In=20
The
Court of=20
Appeals
For The
First =
District of=20
Texas
NO.=20
01-07-00360-CV
JOI M. =
FINDLEY-SMITH, M.D. AND PEGGY TAYLOR, M.D., P.A.,=20
Appellants
V.
HOLLY =
SMITH AND=20
HUSBAND, CHRISTOPHER SMITH, INDIVIDUALLY AND A/N/F OF CAMERON =
SMITH, A=20
MINOR, Appellees
On =
Appeal from the=20
281st District Court
Harris =
County,=20
Texas
Trial =
Court Cause=20
No. 2006-62615
MEMORANDUM=20
OPINION
<=
/SPAN>In this interlocutory appeal, appellants, Joi M.=20
Findley-Smith, M.D. and Peggy Taylor, M.D., P.A., challenge the =
trial=20
court=E2=80=99s order that denied their motion to dismiss a health =
care liability=20
claim of appellees, Holly Smith and Husband, Christopher Smith,=20
Individually and a/n/f of Cameron Smith, A Minor. In two issues on =
appeal,=20
appellants argues that (1) the trial court erred in failing to =
dismiss the=20
healthcare liability claim because the expert reports were =
deficient and=20
(2) the trial court erred in denying objections to the expert=20
reports.
<=
/SPAN>We=20
affirm.
Background
<=
/SPAN>Appellees=20
have pled a healthcare liability claim related to the medical care =
and=20
treatment appellee Holly Smith received from appellants. Appellees =
filed a=20
medical malpractice suit against appellants ![3DFootnote](3D"")
on September 29, 2006. Appellees alleged =
that on=20
July 19, 2004, prior to the conception of Cameron Smith, Holly =
Smith=20
=E2=80=9Csought medical advice and counseling regarding her =
ability and/or=20
advisability of becoming pregnant and whether she should seek =
genetic=20
testing prior to doing so=E2=80=9D due to a family history of =
cerebral palsy and=20
hydrocephalus. Appellees alleged in their petition that Dr. =
Findley-Smith=20
informed them that =E2=80=9C[h]ydrocephalus was not genetic and =
she should not=20
worry about the information regarding her family history. =
Defendants=20
failed to fully advise Holly Smith of the potential ramifications =
of=20
becoming pregnant and that her family history concerns were =
unwarranted=20
and genetic testing was not indicated.=E2=80=9D Appellees further =
pled that =E2=80=9CHolly=20
Smith was further informed by Defendant that getting a genetic =
consult=20
would be insignificant due to the limited information she had =
available=20
from her family history.=E2=80=9D
<=
/SPAN>Appellants=20
responded that Dr. Findley-Smith referred appellees for genetic =
counseling=20
and testing. According to Dr. Findley-Smith, appellees informed =
her that=20
they had chosen not to undergo genetic counseling. After the July =
2004=20
office visit with Dr. Findley-Smith, Holly Smith saw Dr. Beth =
Files for=20
her first prenatal visit. Dr. Files ordered an ultrasound which =
showed=20
that the fetus was normal. Holly Smith then returned to see Dr.=20
Findley-Smith for prenatal care. Dr. Findley-Smith referred Holly =
Smith to=20
see maternal fetal medicine specialists, Dr. Linda Goodrum and Dr. =
Thomas=20
Rowe. They recommended an ultrasound, which also showed that the =
fetus was=20
normal. On March 17, 2005, Dr. Findley-Smith performed an =
ultrasound on=20
appellees that revealed a hydrocephalus head. Appellees=E2=80=99 =
baby was=20
delivered via Caesarean section, performed by Dr. Bart Putterman, =
who is=20
affiliated with Partners in OB/GYN Care, P.A. Appellees=E2=80=99 =
baby was born=20
with hydrocephalus alleged to be the result of appellants=E2=80=99 =
negligent=20
action or inaction.
<=
/SPAN>Attached=20
to the original petition were two timely-filed expert reports. The =
first=20
expert report was from Jon Gogola, M.D., who opined about the =
standard of=20
care with respect to Dr. Findley-Smith. Dr. Gogola stated that he =
reviewed=20
a multitude of records, including records =E2=80=9Cdated =
7/19/2004, 11/1/2004,=20
3/31/2004/, 3/31/2003, the prenatal record . . . of 11/1/2004, =
ultrasounds=20
of the index pregnancy, the patients family background history . . =
. and=20
the lab result of the patient from UTMB showing her carrier status =
for=20
X-linked hydrocephalus.=E2=80=9D Dr. Gogola opined on the standard =
of care with=20
respect to the history and physical examination, assessment, =
diagnosis and=20
treatment of conditions relevant to appellees and concluded that =
the=20
standard of care was breached.
