IN THE

TENTH COURT OF APPEALS

No. 10-20-00081-CV

CARLY CASSADY,

Appellant

v.

KIMBERLY N. HAYNES, D.M.D. 

AND HAYNES DENTAL, PLLC 

D/B/A ASPEN DENTAL,

Appellees

From the 361st District Court

Brazos County, Texas

Trial Court No. 19-001407-CV-361

MEMORANDUM OPINION

This is a health care liability claim filed by Carly Cassady against Kimberly N. 

Haynes, D.M.D., and Haynes Dental, PLLC D/B/A Aspen Dental. At issue in this case is 

the sufficiency of two expert reports filed by Cassady, one by Dr. Mel Hawkins and the 

other by Dr. Chuck Majors. Dr. Haynes, Haynes Dental, and Aspen filed objections to 

the two reports and asked the trial court to dismiss Cassady’s lawsuit because the reports 
Cassady v. Haynes et al. Page 2

were not sufficient under the Texas Medical Liability Act. The trial court sustained the 

objections as to Dr. Hawkins’s report, overruled the objections as to Dr. Majors’s report, 

and it denied the motion to dismiss.

As a preliminary matter, we note that Dr. Haynes, Haynes Dental, PLLC D/B/A 

Aspen Dental filed a notice of appeal with the District Clerk of Brazos County on 

February 26, 2020. They appeal from that portion of the order of the trial court in which 

the trial court overruled their objections to Dr. Majors’s report. They also appeal the trial 

court’s denial of their motion to dismiss.

The next day, February 27, 2020, Cassady filed her notice of appeal with the 

District Clerk of Brazos County. In Cassady’s notice of appeal, she challenges the trial 

court’s order “only in so far as the Order sustains the Defendants’ objections to Dr. Mel 

Hawkins’ Chapter 74 Report.”

This appeal has been docketed in this court to designate Cassady as the 

Appellant/Cross-Appellee and Dr. Haynes, Haynes Dental, PLLC D/B/A Aspen Dental 

are designated as Appellees/Cross-Appellants. We will refer to the parties either by name 

or as docketed in this court.

In her lawsuit, Cassady alleged that she went to Dr. Haynes for what was to be a 

routine filling procedure. The claim is that Dr. Haynes improperly administered a local 

anesthetic and caused the needle to penetrate an artery in her mouth. Cassady became 
Cassady v. Haynes et al. Page 3

ill, her skin turned pale, and she passed out. She also began to experience a convulsive 

seizure and full body contractions. Further, she began to vomit violently.

Someone in Dr. Haynes’s office called EMS, and she was taken to the hospital by 

ambulance where she was treated by hospital personnel. Cassady alleged that at some 

point she began to suffer from back pain, neck pain, shoulder pain, difficulty of speech, 

soreness, weakness, decreased flexibility, muscle spasms, fatigue, and nausea.

Cassady alleged some eight acts of negligence and pleaded that each constituted 

a breach of the standard of care and that each, alone or in concert with the others, was a 

proximate cause of the occurrence and her damages.

This lawsuit is subject to the Texas Medical Liability Act. See TEX. CIV. PRAC. &

REM. CODE ANN. ch. 74 (West). Under the provisions of Section 74.351(a) of the TMLA, a 

plaintiff who asserts a health care liability claim must submit an expert report, along with 

the expert's curriculum vitae, as to each physician or health care provider named as a 

defendant in the suit, no later than the 120th day after the date each defendant files its 

original answer. TEX. CIV. PRAC. & REM. CODE ANN. §74.351(a) (West).

Under Section 74.351(r)(6) of the TMLA, an expert report is a written report 

providing “a fair summary of the expert's opinions ... 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.” TEX. CIV. PRAC. & REM. CODE ANN. §74.351(r) (West).
Cassady v. Haynes et al. Page 4

If a plaintiff timely files an expert report and the defendant moves to dismiss 

because the report is inadequate, the trial court must grant the motion “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 Section 74.351(r)(6). TEX. CIV. PRAC.

& REM. CODE ANN. §74.351(l) (West).

To constitute a “good-faith effort,” the report must contain enough information to 

fulfill two purposes: (1) it must inform the defendant of the specific conduct the plaintiff 

has called into question and (2) it must provide a basis for the trial court to conclude that 

the claims have merit. Bowie Mem'l Hosp. v. Wright, 79 S.W.3d 48, 52 (Tex. 2002); Am. 

Transitional Care Ctrs. of Tex., Inc. v. Palacios, 46 S.W.3d 873, 879 (Tex. 2001). “A valid 

expert report has three elements: it must fairly summarize the applicable standard of care; 

it must explain how a physician or health care provider failed to meet that standard; and 

it must establish the causal relationship between the failure and the harm alleged.” 

Certified EMS, Inc. v. Potts, 392 S.W.3d 625, 630 (Tex. 2013) (citing TEX. CIV. PRAC. & REM.

