 |
 |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
|
|
|
Finley v. Steenkamp5/18/2000
or the result of conscious indifference, we look to the knowledge and acts of the party seeking relief. See Nguyen, 3 S.W.3d at 151. An accident or mistake in this context is generally characterized by the claimant's inadequate knowledge of the facts or by an unexpected happening that precludes compliance. See id. at 152. Conscious indifference, on the other hand, means failing to take some action that would seem indicated to a person of reasonable sensibilities under similar circumstances. See id.
C. Analysis
In this case, Finley argues that his failure to timely provide the expert report was the result of numerous circumstances that led to his mistaken belief that the date specified in the trial court's scheduling order took precedence over the 180-day deadline set out in section 13.01 of article 4590i. The crux of Finley's argument is that he thought the 180-day deadline was replaced by the trial court's scheduling order.
Finley's argument fails for numerous reasons. First, as Steenkamp correctly points out, the trial court did not issue its scheduling order until May 31, 1998, more than a month after the deadline had passed for Finley to turn over his expert report. Finley attempts to salvage this argument on appeal by contending that during the original 180-day period following the filing of this suit, Appellees abated the case for 45 days. Finley alleges that this abatement extended the expert report filing deadline by 45 days, into June 1998. Finley then alleges that on May 31, 1998, after the case resumed, the trial court entered its scheduling order designating October 19, 1998 as its deadline for Finley to designate his expert witnesses and provide his expert report. However, Finley did not raise this abatement argument until he filed his motion for new trial. In his motion for an extension of time, Finley merely alleged that Steenkamp had requested an abatement, presumably to support his argument that Steenkamp had tried to delay the case. He never argued, however, that the case was abated or that the abatement extended the period for filing his expert report.
Second, the trial court's scheduling order does not "designate October 19, 1998 as Appellant's deadline to . . . provide expert reports," as Finley contends. Instead, the order specifies that Finley was required to provide the name of each of his expert witnesses expected to testify at trial, along with the expert's address and the topic of the witness's testimony, no later than October 19, 1998. Nothing in the court's scheduling order implied that it was altering the date on which the expert report required by article 4590i was due.
Additionally, Finley attempts to attach some significance to the fact that Steenkamp did not object to the trial court's scheduling order. Specifically, he argues that by not objecting to the order, Steenkamp agreed to October 19, 1998 as the date for Finley to file his expert report. For the reasons discussed in the previous paragraph, this argument is without merit.
Finley next contends that he was unable to timely file his expert report because Ann Layton, R.N., Finley's original expert witness, unexpectedly withdrew from the case and was unable to provide the required report. However, the record reflects that Finley did not ask Layton to prepare the expert report until May or June 1998, which is well after the 180-day deadline passed for filing the report. Thus, Layton's unexpected withdrawal from the case after the report was due could not have contributed to Finley's failure to timely comply with section 13.01.
Regarding Finley's argument that the slow discovery process and voluminous medical records are sufficient to excus
Page 1 2 3 4 5 6 7 8 Texas Personal Injury Attorneys
Personal Injury Lawyers
|
| |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|