Jena Gonzalez v. South Texas Veterinary Associates, Inc.

NUMBER 13-12-00519-CV
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
JENA GONZALEZ, Appellant,
v.
SOUTH TEXAS VETERINARY
ASSOCIATES, INC., Appellee.
On appeal from the County Court at Law Number 5
of Nueces County, Texas.
MEMORANDUM OPINION
Before Justices Garza, Benavides, and Perkes
Memorandum Opinion by Justice Benavides
This is a veterinary malpractice case. By three issues, which we consolidate into
one, appellant, Jena Gonzalez, appeals the trial court’s granting of appellee South Texas
Veterinary Associates, Inc.’s (“STVA”) no-evidence and traditional motions for summary
judgment. We reverse and remand.
I. BACKGROUND
Gonzalez filed suit against STVA following the death of her cat, “Kitty Kat,” who
was euthanized in February 2011 allegedly due to a medical condition known as
vaccine-associated sarcoma.
In October 2003, Gonzalez acquired Kitty Kat and did not know the cat’s medical
or vaccination history. Gonzalez described Kitty Kat as an “indoor/outdoor” cat. On
two separate occasions, in December 2008 and March 2010, Gonzalez took Kitty Kat to
STVA for treatment by David Shaffer, D.V.M. According to Gonzalez, Dr. Shaffer
vaccinated Kitty Kat, including a vaccination known as “adjuvanted feline leukemia
vaccine.” On October 11, 2010, Gonzalez returned to STVA and presented Kitty Kat,
who had developed a golf-ball-sized mass that contained a quarter-sized ulceration
which was draining “matter” on Kitty Kat’s right rear leg. According to Gonzalez, Dr.
Shaffer diagnosed the cat with an infection, prescribed an antibiotic for treatment, and
instructed Gonzalez to return if Kitty Kat’s symptoms did not improve.
Gonzalez alleges that Kitty Kat’s symptoms did not improve, so Gonzalez took
Kitty Kat to another veterinary clinic, Baldwin and Crosstown Animal Clinic,1 on October
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16, 2010. At the clinic, veterinarian Dr. Platt diagnosed Kitty Kat with
vaccine-associated sarcoma. On October 18, 2010, another veterinarian, Dr.
Guzeldere 3 , examined Kitty Kat, aspirated Kitty Kat’s lesion, and concurred in the
diagnosis of vaccine-associated sarcoma. Following these diagnoses, Kitty Kat
1
According to Gonzalez, she attempted to schedule a follow-up appointment with Dr. Shaffer, but
was unable to do so due to “unavailability.”
2
Dr. Platt’s first name is not apparent from the record.
3
Dr. Guzeldere’s first name is also not apparent from the record.
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underwent two surgeries, including the amputation of the right hind limb, and
chemotherapy. Gonzalez states that Kitty Kat was euthanized on February 14, 2011 as
a result of complications from the vaccine-associated sarcoma.
Gonzalez, acting pro se, initially filed suit in Nueces County small claims court
against STVA and alleged that STVA: (1) failed to inform her of the risk of
vaccine-associated sarcoma; (2) failed to adhere to feline vaccination protocols; and (3)
failed to properly diagnose vaccine-associated sarcoma. Gonzalez sought damages in
the amount of $6,858.52, plus court costs. The justice court granted STVA’s motion for
directed verdict and ordered a take-nothing judgment. Gonzalez, however, filed a de
novo appeal to the county court. See TEX. CIV. PRAC. & REM. CODE ANN. § 51.001 (West
2008).
Discovery included the oral depositions of Dr. Shaffer, fellow STVA veterinarian
Darrell Ferris, D.V.M, STVA retained testifying expert Alan Garett, D.V.M., and
Gonzalez’s retained testifying expert, Robert “Bob” Rogers, D.V.M.
STVA eventually filed no-evidence and traditional motions for summary judgment
on all of Gonzalez’s claims, as well as a traditional motion for summary judgment on its
counterclaim for sanctions against Gonzalez for continued prosecution and bringing
“groundless” claims in bad faith or for the purpose of harassment. See TEX. R. CIV. P.
13; 215.2(b). Gonzalez and STVA filed their respective responses, replies, and
sur-replies to address the pending motions. Gonzalez’s first amended petition added
claims for breach of contract and negligent misrepresentation. STVA filed a motion to
dismiss these new claims.
