Northwest Cypress EMS v. Frances Guillory

Opinion issued August 6, 2020

In The

Court of Appeals
For The

First District of Texas
————————————
NO. 01-19-00668-CV
———————————
NORTHWEST EMS CONSULTANTS, P.A. D/B/A NORTH CYPRESS EMS,
Appellant
V.
FRANCES GUILLORY, Appellee

On Appeal from the 11th District Court
Harris County, Texas
Trial Court Case No. 2018-61162

MEMORANDUM OPINION
 In this interlocutory appeal,1 appellant, Northwest EMS Consultants, P.A.,

doing business as North Cypress EMS (“North Cypress EMS”),2 challenges the trial

court’s order overruling its objections and denying its motions to dismiss the health

care liability claim3 made against it by appellee, Frances Guillory, in her suit for

negligence. In two issues, North Cypress EMS contends that the trial court erred in

overruling its objections and denying its motions to dismiss Guillory’s claims

against it.4

We reverse and remand.

Background

In her petition, Guillory alleges that on or about September 9, 2016, North

Cypress EMS, an emergency medical services provider, transferred her from one

hospital to another by ambulance. According to Guillory, while North Cypress

EMS’s agents or employees attempted to transfer her from the ambulance to the

hospital, they dropped her onto the ground causing her unspecified, but severe

injuries and damages.

1
See TEX. CIV. PRAC. & REM. CODE ANN. § 51.014(a)(9).
2
Frances Guillory sued “North Cypress EMS.” In its answer, North Cypress EMS
correctly identified itself as “Northwest EMS Consultants, P.A., doing business as
North Cypress EMS.”
3
See id. § 74.001(a)(13) (defining “[h]ealth care liability claim”).
4
See id. § 74.351 (governing expert reports).

2
 Guillory brings a health care liability claim against North Cypress EMS for

negligence. She alleges that its agents or employees were negligent in failing to

safely transport her and in dropping her while transporting her from an ambulance

to a hospital. The negligent acts and omissions of North Cypress EMS’s agents or

employees proximately caused her injuries and damages. Guillory seeks damages

for physical and mental pain and anguish, loss of wage-earning capacity, physical

impairment, disfigurement, and medical expenses.

To support her claim, Guillory timely served upon North Cypress EMS two

medical expert reports. The first expert report, authored by Jeffrey P. Jannarone,

states that he is a licensed Emergency Medical Technician (“EMT”) in New Jersey

and is an “expert in the field of emergency services.”5 According to Jannarone, he

has “over 30 years of experience in the discipline of emergency medical services,”

including experience in academic teaching and the physical transport of medical

patients. He has been “actively engaged in the practice of ambulance patient

transportation since 1988” and has experience with the proper handling and

transportation of patients, including the lifting of patients. Jannarone is employed

as a consultant and expert by Robson Forensic, Inc. located in Philadelphia,

Pennsylvania. In connection with his employment he “provide[s] technical

investigations, analysis, reports, and testimony toward the resolution of civil and

5
Jannarone attached his curriculum vitae (“CV”) to his expert report.

3
criminal litigation[,] including investigations into the proper emergency services

management policies, procedures[,] and training regarding [EMTs].” He often

analyzes, interprets, and applies knowledge of patient transport. That knowledge

includes, but is not limited to, “pre-shift equipment checks, procedures for lifting

and moving patients, and transferring a patient into and out of an ambulance.”

In his report, Jannarone states that on September 9, 2016, Guillory was a

patient at a Memorial Hermann Convenient Care Center when she needed to be

transported to Memorial Hermann Memorial City Medical Center (“Memorial

Hermann Memorial City”). Two North Cypress EMS EMTs transferred Guillory to

a stretcher, secured by straps, and loaded her into an ambulance. The EMTs then

transported Guillory by ambulance to Memorial Hermann Memorial City. While

trying to unload Guillory from the ambulance, the EMTs dropped her while she was

strapped to the stretcher.

In Jannarone’s opinion, the North Cypress EMS EMTs were required to

properly unload Guillory from the ambulance and proper unloading “included the

safety provided by not dropping . . . Guillory.” Jannarone states that the EMTs

“failed to safely unload . . . Guillory when they dropped [her] while she was strapped

on a stretcher.” And by failing to properly unload Guillory, the EMTs “violated the

industry standard of care for a reasonable [EMT] and were a cause of th[e] incident.”

4
 Guillory’s second expert report, authored by Kevin Anuvat, M.D., states that

Dr. Anuvat is a board-certified physiatrist and pain medicine doctor.6 He is licensed

to practice medicine in the State of New York and the State of Texas.

In his report, Dr. Anuvat states that on September 9, 2016, Guillory, a

forty-one-year-old female, sustained a fall while North Cypress EMS transported her

to Memorial Hermann Memorial City. At the time of her fall, Guillory was on a

stretcher and experiencing abdominal pain and gastroenteritis. According to Dr.

Anuvat, the legs of the stretcher “failed to come down” and caused Guillory to be

dropped to the ground. After the incident, Guillory had pain in her neck, midback,

and low back.

On December 13, 2016, Guillory was evaluated at Interventional Spine of

Texas, where it was determined that she had injuries to her cervical and lumbar

spine. She was experiencing frequent sharp, shooting pain that radiated to her

shoulders and both legs, with numbness and tingling. Guillory’s magnetic resonance

imaging (“MRI”) showed disc herniations and annular fissures, which were

consistent with her primary complaints and the pertinent positive physical

examination findings.

According to Dr. Anuvat, the findings of her cervical spine MRI, related to

her C5-C6 intervertebral disc, were:

6
Dr. Anuvat attached his CV to his expert report.

5
 Broad-based 3.7 mm posterior right central disc
protrusion-subligamentous disc herniation with superimposed 5 mm
posterior right central annular fissure (high intensity zone). Disc
protrusion extends into the epidural fat and indents the thecal sac with
contact on the ventral cervical cord. The intervertebral disc
demonstrates decreased central hyperintensity with preservation of the
disc height] [and] may suggest an acute/subacute injury with leakage of
central disc contents.

(Emphasis omitted.) The findings of her cervical spine MRI, related to her C6-C7

intervertebral disc, were:

Broad-based 2.0 mm posterior central disc protrusion-subligamentous
disc herniation with a superimposed 4 mm central annular fissure (high
intensity zone). Disc protrusion extends into the epidural fat and
indents the thecal sac without contact on the ventral cervical cord. The
intervertebral disc demonstrates decreased central hyperintensity with
preservation of the disc height] [and] may suggest an acute/subacute
injury with leakage of central disc contents.

