William Alec Tisdall, M.D. and William A. Tisdall, M.D., P.A. D/B/A Spine & Joint Pain Specialists v. Thomas Varebrook and Rebecca Varebrook
04-19-00538-CV
| Tex. App. | Jul 28, 2021Background
- On May 27, 2015 Dr. William Tisdall administered multiple steroid injections to patient Thomas Varebrook, including a left sacroiliac (SI) joint injection. Two weeks later Thomas developed a septic left SI joint, required multiple surgeries and hospitalizations, developed sepsis, and cannot return to prior police work.
- The Varebrooks sued for medical negligence, alleging failure to examine, unnecessary left‑side injection, and failure to use proper sterile technique; damages awarded by jury totaled roughly $2.5 million to Thomas and modest damages to Rebecca.
- A critical factual dispute at trial concerned whether Dr. Tisdall was physically in the procedure room prior to the injections; parties introduced an electronic chart audit trail (showing time stamps and computer IDs) and an anesthesia record to create competing timelines.
- The Varebrooks introduced five independent medical examinations (IMEs) done for Illinois pension proceedings, each concluding Thomas could not perform police duties; defense objected under Texas Rule of Evidence 403 as cumulative/prejudicial.
- During trial Rebecca (the wife) testified she would not have sued unless she was certain Tisdall was negligent; the court sustained an objection and instructed the jury to disregard; defense later moved for mistrial.
Issues
| Issue | Plaintiff's Argument (Varebrook) | Defendant's Argument (Tisdall) | Held |
|---|---|---|---|
| Whether trial court erred by allowing rebuttal jury argument about the audit trail/computer IDs | Varebrooks argued the audit trail plus anesthesia record and testimony supported arguing Tisdall was not in the room before injections | Tisdall argued the argument was improper and harmful; trial court abused discretion by permitting it | Court held Tisdall invited/provoked the audit‑trail argument by introducing and relying on it in his own closing, so complaint fails and is overruled |
| Whether admission of five IMEs was inadmissible cumulative/unfairly prejudicial (Rule 403) | IMEs were probative on extent/duration of disability and admissible because separate physicians and examinations at different times | Tisdall argued the five IMEs were needlessly cumulative and unfairly prejudicial because they all concluded disability | Court held IMEs were probative and not needlessly cumulative; even if erroneous their admission was harmless/waived because similar testimony about the IMEs was admitted without objection |
| Whether trial court abused discretion by denying mistrial after Rebecca’s remark that she was "100 percent" sure Tisdall was negligent | Varebrooks argued the remark was personal and cured by the court’s prompt instruction to disregard | Tisdall argued remark violated motion in limine and warranted mistrial; moved for mistrial after a weekend and many subsequent questions | Court held the mistrial motion was untimely (not preserved) and, in any event, the immediate instruction to disregard cured any harm; mistrial denial was not an abuse of discretion |
Key Cases Cited
- Living Ctrs. of Tex., Inc. v. Penalver, 256 S.W.3d 678 (Tex. 2008) (standards for incurable jury argument and invited error)
- Standard Fire Ins. Co. v. Reese, 584 S.W.2d 835 (Tex. 1979) (requirements to preserve jury‑argument complaint)
- Phillips v. Bramlett, 288 S.W.3d 876 (Tex. 2009) (incurable argument may be raised in motion for new trial)
- Volkswagen of Am., Inc. v. Ramirez, 159 S.W.3d 897 (Tex. 2005) (admission error waived if similar evidence later admitted without objection)
- Fleming v. Wilson, 610 S.W.3d 18 (Tex. 2020) (abuse of discretion standard for evidentiary rulings)
- GTE Southwest, Inc. v. Bruce, 998 S.W.2d 605 (Tex. 1999) (harmless‑error standard for evidentiary rulings)