The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
IRENE RODRIGUEZ, individually §
and as parent and legal guardian of §
A.R. and B.R., et al., §
§
Plaintiffs, §
§
VS. § Civil Action No. 3:20-CV-0045-D
§
SOUTHERN HEALTH PARTNERS, §
INC., et al., §
§
Defendants. §
MEMORANDUM OPINION
AND ORDER
Plaintiff Irene Rodriguez (“Rodriguez”) brings this lawsuit on behalf of herself and
as parent and legal guardian of her surviving prematurely-born twin, A.R. Plaintiff Maria
Antonia Santos (“Santos”) brings this lawsuit as representative of the estate of B.R.,
Rodriguez’s other prematurely-born twin, who is now deceased. Rodriguez and Santos
(collectively, “plaintiffs”) allege that defendants Southern Health Partners, Inc. (“SHP”),
Grady Shaw, M.D. (“Dr. Shaw”), and Linda Hullett, R.N. (“Hullett”) failed to provide proper
prenatal care to Rodriguez while she was incarcerated as a pretrial detainee at the Navarro
County Jail (the “Jail”). Defendants move for summary judgment and to strike plaintiffs’
designated medical experts. For the reasons that follow, the court grants the motion for
summary judgment as to Rodriguez’s individual claims against Dr. Shaw and otherwise
denies the motion.
I
The court assumes the parties’ familiarity with its prior memorandum opinions and
orders in this case, which recount the background facts and procedural history.1
In a combined, interrelated motion, defendants seek summary judgment and to strike
plaintiffs’ designations of Robert James Carpenter, Jr., M.D. (“Dr. Carpenter”) and Donald
F. Meyn, Jr., M.D. (“Dr. Meyn”) as expert witnesses. Plaintiffs oppose the motion, which
the court is deciding on the briefs, without oral argument.
II
Defendants first contend that they are entitled to summary judgment on the ground
that plaintiffs’ claims against Dr. Shaw are time-barred.2
A
Defendants maintain that any claims against Dr. Shaw expired two years after he
examined Rodriguez, and, because Rodriguez admits that Dr. Shaw only examined her on
December 27, 2017, the applicable two-year statute of limitations ran on these claims on
1See Rodriguez v. S. Health Partners, Inc., 2020 WL 2928486, at *1-2 (N.D. Tex.
June 3, 2020) (Fitzwater, J.); Rodriguez v. S. Health Partners, Inc., 2020 WL 7056336, at *1-
2 (N.D. Tex. Dec. 2, 2020) (Fitzwater, J.).
2Defendants sometimes appear to maintain that this same limitations argument applies
as well to claims against Hullett. But defendants state several times in their motion that they
are only seeking summary judgment based on limitations as to the claims against Dr. Shaw.
In light of these repeated requests for relief that are confined to claims against Dr. Shaw, the
court will only address whether the claims against Dr. Shaw are time-barred. This
interpretation of defendants’ motion is in fact consistent with the rule that “[i]t is error to
grant summary judgment on a ground not raised.” State Farm Fire & Cas. v. Whirlpool
Corp., 2012 WL 2422922, at *2 (N.D. Tex. June 27, 2012) (Fitzwater, C.J.).
- 2 -
December 27, 2019. Defendants posit that this lawsuit, filed on January 8, 2020, is too late
with respect to the claims against Dr. Shaw.
Plaintiffs rely on three arguments in response. First, they contend that the date on
which Dr. Shaw allegedly committed the tort in question is not readily ascertainable: Dr.
Shaw commenced a course of treatment for Rodriguez that lasted many days, and the statute
of limitations did not actually expire until January 9, 2018.
Second, plaintiffs posit that Texas law provides that the statute of limitations is tolled
when adequate pre-suit notice is provided to the defendant. According to plaintiffs, they
gave such notice, thereby tolling the statute of limitations for a period of 75 days following
delivery of the notice.
Third, plaintiffs maintain that the claims against Dr. Shaw brought on behalf of A.R.
and B.R. are not time-barred because the two-year statute of limitations does not apply to
minors.