<=
/SPAN>Dr.=20
Gary D.V. Hankins also provided a timely-filed expert report. Dr. =
Hankins=20
stated that he had reviewed medical records from Partners in =
OB/GYN Care,=20
PA., including appellees=E2=80=99 family history records and =
genetic testing=20
records. Dr. Hankins also opined on the standard of care with =
respect to=20
Dr. Findley-Smith and concluded that the standard was breached.=20
<=
/SPAN>Dr.=20
Findley-Smith filed objections to the appellees=E2=80=99 expert =
reports and a=20
motion to dismiss, arguing that appellees did not provide the =
complete=20
medical records from Dr. Findley-Smith to the experts. =
Specifically, she=20
contends that Holly Smith=E2=80=99s medical records included =
office notes from=20
July 19, 2004, telephone record notes, and a precertification =
information=20
form. Dr. Findley-Smith contends that because this evidence =
refutes the=20
facts upon which appellees=E2=80=99 expert reports were based, the =
expert reports=20
did not represent a good faith attempt to comply with the =
statutory=20
requirements of Chapter 74. Appellees responded that the expert =
reports=20
represented a good faith effort to comply with Chapter 74; and =
they=20
requested a 30-day extension to correct any deficiencies in the =
reports,=20
if the court found that they did not.
<=
/SPAN>Appellees=20
stated that Dr. Findley-Smith did not advise them that =
hydrocephalus was=20
hereditary, and that she stated, to the contrary, that it =
=E2=80=9Cwas not=20
genetic, and that genetic testing would not accomplish anything =
vis-a-vis=20
hydrocephalus.=E2=80=9D Appellees also stated in their response =
that they had=20
filed amended expert reports that addressed some of the =
deficiencies cited=20
by Dr. Findley-Smith.
<=
/SPAN>Appellees=20
also filed an amended petition alleging negligence by: (1) failing =
to=20
recognize the seriousness of the information presented by Ms. =
Smith and=20
the genetic problems the information contained; (2) failure to =
recognize=20
hydrocephalus as a genetic condition; (3) failure to exercise =
ordinary=20
care by either researching genetic forms of hydrocephalus or =
consulting a=20
specialist; (4) negligent management of a patient=E2=80=99s care; =
(5) failure to=20
refer to genetic testing; (6) failure to provide appellees with =
options to=20
avoid the birth of a male child with a high risk of X-linked=20
hydrocephalus; and (7) failure to recognize and/or diagnose =
hydrocephalus=20
or the risks thereof prior to the 28th/29th week of pregnancy.=20
<=
/SPAN>Dr.=20
Findley-Smith replied, continuing to maintain that neither the =
original=20
expert reports nor the amended expert reports constituted a good =
faith=20
effort to comply with Chapter 74. After a hearing, the trial court =
denied=20
Dr. Findley-Smith=E2=80=99s motion to dismiss.
Dr. Findley-Smith appeals from this=20
order.
Standard of=20
Review
<=
/SPAN>We=20
review a trial court=E2=80=99s decision on a motion to dismiss =
under section=20
74.351 for an abuse of discretion. See Am. Transitional Care =
Ctrs. of=20
Tex., Inc. v. Palacios, 46 S.W.3d 873, 875 (Tex. 2001) =
(predecessor=20
statute); Gray v. CHCA Bayshore L.P., 189 S.W.3d 855, 858 =
(Tex.=20
App.=E2=80=94Houston [1st Dist.] 2006, no pet.). A trial court =
abuses its=20
discretion if it acts in an arbitrary or unreasonable manner =
without=20
reference to guiding rules or principles. See Garcia v. =
Martinez,=20
988 S.W.2d 219, 222 (Tex. 1999). When reviewing matters committed =
to the=20
trial court=E2=80=99s discretion, we may not substitute our own =
judgment for that=20
of the trial court. Bowie Mem=E2=80=99l Hosp. v. Wright, 79 =
S.W.3d 48, 52=20
(Tex. 2002). A trial court does not abuse its discretion merely =
because it=20
decides a discretionary matter differently than an appellate court =
would=20
in a similar circumstance. Gray, 189 S.W.3d at=20
858.
