Poindexter v. Bonsukan

• Decision Date: 27 April 2001
• Docket Number: No. 999CV315.,999CV315.
• Citation: 145 F.Supp.2d 800
• Parties: Goldie POINDEXTER and Cary Poindexter, Individually and as Heirs at Law of the estate of Shahayla Poindexter, Deceased, Plaintiffs v. Eulogio BONSUKAN, M.D., And the United States, Defendants
• Court: U.S. District Court — Eastern District of Texas

145 F.Supp.2d 800

Goldie POINDEXTER and Cary Poindexter, Individually and as Heirs at Law of the estate of Shahayla Poindexter, Deceased, Plaintiffs v. Eulogio BONSUKAN, M.D., And the United States, Defendants

No. 999CV315.

United States District Court, E.D. Texas, Lufkin Division.

April 27, 2001.

Claude Edward Welch, Lufkin, Glenn Murphy Douglas, Crowley & Douglas, Houston, for Plaintiff.

C. Victor Haley, Nacogdoches, TX, for Defendant Bonsukan.

Andrea Hedrick Parker, Beaumont, TX, for Defendant United States.

MEMORANDUM

COBB, District Judge.

This medical malpractice controversy arises out of the death of an eighteen-day old infant, Shahayla Poindexter. Plaintiffs allege that Defendants, the doctors who treated Shahayla, were negligent in failing to properly treat her. Defendant Dr. Bonsukan moves to strike the report of Plaintiffs' expert, Dr. Stanley Spinner, because, allegedly, his report does not satisfy the requirements of section 13.01(r)(6) of the Texas Medical Liability and Insurance Improvement Act (Act). Defendant United States of America (USA) moves to strike the report of Dr. Gary Noel because, allegedly, his report was not presented within the timeframe set out in section 13.01(d) of the Act. Plaintiffs contest Defendants' allegations and, alternatively, request a 30-day grace period within which to comply with the Act's reporting requirements. The Court concludes that the expert reporting provisions at issue in this case derogate the discretion vested in federal courts by the Federal Rules of Civil Procedure. Those state provisions, therefore, are not applicable in federal court. Moreover, even if those provisions are applicable in federal court, the Court concludes that Dr. Skinner's report represents a good faith effort to comply with the expert report provisions, and Plaintiff's failure to timely file Dr. Noel's report was not intentional or the result of conscious indifference but was the result of accident or mistake. Because Dr. Noel's report is on file, there is no need to grant Plaintiffs' requested grace period. Defendants motions are DENIED.

I. Introduction

Before the birth of Shahayla Poindexter, Goldie Poindexter, her mother, received an intra-partum antibiotic treatment for Group B Streptococcus (Group B Strep) bacterial infection from physicians with East Texas Community Health Services, Inc. She was treated by Dr. Ghazala Khan and Dr. Farahaba Kakhdir. The treatment was completed without complication, but the risk that the child would contract Group B Strep was higher than it would have been had her mother not needed the treatment. Shahayla was born on June 25, 1998. Seventeen days later the Poindexters took Shahayla to the emergency room at Nacogdoches Memorial Hospital because she had a temperature of 102 degrees and had been crying for several hours. After examining Shahayla, Defendant Dr. Eulogio Bonsukan sent the Poindexters home. Shahayla died thirteen hours later.

The Poindexters allege that Shahayla's death was caused by Dr. Bonsukan's failure to perform various medical procedures on the child when he knew she (1) had a high fever, (2) had been crying for a sustained period of time, and (3) was predisposed to contracting Group B Strep. Plaintiffs also allege that Dr. Khan and Dr. Kakhdir were negligent in causing Shahayla's death. Because federal law considers Dr. Kahn and Dr. Kakhdir to be federal employees, see 42 U.S.C. § 223(g)-(n), Defendant USA was substituted as the proper defendant. See 28 U.S.C. § 1346(b), 2401(b), 2671-2680 (Federal Tort Claims Act). Under Texas law, Plaintiffs are required to submit an expert report and curriculum vitae from a qualified expert within 180 days of their suit. Plaintiffs seek to meet this requirement with the expert opinion of Dr. Spinner and Dr. Noel. Defendant challenges the timeliness of Dr. Noel's report and the adequacy of Dr. Spinner's report under the Act.

II. Texas Medical Liability and Insurance Improvement Act

The Texas legislature enacted the Act to curtail frivolous claims against physicians and other health care providers. See Horsley-Layman v. S.M. Angeles, M.D., 968 S.W.2d 533, 537 (Tex.App. — Texarkana 1998, no pet.). An important area that the legislature decided to regulate was the plaintiff's production of expert reports. There are two provisions in section 13.01 relating to expert reports. The first provision is not relevant in this case. See § 13.01(a)(3). The second provision requires that plaintiff file one or more expert reports for each defendant physician no later than 180 days after the date on which a health care liability action is filed. See Tex.Rev.Civ. Stat. Ann. art. 4590i, § 13.01(d)(1). The report must meet the content requirements in the Act. See § 13.01(r)(6). If a plaintiff fails to comply with these provisions and the defendant files a motion seeking sanctions, a trial court has no discretion and must enter an order dismissing the case with prejudice. See § 13.01(e)(3).

