allegations of breach of standard of care and causation within one hundred twenty days after the filing of the defendant's chance if an expert were meeting the requirements of the statute is not fil d the statute mandates dismissal with prejudice of the complaint the primary issue in this case is whether this statute which the texas legislature itself described as one of the quote procedural court precedent on the plug ability of state procedural statutes in federal court and we urge the court to adopt the reasoning of the many different courts that have considered this issue this precise issue and found that section seventy four point in the two thousand and ten case of shady grove orthopaedic associates versus allstate the u s supreme court ruled that a new york statute prohibiting the use of class actions to enforce statutory penalties conflicted with the permissive scope of rule twenty three and this could not be applied in federal court similarly a few decades before in a case called burlington northern railroad versus woods the supreme court held that in alabama statute imposing a mandatory ten percent penalty for an unsuccessful appeal of money judgment could not be lead to a problem the problem in the so what case deal or something like that well i want to quote from the burlington northern case that i just cited the court said the test is not whether the rule affects a litigant it's a substantive rights most procedural rules do but whether it governs the manner and means by which it was forced and clearly the statute the texas statue in question governs the manner in means in or you're out early in the game and the fact that it allows the court to dismiss it is about a separate division get and will not know your honor i disagree that it's substantive i don't think the texas legislature has the authority to tell the federal courts how to manage their dockets and how to control the practice the texas of the statute conflicts with multiple federal rules that which controls the pacing of discovery and the disclosure of expert reports and ruled thirty seven which deals with sanctioning sanctions available for improbably havior improper conduct an our interests are protected by that but if you do look at the purpose of the statute it's that purpose is served by federal rule level so there's no need for the application of the texas state that you don't apply the siege of the difficulty isn't on determining which is which and i understand that but look at this case and the way the motion was phrased it was a motion to dismiss but it was a motion to dismiss bought filed after the answers lie which will twelve says you can't do so the question is is this you know what animal is this dismissal in federal court i think that that supports or argument that that this case of government one procedural rules of the of the hospital also engaged in his own independent analysis and included and concluded that the texas snatch you cannot apply judge rosenthal no relation from houston  fit of merit in architectural liability practices and the judge just rosenthal decided to put that statute to could not be applied in federal court and finally in a decision that was issued by judge fish of the northern district just three days after judge so lisa's decision that we hear about called ungenerous is money bashing judge fish again called chapman versus united states in dismissing in finding the statute of political but that case involved other was leaning or other defects in addition to the failure of this pro it's almost as if the assertion is being made that if it's not because you're here on the you're here under that related to bankruptcy jurisdiction so you're not here under diversity but it seems to me that to adopt that position that you don't make an eerie analysis would be that you just throw up the federal rules of civil procedure and go but i guess we'd use the texas state court route if the court has expressed some confusion about that argument it i will say that there are in our brief a reply brief we responded that there have been several cases that have said regardless of the basis of federal jurisdiction the federal rules of civil procedure ply so and there's a case in my exxon valdez from the ninth circuit which is a bankruptcy case which says we apply state substantive law but we apply federal procedural rules and i think that's the import of the cases that baylor cites in the district court cites the raleigh case the the disk report also did not acknowledge the pandora's box opened by its decision as judge sparks noted in the course of versus scott and white case and quoted that conference in this go over the dates with us how many days lapse between the following of the answer and the scheduling conference in this case approximately i don't have that figure here how many days how many medical report within one hundred twenty days yes and that all lying behind the law is that what it is that's sandbagging that's what i called it in our brief that's our second point which is that there was a wave and one district judge did accept clearly that's clue the purpose and that's when you look at the context of this case which involves a discussion because it may be that maybe it could be argued that when you do a scheduling order you're supposed to be forthright and include the things that need to be accomplished and by the fact that you don't even suggest this medical reports got to be filed within one hundred twenty days maybe that's not complying with with the overall theme of the of civil procedure well that that certainly would be our position and we we think that will sixteen acquirers that it be up front and not that you know in any and a included in the scheduling order no mention was made then of the need for this be all do all end all medical report required within one hundred