                                                                                    ACCEPTED
                                                                                05-14-00847-CV
                                                                     FIFTH COURT OF APPEALS
                                                                                DALLAS, TEXAS
                                                                           5/12/2015 9:34:35 AM
                                                                                     LISA MATZ
                                                                                         CLERK

                     No. 05-14-00847-CV

                                                              FILED IN
                                                       5th COURT OF APPEALS
                In the Court of Appeals for the            DALLAS, TEXAS
                     Fifth District of Texas           5/12/2015 9:34:35 AM
                                                             LISA MATZ
                                                               Clerk
           WILLIAM BRUCE SHERRILL, DDS, AND
                 SHAW & SHERILL, DDS,

                           Appellants,

                                v.

                    BUFFIE G. WILLIAMS

                            Appellee.


   On Appeal from 162nd District Court of Dallas County, Texas
                   Cause No. DC-13-10538


APPELLANTS’ MOTION FOR EN BANC RECONSIDERATION


   Sean Cox                              Mr. Bruce W. Steckler
   State Bar No. 24031980                State Bar No. 00785039
   Law Offices of Sean R. Cox            Steckler, LLP
   P.O. Box 130864                       12720 Hillcrest Road - Suite 1045
   Dallas, TX 75313                      Dallas, TX 75230
   Telephone: 214-500-9280               Telephone: 972-387-4040
   Fax: 877-270-0978                     Fax: 972-387-4041
   scox@coxappellate.com                 bruce@stecklerlaw.com

                    Counsel for Appellants

             ORAL ARGUMENT REQUESTED
                                     TABLE OF CONTENTS

TABLE OF AUTHORITIES……………………………………………………....iv

ISSUES PRESENTED…………………………………………………………….vi

INTRODUCTION………………………………………………………………….1

ARGUMENTS AND AUTHORITIES…………………………………………….3

I.      Appellant was not required to object to the “Preliminary Report”
        submitted by Appellee because it was not a report under the
        requirements of Texas Civil Practice & Remedies Code § 74.351
        and Texas Supreme Court precedent………………………………………...3

        A.      The Stewart “Preliminary Report” was not an expert report on
                medical causation because it was not from an “individual with
                expertise.”…………………………………………………………….3

        B.      Contrary to the Court’s Opinion, Appellants identified the
                Scoresby standard the Stewart Preliminary Report fails to
                satisfy — that the report be from an “individual with expertise.”……7

        C.      The Opinion in this case skips the initial step of determining
                whether an expert report exist by first requiring an objection
                to the report…………………………………………………………...9

        D.      No objection is required to a plaintiff’s failure to file an expert
                report from an “individual with expertise.”…………………………10

        E.      The Court’s requirement that a defendant object to reports that
                are not reports at all undermines the policies behind Texas Civil
                Practice & Remedies Code § 74.351………………………………..14

II.     Appellee’s cause of action for assault by threat of bodily injury
        should have been dismissed………………………………………………..15

CONCLUSION…………………………………………………………………...17



Appellants’ Motion for En Banc Reconsideration                                     ii
CERTIFICATE OF SERVICE……………………………………………………18

CERTIFICATE OF COMPLIANCE……………………………………………...18

APPENDIX

        Opinion…………………………………………………………………Tab A




Appellants’ Motion for En Banc Reconsideration   iii
                                  TABLE OF AUTHORITIES
Cases

Am. Transitional Care Centers of Texas, Inc. v. Palacios,
     46 S.W.3d 873 (Tex. 2001)………………………………………………5,15

Bakhtari v. Estate of Dumas,
     317 S.W.3d 486 (Tex. App.–Dallas 2010, no pet.) …………………10-11,12

Certified EMS, Inc. v. Potts,
       392 S.W.3d 625 (Tex. 2013) ………………………………………………..4

Cooper Tire & Rubber Co. v. Mendez,
     204 S.W.3d 797 (Tex. 2006) ………………………………………………..5

Farishta v. Tenet Healthsystem Hospitals Dallas, Inc.,
      224 S.W.3d 448 (Tex. App.–Fort Worth 2007, no pet.)……………………...16

Hollingsworth v. Springs,
      353 S.W.3d 506 (Tex. App.–Dallas 2011, no pet.)………………………6,16

Hightower v. Baylor Univ. Med. Ctr.,
      348 S.W.3d 512 (Tex. App.–Dallas 2011, pet. denied)……………………14

In re Jorden,
       249 S.W.3d 416 (Tex.2008) (orig. proceeding)………………………...14-15

In re Lumsden,
       291 S.W.3d 456 (Tex. App.–Houston [14th Dist.] 2009, no pet.)…………14

In re McAllen Med. Ctr., Inc.,
      275 S.W.3d 458 (Tex.2008) (orig. proceeding)………………………...14,15

Loaisiga v. Cerda,
      379 S.W.3d 248 (Tex. 2012)…………………………………………..passim

Monson v. Allen Family First Clinic, P.A.,
     390 S.W.3d 598 (Tex. App.–Dallas 2012, no pet.)………………………….5