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The trial court made the following relevant rulings:
(1) STVA’s motion to dismiss Gonzalez’s breach of contract and negligent
misrepresentation claims was granted;
(2) STVA’s counterclaim and motion for sanctions against Gonzalez was denied;
and
(3) STVA’s no-evidence and traditional motions for summary judgment were
granted;
This appeal followed.
II. ANALYSIS
By three issues, which we have consolidated into one, see TEX. R. APP. P. 47.1,
Gonzalez asserts that the trial court erred by granting STVA’s no-evidence and
traditional motions for summary judgment.4
A. Standard of Review and Applicable Law
We review a trial court’s summary judgment de novo. Joe v. Two Thirty Nine
Joint Venture, 145 S.W.3d 150, 156 (Tex. 2004). When reviewing a summary
judgment, we take as true all evidence favorable to the nonmovant, and we indulge
every reasonable inference and resolve any doubts in the nonmovant's favor. Id. (citing
Sw. Elec. Power Co. v. Grant, 73 S.W.3d 211, 215 (Tex. 2002)). When a party moves
for a no-evidence summary judgment and a traditional summary judgment, we first
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Gonzalez also asserts that the trial court erred by denying her motion for new trial. However,
Gonzalez did not brief this issue; therefore, it is waived. See TEX. R. APP. P. 38.1(i) (“The brief must
contain a clear and concise argument for the contentions made, with appropriate citations to authorities and
to the record.”). Furthermore, in her reply brief, Gonzalez attempts to raise seven additional issues.
However, though a reply brief may address any matter in the appellee’s brief, see id. R. 38.3, it may not be
used to present new issues that an appellant did not raise in its opening brief. See U.S. Lawns, Inc. v.
Castillo, 347 S.W.3d 844, 849 (Tex. App.—Corpus Christi 2011, pet. denied). Accordingly, these issues,
which are not responsive to any matter raised in STVA’s appellee’s brief and were not raised in Gonzalez’s
initial brief, will not be considered.
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review the trial court’s grant under the no-evidence standards of Rule 166a(i). See
Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 600 (Tex. 2004). If the non-movant meets
her burden under Rule 166a(i), then we analyze whether the movant satisfied her Rule
166a(c) burden. See id.
A no-evidence summary judgment under Rule 166a(i) is essentially a pretrial
directed verdict, and we apply the same legal sufficiency standard in reviewing a
no-evidence summary judgment as we apply in reviewing a directed verdict. King
Ranch, Inc. v. Chapman, 118 S.W.3d 742, 750–51 (Tex. 2003) (internal citations
omitted). Accordingly, we review the evidence in the light most favorable to the
non-movant and disregard all contrary evidence and inferences. Id. (citing Merrell Dow
Pharms., Inc. v. Havner, 953 S.W.2d 706, 711 (Tex. 1997)). A no-evidence point will be
sustained when (a) there is a complete absence of evidence of a vital fact, (b) the court is
barred by rules of law or of evidence from giving weight to the only evidence offered to
prove a vital fact, (c) the evidence offered to prove a vital fact is no more than a mere
scintilla, or (d) the evidence conclusively establishes the opposite of the vital fact. City
of Keller v. Wilson, 168 S.W.3d 802, 810 (Tex. 2005). Thus, a no-evidence summary
judgment is improperly granted if the respondent brings forth more than a scintilla of
probative evidence to raise a genuine issue of material fact as to each element of its
claim. Id. Less than a scintilla of evidence exists when the evidence is “so weak as to
do no more than create a mere surmise or suspicion” of a fact. Kindred v. Con/Chem,
Inc., 650 S.W.2d 61, 63 (Tex. 1983).
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To obtain a traditional summary judgment, a movant must either negate at least
one element of the plaintiff's theory of recovery or plead and conclusively establish each
element of an affirmative defense. See TEX. R. CIV. P. 166a(c); Centeq Realty, Inc. v.
Siegler, 899 S.W.2d 195, 197 (Tex. 1995). Once the movant produces sufficient
evidence to establish the right to summary judgment, the nonmovant must present
evidence sufficient to raise a fact issue. Centeq Realty, Inc., 899 S.W.2d at 197. When
deciding whether a disputed, material fact issue precludes summary judgment, we take
as true evidence favorable to the nonmovant, indulge every reasonable inference in favor
of the non-movant, and resolve any doubts in favor of the non-movant. City of Keller,
168 S.W.3d at 825 & 827; Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548–49 (Tex.
1985).
