TEXAS WORKERS’ COMPENSATION COMMISSION and Katherine D. Kaus, Appellants, v. WAUSAU UNDERWRITERS INSURANCE, Appellee.
No. 01-01-00955-CV.
Court of Appeals of Texas, Houston (1st Dist.).
Sept. 25, 2003.
Rehearing Overruled Dec. 17, 2003.
Having found the Board was justified in denying appellant‘s license renewal on the ground appellant failed to provide a proper financial statement with his application, we conclude the trial court did not err in granting summary judgment on this basis. Accordingly, we overrule appellant‘s fifth point of error.
CONCLUSION
We affirm the trial court‘s judgment.
Victor Lee Harris, Victor L. Harris & Associates, PLLC, Sugar Land, for Appellee.
Panel consists of Justices TAFT, ALCALA, and PRICE.*
Houston, participating by assignment.
TIM TAFT, Justice.
Appellee, Wausau Underwriters Insurance (Wausau), sought judicial review in the district court of Galveston County, Texas of a decision by intervening appellant, the Texas Workers’ Compensation Commission (TWCC),1 awarding appellant, Katherine Kaus (Mrs. Kaus), death benefits for the death of her husband, Thomas Kaus (Mr. Kaus). Wausau sought review of two issues: (1) whether Mr. Kaus‘s death was the result of a willful attempt to injure himself (suicide) and (2) whether Mr. Kaus‘s death occurred within the course and scope of his employment. At trial, the parties stipulated that, if the jury determined that Mr. Kaus‘s death was the result of suicide, his death did not occur within the scope of his employment. The jury determined that Mr. Kaus‘s death occurred as a result of suicide. Thus, the trial court entered judgment for Wausau and set aside the TWCC‘s award of death benefits to Mrs. Kaus. In an issue of first impression, we address the admissibility of the opinion of an assistant medical examiner that a death was a suicide, as well as of death certificates and autopsy reports containing that opinion, under the Texas Rules of Evidence. We affirm.
Background
Mr. Kaus was employed as a security guard for a 21-story building in downtown Houston. On February 12, 1997, Mr. Kaus was reported missing by a fellow sеcurity guard. After employees and police searched the building for several hours, Mr. Kaus‘s body was found on a fifth-floor awning. The Houston Police Department conducted a homicide investigation. Police officers questioned employees of the building. There were no witnesses who had seen Mr. Kaus fall to his death. Police were unable to determine from what location Mr. Kaus had fallen. Because of the weather conditions—cold, rain, wind, and lightning—the police did not make a video recording of the roof of the building. The only evidence to support a further homicide investigation was Mr. Kaus‘s missing wallet and watch and a “brush burn” on the back of Mr. Kaus‘s head.
The personal investigation of assistant medical examiner Dr. Parungao was limited to the autopsy of Mr. Kaus‘s body. The autopsy revealed the cause of death as a “crushed chest, abdomеn, and pelvis.” Based solely on police and investigator reports, Dr. Parungao determined that Mr. Kaus had committed suicide. The reports that Dr. Parungao reviewed included interviews with Mrs. Kaus and with co-workers of Mr. Kaus. In Mrs. Kaus‘s interview, she admitted that Mr. Kaus had been depressed for years and had threatened suicide on several occasions, including sometime about a year before his death. Mr. Kaus‘s co-workers spoke of Mr. Kaus‘s unhappiness with his marital relationship and of how his unhappiness was aggravated by an extended visit by his mother-in-law, which explained why he had tried to work as many weekends as possible in order to be out of the house. They also spoke of Mr. Kaus‘s recent deterioration in appearance and dejection from having lost a lawsuit. They also mentioned that Mr. Kaus was concerned with his financial situation. Based on the investigation‘s reports, Dr. Parungao entered on Mr. Kaus‘s death certificate and on his autopsy report that the manner of death was “suicide” committed when Mr. Kaus “jumped from height.”
Before trial, Mrs. Kaus and TWCC had requested and received a ruling from the court that excluded all opinions stating the ultimate conclusion that Mr. Kaus had committed suicide. The court further determined that Dr. Parungao was not qualified as an expert on suicide. Therefore, the court required the death certificate and autopsy report, which were prepared by Dr. Parungao, to be redacted to omit the manner of death as “suicide” caused when Mr. Kaus “jumped from height.”