Appellants’ Motion for En Banc Reconsideration                           iv
Murphy v. Russell,
     167 S.W.3d 835 (Tex. 2005)……………………………………………..5,14

Scoresby v. Santillan,
      346 S.W.3d 546 (Tex. 2011)………………………………………………..passim

Sloan v. Farmer,
      217 S.W.3d 763 (Tex. App.–Dallas 2007, pet. denied)……………………..5

Windsor v. Maxwell,
     121 S.W.3d 42 (Tex. App.–Fort Worth 2003, pet. denied) ……………15-16

Statutory Authority

TEX. CIV. PRAC. & REM. CODE § 74.351……………………………………..passim




Appellants’ Motion for En Banc Reconsideration                       v
                                      ISSUES PRESENTED

I.      Whether the Court’s Opinion in this case errs in refusing to consider whether
        a report required under Texas Civil Practice & Remedies Code § 74.351 has
        been served based on the failure to meet the minimal requirement of being
        from an “individual with expertise,” in the absence of an objection to the
        purported report.

II.     Whether the Court’s Opinion in this case errs in refusing to consider whether
        a report required to be served under Texas Civil Practice & Remedies Code
        § 74.351satisfies the minimal requirement of identifying the specific conduct
        at issue, in the absence of an objection to the purported report.




Appellants’ Motion for En Banc Reconsideration                                     vi
                                        No. 05-14-00847-CV


                                 In the Court of Appeals for the
                                      Fifth District of Texas


                         WILLIAM BRUCE SHERRILL, DDS, AND
                               SHAW & SHERILL, DDS,

                                                 Appellants,

                                                     v.

                                      BUFFIE G. WILLIAMS

                                                 Appellee.



           On Appeal from the 162nd District Court of Dallas County, Texas
                             Cause No. DC-13-10538


       APPELLANTS’ MOTION FOR EN BANC RECONSIDERATION

        COME NOW, Appellants, William Bruce Sherrill, D.D.S. and Shaw &

Sherrill, D.D.S., d/b/a Dental Associates of North Dallas, a/k/a North Central

Dental, and file this Motion for En Banc Reconsideration. In support thereof,

Appellants would show the Court as follows:

                                         INTRODUCTION

        The Court should grant en banc reconsideration in this case because the

Opinion issued by the Court conflicts with well-established precedent of the Texas



Appellants’ Motion for En Banc Reconsideration                                   1
Supreme Court regarding the minimum requirements for an expert report under

Texas Civil Practice & Remedies Code § 74.351. Specifically, the Court’s holding

that an objection is required to challenge a report submitted under Section 74.351,

before a determination that the document even qualifies as a report, is inconsistent

with the Texas Supreme Court precedent of Scoresby v. Santillan, 346 S.W.3d 546,

557 (Tex. 2011) and Loaisiga v. Cerda, 379 S.W.3d 248, 260 (Tex. 2012). No

objection is necessary to a document that does not satisfy the most fundamental

requirement of being from an individual with expertise. If the purported report is

not from an individual with expertise, it is not a mere deficiency, but rather no

report at all. In such circumstances, the defendant need only move to dismiss.

Here, the submitted “Preliminary Report” is not from an individual with expertise

in medical causation. Thus, no objection was necessary and the trial court should

have dismissed the case because 120 days had expired since the filing of

Defendants’ Answer and no report from an individual with expertise in causation

was submitted by plaintiff.1

        Additionally, this Court should have reversed the trial court’s refusal to

dismiss the plaintiff’s cause of action for assault by threat because no specific

threat is identified in the “Preliminary Report.”           Because a report is required to
1
  Essentially, this Court has held that a plaintiff can submit no report at all on causation and
unless the defendant objects to such failure within 21 days of the plaintiff filing another report
solely on the standard of care, the defendant is barred from moving to dismiss based on the
complete failure to file a causation report. This result is contrary to Texas law and undermines
the purposes and policies underlying the expert report.


Appellants’ Motion for En Banc Reconsideration                                                  2
identify the specific conduct of which the plaintiff complains, and no such

identification appears in the “Preliminary Report,” the report does not satisfy the

basic requirements of a report. No objection was required, yet this Court did not

consider the complaint because a timely objection was not raised.

        In sum, the Court has held that none of the trial court’s errors need be

addressed because no objection was raised to the adequacy of the “Preliminary

Report”, regardless of the fact that the “Preliminary Report” does not satisfy the

Texas Supreme Court’s definition of a report.          En banc reconsideration is

warranted to correct these errors.

                            ARGUMENTS AND AUTHORITIES

I.      Appellant was not required to object to the “Preliminary Report”
        submitted by Appellee because it was not a report under the
        requirements of Texas Civil Practice & Remedies Code § 74.351 and
        Texas Supreme Court precedent.

        A.      The Stewart “Preliminary Report” was not an expert report on
                medical causation because it was not from an “individual with
                expertise.”

        In its Opinion in this case, this Court held Appellants waived all objections

to the “Preliminary Report” of Dr. Larry Stewart by not timely objecting to the

report. The Court’s Opinion is in error in several respects.

