North Dallas Diagnostic Center v. Dewberry

• Decision Date: 13 April 1995
• Docket Number: No. 05-92-00489-CV,05-92-00489-CV
• Citation: 900 S.W.2d 90
• Parties: NORTH DALLAS DIAGNOSTIC CENTER, Appellant, v. Jacqueline Riley DEWBERRY, Appellee.
• Court: Texas Court of Appeals

Page 90

900 S.W.2d 90

NORTH DALLAS DIAGNOSTIC CENTER, Appellant, v. Jacqueline Riley DEWBERRY, Appellee.

No. 05-92-00489-CV.

Court of Appeals of Texas Dallas.

April 13, 1995.

Rehearing Denied June 12, 1995.

Michael W. Huddleston, R. Brent Cooper, Cooper Huddleston & Aldous, P.C., Dallas, Teresa Bohne, Irving, and Brenda Neel Hight, Cantey & Hanger, L.L.P., Dallas, for appellant.

John K. Horany and David Rodriguez Weiner, Law offices of Windle Turley, P.C., Dallas, for appellee.

Before THOMAS, ¹ C.J., and OVARD and MORRIS, JJ.

OPINION

THOMAS, Chief Justice.

In this medical malpractice action, we must decide whether the trial court abused its discretion in allowing an expert to testify on causation without a showing that the expert's opinion was based on valid and well-grounded scientific knowledge. A jury found appellant North Dallas Diagnostic Center (the Center) liable for injuries sustained by appellee Jacqueline Riley Dewberry after she was injected with a contrast dye. On appeal, the Center raises eleven points of error challenging the trial court's judgment.

We conclude the testimony of Dewberry's expert witness on causation was not shown to be grounded in valid scientific knowledge; thus, the trial court abused its discretion in admitting the testimony. Because this was the only evidence of causation, we hold the evidence is legally insufficient to support the jury's findings of proximate cause. Accordingly, we reverse the trial court's judgment, and in the interest of justice, we remand for proceedings consistent with this opinion.

FACTUAL BACKGROUND

In early 1988, Dewberry was experiencing headaches. In February, she consulted her obstetrician-gynecologist about a headache she suffered the previous weekend. Her gynecologist referred her to a neurologist, Dr. Worthy Warnack, Jr.

Dewberry saw Dr. Warnack on February 4, 1988, complaining of headaches, burning skin, bulging veins, and a "constellation of skin symptoms that she described." Dr. Warnack ordered a computed tomography (CT) scan ² to help evaluate Dewberry's condition. Dr. Warnack told Dewberry the CT scan would involve injecting her with an iodinated contrast medium through an intravenous line placed in her arm.

Dewberry expressed fear of the iodinated dye. When Dr. Warnack asked if she had experienced a reaction to iodinated dye, Dewberry said she had not. After examining and questioning Dewberry, Dr. Warnack concluded there was no medical reason not to use iodine contrast medium in the CT scan. In his opinion, Dewberry was not allergic to iodine. Nevertheless, Dr. Warnack told Dewberry the CT scan would be performed without contrast medium, and he ordered the test without contrast medium.

On February 8, 1988, Dewberry went to the Center to undergo the CT scan. Although Dewberry told the technicians that Dr. Warnack ordered the test without contrast medium, the test was performed with contrast medium. Dewberry experienced a painful, burning reaction when the technicians injected her with the iodinated dye, Angiovist-282. Dewberry repeatedly complained to the technicians during the test. When the CT scan was completed, Dewberry noticed a knot in her arm where the contrast medium was injected. Additionally, the area was black and blue.

The following afternoon, Dewberry's headache became more of a burning headache than it had been before the CT scan. The next morning, she noticed her face was swollen, red, and burning. She also felt the burning she experienced during the CT scan.

Over the next two-and-one-half years, Dewberry saw several doctors about her complaints. None of these doctors diagnosed the cause as a reaction to the contrast medium. In August 1990, Dewberry went to Dr. Harvey Ross, a physician at the Environmental Health Clinic in Dallas. Based on his testing and treatment of Dewberry, Ross concluded that Dewberry's health problems were caused by an adverse reaction to the Angiovist-282.

Dewberry sued the Center, alleging the contrast medium caused a chronic and permanent reaction. ³ At trial, Dewberry complained of extremely sensitive skin, continual burning headaches, abnormal hair loss, developing scar tissue, dry and swollen skin, facial swelling, a change in her skin color, extreme sensitivity to light, burning in her rectal and groin areas, and running, swollen, burning eyes.

The jury found in Dewberry's favor on her claims for negligence and fraudulent misrepresentation and awarded her $205,000 actual damages and $260,001 punitive damages. The trial court also assessed prejudgment interest, postjudgment interest, and costs against the Center.

