Perry HAMBURGER, Plaintiff-Appellant-Cross-Appellee, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendant-Appellee-Cross-Appellant.
No. 02-21126.
United States Court of Appeals, Fifth Circuit.
March 2, 2004.
361 F.3d 875
Before KING, Chief Judge, DENNIS, Circuit Judge, and LYNN, District Judge.
Conclusion
For the reasons stated, the judgment of the district court is AFFIRMED.
Perry HAMBURGER, Plaintiff-Appellant-Cross-Appellee, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendant-Appellee-Cross-Appellant.
No. 02-21126.
United States Court of Appeals, Fifth Circuit.
March 2, 2004.
Mary Elizabeth McCahill Taylor (argued), Taylor & Taylor, Houston, TX, for State Farm Mut. Auto. Ins. Co.
Before KING, Chief Judge, DENNIS, Circuit Judge, and LYNN,* District Judge.
Perry Hamburger appeals the trial court‘s grant of partial summary judgment on his extra-contractual claims, the striking of his expert witness‘s testimony on causation, the entry of judgment as a matter of law that Hamburger was not entitled to recover for pain and suffering or medical expenses related to his herniated disc, and the offset of the jury verdict with the $35,000 in benefits previously paid to Hamburger. We affirm in part, and reverse and remand in part.
I. BACKGROUND
On July 26, 1999, Hamburger was involved in an automobile accident caused by another driver. Thereafter, Hamburger suffered a herniated disc in his neck that required surgery. Hamburger contends that this injury was caused by the accident. The other driver‘s insurer, Old American Insurance Company (“Old American“), paid Hamburger $25,000, the limits of the other driver‘s policy. Thereafter, Hamburger filed a claim with his insurer, State Farm Mutual Automobile Insurance Company (“State Farm“), for his damages which exceeded $25,000. State Farm paid Hamburger $10,000 under the personal injury protection (“PIP“) provision1 of his policy, but denied payment under the uninsured/underinsured motorist (“UIM“) provision.2
On July 24, 2001, Hamburger filed suit in state court against State Farm for breach of the UIM clause (the “contractual claim“), and for violations of the Deceptive Trade Practices Act and Article 21.21 of the Texas Insurance Code, relating to State Farm‘s alleged bad faith in denying his claim under the UIM provision (the “extra-contractual claims“). State Farm removed the case to federal court on September 7, 2001, based on diversity jurisdiction.3
The trial court‘s Docket Control Order set a discovery deadline of May 31, 2002. On March 15, 2002, State Farm moved for summary judgment on Hamburger‘s extra-contractual claims. Hamburger asked State Farm to provide dates for Hamburger to depose Matt Schomburg and Catherine Wesley, the State Farm representatives who handled State Farm‘s PIP and UIM claims. State Farm replied in an April 30, 2002 letter: “This is to inform you that State Farm will not agree to produce these representatives for deposition because there is no issue in this suit to which their testimony is relevant.” On May 20, 2002, Hamburger moved to compel the depositions of the two State Farm representatives. On May 28, 2002, the trial court granted State Farm‘s motion for partial summary judgment, and Hamburger filed a motion to reconsider the partial grant of summary judgmеnt. On June 12, 2002, the court conducted a hearing on Hamburger‘s motion to compel and his motion to reconsider, and denied both motions. Hamburger appeals the granting of partial summary judgment for State
Hamburger designated his expert witnesses on April 30, 2002, almost three months after the trial court‘s deadline, without submitting expert reports. On May 23, 2002, State Farm filed a motion to exclude Hamburger‘s expert witnesses for failure to timely designate the experts and produce expert reports. On June 12, 2002, the trial court granted State Farm‘s motion to exclude Hamburger‘s expert witnesses, and on August 23, 2002, the trial court denied Hamburger‘s motion to reconsider. Hamburger appeals the court decision to bar Dr. Lynn Fitzgerald‘s expert testimony that the accident caused Hamburger‘s herniated disc.
