Schaefer v. Texas Employers' Insurance Ass'n

ON MOTION FOR REHEARING

SPEARS, Justice,

dissenting.

I respectfully dissent.

The effect of the majority’s opinion is that the opinion testimony of an expert as to “probable cause” can be ignored by an appellate court if the court reaches an opposite conclusion based upon its own evaluation of the evidence. Such a rule is contrary to the prior decisions of this court. Stodghill v. Texas Employers’ Ins. Ass’n, 582 S.W.2d 102 (Tex.1979); Lucas v. Hartford Acc. & Indem. Co., 552 S.W.2d 796 (Tex.1977); Parker v. Employers Mutual Liab. Ins. Co. of Wisc., 440 S.W.2d 43 (Tex.1969). In each of those cases, we held that expert medical testimony that in reasonable medical probability there existed a causal connection between the disabling disease and injury or death was sufficient to overcome a “no evidence” objection. The majority’s heavy reliance on Insur. Co. of North America v. Myers, 411 S.W.2d 710, 713 (Tex.1966) is misplaced. There, the doctor would go no further than to say there was a, possibility that the injury caused the death, not that it was in reasonable medical probability the cause as is the medical testimony in this case.

Here, the evidence is that the employee, Bobby Schaefer, worked in a rural setting as a plumber, and was frequently exposed *206to soil contaminated with poultry and animal droppings. Dr. Anderson testified that in his opinion, Schaefer’s disease was of the avian strain and related to his massive exposure to contaminated soil associated with his occupation as a plumber.1

The majority complains that the particular type of mycobacterium intracellularis contracted by Schaefer was never identified by serotyping, and thus it was not known whether he had an avian strain, which is pathogenic to fowls, or a non-avian strain. Further, says the majority, the organism causing his problem has never been identified to be located in the soils where Schae-fer worked. Plaintiff’s expert was Dr. William Anderson, a medical doctor who was board certified in internal medicine with specialized training in pulmonary medicine, treatment of diseases of the lungs. He testified that the most virulent and treatment-resistant form of the disease is an avian type, and that Schaefer’s disease is particularly virulent and untreatable. It was so much so that Dr. Anderson characterized Schaefer’s as “the worst type of atypical disease that you can get,” and “his is by far the worst resistant to treatment of any I’ve ever seen.” Thus, the probability of the causal connection as testified to by Dr. Anderson is more than a possibility or a surmise and conjecture. If Schaefer had offered proof that the organism causing his disease was actually present in his work environment, i.e., in the very soil in which he worked, expert testimony of probable causation would not have been necessary) the jury would be able to infer the existence of this causal connection by the exercise of their general experience and common sense. Commercial Standard Fire and Marine Co. v. Thornton, 540 S.W.2d 521, 524 *207(Tex.Civ.App. — Texarkana 1976, writ ref’d n.r.e.).

What is most disturbing about the majority’s opinion is the retreat from the rule often announced by this court, i.e., the existence of direct medical testimony of a probable causal relationship between an occupational disease and the employment obviates the necessity for this court to concern itself with the scintilla rule or drawing inferences. Lucas v. Hartford Acc. & Indem. Co., supra. The majority, in effect, would require Schaefer to scientifically exclude all other reasonable explanations of his contracting his disease except for his employment before the doctor’s expert opinion that the employment was the probable cause would constitute any evidence sufficient to go to the jury. This sounds more akin to a “beyond a reasonable doubt” test than it does the preponderance of the evidence test.

While Dr. Anderson admitted he wasn’t absolutely certain that Schaefer’s disease was connected to his occupational activities, he held firm to his opinion that Schaefer’s occupation was the probable cause of his disease. Both doctors testified that pinning the exact cause to a specific source was next to impossible. This is clear from the testimony of defendant’s expert witness, Dr. Chapman, a leading authority in the field. He testified that to determine the exact type of mycobacterium intraceliularis Schaefer contracted it would require sero-typing cultures of everything in Schaefer’s environment, an enormous technical problem.2 Dr. Anderson’s testimony that Schae-fer’s massive exposure to contaminated soil was in reasonable medical probability the cause of his atypical disease stands unre-tracted and undamaged in the record of this case.

Surely this court would not consciously embrace a rule that a plaintiff must eliminate all other possible causes of his occupational disease to present a fact issue upon which a jury may render a valid verdict in his favor. There is clearly some evidence of causation when Dr. Anderson’s firm assertion that the causal connection was medically probable is coupled with the environment, conditions, and nature of Schaefer’s work and the virulence and resistance of treatment of the disease he had being characteristic of the avian strain.

