Preview
Electronically Filed
1/2/2020 12:00 AM
Hidalgo County District Clerks
Reviewed By: Monica Valdez
CAUSE NO. C-0973-13-A
JUANA LAGUNA, JOANNA GONZALEZ § IN THE DISTRICT COURT
ADMINISTRATOR
ACEVEDO, AS OF THE §
ESTATE OF REGINO GONZALEZ, JR. §
§
v. § 92 ND JUDICIAL DISTRICT
§
RAY R. FULP, III,D.O. RAY FULP §
ORTHOPEDICS, P.A., ROBERT C. §
FOUNTILA, D.O., McALLEN HOSPITALS, §
L.P., McALLEN MEDICAL CENTER, SOUTH §
TEXAS HEALTH SYSTEM, MCALLEN §
MEDICAL CENTER, INC. § HIDALGO COUNTY, TEXAS
DEFENDANTS McALLEN HOSPITALS, L.P. D/B/A McALLEN MEDICAL CENTER,
SOUTH TEXAS HEALTH SYSTEM, AND McALLEN MEDICAL CENTER, INCo'S
MOTION FOR PROTECTIVE ORDER AND MOTION TO STAY ALL DISCOVERY
TO THE HONORABLE JUDGE OF THIS COURT:
The Defendants, McALLEN HOSPITALS, L.P. d/b/a McALLEN MEDICAL CENTER,
SOUTH TEXAS HEALTH SYSTEM, and McALLEN MEDICAL CENTER, INC., move for a protective
order and stay against all discovery including the Plaintiffs' Requests for Production because
the Plaintiffs' requests are premature as there is a stay in place barring this discovery and no
agreement among the parties allowing it.
I.
FACT SUMMARY
1. This suit was filed against McAllen Hospitals, L.P. d/b/a McAllen Medical Center,
South Texas Health System, and McAllen Medical Center, Inc. (MMC) on March 5, 2013.
Defendant MMC's Original Answer was filed on April 2, 2013. On September 24, 2013,
Plaintiffs filed their First Amended Petition in which Plaintiffs dismissed the hospital from the
Electronically Filed
1/2/2020 12:00 AM
Hidalgo County District Clerks
Reviewed By: Monica Valdez
case by not naming the hospital as a Defendant in the introduction, the list of Defendants, or
the allegations.
2. On December 14, 2018, Plaintiffs filed a Second Amended Petition which named
the hospital again as a Defendants in the case after having dismissed the hospital in the first
amended petition over five (5) years earlier. Defendants' Original Answer to Plaintiffs' Second
Amended Petition was filed on February 4,2019.
3. On June 7, 2019, Defendants filed Motion for Summary Judgment Pursuant to
Rule 166a because Plaintiffs' claims, if any, against the hospital are barred by the statute of
limitations. On the same day, Defendants filed a Motion to Dismiss Pursuant to § 74.351(b)
based on Plaintiffs' failure to timely serve an expert report on the hospital.
4. On May 31,2019, Plaintiffs untimely filed various expert reports as to MMC. On
June 19, 2019, Defendants timely filed their Objections to Plaintiffs' Chapter 74 expert reports
subject to the pending Motion for Summary Judgment pursuant to Rule 166a and Motion to
Dismiss pursuant to Section 74.351(b) based on the expert reports' failure to comply with the
requirements of §74.351. Exhibit "A."
5. On July 31, 2019, the hearing on Defendants' Objections to Plaintiffs' expert
reports was held and the motion was taken under advisement.
6. On December 18, 2019, Plaintiffs served McAllen HOSPITALS, L.P. d/b/a McAllen
MEDICAL CENTER, SOUTH TEXAS HEALTH SYSTEM, and McALLEN MEDICAL CENTER, INC. with
their Motion to Compel Defendantsto Respond to Plaintiffs' Requestfor Production. Exhibit "B."
