in Re Iftikhar Ahmed, P.A. and Farhan Khan, M.D.

Opinion issued February 25, 2020

In The

Court of Appeals
For The

First District of Texas
————————————
NO. 01-19-00584-CV
———————————
IN RE IFTIKHAR AHMED, P.A. AND FARHAN KHAN, M.D., Relators

Original Proceeding on Petition for Writ of Mandamus

MEMORANDUM OPINION

Relators, Iftikhar Ahmed, P.A. and Farhan Khan, M.D., have filed a petition

for writ of mandamus challenging the trial court’s order granting a new trial on the

basis of newly discovered evidence.1 We conditionally grant the petition.

1
The underlying case is Lena Savanah, Individually, and as Estate Representative
for Decedent Joseph Nicholson, and Ericka Palmer as Next Friend of Minor Child
v. Houston Northwest Operating Company, LLC, d/b/a Houston Northwest Medical
Center, Iftikhar Ahmed PA, Dr. Bhushan Kukkalli, Lauralyn Denton RN, Wanda
Zoeller RN, and Dr. Farhan Khan, cause number 2016-76925, pending in the 113th
District Court of Harris County, Texas, the Honorable Rabeea Collier presiding.
 Background

On November 8, 2016, Joseph Nicholson was examined at a CVS Minute

Clinic where he tested positive for strep throat and was prescribed penicillin for ten

days. Five days later, on November 13, 2016, Nicholson went to the emergency

room at Houston Northwest Medical Center and reported that he had a sore throat

for a week and intermittent fever and chills. In the emergency room, he was treated

by Iftikhar Ahmed, a licensed physician’s assistant. Ahmed conducted a physical

exam and took a medical history. The medical notes state that Nicholson did not

have a fever, but that he had enlarged tonsils with exudate and swelling, indicating

his strep infection had not been cleared by the penicillin. Ahmed diagnosed

Nicholson with tonsillitis, prescribed a new antibiotic and Ibuprofen, and discharged

him with instructions to follow up with an ear, nose, and throat specialist in two-to-

three days. The next day, Dr. Farhan Khan reviewed and signed off on the chart as

part of the hospital’s standard quality control protocol.

On November 18, 2016, five days after being seen at the emergency room,

EMS was called and found Nicholson unresponsive in his bathroom. He was

intubated and taken to the hospital where, despite multiple rounds of medications,

he could not be resuscitated. The medical examiner concluded that the primary cause

of death was acute myeloid leukemia with involvement of the skin, tonsils, lymph

2
nodes, epiglottis, spleen, lungs, heart, kidneys, liver, testes, and brain. The secondary

finding was sepsis from two strains of bacteria.

The Underlying Trial

Nicholson’s mother and daughter filed a wrongful death suit against various

health care providers and facilities, including Ahmed and Dr. Khan, alleging medical

negligence and gross negligence. Plaintiffs asserted that when Nicholson presented

to the emergency room with a sore throat, he also had evidence of hemorrhage from

facial lesions and black tarry stools. At trial, they provided testimony from

Nicholson’s mother that he had blood in his stool, as well as an EMS report from

November 18, 2016, stating that Nicholson had mentioned this complaint when seen

at the emergency room on November 13. Plaintiffs also provided testimony from

Nicholson’s mother and sister that he had lesions on his face, and the autopsy report,

which described facial scabs.

Plaintiffs’ sole expert, Dr. Arnold D. Rubin, testified that (1) based on this

evidence of bleeding, Nicholson should have had a blood test to determine the cause

of the blood loss, and (2) based on the leukemic cells that he believed would have

been identified by these tests, Nicholson would have been presumed to have acute

promyelocytic leukemia, a specific sub-type of acute myeloid leukemia that

Plaintiffs contend can be effectively treated within days. Dr. Rubin conceded that

the findings in the autopsy report for the alleged lesions on Nicholson’s face were

3
excoriations (scabs) and not petechiae (spots that appear on the skin as a result of

bleeding), and it was possible that there was no rash or splotches on his skin at the

time of the emergency room visit. Dr. Rubin further conceded that the autopsy did

not mention a massive hemorrhage or bleed.

On January 10, 2019, the jury rendered a verdict in favor of the defendants,

finding that Nicholson’s death was not caused by either negligence or gross

negligence. Accordingly, the trial court signed a final take-nothing judgment on

March 4, 2019.

