The DOJ, you see, has discovered the "relationships" that so many orthopedic companies have established with orthopedic surgeons.

Doctor's View
Who Does Your Doctor Really Work For?
Tuesday, Mar. 25, 2008 By SCOTT HAIG
Doctors Bribes
Timothy Tadder / Corbis




Early March was not a good time to break a bone. You might have had a difficult time finding someone to fix it, since thousands of orthopedists were otherwise occupied in San Francisco, at the 75th annual meeting of the American Academy of Orthopaedic Surgeons (AAOS).


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The mood there wasn't entirely jubilant. The past year has been a tough one for the business of orthopedics, one in which it has taken a hard, public slap from the U.S. Department of Justice (DOJ).

The DOJ, you see, has discovered the "relationships" that so many orthopedic companies have established with orthopedic surgeons. Companies give money to doctors to test products, to help design or tout products and sometimes just to use a particular product (as in kickback). Orthopedists are hardly the only doctors paid by medical companies, but when the sheer amount of money being given to orthopedists came out of the shade into the sharp San Francisco sunshine last week, it did make quite a few of us blink.

The DOJ's slap was felt acutely by everyone at the convention. No more free dinners, shoulder bags, flashlights and pens. Way fewer models in leotards draped across operating tables and traction equipment. A new ruling requires every research presentation to begin with full disclosure of all monetary relationships the speaker has with any company. Every single fully trained doctor I heard speak was getting paid by a company; many of the bigger-name doctors were getting paid by three or four. How much money was still the subject of gossip — the exact amount is not required to be broadcast in these podium confessionals. The DOJ has, however, ordered companies to list the doctors in their employ, as well as the amounts paid them, on their websites. Judging by those figures, it adds up to plenty. And it got our attention at AAOS. Some doctors thought it immoral; others lamented the doubt it cast on the integrity of research. But I think most just wanted in.

If there's one thing that a life spent mending broken bodies makes you, it's realistic. Most surgeons are quite realistic about capitalism. We see its very essence, the power of monetary incentive, over nearly everyone in our world. We see it in the extra lab tests that please patients as well as pay (and protect) doctors, in the fleet of blank-faced bureaucrats floating to their next paychecks on rivers of inane hospital regulations, and in the TV drug ads for restless legs, erectile errors and feminine itches. We know what they're after.

Not that these shenanigans are completely new to us. When you spend your life outfitting patients with the Joe Dokes Knee Prosthesis, you get a glimmer that Joe Dokes himself must be making some money on the thing. But there are 17,000 orthopedists in the U.S., and with this convention a large fraction of us came to the simultaneous realization that just about all of our teachers and mentors — the surgeons we hold in high regard, who do the important research, who work in the teaching programs, who write the papers and give us these lectures — are "consultants."

Maybe it's part of growing up as a doctor — to put away childish notions like "pure academics." Or, perhaps, we should be reassured by the peer-review process, which all the papers must undergo: papers get chosen for publication only after impartial, third-party doctors have read and vetted them. The vast majority of the time this is pretty good proof that researchers aren't just company shills. But that mandatory confessional is still required in print, stark like the warning on a pack of cigarettes: "This guy is taking money from a company so take what he says with a grain of salt."

It's not just uncertainty about the legitimacy of the new research that rankles. It's also the fact that most of our research is probably legitimate, but unfortunately real doubt is being cast on the basic truths and actual progress of our practice. The ultimate cost of this will likely be borne by our patients. Take the small-town surgeon, who goes to the convention in San Francisco and hears the financial disclaimers. Like many others, his own practice at home is floundering financially. Between his natural envy of the corporate money and the doubt it casts on what he's supposed to be learning, he goes home disillusioned and probably less well educated — and with so few orthopedists in so many small towns, his patients lose out too.

Orthopedists know about fixing bones, but there is no operation to fix fractured trust. We take medical lies personally. They are, like all lies, offensive, even poisonous, to something deep within. It's surely not a physical poison; while our brains can be hurt by chemicals, our minds are only made of (true) ideas. Lies (untrue ideas) can rot the substance of a mind. Insofar as human life is different from the life of a mindless thing, like a tree, lies — even little lies about new pills and braces — are things that kill us. That's why they're so offensive.

An administrative judge, facing a moral dilemma of greater than medical proportions, once asked his defendant, "What is truth?" The famous silence of that defendant's reply might have been an answer, an eloquent one in fact. Truth standing right there, knowable, yet, as then by Pilate, it was, for reasons of expediency, or money, ignored. Yet the truth did win out. It's a lot like this in surgery now. Our consultants might have conflicts, but sooner or later they will have to come back to us; if you really are a doctor, the truth is where the fun is. That's why I know they'll get around, eventually, to teaching us what we need.

The threshold question in a medical malpractice case is the standard of care.

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NUMBER 13-00-00386-CV

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

ELIZABETH TAMEZ AS NEXT FRIEND

OF ABRAM JOSHUA TAMEZ AND

ERICA ROXANNE TAMEZ, MINOR

CHILDREN, ET AL., Appellants,

v.



MACK TRUCKS, INC., Appellee.

On appeal from the 105th District Court of Nueces County, Texas.

O P I N I O N

Before Justices Hinojosa, Yañez, and Dorsey (1)

Opinion by Justice Hinojosa




After excluding the expert witnesses of appellants, plaintiff (2) and intervenors (3) below, the trial court granted the motion for summary judgment of appellee, Mack Trucks, Inc. ("Mack Trucks"). We reverse the trial court's summary judgment order and remand the case to the trial court for further proceedings.

A. Background and Procedural History


On October 19, 1996, Abram Tamez ("Tamez") was operating a tanker trailer hauling thousands of gallons of crude petroleum. The tractor was designed, manufactured and marketed by appellee Mack Trucks. The tractor and tanker were owned by Tamez's employer, Norco Crude Gathering, Inc. Tamez was delivering the crude petroleum to the Norco facility from a well site in rural Bee County.

At the time of the accident, Tamez was negotiating a curve in the road when his vehicle overturned. The vehicle subsequently burst into flames. Tamez was able to climb out of the cab; however, his body became engulfed in flames, and he suffered third-degree burns over ninety-six percent of his body. Tamez was air-lifted to Brooke Army Medical Center's burn-unit, where he died on October 30, 1996, as a result of his injuries.

Appellants sued Norco Crude Gathering, Inc., Glitsch Canada Limited, Snyder Tank Corp., Freuhoff Trailer Corp., and Mack Trucks for negligence, strict liability, breach of implied warranty, and misrepresentation. Appellants eventually nonsuited Freuhoff Trailer Corp. and settled with Norco Crude Gathering, Inc., Glitsch Canada Limited and Snyder Tank Corp., leaving Mack Trucks as the sole defendant.

Appellants alleged that a defect in the fuel system of the Mack truck in question was the producing cause of the fire which injured Tamez. Appellants' expert, Ronald Elwell, arrived at this conclusion after reviewing the evidence in the case. Mack Trucks subsequently moved to exclude Elwell's expert testimony because it was not scientifically reliable. Following the requisite Daubert (4) hearing, the trial court granted Mack Trucks' motion to exclude Elwell's testimony because his opinion was not sufficiently reliable. Appellants offered a bill of exception, clarifying their expert's testimony, and moved for reconsideration. The trial court denied the motion.

Mack Trucks then filed a supplemental (5) no-evidence motion for summary judgment, asserting there was no evidence of causation because Elwell's testimony had been excluded. Appellants offered the affidavits of another expert, Douglas Holmes, to defeat the no-evidence motion for summary judgment, but the trial court also struck Holmes's testimony. The trial court then granted the motion for summary judgment on unspecified grounds. The settled claims were later severed from the case, and a final order granting summary judgment was signed on June 23, 2000. This appeal ensued.

B. Issues Presented


In two issues, Elizabeth Tamez contends: (1) the trial court erred in granting Mack Trucks' motion for summary judgment because there is a genuine issue of material fact that the design defect at issue was the producing cause of Tamez's injuries and death; and (2) the trial court erred in excluding appellants' expert witnesses because these experts are highly qualified and their opinions are relevant and reliable.

In five issues, the Guerrero appellants contend the trial court erred in granting Mack Trucks' motion for summary judgment: (1) because (a) there is some evidence of a producing cause, (b) the trial court abused its discretion in excluding the testimony of Douglas Holmes, and (c) the trial court abused its discretion in excluding the testimony of Ronald Elwell; (2) on their claims of negligence, manufacturing defect, and marketing defect by applying Hyundai Motor Co. v. Rodriguez, 995 S.W.2d 661 (Tex. 1999); (3) on their claim of marketing defect because Tamez knew that his cargo was hazardous; (4) on the claims of Sarah Beth Guerrero and Gregory Alan Guerrero because they were not Tamez's natural children; and (5) on the claim of Donna Kim Cantu because she was not Tamez's child and that her claim was barred by limitations.

Elizabeth Tamez has incorporated, by reference, certain portions of the appellate brief of the Guerrero appellants. See Tex. R. App. P. 9.7. Rosendo Tamez has incorporated and adopted the appellate briefs of Elizabeth Tamez and portions of the appellate briefs of the Guerrero appellants. Id. Consequently, Rosendo Tamez's claims will be included in our discussion of the issues presented by Elizabeth Tamez and the Guerrero appellants. Rosendo Tamez also contends the trial court erred in granting Mack Trucks' motion for summary judgment against the estate on the basis of limitations.

C. Exclusion of Expert Testimony

In the second issue of Elizabeth Tamez and Rosendo Tamez and the second and third sub-issues of the Guerrero appellants' first issue, appellants contend the trial court abused its discretion by excluding their expert witnesses, Elwell and Holmes. Appellants assert these witnesses were qualified as experts and their opinions were relevant and reliable.

