In a battle between Texas tort reform and the Federal Rules of Civil Procedure, the Rules win

Passmore v. Baylor Health Care Sys., No. 15-10358 (5th Cir. May 19, 2016).

Here’s an interesting case about the relationship between state law and the federal courts. First-year law students learn that state substantive law and federal procedural law govern diversity cases. The distinction between the procedural and the substantive is famously elusive. One might think that a standard of appellate review, for example, is a rule of procedure, but that’s not necessarily true. A state law that seems procedural may well be substantive simply because it promotes certain substantive state policies. 

Texas law, for example, requires plaintiffs in medical-malpractice cases to serve an expert report within 120 days after the defendant files an answer—an extraordinarily early deadline. If the plaintiff misses that deadline, the case must be dismissed. You might think this is purely procedural, but it promotes certain substantive policies that the state of Texas considers important. It gives medical-malpractice defendants early notice of the plaintiff’s claim. It forces plaintiffs to put up or shut up early on in the case, thereby discouraging frivolous litigation (or so the Texas Legislature apparently believes). So you might think that this law applies in federal court.

But, as the Fifth Circuit holds in this case, this analysis ignores the supremacy of federal law. When a federal rule or statute applies to a certain issue, then that rule or statute governs that issue, so long as the issue is being litigated in federal court. This is true even if the issue might be considered a substantive one that would otherwise be governed by state law.

In federal court, Federal Rule of Civil Procedure 26 governs the disclosure of expert reports. It says that those reports generally must be disclosed “at the times and in the sequence that the court orders.” What’s more, Rule 37 dictates the consequences of blown disclosure deadlines. It gives federal district courts discretion about what sanctions to levy against a noncompliant party. Because Rules 26 and 37 put expert-disclosure deadlines and sanctions for late disclosure in the discretion of the district court, it is those rules that govern medical-malpractice litigation in federal court.