Plaintiffs’ Motion for New Trial

On January 25, 2019, after the jury returned a verdict for the defense, Plaintiffs

filed a third-party subpoena to obtain autopsy photographs from the medical

examiner. On April 3, 2019, the thirtieth day after judgment was signed, Plaintiffs

filed a motion for new trial, asserting that the autopsy photographs warranted a new

trial. Relators received service of the motion without any attachments or exhibits.

The filing was returned from the e-filing system due to improper formatting and

Plaintiffs refiled the motion the next day. On April 4, 2019, Relators received service

of the motion with 40 autopsy photograph exhibits attached. Thirty-two of the

photographs were file-stamped by the trial court on April 4, 2019, but the motion

and the remaining seven photographs were not file-stamped until April 5, 2019.

4
 The trial court later granted Plaintiffs’ motion to amend the petition to include

an affidavit by their counsel, Todd E. Webb, in support of the motion for new trial.

The affidavit was notarized on April 4, 2019 but was not filed until May 1, 2019.

The affidavit consists of bare assertions that the requirements for a new trial on the

ground of newly discovered evidence were met. Specifically, Webb averred the

following in his affidavit:

4. All allegations made in the attached Motion for New Trial
requiring the presentation of evidence are true and correct.
5. Evidence has come to light since the time of trial therefor [sic]
it was impossible to present the evidence before the trial closed.
6. It was not because of a lack of due diligence that the
information did not come sooner.

7. The new evidence is not cumulative.

8. The evidence is so material that it would probably produce a
different result in a new trial.
The affidavit did not provide any specific details or explanation in support of these

assertions.

The trial court granted the motion for new trial on June 12, 2019. The order

states in relevant part:

Plaintiffs brought a survivor and wrongful death claim against
Defendants for medical malpractice based upon the untimely
death of Joseph Nicholson who died on November 11, 2014. A
jury returned a verdict for defendants’ [sic] finding the
defendants were not negligent. However, after trial, Plaintiffs’
[sic] discovered new evidence in the form of over forty autopsy
photographs from the Harris County Institute of Forensic

5
 Science. The Court finds that the new evidence has been
discovered since trial; the failure to discover the evidence prior
to trial was not because of lack of due diligence; the evidence is
not cumulative; and the evidence is so material that it would
probably produce a different verdict. For these reasons, the Court
grants Plaintiffs’ Motion for New Trial.

This mandamus petition followed.

Standard of Review for Mandamus Relief

To be entitled to mandamus relief, a relator must demonstrate (1) the trial

court clearly abused its discretion and (2) the relator has no adequate remedy by

appeal. In re Reece, 341 S.W.3d 360, 364 (Tex. 2011). A trial court clearly abuses

its discretion if it reaches a decision so arbitrary and unreasonable as to amount to a

clear and prejudicial error of law or if it clearly fails to analyze the law correctly or

apply the law correctly to the facts. In re Cerberus Capital Mgmt., L.P., 164 S.W.3d

379, 382 (Tex. 2005).

The Texas Supreme Court has recognized that an erroneous grant of a new

trial presents an extraordinary circumstance warranting mandamus relief. See In re

Toyota Motor Sales, U.S.A., 407 S.W.3d 746, 759 (Tex. 2013) (orig. proceeding).

The Court has explained that “absent mandamus review,” parties “will seemingly

have no appellate review” of orders granting new trials. In re Columbia Med. Ctr. of

Las Colinas, Subsidiary, L.P., 290 S.W.3d 204, 209 (Tex. 2009) (orig. proceeding).

Even if a party could obtain appellate review of a new-trial order following a second

trial, it could not obtain reversal of an unfavorable verdict unless it convinced an

6
appellate court that the granting of the new trial constituted harmful

error. Id. Furthermore, even if an unfavorable verdict were reversed and rendered in

the party’s favor, it would have to endure the time and expense of a second

trial. Id. at 209–10. Thus, parties challenging the granting of a new trial lack an

adequate appellate remedy. Id. at 210. Because Relators lack an adequate remedy by

appeal, we focus on whether the trial court abused its discretion in granting

Plaintiffs’ motion for new trial.

Discussion

Relators assert that mandamus relief is warranted for three reasons: (1) the

new trial order is void because the motion for new trial was untimely filed and

“invalid” for lack of supporting documentation, (2) the new trial order is facially

invalid because it is no more than a pro forma template listing the legal standard and

lacks the required specificity for granting a new trial, and (3) even if the order were

specific enough to support a new trial, the trial court abused its discretion in granting

the motion because the reasons articulated are not supported by the underlying

record. We address these arguments in turn.

