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McPherson v. Rudman

Court of Appeals of Texas, Fifth District, Dallas

July 24, 2019

CAMERON MCPHERSON, Appellant
v.
BRIAN DAVID RUDMAN, M.D., Appellee

          On Appeal from the 162nd Judicial District Court Dallas County, Texas Trial Court Cause No. DC-13-05858

          CONCURRING OPINION ON DENIAL OF RECONSIDERATION EN BANC

          DAVID J. SCHENCK JUSTICE.

         Cameron McPherson brought this medical malpractice case. A Dallas County jury rejected his claim, and the trial court rendered a take nothing judgment. On appeal, McPherson attributed his loss to the trial court's decision to permit the testimony of one of his own treating physicians, Dr. Norma Melamed, and sought reversal on that basis. He now seeks reconsideration en banc, urging, ironically as it will prove, that the panel "opinion does not accurately set forth the evidence" and does not "analyze the applicable law in a manner commensurate with the magnitude of this case and his injuries." He also maintains, as the nominal basis for en banc reconsideration, that "this Court's decision to allow Dr. Melamed's opinions" is "inconsistent with other of this Court's decisions," citing us to Beinar v. Deegan, 432 S.W.3d 398, 407 (Tex. App.-Dallas 2014, no pet.), a case he asserts is "strikingly similar" with "the exception of which side's expert was . . . challenged." McPherson's motion does not cite or discuss the standard that governs this appeal. Because the standard of review controls this and every appeal we hear, and because it and the equally controlling "record" and "applicable law" are evidently less well understood than they might be, this further opinion appears necessary to explain the proper disposition of this appeal and McPherson's motion.

         As detailed below, this appeal, like Beinar, is governed by the abuse of discretion standard of review, as McPherson acknowledged before the panel. That standard does not call for, or even permit, us to decide whether "to allow" or to exclude evidence at trial. That decision-regardless of which side of the docket is affected-is for the trial court. We answer only whether the trial court acted arbitrarily, considering not only the rationales cited by the trial court or even raised by the parties below, but also the entire record, and we "should uphold the ruling" if there "is any ground for doing so." State Bar of Tex. v. Evans, 774 S.W.2d 656, 658 n.5 (Tex. 1989).

         Even the most ephemeral application of the standard immediately forecloses the only conceivable ground for reconsideration here, as Beinar, like this case, announces simply that the trial judge's decision is something less than an abuse of discretion. That standard would also require us to consider the record in full and in light of all the many rationales available to support the trial court's ruling, quickly revealing McPherson's motion and appeal as grossly incomplete and counter-factual.

         I will begin with a very brief recounting of the issue presented and the facts as they played out below.

         Proceedings Below

         McPherson underwent foot surgery and subsequently experienced nerve damage. He sued his orthopedic surgeon, Dr. Cook, and the anesthesiologist, Dr. Rudman, claiming malpractice. Before trial, McPherson non-suited his claims against Dr. Cook. After the surgery, McPherson was seen and treated by Dr. Melamed, who would later appear to testify at trial with respect to McPherson's surviving claim against Dr. Rudman.

         Both parties in this case made requests for initial disclosure, triggering their respective right to basic discovery of specific categories of information. See Tex. R. Civ. P. 194.[1] Both parties disclosed Dr. Melamed and had contact with her thereafter, as will be discussed in greater detail below.

         At trial, Dr. Melamed testified over two days concluding her testimony on a Friday. The following Monday, McPherson filed a motion to strike Dr. Melamed's testimony claiming Rudman failed to disclose a change in Dr. Melamed's causation opinion in violation of rule 193.5, requiring exclusion under rule 193.6. Id. 193.5 (providing for duty to amend or supplement discovery); id. 193.6 (providing remedy for failure to timely amend or supplement discovery response).

         Rule 193.6 functions in two parts. First, the party seeking exclusion on the basis of inadequate disclosure or supplementation must show the significance of the omitted information and the foreknowledge of his opponent. While exclusion is often said to be "automatic" upon this initial showing, the Texas Supreme Court opinion that gives rise to that description confirms that it is not. See Fort Brown Villas III Condo. Ass'n, Inc. v. Gillenwater, 285 S.W.3d 879, 881 (Tex. 2009). Rather, where a party has failed to acquit itself of the duty to disclose or supplement, the trial court continues to analyze the issue with the burden shifting to the non-disclosing party to show either good cause for the failure to timely disclose or a lack of unfair surprise or prejudice. Tex.R.Civ.P. 193.6(a)-(b). Reflecting their preference for merits dispositions and the role of the trial and pre-trial process as truth-seeking efforts more than sport, [2] the rule goes on to make clear that a trial court is not obliged to strike the testimony even where the non-disclosing party fails to show good cause or lack of prejudice but may grant a continuance or postpone the trial to allow further development of the issue. Id. 193.6(c).

