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Hendryx v. Tucker

Court of Appeals of Texas, Thirteenth District, Corpus Christi-Edinburg

August 15, 2019


          On appeal from the 319th District Court of Nueces County, Texas.

          Before Chief Justice Contreras and Justices Benavides and Longoria



         After undergoing knee surgery, appellant William Hendryx filed a health care liability suit against appellees William Tucker, D.O.; William Aaron Tucker, D.O., P.A.; C.H. Wilkinson Physician Network d/b/a Christus Physician Group; Rufino Gonzalez, M.D.; and Rufino Gonzalez, M.D., P.A. The trial court granted no-evidence summary judgment dismissing the lawsuit. Hendryx argues on appeal that the trial court erred in: (1) failing to rule on his motion for leave to designate a testifying expert witness; and (2) granting summary judgment. We affirm.

         I. Background

         Hendryx was injured while working at a construction site on or around February 4, 2014. An MRI exam revealed extensive damage to his right knee, including a complete rupture of the quadriceps tendon, a small tear of the inner margin of the medial meniscus, and a small tear of the inner margin of the lateral meniscus. Tucker, with Gonzalez assisting, performed surgery the next day to repair the quadriceps tendon. Hendryx was discharged from the hospital on February 7, 2014.

         Despite medication and physical therapy, Hendryx still suffered from knee pain for over a year after the surgery. Another MRI was taken on March 18, 2015, which showed a tear of the posterior horn of the medial meniscus. In August 2015, Hendryx was seen by another physician, Charles Breckenridge, M.D., who diagnosed "a medial meniscus tear and posttraumatic changes along with significant adhesive changes" and recommended a total knee replacement. In December of 2015, Hendryx was seen by Aadam Quraishi, M.D., a radiologist, who opined that a total knee replacement was the only surgical option due to the amount of time that had passed since the initial injury.

         Hendryx filed the instant suit on April 19, 2016, alleging that Tucker and Gonzalez were negligent by failing to diagnose, repair, and timely or properly treat his meniscus injuries. He further alleged the doctors were negligent by "delaying in obtaining a[n] MRI that would have identified [his] meniscus injury." In compliance with the Texas Medical Liability Act (TMLA), Hendryx served appellees with an expert report by Frank L. Barnes, M.D., on September 2, 2016. See Tex. Civ. Prac. & Rem. Code Ann. § 74.351. Appellees did not object to Barnes's report.

         On August 17, 2017, the trial court signed an "Agreed Docket Control Order" (DCO) setting trial for May 22, 2018. The DCO set an April 20, 2018 deadline for the "completion of all discovery including supplementation." It also stated:

Deadlines for DESIGNATION OF EXPERTS, by providing the information set out in TRCP 194.2(f) and providing expert reports from all retained experts who are designated to testify at the time of trial are as follows: (Treating physicians not specifically retained for this litigation who are designated as expert witnesses are not obligated to reduce their opinions to written reports)
Plaintiff: 01/05/2018
Defendant: 02/12/2018

See Tex. R. Civ. P. 194.2(f).[1]

         On March 21, 2018, appellees filed a motion for no-evidence summary judgment asserting that there is no evidence they breached the applicable standard of care or that any breach proximately caused Hendryx injuries. Appellees observed in the motion that, as of the date of filing, Hendryx had "failed to designate any retained testifying experts" and had also "failed to produce any expert reports from any retained testifying experts."

         Subsequently, on April 12, 2018, Hendryx filed a "Motion for Leave to Permit Designation of Expert Witness" as well as a response to the summary judgment motion. In his motion for leave, Hendryx sought to designate Barnes as a testifying expert, despite the fact that the January 5, 2018 deadline under the DCO for the designation of testifying experts had already passed. Hendryx argued in the motion that the deadline "fell before [he] was able to complete the depositions of defendants."[2] The motion for leave further explained that Hendryx "believed that he had identified Dr. Barnes as his expert prior to the deadline" and "[a]s a result, the January 5, 2018 deadline was not met, a fact that was discovered only after [appellees] filed their motion for summary judgment." To his response to the summary judgment motion, Hendryx attached: (1) excerpts from Hendryx's deposition; (2) excerpts from Tucker's deposition; (3) Barnes's previously-filed expert report; and (4) an unsworn letter report by Quraishi.[3]

         Appellees filed a reply containing objections to all four pieces of evidence on various grounds. As to Hendryx's deposition testimony, appellees asserted Hendryx was not qualified to opine on a physician's standard of care or causation. As to the excerpts from Tucker's deposition, appellees argued that Hendryx did not specify which statements therein constituted evidence supporting his claims. As to Barnes's report and Quraishi's letter, appellees argued: (1) they are not in proper affidavit form; (2) they are inadmissible hearsay; and (3) the authors were not timely designated as experts. Appellees further contended that Barnes's report was inadmissible as evidence under § 74.351(k) of the TMLA. See Tex. Civ. Prac. & Rem. Code Ann. § 74.351(k).

         Without ruling on Hendryx's motion for leave, the trial court signed a judgment granting appellees' no-evidence summary judgment motion and dismissing the suit with ...

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