A. Trial Court’s Jurisdiction to Issue New Trial Order

Relators argue that the new trial order is void because the trial court lacked

jurisdiction to issue the order. Specifically, Relators assert that the trial court’s

7
plenary power expired thirty days after the judgment was signed because Plaintiffs

“failed to timely file a valid motion for new trial.”

A trial court has plenary power to grant a new trial within 30 days after signing

a judgment. TEX. R. CIV. P. 329b(d); see In re Brookshire Grocery Co., 250 S.W.3d

66, 69 (Tex. 2008) (orig. proceeding). If a motion for new trial is timely filed, then

the trial court has plenary power to grant a new trial until 30 days after all such

timely motions are overruled, either by written or signed order or by operation of

law, whichever occurs first. TEX. R. CIV. P. 329b(e). But if a motion for new trial is

not timely filed, the trial court’s plenary period only extends until 30 days after the

final judgment was signed. TEX. R. CIV. P. 329b(d); Brookshire, 250 S.W.3d at 69.

A motion for new trial is timely if it is filed within 30 days after the judgment is

signed. TEX. R. CIV. P. 329b(a).

Counsel for plaintiffs asserted during a hearing before the trial court that they

filed their new trial motion on April 3, 2019, the thirtieth day after the judgment, but

the filing was rejected due to formatting errors and the motion was refiled on April

4, 2019. Texas Rule of Civil Procedure 21(f)(6) provides that “[i]f a document is

untimely due to a technical failure or a system outage, the filing party may seek

appropriate relief from the court.” TEX. R. CIV. P. 21(f)(6). In their mandamus

petition, Relators argue that (1) Plaintiffs cannot demonstrate that they attempted to

file the motion on April 3, 2019, and (2) even if they could, the motion Plaintiffs

8
attempted to file on April 3, 2019 lacked required supporting documentation to be

considered valid.

As to Relators’ first argument, the record contains e-filing notifications

demonstrating that Plaintiffs attempted to file a motion for new trial on April 3, 2019

and that the filing was rejected due to formatting errors. Relators acknowledged this

in their pleadings before the trial court. For instance, in their objection to the motion

for new trial, Relators argued that the new trial motion was filed on April 3, 2019,

but was invalid because it lacked supporting evidence. Similarly, in opposing

Plaintiffs’ motion for leave to amend the new trial motion to include evidence,

Relators asserted that “Plaintiffs attempted to meet [the April 3, 2019] deadline by

filing an unverified, unsubstantiated Motion for New Trial (Motion) on that day, but

were forced to refile the following day due to formatting errors.” Relators

acknowledged that the trial court could evaluate the late evidence under its inherent

authority, but argued that the trial court should decline to consider the evidence and

deny both the new trial motion and the motion to amend. Relators never disputed the

trial court’s jurisdiction to consider the motions. To the extent that Relators now

dispute that Plaintiffs attempted to file their new trial motion on April 3, 2019 and

the motion was rejected, this is a disputed issue of fact that we decline to address in

a mandamus proceeding. See In re Woodfill, 470 S.W.3d 473, 478 (Tex. 2015) (orig.

proceeding).

9
 Relators alternatively argue that, even if the new trial motion was filed on the

April 3, 2019 deadline, the trial court still lacked jurisdiction because the motion

was invalid. Specifically, Relators argue that the motion was invalid because it

lacked supporting evidence when filed and, thus, did not extend the trial court’s

plenary power under Rule 329b. Relators fail to provide authority for their

proposition that the failure to include supporting evidence with a motion for new

trial invalidates the motion such that it does not constitute a new trial motion

extending the trial court’s plenary power. Moreover, this argument runs counter to

Relators’ arguments to the trial court. In opposing the new trial motion and the

motion to amend, Relators did not dispute the trial court’s jurisdiction to consider

the motions; instead, Relators argued that the trial court had authority to consider

late filed evidence in support of the new trial motion but should decline to do so.

Although Relators argued to the trial court—as they do in this mandamus petition—

that parties should not be allowed to file supporting evidence after the deadline for

filing a new trial motion, the decision to consider the evidence is a matter left to the

discretion of the trial court. See Moritz v. Preiss, 121 S.W.3d 715, 720 (Tex. 2003).

