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           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                     United States Court of Appeals

                                      No. 17-50152
                                                                              Fifth Circuit

                                                                            FILED
                                                                      March 21, 2018

GARY CHARLES SMITH,                                                    Lyle W. Cayce
                                                                            Clerk
              Plaintiff - Appellant

v.

ANDREW J. PALAFOX, Medical Doctor,

              Defendant - Appellee


                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 3:15-CV-201


Before STEWART, Chief Judge, and CLEMENT and SOUTHWICK, Circuit
Judges.
PER CURIAM:*
       Plaintiff-Appellant Gary Smith appeals the district court’s summary
judgment in favor of Defendant-Appellee Dr. Andrew Palafox. Because we hold
that Smith failed to provide competent summary judgment evidence in support
of his claim of fraudulent concealment, we affirm.




       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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                                   No. 17-50152
                      I.      Facts & Procedural History
      Smith was a federal prisoner when he suffered a broken arm at La Tuna
Federal Correctional Institution in Anthony, Texas. Dr. Palafox performed
surgery on Smith’s arm on three separate occasions: January 17th, May 7th,
and November 19th of 2013. Smith was hospitalized for seventy-three days
after the third operation and claims that he contracted two life-threatening
infections as a result.
       Smith filed a complaint in federal district court against Dr. Palafox on
June 30, 2015, raising various medical malpractice claims. Dr. Palafox filed
an answer to Smith’s complaint wherein he asserted that Smith’s suit was
barred by the Texas Medical Liability Act’s two-year statute of limitations.
TEX. CIV. PRAC. & REM. CODE §§ 74.001(a)(13); 74.251(a). In October 2015, Dr.
Palafox filed a motion for summary judgment on limitations wherein he again
alleged that Smith’s suit was time-barred. In November 2015, Smith filed a
response and an amended response to Dr. Palafox’s motion for summary
judgment alleging entitlement to relief under the fraudulent concealment
doctrine, an affirmative defense that tolls the statute of limitations in medical
malpractice cases. Smith attached his own sworn declaration to the amended
response. On December 9, 2015, Smith filed an amended complaint. On June
3, 2016, Smith notified Dr. Palafox of his intended Designation of Experts
wherein he attached the unsworn report of Dr. Raymond Vance.
      On June 6, 2016, Dr. Palafox filed an amended motion for summary
judgment, again asserting that Smith’s claims were time-barred and that the
statute of limitations ran two years after the second operation took place on




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                                       No. 17-50152
May 7, 2013. 1 Dr. Palafox attached Smith’s notice of Designation of Experts
and the accompanying unsworn report of Dr. Vance to his amended motion for
summary judgment. 2           Dr. Vance’s unsworn report provided that, after
reviewing Smith’s medical records and x-rays, he concluded that Dr. Palafox
had “failed to exercise reasonable care in the initial two surgeries” in that he
did not restore the bones to an anatomic position, used inadequate fixation
techniques, and that the failures resulted from “[i]nadequate plate and screw
selection.” Dr. Vance opined, however, that Dr. Palafox properly performed
the third surgery.
       In opposition to Dr. Palafox’s amended motion for summary judgment,
Smith again alleged entitlement to the Texas fraudulent concealment doctrine.
Smith contended that Dr. Palafox misrepresented the number of screws that
would be used to attach metal plates to Smith’s broken bones. Smith asserted
that Dr. Palafox told him he would use eight screws, but he instead used six
screws and never informed him otherwise. He claimed that the fraudulent
concealment lasted until June 8, 2016, when Dr. Vance reviewed his x-rays
and notified him that only six screws were used. Smith maintained that the
alleged fraudulent concealment operated to toll the statute of limitations and
thus his complaint was timely. He attached his own sworn declaration to his
opposition to summary judgment. In his sworn declaration, Smith stated that
Dr. Palafox told him he would use eight screws to attach the metal plates and
that he assured him numerous times that the first two surgeries were
successful until admitting before the third surgery that they were not.


