The Fifth Circuit recently denied en banc reconsideration of Passmore v. Baylor Health Care System, 823 F.3d 292 (5th Cir. 2016). In the Passmore opinion, the court held that Texas’ requirement regarding expert reports in healthcare claims pursuant to Section 74.351 of the Texas Civil Practice & Remedies Code was procedural in nature, and thus not applicable in federal court. This decision eases the procedural requirements for medical malpractice plaintiffs in federal court and could potentially relax similar requirements in other types of claims. This case was a close one, though, so this may be an area to watch for further developments.

Section 74.351 requires a plaintiff to provide an expert report for each named physician or health care provider against whom the plaintiff has asserted a healthcare claim. If the plaintiff fails to serve the report (generally within 120 days of the defendant’s answer), the claim can be dismissed.

In Passmore, the plaintiffs brought medical malpractice claims in federal court in Texas. The plaintiff did not timely provide Section 74.351 expert reports, and the defendants sought dismissal. Under the Erie doctrine, the expert-affidavit requirement only applies in federal court if it is substantive – not procedural. The district court agreed with the defendants that the expert-affidavits were required and dismissed the case. The Fifth Circuit, however, found the requirement to be procedural. The Court also determined that the requirement conflicted with federal rules regarding the timing of expert reports. Accordingly, the Fifth Circuit reversed the district court. As a result, dismissal under Section 74.351 is no longer available in federal court.

The Fifth Circuit denied en banc rehearing, but the vote was close (eight judges to seven) with four judges dissenting from the denial. No. 15-10358, 2016 U.S. App. Lexis 15521 (Aug. 23, 2016). The dissenters noted that the court had recently ruled a similar Louisiana requirement for medical malpractice cases substantive and thus applicable in federal court. They also explained that the purpose of such statutes causes them to be substantive and therefore equally applicable in federal and state court.

Passmore may not be the last word on this issue. Defendants may petition for certiorari to the U.S. Supreme Court, particularly considering the popularity of state statutes like Section 74.351 and the conflicting positions of other circuits.

The opinion also calls into question whether similar requirements – such as the certificate of merit for suits against engineers, architects, and other professionals in Chapter 150 of the Texas Civil Practice & Remedies Code – apply in federal courts.