### T E X A S C O U R T O F A P P E A L S , T H I R D D I S T R I C T , A T A U S T I N

NO. 03-11-00243- CV

Appellan ts, Tara Stone and E ric Stone// Cross-A ppellan ts, Elizabeth Coronado, M.D. and Comm uni ty Me dical Associates

v. Appellees, Elizabeth Coronado, M.D. and Comm uni ty Me dical Associates// CrossAppellees, Tara Stone and E ric Stone

F ROM TH E DISTRI CT COURT O F TO M GREEN CO UNTY, 119 TH JUDICI AL DISTRICT NO. B -09 -15 33- C, H ONO RAB LE B EN WO ODW ARD, JUDGE P RESIDING

M E M O R A N D U M O P I N I O N

These cross-a

ppeals arise from a “spong e case ”—a health car e liability claim about

a surg ical proce dure in which a spong e was left inside a patient and not discovere d until some y ear s later. The district court g rante d summary judgme nt for defe ndant providers on limit ations g rounds. The principal i s s u e prese nted is whether the plaintiff’s summary -judg ment evidenc e raised a fac t i s s u e as t o the applicability of t he ex ception to limit ations compelled by the Tex as C onstitut ion’ s Open Courts provision. Concluding tha t it did, we will reverse and re mand.

On Marc h 23, 2007, Dr. Eliz abeth Coronado, appellee , perf ormed a cae sarian section and hy sterec tomy on appellant Tara Stone. During this proce dure, a surg ical spong e was left inside
Tara ’s abdomen. The spong e was finally discovere d in late September or ear ly October 2009, and 1

When nece ssary to distinguish betwee n appellants, a marrie d couple who share a common 1 surname, w e will use their f irst names for

clar ity

.was surg ically remove d on October 23. On Dec ember 28, 2009, Tara , along with her husband, Eric,

f il ed suit ag ainst Coronado and Coronado’s employ er, Communi ty Medica l Associates (co ll e c ti v e ly , appellee s), seeking damag es alleg edly attributable to Coronado’s profe ssional neg lige nce in leaving the spong e in Tara ’s body

. Appellee s pleade d the aff irmative defe nse of limit ations and later soug ht 2
summary judgme nt on that g round, rely ing on the two-y ear period established by section 74.251(a) of the civil prac tice and reme dies code. See T ex . C i v . P rac. & Rem. Code Ann. § 74.251(a) (West 2011) (g ener ally requiring that “no health car e liability claim may be commence d unless the action is filed within two y ear s from the occur renc e of the brea ch or tort or from the date the medical

or health car e trea tment that is the subj ec t o f the claim”)

. Appellee s attache d to their summary 3 j udg ment motion copies of eac h side’s live pleading s and a Marc h 23, 2007 “Ope rative Note”
prepa red by Coronado that desc ribed Ta ra’ s surg ery

ear lier that day

. As the Stones acknow ledg e, appellee s’ motion and attachme nts met their summary judgme nt burden of establishing that the suit was filed afte r t h e expiration of section 74.251(a) ’s two-y ear limit ations period—limitations had expired on Marc h 23, 2009, and the Sto n es did not file suit until Dec ember 28 of that y ear . See id. As the g round for deny ing summa ry j u d gm ent
ag ainst their claims, the Stones soug ht to raise a g enuine issue of material fa ct i s s u e as to the applicability of the exception to this limit ations period compelled by the Open Courts provision of the Texas Constit ution—whether they lacke d a “re asonable oppo rt u n ity to discover the alleg ed

The Stones also sued the hospital wher e the 2007 surg ery was perf ormed , San Ang elo 2 Communi ty Medica l Center, L .L .C., as well as a radiolog ist and the profe ssional association that employ ed him