The doctor’s failure to perform additional serotyping tests does not render his opin*208ions non-probative any more than the failure of an orthopedic surgeon to perform a myelogram can legally preclude him from giving his opinion that a patient has a ruptured disc. The failure only goes to the weight of his testimony, not its admissibility. Dr. Anderson’s expert opinion is that there is a probable causal connection between Schaefer’s employment and his disease. His opinion is evidence.

I would reverse the judgment of the court of civil appeals and render judgment in accordance with the trial court’s judgment and the jury verdict.

CAMPBELL, RAY and WALLACE, JJ., join in this dissent.

. Schaefer cites the following testimony from Dr. Anderson as support for the affirmative jury finding on the occupational disease special issue.

A ... But by and large I think we always think of these as soil organisms because this is where they seem to be most prevalent. Q Has there been any studies reported that has related occupations or environments to contracting this disease?
A Yes, sir. Some of the ones that have been a greater risk are farmers, people who are exposed to soil ...
* ‡ * ⅝ *
Q Is this disease associated in any way with birds or poultry?
A It can be; yes, sir ... (S.F. 147).
* ⅜ * ⅜ # *
A Yes, sir. I think it does and one of the things I should have said before and it’s in Dr. Chapman’s book is that they’ve isolated a lot of organisms from people and to me it seems perfectly plausible, anybody exposed to that type of soil, contaminated soil, repeatedly crawling under houses and the kind of work this man was doing repeatedly, he had a perfectly beautiful opportunity to acquire and reinocúlate himself with these organisms.
... In my opinion the two most important factors have to do with whether a patient develops the disease or not, how much he is inoculated to organisms. The massive exposure is very important ...
Q ... Tell us whether or not you have an opinion in reasonable medical probability as to whether Mr. Schaefer has been subjected to massive inoculations?
A In my opinion, he has.
Q Why do you say that?
A The nature of his work, the fact he’s around contaminated soil, the birds he’s been around ... (S.F. 150-151).
******
... This organism is in soil. It’s in particular soil where it’s been around birds ... (S.F. 152).
Q Taking into account of the things we talked about and your knowledge of Mr. Schaefer and the assumptions that I have asked you to make with regard to the employment that he is following, I’m going to ask you this question. And the question I’m going to ask you, to assume the term occupational disease means a disease which arises out of and in the course of employment which causes damage or harm to the physical structure of the body and I’ll ask you whether or not you have an opinion based on reasonable medical probability as to whether the atypical tuberculosis from which Mr. Schae-fer is suffering, as it applies in his case, whether it is an occupational disease within that definition.
A Yes, sir. I think it is. (S.F. 157-158). * * * * * *
Q Now, I want you to assume further that in the definition of an occupational disease that we are required to exclude ordinary diseases of life. In your opinion is the atypical tuberculosis of which Mr. Schaefer is suffering, is that one of the ordinary diseases of life from the medical standpoint?
A No, sir, it’s not. (S.F. 158-159).

. Dr. John S. Chapman, professor of internal medicine at Southwestern Medical School of the University of Texas System, testified for the defendant. He is one of the leading authorities in the country on the subject of atypical mycobacteria. This testimony was in part:

Q Suppose that somebody was actually trying to trace down the likeliest place that Bobby G. Schaeffer could have become exposed to this mycobacterium intraceliularis—
A Yes.
Q What would be necessary, first of all, with regard to determining the exact type of it that he had?
A Well, you would have to identify his organism by serotyping. You would have to take cultures of just about everything in his environment, which would include the dust of his own house, the tap water from his own taps, the milk and poultry and eggs and everything else that he, himself, had ingested; samples of soil where he had worked, samples of water where he had worked, possibly samples of sea water.
It would take this kind of a thing, to say with certainty yea or nay. And each one of the— Any time you isolate an intracellulare organ-
ism from any of these sources, it would have to be serotyped, too. So that the technical problem would be enormous.
Q So far as you can tell from the hospital records and reports of Dr. Anderson and Dr. Pettigrove, that sort of study has not been done?
A Oh, I’m sure it has not. It certainly doesn’t appear there.
Q All right, sir. Specifically going back to the fact that this man might have to crawl around in dirt, crawl under houses, dig under silt and burrow in soil that might have been contaminated by human excrement, say septic tanks or something of that sort, would that change your opinion about the relationship between his disease and his occupation?
A I don’t know that it would, no. Since we know so little about all the requirements for the development of this disease, I don’t know that we could specifically relate any of his activities to his infection. We have tried to do this with other patients. I have tried, specifically, with a fair number of the individuals that I have seen, to try to get from them some consistent source, and I have not had any luck.