*1 60
guilt feel for we now atrocities committed LELAND, D.D.S., Appellant, John parts other of the As Hans world. closing argument Rolfe said in Ernst v.
Janning’s Judgment trial in Nuremberg: at is, George Janning BRANDAL & guilty. “Ernst said he is If he C. Ruth Brandal, Appellees. Janning’s guilt guilt— Ernst is the L. world’s no more and no less.”3 This collective No. 04-05-00855-CV. guilt by felt so many sense since World it at potential War II carries with least the Texas, Court of Appeals feel a corresponding cause us to collec- San Antonio. responsibility pre- tive sense of act to 13, Sept. 2006. vent the recurrence of anything approach- ing regime. the horrors Nazi To 16, Rehearing Overruled Oct. 2006. permit lawyer to invoke that sense guilt permit him to employ sug- it to —to
gest jurors that defendant is no than perpetrators
better of the T-4 (as
Program argues because it it has the do)
legal right the damages are age
limited the advanced and substan- impairment
tial of the victim and indeed jurors are no better they if do not high damages
award a mat- wrong as —is
ter public policy. of law and To such label is,
an inflammatory argument “curable”
best, “naive.”4 I therefore dissent. AmericanRhetoric.com, 723, J., (1949) (Jackson, 3. Speeches, 790 concur- Movie L.Ed. Nuremberg, http://www.american State, Judgment at ring)); see also Walker Speeches/moviespee- 481, (Tex.Crim.App. rhetoric.com/Movie Op.] [Panel 484 n. 6 (last chjudgmentatnuremberg2.html visited 1980) ("It follow the than to is better to rules 24, 2006). Aug. try to been done. undo what has Otherwise bell’; stated, 'unring a one cannot 'after States, 123, 129, Bruton United U.S. forget say difficult to thrust of the saber it is 88 S.Ct. L.Ed.2d 476 wound'; you finally 'if throw a skunk ("The assumption that prejudicial naive ef- box, jury you jury into can’t instruct the fects can be overcome instructions to the ”) (quoting Dunn not to smell it.’ States, v. United lawyers jury practicing ... all know to be 883, (5th Cir.1962)). 307 F.2d fiction.”) unmitigated (quoting Krulewitch v. States, 336 U.S. 69 S.Ct. United *2 Stephenson,
David Spencer, Clemens & P.C., Antonio, San appellant. Squires,
Beth Watkins Law Office of Squires, Watkins, Beth Phil Charles Shat- tles, Watkins, P.C., Phil San appellees. DUNCAN, Justice,
Sitting: SARAH B. MARION, Justice, SANDEE BRYAN SIMMONS, REBECCA Justice.
OPINION Opinion by SIMMONS, REBECCA Justice. Leland, D.D.S.,
John appeals from the denial of his motion challenging report in the underlying medical malprac- brought tice lawsuit by George C. Brandal and Ruth L. Brandal. appellate his one error, point of Leland claims the trial court abused its discretion in denying his objections and Motion to Strike Plaintiffs Expert Reports based experts’ on the fail- ure to: relationship show causal establish that Dr. properly give opinion. Be- cause we hold that expert, Brandáis’ Dr. Gray, failed to qualifica- establish his tions in report, we reverse the trial court’s order and remand the cause to the arbitrary consis- or unreasonable manner proceedings trial court for with- any guiding prin- tent with this out reference to rules or ciples. Id.
