Transcont'l Ins. Co. v. Crump

• Decision Date: 27 August 2010
• Docket Number: No. 09-0005,09-0005
• Parties: Transcontinental Insurance Company, Petitioner, v. Joyce Crump, Respondent
• Court: Texas Supreme Court

Transcontinental Insurance Company, Petitioner,

v.Joyce Crump, Respondent

No. 09-0005

Supreme Court Of Texas

Argued January 20, 2010

August 27, 2010

On Petition for Review from the Court of Appeals for the Fourteenth District of Texas

Justice Green delivered the opinion of the Court, in which Chief Justice Jefferson, Justice Hecht, Justice Wainwright, Justice Medina, and Justice Willett joined, and in which Justice Johnson and Justice Lehrmann joined as to Parts I, II, IV and V.

Justice Johnson filed a concurring opinion, in which Justice Lehrmann joined.

Justice Guzman did not participate in the decision.

Paul W. Green Justice.

In this workers' compensation case, we decide three issues: (1) whether expert medical causation testimony from a treating physician relying on a differential diagnosis is reliable and, therefore, legally sufficient evidence to support the jury's verdict; (2) whether the trial court erred in submitting a jury charge that defined "producing cause" without including a but-for component; and (3) whether an insurance carrier that is unsuccessful on judicial review is entitled to a jury trialon the disputed amount of a claimant's attorney's fees under Texas Labor Code § 408.221(c). We hold that: (1) the treating physician's opinion was based on a reliable foundation and, therefore, legally sufficient evidence supports the jury's verdict; (2) the trial court's omission of the but-for component in the jury charge constitutes reversible error; and (3) an insurance carrier is entitled to have a jury determine the disputed amount of reasonable and necessary attorney's fees for which it is liable. Accordingly, we reverse the court of appeals' judgment and remand the case to the trial court for new trial.

I. Background

Charles Crump received a kidney transplant in 1975 and began a lifelong regimen of immunosuppressant drug therapy to ensure his body would not reject the new kidney. Crump began working for Frito-Lay in the mid-1980s. In May 2000, while training another employee in the packaging department, Crump struck his right knee on a piece of machinery. The injury caused a contusion (bruise) and a hematoma (a collection of blood) at the wound site. He applied for and received workers' compensation benefits for the work-related injury. After a series of increasingly serious health complications which required repeated, lengthy hospitalizations, Crump died in January 2001 at age forty-three. His wife, Joyce Crump, ¹ applied for workers' compensation death benefits, alleging that the May 2000 injury was a producing cause of her husband's death. A contested case hearing officer found that the May 2000 injury resulted in Crump's death and awardeddeath benefits. In 2002, the workers' compensation appeals panel affirmed the hearing officer's benefits award.

Frito-Lay's workers' compensation carrier, Transcontinental Insurance Company, sought judicial review ofthe administrative award of death benefits. See Tex.Lab.Code §§ 410.301-.308 (providing for, and limiting scope of, judicial review of a death benefits award). As the party appealing the administrative decision, Transcontinental bore the burden of proving its only disputed issue—that the May 2000 injury was not a producing cause of Crump's death—by a preponderance of the evidence. See id. § 410.303. At trial, Transcontinental offered the testimony of Dr. Judson Hunt. Hunt reviewed Crump's medical records and testified that the May 2000 injury was not a producing cause of Crump's death, and that his death would have occurred without the work-related injury. To rebut Hunt's opinion, Crump offered Dr. John Daller, one of Crump's treating physicians, who testified that the May 2000 injury was a producing cause of Crump's death. The trial court overruled Transcontinental's objections that Daller's testimony was not based on a reliable foundation and allowed him to testify. After hearing the evidence, the jury answered in the affirmative the single question put before it, "Was Charles Crump's May 9, 2000 injury a producing cause of his death?" Crump submitted the issue of attorney's fees to the trial court. See id. § 408.221(c) (mandating payment of a claimant's attorney's fees by an insurance carrier that unsuccessfully seeks judicial review). Transcontinental had objected that those fees should also be submitted to the jury, rather than the trial court. The trial court disagreed with Transcontinental and awarded Crump attorney's fees, as well as fees for time spent pursuing those fees.

Transcontinental appealed. The court of appeals grouped Transcontinental's issues into three categories: (1) the trial court's acceptance of the reliability of Crump's expert's testimony on causation, as well as the legal and factual sufficiency of that testimony to support the verdict; (2) the trial court's definition of producing cause in the jury charge; and (3) the determination of Crump's attorney's fees by the trial court rather than by the jury, as well as the amount of fees awarded. 274 S.W.3d 86, 96 (Tex. App.—Houston [14th Dist.] 2008). Finding no error in any category, the court of appeals affirmed the trial court's judgment. Id. at 90.

