Buls v. Fuselier

• Decision Date: 11 September 2001
• Docket Number: No. 06-00-00055-CV,06-00-00055-CV
• Citation: Buls v. Fuselier, 55 S.W.3d 204 (Tex. App. 2001)
• Parties: (Tex.App.-Texarkana 2001) JENNIFER BULS AND ROBERT BULS, Appellants v. DR. CHARLES FUSELIER, D.P.M., Appellee
• Court: Texas Court of Appeals

Page 204

55 S.W.3d 204 (Tex.App.-Texarkana 2001)

JENNIFER BULS AND ROBERT BULS, Appellants v. DR. CHARLES FUSELIER, D.P.M., Appellee

No. 06-00-00055-CV

Court of Appeals of Texas, Texarkana

Submitted June 12, 2001

Decided August 14, 2001

Rehearing Overruled September 11, 2001.

On Appeal from the 202nd Judicial District Court Bowie County, Texas Trial Court No. 97C0276-202

[Copyrighted Material Omitted]

[Copyrighted Material Omitted] M. Mark Lesher, Monty G. Murry, Lesher & Murry, Texarkana, for appellant.

Jeffery C. Lewis, Atchley, Russell, Waldrop & Hlavinka, Texarkana, for appellee.

Before Cornelius, C.J., Grant and Ross, JJ.

Opinion by Chief Justice Cornelius

OPINION

Jennifer Buls appeals from a take-nothing judgment in her suit against Charles Fuselier, D.P.M., for negligent rendition of health care services during two podiatric surgeries.¹ On appeal Buls contends the trial court erred by: excluding certain parts of her experts' testimonies, overruling the challenges for cause of two jurors, and submitting the inferential rebuttal defenses of "sole proximate cause" and "new and independent cause" in its jury charge and allowing expert testimony regarding these issues. We overrule each of these points of error and affirm the judgment of the trial court.

Buls was first examined by Fuselier in November 1994, after receiving treatment from other doctors for various podiatric ailments such as knots on the top of both her feet, calluses on the bottom of both her feet, and the formation of bunions on both her feet. After going to the emergency room with severe foot pain, Buls had Fuselier perform surgery to correct the bunions and hammertoes on both feet, as well as remove the knots from the top of both her feet and the calluses from the bottom of both her feet. Despite Fuselier's preference that the surgeries be performed on only one foot at a time, Buls requested that both feet be operated on during the same visit. Buls had surgery on both feet on December 14, 1994, with no complications, but she began having problems with her left foot. She developed an infection, spilled coffee on her foot, and bruised her great toe after tripping over a stump. Shortly after these events, Buls began complaining of pain in the arch of her left foot. After treating Buls for nearly a year, Fuselier diagnosed the source of the pain as a sesamoid bone and recommended its surgical removal. Buls later sought an independent medical recommendation from Dr. Jeff DeHaan, an orthopedist in Texarkana, who concurred with Fuselier's assessment and recommendation. Fuselier performed the sesamoid removal on October 6, 1995.

Buls eventually relocated and began receiving treatment from Dr. Thomas McCloskey, a podiatrist in Tyler, in June 1996. Later, in September 1996, Buls retained counsel, who subsequently referred her to James Naples, a D.P.M. in Texarkana. Naples advised Buls that Fuselier's procedure to remove her bunions was completely unnecessary and that the metatarsal knots on the tops of her feet did not require removal. McCloskey performed surgery on Buls' left foot in February 1997, but the surgery was unsuccessful and left her great toe a centimeter short. No corrective surgery was conducted. Buls' left foot problems were exacerbated when she tripped on a stair and fractured her shortened left great toe in March 1999.

In her first point of error, Buls contends that the trial court erred by excluding a portion of Naples' testimony regarding his allegation that Fuselier performed unnecessary surgeries on Buls' feet solely for remuneration.²

As a general rule, all relevant evidence is admissible, including expert testimony. See Tex. R. Evid. 401, 402, 702. Like all other relevant evidence having any tendency to make the existence of a consequential fact more or less probable, the admission of relevant expert testimony is favored, and one opposing it has the burden to show that its probative value is substantially outweighed by other factors. See Tex. R. Evid. 403, 410. We review the trial court's exclusion of expert testimony under an abuse of discretion standard. K-Mart Corp. v. Honeycutt, 24 S.W.3d 357, 360 (Tex. 2000); Gammill v. Jack Williams Chevrolet, 972 S.W.2d 713, 718-19 (Tex. 1998). The trial court abuses its discretion when its ruling is arbitrary, unreasonable, or without reference to any guiding rules or legal principles. See Bocquet v. Herring, 972 S.W.2d 19, 21 (Tex. 1998). Because the trial court did not specify the grounds on which it excluded Naples' testimony, we will affirm the trial court's ruling if the ruling is correct on any theory supported by the pleadings and evidence. See Bradley v. State ex rel. White, 990 S.W.2d 245, 247 (Tex. 1999).

