i 

NO. 08-20-00059-CV 

IN THE EIGHTH COURT OF APPEALS 

EL PASO, TEXAS

_______________________________________________

JANELLE THOMPSON, CRNA

APPELLANT 

v.

GENESIS FONG

 APPELLEE 

_______________________________________________

On Appeal from the 41st Judicial District Court

El Paso County, Texas

Cause No. 2019DCV1550

APPELLANT JANELLE THOMPSON’S MOTION FOR 

REHEARING

__________________________________________________________________

Sean Higgins

State Bar No. 24001220

LEWIS BRISBOIS BISGAARD 

& SMITH

24 Greenway Plaza, Ste. 1400

Houston, Texas 77046

(832) 460-4630 (Telephone)

(713) 759-6830 (Facsimile) 

ATTORNEY FOR APPELLANT

ACCEPTED

08-20-00059-CV

EIGHTH COURT OF APPEALS

EL PASO, TEXAS

10/29/2021 10:39 AM

ELIZABETH G. FLORES

CLERK

08-20-00059-CV

 FILED IN 8th COURT OF APPEALS EL PASO, TEXAS 10/29/2021 10:39:17 AM ELIZABETH G. FLORES Clerk
4874-5104-3584.1 ii 

TABLE OF CONTENTS

TABLE OF AUTHORITIES...........................................................iii 

ISSUE PRESENTED FOR REHEARING ................................................. 1 

STATEMENT OF FACTS .......................................................................... 2 

ARGUMENT ............................................................................................... 5 

REQUEST FOR RELIEF ........................................................................... 8 

CERTIFICATE OF COMPLIANCE .......................................................... 9 

CERTIFICATE OF SERVICE .................................................................... 9 

APPENDIX 

 Panel Opinion...............................................................APP. A

 
4874-5104-3584.1 iii 

TABLE OF AUTHORITIES

State Cases 

Am. Transitional Care Ctrs. Of Tex., Inc. v, Palacios, 

46 S.W.3d 873 (Tex. 2001) ..................................................... 6, 9, 10, 11 

First United Pentecostal Church of Beaumont v. Parker, 

514 S.W.3d 214 (Tex. 2017) ................................................................... 8 

Greene v. Farmers Ins. Exch., 

446 S.W.3d 761 (Tex. 2014) ................................................................... 8 

Li v. Pemberton Park Community Assoc'n, 

65 Tex. Sup. J. 9, 2021 Tex. LEXIS 931, 2021 WL 4483503 

(Tex. October 1, 2021) ........................................................................ 8, 9 

Nath v. Tex. Children's Hosp., 

446 S.W.3d 355 (Tex. 2014) ................................................................... 8 

Scoresby v. Santillan, 

346 S.W.3d 546 (2011) ......................................................................... 11 

St John Missionary Baptist Church v. Flakes, 

595 S.W.3d 211 (Tex. 2020) ................................................................... 9 

Statutes 

Tex. Civ. Prac. & Rem. Code § 74.351(b) ................................................... 7 

Texas Civil Practice & Remedies Code Chapter 74 .......................... 4, 6, 9 

Court Rules 

TEX. R. APP. P. 9.4, I ................................................................................. 12 
1

ISSUE PRESENTED FOR REHEARING

Janelle Thompson, CRNA, moved to dismiss Genesis Fong's claims 

for failure to make a good faith effort to satisfy the requirements of 

Chapter 74 of the Texas Civil Practice & Remedies Code because the 

letters she submitted as Chapter 74 expert reports failed to (i) set forth the 

standard of care, (ii) state how Nurse Thompson breached the standard of 

care, or (iii) explain how Nurse Thompson's alleged breach of the standard 

of care caused Fong's injuries—the letters did not even name Nurse 

Thompson. The trial court refused to dismiss Fong's claim. Nurse 

Thompson appealed and urged this Court to correct the error and render 

judgment in her favor. The panel found Nurse Thompson somehow waived

this issue in the trial court. 

