Farmers Texas County Mutual Insurance Company v. Ashlee Elizabeth Pagan
453 S.W.3d 454
Tex. App.
2014
Check Treatment

FARMERS TEXAS COUNTY MUTUAL INSURANCE COMPANY, Appellant v. Ashlee Elizabeth PAGAN, Appellee

NO. 14-13-00048-CV

Court of Appeals of Texas, Houston (14th Dist.)

Opinions Filed December 16, 2014.

458 S.W.3d 458

Mitchell Wayne Templeton, Beaumont, TX, for Appellant.

Jon B. Burmeister, B. Adam Terrell, Beaumont, TX, for Appellee.

Panel consists of Justices McCally, Busby, and Donovan

OPINION

J. Brett Busby, Justice

Appellant Farmers Texas County Mutual Insurance Company appeals from a final judgment following a jury trial in which the only contested issues were the cause and extent of the personal injuries appellee Ashlee Elizabeth Pagan suffered in a car wreck. Farmers contends the trial court abused its discretion when it excluded evidence regarding an incident Pagan had with a horse, which Farmers alleged was a potential cause of the personal injuries at issue here. Farmers also argues the evidence regarding the cause and extent of Pagan‘s injuries is factually insufficient to support the judgment. Because we conclude that Farmers did not establish that the trial court abused its discretion when it excluded Farmers’ proffered evidence and that the admitted evidence is factually sufficient to support the judgment, we overrule Farmers’ issues and affirm the trial court‘s judgment.

BACKGROUND

In March 2008, Pagan‘s truck struck another car that had turned in front of her. The impact was hard enough that Pagan‘s truck bounced off the other car and struck a fence in a nearby parking lot. Pagan alleged that the crash injured various parts of her body, including her neck and1 left shoulder. Pagan filed suit alleging the driver of the other car was negligent and caused the crash that resulted in her injuries as well as property damage to her truck. Seeking coverage under her underinsured motorist insurance policy, Pagan added Farmers as a defendant in the lawsuit. After settling with the other driver, the case proceeded to a jury trial in which the only disputed issues were the cause and the extent of Pagan‘s alleged personal injuries.

Before trial, the court granted Pagan‘s motion in limine requiring Farmers to approach the bench before referencing in any manner (1) any injuries Pagan may have suffered after the 2008 car crash, or (2) a specific incident in April 2009 when a horse spooked as Pagan was leading it into a barn, pushing her down.

At trial, Pagan testified about the car crash and said that she started feeling the physical effects of the accident the same evening when her neck, back, and shoulder started hurting. Pagan also testified that she went to the hospital the day after the crash, where she reported the problems she was having with her neck, back, and left foot as a result of the crash.2 The hospital‘s records confirmed Pagan‘s report of back, neck, and collarbone pain and documented point-tenderness and limited range of motion in her back and neck. Pagan testified that she continued having pain in her neck and shoulder and that she reported those issues to personnel at the office of Dr. Faseler, her family doctor, during most, if not all, of her subsequent appointments even though those reports are not noted in her records. The records do reflect, however, that Dr. Faseler pre-

scribed pain medication for Pagan. Pagan also testified regarding the negative impact the injuries she suffered during the crash have had on her life activities.

Pagan‘s boyfriend, Josh McFarland, confirmed that Pagan began experiencing a great deal of pain and discomfort in her neck and shoulder the evening of the crash. McFarland also testified regarding the negative impact the injuries caused by the crash have had on Pagan‘s ability to participate in her normal activities.

Finally, the jury heard from Dr. Carl Beaudry, an orthopedic surgeon treating Pagan. Dr. Beaudry testified that Pagan sought treatment for longstanding pain in her neck and left shoulder. Dr. Beaudry further testified that Pagan had a degenerative disk in her neck as well as chronic bursitis, tendinitis, and a rotator cuff problem in her left shoulder. Because there had been no history of shoulder problems before the crash, Dr. Beaudry opined that Pagan‘s current problems with her shoulder were caused by the crash. Dr. Beaudry further opined that, based on reasonable medical probability, Pagan would need arthroscopic shoulder surgery in the near future. In Dr. Beaudry‘s opinion, the purpose of that surgery would be to treat problems caused by the March 2008 crash, and it would cost between $20,000 and $25,000.

Before the case was submitted to the jury, Farmers made an offer of proof in an effort to admit five items of evidence it argued were related to the April 2009 horse incident. First, Farmers sought to introduce Pagan‘s answer to Interrogatory 13, which asked her to list any injuries she sustained during the prior ten-year period as well as any medical providers she saw as a result. Pagan answered that she “went to Diagnostic Health in Port Arthur, Texas in April of 2009 after I fell off a horse.” Farmers argued it should be allowed to read that answer to the jury because the horse incident was at least partially responsible for the injuries Pagan claimed were caused entirely by the March 2008 crash.

Second, Farmers sought the admission of Pagan‘s April 2009 medical records from Diagnostic Health, Port Arthur. The Diagnostic Health records documented x-rays taken of Pagan‘s shoulders and spine in response to a referral by Dr. Faseler, her family doctor, soon after the 2009 horse incident. In addition to reporting Pagan‘s spine and shoulders were normal, the records contained the following: “Clinical History: Trampled by horse, contusions.”

