MEMORANDUM OPINION No. 04-10-00188-CV
Judith THOMAS and John Thomas, Appellants
v.
Eugene N. CLAYTON, III, M.D., Appellee
From the 198th Judicial District Court, Kerr County, Texas Trial Court No. 08-1292-B The Honorable M. Rex Emerson, Judge Presiding
Opinion by: Phylis J. Speedlin, Justice
Sitting: Karen Angelini, Justice Phylis J. Speedlin, Justice Rebecca Simmons, Justice
Delivered and Filed: September 8, 2010
AFFIRMED
Judith and John Thomas appeal the trial court’s grant of Dr. Eugene Clayton’s no-
evidence summary judgment motion in a health care liability suit. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Judith and John Thomas (collectively “Thomas”) filed a medical malpractice lawsuit
against Dr. Eugene Clayton in May 2008, and served Dr. Clayton with a 120-day expert report
written by Dr. Marvin Tark as required under section 74.351 of the Texas Civil Practice and 04-10-00188-CV
Remedies Code. TEX. CIV. PRAC. & REM. CODE ANN. § 74.351 (Vernon Supp. 2009). The trial
court entered a scheduling order in July 2009 establishing deadlines for expert designations and
dispositive motions, and setting a trial date of March 9, 2010. Pursuant to the scheduling order,
Thomas designated Dr. Tark as her testifying expert in September 2009. Dr. Clayton noticed Dr.
Tark for oral deposition in December 2009, but, at the request of counsel for Thomas, Dr. Tark’s
deposition was rescheduled for January 11, 2010. During his deposition, Dr. Tark recanted his
criticisms of Dr. Clayton thus leaving Thomas without an expert against Dr. Clayton. Both
parties then filed motions seeking relief from the trial court’s scheduling order. Because the
deadline for expert designations had expired, Thomas filed a motion asking the court “for
addition[al] time to attempt to secure a new expert.” Because the deadline for dispositive
motions had passed and because trial was set to begin in less than 30 days, Dr. Clayton asked the
trial court for permission to file a no-evidence motion for summary judgment arguing that it
would be pointless to go to trial without an expert critical of Dr. Clayton. The trial court denied
Thomas’s request, granted Dr. Clayton’s motion to file an untimely dispositive motion, and
ultimately granted a no-evidence summary judgment in favor of Dr. Clayton. This appeal
followed.
ANALYSIS
Motion to Extend Time to Designate Expert
Thomas first argues the trial court abused its discretion when it denied her request for an
extension to secure and designate a second expert to rebut Dr. Clayton’s no-evidence motion for
summary judgment. Thomas argues she relied in good faith upon the testimony of her first
expert, Dr. Tark, in presenting her case, and was left without an expert when Dr. Tark reversed
his opinions after the deadline for designation of experts had passed. Thomas further argues that
-2- 04-10-00188-CV
her request for additional time to designate an expert is analogous to a one-time 30-day request
to cure a timely served expert report that is found deficient under TEX. CIV. PRAC. & REM. CODE
ANN. § 74.351(a) (Vernon Supp. 2009).
An appellate court will not interfere with a trial court’s broad discretion to manage and
control its docket absent a showing of clear abuse of that discretion. Clanton v. Clark, 639
S.W.2d 929, 931 (Tex. 1982). A trial court abuses its discretion if it acts arbitrarily or
unreasonably, without reference to guiding rules or principles. Downer v. Aquamarine
Operators, Inc., 701 S.W.2d 238, 241–42 (Tex. 1985). The record here establishes that at the
time Thomas sought to extend time to designate an expert, her medical malpractice suit had been
on file for approximately twenty-one months. The scheduling order at issue had been in place
for over seven months, listed over twelve separate deadlines leading up to the March 9, 2010 trial
setting, and required the designation of all experts at least four months prior to trial. Although
the record does establish that Thomas had contact with Dr. Tark early in the suit because he
provided the initial 120-day expert report, the record is otherwise devoid of information about
the due diligence employed by Thomas to secure the testimony of an expert in support of her
cause of action. See Joe v. Two Thirty Nine Joint Venture, 145 S.W.3d 150, 161 (Tex. 2004)
(factors used to review the denial of a motion seeking additional time to conduct discovery
include the length of time the case has been on file, the materials and purpose of the discovery
sought, and whether the party seeking the continuance exercised due diligence).
