Harvey v. Kindred Healthcare Operating, Inc.
525 S.W.3d 281
| Tex. App. | 2017Background
- Talisa Phillips died while a patient at Kindred Hospital; her heirs (Harveys and Wilsons) sued Kindred for negligence, gross negligence, survival, and wrongful death.
- Trial court issued a docket control order setting March 30, 2015 as the deadline for plaintiffs to designate expert witnesses.
- Plaintiffs served expert reports; Kindred objected, and the trial court found the reports deficient but granted a 30-day extension to serve amended reports (deadline May 7). The adequacy of the amended report was unresolved when events below occurred.
- While discovery was stayed under Texas Civil Practice & Remedies Code chapter 74 until an adequate expert report is served, Kindred filed a no-evidence summary judgment on April 30 arguing plaintiffs missed the March 30 expert-designation deadline.
- The trial court excluded plaintiffs’ expert affidavits, granted Kindred’s no-evidence summary judgment, and dismissed all claims with prejudice; plaintiffs’ motion for new trial was denied.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether discovery was stayed under chapter 74 when the docket-control expert deadline passed | Chapter 74 stay applied because no adequate expert report had been finally determined; therefore discovery (including designation deadlines) was stayed | Chapter 74 did not bar plaintiffs from complying with the docket control order; the designation deadline was not a discovery request | Stay applied: discovery was stayed under chapter 74 until an adequate expert report and final judicial determination were made |
| Whether chapter 74 supersedes a conflicting docket control order deadline for expert designation | Chapter 74 controls over conflicting procedural rules/orders and thus supersedes the trial court’s deadline while the stay is in effect | The docket control order’s expert-designation deadline governed and could be enforced despite chapter 74 | Chapter 74 supersedes conflicting docket control orders; the trial court erred in granting summary judgment solely because plaintiffs failed to meet the docket deadline while the stay was in effect |
| Whether no-evidence summary judgment was proper on the ground plaintiffs failed to designate experts by the docket deadline | Plaintiffs argued the motion was premature because discovery was stayed and the court had not ruled on adequacy of the amended report; plaintiffs also contested exclusion of their affidavits | Kindred argued absence of designated experts by the court-ordered deadline left no evidence to support negligence claims | No-evidence summary judgment improper on that ground because the stay prevented enforcement of the docket deadline; reversal and remand ordered |
| Preservation of appellate error on stay argument | Plaintiffs preserved the complaint by noting the trial court had not yet ruled on amended report and raising the issue in the motion for new trial | Kindred argued plaintiffs failed to preserve error by not raising the stay in their summary-judgment response | Court found plaintiffs preserved error (raised in response and new-trial motion) |
Key Cases Cited
- Valence Operating Co. v. Dorsett, 164 S.W.3d 656 (de novo review of summary judgment standard)
- McConnell v. Southside Indep. Sch. Dist., 858 S.W.2d 337 (court cannot affirm summary judgment on unpresented grounds)
- Timpte Indus., Inc. v. Gish, 286 S.W.3d 306 (no-evidence summary judgment is pretrial directed verdict analog)
- In re Lumsden, 291 S.W.3d 456 (chapter 74 discovery stay applies until an adequate expert report and final judicial determination)
- Lewis v. Funderburk, 253 S.W.3d 204 (interpretation of chapter 74 discovery-stay provisions)