Because Hamburger had no expert testimony that the accident caused Hamburger‘s herniated disc, the trial court granted State Farm‘s motion for judgment as a matter of law that the accident did not cause Hamburger‘s injuries. Therefore, the trial court did not allow the jury to consider compensation for Hamburger‘s medical expenses or pain and suffering related to the herniated disc. The jury was allowed to consider compensation only for Hamburger‘s past and future pain and suffering related to injuries other than the herniated disc. As an alternative ground for granting judgment as a matter of law that Hamburger was not entitled to recover medical expenses, the trial court found that Hamburger had presented no evidence that his medical expenses were reasonable. Hamburger appeals the trial court‘s grant of judgment as a matter of law.
The jury awarded Hamburger $50,000 for pain and suffering not related to his herniated disc, and on September 6, 2002, the trial court entered a final judgment against State Farm for $50,000. On September 13, 2002, State Farm moved to alter or amend the final judgment to offset the $10,000 in PIP benefits paid by State Farm, and the $25,000 in benefits paid by Old American. On September 30, 2002, the trial court granted State Farm‘s motion and entered an amended final judgment against State Farm in the amount of $15,000. Hamburger appeals the trial court‘s application of the offsets to the jury verdict.
II. ANALYSIS
A. Summary Judgment on the Extra-Contractual Claims
On May 28, 2002, the trial court granted State Farm‘s Motion for Partial Summary Judgment on Hamburger‘s claims that State Farm “failed to attempt in good faith to effectuate a prompt, fair, and equitable settlement of a claim with respect to which the insurer‘s liability had become reasonably clear” in violation of the Deceptive Trade Practices Act and Article 21.21 of the Texas Insurance Code (the “extra-contractual claims“). Hamburger contends that summary judgment on the extra-contractuаl claims was improper because (1) material facts were in dispute which precluded summary judgment, and (2) Hamburger was not afforded a full opportunity to conduct discovery.
The Court reviews the trial court‘s grant of partial summary judgment de novo, applying the same summary judgment standard applied by the district court. Williams v. Bramer, 180 F.3d 699, 702 (5th Cir. 1999). Under
Hamburger‘s UIM coverage requires State Farm to “pay damages which a covered person is legally entitled to recover from the owner or operator of an uninsured motor vehicle because of bodily injury sustained by a covered person.” Texas courts construe the phrase “legally entitled to recover” in UIM provisions to mean that “the insured must establish the uninsured motorist‘s fault and the extent of the resulting damages before becoming entitled to recover [UIM benefits].” Wellisch v. United Servs. Auto. Ass‘n, 75 S.W.3d 53, 57 (Tex. App.—San Antonio 2002, pet. denied) (citing Henson v. S. Farm Bureau Cas. Ins. Co., 17 S.W.3d 652, 653 (Tex. 2000); Franco v. Allstate Ins. Co., 505 S.W.2d 789, 792 (Tex. 1974); Mid-Century Ins. Co. of Tex. v. Barclay, 880 S.W.2d 807, 811 (Tex. App.—Austin 1994, writ denied); Sikes v. Zuloaga, 830 S.W.2d 752, 753 (Tex. App.—Austin 1992, no writ)). Generally, establishment of an insured‘s legal entitlement requires “a settlement with the tortfeasor or a judicial determination following trial on the issue of the tortfeasor‘s liability.” Id. Therefore, Hamburger was not “legally entitled to recover” from State Farm until the jury established the extent of Hamburger‘s damages caused by the tortfeasor, the other driver.
In Wellisch, in determining whether an insurer could be liable for violations of
There are no Texas cases which have squarely held that liability can never be reasonably clear before there is a court determination of proximately caused damages. On the other hand, in Mid-Century Ins. Co. of Tex. v. Boyte, the Texas Supreme Court held that an insured does not have a bad faith cause of action against an insurer for the insurer‘s failure to attempt a fair settlement of a UIM claim after there is a judgment against the insurer, at which time there are no longer duties of good faith and the relationship becomes one of judgment debtor and creditor. Mid-Century Ins. Co. of Tex. v. Boyte, 80 S.W.3d 546, 549 (Tex. 2002). If State Farm‘s position were adopted, an insured such as Hamburger could never successfully assert a bad faith claim against his insurer for failing to attempt a fair settle-
State Farm further argues that, even if extra-contractual bad faith claims are available for an insurer‘s conduct before the insured‘s legal entitlement to benefits is established in court, the record is devoid of any evidence that State Farm knew or should have known that it was reasonably clear that Hamburger‘s UIM claim was covered but failed to attempt in good faith to effectuate a prompt, fair, and equitable settlement. Giles, 950 S.W.2d at 55. An insurer does not breach its duty of good faith and fair dealing merely by erroneously denying a claim. United States Fire Ins. Co. v. Williams, 955 S.W.2d 267, 268 (Tex. 1997). “Evidence that only shows a bona fide dispute about the insurer‘s liability on the contract does not rise to the level of bad faith.” Id.