The panel's finding of waiver is error. Nurse Thompson did all that 

was required to preserve error in the trial court. At the very least, Nurse 

Thompson argued the substance of the issue in the trial court, made her 

objection known to the trial court and requested relief from the trial court 

in the form of an order dismissing Fong's claims. The panel should correct 

its error by deciding the merits of Nurse Thompson's appeal. 
4874-5104-3584.1 2

STATEMENT OF FACTS

Fong sued Janelle Thompson, CRNA, and Jose Robledo, CRNA, for 

injuries allegedly resulting from placement or removal of an epidural 

catheter while she was giving birth. CR 8-13. Fong alleges Nurse 

Thompson and Nurse Robledo were unable to remove the catheter and 

that she ultimately required surgery to have the catheter removed. Id. at 

9-10.

Fong served Thompson with letters from two physicians, Dr. Cecil 

Arredondo, M.D. and Sabri Malek, M.D. CR 35, 43-46 & CR 65, 72-73. 

Each letter is two pages long. Id. The letters are largely identical in 

substance. Id. Neither letter so much as names Nurse Thompson. CR 72-

73, 92-93. Neither letter states the standard of care applicable to Nurse 

Thompson. Id. Neither letter states how Nurse Thompson departed from 

the standard of care. Id. And neither letter links any departure from the 

standard of care to Fong's alleged injury. Id. Indeed, both letters state in 

identical fashion that "Without the benefit of additional information from 

the hospital chart . . . it is difficult to ascertain whether the catheter was 

placed correctly or removed correctly." Id.
4874-5104-3584.1 3

Nurse Thompson timely objected to both letters and moved to 

dismiss Fong's claim under Chapter 74. CR 64-70, 75-83. In each motion, 

Nurse Thompson pointed out that "an expert report that omits any of 

[section 74.351's] requirements does not represent a good faith effort" to 

comply with the statute. CR 66 (citing Am. Transitional Care Ctrs. Of Tex., 

Inc. v, Palacios, 46 S.W.3d 873, 879 (Tex. 2001)). Nurse Thompson 

asserted that "Plaintiffs failed to file an expert report in compliance with 

Chapter 74 of the Civil Practice and Remedies Code" because each letter 

"fails to explain the applicable standard of care for" Nurse Thompson, fails 

to state how Nurse Thompson "breached said standard of care," and "fails 

to adequately explain how [Nurse Thompson's] alleged breach of the 

applicable standard of care caused Plaintiff's injuries." CR 40 & 70. 

At the hearing on her motions, Nurse Thompson's attorney reiterated 

that the reports do not represent a good faith effort to comply with 

Chapter 74 and urged the Court to dismiss Fong's claim. 1 RR 15/17-25 &

16/5-7. Nurse Thompson's attorney also pointed out that the reports 

contain no reference to the two defendants. 1 RR 17/10-12. 
4874-5104-3584.1 4

The trial court found the letters were deficient but did not dismiss 

the case as requested by Nurse Thompson. CR 106-07. Instead, the trial 

court granted Fong 30 days in which amend or file new reports. Id. 

Nurse Thompson appealed to this Court. In her sole issue, Nurse 

Thompson asserts that "Because the trial court correctly found Dr. 

Arredondo and Dr. Malek's expert reports substantially deficient, the 

[trial] court abused its discretion by failing to dismiss the lawsuit and 

award Nurse Thompson reasonable attorney's fees and court costs as 

required by Tex. Civ. Prac. & Rem. Code §74.351(b)." 

This case was submitted without oral argument to a panel of Chief 

Justice Rodriguez, Justice Palafox, and Justice Alley. On September 29, 

2021, the panel affirmed the trial court's judgment in an opinion by Chief 

Justice Rodriguez. App. A.

The panel acknowledged that Nurse Thompson objected that the 

reports failed "to identify Appellant, state the standard of care, Appellant's 

breach of that standard, and the causal relationship between the breach 

and Appellee's harm." Op. at 5. Despite this, and despite Nurse 

Thompson's clear and repeated request to dismiss Fong's claims because 

each letter "fails to state the applicable standard of care" or how she 
4874-5104-3584.1 5

"breached said standard of care," the panel found Nurse Thompson waived 

her issue in the trial court because she "did not raise an objection that the 

expert reports failed to opine on whether Appellees' case has merit or 

implicated Appellant's conduct." Id. at 4-5. 

