Opinion
Civil Action No. 3:02-CV-0052-N.
July 7, 2004
ORDER
Before the Court is Defendant's motion for summary judgment. Because the Court previously erroneously dismissed Plaintiff Abravanel's claims against Texas Tech University Health Sciences Center ("TTUHSC") with prejudice, instead of without prejudice, the motion for summary judgment based on derivative immunity is denied. Because the Court holds that fact issues exist with regard to Day's motion for summary judgment on standard of care, causation, and informed consent, the motion is denied on those grounds. The Court finds there is no genuine issue of material fact with regard to Day's motion for summary judgment on Abravanel's claim for attorneys' fees, and the motion is granted on that ground.
I. DERIVATIVE IMMUNITY
Plaintiff Abravanel initially brought claims against both Defendant Day and TTUHSC. TTUHSC moved to dismiss the claims against it based on Eleventh Amendment immunity, to which Abravanel did not respond. The motion to dismiss was referred to the Magistrate Judge for recommendation; on April 10, 2002, the Magistrate Judge recommended that the motion be granted and that Abravanel's claims against TTUHSC be dismissed with prejudice. On April 22, 2002, Abravanel objected to the recommendation stating that he did not oppose dismissal, but that it should be without prejudice, not with prejudice. On April 23, 2002, this Court signed an Order adopting the Magistrate Judge's recommendations, and entered judgment dismissing Abravanel's claims against TTUHSC with prejudice. No certification under Rule 54(b) has been made and the April 23 judgment in favor of TTUHSC remains interlocutory.
Day has now moved for summary judgment under the derivative immunity provision of the Texas Tort Claims Act. TEX. CIV. PRAC. REM. CODE § 101.106. That section provided:
A judgment in an action or a settlement of a claim under this Chapter bars any action involving the same subject matter by the claimant against the employee of the governmental unit whose act or omission gave rise to the claim.Id. Because Day is an employee of TTUHSC, he has moved for summary judgment based on the interlocutory judgment in favor of TTUHSC.
The statute has subsequently been revised, but the revisions are applicable only to actions filed on or after September 1, 2003. See Acts 2003, 78th Leg., ch. 204, sec. 23.02(d).
That motion turns on whether the dismissal of TTUHSC was with or without prejudice. See Harris County v. Sykes, ___ S.W.3d ___, 47 Tex. Sup. Ct. J. 618 (Tex. May 28, 2004). Although the Court previously ordered Abravanel's claims against TTUHSC dismissed with prejudice, the Court is persuaded that dismissal with prejudice was incorrect.
TTUHSC moved to dismiss Abravanel's claim based upon Eleventh Amendment immunity from suit in federal court. Dismissal under the Eleventh Amendment is not a finding that sovereign immunity applies and that TTUHSC is immune from any claim that Abravanel might assert against it. Rather, it is a conclusion that, under the Eleventh Amendment, TTUHSC is outside the jurisdiction of a federal court. The order of dismissal thus reflects a determination that this Court does not have jurisdiction over TTUHSC, not a determination of the merits of Abravanel's claims. Accordingly, the dismissal should be without prejudice. See Warnock v. Pecos County, 88 F.3d 341, 343 (5th Cir. 1996); Cooper v. Sears, No. 3:02-CV-0698-R, 2004 WL 515607 (N.D. Tex. Jan. 9, 2004) (Ramirez, M.J.).
Accordingly, the Court's April 23, 2002 Order adopting the Magistrate Judge's recommendation and Judgment of that date are vacated, and Abravanel's objection to the recommendation is sustained. It is, therefore, ORDERED that Abravanel's claims against TTUHSC are dismissed without prejudice. Judgment to that effect will be provided by separate instrument. Consequently, Day's motion for summary judgment based on derivative immunity is denied.
II. SUBSTANTIVE CLAIMS
Day further moves for summary judgment on the basis that there is no evidence of the applicable standard of care, there is no evidence of causation, and the evidence conclusively establishes consent. The Court will address these arguments briefly in turn.
First, the Court holds that the testimony of Levinger, Kim and Flynn sufficiently addresses the applicable standard of care, notwithstanding the fact that none of them has first-hand experience injecting ADCON-L into the epidural space. Second, the testimony of Kim and Abravanel sufficiently addresses causation, at least with respect to short term injury. Whether the testimony is sufficient to submit longer term injury to the jury is a matter the Court can better address at trial with the complete evidentiary record before it. Finally, Abravanel's testimony at minimum raises fact issues regarding whether the written consent was informed, as he testified that the form was blank when he signed it, and regarding whether he had capacity to consent due to his medications. Accordingly, Day's motion for summary judgment on the substantive claims is denied.
III. ATTORNEYS' FEES
Finally, Day moves for summary judgment on Abravanel's claim for attorneys' fees on the basis that Chapter 38 of the Texas Civil Practice and Remedies Code does not allow attorneys' fees for negligence claims. Abravanel does not respond to this argument. The Court agrees that Chapter 38 does not provide for attorneys' fees for Abravanel's claims, so Day's motion for summary judgment is granted on this ground.
The Court will by separate order reset this case on the trial docket.