No. 03-14-00765-CV

IN THE COURT OF APPEALS FOR THE THIRD DISTRICT OF TEXAS 

AUSTIN, TEXAS 

 

NANCY JO RODRIGUEZ, 

Appellant, 

vs.

THE WALGREENS COMPANY AND SARA ELIZABETH MCGUIRE, 

Appellees 

 

On Appeal from the 419th Judicial District Court of Travis County, Texas 

Trial Court Cause No. D-1-14-GN-000903 

The Honorable Gus J. Strauss, Judge Presiding 

 

BRIEF FOR APPELLANT

 

L. Todd Kelly 

Texas Bar No. 24035049 

The Carlson Law Firm, P.C. 

11606 N. IH-35

Austin, Texas 78753

Tel. 512-346-5688 

Fax 512-719-4362 

Tkelly@carlsonattorneys.com 

Counsel for Nancy Jo Rodriguez 

ORAL ARGUMENT REQUESTED 

ACCEPTED

03-14-00765-CV

4240890

THIRD COURT OF APPEALS

AUSTIN, TEXAS

2/22/2015 3:07:21 PM

JEFFREY D. KYLE

CLERK

 FILED IN 3rd COURT OF APPEALS AUSTIN, TEXAS 2/23/2015 3:07:21 PM JEFFREY D. KYLE Clerk
2

IDENTITY OF PARTIES AND COUNSEL

Pursuant to Texas Rule of Appellate Procedure 38.1(a), Appellant Nancy Jo 

Rodriguez provides the following complete list of all parties and counsel to the 

trial court’s order that forms the basis of this appeal:

Nancy Jo Rodriguez

Appellant

The Walgreen Company

Sara Elizabeth McGuire

Appellees

L. Todd Kelly

Texas Bar No. 24035049

The Carlson Law Firm, P.C.

11606 N. IH-35

Austin, Texas 78753

Telephone: 512-346-5688

Facsimile: 512-719-4362

Tkelly@carlsonattorneys.com

Trial and Appellate Counsel for Plaintiff Nancy Jo Rodriguez

Cynthia Day Grimes

State Bar No. 11436600

Strasburger & Price, LLP

2301 Broadway

San Antonio, Texas 78215

Telephone: 210-250-6000

Facsimile: 210-250-6100

Cynthia.Grimes@strasburger.com

Trial Counsel for Appellees The Walgreens Co. And Sara Elizabeth 

McGuire

Judith R. Blakeway
3

Strasburger & Price, LLP

State Bar No. 02434400

2301 Broadway

San Antonio, Texas 78215

Telephone: 210-250-6000

Facsimile: 210-250-6100

Judith.Blakeway@strasburger.com

Appellate Counsel for The Walgreen Co. and Sara Elizabeth McGuire

Chris Knudsen

Texas Bar No. 24041268

Nicole Andrews

Texas Bar No. 00792335

Serpe Jones Andrews Callender & Bell, PLLC

2929 Allen Parkway, Suite 1600

Houston, Texas 77019

Telephone: 713-452-4400

Facsimile: 713-452-4499

cnudsen@serpejones.com

nandrews@serpejones.com

Counsel for Vivek Goswami, M.D. and Austin Heart, PLLC (not parties to 

this appeal)

Missy Atwood

Texas Bar No. 01428020

Germer Beaman & Brown, PLLC

301 Congress Avenue, Suite 1700

Austin, Texas 78701

Telephone: 512-472-0288

Facsimile: 512-472-0721

matwood@germer-austin.com

Counsel for Defendant St. David’s Health Care Partnership (not a party to 

this appeal)
4

TABLE OF CONTENTS

IDENTITY OF PARTIES AND COUNSEL ............................................................2

INDEX OF AUTHORITIES......................................................................................5

STATEMENT OF THE CASE..................................................................................6

ISSUES PRESENTED...............................................................................................6

STATEMENT OF FACTS ........................................................................................7

SUMMARY OF THE ARGUMENT ........................................................................8

ARGUMENT.............................................................................................................9

A. DR. HARDY IS QUALIFIED TO OPINE ON THE ISSUES 

PERTINENT TO THIS CASE...............................................................................11

B. DR. BREALL’S REPORT LINKS NANCY’S CONTINUED 

PRADAXA THERAPY TO HER INJURIES ............................................................14

C. THE TRIAL COURT ABUSED ITS DISCRETION BY 

GRANTING WALGREENS AND MCGUIRE’S MOTION 

TO DISMISS .....................................................................................................17

PRAYER..................................................................................................................19

CERTIFICATE OF COMPLIANCE.......................................................................20

CERTIFICATE OF SERVICE ................................................................................20

APPENDIX

 Trial Court Order ..............................................................................................A

 Statutes..............................................................................................................B
5

