In a case of first impression, the Fifth Circuit held that Section 74.351 of the Texas Civil Practices and Remedies Code does not apply in federal court. Passmore v. Baylor Health Care System, No. 15-10358, 2016 U.S. App. LEXIS 9201 (5th Cir. May 19, 2016).
The Texas statute requires a plaintiff in a healthcare liability case to serve on each defendant "not later than the 120th day after the date each defendant's original answer is filed ...one or more expert reports..." Tex. Civ. Prac. & Rem. Code § 74.351(a). The report must provide a fair summary of the expert's opinions regarding applicable standards of care, the manner in which the care rendered 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). The statute stays discovery pending the filing of the required report. Id. at § 74.351(3)(u). If a plaintiff fails to timely serve the required expert report, the statute mandates dismissal of the claim with prejudice and award attorney's fees and costs to the defendant. Id. at § 74.351(b).
The Passmores filed a medical malpractice suit against Baylor Hospital and a nurse in federal court. The defendants moved to dismiss the Passmores' suit because they never filed the expert report required by Section 74.351(a). The district court granted the defendants' motion holding that Section 74.351(a) was substantive Texas law applicable in federal court.
The Fifth Circuit reversed, finding that the Texas law is a procedural rule that does not apply in federal court and that the statute conflicts with the federal rules. The Fifth Circuit held that provisions requiring an expert report within 120 days of the filing of the defendant's answer, and mandating dismissal of the plaintiffs' suit if the report is not timely filed, collided with federal rules governing the time for production of expert reports and the rules giving district courts discretion in dealing with failures to comply with discovery orders. Accordingly, the Fifth Circuit held that the Texas statute does not apply in federal court, and thus reversed the dismissal of the plaintiffs' suit.
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