(Emphasis omitted.) The findings of her lumbar spine MRI were:

1. L5-S1: Broad-based posterior left central disc
protrusion-subligamentous disc herniation extends into the
epidural fat and indents the thecal sac.
2. L4-L5: Broad-based 2.0 mm posterior left central disc
protrusion-subligamentous disc herniation extends into the
epidural fat and indents the thecal sac.

(Emphasis omitted.)

Dr. Anuvat states in his report that a herniated disc or protrusion is a condition

in which the annulus fibrosus (outer portion) of the vertebral disc is torn, enabling

the nucleus (inner portion) to herniate or protrude through the fibers. A bulging disc

is a condition in which there is laxity in the annulus from degenerative fibrosus

6
(outer portion), unlike a herniated disc in which the nucleus leaks out of the disc.

Bulges are considered to be more likely degenerative in nature whereas hernias are

a result of an incident such as trauma or repetitive use.

According to Dr. Anuvat, before Guillory was evaluated at Interventional

Spine of Texas, she “completed PT/chiropractic care” and used “non-narcotic

prescription analgesics,” which did not relieve her symptoms. Thus, because

Guillory had not responded to conservative care and medications, after her

evaluation at Interventional Spine of Texas, it became “necessary to proceed with

interventional treatment.” On January 12, 2017, Guillory underwent a Lumbar

Transforaminal Epidural Steroid Injection, which resulted in a substantial reduction

of pain. On January 26, 2017, Guillory reported a seventy-percent improvement in

her low back pain with increased function and range of motion in her low back.

As to causation of Guillory’s cervical and lumbar spine injuries, Dr. Anuvat

states that “Guillory was a young healthy female with no history of trauma,

musculoskeletal pain complaints, or radiculopathy symptoms prior to the fall she

suffered on [September 9, 2016].” After the fall, Guillory had complaints of pain.

Dr. Anuvat states that he found a study that determined that less than twenty

percent of individuals under sixty years old will have a disc herniation in the low

back and ten percent of individuals over the age of forty years old will have a disc

herniation in the neck. And he found a second study, related to spinal imaging

7
findings of asymptomatic patients, that determined that there is a thirty-three percent

chance that the disc protrusions seen on the MRI were due to a degenerative process.

Thus, given that Guillory was forty-one years old at the time of the fall, it is “within

a reasonable medical probability that the [incident] caused the disc herniations and

not the normal aging process.” Dr. Anuvat then concludes that “[t]o a reasonable

degree of medical certainty, . . . Guillory’s cervical and lumbar disc herniations and

associated pain complaints were caused by the fall from the stretcher that [she]

experienced while being transported by North Cypress EMS” on September 9, 2016.

North Cypress EMS objected to Jannarone’s expert report because it does not

provide a fair summary of the applicable standard of care and how North Cypress

EMS breached the standard of care and it does not explain the causal relationship

between the alleged breach of the standard of care and Guillory’s alleged injuries.

North Cypress EMS also asserted that Jannarone is not qualified to offer opinions as

to the applicable standard of care and causation.

North Cypress EMS objected to Dr. Anuvat’s expert report because it does

not provide a fair summary of the causal relationship between North Cypress EMS’s

alleged breach of the applicable standard of care and Guillory’s alleged injuries. Dr.

Anuvat’s opinion as to causation is conclusory and only states that Guillory

purportedly had no symptoms before the incident and she complained of symptoms

afterward, so the incident must have caused her injury. It does not inform North

8
Cypress EMS of the conduct that Guillory calls into question and does not provide

a basis for the trial court to conclude that Guillory’s claim has merit. North Cypress

EMS also asserted that Dr. Anuvat is not qualified to offer an opinion as to the

applicable standard of care or causation. Because of the deficiencies in both expert

reports, North Cypress EMS requested that Guillory’s health care liability claim

against it be dismissed.7

After Guillory filed a response to North Cypress EMS’s objections and

requests for dismissal, the trial court overruled its objections to both expert reports

and denied its motions to dismiss Guillory’s health care liability claim against it.

Standard of Review

We review a trial court’s decision on a motion to dismiss a health care liability

claim for an abuse of discretion. See Am. Transitional Care Ctrs. of Tex., Inc. v.

Palacios, 46 S.W.3d 873, 875 (Tex. 2001); Gray v. CHCA Bayshore L.P., 189

S.W.3d 855, 858 (Tex. App.—Houston [1st Dist.] 2006, no pet.). We apply the same

standard to a trial court’s determination that an expert is qualified. See Broders v.

Heise, 924 S.W.2d 148, 151–52 (Tex. 1996); San Jacinto Methodist Hosp. v.

Bennett, 256 S.W.3d 806, 811 (Tex. App.—Houston [14th Dist.] 2008, no pet.). A

trial court abuses its discretion if it acts in an arbitrary or unreasonable manner

7
North Cypress EMS filed separate objections to each report and each objection
contained a request that Guillory’s health care liability claim against it be dismissed.

9
without reference to guiding rules or principles. Jelinek v. Casas, 328 S.W.3d 526,

539 (Tex. 2010). When reviewing matters committed to a trial court’s discretion,

we may not substitute our own judgment for that of the trial court. Bowie Mem’l

Hosp. v. Wright, 79 S.W.3d 48, 52 (Tex. 2002). A trial court does not abuse its

discretion merely because it decides a discretionary matter differently than an

appellate court would in a similar circumstance. Harris Cty. Hosp. Dist. v. Garrett,

232 S.W.3d 170, 176 (Tex. App.—Houston [1st Dist.] 2007, no pet.). However, a

trial court has no discretion in determining what the law is or in applying the law to

the facts. See Walker v. Packer, 827 S.W.2d 833, 840 (Tex. 1992). In conducting

our review, we always bear in mind that the Legislature’s goal in requiring expert

reports was to deter baseless claims, not block earnest ones. Jackson v. Kindred

Hosps. Ltd. P’ship, 565 S.W.3d 75, 81 (Tex. App.—Fort Worth 2018, pet. denied);

Gonzalez v. Padilla, 485 S.W.3d 236, 242 (Tex. App.—El Paso 2016, no pet.); see

also Scoresby v. Santillan, 346 S.W.3d 546, 554 (Tex. 2011) (“The purpose of the

expert report requirement is to deter frivolous claims, not to dispose of claims

regardless of their merits.” (internal footnotes omitted)).