. The S tones later non-suited their cl ai m s ag ainst the radiologist and his employ er, and their c laims ag ainst San Ang elo Communit y Medica l Center we re la ter seve red. I n the absenc e of materia l inter vening substantive chang es, we cite to the curr ent version 3 of the c ode for

convenie nce. 2wrong and bring suit befor e the limit ations period expired.” W alters v. Cleveland Reg’l Med. Ctr. , 307 S. W

. 3 d 2 9 2 , 295 (Tex. 2010); see Tex. Const. art. I , § 13. To meet this burden, the Stones
prese nted essentially three cate g ories of summary -judg ment proof: (1) ten sets of medical rec ords from v arious providers conce rning Tara ’s s urg ery in 2007 and medical car e she rec eived in 2009, incl u ding car e leading up to the ultimate discovery and remova l of the spong e; (2) a document purporting to be a persona l cale ndar that Tara had maintained around the time the s p o n ge was discovere d; and (3) copies of condense d versions (4 pag es to 1) of the oral depositions of Tara and Coronado that did not include the witnesse s’ sig nature s or a r eporte r’s c ertification.

Ap p ellees objected to and moved to strike the entirety of the Stones’ summa ry judgme nt evidenc e on sever al evidentiar y and proce dural g rounds. The district c ourt excluded the medical rec ords as hear say , holding that the aff idavit on wh i ch t h e Stones had relied to prove up hear say exceptions, which had been prepa red by one of their attorney s, failed to prese nt fac ts establishing the foundation for any such exceptions. The court simil arly excluded the cale ndar for lack of foundation. On t he other hand, the district co u rt re j ecte d complaints by appellee s that the Stones’ failure to include witness s i g nature s or repor ter’s cer tifications with the depositions was fata l, and admitted and considere d that evidenc e in opposition to appellee s’ motion. Howeve r, concluding that the d eposi tion testimony did not raise a g enuine issue of materia l fac t as to the applicability of the Open Courts exception to limit ations, the district court g rante d a final summary judgme nt that the Stones take nothing on their cla ims ag ainst appellee s. 4

I t was in this same order that the district court sever ed out the S t o nes’ claims ag ainst 4 San Ang elo Communit y

Medica l Center, making the summary -judg ment order final. 3The S tones and appellees e ach f iled notices of a

ppeal. I n the first of t wo i ssues on appea l, the Stones urg e that the district court err ed in g ranting summary judgme nt for appellee s beca use, they asse rt , t h e ev i dence raised a g enuine issue of materia l fac t as to whether the Open C o u rt s ex ception to limit ations applies. I n their second issue, the Stones arg ue that the d i s t rict court abused its discretion in excluding the medical rec ords and cale ndar from evidenc e, which, in their view, raises further fac t issues reg arding the Open Courts exception. I n their crossappea l (or, alterna tively , as a cr o s s -p oint), appellee s complain that the district court abused its discretion in failing to exclu d e t h e two depositions. Be cause we conclude that Tara ’s deposition testimony is ultimately dispositi ve, we will beg in our analy sis with appellee s’ complaint challeng ing its admissi on. Whether to admit or ex cl u d e evidenc e lies within the sound discretion of the trial court. Owens-Corning Fiberglass Corp. v. Malone , 972 S.W .2d 35, 43 (Tex. 1998). We revie w

a trial court’s decision to admit or exclude evidenc e under an abuse- of-discr etion standard. National Liab. & Fire Ins. Co. v. Allen , 15 S.W .3d 525, 527-28 (Tex. 2000). The test for abuse of discretion is not whether , in our opinion, the fac ts prese nt an appropr iate case for the trial court’ s actions.
Downer v. Aquamarine Operators, Inc ., 701 S.W .2d 238, 241-42 (Tex

. 1 9 8 5 ). Rather, it is a question of whethe r the trial c ourt ac ted without refe renc e to a ny g uiding rules and pr inciples. Id.
I n other words, we must de termine whether the court’s r ulings we re a

rbitrar y or unrea sonable. Id

. at 242. The mere fac t that a trial court may decide a matter within its discretionar y authority in a differ ent manner than an appellate judge in a simil ar circ umstance does no t d em o n strate that an abuse of discretion has o cc u rr ed

. Id

. Nor does a mere err or of judgme nt amount to an abuse of discretion. Lofti n v. Martin , 776 S.W .2d 145, 146 (Tex. 1989).