During Wausau‘s presentation of the case, Wausau sought to present the deposition testimony of Dr. Conway.2 Mrs. Kaus and TWCC objected to the inclusion of portions of the deposition involving Dr. Conway‘s opinions on whether Mr. Kaus committed suicide and on the assistant medical examiner‘s findings. The court decided to allow some of the testimony, while excluding the rest.3 In reading from Dr. Conway‘s testimony, Wausau included the following:
Wausau: In your recollection, is there anything in that report that—that you thought was inconsistent with suicide, or was it just the whole thing?
Dr. Conway: I—I don‘t—I can‘t remember what the report says, so I can‘t—I can‘t answer that very well right now.
Wausau: Okay. Well, if but you are rendering an opinion here today that it‘s highly unlikely that he committed suicide. And you base that upon that report you read; is that correct?
Dr. Conway: No. I based it on knowing him and—and what—I‘m sticking to what I said before and—when I had a better recollection of everything going on.
(Emphasis added.)
Wausau continued to ask Dr. Conway about information contained in the assistant medical examiner‘s report and that information‘s consistency with suicide. After several questions and answers, the deposition continued with this:
Wausau: Okay. If someone were to step off the roof of that building and land on the fifth floor awning, as Mr. Kaus did, what additional observations would you expect that would support a finding of suicide?
Dr. Conway: I have no opinion.
Wausau: No opinion whatsoever?
Dr. Conway: None.
Wausau: So your opinion as to it‘s highly unlikely, you‘re withdrawing it at this time?
Dr. Conway: No. I have no opinion about the forensic activity. I
couldn‘t—I have—I don‘t know whether people tumble or—I have no— Wausau: Okay.
Dr. Conway:—I have no forensic opinion.
Wausau: Okay. And I‘m—I‘m—I want to make sure we‘re on the same page. So your opinion is based upon your relationship with Mr. Kaus over the period of years?
Dr. Conway: Yes.
Wausau: And it has nothing whatsoever to do with the Medical Examiner‘s report or the police officer‘s report?
Dr. Conway: No.
Wausau: Okay. And you consider that information to not be relevant to your opinion on whether or not he committed suicide?
Dr. Conway: The—the—I‘m relying on my previous testimony. Because I do not recall having seen a document that Mrs. Kaus brought to me, and that document did not have anything in it that convinced me that—that he had commit—committed suicide.
(Emphasis added.)
After Wausau concluded its presentation of Dr. Conway‘s testimony, Mrs. Kaus and TWCC presented excerpts of Dr. Conway‘s testimony. Mrs. Kaus and TWCC announced the page and line numbers to be read and offered the following:
Mrs. Kaus/TWCC: Do you have an opinion based upon reasonable medical probability, as Mrs.—Mr. Kaus‘s physician and after having treated him for 20-some-odd years and certainly hands-on treatment for last 6 to 12 months of his life, as to whether or not he committed suicide on February 12, 1997?
Dr. Conway: I think that‘s highly unlikely.4
Wausau raised no objections before or during this proffer. However, at the next break, the trial court stated sua sponte that Mrs. Kaus and TWCC “had opened the door” by reading Dr. Conway‘s opinion on whether Mr. Kaus had committed suicide. Mrs. Kaus and TWCC objected, stating that their inclusion of Dr. Conway‘s opinion was in response to Wausau‘s inclusion of his opinion. Wausau denied including Dr. Conway‘s opinion. To sanction Mrs. Kaus and TWCC for having opened the door, the court stated that it would allow Dr. Parungao‘s opinion testimony. The court also admitted into evidence the death certificate showing “suicide,” but not “jumped from height,” and the autopsy report concluding that Mr. Kaus‘s death was a suicide. The jury subsequently found that Mr. Kaus had committed suicide, and the trial court set aside the TWCC‘s decision.
Issues for Review
In two issues presented for review, Mrs. Kaus and TWCC contend that the trial court committed harmful and reversible error in (1) admitting Dr. Parungao‘s opinion testimony on the issue of suicide and (2) admitting the death certificate and autopsy report concluding that suicide was the manner of death.