Sufficiency of Expert Report

In its first issue, North Cypress EMS argues that the trial court erred in

overruling its objections to Jannarone’s expert report and denying its motion to

dismiss Guillory’s health care liability claim against it because Jannarone’s expert

10
report does not adequately address the applicable standard of care, breach of the

standard of care, and causation. In its second issue, North Cypress EMS argues that

the trial court erred in overruling its objections to Dr. Anuvat’s expert report and

denying its motion to dismiss Guillory’s health care liability claim against it because

Dr. Anuvat is not qualified to render an opinion on the issue of causation and his

expert report does not adequately address causation.

Under the Texas Medical Liability Act (“TMLA”), a plaintiff asserting a

health care liability claim must timely serve a defendant health care provider8 with

at least one expert report, with a CV for the expert whose opinion is offered, to

substantiate the merits of the plaintiff’s claim. TEX. CIV. PRAC. & REM. CODE ANN.

§ 74.351(a), (i); see also Mangin v. Wendt, 480 S.W.3d 701, 705 (Tex. App.—

Houston [1st Dist.] 2015, no pet.). The expert report must provide a “fair summary”

of the expert’s opinions regarding (1) the applicable standard of care, (2) the manner

in which the care rendered by the defendant health care provider failed to meet the

standard of care, and (3) the causal relationship between that failure and the injury,

harm, or damages claimed. TEX. CIV. PRAC. & REM. CODE ANN. § 74.351(r)(6); see

8
See id. § 74.001(a)(12)(A) (“Health care provider” means “any person, partnership,
professional association, corporation, facility, or institution duly licensed, certified,
registered, or chartered by the State of Texas to provide health care, including: . . . a
health care institution.” (internal quotations omitted)); see also id.
§ 74.001(a)(11)(G) (“Health care institution” includes “an emergency medical
services provider.” (internal quotations omitted)).

11
also Certified EMS, Inc. v. Potts, 392 S.W.3d 625, 630 (Tex. 2013). A “fair

summary” of the expert’s opinions means that, at the least, the report must state more

than the expert’s mere conclusions as to the standard of care, breach, and causation;

it must instead explain the basis of the expert’s opinion so as to link the conclusions

to the facts of the case. See Jelinek, 328 S.W.3d at 539; Wright, 79 S.W.3d at 52.

If a plaintiff fails to timely serve an expert report, then on the motion of a

defendant health care provider, the trial court must dismiss the pertinent health care

liability claim with prejudice and award attorney’s fees. TEX. CIV. PRAC. & REM.

CODE ANN. § 74.351(b); Baty v. Futrell, 543 S.W.3d 689, 692 (Tex. 2018). But if a

plaintiff timely serves an expert report and a defendant health care provider files a

motion challenging the adequacy of that report, then the trial court may only grant

the motion “if it appears to the court, after [a] hearing, that the report does not

represent an objective good faith effort to comply with the [TMLA’s] definition of

an expert report.” TEX. CIV. PRAC. & REM. CODE ANN. § 74.351(l); Baty, 543

S.W.3d at 692–93; see also TEX. CIV. PRAC. & REM. CODE ANN. § 74.351(r)(6)

(“Expert report” means “a written report by an expert that provides a fair summary

of the expert’s opinions as of the date of the report regarding applicable standards of

care, the manner in which the care rendered by the . . . health care provider failed to

meet the standards, and the causal relationship between that failure and the injury,

harm, or damages claimed.” (internal quotations omitted)).

12
 An expert report qualifies as an “objective good faith effort” to avoid

dismissal if it discusses each element with sufficient specificity so that it (1) informs

the defendant health care provider of the specific conduct that the plaintiff questions

or about which the plaintiff complains and (2) provides a basis for the trial court to

conclude that the plaintiff’s health care liability claim has merit. Miller v. JSC Lake

Highlands Operations, LP, 536 S.W.3d 510, 513 (Tex. 2017); see also Baty, 543

S.W.3d at 693–94. The expert report is not required to use any particular words, and

it may be informal, “but bare conclusions will not suffice.” Scoresby, 346 S.W.3d

at 555–56.

In determining whether an expert report constitutes an “objective good faith

effort” to address each element, “a trial court may not draw inferences; instead, it

must exclusively rely upon the information contained within the four corners of the

report.” Puppala v. Perry, 564 S.W.3d 190, 197 (Tex. App.—Houston [1st Dist.]

2018, no pet.) (internal quotations omitted). And when the issue of adequacy hinges

on an expert’s qualifications, the trial court may also consider the “four corners” of

the expert’s CV. Id.; Mangin, 480 S.W.3d at 706. Courts must view the report in

its entirety, rather than isolating specific portions or sections, to determine whether

it is sufficient. See Baty, 543 S.W.3d at 694; see, e.g., Van Ness v. ETMC First

Physicians, 461 S.W.3d 140, 144 (Tex. 2015); see also Austin Heart, P.A. v. Webb,

228 S.W.3d 276, 282 (Tex. App.—Austin 2007, no pet.) (“The form of the report

13
and the location of the information in the report are not dispositive.”). In reviewing

the adequacy of an expert report, a trial court may not consider an expert’s

credibility, the data relied upon by the expert, or the documents that the expert failed

to consider at this pre-discovery stage of the litigation. See Mettauer v. Noble, 326

S.W.3d 685, 691–92 (Tex. App.—Houston [1st Dist.] 2010, no pet.); Gonzalez, 485

S.W.3d at 245.

Multiple expert reports may be considered together in determining whether a

plaintiff has provided a report meeting the statutory requirements. See TEX. CIV.

PRAC. & REM. CODE ANN. § 74.351(i); Salias v. Tex. Dep’t of Aging & Disability

Servs., 323 S.W.3d 527, 534 (Tex. App.—Waco 2010, pet. denied); Walgreen Co.

v. Hieger, 243 S.W.3d 183, 186 n.2 (Tex. App.—Houston [14th Dist.] 2007, pet.

denied). A single report addressing both liability and causation issues related to a

defendant health care provider is not required. See TEX. CIV. PRAC. & REM. CODE

ANN. § 74.351(i); Gannon v. Wyche, 321 S.W.3d 881, 896 (Tex. App.—Houston

[14th Dist.] 2010, pet. denied). But read together, the multiple expert reports must

provide a “fair summary” of the expert’s opinions regarding (1) the applicable

standard of care, (2) the manner in which the care rendered by the defendant health

care provider failed to meet the standard of care, and (3) the causal relationship

between that failure and the injury, harm, or damages claimed. See TEX. CIV. PRAC.

