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

                                                                  FILED
                                                               August 23, 2016
                                No. 15-10358                    Lyle W. Cayce
                                                                     Clerk

ROBERT LEROY PASSMORE, III, Individually and as Next Friend of M. P.
and A. P., minors; KELLY PASSMORE,

            Plaintiffs - Appellants

v.

BAYLOR HEALTH CARE SYSTEM, doing business as Baylor Medical
Center of Plano; BAYLOR REGIONAL MEDICAL CENTER OF PLANO;
KIMBERLY MORGAN, APN,

            Defendants - Appellees




                Appeal from the United States District Court
                     for the Northern District of Texas


Before DAVIS, BARKSDALE, and DENNIS, Circuit Judges.
PER CURIAM:
      The Court having been polled at the request of one of its members, and
a majority of the judges who are in regular active service and not disqualified
not having voted in favor, rehearing en banc is DENIED. In the en banc poll,
7 judges voted in favor of rehearing (Judges Jolly, Jones, Smith, Clement,
Owen, Higginbotham, and Costa), and 8 judges voted against rehearing (Chief
Judge Stewart and Judges Davis, Dennis, Prado, Elrod, Southwick, Haynes,
and Graves). Upon the filing of this order, the Clerk shall issue the mandate
forthwith. See FED. R. APP. P. 41(b).
                                           No. 15-10358
JONES, Circuit Judge, joined by SMITH, CLEMENT, and OWEN, dissenting
from Denial of Rehearing En Banc,


       With all due respect to the panel, this court is bound by Texas law to
apply the same restrictions on the maintenance of medical malpractice suits
that the state legislature prescribes for such suits filed in state courts. The
panel’s decision to the contrary does not apply Erie-related concepts accurately
and is in tension with our court’s recent en banc decision in Flagg v. Stryker
Corp., which faithfully applied Erie rules to analogous Louisiana medical
malpractice restrictions. 1 This court held in Flagg that a plaintiff in a medical
malpractice case must, under Louisiana law, exhaust procedures under the
Louisiana Medical Malpractice Act. 2
       The panel held in this case that a Texas statute, § 74.351 of the Texas
Civil Practices and Remedies Code, requiring a claimant in a health care
liability case to file an expert affidavit within a certain time after suit is filed,
is procedural and does not apply in federal court proceedings.
       Respectfully, the panel here was mistaken in concluding that the
requirement of the initial expert report under Texas law is procedural. Various
federal courts have subjected affidavit-of-merit statutes to Erie analysis and
concluded that such requirements are substantive. 3 For example, in Liggon-


       1   819 F.3d 132 (5th Cir. 2016).

       2   Id. at 137–40.

       3In assessing whether a law is procedural or substantive under Erie, the Supreme
Court has instructed courts to look to the twin aims of Erie: “discouragement of forum-
shopping and avoidance of inequitable administration of the laws.” Hanna v. Plumer,
380 U.S. 460, 468 (1965). The Court has also suggested that courts might also consider inter
alia whether a state rule is bound up with state-secured substantive rights and obligations.
Byrd v. Blue Ridge Rural Elec. Co-op., Inc., 356 U.S. 525, 535–38 (1958).

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Redding v. Estate of Sugarman, the Third Circuit concluded that a state law
requirement that a document similar to the § 74.351 expert report be filed
within sixty days of filing a professional negligence claim was a substantive
requirement, because (1) failure to file the report necessitated dismissal,
making the rule outcome-determinative; (2) failing to apply the state rule
would encourage forum-shopping in the case of plaintiffs who could not secure
expert support; and (3) failing to apply the state rule would lead to the
inequitable administration of the laws, because “a non-diverse plaintiff in state
court would be required to comply with the rule, while a plaintiff in federal
court could avoid the certificate of merit requirement simply because he or she
is a citizen of a different state.” 4
       Similarly, in Trierweiler v. Croxton and Trench Holding Corp., the Tenth
Circuit examined a state statute that required “plaintiffs’ attorneys in
professional negligence cases to certify, within sixty days of filing the
complaint, that an expert has examined their clients’ claims and found them
to have substantial justification” and concluded that the statute was “bound
up with the substantive right embodied in the state cause of action for
professional negligence.” 5
       The logic of these cases applies equally here: the Texas expert report
requirement applies to a particular subset of tort claims and mandates



       4   659 F.3d 258, 264 (3d Cir. 2011).

       5 90 F.3d 1523, 1537–38, 1541 (10th Cir. 1996) (internal quotation marks omitted); see
also Chamberlain v. Giampapa, 210 F.3d 154, 161 (3d Cir. 2000) (“By requiring dismissal for
failure to adhere to the statute [requiring the filing of an affidavit of merit within sixty days],
the New Jersey legislature clearly intended to influence substantive outcomes. It sought
early dismissal of meritless lawsuits, not merely to apply a new procedural rule. Clearly,
failure to apply the statute in a federal diversity action where no affidavit of merit has been
filed would produce a different outcome than that mandated in a state proceeding.”).
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dismissal where a plaintiff is unable to adequately substantiate his or her
claims. Although the rule concerns “procedure” insofar as it mandates that a
particular type of document be served within a particular time period, “[t]he
aspects . . . that are arguably procedural are plainly ‘bound up’ with ‘state-
created rights and obligations.’” 6
       The Supreme Court of Texas has stated that “a section 74.351 threshold
expert report has a unique purpose separate and apart from the procedural
rules relating to discovery and typical expert reports. The legislature created
the threshold report requirement as a substantive hurdle for frivolous medical
liability suits before litigation gets underway.” 7
       At the very least, the plaintiffs’ noncompliance with Texas law should be
admissible and debatable in federal court.
       Because this case concerns the intersection of state and federal law, and
the opinion, as presently issued, cannot be reconciled with Flagg and creates a
very real distinction between health care liability cases brought in federal
court and those filed in state court, I respectfully dissent from the denial of
rehearing en banc.




       6All Plaintiffs v. All Defendants, 645 F.3d 329, 337 (5th Cir. 2011) (quoting Byrd,
356 U.S. at 535).

       7Spectrum Healthcare Res., Inc. v. McDaniel, 306 S.W.3d 249, 253 (Tex. 2010); but see
Camacho v. Texas Workforce Comm’n, 445 F.3d 407, 412 n.2 (5th Cir. 2006) (“[W]hen courts
divide substance from procedure under Erie, they should not ordinarily rest on state court
opinions characterizing statutes as ‘procedural’ or ‘substantive’ in cases unrelated to the Erie
doctrine.”).
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