Jeffrey K. Brazil v. Timothy T. Khater, M.D. ( 2006 )

NO. 07-05-0351-CV

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL D

FEBRUARY 24, 2006

______________________________



JEFFREY K. BRAZIL, APPELLANT

V.

TIMOTHY T. KHATER, M.D., APPELLEE



_________________________________

FROM THE 99^TH DISTRICT COURT OF LUBBOCK COUNTY;

NO. 2003-523,253; HONORABLE WILLIAM C. SOWDER, JUDGE

_______________________________

Before QUINN, C.J., and REAVIS and CAMPBELL, JJ.

OPINION

Pursuant to section 51.014(d) of the Texas Civil Practice and Remedies Code permitting an interlocutory appeal by agreed order, appellant Jeffrey K. Brazil presents a sole issue contending the trial court erred in (1) striking the expert testimony of Jay Mark Lustbader, M.D., of Washington D.C., regarding causation in his health care liability claim against appellee Timothy T. Khater, M.D. and (2) granting in part Khater's no-evidence motion for summary judgment. Specifically, he asserts the trial court erred in striking Lustbader's testimony because his qualifications were not disputed and the testimony was relevant and reliable. We affirm the order granting in part and denying in part objections and motion to strike the expert's testimony and order granting in part and denying in part Khater's amended no-evidence motion for summary judgment.

Brazil was born with congenital cataracts which were surgically removed during childhood. His aphakia created very poor vision for which he used contact lenses and or glasses to correct. Brazil contacted Khater to inquire about intraocular placement of lenses. Following lens implantation surgery, Brazil commenced this lawsuit asserting Khater was negligent in performing the surgery. Brazil named Lustbader as an expert witness to support his claim of negligence and to support proximate cause of the claimed injuries and damages. After Lustbader's deposition was taken, Khater moved to strike portions of his testimony as ipse dixit statements that related to the proper standard of care and causal connection between the surgery and the subsequent retinal detachment suffered by Brazil. Upon consideration of the motion to strike, the trial court denied the motion as to the proper standard of care, but granted it in part as to Lustbader's testimony "to the effect that any alleged negligent act or omission on the part of Timothy T. Khater, M.D. caused or contributed to the retinal detachment."

Upon a hearing on Khater's amended no-evidence motion for summary judgment based on the order striking part of Lustbader's testimony that Khater's negligence caused or contributed to the retinal detachment, the trial court granted the motion in part and denied it in part. The parties elected to proceed with an agreed order prompting this interlocutory appeal pursuant section 51.014(d) of the Code.

By his sole issue, Brazil contends the trial court erred in striking Lustbader's testimony regarding causation because his qualifications were not disputed and the testimony was relevant and reliable. We disagree. Before we commence our analysis, we first consider the appropriate standards of review.

STANDARDS OF REVIEW No-Evidence Summary Judgment

In our determination of whether the partial no-evidence summary judgment was proper, we apply the standard of review presented in Kimber v. Sideris, 8 S.W.3d 672, 675-676 (Tex.App.--Amarillo 1999, no pet.).

Expert Testimony

The admissibility of expert testimony is governed by the two part test set out in E.I. du Pont de Nemours & Co. v. Robinson, 923 S.W.2d 549, 556 (Tex. 1995), and is within the discretion of the trial court. Id. at 558. Under Robinson, Brazil had the burden to show (1) the expert was qualified and (2) the proffered testimony was relevant and based on a reliable foundation. To demonstrate an abuse of discretion, Brazil must also show the trial court acted without reference to any guiding rules or principles. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex. 1985), cert. denied, 476 U.S. 1159, 106 S. Ct. 2279, 90 L. Ed. 2d 721 (1986); Couch v. Simmons, 108 S.W.3d 338, 341 (Tex.App.--Amarillo 2003, no pet.). There is no abuse, however, simply because a trial court may decide a matter within its discretion differently than an appellate court. Downer, 701 S.W.2d at 242. When reviewing matters committed to the trial court's discretion, a court of appeals may not substitute its own judgment for that of the trial court, thus insulating the trial court's decision from appellate second guessing. Bowie Memorial Hospital v. Wright, 79 S.W.3d 48, 52 (Tex. 2002).

