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Access over workers' compensation decisions, including En Banc, Significant Panel Decisions, and writ-denied cases.

Case No. 2020-03-0716
Regular Panel Decision
Oct 30, 2023

Taylor, Ariel v. Coca Cola Bottling Company

In this interlocutory appeal, the employer asserts the trial court erred in concluding it failed to comply with a scheduling order and in excluding its vocational expert. The employee suffered a compensable back injury and settled an initial claim. When his initial compensation period expired, he filed for additional disability benefits. A scheduling order required expert witness disclosure by May 5, 2023, but did not specify expert report exchange. The employer identified its vocational expert, Ms. Michelle Weiss, via email in March 2023 and provided her report in May, after the May 5 disclosure deadline but before other deadlines. The trial court excluded Ms. Weiss's testimony. The Appeals Board reversed, finding the term 'disclose' in the scheduling order ambiguous, especially given later deadlines for discovery and identification of testifying witnesses. The Board concluded the employer's email identifying the expert complied with the May 5 deadline.

vocational expertexpert witness disclosurescheduling orderdiscovery disputeevidence exclusionappellate reviewabuse of discretionambiguous court orderremandworkers' compensation law
References
5
Case No. MISSING
Regular Panel Decision
Mar 12, 1999

Tesch v. Stroud

The case is about Cheryl Tesch appealing the dismissal of her medical malpractice action against David W. Stroud, M.D. Tesch failed to file a required expert report within 180 days, as mandated by the Medical Liability and Insurance Improvement Act. She argued that her counsel had a misunderstanding with appellee's counsel regarding an extension for filing the report, which she claimed was a "mistake" entitling her to a 30-day grace period under the Act. The trial court denied the grace period, finding that her counsel's actions did not constitute a "mistake" as contemplated by the statute, and dismissed the action with prejudice. The appellate court affirmed the trial court's decision, stating that the proposed scheduling order only addressed discovery deadlines and did not explicitly extend the expert report deadline, and that relying on an unsigned oral agreement was not justified.

Medical MalpracticeExpert Report RequirementDismissal With PrejudiceStatutory ComplianceAbuse of Discretion StandardGrace Period DenialAccident or Mistake DoctrineConscious IndifferenceOral Agreement ValidityScheduling Order Interpretation
References
17
Case No. MISSING
Regular Panel Decision

Awoniyi v. McWilliams

Oluwakemi Awoniyi and Quadri Ige (Awoniyi) filed a medical liability lawsuit against Dr. Robert McWilliams and The Woman's Hospital of Texas. The Texas Civil Practice and Remedies Code Chapter 74 requires claimants to serve an expert report within 120 days of filing the claim. Awoniyi failed to meet this deadline, serving her report two days late, leading the trial court to dismiss her claims and award attorney's fees to the hospital. On appeal, the court affirmed the dismissal of Awoniyi's claims, agreeing that the 3-day extension under Rule 21a did not apply to the expert report deadline. However, the appellate court reversed the award of attorney's fees to The Woman's Hospital of Texas, remanding for a recalculation because the fees included discovery costs incurred during a statutory stay period.

Medical MalpracticeHealth Care Liability ClaimExpert Report DeadlineDismissal with PrejudiceAttorney's Fees AwardDiscovery StayAppellate ReviewTexas Civil ProcedureRule 21aStatutory Interpretation
References
8
Case No. 03-06-00002-CV
Regular Panel Decision
Jul 20, 2007

Texas Court Reporters Certification Board and Michele Henricks, as Director of the Court Reporters Certification Board v. Esquire Deposition Services, L.L.C.

The Texas Court Reporters Certification Board (Board) initiated disciplinary proceedings against Esquire Deposition Services, L.L.C. (Esquire) for alleged violations concerning long-term volume discount arrangements for court reporting services. Esquire subsequently filed suit against the Board and its director, Michele Henricks, challenging the Board's statutory authority to regulate or prohibit such discounts and seeking declaratory and injunctive relief. The district court denied the Board's plea to the jurisdiction, prompting an appeal. The Court of Appeals held that the Board possesses exclusive jurisdiction over disciplinary claims and determined that Esquire's claims, which broadly questioned the Board's general authority over long-term discounts, were not ripe for judicial review as they depended on contingent facts and agency expertise. Consequently, the appellate court reversed the district court's order, dismissing Esquire's suit due to lack of jurisdiction.

Administrative LawJurisdictionPlea to the JurisdictionRipeness DoctrineExclusive JurisdictionStatutory InterpretationDeclaratory Judgment ActCourt Reporters Certification BoardCourt Reporting FirmsLong-term Volume Discounts
References
15
Case No. MISSING
Regular Panel Decision

Methodist Healthcare System of SA, Ltd, LLP D/B/A Northeast Methodist Hospital v. Thomas Dewey

This interlocutory appeal concerns whether Thomas Dewey's premises liability claim against Northeast Methodist Hospital required an expert report under the Texas Medical Liability Act. Dewey was injured when an electronic door at the hospital closed on him, fracturing his hip. The hospital moved to dismiss, contending Dewey's claim was a healthcare liability claim, but the trial court denied the motion. The appellate court affirmed, ruling that Dewey's claim was a 'garden-variety slip and fall case' and not a healthcare liability claim, as it was untethered from healthcare and did not necessitate medical expert testimony to establish the standard of care.

