Drake v. Walker
529 S.W.3d 516
Tex. App.2017Background
- Pro se plaintiff Eric Drake received dental treatment in Dec. 2011 and filed a Rule 202 petition (presuit investigatory deposition) on Dec. 29, 2011, then nonsuited that proceeding Jan. 22, 2012.
- Drake later sued appellees (Goldberg and Walker) on Dec. 3, 2013 asserting medical negligence and DTPA claims; defendants filed answers Dec. 30, 2013 and Jan. 8, 2014.
- Defendants moved to dismiss under Tex. R. Civ. P. 91a and separately moved under Tex. Civ. Prac. & Rem. Code § 74.351 for dismissal for failure to serve an expert report within the statutory 120-day period.
- The trial court dismissed (Rule 91a) in March 2014; this court later reversed the Rule 91a dismissal on appeal and remanded.
- After reversal but while appeal mandate was pending, Drake served an expert report on May 14, 2015. Trial court later dismissed the case for failure to timely serve an expert report and awarded attorney’s fees; Drake appealed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether a Rule 202 presuit petition triggers the § 74.351(a) 120‑day expert‑report deadline | Drake: A Rule 202 petition does not trigger the 120‑day clock because it is investigatory and may precede identification of the specific providers against whom a claim is asserted | Defs: The Rule 202 filing started the countdown (Dec. 29, 2011), so the expert report was untimely | Held: Rule 202 does not trigger § 74.351(a)’s 120‑day deadline on this record; court rejects defendants’ position |
| Whether the 120‑day period tolled while case was dismissed on Rule 91a and on appeal | Drake: The 120‑day period tolled during dismissal/appeal; his May 14, 2015 report was timely | Defs: Did not meaningfully contest tolling in briefing on appeal (argued deadline ran earlier) | Held: The 120‑day period tolled from the March 19, 2014 dismissal until at least May 8, 2015; the May 14, 2015 report was timely |
| Adequacy challenge to Drake’s expert report under § 74.351 | Drake: His report meets § 74.351 requirements and is a good‑faith effort | Defs: Objected the report was not a good‑faith effort and should be stricken | Held: Trial court made no hearing/ruling on adequacy; adequacy not decided on appeal (no reviewable ruling) |
| Recusal and due‑process claims against trial judge(s) | Drake: Judge Tapscott was biased, including because Drake later sued the judge; objected to other judges deciding matters for religious/conscientious reasons | Defs: Naming a judge in separate suit and judicial rulings alone do not require recusal | Held: Denials of recusal and due‑process claims were not an abuse of discretion; Drake failed to show requisite bias |
Key Cases Cited
- In re Jorden, 249 S.W.3d 416 (Tex. 2008) (statute prohibiting discovery in health‑care liability claims bars presuit Rule 202 depositions until an expert report is served)
- In re Raja, 216 S.W.3d 404 (Tex. App.—Eastland 2006) (presuit investigation not a health‑care liability claim but Rule 202 depositions were restricted by Chapter 74 discovery prohibition)
- CHCA Woman’s Hosp., L.P. v. Lidji, 403 S.W.3d 228 (Tex. 2013) (nonsuit before expiration of § 74.351 expert‑report period tolls the expert‑report deadline until refiling)
- Gardner v. U.S. Imaging, Inc., 274 S.W.3d 669 (Tex. 2008) (tolling analysis: serving an expert report while defendant is in default is senseless; tolling may be appropriate)
- Zanchi v. Lane, 408 S.W.3d 373 (Tex. 2013) (statutory‑interpretation principles: give effect to plain language and read words in context)