Analysis

By his objection and motion to strike Lustbader's testimony, as material here, Khater alleged the expert's causation opinion should be stricken because he could not rule out with reasonable medical certainty or reasonable medical probability other non-negligent causes of the retinal detachment, and his causation opinions were unreliable, speculative, and /or constituted nothing more than ipse dixit.

In our analysis, among other factors, we consider the six Robinson factors as follows:

(1) the extent to which the theory has been or can be tested;

(2) the extent to which the technique relies upon the subjective interpretation of the expert;

(3) whether the theory has been subjected to peer review and publication;

(4) the technique's potential rate of error;

(5) whether the underlying theory or technique has been generally accepted as valid by the relevant scientific community; and

(6) the non-judicial uses that have been made of the theory or technique.

923 S.W.2d at 557. See also Merrell Dow Pharmaceuticals, Inc. v. Havner, 953 S.W.2d 706, 714 (Tex. 1997). Further, the reliability requirement of Rule 702 of the Texas Rules of Evidence focuses on the principles, research, and methodology underlying an expert's conclusions. In Couch, we held that expert testimony is unreliable if it is not grounded in the methods and procedures of science and is no more than subjective belief or unsupported speculation. 108 S.W.3d at 341.

We continue our analysis by considering factors two, three, and five discussed in Robinson with relevant portions of Lustbader's testimony. By his deposition, he acknowledged:

• •he knew of no scientific studies or any published literature to support his causation opinion;
• •he was unaware of any prevailing authority that discussed the technique of using a suture versus a sulcus method of adhesion;
• •he acknowledged he had never published any article or comment regarding the procedure or his opinion;
• •he did not recall ever seeing any article from a recognized journal that supported his opinion during the last 13 years;
• •he had never seen, diagnosed, read about, or studied a situation whereby an inferiorly dislocated lens will cause a retinal detachment; and

• •his opinion was based on his training and experience.

Citing Gammill v. Jack Williams Chevrolet, Inc., 972 S.W.2d 713, 726 (Tex. 1998), Brazil contends the Robinson factors are not applicable because Brazil's surgery was unusual "for today" and that both experts agreed the absence of medical literature and research into these surgical circumstances is the result of continuing changes regarding this type of surgery and how it is now performed. However, although Gammill suggests that experience may provide a sufficient basis for an expert's testimony in some cases, it also recognizes that such is not true in every case. Id. at 722. The fact that the expert's opinion has not been published or evaluated in professional journals does not compel a determination that his opinion is wrong, however the absence of any review or evaluation by third parties renders his personal opinion unreliable. See Couch, 108 S.W.3d at 341-42.

To constitute evidence of causation, an expert opinion must rest in reasonable medical probability. Insurance Co. of North America v. Myers, 411 S.W.2d 710, 713 (Tex. 1966). Later, in Burroughs Wellcome Co. v. Crye, 907 S.W.2d 497, 500 (Tex. 1995), the Court acknowledged the need to avoid opinions based on speculation and conjecture. Even assuming that Lustbader's opinion based on his personal experience in Washington D.C. is correct, a question we do not decide, the absence of medical literature at this time and general knowledge in the medical community of the procedure recommended by Lustbadfer renders a determination of the foreseeability element of proximate cause speculative. See Leitch v. Hornsby, 935 S.W.2d 114, 119 (Tex. 1996).

Brazil suggests that Marvelli v. Alston, 100 S.W.3d 460, 479 (Tex.App.--Fort Worth 2003, pet. denied), supports his position that the absence of medical literature does not render the opinion merely subjective and ipse dixit statements. However, Marvelli is not controlling because, considering the evidence presented there, the gatekeeper concluded that the expert's opinions were not merely subjective ipse dixit statements unsupported by scientific principle or data and were reliable. Moreover, the Robinson factors do not constitute the legal equivalent of a litmus test, but instead, furnish guidelines for the trial court to use in determining the relevance and reliability requirements in discharging its duty as the gatekeeper. Here, however, based on the evidence before it, in exercising its discretion, the gatekeeper excluded the expert's opinion as to causation. Concluding that Brazil has not met his burden, we find the trial court did not abuse its discretion in striking Lustbader's expert testimony regarding causation and, consequently signing the partial summary judgment. Brazil's sole issue is overruled.

