In re Clapp – Case Brief Summary (Texas)

In In re Clapp, 241 S.W.3d 913 (Tex. App.--Dallas 2007, orig. proceeding), the Court noted that the legislature has expressly limited discovery in claims governed by chapter 74 by staying discovery until an expert report is filed, except as provided by section 74.351(s). See TEX. CIV. PRAC. & REM. CODE ANN. § 74.351(s) (Vernon Supp. 2007).

The Court concluded that because pre-report oral depositions of physicians and health care providers are not allowed under section 74.351, pre-suit depositions are not permitted under Rule 202. Id at 918-19.

As the Court stated in Clapp, "To conclude otherwise would allow a Rule 202 petitioner to avoid the carefully crafted report requirements and discovery stay set out in section 74.351, subverting the legislature's stated intent in passing the statute." Id. at 919.