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Ledesma v. Shashoua

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ON MOTION FOR RECONSIDERATION EN BANC

SUPPLEMENTAL OPINION

Ms. Ledesma has filed a motion for reconsideration en banc. In addition to re-urging her arguments on original submission, Ledesma contends that her inability to obtain discovery before the 120-day expert-report deadline caused section 74.351 of the Texas Civil Practice and Remedies Code to operate unconstitutionally in her case and rendered the district court’s refusal to grant her a 30-day extension under 74.351(c) an abuse of discretion. As we recently suggested on rehearing in Bogar v. Esparza, “‘we can certainly imagine a due process deprivation to a health care liability claimant pinned between a firm expert report deadline and a hypothetical absence of discovery tools.’” 2008 Tex. App. LEXIS 3576, ___ S.W.3d ___, ___ (Tex. App.–Austin May 16, 2008, no. pet. h.) (op. on reh’g) (quoting Thoyakulathu v. Brennan, 192 S.W.3d 849, 855 (Tex. App.–Texarkana 2006, no pet.)). That case has not been presented to us here. Ledesma has not fully and effectively utilized the discovery methods that section 74.351(s) allows, nor preserved any complaints regarding deprivations of such discovery.

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