twenty five well your honor i think no one just answered my question i disagree respectfully your honor the original complaint in this case that the plaintiffs indicated that they were fully aware of chapter seventy four in its requirements they comply with a new statute and gave notice under chapter seventy four also not addressing the scheduling order your honor would be anything that has to do with the statute of limitations for example well does the scheduling mortar concern exchange of the expert report not where a lot of the cases haven't really gone to discuss they serve two different focuses the section seventy four three fifty one report is report that goes to show whether the claim has merits it is a report that cannot be used in any trial proceeding it cannot even be referenced under the statute by party it cannot be used in a deposition and it only has to address through the federal court exchange expert you're talking about what's required of this texas that you're asking you about the normal medical malpractise expert witness reports they're  exchanged for depositions and such are in federal court isn't there a isn't there a time limit for that in this schedule in order what's the one of expert one of the expert reports to be exchanged in the scheduling order there was a provision for that it was i believe to be conducted in september or october of two thousand and fourteen and so baylor and the other lawyer the lawyer for baylor in the other signed off on this scheduling report without saying to the magistrate judge when i wait a minute they've also got another duty here to provide this texas report the schedule in other words they misled the magistrate judge arguably i respectfully disagree you are well i would hope you would but that's you know on the face of it that's what it is lying behind the log here are everything that was required to be disclosed under rule twenty six is included in the ma'am if you wanted an expert report within one hundred twenty days that should have been in the schedule in order not not going through this facade of we're going to exchange medical reports with that reminding that match a judge before anything else can happen here we ahead with your argument thank you your honor it section seventy four three fifty one is texas substantive and procedural rules that are bound up with the texas medical liability act that was same cases aren't applying the erie analysis they're looking at in the bankruptcy in a related to bankruptcy proceeding you apply the substantive law the state and the federal rules of procedure and that is in our brief we cited to raleigh and we decided to the the but in our case so in those cases they're not applying the erie diversity some strict analysis that you will see in the diversity of jurisdiction law of texas in looking at how the substantive laws applied you're going to work at various principles you're going to look at what is the state law best atomic by the statute the highest court of the state you're going to look at where the  frivolous the frivolous type meeting under rule eleven is different than a what has been referred to in texas cases of frivolous medical malpractise kline under rule eleven standard you're looking at a basis pleading that is substantiated by a qualified expert on a single liability theory and then it would be frivolous in the context of section seventy four three fifty one and the way that the texas supreme court has interpreted that statute and that is what we need to look at when we're looking at what the substance of the law is what has the to the what is the law of the state and the texas supreme court says this is what we do to determine it could your honor but the texas substantive law looks to you if you have to go back and look to interpret ng rule twenty six by looking at does it not whether it leaves no room for the operation of twenty six but two where the state and the federal rule can operate simultaneously here the fit the federal rule twenty six is and typically in most cases is not going to that report is never going to be subsections t then says that if the plaintiff uses it for some reason the defendant is not precluded from then going back to use it to be pretty hard for him not to refer to the point i'm sorry i don't understand your question wouldn't wouldn't apply now for nana refer to them to the report of his own doctor typically in state practice there is no way to know whether the the one hundred twenty day report will be the report that's going to be used by testifying expert that's not the purpose of this report under the texas way that the term frivolous is used with respect to rule eleven federal court pleadings and the expert report requirement whether a case is meritorious there are those are different they're not the same fr list definition that a debt a frivolous not it claim is a non meritorious klein that's the way the texas supreme court has referred to it i but what about the that those don't conflict your honor is because again you have to go back and look at the fact that this report is not going to be used by a textbook that the intent is it's not going to be used by a testifying expert it only has to address a single liability theory whereas a rule twenty six report has true dress every opinion on every theory or the expert then under rule thirty seven any other theory would be just  report and if you don't you know functions are going to be imposed it seems to me there's a vast difference in the two results for the failure to comply with the the court would have the discretion under rule eleven i'm sorry in the rules ninety seven to the sash and a sanction for failing to disclose all the opinions in a rule twenty six report but are you know for if the report was arguably you know him an adequate or too vague or just not definitive enough