CODE ANN. § 74.351(r)(6)).

A report that merely reflects the expert's conclusions about the standard of care, 

breach, and causation does not meet the statutory requirements. Wright, 79 S.W.3d at 52. 

When a trial court determines whether the report represents a good-faith effort, its 

inquiry is limited to the four corners of the report. Section 74.351(r)(6); Palacios, 46 S.W.3d 

at 878.
Cassady v. Haynes et al. Page 5

We review a trial court’s decision on the adequacy of an expert report under the 

TMLA for an abuse of discretion. Miller v. JSC Lake Highlands Operations, LP, 536 S.W.3d 

510, 512 (Tex. 2017) (citing Van Ness v. ETMC First Physicians, 461 S.W.3d 140, 142 (Tex. 

2015) (per curiam)); Palacios, 46 S.W.3d at 877 (Tex. 2001). “A trial court abuses its 

discretion if it rules without reference to guiding rules or principles.” Miller, 536 S.W.3d 

at 512-13 (quoting Van Ness, 461 S.W.3d at 142). “When reviewing matters committed to 

the trial court's discretion, ‘the reviewing court may not substitute its judgment for that 

of the trial court.’” Miller, 536 S.W.3d at 513 (quoting Walker v. Packer, 827 S.W.2d 833, 

839 (Tex. 1992)).

A trial court does not abuse its discretion simply because it may decide a matter 

within its discretion differently than an appellate court would determine the issue. 

Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 242 (Tex. 1985). However, a clear

failure by the trial court to analyze or apply the law correctly will constitute an abuse of 

discretion. Walker, 827 S.W.2d at 840.

We will first examine the expert report authored by Dr. Hawkins.

A large portion of Dr. Hawkins’s report consists of a verbatim recitation of the 

notes made by Dr. Haynes. Dr. Hawkins notes that there is an “absence of . . . information 

about the syringe and needle used.” Later in his report, Dr. Hawkins again notes the lack 

of information about needle size and type of syringe used by Dr. Haynes. According to 

Dr. Hawkins, that information would not be recorded “even by most wise and prudent 
Cassady v. Haynes et al. Page 6

dentists in practice and would require the dental assistant to testify that her dentist did 

in fact ‘pull back’ on the thumb ring to perform the aspiration, assuming the DA saw it 

and even understands what aspiration is. . ..”

Dr. Hawkins opines that the “standard of the procedure(s) in this issue include the 

use of a 25 ga. needle to do an inferior alveolar block, lingual block as taught in the 

majority of Universities in the USA and Canada concurrent with a self aspirating syringe. 

. . . ” Dr. Hawkins states, “I do not have enough information to comment further as stated 

elsewhere in this report.”

In his opinion as to the breach of the “standard of the procedure,” Dr. Hawkins’s 

analysis assumes the use of a 30 ga. needle and manual syringe, the very information that 

Dr. Hawkins noted that he did not have available to him. He states, “breach could have 

been a factor in causing injury, assuming a 30 ga. needle was used, it is probable to say 

that aspiration could not be done. Using a barbed type manual syringe, it is anybody’s 

guess. . . “

Through no fault of his own, Dr. Hawkins knew neither the size of the needle nor 

the type of syringe that Dr. Haynes used nor how she used it. Yet, Dr. Hawkins’s 

opinions were based upon the assumption of the use of a specific needle size and a certain 

type syringe.

When Dr. Hawkins addressed the causal relationship between any failure to meet 

the standard of care and the injuries alleged by Cassady, he stated, “I was not there at the 
Cassady v. Haynes et al. Page 7

time of the adverse event or at any other time to date to observe the injuries and can only 

rely on the chart notes and pt. descriptions.” He continued, “Discovery conducted in the 

future may reveal more facts which would potentially offer more clarification re: breach 

and causation of injury.”

 A plaintiff is not required to marshal all its proof in an expert report. However, 

the expert “must discuss the standard of care, breach, and causation with sufficient 

specificity to inform the defendant of the conduct the plaintiff has called into question 

and to provide a basis for the trial court to conclude that the claims have merit.” American 

Transitional Care Centers of Texas, Inc. v. Palacios, 46 S.W.3d 873, 878 (Tex. 2001). 

Even if Dr. Hawkins has set forth the applicable standard of care, there is nothing 

in his report to show how Dr. Haynes failed to meet that standard. Dr. Hawkins’s report 

was based upon the assumption that a certain size needle was used with a certain type 

syringe, but there is nothing in the report to indicate what size and type Dr. Haynes used.1 

Further, there is nothing in the report to connect any such failure to the “injury, harm, or

damages claimed” by Cassady. The trial court did not abuse its discretion when it found 

Dr. Hawkins’s report to be deficient. We overrule Cassady’s issue on appeal in which 

she claims otherwise.