Premises LiabilityHealthcare Liability ClaimTexas Medical Liability ActExpert ReportMotion to DismissHospital SafetyStandard of CareInterlocutory AppealStatutory ConstructionTexas Civil Practice and Remedies Code
References
13
Case No. MISSING
Regular Panel Decision

Porcelli v. PMA Associates

Claimant sought workers' compensation death benefits for her husband's death from respiratory failure, alleging it was an occupational disease from toxic chemical exposure during his 30+ years as a printer. A WCLJ initially awarded benefits, but the Workers' Compensation Board later precluded the claimant's medical expert's report and testimony due to untimely filing under 12 NYCRR 300.2 (d) (12). This preclusion led the Board to find no established causal relationship, closing the case without benefits. The appellate court affirmed the Board's decision, finding adequate support for precluding the expert's evidence due to procedural non-compliance.

Workers' CompensationOccupational DiseaseDeath BenefitsMedical ExpertReport PreclusionTimely FilingProcedural RuleCausal RelationshipAppellate ReviewAdministrative Law
References
6
Case No. 84,322-D
Regular Panel Decision

Knie v. Piskun

Knie sued Piskun and others for medical malpractice after becoming paralyzed from back surgery. Her case was dismissed because she failed to file expert reports within the statutory 180-day deadline, as required by the Medical Liability and Insurance Improvement Act. Knie appealed, arguing her indigence and mistake of law should excuse the failure, and challenged the Act's constitutionality. The appellate court affirmed the trial court's dismissal, finding no abuse of discretion in denying an extension and upholding the constitutionality of the Act's expert report requirements. It also clarified that ignorance of the law generally does not excuse missing deadlines, but acknowledged that a mistake of law can be sufficient under certain standards.

Medical MalpracticeExpert Report RequirementDismissal With PrejudiceIndigent PlaintiffConstitutional LawDue ProcessEqual ProtectionOpen CourtsFree Speech RightsStatutory Interpretation
References
43
Case No. 13-09-00350-CV
Regular Panel Decision
Jan 21, 2010

Gulf Coast Medical Center, LLC, Tony Todd, Crna, Dan Madsen, M.D. and South Texas Medical Clinics, P.A. v. Jacqueline Temple and Marcus Banks, Individually and as Representatives of the Estate of Markasia Banks, a Minor Child

Appellants, Gulf Coast Medical Center, LLC, Tony Todd, CRNA, Dan Madsen, M.D., and South Texas Medical Clinics, P.A., appealed the trial court's denial of their motions to dismiss. The underlying suit was filed by appellees Jacqueline Temple and Marcus Banks, alleging negligence in the care and treatment of their deceased minor child, Markasia Banks. The core issue on appeal was the appellees' failure to timely serve an expert medical report as required by the Texas Civil Practice and Remedies Code. The Court of Appeals determined that the appellees' claims were 'health care liability claims' and that the expert report was indeed untimely, and that an abatement due to a failure to provide medical authorization did not extend the deadline. The court also affirmed the constitutionality of the expert report requirement. Consequently, the appellate court reversed the trial court's judgment, granted the appellants' motions to dismiss, and remanded the case for the award of attorney's fees and costs to the appellants.

Health Care Liability ClaimExpert Medical ReportMotion to DismissTimeliness of ReportAbatementMedical MalpracticeNegligenceDue ProcessTexas ConstitutionAppellate Review
References
32
Case No. 09-07-128 CV
Regular Panel Decision
Jun 21, 2007

Michael Leigh Smith v. Gerald Hamilton, Individually and as Personal Representative of the Estate of Sue Ann Hamilton, Matthew Garrison and Mark Garrison

Appellees Gerald Hamilton, Matthew Garrison, and Mark Garrison sued appellant Michael Leigh Smith for alleged medical malpractice. Smith filed a motion to dismiss challenging the timeliness of appellees' expert report. The trial court denied Smith's motion. On appeal, Smith argued that dismissal was mandatory because appellees failed to serve him with an expert report within the 120-day statutory deadline. The Court of Appeals rejected appellees' constitutional and waiver arguments, holding that the mandatory dismissal provisions of section 74.351 were constitutional and that Smith did not waive his right to seek dismissal. The court found that appellees failed to comply with the statutory deadline, requiring dismissal with prejudice. The trial court's order denying Smith's motion to dismiss was reversed, and judgment was rendered dismissing appellees' claims against Smith with prejudice.

Medical MalpracticeExpert ReportTimelinessDismissal with PrejudiceStatutory DeadlineDue Process ChallengeWaiver ArgumentHealth Care Liability ClaimTexas Court of AppealsAppellate Review
References
30
Case No. NO. 14-07-00071-CV
Regular Panel Decision
Jun 10, 2008

Oluwakemi Awoniyi & Quadri Ige v. Robert Barton McWilliams., M.D. and the Womans Hospital of Texas

This appeal concerns the dismissal of appellants' medical liability claims against appellees and an award of attorney's fees. The trial court dismissed the claims because the appellants failed to timely serve an expert report within 120 days as required by Texas Civil Practice and Remedies Code section 74.351(a), rejecting the argument that Texas Rule of Civil Procedure 21a extended the deadline. The appellate court affirmed the dismissal but reversed the attorney's fee award to The Woman's Hospital of Texas, remanding the issue for a new determination because the awarded fees were unsegregated and might include non-recoverable discovery-related costs, which are stayed until an expert report is served.

Medical MalpracticeExpert Witness ReportProcedural RulesAttorney's FeesAppeals CourtTexas LawStatutory InterpretationDiscovery StayRemandDismissal
References
18
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