Additionally, we are not persuaded by the argument that the trial court should have
treated Thomas’s request for additional time to designate in the same manner as a 30-day request
to cure a timely-served but deficient expert report under section 74.351(a). TEX. CIV. PRAC. &
REM. CODE ANN. § 74.351(a). First, this statute applies only to the initial 120-day report
-3- 04-10-00188-CV
required under section 74.351. Id. Even then, the legislature only intended to provide a grace
period when the inadequate report was “the result of an accident or mistake.” Id.; see In re
Roberts, 255 S.W.3d 640, 641 (Tex. 2008) (per curiam) (whole purpose of requiring the 120-day
expert report is “to preclude extensive discovery and prolonged litigation in frivolous cases”).
Dr. Tark’s initial report was never challenged as deficient. Instead, his opinions as a testifying
expert, formed after discovery and after additional medical records were provided to him, simply
changed. Under the facts and circumstances of this case, we cannot conclude the trial court’s
denial of Thomas’s request for additional time was arbitrary or unreasonable. Thomas’s first
issue is overruled.
No-evidence Motion for Summary Judgment
Thomas next argues the trial court erred in rendering summary judgment because, even
without a medical expert, she produced sufficient evidence to raise a genuine issue of material
fact under the doctrine of res ipsa loquitur. The common law doctrine of res ipsa loquitur,
meaning “the thing speaks for itself,” is actually a principle of evidence that allows the jury to
infer negligence under certain limited circumstances. Haddock v. Arnspiger, 793 S.W.2d 948,
950 (Tex. 1990). Specifically, two factors must be present for the doctrine to apply: “(1) the
character of the accident is such that it would not ordinarily occur in the absence of negligence;
and (2) the instrumentality causing the injury is shown to have been under the management and
control of the defendant.” Id. (citing Mobil Chem. Co. v. Bell, 517 S.W.2d 245, 251 (Tex.
1974)). Historically, res ipsa loquitur did not generally apply to medical malpractice lawsuits.
Haddock, 793 S.W.2d at 950–51. In 1977, our Texas legislature further restricted the use of the
doctrine in medical liability suits to only those types of cases where it had been previously
applied by Texas courts. Id. at 950; see TEX. CIV. PRAC. & REM. CODE ANN.
Free access — add to your briefcase to read the full text and ask questions with AI
MEMORANDUM OPINION No. 04-10-00188-CV
Judith THOMAS and John Thomas, Appellants
v.
Eugene N. CLAYTON, III, M.D., Appellee
From the 198th Judicial District Court, Kerr County, Texas Trial Court No. 08-1292-B The Honorable M. Rex Emerson, Judge Presiding
Opinion by: Phylis J. Speedlin, Justice
Sitting: Karen Angelini, Justice Phylis J. Speedlin, Justice Rebecca Simmons, Justice
Delivered and Filed: September 8, 2010
AFFIRMED
Judith and John Thomas appeal the trial court’s grant of Dr. Eugene Clayton’s no-
evidence summary judgment motion in a health care liability suit. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Judith and John Thomas (collectively “Thomas”) filed a medical malpractice lawsuit
against Dr. Eugene Clayton in May 2008, and served Dr. Clayton with a 120-day expert report
written by Dr. Marvin Tark as required under section 74.351 of the Texas Civil Practice and 04-10-00188-CV
Remedies Code. TEX. CIV. PRAC. & REM. CODE ANN. § 74.351 (Vernon Supp. 2009). The trial
court entered a scheduling order in July 2009 establishing deadlines for expert designations and
dispositive motions, and setting a trial date of March 9, 2010. Pursuant to the scheduling order,
Thomas designated Dr. Tark as her testifying expert in September 2009. Dr. Clayton noticed Dr.
