Expert testimony is intangible, so no TTCA claim for use in SOAH hearing, says Austin Court of Appeals

Walter Zawislak, MD v. Texas Medical Board, 03-17-00523-CV (Tex. App. – Austin, January 25, 2019).

This is a Texas Tort Claims Act (TTCA) case where the Austin Court of Appeals affirmed the granting of a plea to the jurisdiction by the Texas Medical Board (TMB), involving the use of an expert for testimony in a hearing before the State Office of Administrative Hearings (SOAH).

The TMB filed a complaint against Zawislak at SOAH for alleged violations of the Texas Medical Practice Act. TMB offered into the administrative record an expert report and deposition testimony. The SOAH judge issued an order publicly reprimanding Zawislak.   Zawislak sued the TMB under the TTCA asserting TMB’s negligent use of the expert report and testimony proximately caused him personal injury –including mental anguish, medical expenses, loss of services, and loss of past and future earning capacity. The TMB filed a plea to the jurisdiction, which was granted. Zawislak appealed.

Analyzing the claims, the court held Zawislak does not allege that he suffered a personal injury from the use of the paper on which the report and testimony were recorded, but by the use of the information in that paper. Information is intangible and, thus, does not constitute tangible personal property under § 101.021(2) of the TTCA. And since his pleadings are defective in a way that cannot be cured by amendment, the trial court did not err by failing to allow him the opportunity to amend. The plea was properly granted.

If you would like to read this opinion, click here. Panel consists of Chief Justice Rose, Justice Goodwin and Justice Kelly. Memorandum Opinion by Chief Justice Rose. The attorneys listed for the Medical Board are Scott M. Freshour and Daniel Olds. The attorney listed for Walter is Craig W. Harvey.

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