Monday, August 31, 2015

It ain't me, babe, It ain't me you're looking for...: Misnomer and Misidentification

What do you do if your client is incorrectly named in the Plaintiff’s Petition?  Can you let limitations run and seek dismissal?  Do you have to let Plaintiff know that they sued the wrong party?  It depends.

Misnomer is an error in which the correct party is sued, but is named incorrectly.  See Chiklewitz v. Hyson, 22 S.W.3d 825, 828 (Tex. 1999).  Any amended pleading with the proper name would relate back to the original filing.  See id; In re Greater Houston Orthopaedic Specialists, Inc., 295 S.W.3d 323, 325 (Tex. 2009).

Misidentification occurs when there are two entities with similar names and the plaintiff sues the wrong entity.  See Chilkewitz, 22 S.W.3d at 828.  The correct defendant is also not required to intervene.   See Mathews Trucking Co. v. Smith, 682 S.W.2d 237, 239 (Tex. 1984).  Misidentification does not apply to toll the statute of limitations or relate the amended petition back to the original pleading.  Courts can only apply an equitable tolling if the plaintiff can show that (1) there were two separate but related entities (not individuals) using a similar name; (2) the correct entity had notice of the suit, and (3) the correct entity was not misled or prejudiced by the mistake.  Chilkewitz, 22 S.W.3d at 830.

Example A: Plaintiff sues The Widget Company.  The proper name of the defendant is The Widget Corporation.  Plaintiff can later amend to the proper name.  The amended pleading would relate back to the original filing, precluding summary judgment on limitations.

Example B: Plaintiff sues The Widget Company.  The proper defendant is The Gidget Company.  Gidget and Widget are unrelated companies.  Widget is not obligated to tell Plaintiff, “I think you meant to sue us!”  An amended petition naming Widget must be filed within the statute of limitations.

Example C: Plaintiff sues The Widget Company.  The proper defendant is The Worldwide Widget Corporation.  Widget Company is owned and operated by the same people as Worldwide Widget Corp.  Worldwide Widget had knowledge of the suit.  Worldwide Widget is not misled or prejudiced.  The court could apply an equitable remedy, tolling the statute of limitations, to allow an amended petition naming Worldwide Widget.

Practice tip:  Get familiar with the Texas Secretary of State website, especially SOS Direct, which is the business filings page.  You can set up a temporary log-in to do searches.  I always search the client’s name to ensure that we have the correct name for the clinic, practice group or professional association.  You can also identify any other business entities that a person is affiliated with.  You can view the articles of incorporation, franchise reports, and agents for service.  Searches are only $1 each.  This simple search can save you the headache of naming the wrong entity or not properly identifying your client.


Wednesday, September 4, 2013

When is the Expert Report Due?

Under the prior version of Chapter 74, plaintiffs were required to serve their expert reports within 120-days of filing their claim and defendants had 21 days to object. Two problems arose:

1) What if the report was served with the petition?  Because answers can be due more than 21 days later, with our Monday answer rule, defendants were sometimes required to object to the report before answering the suit.

2)  What if the defendant avoided service?  Plaintiffs were then faced with missing the deadline to serve a report because they had not yet served the defendant.

HB 658 revised CPRC 74.351(a) to address these two situations.

(a)  In a health care liability claim, a claimant shall, not later than the 120th day after the date each defendant's [the] original answer is [petition was] filed, serve on that [each] party or the party's attorney one or more expert reports, with a curriculum vitae of each expert listed in the report for each physician or health care provider against whom a liability claim is asserted.  The date for serving the report may be extended by written agreement of the affected parties.  Each defendant physician or health care provider whose conduct is implicated in a report must file and serve any objection to the sufficiency of the report not later than the later of the 21st day after the date the report is [it was] served or the 21st day after the date the defendant's answer is filed, failing which all objections are waived.

This bill took effect September 1, 2013.

You should now calendar deadlines as follows:

Petition Served:  ___________
Defendant's Answer filed: ______________
Expert Report Due:  Answer Date + 120 days
Expert Report Served: ____________
Objections Due: Report Date + 21 days or Answer date + 21 days, whichever is later.

Changes to CPRC 18.001

18.001 (d)  The party offering the affidavit in evidence or the party's attorney must serve a copy of the affidavit on each other party to the case at least 30 days before the day on which evidence is first presented at the trial of the case.

You are no longer required to file affidavit and medical records with the Clerk. CPRC 18.001(d) now requires the party or the attorney to serve a copy of the affidavit on the other parties.

I believe it is good practice to send a copy of the medical records with these affidavits. This can be done easily on a CD. Then you avoid the other side arguing that you did not produce all of your medical records or that you didn't properly supplement discovery.

I'm Back...

...Life has slowed down quite a bit since the birth of my twins almost two years ago, so I will be back on this blog.  Look for a series of posts in the coming weeks with recent changes from the legislative session and new ideas on cross-examination and jury selection.

Wednesday, June 20, 2012

State Bar of Texas Annual Meeting 2012

I had a wonderful time attending the State Bar of Texas Annual Meeting last week. It was my first time to attend the meeting and I was impressed. It was a treat to spend two days getting CLE, meeting other lawyers, and reconnecting with some old friends. I spent most of my time attending sessions put on the Computer and Technology Section and learned some new tips and techniques for using technology and improving efficiency in the office. If you have not been to the Annual Meeting before, I urge you to attend in 2013!