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Click here for the full text of this decision FACTS:The relators petition for a writ of mandamus asserting that dismissal of the underlying suit is mandated, because the expert report filed by the real parties in interest did not comply with former Texas Revised Civil Statutes Article 4590i �13.01. On Dec. 27, 2001, Deborah Manghane filed a medical malpractice suit against the relators. Manghane filed the expert report required by �13.01 Feb. 14, 2002, which is within the statutory deadlines. Relators filed their motion to dismiss May 13, 2005, which is 1,183 days or approximately three years and three months after the expert report was filed. In that motion, they challenged the adequacy of the expert report. In response, Manghane filed a motion for relief under �13.01(g). She argued that relators had waived their right to seek a dismissal, that the report was adequate. Alternatively, she sought a 30-day grace period to cure any deficiencies resulting from accident or mistake. Respondent concluded that as to Dr. Frank Sheppard, the expert report represented a good faith effort to comply with the requirements of Article 4590i, and she denied the motion to dismiss. Respondent found that the expert report did not represent a good faith effort as to Dr. Jaime Gomez, but she granted Manghane thirty days in which to furnish an expert report which complied with Article 4590i. HOLDING:Denied. Section 13.01 imposes a deadline on the claimant to file an expert report, but it does not impose a deadline for a healthcare provider to file a motion to dismiss under �13.01(e). In Jernigan v. Langley, 111 S.W.3d 153 (Tex. 2004), the Texas Supreme Court held that the mere fact that a defendant waits to file a motion for dismissal under �13.01(e) is insufficient to establish waiver, unless the defendant’s silence or inaction shows an intent to yield the right to dismissal based on the report’s insufficiency. Thus, Jernigan’s delay of more than 600 days did not establish waiver. The Supreme Court also found that Jernigan’s participation in discovery was insufficient to establish waiver, because attempting to learn more about the case in which one is a party does not demonstrate an intent to waive the right to move for dismissal under �13.01(e). The court noted that most of Jernigan’s participation was in response to discovery initiated by the plaintiff and the discovery that he initiated occurred before he had received the expert reports. Jernigan had also amended his answer to delete the following statement: “By way of affirmative defense, Defendant pleads the defense of failure to follow the statutory steps to perfect a claim.” The opinion concluded that this broad statement did not necessarily refer to an alleged inadequacy of the expert report and could have referred to the failure to file pre-suit notice of the claim. Thus, the Supreme Court reasoned that deleting it was not inconsistent with an intent to assert the right to dismissal under �13.01(e). Relators’ participation in discovery is more extensive than that of the health care provider in Jernigan, and it was not merely in response to discovery initiated by the plaintiff. While attempting to learn more about the case in which one is a party does not demonstrate an intent to waive the right to move for dismissal, they did far more than merely attempt to learn more about the facts. Defendants completed discovery and announced ready for trial. This is inconsistent with an intent to rely upon the right to seek a dismissal, the court concludes. OPINION:McClure, J.; Barajas, C.J., McClure and Chew, JJ.

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