NO. 07-05-0351-CV
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL D
FEBRUARY 24, 2006
______________________________
JEFFREY K. BRAZIL, APPELLANT
V.
TIMOTHY T. KHATER, M.D., APPELLEE
_________________________________
FROM THE 99TH DISTRICT COURT OF LUBBOCK COUNTY;
NO. 2003-523,253; HONORABLE WILLIAM C. SOWDER, JUDGE
_______________________________
Before QUINN, C.J., and REAVIS and CAMPBELL, JJ.
OPINION
Pursuant to section 51.014(d) of the Texas Civil Practice and Remedies Code
permitting an interlocutory appeal by agreed order, appellant Jeffrey K. Brazil presents a
sole issue contending the trial court erred in (1) striking the expert testimony of Jay Mark
Lustbader, M.D., of Washington D.C., regarding causation in his health care liability claim
against appellee Timothy T. Khater, M.D. and (2) granting in part Khater’s no-evidence
motion for summary judgment. Specifically, he asserts the trial court erred in striking
Lustbader’s testimony because his qualifications were not disputed and the testimony was
relevant and reliable. We affirm the order granting in part and denying in part objections
and motion to strike the expert’s testimony and order granting in part and denying in part
Khater’s amended no-evidence motion for summary judgment.
Brazil was born with congenital cataracts which were surgically removed during
childhood. His aphakia created very poor vision for which he used contact lenses and or
glasses to correct. Brazil contacted Khater to inquire about intraocular placement of
lenses. Following lens implantation surgery, Brazil commenced this lawsuit asserting
Khater was negligent in performing the surgery. Brazil named Lustbader as an expert
witness to support his claim of negligence and to support proximate cause of the claimed
injuries and damages. After Lustbader’s deposition was taken, Khater moved to strike
portions of his testimony as ipse dixit statements that related to the proper standard of care
and causal connection between the surgery and the subsequent retinal detachment
suffered by Brazil. Upon consideration of the motion to strike, the trial court denied the
motion as to the proper standard of care, but granted it in part as to Lustbader’s testimony
“to the effect that any alleged negligent act or omission on the part of Timothy T. Khater,
M.D. caused or contributed to the retinal detachment.”
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Upon a hearing on Khater’s amended no-evidence motion for summary judgment
based on the order striking part of Lustbader’s testimony that Khater’s negligence caused
or contributed to the retinal detachment, the trial court granted the motion in part and
denied it in part. The parties elected to proceed with an agreed order prompting this
interlocutory appeal pursuant section 51.014(d) of the Code.
By his sole issue, Brazil contends the trial court erred in striking Lustbader’s
testimony regarding causation because his qualifications were not disputed and the
testimony was relevant and reliable. We disagree. Before we commence our analysis, we
first consider the appropriate standards of review.
STANDARDS OF REVIEW
No-Evidence Summary Judgment
In our determination of whether the partial no-evidence summary judgment was
proper, we apply the standard of review presented in Kimber v. Sideris, 8 S.W.3d 672, 675-
676 (Tex.App.--Amarillo 1999, no pet.).
Expert Testimony
The admissibility of expert testimony is governed by the two part test set out in E.I.
du Pont de Nemours & Co. v. Robinson, 923 S.W.2d 549, 556 (Tex. 1995), and is within
the discretion of the trial court. Id. at 558. Under Robinson, Brazil had the burden to show
(1) the expert was qualified and (2) the proffered testimony was relevant and based on a
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reliable foundation. To demonstrate an abuse of discretion, Brazil must also show the trial
court acted without reference to any guiding rules or principles. Downer v. Aquamarine
Operators, Inc., 701 S.W.2d 238, 241-42 (Tex. 1985), cert. denied, 476 U.S. 1159, 106
S.Ct. 2279, 90 L.Ed.2d 721 (1986); Couch v. Simmons, 108 S.W.3d 338, 341 (Tex.App.--
Amarillo 2003, no pet.). There is no abuse, however, simply because a trial court may
decide a matter within its discretion differently than an appellate court. Downer, 701
S.W.2d at 242. When reviewing matters committed to the trial court’s discretion, a court
of appeals may not substitute its own judgment for that of the trial court, thus insulating the
trial court’s decision from appellate second guessing. Bowie Memorial Hospital v. Wright,
79 S.W.3d 48, 52 (Tex. 2002).
Analysis
By his objection and motion to strike Lustbader’s testimony, as material here, Khater
alleged the expert’s causation opinion should be stricken because he could not rule out
with reasonable medical certainty or reasonable medical probability other non-negligent
causes of the retinal detachment, and his causation opinions were unreliable, speculative,
and /or constituted nothing more than ipse dixit.
