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Click here for the full text of this decision FACTS:On March 17, 2001, when Mark Bailey was 17, his aunt filed a lawsuit on his behalf against Dr. Angela Gardner for misdiagnosing what turned out to be a testicular torsion requiring removal of Bailey’s left testicle when he was 15. On the trial date, Nov. 10, 2003, Bailey requested a continuance, because his expert was unavailable. The trial judge denied the request. Consequently, Bailey moved for a nonsuit, and the case was dismissed without prejudice. The next day, Bailey, now 20, refiled the suit in another Dallas trial court, alleging the same claims against Gardner. Gardner filed a motion to transfer the case to the original trial court which was granted. After entering into some stipulations with Bailey, Gardner moved to dismiss the suit, because the statute of limitations had expired. The trial court granted Gardner’s motion. HOLDING:Affirmed. Though Bailey acknowledges that the statute of limitations has run, he argues that the doctrine of equitable tolling should be applied. He argues that the case would have proceeded to trial if not for circumstances beyond his control. Equitable tolling, the court explains, applies in situations where a claimant actively pursued his judicial remedies but filed a defective pleading during the statutory period, or where a complainant was induced or tricked by his adversary’s misconduct into allowing filing deadlines to pass. Here, Bailey’s pleading wasn’t defective, and Gardner didn’t trick him into missing a deadline. Instead, Bailey made a “tactical decision” to non-suit the case rather than face trial without an expert. “Taking a voluntary non-suit for tactical advantage will not support an equitable extension of the limitations period.” OPINION:Kerry FitzGerald, J.; Wright, FitzGerald and Lang-Miers, JJ.

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