Court of Appeals of Texas, Third District, Austin
THE DISTRICT COURT OF TRAVIS COUNTY, 250TH JUDICIAL DISTRICT
NO. D-1-GN-14-002265, HONORABLE ORLINDA NARANJO, JUDGE
Chief Justice Rose, Justices Goodwin and Bourland.
Olson Bourland, Justice.
Ernest Swate, M.D., appeals the district court's judgment
affirming the final order issued by appellee, Texas Medical
Board (the Board), revoking his license to
practice medicine in Texas. The Board revoked Dr. Swate's
license after determining that he violated the Texas Medical
Practice Act, see Tex. Occ. Code §§
151.001-169.005 (the Act) and certain Board rules,
see 22 Tex. Admin. Code §§ 160.1-190.16,
in his treatment of chronic-pain and addiction patients.
Specifically, the Board found that Dr. Swate failed to keep
adequate medical records, including failing to document
history, treatment goals, plans, and progress. In one case,
the Board determined Dr. Swate failed to perform and document
a proper physical examination. He was further found to have
failed to follow through on signs of potential
diversion or abuse of medications he prescribed. In
seven issues, Dr. Swate contends that the district court
erred in affirming the Board's final order. Because we
find no error in the Board's final order and conclude
that it was supported by substantial evidence, we will affirm
the district court's judgment.
Swate practiced medicine in Texas under license number
E-3781, which the Board issued to him in 1975. Initially
practicing obstetrics and gynecology, in which he was
board-certified, Dr. Swate completed additional training in
addiction medicine, psychology, interventional pain
management, and sports medicine over the course of his
career. He earned certification by the American Society of
Addiction Medicine. During the time period at issue, 2007
through 2010, Dr. Swate's Houston-area practice focused
on treating addiction and chronic pain.
Board's staff filed its initial complaint against Dr.
Swate with the Board and the State Office of Administrative
Hearings (SOAH) in October 2011. The complaint alleged that
between 2007 and 2010, Dr. Swate prescribed controlled
substances to ten patients (Patients A, B, C, D, E, F, G, H,
I, and J) for the treatment of chronic pain and anxiety
without meeting the standard of care for such treatment or
maintaining adequate records. Dr. Swate responded that his
treatment of the ten patients at issue complied with the Act
and met the standard of care, as did his record-keeping.
an unsuccessful informal settlement conference, the case
proceeded to a contested-case hearing before two SOAH
Administrative Law Judges (ALJs). The Board amended its
complaint on April 30, 2013, adding allegations that Dr.
Swate violated the Act by failing to document any rationale
supporting the prescriptions he wrote and failing to document
treatment plans and periodic reviews related to the
patients' progress. Dr. Swate maintained that he had not
violated the Act and that his practices fell within the
standard of care. The ALJs conducted a four-day evidentiary
hearing, during which the Board offered more than 1600 pages
of medical and pharmaceutical records and the expert
testimony of Dr. Gregory Powell, a board-certified pain and
rehabilitation specialist. Dr. Swate offered his own
testimony as well as the report and deposition testimony of
Dr. Joseph Cotropia and the deposition testimony of expert
Dr. Robert Chabon. The parties also submitted post-hearing
the record was closed, the ALJs issued a proposal for
decision (PFD) that included 212 findings of fact and 19
conclusions of law. The ALJs concluded that Dr. Swate: (1)
failed to keep adequate medical records for Patients A, C, D,
E, G, H, I, and J because he failed to obtain records from
previous providers or other adequate medical history; (2)
failed to document an initial problem-focused physical
examination of Patient F that met the standard of care; (3)
failed to appropriately document chronic pain treatment goals
or objectives or any information detailing progress toward
those goals for Patients A, B, C, D, E, F, G, H, I, and J;
and (4) failed to use diligence and safeguard against
potential complications from the medications he prescribed to
Patients A, E, F, G, and J by not following through on signs
of potential diversion or abuse. Based on these findings, the
ALJs determined Dr. Swate had violated multiple provisions of
the Act, for which the Board was authorized to take
disciplinary action. The ALJs also concluded that the Board
should consider the fact that Dr. Swate had previously been
the subject of disciplinary action to be an aggravating
factor and could consider the fact that the ALJs found more
than one violation for more than one patient to be an
aggravating factor. The ALJs did not make a recommendation as
to what, if any, disciplinary action the Board should take.
Board reviewed the ALJs' proposal and adopted it in full,
adding ordering paragraphs that provided that Dr. Swate's
license to practice medicine was immediately revoked and
permitted Dr. Swate to petition the Board for re-issuance of
his license after one year. Dr. Swate sought judicial review
of the Board's order in district court. After a hearing
on the merits, the district court affirmed the Board's
final order. This appeal followed.
