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Franke v. Palau

Court of Appeals of Texas, First District

May 23, 2019

DOUG FRANKE, Appellant
v.
LEONARDO PALAU, M.D. AND HOUSTON CENTER FOR INFECTIOUS DISEASES, P.A., Appellees

          On Appeal from the 270th District Court Harris County, Texas Trial Court Case No. 2014-58443

          Panel consists of Chief Justice Radack and Justices Goodman and Countiss.

          MEMORANDUM OPINION

          Gordon Goodman Justice.

         In this medical malpractice action, Doug Franke appeals from the trial court's orders striking his medical expert, denying his motion to designate a substitute expert, and granting no-evidence summary judgment. Finding no error, we affirm.

         BACKGROUND

         Franke sued Leonardo Palau, M.D. and the Houston Center for Infectious Diseases, P.A., for medical malpractice in October 2014. Both defendants filed general denials and asserted several affirmative defenses.

         Franke designated Jerrold S. Dreyer, M.D., as an expert on the standard of medical care and the breach of that standard in July 2015. Dreyer was the sole expert designated by Franke on these issues.

         Palau and the Center repeatedly tried to depose Dreyer. They first requested his deposition in July 2016 and made second and third requests before the end of that year. In 2017, they noticed Dreyer's deposition for January 9, June 14, July 6, and July 25. After failing to secure his deposition on any of these dates, they moved to exclude his testimony as a discovery sanction in August 2017. The trial court denied their motion and instead ordered that:

The deposition of Plaintiff's retained/designated expert, Jerrold Dreyer, M.D., shall be accomplished on or before Friday, September 8, 2017. Failure to comply with this Order may result in the exclusion of Jerrold Dreyer, M.D. from offering testimony at the time of trial.

         The parties approved the order as to form.

         The parties agree that Hurricane Harvey derailed the September deposition even though it had been scheduled to take place in California, where Dreyer resides. When Franke's counsel had not produced Dreyer by early October 2017, Palau and the Center moved to compel his deposition. But in lieu of a hearing, the parties agreed to the entry of an order providing that:

[The deposition of] Plaintiff's retained/designated expert, Jerrold Dreyer, M.D., shall be accomplished on November 30, 2017. Failure to comply with this Order will result in the exclusion of Jerrold Dreyer, M.D. from offering testimony at the time of trial.

         The parties approved this order as to form and substance, and Palau and the Center noticed Dreyer's deposition for November 30.

         Once again, however, Dreyer's deposition did not go forward. Just after 9:00 p.m. on November 28, Franke's counsel requested that the November 30 deposition be rescheduled as "a personal favor." Thus, in December 2017, the parties agreed to the entry of an amended order providing that:

[The deposition of] Plaintiff's retained/designated expert, Jerrod Dreyer, M.D., shall be accomplished on Monday, January 15, 2018, at 10:00 a.m., in Houston, Texas. Failure to comply with this Order will result in the exclusion of Jerrold Dreyer, M.D. from offering testimony at the time of trial.

         The parties approved this order as to form and substance, and Palau and the Center noticed Dreyer's deposition for January 15.

         The January 15, 2018 deposition did not go forward. After 4:00 p.m. on Sunday, January 14, Franke's counsel e-mailed opposing counsel that Dreyer would "not be able to travel to Houston for tomorrow's deposition." Palau and the Center then moved to exclude Dreyer's testimony as a discovery sanction and in accord with the terms of the ...


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