*1 finding jury’s is verdict occurs where conscience,’
‘manifestly unjust,’ ‘shocks the ” Garza, ‘clearly bias.’ demonstrates factual at 344. Because the S.W.3d sufficiency viewing is review conducted in a make no light,
evidence neutral we appellant’s about nonverbal presumption Leaving of the knife. aside description as to appellant’s nonverbal demonstration knife, length simply there is no jury’s finding that support evidence to capable in this weapon case injury or death. causing bodily serious Lockett, at 814. Accord 874 S.W.2d factually ingly, I would hold the evidence support insufficient the verdict and judgment would reverse the and remand trial for cause a new trial. UNIVERSITY OF TEXAS HEALTH AT
SCIENCE CENTER SAN ANTONIO, Appellant, RIPLEY, Individually and Kenneth as Representative of the Estate of Fred Deceased; Ripley,
erick Frederick H. II, Ripley, Appel Ripley, Y. and Alma lees.
No. 04-06-00307-CV. Texas, Appeals Court Antonio. San
Background Ripley by-
Frederick had aortobifemoral pass 29, surgery April on em- 2002. An ployee University of Texas Health Center, Toursakissian, Science Dr. Boulos performed surgery and various UTHSC were employees post- involved in surgical days care. Four after sur- gery, Frederick died. 15, 2004,
On Ripleys June suit filed in federal alleging court negligent various acts proximately caused Frederick’s death. Gen., Halpern, Atty. David Grant Asst. 2004, 13, On Ripleys December an filed Austin, for appellant. complaint amended asserting claims against defendant; however, a UTHSC as Jeffrey Anderson, C. Law Office of Jef- complaint given amended could not be Anderson, Antonio, frey C. San for appel- legal effect until granted lees. leave to file the amended complaint.1 responded UTHSC with a Dis- Motion to LÓPEZ, Sitting: ALMA L. Chief miss immunity. based on 11th amendment Justice, STONE, CATHERINE KAREN 2005, January 27, On the federal court ANGELINI, SANDEE BRYAN granted leave to file the December MARION, SPEEDLIN, PHYLIS J. 2004 amended complaint. SIMMONS, Justices; and, REBECCA On February the federal court HILBIG, Justice, STEVEN C. concurring entered an extending prior order a sched- judgment only. uling order’s deadlines to the claims against UTHSC, thereby requiring the OPINION Ripleys to “submit written expected April of each testimony expert by Opinion by SPEEDLIN, J. PHYLIS objection reliability Any 2005.” to the Justice. expert’s of an proposed testimony re- quired days to be within thirty made University of Health Science Texas Cen- receipt report. The Ripleys written (UTHSC) ter at San Antonio appeals the designation wit- expert their trial court’s denying its motion to nesses on April attaching a 74.351(b) pursuant dismiss filed section of an and curriculum vitae. of the Texas Civil Practice and Remedies Accordingly, any objec- the deadline for (“Code”). Code contends that UTHSC proposed testimony tions to the expert’s trial court abused discretion because May file 2005. UTHSC did not appellees, Ripley, Kenneth Individually any objections. as Representative of the Estate of Deceased, Ripley, Frederick Frederick granted The federal court UTHSC’s mo- II, Ripley, Ripley, and Alma Y. failed to tion to dismiss on 11th based amendment file expert report. their affirm immunity May We on Ripleys and the the trial against court’s order. re-filed their claim UTHSC Cir.2003). (5th 332 F.3d 296-97 Corp., ex See U.S. rel. Mathews HealthSouth 15, 2005, Ripleys’ April while January report on on 2005. On state court against fed- 17, 2006, pending claim was filed a motion to dismiss 74.351(a) required the eral court. Section alleging that had failed to expert report “not Ripleys to serve their report. 74.351 Al- timely file them section date the day 120th after the initially later than the granted the trial court *3 though Act 78th dismiss, of June trial subse- claim was filed.” to the motion 10.01, R.S., 204, § Tex. Leg., 2003 Gen. ch. quently granted Ripleys’ the motion for added). If (emphasis we an de- Laws 875 and entered reconsideration on the that “claim was filed” accept the motion to dismiss. nying UTHSC’s in state petition was filed original date the Discussion 15, 2005, the met Ripleys court on June they 74.351 deadline because the section a review trial court’s order We prior expert report had the clearly served on a to dismiss based the granting motion to timely expert file a October to section 74.351 failure report under an abuse of discretion stan give that if we contends dard of review. See Am. Transitional expert report effect to the that was served Tex., Palacios, v. Care Ctrs. Inc. 46 of court, have in UTHSC would been federal (Tex.2001); Lopez v. S.W.3d 875 deciding in put to a “Hobson’s Choice” (Tex. Montemayor, 131 58 S.W.3d in challenge report to the federal whether denied). App.