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How Far Can Defendants Use Plaintiffs’ 120-day Reports?

by Pei-Chih Lee, JD, MPH on December 29th, 2011

The Fourteenth Court of Appeals recently published an opinion, In re Alere Women’s & Children’s Health, LLC, addressing CPRC 74.351(k) and the use of 120-day expert reports by defendants.

A week prior to trial in this nursing malpractice case, Plaintiff filed a motion to strike all of Defendant’s liability and causation experts claiming that Defendant had violated 74.351(k) by providing the preliminary 120-day report to its testifying experts. At the hearing, the court expressed concern that Defendant’s experts would refer to the preliminary report in their trial testimony and Defendant acknowledged that if asked whether they had seen the report, all of his experts would admit that they had. The trial court then granted Plaintiff’s motion to strike all eight of Defendant’s testifying experts as a sanction for violating 74.351(k). Defendant filed a mandamus action asserting that the trial court abused its discretion in preventing Defendant from presenting a defense at trial.

CPRC 74.351(k) provides that Plaintiff’s 120-day expert report:

  1. is not admissible in evidence by any party;
  2. shall not be used in a deposition, trial or other proceeding; and
  3. shall not be referred to by any party during the course of the action for any purpose.

In its analysis of 74.351(k), the Court of Appeals noted that the statute does not specifically state that the 120-day expert report may not be reviewed by Defendant’s experts but only prohibits certain uses of the report. Moreover, while the statute is silent regarding penalties or sanctions against defendants for violating 74.351(k), the legislature expressly specifies in 74.351(t) the rights plaintiffs waive if they use the 120-day report for any other purpose other than satisfying the gatekeeping function to maintain a health care liability claim.

However, the Court of Appeals also remarked that, even if they were to accept the contention that Defendant’s experts should not have been permitted to review the 120-day reports, the trial court should have considered lesser sanctions to accomplish the same goal of prohibiting any reference to the 120-day report. Thus, given that there was no showing that the preliminary report had been used in a deposition, trial or other proceeding in the underlying case and no other indication that Defendant’s experts would refer to the 120-day report at trial except if asked by Plaintiff whether they had seen the report, the trial court abused its discretion in imposing this death penalty sanction.

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