In our analysis, among other factors, we consider the six Robinson factors as
follows:
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(1) the extent to which the theory has been or can be tested;
(2) the extent to which the technique relies upon the subjective interpretation
of the expert;
(3) whether the theory has been subjected to peer review and publication;
(4) the technique’s potential rate of error;
(5) whether the underlying theory or technique has been generally accepted
as valid by the relevant scientific community; and
(6) the non-judicial uses that have been made of the theory or technique.
923 S.W.2d at 557. See also Merrell Dow Pharmaceuticals, Inc. v. Havner, 953 S.W.2d
706, 714 (Tex. 1997). Further, the reliability requirement of Rule 702 of the Texas Rules
of Evidence focuses on the principles, research, and methodology underlying an expert’s
conclusions. In Couch, we held that expert testimony is unreliable if it is not grounded in
the methods and procedures of science and is no more than subjective belief or
unsupported speculation. 108 S.W.3d at 341.
We continue our analysis by considering factors two, three, and five discussed in
Robinson with relevant portions of Lustbader’s testimony. By his deposition, he
acknowledged:
• he knew of no scientific studies or any published literature to support
his causation opinion;
• he was unaware of any prevailing authority that discussed the
technique of using a suture versus a sulcus method of adhesion;
• he acknowledged he had never published any article or comment
regarding the procedure or his opinion;
• he did not recall ever seeing any article from a recognized journal that
supported his opinion during the last 13 years;
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• he had never seen, diagnosed, read about, or studied a situation
whereby an inferiorly dislocated lens will cause a retinal detachment;
and
• his opinion was based on his training and experience.
Citing Gammill v. Jack Williams Chevrolet, Inc., 972 S.W.2d 713, 726 (Tex. 1998),
Brazil contends the Robinson factors are not applicable because Brazil’s surgery was
unusual “for today” and that both experts agreed the absence of medical literature and
research into these surgical circumstances is the result of continuing changes regarding
this type of surgery and how it is now performed. However, although Gammill suggests
that experience may provide a sufficient basis for an expert’s testimony in some cases, it
also recognizes that such is not true in every case. Id. at 722. The fact that the expert’s
opinion has not been published or evaluated in professional journals does not compel a
determination that his opinion is wrong, however the absence of any review or evaluation
by third parties renders his personal opinion unreliable. See Couch, 108 S.W.3d at 341-
42.
To constitute evidence of causation, an expert opinion must rest in reasonable
medical probability. Insurance Co. of North America v. Myers, 411 S.W.2d 710, 713 (Tex.
1966). Later, in Burroughs Wellcome Co. v. Crye, 907 S.W.2d 497, 500 (Tex. 1995), the
Court acknowledged the need to avoid opinions based on speculation and conjecture.
Even assuming that Lustbader’s opinion based on his personal experience in Washington
D.C. is correct, a question we do not decide, the absence of medical literature at this time
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and general knowledge in the medical community of the procedure recommended by
Lustbadfer renders a determination of the foreseeability element of proximate cause
speculative. See Leitch v. Hornsby, 935 S.W.2d 114, 119 (Tex. 1996).
Brazil suggests that Marvelli v. Alston, 100 S.W.3d 460, 479 (Tex.App.--Fort Worth
2003, pet. denied), supports his position that the absence of medical literature does not
render the opinion merely subjective and ipse dixit statements. However, Marvelli is not
controlling because, considering the evidence presented there, the gatekeeper concluded
that the expert’s opinions were not merely subjective ipse dixit statements unsupported by
scientific principle or data and were reliable. Moreover, the Robinson factors do not
constitute the legal equivalent of a litmus test, but instead, furnish guidelines for the trial
court to use in determining the relevance and reliability requirements in discharging its duty
as the gatekeeper. Here, however, based on the evidence before it, in exercising its
discretion, the gatekeeper excluded the expert’s opinion as to causation. Concluding that
Brazil has not met his burden, we find the trial court did not abuse its discretion in striking
Lustbader’s expert testimony regarding causation and, consequently signing the partial
summary judgment. Brazil’s sole issue is overruled.
Accordingly, the interlocutory order granting the no-evidence summary judgment in
part is affirmed.
Don H. Reavis
Justice
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