Court of Appeals of Texas, Third District, Austin
THE DISTRICT COURT OF TRAVIS COUNTY, 261ST JUDICIAL DISTRICT
NO. D-1-GN-18-002286, HONORABLE JOHN K. DIETZ, JUDGE
Justices Goodwin, Baker, and Triana
MELISSA GOODWIN, JUSTICE
Zawislak, M.D., appeals from the trial court's order
granting Dr. John Moskow's Rule 91a motion to dismiss.
See generally Tex. R. Civ. P. 91a.1-.9 (permitting
dismissal of claims having "no basis in law or
fact"). Zawislak asserted a negligence claim against
Moskow related to Moskow's statements as an expert at an
administrative disciplinary proceeding initiated by the Texas
Medical Board (TMB) against Zawislak. Moskow timely moved to
dismiss the suit under Rule 91a on the ground that
Moskow's testimony was entitled to absolute immunity.
See id. R. 91a.3 (setting out timing requirements
for motion). The trial court granted the motion and awarded
Moskow attorney's fees and costs. See id. R.
91a.5 (stating requirements for dismissal), .7 (providing for
costs and attorney's fees). For the reasons stated below,
4, 2012, TMB filed a complaint against Zawislak for
violations of the Medical Practice Act. The disciplinary
proceedings were assigned to an Administrative Law Judge
(ALJ) for the State Office of Administrative Hearings (SOAH).
"TMB retained/contracted with their agent . . . Moskow .
. . to provide an expert medical investigative report, expert
report, and expert witness deposition," and Moskow
"is/was an expert review panelist for [TMB] pursuant to
Tex. Occ. Code § 154.056(e)." See Tex.
Occ. Code § 154.056(e) (providing that expert physician
panel shall be appointed by board to assist with complaints
and investigations relating to medical competency by acting
as expert physician reviewers). Zawislak moved to strike
Moskow's expert testimony on five grounds:
(1) Dr. Moskow should be stricken as an expert for lack of
qualifications by education, training or experience from
testifying in the SOAH proceeding[;]
(2) that Dr. Moskow is not qualified to testify because Dr.
Moskow was not actively practicing medicine or rendering
emergency medical treatment after, at best, 2008[;]
(3) that he did not render emergency medical treatment during
the time relevant to respondent[;]
(4) that Dr. Moskow indicated in his expert witness
deposition that he did not practice emergency medicine in his
offices - Emergency Services Partners - and that he did not
provide medical care to any patients outside of an emergency
room at the time of the TMB's Underlying Complaint in the
case and Substantive issues of Law and Fact before the SOAH
court against the Plaintiff; and
(5) that  Dr. Moskow spends all of his time handling
administrative matters for his business [Emergency Services
Partners], and not providing medical treatment.
(Internal marks, footnotes, and citations omitted.) The ALJ
overruled the motion. After a hearing on the merits, the ALJ
issued a proposal for decision on December 5, 2014, finding
that Zawislak violated the Medical Practice Act and TMB's
Rules. On February 13, 2015, TMB adopted the ALJ's
proposal, publicly reprimanded Zawislak, imposed continuing
medical education and testing requirements, and required
Zawislak's practice to be monitored by a physician for a
specified time period, among other requirements.
January 2, 2018, and as amended on January 19, Zawislak filed
suit against Moskow and others. Zawislak alleged that Moskow
committed negligence because:
Defendant violated statute(s) Title 3, Subtitle B, of the
Texas Occupations Code § 156.007(a) and (b); §
164.05(a)(1) and (3); § 164.052(a)(1) and (5); and
§ 164.053(a)(1), the Texas Administrative Code §
163.11 (a) and (b), as well as the American College of
Emergency Physicians to qualify as an expert witness in the
specialty of ...