Relators assert that their challenging of the trial court’s jurisdiction on this

basis is a matter of first impression in Texas. But we decline Relators’ invitation to

elevate sufficiency of support for a new trial motion to an issue of jurisdiction,

particularly when such a holding is not necessary for us to conclude that mandamus

10
relief should be granted in this case. As discussed below, unlike Relators’

jurisdictional challenge, Relators’ challenges to the facial validity and merits of the

new trial order—both of which are independent grounds for granting mandamus

relief—are supported by well-established authority. Thus, regardless of Relators’

jurisdiction argument, we reach the same result—i.e., that the trial court abused its

discretion in granting the new trial motion. See, e.g., Lopez v. Lopez, 55 S.W.3d 194,

202 (Tex. App.—Corpus Christi-Edinburg 2001, no pet.) (affirming trial court’s

denial of motion for new trial because, even assuming appellant’s argument that

motion was timely and trial court had jurisdiction, trial court did not abuse its

discretion in denying motion on merits).

Accordingly, we conclude that the trial court had jurisdiction to consider the

new trial motion and evaluate the new trial order for an abuse of discretion.

B. Review of New Trial Order

Although trial courts are afforded broad discretion in granting new trials, a

trial court’s discretion to order a new trial is not “limitless.” Columbia, 290 S.W.3d

at 210, 213; see also TEX. CONST. art. 1, § 15 (right to trial by jury “shall remain

inviolate”); In re Wyatt Field Serv. Co., 454 S.W.3d 145, 152 (Tex. App.—Houston

[14th Dist.] 2014, orig. proceeding) (“[W]e may not substitute our judgment for that

of the trial court. But neither may the trial court substitute its judgment for that of

the jury in granting a new trial.”). When a trial court orders a new trial after a case

11
has been tried to a jury, the parties “‘are entitled to an understandable, reasonably

specific explanation why their expectations are frustrated by a jury verdict being

disregarded or set aside, the trial process being nullified, and the case having to be

retried.’” In re Bent, 487 S.W.3d 170, 175–76 (Tex. 2016) (quoting Columbia, 290

S.W.3d at 213).

Accordingly, a trial court, in its order granting a new trial, must state a reason

for doing so. Columbia, 290 S.W.3d at 213. The trial court’s “stated reason” must

be (1) “legally appropriate,” articulating a “well-defined legal standard” or a “defect

that probably resulted in an improper verdict,” and (2) “specific enough to indicate

that the trial court did not simply parrot a pro forma template, but rather derived the

articulated reason[ ] from the particular facts and circumstances from the case at

hand.” Bent, 487 S.W.3d at 176 (quoting In re United Scaffolding, Inc., 377 S.W.3d

685, 688–89 (Tex. 2012) (granting mandamus relief where trial court’s order

premised on bare assertion new trial warranted “in the interests of justice and

fairness”)). If the trial court’s order granting a new trial satisfies these facial

requirements, an appellate court may “conduct a merits review of the bases for

[the] new trial order” and “grant mandamus relief ‘[i]f the record does not support

the trial court’s rationale for ordering a new trial.’” Bent, 487 S.W.3d at

173 (quoting In re Toyota Motor Sales, U.S.A., Inc., 407 S.W.3d 746, 749 (Tex.

2013)); see also United Scaffolding, 377 S.W.3d at 688-89 (trial court’s grant of new

12
trial subject to mandamus review); In re United Servs. Auto Ass’n, 466 S.W.3d 162,

170 (Tex. App.—Houston [1st Dist.] 2014, orig. proceeding).

Our review of the new trial order thus involves two steps. First, we review the

sufficiency of the trial court’s stated reasons for granting the new trial. United

Scaffolding, Inc., 377 S.W.3d at 688-89. Second, if the stated reasons are facially

valid, we conduct a merits-based review of the reasons. Toyota, 407 S.W.3d at 749,

758.

1. Facial Sufficiency of New Trial Order

Relators assert that the new trial order is facially invalid because it is no more

than a pro forma template listing the legal standard and lacks the required specificity

for granting a new trial. We agree.

A new trial order must provide a clear explanation of why a jury verdict is

being set aside. Columbia, 290 S.W.3d at 213. The stated reason must be (1) “a

reason for which a new trial is legally appropriate” and (2) “specific enough to

indicate that the trial court did not simply parrot a pro forma template, but rather

derived the articulated reason from the particular facts and circumstances of the case

at hand.” United Scaffolding, 377 S.W.3d at 688–689.

In this case, the order meets the first requirement because it provides that a

new trial is being granted on the basis of newly discovered evidence, which is a

legally appropriate reason for granting a new trial. See Waffle House, Inc. v.