Texas Rule of Evidence 702 provides: "[i]f scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify thereto in the form of an opinion or otherwise." Tex. R. Evid. 702. To meet admissibility, the expert must be qualified, and the testimony must be relevant and be based on a reliable foundation. E.I. du Pont de Nemours & Co. v. Robinson, 923 S.W.2d 549, 556 (Tex. 1995). Whether the expert and the proffered testimony meet these requirements is a preliminary question for the trial court. Id.; see also Tex. R. Evid. 104(a). The trial court has broad discretion to determine admissibility of expert testimony and the appellate court should reverse only if there is an abuse of that discretion. Helena Chem. Co. v. Wilkins, 47 S.W.3d 486, 499 (Tex. 2001). The test for abuse of discretion is whether the trial court acted without reference to any guiding rules or principles. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex. 1985). A reviewing court cannot conclude that a trial court abused its discretion simply because, in the same circumstances, it would have ruled differently, or if the trial court committed a mere error in judgment. Robinson, 923 S.W.2d at 558; Loftin v. Martin, 776 S.W.2d 145, 146 (Tex. 1989). The party offering the expert's testimony bears the burden to prove that the witness is qualified under Rule 702. Broders v. Heise, 924 S.W.2d 148, 151 (Tex. 1996); Boren v. Bullen, 972 S.W.2d 863, 865 (Tex. App.-Corpus Christi 1998, no pet.).

1. Ronald Elwell


Ronald Elwell attempted to testify as an expert in the field of post-collision fuel-fed fires. Elwell has a bachelor's degree in mechanical engineering. He worked for General Motors Corporation ("GM") for thirty years. During his employment, Elwell was GM's chief fire investigator on fuel tank systems in cars, trucks, buses and some stationary power plants. The types of trucks Elwell analyzed included heavy duty trucks like the tanker trailer involved in the instant case. From 1971 to 1987, he was assigned to GM's engineering analysis group. One of the responsibilities of this group was to monitor and study the performance of GM vehicles in the hands of GM customers, specifically, GM vehicles involved in collisions which gave rise to products liability lawsuits. Elwell was one of the engineers responsible for fuel system analysis who assisted GM in defending post-collision fire litigation. Elwell spent sixteen years analyzing GM vehicles involved in post-collision fuel-fed fires. Elwell's duties at GM included: (1) consulting with design groups on fuel tank design; (2) testing competitors' products for fuel system security; (3) making presentations to management on issues impacting fuel system failures; and (4) evaluating outside experts in fuel design, fuel system design, fire causation analysis, accident reconstruction, and material performance. While at GM, Elwell investigated more than 300 post-collision fuel-fed fires. Since 1991, Elwell has been a self-employed consultant, conducting product integrity and accident reconstruction analysis, including fuel system component analysis and fire accident analysis.

In its motion to exclude, Mack Trucks did not challenge Elwell's testimony on the basis that he was unqualified to testify as an expert in post-collision fuel-fed fires. Mack Trucks only asserted that Elwell's opinions were not founded on scientifically reliable evidence.

When the reliability of an expert's testimony is challenged, the trial court must "evaluate the methods, analysis, and principles relied upon in reaching the opinion . . . [in order to] ensure that the opinion comports with applicable professional standards outside the courtroom." Gammill v. Jack Williams Chevrolet, Inc., 972 S.W.2d 713, 725-26 (Tex. 1998); Volkswagen of Am., Inc. v. Ramirez, 79 S.W.3d 113, 123 (Tex. App.-Corpus Christi 2002, pet. filed). The trial court is not to determine whether the expert's conclusions are correct, but only whether the analysis used to reach those conclusions is reliable. Gammill, 972 S.W.2d at 728.

Where the proffered expert testimony is purely scientific, the Texas Supreme Court has used six nonexclusive factors to determine whether the testimony is reliable, and thus, admissible. (6) Robinson, 923 S.W.2d at 557. However, the court has recognized that these factors may not apply to non-scientific experts, who base their opinions on individual experience. See Gammill, 972 S.W.2d at 726. For those instances, the court has adopted the "analytical gap" analysis. Id. at 727. The expert's experience alone may provide a sufficient basis for his testimony; however, there still must be some basis for the opinion to show its reliability. Id. at 726. The trial court, as gatekeeper, must ultimately determine how to assess reliability. Id. In performing this role, the trial court "may conclude that there is simply too great an analytical gap between the data and the opinion proffered." Id.

After reviewing the record, we conclude that Elwell's opinion is largely based on the application of his knowledge, training, and experience to the underlying data in the case. While Elwell's analysis of the underlying artifacts in this case involves the application of scientific principles, it is not science. This methodology is not easily tested by objective criteria, such as identifiable scientific formulas. Thus, the Robinson factors for assessing the reliability of scientific testimony cannot be applied to Elwell's proffered testimony.

When experts rely upon individual experience and training to draw conclusions on the underlying data, then the reliability of such experts is not properly measured by theRobinson factor-based analysis. Id. at 727. Because we conclude that Elwell's testimony is not scientific in nature, we will apply the "analytical gap" test adopted in Gammill. See id. (citing Gen. Elec. Co. v. Joiner, 522 U.S. 136, 146 (1997)). In Gammill, the court analyzed expert testimony by viewing how large an analytical gap existed between the expert's opinion and the underlying data in the case. See id. An impermissible analytical gap exists if an expert fails to demonstrate how his observations support his conclusions. Id.

In its order, the trial court found that Elwell's opinion testimony, that the Mack truck's fuel system was the cause of the fire that injured Tamez, was not sufficiently reliable and therefore, should not be admitted. We disagree. At the Daubert hearing and through bill of exception, Elwell properly identified the underlying facts he relied upon in arriving at his conclusion, explained the methodology he used, and showed how he applied his methodology to the underlying facts of the case to support his conclusion.

Elwell concluded that a defect in the truck's fuel system was the cause of the fire that injured Tamez. Elwell specifically identified the defect as the unreasonably dangerous placement of the truck's battery within three to five inches of the driver's-side fuel tank, coupled with inadequate fuel line connectors. Elwell opined that during the rollover, the truck's fuel tank and battery became displaced and the fire began when the released fuel came into contact with the extreme temperatures generated by the battery. In reaching this conclusion, Elwell relied upon the following underlying data sources: (1) witness statements and depositions; (2) the Department of Public Safety Accident Report; (3) a physical inspection of the accident scene; (4) photographs of the burned vehicle; and (5) an inspection of an exemplar vehicle.

At the heart of Elwell's opinion lies the principle of the fire triangle. The fire triangle principle defines the elements required for fire to exist - oxygen, fuel, and ignition source. This principle forms the basis for any theory concerning the origin of a post-collision fuel-fed fire. The first element is a given, because there is always oxygen present in the air. Thus, because a post-collision fuel-fed fire indicates a release of fuel, a post-collision fuel-fed fire is investigated with an eye toward the source of fuel and what it would have taken to ignite the fuel.

Elwell concludes that diesel fuel from the truck's fuel tanks was the source of fuel for the fire because of the short time interval between the rollover and when Tamez became engulfed in flames, together with the close proximity between the fuel tanks and a possible ignition source - the truck's battery. He says that the short time interval between the rollover and when Tamez became engulfed in flames is determinative of the fact that the fuel quickly found its ignition source. Although there were no eyewitnesses present at the start of the fire, Elwell points to the fact that Tamez received no crushing or debilitating injuries during the rollover and yet was still harmed, as being indicative of the short amount of time Tamez had before becoming engulfed in flames. Elwell also relies upon the testimony of an eyewitness (7) who believed that Tamez had diesel fuel on him, to support his opinion.

According to Elwell, the likely cause of ignition was the high temperature generated by the battery, together with the battery's displacement during the rollover. Elwell based his opinion on his experience conducting or witnessing crash tests where battery components became displaced during testing. Elwell explained why it was important to identify and understand crush zones, so that they could be analyzed against the fire triangle. Elwell's analysis of photographs of Tamez's tractor and inspection of an exemplar vehicle produced by Norco Crude Gathering, Inc. showed the battery placement within inches of the fuel tanks. These observations showed all three elements of the fire triangle - air, the tractor's battery as a possible ignition source, and diesel fuel - to be present within three inches of each other on the tractor truck.

Elwell believed that at least one of the truck's side fuel tanks became displaced during the rollover and separated the balance line connecting the two fuel tanks. He points to photographic evidence indicating broken steel straps responsible for holding the fuel tanks in place as evidence of this fact. He also rules out tank rupture because there was nothing at the scene which could have ruptured the tank during the rollover, such as a wall, a tree, or another vehicle. Elwell further considered the connections between the truck's fuel tanks and balance line to be inadequate "garden-hose type fixtures." According to Elwell, these fixtures were drastically inadequate to sustain the crush force generated from a rollover collision. Elwell concludes that during the rollover, the truck's fuel tank and battery became displaced and the fire began when the released fuel came into contact with the extreme temperatures generated by the battery.

However, in order to be considered reliable, this analysis must also discount other plausible sources of both fuel and ignition. If there are other plausible causes of the injury or condition that could be negated, the plaintiff must offer evidence excluding those causes with reasonable certainty. Merrell Dow Pharms., Inc. v. Havner, 953 S.W.2d 706, 720 (Tex. 1997); see also Vasquez v. Hyundai Motor Co., No. 04-01-00554-CV, 2002 Tex. App. LEXIS 6025, at *16 (San Antonio Aug. 21, 2002, no pet.) (expert testimony is unreliable if it fails to rule out other plausible causes).