INDEX OF AUTHORITIES

CASE LAW

Am. Transitional Care Ctrs. of Texas, Inc. v. Palacios, 46 S.W.3d 873,

878-879 (Tex. 2001) ..........................................................................................10, 17

Blan v. Ali, 7 S.W. 3d 741, 746 (Tex. App. - Houston [14th Dist.] 1999, 

no writ).....................................................................................................................12

Bowie Mem. Hosp. v. Wright, 79 S.W.3d 48, 52 (Tex. 2002).................................17

Broders v. Heise, 924 S.W. 2d 148 (Tex. 1995)......................................................12

Davisson v. Nicholson, 310 S.W.3d 543, 558 (Tex. App.—Fort Worth 

2010, no pet.) ...........................................................................................................14

Packard v. Guerra, 252 S.W.3d 511, 526 (Tex. App.—Houston 

[14th Dist.] 2008, pet. denied) .................................................................................14

STATUTES

Texas Civil Practice and Remedies Code § 74.351.................................9, 14, 16, 17 

Texas Civil Practice and Remedies Code § 74.402.................................................11
6

STATEMENT OF THE CASE

This case involves a claim for damages arising out of medical malpractice

(CR 4). It was originally filed in the 419th District Court of Travis County, Texas. 

Id. The reports of Dr. J. Chad Hardy and Dr. Jeffrey A. Breall were filed and 

served with Plaintiff’s Original Petition on March 26, 2014 (CR 13). Appellees 

The Walgreen Company and Sara Elizabeth McGuire filed Objections to the 

reports of Dr. Hardy and Dr. Breall on May 6, 2014, and later filed a Motion to 

Dismiss based on these objections on September 10, 2014 (CR 64 and CR 212). A 

hearing on Appellees’ objections and Motion to Dismiss and Plaintiff’s 

countermotion for the filing of frivolous objections was held on October 29, 2014

(CR 210). On December 3, 2014, the Honorable Visiting Judge Gus J. Strauss 

signed an order dismissing The Walgreen Company and Sara Elizabeth McGuire

(CR 375). Appellant filed her Notice of Appeal of this order (Supp. CR 3).

ISSUES PRESENTED

1. Dr. J. Chad Hardy, Pharm.D., M.S. is qualified to render an opinion on 

Appellees’ breach of the applicable standard of care, given his statements within

the four corners of his report setting forth his qualifications, together with his 

extensive knowledge and experience in processing and handling prescriptions; and

2. The expert reports of Dr. J. Chad Hardy, Pharm.D., M.S. and Dr. Jeffrey A. 

Breall, M.D., which clearly apprise Appellees of the claims asserted against them 
7

and inform the court that the claims are not frivolous, are sufficient under the 

Texas Civil Practice and Remedies Code when considered in the aggregate.

STATEMENT OF FACTS

On February 10, 2012, 53-year-old Nancy Jo Rodriguez is sent by her 

psychiatrist to Seton Northwest Hospital Emergency Center (Seton) for evaluation 

of confusion. Although Nancy suffers from bipolar disorder and has a history of 

confusion, she is able live independently at this time (see CR 44). While at Seton, 

Nancy is referred to Vivek Goswami, M.D. (Dr. Goswami), a cardiologist with 

Austin Heart, PLLC (Austin Heart). Dr. Goswami treats her for atrial fibrillation 

by placing Nancy on Pradaxa, an anticoagulant or “blood thinner”. Pursuant to the 

medical records relied on by Dr. Jeffrey A. Breall, Nancy is discharged home from 

Seton with instructions to follow-up with David Kessler, M.D. (Dr. Kessler), who 

also practices with Austin Heart. Based on Nancy’s follow-up visit, Dr. Kessler 

orders that her Pradaxa therapy be stopped. 

Pursuant to the records upon which Dr. Hardy relied in forming his opinions, 

including a copy of the image of the prescription filled by Appellees, refills of 

Pradaxa were not signed by any physician. Despite having no authorization to refill 

Nancy’s Pradaxa medication, Appellees continue to refill her prescription for the 

drug (CR 41). Appellees make no effort to protect Nancy, a person with a history 

of confusion and mental health issues, from a potentially dangerous drug known to 
8

have an array of severe side effects (CR 43-44). Due in part to the omissions of 

Appellees, Nancy continues to take Pradaxa over the course of the next 4 months.

On July 2, 2012, Nancy’s son and daughter-in-law find Nancy in her 

apartment, covered in bruises, blood, and feces. Her medical records from Seton 

Northwest indicate she is admitted to the ICU at Seton and diagnosed with severe 

coagulopathy, or a severe impairment of her blood’s ability to clot. She is treated 

for gastrointestinal bleeding, hypotension, and kidney injury (CR 44). Nancy is 

eventually discharged and cared for at Ashwood Assisted Living, an extended-care 

facility (CR 43). Her discharge summary from Seton Northwest indicates her 

primary discharge diagnosis is “1. Acute blood loss anemia secondary to acute 

gastrointestinal bleed secondary to hypercoagulable state while on Pradaxa.” 

