The Texas Supreme Court will hear oral arguments this morning in In re Khurso Rashid, M.D. (No. 23-0414) a petition for writ of mandamus arising from a Chapter 74, CPRC, health care liability case.
In the underlying suit, Anna Marie Moreno, et al. v. New San Antonio Specialty Hospital, LLC, et al. (No. 2020-CI-09445, 73rd District Court, Bexar County), plaintiff filed a wrongful death action against the physician, hospital, and other providers upon decedent’s death when recovering in a rehabilitation hospital from surgery to remove a non-cancerous brain tumor. Dr. Rashid, the hospitalist who admitted the decedent, as well as his co-defendant, a pulmonologist, timely served their expert witness designations and cross-designated all testifying experts, which included defendant pulmonologist and the pulmonologist’s two medical experts and economist expert. Plaintiff’s counsel decided not to depose any defense experts prior to trial. After the discovery deadline, defendants sought leave to depose plaintiff’s economics expert, to which plaintiff agreed. Two months later—six months after plaintiff designated the economist expert—that expert issued amended his calculations for decedent’s economic damages. Meanwhile, in accordance with the docketing order, plaintiff and defendants designated experts to testify at trial.
The trial date, however, was postponed due to a docketing error. The parties thus entered into a Rule 11 agreement modifying the relevant timelines of the docketing order. The trial was reset for January 9, 2023, then continued twice on joint motion of the parties. As of the filing of defendant’s petition for writ of mandamus, the trial setting was June 12, 2023. Plaintiff settled with the pulmonologist and other prior to the January trial setting, leaving Dr. Rashid in the case. On December 8, 2022, 32 days before trial, Dr. Rashid served supplemental disclosure responses and added the pulmonologist’s two specialist experts to his list of testifying experts (since they would no longer appear at trial otherwise). Dr. Rashid also submitted a supplemental expert report by one of those witnesses, an economist, in response to plaintiff’s expert’s amended report. Plaintiff moved to strike Dr. Rashid’s supplemental experts and the economist’s supplemental reports. After a hearing, the trial court granted the motion and struck the experts. On rehearing, the trial court denied it again. Dr. Rashid sought mandamus, which the San Antonio Court of Appeals denied. Dr. Rashid now seeks mandamus relief from SCOTX.
Dr. Rashid argues that since the settling pulmonologist made the original designation of the his experts and the substance of their testimony in a timely fashion according to the docketing, the trial court committed a clear abuse of discretion by striking those experts when Dr. Rashid originally served cross-designations and then designated them after the pulmonologist settled. He argued further that the supplemental report served by the expert economist was timely because it responded to plaintiff’s supplemental report on the damages issue. Plaintiff could thus not have been unfairly prejudiced or surprised by the designations, much less “ambushed” as plaintiff alleged. Additionally, Dr. Rashid argues that his designations were timely filed anyway since, when the trial was initially continued, the deadlines contained in the prior docketing order no longer applied and the trial court never issued new ones. As a practical matter, Dr. Rashid points out, plaintiff (at the time mandamus was filed) had had more than a year to rebut the testimony of his experts, again negating surprise. The upshot of the trial court’s order was to deprive Dr. Rashid of his defense, especially as to the issue of damages, leaving him with no adequate remedy on appeal.
It’s interesting that the Court decided to hear arguments rather than correcting error in a per curiam opinion without argument. as it has done fairly frequently of late. We will find out soon enough what specifically caught the Court’s attention here, but whatever it is suggests that this case is not merely a one-off but raises broader issues.