& REM. CODE ANN. § 74.351(i), (r)(6); see also Gannon, 321 S.W.3d at 896.

14
A. Standard of Care and Breach

In a portion of its first issue, North Cypress EMS asserts that Jannarone’s

expert report does not adequately address the applicable standard of care and breach

of the standard of care. According to North Cypress EMS, the report does not inform

it of the applicable standard of care or the manner in which the standard was

breached and it does not identify the steps that North Cypress EMS or its agents or

employees should have taken, but did not.

As stated above, an expert report must provide a “fair summary” of the

expert’s opinions regarding the applicable standard of care and the manner in which

the care rendered by the defendant health care provider failed to meet that standard.

TEX. CIV. PRAC. & REM. CODE ANN. § 74.351(r)(6); see also Potts, 392 S.W.3d at

630.

Identifying the standard of care in a health care liability claim is critical.

Palacios, 46 S.W.3d at 880; see also Wilcox v. Montalvo, No. 13-10-611-CV, 2011

WL 1443689, at *4 (Tex. App.—Corpus Christi–Edinburg Apr. 14, 2011, no pet.)

(mem. op.) (“Identifying the standard of care is vital because [w]hether a defendant

breached [its] . . . duty to a patient cannot be determined absent specific information

about what the defendant should have done differently.” (internal quotations

omitted) (first alteration in original)). To adequately identify the standard of care,

an expert report must set forth “specific information about what the defendant should

15
have done differently.” Abshire v. Christus Health Se. Tex., 563 S.W.3d 219, 226

(Tex. 2018) (internal quotations omitted). Thus, related to the standard of care and

breach, the expert report must explain what the defendant health care provider

should have done under the circumstances and what the health care provider did

instead. Palacios, 46 S.W.3d at 880; see also Kline v. Leonard, No.

01-19-00323-CV, 2019 WL 6904720, at *7 (Tex. App.—Houston [1st Dist.] Dec.

19, 2019, pet. denied) (mem. op.). It is not sufficient for the expert to simply state

that he knows the standard of care and concludes that it was or was not met.

Palacios, 46 S.W.3d at 880.

As to the applicable standard of care, Jannarone, in his expert report, states

that he has “knowledge of the applicable standard of care for [EMTs]” and that the

North Cypress EMS EMTs were required to properly unload Guillory from the

ambulance and proper unloading “included the safety provided by not

dropping . . . Guillory.” As to the breach of the standard of care, Jannarone states

that the EMTs “failed to safely unload . . . Guillory when they dropped [her] while

she was strapped on a stretcher.” And by failing to properly unload Guillory, the

EMTs “violated the industry standard of care for a reasonable [EMT] and were a

cause of th[e] incident.”

“A report that merely states the expert’s conclusions about the standard of

care[] [and] breach” does not fulfill the purposes of requiring a good-faith effort. Id.

16
at 879. Instead, an expert must provide statements concerning the applicable

standard of care that identify the care expected that was not given with such

specificity that inferences are not needed to discern it. Id. at 880. The report must

provide a basis for the trial court to conclude that the plaintiff’s claim has merit. Id.

at 879.

Jannarone’s expert report is conclusory with respect to both the applicable

standard of care and breach. He fails to specifically describe the standard of care for

transferring a patient strapped to a stretcher from an ambulance to a hospital and

what the North Cypress EMS EMTs failed to do that breached that standard. See

Abshire, 563 S.W.3d at 226 (to adequately identify standard of care, expert report

must set forth “specific information about what the defendant should have done

differently”); Palacios, 46 S.W.3d at 879–80 (mere statement that precautions to

prevent patient’s fall were not proper did not constitute statement of applicable

standard of care); Wilcox, 2011 WL 1443689, at *4 (expert report conclusory where

it failed to mention precautions that should have been taken to properly transfer

patient in wheelchair and how defendant physician acted or failed to act in

accordance with those precautions); Hoelscher v. San Angelo Cmty. Med. Ctr., No.

03-03-00236-CV, 2004 WL 2731967, at *2–4 (Tex. App.—Austin Dec. 2, 2004, no

pet.) (mem. op.) (although expert report focused on transfer of patient between

gurney and procedure table, it only stated that whatever method used to transfer

17
patient was required to be performed in manner that did not harm patient’s

extremities or body parts which is not sufficient). An expert report that opines that

the applicable standard of care requires that a patient not to be injured while she is

being transferred is not sufficient to notify the defendant health care provider of the

specific conduct complained of and does not allow the trial court to assess the merits

of the plaintiff’s claim. See Hoelscher, 2004 WL 2731967, at *2–4; cf. Robles v.

Pinnacle Health Facilities XV, LP, No. 14-18-00135-CV, 2020 WL 746720, at *4–

7 (Tex. App.—Houston [14th Dist.] Feb. 13, 2020, no pet.) (mem. op.) (expert report

sufficient where it explained that standard of care required presence of two staff

persons during patient transfer, explained in detail role of each staff person involved

in patient transfer, and explained how presence of only single staff person breached

that standard). Here, Jannarone’s expert report fails to inform North Cypress EMS

of the specific conduct that Guillory calls into question, and it does not provide a

basis for the trial court to conclude that Guillory’s health care liability claim has

merit. See Baty, 543 S.W.3d at 693–94; Miller, 536 S.W.3d at 513; cf. Robles, 2020

WL 746720, at *4–7; see also Palacios, 46 S.W.3d at 880 (“While a ‘fair summary’

is something less than a full statement of the applicable standard of care and how it

was breached, even a fair summary must set out what care was expected, but not

given.” (internal quotations omitted)).

18
 We conclude that Jannarone’s expert report does not adequately inform North

Cypress EMS of the applicable standard of care and the manner in which the care

rendered by North Cypress EMS failed to meet that standard.9 Thus, we hold that

the trial court erred in overruling North Cypress EMS’s objections and in denying

its motion to dismiss Guillory’s health care liability claim against it because

Jannarone’s report does not adequately address the applicable standard of care and

breach of that standard.10

We sustain this portion of North Cypress EMS’s first issue.

