Moore v. Memorial Hermann Hosp. System

• Decision Date: 08 July 2004
• Docket Number: No. 14-02-01147-CV.,14-02-01147-CV.
• Citation: 140 S.W.3d 870
• Parties: Eloise MOORE, Appellant, v. MEMORIAL HERMANN HOSPITAL SYSTEM, INC. d/b/a Memorial Hermann Southeast Hospital Company, Appellee.
• Court: Texas Court of Appeals

140 S.W.3d 870

Eloise MOORE, Appellant, v. MEMORIAL HERMANN HOSPITAL SYSTEM, INC. d/b/a Memorial Hermann Southeast Hospital Company, Appellee.

No. 14-02-01147-CV.

Court of Appeals of Texas, Houston (14th Dist.).

July 8, 2004.

Appeal from the 234th District Court, Harris County, Bruce D. Oakley, J Dana LeJune, Houston, TX, for appellants.

Wesley Ralph, Ward, TX, for appellees.

Panel consists of Chief Justice HEDGES and Justices HUDSON and FROST.

OPINION

ADELE HEDGES, Chief Justice.

Appellant Eloise Moore appeals from a take-nothing jury verdict rendered against her and in favor of appellee Memorial Hermann Hospital System, Inc. d/b/a Memorial Hermann Southeast Hospital Company ("MHHS"). This case arises from a dispute about a back injury suffered by appellant during the course of her employment at MHHS.

Background

After working for MHHS for several weeks as a food service attendant, appellant suffered a back injury during the course of her employment on November 7, 1998. The injury allegedly occurred as a result of her efforts to pull a large, fully-loaded food cart to one of the hospital's patient wings. The morning following the injury, appellant continued to experience back pain and sought attention at the MHHS emergency room. The hospital did not take x-rays of appellant's back during the November 8 visit. The next day, November 9, appellant was still suffering from back pain and visited a chiropractor's office located close to her home. The chiropractor diagnosed appellant as having suffered from an acute spinal strain. Treatment for appellant's injury was ultimately handled by MHHS physicians because the hospital is a non-subscriber to workman's compensation insurance. Appellant returned to her position at MHHS in mid-December 1998, but was restricted to "light duty." Appellant refused to perform tasks she considered outside of "light duty." MHHS terminated her employment in January 1999.

In November 2000, appellant filed this action against MHHS, alleging that her back injury was caused by MHHS's negligence in failing to provide a safe workplace, the proper tools with which to do her job, and proper safety training. The suit was tried to a jury in September 2002. After several days of trial, the jury began deliberations on September 5. The following day, Friday, September 6, the jury sent a note to the judge, requesting a "layman's definition" of proximate cause. The trial court responded appropriately. Later, at 4:25 p.m. that same day, the jury sent another note to the judge, stating, "We are deadlocked! No change and no foreseeable change." The judge then instructed the jury to either continue deliberations until 5 p.m. that day or break at that point and resume on Monday, September 9. Still later that day, the judge received the following note from the jury:

We are deadlocked 9-No and 3-Yes. The three Yes votes as well as the 9 No votes have stated that they are unwilling to change their vote. Nobody has changed their mind since 4:45 yesterday, of which the entire time has been deliberation of Question Number 1.

Counsel for MHHS then proposed an Allen or "dynamite" charge, and, after hearing brief arguments from counsel, the court instructed the jury accordingly. On the following Monday afternoon, at approximately 12:35 p.m., the jury reached a verdict in favor of MHHS. Ten members of the jury found that any negligence of MHHS was not the proximate cause of appellant's injury. This appeal followed.

The Issues

Appellant raises seven issues in this appeal, claiming that the trial court erred (1) in admitting appellant's Social Security Administration ("SSA") records while subsequently excluding the rebuttal testimony of her vocational expert witness, (2) in admitting appellant's SSA records while subsequently excluding an explanatory letter from the SSA, (3) in excluding the opinion testimony of appellant's treating physician, (4) in excluding the testimony of appellant's workplace safety expert, (5) in refusing to instruct the jury regarding the duties employers owe to their employees, (6) in instructing the jury to continue to deliberate, and (7) in instructing the jury with a "dynamite" charge on a late Friday afternoon. We address these issues below, discussing appellant's first issue with her second, and her sixth issue with her seventh. We affirm.

Admission of SSA Records

In her first issue, appellant argues that the trial court erred in excluding the rebuttal testimony of Viola Lopez, a vocational rehabilitation expert witness, to explain the contents of appellant's SSA records. In her second issue, appellant argues that the trial court erred in excluding an explanatory letter from the SSA. Appellant does not challenge the admission of the SSA records themselves; her claim is that in light of their admission, the exclusions of (1) Lopez's testimony and (2) the SSA explanatory letter constitute harmful error.