4Although appellee s acknow ledg e on appea l t h at t h e copies of the two depositions

need not be authentica ted, see McConathy v. McConathy , 869 S.W .2d 341, 34 2 (T ex . 1 9 94) (per curia m), they asser

t that th e co p ies are nonetheless inadmissible beca use they are “unsworn and unsigne d,” citing Texas Rule of Evidence 60 3 (r eq u i ri ng that witnesses testify under oath or af firmation) a

nd sever al ca ses wher e testimony was e x cluded on that ba sis. See H ines v. Tex as Dep’ t of Family & Protective Servs. , No. 01-08 -0 0 0 45-CV, 2009 Tex. App. L EXI S 9759, at *10 (Tex. App.—Houston [1st Dist.] Dec

. 3, 20 0 9 , n o pet.) (mem. op.) (holding that g randmother ’s i n fo rmal statements in court wer e not testimony when “she spoke informally with the trial cou rt befor e the parties beg an prese nting evidence, an d neither party called her as a witness”); Carr

v. Hertz Corp. , 737 S.W .2d 12, 13 (Tex. App.—Corpus Christi 1987, no writ) (ho l d i n g t hat deposition excerpts wer e not summary -judg ment evidenc e beca use “th es e portions of deposition testimony do not ref

lect whether [deponents] wer e under oath upon g i v ing their testimony ”);
First State Bank of San Diego v. Duval Cnty. , 567 S.W .2d 271, 272 (Tex. Civ. App.—Waco 1978, writ ref ’d n.r.e.) (deposition aff

irmatively ref

lected that it was neither sworn to nor signe d); Grave s v. George Dull nig & Co. , 548 S.W .2d 502, 504 (Tex. Civ. App.—Eastland 1977, no writ) (where
summary -judg ment motion ref err ed to depositions “on file” that wer e neither actua lly filed with the
court nor attache d to the motion, an unsigne d copy that was rec eived, not filed, by the trial court afte r the motion was decide d could not constitute summary -judg ment evidenc e); Cauble v. Key , 256 S.W

. 654, 655 (Tex. Civ. Ap p.—Austin 1923, no writ) (holding that there was no statement of fac ts beca use “[t] h e b i l l s o f exception undisputedly show that on the trial the plaintiff was the only witness, and that he was not sworn”)

. The centr al fea ture in these case s, as they rela te to the use of depositions as summary -judg ment evidenc e, is that the deposition either aff irmatively showed that

5the wit ness had not been sw o rn , e. g. , First State Bank , 567 S.W .2d at 272, or depositi on excerpts

wer e submitt ed that did not show whether or not the witnes s h ad been sworn, Carr , 737 S.W .2d
at 13. The prese nt case is distinguishable. I n contra st to the case s on wh i ch ap p el l ees rely , the Stones attache d the entirety of the two depositions, and eac h ref lects that the witness was sworn prior to testify ing. Be cause eac h deposition on its fa ce ref lects that the witness was sworn prior to testify ing, the district court did not abuse its discretion in adm i t t i n g the depositions as summary judgme nt evidence