Background *3 Gray’s interlocutory the appeal This is an of Dr. Qualifications Objec- denying trial court’s order Leland’s argues that the Leland is Experts’ tions and Motion to Strike the Gray Dr. inadequate qual is not because Reports Gray of Dr. Neal H. and Dr. Lisa expert. ified Leland contends Dr. specializ- B. Masters. Leland is a dentist Gray qualified provide expert is not to ing general dentistry. awas Brandal testimony anesthesiologist because he is an patient purpose of Leland for the of ob- his curriculum vitae does not demon and 10, 2003, taining April On Le- dentures. particular knowledge, training, strate his George land removed three of C. Brandal’s cardiology, experience or related to neurol 17, 2003, Subsequently, April teeth. on surgery, dentistry. ogy, or Brandal returned to Leland’s office for a post-operative consultation. considering When Section 74.351(1) motion, the for the trial issue
Brandal asserts that Leland instructed plaintiffs expert court is whether the re taking anticoagulant him his medi- stop port “good-faith constitutes a effort” to cation, aspirin, prior (stat comply with 74.351. See id. Section Brandal claims he further extractions. 4590i, ing the issue in a former Article taking approxi- medication on stopped his motion). 13.01, To constitute a 25, mately April 2003. April On effort, in good-faith must more of Leland extracted nine Brandal’s specific of the conduct form the defendant eigh- day, approximately teeth. The next claims question by plaintiffs called into extractions, Brandal teen hours after and a basis from which the paralyzed on leaving suffered a stroke conclude the claims have merit. right speak. his side and unable to report has proponent expert Id. The of an against Leland The Brandáis filed suit expert the burden to is show 11, July alleging malpractice on 2005 Heise, 924 qualified. Broders S.W.2d advising stop taking Brandal to negligently (Tex.1996). qualifications 151-52 The After the anticoagulant his medication. expert appear of an must expert Brandáis served Leland with the Sepulveda, itself. Olveda v. S.W.3d Masters, Gray and Dr. Le- reports of 2004, no (Tex.App.-San Antonio experts’ reports land moved strike pet.). asserting reports that the failed to Leland statutory requirements. person with the to a Expert respect means “with appeals the trial court’s order causal opinion testimony about the giving n harm, injury, or relationship motion. between the depar- alleged damages claimed and op Review Standard care standard of applicable ture from the dentist, who for a a dentist a trial court’s decision We review on opinions an re to render regarding adequacy otherwise Texas relationship under the stan such causal port under an abuse of discretion Wright, 79 Rules Evidence.” Hosp. dard. Bowie Mem’l & Prac. 2005). (Vernon (Tex.2002). § An 74.351 abuse admissibility of ex- governs in Rule 702 a trial court acts discretion occurs when testimony. pert great respect Rule have their drugs Evid. 702. Tex.R. requires quali- potency. witness to experi- fied reason of knowledge, my experience on Based the litera- ence, Olveda, training, Id.; or education. above, my ture it is referenced Here, relevant clotting Brandal’s had Mr. times inquiry Gray’s expert whether Dr. returned their normal value at around port express showed he was certainly surgery expert opinion with respect immediately before Mr. Brandal suf- injuries alleged, namely, cause fered the stroke. ischemic
Brandal’s Although Dr. states that anesthesi- ologists frequently asked to *4 Gray practice Dr. has been licensed to are at patients who risk for strokes and medicine since 1966. completed He his taking Plavix aspirin, who are this anesthesiology residency at Wilford Hall does not sufficient detail from Medical in USAF Center 1972 and re- which trial court could the determine that his ceived board from the certification Gray’s Dr. experience sufficiently qualifies American Board of in 1974. Anesthesiology opinion to render as to past years, For Gray the Dr. has been Anesthesiologists may cause. administer professor an associate clinical of anesthe- patients myriad anesthesia with a of to at siology University the of Texas Health that problems give spe- but does not them Sciences Center in San Texas. knowledge of cialized the causation of such Recently, Dr. Gray began working as a Olveda, ancillary problems. See anesthesiologist Army staff at Brooke (stating enough, S.W.3d at 682 is not “[i]t Center Medical where he responsible however, purported expert] [the patient care and instructing anesthesia state that all physicians should be able residents. illness). Further, diagnose” a particular Gray opines Dr. that likely is more “[i]t Gray part the fact that Dr. took in the than not that the artery cerebral occlusion Brandal, patients of like not impart