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Harvey v. Kindred Healthcare Operating, Inc.

Court of Appeals of Texas, Fourteenth District

March 23, 2017

AIMEE HARVEY, INDIVIDUALLY AND AS NEXT FRIEND OF TALISAPHILLIPS, AMANDA HARVEY, HENRY WILSON III, AS NEXT FRIENDOF AALEISA PHILLIPS (A MINOR), AND GWENDOLYN WILSON, Appellants
v.
KINDRED HEALTHCARE OPERATING, INC., KINDRED HOSPITAL HOUSTON MEDICAL CENTER, AND KINDRED HOSPITALS LIMITEDPARTNERSHIP, Appellees

         On Appeal from the 190th District Court Harris County, Texas Trial Court Cause No. 2014-27575

          Panel consists of Justices Jamison, Wise, and Jewell.

          OPINION

          Martha Hill Jamison Justice

         This case presents a unique question-whether the stay of discovery under chapter 74 of the Texas Civil Practice and Remedies Code, involving healthcare liability claims, [1] supersedes a trial court's docket control order governing discovery and precludes the trial court from granting a motion for no-evidence summary judgment based on the claimant's failure to designate expert witnesses while the stay is in effect. We conclude that it does.

         Appellants Aimee Harvey, Amanda Harvey, Henry Wilson III, and Gwendolyn Wilson[2] challenge in one issue the trial court's grant of no-evidence summary judgment in favor of appellees Kindred Healthcare Operating, Inc., Kindred Hospital Houston Medical Center (Kindred Hospital), and Kindred Hospitals Limited Partnership (collectively, Kindred). Kindred moved for summary judgment on the basis that appellants did not designate expert witnesses by the deadline in the trial court's docket control order. Appellants contend that they were not required to designate expert witnesses at that time because a discovery stay was in effect under chapter 74.

         We first address whether the chapter 74 discovery stay applies when an adequate expert report has not been served and conclude, consistent with established authority, that it does. We then hold for the first time that the chapter 74 discovery stay supersedes a conflicting docket control order governing discovery and a trial court may not grant a motion for no-evidence summary judgment in a healthcare liability suit for failure to designate experts when the chapter 74 discovery stay is in effect. We reverse the trial court's summary judgment and remand the case for further proceedings consistent with this opinion.

         Background

         Talisa Phillips passed away while she was a patient at Kindred Hospital. Her heirs filed a medical malpractice suit, bringing negligence, gross negligence, survival, and wrongful death claims against Kindred.

         The trial court issued a docket control order establishing several deadlines for the case, including a March 30, 2015 date for appellants to designate their expert witnesses.[3] Appellants timely served two expert reports on Kindred.[4]Kindred objected to the reports and moved to dismiss Harvey's claims.[5] On April 6, the trial court held a hearing and sustained Kindred's objections, but permitted appellants thirty days, until May 7, to serve amended expert reports.[6] Appellants served an amended expert report on May 7, to which Kindred objected. The trial court has not ruled on the adequacy of the amended expert report.

         On April 30, Kindred filed its no-evidence motion for summary judgment. Kindred asserted that appellants were required to present expert testimony to prove their negligence and gross negligence claims and were barred from doing so because they failed to designate expert witnesses before the court-ordered March 30 deadline. Appellants responded to Kindred's motion for summary judgment and attached expert witness affidavits, among other evidence, in support of the response.[7] Kindred objected to the evidence in support of the response and moved to strike the expert affidavits. On May 27, the trial court sustained Kindred's objections, granted Kindred's motion for summary judgment, and "dismissed with prejudice" all of appellants' claims against Kindred.[8] Appellants filed a motion for new trial, which the trial court also denied.[9]

         Discussion

         In one issue, appellants challenge the trial court's rendition of no-evidence summary judgment on the grounds that discovery was stayed under chapter 74 when Kindred filed its motion for summary judgment and chapter 74 superseded the deadlines for designating expert witnesses in the trial court's docket control order.[10]

         We review a trial court's granting of summary judgment de novo. Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005). A motion for summary judgment must specifically state the grounds on which a judgment is sought; we cannot sustain summary judgment on a ground not presented. McConnell v. Southside Indep. Sch. Dist., 858 S.W.2d 337, 341 (Tex. 1993). In reviewing either a no-evidence or traditional summary judgment motion, we must take as true all evidence favorable to the non-movant and draw every reasonable inference and resolve all doubts in favor of the non-movant. Joe v. Two Thirty Nine Joint Venture, 145 S.W.3d 150, 156-57 (Tex. 2004); Mendoza v. Fiesta Mart, Inc., 276 S.W.3d 653, 655 (Tex. App.-Houston [14th Dist.] 2008, pet. denied).

         A no-evidence motion for summary judgment is essentially a motion for a pretrial directed verdict. Tex.R.Civ.P. 166a(i); Timpte Indus., Inc. v. Gish, 286 S.W.3d 306, 310 (Tex. 2009). After an adequate time for discovery, a party without the burden of proof may, without presenting evidence, seek summary judgment on the ground that there is no evidence to support one or more essential elements of the non-movant's claim or defense. Tex.R.Civ.P. 166a(i). The non-movant is required to present ...


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