SUMMARY OF THE ARGUMENT

The trial court abused its discretion when it dismissed Rodriguez’s claims 

against Appellees The Walgreen Company (Walgreens) and Sara Elizabeth 

McGuire (McGuire). To comply with the requirements of Chapter 74 of the Texas 

Civil Practice and Remedies Code, Rodriguez filed and served the expert reports of 

Dr. J. Chad Hardy and Dr. Jeffrey A. Breall with her Original Petition. Together, 

these reports demonstrate that Walgreens and McGuire breached multiple duties to 

Nancy by continuing to dispense the drug Pradaxa to Nancy without verifying 

whether it should be continued with her physician and despite the fact the 
9

prescribing physician indicated it should be discontinued. Because Nancy 

continued to take Pradaxa, she suffered kidney injury, gastrointestinal bleeding, 

and hypotension which have resulted in her long-term clinical demise.

Dr. Hardy is a licensed pharmacist who is qualified to opine on the standard 

of care applicable to Walgreens and McGuire because of his extensive experience 

in pharmacy operations, including the proper processing and handling of 

prescriptions to ensure patient safety. Dr. Breall, a board-certified cardiologist, 

then opines on the causal relationship between Nancy’s continued Pradaxa therapy 

and her injuries. When these reports are read in the aggregate, it is clear that 

Rodriguez has more than satisfied the requirements of Chapter 74. She has 

apprised Walgreens and McGuire of specific conduct called into question, and she 

has demonstrated that her claims have merit. For these reasons, the trial court 

abused its discretion in granting Walgreens and McGuire’s Motion to Dismiss.

ARGUMENT

Because this is a case involving permanent, devastating damages resulting 

from medical neglect, Rodriguez must meet the procedural requirements of Texas 

Civil Practice and Remedies Code §§ 74.351 – 74.403. TEX. CIV. PRAC. & REM.

CODE § 74.351(r)(6) mandates that a plaintiff provide an expert report that sets 

forth a “fair summary of the expert’s opinions as of the date of the report regarding 

applicable standards of care, the manner in which the care rendered by the 
10

physician or health care provider failed to meet the standards, and the causal 

relationship between that failure and the injury, harm, or damages claimed.” 

However, the report “need not marshal all the plaintiff’s proof” as long as it 

provides the expert’s opinion on each element listed in the statute. Am. 

Transitional Care Ctrs. of Texas, Inc. v. Palacios, 46 S.W.3d 873, 878-879 (Tex. 

2001). The Texas Supreme Court has ruled that:

“In setting out the expert’s opinions on each of those elements, the report 

must provide enough information to fulfill two purposes if it is to constitute 

a good-faith effort. First, the report must inform the defendant of the specific 

conduct the plaintiff has called into question. Second, and equally important, 

the report must provide a basis for the trial court to conclude that the claims 

have merit.” Palacios, 46 S.W.3d at 878-79.

Thus, the only requirements of the statute with regard to an expert report is that the 

report (1) give the defendant notice of the conduct upon which the plaintiff is 

basing her claim, and (2) provide the court with sufficient information to determine 

that the plaintiff’s claim has merit. Id.

The trial court abused its discretion when it granted Walgreens and 

McGuire’s Motion to Dismiss. To meet her Chapter 74 expert report requirements, 

Rodriguez served the expert reports of Dr. J. Chad Hardy, Pharm.D., M.S. and Dr. 

Jeffrey A. Breall, M.D. Dr. Hardy, a licensed Texas pharmacist, opines on the

standard of care applicable to Walgreens and McGuire as well as their breach of 

that standard. Dr. Breall, a medical doctor and board-certified cardiologist, then 
11

provides an opinion on the causal link between their breach of the standard of care 

and Nancy’s injuries. When considered in the aggregate, these reports more than 

satisfy Rodriguez’s Chapter 74 expert report requirements.