Here, Elwell discounted the tanker carrying the cargo of crude oil as the cause of the fire based on the time interval involved. He said that if the tanker had been the cause of the fire, Tamez would have been able to escape with little or no harm. Elwell based this statement on the following facts: (1) photographic evidence showing the physical separation between the Mack truck and the tanker; (2) the fact that Tamez received no crushing or debilitating injuries during the rollover; (3) Rex Harrell's testimony that he arrived on the scene approximately two minutes after he felt an explosion; and (4) the series of photographs showing the crude oil burning after the diesel fuel was consumed.

Unlike the expert in Gammill, Elwell provided a link between his observations and his conclusions. In his examination of the underlying data in this case, Elwell used objective and relevant data in arriving at a conclusion regarding the cause of the fire that injured Tamez. We conclude that Elwell's testimony detailing his vast experience with post-collision fuel-fed fires, coupled with his testimony concerning his application of his knowledge and experience to the underlying data in the case, sufficiently demonstrate that the opinions he drew from the underlying data are reliable. See Gammill, 972 S.W.2d at 726. The trial court's function in this instance was not to determine if Elwell's conclusion was correct, but to determine whether his analysis, based on the evidence, was reliable. Accordingly, we hold the trial court abused its discretion in excluding Elwell's testimony as unreliable.

2. Douglas Holmes


After the trial court excluded the testimony of Ronald Elwell as a causation expert, appellants proffered the affidavit and supplemental affidavit of a second expert, Douglas Holmes, in response to Mack Trucks' no-evidence motion for summary judgment. In his supplemental affidavit, Holmes concluded that the cause of the fire was diesel fuel that escaped from the fuel tanks of the Mack truck Tamez was driving. Holmes opined the fuel was ignited by an electrical spark that originated from the truck's batteries, due to their close proximity to the fuel tanks. Holmes formed this opinion after reviewing the following: (1) photographs of the vehicle taken during and after the fire, (2) a videotape of the fire, (3) the police accident report, (4) photographs of the accident scene, (5) photographs of an exemplar vehicle, (6) witness statements and depositions of the first persons to arrive at the scene, (7) Tamez's death certificate, and (8) the affidavit of a witness describing what appeared to be a battery cable fused to the truck.

According to Holmes, various photographs show that the supporting mounts for the truck's passenger-side fuel tank were displaced. This led him to conclude that the fuel tank became dislodged during the rollover. Holmes opined that this displacement subsequently separated the balance line, releasing diesel fuel. Holmes also relied on the affidavit of Gary Long, which showed there was evidence of a battery cable fused to another part of the truck. Based on this affidavit, Holmes concluded there was electrical current running through the battery cables. Holmes concluded that the most likely source of ignition was an electrical spark that originated from the batteries, due to their close proximity to the fuel tank. Holmes also discounted the possibility that the cargo was the source of the fire that caused injury to Tamez because of the separation between the driver's compartment and the tanker's hatch.

The trial court granted the motion to exclude Holmes on unspecified grounds. When a trial court does not specify the grounds on which it excludes testimony, we will affirm the trial court's ruling if any ground is meritorious. K-Mart Corp. v. Honeycutt, 24 S.W.3d 357, 360 (Tex. 2000).

In its motion to exclude the testimony of Douglas Holmes, Mack Trucks challenged the reliability of the proffered testimony. Because we conclude that Holmes's testimony is non-scientific in nature, similar to that of Elwell's, we again apply the analytical gap test. See Gammill, 972 S.W.2d at 727.

The "analytical gap" in Holmes's testimony is his failure to set forth the basis for his opinion that the battery cable arced and was the ignition source of the fire, as opposed to the battery cable arcing as a result of the fire. Holmes states his conclusion, that an electrical arc ignited the fire, without describing the methodology used to arrive at his conclusion. Without the underlying methodology for his opinion, Holmes's proffered testimony is no more than his subjective belief or unsupported speculation. See Robinson, 923 S.W.2d at 557. Elwell, unlike Holmes, developed the analytical methodology he used as the basis for his conclusions through his testimony at the Daubert hearing and through a bill of exceptions. We conlude that Holmes's affidavits amount to little more than his subjective conclusions. The trial court was not required to admit opinion testimony connected to underlying data only by the ipse dixit of the expert. See Gammill, 972 S.W.2d at 727. Under these facts, the trial court could have concluded that there is simply too great an analytical gap between the data and the opinion proffered. See id. at 726-27. Accordingly, we cannot hold that the trial court abused its discretion in excluding Holmes's testimony.

We sustain that portion of the second issue of Elizabeth Tamez and Rosendo Tamez and the second and third sub-issues of the Guerrero appellants' first issue that relate to the expert testimony of Ronald Elwell. However, we overrule that portion of the second issue of Elizabeth Tamez and Rosendo Tamez and the second and third sub-issues of the Guerrero appellants' first issue that relate to the expert testimony of Douglas Holmes.

D. Summary Judgment


Appellants contend the trial court erred in granting Mack Trucks' motion for summary judgment.

1. Standard of Review


We review the granting of a traditional motion for summary judgment de novo. See Natividad v. Alexsis, Inc., 875 S.W.2d 695, 699 (Tex. 1994); Tex. Commerce Bank Rio Grande Valley, N.A. v. Correa, 28 S.W.3d 723, 726 (Tex. App.-Corpus Christi 2000, pet. denied). In a traditional motion for summary judgment, the movant has the burden of showing that there is no genuine issue of material fact and that he is entitled to judgment as a matter of law. Tex. R. Civ. P. 166a(c); Lear Siegler, Inc. v. Perez, 819 S.W.2d 470, 471 (Tex. 1991). In deciding whether there is a genuine issue of material fact, evidence favorable to the nonmovant will be taken as true, and all reasonable inferences made, and all doubts resolved, in his favor. Am. Tobacco Co. v. Grinnell, 951 S.W.2d 420, 425 (Tex. 1997). Summary judgment is proper if the movant disproves at least one element of each of the plaintiff's claims or affirmatively establishes each element of an affirmative defense to each claim. Id. The nonmovant has no burden to respond to a traditional motion for summary judgment, unless the movant conclusively establishes its cause of action or defense. M.D. Anderson Hosp. & Tumor Inst. v. Willrich, 28 S.W.3d 22, 23 (Tex. 2000).

By contrast, a no-evidence motion for summary judgment presented under Texas Rule of Civil Procedure 166a(i) is equivalent to a pretrial directed verdict, and this Court applies the same legal sufficiency standard on review. Zapata v. The Children's Clinic, 997 S.W.2d 745, 747 (Tex. App.-Corpus Christi 1999, pet. denied). This Court reviews the evidence in the light most favorable to the nonmovant, disregarding all contrary evidence and inferences. KPMG Peat Marwick v. Harrison County Hous. Fin. Corp., 988 S.W.2d 746, 748 (Tex. 1999); Burroughs Wellcome Co. v. Crye, 907 S.W.2d 497, 499 (Tex. 1995).

When a motion for summary judgment is presented asserting there is no evidence of one or more essential elements of a claim or defense on which the nonmovant would have the burden of proof at trial, the movant does not bear the burden of establishing each element of its own claim or defense. In re Estate of Flores, 76 S.W.3d 624, 629 (Tex. App.-Corpus Christi 2002, no pet.); Lampasas v. Spring Ctr., Inc., 988 S.W.2d 428, 432-33 (Tex. App.-Houston [14th Dist.] 1999, no pet.); see also Tex. R. Civ. P. 166a(i). Instead, the burden shifts entirely to the nonmovant to present enough evidence to be entitled to a trial: evidence that raises a genuine fact issue on the challenged elements. See Tex. R. Civ. P. 166a cmt. If the nonmovant is unable to proffer enough evidence, the trial court must grant the motion. Lampasas, 988 S.W.2d at 433. A no-evidence summary judgment is improper if the respondent brings forth more than a scintilla of probative evidence to raise a genuine issue of material fact. Havner, 953 S.W.2d at 711; Zapata, 997 S.W.2d at 747. Less than a scintilla of evidence exists when the evidence is so weak as to do no more than create a mere surmise or suspicion of a fact. Kindred v. Con/Chem, Inc., 650 S.W.2d 61, 63 (Tex. 1983); Zapata, 997 S.W.2d at 747. More than a scintilla of evidence exists when the evidence rises to a level that would enable reasonable and fair-minded people to differ in their conclusions. Havner, 953 S.W.2d at 711; Transp. Ins. Co. v. Moriel, 879 S.W.2d 10, 25 (Tex. 1994).

When, as here, a trial court's order granting a motion for summary judgment does not specify the ground or grounds relied on for its ruling, the appellate court will affirm the summary judgment if any of the theories advanced are meritorious. Dow Chem. Co. v. Francis, 46 S.W.3d 237, 242 (Tex. 2001); Boren, 972 S.W.2d at 865. Likewise, where the order granting the summary judgment does not state the grounds upon which it was granted, the nonmovant must show on appeal that each independent ground alleged is insufficient to support the summary judgment. Malooly Bros., Inc. v. Napier, 461 S.W.2d 119, 121 (Tex. 1970); Williams v. City of Dallas, 53 S.W.3d 780, 784 (Tex. App.-Dallas 2001, no pet.).