. We overrule appellee s’ issue. 5

Appellee s also cite sever al case s that addre ss instan ce s wh er e t here is a missing or 5 defe ctive jurat on an affidavit. See Ford Motor Co. v. L eggat , 904 S.W .2d 643, 645 (Tex. 1995); Perkins v. Critt enden , 4 6 2 S. W. 2d 565, 567-68 (Tex. 1970) (holding that beca use purported aff

idavit contained only acknow ledg ment, it was not an aff idavit at al l ); R esidential Dynamics, LLC v. Loveless , 186 S.W .3d 192,197 (Tex. A pp.—For t Worth 2006, no pet.) (noting that Perkins may not be curr ent Texas law and holding that aff idavit was suffic i en t b eca use, even without a jurat, it noted that aff

idavit had been sworn); Medford v. Medford , 68 S.W .3d 242, 247 (Tex. App.—For t Worth 2002, no pet.) (holding that statement that was not notarized was not aff idavit); Laman v. Big Spring State Hosp. , 970 S.W .2d 670, 672 (Tex. App.—Eastland 199 8 , p et. denied) (stating that aff idavits attache d to motions wer e fata lly defe ctive beca use they did not contain proper jurats); Clendennen v. W

illiams , 896 S.W .2d 257 (Tex

. Ap p .—Texarkana 1995, no writ) (stating that absenc e of jurat is a substantive defe ct rathe r than a defe ct of form, and it rende rs sta t em en t incompetent as summary -judg ment evidenc e). These case s either supp o rt the Stones’ position or have rec ently been overr

uled. I n Ford Motor Co. , the supreme court reje cted the arg ument that an aff idavit was invalid due to a defect i v e j u rat beca use the aff

idavit met the Texas statutory require ments for aff

idavits. 904 S

. W

. 2 d at 6 4 5. The supreme court noted that the aff idavit was valid, even without the j urat, because it cont ai n ed an acknowledg ment and recited that the affiant “wa s ‘first duly sworn,’ and ‘on his oath’ stated what followed.” Id. ; accord Residential Dynamics, LLC , 186 S.W .3d at 197. Rece ntly , in Mansions i n t h e Forest, L.P. v. Montgomery County , the supreme court held that neither the g overnme nt code nor Rule of Civil Pro ce d u re 1 6 6a require a summary -judg m en t aff idavit to contain a jurat. No. 10-0969, 2012 Tex. L EXI S 338, at *1 (Tex. Apr. 20, 2012) (per curia m). The supreme court explained t h at “t h e rec ord must contain s o m e evidence that the purported aff idavit was sworn to by [t he aff iant] befor e an author i z ed office r.” Id. at *7

. The court further overr uled Laman , Clendennen , Medford , and other such opinions to the extent that they wer e inconsistent w ith the court’s holding that, outside the context of aff idavits offe red to verify copies of documents, the absenc e of a jurat is not a defe ct of substance. Id. at *9-10. 6Having conclude d that the district court did not abuse its discretion in admitting the

two depositions into the summary -judg ment rec ord, we now turn to whether either raised a g enuine issue of materia l fac t as to wheth er t h e S t o n es lacke d a “re asonable opportunity to discover the alleg ed wr ong and bring suit before the limitations period expired.” W alters , 307 S.W .3d at 295. 6 “[C] ourts must deter

mine what constitutes a rea sonable time for a claimant to discover her injuries and file suit.” Id. (quoting Y ancy v. United Surgical Partners Int’l, In c. , 2 36 S.W .3d 778, 784 (Tex. 2007)). Howe ver, the underly ing f acts that be ar upon tha

t inquiry are asce rtained by revie w of the summary -judg ment evidenc e in the light most favor able to the Stones, indulg ing rea sonable infere nces a

nd resolving doubts in their favor. Id . at 296.
I n her deposition, Tara t es t ified that she first lear ned that a surg ical spong e had been le ft inside her body “within a day or t wo” after a September 29, 2009 doctor visit (i.e., on or about October 1, 2009 ), when she rec eived the results of a CT scan that had been perf ormed during her September 29 visit. Tara underw ent surg ery to remove the spong e a few wee ks later, on October 23. Tara acknow ledg ed that she had experience d lower abdominal pain and tender ness as

ear ly as “around two, three or four wee ks” before a September 16, 2009 doctor vis i t i n wh ich s he
soug ht trea tment conce rning a fung al infec tion. She repor ted her abdominal sy

mptoms to the doctor
trea ting her for the fung al condition, leading in turn to the September 29 visit with a differ ent doctor,