Third, Farmers sought to introduce additional excerpts of her records from Dr. Faseler. Farmers sought to admit these excerpts because they did not show Pagan complaining about a sore neck and shoulder until April 7, 2009, which was after the horse incident. Farmers argued the proffered medical records should be admitted because they were relevant to its contention that the 2009 horse incident was at least partially responsible for the injuries Pagan claimed were the exclusive result of the March 2008 crash.

Fourth, Farmers cross-examined Pagan outside the presence of the jury as part of its offer of proof. Farmers asked Pagan about the notation in the Diagnostic Health records that she had been trampled by a horse. While Pagan admitted Dr. Faseler had referred her to Diagnostic Health for x-rays in the wake of the 2009 horse incident, she denied that she had been trampled. Instead, she explained that the 2009 horse incident occurred when she was walking her horse inside a barn. According to Pagan, the horse spooked as she was trying to lead it through a narrow door; the horse then darted forward, pushed her, and she fell down. Pagan

denied that the horse stepped on her during the incident. Pagan admitted she went to see her family doctor after the incident at the insistence of her parents. When asked if she had any explanation why the Diagnostic Health records described the incident as being trampled by a horse, Pagan offered that the physician‘s assistant she frequently saw in Dr. Faseler‘s office often did not write a lot of things down during her visits and that the physician‘s assistant had probably heard something about a horse accident and mistakenly assumed Pagan had been trampled by a horse. Pagan also admitted that five months after the 2009 horse incident she returned to Diagnostic Health for an MRI of her left shoulder. Finally, Pagan testified that she did not believe the 2009 horse incident was related to the injuries she was complaining about in her lawsuit against Farmers.

Fifth, Farmers offered additional deposition testimony by Dr. Beaudry, her treating orthopedic surgeon. Farmers offered this additional deposition testimony as one entire package.3 The proffered deposition testimony included Dr. Beaudry‘s concessions that he had not seen any medical records containing a reference to Pagan being trampled by a horse—even though such records were in his own files—and he was not otherwise aware that she had been trampled by a horse. He also testified that he had no reason to question the accuracy of the Diagnostic Health records noting that Pagan had been trampled by a horse. Dr. Beaudry said this would be an important piece of a patient‘s medical history that he would want to know before treating that patient. In addition, Dr. Beaudry said he would want to know when the horse trampling occurred relative to the 2008 car crash. Dr. Beaudry also testified it is “possible” that a horse trampling its rider “could cause an injury similar to the one that Ms. Pagan is complaining about and seeking treatment for.” Finally, Dr. Beaudry testified that if Pagan had been trampled by a horse, it would be prudent for a doctor to perform the same type of diagnostic testing that she had been undergoing to confirm whether the trampling had injured her.

In addition to the questions related to the 2009 horse incident, the proffered deposition testimony also included questions regarding other injuries and illnesses experienced by Pagan unrelated to either the 2008 crash or the 2009 horse incident. These included a 2003 car accident in which Pagan injured a finger. They also included questions regarding a separate 2003 horse incident in which Pagan was bucked off a horse and suffered contusions. The questions revealed that Pagan was sent for a CAT scan that discovered she had a defective kidney which led to her having kidney surgery. The questions also revealed that Pagan had difficulty with anxiety and depression and had been prescribed medication to address those issues. The proffered deposition questions also addressed medical records from M.D. Anderson from August 2009; these lacked any mention that Pagan was experiencing neck and shoulder issues but did reveal that she was to receive a “colposcopy.”

Pagan objected that there was no evidence linking the incidents referred to in these offers with the injuries for which she sought damages, and the trial court denied all of Farmers’ tenders of evidence. The court then submitted a single question to the jury, which found that Pagan was enti-

tled to a total recovery of $50,000 as actual damages, including $20,000 for future medical expenses. The trial court offset against the jury‘s finding $25,000 for the amount the driver of the other car paid in settlement of Pagan‘s claim, signing a final judgment awarding Pagan $25,000 plus prejudgment and post-judgment interest. This appeal followed.

ANALYSIS

I. Farmers did not establish that the trial court abused its discretion when it excluded Farmers’ proffered evidence regarding Pagan‘s April 2009 horse incident.

In its first issue, Farmers contends the trial court abused its discretion when it excluded the five items of evidence detailed above because they were relevant to the causation, duration, and extent of Pagan‘s alleged injuries caused by the 2008 car crash as well as the resulting medical damages.

A. Standard of review

The decision to admit or exclude evidence lies within the sound discretion of the trial court. ; . A trial court exceeds its discretion if it acts in an arbitrary or unreasonable manner or without reference to guiding rules or principles. (citing ). When reviewing matters committed to the trial court‘s discretion, a reviewing court may not substitute its own judgment for the trial court‘s judgment. Id. Thus, the question is not whether this Court would have admitted the evidence. Rather, an appellate court will uphold the trial court‘s evidentiary ruling if there is any legitimate basis for the ruling, even if that ground was not raised in the trial court. . Therefore, we examine all bases for upholding the trial court‘s decision that are suggested by the record or urged by the parties. Id.

Relevant evidence is generally admissible. Tex. R. Evid. 402. A trial court may exclude relevant evidence, however, “if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, or needless presentation of cumulative evidence.” Tex. R. Evid. 403; see . In addition, a court may exclude an expert opinion when it is conclusory or the basis offered for it is unreliable. Tex. R. Evid. 702; .