In this case, in seeking payment of UIM benefits, Hamburger submitted to State Farm medical bills totaling $18,960.90, and claimed additional damages for pain and suffering as to which he apparently submitted no additional information. State Farm responded:
The medical information that was submitted to us concerning Perry Hamburger does not appear to warrant an underinsured claim. This is based on Old American Insurance Company paying their policy limit of $25,000.00 and State Farm paying the policy limit under Personal Injury Protection of $10,000.00. We feel that $35,000.00 is adequate compensation for Mr. Hamburger‘s claim.
This letter reflects a bona fide dispute about State Farm‘s liability for UIM benefits. Although Hamburger contends that “such an outlandishly low evaluation, on its face, shows that State Farm‘s denial of Mr. Hamburger‘s claim was merely a pretext,” we disagree. Even if State Farm assumed during its evaluation that the accident caused all of Hamburger‘s claims, it cannot constitute bad faith per se for State Farm at that time to view $16,039.10, which is the difference between the medical bills and the insurance benefits already paid, as sufficient compensation for Hamburger‘s subjective pain and suffering. Therefore, the trial court properly granted summary judgment for State Farm on Hamburger‘s extra-contractual claims.
Hamburger further argues that it was improper for the trial court to grant summary judgment on Hamburger‘s extra-contractual claims without first allowing Hamburger to depose the State Farm representatives who handled Hamburger‘s PIP and UIM claims. Ordinarily, “[w]here the party opposing summary judgment informs the court that its diligent efforts to obtain evidence from the moving party have been unsuccessful, ‘a continuance of a motion for summary judgment for purposes of disсovery should be granted almost as a matter of course.‘” Int‘l Shortstop, Inc. v. Rally‘s, Inc., 939 F.2d 1257, 1267 (5th Cir. 1991) (quoting Sames v. Gable, 732 F.2d 49, 51 (3d Cir. 1984)). However, “[i]f the additional discovery will not likely generate evidence germane to the summary judgment motion, the district court may, in its discretion, proceed to rule on the motion without further ado.” Id.
Hamburger contends that the additional discovery he sought would have elicited testimony from State Farm‘s claims representatives that, when State Farm approved the payment of $10,000 in PIP benefits, State Farm determined that
B. Disallowance of Dr. Fitzgerald‘s Expert Testimony on Causation
Hamburger asserts two alternative reasons for his claim that the trial court abused its discretion in barring Dr. Fitzgerald‘s expert testimony on causation. First, Hamburger asserts that Dr. Fitzgerald was not an expert from whom аn expert report was required under
The requirement of a written report in paragraph (2)(B), however, applies only to those experts who are retained or specially employed to provide such testimony in the case or whose duties as an employee of a party regularly involve the giving of such testimony. A treating physician, for example, can be deposed or called to testify at trial without any requirement for a written report.
The trial court‘s Scheduling Order required Hamburger to designate his experts by February 1, 2002, but Hamburger did not designate Dr. Fitzgerald as an expert until April 30, 2002. Unlike the expert report requirement of
The Court reviews the trial court‘s exercise of its discretion to exclude experts not properly designated by considering four factors: (1) the explanation for the failure to identify the witness; (2) the importance of the testimony; (3) potential prejudice in allowing the testimony; and (4) the availability of a continuance to cure such prejudice. Geiserman v. MacDonald, 893 F.2d 787, 791 (5th Cir. 1990). Hamburger first explains that he failed to timely designate Dr. Fitzgerald because his “counsel did not believe that a treating physician was the type of witness from whom an expert report was necessary.” While this explanation addresses why Hamburger did not obtain and serve a written report from Dr. Fitzgerald pursuant to
The second factor, the importance of Dr. Fitzgerald‘s expert testimony on сausation, is disputed. The trial court found, as State Farm contended, that without expert testimony on causation, State Farm was entitled to judgment as a matter of law on Hamburger‘s claims for pain and suffering and medical expenses related to his herniated disc. Hamburger contends that lay testimony would have been sufficient on causation. For purposes of this analysis, this Court assumes arguendo that Dr. Fitzgerald‘s testimony was essential to Hamburger‘s claims for medical expenses and pain and suffering for the herniated disc. Although the importance of Dr. Fitzgerald‘s proposed testimony weighs against exclusion of that testimony, the importance of proposed testimony cannot “singularly override the enforcement of local rules and scheduling orders.” Id. at 792. Additionally, the importance of the testimony underscores how critical it was for Hamburger to have timely designated Dr. Fitzgerald.