A. DR. HARDY IS QUALIFIED TO OPINE ON THE ISSUES PERTINENT TO THIS CASE.

Dr. Hardy is qualified to opine on the standard of care applicable to 

Walgreens and McGuire because of the nature of his practice as well as his 

knowledge, experience, and training regarding the specific issues giving rise to this 

claim. Civil Practice and Remedies Code § 74.402(b) provides that a person may 

qualify as an expert if the person:

(1) is practicing in a field of practice that involves the same type of care or 

treatment as that delivered by the defendant health care provider at the time 

the testimony is given or was practicing that type of care when the claim 

arose;

(2) has knowledge of accepted standards of care for health care providers for 

the diagnosis, care, or treatment of the illness, injury, or condition involved 

in the claim; and

(3) is qualified on the basis of training or experience to offer an expert 

opinion regarding those accepted standard of care. (emphasis added)

Courts have further determined that the test for whether a medical expert is 

qualified to render opinions in a case is “rooted in the expert’s training, experience 

and knowledge of the standards applicable to the illness, injury or condition 

involved in the claim.” Blan v. Ali, 7 S.W. 3d 741, 746 (Tex. App. - Houston [14th

Dist.] 1999, no writ). The test of an expert’s qualifications is not whether the 
12

expert has the same practice as the Defendant; instead, the offering party must 

establish that the expert has “knowledge, skill, experience, training or education 

regarding the specific issue before the Court which would qualify the expert to 

give an opinion on that particular subject.” Broders v. Heise, 924 S.W. 2d 148 

(Tex. 1995).

Dr. Hardy received his Doctorate of Pharmacy from the University of Texas 

in 2000 and is a licensed pharmacist in Texas (CR 39). At the time of the negligent 

acts of Appellees, Dr. Hardy worked in Pharmacy Operations Management and as 

a Pharmacy Consultant (CR 13). His expert report and curriculum vitae

demonstrate his extensive knowledge of the standard of care relevant to pharmacy

operations, including the applicable standards for the “refilling and processing of 

the prescription [Pradaxa]” (CR 40). Dr. Hardy’s expert report and CV plainly 

demonstrate that his practice focuses on the health care services about which he 

opines: pharmacy operations, including the refilling and processing of 

prescriptions. It is Appellees’ refilling and processing of Pradaxa without 

authorization from Nancy’s physician that fell below the standard of care in this 

case, contributing to Nancy’s overdose and resulting in the significant personal 

injuries and damages she suffered. 

Dr. Hardy has extensive experience in the operations and standards that 

govern the allegations which form the basis of Rodriguez’s claims. However, in 
13

their objections to Rodriguez’s expert report, Walgreens and McGuire complained

that Dr. Hardy’s CV “fails to demonstrate that he was engaged in the practice of 

pharmacy in 2012” and that “there is no indication that he is actively practicing 

health care in rendering health care services relevant to the claim” (CR 69).

Walgreens and McGuire disregard the clear evidence that demonstrates Dr. 

Hardy’s qualifications to opine on the issues central to Rodriguez’s claims of 

negligence.

Dr. Hardy’s field of practice focuses on pharmacy operations and the 

standards by which pharmacies must abide to provide the appropriate care for their 

patients. The operations of a pharmacy, including the proper refilling and 

processing of prescriptions, are central to the care and treatment provided by both 

Dr. Hardy’s practice and the practice of Walgreens and McGuire. At the time of 

the events made the basis of this case, Dr. Hardy was extensively involved in 

pharmacy operations, using his “clinical knowledge to ensure proper effective and 

timely patient care” during his management of 16 pharmacies (CR 13). Dr. 

Hardy’s work focuses on the handling of medications – such as Pradaxa – by 

pharmacies and pharmacists such as Walgreen and McGuire. He is more than 

qualified to opine on the standard of care in a case concerning the improper 

handling of a prescription.
14

B. DR. BREALL’S REPORT LINKS NANCY’S CONTINUED PRADAXA THERAPY TO 

HER INJURIES.

Dr. Hardy opines that Nancy’s continued Pradaxa therapy was the result of 

Walgreens and McGuire’s processing and refilling the drug without her 

physician’s authorization. As he explains in his report, pharmacists “have a duty to 

contact the prescribing physician if patient harm is possible to validate the 

prescription.” By dispensing Pradaxa to Nancy without authorization from her 

physician, Walgreens and McGuire breached this standard as well as the other 

duties set forth by Dr. Hardy. Dr. Breall then opines on the causal connection 

between Nancy’s continued Pradaxa therapy – which resulted in part from 

Appellees’ breach of the standard of care, as provided in Dr. Hardy’s report – and 

her injuries. 

Pursuant to TEX. CIV. PRAC. & REM. CODE § 74.351(r)(6), an expert report 

must set out “the causal relationship” between the breach and “the injury, harm, or 

damages claimed.” When a plaintiff serves multiple expert reports, the reports 

should be considered in the aggregate to determine whether her expert report 

requirements have been met. See Packard v. Guerra, 252 S.W.3d 511, 526 (Tex. 

App.—Houston [1th Dist.] 2008, pet. denied); Davisson v. Nicholson, 310 S.W.3d 

543, 558 (Tex. App.—Fort Worth 2010, no pet.). In their Motion to Dismiss, 

Walgreens and McGuire alleged that Dr. Breall’s expert report “fails to comment 
15

on any causal connection between an act or failure to act by Walgreens or McGuire 

which was a cause of plaintiff’s injuries.” However, as discussed above, the reports 

of Dr. Breall and Dr. Hardy should be considered in the aggregate to determine 

whether Rodriguez has met the expert report requirements. Walgreens and 

McGuire were responsible for continuing to dispense Pradaxa to Nancy, and Dr. 

