Opinion
No. 13-05-082-CV
Memorandum Opinion Delivered and Filed May 11, 2006.
On Appeal from the 206th District Court of Hidalgo County, Texas.
Before the Court En Banc.
DISSENTING MEMORANDUM OPINION ON MOTION FOR CONSIDERATION EN BANC
This case is now before the Court on motion for consideration en banc. See TEX. R. APP. P. 41.2, 49.7. Appellant Jose Carreras presents one issue. Among other things, he maintains that the panel majority incorrectly interpreted the statutory mandates of section 74.351 of the Texas Civil Practice and Remedies Code. See TEX. CIV. PRAC. REM. CODE ANN. 74.351(a) (Vernon Supp. 2005). Addressing both the substance of the proffered expert report and the expert's qualifications, Carreras asks us to review en banc whether (1) the proffered expert report is sufficient as a matter of law because it is (a) unsigned and/or (b) does not address causation, (2) a paragraph in the unsigned report is a statutorily sufficient curriculum vitae, (3) an unsigned expert report filed in response to requests for disclosure can be used to satisfy both rule 194.2 and chapter 74 requirements. See TEX. R. CIV. P. 194.2(f); TEX. CIV. PRAC. REM. CODE ANN. 74.351(a). Because it is dispositive of the motion, I address solely the latter question. See TEX. R. APP. P. 47.1.
I. Dual Purpose Filing of the Expert Report
Two "reports" are in the record. One is signed. One is not. The claimants maintained below and now on appeal that the unsigned report filed in response to the requests for disclosure was their expert report filed for the dual purposes of satisfying discovery and chapter 74. At the hearing, Carreras asserted that the unsigned report, while arguably satisfying the requirements of a testifying expert, did not meet section 74 requirements as to, among other things, causation. Carreras further argued that the report was unsigned.
Our sister court has recently held that "the expert report required by § 74.351 is separate from the designation of experts contemplated under the discovery rules." Rugama v. Escobar, No. 13-02-118-CR, 2006 Tex. App. LEXIS 2697 *6 (Tex.App.-San Antonio April 5, 2006, no pet. h.) (construing Texas Rule of Civil Procedure 195.2 regarding deadlines for designating experts unless otherwise ordered by the trial court) (not designated for publicatn). Our sister court recognized that, in enacting the requirement as to a timely filed expert report, the Legislature decided discovery should not proceed until at least one expert examined the case and opined as to the applicable standard of care, that it was breached, and that there was a causal relationship between the failure to meet the standard of care and the injury, harm, or damages claimed. See id. (citing Murphy v. Russell, 167 S.W.3d 835, 838 (Tex. 2005). Further, until a claimant has served the expert report and curriculum vitae required by section 74.351(a), most forms of discovery in a health care liability case are stayed. TEX. CIV. PRAC. REM. CODE ANN. § 74.351(s), (u) (Vernon Supp. 2005). Following our sister court's reasoning, I conclude that the requirement of an expert report under section 74.351(a) is separate from the requirements for requests for disclosure contemplated under the discovery rules. In this context, it can reasonably be inferred that the proffered report in this case lacked a signature because it was served to comply with discovery rules. However, the document was never authenticated.
A party's production of a document in response to written discovery authenticates the document for use against that party in any pretrial proceeding or at trial unless — within ten days or a longer or shorter time ordered by the court, after the producing party has actual notice that the document will be used — the party objects to the authenticity of the document, or any part of it, stating the specific basis for objection. TEX. R. CIV. P. 193.7. An objection must be either on the record or in writing and must have a good faith factual and legal basis. Id.
I conclude that where, as here, claimants proffer an expert report to satisfy both requests for disclosure and section 74.351 requirements, rule 193.7 is implicated and its requirements must be satisfied.
In this case, on January 7, 2005, the claimants for the first time, identified the unsigned report as their expert report for section 74.351 purposes. The hearing on Carreras's motion to dismiss occurred three days later. At the hearing, Carreras unequivocally objected that the report was not signed. The objection was timely. It was sufficient to raise the question of authenticity. The claimants never established authenticity of the unsigned report. The claimants did not request an opportunity to establish authenticity of the unsigned report proffered as a section 74.351 expert report. Conversely, Carreras objected and preserved error.
The claimants subsequently served a report that was signed. However, at the hearing, they stated that the signed report was "sent as a courtesy . . . it was really to address the issues concerning [the hospital]" and not Carreras. The dispute centers on the unsigned report.
Even assuming, as the panel majority concluded on original submission, that section 74.351 does not require an expert report to bear the expert's signature, the inquiry does not and, respectfully, cannot end there. The expert report is a threshold requirement to pursuing a health care liability claim. See Murphy, 167 S.W.3d at 838 (addressing predecessor statute). Claimants cannot escape the Legislature's statutory scheme by filing, as here, a report that has not been authenticated by the expert. It follows that finding, as the panel majority did, an unauthenticated expert report is adequate under section 74.351 presents an extraordinary circumstance ripe for en banc review. See TEX. R. APP. P. 41.2(c). I turn to that discussion.
The extraordinary circumstance presented in this case is that the holding allows claimants to file an unsigned report served for discovery purposes under rule 194.2 to satisfy the requirements of an expert report under section 74.351(a) without requiring compliance with rule 193.7. See TEX. R. CIV. P. 194.2(f), 193.7; TEX. CIV. PRAC. REM. CODE ANN. § 74.351(a) (Vernon Supp. 2005).
II. En Banc Consideration
Respectfully, I disagree with the panel majority's decision to deny consideration en banc. I am mindful that en banc review at intermediate appellate courts was instituted to maintain uniformity of a court's decisions as a single, unitary body, even though the court may sit in panels. See O'Connor v. First Court of Appeals, 837 S.W.2d 94, 96 (Tex. 1992) (orig. proceeding). Further, en banc consideration of a case is not favored and should not be ordered unless necessary to secure or maintain uniformity of the court's decisions or unless extraordinary circumstances require en banc consideration. See TEX. R. APP. P. 41.2(c); see also TEX. R. APP. P. 49.7. Thus, when there is no conflict among panel decisions, the existence of extraordinary circumstances is required before en banc consideration may be ordered. See TEX. R. APP. P. 41.2(c).
The majority panel opinion authorizes claimants to serve an expert report to satisfy both rule 194.2 and chapter 74 requirements, without requiring authentication under rule 193.7. See TEX. R. CIV. P. 193.7; 194.2(f); TEX. CIV. PRAC. REM. CODE ANN. 74.351(a). If, as the majority holds, a signature is not required under section 74.351, then a signature must be required under rule 193.7 when, as here, the claimants admit it was served in response to discovery. On original submission, the adequacy of the expert report was also challenged on grounds of the expert's qualifications and causation. Because these are not perfunctory procedural issues, respectfully, the majority panel opinion should be revisited. The panel majority rejects reconsideration.
III. Conclusion
The expert report is unsigned. On original submission, the panel majority concluded that the expert's signature was not required. Because the unsigned report was not authenticated, I conclude that we should reconsider the issues presented. Accordingly, I would grant the motion.