       1 The parties agreed to dismiss all claims regarding the third operation and to proceed
only on the claims involving the first two operations.
       2 It is relevant to note that Dr. Vance’s report was only attached by Dr. Palafox as an

exhibit to his June 2016 amended motion for summary judgment. Smith never entered Dr.
Vance’s unsworn report into evidence during the summary judgment proceedings.
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                                No. 17-50152
      Smith then filed a motion for leave to file a supplemental unsworn
expert report by Dr. Vance. Dr. Vance’s supplemental unsworn expert report
provided only that he would be critical of Dr. Palafox’s performance of the
surgeries regardless of how many screws were used. The magistrate judge
granted Smith’s motion and allowed the supplemental report to be filed into
the record but nevertheless concluded that the report was not a sworn
declaration and therefore not competent summary judgment evidence.
      The magistrate judge issued a report and recommendation that Dr.
Palafox’s motion for summary judgment be granted on grounds that Smith’s
claims were barred by the applicable statute of limitations. In his report, the
magistrate judge explained that Smith had failed to adequately plead because
he did not “assert, or allege facts in his amended complaint to support, a
defense of fraudulent concealment in avoidance of limitations even after
Defendant had raised the limitations defense in his original summary
judgment motion.” The magistrate judge continued that Smith had produced
no competent summary judgment evidence in support of his claims that Dr.
Palafox had committed malpractice or negligence. The unsworn report of Dr.
Vance that Dr. Palafox had attached as an exhibit to his amended motion for
summary judgment did not qualify as competent summary judgment evidence
because it did not comply with the applicable Federal Rules of Civil Procedure.
The magistrate judge further opined that “[e]ven if the expert report were in a
form constituting competent summary judgment evidence, [Smith] has
provided no competent summary judgment evidence that [Dr. Palafox] actually
knew that he had committed medical malpractice or been medically negligent
in performing either [Smith’s] January or May 2013 surgeries.”             The
magistrate judge ultimately concluded that:


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                                  No. 17-50152
      [Smith] has failed to carry his burden to establish fraudulent
      concealment tolling the limitations period on his medical
      malpractice/negligence claims or to raise a genuine question of
      material fact regarding such defense in avoidance of limitations…
      [and] viewing the record in this light, no rational trier of fact could
      find that [Smith’s] limitations period was so tolled to render his
      claims timely.

      Smith filed objections to the magistrate judge’s report wherein he
attached a sworn declaration by Dr. Vance. Dr. Vance’s sworn declaration
provided essentially the same opinion and information as his unsworn
declaration—that Dr. Palafox did not adhere to the standard of care in the first
two surgeries but did adhere in the third surgery. Smith also attached his
personal sworn declaration which provided more of his own statements in
support of his fraudulent concealment claim.
      The district court adopted in part the magistrate judge’s report and
recommendation and granted Dr. Palafox’s motion for summary judgment. In
its reasons for judgment, the district court noted that it would not address the
issue of whether Smith had properly pled fraudulent concealment because it
could resolve the case on the narrower grounds that Smith had failed to provide
competent summary judgment evidence in support of each element of his
fraudulent concealment claim.       The district court noted that Dr. Vance’s
unsworn report and unsworn supplemental report did not comply with Federal
Rule of Civil Procedure 56’s requirement that, for summary judgment
evidence, all affidavits must be sworn. Additionally, the sworn report of Dr.
Vance that Smith attempted to introduce for the first time in his objections to
the magistrate judge’s report did not constitute competent summary judgment
evidence because it was filed without leave and in violation of the local rules of
the Western District of Texas. See W.D. Tex. Civ. R. 7(f)(1). Citing Cupit v.