To obtain reversal of a judgment based on a claimed error in excluding evidence, a party must show that the trial court did in fact err and that the error probably resulted in rendition of an improper judgment. . To determine whether excluded evidence probably resulted in the rendition of an improper judgment, an appellate court reviews the entire record. (citing ). To challenge a trial court‘s evidentiary ruling successfully, the complaining party must demonstrate that the judgment turns on the particular evidence that was excluded or admitted. (citing Inter-

state Northborough P‘ship, ). A reviewing court ordinarily will not reverse a judgment because a trial court erroneously excluded evidence when the excluded evidence is cumulative or not controlling on a material issue dispositive to the case. Id.

B. The trial court did not abuse its discretion when it excluded Farmers’ proffered evidence.

Farmers argues that the trial court abused its discretion when it excluded evidence related to the 2009 horse incident. Farmers begins by pointing out the general principle that a defendant may cross-examine a plaintiff regarding previous injuries, claims, and actions when they are relevant to show that the plaintiff‘s present physical condition is not the result of the injury presently sued for, but was caused in whole or in part by an earlier or subsequent injury or a pre-existing condition. . In addition, a defendant may introduce evidence—typically an expert opinion—regarding another “plausible cause” of the plaintiff‘s injury, and the plaintiff must then exclude that cause with reasonable certainty. .

But these general principles “of alternative causation [are] not a free ticket to admission of evidence,” which must still meet admissibility requirements including relevance, reliability of expert testimony4 under Rule 702, and the Rule 403 balancing test. . Under these requirements, a defendant must provide a competent factual basis showing that an alternative cause is a plausible one before evidence of that cause will be presented to the jury. See (holding reliability requirement applies equally to defense expert witness testifying about alternative causes of plaintiff‘s injury); (concluding that although defensive theories regarding alternative causes need not be established “within reasonable medical probability,” there must be “factual support in the record justifying [their] application“);5 (“Without factual support in the record justifying the application of these [alternate] theories [of causation], they rise to little more than conjecture....“). Admitting evidence of another cause without such a showing is nothing more than an invitation for the jury to speculate about causation—a circumstance the Supreme Court of Texas has consistently condemned. .

In this appeal, Farmers contends the jury should have been allowed to decide “[w]hether [Pagan‘s] 2009 horse trampling accident proximately caused, in whole or in

part, [her present] incapacity.” In Farmers’ view, the five excluded categories of evidence were admissible because (1) the 2009 horse incident occurred after the March 2008 car crash, (2) the incident “very well could have caused [Pagan‘s lasting neck and shoulder injuries at issue in this] lawsuit,” and (3) the incident happened closer in time to the testing and treatment of those injuries. Farmers offered no competent evidence supporting its second proposition, however. We also conclude Farmers has not demonstrated that the trial court abused its discretion when it excluded the evidence because the court could reasonably have done so pursuant to Rules 403 and 702. Nor has Farmers shown that any error in excluding the evidence was harmful. Below, we explain these conclusions with respect to each of the excluded categories of evidence.

First, in the excluded interrogatory answer, Pagan stated only that she had gone to Diagnostic Health in April 2009 after she fell off a horse. Pagan did not state in her answer that she had injured her neck or shoulder as a result of that fall. Second, the proffered Diagnostic Health records noted Pagan had been trampled by a horse and had suffered immediate injuries in the form of contusions (i.e. bruises); they did not show that Pagan had suffered a lasting injury to her neck or shoulder because the x-rays taken soon after the incident revealed that her spine and shoulders were normal. As to these two items of evidence, the court could reasonably conclude that informing the jury about a horse incident with no apparent connection to the lasting injuries at issue in this case would confuse the issues and mislead the jury. See Tex. R. Evid. 403.

Third, the excluded excerpts of Dr. Faseler‘s medical records note that Pagan reported neck and shoulder pain at a time that was shortly after the 2009 horse incident, but they do not mention the incident. Even if the records discussed above regarding the 2009 horse incident are considered together with the subsequent reporting of pain, however, this evidence of correlation is not a competent factual basis for lay jurors to conclude that it is plausible the horse incident caused the lasting injuries for which Pagan recovered damages in this case.

As the supreme court has explained, competent evidence is required to show a causal connection between an occurrence and a physical condition, and care must be taken to avoid the fallacy that a temporal correlation between the two implies causation. ; . Although correlation evidence may be probative when combined with other evidence of causation, see , there is no other evidence here that the 2009 horse incident caused the neck and shoulder injuries at issue. Furthermore, Farmers did not offer expert testimony to show that its correlation evidence supported causation, and this case is not one of the “limited circumstances” in which expert testimony regarding the causal connection between an occurrence and a physical condition is unnecessary. . Shortly after the horse incident, Pagan both reported pain and received normal x-rays. Without expert assistance, the jury was ill-equipped to weigh these conflicting facts and determine whether the horse incident caused Pagan‘s lasting injuries. See . Under these circumstances, the trial court could reasonably have concluded that any probative value of the excluded evidence was substantially outweighed by the danger of confusing and misleading

the jury by allowing it to speculate about causation based on nothing more than temporal correlation. See Tex. R. Evid. 403.

For the same reasons, Farmers cannot demonstrate harm from excluding its evidence of the 2009 horse incident and Pagan‘s subsequent reporting of pain. Because Farmers’ proffered evidence provides no factual basis for concluding that the horse incident was a plausible cause of the lasting injuries at issue here, Pagan‘s expert was not required to exclude that incident as a cause. (holding plaintiff need not disprove or discredit every other possible cause). Thus, we cannot say that the judgment turned on the excluded evidence regarding the horse incident.