Courts have traditionally recognized that something is not true simply because an expert says it is so. Merrell Dow Pharms., Inc. v. Havner, 953 S.W.2d 706, 712 (Tex. 1997), quoting Viterbo v. Dow Chem. Co., 826 F.2d 420, 421 (5th Cir.1987) Moreover, when an expert "br[ings] to court little more than his credentials and a subjective opinion, . . .," it is not evidence that will support a judgment. Merrell Dow Pharms., Inc. v. Havner, 953 S.W.2d at 712, citing Viterbo v. Dow Chem. Co., 826 F2d at 421-22.

Applying these principles, we find that the court did not abuse its discretion in excluding Naples' testimony regarding remuneration.³ First, his opinions were highly subjective. Naples testified that he did not believe the surgery on either the bunions or knots was necessary. Naples buttressed his belief by testifying that Buls did not have any bunions. However, a written report documenting Buls' September 1996 visit indicated that during Naples' review of her medical records and x-rays, he found a "moderate bunion deformity." Second, Naples' opinion that Fuselier performed multiple surgeries at the end of a calendar year to avoid losses due to insurance deductibles amounted to nothing more than conjecture and speculation. He did not base his opinion on personal knowledge, but on rumors and hearsay statements from nonparties. See Duff v. Yelin, 751 S.W.2d 175, 176 (Tex. 1988); Schaefer v. Texas Employers' Ins. Ass'n, 612 S.W.2d 199, 202-05 (Tex.1980); see also Lenger v. Physician's Gen. Hosp., Inc., 455 S.W.2d 703, 706 (Tex. 1970). Accordingly, we find that the trial court was within its discretion to exclude the portion of Dr. Naples' testimony that dealt with remuneration. See Flores v. Ctr. for Spinal Evaluation & Rehab., 865 S.W.2d 261, 264 (Tex. App.-Amarillo 1993, no writ).

In her second point of error, Buls contends that the trial court erred by overruling the challenges for cause of two jurors. Buls contends that jurors John Deese and Lewis White were biased and prejudiced against her and the subject matter of her suit. Because of the trial court's refusal to dismiss the jurors, Buls was forced to use two of her peremptory challenges to exclude Deese and White and, therefore, was compelled to accept two other objectionable jurors. In response, Fuselier asserts that Buls did not establish either bias or prejudice as a matter of law and, therefore, the trial court was within its discretion to overrule Buls' challenges.

A person who has a bias or prejudice in favor of or against a party in the case is disqualified to serve as a juror. Tex. Gov't Code Ann. § 62.105(4) (Vernon 1998). Bias sufficient to disqualify a juror must be such that the state of mind of the juror leads to the inference that he will not act with impartiality. Prejudice means prejudgment and therefore includes bias. Compton v. Henrie, 364 S.W.2d 179, 182 (Tex. 1963); Excel Corp. v. Apodaca, 51 S.W.3d 686, 689-691 (Tex. App.-Amarillo 2001, no pet. h.). If a juror's bias or prejudice is established as a matter of law, the trial court must disqualify the juror. If it is not established as a matter of law, the trial court makes a factual determination whether the juror is disqualified. Malone v. Foster, 977 S.W.2d 562, 564 (Tex. 1998); Swap Shop v. Fortune, 365 S.W.2d 151, 154 (Tex. 1963); Excel Corp. v. Apodaca, 2001 WL 261663, at *1-2. The trial court is obligated to disqualify a juror only if it finds that the juror's state of mind leads to the natural inference that the juror will not act impartially. See Goode v. Shoukfeh, 943 S.W.2d 441, 453 (Tex. 1997), citing Compton v. Henrie, 364 S.W.2d at 182.

When a trial court refuses to disqualify a juror or jurors for bias or prejudice, the complaining party must show that the error was harmful by advising the trial court that the court's refusal to discharge the jurors for cause would force the party to exhaust her peremptory challenges, and after exhausting those peremptory challenges, specific objectionable jurors would remain on the panel. Shepherd v. Ledford, 962 S.W.2d 28, 34 (Tex. 1998). The trial court's overruling a challenge for cause carries with it an implied finding that bias or prejudice does not exist to the degree that it constitutes disqualification. Thus, whenever the evidence does not conclusively establish the panelist's disqualification, we must consider all the evidence in the light most favorable to the trial court's ruling, Bullard v. Universal Underwriters Ins. Co., 609 S.W.2d 621, 624 (Tex. Civ. App.-Amarillo 1980, no writ), and we will not disturb the finding in the absence of an abuse of discretion. Gant v. Dumas Glass & Mirror, Inc., 935 S.W.2d 202, 207 (Tex. App.-Amarillo 1996, no writ); Sullemon v. U.S. Fid. & Guar. Co., 734 S.W.2d 10, 15 (Tex. App.-Dallas 1987, no writ); see generally W. Wendell Hall, Standards of Review in Texas, 29 St. Mary's L.J. 351, 434 (1998).

Neither bias nor prejudice is presumed. Nor is bias or prejudice shown by general questions, because such questions are usually insufficient to show the diligence required to probe the mind of a veniremember with respect to a legal disqualification. Gant v. Dumas Glass & Mirror, Inc., 935 S.W.2d at 208; Roy L. Jones Truck Line v. Johnson, ...