Breall links her continued Pradaxa therapy to the injuries she suffered.

In his report, Dr. Hardy sets forth the specific conduct of Appellees which 

constitute departures from the standard of care. Specifically, Dr. Hardy states that 

Walgreens and McGuire breached their standard of care by continuing to dispense 

Pradaxa after the prescribing physician indicated it should be discontinued and by 

failing to verify if that prescription should be continued with the prescribing 

physician. Dr. Breall then opines in his expert report on the causal relationship 

between Nancy’s injuries and the departures from the standard of care set forth in 

Dr. Hardy’s report. Dr. Breall provides that the “[f]ailure to discontinue the use of 

Pradaxa was a direct cause of her subsequent acute admission to the hospital with 

hypotension, acute kidney injury and apparent gastrointestinal bleeding – known 

side effects of the over-use of Pradaxa” (CR 44). Furthermore, Dr. Breall states 

that “Ms. Rodriguez’s hospitalization would never have needed to take place” if 

Pradaxa therapy would have been stopped “as ordered by Dr. Kessler”. Id. These 

acts and failures are, incidentally, the same as those identified by Dr. Hardy as 
16

breaches in the standard of care applicable to Walgreens and McGuire. Dr. Breall 

attributes Nancy’s injuries to these acts and failures. 

When the reports of Dr. Hardy and Dr. Breall are read in the aggregate, it is 

evident that Rodriguez has addressed each element of her claims against Appellees 

as required by Chapter 74. Thus, Rodriguez has set forth a good-faith effort to 

comply with her expert report requirements. She has addressed each required 

element of her cause of action by providing the reports of both a qualified 

pharmacist (Dr. Hardy) and a qualified medical doctor (Dr. Breall).

In their Motion to Dismiss, Walgreens and McGuire further complain that 

Rodriguez failed to offer a report that addresses the damages claimed in her 

petition because the report does not address the damages she is suffering and will 

suffer in the future. However, § 74.351(r)(6) requires only that the expert set forth 

the causal relationship between the breach and some “injury, harm, or damages 

claimed”. Dr. Breall provides in his report that Nancy from “acute admission to the 

hospital with hypotension, acute kidney injury, and apparent gastrointestinal 

bleeding” – known side effects of the over-use of Pradaxa that Dr. Breall attributes 

to her continued Pradaxa therapy. Chapter 74 does not require that Dr. Breall detail 

all of Plaintiff’s damages beyond giving an opinion as to this causal relationship, 

and certainly the current and future damage elements claimed by Rodriguez in her 

report are beyond the scope of a Chapter 74 expert report. Rodriguez has 
17

sufficiently fulfilled the expert report requirements by setting forth the injuries and 

harm suffered by her as a result of Defendants’ negligent acts.

C. THE TRIAL COURT ABUSED ITS DISCRETION BY GRANTING WALGREENS CO.

AND MCGUIRE’S MOTION TO DISMISS.

The trial court abused its discretion when it granted Defendants’ Motion to 

Dismiss. An appellate court generally reviews a trial court’s decision to dismiss 

under TEX. CIV. PRAC. & REM. CODE § 74.351 for an abuse of discretion. Bowie 

Mem. Hospital v. Wright, 79 S.W.3d 48, 52 (Tex. 2002). A trial court abuses its 

discretion if it acts “arbitrarily or unreasonably or without reference to any guiding 

rules or principles.” Id.

Pursuant to TEX. CIV. PRAC. & REM. CODE § 74.351, plaintiffs must provide 

a timely expert report that demonstrates a “good-faith effort” to set forth a “fair 

summary” of the applicable standard of care, the manner in which the health care 

provider breached the standards, and the causal relationship between that failure 

and the injury, harm, or damages claimed. Am. Transitional Care Ctrs. of Texas, 

Inc. v. Palacios, 46 S.W.3d 873, 878-79 (Tex. 2001). To satisfy this requirement, 

“a plaintiff need not present evidence in the report as if it were actually litigating 

the merits...the report does not have to meet the same requirements as the evidence 

offered in a summary-judgment proceeding or at trial.” Id. at 879. A trial court 

abuses its discretion in granting a motion to dismiss based on § 74.351 if there is 
18

no reasonable basis for the court to determine that the report fails to set forth the 

requisite good-faith effort. See Wright, 79 S.W.3d at 53. Here, the trial court acted 

arbitrarily, unreasonably, and without reference to the above rules and principles 

governing the expert report requirements by granting Defendant’s Motion to 

Dismiss.