<=
/SPAN>Expert =
Report
<=
/SPAN>A=20
plaintiff bringing a healthcare liability claim must provide each=20
defendant health care provider with an expert report or =
voluntarily=20
non-suit the action. See Tex. Civ. Prac. & Rem. Code=20
Ann. =C2=A7 74.351 (Vernon Supp. 2007); Gray, 189 =
S.W.3d at 858.=20
The expert report is defined as a fair summary of the =
expert=E2=80=99s opinions as=20
of the date of the report regarding the applicable standards of =
care, the=20
manner in which the care rendered by the health care provider =
failed to=20
meet the standards, and the causal relationship between that =
failure and=20
the injury, harm, or damages claimed. See Tex. Civ. Prac. & Rem. Code=20
Ann. =C2=A7 74.351(r)(6) (Vernon Supp. 2007). If a =
plaintiff timely=20
files an expert report, a defendant may then file an objection =
challenging=20
the sufficiency of the report. Id. =C2=A7 74.351(a). The =
trial court=20
shall grant a motion to dismiss only if it appears to the court, =
after=20
hearing, that the report does not represent an objective =
good-faith effort=20
to comply with the definition of an expert report. Id. =
=C2=A7=20
74.351(l).
<=
/SPAN>The=20
only information relevant to the inquiry is within the four =
corners of the=20
document. Palacios, 46 S.W.3d at 878. Although the report =
need not=20
marshal all the plaintiff=E2=80=99s proof, it must include the =
expert=E2=80=99s opinion on=20
each of the elements identified in the statute. See id. at =
878=E2=80=9379;=20
Gray, 189 S.W.3d at 859. In setting out the =
expert=E2=80=99s opinions, the=20
report must provide enough information to fulfill two purposes if =
it is to=20
constitute a good-faith effort. Palacios, 46 S.W.3d at 879. =
First,=20
the report must inform the defendant of the specific conduct the =
plaintiff=20
has called into question. Id. Second, the report must =
provide a=20
basis for the trial court to conclude that the claims have merit.=20
Id. A report that merely states the expert=E2=80=99s =
conclusions does not=20
fulfill these two purposes. Id. Rather, the expert must =
explain the=20
basis of his statements to link his conclusions to the facts.=20
Bowie, 79 S.W.3d at 52. However, a plaintiff need not =
present=20
evidence in the report as if she were actually litigating the =
merits.=20
Palacios, 46 S.W.3d at 879. Furthermore, the report can be =
informal=20
in that the information in the report does not have to meet the =
same=20
requirements as the evidence offered in a summary judgment =
proceeding or=20
at trial. Id.
<=
/SPAN>On=20
appeal, Dr. Findley-Smith argues that appellees must give their =
experts=20
the complete medical records pertaining to appellees=E2=80=99 care =
and that=20
failure to do so shows that they did not make a good faith effort =
to=20
produce an expert report. In support of her argument, Dr. =
Findley-Smith=20
relies on Palacios, DeLeon v. Vela, and In re =
Raja.=20
See 46 S.W.3d 873, 875 (Tex. 2001), 70 S.W.3d 194, 199 =
(Tex.=20
App.=E2=80=94San Antonio 2001, pet. denied), and 216 S.W.3d 404, =
409 (Tex.=20
App.=E2=80=94Eastland 2006, orig. proceeding, pet. filed). Dr. =
Findley-Smith=20
argues that the trial court should look beyond the =
appellees=E2=80=99 expert=20
reports and focus on Holly Smith=E2=80=99s medical records. Dr. =
Findley-Smith=E2=80=99s=20
arguments are not supported by the cases cited, and her arguments=20
contradict the Texas Supreme Court=E2=80=99s holding in =
Palacios.=20
<=
/SPAN>In=20
Palacios, the Texas Supreme Court stated that the trial =
court=20
=E2=80=9Cshould look no further than the report . . .=E2=80=9D 46 =
S.W.3d at 878. In=20
construing former section 13.01(l), the court stated that the =
=E2=80=9Cissue for=20
the trial court is whether =E2=80=98the report=E2=80=99 represents =
a good-faith effort to=20
comply with the statutory definition of an expert report.=E2=80=9D =
Id.=20
Thus, as to each defendant, the report must contain =E2=80=9Ca =
fair summary of the=20
expert=E2=80=99s opinions about the applicable standard of care, =
the manner in=20
which the care failed to meet that standard, and the causal =
relationship=20
between that failure and the claimed injury.=E2=80=9D Id. =
Moreover,=20
Palacios specifically states that =E2=80=9C[b]ecause the =
statute focuses on=20
what the report discusses, the only information relevant to the =
inquiry is=20
within the four corners of the document.=E2=80=9D Id. =
<=
/SPAN>Dr.=20
Findley-Smith attempts to interpret the statement in =
Palacios that=20
=E2=80=9Cthe report must provide a basis for the trial court to =
conclude that the=20
claims have merit=E2=80=9D as a requirement that if the expert =