B
Because limitations is an affirmative defense, defendants will bear the burden of proof
on this defense at trial. Dennington v. Brinker Int’l Payroll Co., 2010 WL 4352619, at *1
(N.D. Tex. Nov. 3, 2010) (Fitzwater, C.J.). Accordingly, to obtain summary judgment on
this defense, they must “establish ‘beyond peradventure all of the essential elements of the
… defense.’” Bank One, Tex., N.A. v. Prudential Ins. Co. of Am., 878 F. Supp. 943, 962
(N.D. Tex. 1995) (Fitzwater, J.) (quoting Fontenot v. Upjohn Co., 780 F.2d 1190, 1194 (5th
- 3 -
Cir. 1986)).3
C
Defendants maintain that the only statute of limitations that applies to plaintiffs’
claims against Dr. Shaw arises under Tex. Civ. Prac. & Rem. Code Ann. § 74.251 (West
2003), a provision of the Texas Medical Liability Act (“TMLA”). Section 74.251(a)
provides, in relevant part:
no health care liability claim may be commenced unless the
action is filed within two years from the occurrence of the
breach or tort or from the date the medical or health care
treatment that is the subject of the claim or the hospitalization
for which the claim is made is completed; provided that, minors
under the age of 12 years shall have until their 14th birthday in
which to file, or have filed on their behalf, the claim.
The parties do not dispute that § 74.251(a) governs this case.
This statute of limitations begins to run “from one of three possible dates: (1) the
occurrence of the breach or tort; (2) the date the health care treatment that is the subject of
the claim is completed; or (3) the date the hospitalization for which the claim is made is
completed.” Rowntree v. Hunsucker, 833 S.W.2d 103, 104 (Tex. 1992) (citing Kimball v.
Brothers, 741 S.W.2d 370, 372 (Tex. 1987)). “[T]he Texas Supreme Court has repeatedly
held that a plaintiff may not simply choose the most favorable of the three dates.” Karley v.
Bell, 24 S.W.3d 516, 519 (Tex. App. 2000, pet. denied). “Rather, if the date the alleged tort
3Defendants’ motion refers to the standard for evaluating a statute of limitations
defense in the context of a Fed. R. Civ. P. 12(b)(6) motion to dismiss, which differs from the
standard for a motion for summary judgment.
- 4 -
occurred is ascertainable, limitations must begin on that date.” Shah v. Moss, 67 S.W.3d 836,
841 (Tex. 2001) (citing Earle v. Ratliff, 998 S.W.2d 882, 886 (Tex. 1999)).
Texas courts have held that the date of a tort is ascertainable even where the plaintiff
is complaining of the failure to provide treatment, such as follow-up examinations and
testing. For example, in Rowntree the Supreme Court of Texas addressed a “claim that [the
doctor] breached a duty to perform the proper examinations from which he should have
detected [the complained-of injury].” Rowntree, 833 S.W.2d at 108. The court held that “the
statute of limitations began to run on the date of the alleged wrongful act[,]” which was
“ascertainable from the facts of the case” as the last day that the plaintiff visited the doctor’s
office. Id. Other Texas courts have reached similar conclusions, holding that, where a
plaintiff complains of a physician’s omissions rather than affirmative conduct, the date of the
tort is readily ascertainable as the last date on which the physician had an opportunity to act
but did not. See, e.g., Karley, 24 S.W.3d at 521; Husain v. Khatib, 964 S.W.2d 918, 920
(Tex. 1998) (per curiam); Shah, 67 S.W.3d at 845.
The statute of limitations is tolled for 75 days, however, when timely and proper pre-
suit notice of a health care liability claim is given. In an effort to “encourage parties to
negotiate and settle disputes prior to suit,” Hebner v. Reddy, 498 S.W.3d 37, 42 (Tex. 2016)
(emphasis in original) (quoting Tex. W. Oaks Hosp., LP v. Williams, 371 S.W.3d 171, 189
(Tex. 2012)), Texas law “requires anyone asserting a claim under the [TMLA] to provide
written notice by certified mail to ‘each physician or health care provider against whom such
claim is being made at least 60 days before the filing of a suit.’” Id. (quoting Tex. Civ. Prac.
- 5 -
& Rem. Code Ann. § 74.051(a) (West 2003)). “Providing notice of a health care liability
claim will toll the statute of limitations for seventy-five days, if the notice is ‘given as
provided’ in [the TMLA].” Jose Carreras, M.D., P.A. v. Marroquin, 339 S.W.3d 68, 69
(Tex. 2011) (quoting Tex. Civ. Prac. & Rem. Code Ann. § 74.051(c) (West 2003)).
