denying motion to dismiss the plaintiff's § 1983 and state law claims pursuant to § 74.351Summary of this case from Baker v. Bowles
Civil Action No. 3:04-CV-0828-G.
March 29, 2005
MEMORANDUM OPINION AND ORDER
Before the court is the motion of the defendants Lake Pointe Partners, Ltd., d/b/a Lake Pointe Medical Center ("Lake Pointe") and Carolyn Myrick, R.N. ("Myrick") to dismiss, pursuant to TEX. CIV. PRAC. REM. CODE § 74.351(b), the claims of the plaintiff Steven Ray Nelson ("Nelson") for failure to serve an expert report within 120 days after the commencement of this case. For the reasons stated below, Lake Pointe and Myrick's motion to dismiss is denied.
This is a pro se prisoner case, in which Nelson seeks — pursuant to 42 U.S.C. § 1983 — monetary damages based on his allegations that the movants violated his constitutional rights. See generally Complaint. Nelson alleges that his constitutional rights were violated when Myrick, a nurse employed with Lake Pointe, subjected him to a urine extraction by catheter without his consent. Id. at 8. Nelson asserts additional claims against Myrick based on Texas' statutory prohibition of sexual assault and aggravated sexual assault. Id. (citing TEX. PEN. CODE §§ 22.011, 22.021). Nelson also alleges that Lake Pointe failed to properly train its employees, citing Myrick's alleged actions. Id. at 9.
The court previously held that Nelson's statutory allegations, liberally construed, amount to state law intentional tort claims of assault and battery. Memorandum Order (February 22, 2005) at 7-9.
On July 12, 2004, Lake Pointe and Myrick filed a motion to dismiss Nelson's claims pursuant to FED. R. CIV. P. 12(b)(6), or in the alternative, for a more definite statement. Nelson filed his response on August 3, 2004, in which he provided a "more detailed brief" of his claims. Plaintiff's Response to [Lake Pointe and Myrick's Motion] at 1. After careful consideration, the court denied the defendants' motion to dismiss. See generally Memorandum Order (February 22, 2005). The court also interpreted Nelson's response to be his submission of a more definite statement, and denied the defendants' alternative motion as well. Id. at 6, 9, 10.
On February 10, 2005, Lake Pointe and Myrick filed this motion, seeking to dismiss all of Nelson's claims on the grounds that he has failed to comply with TEX. CIV. PRAC. REM. CODE § 74.351(a) by not furnishing an expert report within 120 days of the commencement of his suit. Defendants' Motion to Dismiss for Plaintiff's Failure to Serve a Chapter 74 Expert Report and Brief in Support ("Motion to Dismiss") at 1-2. Nelson timely filed his response on February 28, 2005. Plaintiffs' Response to Lake Point [sic] and Carol Myrick's "Chapter 74 Motion to Dismiss" and the Plaintiffs' Formal Objection ("Plaintiff's Response") at 1. On March 16, 2005, the defendants filed their reply. Defendants' Objection and Reply to Plaintiff's Response to Defendants' Motion to Dismiss for Plaintiff's Failure to Serve a Chapter 74 Expert Report and Brief in Support ("Defendants' Reply") at 1.
As a general rule, "discovery in a federal court is governed only by [the Federal Rules of Civil Procedure] and . . . state discovery practices are irrelevant." Poindexter v. Bonsukan, 145 F. Supp. 2d 800, 803 (E.D. Tex. 2001) (quoting 8 CHARLES ALAN WRIGHT ARTHUR R. MILLER, FEDERAL PRACTICE AND PROCEDURE § 2005 (Supp. 2000)); see also Exxon Corporation v. Burglin, 42 F.3d 948, 950 (5th Cir. 1995). Accordingly, before the court decides whether to dismiss Nelson's claims for failure to comply with section 74.351, it must first decide whether section 74.351 applies in federal court.
A. Applicability Of TEX. CIV. PRAC. REM. CODE § 74.351
Federal courts are bound to apply state substantive law "when adjudicating [state law] claims, but in doing so [they] apply federal procedural law to the proceedings." Poindexter, 145 F. Supp. 2d at 803 (quoting Cates v. Sears, Roebuck Co., 928 F.2d 679, 687 (5th Cir. 1991)); Gasperini v. Center For Humanities, Inc., 518 U.S. 415, 426-27 (1996). Federal courts are not bound, however, to follow a state law that merely "is in some sense `substantive,'" Poindexter, 145 F. Supp. 2d at 803, if it is in conflict with the Federal Rules of Civil Procedure. Id. If there is a "direct collision" between a federal rule and a state law, there is "no room for the operation of [the state law]." Burlington Northern Railroad Company v. Woods, 480 U.S. 1, 4-5 (1987); see also Exxon Corporation, 42 F.3d at 950 ("If the [Federal] Rule [of Civil Procedure] speaks to the point in dispute and is valid, it is controlling, and no regard need be paid to contrary state provisions.").
