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denying a motion to dismiss negligence and medical malpractice claims in federal court on diversity jurisdiction, finding that Rules 26 and 37 preempted § 74.351 and observing that the federal system provided other effective ways to fulfill the purpose of § 74.351, the deterrence of frivolous lawsuits
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Civil Action No: SA-04-CA-0314-XR.
November 16, 2004
ORDER
Before the Court are (1) Defendant United States's Motion for Summary Judgment (docket no. 11) and (2) Defendants Spectrum Healthcare Resource, Inc.'s and Michael Sims's (collectively "Spectrum") Motion to Dismiss (docket no. 21). Plaintiffs seek damages resulting from a fall by Janice McDaniel which occurred while trying to dismount from a physical therapy machine at the Brooke Army Medical Center (BAMC) at Fort Sam Houston in San Antonio, Texas. The United States asserts that it is not liable for Plaintiffs' claims because Spectrum was an independent contractor. Spectrum asserts that Plaintiffs claims should be denied because they did not file an expert report within 120 days of filing their suit as required under Texas law. After considering the motions, as well as the pleadings and the various responsive documents, the Court is of the opinion that the United States' motion should be GRANTED (docket no. 11) and that Spectrum's motion should be DENIED (docket no. 21). However, because the basis of this Court's original jurisdiction has been destroyed by the granting of summary judgment for the United States, the Court will sua sponte DISMISS this case without prejudice for lack of jurisdiction.
I. Factual and Procedural Background
Plaintiff Janice McDaniel was undergoing physical therapy at BAMC on June 10, 2003 for a "frozen shoulder" when apparently she attempted to step off a machine and fell, breaking her pelvis. Janice McDaniel's physical therapist was Defendant Michael Sims, who was employed by Defendant Spectrum Healthcare Resources, Inc. Spectrum Healthcare Resources was apparently hired by Foundation Health Federal Services ("FHFS"), who in turn was hired by the United States to hire medical personnel to work at BAMC. The contract between the United States and FHFS states that "[t]he contractor [FHFS] shall be solely liable for negligent acts or omissions of the contractor's agent." Janice McDaniel has filed suit against Defendants Spectrum Healthcare Resources and Sims (collectively "Spectrum") seemingly for both negligence and medical malpractice, and the United States for negligence under the Federal Tort Claims Act. Her husband, Patrick McDaniel, has sued the same defendants for loss of consortium, due to his wife's injuries.The United States has moved for summary judgment on the basis that it is not liable for Plaintiffs' injuries as Spectrum was an independent contractor, rather than an employee. Plaintiff opposes this motion, arguing that the United States owed a non-delegable duty to Janice McDaniel because Spectrum, as an independent contractor performing physical therapy, was performing an inherently dangerous activity. Plaintiffs also claim that the United States retained control over the manner in which Spectrum performed its services and that the United States was itself negligent in the maintenance of the physical therapy machine at issue. Spectrum has moved for dismissal, claiming that Plaintiffs have not provided a "claim-screening expert report" within 120 days of filing suit, as required by TEX. CIV. PRAC. REM. CODE § 74.351. Plaintiffs oppose this motion, arguing that because the agreed scheduling order does not require them to produce any expert report until April 22, 2005, section 74.351 is in conflict with FED. R. CIV. P. 26(a) and is therefore pre-empted.
II. The United States' Motion for Summary Judgment
A. Standard of Review
Summary judgment is proper "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). The moving party has the burden of showing that there is no genuine issue as to a material fact and that the moving party is entitled to judgment as a matter of law. Willis v. Roche Biomedical Lab., Inc., 61 F.3d 313, 315 (5th Cir. 1995). Once the movant carries its initial burden, the burden shifts to the nonmovant to show that summary judgment is inappropriate. Fields v. City of S. Houston, 922 F.2d 1183, 1187 (5th Cir. 1991). All justifiable inferences to be drawn from the underlying facts must be viewed in the light most favorable to the party opposing the motion. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). In making this determination, the court will review the evidence in the record and disregard the evidence favorable to the moving party that the jury is not required to believe. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 135 (2000). In order for a court to conclude that there are no genuine issues of material fact, the court must be satisfied that no reasonable trier of fact could have found for the nonmovant, or, in other words, that the evidence favoring the nonmovant is insufficient to enable a reasonable jury to return a verdict for the nonmovant. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 n. 4 (1986). If the record, viewed in this light, could not lead a rational trier of fact to find for the party opposing the motion, summary judgment is proper.