But “[f]or a claim’s notice and authorization form to toll limitations for 75 days under
Section 74.051(c), they must be sent at least 60 days before filing suit and within the normal
limitations period.” Flanigan v. Nekkalapu, 613 S.W.3d 361, 364 (Tex. App. 2020, no pet.).
And “[t]he notice must be accompanied by the authorization form for release of protected
health information as required under Section 74.052.” Tex. Civ. Prac. & Rem. Code Ann.
§ 74.051(a) (West 2003). Section 74.052 provides an authorization form that is to be
completed by a claimant; the law dictates that “[t]he medical authorization required by this
section shall be in the following form[.]” Tex. Civ. Prac. & Rem. Code Ann. § 74.052(c)
(West 2003).
D
1
Defendants contend that the ascertainable date on which Dr. Shaw allegedly breached
a duty owed to plaintiffs was December 27, 2017, so any claims against him were time-
barred as of December 28, 2019. According to defendants, because the plaintiffs filed this
lawsuit on January 8, 2020, plaintiffs cannot prevail on these claims. Plaintiffs’ first
responsive argument is that the date on which the tort occurred is not ascertainable, so the
statute of limitations began to run on January 9, 2018, when Dr. Shaw ceased treating
- 6 -
Rodriguez. This is true, plaintiffs contend, because “[Dr.] Shaw breached the standard of
care when he failed to follow up on [Rodriguez’s] high-risk pregnancy of which he had
actual notice” and “his responsibility to [Rodriguez] was ongoing until she was no longer his
patient[.]” Ps. Resp. Br. (ECF No. 105) at 28.
Plaintiffs’ argument is foreclosed by Texas law. As discussed above, several Texas
courts—including the Supreme Court of Texas—have held that where the plaintiff complains
of a doctor’s failure to provide certain types of treatment, the date of the tort is ascertainable
and is typically the last time that the doctor examined or otherwise visited with the plaintiff.
Plaintiffs allege that Dr. Shaw failed to adequately follow-up with Rodriguez and provide
ongoing care. This is the precise type of conduct involved in cases such as Rowntree.
Accordingly, the date on which the statute of limitations began to run was the last date that
Dr. Shaw examined Rodriguez. Rodriguez admits that the only time that Dr. Shaw saw her
was on December 27, 2017.
Plaintiffs’ reliance on the Supreme Court of Texas’ decision in Chambers v. Conaway,
883 S.W.2d 156 (Tex. 1993), is misplaced. In Chambers the court held that the physician
whom the plaintiff claimed failed to provide treatment conforming with the applicable
standard of care had failed to establish that the statute of limitations barred the suit against
him. Id. at 159. But the physician in Chambers saw the plaintiff several times, and the court
concluded that the statute of limitations began to run from the last day on which the
physician met with the plaintiff. Id. at 158. Accordingly, Chambers does not undermine this
court’s conclusion in the present case.
- 7 -
2
Plaintiffs next contend that the statute of limitations should be tolled under Tex. Civ.
Prac. & Rem. Code Ann. § 74.051(a). They maintain that they gave notice in compliance
with § 74.051(a) and that the statute of limitations was therefore tolled for 75 days pursuant
to § 74.051(c). The court disagrees.
Defendants have established that the notice letter—which all parties agree is the only
form of notice sent to defendants—is deficient. It was not sent at least 60 days before suit
was filed, as Texas law requires. See Flanigan, 613 S.W.3d at 364; see also Tex. Civ. Prac.
& Rem. Code Ann. § 74.051(c) (West 2003). Accordingly, defendants have established
beyond peradventure that the statute of limitations was not tolled as to Rodriguez’s claims
against Dr. Shaw.4
3
Plaintiffs’ final opposition argument is that the two-year statute of limitations
prescribed by § 74.251 does not apply to any claims brought on behalf of A.R. and B.R.
because they were minors when this suit was filed.
A Texas court of appeals has held that § 74.251 “as applied to minors … is
unconstitutional under the open courts provision contained in article I, section 13 of the
Texas Constitution.” Adams v. Gottwald, 179 S.W.3d 101, 103 (Tex. App. 2005, pet.
4Defendants also maintain that the notice was deficient because it was not
accompanied by a full list of plaintiffs’ medical treatment providers, as required by statute.