The third factor, prejudice to State Farm, weighs in State Farm‘s favor. Since Dr. Fitzgerald was not designated timely, State Farm did not have reason to know that Hamburger intended to call her to give expert testimony about causation. Although State Farm was in possession of Dr. Fitzgerald‘s medical records prior to Hamburger‘s late designation of Dr. Fitzgerald as an expert witness, those records did not address causation and thus did not alert State Farm that Dr. Fitzgerald might give expert testimony about that subject. Thus, State Farm would have been prejudiced if Dr. Fitzgerald‘s lately identified expert testimony about causation had been allowed.
The fourth factor relates to whether a continuance may have cured such prejudice by allowing State Farm time to depose Dr. Fitzgerald. Obviously, a continuance “would have resulted in additional delay and increased the expense of defending the lawsuit.” Geiserman, 893 F.2d at 792.
Since the first and third factors militate against permitting the testimony, the trial
C. Judgment as a Matter of Law on Hamburger‘s Claims for Medical Expenses and Pain and Suffering Related to his Herniated Disc
We review the trial court‘s grant of a motion for judgment as a matter of law de novo. Hidden Oaks Ltd. v. City of Austin, 138 F.3d 1036, 1042 (5th Cir. 1998). The question of whether the evidence is sufficient for a claim to be presented to the jury is governed by federal standards. Mathis v. Exxon Corp., 302 F.3d 448, 453 (5th Cir. 2002). Under federal standards, a judgment as a matter of law is appropriate where “a party has been fully heard on an issue and there is no legally sufficient evidentiary basis for a reasonable jury to find for the party on that issue.” Id. “[W]e apply federal standards of review to assess ‘the sufficiency or insufficiency of the evidence in relation to the verdict,’ but in doing so we refer to state law for ‘the kind of evidence that must be produced to support a verdict.‘” Ayres v. Sears, Roebuck & Co., 789 F.2d 1173, 1175 (5th Cir. 1986) (quoting Fairley v. Am. Hoist & Derrick Co., 640 F.2d 679, 681 (5th Cir. 1981) and McCandless v. Beech Aircraft Corp., 779 F.2d 220, 223 (5th Cir. 1985)). For example, in Ayres, we looked at Texas products liability law to determine that proof of a product defect and of the causative element could be established by direct or circumstantial evidence based on anecdotal or expert testimony. Ayres, 789 F.2d at 1175. Similarly, in Geiserman, we looked at Texas law on legal malpractice to determine whether expert testimony is necessary to establish the standard of care. Geiserman, 893 F.2d at 793. Therefore, in this case, we will look to Texas law to determine whether Hamburger wаs required to present expert testimony on causation in order to avoid judgment as a matter of law.
Under Texas law, “[l]ay testimony is adequate to prove causation in those cases in which general experience and common sense will enable a layman to determine, with reasonable probability, the causal relationship between the event and the condition.” Morgan v. Compugraphic Corp., 675 S.W.2d 729, 733 (Tex. 1984). “Generally, lay testimony establishing a sequence of events which provides a strong, logically traceable connection between the event and the condition is sufficient proof of causation.” Id. Therefore, in determining whether lay testimony is sufficient to prove causation, Texas courts look at the nature of the lay testimony and the nature of the injury.