To comply with the expert report requirements of Chapter 74, Plaintiff 

served the reports of both Dr. Hardy and Dr. Breall. Dr. Hardy, a licensed Texas 

pharmacist, thoroughly sets forth his opinion on the standard of care applicable to 

Appellees and the manner in which the care rendered by Appellees failed to meet 

that standard. Among other acts and omission, Dr. Hardy opines that Appellees 

continued to dispense Pradaxa after the prescribing physician indicated it should be 

discontinued and failed to verify if the prescription should be continued in 

violation of the standard of care. Dr. Breall, a medical doctor who is board certified 

in cardiology, then opines on the causal relationship between Nancy’s continued 

Pradaxa use and her injuries, which include hospitalization with acute kidney 

injury, hypotension, and gastrointestinal bleeding. Dr. Hardy is not qualified to 

opine on causation because he is not a medical doctor. Dr. Breall is not qualified to 

opine on the standard of care of a pharmacist because he is not a pharmacist. 

However, when these reports are read in the aggregate, they apprise Walgreens and 

McGuire of the specific conduct called into question by Rodriguez’s claims and 
19

demonstrate that Rodriguez’s claims have merit. Because the expert reports of Dr. 

Breall and Dr. Hardy set forth a good-faith effort to provide a fair summary of their 

opinions on each element of Rodriguez’s claim, the trial court abused its discretion 

by granting the Motion to Dismiss.

PRAYER

WHEREFORE, PREMISES CONSIDERED, Appellant Nancy Jo Rodriguez 

respectfully requests that the Court reverse the decision of the trial court granting

Walgreens and McGuire’s Chapter 74 Motion to Dismiss. Rodriguez also requests 

that she be awarded her reasonable attorney’s fees and costs as allowed by Chapter 

74 of the Texas Civil Practice and Remedies Code. Rodriguez further prays for 

such other relief to which she may be justly entitled.
20

Respectfully submitted,

L. Todd Kelly 

Tkelly@carlsonattorneys.com

State Bar No. 24035049 

THE CARLSON LAW FIRM, P.C.

11606 N. IH-35

Austin, Texas 78753

(512) 346-5688

(512) 719-4362 (Fax)

/s/ L. Todd Kelly

L. Todd Kelly

ATTORNEY FOR 

NANCY JO RODRIGUEZ

CERTIFICATE OF COMPLIANCE

I hereby certify that Appellant’s Brief contains 3,264 words, based on 

Microsoft Word’s word-count function.

/s/ L. Todd Kelly

L. Todd Kelly

CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the foregoing has been 

forwarded to the following in accordance with the Texas Rules on the 22nd day of 

February, 2015.

Electronic Transmission:

Cynthia Day Grimes

Cynthia.Grimes@strasburger.com

Judith R. Blakeway
21

Judith.Blakeway@strasburger.com

Strasburger & Price, LLP

2301 Broadway

San Antonio, Texas 78215

Chris Knudsen

Cknudsen@serpejones.com

America Tower

2929 Allen Parkway, Suite 1600

Houston, Texas 77019

Tel. (713) 452-4400

Fax. (713) 452-4499

Missy Atwood

Matwood@germer-austin.com

Germer, Beaman & Brown, PLLC

301 Congress Avenue, Suite 1700

Austin, Texas 78701

 

/s/ L. Todd Kelly

L. Todd Kelly
APPENDIX A

TRIAL COURT ORDER


APPENDIX B

STATUTES
Sec. 74.351. EXPERT REPORT. (a) In a health care 

liability claim, a claimant shall, not later than the 120th day 

after the date each defendant's original answer is filed, serve 

on that party or the party's attorney one or more expert 

reports, with a curriculum vitae of each expert listed in the 

report for each physician or health care provider against whom a 

liability claim is asserted. The date for serving the report 

may be extended by written agreement of the affected parties. 

Each defendant physician or health care provider whose conduct 

is implicated in a report must file and serve any objection to 

the sufficiency of the report not later than the later of the 

21st day after the date the report is served or the 21st day 

after the date the defendant's answer is filed, failing which 

all objections are waived.

(b) If, as to a defendant physician or health care 

provider, an expert report has not been served within the period 

specified by Subsection (a), the court, on the motion of the 

affected physician or health care provider, shall, subject to 

Subsection (c), enter an order that:

(1) awards to the affected physician or health care 

provider reasonable attorney's fees and costs of court incurred 

by the physician or health care provider; and

(2) dismisses the claim with respect to the physician 

or health care provider, with prejudice to the refiling of the 

claim.

(c) If an expert report has not been served within the 

period specified by Subsection (a) because elements of the 

report are found deficient, the court may grant one 30-day 

extension to the claimant in order to cure the deficiency. If 

the claimant does not receive notice of the court's ruling 

granting the extension until after the 120-day deadline has 

passed, then the 30-day extension shall run from the date the 

plaintiff first received the notice.

