SC: Stockton v. Offenbach; missing defendant and failure to serve expert report

Plaintiff Stockton tried to sue her former obstetrician for injuries incurred during the birth of her son. Dr. Offenbach was allegedly addicted to drugs at the time of the delivery. He lost his medical license in 2001 and presumably left Texas after that time. His whereabouts are unknown. Despite this, Stockton sought to find him in order to file this claim. She was not able to locate him before doing so on June 13, 2007. There was a delay in the trial court's granting her motion for substituted service. Citation was eventually accomplished and Offenbach was directed to answer the suit by April 28, 2008. By this time, the 120-day deadline for filing the expert report had passed.

Offenbach's insurance company hired an attorney to represent him. The attorney moved to dismiss the case because Stockton had not served the expert report within 120-days. Stockton responded that service would have been impossible because Offenbach could not be located and substituted service had not been approved. The trial court agreed that the deadline could not apply and denied the motion to dismiss. On appeal, the COA reviewed the claim de novo and concluded the MLA required dismissal. Stockton then appealed to the Supreme Court.

The Supreme Court first held that de novo was the appropriate standard of review because "whether the statute permits additional time beyond the 120-day deadline or is unconstitutional, as applied, are legal questions."

The Court then considered whether to apply a "due diligence" exception to the 120-day requirement. The Court declined to make a firm ruling on whether this exception is available in the service of expert reports, but instead said, "But even assuming that a due diligence exception applies to service completed after Chapter 74's expert report deadline, we are not persuaded that the evidence here is legally sufficient to raise the issue." It then noted that Stockton knew of the deadline when filing and allowed the 120-days to lapse before getting a ruling on her motion for substituted service. The Court further pointed out Stockton did not appear to inform the trial court of the impending expert report deadline and the need for immediate relief.

Finally, the Court considered whether the expert report deadline violated the Texas Constitution's open courts provision. The Supreme Court agreed with the COA finding that "there was neither evidence that compliance with section 74.351(a) was impossible nor evidence that the statute prevented Stockton from pursuing her claim."

It is important to note that the Court recognized the difficulty that plaintiffs can face in serving the defendant with citation—much less the expert report—within 120 days. The Court stated that although the purpose of the statute was to weed out frivolous claims, "That purpose would not be sacrificed, however, by calculating the expert report deadline from the date the physician or other health care provider becomes a party to the proceeding through service or appearance. Calculating the deadline from that date would also better fit the statute's requirement that the expert report is to be served on 'each party or the party's attorney.'"

See the opinion at Stockton v. Offenbach.

What are your thoughts on the standard suggested by the Court? Have you had experiences whether the defendant could not be served within 120-days? How did you accomplish service of the expert report?