        The central problem with the Court’s Opinion is confusion over whether a

report that does not meet the minimum requirements set forth by the Texas

Supreme Court is a deficient report or no report at all. If the report is merely

Appellants’ Motion for En Banc Reconsideration                                      3
deficient, then an objection must be timely raised. If, however, the submission

does not meet the minimum requirements for an expert report, then no objection is

necessary and the case must be dismissed for failure to file the required report.

        Here, the Stewart “Preliminary Report” could not serve as the required

expert report because it did not meet the minimal requirements for a report as set

forth by the Texas Supreme Court in Scoresby v. Santillan, 346 S.W.3d 546, 557

(Tex. 2011). In Scoresby, the Texas Supreme Court held that in order to be a valid

expert report, the submission must be from “an individual with expertise” and

fairly summarize the applicable standard of care; explain how a physician or health

care provider failed to meet that standard; and establish the causal relationship

between the failure and the harm alleged.           See Scoresby v. Santillan, 346

S.W.3d 546, 549 (Tex. 2011); see also Certified EMS, Inc. v. Potts, 392 S.W.3d

625, 630 (Tex. 2013) (citing TEX. CIV. PRAC. & REM. CODE § 74.351(r)(6)). “[I]f a

report does not meet the standard set in Scoresby, it is not an expert report

under the statute, and the trial court must dismiss the plaintiff’s claims if the

defendant has properly moved for dismissal.” Loaisiga v. Cerda, 379 S.W.3d 248,

260 (Tex. 2012) (emphasis added); TEX. CIV. PRAC. & REM. CODE § 74.351(b).

Failing to satisfy these minimum requirements is not a mere deficiency. Rather, “it

is not an expert report under the statute.” Loaisiga, 379 S.W.3d at 260.

        The key failing in the Stewart Preliminary Report is that it was not from an



Appellants’ Motion for En Banc Reconsideration                                      4
“individual with expertise” regarding medical causation. 2 Indeed, Stewart’s lack

of expertise in medical causation is not even in dispute.                  The only arguments

raised by Appellee regarding the lack of an expert causation opinion is that a

timely objection to the Stewart Preliminary Report was not raised and that medical

causation testimony is not needed in this case.3 At no time, however, does Plaintiff

claim Stewart is an “individual with expertise” in medical causation. 4

        Importantly, in considering the Scoresby requirement that the report be from

an “individual with expertise,” the proffered medical expert’s qualifications must

be evident from the four corners of the expert report and curriculum vitae, and

demonstrate expertise in regard to the “actual subject about which they are offering

an opinion.” Cooper Tire & Rubber Co. v. Mendez, 204 S.W.3d 797, 800 (Tex.

2006); see generally Am. Transitional Care Centers of Texas, Inc. v. Palacios, 46

S.W.3d 873, 878 (Tex. 2001).                     Here, the only proffered expert report even

mentioning causation was from an oral surgeon offering opinions on causation of

2
 To the extent Dr. Stewart offers any opinions on causation they are purely conclusory. This is
unsurprising considering Dr. Stewart is no more qualified than any laymen at drawing a causal
connection to the alleged injuries and damages in this case.
3
  Appellees argument that an expert report from an individual with expertise in causation is not
required because it allegedly will not be necessary at trial has been rejected by this Court and the
Texas Supreme Court. Murphy v. Russell, 167 S.W.3d 835, 838 (Tex. 2005) (“A claim may be a
health care liability claim to which the damage caps and expert report requirements are
applicable and yet not require expert testimony to prevail at trial.”); Monson v. Allen Family
First Clinic, P.A., 390 S.W.3d 598, 603 (Tex. App.–Dallas 2012, no pet.) (citing Sloan v.
Farmer, 217 S.W.3d 763, 768 (Tex. App.–Dallas 2007, pet. denied).
4
  Notably, this Court did not hold Dr. Stewart’s report to be from an “individual with expertise”
in medical causation.


Appellants’ Motion for En Banc Reconsideration                                                    5
back injuries, emotional trauma, and economic losses related to an alleged assault

by a dentist. CR 20, 23. This simply cannot satisfy even the most strained

interpretation of the expert report requirements. Even if the Stewart “Preliminary

Report” could satisfy the requirements as to the standard of care, 5 the four corners

of his expert report and curriculum vitae demonstrate he cannot in regard to

medical causation.

        Given that Dr. Stewart is obviously not an “individual with expertise” as to

medical causation in this case, Appellee needed to submit a separate report from an

expert in medical causation by the deadline contained in Texas Civil Practice &

Remedies Code § 74.351. See Hollingsworth v. Springs, 353 S.W.3d 506, 512

(Tex. App.–Dallas 2011, no pet.) (submitting expert reports from an

anesthesiologist, a health care administration consultant, and a perioperative

nurse).     This procedure is specifically permitted by Texas Civil Practice &

Remedies Code § 74.351, which provides that reports may be furnished by “one or

more expert reports” in order to satisfy the report requirements. TEX. CIV. PRAC. &

REM. CODE ANN. § 74.351(a).