Under the Federal Tort Claims Act, questions of liability are resolved in accordance with the law of the place where the alleged negligent act or omission occurred. 28 U.S.C. § 1346(b). The alleged conduct here took place in Texas.
B. The United States Owed No Duty to Plaintiffs
The United States has moved for summary judgment, arguing that it did not owe a duty to Plaintiffs and that it has not waived sovereign immunity from suit in tort for claims arising from the alleged negligence of independent contractors. As noted by the Fifth Circuit, when a Plaintiff sues the United States under the Federal Tort Claims Act, "if the act was not committed by an `employee of the Government,' then the court must dismiss for lack of subject matter jurisdiction." Linkous v. U.S., 142 F.3d 271, 275 (5th Cir. 1998). The United States asserts that Spectrum was an independent contractor hired to provide treatment and other physical therapy services to patients at BAMC and that the act complained of by Plaintiffs was committed by an employee of Spectrum, rather than of the United States. Plaintiffs do not contest that Spectrum is an independent contractor, but they assert that the United States owed them a non-delegable duty because the United States was engaged in an inherently dangerous activity, physical therapy, and that the United States had supervisory control over physical therapy services at BAMC. Plaintiffs also claim that the United States was itself negligent in the maintenance of the physical therapy machine at issue.
1. The United States Was Not Engaged In An Inherently Dangerous Activity
An employer is liable for injuries caused by an independent contractor's failure to exercise due care in the performance of inherently or intrinsically dangerous activity. Victoria Elec. Co-op., Inc. v. Williams, 100 S.W.3d 323, 331 (Tex.App.-San Antonio 2002, pet. denied) (citing RESTATEMENT (SECOND) OF TORTS § 427). An inherently dangerous activity is one which an employer should recognize as likely to create during its progress a peculiar risk of physical harm caused by the failure to exercise reasonable care. Gessell v. Traweek, 628 S.W.2d 479, 482 (Tex.App.-Texarkana 1982, writ ref'd n.r.e.) (citing RESTATEMENT (SECOND) OF TORTS § 416). Plaintiffs argue that the practice of physical therapy is an inherently dangerous activity because it involves a substantial risk of serious bodily harm if done unskillfully or carelessly and that Janice McDaniel's injury resulted from the nature of the physical therapy. The United States replies that physical therapy is not an inherently dangerous activity.
Plaintiffs have provided no case law to support their contention that physical therapy is an inherently dangerous activity. In fact, the Court's own search has found only one case in which a court addressed physical therapy with regard to being inherently dangerous. In Sanfilippo v. State Farm Mut. Auto. Ins. Co., 535 P.2d 38, 43 (Ariz.Ct.App. 1975) the Arizona Court of Appeals held that the supervision of certain physical therapist assistants "could not relieve them of the responsibility of exercising judgment and skill in the administration of inherently dangerous physical therapy treatments." (emphasis added). This case, however, addressed whether the practice of using unlicensed physical therapist assistants was in violation of state statute. Id. at 41-43. It did not engage in an analysis of whether physical therapy was actually inherently dangerous. As far as can be discerned, this argument has not arisen before. However, with regard to the independent contractors of hospitals, a number of courts, including the Texas Supreme Court, have held that there is not a nondelegable duty placed upon the hospital. In Baptist Memorial Hosp. Sys. v. Sampson, 969 S.W.2d 945, 949 (Tex. 1998), the Court rejected the application of a nondelegable duty on hospitals for the negligence of independent contractor doctors. The Court reasoned that this was unnecessary because the patient retained a remedy against the doctor individually and also against the hospital if the hospital itself was negligent. Id. Similarly, in Kelly v. St. Luke's Hosp., 826 S.W.2d 391, 395 (Mo.Ct.App. 1992), the Missouri Court of Appeals refused to place a nondelegable duty on a hospital because it held that the practice of emergency medicine is not inherently dangerous.