The excluded excerpts of Dr. Faseler‘s medical records also showed no reports of neck or shoulder problems by Pagan in the months following the 2008 car wreck. To the extent that Farmers sought to admit the record excerpts for this purpose, Farmers had already made the same point to the jury based on other admitted evidence.6 Thus, the court could reasonably have excluded these records as needless presentation of cumulative evidence. See Tex. R. Evid. 403.

Fourth, in her excluded testimony, Pagan denied suffering any injury to her neck and shoulder as a result of the 2009 horse incident. The excluded testimony also addressed her 2003 car accident and the 2003 incident in which she was bucked off a horse. The trial court could reasonably have concluded that informing the jury about these incidents with no apparent connection to the injuries at issue in

this case would confuse the issues and mislead the jury. See Tex. R. Evid. 403.

Fifth, Dr. Beaudry‘s excluded deposition testimony was offered “in its entirety,” and Farmers’ counsel clarified in response to questions from the trial court that “[w]e want the whole thing in.” The excluded portions of his testimony addressed not only the 2009 horse incident but also Pagan‘s 2003 car accident and 2003 horse incident, her kidney surgery, her treatment for anxiety and depression, and her treatment at M.D. Anderson. The trial court could reasonably have concluded that disclosing such sensitive personal information that bore no apparent relationship to the injuries in question would be unfairly prejudicial and would confuse the issues and mislead the jury. See Tex. R. Evid. 403. In response to Pagan‘s objection that Farmers had not established a link between its proffered evidence and Pagan‘s injuries, Farmers did not limit its offer to testimony regarding the 2009 horse incident. Thus, the exclusion of these portions of Dr. Beaudry‘s testimony provides no ground for complaint on appeal. Tex. R. Evid. 105(b); see also (“It is well settled that where evidence is offered as a whole, only part of which is admissible, the Court does not commit error in sustaining an objection to such testimony, and in such case it is not the duty of the Court or the party objecting thereto to separate the admissible from the inadmissible.” (internal quotation marks omitted)).

Moreover, Dr. Beaudry‘s testimony is not reliable evidence that Pagan suffered an injury to her neck or shoulder as

a result of the 2009 horse incident, or that there was a link between the 2009 horse incident and her complaints at issue during the trial. In his offered deposition testimony, Dr. Beaudry stated that in his medical opinion it is “possible that an incident involving a horse trampling its rider could cause an injury similar to the ones that Ms. Pagan is complaining about.” But Dr. Beaudry had not reviewed the Diagnostic Health records regarding Pagan‘s treatment following the horse incident, so the only reason he was able to give for his opinion was that “being thrown off of a horse is a, you know, violent accident.... A lot of things can happen, you know.” Because Dr. Beaudry did not know what things happened during this particular horse incident, his opinion that trampling in general could possibly cause a similar injury is conclusory and unreliable. (“If no basis for the opinion is offered, or the basis provides no support, the opinion is merely a conclusory statement....“). Thus, to the extent Farmers offered Dr. Beaudry‘s opinion as evidence that the horse incident caused at least some of the injuries at issue, the trial court could reasonably have concluded that this opinion would not assist the jury. See Tex. R. Evid. 702.7

For these reasons, we hold the trial court did not abuse its discretion by ex-

Notes

1
Farmers stipulated that the other driver in the motor vehicle collision was solely negligent and that her negligence proximately caused the collision. Farmers also did not dispute that Pagan was an insured under the policy at issue. These are “other legitimate bases” for exclusion considered by the Majority. Pagan objected to all of Farmers’ proffered 2009 horse-incident evidence on the sole basis that Farmers did not bring expert testimony to establish a link between the 2009 horse incident and Pagan‘s shoulder injuries.
2
Pagan‘s foot injury has completely healed and is not at issue in this lawsuit. Though Pagan sought no medical assistance on the day of the 2008 MVA, she went to an emergency room physician the following day. The physician noted her neck and back complaints in two places on the intake. That form also provided two opportunities for the physician to mark or note a shoulder complaint; it isn‘t marked or noted. In the five visits Pagan made to a doctor between that emergency visit and the April 2009 horse incident, the word “shoulder” does not appear once in the medical records.
3
During its offer of proof, Farmers’ counsel informed the trial court that Farmers “would request that we be allowed to have the jury back in the box and that we be able to present this video evidence in its entirety.” However, Guevara does acknowledge that evidence of temporal proximity is relevant to causation. .
4
Contrary to our dissenting colleague‘s characterization, we do not hold that a defendant must also go further and prove that the plausible cause is, to a reasonable degree of medical certainty, a proximate cause. Dr. Beaudry had previously treated Pagan in 2003 in connection with a different MVA but was not her regular physician.
5
See also Harvey Brown & Melissa Davis, Eight Gates for Expert Witnesses: Fifteen Years Later, 52 Hous. L. Rev. 1, 9 n.37 (2014) (“[T]he defense expert who is only testifying as to possible causes does not have to provide a reliable basis for concluding that the identified cause is the most likely cause of the injury. But the defense expert nonetheless needs a reliable basis for an opinion that another cause is plausible; otherwise, the expert is engaging in pure speculation.“). This opinion fails to establish a causal connection to a reasonable degree of medical probability between the 2008 MVA and the degenerative disc as a matter of law.
6
Specifically, Farmers cross-examined Pagan in front of the jury about other portions of Dr. Faseler‘s records that were admitted into evidence. As Farmers pointed out, those records do not show that Pagan reported any neck or shoulder problems in the months following the 2008 car wreck.
7
At trial, Farmers stated that it wanted to admit evidence regarding the horse incident so it could “tell [the jury Pagan] was, in fact, injured by the horse.” On appeal, Farmers contends the evidence should have been admitted to allow the jury to decide “[w]hether [Pagan‘s] 2009 horse trampling accident proximately caused, in whole or part, [her present] incapacity.” Our dissenting colleague argues, however, that Farmers’ purpose in offering Dr. Beaudry‘s testimony was not in fact to prove that the horse incident could have caused the injuries at issue, but to show flaws in the reliability of Dr. Beaudry‘s differential diagnosis, and thus Farmers did not have to show that the horse incident was a plausible cause of the injuries before the evidence could be admitted. We disagree. Even if a reliability challenge could constitute a separate purpose for offering this evidence, Farmers did not mention that purpose to the trial court. Accordingly, we do not address whether the trial court would have erred in excluding the evidence if offered for that purpose. Cf. (holding that although affidavit of non-prosecution might have been admissible for impeachment, trial court did not abuse its discretion in excluding affidavit because it was not offered for that purpose).