Wausau, in support of the trial court‘s decision, contends that the trial court properly admitted the death certificate and Dr. Parungao‘s opinion testimony, both pursuant to case law and as a remedy for violating the сourt‘s order by “opening the door.”
The decision to admit or to exclude evidence is left to the discretion of the trial court and is reviewed for an abuse of discretion. Moore v. Bank Midwest, N.A., 39 S.W.3d 395, 401-02 (Tex.App.-Houston [1st Dist.] 2001, pet. denied). To obtain reversal of a judgment based on an error in the admission or exclusion of evidence, an appellant must show that the trial court‘s ruling was error and that the error probably resulted in the rendition of an improper judgment. Id.
B. Whether the Trial Court Erred in Concluding that Mrs. Kaus and TWCC Had Opened the Door
As a preliminary matter, the trial court had stated that neither party could offer evidence of anyone‘s opinion regarding suicide. When the parties approached the bench before Dr. Conway‘s deposition testimony was read by Wausau, objections were properly made by Mrs. Kaus and TWCC. The trial court overruled the objections as to certain pages and lines of the deposition. Wausau then read from the allowable part of the deposition. This testimony included Dr. Conway‘s opinion that Mr. Kaus had not committed suicide. On cross-examination, Mrs. Kaus and TWCC informed the court and Wausau what pages and lines they would read. Wausau did not object. Because the court had overruled Mrs. Kaus and TWCC‘s objections to the inclusion of the specific lines that were read, both parties were allowed to include this testimony. Therefore, based on these facts, the trial court erred by determining sua sponte that Mrs. Kaus and TWCC had “opened the door.” The trial court had broad discretion on whether to admit or to exclude evidence,5 but its decision to sanction Mrs. Kaus and TWCC by including previously excluded evidence was based on a mistaken belief as to which party had opened the door.
Because the trial court erred in sanctioning Mrs. Kaus and TWCC for having opened the door, this Court must now determine whether this error, which led to the admission of Dr. Parungao‘s opinion testimony and the death certificate and autopsy report, constitutes reversible error. A finding that the trial court committed reversible error requires this Court to conclude that admitting the death certificate, the autopsy report, and Dr. Parungao‘s testimony “probably caused the rendition of an improper judgment.”
C. Harm
1. Whether the trial court‘s error in admitting Dr. Parungao‘s expert opinion as a sanction was rendered harmless because his opinion was admissible for another reason
Mrs. Kaus and TWCC‘s issue two challenges the admissibility of Dr. Parungao‘s testimony that, in his opinion, Mr. Kaus had committed suicide. In forming this opinion, Dr. Parungao acknowledged that he had relied upon the investigation reports made by pоlice officers and an investigator from the Medical Examiner‘s Office. Dr. Parungao further stated that he had performed the autopsy, which revealed only the cause, but not the manner, of death.
Mrs. Kaus and TWCC objected that Dr. Parungao‘s opinion regarding suicide was based on hearsay and was thus inadmissible. Although the investigation reports are hearsay,
The trial court erred in initially concluding that Dr. Parungao was not qualified to render an expert opinion regarding manner of death, in addition to cause of death.
If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training or education may testify thereto in the form of an opinion or otherwise.