The Court finds Sampson and Kelly analogous to the present case and is persuaded that physical therapy is not an inherently dangerous activity. There are a number of safe ways in which the act of physical therapy can be performed. See Horn v. C.L. Osborn Contracting Co., 591 F.2d 318 (5th Cir. 1979) (applying Georgia law and holding that the activity at issue was not inherently dangerous as a matter of law because there were several safe ways of performing it). It cannot be said that physical therapy is dangerous no matter how skillfully performed, see Agricultural Warehouse, Inc. v. Uvalle, 759 S.W.2d 691, 696 (Tex.App.-Dallas 1988), writ denied per curiam 779 S.W.2d 68 (Tex. 1989), or "will probably result in injury to a third person or the public." Gessell, 628 S.W.2d at 481. Nor is physical therapy similar in character to other activities that have been held inherently dangerous by Texas courts. See, e.g., Sanchez v. Mbank of El Paso, N.A. v. Sanchez, 836 S.W.2d 151, 154 (Tex. 1992) (nonjudicial repossession); Alamo Lumber Co. v. Pena, 972 S.W.2d 800, 806 (Tex.App.-Corpus Christi 1998, pet. denied) (repair of concrete truck tires which have been driven 75 to 100 miles while flat); Jones v. Southwestern Newspapers Corp., 694 S.W.2d 455, 458 (Tex.App.-Amarillo 1985, no writ) (excavation of a public road). Therefore, the Court finds that the United States is not liable for Plaintiffs' injuries on a theory of an inherently dangerous activity and summary judgment is appropriate as to this claim. 2. The United States Did Not Retain A Right Of Control
The employer of an independent contractor is liable if it retains a right of control over the contractor's work and fails to use reasonable care in exercising that control. Read v. Scott Fetzer Co., 990 S.W.2d 732, 735 (Tex. 1998). The focus is on whether the retained control is specifically related to the alleged injury. Exxon Corp. v. Tidwell, 19, 23 (Tex. 1993). Plaintiffs point to the declarations of two BAMC employees, Colonel Kathleen Zurawel, Chief of the Department of Physical Medicine and Rehabilitation and Chief of Physical Therapy Service, and Chief Warrant Officer 3 Charles Wood, Chief of the Equipment Management Branch, Medical Maintenance Section, as proving that the United States retained a right to control the actions of Spectrum as an independent contractor. Plaintiffs cite to comment c of the RESTATEMENT (SECOND) OF TORTS § 414, which provides, in part,
the employer must have retained at least some degree of control over the manner in which the work is done. It is not enough that he has merely a general right to order the work stopped or resumed, to inspect its progress or to receive reports, to make suggestions or recommendations which need not necessarily be followed, or to prescribe alterations and deviations. Such a general right is usually reserved to employers, but it does not mean that the contractor is controlled as to his methods of work, or as to operative detail. There must be such a retention of a right of supervision that the contractor is not entirely free to do the work in his own way.
As Col. Zurawel and Chief Warrant Officer Wood testified that their responsibilities respectively include the "administration of physical therapy services" and the service of the "equipment used at BAMC and all acquisition and maintenance records pertaining to such equipment," Plaintiffs assert that the United States retained some degree of control over Spectrum in the operation of the physical therapy machines. The United States similarly cites comment c and the declarations of Col. Zurawel and Chief Warrant Officer Wood as establishing that it had no right of control.