13
Williams, 313 S.W.3d 796, 813 (Tex. 2010). Although Relators assert that the

reasons are not legally appropriate, their arguments pertain to the merits of granting

a new trial on the basis of newly discovered evidence rather than facial sufficiency.

We thus consider the second requirement and determine whether the trial court's

stated reasons for granting the new trial are specific enough to indicate that the trial

court derived the articulated reasons from the particular facts and circumstances of

the case at hand. See id. The new trial order fails this specificity requirement.

A new trial order must provide “an understandable, reasonably specific

explanation” for the order. Columbia, 290 S.W.3d at 213. In reviewing the trial

court’s order, we focus “not on the length or detail of the reasons a trial court gives,

but on how well those reasons serve the general purpose of assuring the parties that

the jury’s decision was set aside only after careful thought and for valid reasons.”

United Scaffolding, 377 S.W.3d at 688.

Mandamus relief is appropriate when a trial court abuses its discretion by

issuing a new trial order that fails to comply with this facial specificity requirement.

The Texas Supreme Court has directed as follows:

[M]andamus may lie if the order, though rubber-stamped with a valid
new-trial rationale, provides little or no insight into the judge's
reasoning. Usually, the mere recitation of a legal standard, such as a
statement that a finding is against the great weight and preponderance
of the evidence, will not suffice. The order must indicate that the trial
judge considered the specific facts and circumstances of the case at
hand and explain how the evidence (or lack of evidence) undermines
the jury’s findings. A trial court abuses its discretion if its new-trial
14
 order provides no more than a pro forma template rather than the trial
judge’s analysis. This two-part test adequately ensures that jury verdicts
are not overturned without specific and proper reasons, while still
maintaining trial courts’ discretion in granting new trials.

Id. at 689; see Toyota, 407 S.W.3d at 757.

Here, the new trial order fails to satisfy the facial specificity requirements set

forth in Columbia and United Scaffolding. The trial court’s order is a “pro forma

template” stating that the autopsy photographs meet the requirements for granting a

new trial on the basis of newly discovered evidence. United Scaffolding, 377 S.W.3d

at 688. The order provides in relevant part:

[A]fter trial, Plaintiffs’ [sic] discovered new evidence in the form of
over forty autopsy photographs from the Harris County Institute of
Forensic Science. The Court finds that the new evidence has been
discovered since trial; the failure to discover the evidence prior to trial
was not because of lack of due diligence; the evidence is not
cumulative; and the evidence is so material that it would probably
produce a different result.

The mere recitation of the legal standard for granting a new trial on the basis of

newly discovered evidence is facially insufficient. See id. The order fails to provide

insight into the court’s reasoning. It provides no “specific facts and circumstances”

of the case in support of the ruling. Id. In sum, the order fails to assure the parties

that the decision to take away a jury verdict was made only after careful thought and

for valid reasons. See id. at 688.

Accordingly, we conclude that the trial court abused its discretion in issuing

a facially insufficient new trial order. When a new trial order fails to satisfy facial

15
requirements, we need not normally conduct a merits review of the order and may

grant mandamus relief directing the trial court to vacate its new trial order and issue

a new order specifying its reasons for ordering a new trial. See In re State, No. 14-

18-00773-CV, 2018 WL 5074536, at *1–2 (Tex. App.—Houston [14th Dist.] Oct.

18, 2018, no pet.). In this case, however, ordering the trial court to issue a new order

specifying its reasons for granting a new trial on the basis of the autopsy photographs

would be futile because the record does not support granting a new trial on the basis

of newly discovered evidence. In the interest of judicial efficiency, we address the

merits of the new trial order below.

2. Merits of New Trial Order

Relators assert that, even if the order were specific enough to support a new

trial, the trial court abused its discretion in granting a new trial because the reasons

articulated are not supported by the underlying record. We agree.

When a new-trial order satisfies the facial requirements discussed above,

appellate courts may “conduct a merits review of the bases for a new trial order” and

grant mandamus relief “[i]f the record does not support the trial court’s rationale for

ordering a new trial.” Toyota, 407 S.W.3d at 749. “To deny merits-based review

would mean that a trial court could set aside a verdict for reasons that are

unsupported by the law or the evidence, as long as those reasons are facially valid.”

Id. at 758. We review the merits of a new-trial order under the abuse-of-discretion

16
standard “familiar and inherent to mandamus proceedings.” Bent, 487 S.W.3d at

177–78.