Mrs. Kaus and TWCC rely on Gray v. Bird and this Court‘s opinion in Smith v. Tennessee Life Insurance Co. to support their contention that a medical examiner‘s opinion on suicide is inadmissible when it relies upon reports of investigators. Gray, 380 S.W.2d 908 (Tex.Civ.App.-Tyler 1964, writ ref‘d n.r.e.); Smith, 618 S.W.2d 829 (Tex.Civ.App.-Houston [1st Dist.] 1981, no writ). Both cases, however, were decided before the Texas Rules of Evidence were codified in 1983. Importantly, In Smith, the rationale for holding that it was error to admit the medical examiner‘s opinion that the manner of death was suicide was that the report of a privatе investigator was not the type of hearsay data upon which a doctor could rely in forming his expert opinion. Id., 618 S.W.2d at 832. The longtime status of the law had been that an expert opinion could not be based solely on statements or reports of third parties, unless those statements were properly in evidence and the opinion was sought through hypothetical questions. Id. at 831 (quoting Moore v. Grantham, 599 S.W.2d 287, 289 (Tex.1980)). Now, in contrast,
The Texas Rules of Evidence were based on the Federal Rules of Evidence, which “favor the admissibility of relevant evidence, leaving it to the parties to argue the weight that should be given to the evidence.” Brooks v. Chrysler Corp., 786 F.2d 1191, 1198 (D.C.Cir.1986). In light of the changes made upon adoption of the Texas Rules of Evidence, including rules 702 through 705, which favor admissibility, particularly of matters typically relied upon in forming the opinion and regardless of whether those matters are themselves otherwise admissible, neither Gray nor Smith supports appellant‘s contention.
Although the trial court initially had determined that Dr. Parungao was not qualified as an expert on suicide, the court would not have abused its discretion if it had later decided to admit Dr. Parungao‘s expert opinion. See Keo v. Vu, 76 S.W.3d 725, 730 (Tex.App.-Houston [1st Dist.] 2002, pet. denied) (stating that trial court has broad discretion to determine the admissibility of expert testimony). A trial court does not err if it makes the correct ruling for the wrong reason. See Hawthorne v. Guenther, 917 S.W.2d 924, 931 (Tex.App.-Beaumont 1996, writ denied)
Accordingly, we overrule Mrs. Kaus and TWCC‘s issue two.
2. Whether the trial court‘s error in admitting the unredacted death certificate as a sanction was rendered harmless because the certifiсate‘s contents were admissible for another reason
Mrs. Kaus and TWCC‘s issue one first challenges the admissibility of Dr. Parungao‘s opinion in the death certificate.
a. Admissibility of the death certificate as prima facie evidence of the facts stated therein
Mrs. Kaus and TWCC objected to the admission of Mr. Kaus‘s death certificate on the basis of
Texas law provides that a copy of a death certificate “certified by the state registrar is prima facie evidence of the facts stated in the record.” Id. This statute does not appear to have been addressed by any Texas courts, but its predecessor, Article 4477, Rule 54a of the Revised Civil Statutes, has been addressed. Former rule 54a was enacted in 1927 and repealed and replaced by
Most courts interpreting former rule 54a held that, unless the death certificate was certified by the state registrar as provided by the statute, the death certificate was either totally inadmissible or at least inadmissible as prima facie evidence.8
Mrs. Kaus and TWCC also objected to the death certificate on the ground that it constituted or that it contained hearsay.
No reported Texas case has addressed the admissibility of a death certificate, or of any other record of vital statistics, pursuant to
We agree with the holding of Martinez regarding the admissibility of the death certificate itself pursuant to
We are not persuaded by Martinez, however, that the contents of the death certificate are automatically admissible pursuant to
The objected-to statements within the death certificate were Dr. Parungao‘s opinions on the manner of death. As we have already held, Dr. Parungao‘s expert opinion regarding manner of death, even though based on hearsay information provided by investigators, is admissible pursuant to
We overrule that portion of Mrs. Kaus and TWCC‘s issue one challenging the admissibility of Dr. Parungao‘s opinion, within the death certificate, that Mr. Kaus committed suicide.
3. Whether the trial court‘s error in admitting the unredacted autopsy report as a sanction was rendered harmless because the report‘s contents were admissible for another reason
Under issue one, Mrs. Kaus and TWCC combine their argument that the autopsy report contained inadmissible hearsay with their argument that the death certificate contained inadmissible hearsay. Although there is no separate briefing explaining why the autopsy report is inadmissible, we will address the admissibility of the autopsy report, and of Dr. Parungao‘s opinion regarding suicide recited therein, because of the similarity of those arguments with the death-certificate argument in issue one.
