Fung v. Fischer
365 S.W.3d 507
Tex. App.2012Background
- Fischers sued Urukalo and ADC for alleged negligence in diagnosing/treating a cancerous foot mass; ADC entities and Fung were later added.
- In 2007 Fischers served expert reports addressing Urukalo (podiatrist) and ADC’s potential direct liability; those reports did not name ADC officers.
- Between 2007 and 2009 Fischers filed five amended petitions expanding claims to malice, gross negligence, and direct liability against ADC and others; Johnson and Varon issued new reports in 2009.
- The case was transferred from district court to probate court; probate court overruled objections and denied motions to dismiss based on timeliness and sufficiency of 2009 reports.
- Appellants challenge seven orders: three overruling objections as untimely, three denying dismissals, and Fung’s objections/motion to dismiss."
- Court remands for merits on timeliness/sufficiency for Minicucci, Urukalo, and ADC; for Fung, reverses, renders for dismissal with prejudice and remands for fees/costs.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Are Minicucci's objections timely? | Minicucci timely under §74.351(a) | Objections untimely under §74.351(a) | Objections timely; court erred; remand for merits |
| Are Urukalo's objections timely? | Objections timely under §74.351(a) | Objections untimely | Objections timely; court erred; remand for merits |
| Did ADC's objections to the 2009 reports meet timeliness and substance requirements? | Objections timely and meritorious | Objections untimely/insufficient | Objections timely; court erred; remand for merits |
| Do Johnson's and Varon's 2009 reports meet the statutory standard as to Fung and are cure-extension available? | Reports implicated Fung; extension may cure deficiencies | Reports do not meet standard; not cure-eligible | As to Fung, reports are not good-faith; remand for issuance of dismissal with prejudice and fee/cost determination |
Key Cases Cited
- Humsi v. University of Texas Health Science Center at Houston, 342 S.W.3d 696 (Tex. 2011) (timing/which party is served triggers objections and deadlines)
- Funderburk v. Lewis, 253 S.W.3d 204 (Tex. 2008) (defendant's ability to seek dismissal for failure to serve timely report; appealability)
- Ogletree v. Matthews, 262 S.W.3d 316 (Tex. 2007) (untimely objections waived; cannot base dismissal on untimely objections)
- Scoresby v. Santillan, 346 S.W.3d 546 (Tex. 2011) (extension to cure deficiencies—minimal standard; must show merit and implicate conduct)
- Bowie Mem'l Hosp. v. Wright, 79 S.W.3d 48 (Tex. 2002) (expert report must address standards, breach, causation; avoid mere conclusions)
- Gardner v. U.S. Imaging, Inc., 274 S.W.3d 669 (Tex. 2008) (vicarious liability sufficiency when direct liability claim exists)