if it's not definitive enough the court the court can and there is a provision in the statute that would allow the court the discretion to of expert reports i'm sure there is with respect to all the requirements of federal rule twenty six i see that my time is up and my colleague has not been able to address the court with respect to the waiver argu experts that complied with rule twenty six eight two and it required the defendants to also file their experts thirty days or so later that complied specifically with federal rule of civil there is a date for filing rule twenty six expert reports what what what no i thought you read me about medical reports well these are expert reports there is this there is no differentiation is no selectivity right when  room now this case one of them is silent about that and let me address that point i was one of the attorneys that was present in this conference we conferred and discussed the matters that the court asked us for our input about in other words that the court said we want your proposals about certain dates and certain deadlines and we complied with that in our state practice you aware of this texas statute for acquiring this one hundred twenty day  to i absolutely mention it to the magistrate judge we typically don't mention those things to the magistrate judge because they are established by substantive law and really have nothing to do with the schedule that the court establishes a critical report  it is an expert report but it is not a expert report regarding a testifying witness it's a special category it's a specific to different animals and if i may be right or the scheduling order also way maybe if you judge he would have said well then we're going to just suspend all discovery and all proceedings until that report is filed maybe that would help with scheduling which is the whole point of this having the scheduling conferences and scheduling orders to try to make the litigation more official and economical and put some teeth into rule one of the rules of civil procedure well it actually b d reasonable completion why would you want to do any discovery if if they've got to file this medical report and once they file that then your discovery can be more expeditious and economical well we felt your honor that proceeding with the sky every when we did you know for the timing of discovery that is a procedural argument and i would not have felt comfortable coming to the district court with my obligations under rule thirteen i would not have felt comfortable coming to the court the same way judge the texas statute tells you a federal district judge how do you have to manage the timing of discovery i don't believe that's where you would put it you would have simply said your honor and infecting the scheduling order we need to consider the import of this this medical report with one hundred twenty days now how would you like for us to work that into the scheduling order so that this is more economical and efficient and your honor we don't do that in the state court cases so i don't care of well i do care what you do in and we have a deadline for adding new parties that was decided without regard to the fact that the statute of limitations is a different date so that they were at that's an example of the kind of substance is a deadline that's estab by law that in practice we just don't communicate to the courts because we never have to and so it was not a matter of trying to hide this chapter seventy four because as counsel has indicated in the plaintiff's initial complain they said we are bringing this action person up to chapter seventy four the texas civil practicing remedies code and both defendants in our answers we said we invoke the provisions of the chapter of chapter seven for the texas civil practice remedies t that was a surprise to no one except this court when the waiver is right is ways for the first time here on appeal it was never submitted to the district court and we believe it was improper it's not actually proper for th based on this plethora of authority is that the the disclosure requirements don't apply in federal court i mean maybe you ought to start mentioning that it's good to in conference as well well that that practice would be advisable if this court were to hold it is a pluggable in federal court but if it's not a political as we contend that would remove the issue let  me let me correct something i said before i don't know when whether the depositions were taken before the scheduling order or not because i was depending on represents the representations of counsel that the depositions aren't in the record but i do know that there were three depositions taken before the motion to dismiss was filed that's referenced in in the pleadings on both sides so the depositions discovered was taken before you didn't read that point district court oh yes we did your honor and seventy four whatever it's called there's a precise citation to the record of where we made that argument in the iraq library and grab it if i need to there is a citation to the record where we actually did disclosure to interlocutory appeal and again it's a question of how far can the texas court still legislature go in dictating procedures of the that can be applied in federal court i think of this case there were questions about when the next book reports were provided and in fact on december fifteenth two thousand and fourteen was when the plaintiffs pursuant to the schedule under  untimely under the scheduling order designated witnesses and produced reports extensive reports and and and depositions were taken and that that just proves that the purpose of the statute is not fulfilled by by the terminations of this case based on litigation that occurred before that time so we respectfully pray that the judgment be reversed in the case be reman