B. Causation

In its second issue, North Cypress EMS asserts that Dr. Anuvat is not qualified

to render an expert opinion on the issue of causation and his expert report does not

adequately address causation.

An expert report by a person not qualified to testify does not constitute a

good-faith effort to comply with the TMLA’s definition of an expert report and

warrants dismissal. See Mettauer, 326 S.W.3d at 693; see also TEX. CIV. PRAC. &

9
To the extent that our learned colleague attempts to speculate as to what we believe
Jannarone’s expert report should have said, such conjecture is misleading and
irrelevant. We are not in the business of instructing experts on what to include in
their expert reports. Instead, we are only tasked with determining whether
Jannarone’s expert report adequately addresses the applicable standard of care and
breach of the standard of care. And here it does not.
10
Guillory does not assert that Dr. Anuvat’s expert report sets forth the applicable
standard of care or how that standard was breached by North Cypress EMS.

19
REM. CODE ANN. § 74.351(l), (r)(6). Whether an expert witness is qualified to offer

an expert opinion lies within the sound discretion of the trial court. Cornejo v.

Hilgers, 446 S.W.3d 113, 121 (Tex. App.—Houston [1st Dist.] 2014, pet. denied).

The expert’s qualifications must appear in the four corners of the expert report or in

the expert’s accompanying CV. Puppala, 564 S.W.3d at 197, 202; see also Cornejo,

446 S.W.3d at 121.

To be qualified to opine on the causal relationship between a defendant health

care provider’s alleged failure to meet an applicable standard of care and the

plaintiff’s claimed injury, harm, or damages, the author of an expert report must be

a physician who is qualified to render opinions on such causal relationships under

the Texas Rules of Evidence. See TEX. CIV. PRAC. & REM. CODE ANN. § 74.403(a);

see id. § 74.351(r)(5)(C) (“Expert” means “with respect to a person giving opinion

testimony about the causal relationship between the injury, harm, or damages

claimed and the alleged departure from the applicable standard of care in any health

care liability claim, a physician who is otherwise qualified to render opinions on

such causal relationship under the Texas Rules of Evidence.” (internal quotations

omitted)); Cornejo, 446 S.W.3d at 120.

An expert witness may be qualified on the basis of knowledge, skill,

experience, training, or education to testify on scientific, technical, or other

specialized subjects if the testimony would “assist the trier of fact” in understanding

20
the evidence or determining a fact issue. Cornejo, 446 S.W.3d at 121; see TEX. R.

EVID. 702. Thus, a plaintiff must show that her expert has “knowledge, skill,

experience, training, or education” regarding the specific issue before the court that

would qualify the expert to give an opinion on that particular subject. Broders, 924

S.W.2d at 153–54 (internal quotations omitted); see also Cornejo, 446 S.W.3d at

121.

Not every licensed physician is qualified to testify on every medical question.

See Broders, 942 S.W.2d at 152–53; Cornejo, 446 S.W.3d at 121. Yet, a physician

need not practice in the particular field about which he is testifying so long as he can

demonstrate that he has knowledge, skill, experience, training, or education

regarding the specific issue before the court that would qualify him to give an

opinion on that subject. Cornejo, 446 S.W.3d at 121. In other words, what is

required is that the physician demonstrate that he is qualified to opine on the specific

issue before the court. Puppala, 564 S.W.3d at 202.

North Cypress EMS argues that Dr. Anuvat is not qualified to render an expert

opinion on the issue of causation because “none of [his] training, education, or

experience . . . establishes that he is qualified to provide expert opinions regarding

the diagnosis or cause of spinal injuries,” and in health care liability cases, “[c]ourts

have held repeatedly that pain management doctors lack qualifications to opine

regarding [the] causation of orthopedic and spinal injuries.”

21
 Dr. Anuvat is licensed to practice medicine in the State of New York and the

State of Texas. He is a board-certified physiatrist11 and pain medicine doctor. He is

currently employed by DaVinci Pain Consultants as an Interventional Pain

Management Attending. Previously, he was employed, for a year, by Interventional

Spine of Texas as an Interventional Pain Management Attending and by Community

General Hospital in Syracuse, New York, for a year, as an Acute Inpatient

Rehabilitation Moonlighting Attending. He received his medical degree from Ross

University School of Medicine in Portsmouth, Dominica. He did a year internship

for internal medicine at the University of Buffalo in Buffalo, New York. He

completed his residency in physical medicine and rehabilitation, and he completed

a pain medicine fellowship at the State University of New York Upstate Medical

University in Syracuse, New York.

In her petition, Guillory alleges that North Cypress EMS’s agents or

employees were negligent in failing to transport her safely and dropping her while

transporting her from an ambulance to a hospital. Guillory, thus, had the burden to

establish that Dr. Anuvat had some “knowledge, skill, experience, training, or

11
A physiatrist is a physician specializing in physiatry or physical medicine and
rehabilitation. See Cayton v. Moore, 224 S.W.3d 440, 442 n.1 (Tex. App.—Dallas
2007, no pet.). Physical medicine and rehabilitation is the branch of medicine
emphasizing the prevention, diagnosis, and treatment of disorders that may produce
temporary or permanent impairment. Id. Physical medicine and rehabilitation
provides integrated care in the treatment of all neurologic and musculoskeletal
disabilities from traumatic brain injury to lower back pain. Id.

22
education” about whether those allegedly negligent acts caused Guillory’s claimed

injury, harm, or damages. See Matagorda v. Nursing & Rehab. Ctr., L.L.C. v.