cluding the evidence offered by Farmers. The trial court could reasonably have concluded under Rule 403 that any probative value of the evidence was substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, and under Rule 702 that Dr. Beaudry‘s opinion regarding horse incident causation was unreliable. We may uphold the court‘s ruling on these bases regardless of whether they were raised below. . Farmers also failed to show that any error in excluding this evidence was harmful. We therefore overrule Farmers’ first issue on appeal.

II. The evidence supporting the trial court‘s judgment is factually sufficient.

In its second issue, Farmers contends the evidence is factually insufficient to support the jury‘s findings on the causation, duration, and extent of Pagan‘s injuries as well as the amount of her medical damages.

In reviewing the factual sufficiency of the evidence, we must examine the entire record, considering both the evidence in favor of, and contrary to, the challenged findings. See ;

1986). When a party challenges the factual sufficiency of the evidence supporting a finding for which it did not have the burden of proof, we may set aside the verdict only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. See ; . The amount of evidence necessary to affirm is far less than the amount necessary to reverse a judgment. . This Court is not a factfinder. . Instead, the jury is the sole judge of the credibility of the witnesses and the weight to be given their testimony. Id. at 615-16. Therefore, we may not pass upon the witnesses’ credibility or substitute our judgment for that of the jury, even if the evidence would also support a different result. Id. If we determine the evidence is factually insufficient, we must detail the evidence relevant to the issue and state in what regard the contrary evidence greatly outweighs the evidence in support of the verdict; we need not do so when affirming a jury‘s verdict. .

Farmers contends that the evidence is factually insufficient to support the judgment. In making this argument, Farmers points out that (1) Pagan denied ambulance service at the scene of the car crash and did not seek medical attention until the day after the crash; (2) while Pagan did complain about pain in her neck, back, and foot when she went to the emergency

room the day after the crash, she did not specifically complain about pain in her shoulder; (3) there was no mention of the car crash or neck, back, and shoulder pain in Dr. Faseler‘s medical records until more than a year after the accident; (4) medical records from Pagan‘s November 2009 consultation with Dr. Talbert, an orthopedic doctor at Beaumont Bone & Joint Institute, indicate that Dr. Talbert concluded she had no indication of rotator cuff pathology, did not believe she would require surgery, and recommended only physical therapy; (5) Pagan sought a second opinion from Dr. Beaudry, who continued to run tests on Pagan and placed her on a conservative treatment plan through 2010 and into 2011; and (6) Pagan‘s medical records indicate she saw a neck specialist in May 2011 who did not believe she would require surgery on her neck. Farmers concludes by arguing that the evidence casts “serious doubt on whether [Pagan‘s] injuries” were caused by the 2008 car crash or “will require surgery in the future....”8

When evaluating the factual sufficiency of the evidence, we consider all the evidence. Therefore, we must also take into account evidence supporting the judgment that Farmers does not mention when it argues the evidence is factually insufficient. This evidence includes the testimony of both Pagan and her boyfriend that she began experiencing serious pain in her neck, shoulder, and back soon after the crash occurred, as well as the records from her hospital visit following the collision that document neck and back pain. Pagan also testified that she reported pain in her neck and shoulder to Dr. Faseler‘s nurse

in post-crash visits, and Dr. Faseler‘s records reflect that she was prescribed medication during one of those visits “for complaints of pain.” In addition, Farmers overlooks Dr. Beaudry‘s testimony that in his medical opinion (1) Pagan‘s shoulder and neck problems resulted from the 2008 collision; (2) Pagan would need surgery on her shoulder in the near future to address those problems; and (3) the cost of that surgery would be between $20,000 and $25,000. Farmers also does not acknowledge the testimony of both Pagan and her boyfriend regarding the impact that the 2008 crash has had on her, including the amount of pain she has suffered as well as the negative impact it has had on her ability to participate in those activities she enjoyed prior to the accident.

It was the province of the jury to resolve any conflicts in the evidence and to judge the credibility of the witnesses and the weight to be given to their testimony. . Having examined all of the evidence, we conclude the jury‘s answer to the sole question submitted to it was not so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. We overrule Farmers’ second issue on appeal.