For a "direct collision" to exist, the "federal law and state law [need not] be perfectly coextensive and equally applicable to the issue at hand." Stewart Organization, Inc. v. Ricoh Corporation, 487 U.S. 22, 27 n. 4 (1988). Instead, "the federal statute [need only] be sufficiently broad to cover the point in dispute." Id.; see Hanna v. Plumer, 380 U.S. 460, 470 (1965) (stating that when there is no federal rule covering the point in dispute, applicable state law must be enforced). Courts should not narrowly construe the federal rules to avoid a "direct collision", but should give them their plain meaning. Walker v. Armco Steel Corporation, 446 U.S. 740, 750 n. 9 (1980).
Section 74.351 requires a claimant in a healthcare liability suit to serve, within 120 days after the date he files his claim, one or more expert reports for each defendant physician or healthcare provider. TEX. CIV. PRAC. REM. CODE § 74.351(a). The expert report must
provide a fair summary of the expert's opinions as of the date of the report regarding applicable standards of care, the manner in which the care rendered by the physician or health care provider failed to meet the standards, and the causal relationship between that failure and the injury, harm, or damages claimed.Id. at § 74.351(r)(6). In the event that the claimant does not serve the requisite expert report(s), the court must, upon the affected defendant's motion, dismiss the claims against that defendant with prejudice, and award reasonable attorney's fees and costs to the affected defendant. Id. at §§ 74.351(b)(1)-(2).
In a federal court proceeding, Federal Rules of Civil Procedure 26(a)(2) and 37(c)(1) govern expert report disclosures and the sanctions for failure to make disclosure, respectively. Rule 26(a)(2) provides that "a party shall disclose to other parties the identity of any person who may be used at trial to present evidence [as an expert]." FED. R. CIV. P. 26(a)(2)(A). The disclosure must, in the case of an expert who is retained to provide expert testimony or an employee whose regular duties include giving expert testimony, "be accompanied by a written report prepared and signed by the witness." Id. at 26(a)(2)(B). The expert's written report must:
contain a complete statement of all opinions to be expressed and the basis and reasons therefor; the data or other information considered by the witness in forming the opinions; any exhibits to be used as a summary of or support for the opinions; the qualifications of the witness, including a list of all publications authored by the witness within the preceding ten years; the compensation to be paid for the study and testimony; and a listing of any other cases in which the witness has testified as an expert at trial or by deposition within the preceding four years.Id. These disclosures are to "be made at the times and in the sequence directed by the court." Id. at 26(a)(2)(C). In the absence of court direction, however, the disclosures must be made at least 90 days before trial, or within 30 days after the other party's disclosure if the evidence is intended solely to contradict or rebut. Id.
Rule 37(c) provides the available sanctions for a party's failure to comply with the expert disclosure requirements of Rule 26. Unless the party's failure is harmless, the undisclosed expert evidence cannot be used at trial, a hearing, or in connection with any motion. FED. R. CIV. P. 37(c). The court may also impose "other appropriate sanctions," including reasonable expenses, attorney's fees caused by the failure, or dismissal of the action. Id. (citing FED. R. CIV. P. 37(b)(2)(C), which provides for dismissal).
In their motion, the defendants assert that the service of expert reports required by section 74.351 "is not displaced by federal rule and is . . . [a] part of a comprehensive scheme governing plaintiff's substantive right." Motion to Dismiss at 4 (quoting Cruz v. Chang, Civ. No. EP-03-CA-465KC, 2005 WL 356817, at *8 (W.D. Tex. Jan. 28, 2005)). Accordingly, they argue, the court must dismiss Nelson's claims with prejudice and award reasonable attorney's fees. Id. at 5-6. Nelson argues in response that section 74.351 is "a state rule not cognizable in [f]ederal [c]ourt," Plaintiff's Response at 1, and that applying it here "would abrogate (diminish) [the] court[']s discretion under" Federal Rules of Civil Procedure 26 and 37. Id. at 3. The court agrees with Nelson.