Swate raises seven issues on appeal. The first four challenge
the ALJs' admission of the testimony of the Board's
expert witness, Dr. Powell. Dr. Swate contends that the ALJs
abused their discretion in admitting Dr. Powell's
testimony because Dr. Powell's methodology had not been
shown to be reliable, and because Dr. Powell was allowed to
present subjective opinions. In his fifth issue, Dr. Swate
challenges the admission of twelve Board exhibits because the
authenticating witnesses were not disclosed in discovery. In
his sixth issue, Dr. Swate contends that the Board's
final order is not supported by substantial evidence. Lastly,
in his seventh issue, Dr. Swate contends that the Board acted
in an arbitrary and capricious manner in issuing its final
order by disregarding certain findings of fact and
conclusions of law.
of Board expert's testimony
first and fourth issues, Dr. Swate argues the ALJs erred in
admitting the testimony of the Board's expert witness,
Dr. Powell, because the expert's methodology was not
first shown to be reliable. Administrative rulings on the
admission or exclusion of evidence, including expert
testimony, are reviewed under the same abuse-of-discretion
standard applied to trial courts. Scally v. Texas State
Bd. of Med. Exam'rs, 351 S.W.3d 434, 450 (Tex.
App.-Austin 2011, pet. denied); Fay-Ray Corp. v. Texas
Alcoholic Bev. Comm'n, 959 S.W.2d 362, 367 (Tex.
App.-Austin 1998, no pet). A court abuses its discretion if
it acts without reference to guiding rules and principles.
Bennett v. Grant, No. 15-0338, 2017 WL 1553157, at
*7 (Tex. Apr. 28, 2017) (citing Cire v. Cummings,
134 S.W.3d 835, 838-39 (Tex. 2004) (quoting Downer v.
Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex.
1985))). We will reverse the trial court's ruling only if
it was arbitrary or unreasonable. Downer, 701 S.W.2d
expert opinion testimony will help the factfinder understand
the evidence or determine a fact at issue, it should be
admitted. See Tex. R. Evid. 702; Scally,
351 S.W.3d at 450; Fay-Ray Corp., 959 S.W.2d at 367.
Qualified experts may offer opinion testimony if it is
"both relevant and based on a reliable foundation."
Gharda USA, Inc. v. Control Sols., Inc., 464 S.W.3d
338, 348 (Tex. 2015); E.I. du Pont de Nemours & Co.
v. Robinson, 923 S.W.2d 549, 556 (Tex. 1995). When
assessing an expert's reliability, the trial court is
required to "evaluate the methods, analysis, and
principles relied upon in reaching the opinion, " and
"should ensure that the opinion comports with applicable
professional standards outside the courtroom and that it
'will have a reliable basis in the knowledge and
experience of [the] discipline.'" Watkins v.
Telsmith, Inc., 121 F.3d 984, 991 (5th Cir. 1997)
(quoting Daubert v. Merrell Dow Pharm., 509 U.S.
579, 592 (1993)) (quoted in Gammill v. Jack Williams
Chevrolet, Inc., 972 S.W.2d 713, 725-26 (Tex. 1998)).
The abuse-of-discretion standard "applies as much to the
trial court's decision about how to determine reliability
as to its ultimate conclusion." Kumho Tire Co. v.
Carmichael, 526 U.S. 137, 152 (1999).
Swate based his reliability challenge on the application of
Robinson to the methodology Dr. Powell used in
reviewing Dr. Swate's records. In Robinson, the
Texas Supreme Court established that an expert's
"underlying scientific technique or principle must be
reliable." Robinson, 923 S.W.2d at 557. It
identified six factors that courts may consider when
determining whether an expert's scientific testimony is
reliable and thus admissible. See id. The factors
are: (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/or 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 which have been made of the theory
or technique. Id. Generally, these factors are
applied to methodologies used by experts to form, justify,
and explain their opinions regarding the facts of a case,
rather than the methodology used by experts to gather those
facts. See, e.g., Transcon. Ins. Co. v.
Crump, 330 S.W.3d 211, 217 (Tex. 2010) (assessing
expert's use of differential diagnosis to provide opinion
on cause of death); Whirlpool Corp. v. Camacho, 298
S.W.3d 631, 639 (Tex. 2009) (assessing electrical
engineer's analysis of whether defect in dryer design
caused fatal fire); Cooper Tire & Rubber Co. v.