ARGUMENT

"Appellate courts should 'hesitate to turn away claims based on 

waiver or failure to preserve the issue.'" Li v. Pemberton Park Community 

Assoc'n, 65 Tex. Sup. J. 9, 2021 Tex. LEXIS 931 *6, 2021 WL 4483503 

(Tex. October 1, 2021) (quoting First United Pentecostal Church of 

Beaumont v. Parker, 514 S.W.3d 214, 221 (Tex. 2017)). "This is especially 

so 'where the party has clearly and timely registered its objection' to the 

ruling challenged on appeal." Id. (quoting Nath v. Tex. Children's Hosp., 

446 S.W.3d 355, 365 (Tex. 2014)). "And while appellate courts 'do not 

consider issues that were not raised . . . below,' parties may 'construct new 

arguments in support of issues' that were raised." Id. (quoting Greene v. 

Farmers Ins. Exch., 446 S.W.3d 761, 764 n. 4 (Tex. 2014)) (alterations by 

the Court). Thus, "a party sufficiently preserves an issue for review by 

arguing the issue's substance, even if the party does not call that issue by 
4874-5104-3584.1 6

name." Id. (quoting St John Missionary Baptist Church v. Flakes, 595 

S.W.3d 211, 214 (Tex. 2020)). 

At a minimum, Nurse Thompson argued the substance of her issue 

that dismissal is required because the letters do not represent a good faith 

effort to comply with the Chapter 74 expert report requirement. Nurse 

Thompson asserted that Fong "failed to file an expert report in compliance 

with Chapter 74" because each letter failed to explain the standard of care 

applicable to Nurse Thompson, failed to state how Nurse Thompson 

breached that standard, and failed to adequately explain how the alleged 

breach caused Fong's injuries. CR 40 & 70. Nurse Thompson pointed out 

that the report did not mention her or any other CRNA Defendant. CR 69. 

Nurse Thompson cited the Texas Supreme Court's opinion in Palacios. CR 

66. Nurse Thompson requested the trial court to dismiss Fong's lawsuit 

because of these shortcomings. CR 40 & 70. At the hearing, Nurse 

Thompson's attorney reiterated her position that the letters were not a 

good faith effort to comply with Chapter 74 and urged the Court to dismiss 

Fong's claim. 1 RR 15/17-25 & 16/5-7.

The panel acknowledged as much, writing that Nurse Thompson 

moved to dismiss Fong's claim because the letters did not "identify 
4874-5104-3584.1 7

Appellant, state the standard of care, Appellant's breach of that standard, 

and the causal relationship between the breach and Appellee's harm." Op. 

at 5. 

Yet the panel found that Nurse Thompson waived her issue because 

her motions did not contain the precise words used in her Brief—"that the 

expert reports failed to opine whether the case has merit or implicated 

Appellant's conduct." Op. 5-6. The panel is mistaken because these words 

represent the substance of the issue raised by Nurse Thompson in the trial 

court. 

In Palacios, the Supreme Court used the same words to describe the 

inquiry into whether an expert report sets forth "a fair summary of the 

expert's opinions about the standard of care," breach of the standard of 

care and causation: "In setting out the expert's opinions on these 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 
4874-5104-3584.1 8

878. Id.; see also, Scoresby v. Santillan, 346 S.W.3d 546, 556 (2011) 

(quoting Palacios). 

Nurse Thompson presented the substance of her issue to the trial 

court. The panel's finding of waiver is error and the panel should correct 

its error by setting aside its opinion, deciding this appeal on the merits,

and reversing and rendering judgment for Nurse Thompson.

REQUEST FOR RELIEF

Nurse Thompson requests the Court to grant her motion for 

rehearing, set aside its opinion, and decide the merits of her appeal by 

reversing and rendering judgment in her favor.

