The San Antonio COA affirmed the trial court's grant of Dr. Clayton's no-evidence motion for summary judgment. During his deposition, Plaintiff's expert recanted his criticisms of Dr. Clayton, leaving Plaintiffs without an expert. With trial less than thirty days away, Plaintiffs filed a motion asking the court for more time to secure an additional expert. Dr. Clayton then filed a motion seeking leave to file a no-evidence motion for summary judgment. The Court denied Plaintiff's motion, allowed the MSJ, and ultimately granted the MSJ.
On appeal, Plaintiffs argued that the court abused its discretion in denying their motion for additional time to get a new expert. The appellate court reviewed the decision under the abuse of discretion standard. The COA noted that the case had been on file for approximately twenty-one months, that the DCO had been in place for seven months, and that the expert had been designated at least three months prior to his deposition. They pointed out that Plaintiffs did not provide evidence of their due diligence in securing the testimony of the expert who ultimately changed his opinions.
Additionally, the Court did not agree with Plaintiff's argument that the extension of time should have been considered under the Chapter 74 "one-time extension" for curing a deficient expert report.
Plaintiffs then argued that res ipsa loquitur applied to their claim, thus negating the need for the expert. The Court rejected this argument, holding the "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 the full opinion at Thomas v. Clayton.
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