ADMISSION OF EXPERT TESTIMONY

1. Preservation of Error

In the seventh point of error, the Center complains the trial court erred in admitting Dr. Ross's testimony because the testimony was based on neither accepted testing techniques nor a complete factual history of Dewberry. Dewberry counters that the Center's complaint has not been preserved for appellate review because the Center failed to object on the record. We disagree.

The Center's initial objections to Dr. Ross were not stated on the record. However, Dr. Ross was questioned outside the jury's presence on the reliability of his testing techniques. Because the trial court then ruled the Center's complaints went to the weight rather than the admissibility of the testimony, we conclude that the bases of the Center's objections were apparent to the trial court. See TEX.R.APP.P. 52(a). Further, the Center did object in front of the jury to Dr. Ross's testimony on causation. Because we conclude the complaint was preserved for appellate review, we address the merits of the Center's argument.

2. Standard of Review

Preliminary questions concerning admissibility of evidence are determined by the court. TEX.R.CIV.EVID. 104(a). ⁴ This determination will not be overturned absent an abuse of discretion. See Steenbergen v. Ford Motor Co., 814 S.W.2d 755, 760 (Tex.App.--Dallas 1991, writ denied), cert. denied, 506 U.S. 831, 113 S.Ct. 97, 121 L.Ed.2d 58 (1992). Further, error may not be predicated upon a ruling that admits or excludes evidence unless a substantial right of the party is affected. TEX.R.CIV.EVID. 103(a).

The test for determining whether an abuse of discretion occurred is not whether the facts present an appropriate case for the trial court's action; rather, the test is whether the trial court acted without reference to any guiding rules and principles, or in other words, acted in an arbitrary and unreasonable manner. 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). The determination of whether a court abused its discretion is a question of law. Jackson v. Van Winkle, 660 S.W.2d 807, 810 (Tex.1983).

3. Rules Governing Admissibility

In making the initial determination of admissibility of evidence, Texas courts must apply the principles set forth in the rules of evidence governing relevancy. See TEX.R.CIV.EVID. 401-403. When the offered evidence is the testimony of expert witnesses, our courts must also apply the principles set forth in the rules governing expert testimony. See TEX.R.CIV.EVID. 702-705.

Relevancy

Before evidence is admissible, it must be relevant as defined by rule 401. To meet the relevancy test of rule 401, the offered evidence must first have probative value; that is, it must logically tend to make a particular proposition more or less likely. Second, that proposition must be of consequence to some issue in the trial. See TEX.R.CIV.EVID. 401; Service Lloyds Ins. Co. v. Martin, 855 S.W.2d 816, 822 (Tex.App.--Dallas 1993, no writ).

In determining relevancy, we look at the purpose for offering the evidence. The relevancy test is satisfied if there is directly or by inference some logical connection between the fact offered and the fact to be proved. See TEX.R.CIV.EVID. 401; Service Lloyds Ins. Co., 855 S.W.2d at 822. Although relevant, a trial court may nevertheless exclude evidence if its probative value is substantially outweighed by the danger of one of the factors set forth in rule 403. ⁵

Expert Testimony

Rule 702 of the Texas Rules of Civil Evidence governs the admissibility of expert testimony. The rule provides:

If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.

TEX.R.CIV.EVID. 702.

The rule contains two hurdles that must be overcome before expert scientific testimony will be admissible. Proponents of expert testimony must establish: (1) that scientific, technical, or other specialized knowledge will aid the trier of fact; and (2) the expert witness is qualified to testify on the subject.

Under the first prong, an expert's opinion should be based on an existing body of scientific, technical, or other specialized knowledge that is pertinent to the facts in issue. Thompson v. Mayes, 707 S.W.2d 951, 956 (Tex.App.--Eastland 1986, writ ref'd n.r.e.). The test for admission of an expert's opinion is whether the underlying technical or scientific principle used by the expert is sufficiently reliable for the expert's testimony to assist the jury. Gannett Outdoor Co. v. Kubeczka, 710 S.W.2d 79, 89 (Tex.App.--Houston [14th Dist.] 1986, no writ); Thompson, 707 S.W.2d at 956. The intent of this test is obvious: if the opinion the jury considers to reach its verdict is unreliable, the risk of an erroneous verdict increases.

If the expert's field of knowledge does not have a scientific or specialized base, courts should exclude the evidence because the expert's opinion would be more likely to prejudice or confuse than to assist the trier of fact. See Warren v. Hartnett, 561 S.W.2d 860, 863 (Tex.Civ.App.--Dallas 1977, writ ref'd n.r.e.); Thompson, 707 S.W.2d...