Victor Kareh M.D. v. Tracy Windrum, Individually, as Representative of the Estate of Lancer Windrum, and on Behalf of Her Minor Children, B. W., J. W. and H. W. ( 2017 )

Opinion issued March 16, 2017
In The
Court of Appeals
For The
First District of Texas
————————————
NO. 01-14-00179-CV
———————————
VICTOR KAREH, M.D., Appellant
V.
TRACY WINDRUM, INDIVIDUALLY, AS REPRESENTATIVE OF THE
ESTATE OF LANCER WINDRUM, AND ON BEHALF OF HER MINOR
CHILDREN, B.W., J.W., AND H.W., Appellee
On Appeal from the 133rd District Court
Harris County, Texas
Trial Court Case No. 2012-07156
OPINION
DISSENTING FROM DENIAL OF EN BANC RECONSIDERATION
I respectfully dissent from the Court’s order denying en banc reconsideration.
En banc review would provide an opportunity for the Court to clarify two parts of
the panel’s opinion that might otherwise be misinterpreted in a way that conflicts
with Texas law. This opinion is intended to provide context for these parts of the
panel’s opinion to reduce the risk of misinterpretation.
The first possible misinterpretation is that the panel is suggesting that an
expert’s negligence opinion cannot be based on experience. It can. It is just that when
an expert relies on experience as the basis for an opinion, the expert must explain
the experience so the jurors can meaningfully review it. The second is that the panel
is suggesting that an expert’s negligence opinion is conclusory if the expert does not
identify any supporting literature. That is not necessarily true. Whether an expert’s
opinion is conclusory does not turn on whether an expert can identify supporting
literature; instead, it turns on whether an expert who relies on literature as the basis
for an opinion has adequately explained the literature’s applicability so jurors can
meaningfully review the opinion.
The expert opinion at issue here was given by neurosurgeon Dr. Robert
Parrish on behalf of Tracy Windrum. Dr. Parrish testified that Dr. Kareh was
negligent. Dr. Kareh objected to Dr. Parrish’s causation opinion before trial but did
not object to his negligence opinion. The Texas Supreme Court has held that a party
may challenge an expert’s opinion for the first time post-verdict as long as the
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challenge is that the opinion was conclusory and therefore was no evidence. Coastal
Transp. Co. v. Crown Cent. Petroleum Corp., 136 S.W.3d 227, 232–33 (Tex. 2004)
(holding that conclusory expert opinion “does not constitute evidence of probative
force,” meaning that it is “non-probative on its face” and “no evidence”).1
Dr. Kareh makes this new challenge to Dr. Parrish’s negligence opinion, and
the panel agrees, holding that Dr. Parrish’s negligence opinion was conclusory and
no evidence. In his dissent from denial of en banc reconsideration, Justice Jennings
disagrees. The disagreement between the panel and Justice Jennings is not surprising
because the line between an opinion that is conclusory and one that is not is
sometimes difficult to draw. Arkoma Basin Expl. Co. v. FMF Assocs. 1990-A, Ltd.,
249 S.W.3d 380, 388 (Tex. 2008).
1
Professors Goode and Wellborn argue that the Texas Supreme Court should revisit
its opinions allowing challenges to expert testimony as conclusory to be raised for
the first time post-verdict. See 2 Steven Goode & Olin Guy Wellborn III, TEXAS
PRACTICE SERIES, GUIDE TO THE TEXAS RULES OF EVIDENCE § 702.1, at 31–33 (4th
ed. 2016); see also Harvey Brown & Melissa Davis, Eight Gates for Expert
Witnesses: Fifteen Years Later, 52 HOUS. L. REV. 1, 50–68, 82–93 (2014). In this
case, for example, if faced with an objection that Dr. Parrish’s opinion on the
standard of care was conclusory, Windrum would have had an opportunity to
develop a fuller record on his experience.
3
When is expert testimony conclusory?
