Opinion
05-22-00366-CV
06-28-2023
GLORIA GARZA, ALIX GARZA, SALLY VARELA AND AMY LOPEZ, Appellants v. ANAS W. SALEH, M.D., KENNETH C. RANEY, III, M.D., ANDMETHODIST HOSPITALS OF DALLAS D/B/A METHODIST DALLASMEDICAL CENTER, Appellees
On Appeal from the 95th District Court Dallas County, Texas Trial Court Cause No. DC-19-04949
Before Justices Carlyle, Garcia, and Wright
The Honorable Carolyn Wright, Justice, Assigned
MEMORANDUM OPINION
CORY L. CARLYLE, JUSTICE
The Garza Heirs, Gloria Garza, Alix Garza, Sally Varela, and Amy Lopez, appeal from a summary judgment granted in favor of Methodist Hospitals of Dallas. Due primarily to the state of the record and the procedural oddities of the case, we affirm in this memorandum opinion. See Tex. R. App. P. 47.4.
Armando Garza died in February 2016 after receiving treatment at a Methodist facility. In April 2019, the Garza Heirs sued Methodist and his treating physicians alleging that Mr. Garza's death resulted from their negligent care.
The Garza Heirs designated Dr. Marc Catalano to testify as an expert "on the standards of care, deviations therefrom and negligence of physicians caring for Armando Garza February 9-14, 2017 while a patient at Defendant Methodist Dallas Medical Center and causation." With their designation, the Garza Heirs served Dr. Catalano's CV, his initial expert report dated July 13, 2019, and an addendum to that report, dated December 30, 2020.
At his March 2021 deposition, Dr. Catalano stated that, beyond testifying about Mr. Garza's treating physicians, he intended to offer opinions about the care provided by Methodist's nurses. Methodist objected and filed a motion to exclude any such testimony, arguing that Dr. Catalano was not qualified to testify on the standard of care applicable to Methodist's nurses, breach of those standards, or nursing causation. Methodist further sought exclusion on grounds that: (1) the Garza Heirs failed to timely designate Dr. Catalano as a testifying expert on nursing issues; (2) Dr. Catalano's expert reports did not adequately disclose any nursing-related opinions; (3) Dr. Catalano's testimony on nursing issues was irrelevant and unreliable under evidentiary rule 702 and the principles established in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), and E.I. du Pont de Nemours & Co. v. Robinson, 923 S.W.2d 549 (Tex. 1995); and (4) the danger of unfair prejudice, confusing the issues, or misleading the jury substantially outweighed the probative value of Dr. Catalano's nursing opinions under evidentiary rule 403. Methodist's motion also requested a Daubert/Robinson hearing at which Dr. Catalano would submit to cross-examination on issues relevant to the admissibility of his opinions.
For purposes of this opinion, the term "nursing causation" refers to the causal link between nursing negligence and Mr. Garza's injuries.
The Garza Heirs attempted to file a response in advance of the May 2021 hearing on Methodist's motion, but the trial court rejected that response because it did not comply with local rules. It appears the trial court considered a version of the response the Garza Heirs emailed the court before the hearing, but the Garza Heirs never filed that response and, despite having been given the opportunity to supplement the record, the response has not been made part of the record on appeal.Because the response is not formally part of the record on appeal, we cannot consider it. See Burke v. Ins. Auto Auctions Corp., 169 S.W.3d 771, 775 (Tex. App.-Dallas 2005, pet. denied).
We granted the Garza Heirs leave to supplement the record with a filed version of the response considered by the trial court, but the Garza Heirs did not comply with our order. We later granted Methodist's request to strike the unfiled response from the appendix submitted with the Garza Heirs' opening brief.
At the hearing, counsel for the Garza Heirs agreed they did not designate Dr. Catalano as a nursing negligence expert. And despite admitting awareness that Methodist's motion requested a Daubert/Robinson hearing, counsel for the Garza Heirs said he was unaware the trial court intended to treat the hearing on Methodist's motion as such. Thus, counsel neither arranged to have Dr. Catalano testify nor produced any additional evidence to support his opinions' admissibility. Counsel did not request a continuance and did not request an additional opportunity to supplement the record prior to the court's ruling.