This case presents a "direct collision" between section 74.351 and Rules 26 and 37. Cf. Hanna, 380 U.S. at 470 (finding a direct collision between a state law that requires inhand service of a complaint and Rule 4(d)(1) of the Federal Rules of Civil Procedure, which "says . . . with unmistakable clarity — that inhand service is not required in federal courts"); Walker, 446 U.S. at 750-51 (holding that state law, rather than Rule 3 of the Federal Rules of Civil Procedure, determines when a diversity action commences for the purposes of tolling the state statute of limitations; Rule 3 makes no reference to the tolling of state limitations, and, therefore, there is no direct conflict). First, the mandatory language of section 74.351 strips federal courts of the discretion granted in Rules 26 and 37. Poindexter, 145 F. Supp. 2d at 808. Rule 26 provides for disclosures to "be made at the times and in the sequence directed by the court." Id. (quoting FED. R. CIV. P. 26(a)) (emphasis in original). Rule 37 provides that the court, in addition to or in lieu of excluding the expert evidence, " may impose other appropriate sanctions." FED. R. CIV. P. 37(c)(1) (emphasis added). Section 74.351, in contrast, mandates that the claimant make his expert report disclosures within 120 days from the date of suit, and if he fails to do so, the statute mandates that the court dismiss the case with prejudice and award the defendants attorneys fees. TEX. CIV. PRAC. REM. CODE §§ 74.351(b)(1)-(2).
In support of their argument that there is not a "direct collision" between section 74.351 and the federal rules, the defendants point to LaRoe v. Blue Cross Blue Shield, No. 3:03-CV-2381-K, 2004 WL 1585842, at *1 (N.D. Tex. July 13, 2004). Motion to Dismiss at 4. That case is not persuasive, however, as it does not contain any analysis regarding whether a federal court should apply section 74.351. See generally LaRoe, 2004 WL 1585842. Without objection from the claimant, the court appeared simply to assume that section 74.351 should be applied. Id. The defendants also argue that there is no "direct collision" because section 74.351 "is by definition a non-discovery procedure and [Rule 26] is a discovery procedure." Defendants' Reply at 8 (quoting Cruz, 2005 WL 356817, at *7). The Cruz court, however, was relying on the language of Texas Revised Civil Statutes § 13.01 — later replaced by section 74.351 — which stated that "[n]otwithstanding any other law, an expert report filed under this section: (1) is not admissible in evidence by a defendant; (2) shall not be used in a deposition, trial, or other proceeding; and (3) shall not be referred to by a defendant during the course of the action for any purpose." Id. at *6 (quoting TEX. REV. CIV. STAT. § 13.01(k) (Vernon Supp. 1998) (repealed 2003)). Section 74.351 generally places the same restrictions on the use of the expert report, but those restrictions are now "[s]ubject to Subsection (t)." TEX. CIV. PRAC. REM. CODE. § 74.351(k). Subsection (t) provides that if the claimant uses the expert report for any purpose other than to meet the service requirement, then the restrictions are waived. Id. at § 74.351(t). Accordingly, the expert reports may be used in discovery under the new text of the statute.
Second, section 74.351's timing provisions also directly conflict with those in the federal rules. Section 74.351 requires that the disclosure be made within 120 days after the suit is filed. Id. at § 74.351(a). Under the federal rules, absent court direction, the parties have until 90 days before trial to disclose their expert witness reports. FED. R. CIV. P. 26(a)(2)(C). If the court assumes, arguendo, that Nelson has not served the defendants with an expert report as of this date, then he is in violation of the expert report disclosure requirements of section 74.351, but is in compliance with the expert report disclosure requirements of Rule 26.
Finally, section 74.351 and Rule 26 conflict as to what a party must include in the expert report. Under section 74.351, the report only needs to include the expert's opinion as to the applicable standard of care, how the physician or health care provider breached the standard of care, and the causal nexus between the breach and the alleged harm. TEX. CIV. PRAC. REM. CODE § 74.351(r)(6). Rule 26 requires, inter alia, a complete statement of all of the expert's opinions, all of the data and information on which the expert relied in forming his opinion, exhibits used in support of the opinion, the expert's qualifications and previous publications, and the amount he will be compensated for his testimony. FED. R. CIV. P. 26(a)(2)(B). An expert report that conforms with the section 74.351 requirements would not necessarily satisfy Rule 26's more extensive requirements.
Accordingly, the court holds that there is a "direct collision" between section 74.351 and Rules 26 and 37, and that there is, therefore, no room for operation of section 74.351.