Tark for oral deposition in December 2009, but, at the request of counsel for Thomas, Dr. Tark’s
deposition was rescheduled for January 11, 2010. During his deposition, Dr. Tark recanted his
criticisms of Dr. Clayton thus leaving Thomas without an expert against Dr. Clayton. Both
parties then filed motions seeking relief from the trial court’s scheduling order. Because the
deadline for expert designations had expired, Thomas filed a motion asking the court “for
addition[al] time to attempt to secure a new expert.” Because the deadline for dispositive
motions had passed and because trial was set to begin in less than 30 days, Dr. Clayton asked the
trial court for permission to file a no-evidence motion for summary judgment arguing that it
would be pointless to go to trial without an expert critical of Dr. Clayton. The trial court denied
Thomas’s request, granted Dr. Clayton’s motion to file an untimely dispositive motion, and
ultimately granted a no-evidence summary judgment in favor of Dr. Clayton. This appeal
followed.
ANALYSIS
Motion to Extend Time to Designate Expert
Thomas first argues the trial court abused its discretion when it denied her request for an
extension to secure and designate a second expert to rebut Dr. Clayton’s no-evidence motion for
summary judgment. Thomas argues she relied in good faith upon the testimony of her first
expert, Dr. Tark, in presenting her case, and was left without an expert when Dr. Tark reversed
his opinions after the deadline for designation of experts had passed. Thomas further argues that
-2- 04-10-00188-CV
her request for additional time to designate an expert is analogous to a one-time 30-day request
to cure a timely served expert report that is found deficient under TEX. CIV. PRAC. & REM. CODE
ANN. § 74.351(a) (Vernon Supp. 2009).
An appellate court will not interfere with a trial court’s broad discretion to manage and
control its docket absent a showing of clear abuse of that discretion. Clanton v. Clark, 639
S.W.2d 929, 931 (Tex. 1982). A trial court abuses its discretion if it acts arbitrarily or
unreasonably, without reference to guiding rules or principles. Downer v. Aquamarine
Operators, Inc., 701 S.W.2d 238, 241–42 (Tex. 1985). The record here establishes that at the
time Thomas sought to extend time to designate an expert, her medical malpractice suit had been
on file for approximately twenty-one months. The scheduling order at issue had been in place
for over seven months, listed over twelve separate deadlines leading up to the March 9, 2010 trial
setting, and required the designation of all experts at least four months prior to trial. Although
the record does establish that Thomas had contact with Dr. Tark early in the suit because he
provided the initial 120-day expert report, the record is otherwise devoid of information about
the due diligence employed by Thomas to secure the testimony of an expert in support of her
cause of action. See Joe v. Two Thirty Nine Joint Venture, 145 S.W.3d 150, 161 (Tex. 2004)
(factors used to review the denial of a motion seeking additional time to conduct discovery
include the length of time the case has been on file, the materials and purpose of the discovery
sought, and whether the party seeking the continuance exercised due diligence).
Additionally, we are not persuaded by the argument that the trial court should have
treated Thomas’s request for additional time to designate in the same manner as a 30-day request
to cure a timely-served but deficient expert report under section 74.351(a). TEX. CIV. PRAC. &
REM. CODE ANN. § 74.351(a). First, this statute applies only to the initial 120-day report
-3- 04-10-00188-CV
required under section 74.351. Id. Even then, the legislature only intended to provide a grace
period when the inadequate report was “the result of an accident or mistake.” Id.; see In re
Roberts, 255 S.W.3d 640, 641 (Tex. 2008) (per curiam) (whole purpose of requiring the 120-day
expert report is “to preclude extensive discovery and prolonged litigation in frivolous cases”).