A party seeking a new trial on grounds of newly discovered evidence must

demonstrate that “(1) the evidence has come to its knowledge since the trial, (2) its

failure to discover the evidence sooner was not due to lack of diligence, (3) the

evidence is not cumulative, and (4) the evidence is so material it would probably

produce a different result if a new trial were granted.” Waffle House, 313 S.W.3d at

813; see Chapman v. Abbot, 251 S.W.3d 612, 620 (Tex. App.—Houston [1st Dist.]

2007, no pet.).

Addressing these elements, Relators assert that the trial court abused its

discretion in granting a new trial because the record demonstrates that (1) Plaintiffs

would have discovered the autopsy photographs sooner had they acted diligently,

(2) the photographs are cumulative of evidence adduced at trial, and (3) the

photographs are not so material they would produce a different result in a new trial.

We conclude that Plaintiffs failed to demonstrate that the autopsy photographs could

not have been discovered sooner with reasonable diligence and further failed to

demonstrate that the autopsy photos are not cumulative of other evidence. Because

Plaintiffs failed to meet their burden as to these elements, we do not reach the issue

of whether the photos would produce a different result if a new trial were granted.

17
 a) Diligence in Discovering the Autopsy Photographs

A party seeking new trial on the basis of newly discovered evidence must

prove that it was diligent in attempting to discover the evidence before trial. See

Waffle House, 313 S.W.3d at 813; see also Jackson v. Van Winkle, 660 S.W.2d 807,

810 (Tex. 1983), overruled in part on other grounds by Moritz v. Preiss, 121 S.W.3d

715, 721 (Tex. 2003). “A movant’s mere allegations will not suffice to obtain a new

trial on the basis of newly discovered evidence; rather, admissible evidence must be

introduced at a hearing on the motion for new trial establishing such essential facts

as no prior knowledge on the part of the movant, the prior diligence exercised by the

movant, and the nature of the newly discovered evidence.” Strong v. Strong, 350

S.W.3d 759, 772 (Tex. App.—Dallas 2011, pet. denied).

In support of their motion for new trial, Plaintiffs asserted that they did not

seek the autopsy photographs until after trial because (1) they did not know that the

photographs existed and (2) they did not think the examiner’s findings would be

challenged. As discussed below, the record fails to demonstrate that Plaintiffs were

diligent in seeking the autopsy photographs before trial. Rather, the record

demonstrates that Plaintiffs did not seek out the evidence until after trial.

At the outset, we note that Plaintiffs’ response to the mandamus petition fails

to adequately dispute the lack of diligence. Plaintiffs’ discussion of diligence is

limited to the following:

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 After close of trial, plaintiff’s counsel learned of autopsy photographs
that were not discovered until after trial. Dr. Wolf of the Harris County
Institute of Forensic Sciences revealed the photographs to plaintiff’s
counsel after a post-trial discussion about defense witness Dr. Haffar’s
testimony disputing significant representations of petechiae on Joseph
Nicholson’s body and bleeding in the period leading to Nicholson’s
death. When the trial court inquired into plaintiff counsel’s due
diligence in obtaining the newly discovered autopsy photographs,
counsel explained that the autopsy photographs were given to him only
because of his post-trial conversation with Dr. Wolf about the defense
witnesses’ denial of significant representations of symptoms (petechiae
and hemorrhaging) associated with AML subtype APL on Nicholson’s
body.

As with Plaintiffs’ arguments to the trial court, this response fails to explain any

basis for concluding that the autopsy photographs could not have been discovered

prior to the close of trial.

Plaintiffs’ only evidence addressing the issue of diligence is an affidavit of

their counsel, Todd Webb, which states that “[e]vidence has come to light since the

time of trial therefor [sic] it was impossible to present the evidence before the trial

closed,” and “[i]t was not because of a lack of due diligence that the information did

not come to light sooner.” These conclusory statements do not illustrate any search

for evidence conducted by Plaintiffs to prepare for trial nor do they explain why

Plaintiffs could not have discovered the autopsy photographs before trial. See

Burrow v. Arce, 997 S.W.2d 229, 235–36 (Tex. 1999) (lawyer-affiant must provide

factual basis for court to evaluate and cannot merely state legal conclusions);

Landers v. State Farm Lloyds, 257 S.W.3d 740, 744 (Tex. App.—Houston [1st Dist.]