The Texas Supreme Court has identified several circumstances in which
expert testimony is conclusory.2 One circumstance is when an expert asks the jury
to take his word for it that his opinion is correct. Harvey Brown & Melissa Davis,
Eight Gates for Expert Witnesses: Fifteen Years Later, 52 HOUS. L. REV. 1, 51
(2014) (“A principal basis the Texas Supreme Court has used to identify
‘conclusory’ expert testimony is whether the expert has identified the basis for his
opinion or whether the jury essentially must take the expert’s word for it.”); see
Arkoma, 249 S.W.3d at 389 (noting that conclusory expert testimony asks “jurors to
‘take my word for it’”). An expert asks the jury to take his word for it when the
expert offers only his “bald assertion” or “bald assurance” that his opinion is correct.
Gen. Motors Corp. v. Sanchez, 997 S.W.2d 584, 591 (Tex. 1999).
A second circumstance in which an expert opinion can be conclusory is when
the expert’s explanation or offered basis is facially defective in some manner. Fifteen
Years Later, 52 HOUS. L. REV. at 53. As the Texas Supreme Court explained in City
of San Antonio v. Pollock, expert testimony is conclusory not only when the expert
offers “no basis for the opinion” but also when “the basis offered provides no
support” for the opinion. 284 S.W.3d 809, 818 (Tex. 2009). This occurs, for
2
The Court’s opinions reveal five different circumstances. Fifteen Years Later, 52
HOUS. L. REV. at 67–68.
4
example, when the data simply does not support the conclusion, such as when the
offered support contradicts the expert’s opinion, does not say what the expert says it
does, or does not apply to the issue before the jury.
A third circumstance is when the expert offers only his word that the claimed
basis—such as facts, data, or literature—supports the opinion without connecting
the basis to the opinion. An expert “must ‘connect the data relied on and his or her
opinion’ and ‘show how that data is valid support for the opinion reached.’” Hous.
Unlimited, Inc. Metal Processing v. Mel Acres Ranch, 443 S.W.3d 820, 835 (Tex.
2014) (citations omitted) (quoting Whirlpool Corp. v. Camacho, 298 S.W.3d 631,
642 (Tex. 2009)).
Under well-established precedent from the Texas Supreme Court, if the expert
does not explain the link between the data and the conclusion, a “fatal analytical
gap” exists and the opinion is conclusory. Elizondo v. Krist, 415 S.W.3d 259, 265
(Tex. 2013) (holding that expert’s opinion was conclusory despite reliance on
experience because of lack of adequate explanation for how experience led to
opinion).3 The explanation must provide jurors “sufficient information to make a
3
See also Jelinek v. Casas, 328 S.W.3d 526, 536 (Tex. 2010) (stating that medical
expert must “explain how and why the negligence caused the injury” and “explain
why” his causation opinion was superior to opinion of other experts and failure “to
give any reason beyond an unsupported opinion” renders the opinion incompetent);
Wal-Mart Stores, Inc. v. Merrell, 313 S.W.3d 837, 840 (Tex. 2010) (holding that,
because plaintiffs’ expert failed to “explain or adequately disprove alternate theories
of causation,” his theory was conclusory); Volkswagen of Am., Inc. v. Ramirez, 159
5
meaningful evaluation” of the expert’s opinion. El Apple I, Ltd. v. Olivas, 370
S.W.3d 757, 762 (Tex. 2012) (requiring attorney’s fee expert to provide “sufficient
information to make a meaningful evaluation of the application for attorney’s fees”).
Absent a meaningful explanation, jurors are left with simply taking the expert’s word
for it that the claimed basis supports the opinion.
It is the expert’s explanation of “how and why” that forms the “sound
evidentiary basis” for an opinion. Jelinek v. Casas, 328 S.W.3d 526, 536 (Tex.