          There is absolutely no requirement that a defendant object to a report

because it only addresses the standard of care and not causation. Under Section


5
 Appellants dispute Dr. Stewart is qualified to offer standard of care opinions in this case. For
purposes of this motion for rehearing, however, Appellants focus on Dr. Stewart’s lack of
expertise regarding to medical causation because it is obvious and undisputed.


Appellants’ Motion for En Banc Reconsideration                                                 6
74.351, a defendant may wait until the plaintiff submits an expert report from

separate individuals with expertise in standard of care and medical causation, and

if one of those reports is not submitted within 120 days of the defendant's original

answer being filed, as here, the defendant may obtain a dismissal of the suit.

Defendants are not required to guess that the report that is furnished will be the

only report to be filed, nor are defendants required to object to the report as not

being from an individual with expertise as to medical causation. It is the plaintiff’s

burden to submit appropriate reports that at least met the minimum requirement of

being from an “individual with expertise.”

        Because the “Preliminary Report” was not from an “individual with

expertise” it was not a report at all. This is not simply a question of inadequacy,

but existence. Because the “Preliminary Report” does not satisfy the minimum

requirements for an expert report, the trial court should have dismissed the case.

        B.      Contrary to this Court’s Opinion, Appellants identified the
                Scoresby standard the Stewart Preliminary Report fails to satisfy
                — that the report be from an “individual with expertise.”

        This appeal is primarily based on the Texas Supreme Court cases of

Scoresby v. Santillan and Loaisiga v. Cerda. In fact, the majority of the briefing

focuses on the standards set forth in Scoresby, and later relied upon by Loaisiga.

Inexplicably, this Court’s Opinion, in refusing to address the argument that the

“Preliminary Report” was no report at all, based its refusal in part on Appellants’



Appellants’ Motion for En Banc Reconsideration                                       7
alleged failure to “identify the ‘standard set in Scoresby’ to which Loaisiga refers.”

Opinion at 4. This statement is incorrect. Appellants’ briefing identifies the

specific Scoresby standard to which Loaisiga refers and which Appellee failed to

satisfy in this case – that the report be from an “individual with expertise.” 6 This

standard is repeatedly referenced throughout Appellants’ briefing. Regardless, this

Court itself identified the standard when quoting Scoresby in its Opinion – “a

report meets the minimal standard ‘if it contains the opinion of an individual with

expertise that the claim has merit, and if the defendant’s conduct is implicated.’”

Opinion at 4 (quoting Scoresby v. Santillan, 346 S.W.3d 546, 557 (Tex. 2011)).

Obviously, the relevant standard referred to in Loaisiga is that the report must be

from an “individual with expertise.”

        The Court’s statement that Appellants did not identify the Scoresby standard

to which Loaisiga refers suggests the Court did not consider whether the Stewart

“Preliminary Report” was authored by an “individual with expertise.” If this is

true, then the Court never considered whether Appellee’s submission was an actual

report. Given the fundamental nature of this inquiry, the Court should grant this

motion for en banc reconsideration and consider whether the Stewart “Preliminary

Report” is from an individual with expertise in medical causation.

6
  See e.g., Appellants’ Brief at 1-2, 17-23, 26; Appellants’ Reply Brief at 10-12 (“A report from
an individual who is not an ‘individual with expertise,’ does not meet the minimum requirements
for an expert report, and such is not a mere deficiency, ‘it is not an expert report under the
statute.’ Loaisiga, 379 S.W.3d at 260.”).


Appellants’ Motion for En Banc Reconsideration                                                 8
        C.      The Opinion in this case skips the initial step of determining
                whether an expert report exist by first requiring an objection to
                the report.

        The most troubling aspect of the Opinion is that it reverses the analysis

called for by the Texas Supreme Court. As stated in the Opinion, “Appellants

failed to make a proper challenge to the Preliminary Report, so we need not

determine whether the report meets the minimal Scoresby standard.” Opinion at 4.

This turns the analysis completely on its head. It is necessary to first determine if

the report meets the minimal Scoresby standard in order to determine if any report

exists to which an objection to a deficiency might be necessary. The question of

whether a report is deficient is never reached if the minimal requirements are not

met. Because the Court did not first determine if the report met the Scoresby

standard of being from an individual with expertise in medical causation, the Court

skipped over the most fundamental consideration —whether the Stewart

submission was a report at all.

        Before a court can analyze the necessity of an objection, it is necessary that

the Court determine that a report satisfying the Scoresby standard even exists.

Because the Court did not perform the analysis called for by the Texas Supreme

Court, the question of whether the “Preliminary Report” was from an “individual

with expertise” in medical causation was never answered. If no such report exists,

then no objection could possibly be required.



Appellants’ Motion for En Banc Reconsideration                                       9
        The Court should take this opportunity to reconsider this appeal, determine

if the report at issue meets the minimal Scoresby standard of being from an

“individual with expertise” in medical causation, and if it does not, dismiss the

case.