2. Analysis

In its second amended motion for summary judgment and supplemental no-evidence motion for summary judgment, Mack Trucks asserted that: (1) it was entitled to a no-evidence summary judgment because appellants had not established that its truck design was the producing or proximate cause of the occurrence or Tamez's injuries; (2) it had established the affirmative defense of "open and obvious defect" as a matter of law and thus, appellants' claims for marketing defect were precluded; (3) appellants' claims for negligence, manufacturing defect, marketing defect, breach of implied warranty, and misrepresentation are precluded by the Texas Supreme Court case of Hyundai Motor Co. v. Rodriguez, 995 S.W.2d 661 (Tex. 1999); (4) the claim of Elsa Guerrero, as next friend of Sara Beth Guerrero and Gregory Alan Guerrero, minor children, should be dismissed because there is no evidence that Sara Beth Guerrero and Gregory Alan Guerrero are Tamez's children and thus, are not proper wrongful death beneficiaries; (5) Donna Kim Cantu's claim should be dismissed because she filed suit after the expiration of the two-year statute of limitations; and (6) the survival claim of Rosendo Tamez, as administrator of the estate of Abram Tamez, deceased, should be dismissed because there was no administration of the estate within one year and the two-year statute of limitations bars the estate from recovery.

a. Causation

In their first issue, Elizabeth Tamez and Rosendo Tamez contend the trial court erred in granting Mack Trucks' motion for summary judgment because there is a genuine issue of material fact that the design defect at issue was the producing cause of Tamez's injuries and death. In the first sub-issue of their first issue, the Guerrero appellants contend the trial court erred in granting Mack Trucks' motion for summary judgment because there is some evidence of a producing cause.

Because we have concluded that the trial court should not have excluded the expert testimony of Ronald Elwell, we will now determine whether there is more than a scintilla of evidence on causation to preclude summary judgment.

Mack Trucks moved for a no-evidence summary judgment on the ground that appellants had failed to establish that its truck design was the producing or proximate cause of the occurrence or injuries. In response, appellants produced the deposition, report and affidavit of Ronald Elwell, as well as Elwell's testimony at the Daubert hearing and through bill of exceptions. As we discussed above, this summary judgment evidence sets out the possible defects in the fuel system of the Mack truck driven by Tamez and details how these defects were a producing cause of the fire that injured Tamez.

Although contrary theories are espoused by Mack Trucks' experts, in reviewing a no-evidence summary judgment, we must construe the record in the light most favorable to the nonmovant and disregard all contrary evidence and inferences. KPMG Peat Marwick, 988 S.W.2d at 748. After applying this standard, we conclude there is more than a scintilla of evidence to support appellants' claims that a defect in the fuel system of the truck in question was a producing cause of the fire that injured Tamez. Therefore, we hold the trial court erred in granting summary judgment on this ground. We sustain the first issue of Elizabeth Tamez and Rosendo Tamez and the first sub-issue of the Guerrero appellants' first issue.

b. Open and Obvious Defect


In their third issue, the Guerrero appellants, and by reference Elizabeth Tamez and Rosendo Tamez, contend the trial court erred in granting Mack Trucks' motion for summary judgment on their marketing defect claim because Tamez knew his cargo was hazardous.

Mack Trucks moved for summary judgment on the ground that it had established the affirmative defense of "open and obvious defect" as a matter of law and thus, appellants' claim for marketing defect was precluded. Mack Trucks produced summary judgment evidence establishing that Tamez was certified to transport hazardous materials, and thus, had a special knowledge of the dangerous propensity of his cargo. It asserted that the dangers of a rollover accident involving a tanker trailer filled with highly flammable crude oil are open and obvious. Relying on Caterpillar, Inc. v. Shears, Mack Trucks argued that it had no duty to warn in this case because such a duty applies only to hazards unknown to the consumer. See Caterpillar, Inc. v. Shears, 911 S.W.2d 379, 382 (Tex. 1995).

While Mack Trucks correctly states the proposition derived from Caterpillar, it misapplies the proposition to the facts of this case. The law of products liability imposes liability only for products sold "in a defective condition unreasonably dangerous to the user or consumer." Id. (quoting Restatement (Second) of Torts § 402A(1) (1965)). Here, the "product" is the tractor truck, which was designed, manufactured, and marketed by Mack Trucks. The alleged defect involves the truck's fuel system. While we agree that Mack Trucks has no duty to warn of potential dangers associated with the tanker, it has failed to produce any summary judgment evidence showing that any dangers associated with the truck's fuel system were common knowledge or known by Tamez.

Accordingly, we conclude the trial court erred if it granted summary judgment on this ground.

c. Preclusion of Claims

In their second issue, the Guerrero appellants, and by reference Elizabeth Tamez and Rosendo Tamez, contend the trial court erred in granting Mack Trucks' motion for summary judgment on their claims for negligence, manufacturing defect, and marketing defect because the court misapplied the Texas Supreme Court case of Hyundai Motor Co. v. Rodriguez.

Mack Trucks moved for summary judgment on the ground that Hyundai Motor Co. precludes appellants from recovering for negligence, manufacturing defect, marketing defect, breach of implied warranty, and misrepresentation. Mack Trucks argued that because these claims all stem from a single complaint, i.e., that the design of the truck's fuel system was a producing cause of Tamez's injury, the trial court should not confuse the jury by submitting differently worded questions that call for the same factual finding.

In the Hyundai Motor Co. case, the plaintiff, Rodriguez, was severely injured in a rollover accident involving a Hyundai Excel. Hyundai Motor Co., 955 S.W.2d at 662. Rodriguez sued Hyundai Motor Co. and others for negligence, design defect, marketing defect, and breach of implied warranty. Id. She alleged that the Excel was not crash worthy because its roof structure and passenger restraint system were so defectively designed that she was thrown into the roof in the accident and injured more severely than she would have been otherwise. Id. The trial court submitted two jury questions on liability - one on negligence and the other on design defect. Id. at 662-63. The jury answered each question negatively. Id. The court of appeals reversed, holding that the trial court had erred by refusing to submit a jury question on breach of implied warranty. Id. at 663. The supreme court, in reversing the court of appeals, held that when the controlling issues regarding claims for breach of an implied warranty and strict liability are functionally identical, the trial court is not required to submit differently worded jury questions that call for the same factual finding. Id. at 665-66.

Here, as in the Hyundai Motor Co. case, all legal theories asserted are predicated on the same complaint, i.e., that the alleged design defect in the fuel system of the Mack truck driven by Tamez was the proximate or producing cause of the fire that injured him. Likewise, both cases involve the crash worthiness of their respective vehicles. However, unlike the Hyundai Motor Co. case, this case was disposed of by summary judgment rather than a trial on the merits.

Whether a plaintiff is precluded from bringing multiple theories of recovery at the pre-trial stage is an altogether different issue than was before the supreme court in Hyundai Motor Co. Here, Mack Trucks, as the summary judgment movant, was required to bring forth evidence disproving at least one element of each of the plaintiffs' claims or affirmatively establishing each element of an affirmative defense to each claim. Grinnell, 951 S.W.2d at 425. Mack Trucks cannot rely upon Hyundai Motor Co. to accomplish this result.

Accordingly, we conclude the trial court erred if it granted summary judgment on this ground.

d. The Guerrero Children

In her fourth issue, the Elsa Guerrero contends the trial court erred in granting Mack Trucks' motion for summary judgment on her claim as next friend of Sara Beth Guerrero and Gregory Alan Guerrero, minor children.

In its motion for summary judgment, Mack Trucks asserted Elsa Guerrero's claim should be dismissed because there is no evidence that Sarah Beth Guerrero and Gregory Alan Guerrero are Tamez's natural children and thus, not proper wrongful death beneficiaries. While the motion contains no-evidence language, we construe the motion as a traditional motion for summary judgment. See Creative Thinking Sources, Inc. v. Creative Thinking, Inc., 74 S.W.3d 504, 514 (Tex. App.-Corpus Christi 2002, no pet.);Michael v. Dyke, 41 S.W.3d 746, 752 (Tex. App.-Corpus Christi 2001, no pet.). In support of the motion, Mack Trucks presented summary judgment evidence establishing that: (1) Elsa Guerrero, the mother of Sarah Beth Guerrero and Gregory Alan Guerrero, was not married to Tamez; (2) the children were not listed in Tamez's obituary as his children; (3) the children were not listed as dependents on Tamez's employment application; (4) Tamez was not listed as the father on the children's birth certificates; and (5) neither child took the surname "Tamez."

It is undisputed that Elsa Guerrero was not married to Tamez when Sarah Beth and Gregory Alan were born. Therefore, the children must establish by clear and convincing evidence that Tamez was their father. Garza v. Maverick Market, Inc., 768 S.W.2d 273, 275-76 (Tex. 1989) (If paternity is questioned in wrongful death action, alleged child must prove by clear and convincing evidence that he is filial descendant of deceased.). As to what evidence is clear and convincing, the Texas Supreme Court has held that "a fact finder must decide that question in each case." Id. at 276.

In the instant case, Mack Trucks' summary judgment evidence does not conclusively establish that the Guerrero children were not the natural children of Tamez. The fact that the children were born out of wedlock, does not, in itself, establish that Tamez was not their father. See id. The fact that the children were not listed on Tamez's employment application or insurance benefits enrollment form does not establish, as a matter of law, that they were not his natural children. No father was identified on the children's birth certificates pursuant to Medicaid regulations.

On the other hand, Elsa Guerrero offered as summary judgment evidence, a court order establishing the parent-child relationship between Sarah Beth and Tamez. The summary judgment evidence also included Elsa Guerrero's deposition testimony that Tamez was the father of both children and evidence of Gregory Alan's conception and gestation. This type of evidence has been recognized as proper by the Texas Supreme Court. See id. Because there is some evidence of paternity offered in a suit under the Wrongful Death Act, a child born out of wedlock is entitled to an opportunity to argue to the trier of fact that he is the child of the alleged father. Id.

We hold that an issue of fact exists regarding whether Sarah Beth Guerrero and Gregory Alan Guerrero are Tamez's natural children. Accordingly, we conclude the trial court erred if it granted summary judgment on this ground.

e. Claims of Donna Kim Cantu

In her fifth issue, Donna Kim Cantu contends the trial court erred in granting Mack Trucks' motion for summary judgment on her claim.