- 2-
Electronically Filed
1/2/2020 12:00 AM
Hidalgo County District Clerks
Reviewed By: Monica Valdez
II.
ARGUMENT
7. Based on the unambiguous language ofthe applicable statutes, Plaintiffs' motion
to compel responses to written discovery and any other discovery is stayed until final judicial
determination that Plaintiffs have complied with the requirements of Chapter 74.
Section 74.351(s) states that "Until a claimant has served the expert report and curriculum
vitae as required by Subsection (a). all discovery in a health care liability claim is stayed ... " TEX.
CIV. PRAC. & REM. CODE ANN. § 74.351(s). An expert report has not been served if it is does not
comply with the requirements of Section 74.351. Lewis v. Funderburk, 253 S.W.3d, 204 (Tex.
2008). Defendants have challenged the Plaintiffs' expert reports' failure to comply with the
requirements of Section 74.351. This Court has not determined that Plaintiffs' expert reports
comply with the requirements of Section 74.351. Therefore, there has been no service of the
expert reports as to McAllen Medical Center. Thus, discovery is stayed until final judicial
determination that Plaintiffs' expert reports comply with the requirements of Section 74.351.
8. Additionally, the Plaintiffs are attempting to circumvent this stay by requesting
a privilege log that contains the description of withheld material or information under Texas
Rules of Civil Procedure 193.3 (b). The timing and scope of discovery is presently the subject
of the stay. Until a final judicial determination that Plaintiffs' expert reports are adequate,
discovery may not take place, including the description of withheld material or information. As
such there is no duty to respond to the requests or serve a privilege log.
-3-
Electronically Filed
1/2/2020 12:00 AM
Hidalgo County District Clerks
Reviewed By: Monica Valdez
9. Section 74.002(a) states that, "Inthe event of a conflict between [Chapter 74]
and another law, including a rule 0f procedure or evidence 0r court rule. this chapter controls
t0 the extent 0f the conflict." TEX. CIV. PRAC. & REM. CODE ANN. § 74.002(a). Therefore, t0 the
extent any conflict exists between Sections 74.351(s) and Texas Rules 0f Civil Procedure
193.3(b), Section 74.351(s) controis and mandates a stay 0f all discovery.
|||.
CONCLUSION
10. Pursuant to TEX. Clv. PRAC. & REM. CODE ANN. § 74.351(s), Defendants assert that
good cause exists for the entry of a stay and protective order forbidding Plaintiffs’ discovery
because Plaintiffs’ discovery requests are premature.
11. For these reasons, Defendants, McALLEN HOSPITALS, L.P. d/b/a McALLEN
MEDICAL CENTER, SOUTH TEXAS HEALTH SYSTEM, and McALLEN MEDICAL CENTER, |NC.,
request that this Court grant a stay and protective order as to all discovery including Plaintiffs’
discovery requests, privilege log and grant all other relief the Court deems appropriate.
Respectfull ,submitted,
GONZA LL {P/
By :
V /
MXk/I‘ Gonzalez
SBN: 08131900
Edward J.Castillo
SBN: 24040658
Ezequiel “Zeke" Moya, Jr.
SBN: 24092865
Eduardo Moya
SBN: 24105674
Electronically Filed
1/2/2020 12:00 AM
Hidalgo County District Clerks
Reviewed By: Monica Valdez
1317 E. Quebec Avenue
McAllen, Texas 78503
(956) 618-0115
FAX: (956) 618-0445
Email: la w@va
lleyfirm .com
ATTORNEYS FOR DEFENDANTS,
McALLEN HOSPITALS, L.P. D/B/A McALLEN MEDICAL
CENTER, SOUTH TEXAS HEALTH SYSTEM, and McALLEN
MEDICAL CENTER, INC.