        D.      No objection is required to a plaintiff’s failure to file an expert
                report from an “individual with expertise.”

        This Court also incorrectly held that the only way to make a proper

challenge to a report (that is actually no report at all), is for a defendant to object to

the report within 21 days of it being filed. In so holding, the Court relies on

Bakhtari v. Estate of Dumas, 317 S.W.3d 486 (Tex. App.–Dallas 2010, no pet.).

Such reliance is misplaced. In Bakhtari, the issue was not whether the report was

from an individual with expertise. Instead, the complaint in Bakhtari was that the

report was not from a physician of the same geographic location. This is a perfect

example of a report that meets the minimal requirement of being from an

“individual with expertise,” but still being deficient. There was no dispute that the

expert in Bakhtari was a physician and an “individual with expertise.” The

objection in Bakhtari was simply that the expert was “not qualified to render an

expert opinion on the standard of care in this case in light of the common-law

‘community-standard rule, or the locality rule.’” Id. at 494. Thus, this Court held

an objection to the expert’s qualifications was required. Had the expert in Bakhtari

not been a physician and had no expertise in medical causation, as here, the report

Appellants’ Motion for En Banc Reconsideration                                          10
would not be merely deficient, but rather no report at all. Thus, although an

objection was necessary in Bakhtari, none was necessary here, and Bakhtari does

not serve as precedent for refusing to consider Defendants’ complaints.

        The Opinion in this case also appears to err by interpreting “challenge” to

only mean “objection.” Although challenging a deficient expert report may require

an objection, when no report is filed, an objection is not required. Rather, the

proper way to challenge the failure to file an expert report is simply moving to

dismiss. TEX. CIV. PRAC. & REM. CODE 74.351(b);7 Loaisiga, 379 S.W.3d at 260

(“But if a report does not meet the standard set in Scoresby, it is not an expert

report under the statute, and the trial court must dismiss the plaintiff's claims if the

defendant has properly moved for dismissal.”).                Likewise, the proper way to

challenge the failure to file an expert report satisfying the Scoresby standard is by

moving to dismiss because failure to satisfy the Scoresby standard means no report

was actually submitted. The Court’s interpretation of the term “challenge” is

unjustifiably narrow. As provided by statute and the Texas Supreme Court, the

proper manner to challenge a report that does not meet the standard set in Scoresby
7
 (b) If, as to a defendant physician or health care provider, an expert report has not been served
within the period specified by Subsection (a), the court, on the motion of the affected physician
or health care provider, shall, subject to Subsection (c), enter an order that:
        (1) awards to the affected physician or health care provider reasonable attorney's fees and
        costs of court incurred by the physician or health care provider; and
        (2) dismisses the claim with respect to the physician or health care provider, with
        prejudice to the refiling of the claim.
TEX. CIV. PRAC. & REM. CODE ANN. § 74.351(b).


Appellants’ Motion for En Banc Reconsideration                                                  11
is by moving to dismiss.

          The Court’s Opinion also creates problems with the timing requirements

under Texas Civil Practice & Remedies Code § 74.351. For instance, plaintiffs can

satisfy the expert report requirements by submitting multiple expert reports (such

as one from an expert on standard of care and one from an expert on causation).8

The plaintiff has 120 days from the date the answer is filed to submit such reports.

The timing problem occurs when both reports are not filed at the same time, such

as one being filed immediately after the answer and another report being filed

months later. Must a defendant object within 21 days of the first expert report

being submitted because it does not address both standard of care and medical

causation, or may a defendant wait the 120 days and then move to dismiss if the

second expert report is not submitted? If defendants wait to see if the second

expert report is filed, have they waived any challenge to the fact that the report is

inadequate or no report at all? This is very similar to the situation in the present

case, where a “Preliminary Report” was submitted by an individual without

expertise in medical causation, and Defendants waited until the time period expired

to submit expert reports before complaining as to the absence of a medical

causation report. Can it honestly be said that a defendant must object to the

absence of a report when there is still time for the plaintiff to serve the report? No

8
    Interestingly, this is what was done in Bakhtari.


Appellants’ Motion for En Banc Reconsideration                                      12
such requirement appears in case law or the language of the health care liability

statutes, at least until this Court’s Opinion.

        Another way to look at the effect of the Opinion is in the circumstances of a

“safety” health care liability case wherein a hospital administrator would be the

appropriate standard of care expert. Under this Court’s opinion, the hospital

administrator providing the report as to the standard of care could also provide

causation opinions and a defendant would have to object to the administrator’s

report as inadequate, rather than waiting until an individual with expertise in

causation submits a report.              It is obvious the administrator would not be an

individual with expertise in causation, yet by merely mentioning a speculative

opinion on causation, the administrator’s report would be treated, according to this

Court’s Opinion, as being from an “individual with expertise.”

        In short, no objection is required to an expert report that fails to satisfy the

Scoresby minimal requirements for an expert report because “if a report does not

meet the standard set in Scoresby, it is not an expert report under the statute, and

the trial court must dismiss the plaintiff’s claims if the defendant has properly

moved for dismissal.” 379 S.W.3d 248, 260 (Tex. 2012). Failing to file a report

from an “individual with expertise” is not an objectionable deficiency. It is as if no

report has been filed at all. No objection is required. A defendant must simply

move for dismissal. That is precisely what was done here.



