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Dana Levy, Partner

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Publications & Presentations

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Significant Cases

Roe v. Tajon, No. 02-23-00179-CV, 2023 WL 8643020 (Tex. App.—Fort Worth Dec. 14, 2023, no pet. h.) (mem. op)

Reversing dismissal of medical negligence claims against doctor and hospital based on their objections to Chapter 74 expert reports and holding that any disagreement with the experts’ opinions was “not for the trial court to resolve at this preliminary stage.”

Nazarian v. Remarkable Healthcare of Carrollton, LP, No. 02-22-00324-CV, 2023 WL 3370721 (Tex. App.—Fort Worth May 11, 2023, no pet. h.) (mem. op.)

Reversing Chapter 74 dismissal based on challenge to preliminary expert report in nursing home negligence case, finding that the expert’s “evidence-based inferences” did not constitute improper speculation.

Olivares v. Chevron Phillips Chem. Co. LP, No. 05-22-00057-CV, 2023 WL 2494533 (Tex. App.—Dallas Mar. 14, 2023, no pet. h.) (mem. op.)

Successfully reversed trial court’s order granting a plea to the jurisdiction in suit to recover personal injury damages against Chevron, holding that Chevron was not entitled to the worker’s compensation exclusive remedy defense because the injured worker, who was an employee of a subsidiary company, was not a deemed employee under Chevron’s OCIP policy.

Envision Radiology Tex. LP v. Trader, No. 05-20-00529-CV, 2022 WL 2826896 (Tex. App.—Dallas July 20, 2022, no pet.) (mem. op.)

Successfully convinced court of appeals to dismiss medical provider’s interlocutory appeal for lack of subject matter jurisdiction where trial court granted the statutorily-provided 30-day extension to cure alleged deficiencies in the plaintiff’s Ch. 74 expert report.

E.D. v. Tex. Health Care, P.L.L.C., 644 S.W.3d 660 (Tex. 2022)

Finding that expert report satisfied Chapter 74 of the Texas Civil Practice and Remedies Code and reversing court of appeals’ opinion to the contrary, confirming that Chapter 74’s “‘fair summary’ benchmark is not an evidentiary standard.”

Bluebird Med. Enterprises, LLC v. Willis, 651 S.W.3d 486 (Tex. App.—Houston [14th Dist.] 2022, no pet.)

Assuming, without deciding, that a motor vehicle collision involving an ambulance presented a health care liability claim, the court of appeals found that the plaintiffs’ preliminary expert reports satisfied the health care liability act when a paramedic outlined how the standard of care and breach caused the crash while a forensic pathologist linked the breach to the deceased plaintiff’s injury and death. In so holding, the court of appeals rejected the ambulance company defendant’s argument that a physician was required opine on the cause of the collision, observing that under Chapter 74 a physician need only opine on the cause of the injury, harm, or damages claimed.

In re Eagleridge Operating, LLC, 642 S.W.3d 518 (Tex. 2022)

Successfully defeated mandamus petition related to trial court’s striking of responsible third party.

Gateway Diagnostic Imaging, LLC v. Ratnasabapathy, No. 05-20-00817-CV, 2021 WL 3855634 (Tex. App.—Dallas Aug. 30, 2021, no pet.) (mem. op.)

Affirming denial of Chapter 74 motion to dismiss and holding that trial court properly considered amended expert reports that plaintiff filed within 120 days of defendant’s answer.

In re Elara Signature Homes, Inc., No. 09-21-00068-CV, 2021 WL 1418235 (Tex. App.—Beaumont Apr. 15, 2021, orig. proceeding) (mem. op.)

Successfully defeated petition for writ of mandamus filed by Defendants who did not want to answer discovery related to financial transactions among themselves in the face of allegations of fraudulent transfers.

Martinez v. Boone, 624 S.W.3d 241 (Tex. App.—El Paso 2021, pet. filed)

Successfully convinced court of appeals to reverse summary judgment in favor of oil well services company as to its vicarious liability for collision caused by a worker returning to remote well site after purchasing necessary supplies.  The court of appeals found fact issues existed as to both the existence of an employment relationship and whether the worker was acting in the course and scope of his employment.

Healy v. Mowat-Cudd, No. 04-20-00479-CV, 2021 WL 603369 (Tex. App.—San Antonio Feb. 17, 2021, no pet.) (mem. op.)

Successful defense of Chapter 74 medical expert report by radiologist who testified regarding physician’s failure to diagnose Plaintiff’s breast cancer.

Decker v. Columbia Med. Ctr. of Plano, No. 05-19-01508-CV, 2020 WL 6073880 (Tex. App.—Dallas Oct. 15, 2020, pet. denied) (mem. op.).

Successfully reversed a Chapter 74 dismissal, holding that a cardiologist with hospital administration experience was qualified to opine as to a hospital’s policies and procedures for providing cardiac care.

Shiloh Treatment Center, Inc. v. Ward, 608 S.W.3d 337 (Tex. App.—Houston [1st Dist.] 2020, pet. denied)

Affirming denial of second Chapter 74 motion to dismiss filed by operators of facilities for young people with mental disabilities filed after unsuccessful appeal of the first Chapter 74 motion to dismiss, finding the law of the case doctrine barred second motion to dismiss based on the same facts.

