Court of Appeals of Texas, Fifth District, Dallas
Appeal from the 162nd Judicial District Court Dallas County,
Texas Trial Court Cause No. DC-13-05858
CONCURRING OPINION ON DENIAL OF RECONSIDERATION EN
J. SCHENCK JUSTICE.
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.
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).
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.
begin with a very brief recounting of the issue presented and
the facts as they played out below.
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.
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. Both parties disclosed Dr. Melamed and had
contact with her thereafter, as will be discussed in greater
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
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,
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).
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.
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.
Review and Abuse of Discretion
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.'"). 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.
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.
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). 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.).
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,
of Discretion Review and Rule 193.6 as Applied to the Facts
of this Case
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