William Bruce Sherrill, D.D.S. and Shaw & Sherill, D.D.S. v. Buffie G. Williams
05-14-00847-CV
| Tex. App. | Apr 28, 2015Background
- Williams, a former dental assistant, sued her employer Dr. William Sherrill and the practice for assault and negligence after an alleged workplace physical altercation and her subsequent termination.
- Williams attached and served a “Preliminary Report” and CV of Larry R. Stewart, D.D.S., M.S., with her petition.
- Appellants answered and later filed a Chapter 74 motion to dismiss under Tex. Civ. Prac. & Rem. Code § 74.351, arguing Stewart was unqualified and the report failed to address standard of care, causation, and an assault-by-threat claim.
- Williams contended appellants waived objections by not filing them within 21 days after their answer; she alternatively argued the report was adequate or she should be allowed to amend.
- The trial court denied the motion to dismiss; appellants appealed interlocutorily challenging the denial.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether defendants waived objections to the expert report by failing to object within 21 days | Williams: defendants failed to timely object and thus waived all objections under § 74.351(a) | Sherrill: no timely objection required because Stewart was unqualified and his report is effectively no report | Held: Waiver — defendants failed to timely object and waived objections |
| Whether an unqualified expert’s report counts as a report for waiver purposes | Williams: a timely served report triggers the 21-day objection clock regardless of qualifications | Sherrill: a report by an unqualified expert should be treated as no report, so no objection was required | Held: A report timely served starts the objection period even if the expert’s qualifications are disputed; defendants must object within 21 days |
| Whether the Preliminary Report met the minimal Scoresby standard (expert opinion that the claim has merit and defendant implicated) | Williams: report was sufficient or defendants waived challenge | Sherrill: report fails Scoresby and is not an expert report under Chapter 74 | Held: Court declined to decide Scoresby sufficiency because defendants failed to properly challenge the report in the statutory window |
| Whether failure to raise below the threshold issue (whether claims are health-care liability claims) affects appeal | Williams: (both parties briefed it) trial court should decide first | Sherrill: raised in briefs on appeal | Held: Court will not decide that issue on appeal because it was not presented to trial court; trial court retains first opportunity to rule |
Key Cases Cited
- Nexus Recovery Ctr., Inc. v. Mathis, 336 S.W.3d 360 (Tex. App.—Dallas 2011) (standard of review: abuse of discretion for denial of § 74.351 motion)
- Bakhtari v. Estate of Dumas, 317 S.W.3d 486 (Tex. App.—Dallas 2010) (timely served report triggers 21‑day objection requirement; qualifications must be raised within that window)
- Loaisiga v. Cerda, 379 S.W.3d 248 (Tex. 2012) (if a report fails Scoresby, dismissal is required when the report is properly challenged)
- Scoresby v. Santillan, 346 S.W.3d 546 (Tex. 2011) (minimal expert‑report standard: opinion of an individual with expertise that the claim has merit and the defendant’s conduct is implicated)