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Click here for the full text of this decision FACTS:Frederick Ripley had aortobifemoral bypass surgery on April 29, 2002. Dr. Boulos Toursakissian of the University of Texas Health Science Center (UTHSC) performed the surgery, and various UTHSC employees were involved in post-surgical care. Four days after the surgery, Frederick died. On June 15, 2004, the Ripleys filed suit in federal court alleging various negligent acts proximately caused Frederick’s death. On Dec. 13, 2004, the Ripleys filed an amended complaint asserting claims against UTHSC as a defendant. UTHSC responded with a motion to dismiss the suit based on 11th Amendment immunity. On Jan. 27, 2005, the federal court granted leave to file the Dec. 13, 2004, amended complaint. On Feb. 9, 2005, the federal court entered an order extending a prior scheduling order’s deadlines to the claims against UTHSC, thereby requiring the Ripleys to “submit a written report of the expected testimony of each expert by April 15, 2005.” The order required any objection to the reliability of an expert’s proposed testimony to be made within 30 days of the receipt of the written report. The Ripleys timely filed their designation of expert witnesses on April 15, 2005, attaching a copy of an expert report and curriculum vitae. Accordingly, the deadline for any objections to the expert’s proposed testimony was May 16, 2005. UTHSC did not file any objections. The federal court granted UTHSC’s motion to dismiss based on 11th Amendment immunity on May 17, 2005, and the Ripleys refiled their claim against UTHSC in state court on June 15, 2005. On Jan. 17, 2006, UTHSC filed a motion to dismiss, alleging that the Ripleys failed to timely file their �74.351 report. Although the trial court initially granted the motion to dismiss, the trial court subsequently granted the Ripleys’ motion for reconsideration and entered an order denying UTHSC’s motion to dismiss. HOLDING:Affirmed. Under Texas Civil Practice & Remedies Code �74.351(a), the court stated, a claimant making a health-care liability claim shall, not later than the 120th day after the date the claim was filed, serve on each party or the party’s attorney one or more expert reports, with a curriculum vitae of each expert listed in the report for each physician or health care provider against whom a liability claim is asserted. It is undisputed, the court stated, that UTHSC received service of a copy of the Ripleys’ expert report on April 15, 2005, while the Ripleys’ claim was pending against UTHSC in federal court. Section 74.351(a) required the Ripleys to serve their expert report “not later than the 120th day after the date the claim was filed.” The court stated: “If we accept that the”claim was filed’ on the date the original petition was filed in state court on June 15, 2005, the Ripleys met the section 74.351 deadline because they clearly had served the expert report prior to October 13, 2005.” The court found that UTHSC could have timely filed and served in federal court its objections to the expert report without waiving its 11th Amendment immunity. Once the Ripleys refiled in state court, the court stated that UTHSC could then have sought a dismissal under �74.351(b) if it believed the expert report was inadequate. Dismissing the underlying cause, the court stated, when UTHSC had been timely served with an expert report would be contrary to the Legislature’s vision and would permit �74.351 to be used for unintended purposes. Thus, the court held that the trial court did not abuse its discretion in concluding that the Ripleys had complied with �74.351, because UTHSC had been timely served with the Ripleys’ expert report. OPINION:Speedlin, J.; L�pez, C.J., and Stone, Marion and Speedlin, JJ. CONCURRENCES:Simmons, J., joined by Angelini, J. “Because the UTHSC-SA was served with a copy of the expert report during the federal litigation, it had the necessary information from which to determine whether Ripley’s claim was frivolous. I would not address the other issues discussed in the majority opinion, and therefore, respectfully concur in the judgment only.” Hilbig, J., concurred in the judgment without an opinion.

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