does to the leading stroke was the caused necessary qualifications the that state of withdrawal his In his medication.” the cessation of effect of the port, Gray Dr. states that prevention the aspirin during period question time preven- of strokes and the withholding of proximately caused Brandal’s stroke. See drugs tive is within the of practice medi- 702; Broders, Tex.R. Evid. As to qualifications, Gray cine. his Dr. requires experts Rule pertinent part: states “by knowledge, be experi- ence, education,” training, and that Anesthesiologists frequently asked assist testimony their the trier of fact re- patients to care for similar to Mr. Bran- garding specific issue before the my years practice dal. of Anesthe- court). may report, Gray his Dr. Under I have siology part taken in the care of opinion render an he patients scores like Mr. who Brandal aware that cessation of these medications risk are at for stroke or attacks heart However, Gray’s cause a Dr. taking Many and are these medicines. opinion goes claiming the cessation were having open opera- of them heart injury was the cause to Brandal. with all of problems tions of severe and bleeding. disease Thus I have had of the medical literature While some Gray’s work experience report supports considerable these attached to Dr. with represents good faith effort quate report other literature contradicts —albeit Further, that he has the Le- it—this does not establish with statute. this To qualifications render land that when a claimant files a states contrary, among the conflict the medi- required report that omits one of the ele- Gray’s report Dr. cal literature attached to ments, purportedly mistaken belief that just general expe- suggests that more than report complied with the statute is not required rience is order to render a mistake of law that would entitle a claim- withdrawing opinion over the effect of discretionary grace period. ant to the during a time specific these medications Thus, reports Leland claims because the litera- period. Additionally, the medical requirements failed to meet Gray’s report ture attached to Dr. estab- statute, the trial court’s order lishes, agree, seem to parties both motion to strike should be reversed and is a substantial period cessation preju- the Brandáis’ claims dismissed with factor in if Leland’s actions determining Essentially, inquiry dice. is whether proximately injury. caused Brandal’s trial court has discretion to knowledge, explain fails to how his hold that it does. extension. We skill, experience, training, or education timely expert report If an has not been *5 to state cessation 74.351(b) served, provides Section aspirin during period motion, trial upon the defendant’s in Brandal’s question proximately caused attorney fees and costs court shall award v. Corp. ischemic stroke. See Marathon prejudice. the claim with dismiss Tex. (Tex.2003) Pitzner, 724, 727 (Ver- § Crv. PRAC. & Rem.Code 74.351 Ann. fact, compo- in a (stating the test cause 2005). However, court any non relief a cause, the act proximate nent of is whether (b) always is sub- grants under Subsection or omission was a substantial factor (c), ject provides to Subsection which harm causing injury without which the that the trial court one 30- part occurred). Therefore, we would not have to cure a day extension to the claimant Gray’s expert report conclude that Dr. deficiency expert report. in an that Dr. failing deficient to establish 74.351(c)(Vernon § Prac. & Ann. Rem.Code knowledge, experience, has the 2005). opine that Le- training, or education cites support argument, of his Leland stop taking Plavix land’s instructions to 4590i, addressing to cases former Article aspirin clotting resulted in Brandal’s 13.01, codified at Section Section now value, times to their normal thus to return Gutierrez, 111 74.351. See Walker Brandal’s ischemic proximately causing (Tex.2003); Am. Transition S.W.3d Tex., Palacios, 46 Inc. v. al Care Ctrs. of (Tex.2001). Extension Time Importantly, S.W.3d statute, Legislature unlike the former Brandáis, however, argue that The (c) terms such as omitted from Subsection trial order if this court reverses the court’s cause,” “accident,” or “mistake.” “good cause to the it should then remand the § Tex. Civ. Prac. & for a determination of whether (Vernon 2005). provided Brandáis The 30-day they are entitled to a extension statutory all re report addressing any Leland asserts correct deficiencies. elements; however, it deficient quired was Prac of the Texas Civil to ade Gray’s report failed one because only Remedies allows tice and Code he is articulate how quately if the inade- extension to cure deficiencies liability claim proximate against render an on cause. As whom a is assert- serving report such, ed. The date for disagree we with Leland that by agreement may be extended written trial court without discretion parties. of the affected Each defen- allow a extension under Section provider health care physician dant or 74.251(c). Walker, 111 at 61 See report in a implicated whose conduct is grace the “failure to make the any objection serve to the must file and period parties timely available to who have sufficiency not later than inadequate reports filed would day the 21st after the date was perverse rewarding parties incentive served, objections failing which all nothing and punishing who do those who waived. attempt with the statute but (b) If, physician to a or as defendant