In Morgan, the plaintiff suffered from frequent skin rashes and problems with her digestive and nervous systems, which she alleged were caused by her exposure to chemical fumes from a leaking typesetting machine at her workplace. Id. at 731. The plaintiff testified that (1) she had always been in good health prior to the installation of the typesetting machine near her desk, (2) she worked with her face two inches from a typesetting machine that was leaking chemical fumes, (3) soon
Similarly, in Blankenship v. Mirick, the plaintiff suffered from dislocated kneecaps, which she alleged were caused by an automobile collision. Blankenship v. Mirick, 984 S.W.2d 771, 776 (Tex. App.—Waco 1999, pet. denied). The plaintiff testified that (1) she had experienced no problems with her knees before the collision, (2) the force of the collision caused her knees to be shoved into the dashboard, (3) she followed her doctor‘s instructions concerning daily exercises, avoidance of certain activities, and medication, and (4) she continued to experience pain between the time her doctor released her to work after the auto collision and the time her doctor concluded, nine months later, that her kneecaps were dislocated. Id. The court held the plaintiff‘s testimony was sufficient to prove causation. Id.
Further, in Dawson v. Briggs, the plaintiff suffered from pain, swelling, and popping in her jaw, which she alleged was caused by an automobile accident. Dawson v. Briggs, 107 S.W.3d 739, 754 (Tex. App.—Fort Worth 2003, no pet.). The plaintiff testified that (1) prior to the accident, she did not wear a bite splint, (2) she had pain, swelling, and popping in her jaw as a result of the accident, (3) her dentist treated her for this problem and continued to do so, and (4) she was required to wear a bite splint or her jaw hurt and popped. Id. Although the court found that there was also expert testimony of causation, the court held that the plaintiff‘s lay testimony was sufficient proof of causation. Id.
Finally, in Fidelity & Guaranty Ins. Underwriters, Inc. v. La Rochelle, the plaintiff contended that her back injury was covered by worker‘s compensation because it resulted from her playing a ping pong game at work. Fidelity & Guaranty Ins. Underwriters, Inc. v. La Rochelle, 587 S.W.2d 493, 494 (Tex. Civ. App.—Dallas 1979, writ dism‘d). Nine months prior to playing ping pong, she had injured her back while working for a different employer and was diagnosed with a protruding disc. Id. Shortly after the ping pong game, she experienced pain in her lower back and was again treated for a disc condition. Id. The court сoncluded that expert testimony was not required because “the jury should be entitled to decide causation with or without medical testimony in areas of common experience.” Id. at 496.
In cases involving other types of injuries, Texas courts have refused to find lay testimony sufficient to prove causation. For example, in Burroughs Wellcome Co. v. Crye, the Texas Supreme Court stated that “[t]he nature of a frostbite injury is such that expert medical testimony is required to establish causation.” Burroughs Wellcome Co. v. Crye, 907 S.W.2d 497, 499 (Tex. 1995). See also Smith v. Southwestern Bell Tel. Co., 101 S.W.3d 698, 702 (Tex. App.—Fort Worth 2003, no pet.) (fibromyalgia); Coastal Tankships, U.S.A., Inc. v. Anderson, 87 S.W.3d 591, 603 (Tex. App.—Houston [1st Dist.] 2002, pet. denied) (bronchiolitis obliterans organizing pneumonia).
Hamburger testified that (1) prior to the accident, he had never had any problems with his neck, (2) during the collision, his head went forward and snapped back against the headrest, (3) immediately after the collision, his neck felt stiff, and (4) over the next few months, the
In granting judgment as a matter of law to State Farm on Hamburger‘s claim for medical expenses, the trial court additionally based its ruling on Hamburger‘s failure to present evidence that his medical expenses were reasonable. Under Texas law, a claim for past medical expenses must be supported by evidence that such expenses were reasonable and necessary. Six Flags Over Texas, Inc. v. Parker, 759 S.W.2d 758, 760-61 (Tex. App.—Fort Worth 1988, no writ); Monsanto Co. v. Johnson, 675 S.W.2d 305, 312 (Tex. App.—Houston [1st Dist.] 1984, writ ref‘d n.r.e.). “[T]estimony showing only the nature of the injuries, the character of and need for the services rendered, and the amounts charged therefor does not constitute evidence of probative force that the charges are reasonable.” Dallas Ry. & Terminal Co. v. Gossett, 156 Tex. 252, 294 S.W.2d 377, 383 (1956). Hamburger presented no evidence that his medical expenses were reasonable. Therefore, the trial court correctly granted judgment as a matter of law to State Farm on Hamburger‘s claim for medical expenses.6
Because the trial court correctly granted judgment as a matter of law to State Farm on Hamburger‘s claim for medical expenses, we affirm the trial court‘s judgment as a matter of law that Hamburger cannot recover his medical expenses. However, because Hamburgеr was not required to present expert testimony to create a fact issue on causation, we reverse the trial court‘s judgment as a matter of law that Hamburger cannot recover for pain and suffering related to the herniated disc.