         In this case, the trial court denied McPherson's motion to strike Dr. Melamed's testimony, noting, in the court's opinion, that the objection came too late on the Monday following its Friday admission. And at no point did McPherson request a continuance.

         With this basic backdrop and recognition that McPherson's complaint concerns a ruling on the admission of evidence, I will now discuss the standard of review applicable to McPherson's complaint and its application to the facts as revealed by the record.

         Appellate Review and Abuse of Discretion

         I will begin with the most basic norm: "Appellate courts review trial courts' judgments not opinions." Recognizing that we are, at best, systemically secondary in an already slow and expensive process (and have a grossly unfair advantage of time over the trial courts) compels us to accept that we cannot function like an instant replay booth. Michigan v. Lucas, 500 U.S. 145, 155 (1991) (Stevens, J., dissenting) ("We sit, not as an editorial board of review, but rather as an appellate court. Our task is limited to reviewing 'judgments, not opinions.'").[3] Thus, we do not "allow" Dr. Melamed's opinion in this case any more than we "struck" the plaintiff's expert in Beinar. We, instead, simply review the trial court's decision according to the record, the governing law, and the applicable standard of appellate review.

         Of course, we cannot even begin to consider reversing a trial court without "error." Wells Fargo Bank, N.A. v. Leath, 425 S.W.3d 525, 538 (Tex. App.-Dallas 2014, pet. denied). So, with the exception of a very few things that would amount to "plain" or "fundamental" error, we begin with the requirement that the appellant must have preserved the issue below with a timely, specific, objection, motion, or request that forced the trial judge to make a decision. See Bryant v. Jeter, 341 S.W.3d 447, 449-50 (Tex. App.-Dallas 2011, no pet.). Even then, a ruling that is wrong, in the face of the timely objection or request, is necessary but not sufficient to be actionable on appeal. See e.g., Langley v. Bell Sports, Inc., No. 05-96-00120-CV, 1997 WL 752635, at *9 (Tex. App.- Dallas Dec. 5, 1997, no pet.) (not designated for publication). Our standard of review determines whether the claimed error is actionable on appeal.

         Decisions concerning pre-trial case management or mid-trial decisions on the admission of evidence are, by necessity, largely committed to the discretion of the trial court. We will find error exceedingly rarely and only in the most extreme circumstances where the judge's decision amounts to an "abuse of discretion." Interstate Northborough P'ship v. State, 66 S.W.3d 213, 220 (Tex. 2001); Hanley v. Hanley, 813 S.W.2d 511, 516 (Tex. App.-Dallas 1991, no writ).[4] In that context, and because we review judgments, not opinions or rationales, we look not to a particular reason given but to any reason that might have been considered in reaching the ruling below, whether it was raised or not. Evans, 774 S.W.2d at 658 n.5; Zhu v. Lam, 426 S.W.3d 333, 341 (Tex. App.- Houston [14th Dist.] 2014, no pet.).

         Moving forward, the fact that the trial court erred or abused its discretion does not compel reversal. Fed. Deposit Ins. Corp. v. Morris, 782 S.W.2d 521, 523 (Tex. App.-Dallas 1989, no writ). Putting further meat on the "we-review-judgments-not-opinions" bone, the appellant must show that error or abuse of discretion probably resulted in an improper judgment or precluded his ability to pursue the appeal. Tex.R.App.P. 44.1; Evans, 774 S.W.2d at 658-59; Tanner v. Karnavas, 86 S.W.3d 737, 741 (Tex. App.-Dallas 2002, pet. denied).

         Abuse of Discretion Review and Rule 193.6 as Applied to the Facts of this Case

         With this proper standard in mind, we review the trial court's decision overruling McPherson's motion to strike as untimely not only for error in finding waiver but for any other ground available that would support the decision. See Aluminum Co. of Am. v. Bullock,870 S.W.2d 2, 3 (Tex. 1994); Norfolk S. Ry. Co. v. Bailey, 92 S.W.3d 577, 580 (Tex. App.-Austin 2002, no pet.) (upholding trial court's evidentiary ruling if any legitimate basis exists to support ruling). Thus, putting aside the trial court's waiver determination, which is itself sufficient grounds for affirmance, McPherson's Motion for En Banc Reconsideration would oblige us to undertake a plenary review of his motion to strike below. Mirroring the burdens as they ...


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