Accordingly, the interlocutory order granting the no-evidence summary judgment in part is affirmed.

Don H. Reavis

Justice

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NO. 07-09-0374-CV

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL C

MARCH 23, 2011

_____________________________

DOUG SETTLER,  

                                                                                         Appellant

v.

CHARLES MIZE D/B/A QUALITY FRAMING, 

                                                                                         Appellee

_____________________________

FROM THE 72ND DISTRICT COURT OF LUBBOCK COUNTY;

NO. 2007-539,289; HONORABLE RUBEN GONZALES REYES, PRESIDING

_____________________________

Opinion

_____________________________

Before QUINN, C.J., and HANCOCK  and PIRTLE, JJ.

            Doug Settler (Settler) sued Charles Mize d/b/a Quality Framing (Mize) for personal injuries received while working as a framer for Mize. The injuries suffered by him occurred when a garage header fell as it was being raised. After hearing the evidence of all litigants, the jury found that Mize was not negligent, and judgment was entered upon that verdict.  Settler appealed, claiming that 1) the trial court abused its discretion in refusing to allow him to pose a particular question to the jury during voir dire, and 2) the evidence was legally and factually insufficient to support the verdict that Mize was not negligent.  We affirm the judgment.

            Issue 1 – Voir Dire

            During voir dire, Settler sought permission to pose the following question to the jury: 

            The Court will instruct you that you may not consider whether any party is covered in whole or in part by insurance of any kind. There will be no evidence or discussion about insurance in this case.  Some people may have such a strong belief that jury verdicts affect insurance rates that they would be unable to follow the Court’s instruction.  My question is whether you can follow the Court’s instruction not to consider the question of insurance?

After the matter was debated by the litigants, counsel for Settler asked the trial court:  “So you’re going to deny allowing me to ask that question?”  (Emphasis added).  The court then replied:  “That question that you’ve presented to the Court, yes, sir.”  (Emphasis added). In so deciding, the trial court allegedly abused its discretion  because the ruling denied appellant his “right to ask a proper question [and] prevented determination of whether grounds existed to challenge jurors for cause and denied [him the] intelligent use of peremptory challenges.”  The issue is overruled for several reasons.

            First, Settler never established, here or below, that the particular question was a proper one.  When the trial court inquired about whether he had legal authority supporting his purported right to ask “that question in that fashion,” the response it received was “. . . I mean, it’s in the Court’s Charge.  I don’t know that there’s a case that says you can ask that particular question . . . .”  Apparently, that would be the same answer we would receive if we were to make the same inquiry.  No authority addressing the legitimacy of that particular question was given to us by Settler.  Nor did he explain why it was appropriate to specifically say “some people may have a strong belief that jury verdicts affect insurance rates” or why any of the other particular verbiage selected by him was legitimate.   And, while Settler talks to us at length about being able to generally voir dire the prospective jurors on the subject of insurance and their ability to follow an instruction directing them to avoid the consideration of insurance, nothing in the trial judge’s comments or ruling prohibited him from generally delving into those topics.  He simply was barred from asking a specific question which he has yet to show was proper.

            Second, to secure reversal, Settler was obligated to not only establish that the trial court erred but also that the error was calculated to cause and probably did cause the rendition of an improper judgment.  Aransas County Navigation Dist. No. 1 v. Johnson, No. 13-05-563-CV, 2008 Tex. App. Lexis 3153 at *33 (Tex. App.- Corpus Christi April 29, 2008, pet. denied) (mem. op.).  The second component of that obligation (i.e. harm) went unaddressed by him, as well.  Thus, he did not satisfy his appellate burden.

            Third, and though not basis in and of itself for overruling the issue, Settler’s representation about the “Pattern Jury Charges [being] created by the Committee on Pattern Jury Charges and adopted by the Texas Supreme Court” is wrong. Those charges are akin to forms developed by a committee of the State Bar of Texas, not the Supreme Court. Furthermore, we know of nothing from the Supreme Court mandating  that the judiciary use them or illustrating that the Supreme Court has adopted them as its own works.   