Instead, counsel referred to the Garza Heirs' unfiled response and argued generally that: (1) despite their failure to timely designate Dr. Catalano as an expert on nursing negligence, the trial court had discretion to allow his opinion testimony on that issue; (2) Dr. Catalano was qualified to testify on nursing negligence because he testified at his deposition that he "works with nurses," "depends on nurses," "communicates with them," "and expects them to communicate with him"; (3) Dr. Catalano's report adequately disclosed nursing-related opinions because it criticized the care provided by certain Methodist nurses, especially their failure to report relevant information to Mr. Garza's physicians, ultimately contributing to Mr. Garza's death; and (4) Dr. Catalano's timely designation as a causation witness was not limited to physicians, and thus he could offer opinions on nursing causation even if he could not offer opinions on nursing negligence.
The day after the hearing, the trial court entered an order granting Methodist's motion and excluding Dr. Catalano's opinions "related to the nursing standard of care, breach of that nursing standard, causation as to nurses, and any negligence of Defendant Methodist." The trial court did not exclude Dr. Catalano's testimony on physician negligence or on causation unrelated to Methodist's nurses.
Shortly thereafter, Methodist filed a traditional and no-evidence motion for summary judgment arguing the Garza Heirs lacked competent evidence to establish that nursing negligence proximately caused Mr. Garza's death. The same day, the Garza Heirs filed a motion for reconsideration asking the trial court to vacate its order excluding Dr. Catalano's nursing causation opinions. In that motion and for the first time, the Garza Heirs pointed the trial court to specific statements in Dr. Catalano's expert opinions they contend address nursing causation. And in a later supplement to the motion, the Garza Heirs attached a July 2021 affidavit from Dr. Catalano attempting to establish an evidentiary foundation for his nursing-related opinions.
The trial court denied the Garza Heirs' motion for reconsideration, sustained Methodist's objections to the Garza Heirs using Dr. Catalano's affidavit as summary judgment evidence, and granted summary judgment in Methodist's favor.
The Garza Heirs first challenge the trial court's ruling excluding Dr. Catalano's opinions on nursing causation. We review a trial court's decision to exclude expert testimony for abuse of discretion, Robinson, 923 S.W.3d at 549, and will uphold its evidentiary rulings if there are any legitimate bases for them, State Bar of Tex. v. Evans, 774 S.W.2d 656, 658 n.5 (Tex. 1989).
To qualify as an expert, a witness must possess specialized "knowledge, skill, experience, training, or education" that concerns "the actual subject about which they are offering an opinion." Broders v. Heise, 924 S.W.2d 148, 152-53 (Tex. 1996) (quoting Tex. R. Evid. 702). A qualified expert may offer opinion testimony only if it is both relevant and based on a reliable foundation. Gharda USA, Inc. v. Control Solutions, Inc., 464 S.W.3d 338, 348 (Tex. 2015). To recover for medical negligence, a plaintiff must prove a defendant's negligence proximately caused injury "to a reasonable medical probability." Columbia Rio Grande Healthcare, L.P. v. Hawley, 284 S.W.3d 851, 860 (Tex. 2009). This generally requires expert testimony explaining in a non-conclusory manner how and why the defendant's negligence caused the injury. Jelinek v. Casas, 328 S.W.3d 526, 533, 536 (Tex. 2010).
Here, Methodist objected that Dr. Catalano did not provide a nursing causation opinion and-because he was not qualified to opine on nursing negligence-Dr. Catalano lacked a reliable foundation for linking Mr. Garza's death to nursing negligence. As the proponents of Dr. Catalano's testimony, the Garza Heirs had the burden of demonstrating that Dr. Catalano had provided an admissible nursing causation opinion based on a reliable foundation. See Robinson, 923 S.W.2d at 557 ("Once the party opposing the evidence objects, the proponent bears the burden of demonstrating its admissibility.").
