Fagadau v. Wenkstern – Case Brief Summary (Texas)

In Fagadau v. Wenkstern, 311 S.W.3d 132, 136 (Tex. App. - Dallas 2010, no pet.), the Dallas Court of Appeals was again asked to recognize the third category of reports.

There, the defendant physician appealed the trial court's order denying his motion to dismiss and granting the claimant's motion for extension to file a compliant expert report. Id. at 133-34.

The original report served was authored by a physician, but it failed to address two of the acts of negligence asserted in the claimant's pleadings although it addressed the remaining causes of action. Id. at 134, 136. Thus, the defendant argued that the report was no report at all. Id. at 136.

In passing, the Dallas Court of Appeals noted that it previously declined to recognize the no report at all in Cook, but did not reach the issue as it lacked jurisdiction to consider the trial court's order denying a motion to dismiss and granting an extension to file a compliant report. Id. at 136-37.