Opinion
Civil Action No. 1:04-CV-125-C.
August 27, 2004
ORDER
Came on for consideration the Defendant's Motion to Dismiss Pursuant to Section 74.351(b) of the Texas Civil Practice Remedies Code, which was filed by the Clerk on August 2, 2003. Plaintiff's response was due August 23, 2004, but Plaintiff failed to file a response.
I. PROCEDURAL HISTORY
Plaintiff filed her Original Petition in the 32nd Judicial District Court of Nolan County, Texas on March 9, 2004. Defendant removed the action to this Court on May 19, 2004, after receiving service of process on May 11, 2004. Defendant filed its Motion to Dismiss on August 23, 2004. Plaintiff failed to file a timely response.
II. BACKGROUND
In her Original Petition, Plaintiff alleges that Vergil Redden was a patient under the care of Defendant as a nursing home resident, after having been admitted on May 5, 2003. Plaintiff further alleges that, prior to admission, Mr. Redden was alert and cooperative and that he had no decubitis ulcers. Plaintiff alleges that Mr. Redden had previously been in the Veterans Administration Hospital at Big Spring, Texas, and had not developed any of decubitis ulcers that Plaintiff alleges developed in Defendant's care. Plaintiff further alleges that during the course of Mr. Redden's stay at Defendant's facility; Mr. Redden suffered extensive decubitis ulcers attributable to allowing Mr. Redden to be kept in an upright, sitting position for extended periods of time without proper and frequent repositioning or adequate care. Plaintiff alleges that Defendant's negligent acts and omissions were the proximate cause of the injuries. Although not specifically pleaded under the Texas survival statute, Plaintiff seeks damages for Vergil Redden. Plaintiff further pleads a wrongful death action "pursuant to Texas Civil Practice and Remedies Code, 71.001 et seq." Plaintiff also seeks exemplary damages.III. STANDARD
Motions to dismiss for failure to state a claim are appropriate when a defendant attacks the complaint because it fails to state a legally cognizable claim. FED. R. CIV. P. 12(b)(6). The test for determining the sufficiency of a complaint under Rule 12(b)(6) was set out by the United States Supreme Court as follows: "[A] complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46 (1957). See also Grisham v. United States, 103 F.3d 24, 25-26 (5th Cir. 1997).
Subsumed within the rigorous standard of the Conley test is the requirement that the plaintiff's complaint be stated with enough clarity to enable a court or an opposing party to determine whether a claim is sufficiently alleged. Elliott v. Foufas, 867 F.2d 877, 880 (5th Cir. 1989). Further, "the plaintiff's complaint is to be construed in a light most favorable to the plaintiff, and the allegations contained therein are to be taken as true." Oppenheimer v. Prudential Sec., Inc., 94 F.3d 189, 194 (5th Cir. 1996). This is consistent with the well-established policy that the plaintiff be given every opportunity to state a claim. Hitt v. City of Pasadena, 561 F.2d 606, 608 (5th Cir. 1977). In other words, a motion to dismiss an action for failure to state a claim "admits the facts alleged in the complaint, but challenges plaintiff's rights to relief based upon those facts." Tel-Phonic Servs., Inc. v. TBS Int'l, Inc., 975 F.2d 1134, 1137 (5th Cir. 1992). Finally, when considering a Rule 12(b)(6) motion to dismiss for failure to state a claim, the district court must examine the complaint to determine whether the allegations provide relief on any possible theory. Cinel v. Connick, 15 F.3d 1338, 1341 (5th Cir. 1994).
IV. DISCUSSION
Defendant asserts that it is entitled to dismissal of Plaintiff's claims pursuant to Section 74.351(b) of the Texas Civil Practice and Remedies Code. Tex. Civ. Prac. Rem. Code Ann. § 74.351(b). Chapter 74 of the Texas Civil Practice and Remedies Code governs health care and liability claims. The statute defines "health care and liability claims" as
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 claimant, whether the claimant's claim or cause of action sounds in tort or contract.
Tex. Civ. Prac. Rem. Code Ann. § 74.001(a)(13) (Vernon Supp. 2004).