does not have or=20
has not reviewed all of the medical records, then appellees have =
not made=20
a good-faith effort in producing an expert report. We disagree =
with Dr.=20
Findley-Smith=E2=80=99s interpretation of Palacios. It is =
only necessary=20
that the trial court conclude that the claims have merit by =
looking at the=20
expert report itself. See id. Otherwise, the trial court =
would be=20
put in a position of deciding the merits of the case in summary =
judgment=20
fashion, which Palacios prohibits. See id. at 879 =
(stating=20
that =E2=80=9Cplaintiff need not present evidence in the report as =
if it were=20
actually litigating the merits. The report can be informal in that =
the=20
information in the report does not have to meet the same =
requirements as=20
the evidence offered in a summary-judgment proceeding or at =
trial.=E2=80=9D).=20
<=
/SPAN>In=20
In re Raja, the Eastland Court of Appeals addressed whether =
section=20
74.351 allowed a plaintiff to take a Rule 202 deposition before =
filing an=20
expert report. 216 S.W.3d at 409. In dicta, the court stated that =
section=20
74.351(l) =E2=80=9Callows trial courts to consider the quality of =
the defendant=E2=80=99s=20
records when determining whether a good faith effort has been =
made.=E2=80=9D=20
Id. The Eastland Court of Appeals cited no authority in =
support of=20
this proposition and we note that Palacios contradicts this =
proposition. See Palacios, 46 S.W.3d at 878 =
(=E2=80=9CBecause the statute=20
focuses on what the report discussed, the only information =
relevant to the=20
inquiry is within the four corners of the document.=E2=80=9D). =
Regardless of the=20
accuracy of Raja=E2=80=99s dicta, we recognize that the =
trial court has=20
discretion in reviewing expert reports. To this end, the trial =
court could=20
have considered the records reviewed by the experts and concluded =
that=20
appellees made a good faith effort in complying with the statute. =
Thus, we=20
cannot conclude that In re Raja shows that the trial court =
abused=20
its discretion because complete records may or may not have been =
given to=20
an expert.
<=
/SPAN>Finally,=20
in De Leon, the San Antonio Court of Appeals held that the =
expert=20
report did not satisfy the statute because the report =
=E2=80=9Cneither state[d]=20
his opinion on the applicable standard of care, nor [stated] =
whether there=20
was a breach of that standard. [The expert] merely state[d] that =
=E2=80=98so many=20
surgeries were not indicated=E2=80=99 and =
=E2=80=98unnecessary,=E2=80=99 but fail[ed] to indicate=20
what the acceptable standard of care was for a patient in De =
Leon=E2=80=99s=20
position.=E2=80=9D 70 S.W.3d at 199.
<=
/SPAN>The=20
insufficient expert report in De Leon is distinguishable =
from the=20
expert reports
submitted by appellees. Here, the =
amended expert=20
report of Dr. Hankins states,
D. =
Medical records=20
reviewed:
I have reviewed medical records =
pertaining to=20
Holly Smith from partners in OB/GYN Care, PA., her family history =
records=20
and genetic testing records.
E. =
Applicable=20
standard of care with respect to the history and physical =
examination,=20
assessment, diagnosis and treatment of conditions relevant to this =
patient=20
and specific actions that are taken in order to meet the standard =
of=20
care: Standard of care in this particular case would =
require the=20
obstetrician, upon knowledge that this particular patient had two =
uncles=20
that were deceased at ages 5 and 6 years of hydrocephalus, to =
recognize=20
that there are hereditary forms of hydrocephaly. Specifically, =
there is an=20
x-linked form of hydrocephaly and a history of two males having =
been=20
affected in the family would put this woman as being at risk for =
carriage=20
of the defect. This is a defect that can be diagnosed by analysis =
of the=20
maternal chromosomal compliment. Additionally, prenatal diagnosis =
could be=20
performed early in pregnancy via amniocentesis for definitive =
diagnosis in=20
the fetus. An obstetrician confronted with this information has =
the option=20
of either knowing the information and doing the counseling =
themselves, or=20
referring the patient to a subspecialist in medical genetics or =
maternal=20
fetal medicine. The obligation is to make the patient aware that =
there is=20
a condition that could potentially have great impact upon the =
pregnancy=20
and that this can be diagnosed as regards both the woman=E2=80=99s =
carrier status=20
as well as whether or not the fetus would be effected. Failure to =
do so is=20
a clear breach in standard of care.