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the above and foregoing document has
been forwarded to attorney for Plaintiffs via certi led mail, return receipt requested, and all
other counsel via regular mail, on this 31st day b r, 2 ,g~
F:\data\WPDOCS\G\Gonzalez, R. v. MMC 21.165\mtn-for-protection.km.wpd
-5 -
Preview
Electronically Filed 1/2/2020 12:00 AM Hidalgo County District Clerks Reviewed By: Monica Valdez CAUSE NO. C-0973-13-A JUANA LAGUNA, JOANNA GONZALEZ § IN THE DISTRICT COURT ADMINISTRATOR ACEVEDO, AS OF THE § ESTATE OF REGINO GONZALEZ, JR. § § v. § 92 ND JUDICIAL DISTRICT § RAY R. FULP, III,D.O. RAY FULP § ORTHOPEDICS, P.A., ROBERT C. § FOUNTILA, D.O., McALLEN HOSPITALS, § L.P., McALLEN MEDICAL CENTER, SOUTH § TEXAS HEALTH SYSTEM, MCALLEN § MEDICAL CENTER, INC. § HIDALGO COUNTY, TEXAS DEFENDANTS McALLEN HOSPITALS, L.P. D/B/A McALLEN MEDICAL CENTER, SOUTH TEXAS HEALTH SYSTEM, AND McALLEN MEDICAL CENTER, INCo'S MOTION FOR PROTECTIVE ORDER AND MOTION TO STAY ALL DISCOVERY TO THE HONORABLE JUDGE OF THIS COURT: The Defendants, McALLEN HOSPITALS, L.P. d/b/a McALLEN MEDICAL CENTER, SOUTH TEXAS HEALTH SYSTEM, and McALLEN MEDICAL CENTER, INC., move for a protective order and stay against all discovery including the Plaintiffs' Requests for Production because the Plaintiffs' requests are premature as there is a stay in place barring this discovery and no agreement among the parties allowing it. I. FACT SUMMARY 1. This suit was filed against McAllen Hospitals, L.P. d/b/a McAllen Medical Center, South Texas Health System, and McAllen Medical Center, Inc. (MMC) on March 5, 2013. Defendant MMC's Original Answer was filed on April 2, 2013. On September 24, 2013, Plaintiffs filed their First Amended Petition in which Plaintiffs dismissed the hospital from the Electronically Filed 1/2/2020 12:00 AM Hidalgo County District Clerks Reviewed By: Monica Valdez case by not naming the hospital as a Defendant in the introduction, the list of Defendants, or the allegations. 2. On December 14, 2018, Plaintiffs filed a Second Amended Petition which named the hospital again as a Defendants in the case after having dismissed the hospital in the first amended petition over five (5) years earlier. Defendants' Original Answer to Plaintiffs' Second Amended Petition was filed on February 4,2019. 3. On June 7, 2019, Defendants filed Motion for Summary Judgment Pursuant to Rule 166a because Plaintiffs' claims, if any, against the hospital are barred by the statute of limitations. On the same day, Defendants filed a Motion to Dismiss Pursuant to § 74.351(b) based on Plaintiffs' failure to timely serve an expert report on the hospital. 4. On May 31,2019, Plaintiffs untimely filed various expert reports as to MMC. On June 19, 2019, Defendants timely filed their Objections to Plaintiffs' Chapter 74 expert reports subject to the pending Motion for Summary Judgment pursuant to Rule 166a and Motion to Dismiss pursuant to Section 74.351(b) based on the expert reports' failure to comply with the requirements of §74.351. Exhibit "A." 5. On July 31, 2019, the hearing on Defendants' Objections to Plaintiffs' expert reports was held and the motion was taken under advisement. 