# In re Brenham Nursing & Rehab. Ctr. Supreme Court of Texas, No. 24-0494 **In re Brenham Nursing & Rehab. Ctr., No. 24-0494, is before the Supreme Court of Texas. Key issue: Whether a nursing home's one-sentence original answer invoking the Pandemic Liability Protection Act defense (Civil Practice and Remedies Code section 74.155) gave the "specific facts" section 74.155(g) requires within its deadline, or only fair notice of the defense.** Practice areas: medical liability, civil procedure ## Key issues - Whether a nursing home's one-sentence original answer invoking the Pandemic Liability Protection Act defense (Civil Practice and Remedies Code section 74.155) gave the "specific facts" section 74.155(g) requires within its deadline, or only fair notice of the defense. - Whether section 74.155(g)'s deadline is mandatory, so that missing it forfeits the defense and restores the ordinary negligence standard of proof, or merely directory. ## Factual History Harold Herrin, 77, was admitted to the Brenham Nursing and Rehabilitation Center, operated by Regency IHS of Brenham, LLC, on January 3, 2020 for long-term care of dementia and other chronic conditions, and died of COVID-19 at the facility on April 21, 2020 (Brief on the Merits (Relator), PDF pp. 14-16; Brief on the Merits (Real Party in Interest), PDF p. 12). His daughter, Deborah Lynn Watson, and her siblings allege that the facility, as a business decision made well before the pandemic, understaffed itself to maximize profit, that a Texas Health and Human Services Commission survey found infection-control deficiencies and failures to staff, test and monitor residents, and that COVID-19 spread unchecked as a result (Brief on the Merits (Real Party in Interest), PDF pp. 13-15). The facility says the petition contains few factual allegations about Herrin's own care (Brief on the Merits (Relator), PDF p. 14). ## Procedural History Watson sued the facility and Regency in February 2022 in the 21st District Court of Washington County for health care liability. Under the Pandemic Liability Protection Act, a health care provider is not liable for injury or death arising from care "relating to or impacted by a pandemic disease," except for reckless conduct or intentional, willful or wanton misconduct, if it proves by a preponderance that the pandemic was a producing cause of the care at issue or the patient was diagnosed or reasonably suspected to have the disease at the time; a provider that intends to raise the defense "must provide to a claimant specific facts" supporting it by the later of 60 days after the claimant serves an expert report or 120 days after its original answer (section 74.155(b), (g)) (Brief on the Merits (Relator), PDF pp. 13-14). The relators answered on March 24, 2022 with a single sentence pleading section 74.155, and Watson served her expert report the same day. Over a year later, on May 15, 2023, Watson moved to strike the defense and then re-filed it as a "Motion for Court to Establish Plaintiff's Standard of Proof"; the relators amended their answer on May 25, 2023. After a hearing on October 19, 2023, held together with two similar cases, Judge Carson Campbell granted the motion and ordered that the burden of proof on Watson's claims throughout the case would be a preponderance of the evidence (Brief on the Merits (Relator), PDF pp. 16-17; Brief on the Merits (Real Party in Interest), PDF pp. 15-16). The First Court of Appeals denied mandamus in a memorandum opinion on March 5, 2024 and denied en banc reconsideration on May 9, 2024, while the Fourteenth Court of Appeals granted mandamus relief to the same relators in the two companion cases on July 18, 2024 (Brief on the Merits (Relator), PDF pp. 11, 17; Reply Brief (Relator), PDF pp. 5-6). The relators petitioned this Court on June 21, 2024, supplemented the petition on August 1, 2024, and Watson responded October 21 and the relators replied November 14, 2024. The Court requested merits briefing on December 20, 2024; relators filed on February 20, 2025, Watson on April 11 and relators replied April 28, 2025, and on June 13, 2025 the Court set the case for oral argument on November 6, 2025 at SMU Dedman School of Law in Dallas; the relators gave notice of settlement and filed an agreed motion to dismiss on November 3, 2025, oral argument was cancelled, and the Court dismissed the proceeding without a decision on November 7, 2025. ## Issues Presented The