Here, we apply the medical standard of negligence to a claim of veterinary
negligence. See Downing v. Gully, 915 S.W.2d 181, 184 (Tex. App.—Fort Worth 1996,
writ denied) (setting forth the elements for the plaintiff to prove as: “(1) the applicable
standard of care; (2) the treatment and services provided to the patient and the reason
for that treatment; and (3) that the treatment and services failed to comply with the
standard of care used by other reasonably prudent veterinary care providers in the same
or similar circumstances”).
The Downing Court further explained that, like in medical negligence cases, the
courts are guided solely by expert opinion. Id. (citing Armbruster v. Mem’l Sw. Hosp.,
857 S.W.2d 938, 941 (Tex. App.—Houston [1st Dist.] 1993, no writ)). A summary
judgment may be based on an expert’s uncontroverted testimony if the testimony is
clear, positive, direct, otherwise credible, free from contradictions and inconsistencies,
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and capable of being readily controverted. See TEX. R. CIV. P. 166a(c). An expert
cannot merely state he knows the standard of care and conclude that it was or was not
met. Armbruster, 857 S.W.2d at 941. Instead, the expert must state the standard and
explain how it was not met. See id.
In this case, Gonzalez alleged in her live petition that STVA failed to: (1) inform
her of vaccine-associated sarcoma risk; (2) adhere to feline vaccination protocols; and
(3) properly diagnose vaccine-associated sarcoma in Kitty Kat, which resulted in the loss
of her life.
B. Discussion
1. No-Evidence Summary Judgment
STVA asserted in its no-evidence motion that Gonzalez did not bring forth any
evidence as to the relevant standard of care. In response to STVA’s motion, Gonzalez
cited testimony from the depositions of Dr. Ferris, Dr. Shaffer, and Dr. Garett, as well as
an expert report by her retained testifying expert witness, Dr. Rogers.
(a) Dr. Ferris, Dr. Shaffer, and Dr. Garett
The respective testimonies of Dr. Ferris, Dr. Shaffer, and Dr. Garett were not
sufficiently developed to establish the appropriate standard of care in this case because
while each veterinarian stated the applicable standard of care, none of them stated how
the standard was not met in this case. See Armbruster, 857 S.W.2d at 941.
Accordingly, Gonzalez cannot rely on this evidence to defeat STVA’s no-evidence
motion for summary judgment.
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(b) Dr. Robert “Bob” Rogers
Next, we consider the document attached as Exhibit H to Gonzalez’s response to
STVA’s no-evidence summary judgment motion. This document is identified as an
“expert report” and not an affidavit. Furthermore, Gonzalez’s Exhibit H does not contain
a statement purporting to make the document an affidavit as defined by the Texas
Government Code. See TEX. GOV’T CODE ANN. § 312.011 (West 2005) (defining
affidavit as “a statement in writing of a fact or facts signed by the party making it, sworn
to before an officer authorized to administer oaths, and officially certified to by the officer
under his seal of office”). However, the general rules of error preservation apply to this
situation, and the record shows that STVA did not complain to the trial court about
whether it could consider Dr. Rogers’s unsworn expert report as evidence. See TEX. R.
APP. P. 33.1(a); Mansions in the Forest, L.P. v. Montgomery County, 365 S.W.3d 314,
317 (Tex. 2012) (holding that the general rules of error preservation apply to unsworn
affidavits in the summary judgment context). Moreover, defects in the form of an
affidavit will not be grounds for reversal or affirmance unless specifically pointed out by
objection by an opposing party with an opportunity, but refusal, to amend. See TEX. R.
CIV. P. 166a(f). However, the failure of an affidavit to be made on personal knowledge
or to specify how the affiant had personal knowledge of the facts asserted is a defect in
substance, not form, and is not waived by a failure to object. See Brown v. Brown, 145
S.W.3d 745, 751 (Tex. App.—Dallas 2004, pet. ref’d). STVA asserted a specific
objection to Dr. Rogers’s deposition testimony, stating that he has “no knowledge” of the
standard of care of small animal veterinarians practicing in Corpus Christi, Texas.
However, no objections were made to the form of Dr. Rogers’s expert report, and we
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hold that any such objections were waived. See TEX. R. CIV. P. 166a(f). Furthermore,
STVA’s arguments on appeal complain of defects in the form of Dr. Rogers’s expert
report—i.e. that it was unsworn and, thus, incompetent evidence—and cannot be raised
for the first time on appeal. See Mansions in the Forest, 365 S.W.3d at 317.