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                                 No. 17-50152
Whitley, 28 F.3d 532, 535 n.5 (5th Cir. 1994), the district court also noted its
own discretion in refusing to consider evidence after a magistrate judge issues
a report and recommendation. The district court observed that the statement
in Smith’s declaration that Dr. Palafox said he would use eight screws instead
of six could be admitted as a party-opponent statement but could not be used
to prove that Dr. Palafox knew he had committed medical malpractice or that
he intended to conceal that he did. This is because Smith’s statement that Dr.
Vance told him that Dr. Palafox only used six screws and not eight was
inadmissible hearsay in that it was an out-of-court statement being used for
the truth of the matter asserted—thus, the hearsay statement could not be
used to impeach or contradict the party-opponent statement. To the extent
that Dr. Vance stated as much in his own unsworn and sworn reports, those
reports were not considered competent summary judgment evidence for
reasons previously explained. The district court further concluded that Dr.
Palafox’s statements that the first two surgeries were successful did not show
that he knew he had committed malpractice or that he intended to conceal that
he did because there was no evidence that Dr. Palafox knew the statements
were false when he made them. See Shah v. Moss, 67 S.W.3d 836, 845–46 (Tex.
2001); Earle v. Ratliff, 998 S.W.2d 882, 889 (Tex. 1999). Finally, the district
court noted that Smith’s “reliance” argument failed because the Texas
Supreme Court does not require a plaintiff to rely on a defendant’s deception
to prove fraudulent concealment. The district court concluded that Smith’s
objections to the magistrate judge’s report and recommendation did “not save
his claims from summary judgment because [Smith] failed to establish the
elements of fraudulent concealment.” Smith filed this appeal.




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                                  No. 17-50152
                          II.    Standard of Review
        This court reviews the district court’s grant of summary judgment de
novo.    Davis v. Fernandez, 798 F.3d 290, 292 (5th Cir. 2015). “To decide
whether summary judgment is proper here, we must, as a threshold matter,
determine what evidence in the record is to be considered.” Id. “[A]s a general
matter, the competent evidence of the summary judgment nonmovant is to be
accepted and credited.” Id. But if “the testimony that [the nonmovant] initially
offer[s] in opposition to summary judgment [is] neither sworn nor declared
under penalty of perjury to be true and correct, it [is] not competent evidence.”
Id.; see also Lee v. Offshore Logistical & Transp., L.L.C., 859 F.3d 353, 355 (5th
Cir. 2017) (“To avoid the use of materials that lack authenticity or violate other
evidentiary rules, the new rule allows a party to object ‘that the material cited
to support or dispute a fact cannot be presented in a form that would be
admissible [in] evidence.’” (quoting Fed. R. Civ. P. 56(c)(2))).
                                III.   Discussion
        Smith first argues that Dr. Vance’s unsworn expert reports were
admissible evidence and should have been considered in support of his
opposition to summary judgment. Second, Smith argues that “[i]f Dr. Vance’s
reports are considered together with [his own] declarations, they are sufficient
to establish malpractice, knowledge by defendant of malpractice, and
concealment.” Smith also argues that the district court abused its discretion
in declining to consider his submissions after the magistrate judge issued his
report and recommendation. Finally, Smith argues that the Federal Rules of
Civil Procedure do not require that he raise an affirmative defense of
fraudulent concealment in either his complaint or amended complaint. We
address each of Smith’s arguments in turn.