Appellee s asser

t that we should not consider the Stones’ first issue beca use the Stones have 6 not provided recor d cites i n compl i an ce with Texas Rule of Appellate Procedur e 38.1. Whil e the Stones perha

ps could have been more thoroug h in citing rec ord support for their fac tual asser tions, the cites they have provided support their fac ts and arg uments, and this Court was able to asce rtain from their brief the pertinent fac ts, leg al authority , and substantive analy sis. Cf. Valadez v. Avitia , 238 S.W .3d 843, 845 (Tex. App.—El Paso 2007, no pet.) (finding waiver wher e two-and- a-ha lf pag e brief la cked a

ny citations to authority

and did not contain a sta tement of the issues f or re view). 7who order ed the CT sc an. Tara testified that she had initially attributed her pain and discomfort to

the likely prese nce of scar tissue from three prior cae sarian sections (the one perf ormed by Coronado

was her third) and a tummy tuck, an idea or assumption that, acc ording to Tara, came from Coronado, who “said I don’t scar well and that—that I can expect some scar tissue.” Tara denied having been trea ted by any one for abdominal pain or a fung al infec tion prior to September 16, 2009.

During Tara ’s deposition, appellee s’ counsel, purportin g t o cite or quote various medical rec ords that counsel ultimately succe eded in having excluded from ev i d en ce , vigor ously

cross-e x amined Tara reg arding what wer e portray ed as admissions by T ar a to her health car e providers that she had experience d abdominal pain as ea rl y as September 2008 and had alre ady discovere d an abdominal mass as ear ly as three to four months prior t o h er September 16, 2009 doctor visit. I n response to these questions, Tara either denied having repor ted s uch fac ts to the provider or

claimed that she could not reme mber pre cisely what she told the provide r. Viewing this evidenc e in the light most favor able to the Stones, indulging rea sonable infere nces and resolving doubts in their favor , W alters , 307 S.W .3d at 296, Tara did not discover the spong e inside her until around Oc t o ber 1, 2009; had not experience d sy mptoms rela ted to the
spong e until mid-Aug ust to ear ly Sept em b er 2 0 0 9 ; and to the extent she had, she had attributed the sy mptoms—based on Coronado’s previous advic e—to the pre sence of sca r tissue. Appellee s’
arg uments to the contrar

y would have us deviate from the limit ations of our standard of revie w on summary judgme nt, and ultimately amount to attacks on the cre dibilit y and weig ht of the testimony from Ta ra tha t tends to favor he r position. We f urther conclude that this e vidence , viewed thr oug h the prism of our summary judgme nt revie w standar d, raises a g enuine issue of m ater ial fac t as t o whether the S tones lacke d

8a “re asonable opportunity ” to discover the alleg ed wrong and bring su it befor e the limit ations

period expired. I n rea ching this conclusion, we are g uided by the Texas Supre me Court’s analy sis in W alters. L ike the pre sent ca se, W alters revie wed a

summary judgme nt ba sed on the claimant’ s failure to bring her “spong e case ” wi thin the two-y ear statute of limit ations period. Id

. at 294.
I ndeed, Walters did not file suit until over nine-a nd-a- half y ear s afte r the disputed surg ery . Id

. The
court of appeal s conclude d limit ations applied beca use “(1) Walters experience d pain and various ailments immediately afte r her surg ery an d fo r y ear s there afte r, well befor e the spong e

was discovere d; and (2) she did not see a doctor for more than two y ear s afte r her surg ery . . . .” Id

. at 296. The supr eme c ourt disag ree d.