Despite Plaintiffs' assertions, the declarations of Col. Zurawel and Chief Warrant Officer Wood do not establish the United States had "such a retention of a right of supervision that [Spectrum was] not entirely free to do the work in [its] own way." There is no indication that the United States retained the type of control over Spectrum's actions that comment c envisions. This is illustrated by the Texas Supreme Court's case of Read v. Scott Fetzer Co. There, the defendant company, which manufactured vacuum cleaners, required in-home demonstrations by all its independent contractor dealers. Read, 990 S.W.2d at 733-34. The Court found that because the manufacturer required this of all dealers, even though the manufacturer's contract was with the distributors rather than the dealers, the manufacturers owed a duty to the customers that received these in-home demonstrations. Id. at 735-36. Where a customer was raped by a dealer during an in-home demonstration, the Court found that the retained control over the way the product would be demonstrated was enough to open the manufacturer to liability. Id. Unlike in Read, in this case there is no suggestion that the United States controlled any aspect of Spectrum's performance. The United States did not exercise any "control over the manner in which the work [was] done." The fact that Col. Zurawel had general responsibility for the administration of the physical therapy services does not change the relationship between the United States and Spectrum. The responsibility held by Col. Zurawel is the same general right reserved to employers that comment c notes is not sufficient to establish liability. The Court finds that there was no retention of control over the actions of Spectrum such as to hold the United States liable. Summary judgment is therefore appropriate on this claim.
3. No Evidence That The United States Was Negligent
Plaintiffs further assert that the United States was negligent in its maintenance of the physical therapy machine at issue in this case. It is unclear whether Plaintiffs intend to continue to pursue this claim, as they have not addressed this issue in their responsive documents, even though the United States addressed it as a valid ground for summary judgment. Plaintiffs have failed to come forward with any evidence establishing the claim as asserted in their Complaint that the United States was negligent in its maintenance of the machine. The United States's evidence, the declaration of Chief Warrant Officer Woods, as well as the inspection and maintenance records of the machine, is conclusive in establishing that the United States was not negligent. As there is no genuine issue of material fact on this issue, the Court finds that summary judgment is also appropriate on this claim.
III. Spectrum's Motion to Dismiss
Spectrum has moved to dismiss on the basis of TEX. CIV. PRAC. REM. CODE § 74.351. Section 74.351 states, in part:
(a) In a health care liability claim, a claimant shall, not later than the 120th day after the date the claim was filed, serve on each party or the party's attorney one or more expert reports, with a curriculum vitae of each expert listed in the report for each physician or health care provider against whom a liability claim is asserted. The date for serving the report may be extended by written agreement of the affected parties.
. . .
(b) If, as to a defendant physician or health care provider, an expert report has not been served within the period specified by Subsection (a), the court, on the motion of the affected physician or health care provider, shall . . . enter an order that:
(1) awards to the affected physician or health care provider reasonable attorney's fees and costs of court incurred by the physician or health care provider; and
(2) dismisses the claim with respect to the physician or health care provider, with prejudice to the refiling of the claim.
. . .
(k) Subject to subsection (t), an expert report served under this section:
(1) is not admissible in evidence by any party;
(2) shall not be used in a deposition, trial, or other proceeding; and
(3) shall not be referred to by any party during the course of the action for any purpose.
. . .
(t) If an expert report is used by the claimant in the course of the action for any purpose other than to meet the service requirement of Subsection (a), the restrictions imposed by Subsection (k) on use of the expert report by any party are waived.
Plaintiffs have not provided an expert report to Spectrum. Because more than 120 days have elapsed since the filing of Plaintiffs' claim, Spectrum asserts that section 74.351 requires sanctions in the form of attorney's fees, costs, and dismissal. As an independent contractor employed by a health care provider, Spectrum is covered by the Texas Medical Liability Insurance Improvement Act ("the Act"). TEX. CIV. PRAC. REM. CODE. § 74.001(a)(12)(B)(ii). Consequently, Plaintiffs' claims against Spectrum are governed by the Act unless pre-empted by federal law.
Generally, physical therapists are not covered by the Act. See Terry v. Barrinuevo, 961 S.W.2d 528, 530-31 (Tex.Civ.App.-Houston [1st Dist.] 1997, no writ h.). However, as noted above, Spectrum is an independent contractor of BAMC. BAMC qualifies as a health care provider. Therefore, Spectrum falls under the Act through section 74.001(a)(12)(B)(ii), which states that the term "health care provider" includes "an employee, independent contractor, or agent of a health care provider or physician acting in the course and scope of the employment or contractual relationship."