Brooks, No. 13-16-00266-CV, 2017 WL 127867, at *6 (Tex. App.—Corpus Christi–

Edinburg Jan. 12, 2017, no pet.) (mem. op.); Diagnostic Research Grp. v. Vora, 473

S.W.3d 861, 869–70 (Tex. App.—San Antonio 2015, no pet.); see also Cornejo, 446

S.W.3d at 121 (plaintiffs required to establish expert qualified on basis of

knowledge, skill, experience, training, or education to offer opinion concerning

causal link between alleged breaches of standard of care and injuries suffered);

Mem’l Hermann Healthcare Sys. v. Burrell, 230 S.W.3d 755, 762 (Tex. App.—

Houston [14th Dist.] 2007, no pet.) (party offering witness as expert must establish

witness is qualified). In his report, Dr. Anuvat states that Guillory had injuries to

her cervical and lumbar spine. But, nothing in his expert report and CV addresses

whether, or how, his knowledge, skill, experience, training, or education as a

physiatrist and pain medicine doctor qualifies him to opine on whether the

negligence of North Cypress EMS’s agents or employees caused Guillory’s

injuries.12 See Estorque v. Schafer, 302 S.W.3d 19, 26 (Tex. App.—Fort Worth

12
In one line in his CV, Dr. Anuvat states that he was a volunteer EMT for the City of
Austin Emergency Medical Services from 2007-2008 at the same time that he was
attending medical school. His CV also lists under the “Certification” section: “2006
State of Texas Emergency Medical Technician-Basic.” There is no explanation or
detail provided related to these two entries on his CV. These lines are not sufficient
to show that he is qualified to opine on the causal relationship between North
23
2009, no pet.) (“Qualifications must appear in the expert report [and CV] and cannot

be inferred.”); Palafox v. Silvey, 247 S.W.3d 310, 316 (Tex. App.—El Paso 2007,

no pet.) (“In deciding whether an expert is qualified, the trial court must ensure those

who purport to be experts truly have expertise concerning the actual subject about

which they are offering an opinion.” (internal quotations omitted)); see also TEX.

CIV. PRAC. & REM. CODE ANN. § 74.403(a) (expert must be qualified to opine on

causal relationship between defendant health care provider’s alleged failure to meet

applicable standard of care and plaintiff’s claimed injury, harm, or damages).

Although Guillory asserts that Dr. Anuvat must be qualified to opine on the

issue of causation because he treated Guillory at some point after the incident,13 this

does not automatically qualify him as an expert on the causal relationship between

North Cypress EMS’s alleged failure to meet an applicable standard of care and

Guillory’s claimed injury, harm, or damages. See Roberts v. Williamson, 111

S.W.3d 113, 121 (Tex. 2003) (medical license does not automatically qualify

Cypress EMS’s alleged failure to meet an applicable standard of care and Guillory’s
claimed injury, harm, or damages.
13
Guillory, in her brief, refers to Dr. Anuvat as a “treating provider.” Dr. Anuvat,
however, in his report does not state that he treated Guillory at any point. Instead,
above his signature line on his report, it merely states, without detail: “TREATING
PHYSICIAN[.] I, Kevin Anuvat, MD, being a doctor duly licensed to practice
medicine in the State of Texas, pursuant to the applicable provisions of the Civil
Practice Law and Rules, Section 2106, hereby affirm, under penalties of perjury that
the statements contained herein are true and the [sic] accurate to the best of my
knowledge.”

24
physician to testify about causation); Broders, 924 S.W.2d at 152–53 (“[T]here is no

validity, if there ever was, to the notion that every licensed medical doctor should be

automatically qualified to testify as an expert on every medical question.”); see also

Fontenot Enters., Inc. v. Kronick, No. 14-05-01256-CV, 2006 WL 2827415, at *3–

5 (Tex. App.—Houston [14th Dist.] Oct. 5, 2006, no pet.) (mem. op.) (noting treating

physician had “no special training in the diagnosis or management of burns and

[was] not an expert in TENS units” and holding treating physician’s expert report

failed to put defendant physician on notice of causal relationship between negligence

and alleged injuries sustained by plaintiff).

Here, Dr. Anuvat’s expert report and CV do not demonstrate that he has

expertise concerning the actual subject matter about which Guillory is offering an

opinion. See Burrell, 230 S.W.3d at 762. And despite the fact that Dr. Anuvat may

have training and experience in the areas of physiatry and pain management, nothing

indicates that he has knowledge, skill, experience, training, or education in actually

diagnosing the causes of cervical and lumbar spine injuries in general or specifically

in determining whether the purportedly negligent acts of failing to transport a patient

safely and dropping her while transporting her from an ambulance to a hospital can

cause the cervical and lumbar spine injuries seen in Guillory.14 See McMahon v.

14
Contrary to the assertions made by our learned colleague, we by no means suggest
that Dr. Anuvat must “be a specialist in spinal injuries” in order to be qualified to
opine on the issue of causation in this case. As previously explained, a physician
25
Smith & Nephew Richards, Inc., No. 14-99-00616-CV, 2000 WL 991697, at *2–3

(Tex. App.—Houston [14th Dist.] July 20, 2000, no pet.) (not designated for

publication) (board-certified rehabilitation and pain medicine physician not

qualified to testify as to causal factors which actually precipitated pain or condition).

We conclude that Dr. Anuvat’s expert report and CV do not establish that he

is qualified to opine on the issue of causation. See TEX. CIV. PRAC. & REM. CODE

ANN. § 74.403(a). Thus, we hold that the trial court erred in overruling North

Cypress EMS’s objections and in denying its motion to dismiss Guillory’s health

care liability claim against it because Dr. Anuvat is not qualified to render an opinion

related to causation.

Still yet, even if Dr. Anuvat was qualified to opine on causation, North

Cypress EMS also asserts that Dr. Anuvat’s expert report does not adequately

address causation related to North Cypress EMS. Instead, its asserts that the report

“offers no insight into how the incident caused” Guillory’s cervical and lumbar spine

injuries; provides no “explanation for how the disc herniations could have occurred[]

need not practice in the particular field about which he is testifying so long as he
can demonstrate that he has knowledge, skill, experience, training, or education
regarding the specific issue before the court that would qualify him to give an
opinion on that subject. Cornejo v. Hilgers, 446 S.W.3d 113, 121 (Tex. App.—
Houston [1st Dist.] 2014, pet. denied). But the physician must be able to
demonstrate that he is qualified to opine on the specific issue before the court.
Puppala v. Perry, 564 S.W.3d 190, 202 (Tex. App.—Houston [1st Dist.] 2018, no
pet.). And, here, Dr. Anuvat’s expert report and CV do not establish such.

26
or how disc herniations and protrusions are caused at all”; fails to “address how the

[incident] is purported to have caused [Guillory’s injuries that Dr. Anuvat]

reportedly observed”; and fails to “review or articulate the mechanisms necessary

for an incident involving physical trauma to [have] cause[d] disc protrusions.” Dr.

Anuvat merely offers a conclusion that in reasonable medical probability one event

caused another, without explanation and without linking the conclusions to the facts,

and he “rel[ies] solely on the fact that the purported [incident] in this matter preceded

the onset of Guillory’s symptoms.”