Whil e Walters experience d pain following surg ery , that fac t alone, in the
supreme court’s view, did not demonstrate that she should rea sonably have discovere d the spong e. Id

. The court pointed out evidenc e that a nurse had assured W alters “her abdominal pain was not indicative of a

problem with her sur g ery ,” but instead could be attributed to othe r cause s. Despite Walters’ repe ated complaints, her trea ting p h y s i ci an “did not diag nose a fore ign object or

rec ommend further testing or ref err al to a specia list.” Id

. After y ear s of pain and varie d diag noses, Walters’ g y

necolog ist discovere d an u nusual lump, which led to the surg ery that discovere d the
spong e. Id

. at 295. Gi v en t h es e fac ts, the supreme court was unwilling to conclude that Walters failed to raise a fac t issue as to whether she discovere d the spong e and broug ht suit within a

rea sonable time. Id. at 299.

The Texas Supreme Court further observe d that “‘[i] t is a virtual cer tainty that the patient has no knowledg e on the day following the surg ery —nor for a long time therea fter—tha t a fore ign object was left in the incision.’” Id. at 296 (quoting Gaddis v. Smith , 417 S.W .2d 577, 580

9(Tex. 1967), supersede d by statute , Professional L iability I nsuranc e for Phy sicians, Podiatrists, and

Hospitals Act of J une 3, 1975, 64th L eg ., R.S., ch. 330, § 1, 1975 Tex. Gen. L aws 864, 865, as stated in Morrison v. Chan , 699 S.W .2d 205, 208 (Tex. 1985)). I t added:
Sponge case s stand alo n e i n t he healthca re- liability context. First, they are rar e. Second, surg ical instruments do not rema in inside patients absent neg lige nce. Third, err ant items like spong es are exceeding ly difficult to discover. I n three of our spong e case s— Neagle , Rankin , and this case —the spong e was only discovere d afte r a lump was notice d on the claimant’ s body

.
Id. at 297 (footnotes omitted); see Methodist Healthcare Sys. o f S a n A n t onio, Ltd. v. Rankin , 307 S.W .3d 283 (Tex. 2010); Neagle v. Nelson , 685 S.W .2d 11 (Tex. 1985).

I f any thing, the summary -judg ment evidenc e here , taken as true, would establish that
Tara had even less of an opportunity to discover her injury than the claimant in W alters

. Unlike the claimant in W

alters who experience d constant pain and maladies for almost ten y ear s, Tara testified that she did not experience the abdominal pain that led to the spong e’s discovery until approximately two-and- a-ha lf y ear s following the surg ery . Tara further testified that less than two months passed betwee n her initial abdominal pain and the discove ry of the spong e. And pr ior to disc overy of the
spong e, Tara att ributed her pain and discomfort to the prese nce of scar tissue based on her discussions with Coronado. I nformed by the Texas Supreme Court’s g uidance in W alters , we hold that the Stones have also raised a fac t issue as to whether they lacke d a “re asonable opportunity ” to discover T ara ’s injury

prior to the expiration of limitations

. We likewise conclude that the S t o n es h ave raised a fac t issue as to whether they used due diligenc e in seeking judicial relief following the spong e’s discovery

. After the spong e was discovere d, the Stones obtained counse l and filed suit within roug hly two to three months. Ba sed

10on this e vidence , we have littl e trouble rea ching the same conclusion the supreme court rea ched in

W alters

. Id

. at 295 & n.17 (plaintiffs may not obta in r elief under the open cour ts provision if they do not use due dilige nce a nd sue within a re asonable time after lear ning a bout the alleg ed wr ong ).
We sustain the Stones’ first issue and need not rea ch their second. See Tex. R. App.
P. 47.1. We reve rse the district court’s summary judgme nt and rema nd the Stones’ claims for further
proce eding s.

__________________________________________ Bob Pembe rton, J ustice
Be fore Chief J ustice Jones, J ustices Pemberton a nd Rose
Reverse d and Remande d Filed: June 6, 2012

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