Plaintiffs claims also meet the requirement of a "health care liability claim." This term "means a cause of action against a health care provider or physician for treatment, lack of treatment, or other claimed departure from accepted standards of medical care, or health care, or safety or professional or administrative services directly related to health care, which proximately results in injury to or death of a claimaint." TEX. CIV. PRAC. REM. CODE § 74.001(a)(13). Plaintiffs' claims relate to the accepted standards of safety directly related to health care. See Ponce v. El Paso Healthcare Sys., Ltd., 55 S.W.3d 34, 39 (Tex.App.-El Paso 2001, pet. denied) ("[T]he proper treatment of such injuries and the training and supervision of occupational therapists to provide the required care is necessarily governed by an acceptable standard of medical care, health care, or safety, and expert testimony will be required to establish the appropriate standard of care.").
Plaintiffs claim that section 74.351 is pre-empted by FED. R. CIV. P. 26(a) and 37. Rule 26(a)(2)(B) provides that a party must provide a written report of a witness who is retained or specially employed to provide expert testimony in case. The report shall contain a complete statement of all opinions to be expressed and the basis and reasons therefor. Unless directed by the court, or by stipulation of the parties, the disclosure of the expert witness and the report shall be made at least 90 days before the trial date or the date the case is to be ready for trial. FED. R. CIV. P. 26(a)(2)(C). Rule 37 provides for sanctions in the event that the initial disclosures, including the expert report, are not made. Rule 37 further provides the Court with discretion as to sanctions that may be imposed for failure to follow a court order with regard to discovery. Dismissal is included in the range of sanctions, but is not mandated. FED. R. CIV. P. 37(b)(2)(C). Plaintiffs assert that because Rules 26(a) and 37 speak to expert reports, and the sanctions available for the failure to provide expert reports, section 74.351 has been pre-empted. However, just because the rules overlap, does not mean that one is mutually exclusive of the other.
Plaintiffs assert that because section 74.351 is a procedural rule in state court, the Federal Rules of Civil Procedure must provide the procedural rules directing this case. Plaintiffs cite Erie R.R. v. Tompkins, 304 U.S. 64 (1938) and Hanna v. Plummer, 380 U.S. 460 (1965) for this proposition. "Despite Hanna and the presumptive validity it gives to the Civil Rules [however], it should not be assumed that simply invoking a Civil Rule will carry the day." CHARLES ALAN WRIGHT, ARTHUR R. MILLER, EDWARD H. COOPER, 19 FEDERAL PRACTICE AND PROCEDURE § 4508 at 258 (1996). "Where the state rule reflects a substantive state policy not in conflict with the plain meaning of the federal rule, then the state rule is the rule of decision and should be applied under the terms of the Erie decision." Exxon Corp. v. Burglin, 42 F.3d 948, 949 (5th Cir. 1995). It is not always required that a federal court depart from the Federal Rules in cases where the Rules conflict with the state law, however, even when that state law is in some sense substantive. That is because the substantive nature of a state rule is irrelevant if the federal rule "occupies [the state rule's] field of operation." Burlington N.R.R. Co. v. Woods, 480 U.S. 1, 4-5 (1987). "If the [federal] rule speaks to the point in dispute and is valid, it is controlling, and no regard need be paid to contrary state provisions." Burglin, 42 F.3d at 950.
The Federal Rules are not "to be narrowly construed in order to avoid a `direct collision' with state law. The . . . Rules should be given their plain meaning." Walker v. Armco Steel Corp., 446 U.S. 740, 750 n. 9 (1980). However, the Federal Rules should be interpreted "with sensitivity to important state interests and regulatory policies." Gasperini v. Center for Humanities, Inc., 518 U.S. 415, 427 n. 7 (1996). And, of course, in a diversity action, the twin aims of the Erie policy, the avoidance of forum shopping and equitable administration of the laws, see Hanna, 380 U.S. at 467, should always be taken into account.