1 Toward the end of the 120 day period in which Cassady had to file her expert report, her lawyer 

telephoned the lawyer for Cross-Appellants and asked him about the needle size and type of syringe; 

Cross-Appellant’s lawyer declined to give him the information. No formal discovery was ever sought as 

provided for in section 74.351(s) of the Texas Civil Practice & Remedies Code. TEX. CIV. PRAC. & REM. CODE 

ANN. §74.351 (s) (West).
Cassady v. Haynes et al. Page 8

We next examine the report prepared by Dr. Chuck Majors. The trial court ruled 

that Dr. Majors’s report was sufficient under the TMLA. Accordingly, the trial court 

overruled the objections leveled against the report by Dr. Haynes and her co-defendants; 

it also denied the motion to dismiss filed by them.

In their brief, Cross-Appellants do not set forth “issues on appeal.” Instead, they 

present their contentions under a section of their brief entitled “Arguments & 

Authorities.” In the heading of a section of their brief denominated as “II” CrossAppellants state, “Cassady fails to resuscitate Dr. Majors’ report.” In essence, in this 

section of Cross-Appellants’ brief, they attack the trial court’s ruling that Dr. Majors’s

report was an adequate expert report under the TMLA.

Dr. Majors states that when Dr. Haynes administered the numbing injection, 

Cassady experienced an instant burning sensation in her lip on the lower right side. Dr. 

Majors opined that “[t]his was an indication that the needle had penetrated the 

neurovascular bundle where the artery is located.” Dr. Majors described the physical 

changes that occurred within a minute of the numbing injection administered by Dr. 

Haynes. It was Dr. Majors’s “professional opinion that the episode was likely caused by 

inadvertent intravascular injection of the local anesthetic used by the doctor to numb the 

patient.” He further stated that “the episode was caused by the injection into the blood 

stream.”
Cassady v. Haynes et al. Page 9

In his report, Dr. Majors refers to a statement in the “Handbook of Local 

Anesthesia” in which the author takes the position that with a proper injection technique 

and with the use of an aspirating syringe, an injection into the inferior alveolar artery 

should not occur. However, nowhere in the report does Dr. Majors set forth what that 

proper injection technique is. Nor does Dr. Majors state how Dr. Haynes failed to follow 

the proper injection technique, whatever that might be. We conclude that Dr. Majors did 

not set forth the applicable standard of care and how Dr. Haynes breached that standard 

of care.

Further, as to the causal relationship between any breach and injury, Dr. Majors 

stated that “As [Cassady’s] body was in a tonicclonic seizure resulting in full body 

contractions, somehow, she injured her neck and back.” (emphasis added). The use of the 

word “somehow” is telling as to the lack of the adequacy of the report as to causation. 

Further, the stated qualifications of Dr. Majors do not speak to his ability to opine as to 

Cassady’s non-dental injuries such as back pain, neck pain, shoulder pain, difficulty of 

speech, soreness, weakness, decreased flexibility, muscle spasms, fatigue, and nausea.

We hold that the trial court abused its discretion when it ruled that Dr. Majors’s

report was sufficient under the TMLA. We sustain Cross-Appellants’ argument that Dr. 

Majors’s report was an inadequate expert report under the TMLA.

Cassady correctly states that Dr. Hawkins’s report and Dr. Majors’s reports can be 

considered together on the issue of the adequacy of expert opinion. “Expert reports can 
Cassady v. Haynes et al. Page 10

be considered together in determining whether the plaintiff in a health–care liability 

action has provided adequate expert opinion regarding the standard of care, breach, and 

causation.” Salais v. Texas Dep't of Aging & Disability Servs., 323 S.W.3d 527, 534 (Tex. 

App.—Waco 2010, pet. denied). In this case, however, neither expert report supplies 

information sufficient to overcome deficiencies in the other.

Our holdings as above set forth obviate the necessity to discuss any other issues 

raised in this appeal.

Section 74.351(c) of the TMLA provides that if a report is found deficient, the court 

may grant one 30-day extension to the plaintiff in order to cure the deficiency. TEX. CIV.

PRAC. & REM. CODE ANN. § 74.351(c) (West).

We affirm the judgment of the trial court insofar as it held that the report of Dr. 

Hawkins was insufficient as an expert report under the TMLA. We reverse that part of 

the judgment of the trial court wherein it found that Dr. Majors’s report was sufficient as 

an expert report under the TMLA. We remand that issue to the trial court for it to 

determine whether to grant Cassady a 30-day extension in order to cure the deficiencies 

in the report.

JIM R. WRIGHT

Senior Chief Justice
Cassady v. Haynes et al. Page 11

Before Chief Justice Gray,

Justice Johnson,

and Justice Wright2

Affirmed

Opinion delivered and filed June 1, 2022

[CV06]

2 The Honorable Jim R. Wright, Senior Chief Justice (Retired) of the Eleventh Court of Appeals, 

sitting by assignment of the Chief Justice of the Texas Supreme Court. See TEX. GOV’T CODE ANN. §§ 

74.003, 75.002, 75.003.