relators present three issues: whether the trial court abused its discretion in concluding that their original answer did not meet section 74.155(g)'s notice requirements; whether it abused its discretion in concluding that subsection (g)'s requirements are mandatory, with forfeiture of the defense the penalty for noncompliance; and whether they lack an adequate remedy on appeal because the ruling was tantamount to striking their defense (Brief on the Merits (Relator), PDF p. 12). Watson restates the issues as whether the trial court abused its discretion in finding the relators not entitled to the Act's heightened standard of proof when, more than a year after the deadline, they had yet to provide any facts supporting the defense, and whether they have an adequate remedy at law (Brief on the Merits (Real Party in Interest), PDF p. 9). ## Legal Arguments **Relators (Brenham Nursing and Rehabilitation Center and Regency IHS of Brenham, LLC):** Section 74.155 operates as an affirmative defense, and under Texas's fair-notice pleading standard their original answer gave Watson notice of their intent to rely on it. Subsection (g) is merely directory because the statute is silent about the consequence of noncompliance, a presumption this Court's decisions apply so as not to create a penalty the Legislature did not provide, and because it is a notice provision promoting orderly procedure rather than the essence of a statute meant to protect providers from pandemic-related liability. Forfeiture would defeat the Act's purpose of broadly protecting providers; they also say they supplied specific facts in amended answers, though tardily. They lack an adequate remedy by appeal because the ruling effectively strikes their defense, and they note the Fourteenth Court of Appeals granted mandamus on the same arguments in companion cases (Brief on the Merits (Relator), PDF pp. 18-24; Reply Brief (Relator), PDF pp. 5-9). **Real Party in Interest (Deborah Lynn Watson and her siblings):** The Act raises the claimant's standard of proof only for a provider who proves the defense, and subsection (g)'s "must provide ... specific facts" language is mandatory and is not satisfied by notice pleading: being on notice of an intent to rely on a defense and being told the facts that support it are different levels of notice. The relators gave only one conclusory sentence and, ten months after the deadline of July 22, 2022, an amendment pointing to Watson's own petition, so even if the deadline were directory they never tried to comply; the trial court therefore acted within its discretion in holding they cannot use the Act to heighten the standard of proof. Watson also argues the relators have an adequate remedy by direct appeal (Brief on the Merits (Real Party in Interest), PDF pp. 9-11, 16-18, 26-27, 30). ## Stated Reasons the Court Should Take the Case The relators argue that the case presents a matter of first impression on an important issue of public policy in two respects: what precisely is required to comply with section 74.155(g), which they say will affect all litigation in which the pandemic defense may apply, and whether subsection (g) is mandatory and requires forfeiture of the defense if not complied with (Petition for Writ of Mandamus, PDF pp. 28-29). They also note that the First and Fourteenth Courts of Appeals reached opposite results on the same arguments in the companion cases (Reply Brief (Relator), PDF pp. 5-6). ## Practice Area Tags medical-liability, civil-procedure ## Procedural Posture/Vehicle Original proceeding (petition for writ of mandamus) from the First Court of Appeals, which denied mandamus relief from an order establishing the standard of proof in a health care liability suit under the Pandemic Liability Protection Act. The Court requested and received merits briefing and, on June 13, 2025, set the case for oral argument on November 6, 2025 at SMU Dedman School of Law in Dallas. On November 3, 2025 the relators gave notice of settlement and filed an agreed motion to dismiss, oral argument was cancelled, and on November 7, 2025 the Court granted the motion and dismissed the proceeding without deciding it. ## Amicus Involvement None --- Source: The SCOTX Report, https://scotxreport.com/cases/24-0494. AI-generated summary of the Court's opinion, orders and the parties' briefs, with pin cites to the page of each document; verify against the Court's own documents at search.txcourts.gov.