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Click here for the full text of this decision FACTS:Appellants Robert E. Spinks Jr. and Stacey M. Spinks appeal the trial court’s granting of the motion to dismiss filed by defendant Marvin R. Brown M.D. for failure to file an expert report conforming with the requirements of former article 4590i of the Texas Revised Civil Statutes. In November 1995, Robert suffered a puncture wound to his left foot which subsequently became infected and required a partial amputation performed by Brown. This procedure was immediately followed by attempts to place bypass grafts. Because the nurse was unable to insert a Foley catheter, Brown attempted to place Robert’ catheter. Brown subsequently requested a urologist assist in the insertion of the catheter. Unbeknownst to Brown, or any of the medical staff, Robert suffered an undiagnosed urethral stricture disease making the insertion of the catheter unsuccessful. After the urologist was unable to insert the Foley catheter, a suprapubic catheter was inserted so as to allow the vascular surgeon to complete the surgery. Robert recovered from the foot surgery, but the stricture disease made several subsequent surgeries necessary. On Nov. 23, 1998, Robert and Stacey filed a medical malpractice action, alleging negligence on the part of Brown in the placing of a Foley catheter. The suit was originally tried in district court in September 2001. On the eve of the trial, the Spinks requested a substitution of counsel which the trial court denied. A jury found in Brown’s favor and a take-nothing judgment was entered. On appeal, this court reversed based on the trial court’s failure to allow the substitution of counsel. On Nov. 20, 2003, a mandate issued remanding the case for further proceedings. On Aug. 18, 2004, the trial court entered a new discovery control plan, requiring all necessary discovery be completed by Dec. 31, 2004, and a new trial was scheduled for February 2005. Over six years after the original suit was filed, Brown filed an Article 4590i motion to dismiss on Jan. 14, 2005. On Jan. 20, 2005, the trial court granted Brown’s motion to dismiss with prejudice based on the Spinks’ failure to comply with the mandatory provisions of Article 4590i. Specifically, the trial court held that the expert report was inadequate, that the plaintiffs were not entitled to the 30 day grace period in which to cure their statutory deficiencies and that Brown had not waived his right to object even though his objection came years after the report was filed. The Spinks’ motion to reconsider was denied by the trial court and this appeal ensued. HOLDING:Reversed and remanded. The Spinks argue that by participating fully in pretrial discovery and trial and waiting “over six years” from the time the expert report was filed, until less than one month before the second trial, Brown waived his right to object to the adequacy of the plaintiffs’ expert report. The court agrees. The defendant delayed more than 1,400 days, not counting the appeal, before filing an objection. It is the lengthy delay combined with the extensive discovery and trial strategy that establishes waiver. Brown argues that no weight should be given to his failure to challenge the expert report prior to the first trial. Indeed Brown concedes that this was a tactical decision. He contends that once a new trial was granted, it had the legal effect of returning the case to the trial court as if there had been no trial. Consequently, Brown could thereafter assert his objections to the expert report as if no trial had occurred. The fact that the case was remanded for a new trial does not preclude a finding of waiver based in part on behavior preceding the remand. Although the judgment was vacated, this had no effect on the preceding discovery. Consequently, the strategic decision not to seek dismissal and the intensive participation in discovery leading up to the first trial need not be disregarded in assessing waiver. The court concludes that Brown’s actions, in the context of this particular case, were so inconsistent with an intent to assert the right to dismissal under �13.01(e) as to amount to a waiver of that right. OPINION:Simmons, J.; Duncan (concurring in the judgment only), Speedlin and Simmons, J.J.

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