The interaction between the Texas expert report rule and the Federal Rules has been discussed twice before. In Poindexter v. Bonsukan, 145 F. Supp.2d 800 (E.D. Tex. 2001), the court, after in-depth analysis, determined that the Texas rule was pre-empted by the Federal Rules. And in Spriggs v. Bexar County Hosp., No. SA-03-CA-0922-XR (W.D. Tex. June 9, 2004), this Court, relying upon the analysis in Poindexter and upon the language in the Texas rule allowing extension of the expert report deadline by a written agreement, found that the Federal Rule should apply. Plaintiffs point to these two cases as persuasive authority that the Texas rule is a state procedural rule that is not applicable in the federal courts. Spectrum points to a recent Northern District of Texas case, LaRoe v. Blue Cross Blue Shield of Texas, No. Civ.A.3:03-CV-2381-K, 2004 WL 1585842 (N.D. Tex. July 13, 2004), as persuasive authority for applying the Texas rule in federal court. However, in examining LaRoe, it is clear that there was no dispute between the parties as to whether the Texas rule applied, it was assumed by all parties that it did. Insofar as the court in LaRoe applied the Texas rule, the decision to do so is not persuasive in that it was not questioned. Thus, the only remaining authority on point counsels in favor of denying Spectrum's motion.
In Poindexter, the court found that the Texas rule and the Federal Rules "directly collide" in that the timing provisions of each are different, the requirements of the report are different, and the sanctions for noncompliance are different. Poindexter, 145 F. Supp.2d at 808-10. Specifically, the court in Poindexter found that the purposes of the federal and state provisions are sufficiently coextensive, in that both seek to enable trial courts to penalize parties that file baseless suits. Id. at 808. The court noted that, "at best, [section 74.351] falls within the uncertain area between substance and procedure and is `rationally capable of classification as either.'" Id. at 809 (quoting Hanna, 380 U.S. at 472). The court related the goal of the Texas rule, which is to penalize frivolous malpractice suits, to rules or laws that sanction bad-faith conduct. "Those rules are generally deemed procedural and are not applied by a federal court sitting in diversity." Id. (citing Ashland Chem. Inc. v. Barco Inc., 123 F.3d 261, 264 (5th Cir. 1997)). This Court relied on Poindexter to rule that Rule 26, as well as the Court's scheduling order, governed the timeliness of expert reports. Spriggs, Order at 2. The Court in Spriggs also relied upon the availability under the Texas rule of a written agreement to extend the time period for the expert report. The Court held that the joint proposed scheduling order constituted a written agreement under the Texas rule, and that the plaintiffs could reasonably expect that the deadline in the scheduling order, and not the deadline under the Texas rule, would govern the filing of expert reports. Id. Order at 2-3.
Plaintiff's counsel in Spriggs was the same attorney now representing Plaintiffs in this case.
Despite this authority, Spectrum argues that the Texas rule should be applied in this case as a substantive rule, referring to the expert report required under the Texas rule as a "claim-screening expert report." Spectrum cites various Fifth Circuit cases dealing with other procedural requirements applicable to medical liability cases in which these state requirements have been applied in the federal court. See De Checa v. Diagnostic Ctr. Hosp., Inc., 995 F.2d 74 (5th Cir. 1993) (applying the 75 day tolling provision under Texas law); Baber v. Edman, 719 F.2d 122 (5th Cir. 1983) (applying the 60 day pre-suit notice requirement and 60 day abatement of lawsuit requirement under Texas law); Seoane v. Ortho Pharm., Inc., 660 F.2d 146 (5th Cir. 1981) (requiring review of claim by a medical malpractice review panel under Louisiana law); Woods v. Holy Cross Hosp., 591 F.2d 1164 (5th Cir. 1979) (requiring mediation by a malpractice mediation panel under Florida law). Specifically, Spectrum points to language in Baber, in which the Fifth Circuit stated that the 60 day pre-suit notice " procedural requirement must be met before a medical malpractice claim grounded on Texas law can be filed in a federal court exercising diversity jurisdiction." Baber, 719 F.2d at 123 (emphasis added). As stated by the Fifth Circuit,
The legislature intended the notice statute to bind federal courts in Texas, for it would frustrate the purposes of the statute for diversity plaintiffs to neglect furnishing their potential defendants with notice of their intent to file suit. . . . The notice statute is so intertwined with Texas's substantive policy on medical malpractice actions that, to give that policy full effect, federal courts sitting in diversity must enforce its requirements."Id. Similarly, in discussing the Florida statute requiring mediation, the Fifth Circuit has also noted that refusing to require mediation in federal court would give "[n]on-resident plaintiffs . . . a substantial advatange over resident ones . . .; consequently, the worst form of forum-shopping will be encouraged." Woods, 591 F.2d at 1168 (noting also that this would result in inequitable administration of the laws). According to Spectrum's argument, failing to apply the Texas expert report rule in this case would be akin to repudiating these decisions and granting an unfair advantage to non-resident plaintiffs while granting a distinct disadvantage to non-resident defendants.
