Johnson v. Harris, 546 S.W.3d 293

Plaintiff Tanyee Johnson sued two plastic surgeons (Drs. Harris and Rafael) after a bilateral breast reduction using a free nipple graft left her with necrosis and eventual bilateral mastectomy.
Johnson designated a single liability expert, Dr. Herbert D. Stern (board‑certified plastic surgeon practicing in Florida), who had performed only ~2–3 breast reductions/year recently and whose last free nipple graft was ~7 years before his deposition (~4 years before Johnson’s surgery).
Drs. Harris and Rafael moved to strike Dr. Stern as unqualified; the trial court struck his opinions, granted summary judgment/motion to dismiss, and dismissed the case as to both defendants.
Johnson appealed, arguing (1) the court lacked authority to dismiss the suit just for striking an expert, and (2) the court abused its discretion in excluding Dr. Stern under the MLIA expert‑qualification statute and Texas Rule of Evidence 702.
The appellate court considered whether Dr. Stern’s knowledge of the specific free nipple graft procedure was too "stale," whether he was qualified to opine on post‑operative care and anemia, and whether any exclusion was harmless.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the trial court could dismiss the suit after striking the plaintiff's sole liability expert	Johnson: dismissal was improper and she should've been allowed time to obtain a new expert/continuance	Defendants: dismissal appropriate after expert strike; Dr. Rafael also obtained summary judgment	Dismissal authority question waived because Johnson failed to object below; any procedural error is waived.
Whether Dr. Stern was qualified under the MLIA (§74.401) to opine about the free nipple graft procedure (staleness of performance)	Johnson: Larson warns not to narrow qualifications too tightly; 4‑year gap is not disqualifying	Defendants: the expert hadn’t done the specific procedure recently enough; standards may have changed	No abuse of discretion in excluding procedure‑specific opinions—Johnson did not show Dr. Stern’s knowledge remained current.
Whether Dr. Stern was admissible under Rule 702 for opinions on post‑operative care and anemia (general surgical care/infection causation)	Johnson: Dr. Stern has general plastic surgery experience and can opine on post‑op infection management and preop anemia risks	Defendants: not an infectious‑disease specialist; opinions speculative as to causation	Trial court would have erred to exclude general post‑op opinions, but any error was harmless because Dr. Stern’s causation testimony was speculative and insufficient to support a verdict.

Larson v. Downing, 197 S.W.3d 303 (Tex. 2006) (trial court may exclude expert whose specific procedural experience is too remote; close calls defer to trial court)
Broders v. Heise, 924 S.W.2d 148 (Tex. 1996) (trial court gatekeeper role; proponent bears burden to show expert qualification)
Cooper Tire & Rubber Co. v. Mendez, 204 S.W.3d 797 (Tex. 2006) (expert must be qualified on the actual subject of testimony)
In re Commitment of Bohannan, 388 S.W.3d 296 (Tex. 2012) (flexible application of Rule 702; focus on subject matter expertise)
Keo v. Vu, 76 S.W.3d 725 (Tex. App.—Houston [1st Dist.] 2002) (plastic surgeon qualified to testify about general postoperative infection care even if not specialist in infectious disease)