D. State Farm‘s Entitlement to Offsets
Hamburger contends that State Farm is not entitled to offset the jury verdict with the $10,000 paid for in PIP benefits and the $25,000 paid by Old American. Hamburger argues that the $10,000 in PIP benefits were paid to compensate Hamburger for his medical expenses related to his herniated disc. Because the trial court granted State Farm judgment as a matter of law on Hamburger‘s claim for medical expenses, the jury verdict did not include any compensation for Hamburger‘s medical expenses. Therefore, Hamburger contends that State Farm is not entitled to offset the jury verdict with the $10,000 in PIP benefits. Hamburger similarly argues that the $25,000 paid by Old American compensated Hamburger for damages related to his herniated disc. Since the
State Farm contends that the joint pretrial order entered under
III. CONCLUSION
We affirm the trial court‘s grant of partial summary judgment on Hamburger‘s extra-contractual claims, the striking of Dr. Fitzgerald‘s expert testimony on causation, the entry of judgment as a matter of law that Hamburger was not entitled to recover medical expenses related to his herniated disc, and the offset of the jury verdict with the $35,000 in benefits previously paid to Hamburger. We reverse the trial court‘s entry of judgment as a matter of law that the accident did not cause Hamburger‘s herniated disc and remand the case so that the trier of fact can determine whether the accident caused Hamburger‘s herniated disc and, if so, to what extent Hamburger is entitled to recover for pain and suffering related to that injury.
I agree with the majority, for the reasons stated in Judge Lynn‘s careful opinion, that the trial court was correct to grant partial summary judgment on Hamburger‘s extra-contractual claims, exclude Dr. Fitzgerald‘s expert testimony on causation, grant judgment as a matter of law on Hamburger‘s claim for medical expenses related to the herniated disc, and offset the jury verdict with funds already paid to Hamburger. Because I believe that lay testimony was insufficient under Texas law to establish causation in this case, I would also affirm the trial court‘s entry of judgment as a matter of law on the issue of the cause of Hamburger‘s herniated disc. The majority sets out the proper governing principles concerning whether lay testimony was required, but I would simply reach a different conclusion on this record. For that reason, I respectfully dissent from that portion of the majority‘s opinion and judgment.
As the majority correctly explains, the leading Texas authority on this question is Morgan v. Compugraphic Corp., 675 S.W.2d 729 (Tex. 1984). There, the Texas Supreme Court stated the following rule regarding when expert testimony on causation is required:
Lay testimony is adequate to prove causation in those cases in which general experience and common sense will enable a layman to determine, with reasonable probability, the causal relationship between the event and thе condition. Generally, lay testimony establishing a sequence of events which provides a strong, logically traceable connection between the event and the condition is sufficient proof of causation.
Id. at 733 (citation omitted).1
The application of this rule is necessarily case-specific. There will be some cases in which the causal connection between an event and an injury is so plain that no fair-minded observer could reject it, but in other cases the causal connection is so attenuated that the layperson can only engage in rank speculation as to whether any connection exists. Some Texas cases suggest that certain types of injuries may be, as a categorical matter, beyond the ken of the layperson. See, e.g., Burroughs Wellcome Co. v. Crye, 907 S.W.2d 497, 499 (Tex. 1995) (“The nature of a frostbite injury is such that expert medical testimony is required to establish causation.“). In most сases, however, the decision turns not only on the type of injury but also on the surrounding circumstances. Thus, some cases involving herniated discs will not require expert testimony on causation, see, e.g., Fid. & Guar. Ins. Underwriters, Inc. v. La Rochelle, 587 S.W.2d 493, 494, 496-97 (Tex. Civ. App.—Dallas 1979, writ ref‘d n.r.e.) (protruding disc in plaintiff‘s back), but other cases involving similar injuries will require an expert opinion, depending on whether (according to the facts of the case) “general experience and common sense will enable a layman to determine, with reasonable probability, the causal relationship between the event and the condition.” Morgan, 675 S.W.2d at 733.
