In this week’s orders list, the Texas Supreme Court decided four cases and chose three new ones for oral argument at a future date.

This week’s decisions

Lots today about medical-malpractice expert reports:

  • Eberhard Samlowski, M.D. v. Carol Wooten, No. 08-0667 (DDB). The key question was when a trial court can extend a party’s time to file an expert report in a medical-malpractice case. The Court divided 3 (opinion of the Court) to 2.5 (with one concurring in judgment only) to 1 (partial concurrence, partial dissent) to 3 (full dissent). For names and faces, see the case’s DocketDB page. In the end, the Court modified the court of appeals’ judgment to remand to the trial court for further proceedings in light of these opinions.

    Justice Medina, writing for two other Justices, would link the trial court’s discretion to the question whether a cure was feasible. With that in mind, he would permit a plaintiff whose claim was dismissed to file a motion to reconsider within 30 days, attaching a report that fixed the problem.

    Justice Guzman concurred but would instead have held that this record already established that denying an extension was an abuse of discretion. (( This portion of the opinion was joined by Justice Lehrmann but not by Justice Wainwright. ))

    The dissent, through Justice Johnson, agreed Justice Medina that whether the report could be cured was the right question to ask. But the dissent thought it would be procedurally improper to look at attempted cures filed after the dismissal. In the dissent’s view, the abuse of discretion must be measured based on the record assembled the moment of dismissal, not after.

    Because six Justices agreed that a remand was the most appropriate remedy, that is the modified judgment announced by the Court.

  • Debbie Stockton v. Howard A. Offenbach, M.D., No. 09-0446 (DDB). The Court, through an opinion by Justice Medina, held that the 120-day time limit on serving an expert report in a medical-malpractice case was not tolled when the doctor had lost his license, “probably left the state,” and his “whereabouts are unknown.” The insurer hired an attorney to appear on the doctor’s behalf and argue that the suit was time-barred. The court of appeals held that tolling was appropriate under this circumstance.

    The opinion explained that the statute did not permit tolling: “The application of the statute in this case, however, is unfortunate and, in part, a consequence of the Legislature‚Äôs decision to calculate the 120-day expert report deadline from the date of filing the suit rather than its service on the defendant. The statute appears to assume that serving a physician or other health care provider will be simple and straightforward. That, however, is not always the case, and when complications arise, as here, section 74.351(a) presents a very small window through which to serve both the lawsuit and the expert report.”

  • Turtle Healthcare Group, L.L.C. d/b/a Fred’s Pharmacy v. Yolanda Higuera Linan, et al., No. 09-0613 (per curiam) (DDB). In another case about the scope of the Texas medical-malpractice statute, the question was whether claims involving a failed ventilator — such as not charging the batteries and failure to send it for proper maintenance — were health-care liability claims. The Court held that they were covered and, accordingly, that the plaintiff had failed to file the required expert report.

  • The Burlington Northern and Santa Fe Railway Co. v. National Union Fire Insurance Co., No. 10-0064 (per curiam) (DDB). The Court held that the court of appeals had made a mistake in looking only at the pleadings and insurance policy to conclude that the insurer did not have a duty to pay the claim. Although that “eight corners” analysis is appropriate for questions about whether an insurer has a duty to pay to defend the lawsuit, it does not apply to question about the duty to indemnify by ultimately paying the claim, which normally turns on facts elicited during the litigation.

New petitions granted

Three petitions were chosen for oral argument:

  • The Finance Commission of Texas, et al. v. Valerie Norwood, et al., No. 10-0121 (DDB). The Texas Constitution used to forbid home-equity lending in Texas. After a recent amendment, it now imposes special restrictions on it. The Finance Commission issued rules interpreting those provisions. Last year, the Austin Court upheld some but not all of the Commission’s rules about home-equity lending. No one was entirely happy — the Commission, the Texas Bankers Association, and some of the individuals who challenged the rules all filed petitions for review. (( This challenge was litigated below with ACORN as the lead plaintiff, but today’s orders correct that: “unopposed motion for dismissal of ACORN as a party due to dissolution and correction of style of the case, granted” ))

  • Prairie View A&M University v. Diljit K. Chatha, No. 10-353 (DDB). There is a 180-day statute of limitations for a government employee’s complaint about discriminatory pay. The question presented is whether that runs from from the date of the paycheck embodying that decision or the (earlier) date on which the employee was told about the decision.

  • El Apple I, Ltd. v. Myriam Olivas, No. 10-0490 (DDB). In another employment-discrimination case, the question is about calculating attorneys fees. The petition argues that a detailed lodestar method should be applied, with breakdowns for each specific task. It also argues that appellate fees are not appropriate to be awarded prospectively but should instead be calculated on remand.

That last issue about appellate attorneys fees should be of particular interest to readers. Although the context is narrow, the Court’s guidance may spill over to other statutes under which Texas awards attorneys fees.