In examining the Fifth Circuit precedents, as well as Poindexter and other relevant decisions, the Court is convinced that the Federal Rules pre-empt enforcement of the Texas expert report rule. As recognized by the court in Poindexter, the provisions of Federal Rules 26(a) and 37 are in direct collision with section 74.351. Specifically, Rule 26(a) speaks directly to the discretion afforded to the district courts in managing discovery and in directing the time for disclosure of any expert reports. Rule 37 also grants broad discretion to the district courts to sanction the failure to disclose an expert report, while section 74.351 grants no discretion. Section 74.351 is not so intertwined with the substantive law under Texas law as to require application in the federal court. In addition, the Court does not accept Spectrum's argument that a "claim-screening expert report" is somehow a different species of expert report than that required under the general rules of discovery. Despite Spectrum's contentions, an expert report under section 74.351 may be used by the claimant in the litigation. TEX. CIV. PRAC. REM. CODE § 74.351(t). Only the defendant is barred from using the report, and then only insofar as the claimant does not use the report in the course of the litigation. Id. § 74.315(k).
Further, as recognized by the court in Stanley v. U.S., 321 F. Supp.2d 805 (N.D. W.Va. 2004), there is a direct distinction between Poindexter and the Fifth Circuit cases relied upon by Spectrum. Stanley noted that the Texas expert report rule is a special requirement on medical malpractice cases after filing. Id. at 808. In Stanley, a West Virginia statute required a 30 day pre-suit notice prior to the filing of a medical professional liability claim. Id. at 807. The Stanley court found the pre-suit notice requirement a substantive rule applicable in federal court, distinguishing Poindexter on the fact that it was decided on the basis that Rule 26 only applies after an action is filed, and therefore comes in conflict with the Texas expert report rule. Id. at 808. As in Stanley, the Fifth Circuit cases cited by Spectrum deal with pre-suit, rather than post-suit requirements, and do not come into direct conflict with a Federal Rule of Procedure. While Poindexter noted that other districts and Circuits have applied some type of claim-screening requirement in federal courts, these decisions also generally apply to pre-suit requirements. See Poindexter, 145 F.Supp.2d at 807.
While it is clear that the purposes of section 74.315 are to deter frivolous lawsuits, to require the plaintiff at the earliest stage to inform the defendant of the conduct called into question, and to provide a basis for the trial court to evaluate and determine the viability and merit of the plaintiff's claim, see American Transitional Care Ctrs. of Texas, Inc. v. Palacios, 46 S.W.3d 873, 878-89 (Tex. 2001), these purposes can be accomplished through other means in the federal system. Rule 11 requires that an attorney signing his or her name to a pleading represent to the court that the document is not being presented for any improper purpose, is warranted by existing law or by a nonfrivolous argument for the extension, modification, or reversal of existing law, and has evidentiary support. FED. R. CIV. P. 11(b). The Court has discretion to impose sanctions for violations of this Rule. Id. 11(c). In addition, a response to a summary judgment motion must be met with some evidence to establish a genuine issue of material fact. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 n. 4 (1986). Under Texas law, courts have long recognized the necessity of expert testimony in medical malpractice cases. Palacios, 46 S.W.3d at 876. "There can be no other guide [than expert testimony], and where want of skill and attention is not thus shown by expert evidence applied to the facts, there is no evidence of it proper to be submitted to the jury." Hart v. Van Zandt, 399 S.W.2d 791, 792 (Tex. 1965). A motion for summary judgment is proper before the deadline for turning over expert reports under the Court's scheduling order. Fed.R.Civ.P. 56(b) ("A party against whom a claim, counterclaim, or cross-claim is asserted or a declaratory judgment is sought may, at any time, move with or without supporting affidavits for a summary judgment. . . ."). (emphasis added). In short, there are other effective ways in which the goal of reducing frivolous lawsuits may be effected in federal court, even though section 74.351 is not enforced. The Court is persuaded that the scheduling order in effect governs the disclosure of all expert reports in this case.