Respectfully submitted,

LEWIS BRISBOIS BISGAARD & 

SMITH LLP

/s/ Sean Higgins

SEAN HIGGINS

SBOT: 24001220

sean.higgins@lewisbrisbois.com

24 Greenway Plaza, Suite1400

Houston, Texas 77046

(713) 659-6767 (telephone)

(713) 759-6830 (facsimile)

ATTORNEY FOR APPELLANT
4874-5104-3584.1 9

CERTIFICATE OF COMPLIANCE

Pursuant to TEX. R. APP. P. 9.4, I certify that this motion contains 

1,482 words. This is a computer-generated document created in Microsoft 

Word, using 14-point typeface for all text, except for footnotes which are in 

12-point typeface. In making this certificate of compliance, I am relying on 

the word count provided by the software used to prepare the document.

/s/ Sean M. Higgins

Sean M. Higgins

CERTIFICATE OF SERVICE

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

has been served on all counsel of record via electronic filing on this the 29th

day of October 2021.

Walter I. Boyaki

Boyaki Law Firm

4621 Pershing Drive

El Paso, Texas 79903

(915) 566-8688 (Telephone)

(915) 566-5906 (Facsimile)

Email: wboyaki@boyakilawfirm.com

ATTORNEY FOR APPELLEE

/s/ Sean Higgins

Sean Higgins
APP. A
JANELLE THOMPSON, CRNA,

Appellant, 

v.

GENESIS FONG,

Appellee.

§

§

§

§

§

No. 08-20-00059-CV

Appeal from the

41st District Court

of El Paso County, Texas

(TC#2019DCV1550)

O P I N I O N

Janelle Thompson, Appellant, brings an interlocutory appeal of the trial court’s denial of 

her motion to dismiss the health care liability claim of Genesis Fong, Appellee. Appellant’s sole 

issue is her allegation that Appellee’s expert reports were so deficient as to not qualify as expert 

reports, meaning that Appellee failed to serve Appellant with an expert report within 120 days, 

therefore, the trial court erred by failing to dismiss Appellee’s claims. TEX.CIV.PRAC.& REM.CODE 

ANN. § 74.351. We find Appellant’s argument on appeal does not comport with her objections 

raised with the trial court. Accordingly, Appellant has waived her sole issue on appeal. 

TEX.R.APP.P. 33.1. We affirm the trial court’s decision.

BACKGROUND

Appellee gave birth at the Hospitals of Providence - East Campus on October 20, 2017.

Appellee alleges that during her labor Appellant, a certified registered nurse anesthetist (CRNA) 

and another CRNA, Jose Robledo, placed an epidural catheter to alleviate her pain. Postpartum, 
2

Appellee claimed neither Appellant nor Robledo were able to remove the catheter. A CT scan 

showed the distal end of the catheter lodged in her spine and surgery was required to remove the 

catheter. Two partial laminectomies were performed to remove the portion of the catheter lodged 

in Appellee’s spine. The surgery was unsuccessful and a portion of the catheter remained. Appellee

sued Appellant and Robledo alleging they negligently failed to properly place and remove the 

epidural catheter.

The Texas Medical Liability Act requires an individual alleging a health care liability claim 

to timely present an expert report to the healthcare provider against whom the claim is asserted. 

TEX.CIV.PRAC.&REM.CODE ANN. § 74.351(a). Appellee timely served an expert report together 

with an attached curriculum vitae from Dr. Cecil-Arredondo, a board-certified orthopedic surgeon, 

with experience performing laminectomies and epidural analgesia for pain management. Appellee

later served a second report and curriculum vitae from Dr. Sabri Malek, a board-certified 

anesthesiologist, with substantial experience in labor epidural catheter placement. Both reports 

were substantively the same. In their respective reports, both physicians stated that not properly 

placing or removing the catheter was a breach of the standard of care, the improper placement or

removal of the catheter caused Appellee to need laminectomy surgery, and she is at risk for future 

health complications as a result of the portion of catheter remaining in her spine. Both physicians 

stated without additional information, neither would be able to determine whether the catheter was 

placed or removed correctly.