In its second amended motion for summary judgment, Mack Trucks asserted: (1) the summary judgment evidence established that Donna Kim Cantu was not Tamez's child, and (2) Donna Kim Cantu's claims should be dismissed because she filed suit after the expiration of the two-year statute of limitations.

In support of the motion, Mack Trucks presented summary judgment evidence establishing that: (1) Tamez was not married to Cantu's mother; (2) Cantu was not listed in Tamez's obituary as his child; (3) Cantu was not listed as a dependent on Tamez's employment application; and (4) Cantu did not use the surname "Tamez."

As we discussed above, such evidence is insufficient to establish that, as a matter of law, Donna Kim Cantu is not Tamez's child. An illegitimate child must be given an opportunity to argue to the trier of fact that she is the child of the alleged father. Id. Accordingly, we conclude that an issue of fact exists regarding whether Donna Kim Cantu is Tamez's child.

When a defendant moves for summary judgment on the affirmative defense of limitations, it must conclusively prove each element of the defense. Velsicol Chem. Corp. v. Winograd, 956 S.W.2d 529, 530 (Tex. 1997). A party moving for summary judgment on limitations grounds must conclusively prove when the cause of action accrued. Holy Cross Church of God in Christ v. Wolf, 44 S.W.3d 562, 566 (Tex. 2001). Section 16.003(b) of the Texas Civil Practice and Remedies Code provides a two-year limitations period for wrongful death claims, beginning on the date of death. Tex. Civ. Prac. & Rem. Code Ann. § 16.003(b) (Vernon 2002).

Here, it is undisputed that Donna Kim Cantu intervened in the case more than two years after Tamez's death. However, Cantu claims that suit was filed on her behalf as a statutory beneficiary, pursuant to civil practice and remedies code section 71.004.

For wrongful death, the persons who may bring an action are the surviving spouse, children, and parents of the deceased. Tex. Civ. Prac. & Rem. Code Ann. § 71.004(a) (Vernon 1997); Villegas v. Griffin Indus., 975 S.W.2d 745, 749 (Tex. App.-Corpus Christi 1998, pet. denied). One or more of these individuals may bring the action for the benefit of all. Tex. Civ. Prac. & Rem. Code Ann. § 71.004(b) (Vernon 1997); Trigo v. Munoz, 993 S.W.2d 419, 422 (Tex. App.-Corpus Christi 1999, pet. denied). Where suit is brought by only one, or some but not all, of the parties, it must appear that the suit was brought for the benefit of all. Avila v. St. Luke's Lutheran Hosp., 948 S.W.2d 841, 850 (Tex. App.-San Antonio 1997, pet. denied). This provision was enacted chiefly for the benefit of the defendant in such a suit, to protect it against the bringing of several suits arising out of the same transaction. Id.

It is undisputed that Mack Trucks knew of Cantu's existence during the pendency of the lawsuit. The depositions of Elsa Guerrero, Dora Tamez, Rosendo Tamez, and Elizabeth Tamez all refer to Cantu as Tamez's daughter. Written discovery listing all the children of Tamez also included Cantu.

With knowledge of Cantu's existence, Mack Trucks filed a motion to dismiss, objecting to the non-joinder of Cantu. Within its motion to dismiss, Mack Trucks acknowledged that the Tamez plaintiffs had filed the suit on behalf of all statutory beneficiaries.

Cantu is simply intervening in a case that was already filed on her behalf by the other statutory beneficiaries. We see no reason why she should not be able to accomplish the same result by intervening in the wrongful death action, even after limitations has run, as would be accomplished through amendment of the Tamez plaintiffs' pleadings. See Franks v. Sematech, Inc., 936 S.W.2d 959, 960-61 (Tex. 1997); see also Tex. Civ. Prac. & Rem. Code Ann. § 16.068 (Vernon 1997). On these facts, we conclude the filing of Cantu's petition in intervention related back to the filing of the Tamez plaintiffs' original petition. See e.g., Bradley v. Burnett, 687 S.W.2d 53, 55 (Tex. App.-Dallas 1985, no writ) (amending survival suit to include wrongful death cause of action relates back to the date the survivors' suit was filed for purposes of computing limitations, where both actions arose out of the same transaction or occurrence).

Accordingly, we conclude the trial court erred if it granted summary judgment on these grounds. We sustain the second, third, fourth, and fifth issues of the Guerrero appellants and the referenced issues of Elizabeth Tamez and Rosendo Tamez.

f. Survival Claim of the Estate

Rosendo Tamez contends the trial court erred in granting Mack Trucks' motion for summary judgment on the survival claim of the estate of Abram Tamez, deceased, on the issue of limitations. In its motion for summary judgment, Mack Trucks asserted that the survival claim of Rosendo Tamez as administrator of the estate of Abram Tamez, deceased, should be dismissed because there was no administration of the estate within one year and the two-year statute of limitations bars the estate from recovery.

Rosendo Tamez filed suit as administrator of Tamez's estate within three years of Tamez's death. Texas Civil Practice and Remedies Code section 16.062(a) tolls any applicable statute of limitations for twelve months after the death of a person against whom or in whose favor there may be a cause of action. Tex. Civ. Prac. & Rem. Code Ann. § 16.062(a) (Vernon 1997); Felan v. Ramos, 857 S.W.2d 113, 118 (Tex. App.-Corpus Christi 1993, writ denied). If an executor or administrator of an estate qualifies before the expiration of this tolling period, the statute of limitations begins to run at the time of the qualification. Tex. Civ. Prac. & Rem. Code Ann. § 16.062(b) (Vernon 1997).

Although the twelve-month tolling period may be shortened by the qualification of an executor or administrator, in this case, none qualified during such a period. Therefore, limitations commenced on October 30, 1997, twelve months after Tamez's death. See Tex. Civ. Prac. & Rem. Code Ann. § 16.062(a) (Vernon 1997). Because Rosendo Tamez filed suit as administrator of Tamez's estate within two years after October 30, 1997, we conclude the action was timely filed. See, e.g., Garcia v. Caremark, Inc., 921 S.W.2d 417, 420-21 (Tex. App.-Corpus Christi 1996, no writ) (applying tolling provision of section 16.062 to estate's survival claim).

Accordingly, we conclude the trial court erred if it granted summary judgment against Tamez's estate on the issue of limitations. We sustain Rosendo Tamez's limitations issue.

3. Conclusion


We have concluded that the trial court erred if it granted summary judgment on any of the grounds raised by Mack Trucks in its traditional motion for summary judgment. As to Mack Truck's no-evidence motion for summary judgment, we find that appellants produced sufficient evidence raising a genuine issue of material fact on all the challenged elements. Accordingly, we hold the trial court erred in granting Mack Trucks' motion for summary judgment.

E. Disposition


We reverse the trial court's order granting summary judgment and remand the case to the trial court for further proceedings consistent with this opinion.


FEDERICO G. HINOJOSA

Justice

Opinion delivered and filed this the

27th day of February, 2003.

1. Retired Justice J. Bonner Dorsey, who concluded his term of office on December 31, 2002, continues to sit on this Court by assignment of the Chief Justice of the Texas Supreme Court pursuant to Tex. Gov't Code Ann. § 74.003 (Vernon 1998).

2. Appellant, Elizabeth Tamez as next friend of Abram Joshua Tamez and Erica Roxanne Tamez, minor children, was the plaintiff below. We will refer to this appellant as "Elizabeth Tamez."

3. Appellants, Elsa Guerrero, as next friend of Sara Beth Guerrero and Gregory Alan Guerrero, minor children, Donna Kim Cantu, and Terrie Zay, as next friend of Justin Scott Zay, a minor child, were intervenors below. We will refer to these appellants as the "Guerrero appellants."

Appellant, Rosendo Tamez, Sr., individually and as administrator of the estate of Abram Tamez, deceased, also intervened below. We will refer to this appellant as "Rosendo Tamez."

4. Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 585 (1993).

5. Mack Trucks originally moved for summary judgment on appellants' claims of misrepresentation, breach of warranty, non-design defect claims, the dismissal of the Guerrero children's claims, and the dismissal of the claims of Donna Kim Cantu, Elizabeth Tamez, Elsa Guerrero and the estate. Prior to the entry of final judgment, Elizabeth Tamez and Elsa Guerrero dismissed their individual claims against Mack Trucks; thus, these individual claims are not before us on appeal.

6. The Robinson factors include, but are not limited to: (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. E.I. du Pont de Nemours & Co. v. Robinson, 923 S.W.2d 549, 557 (Tex. 1995).

7. The eyewitness, Rex Harrell, was one of the first persons to arrive at the scene. Harrell testified that Tamez's body was covered with a "shiny, oily coating" which smelled of diesel fuel.

the standard established with these smaller hospitals in Texas is 30 minutes

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NUMBER 13-04-297-CV


COURT OF APPEALS


THIRTEENTH DISTRICT OF TEXAS


CORPUS CHRISTI - EDINBURG



DAISY (DEE) MARIE KELSO,

INDIVIDUALLY, AND JAMES

DOUGLAS KELSO, INDIVIDUALLY, Appellants,


v.


ROBERT A. WILLIAMSON, M.D., Appellee.

On appeal from the 25th District Court of Gonzales County, Texas.



MEMORANDUM OPINION


Before Chief Justice Valdez and Justices Hinojosa and Yañez

Memorandum Opinion by Justice Yañez

In this medical malpractice case, appellants, Daisy (Dee) Marie Kelso and her husband, James Douglas Kelso, (1) contend, in a single issue, that the trial court erred in granting a directed verdict in favor of appellee, Robert Williamson, M.D. (2) We agree, and reverse and remand.

