Opinion
Master File No. 00 Civ. 2843 (LAK).
June 9, 2005
PRETRIAL ORDER NO. 381 ( Garza — Dr. Cortes' Motion to Dismiss)
Defendant Oscar Cortes, M.D., moves to dismiss the claims against him on the ground that plaintiffs failed to furnish the expert report required by Section 13.01 of article 4590i of the Texas Civil Code. Plaintiffs argue that this statute does not apply in federal court in light of Poindexter v. Bonsukan, 145 F. Supp.2d 800 (E.D. Tex. 2001), which in substance held that this Texas provision is trumped in federal court by the Federal Rules of Civil Procedure and, if not, that they are entitled to an extension of time within which to provide the requisite report.
This statute was repealed and replaced by TEX. CIV. PRAC. REM. CODE § 74.351, effective September 1, 2003. The parties agree that former Section 13.01 of article 4590i nevertheless governs this action because this action was commenced prior to the effective date of the new statute. See Tex. Acts 2003, 78th Leg., ch. 204, § 10.01.
Poindexter is not the only word on this subject. In Nelson v. Myrick, No. Civ.A.3:04-CV-0828-G, 2005 WL 723459 (N.D. Tex. Mar. 29, 2005), Chief Judge Fish agreed with Poindexter. In Cruz v. Chang, No. Civ.EP-03-CA-465KC, 2005 WL 356817 (W.D. Tex. Jan. 28, 2005), however, Judge Cardone reached the opposition conclusion. But it is unnecessary to address this issue.
Assuming that plaintiffs were required by the Texas statute to serve the expert report, the fact that Poindexter was the only reported case on the subject suggests strongly that their failure was inadvertent, which would entitle them to an extension of time of thirty days from the date of this order under former Section 13.01(g). Even if plaintiffs were not so required, the Court would condition their continuation of the action against Dr. Cortes on the filing of such a report within that period.
Accordingly, the motion to dismiss [00 Civ. 2843, docket item 3087] is denied without prejudice to the filing of a new motion in the event that plaintiffs have not furnished the requisite expert report within thirty days of the date of this order.
SO ORDERED.