Mendez, 204 S.W.3d 797, 802-03 (Tex. 2006) (assessing
witness's theory of wax contamination to explain cause of
tire failure); Constancio v. Shannon Med. Ctr., No.
03-10-00134-CV, 2012 WL 1948345, at *3 (Tex. App.-Austin May
22, 2012, no pet.) (mem. op.) (assessing reliability of
theories underlying causation opinion rather than methodology
of reviewing medical records, deposition testimony, and
to Robinson, the court clarified that its six
factors are nonexclusive and "do not fit every
scenario." TXI Transp. Co. v. Hughes, 306
S.W.3d 230, 235 (Tex. 2010); see Gammill, 972 S.W.2d
at 726; Constancio, 2012 WL 1948345, at *3. Where,
as here, experts rely on principles and analysis rather than
on a particular methodology to reach their conclusions, we
must assess reliability by determining whether there is
"'simply too great an analytical gap between the
data and the opinion proffered'" for the opinion to
be reliable. Gammill, 972 S.W.2d at 726 (quoting
General Elec. Co. v. Joiner, 522 U.S. 136, 146
(1997); see TXI Transp. Co., 306 S.W.3d at 239
("Reliability may be demonstrated by the connection of
the expert's theory to the underlying facts and data in
the case."); Constancio, 2012 WL 1948345, at
*3. In determining whether there is too great an analytical
gap, we look to the facts the expert relied on, the facts in
the record, and the expert's ultimate opinion. Gharda
USA, Inc., 464 S.W.3d at 349. The Texas Supreme Court
has elaborated that analytical gaps "may include
circumstances in which the expert unreliably applies
otherwise sound principles and methodologies, the
expert's opinion is based on assumed facts that vary
materially from the facts in the record, or the expert's
opinion is based on tests or data that do not support the
conclusions reached." Id. (internal citations
Powell testified that he relied upon his experience and
training, as well as Board rules and other professional
associations' published guidelines, to formulate his
opinion regarding the standard of care for treatment of
chronic pain and documentation of that treatment. He applied
his expertise to the specific data provided to him, which
were Dr. Swate's patient records. Reading Dr. Swate's
records to form an opinion about standard of care and
documentation was necessarily part of Dr. Powell's
methodology used to arrive at his expert opinion. We must
review the reasonableness of Dr. Powell's analysis not
generally, but "regarding the particular matter to
which the expert testimony was directly relevant."
Kumho Tire Co., 526 U.S. at 154. In this case, the
particular matter was whether Dr. Swate met the standard of
care for treating chronic pain. The requirements of the
standard of care to which Dr. Powell testified, and on which
the ALJs identified that they relied, are outlined below,
followed by Dr. Powell's stated reasoning.
• Physician must perform an initial physical
examination, the results of which should be documented in the
record. This provides the basis for his rationale
for each medication prescribed, which is useful to subsequent
practitioners treating the same patient and protects the
physician if something goes wrong.
• Physician must formulate a specific,
individualized treatment plan for chronic pain and document
it in the records. This assists the physician in
justifying his actions, particularly in prescribing
controlled substances, and provides a measure by which the
effectiveness of a given treatment might be determined.
• Physician must document reasons a patient is
taking medication prescribed by a different doctor.
This may cause changes to the treatment plan, and the
behavior may cause concern as to whether medication was
• Physician must take some action in response to
aberrant behavior regarding prescribed medications and
document the action. Evidence of illegal drug use,
chronic opioid dependence, non-compliance with prescribed
dosing, or other aberrant behavior can be a sign of abuse or
diversion, which Board rules direct should be strictly
monitored and addressed in chronic pain patients. Actions can
include patient counseling, adjusting or stopping
prescriptions, referring the patient to a specialist, or
termination from the practice.
Powell's explanations allowed the ALJs to assess whether
his testimony was opinion evidence connected to existing data
by more than the ipse dixit of the expert. See
id. at 157 (citing Joiner, 522 U.S. at
146). We review the relevant facts in the record
below in addressing Dr. Swate's substantial evidence
challenge. Having reviewed the entire record, we see no
indication that Dr. Powell's opinions were based on an
unreliable application of otherwise sound principles and
methodologies, on assumed facts that varied materially from
the facts in the record, or on data that did not support the
conclusions reached. See Gharda USA, Inc., 464
S.W.3d at 349.
courts have looked to whether experts' methods and
conclusions are generally accepted in the relevant
professional community as a measure of reliability. See
Kumho Tire Co., 526 U.S. at 151. Although Dr.
Swate's expert, Dr. Cotropia, generally disagreed with
Dr. Powell's conclusion that Dr. Swate did not meet the
applicable standards of care, he agreed with Dr. Powell's
explanation of the standard of care on many material issues.