I. Background

On the morning of October 25, 1999, Kelso began experiencing nausea, vomiting, and pain in her neck and shoulder. After contacting her mother and husband, she arrived at the hospital emergency room at approximately 10:10 a.m. Emergency room personnel called Kelso's family physician, Dr. Williamson, at 10:25 a.m. Dr. Williamson returned the call to the emergency room at 10:30 a.m. and spoke to Teresa Koch, a licensed vocational nurse. By telephone, Dr. Williamson ordered medication to relieve the nausea and vomiting, blood work for various tests, and diagnostic procedures, including a chest X-ray and an electrocardiogram (EKG).

Nurse Koch performed the EKG on Kelso at 10:50 a.m. The EKG machine determined that Kelso's EKG was not normal and printed out a statement that she suffered from an "acute MI," or heart attack. There is conflicting testimony regarding whether Dr. Williamson told Nurse Koch during the 10:30 a.m. phone call that he was on his way to the hospital to review the EKG results. (3) Nurse Koch testified that it was her "understanding" that Dr. Williamson was on his way to the hospital. According to Nurse Koch, Dr. Williamson did not tell her to call him back with the EKG results and she does not recall whether she did so. Dr. Williamson testified that he had worked with Nurse Koch before and that she had always called him with test results. He testified it was unnecessary for him to ask Nurse Koch to call him if a patient's test results were abnormal, because it was her responsibility to do so. He also testified that he did not always come by the hospital to personally review a patient's EKG results because his office was not near the hospital.

Between 11:30 a.m. and 11:45 a.m., Nurse Kathleen Floyd, a registered nurse assigned to the intensive care unit, came to the emergency room to relieve Nurse Koch for lunch. After checking on Kelso, Nurse Floyd ordered a second EKG, which was performed at 11:47 a.m. At 12:10 p.m., she called Dr. Williamson with the EKG results. He advised Nurse Floyd that he was on his way to the hospital. Dr. Williamson arrived at the hospital at approximately 12:35 p.m., determined that Kelso was experiencing a coronary event, and moments later, ordered that she be given nitroglycerin. Dr. Williamson also recommended that Kelso be given a medication known as a tissue plasminogen activator, or "TPA." (4) TPA was administered to Kelso about 2:25 p.m. At approximately 4:10 p.m., Kelso was transferred by ambulance from Gonzales Hospital to Citizens Hospital in Victoria, Texas for further treatment by Dr. Kurtis Kreuger, a cardiologist.

Kelso sued Dr. Williamson, contending that she suffered injuries due to the unreasonable delay in treating her acute myocardial infarction. Kelso contends Dr. Williamson violated the applicable standard of care by failing to timely diagnose and treat her.

The case went to trial before a jury. At the close of the plaintiffs' evidence at trial, the trial court granted a motion for directed verdict in Dr. Williamson's favor. (5) This appeal ensued.

II. Standard of Review

The Kelsos contend the trial court erred in granting a directed verdict because they presented sufficient evidence that Dr. Williamson's conduct was negligent and that his negligence caused Kelso's injuries. Specifically, they contend they presented expert witness testimony sufficient to establish the applicable standard of care, that Dr. Williamson breached that standard, and the breach caused Kelso's injuries.

In reviewing a directed verdict, an appellate court follows the standards for assessing the legal sufficiency of the evidence. (6) The court should consider all evidence in the light most favorable to the party against whom the verdict was instructed, crediting favorable evidence if reasonable jurors could and disregarding contrary evidence unless reasonable jurors could not. (7) The court may consider uncontradicted evidence favorable to the movant. (8)

We decide whether there is any evidence of probative value to raise an issue of material fact on the question presented. (9) When no evidence of probative force on an ultimate fact element exists, or when the probative force of testimony is so weak that only a mere surmise or suspicion is raised as to the existence of essential facts, a directed verdict is proper. (10) The trial court should direct a verdict when reasonable minds can draw only one conclusion from the evidence. (11) If the record contains any probative and conflicting evidence on a material issue, a directed verdict is improper and the case must be remanded for the jury to determine that issue. (12) If reasonable minds could differ as to the controlling facts, a trial court errs if it grants a directed verdict and refuses to submit the issues to a jury. (13) The reviewing court may affirm a directed verdict even if the trial court's rationale for granting the directed verdict is erroneous, provided it can be supported on another basis. (14)

III. Applicable Law (15)

The elements that must be proven for a medical malpractice action are: "(1) a physician's duty to act according to a certain standard; (2) a breach of the applicable standard of care; (3) an injury; and (4) a causal connection between the breach of care and the injury." (16) Expert testimony is necessary in a medical malpractice case to meet the plaintiff's burden as well as to establish or preclude summary judgment. (17)

The threshold question in a medical malpractice case is the standard of care. (18) The applicable standard must be established so the fact finder can decide if the defendant deviated from it. (19) In medical malpractice cases, the standard of care must be established by expert testimony unless the mode or form of treatment is a matter of common knowledge or is within the experience of a layman. (20) An expert cannot merely state he knows the standard of care and conclude that it was met. (21) The expert must state what the standard is and say what was done to meet it. (22)

During the physician-patient relationship, the physician has a duty to act as would a physician of reasonable and ordinary prudence under the same or similar circumstances. (23) Accordingly, a physician's failure to so act constitutes a breach of that duty. (24)

IV. Analysis

A. Standard of Care

Dr. Williamson moved for a directed verdict on grounds that the Kelsos failed to present expert witness testimony establishing the applicable standard of care and that Dr. Williamson's conduct breached the standard. The trial court granted the directed verdict. (25)

The Kelsos contend that they presented expert testimony establishing the applicable standard of care and that Dr. Williamson breached the standard. In support, the Kelsos point to a statement by their expert, Dr. William C. Janss, that "[t]he standard of care is a -- a benchmark that establishes at what level a -- or what -- what would be appropriate care for a patient based on the practices of the physicians in that community." The Kelsos also presented the following deposition testimony by Dr. Janss:

Q [by plaintiffs' counsel]: All right. Could you tell the Jury what you believe the standard of care is in this case as it applies to Doctor Williamson?


A [Dr. Janss]: Well, start from the beginning. First of all, it was incumbent upon Doctor Williamson to recognize this patient had risk factors for cardiovascular disease. He in fact, had done that. It was then incumbent upon him to -- to (inaudible) or had opportunities to talk to the patient to encourage her to modify her -- her living standard, or living activities, to reduce her risk for cardiovascular disease. It's my opinion he did not do that.

It was his -- a requirement that he recognize the patient was -- when she presented to the emergency room with the symptoms that she did of nausea, vomiting and tightness radiating to her shoulder on the day of 10/5/99, that she had -- that there was a probability -- a -- a -- a risk that this may well represent a cardiac event. In fact, he did recognize that.

It was then his responsibility to see and evaluate the patient on a timely basis and order appropriate tests. He did order appropriate tests. He did not see the patient in a timely basis.

The standard of care for a -- for responding to a patient's -- notification of a patient's arrival to an emergency room in the State of Texas in an emergency room setting is 30 minutes. It's required by Federal law that hospitals who -- who receive Federal funds in the form of Medicaid or Medicare or whatever establish certain standards of care for -- or require certain requirements for response to emergency -- emergency room. And in fact, the standard established with these smaller hospitals in Texas is 30 minutes. He did not meet that standard.


. . . .


Q: Okay. What does the standard of care require of the family practice doctor presented with the situation as Mrs. Kelso presented on October 25th, 1999, in regards to following up after these appropriate tests were, in fact, ordered by the doctor?


A: The standard of -- of care, as it applies to this circumstance, is the doctor needed to make himself present as soon as possible, I believe within 30 minutes.


Q: Why is that?


A: Because in this circumstance, number one, the standard is that any patient who comes to the ER needs to be seen in 30 minutes; but in this particular circumstance, as time passed, there was going to be increasing risk of increasing damage to the heart due to the lack of circulation to the heart caused by a clot in one of the arteries it feeds on.


Q: In a small town like Gonzales, what if it was a situation where he was physically -- it was impossible for him to be there in 30 minutes, what would the standard of care require?


A: Well, that's why we provide a doctor on call for the emergency room that's in proximity, which in that situation did exist here.


Q: And did Gonzales Hospital -- Memorial Hospital have a doctor on call that day?


A: Yes.


Q: When was the first time that Doctor Williamson actually showed up at the hospital to see Mrs. Kelso on October 25th, 1999?


A: Doctor Williamson arrived at the hospital at 12:45.


Q: Is that within the standard of care to arrive over two hours after the initial call?


A: No.


Q: Why not?


A: It's not in the standard -- the standard of care for the emergency room patient is a patient to be seen in 30 minutes and the standard of care as applied to someone who is undergoing a myocardial -- or what we suspect is a myocardial infarction, that the patient be seen as soon as possible.


. . . .


Q: When someone is having an acute heart attack right now, what does the standard of care require for family practice doctors such as yourself or Doctor Williamson in an emergency room setting?


A: The standard of care requires that the physician evaluate the patient as quickly as possible, as -- as quickly as he can get to that person. If he can't get to that person quickly, he should find any other doctor who can get there quicker. And that's certainly within 30 minutes.

And the patient needs to be evaluated and determination--determination made as to whether, in fact, it appears that-- that the patient, based on the physical examination, history and other tests that may be ordered, is having, in fact, an acute myocardial--or having a heart attack.

And if that determination is made, then other therapies have to be considered that may reverse this process, one of which might be the administration of what's commonly known as clot-- a clot buster. That is not without risk. It's a--because it can cause bleeding complications, and so it's required for the physician to evaluate the patient as to whether they would tolerate that procedure.


. . . .


Q: Okay. What are the benefits of--for a patient suffering a new onset heart attack of receiving--of receiving timely administration of a clot busting drug such as TPA?