We granted Transcontinental's petition for review. 53 Tex. Sup. Ct. J. 15 (Oct. 23, 2009). Finding the court of appeals' categorization of the issues useful, we address each in turn.

II. Legal Sufficiency of Expert Testimony

producing cause was the only issue submitted to the jury at trial. Because this is an appeal of a Workers' Compensation Commission award of death benefits, Transcontinental acknowledges that it had the burden to prove that the May 2000 injury was not a producing cause of Crump's death. See Tex. Lab. Code § 410.303 ("The party appealing the decision [of the appeals panel] on an issue [regarding compensability or eligibility for or the amount of income or death benefits] has the burden of proof by a preponderance of the evidence."); Morales v. Liberty Mut. Ins. Co., 241 S.W.3d 514, 516-17 (Tex. 2007) (discussing the avenues of judicial review). Thus, Transcontinental, the insurance carrier, was the plaintiff at trial; Crump, the claimant, was the defendant.

The trial court asked the jury whether Crump's injury was a producing cause of his death, but to properly allocate the burden of proof, the court instructed the jury to answer "yes" unless they found by a preponderance of the evidence that the answer should be "no." In answering "yes," thejury thus failed to find that Crump's injury did not cause his death. On appeal, Transcontinental asserts that it conclusively established the lack of causality and is therefore entitled to judgment in its favor as a matter of law.

At trial, Transcontinental's expert, Hunt, testified that the natural complications of being immunosuppressed for twenty-five years had caused Crump's death—not the May 2000 injury. Crump's expert and treating physician, Daller, testified that the wound site of the May 2000 workrelated injury became infected, the infection caused Crump's already-weakened organs to fail, and his organ failure in turn caused his death. Transcontinental objected to the admission of Daller's testimony on the ground that it was unreliable, but the trial court overruled that objection. Here, Transcontinental reasserts that Daller's testimony was unreliable and therefore legally insufficient evidence of causation. Without Daller's testimony, Transcontinental argues, Hunt's testimony establishes the lack of causation. Accordingly, we must decide whether Daller's testimony was reliable and, if so, whether it was some evidence of causation.

"An expert witness may testify regarding 'scientific, technical, or other specialized' matters if the expert is qualified and if the expert's opinion is relevant and based on a reliable foundation." Mack Trucks, Inc. v. Tamez, 206 S.W.3d 572, 578 (Tex. 2006) (citing Tex. R. Evid. 702). In determining whether expert testimony is reliable, a court should consider the factors we set out in E.I. du Pont de Nemours & Co. v. Robinson, 923 S.W.2d 549, 557 (Tex. 1995), ² as well as theexpert's experience, knowledge, and training. See Gammill v. Jack Williams Chevrolet, Inc., 972 S.W.2d 713, 726-27 (Tex. 1998) (deeming expert testimony based on the latter considerations unreliable when "there is simply too great an analytical gap between the data and the opinion proffered" (citing Gen. Elec. Co. v. Joiner, 552 U.S. 136, 146 (1997)); see also Tex. R. Evid. 702 (providing for witnesses qualified as experts "by knowledge, skill, experience, training, or education").

[i]n very few cases will the evidence be such that the trial court's reliability determination can properly be based only on the experience of a qualified expert to the exclusion of factors such as those set out in Robinson, or, on the other hand, properly be based only on factors such as those set out in Robinson to the exclusion of considerations based on a qualified expert's experience.

Whirlpool Corp. v. Camacho, 298 S.W.3d 631, 638 (Tex. 2009); see also Mack Trucks, 206 S.W.3d at 579 ("[T]he criteria for assessing reliability must vary depending on the nature of the evidence.").

Here, we are considering the reliability of a treating physician's opinion based on a particular diagnostic methodology—differential diagnosis. This is a routine diagnostic method used in internal medicine whereby a treating physician formulates a hypothesis as to likely causes of a patient's presented symptoms and eliminates unlikely causes by a deductive process of elimination. See, e.g., Coastal Tankships, U.S.A., Inc. v. Anderson, 87 S.W.3d 591, 604-05 & n.24 (Tex. App.—Houston [1st Dist.] 2002, pet. denied) (en banc) ("[Differential diagnosis] is a clinical process whereby adoctor determines which of several potential diseases or injuries is causing the patient's symptoms by ruling out possible causes—by comparing the patient's symptoms to symptoms associated with known diseases,...