[Subsections (d)-(h) reserved]

(i) Notwithstanding any other provision of this section, a 

claimant may satisfy any requirement of this section for serving 
an expert report by serving reports of separate experts 

regarding different physicians or health care providers or 

regarding different issues arising from the conduct of a 

physician or health care provider, such as issues of liability 

and causation. Nothing in this section shall be construed to 

mean that a single expert must address all liability and 

causation issues with respect to all physicians or health care 

providers or with respect to both liability and causation issues 

for a physician or health care provider.

(j) Nothing in this section shall be construed to require 

the serving of an expert report regarding any issue other than 

an issue relating to liability or causation.

(k) Subject to Subsection (t), an expert report served 

under this section:

(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.

(l) A court shall grant a motion challenging the adequacy 

of an expert report only if it appears to the court, after 

hearing, that the report does not represent an objective good 

faith effort to comply with the definition of an expert report 

in Subsection (r)(6).

[Subsections (m)-(q) reserved]

(r) In this section:

(1) "Affected parties" means the claimant and the 

physician or health care provider who are directly affected by 

an act or agreement required or permitted by this section and 

does not include other parties to an action who are not directly 

affected by that particular act or agreement.

(2) "Claim" means a health care liability claim.

[(3) reserved]

(4) "Defendant" means a physician or health care 

provider against whom a health care liability claim is asserted. 
The term includes a third-party defendant, cross-defendant, or 

counterdefendant.

(5) "Expert" means:

(A) with respect to a person giving opinion 

testimony regarding whether a physician departed from accepted 

standards of medical care, an expert qualified to testify under 

the requirements of Section 74.401;

(B) with respect to a person giving opinion 

testimony regarding whether a health care provider departed from 

accepted standards of health care, an expert qualified to 

testify under the requirements of Section 74.402;

(C) with respect to a person giving opinion 

testimony about the causal relationship between the injury, 

harm, or damages claimed and the alleged departure from the 

applicable standard of care in any health care liability claim, 

a physician who is otherwise qualified to render opinions on 

such causal relationship under the Texas Rules of Evidence;

(D) with respect to a person giving opinion 

testimony about the causal relationship between the injury, 

harm, or damages claimed and the alleged departure from the 

applicable standard of care for a dentist, a dentist or 

physician who is otherwise qualified to render opinions on such 

causal relationship under the Texas Rules of Evidence; or

(E) with respect to a person giving opinion 

testimony about the causal relationship between the injury, 

harm, or damages claimed and the alleged departure from the 

applicable standard of care for a podiatrist, a podiatrist or 

physician who is otherwise qualified to render opinions on such 

causal relationship under the Texas Rules of Evidence.

(6) "Expert report" means a written report by an 

expert that provides a fair summary of the expert's opinions as 

of the date of the report regarding applicable standards of 

care, the manner in which the care rendered by the physician or 

health care provider failed to meet the standards, and the 

causal relationship between that failure and the injury, harm, 

or damages claimed.
(s) 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 except for the 

acquisition by the claimant of information, including medical or 

hospital records or other documents or tangible things, related 

to the patient's health care through:

(1) written discovery as defined in Rule 192.7, Texas 

Rules of Civil Procedure;

(2) depositions on written questions under Rule 200, 

Texas Rules of Civil Procedure; and

(3) discovery from nonparties under Rule 205, Texas 

Rules of Civil Procedure.

(t) If an expert report is used by the claimant in the 

course of the action for any purpose other than to meet the 

service requirement of Subsection (a), the restrictions imposed 

by Subsection (k) on use of the expert report by any party are 

waived.

(u) Notwithstanding any other provision of this section, 

after a claim is filed all claimants, collectively, may take not 

more than two depositions before the expert report is served as 

required by Subsection (a).

Added by Acts 2003, 78th Leg., ch. 204, Sec. 10.01, eff. Sept. 

1, 2003.

Amended by: 

Acts 2005, 79th Leg., Ch. 635 (H.B. 2645), Sec. 1, eff. 

September 1, 2005.

Acts 2013, 83rd Leg., R.S., Ch. 870 (H.B. 658), Sec. 2, 

eff. September 1, 2013.
Sec. 74.402. QUALIFICATIONS OF EXPERT WITNESS IN SUIT 

AGAINST HEALTH CARE PROVIDER. (a) For purposes of this 

section, "practicing health care" includes:

(1) training health care providers in the same field 

as the defendant health care provider at an accredited 

educational institution; or

(2) serving as a consulting health care provider and 

being licensed, certified, or registered in the same field as 

the defendant health care provider.

