Robert Passmore, III v. Baylor Health Care
823 F.3d 292
5th Cir.2016Background
- Robert and Linda Passmore sued Baylor entities and nurse Kimberly Morgan in federal court for injuries from two back surgeries; the surgeon (Duntsch) was in bankruptcy and not a party.
- Plaintiffs filed in federal court asserting "related-to" bankruptcy jurisdiction because the suit could affect Duntsch’s bankruptcy estate.
- Texas law (Tex. Civ. Prac. & Rem. Code § 74.351) requires a health-care plaintiff to serve an expert report within 120 days after a defendant’s original answer, stays most discovery until the report, and mandates dismissal with prejudice plus fees if no timely report is served.
- Defendants moved to dismiss after 145 days for failure to serve the § 74.351 expert report; the district court applied § 74.351, dismissed with prejudice, and the Passmores appealed.
- The Fifth Circuit reviewed whether § 74.351 applies in federal court and whether it conflicts with Federal Rules of Civil Procedure 26 and 37.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether § 74.351 applies in federal court to state-law malpractice claims | § 74.351 conflicts with Federal Rules and thus should not apply in federal court | § 74.351 is substantive/regulatory of merits and different in purpose/scope, so it should apply | § 74.351 does not apply in federal court; it conflicts with Federal Rules 26 and 37 |
| Whether § 74.351’s mandatory-dismissal sanction conflicts with Rule 37’s sanction scheme | Rule 37’s discretionary sanctions govern; mandatory dismissal under § 74.351 is impermissible | § 74.351’s mandatory sanction is tailored to health-care claims and serves different objectives | Conflict found: § 74.351’s mandatory dismissal directly collides with Rule 37’s discretion |
| Whether § 74.351 regulates discovery such that it intrudes on federal procedural rules | Passmores: § 74.351 regulates discovery and timing, conflicting with federal control | Defendants: statute is limited to health-care claims and focuses on merits, not general discovery | Court: § 74.351 regulates discovery (including stay of discovery) and therefore conflicts with Rules 26/37 |
| Whether Rules 26 and 37 are valid exercises of Congress’ rulemaking power and thus preempt § 74.351 | N/A (plaintiffs rely on Rules’ validity) | Defendants suggested Rules might not control or differ in scope/purpose | Court: Rules 26 and 37 are procedural and valid under the Rules Enabling Act and constitutional limits, so they control |
Key Cases Cited
- Certified EMS, Inc. v. Potts, 392 S.W.3d 625 (Tex. 2013) (describing functions of § 74.351 expert report)
- Burlington N. R.R. Co. v. Woods, 480 U.S. 1 (1987) (state law preemption test where Federal Rule covers same issue and is valid)
- Shady Grove Orthopedic Assocs., P.A. v. Allstate Ins. Co., 559 U.S. 393 (2010) (Federal Rule controls when it answers the same question as state law)
- Hanna v. Plumer, 380 U.S. 460 (1965) (constitutional test for classifying matters as procedural)
- Sibbach v. Wilson & Co., 312 U.S. 1 (1941) (Rules Enabling Act standard: rule must "really regulate procedure")
- In re Bass, 171 F.3d 1016 (5th Cir. 1999) (standard for "related to" bankruptcy jurisdiction)
- Hall v. GE Plastic Pac. PTE Ltd., 327 F.3d 391 (5th Cir. 2003) (standard of review for applying state law in federal court)
- Moore v. CITGO Ref. & Chem. Co., L.P., 735 F.3d 309 (5th Cir. 2013) (Rule 37 dismissal standards and court discretion)