United States District Court, S.D. New York
June 9, 2005.
In re: REZULIN PRODUCTS LIABILITY LITIGATION (MDL No. 1348). This Document Relates to: 03 Civ. 9844.
The opinion of the court was delivered by: LEWIS KAPLAN, District Judge
PRETRIAL ORDER NO. 381 (Garza Dr. Cortes' Motion to Dismiss)
Defendant Oscar Cortes, M.D., moves to dismiss the claims
against him on the ground that plaintiffs failed to furnish the
expert report required by Section 13.01 of article 4590i of the
Texas Civil Code.*fn1 Plaintiffs argue that this statute
does not apply in federal court in light of Poindexter v.
Bonsukan, 145 F. Supp.2d 800 (E.D. Tex. 2001), which in
substance held that this Texas provision is trumped in federal
court by the Federal Rules of Civil Procedure and, if not, that
they are entitled to an extension of time within which to provide
the requisite report.
Poindexter is not the only word on this subject. In Nelson
v. Myrick, No. Civ.A.3:04-CV-0828-G, 2005 WL 723459 (N.D. Tex.
Mar. 29, 2005), Chief Judge Fish agreed with Poindexter. In
Cruz v. Chang, No. Civ.EP-03-CA-465KC, 2005 WL 356817 (W.D.
Tex. Jan. 28, 2005), however, Judge Cardone reached the
opposition conclusion. But it is unnecessary to address this
Assuming that plaintiffs were required by the Texas statute to
serve the expert report, the fact that Poindexter was the only
reported case on the subject suggests strongly that their failure
was inadvertent, which would entitle them to an extension of time
of thirty days from the date of this order under former Section
13.01(g). Even if plaintiffs were not so required, the Court
would condition their continuation of the action against Dr.
Cortes on the filing of such a report within that period.
Accordingly, the motion to dismiss [00 Civ. 2843, docket item
3087] is denied without prejudice to the filing of a new motion
in the event that plaintiffs have not furnished the requisite
expert report within thirty days of the date of this order.