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                                  No. 17-50152
      Negligence and malpractice claims are governed by the Texas Medical
Liability Act’s two-year statute of limitations. TEX. CIV. PRAC. & REM. CODE
§§ 74.001(a)(13); 74.251(a). “[T]he limitations period for medical negligence
claims [is measured] from one of three dates: (1) the occurrence of the breach
or tort, (2) the last date of the relevant course of treatment, or (3) the last date
of the relevant hospitalization.” Shah, 67 S.W.3d at 841. A plaintiff is not
entitled to “choose the most favorable date” of the three categories.            Id.
“Rather, if the date the alleged tort occurred is ascertainable, limitations must
begin on that date.” Id. Moreover, if the date is ascertainable, there is no
further inquiry into the second and third categories. Id.
      In medical-negligence cases, fraudulent concealment “estops a health-
care provider from relying on limitations to bar a plaintiff’s claim.” Id. The
plaintiff is required to prove that “the health-care provider actually knew a
wrong occurred, had a fixed purpose to conceal the wrong, and did conceal the
wrong from the patient.” Id. If successfully proven, “[f]raudulent concealment
tolls limitations until the plaintiff discovers the fraud or could have discovered
the fraud with reasonable diligence.” Id. “A plaintiff who asserts fraudulent
concealment to avoid summary judgment on limitations grounds must raise a
fact issue that would support this assertion.” Id.
      Smith’s first argument that the district court should have credited
Dr. Vance’s unsworn expert reports as competent summary judgment evidence
is unsupported by the Federal Rules of Civil Procedure. Smith asserts that
expert reports need not be sworn under Federal Rule of Civil Procedure
26(a)(2)(B). Rule 26, however, pertains to discovery. Fed. R. Civ. P. 26. While
it is true that Rule 26 does not provide an express requirement that a report
be sworn, it does not alter Rule 56’s requirement that evidence proffered in
opposition to summary judgment must be sworn or declared under penalty of
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                                       No. 17-50152
perjury, or the proponent must otherwise show that a statement could be
reduced to admissible evidence at trial. 3 See Davis, 798 F.3d at 292 (noting
that “because the testimony that [the nonmovant] initially offered in opposition
to summary judgment was neither sworn nor declared under penalty of perjury
to be true and correct, it was not competent evidence”); see also Lee, 859 F.3d
at 355 (“To avoid the use of materials that lack authenticity or violate other
evidentiary rules, the new rule allows a party to object ‘that the material cited
to support or dispute a fact cannot be presented in a form that would be
admissible as evidence.’” (quoting Fed. R. Civ. P. 56(c)(2))). Dr. Vance’s expert
reports were not sworn or made under penalty of perjury and Smith has not
explained how the reports could be reduced to admissible evidence at trial. 4
Consequently, the district court did not err in excluding Dr. Vance’s unsworn
reports on grounds that they did not constitute competent summary judgment
evidence. 5 See Davis, 798 F.3d at 292.

         Smith’s contention that the district court should have considered Dr.
Vance’s sworn declaration to be competent summary judgment evidence also
fails.       The district court properly declined to consider the declaration for


         3Federal Rule of Civil Procedure 56(c)(2) provides that “[a] party may object that the
material cited to support or dispute a fact cannot be presented in a form that would be
admissible in evidence.” See also Fed. R. Civ. P. 56(c) advisory committee’s note to 2010
amendment (“The burden is on the proponent to show that the material is admissible as
presented or to explain the admissible form that is anticipated.”).
        4 Further, the reports did not comply with Rule 26 because they did not contain the

medical records, reports and x-rays that Dr. Vance stated he relied upon in forming his expert
opinions. See Fed. R. Civ. P. 26(a)(2)(B)(ii) (noting that expert reports should include “the
facts or data considered by the witness” in forming the expert opinion).
        5 Smith argues that because Dr. Palafox attached Dr. Vance’s unsworn expert report