The court need not address this argument because defendants have established that the notice
was deficient in another way.
- 8 -
denied). If § 74.251 nevertheless governs the instant case, then A.R. and B.R., as “minors
under the age of 12 years,” would have had “until their 14th birthday in which to file, or have
filed on their behalf, the claim.” Tex. Civ. Prac. & Rem. Code Ann. § 74.251(a) (West
2003). But if § 74.251 in fact violates the Texas constitution when applied to minors, then
a different provision of Texas law would provide that the statute of limitations was tolled
until their 18th birthday. See Montalvo v. Lopez, 466 S.W.3d 290, 293 (Tex. App. 2015, no
pet.) (citing Tex. Civ. Prac. & Rem. Code Ann. § 16.001 (West 2002)). The claims brought
on behalf of A.R. and B.R. fall squarely within either potentially applicable statute of
limitations, and, therefore, are not time-barred.5
E
Defendants have established beyond peradventure that Rodriguez’s individual claims
against Dr. Shaw are time-barred. Accordingly, defendants’ motion for summary judgment
is granted in this respect. Defendants have failed, however, to show that the claims against
Dr. Shaw brought on behalf of A.R. and B.R. are likewise time-barred. Thus the motion for
summary judgment is denied as to those claims.
III
Defendants next move for summary judgment on the ground that plaintiffs have failed
to designate expert witnesses qualified under Fed. R. Evid. 702 and Tex. Civ. Prac. & Rem.
5Defendants argue in their reply brief that there are no claims asserted against Dr.
Shaw on behalf of A.R. and B.R. But this argument ignores significant portions of the third
amended complaint that clearly appear to contain allegations made on behalf of A.R. and
B.R. against Dr. Shaw. See, e.g., 3d Am. Compl. (ECF No. 81) at ¶¶ 131, 133-36, 144.
- 9 -
Code Ann. § 74.401 (West 2003) to testify to the standard of care that Dr. Shaw and Hullett
should have provided to Rodriguez and her twins.
A
Defendants contend that Drs. Carpenter and Meyn are not qualified to testify because
they have not been trained to practice medicine in a correctional setting. Defendants also
maintain that Drs. Carpenter and Meyn do not possess the knowledge and training necessary
to testify because they practice in different specialties from Dr. Shaw and nothing in their
backgrounds qualifies them to testify to Hullett’s obligations as a nurse.
Plaintiffs respond that experts need not practice in the same specialty or setting to
provide relevant, helpful, and reliable opinions. They maintain that doctors can testify to the
standards of care applicable to nurses so long as the doctors are familiar with the standards.
Plaintiffs therefore contend that they have designated expert witnesses whose testimony
adequately establishes the applicable standards of care, deviation from those standards,
causation, and damages.
B
Under both federal and Texas law, plaintiffs bear the burden of establishing that the
testimony of their expert witnesses is admissible. See Daubert v. Merrell Dow Pharm., Inc.,
509 U.S. 579, 592 n.10 (1993) (federal law); see also Baylor Univ. Med. Ctr. v. Biggs, 237
S.W.3d 909, 915 (Tex. App. 2007, pet. denied) (Texas law). Although the standards applied
to determine the admissibility of particular expert testimony are procedural, so the federal
standards typically control in federal court, “[i]t is well-established that a state’s evidentiary
- 10 -
rules can have substantive aspects in certain types of cases.” Coleman v. United States, 912
F.3d 824, 832 (5th Cir. 2019) (citing Conway v. Chem. Leaman Tank Lines, Inc., 540 F.2d
837, 839 (5th Cir. 1976)). And under Fed. R. Evid. 601, state evidentiary rules regarding
witness competence are pertinent when state law provides the rule of decision in a case. Id.
Thus in order to provide admissible testimony for purposes of establishing the standard of
care applicable to plaintiffs’ state-law claims, an expert must “satisfy both Rule 601’s
competency requirements (which in the instant case incorporate the requirements of Texas’s
Section 74.401) and Rule 702’s expert witness admissibility requirements.” Id. at 833.6
C
The court first addresses whether the proposed expert testimony should be admitted
under Rule 702.
1
Under Rule 702, “[t]he court may admit proffered expert testimony only if the
6This rule likely does not apply to plaintiffs’ federal claims brought under 42 U.S.C.