In response, Appellant filed objections and motions to dismiss for each report claiming 

they were deficient for failing to establish the standard of care, how Appellant breached the 

standard of care, and how that breach led to Appellee’s injuries. Following a hearing in which

Appellant reurged her objections, the trial court issued an order granting Appellant’s objections to 
3

Appellee’s experts’ reports. Specifically, the trial court found Dr. Arredondo’s report failed to: (1) 

establish his qualifications to opine on the standard of care applicable to a CRNA placing and 

removing an epidural catheter; (2) adequately identify the standard of care for each defendant; and 

(3) differentiate between the two defendants regarding breach and causation. The trial court further

found Dr. Malek’s report failed to: (1) adequately identify the standard of care for each defendant; 

and (2) differentiate between the two defendants regarding breach and causation. Accordingly, the

trial court granted Appellee thirty days to cure the deficiencies in her experts’ reports and file new 

or amended reports. Appellant now brings an interlocutory appeal of the trial court’s order alleging 

the expert reports provided by Appellee were so deficient as to not qualify as expert reports, 

meaning Appellee failed to serve Appellant with an expert report and therefore the trial court erred 

by failing to dismiss Appellee’s claims.

DISCUSSION 

Appellant argues the trial court abused its discretion by failing to dismiss Appellee’s 

lawsuit and award attorney’s fees and court costs, because the reports provided by Drs. Arredondo 

and Malek were so substantially deficient as to not qualify as expert reports. Appellant asserts Drs. 

Arredondo and Malek’s reports are substantially deficient in two ways. First, the reports do not 

contain opinions that there is a meritorious claim against Appellant. Second, the reports do not 

implicate Appellant’s conduct.

Standard of Review and Applicable Law

We review the trial court’s ruling on a motion to dismiss for an inadequate expert report 

under an abuse of discretion standard. American Transitional Care Ctrs. of Tex., Inc. v. Palacios, 

46 S.W.3d 873, 875 (Tex. 2001); Gonzalez v. Padilla, 485 S.W.3d 236, 242 (Tex.App.—El Paso 
4

2016, no pet.). We defer to the factual determinations of the trial court and review the trial court’s 

legal determinations de novo. In re Labatt Food Serv., L.P., 279 S.W.3d 640, 643 (Tex. 2009).

The Texas Medical Liability Act requires an individual alleging a health care liability claim 

to present one or more expert reports to the healthcare provider against whom the claim is asserted 

within 120 days of filing the original petition. TEX.CIV.PRAC.&REM.CODE ANN. § 74.351(a). A 

valid expert report will provide a summary of the expert’s opinions regarding: (1) the applicable 

standards of care; (2) the manner in which the care rendered by the health care provider failed to 

meet the standards; and (3) the causal relationship between that failure and the injury, harm, or 

damages claimed. Palacios, 46 S.W.3d at 877-78; TEX.CIV.PRAC.&REM.CODE ANN. 

§ 74.351(r)(6). The Texas Supreme Court has determined, at a minimum, an expert report must 

contain the opinion of an individual with expertise that the claim has merit, and if the defendant’s 

conduct is implicated. Loaisiga v. Cerda, 379 S.W.3d 248, 260 (Tex. 2012)(citing Scoresby v. 

Santillan, 346 S.W.3d 546, 557 (Tex. 2011)). If a report does not meet this standard, then the trial 

court must dismiss the claim if the defendant has moved for dismissal. Loaisiga, 379 S.W.3d at 

260; TEX.CIV.PRAC.&REM.CODE ANN. § 74.351(b).

Analysis

As a preliminary matter, we must address whether Appellant has preserved her error for 

review. Appellant contends the trial court erred when it failed to dismiss Appellee’s claim. 

Appellant argues the reports filed by Appellee are so substantially deficient they are not expert 

reports because the reports do not opine whether there is a meritorious claim against Appellant and

do not implicate Appellant’s conduct.