19
2008, no pet.) (lawyer’s affidavit of diligence in support of motion for continuance

seeking time for discovery to oppose summary judgment “must state with

particularity what diligence was used; conclusory allegations of diligence are not

sufficient”). A lawyer–affiant “cannot simply say, ‘Take my word for it, I know,’”

but must instead provide a factual basis for the court to evaluate. Burrow, 997

S.W.2d at 236. Although counsel for Plaintiffs further explained details at the

hearing on the new trial motion, an attorney’s argument does not constitute evidence

and cannot be relied upon to meet Plaintiffs’ burden of demonstrating diligence. See

Cleveland v. Taylor, 397 S.W.3d 683, 693 (Tex. App.—Houston [1st Dist.] 2012,

pet. denied) (“Neither an attorney’s arguments nor the pleadings or motions of a

party constitute evidence.”).

Even if arguments of counsel could be used to satisfy their burden, Plaintiffs’

various arguments fail to demonstrate the required diligence. In support of their

motion for new trial, Plaintiffs asserted that “[w]hen Plaintiffs’ counsel requested

the autopsy report and blood slides from the Examiner’s office, Plaintiff did not

know the pictures existed nor did counsel know the entire file had not been

produced.” Thus, Plaintiffs only requested specific evidence from the medical

examiner—the autopsy report and specimen slides—which they received. Plaintiffs

neither allege nor present any evidence that they requested all records related to the

autopsy or asked if other records existed while preparing for trial.

20
 Plaintiffs asserted in their pleadings to the trial court that they “did not seek

additional information [beyond the autopsy report and blood slides] from the

examiners’ office because Plaintiffs’ did [sic] think the doctors’ [sic] would

challenge the examiners’ findings without medical support.”2 Inaccurately

predicting the amount or quality of evidence required to prove one’s case does not

excuse failing to timely discover evidence. See New Amsterdam Cas. Co. v. Jordan,

359 S.W.2d 864, 866 (Tex. 1962) (noting that “public policy, looking to the finality

of trials, requires that parties be held to diligence in preparing their cases, and that

they shall not be allowed a second trial because they mistook the amount of

testimony requisite.”) (quoting Wolf v. Mahan, 57 Tex. 171, 172 (1882)); Mitchell

v. Bass, 26 Tex. 372, 376–77 (1862) (“The losing party too often finds it an easy

matter to obtain new evidence to supply former deficiencies. It is easy to claim the

discovery of new evidence, when the claim is really unfounded, or the result of

negligence in the first preparation; and it would be of dangerous consequence to the

rights of parties and the safe administration of justice, for the courts to grant new

trials to parties merely to correct their own error, when they discovered where they

2
Relators assert that this statement mischaracterizes the defense because they did not
challenge the examiner’s findings and, instead, relied heavily on the autopsy report.
We note Plaintiffs’ argument not for its veracity, but only as a purported reason for
not seeking the autopsy photographs sooner.
21
were deficient, and when the requisite industry and vigilance would have supplied

the deficiency in time.”).

Counsel for Plaintiffs further explained during the hearing on the new trial

motion that, after the jury returned a verdict for the defense and “after [counsel] read

the case law,” Plaintiffs’ counsel called the medical examiner to discuss the evidence

from trial, ask what other evidence would be available, and inquire about how to

request the autopsy report and photographs from the autopsy. Choosing not to

conduct these inquiries and research before trial demonstrates a lack of diligence in

obtaining the autopsy photographs.

If the movant could have used the same effort and technique to procure the

evidence before trial, then the movant has not acted diligently. Dorbandt v. Jones,

492 S.W.2d 601, 603 (Tex. Civ. App.—Austin 1973, writ ref’d n.r.e.) (“It is said

that diligence has not been exercised if the same effort used to procure the testimony

subsequent to trial would have had the same result if exercised prior to trial.”); Zhao

v. Hudgens Group, Inc., No. 14-10-00081-CV, 2011 WL 2347709, at *10 (Tex.

App.—Houston [14th Dist.] Jun. 7, 2011, no pet.) (affirming denial of new trial

because movant failed to demonstrate diligence where “all of the evidence [movant]

claims to have discovered post-trial appears to be of types that could have been

discovered through the effective use of standard pretrial discovery techniques.”).

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 Here, the same technique used after trial—talking to the medical examiner

and asking if other evidence existed—would have fully informed Plaintiffs of the

autopsy photographs before trial. See Dorbandt, 492 S.W.2d at 603; Zhao 2011 WL

2347709, at *10. In fact, as Relators correctly note in their petition, the medical

examiner’s publicly available information states that it photographs each autopsy it

performs.3 Furthermore, Texas statutes governing autopsy records expressly provide

that photographs are subject to disclosure under a subpoena. TEX. CODE CRIM. PROC.

art. 49.25, § 11(a)(1). A diligent search before trial would have informed Plaintiffs

not only of the photographs’ existence, but also the method for procuring them.