Finally, even if we treat STVA’s objections to Dr. Rogers’s expert report as
substantive and therefore, not waived, we are not persuaded by STVA’s argument that
Dr. Rogers’s testimony is incompetent because he testified that he did not know the
specific standards of care in Corpus Christi, Texas pursuant to the locality rule. The
purpose of the locality rule is to prevent unrealistic comparisons between the standards
of practice in communities where resources and facilities might vastly differ. Birchfield
v. Texarkana Mem’l Hosp., 747 S.W.2d 361, 366 (Tex. 1987). Aside from generally
invoking the locality rule, STVA does not assert how its application in this case satisfies
the rule’s purpose or that the standards of practice in Spring, Texas, where Dr. Rogers
practices, is “vastly differ[ent]” from the standards of practice in Corpus Christi, where
STVA is located. See Birchfield, 747 S.W.2d at 366; see also Hall v. Huff, 957 S.W.2d
90, 101 (Tex. App.—Texarkana 1997, pet. denied) (stating that, while the locality rule
has not been totally abrogated, the “evolution of Texas cases” as well as the “universality
of education, training, testing, and travel in the realm of medical treatment and a right to
expect the same basic quality of care” have made its use less applicable). Accordingly,
we narrowly conclude that the locality rule does not apply to the facts of this case.
Therefore, because Gonzalez’s Exhibit H was entered into evidence without objection as
to its form, and because Dr. Rogers’s testimony about not knowing the specific
standards of care in Corpus Christi has no bearing on this case absent the application of
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the locality rule, we consider his report for purposes of this appeal.
Dr. Rogers’s 14-page expert report is divided into various sections. One section
labeled “Curriculum Vitae” lays out Dr. Rogers’s credentials, including: (1) that he is a
1975 graduate of Texas A&M University’s College of Veterinary Medicine; (2) that he
has been in “small animal” veterinary practice for 36 years; and (3) that he has personal
knowledge about animal vaccinations and adverse events that arise from vaccinations.
Next, Dr. Rogers writes the following in his report:
I have reviewed the medical records of "Kitty Kat" belonging to Mrs. Jena
Gonzales.
The evidence and scientific data show that Dr. Shaffer, without informing
the client of the risk vs. the benefit of the vaccinations administered, and
without diligence and care in the selection of the safest and most effective
vaccine, was negligent in the treatment and vaccination of "Kitty Kat"
belonging to Jenna [sic] and Arnulfo Gonzales. Dr. Shaffer did not adhere
to the standard of care by failing to select the safest and most effective
vaccine. Dr. Shaffer did not adhere to the standard of care as directed by
the Texas State Board of Veterinary Medical Examiners in the lack of
informed consent and in the decisions for vaccinations he gave to "Kitty
Kat." Dr. Shaffer's lack of informed consent and negligence caused the
death of "Kitty Kat" by subjecting this cat to the subsequent development of
a vaccine associated sarcoma.
A vaccine associated sarcoma (VAS) is a rapid growing and fatal form of
cancer in cats stemming from inflammation. Because of adverse events
like Vaccine Associated Sarcomas, between the years of 1996 and 1998
Texas A&M University and all 27 Colleges of Veterinary Medicine in the
U.S. revised their vaccination protocols for small animals. In 1996[,] the
Vaccine Associated Sarcoma Task Force was formed to make
recommendations for the prevention of and treatment of VAS.
Later in the report, Dr. Rogers defines informed consent as it relates to the vaccinations
of small animals:
A reasonable Veterinarian should disclose to the client the risk of the
disease being vaccinated against along with any known risk that may result
from the vaccination. When the vaccination involves the risk of inherently
serious harm to the animal such as a Vaccine Associated Sarcoma[,] it is
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the Veterinarian's duty to inform the client of this potential serious
complication. The Veterinarian should also inform the client as to any
steps they can take to minimize the risks as well as any alternative safer
vaccine and any alternative to vaccination. The failure to provide and
obtain informed consent is in itself an act of negligence.
Dr. Rogers further opined that Dr. Shaffer’s failure to obtain informed consent also
violated the “vaccination protocols” as specified by the Texas State Board of Veterinary
Medical Examiners in 2005. Additionally, Dr. Rogers stated that Dr. Shaffer was
negligent in failing to inform Gonzalez: (1) of the risk of vaccine-associated sarcoma; and
(2) that to minimize risk of vaccine-associated sarcoma, the American Veterinarian
Medical Association’s Vaccine Associated Sarcoma Task Force, the Association of
Feline Practitioners, and the Texas A&M University Small Animal Teaching Hospital
recommend that a veterinarian “look for a lump at the vaccination site and have it
removed if it is larger than 2 cm., grows, or fails to go away after 3 months, before it
could become cancerous.”