6. On December 18, 2019, Plaintiffs served McAllen HOSPITALS, L.P. d/b/a McAllen MEDICAL CENTER, SOUTH TEXAS HEALTH SYSTEM, and McALLEN MEDICAL CENTER, INC. with their Motion to Compel Defendantsto Respond to Plaintiffs' Requestfor Production. Exhibit "B." - 2- Electronically Filed 1/2/2020 12:00 AM Hidalgo County District Clerks Reviewed By: Monica Valdez II. ARGUMENT 7. Based on the unambiguous language ofthe applicable statutes, Plaintiffs' motion to compel responses to written discovery and any other discovery is stayed until final judicial determination that Plaintiffs have complied with the requirements of Chapter 74. Section 74.351(s) states that "Until a claimant has served the expert report and curriculum vitae as required by Subsection (a). all discovery in a health care liability claim is stayed ... " TEX. CIV. PRAC. & REM. CODE ANN. § 74.351(s). An expert report has not been served if it is does not comply with the requirements of Section 74.351. Lewis v. Funderburk, 253 S.W.3d, 204 (Tex. 2008). Defendants have challenged the Plaintiffs' expert reports' failure to comply with the requirements of Section 74.351. This Court has not determined that Plaintiffs' expert reports comply with the requirements of Section 74.351. Therefore, there has been no service of the expert reports as to McAllen Medical Center. Thus, discovery is stayed until final judicial determination that Plaintiffs' expert reports comply with the requirements of Section 74.351. 8. Additionally, the Plaintiffs are attempting to circumvent this stay by requesting a privilege log that contains the description of withheld material or information under Texas Rules of Civil Procedure 193.3 (b). The timing and scope of discovery is presently the subject of the stay. Until a final judicial determination that Plaintiffs' expert reports are adequate, discovery may not take place, including the description of withheld material or information. As such there is no duty to respond to the requests or serve a privilege log. -3- Electronically Filed 1/2/2020 12:00 AM Hidalgo County District Clerks Reviewed By: Monica Valdez 9. Section 74.002(a) states that, "Inthe event of a conflict between [Chapter 74] and another law, including a rule 0f procedure or evidence 0r court rule. this chapter controls t0 the extent 0f the conflict." TEX. CIV. PRAC. & REM. CODE ANN. § 74.002(a). Therefore, t0 the extent any conflict exists between Sections 74.351(s) and Texas Rules 0f Civil Procedure 193.3(b), Section 74.351(s) controis and mandates a stay 0f all discovery. |||. CONCLUSION 10. Pursuant to TEX. Clv. PRAC. & REM. CODE ANN. § 74.351(s), Defendants assert that good cause exists for the entry of a stay and protective order forbidding Plaintiffs’ discovery because Plaintiffs’ discovery requests are premature. 11. For these reasons, Defendants, McALLEN HOSPITALS, L.P. d/b/a McALLEN MEDICAL CENTER, SOUTH TEXAS HEALTH SYSTEM, and McALLEN MEDICAL CENTER, |NC., request that this Court grant a stay and protective order as to all discovery including Plaintiffs’ discovery requests, privilege log and grant all other relief the Court deems appropriate. Respectfull ,submitted, GONZA LL {P/ By : V / MXk/I‘ Gonzalez SBN: 08131900 Edward J.Castillo SBN: 24040658 Ezequiel “Zeke" Moya, Jr. SBN: 24092865 Eduardo Moya SBN: 24105674 Electronically Filed 1/2/2020 12:00 AM Hidalgo County District Clerks Reviewed By: Monica Valdez 1317 E. Quebec Avenue McAllen, Texas 78503 (956) 618-0115 FAX: (956) 618-0445 Email: la w@va lleyfirm .com ATTORNEYS FOR DEFENDANTS, McALLEN HOSPITALS, L.P. D/B/A McALLEN MEDICAL CENTER, SOUTH TEXAS HEALTH SYSTEM, and McALLEN MEDICAL CENTER, INC. CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the above and foregoing document has been forwarded to attorney for Plaintiffs via certi led mail, return receipt requested, and all other counsel via regular mail, on this 31st day b r, 2 ,g~ F:\data\WPDOCS\G\Gonzalez, R. v. MMC 21.165\mtn-for-protection.km.wpd -5 -