2010).4 When “the expert’s explanation is at such a general level that it offers no
meaningful information to the jury to enable it to review the reliability of the
opinion,” it is conclusory. Fifteen Years Later, 52 HOUS. L. REV. at 67.
The rule precluding conclusory expert testimony “is not a mere procedural
hurdle.” Shenoy v. Jean, No. 01-10-01116-CV, 2011 WL 6938538, at *6 (Tex.
S.W.3d 897, 902, 906, 911 (Tex. 2004) (noting that expert did not attempt to
“explain how” certain events occurred in accident or to “explain how any of the
research or tests he relied on support his conclusion” and holding that his opinions
were conclusory); Kerr-McGee Corp. v. Helton, 133 S.W.3d 245, 258 (Tex. 2004)
(holding that expert opinion was “incompetent” and “no evidence” when expert
“failed to sufficiently explain” how data supported opinions), abrogated on other
grounds by Coastal Oil & Gas Corp. v. Garza Energy Trust, 268 S.W.3d 1 (Tex.
2008); Burrow v. Arce, 997 S.W.2d 229, 236 (Tex. 1999) (holding that expert’s
affidavit was conclusory because, even though he identified three factors considered
in reaching conclusion, he did not “explain why” those factors supported his
opinion); cf. Gammill v. Jack Williams Chevrolet, Inc., 972 S.W.2d 713, 727 (Tex.
1998) (stating that the “gap” in expert’s opinion was “failure to show how”
underlying data “supported his conclusions”).
4
See also Earle v. Ratliff, 998 S.W.2d 882, 890 (Tex. 1999); Burrow, 997 S.W.2d at
235–36.
6
App.—Houston [1st Dist.] Dec. 29, 2011, pet. denied) (mem. op.). Without
meaningful explanation, the jurors are left with only the expert’s credentials to
evaluate the reliability of the expert’s opinion. See In re Christus Spohn Hosp.
Kleberg, 222 S.W.3d 434, 440 (Tex. 2007) (explaining that jurors need access to
data underlying expert’s testimony “to accurately assess the testimony’s worth”).
Juries are “often confronted with conflicting expert testimony.” Shenoy, 2011 WL
6938538, at *6. “It is the expert’s explanation of ‘how’ and ‘why’ causation exists
that allows the factfinder to weigh the credibility of the expert’s opinion and, when
expert opinions conflict, to decide which testimony to disregard.” Id.
The no-conclusory-expert-opinions rule ensures that “the evidentiary value of
expert testimony” is not based solely on credentials—that the testimony’s value “is
derived from its basis, not from the mere fact that the expert has said it.” Hou.
Unlimited, 443 S.W.3d at 829; see generally Merrell Dow Pharm., Inc. v. Havner,
953 S.W.2d 706, 712–13 (Tex. 1997) (noting that underlying data must be available
so it can be independently evaluated). No expert, no matter how well-qualified, may
offer an opinion without providing a basis that jurors may evaluate. Cooper Tire &
Rubber Co. v. Mendez, 204 S.W.3d 797, 801 (Tex. 2006). “If the expert brings only
his credentials and a subjective opinion, his testimony is fundamentally
unsupported.” Id.; see Burrow v. Arce, 997 S.W.2d 229, 235 (Tex. 1999) (noting that
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“it is the basis of the [expert] witness’s opinion, and not the witness’s qualifications,”
that determine reliability).
Experience may be an adequate basis for an expert’s negligence opinion
The panel acknowledges in passing that experience can provide an adequate
basis for an expert’s opinion. See Gammill v. Jack Williams Chevrolet, Inc., 972
S.W.2d 713, 726 (Tex. 1998) (stating that “[e]xperience alone may provide a
sufficient basis for an expert’s testimony in some cases”). This principle applies to
all experts, including physicians in medical negligence cases.5 But because the
panel’s opinion never discusses the adequacy of Dr. Parrish’s experience treating
obstructive hydrocephalus as a basis for his negligence opinions, it could be
misinterpreted as holding that experience alone cannot provide an adequate basis.
