CORRECTED August 24, 2016

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 15-10358

ROBERT LEROY PASSMORE, III, Individually and as Next Friend of M. P. 

and A. P., minors; KELLY PASSMORE, 

 Plaintiffs - Appellants

v.

BAYLOR HEALTH CARE SYSTEM, doing business as Baylor Medical 

Center of Plano; BAYLOR REGIONAL MEDICAL CENTER OF PLANO; 

KIMBERLY MORGAN, APN, 

 Defendants - Appellees

Appeal from the United States District Court 

for the Northern District of Texas

Before DAVIS, BARKSDALE, and DENNIS, Circuit Judges.

PER CURIAM:

The Court having been polled at the request of one of its members, and 

a majority of the judges who are in regular active service and not disqualified 

not having voted in favor, rehearing en banc is DENIED. In the en banc poll, 

7 judges voted in favor of rehearing (Judges Jolly, Jones, Smith, Clement, 

Owen, Higginson, and Costa), and 8 judges voted against rehearing (Chief 

Judge Stewart and Judges Davis, Dennis, Prado, Elrod, Southwick, Haynes, 

United States Court of Appeals

Fifth Circuit

FILED

August 23, 2016

Lyle W. Cayce

Clerk
No. 15-10358

2

and Graves). Upon the filing of this order, the Clerk shall issue the mandate 

forthwith. See FED. R. APP. P. 41(b).
No. 15-10358

3

JONES, Circuit Judge, joined by SMITH, CLEMENT, and OWEN, dissenting 

from Denial of Rehearing En Banc,

With all due respect to the panel, this court is bound by Texas law to 

apply the same restrictions on the maintenance of medical malpractice suits 

that the state legislature prescribes for such suits filed in state courts. The 

panel’s decision to the contrary does not apply Erie-related concepts accurately 

and is in tension with our court’s recent en banc decision in Flagg v. Stryker 

Corp., which faithfully applied Erie rules to analogous Louisiana medical 

malpractice restrictions.1 This court held in Flagg that a plaintiff in a medical 

malpractice case must, under Louisiana law, exhaust procedures under the 

Louisiana Medical Malpractice Act.2

The panel held in this case that a Texas statute, § 74.351 of the Texas 

Civil Practices and Remedies Code, requiring a claimant in a health care 

liability case to file an expert affidavit within a certain time after suit is filed,

is procedural and does not apply in federal court proceedings. 

Respectfully, the panel here was mistaken in concluding that the 

requirement of the initial expert report under Texas law is procedural. Various 

federal courts have subjected affidavit-of-merit statutes to Erie analysis and 

concluded that such requirements are substantive.3 For example, in Liggon-

 

1 819 F.3d 132 (5th Cir. 2016).

2 Id. at 137–40.

3 In assessing whether a law is procedural or substantive under Erie, the Supreme 

Court has instructed courts to look to the twin aims of Erie: “discouragement of forumshopping and avoidance of inequitable administration of the laws.” Hanna v. Plumer, 

380 U.S. 460, 468 (1965). The Court has also suggested that courts might also consider inter 

alia whether a state rule is bound up with state-secured substantive rights and obligations. 

Byrd v. Blue Ridge Rural Elec. Co-op., Inc., 356 U.S. 525, 535–38 (1958).
No. 15-10358

4

Redding v. Estate of Sugarman, the Third Circuit concluded that a state law 

requirement that a document similar to the § 74.351 expert report be filed 

within sixty days of filing a professional negligence claim was a substantive 

requirement, because (1) failure to file the report necessitated dismissal, 

making the rule outcome-determinative; (2) failing to apply the state rule 

would encourage forum-shopping in the case of plaintiffs who could not secure 

expert support; and (3) failing to apply the state rule would lead to the 

inequitable administration of the laws, because “a non-diverse plaintiff in state 

court would be required to comply with the rule, while a plaintiff in federal 

court could avoid the certificate of merit requirement simply because he or she 

is a citizen of a different state.”4 

Similarly, in Trierweiler v. Croxton and Trench Holding Corp., the Tenth 

Circuit examined a state statute that required “plaintiffs’ attorneys in 

professional negligence cases to certify, within sixty days of filing the 

complaint, that an expert has examined their clients’ claims and found them 

to have substantial justification” and concluded that the statute was “bound 

up with the substantive right embodied in the state cause of action for 

professional negligence.”5 

The logic of these cases applies equally here: the Texas expert report 

requirement applies to a particular subset of tort claims and mandates 

 

4 659 F.3d 258, 264 (3d Cir. 2011).

5 90 F.3d 1523, 1537–38, 1541 (10th Cir. 1996) (internal quotation marks omitted); see 

also Chamberlain v. Giampapa, 210 F.3d 154, 161 (3d Cir. 2000) (“By requiring dismissal for 

failure to adhere to the statute [requiring the filing of an affidavit of merit within sixty days], 

the New Jersey legislature clearly intended to influence substantive outcomes. It sought 

early dismissal of meritless lawsuits, not merely to apply a new procedural rule. Clearly, 

failure to apply the statute in a federal diversity action where no affidavit of merit has been 

filed would produce a different outcome than that mandated in a state proceeding.”).
No. 15-10358

5

dismissal where a plaintiff is unable to adequately substantiate his or her 

claims. Although the rule concerns “procedure” insofar as it mandates that a 

particular type of document be served within a particular time period, “[t]he 

aspects . . . that are arguably procedural are plainly ‘bound up’ with ‘statecreated rights and obligations.’”6 

The Supreme Court of Texas has stated that “a section 74.351 threshold 

expert report has a unique purpose separate and apart from the procedural 

rules relating to discovery and typical expert reports. The legislature created 

the threshold report requirement as a substantive hurdle for frivolous medical 

liability suits before litigation gets underway.”7 

At the very least, the plaintiffs’ noncompliance with Texas law should be 

admissible and debatable in federal court.

Because this case concerns the intersection of state and federal law, and 

the opinion, as presently issued, cannot be reconciled with Flagg and creates a 

very real distinction between health care liability cases brought in federal 

court and those filed in state court, I respectfully dissent from the denial of 

rehearing en banc.

 

6 All Plaintiffs v. All Defendants, 645 F.3d 329, 337 (5th Cir. 2011) (quoting Byrd, 

356 U.S. at 535).

7 Spectrum Healthcare Res., Inc. v. McDaniel, 306 S.W.3d 249, 253 (Tex. 2010); but see 

Camacho v. Texas Workforce Comm’n, 445 F.3d 407, 412 n.2 (5th Cir. 2006) (“[W]hen courts 

divide substance from procedure under Erie, they should not ordinarily rest on state court 

opinions characterizing statutes as ‘procedural’ or ‘substantive’ in cases unrelated to the Erie

doctrine.”).