An autopsy report is admissible under the public-records hearsay exception of the Texas Rules of Evidence. See
Mrs. Kaus and TWCC objected to the admissibility of the autopsy report because it contained Dr. Parungao‘s opinion that Mr. Kaus had committed suicide. We have already held that Dr. Parungao‘s expert opinion that suicide was the manner of death was admissible. Thus, the autopsy report‘s recitation of Dr. Parungao‘s opinion was also admissible. Consequently, the trial court would not have erred if it had admitted the unredacted autopsy report for this reason. Therefore, the error in admitting the unredacted autopsy report as a sanction was harmless. See
We overrule that portion of Mrs. Kaus and TWCC‘s issue one challenging the admissibility of Dr. Parungao‘s opinion, within thе autopsy report, that Mr. Kaus had committed suicide.
Conclusion
We affirm the judgment of the trial court.
Justice PRICE, dissenting.
En banc consideration was requested.
A majority of the Court did not vote in favor of en banc consideration of this case.
Justice Jennings, joined by Justice Hedges, dissenting from the denial of en banc consideration.
FRANK C. PRICE, Justice (Assigned), dissenting.
The majority, in its effort to affirm the trial court‘s judgment, has taken a situation where there absolutely is no evidence of suicide and created some by declaring the medical examiner clairvoyant. Dr. Vladimir Parungao, a forensic pathologist
Prior to trial, the trial court, realizing a suicide opinion requires specialized knowledge, conducted a hearing pursuant to the requirements set out in the Daubert and Robinson line of cases to determine the admissibility of Parungao‘s expert opinion about the manner of death. Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993); E.I. du Pont de Nemours and Co., Inc. v. Robinson, 923 S.W.2d 549 (Tex. 1995). When the subject of an expert‘s testimony must be based on scientific knowledge, the trial court is required to make inquiry as to whether the testimony‘s underlying reasoning or methodology is scientifically valid and properly can be applied to the facts at issue.
Subsequently, the trial court allowed the testimony, not because it changed its decision as to the testimony‘s admissibility, but as punishment for a perceived violation of the court‘s order prohibiting all such testimony. TWCC and Kaus were accused of offering restricted testimony through Dr. Conway that was first offered by Wausau; thus, TWCC and Kaus erroneously suffered the sanction. Clearly, as the majority points out, the trial court erred by allowing Parungao‘s opinion of suicide as a sanction against TWCC and Kaus when Wausau was the real culprit.
From this point, the majority takes a simple case and makes it very complex by explaining why Parungao‘s testimony was admissible, regardless of the trial court‘s initial decision to exclude it. After the Daubert hearing, the trial court, based оn Parungao‘s lack of qualifications, disallowed his opinion as to suicide. This ruling was subject to review from an abuse of discretion standpoint, but it has never been challenged by either party; therefore, it must stand. See Robinson, 923 S.W.2d at 558.
The issue before this Court is whether the trial court erred by admitting the prohibited evidence, over objection, as a sanction against TWCC and Kaus, thereby causing the rendition of an improper verdict. Obviously, it was error to admit the evidence. The character of inadmissible evidence does not change merely because the trial court allowed it into evidence as punishment for violating a court order. This was an inappropriate sanction that allowed the jury to consider inadmissible evidence.
Likewise, it caused the rendition of an improper verdict. Expert witnesses have an extremely prejudicial impact on а jury, in part because the jury perceives them as an unbridled authority figure, entitling them to more credibility than others. Additionally, in the present case, as will be discussed below, outside of Parungao‘s testimony, there is no evidence to establish suicide.
The record reflects, and Parungao admitted, that nothing during his autopsy to determine cause of death indicated the manner of death as suicide. Parungao stated his conclusion of suicide was based on investigative reports generated by law enforcement officers and his office staff. The investigating officers testified, consistent with their reports, that the scene survey revealed there was no evidence to indicate homicide, suicide, or accident. If any such evidence ever existed, it would have been washed away by the heavy rains that drenched the area before the body was discovered. Because of lack of evidence, the officers also were unsure of where on the building the decedent might have gone over the side, if in fact, he did. In fact, one officer testified his conclusion of suicide was based on Parungao‘s opinion which was subsequently typed onto the death certificate. I wonder whose report and opinion influenced whom?