An expert report must provide a “fair summary” of the expert’s opinion

regarding the causal relationship between the failure of a defendant health care

provider to provide care in accord with the applicable standard of care and the

claimed injury, harm, or damages. TEX. CIV. PRAC. & REM. CODE ANN.

§ 74.351(r)(6); see also Potts, 392 S.W.3d at 630. For causation, the expert report

must explain how and why the defendant health care provider’s breach proximately

caused the plaintiff’s injury. Columbia Valley Healthcare Sys., L.P. v. Zamarripa,

526 S.W.3d 453, 459–60 (Tex. 2017). An expert report need not marshal all the

plaintiff’s proof necessary to establish causation at trial, and it need not anticipate or

rebut all possible defensive theories that may ultimately be presented to the trial

court. Wright, 79 S.W.3d at 52; Cornejo, 446 S.W.3d at 123. But an expert cannot

simply opine that the breach caused the injury. Jelinek, 328 S.W.3d at 539.

27
 Causation consists of two components: (1) cause-in-fact and

(2) foreseeability. Gunn v. McCoy, 554 S.W.3d 645, 658 (Tex. 2018). A health care

provider’s breach was a cause-in-fact of the plaintiff’s injury if the breach was a

substantial factor in bringing about the harm, and absent the breach the harm would

not have occurred. Id. Even if the harm would not have occurred absent the

defendant health care provider’s breach, “the connection between the defendant and

the plaintiff’s injuries simply may be too attenuated” for the breach to qualify as a

substantial factor. Allways Auto Grp., Ltd. v. Walters, 530 S.W.3d 147, 149 (Tex.

2017) (internal quotations omitted). A breach is not a substantial factor if it “does

no more than furnish the condition that makes the plaintiff’s injury possible.” Id. A

defendant health care provider’s breach is a foreseeable cause of the plaintiff’s injury

if a heath care provider of ordinary intelligence would have anticipated the danger

caused by the negligent act or omission. Puppala, 564 S.W.3d at 197.

In his report, Dr. Anuvat states that on September 9, 2016, Guillory, a

forty-one-year-old female, sustained a fall while North Cypress EMS transported her

to a hospital by a stretcher. According to Dr. Anuvat, the legs of the stretcher “failed

to come down” and caused Guillory to be dropped to the ground. After the incident,

Guillory had pain in her neck, midback, and low back.

On December 13, 2016, Guillory was evaluated at Interventional Spine of

Texas where it was determined that she had injuries to her cervical and lumbar

28
spine—disc herniations and protrusions. Dr. Anuvat states that a herniated disc or

protrusion is a condition in which the annulus fibrosus (outer portion) of the

vertebral disc is torn, enabling the nucleus (inner portion) to herniate or protrude

through the fibers. And disc herniations are more likely to be caused by an incident

such as trauma or repetitive use.

As to causation of Guillory’s cervical and lumbar spine injuries, Dr. Anuvat

states that “Guillory was a young healthy female with no history of trauma,

musculoskeletal pain complaints, or radiculopathy symptoms prior to the fall she

suffered on [September 9, 2016].” After the fall, Guillory had complaints of pain.

Cf. Jelinek, 328 S.W.3d at 533 (“Care must be taken to avoid the post hoc ergo

propter hoc fallacy, that is, finding an earlier event caused a later event merely

because it occurred first.”); Curnel v. Hous. Methodist Hosp.-Willowbrook, 562

S.W.3d 553, 565 (Tex. App.—Houston [1st Dist.] 2018, no pet.) (“It is not enough

that one event occurred before the other . . . .”).

Dr. Anuvat then references two studies explaining that one study found that

less than twenty percent of individuals under sixty years old have a disc herniation

in the low back and that ten percent of individuals over the age of forty years old

have a disc herniation in the neck. And a second study found that there is a

thirty-three percent chance that the disc protrusions seen on the MRI were due to a

degenerative process. Thus, Dr. Anuvat concludes that because Guillory was

29
forty-one years old at the time of the fall, it is “within a reasonable medical

probability that the [incident] caused [Guillory’s] disc herniations and not the normal

aging process.” And Dr. Anuvat states that “[t]o a reasonable degree of medical

certainty, . . . Guillory’s cervical and lumbar disc herniations and associated pain

complaints were caused by the fall from the stretcher that . . . [she] experienced

while being transported by North Cypress EMS” on September 9, 2016.

An expert cannot simply opine that a breach of the standard of care caused the

plaintiff’s injury. Jelinek, 328 S.W.3d at 539; see also Abshire, 563 S.W.3d at 224

(“A conclusory statement of causation is inadequate . . . .”). And an expert’s

conclusion that “in medical probability” one event caused another is nothing more

than an expert’s simple ipse dixit, which is insufficient to establish causation.

Jelinek, 328 S.W.3d at 539–40; see also City of San Antonio v. Pollock, 284 S.W.3d

809, 818 (Tex. 2009). Here, Dr. Anuvat offers no more than a bare assertion that

the alleged breach of the applicable standard of care by North Cypress EMS resulted

in Guillory’s cervical and lumbar spine injuries. See Jelinek, 328 S.W.3d at 540; see

also Abshire, 563 S.W.3d at 224; Wright, 79 S.W.3d at 53–54 (report inadequate

where expert does not explain how health care provider’s negligent conduct caused

injury). And Dr. Anuvat makes no attempt to explain the basis of his statements or

link his conclusions to specific facts. See THN Physicians Ass’n v. Tiscareno, 495

S.W.3d 599, 614 (Tex. App.—El Paso 2016, no pet.) (“[T]he expert must at a

30
minimum explain the connection between [the health care provider’s] conduct and

the injury to the [plaintiff].”). “A report that merely states the expert’s conclusions

about . . . causation” does not fulfill the purposes of requiring a good-faith effort.

Palacios, 46 S.W.3d at 879. And “[p]roximate cause cannot be satisfied by mere

conjecture, guess, or speculation.” Columbia Med. Ctr. of Las Colinas, Inc. v.

Hogue, 271 S.W.3d 238, 246 (Tex. 2008).