When a physician testifies about the “ordinary care” that physicians should
provide under “the same or similar circumstances,”6 that opinion is often based, at
least in part, on the physician’s own experience. But an expert may not claim
experience as a mantra to insulate her opinion from challenge. See Volkswagen of
5
See, e.g., Schneider ex rel. Estate of Schneider v. Fried, 320 F.3d 396, 406 (3d Cir.
2003) (holding cardiologist’s opinion on standard of care for administration of drug
was sufficiently reliable, despite lacking evidence that opinion was generally
accepted or was set forth in peer-reviewed publication, because it was based on
cardiologist’s experience).
6
These are the legal standards for determining medical negligence under Texas law
and the Texas Pattern Jury Charge. See Texas Pattern Jury Charges: Malpractice,
Premises & Products PJC 50.1 (2014).
8
Am., Inc. v. Ramirez, 159 S.W.3d 897, 905–06 (Tex. 2004) (holding that expert’s
incantation of “basic scientific and some engineering principles” and “reliance on
the ‘laws of physics,’ without more, is an insufficient explanation”).
The expert who relies on her experience as the basis for an opinion must
provide at least some general description of her experience. In a medical negligence
case, the physician must provide at least some general explanation regarding how
often the physician has treated a patient with similar symptoms or conditions under
similar circumstances. Or, if the expert has not personally done so but relies on the
experiences of other physicians, the expert must explain her observations of other
physicians’ experiences or describe the source of her information—such as
discussions with other physicians, lectures, treatments given during rounds, or
discussions during various meetings.7 Without such an explanation, the jury cannot
evaluate whether the expert has encountered circumstances that were “the same or
similar” or what the “ordinary care” would be under the circumstances.
7
For example, an expert physician may know how other physicians have treated a
condition at her hospital or clinic. Evidence of custom is admissible in a medical
negligence case. Kissinger v. Turner, 727 S.W.2d 750, 755 (Tex. App.—Fort Worth
1987, writ ref’d n.r.e.); see generally Leadon v. Kimbrough Bros. Lumber Co., 484
S.W.2d 567, 569 (Tex. 1972) (noting that evidence of custom is pertinent in
determining negligence).
9
If the expert testifies simply that, based on her experience, the treating
physician met or did not meet the ordinary-care standard, that negligence opinion
would be conclusory. “An expert cannot globally claim that his opinion is based on
his . . . experience.” Fifteen Years Later, 52 HOUS. L. REV. at 154. Rather, the “expert
must provide some estimate of his experience.” Id. “This requirement typically is
not satisfied by a ‘random experience’ or an ‘isolated case.’” Id. at 155 (quoting
Minn. Mining & Mfg. Co. v. Atterbury, 978 S.W.2d 183, 200–01 (Tex. App.—
Texarkana 1998, pet. denied)). On the other hand, “extensive ‘experience can suffice
to validate a proposition even when the experience cannot be precisely quantified.’”
Id. at 155–56 (quoting Edward J. Imwinkelried, The Meaning of “Appropriate
Validation” in Daubert v. Merrell Dow Pharmaceuticals, Inc., Interpreted in Light
of the Broader Rationalist Tradition, Not the Narrow Scientific Tradition, 30 FLA.
ST. U. L. REV. 735, 747 (2003)). If the expert “is relying solely or primarily on
experience,” the expert “must explain how that experience leads to the conclusion
reached, why that experience is a sufficient basis for the opinion, and how that
experience is reliably applied to the facts.” FED. R. EVID. 702 advisory committee’s
note.
In medical-negligence cases, the determination of what a reasonably prudent
physician would do “under a given set of circumstances involves a normative
analysis.” Fifteen Years Later, 52 HOUS. L. REV. at 246. Thus, “courts require
10
experts to be sufficiently specific in explaining how they derived the applicable
standard of care from their specialized knowledge, training, and experience so that
juries can make the necessary normative judgments.” Id. at 247.