Appellants’ Motion for En Banc Reconsideration                                        13
        E.      The Court’s requirement that a defendant object to reports that
                are not reports at all undermines the policies behind Texas Civil
                Practice & Remedies Code § 74.351.

        In addition to conflicting with the Texas Supreme Court’s holdings in

Scoresby and Loaisiga, this Court’s ruling undermines the entire purpose of Texas

Civil Practice & Remedies Code § 74.351 — to “identify frivolous claims and

reduce the expense and time to dispose of any that are filed.” Loaisiga, 379 S.W.3d

at 258; Scoresby, 346 S.W.3d at 554 (citations omitted) (“The purpose of the expert

report requirement is to deter frivolous claims, not to dispose of claims regardless

of their merits.”); Hightower v. Baylor Univ. Med. Ctr., 348 S.W.3d 512, 522 (Tex.

App.–Dallas 2011, pet. denied) (“With the expert report requirement, the

legislature imposed a threshold to prevent frivolous lawsuits from proceeding until

a good-faith effort has been made to demonstrate that at least one expert believes

that a breach of the applicable standard of care caused the claimed injury.”)(citing

Murphy v. Russell, 167 S.W.3d 835, 838 (Tex. 2005)).

        “The Legislature has repeatedly found that traditional rules of litigation

create an ongoing crisis in the cost and availability of medical care.” In re

Lumsden, 291 S.W.3d 456, 460-61 (Tex. App.–Houston [14th Dist.] 2009, no pet.)

(citing In re McAllen Med. Ctr., Inc., 275 S.W.3d 458, 461 (Tex.2008) (orig.

proceeding)). “To decrease the costs associated with frivolous suits, expert reports

are required soon after filing as a means of separating meritorious claims from



Appellants’ Motion for En Banc Reconsideration                                    14
frivolous or premature claims.” Id. at 461 (citing In re Jorden, 249 S.W.3d 416,

420 (Tex.2008) (orig. proceeding)); see also In re McAllen Med. Ctr., Inc., 275

S.W.3d at 461 (explaining, to address crises in cost of healthcare, Legislature

requires that health care claims must be supported with expert reports). If an

expert report from an individual completely lacking in expertise regarding medical

causation is sufficient, it would render the requirements under Texas Civil Practice

& Remedies Code § 74.351 essentially meaningless and would ignore the

Legislature’s goals.            The Court should grant this motion for en banc

reconsideration and clarify that a report must first satisfy the minimal requirement

of being from an “individual with expertise” before requiring an objection.

II.     Appellee’s cause of action for assault by threat of bodily injury should
        have been dismissed.

        This Court also held that Appellee’s cause of action for assault by threat of

bodily injury is not subject to dismissal because no objection was raised within 21

days of the filing of the Stewart “Preliminary Report.” This was error because the

report fails to satisfy the Scoresby requirements for an expert report in that it fails

to identify any alleged threat of bodily injury. As held by the Texas Supreme court

in Palacios, “the report must inform the defendant of the specific conduct the

plaintiff has called into question.” Am. Transitional Care Centers of Texas, Inc. v.

Palacios, 46 S.W.3d 873, 879 (Tex. 2001) (emphasis added); Loaisiga, 379

S.W.3d at 260 (citing Scoresby, 346 S.W.3d at 556); see also Windsor v. Maxwell,

Appellants’ Motion for En Banc Reconsideration                                       15
121 S.W.3d 42, 51 (Tex. App.–Fort Worth 2003, pet. denied) (“To inform the

defendant of the specific conduct the plaintiff has called into question, the report

must support the cause of action alleged by the plaintiff in its pleadings. To hold

otherwise would lead to easily imagined absurd results.”). If the report does not

even inform the defendant of the specific conduct alleged to form the plaintiff’s

cause of action, it does not meet even the minimum requirements of an expert

report, at least for that cause of action. Hollingsworth, 353 S.W.3d at 512;

Windsor, 121 S.W.3d at 51. Any plain reading of the expert report demonstrates

that it does not even mention a threat of bodily harm. The failure of Stewart’s

“Preliminary Report” to address the allegation that Appellant Sherrill threatened to

inflict bodily injury upon Appellee is fatal to this cause of action, 9and it should

have been dismissed. Hollingsworth, 353 S.W.3d at 522 (Tex. App.–Dallas 2011,

no pet.); Farishta v. Tenet Healthsystem Hospitals Dallas, Inc., 224 S.W.3d 448,

455 (Tex. App.–Fort Worth 2007, no pet.) (sustaining dismissal of claims not

addressed in expert report). This Court’s Opinion does not address this failure, but

rather holds that any failings in the expert report must be objected to within 21

days after it is served, even when those failings result in a submission that is the

equivalent of no report at all. This is contrary to Texas Supreme Court precedent


9
 Although Stewart does mention allegations that Appellee was placed in fear of physical assault
and that a party subjected to a threat of physical violence can suffer damages, nowhere does
Stewart identify an actual threat of bodily injury.