CONCLUSION

Having overruled both issues raised by Farmers in this appeal, we affirm the trial court‘s judgment.

(McCally, J., dissenting).

J. Sharon McCally, Justice, dissenting.

I. Introduction

Farmers appeals urging reversible error in the exclusion of evidence and insufficiency of the evidence to support the personal injury judgment for damages. The Majority affirms. In my view, the Majority erroneously shifts plaintiff‘s burden to prove medical causation to the defendant to disprove an inadequate and incomplete differential diagnosis. I respectfully dissent.

II. Exclusion of Evidence

Few and far between are the cases in which the exclusion of evidence amounts to reversible error. This is one such case.

The timeline of what the Majority characterizes as Pagan‘s “lasting shoulder injury” places the excluded 2009 horse-incident evidence in context and thereby belies the conclusion the Majority reaches about its admissibility:

  • 3/2008. Pagan is in a motor vehicle accident (MVA). She does not report a shoulder injury at that time.
  • 4/2008-4/2009. Pagan sees her doctor five times in the year following the MVA and never once mentions her shoulder.
  • EXCLUDED. 4/2009. Pagan falls from a horse and suffers an injury. (Pagan sworn interrogatory response).
  • EXCLUDED. 4/2009. Pagan returns to her doctor and requests back and shoulder x-rays. (Faseler records).
  • EXCLUDED. 4/2009. Pagan reports to Diagnostic Health for the back and shoulder x-rays she requested. Diagnostic Health reports the history as: “Trampled by a horse, contusions.” (Diagnostic Health records).
  • Pagan‘s shoulder diagnostics and treatment continue from April 2009 with an uninterrupted course of x-rays, MRIs, repetitive steroid injections, repetitive pain medication, physiotherapy, and physical therapy. Surgery is recommended.

The Majority concludes that all evidence of Pagan‘s April 2009 fall from a horse was

properly excluded pursuant to (1) Rule 403 of the Texas Rules of Evidence because it would confuse the jury; and (2) Rule 702 of the Texas Rules of Evidence because Farmers did not prove the horse incident is a plausible cause of Pagan‘s injuries, in whole or in part.1

Addressing Rule 403, the Majority concludes there is no “factual correlation” between the 2009 horse incident and the “lasting injuries for which Pagan recovered damages in this case.” The statement is belied entirely by the medical records. The very first diagnostic study of Pagan‘s shoulder, an x-ray performed at Pagan‘s request in April 2009, bears the history: “Trampled by a horse, contusions.” Prior to April 2009, Pagan never complained of a shoulder injury,2 never received a diagnosis of shoulder injury, never received a pain pill for shoulder pain, never received an injection into her shoulder, and never had physiotherapy or physical therapy for the shoulder. But the Majority concludes that the jury would be confused because the April 2009 x-ray Pagan requested was normal. If the jury was confused about medical causation because the 2009 x-ray was normal, the jury would be no less confused that neither Pagan nor her physician requested an x-ray of the shoulder at any time in 2008 following the MVA.

Conversely, the factual correlation between the 2009 horse incident and the shoulder complaint is overwhelming. As mentioned, after Pagan fell from the horse in April 2009, she asked for shoulder and back x-rays; they were normal. She returned to her doctor, Dr. Faseler, in October 2009 with continued shoulder pain. In May 2010, Dr. Faseler referred Pagan to Dr. Beaudry for continued complaints of shoulder pain. Dr. Beaudry treated it with pain medication and steroid injections. Dr. Beaudry again saw Pagan for shoulder pain in January 2011. He referred her to a neurosurgeon who performed unsuccessful physiotherapy on Pagan‘s shoulder. Dr. Beaudry saw Pagan yet again for shoulder pain in July and August 2011. He conducted additional studies and prescribed additional pain medication and injections.

Rule 403 does not contemplate the exclusion of evidence merely because it is controverted or offers competing theories of causation. The jury might have believed Pagan‘s post-interrogatory testimony that she did not really fall or she wasn‘t really injured when the horse bumped her. The jury might have believed Pagan‘s testimony and that of her boyfriend that she really did suffer a shoulder injury in 2008. The jury might have believed that all of Pagan‘s injuries and all of Pagan‘s damages in the past and in the future are attributable to the 2008 MVA. In my view, however, neither the trial judge nor this court may “believe” the truth of Pagan‘s causation evidence to determine the admissibility of Farmers’ controverting evidence on causation. Causation was the only issue in this case. It was the role of

the jury to examine the disputed facts. But, the jury never knew there was a dispute about what caused Pagan‘s injuries because they never heard a word about her falling from a horse. If causation evidence is “confusing” under Rule 403 because it creates a dispute, then Rule 403 excludes all but evidence of sole cause. Such a construction of the rule finds no support in Texas law.

Next, the Majority affirms the exclusion of the medical records and testimony under Rule 702. Farmers proffered deposition testimony from Pagan‘s medical causation expert, showing that:

  • Dr. Beaudry, in rendering his opinion about the cause of Pagan‘s 2012 injuries, was completely unaware that Pagan had suffered an intervening fall from a horse for which she received medical treatment to her neck and shoulder;
  • Dr. Beaudry felt that information would have been “an important piece of medical history that [he] would have liked to have known before treating her“; and most importantly
  • Dr. Beaudry agreed it is “possible that an incident involving a horse trampling its rider could cause an injury similar to the ones that Ms. Pagan is complaining about and seeking treatment [for].”