Dr. Cotropia agreed that Board Rule 170.3 provides a
guideline of the standard of care for treatment of chronic
pain. He agreed that the standard of care requires a
treatment plan, which provides the physician's rationale
and should explain how the physician is treating the source
of the patient's pain. Dr. Cotropia testified that a
focused physical examination is required by the standard of
care, as is keeping accurate medical records. He agreed that
the standard of care requires a physician to assess
patients' progress toward treatment goals. Lastly, Dr.
Cotropia testified that abuse of illicit drugs and
non-compliance with a dosing schedule are aberrant behavior
that should be addressed with the patient. On this record,
the determination that Dr. Powell's ultimate opinion was
reliable was not an abuse of discretion.
this Court has previously noted that bench trials allow the
trial court to act as both gatekeeper and factfinder. See
Scally, 351 S.W.3d at 451 (citing Olin Corp. v.
Smith, 990 S.W.2d 789, 796-97 & n.1 (Tex.
App.-Austin 1999, pet. denied)). The confluence of
these two roles allays certain concerns about potential
prejudicial impact of expert testimony because the judges are
able to conduct ongoing assessment regarding an expert's
reliability, expertise, and the principles on which he relied
when reaching his opinions. See id. The record
indicates that the ALJs conducted such an assessment
here. Thus, we conclude the ALJs did not abuse
their discretion in assessing the reliability of the
methodology underlying Dr. Powell's analysis and
admitting his testimony. We overrule Dr. Swate's first
and fourth issues.
Swate's experts' testimony
second issue, Dr. Swate contends that the ALJs abused their
discretion by rejecting Dr. Swate's experts'
testimony without explanation. Dr. Swate argues that because
Drs. Cotropia and Chabon testified that Dr. Powell's
testimony was not reliable, and because their testimony was
not impeached or contradicted, the ALJs should not have
"rejected" their testimony by admitting Dr.
Powell's testimony. The Board points out, however, that
the experts' testimony was, in fact, contradicted.
Swate is correct that "an agency must provide a basis
for its rejection of uncontradicted, unimpeached testimony
that is neither inherently improbable or conclusory."
CenterPoint Energy Entex v. Railroad Comm'n, 213
S.W.3d 364, 373 (Tex. App.-Austin 2006, no pet.) (citing
Cities of Port Arthur, Port Neches, Nederland &
Groves v. Railroad Comm'n, 886 S.W.2d 266, 270-72
(Tex. App.-Austin 1994, no writ)). In this case, however, the
testimony at issue was directly contradicted and impeached.
For instance, Dr. Chabon testified that Dr. Powell improperly
based his determination of the standard of care on his
subjective opinion. However, on cross-examination, Dr. Chabon
agreed that Dr. Powell was qualified by his training and
experience to render an opinion as to treatment of chronic
pain patients, and that "some opinions hold much more
validity[, ] even though they may be largely subjective[, ]
than other opinions." Likewise, Dr. Cotropia testified
that Dr. Powell's testimony was unreliable and
subjective, but as explained above, he also agreed with Dr.
Powell on many material matters.
couched in terms of admissibility and reliability, in
substance, Dr. Swate attacks the weight that the ALJs
afforded each expert's testimony. Dr. Swate's
experts' disagreement with Dr. Powell's conclusions
does not render Dr. Powell's methods, analyses,
principles, and resulting opinions unreliable or
inadmissible. See Scally, 351 S.W.3d at 451-52. It
is foundational that the agency is the sole judge of the
weight to be accorded the testimony of each witness.
Central Power & Light Co. v. Public Util.
Comm'n, 36 S.W.3d 547, 561 (Tex. App.-Austin 2000,
pet. denied). When weighing the evidence, the agency may
accept or reject the testimony of witnesses or may accept
part of a witness's testimony and disregard the
remainder. Id. There is no requirement that the ALJs
explain themselves. We conclude the ALJs did not abuse their
discretion in admitting all expert testimony offered and
overrule Dr. Swate's second issue.
opinion regarding standard of care
third issue, Dr. Swate alleges that the ALJs abused their
discretion by allowing Dr. Powell to testify about subjective
standards of care. He claims that Dr. Powell's testimony
was entirely subjective, based on his personal opinions,
rather than any identifiable objective standard of care. Dr.
Swate argues that because the Board did not disclose to him
the standard of care on which he was being assessed, he was
deprived of procedural due process. Specifically, he contends
that because Dr. Powell was allowed to testify as to his
subjective opinions based solely on his experience and
qualifications, the Board failed to establish ...