In an effort to support a suicide conclusion, Wausau offered testimony from fellow employees and the decedent‘s widow. One co-worker testified that the decedent had lost his interest in a class-action law suit and was concerned about his financial situation. Other testimony revealed that the decedent preferred working on weekends because his relationship with his wife was not the happiest. This was a preference that he had followed for several years. Nothing about either one of these situations should suggest suicidal tendencies. Very few people have not experienced similar emotions.
According to one witness, the decedent‘s wife told him that the decedent had been depressed for years and threatened suicide on previous occasions, the last time was over a year before his death. The decedent‘s wife denied these comments were made. Nonetheless, nothing about these comments, if made, should suggest present day tendencies. In fact, the decedent‘s actions that day were described as those of a well-adjusted person who entered work well-dressed, well-groomed, happy, in good spirits, joking with fellow employees, and making coffee as usual before going about his daily duties in a normal fashion.
Wausau called Dr. Conway, the decedent‘s personal physician, to the stand. He testified, pursuant to questions by Wausau, that it was unlikely that the decedent committed suicide. He based this opinion on his long-term relationship, both professional and personal, with the decedent. Dr. Conway‘s opinion was reaffirmed during cross-examination by TWCC and Kaus. This was the act for which TWCC and Kaus were sanctioned.
In addition to Dr. Conway‘s testimony disproving suicide, the evidеnce consistent with a homicide revealed that decedent‘s watch and billfold were missing and never found. A “brush burn” wound was discovered on the back of decedent‘s head.
The evidence described above comprises all of the information compiled into the investigative reports. It would be highly speculative for anyone, with or without special training, to conclude that the decedent met his death as a result of homicide, accident, or suicide. Certainly, Parungao has no special powers that entitle him to such a conclusion.
Obviously, the majority cares nothing about the quality of the information Parungao considered in arriving at his conclusion, only that he claimed to have read some investigative reports. Other than the evidence discussed above, if there was any other evidence consistent with suicide, Wausau would have offered it, because what was presented would never pass muster on a sufficiency challenge.
To support its conclusion that Parungao‘s opinion was admissible from its inception, the majority relies on Rules of Evidence 702, 703, 704 and 705, which it points out, were codified in 1983. It claims these rules, regardless of the trial cоurt‘s ruling, allow Parungao‘s opinion. What the majority misunderstands is that these rules only define the appropriate limits on the admissibility of purportedly scientific evidence. They are not used to determine who qualifies as an expert to be able to give such opinion testimony. This determination is reserved for the trial court, with the standard of review being abuse of discretion. That is why the Daubert and Robinson line of cases were decided years after the rules were codified—to assist the courts to more accurately identify qualified experts. The majority, in effect, has overruled this whole line of cases.
For these same reasons stated above, Parungao‘s opinion “suicide—jumped from height” typed onto the death certificate was not admissible. I have no problem with the majority‘s analysis of the admissibility of the death certificate, just that Parungao‘s opinion should havе been redacted.
There is no question that the trial court committed reversible error by admitting the opinion testimony and evidence that suicide was the manner of death. With no other evidence available, Parungao‘s testimony was all the jury had on which to base a verdict. The verdict obviously was improper.
I do not offer this as a vigorous dissent, but only as an exercise in common sense and logic to try to convince the majority of the error in its ways. If this does not work, my next effort will be to seek out Dr. Parungao for a list of the next set of lotto numbers.
TERRY JENNINGS, Justice, dissenting from denial of en banc consideration.
I respectfully dissent from the denial of en banc review of this case. I agree with the reasoning of Justice Price‘s dissent from the panel opinion.
It is well-settled in Texas that trial courts have the responsibility to ensure that expert testimony is not only relevаnt, but “reliable.” Gammill v. Jack Williams Chevrolet, Inc., 972 S.W.2d 713, 726 (Tex. 1998). Moreover, if an expert relies upon unreliable foundation data, any opinion drawn from that data is likewise unreliable. Merrell Dow Pharms., Inc. v. Havner, 953 S.W.2d 706, 714 (Tex. 1997). If expert testimony is not reliable, it is not evidence. Coastal Tankships, U.S.A., Inc. v. Anderson, 87 S.W.3d 591, 595 (Tex.App.-Houston [1st Dist.] 2002, pet. denied).