(b) In a suit involving a health care liability claim 

against a health care provider, a person may qualify as an 

expert witness on the issue of whether the health care provider 

departed from accepted standards of care only if the person:

(1) is practicing health care in a field of practice 

that involves the same type of care or treatment as that 

delivered by the defendant health care provider, if the 

defendant health care provider is an individual, at the time the 

testimony is given or was practicing that type of health care at 

the time the claim arose;

(2) has knowledge of accepted standards of care for 

health care providers for the diagnosis, care, or treatment of 

the illness, injury, or condition involved in the claim; and

(3) is qualified on the basis of training or 

experience to offer an expert opinion regarding those accepted 

standards of health care.

(c) In determining whether a witness is qualified on the 

basis of training or experience, the court shall consider 

whether, at the time the claim arose or at the time the 

testimony is given, the witness:

(1) is certified by a licensing agency of one or more 

states of the United States or a national professional 

certifying agency, or has other substantial training or 

experience, in the area of health care relevant to the claim; 

and

(2) is actively practicing health care in rendering 

health care services relevant to the claim.
(d) The court shall apply the criteria specified in 

Subsections (a), (b), and (c) in determining whether an expert 

is qualified to offer expert testimony on the issue of whether 

the defendant health care provider departed from accepted 

standards of health care but may depart from those criteria if, 

under the circumstances, the court determines that there is good 

reason to admit the expert's testimony. The court shall state 

on the record the reason for admitting the testimony if the 

court departs from the criteria.

(e) This section does not prevent a health care provider 

who is a defendant, or an employee of the defendant health care 

provider, from qualifying as an expert.

(f) A pretrial objection to the qualifications of a 

witness under this section must be made not later than the later 

of the 21st day after the date the objecting party receives a 

copy of the witness's curriculum vitae or the 21st day after the 

date of the witness's deposition. If circumstances arise after 

the date on which the objection must be made that could not have 

been reasonably anticipated by a party before that date and that 

the party believes in good faith provide a basis for an 

objection to a witness's qualifications, and if an objection was 

not made previously, this subsection does not prevent the party 

from making an objection as soon as practicable under the 

circumstances. The court shall conduct a hearing to determine 

whether the witness is qualified as soon as practicable after 

the filing of an objection and, if possible, before trial. If 

the objecting party is unable to object in time for the hearing 

to be conducted before the trial, the hearing shall be conducted 

outside the presence of the jury. This subsection does not 

prevent a party from examining or cross-examining a witness at 

trial about the witness's qualifications.

Added by Acts 2003, 78th Leg., ch. 204, Sec. 10.01, eff. Sept. 

1, 2003.
Sec. 74.403. QUALIFICATIONS OF EXPERT WITNESS ON CAUSATION 

IN HEALTH CARE LIABILITY CLAIM. (a) Except as provided by 

Subsections (b) and (c), in a suit involving a health care 

liability claim against a physician or health care provider, a 

person may qualify as an expert witness on the issue of the 

causal relationship between the alleged departure from accepted 

standards of care and the injury, harm, or damages claimed only 

if the person is a physician and is otherwise qualified to 

render opinions on that causal relationship under the Texas 

Rules of Evidence.

(b) In a suit involving a health care liability claim 

against a dentist, a person may qualify as an expert witness on 

the issue of the causal relationship between the alleged 

departure from accepted standards of care and the injury, harm, 

or damages claimed if the person is a dentist or physician and 

is otherwise qualified to render opinions on that causal 

relationship under the Texas Rules of Evidence.

(c) In a suit involving a health care liability claim 

against a podiatrist, a person may qualify as an expert witness 

on the issue of the causal relationship between the alleged 

departure from accepted standards of care and the injury, harm, 

or damages claimed if the person is a podiatrist or physician 

and is otherwise qualified to render opinions on that causal 

relationship under the Texas Rules of Evidence.

(d) A pretrial objection to the qualifications of a 

witness under this section must be made not later than the later 

of the 21st day after the date the objecting party receives a 

copy of the witness's curriculum vitae or the 21st day after the 

date of the witness's deposition. If circumstances arise after 

the date on which the objection must be made that could not have 

been reasonably anticipated by a party before that date and that 

the party believes in good faith provide a basis for an 

objection to a witness's qualifications, and if an objection was 

not made previously, this subsection does not prevent the party 

from making an objection as soon as practicable under the 

circumstances. The court shall conduct a hearing to determine 
whether the witness is qualified as soon as practicable after 

the filing of an objection and, if possible, before trial. If 

the objecting party is unable to object in time for the hearing 

to be conducted before the trial, the hearing shall be conducted 

outside the presence of the jury. This subsection does not 

prevent a party from examining or cross-examining a witness at 

trial about the witness's qualifications.

Added by Acts 2003, 78th Leg., ch. 204, Sec. 10.01, eff. Sept. 

1, 2003.