We have long recognized that physicians may be qualified to testify about the negligence of nurses, physician assistants, nurse practitioners, or other healthcare professionals. See Williams v. Roland, No. 05-21-00073-CV, 2022 WL 2207158, at *8 (Tex. App.-Dallas June 21, 2022, pet. filed) (mem. op.). There must be some evidence showing the physician is familiar with the applicable standard of care. See Baylor Medical Center et al v. Wallace, 278 S.W.3d 552, 558 (Tex. App.-Dallas 2009, no pet.) (providing clear examples of ways doctors' expert reports may demonstrate qualification to opine on nursing or physician's assistant standards of care). The problem in this case is one of producing or sufficiently identifying an appropriate basis to support a conclusion that Dr. Catalano could testify as to the nursing standard of care. See id. As discussed, there is no written response to Methodist's motion to exclude in the record. And at the hearing on the motion, the Garza Heirs neither produced evidence nor specifically pointed the trial court to anything in the record to overcome Methodist's objection that Dr. Catalano was unfamiliar with the nursing standard of care based on his report.
Moreover, the Garza Heirs have not satisfactorily explained how the record shows Dr. Catalano could have a reliable foundation for providing a causation opinion attributing Mr. Garza's death to nursing negligence given: (1) he was not qualified to offer his own nursing negligence opinions; and (2) he did not rely on another qualified expert's nursing negligence opinions, as he admitted during his deposition. The trial court did not abuse its broad discretion by rejecting counsel's assertion at the hearing, unsupported by the record as it stands before this Court, that Dr. Catalano was qualified because he testified he works with nurses, relies on them, communicates with them, and expects them to communicate with him.
The Garza Heirs suggest that, even if Dr. Catalano's nursing negligence opinions were excludable, excluding his nursing causation opinions was unnecessary because they could "tie Dr. Catalano's expertise into causation" to their designated nursing expert's opinions on negligence. Often, this would be no issue, but Dr. Catalano admittedly did not rely on the nursing expert's negligence report in preparing his initial report and the Garza Heirs do not sufficiently explain how they would use the other expert's opinion to cure foundational deficiencies in his nursing causation opinions. W e must reject the Garza Heirs' arguments to the extent they rely on evidence submitted in connection with their motion for reconsideration, including Dr. Catalano's July 2021 affidavit claiming post-hoc reliance on the expert nursing report. The Garza Heirs cite no authority requiring the trial court to consider that evidence, particularly when they made no showing that the evidence would not have been available to them with reasonable diligence before the trial court ruled on the motion to exclude. See Aspenwood Apartments Partners, LP v. Harris Cnty. Appraisal Dist., No. 01-20-00335-CV, 2022 WL 1249956, at *7-8 (Tex. App.- Houston [1st Dist.] April 28, 2022, no pet.) (mem. op.).
In any event, the issue before the trial court was whether the Garza Heirs met their burden of establishing the admissibility of Dr. Catalano's disclosed nursing causation opinions; it was not whether Dr. Catalano could provide an admissible nursing causation opinion if prompted to rely on a different foundation. On this record, we cannot conclude the trial court abused its wide discretion by determining that the Garza Heirs failed to meet their burden.
Finally, because we have otherwise rejected the Garza Heirs' sole argument as to the summary judgment grant, that the trial court based its ruling on its improper exclusion of Dr. Catalano's nursing causation opinions, we will not disturb the summary judgment ruling.
We affirm the trial court's judgment.
JUDGMENT
In accordance with this Court's opinion of this date, the judgment of the trial court is AFFIRMED.
It is ORDERED that appellee ANAS W. SALEH, M.D., KENNETH C. RANEY, III, M.D., AND METHODIST HOSPITALS OF DALLAS D/B/A METHODIST DALLAS MEDICAL CENTER recover their costs of this appeal from appellant GLORIA GARZA, ALIX GARZA, SALLY VARELA AND AMY LOPEZ.
Judgment entered this 28th day of June, 2023.