§ 1983. See Coleman, 912 F.3d at 832. A plaintiff asserting a claim under § 1983 is not
required to establish, via expert testimony, the applicable standard of care as a threshold
issue, because a medical malpractice claim brought under state law is wholly distinct from
a constitutional violation. See, e.g., Bass v. Sullivan, 550 F.2d 229, 231 (5th Cir. 1977);
Pierson v. Gonzales, 73 Fed. Appx. 60, 60 (5th Cir. 2003) (per curiam). Indeed, proof of
medical malpractice alone is insufficient to prove a violation of the United States
Constitution. See, e.g., Varnado v. Lynaugh, 920 F.2d 320, 321 (5th Cir. 1991).
Accordingly, even if the court agreed with defendants’ argument that the expert testimony
proffered by plaintiffs is not sufficient to satisfy the burden established by Texas law, this
conclusion would not be dispositive of plaintiffs’ federal claims. But because the court
concludes that the expert testimony in question comports with both federal and state
standards of admissibility, the court need not resolve this issue in deciding the instant motion.
- 11 -
proponent, who bears the burden of proof, demonstrates that (1) the expert is qualified, (2)
the evidence is relevant to the suit, and (3) the evidence is reliable.” Nunn v. State Farm
Mut. Auto. Ins. Co., 2010 WL 2540754, at *2 (N.D. Tex. June 22, 2010) (Fitzwater, C.J.)
(citing Kumho Tire Co. v. Carmichael, 526 U.S. 137, 147 (1999)).
The first requirement is that the expert be qualified. “Before a district court may
allow a witness to testify as an expert, it must be assured that the proffered witness is
qualified to testify by virtue of his ‘knowledge, skill, experience, training, or education.’”
United States v. Cooks, 589 F.3d 173, 179 (5th Cir. 2009) (quoting Rule 702). “Rule 702
does not mandate that an expert be highly qualified in order to testify about a given issue.
Differences in expertise bear chiefly on the weight to be assigned to the testimony by the trier
of fact, not its admissibility.” Huss v. Gayden, 571 F.3d 442, 452 (5th Cir. 2009) (citation
omitted).
The second requirement is that the expert’s testimony be relevant. To be relevant,
“expert testimony [must] ‘assist the trier of fact to understand the evidence or to determine
a fact in issue.’” Pipitone v. Biomatrix, Inc., 288 F.3d 239, 244 (5th Cir. 2002) (quoting
Daubert, 509 U.S. at 591). “Relevance depends upon ‘whether [the expert’s] reasoning or
methodology properly can be applied to the facts in issue.’” Knight v. Kirby Inland Marine
Inc., 482 F.3d 347, 352 (5th Cir. 2007) (quoting Daubert, 509 U.S. at 593); see also Rule
702(d) (requiring that “expert has reliably applied the principles and methods to the facts of
the case”).
The third requirement is that the expert’s testimony be reliable. “Reliability is
- 12 -
determined by assessing ‘whether the reasoning or methodology underlying the testimony
is scientifically valid.’” Knight, 482 F.3d at 352 (quoting Daubert, 509 U.S. at 592-93); see
also Rule 702(c) (requiring that “testimony [be] the product of reliable principles and
methods”). This review is typically conducted by considering the five non-exclusive
Daubert factors.7 But these factors “may or may not be pertinent in assessing reliability,
depending on the nature of the issue, the expert’s particular expertise, and the subject of [the]
testimony.” Kumho, 526 U.S. at 150.
The burden is on the proponent of the expert testimony to establish its admissibility
by a preponderance of the evidence. See Daubert, 509 U.S. at 592 n.10. The inquiry is
flexible in that “[t]he relevance and reliability of expert testimony turns upon its nature and
the purpose for which its proponent offers it.” United States v. Valencia, 600 F.3d 389, 424
(5th Cir. 2010) (citation omitted). “As a general rule, questions relating to the bases and
sources of an expert’s opinion affect the weight to be assigned that opinion rather than its
admissibility and should be left for the [trier of fact’s] consideration.” Viterbo v. Dow Chem.
Co., 826 F.2d 420, 422 (5th Cir. 1987).