A trial court's decision to admit or exclude evidence is reviewed for abuse of discretion. Horizon/CMS Healthcare Corp. v. Auld, 34 S.W.3d 887, 906 (Tex.2000). Unless the trial court's erroneous evidentiary ruling probably caused the rendition of an improper judgment, we will not reverse the ruling. Id. An appellate court must uphold the trial court's evidentiary ruling if there is any legitimate basis for it. Owens-Corning Fiberglas Corp. v. Malone, 972 S.W.2d 35, 43 (Tex.1998).

The SSA records contained, inter alia, a primary diagnosis that appellant's condition was due to obesity and a secondary diagnosis that appellant suffered from degenerative changes of the lumbar spine. They also listed the date appellant's disability began as November 1, 1998; this date is six days prior to the date appellant allegedly suffered her injury.

Appellant's first contention is that the trial court erred in excluding the rebuttal testimony of Viola Lopez, a vocational rehabilitation expert witness and former SSA employee. In an offer of proof before the trial court, Lopez testified that, for purposes of payment processing, the SSA routinely lists the "date disability began" as the first day of the month in which the person becomes disabled, and not necessarily the actual date the disability began. Appellant has acknowledged that Lopez was not designated to offer testimony on the subject and that the substance of her testimony was not disclosed to MHHS prior to trial. Therefore, under Rule 193.6(a) of the Texas Rules of Civil Procedure, appellant is not entitled to introduction of the evidence unless "there was good cause for the failure to timely make, amend, or supplement the discovery response" or such failure did not "unfairly surprise or unfairly prejudice" the other party. See Tex.R. Civ. P. 193.6(a)(1), (2).

The only arguments appellant raises in support of either prong of this test are that she "trusted that only a few portions of the file, at best, were legally admissible" and that she "could never have imagined that the Court would admit into evidence virtually the entire Social Security file." Appellant has cited no authority, and we are aware of none, which supports this explanation as sufficient evidence of good cause for failure to disclose Lopez's opinion. We find that appellant has failed to meet her burden. See Tex.R. Civ. P. 193.6(b); Tex.R.App. P. 38.1(h). Therefore, her first contention is without merit.

Appellant's second contention is that the trial court erred in excluding the SSA explanatory letter, which purports to provide the same explanation offered by witness Lopez as to why the date listed in the SSA records is not necessarily the date appellant's disability began. The letter states in relevant part: "Eligibility for SSI benefits is always based on the first of the month. If the individual became disabled within the month her date of eligibility will be the first of the month." The trial court sustained MHHS's hearsay objection. While she did not assert any hearsay exception at trial, appellant now claims that this letter falls within the hearsay exception for public records and reports under Rule 803(8) of the Texas Rules of Evidence.¹ We disagree. The letter does not fall within the specific categories of Rule 803(8). Therefore, appellant's second contention is without merit.

Because we find that appellant's claims regarding the exclusion of Lopez's testimony and the SSA explanatory letter are unpersuasive, we conclude that the trial court did not abuse its discretion in its exclusion of such evidence. Accordingly, we overrule appellant's first and second issues.

Exclusion of Treating Physician's Testimony

In her third issue, appellant argues that the trial court erred in excluding several opinions within the testimony of her treating physician, Dr. S. Ali Mohamed. She contends that these opinions were offered to rebut the testimony of MHHS's retained expert, Dr. Stephen Esses. We apply the usual standards of review for evidentiary rulings. See Auld, 34 S.W.3d at 906; Malone, 972 S.W.2d at 43.

Under Rule 194 of the Rules of Civil Procedure, a party is required to disclose certain enumerated information about any testifying experts upon request by another party. Tex.R. Civ. P. 194.1, 194.2(f). Appellant concedes that she made no such disclosure concerning Dr. Mohamed pursuant to MHHS's request. She claims that she either was not required to make such disclosure or that she adequately complied with the Rule 194 requirements. We disagree.

First, appellant claims that she was not required to disclose the information required under Rule 194.2(f) because Dr. Mohamed was a rebuttal witness and not a designated or retained expert. However, once MHHS disclosed the opinions of Dr. Esses, its testifying expert, appellant could reasonably have anticipated the need to rebut the testimony of the latter at trial. See Orkin Exterminating Co., Inc. v. Williamson, 785 S.W.2d 905, 910-11 (Tex.App.-Austin 1990, writ denied). Therefore, Dr. Mohamed was simply an...