expert report required by Section 74.351(a). Specifically, Section 74.351(s) provides as follows:
Until a claimant has served the expert report and curriculum vitae as required by Subsection (a), all discovery . . . is stayed except for the acquisition by the claimant of information, including medical or hospital records or other documents or tangible things, related to the patient’s health care through:
(1) written discovery as defined in Rule 192.7, Texas Rules of Civil Procedure;
(2) depositions on written questions under Rule 200, Texas Rules of Civil Procedure; and
(3) discovery from nonparties under Rule 205, Texas Rules of Civil Procedure.
Section 74.351(u) provides that, “[n]otwithstanding any other provision of this section, after a claim is filed all claimants, collectively, may take not more than two depositions before the expert report is served as required by Subsection (a).”
When a defendant challenges the adequacy of an expert report in an appeal, “the report is not adequate and, therefore, not served, until the court of appeals determines that it is adequate.” In re Lumsden, 291 S.W.3d 456, 460 (Tex. App.—Houston [14th Dist.] 2009, orig. proceeding). Until the issue of the adequacy of appellees’ expert reports is resolved in this appeal, there has been no service of an expert report on appellants. Id. Because no report has been served, the plain language of Section 74.351(s) allows appellees to engage in the limited discovery that it permits. That limited discovery may be further limited by Section 74.351(u).
Therefore, we order that appellees are entitled to conduct the limited discovery as permitted by Section 74.351(s) and (u) in the underlying cause. We further order that all other discovery in the underlying cause is stayed pending the resolution of this appeal.
PER CURIAM
June 9, 2011
Panel[2] consists of: Wright, C.J.,
McCall, J., and Hill, J.[3]
[1]See Tex. Civ. Prac. & Rem. Code Ann. § 74.351 (Vernon 2011).
[2]Rick Strange, Justice, resigned effective April 17, 2011. The justice position is vacant pending appointment of a successor by the governor.
[3]John G. Hill, Former Justice, Court of Appeals, 2nd District of Texas at Fort Worth, sitting by assignment.