III. Applicability of section 13.01 in Federal Court

As a general rule, discovery is a procedural matter governed in federal court by the Federal Rules of Civil Procedure and not by state discovery practice. See 8 Wright and Miller, Federal Practice and Procedure § 2005 (Supp.2000) (noting that except for matters of privilege and Rule 69 discovery in aid of execution, it is "wholly settled that discovery in a federal court is governed only by these rules and that state discovery practices are irrelevant"); Broussard v. Lemons, 186 F.R.D. 396, 397 (W.D.La.1999) ("Clearly, federal law governs this discovery dispute as federal courts sitting in diversity apply the substantive law of the state providing the law of decision while following federal procedural law."). Before the Court proceeds to determine whether Plaintiffs have failed to comply with the expert disclosure provisions of the Act, therefore, it must first determine whether the provisions apply in federal court. If the Act's expert disclosure requirements do not apply in federal court, then Defendants' motions to strike and to dismiss must be denied.

Federal courts apply state substantive law "when adjudicating diversity-jurisdiction claims, but in doing so apply federal procedural law to the proceedings." Cates v. Sears, Roebuck & Co., 928 F.2d 679, 687 (5th Cir.1991); see also Hanna v. Plumer, 380 U.S. 460, 465-67, 85 S.Ct. 1136, 1141, 14 L.Ed.2d 8 (1965); Erie R.R. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938). The distinction between procedural and substantive law, however, is "sometimes a challenging endeavor." See Gasperini v. Center for Humanities, Inc., 518 U.S. 415, 427, 116 S.Ct. 2211, 2219, 135 L.Ed.2d 659 (1996). "Where the state rule reflects a substantive state policy not in conflict with the plain meaning of the federal rule, then the state rule is the rule of decision and should be applied under the terms of the Erie decision." Exxon, 42 F.3d at 949 (emphasis added); Hanna, 380 U.S. at 471, 85 S.Ct. 1136 (distinguishing between the analysis required by Erie, 304 U.S. at 68, 58 S.Ct. 817, and that required by the Rules Enabling Act). The Supreme Court, however, has made clear that Erie and its progeny do not require the federal court to depart from the Federal Rules in cases where those rules conflict with state law, even if state law is in some sense "substantive." See Boone v. Knight, 131 F.R.D. 609, 611 (S.D.Ga.1990). In other words, the substantive nature of a state rule is irrelevant if the federal rule "occupies [the state rule's] field of operation." See Burlington N. R.R. Co. v. Woods, 480 U.S. 1, 4-5, 7, 107 S.Ct. 967, 969-70, 970-71, 94 L.Ed.2d 1 (1987); Hanna, 380 U.S. at 471, 85 S.Ct. at 1143-44 (requiring "direct collision" between state and federal law); Walker v. Armco Steel Corp., 446 U.S. 740, 749-50, 100 S.Ct. 1978, 1984-85, 64 L.Ed.2d 659 (1980). "If the [federal] rule speaks to the point in dispute and is valid, it is controlling, and no regard need be paid to contrary state provisions." Exxon Corp. v. Burglin, 42 F.3d 948, 950 (5th Cir.1995). See Burlington, 480 U.S. at 5-6, 107 S.Ct. 967; Stewart Org., Inc. v. Ricoh, 487 U.S. 22, 27, 108 S.Ct. 2239, 2242, 101 L.Ed.2d 22 (1988).

In determining whether a conflict exists, the Supreme Court has explained that the "direct collision" language in Hanna "expresses the requirement that the federal statute be sufficiently broad to cover the point in dispute." Stewart Org., 487 U.S at 27 n. 4, 108 S.Ct. 2239. Federal courts are to "interpret[ ] the Federal Rules with sensitivity to important state interests and regulatory policies." Gasperini, 518 U.S. at 427 n. 7, 116 S.Ct. 2211. Although federal courts are not to give the Rules "[a] broad reading that would create significant disuniformity between state and federal courts," Stewart Org., 487 U.S. at 37-38, 108 S.Ct. 2239 (Scalia, J. dissenting), the federal rules are not "to be narrowly construed in order to avoid a `direct collision' with state law. The ... Rules should be given their plain meaning." Walker, 446 U.S. at 750 n. 9, 100 S.Ct. 1978.

Expert disclosure rules and sanctions for failure to comply with those rules are governed in federal court by the Federal Rules of Civil Procedure. Of particular relevance here are Rules 26(a)(2) and 37(c)(1).

Rule 26(a)(2) provides that "a party shall disclose to other parties the identity of any person who may be used at trial to present evidence under Rules 702, 703, or 705 of the Federal Rules of Evidence." Fed. R.Civ.P. 26(a)(2)(A). The Rule is geared toward disclosure; it does not require a party to engage an expert. "This disclosure shall, with respect to a witness who is retained or specially employed to provide expert testimony in the case, ... be accompanied by a written report prepared and signed by the witness." Fed.R.Civ.P. 26(a)(2)(B). Rule 26 then elaborates on the required content of the expert report:

An expert report shall contain a complete...