Hebner v. Reddy, 498 S.W.3d 37

Background

In August 2011 Hebner sent a pre-suit notice to Dr. Nagakrishna Reddy that included an expert report and CV from Dr. Barry Schifrin (the First Report) criticizing Reddy’s care; Reddy received it and its substantive sufficiency was undisputed.
Hebner filed suit in February 2012. By mistake the expert report attached to the original petition was a different report by Dr. Schifrin for another patient (the Second Report) that did not mention Reddy, Hebner, or the child.
Reddy did not object to either document when served and waited past the 120-day post-filing deadline for serving expert reports.
After the 120-day period elapsed Reddy moved to dismiss for failure to timely serve a qualifying expert report; the trial court denied the motion.
The court of appeals reversed, holding the pre-suit First Report could not satisfy the §74.351 deadline and the Second Report was not a qualifying report. The Supreme Court granted review.
The Supreme Court reversed the court of appeals, holding pre-suit service of a qualifying report satisfies the Act’s deadline and that Reddy waived objections by failing to timely object after being served with process.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether a qualifying expert report served before filing suit (concurrently with statutorily required pre-suit notice) satisfies Tex. Civ. Prac. & Rem. Code § 74.351(a)’s requirement to serve a report “not later than the 120th day after the date the original petition was filed.”	Hebner: pre-suit service of the qualifying First Report occurred before the 120-day deadline and therefore satisfies §74.351(a); allowing pre-suit service furthers the Act’s purpose of preserving meritorious claims and encouraging settlement.	Reddy: §74.351(a) requires service on a “party”; a person is a “party” only when named in the filed suit, so service before filing cannot satisfy the statute; only the post-filing Second Report counts and it is not a qualifying report.	Court: Pre-suit service of a qualifying report is permissible and satisfied §74.351(a) here because the statute does not prohibit serving a report before filing; dismissal would frustrate the Act’s purpose.
Whether defendant’s 21-day objection period under §74.351(a) begins to run when the report is served pre-suit or only after the defendant is sued and served, and whether Reddy waived objections to the First Report.	Hebner: defendant should have objected after being served with process; pre-suit service gives defendants notice and the statute’s objectives support tolling objection time until service of process.	Reddy: because the only report served with the petition (post-filing) was the non-implicating Second Report, she had no report to object to and thus did not waive objections.	Court: 21-day objection period does not begin to run until the defendant is sued and served with process; Reddy had the First Report long before service and failed to object within 21 days after being served, so she waived objections to the First Report.

Key Cases Cited

Samlowski v. Wooten, 332 S.W.3d 404 (Tex. 2011) (describing TMLA’s purpose to weed out frivolous claims while preserving meritorious ones)
Zanchi v. Lane, 408 S.W.3d 373 (Tex. 2013) (defined “party” as one named in a lawsuit and recognized that serving an expert report before process raises distinct timing questions)
Palacios v. Mesa, 46 S.W.3d 873 (Tex. 2001) (explaining statutory content required for an expert report)
Scoresby v. Santillan, 346 S.W.3d 546 (Tex. 2011) (distinguishing an utterly non-substantive paper from a deficient-but-curable expert report)
Williams v. Tex. W. Oaks Hosp., L.P., 371 S.W.3d 171 (Tex. 2012) (explaining pre-suit notice purpose to encourage settlement)
Certified EMS, Inc. v. Potts, 392 S.W.3d 625 (Tex. 2013) (legislative objective: deter baseless claims, not block earnest ones)
Ogletree v. Matthews, 262 S.W.3d 316 (Tex. 2007) (noting TMLA’s strict 120-day deadline can produce harsh results)