            Sufficiency of the Evidence

            We next consider the allegations concerning the sufficiency of the evidence. They are founded on the belief that Settler proved Mize was negligent in failing to 1)  train his workers on the safe method of raising a garage header, and 2) adopt a safe method of raising a garage header.  The safe method contemplated by Settler involved the use of personnel to support the header at its connecting point as it was raised. In rejecting those claims of negligence, the jury purportedly erred.   We overrule the issue. 

            Regarding the legal sufficiency challenge posed, Settler had the obligation to show that the evidence established that Mize was negligent, as a matter of law.  Dow Chemical Co. v. Francis, 46 S.W.3d 237, 241 (Tex. 2001).  To  determine whether that burden was met requires us to examine the record for evidence supporting the jury’s finding and, if there is none, to then examine the entire record to determine if the contrary proposition was established as a matter of law.  Id.  If the jury had before it some evidence upon which it could base its verdict, then we need go no further due to the first prong of the test.  Given this standard of review, it would seem encumbent upon an appellant like Settler to first address whether any evidence existed that supported the jury’s verdict, and, if some testimony could possibily be construed as doing so, then explain why adopting such a construction would be wrong. 

            As for the matter of factual sufficiency, an appellant complaining of a jury’s decision to deny him recovery must illustrate that the finding was against the great weight and preponderance of all of the evidence.  Id.  Needless to say, satisfying either standard of review is normally a difficult task. And, for the reasons discussed below, Settler did not do so here.

            First, the tact Settler took in briefing his argument focused on the existence of evidence illustrating Mize’ alleged misfeasance.  He did not comment upon that appearing of record and purporting to show that Mize either acted reasonably or that the supposed omissions did not cause the injury.  For instance, Settler accused Mize of being negligent since the latter purportedly failed to provide a safe work place or train his workers about safety. Furthermore, this supposed negligence consisted of omitting to teach or direct workers to place their hands and feet at a particular point on the header as it was raised so as to prevent it from “kicking out” if the nails or like devices securing its base to the pivot point came loose.  Given this accusation, one witness testified that if the header broke away as described, “and someone had their feet or their hands down there, that’s a cause for another accident,” and “[s]ome of those headers and beams are so heavy,” and “I don’t see how one person’s hands or feet could stop it.”  One could interpret such testimony as indicating that 1) had Mize done what Settler said he should have done, then the possibility of injury remained present and, 2) the practice Settler said Mize should have utilized actually endangered those attempting to support the header.  Settler did not attempt to explain why interpreting that evidence in such a manner would be unreasonable.  Nor did he attempt to explain why it lacked sufficient probative value to enable reasonable jurors to use it as basis for concluding that Mize was not negligent in the manner suggested by Settler.   

The evidence about 1) appellant being considered to be an experienced framer; 2) support via a hand or foot being appropriate only when the header is not nailed to a floor plate, unlike the circumstances at bar; 3) Mize and others having not seen a header fall in their numerous years of working in the construction industry; 4) Mize having told the workers to have someone hold the connection point but that they would do it their own way when he was not on site; 5) support of the header at the connection point would have made no difference if the nails were not properly placed; 6) a worker who could not say whether he would have had someone hold the connection point even if he had been trained to do so; and 7) the method utilized by Mize in raising the header being “a very safe method,” “a very accepted practice,” and “ordinary and customary” was also ignored by Settler. The latter did not explain why it and the other testimony mentioned above failed to constitute some evidence upon which a reasonable jury could reject his claims of negligence.  This may be because such evidence actually constituted some evidence allowing it to do so.  And, that there may have been evidence supporting Settler’s own contention did little more than raise questions of fact for the jury to resolve. City of Keller v. Wilson, 168 S.W.3d 802, 819 (Tex. 2005).  Given these circumstances and the applicable law, we cannot say that the manner in which the jury so resolved the factual disputes was against the great weight and preponderance of the evidence.  Simply put, the evidence supporting the verdict was neither legally nor factually insufficient.

            Accordingly, the judgment is affirmed.

                                                                                    Brian Quinn

                                                                                    Chief Justice

Pirtle, J., concurs in the result.