Accordingly, the trial court abused its discretion in granting the motion for

new trial because Plaintiffs failed to demonstrate due diligence in seeking the

autopsy photographs.

b) The Autopsy Photographs are Cumulative Evidence

Newly discovered evidence will not support a new trial if it is cumulative of

evidence discovered before trial. Waffle House, 313 S.W.3d at 813. Evidence is

cumulative if the party had access to other evidence that would convey the same

facts with the same degree of credibility. State v. Arizmendi, 519 S.W.3d 143, 150

(Tex. Crim. App. 2017). If the specific fact or proposition the evidence tends to

3
Medical Examiner Service: Forensic Imaging, HARRIS CTY. INST. OF FORENSIC
SCIENCES, https://ifs.harriscountytx.gov/Pages/MedicalExaminerService.aspx.
23
prove was raised through previously introduced evidence, then the evidence is

cumulative. See New Amsterdam, 359 S.W.2d at 866.

The autopsy photographs are cumulative of evidence introduced and

discussed during trial. Among other things, the autopsy photos are mere visual

representations of the detailed descriptions of Nicholson’s external appearance and

organs provided in the autopsy report. The record demonstrates that the autopsy

report was introduced into evidence and extensively discussed in testimony at trial,

including expert testimony from plaintiff and defense experts on Nicholson’s

external appearance.

Plaintiffs’ response to the mandamus petition fails to dispute that the autopsy

photographs are cumulative of the autopsy report and other evidence introduced at

trial. In their trial court pleadings, however, Plaintiffs asserted that the autopsy

photographs were not cumulative because “[t]he pictures show various organs and

parts of the body that Plaintiff did not have at trial” and “are different pictures.” But

these arguments only address whether the pictures are new, not whether they are

cumulative of the descriptions provided in the autopsy report.

Plaintiffs’ own description in their motion for new trial of the purported

importance of the autopsy photographs demonstrates that they are cumulative: “The

new photographic evidence provides a unique and visual confirmation of the

hemorrhaging petechiae, and leukemic cells that was described within the Harris

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County Examiner’s autopsy report.”4 Confirmatory evidence is cumulative, not new,

and Plaintiffs fail to demonstrate that the photographs will show any new facts

distinct from those already present in the autopsy report’s findings. See, e.g., Nat’l

Bugmobiles, Inc. v. Jobi Properties, 773 S.W.2d 616, 618 (Tex. App.—Corpus

Christi-Edinburg 1989, writ denied) (“[A]ppellant argues in its brief that the

document merely ‘confirms’ other testimony which was admitted. Thus, the

excluded document was merely cumulative of other evidence.”); see also Zurita v.

Lombana, 322 S.W.3d 463, 480 n.9 (Tex. App.—Houston [14th Dist.] 2010, pet

denied) (noting that lawyer’s “confirming” testimony was cumulative).

Contrary to Plaintiffs’ assertions, the photographs cannot confirm the

presence of leukemic cells. Unmagnified photographs of a body and organs do not

show individual cells, much less a particular cancer subtype. Both plaintiff and

defense experts acknowledged that there were leukemic cells found in the autopsy.

Thus, the photographs do not reveal anything beyond the undisputed evidence.

Plaintiffs also assert that the photos confirm that Nicholson exhibited outward

representations of petechia, a characteristic associated with AML subtype APL. But

experts on both sides testified at trial that the facial scabs described in the autopsy

4
Plaintiffs similarly assert that “[t]he new evidence is not cumulative of other
evidence at trial, nor is it solely impeaching evidence, in that it provides
confirmatory evidence that supports a finding of acute myeloid leukemia subtype
APL.”
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report were scratches, not petechiae. Plaintiffs fail to demonstrate that the

photographs provide anything more than a visual representation of these

descriptions.

Accordingly, trial court abused its discretion in granting the motion for new

trial because the autopsy photographs are cumulative evidence.

Conclusion

For the forgoing reasons, we conditionally grant the petition for writ of

mandamus and direct the trial court to (1) vacate its order granting a new trial and

(2) deny the motion for new trial. We are confident that the trial court will promptly

comply, and our writ will issue only if it does not. We dismiss any pending motions

as moot.

Sarah Beth Landau
Justice

Panel consists of Chief Justice Radack and Justices Landau and Hightower.

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