A: Well, if given timely, the drug will dissolve the clot that's formed and block the artery, and therefore blood flow will return to the portion of the heart that's been deprived of the blood flow, and therefore undergoing damage. With the return of the blood flow and oxygen, that heart muscle can recover and injury to the heart can be avoided.


. . . .


Q: Okay. I want to go back to the standard of care issues that were you were [sic] addressing earlier, Doctor, and let's break it up, since there's been a number of objections. But starting at 10:30 when the doctor first got the call and was relayed the information by the nurses, I believe it was Nurse Koch at that time. What did the standard of care require of Doctor Williamson at that time, at 10:30, when he received the information that's recorded that the nurses gave to him, and also that he's testified in his deposition that he did receive? What did the standard of care require from him at that time?


A: The standard of care required, number one, that he insure that this patient be seen by a physician within 30 minutes, either by himself or another physician if he needed to arrange the --


Q: Was that done?


A: No.


Q: What else would the standard of care require?


A: If he suspected a myocardial infarction, which evidently he did given that he ordered cardiac enzymes and EKG, that he insure that the patient be seen at the quickest possible time, even less than 30 minutes.


Q: Was that done?


A: No.


Q: And was that a violation of the standard of care?


A: Yes.


Q: And what else did the standard of care require?

A: Well, the standard of care requires that upon evaluating the patient, or person, and receiving the -- the history and exam, the data, that if he concluded that she was having a myocardial infarction, which she did a little later, that she -- then the various therapies that would be available to a patient with this setting, a rural hospital, be discussed with the patient. The risks, the benefits, and that that -- if they elected to proceed with that medicine, that it be administered in the most timely fashion possible. And that medicine in discussion here would be what we refer to as TPA, or a clot-buster -- clot buster.


Q: And was that done in this case?


A: No.


Q: When you talk about, you know, the reasonable time period for recognizing that Mrs. Kelso is suffering onset of a heart attack and getting the clot busting drug administered, what time period are we talking about, from like recognizing the heart attack to actually administering the drug?


A: Well, I was able to pull some information from a -- study that was performed by HCFA in this time frame, actually which I think our hospital participated in, and I suspect this hospital may well have also because it was kind of a state-wide study. And that indicated that it's -- and the study -- I found a study that was performed in Texas at that time, and the Texas baseline was 38 and-a-half minutes from recognition to administration of thrombolytics. The best in the United States was 21 minutes.


. . . .


Q: Okay. Had the standard of care been met in this case, what would've happened with regards to Mrs. Kelso's presentation at the Gonzales Memorial Hospital with symptoms of a heart attack on October 25th, 1999?


A: Well, had the standard of care been met, she would've been administered TPA in a timely fashion. Let's say, at -- at the latest, that Doctor Williamson was first notified at 10:30 and arrived at 11, and had met the standard of care for Texas, he would've (inaudible) examined the patient and so let's say another ten minutes. Well, actually, I need to start over on this.


Q: Okay.


A: What he needed to do was call the physician who was on call and asked him to come over, and presumably that could've happened within 15 minutes. That's what I (inaudible). I mean, you wouldn't want to wait the whole 30 minutes on a patient where you have the option of getting someone in earlier.

So let's say the other doctor could've arrived in 15 minutes, and it took him 10 minutes to evaluate the patient. It really doesn't take any longer than that. So that would mean that -- that by, let's say, 11 o'clock, the patient would've been evaluated; the TPA could've been administered by say, 11:40.

And that would represent two hours and approximately 40 minutes earlier than the TPA was actually administered, and that would've represented a significant savings in heart tissue. And heart tissue would've survived that didn't survive as a result of the delay.


. . . .


Q: When Doctor Williamson arrived at the hospital at 12:45 -- I believe that's the right time, isn't it?


A: Yes.


Q: If that's the earliest he could've been there, what would the standard of care require of him at that point, at 12:45, as -- as far as the timely administration of the clot busting drug?


A: He -- he would then have to rely on the physician who was on call for the emergency room to provide the timely response.


Q: Okay. But -- but my question is, if at 12:45 --


A: Yes.


Q: -- if that's his first involvement in the case --


A: Oh.


Q: -- for example, hypothetically, then, what would the standard of care be for him at 12:45 --


A: Well --


Q: -- as far as timely administration of the clot busting drug?


A: The standard of care would be that that drug be administered 15 minutes from his arrival.


Q: Now, even if you take out the -- everything else before 12:45, did Doctor Williamson meet the standard of care at 12:45?


A: No, he didn't.


Q: Why not?


A: Because the TPA was not actually administered until, I believe it was 2:30 or thereabouts. Let's see. It was administered at 2:25 in the afternoon.


Dr. Williamson argues that Dr. Janss failed to explicitly state the applicable standard of care and failed to explain how Dr.Williamson's conduct breached that standard. Dr. Janss acknowledged that Dr. Williamson was not informed of Kelso's EKG results until 12:10 p.m. and that he arrived at the hospital within thirty minutes of being so informed:

Q [by Dr. Williamson's counsel]: Okay. But it's a -- it's a fact, in the documents that you've reviewed, that there's evidence that Doctor Williamson was first informed of the EKG findings on Mrs. Kelso at 12:10; is that correct?


A [Dr. Janss]: Yes.


Q: And it's also a fact that Doctor Williamson was at the hospital by 12:35; is that correct?


A: Yes.


Q: So he was there actually within 30 minutes of when he was notified of the EKG findings; is that correct?


A: Yes.

Q: Okay. Tell me, what time do you think the TPA should've been given to Mrs. Kelso?


A: Within ten minutes of reviewing the first EKG by a physician.


Q: Can you repeat that because I didn't hear you?


A: Within ten minutes of reviewing the first EKG by the physician examining the patient.


. . . .


Q: My question was: Is there something in those two articles that you produced that says that, 10 minutes?


A: No. There's a standard that's referred to in the articles, you know, what they-- what their current experience is.


Q: Okay. That's my -- I guess -- I'm sorry if I'm misspeaking, but what I'm trying to try to ask is, in those two articles that you produced, do they say the standard that you're referring to?


A: My 10 minutes wasn't a standard, though.


Q: It's an optimum?


A: Yes.

Q: Okay. What -- is there something in writing about what is the minimum level of -- or the maximum level of time after the physician reads the EKG -- what am I trying to say? Is there something in writing which says the standard requires the doctor to start the TPA within 10 minutes of reviewing the EKG which shows an acute myocardial infarction?


A: Well, what's in writing there is the time elapsed from presentation of the patient till administration of the EKG. Various things took place, including obtaining an EKG and administering aspirin and starting IVs and all of those other things. And so I don't know if I can -- there -- there's nothing in there that says it's from reading the EKG, no.


Q: That's just your opinion then?


A: No. Once again, I told you what that was, what the optimum was. And if you want to ask me what the standard is, I'll refer to the references that I brought.


On cross-examination, Dr. Janss conceded that the federal law requiring a hospital to respond to a patient within thirty minutes of the patient's arrival at an emergency room did not require Dr. Williamson to make emergency room doctors available within thirty minutes of a patient's presentation at an emergency room. In any event, it is undisputed that Dr. Williamson arrived at the hospital within thirty minutes of being informed of Kelso's EKG results. Dr. Janss was asked whether the hospital study states that a doctor or health care organization violates the standard of care by failing to administer TPA to a patient within 38.5 minutes; he responded, "No. I said that."

Although Dr. Janss conceded that it was reasonable for Dr. Williamson to examine Kelso and discuss with her the potential risks and benefits of administering TPA prior to ordering the drug, (26) he also testified that (1) the standard of care required Dr. Williamson to administer TPA within fifteen minutes of his arrival at the hospital at 12:45, and (2) that Dr. Williamson breached the standard of care by failing to administer TPA to Kelso until 2:25 p.m.

B. Causation

Although Dr. Williamson's argument in support of his motion for directed verdict focused on the Kelsos' alleged failure to establish the applicable standard of care and breach of the standard, we must also address whether the trial court properly granted the directed verdict on some other basis. (27) Therefore, we next address whether the Kelsos presented expert witness testimony sufficient to raise an issue of material fact on the issue of causation. (28)

On cross-examination, Dr. Janss testified as follows:

Q [by Dr. Williamson's counsel]: Do you agree with me that even though TPA or the clot busting drugs are highly effective drugs, good drugs, help with limiting heart damage, that they can't eliminate completely heart damage in a patient who sustains an infarction?


A: Well, you've--you've asked me a question that answers itself. In other words, you said that they can't eliminate damage in a patient who suffers an infarction. Well, if they've suffered an infarction, that's damage; but they can eliminate infarctions.


Q: Okay. In your opinion, did Mrs. Kelso sustain an infarction?


A: Yes.


Q: Okay. So in Mrs. Kelso's case, do you agree with me that TPA, even if it had been administered sooner than when it was, couldn't have eliminated completely any and all damage as a result of that infarction?


A: No. I think that there's possibility that it could've eliminated completely the the [sic] myocardial infarction.


Q: Possibility, but not a probability?


A: Yeah. I mean, I think it would be medically probable that she would not have suffered a myocardial infarction if she would have been treated promptly. She would not have suffered a myocardial infarction.


Conclusion

Considering the evidence in the light most favorable to the Kelsos, we hold that they presented by expert testimony some evidence concerning the applicable standard of care and that Dr. Williamson deviated from that standard of care. We also hold that Dr. Janss's testimony constituted some evidence as to causation. Accordingly, we hold that the trial court erred in granting a directed verdict. We therefore sustain the Kelsos' issue, reverse the trial court's judgment, and remand the cause to the trial court for further proceedings consistent with this opinion.