Though he rendered a causation opinion on the basis of a differential diagnosis, Dr. Beaudry had not seen any of the medical records (1) from the emergency room visit following the 2008 MVA; (2) from Pagan‘s regular physician for April 2008 to April 2009; or (3) from the Diagnostic Health report, which noted Pagan was trampled by a horse.

The Majority acknowledges that the differential diagnosis, as part of Pagan‘s substantive burden of proof, requires Dr. Beaudry to exclude other plausible causes of the injuries for which Pagan seeks compensation “with reasonable certainty.” See (quoting ). But, the Majority characterizes Dr. Beaudry‘s above statements as “expert opinions.” The Majority then concludes that because Farmers elicited those “opinions” from Pagan‘s expert, Farmers had the burden to establish that the “opinions” were reliable. Yet, Farmers failed to prove those “opinions” were reliable by showing Dr. Beaudry had a reliable basis for reaching the “opinions“—such as looking at the records Pagan did not give him. In short, holds the Majority, the trial court properly excluded Dr. Beaudry‘s “opinion” that the fall from a horse is a possible cause of Pagan‘s injuries because Farmers did not establish that Pagan‘s expert had a reliable basis for saying it is a possible cause.

The Majority‘s authority for placing this “plausible cause” evidentiary burden on Farmers is confusing. The Majority relies upon cases that apply Rule 702 to plaintiffs’ experts and defendants’ experts alike. But Farmers was not eliciting opinions from its own expert. Farmers was showing the flaws in Pagan‘s expert testimony. The Majority would have a defendant‘s cross examination of an expert on a differential diagnosis delayed or denied until that defendant brings its own expert witness to establish plausible alternative causes that should have been included in that differential diagnosis. No Texas case has ever held this to be the standard for cross examining a differential diagnosis.

The Majority‘s authority for placing the “competent evidence” evidentiary burden on Farmers’ right to cross examine the differential diagnosis is equally confusing. The Majority cites , and

. Both Jelinek and Guevara are legal sufficiency cases. More specifically, both cases analyze the sufficiency of the evidence to prove the plaintiff‘s case. See (holding that the expert‘s causation testimony is “legally insufficient to support the jury‘s verdict” and therefore, “the Casases failed to prove causation“); (holding that “the evidence is legally insufficient to support a finding that the car accident caused all of the medical expenses awarded by the jury“).

Neither Jelinek nor Guevara analyzes admissibility of evidence at all.3 Neither case suggests that a defendant must establish a causal connection through medical testimony prior to cross examining the plaintiff‘s expert on a differential diagnosis or adducing evidence of other possible causes. Neither Pagan nor the Majority cite a single case holding that a defendant may not cross examine a medical expert on possible causes of an injury without first establishing with other evidence that the posited “possible” or “plausible” cause is, to a reasonable degree of medical certainty, the proximate cause. If it is the defendant who must prove “proximate cause” on all potential causes other than the cause plaintiff alleges, then a plaintiff who establishes medical causation through “differential diagnoses” need not differentiate at all.

Texas law consistently requires the proponent of a differential diagnosis to exclude other plausible causes. There is no reason to believe that the Texas Supreme Court did not choose its words carefully: “[I]f evidence presents ‘other plausible cause of the injury or condition that could be negated, the [proponent of the testimony] must offer evidence excluding those

causes with reasonable certainty.‘” (quoting ) (first emphasis added; alteration in original). The Court did not say “evidence proves.” The Court did not say “reliable evidence establishes.” The Court did not say “evidence based upon a reliable foundation presents.” The evidence in this case does “present” a plausible cause. Pagan admitted that the fall occurred. Dr. Beaudry acknowledged the fall as a possible cause of Pagan‘s injuries. We should not require more.

I would hold that all of the evidence excluded regarding Pagan‘s April 2009 injury from falling from a horse is relevant and its probative value is not substantially outweighed by the danger of unfair prejudice or confusion; and I would hold that Farmers had no burden to bring “reliable medical testimony” to prove a causal connection between the shoulder injury and the horse incident before it could cross examine Pagan or her expert about the incident.

III. Sufficiency of the Evidence

As an independent reason to reverse, Pagan‘s medical causation evidence is factually insufficient to support the jury verdict and judgment. Pagan‘s medical expert, Dr. Beaudry, assumes as part of his differential diagnosis that Pagan suffered no injury between her prior 2008 MVA and her 2012 shoulder complaints. Based upon Pagan‘s sworn interrogatory response, Dr. Beaudry‘s assumption is demonstrably false. Therefore, Dr. Beaudry‘s opinion is no evidence. As Dr. Beaudry‘s opinion is Pagan‘s only evidence of causation, the evidence is factually insufficient to support the jury verdict. The Majority holds oth-

erwise. For this additional reason, I respectfully dissent.

The plaintiff bears the burden to establish medical causation, and the plaintiff may do so through differential diagnosis. . A reliable differential diagnosis identifies the cause of a medical problem by eliminating possible causes until the most probable one is isolated; the possible causes are established through physical examination, taking of medical history, and review of clinical tests. See . Differential diagnosis is the methodology used by Pagan‘s medical expert on causation in this case, Dr. Beaudry.