G. The =
standards=20
that were not followed by Dr. Joi M. Findley-Smith: =
Counseling,=20
testing or referral to a genetic specialist to investigate the =
history of=20
hydrocephalus in the family did not occur when . . . Ms. Smith =
presented=20
for preconception visits.
H. The =
specific=20
conduct of acts/omissions evidencing that the care provided to the =
patient=20
failed to meet the standard by Dr. Joi M. Findley-Smith: =
Did not=20
advise the patient of the possible hereditary nature of =
hydrocephalus.=20
Further, Dr. Findley-Smith breached the standard of care by not =
conducting=20
genetic testing on the patient to determine if the patient carried =
the=20
deleterious gene, or referring the patient to a specialist for =
such=20
testing.
I. Dr. =
Joi M.=20
Findley-Smith should have taken the following specific actions to =
be=20
within the standard of care: Should have advised Ms. Smith =
of the=20
possible hereditary nature of hydrocephalus and offered either =
testing for=20
such condition or referred her to a genetic specialist for=20
evaluation.
J. =
Causal=20
relationship between the Failure and the claimed injury: =
Dr. Joi M.=20
Findley-Smith=E2=80=99s negligent failure to advise the patient of =
the possible=20
transmission of hydrocephalus to her baby and negligent failure to =
perform=20
genetic testing to rule out the risk deprived the patient of the=20
opportunity to utilize alternative paths to motherhood, such as =
adoption=20
or in-vitro fertilization with pre-implant genetic testing. Had =
Dr.=20
Findley-Smith complied with the standard of care, Holly Smith =
asserts that=20
she would have availed herself of these options. If she had, this =
would=20
have prevented the transmission of the deleterious gene to her =
child.=20
Because of Dr. Findley-Smith=E2=80=99s negligence, therefore, the =
gene was=20
transmitted and the child was born with hydrocephalus. This =
disease will=20
require extensive medical and life care that would not be required =
if the=20
child did not suffer from hydrocephalus. Accordingly, Dr. =
Findley-Smith=E2=80=99s=20
negligence was a proximate cause of the medical expenses that will =
necessarily be incurred in treating the child=E2=80=99s=20
hydrocephalus.
<=
/SPAN>Dr.=20
Gogola=E2=80=99s expert report states
D. =
Medical records=20
reviewed
In preparing this opinion, I have =
reviewed Dr.=20
Findley-Smith=E2=80=99s record of Holly Smith dated 7/19/2004, =
11/1/2004,=20
3/31/2004, 3/31/2003, the prenatal record first visit of which is=20
11/1/2004, ultrasounds of the index pregnancy, the patients family =
background history (exhibit 1), and the lab result of the patient =
from=20
UTMB showing her carrier status for X-linked hydrocephalus.
E. =
Applicable=20
standard of care with respect to the history and physical =
examination,=20
assessment, diagnosis and treatment of conditions relevant to this =
patient=20
and specific actions that are taken in order to meet the standard =
of=20
care:
The standard of care when a patient =
presents=20
seeking prenatal counseling is to obtain a through [sic] and =
complete=20
medical and family history. The patient should be encouraged to =
obtain as=20
much information as possible about her personal and family history =
in=20
order to provide such counseling. In those instances that a =
history of=20
conditions which may have a heritable etiology, the doctor is =
obliged to=20
discuss available testing for such an etiology or refer the =
patient to a=20
specialist (genetic counselor or maternal fetal medicine =
physician) who=20
can better provide testing, counseling and care. Since =
hydrocephalus is=20
caused by many different etiologies including chromosomal =
abnormalities,=20
most notably X-linked hydrocephalus, a family history of such in a =
first=20
degree relative who is a male (or second degree maternal relative) =
suggests the need for genetic testing or referral. In addition, =
the=20
presence of a family history of 2 first degree relatives with the =
same=20
disorder is highly suggestive of an x-linked disorder, again =
requiring=20
testing or referral.