2
Applying the Rule 702 framework to the instant case, the court must first determine
7The five nonexclusive Daubert factors are: (1) whether the expert’s technique can
be or has been tested; (2) whether the method has been subjected to peer review and
publication; (3) the known or potential rate of error of a technique or theory when applied;
(4) the existence and maintenance of standards and controls; and (5) the degree to which the
technique or theory has been generally accepted in the scientific community. Daubert, 509
U.S. at 593-94.
- 13 -
whether Drs. Carpenter and Meyn are qualified. Their curricula vitae are extensive and show
that both have undergone several years of training in a relevant field. Dr. Carpenter is board
certified in obstetrics and gynecology, has taught courses in obstetrics and gynecology, and
has published several articles on topics related to obstetrics and gynecology. He is a
reviewer for several relevant academic journals, has served on a number of related
committees, and currently practices medicine in the area of obstetrics and gynecology.
Dr. Meyn is board certified in general pediatrics and in neonatal-perinatal medicine.
He also completed several post-doctoral training programs in pediatrics and neonatology, and
he has published and presented research in these fields. He has practiced neonatology since
2006 and presently practices with a company that provides neonatology services.
Accordingly, both experts are qualified to opine on the issues involved in this case, such as
the standard of care that should be exercised when treating a patient who is pregnant with
twins and displaying signs of imminent labor.
The second factor the court must consider is whether the experts’ testimony will be
relevant. Because they intend to testify to critical issues in this case, such as standard of care,
it is clear that the testimony is relevant.
The third factor is whether the testimony is reliable. The reasoning and methodology
that Drs. Carpenter and Meyn have employed are of a kind used repeatedly in medical
malpractice cases. The doctors testified in their depositions that they reviewed the medical
records of the plaintiffs and relied on their training and knowledge to reach certain
conclusions about the treatment that defendants administered. Because “questions relating
- 14 -
to the bases and sources of an expert’s opinion affect the weight to be assigned that opinion
rather than its admissibility,” Viterbo, 826 F.2d at 422, the court concludes that their
deposition testimony is sufficient to establish that their opinions are admissible. “Vigorous
cross-examination, presentation of contrary evidence, and careful instruction on the burden
of proof are the traditional and appropriate means of attacking shaky but admissible
evidence.” Daubert, 509 U.S. at 596. Those tools remain available to defendants at trial.
Accordingly, the court holds that the testimony of Drs. Carpenter and Meyn is admissible
under Rule 702.
D
The court next turns to the question whether the expert testimony of Drs. Carpenter
and Meyn is admissible under Texas law.
1
In Texas, the plaintiff bears the burden of establishing the standard of care applicable
to the defendant-doctor “as a threshold issue before the factfinder may consider whether the
defendant breached that standard of care to the extent it constituted negligence.” Hannah v.
United States, 523 F.3d 597, 601 (5th Cir. 2008) (citing Quijano v. United States, 325 F.3d
564, 567 (5th Cir. 2003)). “Unless the mode or form of treatment is a matter of common
knowledge or is within the experience of the layman, expert testimony will be required” to
satisfy this burden. Hood v. Phillips, 554 S.W.2d 160, 165-66 (Tex. 1977).
- 15 -
Under Texas law,
[e]xperts are qualified to opine on the applicable standard of
care if they (1) are practicing medicine at the time they give the
opinion or were practicing medicine when the claim arose; (2)
have knowledge of the acceptable medical standards in the
diagnosis, care, or treatment of the condition involved in the
claim; and (3) are qualified on the basis of training or experience
to opine as an expert on those standards.
Morrison v. Asamoa, 648 S.W.3d 628, 644 (Tex. App. 2022, no pet.) (citing Tex. Civ. Prac.
& Rem. Code Ann. § 74.401(a) (West 2003)). Experts are “qualified on the basis of training
or experience,” as a matter of law, “if they are (1) board certified or have other substantial
training or experience in an area of medical practice relevant to the claim and (2) actively
practicing medicine in rendering medical care relevant to the claim.” Id. (first citing
Granbury Minor Emergency Clinic v. Thiel, 296 S.W.3d 261, 266 (Tex. App. 2009, no pet.)
and then citing Tex. Civ. Prac. & Rem. Code Ann. § 74.401(c) (West 2003)).
