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When does a trial court?s discovery schedule extend the 120-day statutory deadline for medical expert reports?

By Don Cruse

Spectrum Healthcare Resources, Inc. and Michael Sims v. Janice McDaniel and Patrick McDaniel, No. 07-0787 (Tex. Mar. 12, 2010) (docket and briefs)

With today’s case, the answer is that “an agreed docket control order must explicitly reference section 74.351 threshold expert reports if the order is to constitute an agreement to extend that deadline.”

We hold that an agreement of the parties that is intended to extend the statutorily mandated 120-day expert report deadline must explicitly state that the agreement is for that purpose. An agreed docket control order that includes only a general discovery deadline for the production of expert reports is ineffective to extend the statute’s specific threshold expert report requirement.

Justice Green delivered the opinion of the Court. He was joined by Justice Hecht, Justice Wainwright, Justice Johnson, Justice Willett, and Justice Guzman.

The Chief Justice wrote a dissenting opinion that was joined by Justice O’Neill and Justice Medina.

The dissent would have concluded that the order in this case was specific enough. This order made general reference to Chapter 74 and said that, “to the extent these deadlines may be in conflict with deadlines set by rule or statute, the deadlines established by this Docket Control Order shall take precedence.” Under the majority’s test, this was inadequate.

The dissent concluded that, however much sense a bright-line rule makes going forward, it would be unfair when applied retroactively to parties that didn’t know the rule before agreeing to a discovery schedule:

I accept the value of the Court’s bright-line rule, but I disagree with applying it to McDaniel’s claim. I would apply today’s decision prospectively, making it inapplicable to McDaniel or others who complied with trial court orders that altered the statutory deadline in healthcare liability suits.

Full post as published by Supreme Court of Texas Blog on March 12, 2010 (boomark / email).