Specifically, Dr. Beaudry gave the following testimony regarding his method of diagnosis:

Well, as in, you know, examination-in, you know, problem solving, patients—diagnosis of the—you have to obtain a good history, to start off with. And secondly, you have to do the proper physical examination. Having done these two things, then you decide on which tests you think would be most reliable in—in obtaining diagnosis. You do the tests. You put all this together. You come to a diagnosis, and then you treat the patient appropriately.

Dr. Beaudry first saw Pagan in May 20104 upon a referral from Pagan‘s regular physician, Dr. Faseler. The history Dr. Beaudry received was “complaints of pain over the anterior aspect of her left shoulder, and this following a motor vehicle accident, which occurred in March of 2008.” Dr. Beaudry described Pagan‘s

complaints of “fairly long-standing pain over her neck and her left shoulder.” He took a history from Pagan—one that did not include the 2009 injury. Yet, he assumed that Pagan gave him a full and accurate history agreeing that “the information you receive from your patients you assume are [sic] true because you‘re not gonna go out and verify whether that‘s true or not.” Pagan told him that the problems in her neck that were “just radiating into her left shoulder” had been going on since the 2008 MVA. Prior to trial, Pagan returned to Dr. Beaudry again in January 2011 and July 2011 and both times repeated her complaints about her shoulder. During neither of those visits did Pagan supplement with a history of the 2009 injury falling from a horse.

Ultimately, Dr. Beaudry gave the opinion that Pagan was experiencing a “degenerative disc, which possibly could have been caused by the—the trauma of the motor vehicle accident three—three years earlier.”5 As for her shoulder, Dr. Beaudry testified that “as far as I know, she‘d never had any previous shoulder problems prior to that motor vehicle accident. That‘s when she started having trouble with her shoulder.” So, Dr. Beaudry opined that Pagan suffers left shoulder “chronic bursitis, tendinitis, a rotator cuff problem” as a result of the 2008 MVA.

Completely independent of whether the horse-incident evidence was admissible, Dr. Beaudry‘s failure to consider the horse incident renders his opinion no evidence in two separate ways. First, his differential diagnosis fails upon application of the factors established by . See

216-17 (noting that Robinson applies with equal rigor to a differential diagnosis method).

Specifically, a differential diagnosis fails the criteria if it is “too dependent upon the physician‘s subjective guesswork.” Id. at 218. Here, Dr. Beaudry relied exclusively upon subjective guesswork when he trusted the subjective, but incomplete, medical history from Pagan and failed to review Pagan‘s complete medical records. Dr. Beaudry did not review the emergency records from one day following the 2008 MVA that contained no complaint of shoulder injury. Dr. Beaudry did not review Dr. Faseler‘s records from Pagan‘s 4/21/08, 5/9/08, 6/25/08, 10/8/08 or 12/2/08 visits—visits that contain no complaint of shoulder injury.

Under any application of the Robinson factors, Dr. Beaudry‘s opinion amounts to no more than a guess that the trauma of the 2008 MVA lead in an unbroken, temporal chain to Pagan‘s 2012 complaints. He never considered whether the 2009 fall-from-a-horse trauma started the temporal chain or contributed to the temporal chain. He never offered any explanation about how the MVA caused the injuries at issue.

Second, but related, Dr. Beaudry‘s opinion is no evidence because he based his differential diagnosis upon false assumptions. Dr. Beaudry based his causation opinion in this case on the assumption that Pagan suffered no other physical injury between the 2008 MVA trauma and the “lasting” physical injuries she continued to suffer in 2012. Pagan‘s sworn interrogatory response proves this assumption to be false. Dr. Beaudry based his causation opinion in this case on the further assumption that Pagan started having trouble with her shoulder when she was in the 2008 MVA. Pagan‘s 2008 hospital records and all other pre-2009 medical records contradict that assumption as well. But Pagan did not supply any of that information to Dr. Beaudry. Premised upon false assumptions, Dr. Beaudry‘s causation opinion is unreliable, incompetent, and constitutes no evidence. See ; see also (holding that “[w]hen an expert‘s opinion is based on assumed facts that vary materially from the actual, undisputed facts, the opinion is without probative value and cannot support a verdict or judgment“).

Because Dr. Beaudry‘s medical opinion is no evidence and Pagan supplied no other medical causation evidence, the evidence is factually insufficient to support the verdict.

IV. Conclusion

Farmers did not sue Pagan. Farmers did not allege contributory negligence. Farmers did not designate a responsible third party under Chapter 33. Farmers did not ask for an instruction on new and independent cause. Farmers did not have a burden of proof. Therefore, we are not evaluating the sufficiency of Farmers’ evidence.

Farmers offered evidence. Farmers offered Pagan‘s interrogatory, Pagan‘s testimony, and Pagan‘s medical records to show that Pagan‘s claims she suffered no other injury were not true. Farmers offered Dr. Beaudry‘s deposition excerpt because it is their cross examination of his differential diagnosis. Farmers’ evidence—each proffer individually or in its entirety—was relevant to Pagan‘s credibility and the basis (or lack thereof) for Dr. Beaudry‘s differential diagnosis. Farmers did not bear a burden to bring medical testimony that the horse incident was a proximate cause of Pagan‘s shoulder injury before it was entitled to put on its defense.

Because the Majority holds otherwise, I respectfully dissent.

8
Farmers has not assigned as error that the evidence is legally insufficient to support the verdict, much less argued that Dr. Beaudry‘s differential diagnosis is unreliable and amounts to no evidence of causation (e.g. because it is based on subjective guesswork or false assumptions). Accordingly, we may not consider those issues. .
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