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Finley v. Steenkamp5/18/2000
inant to file an expert report with each health care provider defendant within 180 days of filing the claim, describing how the health care provider breached the appropriate standard of care. Id. § 13.01(d), (r)(6). If a claimant fails to comply with this requirement, the court shall dismiss "the action of the claimant against that defendant with prejudice to the claim's refiling." Id. § 13.01(e)(3). However, if after a hearing the trial court finds that the claimant's failure to file the report as required by subsection (d) was "not intentional or the result of conscious indifference but was the result of an accident or mistake, the court shall grant a grace period of 30 days to permit the claimant to comply with that subsection." Id. § 13.01(g).
In this case, Finley's expert report was due on April 20, 1998. On October 14, 1998, almost one year after Finley filed suit, Steenkamp filed her motion to dismiss, alleging that Finley had not filed the required expert report. In support of her motion, Steenkamp attached a sworn affidavit from Marshall May, one of Steenkamp's attorneys. May stated that on June 22, 1998, he called Manuel Rios, Finley's counsel, and asked whether Finley had sent the expert report required by section 13.01. May said that Rios replied that he had not sent the report, but he would do so within a week. May stated that he never received the expert report.
Five days after Steenkamp filed her motion to dismiss, Finley filed his Designation of Expert Witnesses, which included an expert report compiled by Cherry Beckworth, Ph.D., R.N. Finley also filed a response to Steenkamp's motion and a request for an extension of time to file the expert report, alleging that his failure to comply with section 13.01(d) was not intentional or the result of conscious indifference, but was the result of an accident or mistake. Finley alleged that he failed to timely provide his expert report because (1) Appellees requested an abatement of this lawsuit for 45 days following service, (2) Finley's medical records were voluminous and were not provided to Finley until one month after the deadline to file the expert report, (3) the discovery process was delayed, (4) Finley's original expert witness was unable to provide an expert report, and (5) on May 31, 1998, the trial court had entered a scheduling order designating October 19, 1998 as Finley's deadline to designate his expert witnesses and provide his expert report.
On November 6, 1998, the trial court held a hearing on Steenkamp's motion to dismiss. At the hearing, May testified that during his telephone conversation with Rios, May informed Rios that the 180-day deadline for filing his expert report had already passed. May testified that Rios said he was aware that the deadline had passed and that he would try to get the report to May as soon as he could. When May reminded Rios that Steenkamp was entitled to file a motion to dismiss the claim against her, Rios said he did not believe the trial court would grant the motion.
On cross-examination, May denied that he and Rios had discussed whether the trial court's scheduling order took precedence over the statutory deadline for filing the expert report. May also said Rios did not mention that he needed to take Steenkamp's deposition before he could file an expert report.
At the conclusion of the hearing, Rios argued that the trial court's scheduling order set October 19, 1998 as the deadline for Finley to designate expert witnesses and to file his expert report. Rios stated that he and May had discussed the scheduling order and neither had a problem with the deadlines it imposed. Rios also contended that during his telephone conversation with May, he and May
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