The standard is carried out by the =
following=20
specific actions: Genetic testing or referral to a genetic =
specialist=20
and/or maternal fetal medicine specialist when a history =
compatible with=20
x-linked hydrocephalus is presented in a pre-conceptual=20
setting.
<=
/SPAN>.=20
. .
G. The =
standards=20
that were not followed by Dr. Joi M. Findley-Smith:=20
Discussion of testing, actual testing or =
referral=20
to a genetic specialist to further discuss the availability of =
testing did=20
not occur.
H. The =
specific=20
conduct of acts/omissions evidencing that the care provided to the =
patient=20
failed to meet the standard by Dr. Joi M.=20
Findley-Smith.
. . . Dr. Joi M. Findley-Smith did not =
advise the=20
patient of the possible hereditary nature of hydrocephalus, and =
did not=20
offer testing or referral to a specialist to evaluate such =
possibility.=20
Dr. Findley-Smith thus breached the standard of care by not =
conducting=20
genetic testing on Ms. Smith (the patient) to determine if the =
patient=20
carried the deleterious gene, or referring the patient to a =
specialist for=20
such testing.
I. Dr. =
Joi M.=20
Findley-Smith should have taken the following specific actions to =
be=20
within the standard of care:
. . . Dr. Joi M. Findley-Smith should =
have advised=20
the patient of the possible hereditary nature of hydrocephalus, =
and either=20
offered the patient testing for such condition or referred the =
patient to=20
a genetic specialist to evaluate such a =
possibility.
J. =
Causal=20
relationship between the Failure and the claimed=20
injury:
The failure of . . . Dr. Joi M. =
Findley-Smith to=20
provide appropriate counseling, testing and/or referral, deprived =
the=20
patient of the right to make a fully informed decision regarding=20
conceiving despite seeking care for just such advice. Dr. =
Findley-Smith=E2=80=99s=20
negligent failure to advise the patient of the possible =
transmission of=20
hydrocephalus to her baby and negligent failure to perform (or =
arrange=20
for) genetic testing to rule out that risk deprived the patient of =
the=20
opportunity to utilize alternative paths to motherhood, such as =
adoption=20
or in-vitro fertilization with pre-implantation genetic testing. =
Had Dr.=20
Findley-Smith complied with the standard of care, and Ms. Smith =
availed=20
herself of these options as she asserts she would have, this would =
have=20
prevented the transmission of the deleterious gene to the child =
who was=20
born with hydrocephalus. This disease will require extensive =
medical and=20
life care that would not be required if the child did not suffer =
from=20
hydrocephalus. Accordingly, Dr. Findley-Smith=E2=80=99s negligence =
was a proximate=20
cause of the medical expenses that will necessarily be incurred in =
treating the child=E2=80=99s hydrocephalus.
<=
/SPAN>Both=20
amended expert reports satisfy the requirements provided in=20
Palacios by informing the defendant of the specific conduct =
called=20
into question and giving the trial court a basis to conclude =
whether or=20
not the claims have merit. See Palacios, 46 S.W.3d at =
878=E2=80=9379. The=20
reports comply with section 74.351 by detailing the standard of =
care to=20
which Dr. Findley-Smith was required to conform, the breach of =
that=20
standard, causation, and damages. See Tex. Civ. Prac. & Rem. Code=20
Ann. =C2=A7 74.351; Palacios, 46 S.W.3d at 878. =
Based on the=20
standards articulated in Palacios, we conclude that =
appellees made=20
a good faith effort to comply with the statute and that the trial =
court=20
did not err in overruling Dr. Findley-Smith=E2=80=99s objections =
to the expert=20
reports. Accordingly, the trial court did not abuse its discretion =
in=20
denying Dr. Findley-Smith=E2=80=99s motion to =
dismiss.
<=
/SPAN>We=20
overrule Dr. Findley-Smith=E2=80=99s two issues on =
appeal.
Conclusion
<=
/SPAN>We=20
affirm the order that denied Dr. Findley-Smith=E2=80=99s motion to =
dismiss.=20
&=
nbsp; &n=
bsp; &nb=
sp; &nbs=
p; =
; Evelyn=20
V. Keyes
&=
nbsp; &n=
bsp; &nb=
sp; &nbs=
p; =
; Justice
Panel consists of Justices Nuchia, =
Jennings, and=20
Keyes.