In the underlying proceedings, Appellant filed separate objections and motions to dismiss 

in response to Drs. Arredondo and Malek’s reports. In each objection, Appellant argued the report 
5

failed to identify Appellant by name, failed to establish the standard of care, how Appellant 

breached the standard of care, and how that breach led to Appellee’s injury. Each objection 

concluded with a motion to dismiss. During the dismissal hearing, Appellant’s counsel reiterated 

the same objections, stating “I don’t feel like it’s being done in good faith because if I go through 

both reports . . . . They don’t even address the standard of care at all. There’s not a mention of 

what Ms. Thompson, certified nurse anesthetist, should have done.” At no point during the 

underlying proceedings, either by motion or in the hearing did Appellant raise the issue of whether 

the reports fail to constitute expert reports.

“To preserve a complaint for appellate review, a party must make a timely request, 

objection, or motion with sufficient specificity to apprise the trial court of the complaint and obtain 

an adverse ruling thereon.” In re N.T., 335 S.W.3d 660, 669 (Tex.App.—El Paso 2011, no pet.) 

(citing TEX.R.APP.P. 33.1(a)). Further, a “complaint on appeal that does not comport with the 

party’s objection at trial is not preserved for review.” Martinez Jardon v. Pfister, 593 S.W.3d 810, 

831 (Tex.App.—El Paso 2019, no pet.).

Our review of the record reveals Appellant fails to raise the issue of whether the reports 

provided by Drs. Arredondo and Malek were so substantially deficient as to not qualify as expert 

reports. Appellant did contend the reports were inadequate but did not apprise the trial court the 

proffered reports were legally equivalent to no report. Appellant’s only objections were that the 

reports were deficient for failing to identify Appellant by name, state the standard of care, 

Appellant’s breach of that standard, and the causal relationship between the breach and Appellee’s 

harm. Appellant did not raise an objection that the expert reports failed to opine whether Appellee’s

case has merit or implicated Appellant’s conduct. Appellant’s argument that the trial court erred 
6

in failing to dismiss the case because the report did not implicate Appellant or directly opine on 

the merits is not preserved.

Given Appellant failed to raise the issue the expert reports did not constitute “expert 

reports” in the trial court, her sole issue on appeal does not comport with the objections she made 

in the trial court. As a result, the trial court was not aware of or afforded an opportunity to rule on 

Appellant’s argument. Appellant has failed to preserve her issue for our review. TEX.R.APP.P.

33.1. Consequently, we hold Appellant has waived her sole issue on appeal.

CONCLUSION

We affirm the trial court’s judgment.

September 29, 2021

YVONNE T. RODRIGUEZ, Chief Justice

Before Rodriguez, C.J., Palafox, and Alley, JJ.
Automated Certificate of eService

This automated certificate of service was created by the efiling system.

The filer served this document via email generated by the efiling system

on the date and to the persons listed below. The rules governing

certificates of service have not changed. Filers must still provide a

certificate of service that complies with all applicable rules.

Deborah Husband on behalf of Sean Higgins

Bar No. 24001220

Deborah.Husband@lewisbrisbois.com

Envelope ID: 58668683

Status as of 10/29/2021 2:37 PM MST

Case Contacts

Name

Josh KDavis

Emily F.Thompson

Walter Louis Boyaki

Paul M. Bracken

Sean Higgins

Deborah Husband

Lettie Chavez

Diane PriceDawley

BarNumber

2759500

2809900

Email

Josh.Davis@lewisbrisbois.com

Emily.Thompson@lewisbrisbois.com

wboyaki@boyakilawfirm.com

pbracken@rbch.net

sean.higgins@lewisbrisbois.com

Deborah.Husband@lewisbrisbois.com

lleal@boyakilawfirm.com

Diane.Dawley@lewisbrisbois.com

TimestampSubmitted

10/29/2021 10:39:17 AM

10/29/2021 10:39:17 AM

10/29/2021 10:39:17 AM

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10/29/2021 10:39:17 AM

10/29/2021 10:39:17 AM

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Status

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SENT

SENT

SENT

SENT

SENT

SENT

SENT

Associated Case Party: Genesis Fong

Name

John Mundie

BarNumber Email

mun6012@aol.com

TimestampSubmitted

10/29/2021 10:39:17 AM

Status

SENT