Appellants’ Motion for En Banc Reconsideration                                              16
and Texas Civil Practice & Remedies Code § 74.351. The Court should grant

rehearing and address all of the complaints raised by Appellants.

                                           CONCLUSION

        For the foregoing reasons, Appellants respectfully request that this Court

grant this Motion for En Banc Reconsideration, reverse the trial court’s denial of

Appellants’ motion to dismiss Appellee’s causes of action, dismiss Appellee’s

claims with prejudice (or remand to the trial court with instructions to do the

same), and award Appellants attorneys’ fees and costs incurred in this case.

                                                 Respectfully submitted,

                                                 /s/ Bruce W. Steckler
                                                 Bruce W. Steckler
                                                 State Bar No. 00785039
                                                 STECKLER, LLP
                                                 12720 Hillcrest Road - Suite 1045
                                                 Dallas, TX 75230
                                                 Telephone: 972-387-4040
                                                 Fax: 972-387-4041
                                                 bruce@stecklerlaw.com

                                                 Sean Cox
                                                 State Bar No. 24031980
                                                 LAW OFFICES OF SEAN R. COX
                                                 P.O. Box 130864
                                                 Dallas, TX 75313
                                                 Telephone: 214-500-9280
                                                 Fax: 877-270-0978
                                                 scox@coxappellate.com




Appellants’ Motion for En Banc Reconsideration                                       17
                                CERTIFICATE OF SERVICE

      This is to certify that on the 12th day of May, 2015, a true and correct copy
of the above and foregoing instrument was served via U.S. Mail, Fax and/or
Electronic Service, upon the following counsel of record in accordance with the
Texas Rules of Civil Procedure:

        Price L. Johnson
        The Johnson Firm
        8750 N. Central Expressway, Suite 1010
        Dallas, TX 75231

                                                 /s/ Bruce W. Steckler
                                                 Bruce W. Steckler



                            CERTIFICATE OF COMPLIANCE

       Based on a word count run in Microsoft Word 2010, this Appellants’ Motion
for En Banc Reconsideration contains 4210 words, excluding the portions of the
document exempt from the word count under Texas Rule of Appellate Procedure
9.4(i)(1).

                                                 /s/ Bruce W. Steckler
                                                 Bruce W. Steckler




Appellants’ Motion for En Banc Reconsideration                                   18
                          Appendix Tab A




Appellants’ Motion for En Banc Reconsideration   19
AFFIRM; and Opinion Filed April 28, 2015.




                                          S   In The
                                Court of Appeals
                         Fifth District of Texas at Dallas
                                       No. 05-14-00847-CV

 WILLIAM BRUCE SHERRILL, D.D.S. AND SHAW & SHERRILL, D.D.S., Appellants
                                 V.
                   BUFFIE G. WILLIAMS, Appellee

                      On Appeal from the 162nd Judicial District Court
                                   Dallas County, Texas
                           Trial Court Cause No. DC-13-10538

                              MEMORANDUM OPINION
                            Before Justices Francis, Myers, and Brown
                                    Opinion by Justice Brown
       In this interlocutory appeal, appellants William Bruce Sherrill, D.D.S. and Shaw &

Sherrill, D.D.S. challenge the trial court’s refusal to dismiss appellee Buffie G. Williams’s

claims against them pursuant to Chapter 74 of the Texas Civil Practice and Remedies Code. In

three issues, appellants contend the trial court erred in denying their motion to dismiss because

Williams “fail[ed] to serve an expert report” as to the appropriate standard of care and causation,

and failed completely to address one cause of action in the report. Because appellants waived

these objections to Williams’s report, we affirm the trial court’s order.

       Williams was employed by appellants as a dental assistant. Her claims grow out of a

confrontation with Sherrill during work hours. Williams contends the altercation culminated

with Sherrill pushing her to the ground, kicking her, and holding her down. Appellants contend
Williams tripped and fell. Following this incident, Williams no longer worked for appellants.

Williams contends she was fired by Sherrill; appellants contend she abandoned her job.

       Williams filed suit against appellants, pleading causes of action for assault and

negligence. She attached a document titled the “Preliminary Report” of Larry R. Stewart,

D.D.S., M.S. and his curriculum vitae to her petition and served them on appellants

simultaneously with the petition.        Appellants answered, generally denying Williams’s

allegations, asserting a number of affirmative defenses, and pleading counterclaims for

defamation, tortious interference, breach of contract, malicious prosecution, intentional infliction

of emotional distress, fraud, and abuse of process.

       On May 9, 2014, appellants filed their motion to dismiss. See TEX. CIV. PRAC. & REM.

CODE ANN. § 74.351 (West Supp. 2014). Appellants argued Williams had asserted health care

liability claims within the meaning of Chapter 74, but she had failed to provide an expert report

required by that chapter. Specifically, appellants argued Stewart, an oral surgeon, was not

qualified to provide an expert report (a) on human resources or office administration issues in a

dentistry practice, or (b) on medical or psychiatric causation. Appellants argued further that the

Preliminary Report did not address Williams’s claim for assault by threat of bodily injury.