to his motion for summary judgment, Smith is entitled to rely on it as competent summary
judgment evidence. This argument is unavailing, however, because regardless of how the
report appeared in the summary judgment proceedings, it failed to comply with Rule 56’s
requirement that it be sworn. Dr. Palafox’s attachment of the unsworn report as an exhibit
to his amended motion for summary judgment does not cure this defect.
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                                      No. 17-50152
several reasons, including Smith’s failure to file the evidence in accordance
with the local rules 6 and Smith’s numerous prior opportunities to submit the
declaration before the magistrate judge issued a report and recommendation.
Moreover, “the district court has discretion to determine whether, in light of
all pertinent circumstances, the new evidence should be accepted” after the
magistrate judge issues his report and recommendation. See id. (“In this
circuit, when objecting to a magistrate judge’s report and recommendation on
summary judgment, litigants may submit additional evidence for the district
court’s de novo review [but] the district court has discretion to determine
whether, in light of all pertinent circumstances, the new evidence should be
accepted.”); see also Cupit, 28 F.3d at 535 n.5 (“[A] party has a duty to put its
best foot forward before the Magistrate Judge-i.e., to spell out its arguments
squarely and distinctly-and, accordingly, that [] party’s entitlement to de novo
review before the district court upon filing objections to the Report and
Recommendation of the Magistrate Judge does not entitle it to raise issues at
that stage that were not adequately presented to the Magistrate Judge[.]”
(internal quotation marks omitted)). Thus, the district court was within its
discretion in rejecting Dr. Vance’s sworn declaration. See id.

       Finally, Smith’s argument that his own declarations, in conjunction with
Dr. Vance’s expert reports, were sufficient to establish malpractice and
concealment, is also meritless. As the magistrate judge and district court
noted, much of the content of Smith’s declarations constitutes inadmissible
hearsay. The Federal Rules of Evidence define hearsay as a statement that



       6 Local Rule 7 provides: “Generally. A party may file a reply in support of a motion.
Absent leave of court, no further submissions on the motion are allowed.” W.D. Tex. Civ. R.
7(f)(1).

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                                 No. 17-50152
“the declarant does not make while testifying at the current trial or hearing”
that “a party offers in evidence to prove the truth of the matter asserted in the
statement.” Fed. R. Evid. 801(c). Smith’s statement that he learned from Dr.
Vance that Dr. Palafox used six screws instead of eight screws and did not
follow standard medical techniques in performing the surgeries falls within the
scope of this hearsay prohibition. Id. Although Smith’s statement that Dr.
Palafox told him he would use eight screws to attach the metal plate is
admissible as a statement against a party opponent under Federal Rule of
Evidence 801(d)(2)(A), such a statement alone does not raise a material fact
issue as to whether Dr. Palafox misled Smith or committed malpractice, as
would be necessary to support his fraudulent-concealment allegation. See
Shah, 67 S.W.3d at 846 (“The affidavit, however, does not allege any facts
suggesting that [the doctor] knew, after the . . . surgery, that he was negligent
and that he concealed this known wrong to deceive [the plaintiff].”); Earle, 998
S.W.2d at 889. Additionally, as the district court noted, Smith’s assertion in
his declaration that Dr. Palafox told him that the first two surgeries were
successful does not show that he knew he had committed malpractice or that
he intended to conceal that he did because no evidence was presented that he
knew the statements were false when he made them. See Shah, 67 S.W.3d at
846 (“[T]his evidence does not show, or even suggest, that [the doctor] made
these assurances to conceal a known wrong or to deceive [the plaintiff].”); see
also Earle, 998 S.W.2d at 889 (“[The plaintiff] offers no evidence, direct or
circumstantial, that [the doctor] actually knew these statements were in fact
false when he made them, let alone that [the doctor’s] purpose in making them
was deceit. . . . [the plaintiff] has offered no summary judgment evidence that
[the doctor] acted fraudulently by concealing a known wrong.”). Accordingly,


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                                      No. 17-50152
the district court did not err in declining to consider Smith’s declarations to
support his claims of fraudulent concealment. See Davis, 798 F.3d at 292. 7

                                   IV.    Conclusion
       Because Smith failed to provide competent summary judgment evidence
in support of each element of his fraudulent concealment claim, we affirm the
district court’s summary judgment in favor of Defendant-Appellee Dr. Andrew
Palafox.




       7 Although Smith makes arguments in his brief rebutting the magistrate judge’s
conclusion that he failed to properly plead his fraudulent concealment defense, the district
court properly rendered summary judgment on other grounds. Thus, it is unnecessary for
this court to address the issue.
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