After examining the evidence in the light most favorable to Gonzalez and
disregarding all contrary evidence and inferences, we conclude that Gonzalez brought
forth more than a scintilla of probative evidence establishing the relevant standard of
care to prove her malpractice claims. See City of Keller, 168 S.W.3d at 810; see also
TEX. R. CIV. P. 166a(i). In particular, we conclude that Dr. Rogers’s letter adequately
sets forth the standard of care applicable to this case with regard to the treatment of Kitty
Kat, and the trial court erred by granting the no-evidence summary judgment. Because
this evidence is sufficient to defeat STVA’s no-evidence motion, we now examine
whether STVA satisfied its Rule 166a(c) burden. See Ridgway, 135 S.W.3d at 600.
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2. Traditional Motion for Summary Judgment
STVA first argues that the evidence conclusively establishes that Dr. Shaffer
complied with the applicable standard of care for his treatment of Kitty Kat. In support
of this argument, STVA cites a letter from the Texas Board of Veterinary Medical
Examiners (“the Board”) related to a complaint filed against Dr. Shaffer by Gonzalez to
the Board related to the death of Kitty Kat. The pertinent part of the letter states the
following:
Two Board Members, who are both veterinarians, reviewed and evaluated
this case. After review of all available documentation and statements, the
Board Members could not substantiate any violation of the Veterinarian
Licensing Act or any of the Rules of Professional Conduct.
We are closing this case with the notation of “no violation.” [ . . . . ]
Relying on this evidence, STVA asserts that the Board’s letter establishes as a matter of
law that Dr. Shaffer adhered to the applicable standard of care and did not commit
veterinary malpractice. We disagree. While this evidence may be relevant to the
ultimate disposition of this case and we do not disregard it, we nevertheless hold that it
does not conclusively prove that Dr. Shaffer complied with the applicable standard of
care in light of Dr. Rogers’s report to the contrary. See TEX. R. CIV. P. 166a(c).
Furthermore, we are not directed to any authority that such findings by the Board are
conclusive evidence establishing that a veterinarian adhered to the applicable standard of
care. At most, the Board’s letter is evidence in support of STVA’s position as to which
reasonable and fair-minded jurors could ultimately differ in their conclusions in light of all
of the evidence presented. Goodyear Tire & Rubber Co. v. Mayes, 236 S.W.3d 754,
755–56 (Tex. 2007) (per curiam).
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Finally, STVA relies on a recorded conversation between Dr. Rogers and STVA’s
retained testifying expert, Dr. Garett, during a professional conference that they both
attended in January 2012. A transcript of this conversation was entered into the record.
STVA relies upon the following excerpt from the conversation:
DR. GARETT: Who do you blame? The veterinarian or—or the—or
the industry?
DR. ROGERS: I blame the industry. I don’t blame the vet.
DR. GARETT: Sure. Yeah, I agree.
While we, again, do not disregard this evidence, we cannot conclude that such
evidence by itself negates an element of Gonzalez’s theory of recovery. See TEX. R.
CIV. P. 166a(c); Centeq Realty, Inc., 899 S.W.2d at 197. This recorded conversation
instead goes to the weight of the evidence and credibility of Dr. Rogers’s expert report
testimony, which is outside the scope of our review at this stage in the proceedings. See
McCullough v. Godwin, 214 S.W.3d 793, 800 (Tex. App.—Tyler 2007, no pet.) (“[An
appellate court is] not required to ascertain the credibility of affiants or to determine the
weight of evidence in the affidavits, depositions, exhibits, and other summary judgment
proof.”) (quoting Gulbenkian v. Penn, 151 Tex. 412, 417, 252 S.W.2d 929, 932 (Tex.
1952)).
Accordingly, after taking as true evidence favorable to the non-movant, indulging
every reasonable inference in favor of Gonzalez, and resolving any doubts in favor of
Gonzalez, we conclude that STVA did not meet its Rule 166a(c) burden, and the trial
court erred by granting STVA’s traditional motion for summary judgment. Gonzalez’s
sole issue on appeal is sustained.
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III. CONCLUSION
We reverse the trial court’s order granting STVA’s no-evidence and traditional
motions for summary judgment and remand this case for further proceedings consistent
with this opinion.
__________________________
GINA M. BENAVIDES,
Justice
Delivered and filed the
19th day of December, 2013.
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