Williams responded to the motion, arguing appellants had waived any objections to the

Preliminary Report by failing to lodge those objections within twenty-one days of filing their

answer.   She argued alternatively that the Preliminary Report was adequate to satisfy the

requirements of Chapter 74 or, again in the alternative, that she should be granted an extension to

provide an amended report. The trial court heard arguments and denied the motion.

       Appellants filed this interlocutory appeal, making the same arguments concerning the

Preliminary Report,” namely that Stewart was unqualified to offer expert testimony in this case

and his report did not address all of Williams’s claims. We review the denial of a motion to

                                                –2–
dismiss filed pursuant to section 74.351 under an abuse of discretion standard. Nexus Recovery

Ctr., Inc. v. Mathis, 336 S.W.3d 360, 364 (Tex. App.—Dallas 2011, no pet.).

        The threshold issue for our determination is whether appellants’ complaints were

untimely and waived as a result. Williams relies on Chapter 74’s dictates concerning expert

reports. The relevant provision begins by describing the claimant’s responsibility to file her

report “not later than the 120th day after the date each defendant’s original answer is filed.”

TEX. CIV. PRAC. & REM. CODE ANN. § 74.351(a). The statute goes on to provide that:

        Each defendant physician or health care provider whose conduct is implicated in a
        report must file and serve any objection to the sufficiency of the report not later
        than the later of the 21st day after the date the report is served or the 21st day after
        the date the defendant’s answer is filed, failing which all objections are waived.

Id. Williams served the Preliminary Report on September 6, 2013, and appellants answered on

October 7, 2013. Thus, appellants’ objections to the Preliminary Report were to be filed and

served by October 28, 2013, twenty-one days after appellants answered. See id. Appellants filed

no objections to the Preliminary Report until they filed their motion to dismiss on May 9, 2014,

which was 193 days after objections were due.

        Appellants argue that because Stewart was unqualified to offer expert opinions in this

case as to both standard of care and causation, his report was the equivalent of no report at all. In

the absence of any valid expert report, he contends, he had no obligation to file objections. This

Court has considered and rejected appellants’ argument that a report from a purportedly

unqualified expert is tantamount to no report at all. See Bakhtari v. Estate of Dumas, 317

S.W.3d 486, 492 (Tex. App.—Dallas 2010, no pet.). In that case, we applied the plain language

of section 74.351(a) and concluded that “when a report and CV are timely served on a defendant

physician, any objections to the expert’s qualifications, and any objections to the sufficiency of

the report, must be raised by the defendant within 21 days after service of the report and CV.”

Id. at 493.
                                                 –3–
           Appellants rely on the Texas Supreme Court’s opinion in Loaisiga v. Cerda, in which

that court said “if a report does not meet the standard set in Scoresby [v. Santillan], it is not an

expert report under the statute, and the trial court must dismiss the plaintiff’s claims if the

defendant has properly moved for dismissal.” 379 S.W.3d 248, 260 (Tex. 2012). But appellants

fail to identify the “standard set in Scoresby” to which Loaisiga refers. In Scoresby, the Supreme

Court concluded a report meets the minimal standard “if it contains the opinion of an individual

with expertise that the claim has merit, and if the defendant’s conduct is implicated.” Scoresby

v. Santillan, 346 S.W.3d 546, 557 (Tex. 2011). More important for our purposes, the Supreme

Court makes clear that any determination as to whether a report meets these minimal Scoresby

requirements is to be made “[w]hen the document purporting to be an expert report is timely

served in an HCLC and is properly challenged.” Loaisiga, 379 S.W.3d at 260. A report is

“properly challenged” by objections filed within the relevant twenty-one day window. TEX. CIV.

PRAC. & REM. CODE ANN. § 74.351(a). Appellants failed to make a proper challenge to the

Preliminary Report, so we need not determine whether the report meets the minimal Scoresby

standard.

           We reject appellants’ argument that they were not required to file timely objections, and

we conclude appellants waived all objections to the Preliminary Report. See id. Accordingly,

we overrule appellants’ three issues. 1




     1
        Both parties’ briefs address whether Williams’s claims are health care liability claims within the meaning of Chapter 74. That issue was
not raised below, and the trial court has not had an opportunity to rule on it. We will not deprive the trial court of its authority to rule first on
such an issue. See Daughety v. Nat’l Ass’n of Homebuilders of U.S., 970 S.W.2d 178, 182 (Tex. App.—Dallas 1998, no pet.) (“Addressing
matters not specifically presented to the trial court usurps the trial court’s authority to evaluate and rule on issues before it and denies the
appellate court the benefit of the trial court’s decision.”).




                                                                       –4–
      We affirm the trial court’s order denying appellants’ motion to dismiss.




                                                   /Ada Brown/
                                                   ADA BROWN
                                                   JUSTICE


140847F.P05




                                             –5–