Texas Children’s Hosp. v. Knight, 604 S.W.3d 162 (Tex. App.—Houston [14th Dist.] 2020, pet. filed)

Affirming denial of Chapter 74 motions to dismiss filed by various health care providers, finding that challenged experts were qualified and that their reports satisfied Chapter 74’s gatekeeping functions in all respects.

Fair Oaks Housing Partners, LP v. Hernandez, 616 S.W.3d 602 (Tex. App.—Houston [14th Dist.] 2020, no pet.)

Successfully dismissed an appeal from a 2014 default judgment for lack of jurisdiction, rejecting the defendants’ argument that the default judgment was interlocutory because an unserved defendant was never nonsuited.  The court concluded that the default judgment was final because the plaintiff had abandoned all remaining claims against the unserved defendant.

In re Eagleridge Operating, LLC, No. 05-19-01171-CV, 2020 WL 408409 (Tex. App.—Dallas Jan. 24, 2020, orig. proceeding) (mem. op.)

Denying mandamus relief, finding that trial court did not abuse its discretion in striking responsible third party designation by owner of gas facility of former minority-interest owner and contract-operator.  The court of appeals held that the minority owner, who sold its interest in the premises to the majority owner prior to the personal injuries at issue, owed no duty to the injured plaintiff because, under premises-liability principles, any such duty passed to the majority owner when its interest was sold.

In re Turner, 591 S.W.3d 121 (Tex. 2019)

Court held that the expert-report requirement to proceed with a health-care-liability claim does not apply to a non-party doctor’s deposition when the doctor is a fact witness with knowledge relevant to claims against the defendant Hospital, even if the doctor may also face the possibility of becoming a defendant.

Morris v. Ponce, 584 S.W.3d 922 (Tex. App.—Houston [14th Dist.] 2019, pet. filed)

In matter of first impression, affirming denial of Chapter 74 motions to dismiss filed by newly-added nurses, holding that for purposes of section 74.351(a), an action does not commence as to each defendant until it is first named as a defendant.

Hulsey v. Attalla, No. 01-18-00189-CV, 2019 WL 3484082 (Tex. App.—Houston [1st Dist.] Aug. 1, 2019, no pet. h.) (mem. op.)

Affirming judgment following a jury trial concerning personal injuries suffered in an automobile collision.  In addition to rejecting the defendant’s many challenges to the jury’s causation and damage findings, the court of appeals also rejected an evidentiary argument regarding the improper admission of liability insurance, concluding that the defendant failed to show that the admission of such evidence caused rendition of an improper judgment.

Bay Oaks SNF, LLC v. Lancaster, No. 18-0793 (Tex. June 21, 2019)

Successfully defeated a healthcare provider’s petition for review to the Texas Supreme Court by providing merits briefing demonstrating that because the expert report satisfied Chapter 74 of the Texas Civil Practice and Remedies Code’s requirements regarding standard of care and causation as to an estate’s survival claim, the trial court did not abuse its discretion by also allowing a wrongful death claim to proceed.

Mitropoulos v. Pineda, No. 01-17-00795-CV, 2018 WL 6205855 (Tex. App.—Houston [1st Dist.] Nov. 29, 2018, no pet. h.) (mem. op.)

In dispute between commercial property neighbors, successfully convincing the court of appeals to reverse and render a take-nothing judgment on a jury verdict awarding lost rental income for breach of a settlement agreement, finding legally insufficient evidence to support the loss of rental income damage award.

Littell v. Houston Indep. Sch. Dist., 894 F.3d 616 (5th Cir. 2018)

Reversing the dismissal of a civil rights case arising out of a sixth-grade assistant principal’s “mass, suspicionless strip search of the underwear of twenty-two preteen girls” in an effort to find a missing $50, finding that the search violated the girls’ constitutional rights under Texas and federal law.

Garcia v. Wal-Mart Stores Texas, L.L.C., 893 F.3d 278 (5th Cir. 2018)

Reversing summary judgment in a slip-and-fall case, finding that circumstantial creation evidence—evidence that the owner of a premises created the dangerous condition—can support an inference of knowledge on the part of the owner.

McRay v. Dow Golub Remels & Beverly, LLP, 554 S.W.3d 702 (Tex. App.—Houston [1st Dist.] 2018, no pet.)

Successfully reversed summary judgment awarding law firm unpaid attorney’s fees based on law firm’s failure to conclusively establish the reasonableness of fees charged to its former client.

In re Brenham Nursing & Rehab. Ctr., No. 01-23-00946-CV, 2024 WL 924436 (Tex. App.—Houston [1st Dist.] Mar. 5, 2024, orig. proceeding) (per curiam) (mem. op.)

After full briefing, denying nursing home defendant’s request for mandamus when trial court held that nursing home was not entitled to protections of the Pandemic Liability Protection Act because the nursing home failed to timely provide specific facts to support its affirmative defenses under the PLPA as statutorily required.

Ramsay v. Ferguson, No. 07-23-00392-CV, 2024 WL 769537 (Tex. App.—Amarillo Feb. 23, 2024, no pet. h.) (mem. op.)

Affirming the denial of nursing home administrators’ qualifications-based challenge to Chapter 74 preliminary expert reports and holding that licensed nursing administrators were qualified to offer opinions on standard of care and breach while a forensic pathologist was qualified to address causation.

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