As part of that normative judgment, a proponent of an expert negligence
opinion that relies exclusively on the expert’s experience as the basis for the opinion
is asking the jury to take that experience—fact A—and then draw an inference from
it as to the standard of care for a reasonably prudent physician—fact B—to conclude
that the defendant physician did or did not meet that standard. “The physician’s
experience alone is insufficient to make a logical inferential determination that her
practice is the same as the standard of care, that requires evidence of what other
physicians do or do not do under the same or similar circumstances.” Id. at 158.8
For this reason, in most medical-negligence cases, the parties use physician
experts who rely not only on their own experience but on other data to establish the
standard of care. But just because experts frequently rely on medical literature to
8
The testimony of what a particular physician has done or would have done under
the circumstances—fact A—is insufficient to establish the standard of care for other
physicians. See Montet v. Narcotics Withdrawal Centers, Inc., No. 14-99-01401-
CV, 2001 WL 1287384, at *6 (Tex. App.—Houston [14th Dist.] Oct. 25, 2001, no
pet.) (“What a testifying expert personally would or would not have done or what
he would like to have seen done under the same or similar circumstances is not
sufficient to establish the requisite standard of care.”); see also Hernandez v. Nueces
Cty. Med. Soc. Cmty. Blood Bank, 779 S.W.2d 867, 870 (Tex. App.—Corpus Christi
1989, no writ). Something more is required—fact B.
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supply that “something more” does not necessarily mean that the law requires such
literature. I turn to that issue next.
The absence of supportive literature does not necessarily make the opinion
conclusory
The panel’s opinion could be misinterpreted to suggest that an expert’s
negligence opinion is conclusory if it is not based on supportive literature. And in a
medical malpractice case, the panel’s opinion could be read to suggest that a
physician’s opinion on the appropriate care that another physician should have
provided is conclusory if the expert fails to identify supportive medical literature.
Such a reading would be incorrect. An expert is not required to identify supportive
literature to avoid a holding that the expert’s opinion is conclusory.
A qualified physician may provide non-conclusory opinion testimony on how
a physician should treat a medical condition without reference to supportive
literature, provided the expert has another adequate basis for the opinion. The same
is true for other negligence claims. Supportive literature is not necessary; what is
necessary is an adequate basis for the opinion.
Dr. Parrish testified that his “opinions” (plural) are “support[ed]” by medical
literature. But he did not identify the particular opinion that is supported by the
literature. Nor did he read to jurors the portions of the literature that support his
negligence opinion (assuming Evidence Rule 803(18)’s predicates have been
satisfied) or explain how the literature supports his negligence opinion. If an expert
12
relies solely on literature as the basis for an opinion, offers only a general recitation
to the literature, and does not explain how the data—the literature—supports the
expert’s opinion, the opinion is conclusory. In such a case, the jurors are being asked
to take the expert’s word for it that the literature supports the opinion, which is not
permissible.
Without information about the content of the literature, the jury must
determine the weight to give the expert’s opinion based on the only evidence it has:
the expert’s qualifications and general credibility. That is not enough. Pollock, 284
S.W.3d at 818 (stating that, if “the basis offered” as a foundation for an expert
opinion “provides no support, the opinion is merely a conclusory statement and
cannot be considered probative evidence”); see Ramirez, 159 S.W.3d at 913 (Hecht,
J., concurring) (observing that validity of expert’s opinions “can be measured by one
thing, and one thing only: his personal credibility.”).
Because I see two areas of possible misinterpretation of the panel’s opinion
and a need to clarify the law to avoid such misinterpretations, I respectfully dissent
from the denial of en banc reconsideration.
13
Harvey Brown
Justice
Panel consists of Justices Keyes, Massengale, and Bland.
Justice Harvey Brown, dissenting from denial of en banc reconsideration.
14