October 16, 2019

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October 14, 2019

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SCOTX (Supreme Court of Texas): New Opinions and Granted Petitions

Several new opinions today from the Supreme Court of Texas.  The most notable is the court's choice to reverse it's position in Marks v. St. Luke's Episcopal Hospital, a highly divided case that has been pending on rehearing since last August. I hope to write a future post on whether such delays and such reversals are a good thing.  (They are not).

Rather than reinvent the wheel and write up summaries of all of today's opinions, I'll refer you to a great, down and dirty summary of the issues on Don Cruse's SCOTX Blog.

After the break, this post will focus on the new petitions for review.

 

Today's orders granted three petitions for review and set them for argument late in the fall.  It is interesting that all three involve construction and application of statutes touching on aspects of sovereign immunity.  They are:

 09‑0326 LARRY ROCCAFORTE v. JEFFERSON COUNTY, set for argument on October 14, in which the issues presented involve a prerequisites for suing a county for federal civil rights claims specifically:

(1) Whether Section 89.0041 of the Texas Local Government Code is preempted by federal law where a claimant asserts a claim under 42 USC § 1983 in state court; and

(2) Whether the plaintiff failed to comply with the notice requirements of Section 89.0041 where the county defended the lawsuit for two years before claiming a defect?

09‑0497 TYLER SCORESBY, M.D. v. CATARINO SANTILLAN, INDIVIDUALLY AND AS NEXT FRIEND OF SAMUEL SANTILLAN, A MINOR, set for argument November 9, and involving (yet again) expert reports in med mal cases. Specifically

1. Does an appellate court have jurisdiction to review a denial of a motion to dismiss filed pursuant to TEX. CIV. PRAC. & REM. CODE § 74.351(b) when the proffered “report” does not contain any of the elements that are required to be addressed in a statutory expert report?


2. Are some proffered expert “reports” so woefully deficient and lacking in addressing the statutorily-required elements of a health care liability expert report as to constitute no report at all and, thus, be ineligible for a 30-day curative extension?

3. Is a trial court required to grant a motion to dismiss filed pursuant to TEX. CIV. PRAC. & REM. CODE § 74.351(b) when the plaintiff serves a “report” that is so woefully deficient and lacking in addressing the statutorily-required elements of a health care liability expert report that it constitutes no report at all?

4. Is a trial court required to grant a motion to dismiss filed pursuant to TEX. CIV. PRAC. & REM. CODE § 74.351(b) when the plaintiff fails to serve the curriculum vitae of the expert issuing a health care liability expert report, and when a proffered “report” does not contain any evidence to otherwise establish the expert’s qualifications to offer opinions as to the medical issues involved in the case?

Finally,  09‑0794 LTTS CHARTER SCHOOL, INC. D/B/A UNIVERSAL ACADEMY v. C2 CONSTRUCTION, INC., set for argument December 7,  which involves questions that arise when quasi private entities take on quasi public function.  In this case the question

Is an open-enrollment charter school a “governmental unit” that may bring an interlocutory appeal of a trial court’s denial of its plea to the jurisdiction pursuant to Section 51.014(a)(8) of the Civil Practice and Remedies Code?

Note: the Court has solicited the opinion of the Solicitor General in LTTS Charter School.

Reposted with permission from Andrews Kurth's The Appellate Record Blog located at: http://www.appellaterecord.com/

Copyright © 2019, Hunton Andrews Kurth LLP. All Rights Reserved.

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About this Author

Kendall M. Gray, Antitrust Litigation Attorney, Andrews Kurth Law Firm
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Kendall is a board certified civil appellate specialist who has represented clients in state and federal appellate courts such as the U.S. Supreme Court, the U.S. Courts of Appeal for the Fifth, Ninth, Tenth and Federal Circuits, the Supreme Court of Texas and many intermediate courts of appeal. His practice includes a variety of complex commercial, medical malpractice and toxic tort matters, as well as a particular focus in disputes involving employee benefits, managed care and ERISA. The disputes commonly require complex written and oral advocacy on such topics as ERISA preemption,...

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