-San pet. A Antonio immunity. waiving of its court at risk trial its if it acts in court abuses discretion to the giving that effect UTHSC asserts arbitrary an or manner with unreasonable expert report would “evis service any guiding prin out reference to rules or authority court’s to deter cerate” state ciples. v. Hosp. Wright, Bowie Mem. 79 adequate. report mine whether was (Tex.2002); Lopez, S.W.3d 52 131 however, UTHSC, any support cite fails to S.W.3d at 58. it have waived for its contention that would claim, liability “In a health care a claim by objections its in immunity filing its shall, day ant not later than the 120th after court, objections if especially federal filed, the date the claim serve on each was to motion to dismiss. subject were filed its attorney or the or party party’s one more objections, filing In UTHSC would expert reports, with curriculum vitae of a alleged merely pointing be out deficiencies in each listed for each in would not expert report. physician provider against or health care Section seeking be affirmative relief. Act liability whom a claim is asserted.”2 74.351(b) by a not contain deadline does 2, 2003, R.S., Leg., 78th ch. party must a motion which an affected file 10.01, § 2003 Tex. Gen. Laws 875. to dismiss. See Tex. &Rem.Code Civ. PRAC. serving report may for The date be 74.351(b) (Vernon 2005). § Accord Ann. by agreement of af extended written could have ingly, UTHSC & parties. See Tex. Civ. Prac. fected Rem. await objections its and thereafter served 74.351(a)(Vernon § Supp.2006). Ann. Code to dismiss disposition of its motion ed the refiled court. Once the
It that UTHSC undisputed is was court, then have Ripleys’ expert UTHSC could a state served with 74.351(a) September on after 2005. See 2005 to accrues was amended in Section original petition filed” for “the substitute 74.351(a) § & Ann. Tex Civ. Prac. Rem.Code filed;” however, (Vernon the amend- "the claim was Supp.2006). only applies to cause of action that ment a 422 74.351(b)
sought Russell, a under damages dismissal section claimed.” v. Murphy inadeq (Tex.2005). if it expert report believed the Dismiss S.W.3d Because the state court would ing underlying cause when UTHSC uate.3 jurisdiction have had the mo consider had an expert been served with tion, authority to dismiss under section contrary Legisla would be 74.351would not be “eviscerated.” permit vision and ture’s would section purposes. 74.351to be used for unintended are limi “[T]here constitutional Laredo, Care Regent Center Limit courts, power tations upon the even Partnership Abrego, ed No. 04-06- processes, aid of their own to dismiss 00518-CV, 2006 (Tex.App. WL 3613190 an affording action without party denied) 13, 2006, pet. -San Antonio Dec. opportunity a hearing for on the merits of *4 J., (Speedlin, concurring) (denouncing his cause.” TransAmerican Natural Gas gamesmanship spawned by use of section Powell, (Tex. Corp. 913, v. 811 S.W.2d 918 purposes). 74.351for unintended The trial 1991). enacting 74, In chapter Legis “the court not abuse did its discretion con lature discovery envisioned that and the that cluding complied the had with ultimate determination of what issues are chapter 74 because had UTHSC been submitted to the factfinder not go should rep timely Ripleys’ expert served with the at forward unless least one expert has case ort.4 opined examined the and as to the care, applicable standard of it that was Conclusion
breached, that and there is a causal rela tionship the between failure to meet the Because UTHSC was served with harm, standard of and injury, care expert report, properly the trial court 906, Alternatively, .sought Chang, F.Supp.2d could have but v. see 400 Cruz guidance Furthermore, (W.D.Tex.2005). from trial court when law- 911-15 filing by suit in state was refiled court its complaint added amended which claims objections twenty-one days within after the against any legal UTHSC did not effect have by filing date the lawsuit was refiled or granted until the federal court leave to file the requesting motion the trial court to establish Corp., amendment. See HealthSouth 332 objections given pro- a deadline to file granted F.3d at 296-97. The federal Instead, cedural circumstances. complaint leave file the amended on Janu to chose and file to wait a motion to dismiss ary and the was filed nine it months after was served the ex- with days 120 See within of that date. Puls v. pert report and seven the law- months after (Tex. Hosp., 92 S.W.3d 617 Columbia suit in state was refiled court. denied) App.-Dallas pet. (holding expert against deadline added defendants 4. UTHSC alludes to the that also notion complaint begin expert report was amended did not to run on not served in the however, litigation; originally context of the federal date suit but on date chapter applica amended); whether the 74 deadlines are complaint Corp., HealthSouth See, questionable. e.g., ble in federal court is (amended complaint 332 at 296-97 has F.3d Trisun, 0G, Hall No. SA v. 05 CA 984 2006 legal no effect in federal court until court (W.D.Tex. 2006); Aug.1, WL at *1 file). grants Alternatively, leave docket Hosp., v. & White Scott Mem. Garza by control entered the federal court (W.D.Tex.2005); F.R.D. 622-23 Brown v. agreement could construed be as an Ctr., C-04-329, County Brooks Det. No. C.A. McDaniel, parties to extend the deadline. C-04-375, C.A. 2005 WL at *2-3 (referring 2004 WL at *7 to earlier (S.D.Tex. 23, 2005); Myrick, Nelson decision that construed control order docket Civ.A.3:04-CV-0828-G, No. 2005 WL by agreement entered federal court as written Mar.29, (N.D.Tex. 2005); at *3-4 McDaniel v. rule). under Texas U.S., A.SA-04-CA-0314, No. CIV. 2004 WL (W.D.Tex. 2004); at *6-9 Nov. Ac- denied UTHSC’s motion dismiss. is af- trial court’s order
cordingly, firmed.
Concurring opinion REBECCA SIMMONS, Justice, joined by KAREN ANGELINI, Justice. SIMMONS, Justice,
REBECCA concurring. was served
Because the UTHSC-SA during expert report with a litigation, necessary it in- had wheth- formation from which to determine I Ripley’s er claim was frivolous. would not the other issues discussed address therefore, majority opinion, re- *5 judgment spectfully only. concur R.C.R., C.A.R., In the Interest of M.R.R., Minor Children.
No. 2-06-251-CV. Texas, Appeals Court of Fort Worth.