Opinion
No. 05-04-00701-CV
Opinion Filed September 23, 2005.
On Appeal from the County Court at Law No. 2, Collin County, Texas, Trial Court Cause No. cc-02-14355-B.
Affirm.
Before Justices O'NEILL, RICHTER, and LANG.
MEMORANDUM OPINION
Appellants Marjorie E. Ebersole, individually and on behalf of the estate of Arthur Ebersole, Dana E. Ebersole, and Barry Ebersole appeal a no-evidence summary judgment granted in favor of appellee Edward J. Clifford, M.D. In a single issue, the Ebersoles contend the trial court erred in striking their expert's affidavit. For the following reasons, we affirm the trial court's judgment.
In 1998, Arthur Ebersole began seeing Dr. Gerald Edelman, an oncologist. At that time, Arthur had a history of chronic lymphocytic leukemia. Arthur's leukemia was at "stage 4" the most advanced stage, giving him a life expectancy of two to five years. In 2000, in connection with his ongoing treatment for leukemia, Arthur's oncologist referred Arthur to Dr. Clifford for a splenectomy. On September 20, 2000, Clifford performed a laparascopic splenectomy on Arthur. Arthur was discharged from the hospital on September 23, 2000. On September 27, 2000, Arthur told his wife he did not feel right and to call paramedics. Arthur was taken to the hospital. That night, Clifford performed an exploratory procedure in which he claims to have found a splenic artery aneurism, unrelated to the earlier procedure, that was causing Arthur's symptoms. Arthur died a few days later at the age of seventy-eight. No autopsy was performed. The Ebersoles sued Clifford for medical malpractice alleging his negligence proximately caused Arthur's death.
Pursuant to the trial court's scheduling order, the Ebersoles identified Dr. Jeffrey B. Mazin as their only expert on medical causation. According to Mazin, Clifford was negligent because he (1) failed to recognize that Arthur was bleeding internally following the laparascopic procedure, and (2) failed to recognize and treat a pancreatic injury that Clifford caused during either the laparascopic procedure or the subsequent exploratory procedure. He opined with "reasonable medical probability" that the unrecognized bleed and/or unrecognized pancreatic injury caused Arthur's death.
Clifford filed a "Motion to Strike/Robinson Challenge of Plaintiff's Expert." Following a hearing, the trial court sustained Clifford's challenge. The trial court then granted Clifford's no-evidence motion for summary judgment. The sole question presented in this appeal is whether the trial court erred in sustaining Clifford's challenge to the Ebersoles' expert.
We review rulings on expert testimony for an abuse of discretion. See E.I. du Pont de Nemours Co. v. Robinson, 923 S.W.2d 549, 558 (Tex. 1995). A trial court abuses its discretion only if it acts without reference to any guiding rules or principles. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex. 1985).
To be admissible, expert testimony must be based on a reliable foundation. Gammill v. Jack Williams Chevrolet, Inc., 972 S.W.2d 713, 726 (Tex. 1998); Robinson, 923 S.W.2d at 556. In determining reliability, the trial court should evaluate the methods, analysis, and principles relied on by the expert in reaching his opinion and ensure that the opinion has a reliable basis in the expert's discipline. Gammill, 972 S.W.2d at 725-26. Expert testimony is unreliable if the court concludes that there is too great an "analytical gap" between the data and the proffered opinion. Gammill, 972 S.W.2d at 726.
It is not disputed that the only evidence the Ebersoles possess that Clifford's negligence caused Arthur's death is the affidavit of Mazin. Once Clifford challenged Mazin's opinion, it was the Ebersoles' burden to establish the reliability of that opinion. See Robinson, 923 S.W.2d at 557. In his affidavit, Mazin opines that an "unrecognized bleed" and/or an "unrecognized pancreatic injury" proximately caused Arthur's death. The only basis the Ebersoles provide to support the opinion regarding the unrecognized bleed is Mazzin's affidavit stating Arthur's medical records show Arthur had symptoms "consistent" with an internal hemorrhage. Without any explanation, Mazin then opines that a CT scan would have revealed internal bleeding and concludes Arthur would not have died when he did had such bleeding been discovered. Mazin makes no effort to establish any factual or theoretical basis from which he made these conclusions. Mazin thus failed to provide the trial court with information from which it could evaluate the methods, analysis, or principles Mazin relied on in reaching his opinion that an unrecognized bleed caused Arthur's death. Gammill, 972 S.W.2d at 725-26.
Furthermore, Mazin has provided no basis, in fact or theory, for his conclusion that Arthur's death was caused by Clifford's failure to recognize or treat a pancreatic injury. Instead, he merely asserts it is "obvious" from a review of Arthur's medical records that a pancreatic injury "caused a leak of the digestive enzymes from the pancreas and a subsequent irritation and inflammation of Mr. Ebersoles internal organs and sepsis." Again, Mazin provided the trial court with no information from which it could evaluate the reliability of this opinion. See Gammill, 972 S.W.2d at 725-26.
Additionally, in his motion to strike, Clifford maintained Mazin's opinion was not reliable because he did not rule out other plausible causes of death, including a splenic artery aneurysm and hemolytic anemia. The Ebersoles acknowledge that for Mazin's opinion to be reliable, he was required to rule out other plausible causes of Arthur's death with reasonable certainty. See Merrell Dow Pharmaceuticals v. Havner, 953 S.W.2d 706, 720 (Tex. 1997). While the Ebersoles argue Mazin properly ruled out Clifford's leukemia as a cause of death, they have directed us to nothing in the record to show Mazin even addressed the other plausible causes of death. Under these circumstances, we cannot conclude the trial court abused its discretion in sustaining Clifford's objection to Mazin's affidavit. We overrule the sole point of error and affirm the trial court's judgment.