Dr. Tark’s initial report was never challenged as deficient. Instead, his opinions as a testifying
expert, formed after discovery and after additional medical records were provided to him, simply
changed. Under the facts and circumstances of this case, we cannot conclude the trial court’s
denial of Thomas’s request for additional time was arbitrary or unreasonable. Thomas’s first
issue is overruled.
No-evidence Motion for Summary Judgment
Thomas next argues the trial court erred in rendering summary judgment because, even
without a medical expert, she produced sufficient evidence to raise a genuine issue of material
fact under the doctrine of res ipsa loquitur. The common law doctrine of res ipsa loquitur,
meaning “the thing speaks for itself,” is actually a principle of evidence that allows the jury to
infer negligence under certain limited circumstances. Haddock v. Arnspiger, 793 S.W.2d 948,
950 (Tex. 1990). Specifically, two factors must be present for the doctrine to apply: “(1) the
character of the accident is such that it would not ordinarily occur in the absence of negligence;
and (2) the instrumentality causing the injury is shown to have been under the management and
control of the defendant.” Id. (citing Mobil Chem. Co. v. Bell, 517 S.W.2d 245, 251 (Tex.
1974)). Historically, res ipsa loquitur did not generally apply to medical malpractice lawsuits.
Haddock, 793 S.W.2d at 950–51. In 1977, our Texas legislature further restricted the use of the
doctrine in medical liability suits to only those types of cases where it had been previously
applied by Texas courts. Id. at 950; see TEX. CIV. PRAC. & REM. CODE ANN. § 74.201 (Vernon
-4- 04-10-00188-CV
2005). Therefore, the doctrine has limited application in a medical malpractice suit. “[A]n
exception is recognized when the nature of the alleged malpractice and injuries are plainly within
the common knowledge of laymen, requiring no expert testimony. Examples of this exception
include negligence in the use of mechanical instruments, operating on the wrong portion of the
body, or leaving surgical instruments or sponges within the body.” Haddock, 793 S.W.2d at 951.
Thomas argues that res ipsa loquitur should apply in this case because her injury
occurred at the time Dr. Clayton negligently performed a lumbar epidural procedure on her, a
procedure which was entirely under his management and control. Therefore, she maintains the
trial court erred in granting the no-evidence summary judgment motion. We disagree. To apply
the doctrine of res ipsa loquitur to a case involving the use of a mechanical instrument, the
plaintiff must prove that the use of the instrument is a matter within the common knowledge of
laymen. Id. at 950. Here, Thomas’s response to Dr. Clayton’s no-evidence motion for summary
judgment wholly failed to address the issue of a layman’s knowledge about the procedure at
issue. Moreover, we conclude the performance of a lumbar epidural steroid injection into the
lumbar spine with the use of magnetic resonance imaging is clearly not within the common
knowledge of a layman. See, e.g., id. at 954 (use of a flexible colonoscope for a proctologic
examination is not a matter within the common knowledge of laymen); Spinks v. Brown, 103
S.W.3d 452, 459 (Tex. App.—San Antonio 2002, pet. denied) (insertion of a foley catheter is not
commonplace for average juror); Schorp v. Baptist Mem’l Health Sys., 5 S.W.3d 727, 735 (Tex.
App.—San Antonio 1999, no pet.) (insertion of an arterial line into the radial artery is not within
a juror’s common sense); Hamilton v. Sowers, 554 S.W.2d 225, 228 (Tex. Civ. App.—Fort
Worth 1977, writ dism’d) (administering dye for a coronary arteriogram and aortogram is not
within common knowledge of laymen); Sw. Tex. Methodist Hosp. v. Mills, 535 S.W.2d 27, 30
-5- 04-10-00188-CV
(Tex. Civ. App.—Tyler 1976, writ ref’d n.r.e.) (claimed negligence of nurse in making
hypodermic injection of anesthetics is not within common knowledge of laymen). Accordingly,
the doctrine of res ipsa loquitur does not apply to the present case. Thomas’s second issue is
overruled, and the trial court’s summary judgment is affirmed.
Phylis J. Speedlin, Justice
-6-