fail. Legislature We do not believe the in provider, an expert report health result.”); tended such a Lo Higgs, No. period has not been served within the 09-05-00528-CV, WL *3 court, (a), specified by Subsection on (Tex.App.-Beaumont March no the motion of the affected h.) pet. (mem.op.) (holding the trial court shall, subject provider, health care finding erred in adequate as to (c), enter Subsection an order the standard of care and cause prejudice [dismisses the claim with but nevertheless remanded for further attorney’s and awards reasonable fees proceedings, implicitly, to consider 30- costs], and court extension). day (c) If has not been period specified served within the Conclusion (a) Subsection because elements reversed, The trial court’s order is *6 deficient, report are found the court the cause is remanded to the trial court for 30-day one extension to the proceedings consistent with this claimant in order to cure the deficien- cy.1 If the claimant does not receive ruling granting notice of the court’s Concurring opinion by SARAH B. 120-day extension until after the dead- DUNCAN, Justice. passed, line has then the exten- I reluctantly concur in judgment plaintiff sion shall run from the date the separately explain write the reason for first received notice. my reluctance. PRAC. & 74.351(a) (c) through Sections provide as 74.351(a)-(c) (Vernon (em- §§ Supp.2006) follows: added). phasis
(a)In claim, liability a health care 74.351(b) (c), As used in sections shall, claimant not later than the 120th plainly “the court” refers to the trial court. day original petition after the date the Accordingly, if a defendant files a motion filed, party sanctions, was serve on each or the statutory to dismiss and for attorney party’s one or more put may trial court is to a choice: it dismiss; ports, with a curriculum vitae of each grant the motion to deficient, listed for each find element provider grant thirty-day or health extension to cure the motion, 74.351(b) 74.351(c) passing mentioning pro- 1. I note in while section section only upon vides for a court-ordered extension without authorizes a dismissal motion. deficiency, However, delay ruling and thus on the I because have found no authori- expiration motion to dismiss until the ty support seemingly this radical inter- period. the extension The second alterna- pretation of the statute and ample authori- tive was chosen court Meth- ty remand, support majority’s I Sys. odist Health Care San concur in judgment implore 04-05-00500, Ltd. v. Rangel, No. 2005 WL legislature clarify ambiguity this at its 3445994 (Tex.App.-San Antonio Dec. opportunity. earliest denied). 2005, pet. See id. at *1 trial court ordered claimant to file denying amended before motion to
dismiss). appeal, On because the trial granted an extension before errone-
ously dismiss, denying the motion to denying
order the motion to dismiss was
“reversed, ... and the cause remanded to Eugene MAGIC, Appellant, Ronald the trial court with ... instructions award its reasonable attor- [the defendant] ney’s fees and costs of court and to render Texas, Appellee. The STATE of judgment dismissing [the claimant’s] ... with prejudice.” claims Id. at *5. But No. 01-05-00497-CR. what if the trial court denies the motion to Texas, of Appeals Court granting dismiss without first an exten- Dist.). (1st Houston sion, as majori- occurred this case? The ty reverses the trial court’s order Sept. the motion to dismiss and remands cause to the trial court to consider whether a section extension. But
this simply course of action is not available interpretation
under a literal of section
74.351(c). court, *7 permits deficient,
if report grant it finds the
extension; section does au- not grant
thorize the trial court to an exten- appellate report
sion if an court finds the Accordingly, appears
deficient. there entity
single trial court—that —the
grant single an extension at a moment in
time—after it has found one or more ele- short, report
ments deficient. as sounds,
counterintuitive as it section interpreted can to provide
that, while the trial court deficiency in an
extension cure deficient, if it finds the
not authorized to an extension if an
appellate court holds the deficient.