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Marquez v. Providence Memorial Hospital Tenet Healthcare Corp.9/27/2001
from pursuing her claim. Id. at 453. In fact, the record reflects that Marquez was able to obtain an expert report but she filed it untimely. Therefore, her first argument is without merit.
Relying on Remington Arms Company, Inc. v. Caldwell, 850 S.W.2d 167 (Tex. 1993) and TransAmerican Natural Gas Corporation v. Powell, 811 S.W.2d 913 (Tex. 1991), Marquez also challenges the statutorily-required sanctions on due process grounds. She argues that there is no direct relationship between the offensive conduct and the sanctions imposed, and that the sanctions are excessive. Marquez acknowledges that Remington and TransAmerican are mandamus proceedings which involved review of sanctions for discovery abuse under Tex.R.Civ.P. 215, but she insists that the same test should be applied here.
In TransAmerican, the Supreme Court stated that the imposition of severe sanctions, such as dismissal of the cause of action, is limited not only by the two-part standard which sets the bounds of permissible sanctions under Rule 215, but also by constitutional due process. TransAmerican, 811 S.W.2d at 917-18. As a constitutional matter, discovery sanctions cannot be used to adjudicate the merits of a party's claims or defenses unless a party's hindrance of the discovery process justifies a presumption that its claims or defenses lack merit. TransAmerican, 811 S.W.2d at 918, citing Insurance Corp. of Ireland, Ltd. v. Compagnie des Bauxites de Guinee, 456 U.S. 694, 705-06, 102 S.Ct. 2099, 2105-06, 72 L.Ed.2d 492 (1982). Further, sanctions which preclude presentation of the merits of the case should not be assessed absent a party's flagrant bad faith or counsel's callous disregard for the responsibilities of discovery under the rules. TransAmerican, 811 S.W.2d at 918, citing National Hockey League v. Metropolitan Hockey Club, Inc., 427 U.S. 639, 642-43, 96 S.Ct. 2778, 2780-81, 49 L.Ed.2d 747 (1976).
Providence, Tenet, and Dr. Vigil insist that Remington and TransAmerican have no application here since we are not concerned with sanctions imposed under Rule 215 for discovery violations, and further, the sanctions imposed here are statutorily-mandated rather than discretionary. We agree that Remington and TransAmerican do not directly apply to these facts but sanctions imposed pursuant to Section 13.01(d) are not exempt from due process analysis. In that regard, TransAmerican can provide some guidance.
The sanctions were imposed against Marquez as a direct result of her failure to timely file an expert report. Section 13.01 provided her with three methods of obtaining an extension of time in which to establish compliance, but she attempted to take advantage of only one of them. Although given an opportunity, Marquez did not offer sufficient evidence that her failure to timely file the report was the result of accident or mistake, and thus, she did not negate the inference that her non-compliance was intentional or the result of conscious indifference. Dismissal under these circumstances is not contrary to the due process clause. Issue Four is overruled.
ATTORNEY'S FEES
In Issue Five, Marquez asserts that the trial court abused its discretion in awarding attorney's fees to Providence, Tenet, and Dr. Vigil because the supporting affidavits of counsel are conclusory in that they stated a total amount of hours expended in the case but did not provide any detailed description. If the plaintiff fails to comply with Section 13.01(d), the trial court is mandated by Section 13.01(e)(1) to award attorney's fees and costs to the successful defendant. Tex.Rev.Civ.Stat.Ann. art. 4590i, ยง 13.01(d), (e)(1); Tibbetts, 2 S.W.3d at 665. However, nothing in Section 13.01(e) modifies the g
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