IV. Conclusion
Plaintiffs have filed suit against the United States, its independent contractor, Spectrum Healthcare Resources, Inc., and Spectrum's employee Michael Sims, for damages stemming from an injury sustained by Janice McDaniel when she fell off a physical therapy machine, breaking her pelvis. Plaintiffs claim that the United States is liable through its own negligence and through the negligence of Spectrum. Plaintiffs assert that physical therapy is an inherently dangerous activity and that the United States owed a nondelegable duty to Janice McDaniel. The Court finds that physical therapy is not an inherently dangerous activity and that Plaintiffs' recourse is limited to suit against Spectrum and its employee, as the United States is not liable for the actions of its independent contractor. The United States also is not liable under a theory of retention of control, as there is no evidence that it retained any level of control over the manner in which Spectrum performed. The Court also finds that Plaintiffs have not presented any evidence that the United States itself was negligent in the maintenance of the physical therapy machine at issue. Accordingly, the Court GRANTS the United States's Motion for Summary Judgment (docket no. 11). Judgment is entered in favor of the United States.
As to Plaintiffs' suit against Spectrum Healthcare, Inc and Sims ("Spectrum"), Spectrum argues that because Plaintiffs did not meet the requirements of TEX. CIV. PRAC. REM. CODE § 74.351, which requires the filing of an expert report in a medical malpractice case within 120 days of the filing of the case, their suit should be dismissed. While generally an abundance of caution would counsel in favor of filing the expert report within the first 120 days in a situation such as this, the Court finds that the failure to do so is not fatal to Plaintiffs' claim. Because FED.R.CIV.P. 26(a) and 37 are in direct collision and pre-empt the state procedural requirement of section 74.351, the Court finds that the expert report requirement is not enforceable in federal court when the scheduling order does not specifically address the issue. Absent a specific provision in the scheduling order referencing a separate expert report such as that required by section 74.351, Rule 26(a) and the provisions of the scheduling report govern the discovery of expert reports. Accordingly, the Court DENIES Spectrum's Motion to Dismiss (docket no. 21).
However, as the Court has granted summary judgment in favor of the United States, the basis for the Court's original jurisdiction over this case has been destroyed. Because jurisdiction was based on the Federal Tort Claims Act, Plaintiffs suit against Spectrum and Sims was properly in this Court under the Court's supplemental jurisdiction, 28 U.S.C. § 1367(a). Though the Court continues to have supplemental jurisdiction over the claims against Spectrum and Sims, the Court has discretion to dismiss the remaining claims when it has dismissed all claims over which it has original jurisdiction. Id. § 1367(c). Plaintiffs' remaining claims do not involve federal question jurisdiction; nor do they involve diversity jurisdiction, as Plaintiffs and Defendant Sims are all citizens of Texas. It appears there has been little discovery conducted in this case. Further, the facts giving rise to Plaintiffs' claims occurred in June 2003, less than two years ago, and as such seem to still be ripe under the Texas statute of limitations. TEX. CIV. PRAC REM. CODE § 16.003. The dismissal of all federal claims at the summary judgment stage is "a powerful reason to choose not to continue to exercise jurisdiction." Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 351 (1988). The Court therefore exercises its discretion to sua sponte DISMISS this case without prejudice to allow refiling in state court.
Finally, in Plaintiffs' Response in Opposition to the United States's Motion for Summary Judgment, Plaintiffs have asked for leave to amend their Complaint to add Foundation Health Federal Services as a defendant. The Court DENIES Plaintiffs' request for leave to amend their Complaint as moot.