Dr. Williamson's Cross-Point

In a cross-point, Dr. Williamson contends that the trial court should have excluded Dr. Janss's testimony as to the standard of care applicable to Dr. Williamson, breach of that standard, and causation, on grounds that Dr. Janss's testimony is irrelevant and unreliable under rule 702 of the rules of evidence, (29) and E.I. DuPont de Nemours & Co., Inc. v. Robinson, 923 S.W.2d 549 (Tex. 1995). Specifically, Dr. Williamson argued that because Dr. Janss failed to base any of his opinions on an identifiable standard of care, his opinions were unreliable and inadmissible under rule 702. Dr. Williamson also argued that the standard of care used by Dr. Janss was "incorrect" because it was based on an "optimum" standard of care and that his testimony failed to set forth any reliable opinion on causation. (30) In addition, Dr. Williamson argued that instead of being based on proper legal concepts, Dr. Janss's testimony was based on what Dr. Janss would do personally.

Whether a witness is qualified to offer expert testimony is a matter committed to the trial court's discretion. (31) We gauge abuse of discretion by whether the trial court acted without reference to any guiding rules or principles. (32)

We have already determined that considering the evidence in the light most favorable to the Kelsos, Dr. Janss's testimony presented some evidence concerning the applicable standard of care and that Dr. Williamson deviated from that standard of care. Accordingly, we hold that the trial court did not abuse its discretion in admitting Dr. Janss's testimony. We overrule Dr. Williamson's cross-point.



LINDA REYNA YAÑEZ,

Justice










Memorandum opinion delivered and filed

this the 21st day of December, 2006.


1. The plaintiffs' live petition alleges that Williamson's failure to properly diagnose and treat Daisy Kelso's acute myocardial infarction resulted in her disabling injuries. Throughout this opinion, "Kelso" refers to Daisy Kelso.

2. The Kelsos initially sued various other health care providers; however, the case proceeded to a jury trial solely against appellee, Dr. Williamson.

3. We will accept as true the facts stated in the appellant's brief unless another party contradicts them. See Tex. R. App. P. 38.1(f); Roberts v. Roberts, 999 S.W.2d 424, 439 (Tex. App.-El Paso 1999, no pet.).

4. This medication is also known as a "clot buster."

5. Dr. Williamson orally moved for a directed verdict on the issue of negligence. He argued there was no expert testimony establishing negligence. The trial court stated its finding that Dr. Williamson was not negligent. A motion for directed verdict may be in writing or may be made orally. See Dillard v. Broyles, 633 S.W.2d 636, 645 (Tex. App.-Corpus Christi 1982, writ ref'd n.r.e.).

6. See City of Keller v. Wilson, 168 S.W.3d 802, 823-27 (Tex. 2005) (stating that the test for legal sufficiency should be the same for summary judgments, directed verdicts, judgments notwithstanding the verdict, and appellate no-evidence review)
.

7.
See City of Keller, 168 S.W.3d at 827.

8. See Nichols v. Nichols, 727 S.W.2d 303, 306 (Tex. App.-Beaumont 1987, writ ref'd n.r.e.).

9.
Bostrum Seating, Inc. v. Crane Carrier Co., 140 S.W.3d 681, 684 (Tex. 2004); Szczepanik v. First S. Trust Co., 883 S.W.2d 648, 649 (Tex. 1994).

10. Kingston v. Helm, 82 S.W.3d 755, 758 (Tex. App.-Corpus Christi 2002, pet. denied); Villarreal v. Art Inst. of Houston, Inc., 20 S.W.3d 792, 796 (Tex. App.-Corpus Christi 2000, no pet.).

11.
Vance v. My Apt. Steak House, Inc., 677 S.W.2d 480, 483 (Tex. 1984).

12.
See Szczepanik, 883 S.W.2d at 649; White v. Southwestern Bell Tel. Co., 651 S.W.2d 260, 262 (Tex. 1983).

13. See Latham v. Castillo, 972 S.W.2d 66, 68 (Tex. 1998).

14. Reyna v. First Nat'l Bank, 55 S.W.3d 58, 69 (Tex. App.-Corpus Christi 2001, no pet.); Villarreal, 20 S.W.3d at 796.

15. In 2003, the legislature repealed the Medical Liability and Insurance Improvement Act ("Article 4590i") and codified it in chapter 74 of the civil practice and remedies code. See Acts 2003, 78th Leg., ch. 204, § 10.01, eff. Sept.1, 2003 (now Tex. Civ. Prac. & Rem. Code Ann. §§ 74.001-74.507 (Vernon 2005 & Supp. 2006). Chapter 74 governs cases filed on or after September 1, 2003; Article 4590i continues to govern cases filed before that date. The present suit was filed before September 1, 2003 and is therefore governed by Article 4590i.

16. Smith v. Mossbacker. 94 S.W.3d 292, 294 (Tex. App.-Corpus Christi 2002, no pet.) (quoting Day v. Harkins & Munoz, 961 S.W.2d 278, 280 (Tex. App.-Houston [1st Dist.] 1997, no pet.)).

17. Blan v. Ali, 7 S.W.3d 741, 744 (Tex. App.-Houston [14th Dist.] 1999, no pet.).

18. Jones v. Miller, 966 S.W.2d 851, 854 (Tex. App.-Houston [1st Dist.] 1998, no pet.).

19. Id.

20. Am. Transitional Care Ctrs. of Tex., Inc. v. Palacios, 46 S.W.3d 873, 876 (Tex. 2001); Blan, 7 S.W.3d at 744; Armbruster v. Mem'l Southwest Hosp., 857 S.W.2d 938, 941 (Tex. App.-Houston [1st Dist.] 1993, no writ).

21. Armbruster, 857 S.W.2d at 941.

22.
Id.; Nicholson v. Naficy, 747 S.W.2d 3, 4-5 (Tex. App.-Houston [1st Dist.] 1987, no writ).

23. Chambers v. Conaway, 883 S.W.2d 156, 158 (Tex. 1993).

24. Id.

25. In arguing to the trial court in favor of the motion for instructed verdict, Dr. Williamson's counsel stated, "At this point, we're just submitting our Motion for Instructed Verdict based on the first issue, which would be negligence-- I've actually got an alternate, but the first element of a cause of action in medical malpractice, which is negligence. We're not arguing causation, but we also have a motion on that."

26.
Prior to ordering TPA, Dr. Williamson consulted with a cardiologist. It is undisputed that TPA was administered at 2:25 p.m.

27.
See Reyna, 55 S.W.3d at 69; Villarreal, 20 S.W.3d at 796.

28.
See Bostrum Seating, Inc., 140 S.W.3d at 684.

29.
See Tex. R. Evid. 702. Rule 702 provides:


If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify thereto in the form of an opinion or otherwise.


Id.

30. At the hearing on the motion to exclude Dr. Janss's testimony, Dr. Williamson's counsel stated that, "[w]e are not arguing that Doctor Janss isn't qualified as an expert witness to give medical expert opinions. But the problem is, he's got to base those opinions on the correct legal standard, which was never done."

31. United Blood Servs. v. Longoria, 938 S.W.2d 29, 30 (Tex. 1997).

32. Id. (citing
E.I. Du Pont de Nemours and Co. v. Robinson, 923 S.W.2d 549, 558 (Tex. 1995)).

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After 19 years, man wakes to changed Poland

Man who went into coma under communism finds ‘world is prettier now’

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Updated: 7:46 p.m. CT June 4, 2007

WARSAW, Poland - A railway worker who emerged from a 19-year coma woke to a radically altered Poland and thinks "the world is prettier now" than it was under communism, his wife said Sunday.

Gertruda Grzebska, 63, said that for years she fed her husband Jan carefully with a spoon and moved his body to prevent bed sores.

"For 19 years he did not move or say anything," Grzebska told The Associated Press by phone. "He tried to say things, but it couldn't be understood. Sometimes we pretended we understood."

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"Now he spends his days sitting in a wheelchair, and last weekend we took him out for a walk in his wheelchair," she said.

"He was so amazed to see the colorful streets, the goods," she said. "He says the world is prettier now" than it was 19 years ago, when Poland was still under communist rule.

"I could not talk or do anything, now it's much better," Jan Grzebski, 65, told TVN24 Television in a weak but clear voice, lying in bed at his home in the northern city of Dzialdowo.

"I wake up at 7 a.m., and I watch TV," he said, smiling slightly.

Wojciech Pstragowski, a rehabilitation specialist, said Grzebski was shocked at the changes in Poland — especially its stores: "He remembered shelves filled with mustard and vinegar only" under communism. Poland shed communism in 1989 and has developed democracy and a market economy.

‘This is my great reward’
Despite doctors' predictions that he would not live, his wife never gave up hope and took care of him at home.

"I would fly into a rage every time someone would say that people like him should be euthanized, so they don't suffer," she told local daily Gazeta Dzialdowska. "I believed Janek would recover," she said, using an affectionate version of his name.

"This is my great reward for all the care, faith and love," she told the AP, weeping.

"He remembers everything that was going on around him," she said. "He talks about it and remembers the weddings of our children. He had fever around the time of the weddings, so he knew something big was taking place."

Head injuries plus cancer
In 1988, when Poland was still run by a communist government, Grzebski fell into a coma after sustaining head injuries as he was attaching two train carriages. Doctors also found cancer in his brain and said he would not live. Grzebski's wife took him home.

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Last October he fell sick with pneumonia and had to be hospitalized again, Grzebska said.

Doctors' efforts led to the first signs of recovery.

"He began to move and his speech was becoming clearer, although I was the only one to understand him," she said.

Intensive rehabilitation brought more effects.

"At the start, his speech was very unclear, now it is improving daily," said Pstragowski, who predicted his patient would soon walk. "I am sure that without the dedication of his wife, the patient would not have reached us in the (good) shape that he did."

© 2007 The Associated Press. All rights reserved. This material may not be published, broadcast, rewritten or redistributed.

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