We conclude that Dr. Anuvat’s expert report does not adequately inform

North Cypress EMS of the causal relationship between its failure to provide care in

accord with the applicable standard of care and the claimed injury, harm, or

damages. Thus, we hold that the trial court erred in overruling North Cypress EMS’s

objections and in denying its motion to dismiss Guillory’s health care liability claim

against it because Dr. Anuvat’s report does not adequately address causation.15

15
Under Texas Civil Practice and Remedies Code section 74.403 only physicians are
qualified to render causation opinions in suits involving health care liability claims.
See TEX. CIV. PRAC. & REM. CODE ANN. § 74.403(a); Walgreen Co. v. Hieger, 243
S.W.3d 183, 186 n.2 (Tex. App.—Houston [14th Dist.] 2007, pet. denied). Thus,
Guillory cannot rely on the expert report of Jannarone, a non-physician, to address
the causal relationship between the failure of North Cypress EMS to provide care in
accord with the applicable standard of care and Guillory’s claimed injury, harm, or
damages. See Hieger, 243 S.W.3d at 186 n.2 (appellate court may only consider
physician’s expert report in determining whether plaintiffs met their statutory
obligation as to element of causation). Because Jannarone is not qualified to render
an opinion on causation, we need not address the portion of North Cypress EMS’s
first issue in which it asserts that Jannarone’s expert report does not adequately
address causation. See TEX. R. APP. P. 47.1. To the extent that Guillory refers to
Jannarone as “Dr. Jannarone” in her briefing, there is nothing in his expert report or
his CV to support the notion that Jannarone is a physician. See TEX. CIV. PRAC. &
31
 We sustain North Cypress EMS’s second issue.

Thirty-Day Extension to Amend Reports

In her brief, Guillory states that should this Court determine that the expert

reports of Jannarone and Dr. Anuvat are inadequate, she requests that we “grant a

thirty (30) day extension of time such that [she] may cure any noted deficiencies.”

Texas Civil Practice and Remedies Code section 74.351(c) affords the trial

court the ability to grant one thirty-day extension for a plaintiff to cure deficiencies

in her expert report. See TEX. CIV. PRAC. & REM. CODE ANN. § 74.351(c). Thus,

when an appellate court reverses a trial court’s denial of a motion to dismiss a health

care liability claim due to the omission of any of the statutory expert report

requirements, the appellate court may remand the case to the trial court to consider

granting a thirty-day extension for the plaintiff to cure the deficiencies in the report.

Leland v. Brandal, 257 S.W.3d 204, 207–08 (Tex. 2008); see also Lewis v.

Funderburk, 253 S.W.3d 204, 208 (Tex. 2008) (stating deficient report may be cured

by amending report or by serving new report from separate expert that cures

deficiencies in previously filed report); Protzman v. Gurrola, 510 S.W.3d 640, 654–

55 (Tex. App.—El Paso 2016, no pet.).

REM. CODE ANN. § 74.001(a)(23) (defining “[p]hysician” (internal quotations
omitted)).

32
 The trial court is in the best position to decide whether a cure for an inadequate

expert report is feasible. See Samlowski v. Wooten, 332 S.W.3d 404, 411–12 (Tex.

2011). And the Texas Supreme Court has instructed that “trial courts should be

lenient in granting [a] thirty-day extension[] and must do so if [the] deficiencies in

an expert report can be cured within the thirty-day period.” Scoresby, 346 S.W.3d

at 554; see also Cook v. Broussard, No. 01-17-00943-CV, 2018 WL 3384638, at

*6–7 (Tex. App.—Houston [1st Dist.] July 12, 2018, no pet.) (mem. op.). Here,

because Guillory has not been given the opportunity to cure any deficiencies in her

expert reports, it is appropriate to remand this case to the trial court for consideration

of whether the deficiencies in the expert reports can be cured, and therefore, whether

to grant an extension of time. See Scoresby, 346 S.W.3d at 549 (“An individual’s

lack of relevant qualifications and an opinion’s inadequacies are deficiencies the

plaintiff should be given an opportunity to cure if it is possible to do so.”); see also

Mangin, 480 S.W.3d at 706 (“[W]hen the court of appeals finds deficient a report

that the trial court considered adequate, the plaintiff should be afforded one 30-day

extension to cure the deficiency, if possible.” (internal quotations omitted)).

North Cypress EMS argues in its reply brief that Guillory waived her right to

amend her expert reports because, at the hearing on North Cypress EMS’s objections

and motions to dismiss, Guillory’s counsel stated: “I want to stand on what we [sic]

got. I think we have got sufficient detail in the reports. . . . What’s required is a

33
good faith attempt to cast a fair summary of the expert’s opinions on the statutory

elements. We’ve supplied that with respect to both reports.”

North Cypress EMS has not provided this Court with any pertinent authority

for its assertion that Guillory waived her right to request a thirty-day extension for

her to cure any deficiencies in her expert reports. See TEX. R. APP. P. 38.1(i); see

also TEX. CIV. PRAC. & REM. CODE ANN. § 74.351(c). And we note that Texas Civil

Practice and Remedies Code section 74.351(c) only empowers the trial court to grant

the plaintiff a thirty-day extension to cure deficiencies found in the plaintiff’s initial

expert reports. See TEX. CIV. PRAC. & REM. CODE ANN. § 74.351(c) (plaintiff can

be granted extension to cure deficiency only after elements of report are found to be

deficient); Hilton v. Wettermark, No. 14-14-00697-CV, 2015 WL 2169516, at *6

(Tex. App.—Houston [14th Dist.] May 7, 2015, no pet.) (mem. op.); Marino v.

Wilkins, 393 S.W.3d 318, 331–32 (Tex. App.—Houston [1st Dist.] 2012, pet.

denied). Here, the trial court overruled North Cypress EMS’s objections to

Guillory’s expert reports and denied its motions to dismiss Guillory’s health care

liability claim against it. Because the trial court did not find any deficiencies in her

initial expert reports, Guillory was never entitled to a thirty-day extension to cure

any deficiencies in her expert reports. See TEX. CIV. PRAC. & REM. CODE ANN.

§ 74.351(c) (plaintiff can be granted extension to cure deficiency only after elements

34
of report are found to be deficient); Hilton, 2015 WL 2169516, at *6; Marino, 393

S.W.3d at 331–32.

Conclusion

We reverse the trial court’s order overruling North Cypress EMS’s objections

and denying its motions to dismiss the health care liability claims made against it by

Guillory. We remand this case to the trial court to determine whether to grant

Guillory a thirty-day extension to file an expert report or reports that are compliant

with the TMLA and for further proceedings consistent with this opinion.

Julie Countiss
Justice

Panel consists of Justices Goodman, Landau, and Countiss.

Goodman, J., dissenting.

35