Texas law “does not focus on the defendant doctor’s area of expertise but on the
condition involved in the claim.” Thiel, 296 S.W.3d at 267. In other words, “the applicable
‘standard of care’ and an expert’s ability to opine on it are dictated by the medical condition
involved in the claim and by the expert’s familiarity and experience with it, not by the
defendant doctor’s area of expertise.” Id. (citing McKowen v. Ragston, 263 S.W.3d 157, 162
(Tex. App. 2007, no pet.); see also Blan v. Ali, 7 S.W.3d 741, 746 (Tex. App. 1999, no pet.)
(admitting proffered expert testimony from a neurologist regarding standard of care
applicable to emergency room hospitalist). Where the subject matter of the expert testimony
“is common to and equally recognized and developed in all fields of practice, any physician
- 16 -
familiar with the subject may testify as to the standard of care.” Blan, 7 S.W.3d at 745-46
(citing Garza v. Keillor, 623 S.W.2d 669, 671 (Tex. App. 1981, writ ref’d n.r.e.)). Thus an
expert “need not be a specialist in the particular area of the profession for which testimony
is offered.” Owens v. Handyside, 478 S.W.3d 172, 185 (Tex. App. 2015, pet. denied).
Additionally, “[a] physician is qualified to testify as an expert regarding whether a
nonphysician healthcare provider [such as a nurse] departed from the accepted standards of
care” so long as there is a basis to conclude that the expert is familiar with the standard of
care for both nurses and doctors. Harvey v. Kindred Healthcare Operating, Inc., 578 S.W.3d
638, 647 (Tex. App. 2019, no pet.); see also Baylor Med. Ctr. at Waxahachie, Baylor Health
Care Sys. v. Wallace, 278 S.W.3d 552, 559 (Tex. App. 2009, no pet.).
2
Defendants do not challenge the general medical qualifications of Drs. Carpenter and
Meyn. For example, defendants do not suggest that Drs. Carpenter and Meyn are not
actively practicing medicine, as the statute requires. And as already discussed, the curricula
vitae and depositions of Drs. Carpenter and Meyn establish that they possess adequate
knowledge, training, and experience to opine on the condition involved in the instant case.
Defendants’ primary contention is that the testimony of Drs. Carpenter and Meyn is
inadmissible under § 74.401 because they lack experience in a correctional setting. But this
is primarily an objection to the weight to be given to their opinions, which is a question for
the jury to decide as trier of fact, rather than to the admissibility of their testimony.
An expert need not specialize in the same area as the defendant-doctor in order to
- 17 -
provide relevant, admissible testimony. See Owens, 478 S.W.3d at 185. What matters is
whether the expert is familiar with the condition at issue. Thiel, 296 S.W.3d at 267. It
certainly appears from the credentials of Drs. Carpenter and Meyn that they would be
familiar with twin pregnancies and imminent preterm labor, the conditions involved in this
case. And they are both board certified in an area of practice relevant to the instant case:
namely, obstetrics and gynecology and neonatology, respectively.
And Texas courts have previously allowed testimony from experts who practice in
settings markedly different from the one in which the plaintiff’s injury occurred. See, e.g.,
Blan, 7 S.W.3d at 746. Texas law clearly provides that the critical factor is the expert’s
familiarity with the medical condition involved, which plaintiffs have established that Drs.
Carpenter and Meyn have.
Finally, both Drs. Carpenter and Meyn have experience working with nurses,
overseeing the work of nurses, and contributing to some extent to the training of nurses.
Plaintiffs have proved that both are familiar with the standards of care applicable to nurses
in their respective fields of medicine. Therefore, Drs. Carpenter and Meyn are qualified to
testify to the standard of care to which Hullett was expected to adhere in the instant case.
E
The expert testimony that plaintiffs intend to offer from Drs. Carpenter and Meyn
comports with both federal- and state-law standards of admissibility. Accordingly,
defendants’ motion to strike the expert designations of Drs. Carpenter and Meyn is denied,
as is defendants’ motion for summary judgment to the extent it is based on the ground that
- 18 -
plaintiffs have failed to adduce expert testimony establishing the relevant standard of care.
ok * ok
For the reasons explained, the court grants defendants’ motion for summary judgment
with respect to Rodriguez’s individual claims against Dr. Shaw and otherwise denies
defendants’ motion for summary judgment and to strike plaintiffs’ expert witness
designations.
SO ORDERED.
August 16, 2023.
if 4
AA, AS eo AY HA AA L A
DNBY A. FITZWATERS
SENIOR JUDGE
-19-