I find some of the details in the record before us quite relevant to the question
The tests performed on Hamburger revealed not only the herniated disc but also some degenerative changes in his neck and spine. Although there was no testimony on whether Hamburger‘s accident caused his herniated disc (the operating surgeon would have opined that there was a connectiоn, if the court had permitted it), there was expert testimony on the types of things that can cause a herniated disc. According to the testimony, it could be associated with degenerative conditions or with trauma. The category of trauma includes car accidents, but, according to the expert testimony, it also includes exercising and even sneezing—anything that “[c]auses the body to jerk in any direction suddenly.” The record in this case thus discloses both a delayed onset and possible competing causes, features that tend to erode the common sense causal connection between Hamburger‘s accident and his herniated disc. See, e.g., Ill. Employers Ins. of Wausau v. Wilson, 620 S.W.2d 169, 172 (Tex. Civ. App.—Tyler 1981, writ ref‘d n.r.e.) (holding that the length of time between the plaintiff‘s shin laceration and the subsequent gangrene and amputation, together with the complexity of the injury, required expert testimony on causation); Orkin Exterminating Co. v. Davis, 620 S.W.2d 734, 736-37 (Tex. Civ. App.—Dallas 1981, writ ref‘d n.r.e.) (requiring expert testimony where the plaintiff‘s nerve injuries to his neck and back might have been caused by an improper neck brace or congenital abnormalities).
To be sure, the factors just listed are in no way determinative. There are cases from the Texas appellate courts that do not require expert testimony even when these types of confounding factors are apparently present. In particular, the case of Blankenship v. Mirick, 984 S.W.2d 771 (Tex. App.—Waco 1999, pet. denied), cited by the majority, is in many ways quite similar to today‘s case. The plaintiff in that case received medical treatment immediately after her car accident for lacerations and abrasions to her knees, but x-rays were initially normal. Id. at 773. Only many months later did x-rays reveal laterally shifted kneecaps that eventually required surgery. Id. at 773-74. There was a suggestion in that case, based on testimony from the treating physician, that some people have a congenital susceptibility to patellar dislocations. Id. at 776. The physician was unable to say with any degree of confidence whether the plaintiff‘s dislocated kneecaps were caused by the accident or by a previously undetected preexisting condition. Id.
Blankenship is a persuasive guidepost, but I believe that it is subtly different from today‘s case in ways that bear on the need for expert testimony. First, while the physician in Blankenship testified that a preexisting condition could cause knee problems of the sort the plaintiff suffered, he did not testify that the plaintiff actually had any such condition. Here, in contrast, Hamburger actually did have signs of degenerative changes, though admittedly
A second relevant difference is that while there was a delayed onset in Blankenship, in that case there was also expert medical testimony that explained how the delayed reaction could occur: The surgeon testified that pain from the accident could have led the plaintiff to avoid exercising the muscles around the knee, letting the muscles gradually atrophy to the point that the kneecap could slide out of its normal position. Id. at 776. In today‘s case, the jury did not hear a causal story that would explain the discontinuous progress of Hamburger‘s symptoms. I do not believe that the question of whether a car wreck could cause a herniated disc that does not manifest itself until weeks later is within “general experience and common sense” such that a layperson can “determine, with reasonable probability, the сausal relationship between the event and the condition.” Morgan, 675 S.W.2d at 733. I would hold that expert testimony is therefore necessary. That requirement can often be satisfied with a single question posed to a physician who is already testifying as a fact witness—as would have happened here, if Hamburger‘s surgeon had been properly designated under
Since my application of the governing Texas principles would require expert testimony on this record, I respectfully dissent to the extent that the majority holds otherwise. I concur in the balance of the majority‘s judgment and opinion.
Julius James LARRY, III, Petitioner-Appellant, v. Doug DRETKE, Director, Texas Department of Criminal Justice, Correctional Institutions Division, Respondent-Appellee.
No. 02-21010.
United States Court of Appeals, Fifth Circuit.
March 16, 2004.
Rehearing Denied April 19, 2004.