Defendant also directs the Court to Section 74.001(a)(11)(J) and (12)(A)(vii) as including nursing homes and health care institutions within the definition of "health care provider." Id. § 74.001(a)(11)(J) and (12)(A)(vii); Def. M. at 2.
Defendant bases its motion for dismissal upon Section 74.351(b)'s requirement that a plaintiff asserting a medical malpractice claim must provide each health care provider with an expert report and the expert's curriculum vitae within 120 days of filing suit. Id. § 74,351(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 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.Id. § 74.351(a). The statute also defines "expert report" as follows:
The parties do not argue, nor was evidence presented, that any agreement was reached for extending the deadline.
"Expert report" means a written report by an expert that provides a fair summary of the expert's opinions as of the date of the report regarding the 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. § 74.351(r)(6).
Finally, Defendant argues that because Plaintiff failed to provide the required report, then the Court must dismiss the action against the health care provider with prejudice pursuant to Section 74.351(b). Section 74.351(b) provides as follows:
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, subject to Subsection (c), enter an order that:
(1) awards to 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.Id. § 74.351(b).
Plaintiff filed suit on March 9, 2004. According to Defendant, Plaintiff should have served upon Defendant an expert report and curriculum vitae no later than July 7, 2004 (120 days after the date Plaintiff filed suit). It appears undisputed that Plaintiff failed to serve Defendant with the report and curriculum vitae by July 7, 2004. Moreover, no evidence exists in the record that Plaintiff even attempted to comply with the requirements of Section 74.351(a).
The real issue before this Court, however, is whether the Federal Rules of Civil Procedure are to be applied (and thus this Court's scheduling order for filing of expert reports) or Texas procedural rules. Unless the Federal Rules apply to this removed case, the Court lacks discretion to act in any manner other than what the statute requires. See Lookshin v. Feldman, 127 S.W.3d 100, 105 (Tex.App.-Houston [1st Dist.] 2003, no pet. filed) ("We hold that appellants' failure to file an expert report within 180 days of filing their lawsuit left the trial court with no discretion but to dismiss their suit with prejudice."). But if federal procedure applies once the case is removed, then Plaintiff need only file the report when required to do so under the Federal Rules and/or scheduling orders from this Court.
This issue has been addressed by a federal district court in the Eastern District of Texas. "As a general rule, discovery is a procedural matter governed in federal court by the Federal Rules of Civil Procedure and not by state discovery practice." Poindexter v. Bonsukan, M.D., 145 F. Supp. 2d 800, 803 (E.D. Tex. 2001) (Cobb, J.). "Federal courts apply state substantive law `when adjudicating diversity-jurisdiction claims, but in doing so apply federal procedural law to the proceedings.'" Id. (quoting Cates v. Sears, Roebuck Co., 928 F.2d 679, 687 (5th Cir. 1991). "The Supreme Court, however, has made clear that Erie and its progeny do not require the federal court depart from the Federal Rules in cases where those rules conflict with state law, even if state law is in some sense `substantive.'" Id. "In other words, the substantive nature of a state rule is irrelevant if the federal rule `occupies the state rule's field of operation.'" Id. (brackets omitted). "`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.'" Id. (brackets omitted).
Although not conclusive, the Court notes that the Texas Legislature chose to title Subchapter H, under which section 74.351 Expert Reports is found, as "Procedural Provisions."
"Expert disclosure rules and sanctions for failure to comply with those rules are governed in federal court by the Federal Rules of Civil Procedure." Id. at 804. Rule 26(a) provides that expert reports "shall be made at the times and in the sequence directed by the court." Fed.R.Civ.P. 26(a)(2)(C). "There is no doubt that the timing provisions, the expert report content requirements, and the sanctions found in Rule 26 conflict with those in [section 74.351]." Id. at 805. "Applying section [74.351] would so impinge on the broad procedural powers of the federal district courts to control discovery that it must yield to the federal scheme." Id. at 808. Thus, this Court finds that the provisions of the Federal Rules and section 74.351 are in direct conflict. See id. at 808-810.
CONCLUSION
Therefore, even though section 74.351 may require dismissal of Plaintiff's claims, once the case was removed to this Court, the Federal Rules of Civil Procedure became paramount to the Texas procedural provisions governing Plaintiff's claims. Defendant's Motion to Dismiss is DENIED.
SO ORDERED.