Prezelski v. Christiansen

775 S.W.2d 764, 1989 Tex. App. LEXIS 2421, 1989 WL 107257

• Court: Court of Appeals of Texas
• Decided: July 26, 1989
• Docket: 04-88-00089-CV
• Status: Published

Opinions

OPINION

CHAPA, Justice.

Appellants Gloria and Martin Prezelski sued appellee, Doctor Robert L. Christian-sen, alleging medical malpractice in relation to services rendered which culminated in oral maxiofacial surgery performed upon appellant, Gloria Prezelski. Appellants appeal from a judgment rendered in favor of appellee as a result of a jury verdict.

The dispositive issue is whether the actions of the trial judge require reversal under TEX.R.APP.P. 81(b)(1) because appellants were denied the right to fairly present their case. TEX.R.APP.P. 90(a). We reverse.

During the trial, appellee presented two medical experts on his behalf, Dr. Carl Schow of Galveston, Texas and Dr. Daniel Verne of Cleveland, Ohio. However, before terminating the examination of appellee, appellee’s counsel moved for permission to present appellee’s medical experts out of order. Although appellants agreed to the arrangement, they requested 30 minutes to cross-examine appellee prior to the out of order testimony. The court denied the request and over appellant’s objection,¹ permitted appellee’s medical experts to be presented out of order and to be excused.²

The record clearly reveals that all the medical experts agreed that cephalometric x-rays were critical to properly perform the surgery here involved. Appellee contended during his deposition and initial testimony at trial that he had taken cephalometric x-rays and that they were somehow lost. Appellee’s medical experts, who testified out of order, were also under the impression that the cephalometric x-rays had been correctly taken and viewed by appellee before the surgery. Appellee’s experts however, were prevented from examining the cephalometric x-rays because they were supposedly lost according to appellee’s original testimony. Therefore, since appel-lee’s experts considered the cephalometric x-rays critical, believed that appellee had indeed taken them, and were prevented from examining them, we can safely assume that they must have engaged in some presumptions favorable to appellee in order to conclude the subsequent surgery performed on Gloria Prezelski was proper.

Thereafter, after appellee’s medical experts had testified and had been excused, appellee changed his testimony and for the first time admitted he had indeed not taken cephalometric x-rays of the appellant at all. Thus, appellants insist they were deprived of their right to inquire of appellee’s medical experts how appellee’s late-changed critical testimony, affected their medical opinion regarding the medical services ap-pellee rendered to Gloria Prezelski. Appellants contend that this amounted to “such a denial of the rights of the appellants] as was reasonably calculated to cause and probably did cause rendition of an improper judgment in the case.” TEX.R.APP.P. 81(b)(1).³

During the trial, appellants clearly put the trial judge on notice by properly objecting prior to appellee’s medical experts being presented out of order and requesting 30 minutes cross examination of appellee “to clear up” something associated with the “proper” examination of appellee’s expert witnesses. Further, appellants reiterated their complaint after the trial in a proper and timely motion for a new trial, which was likewise denied.

We conclude that in this case, the actions of the trial judge in refusing to grant appellants 30 minutes cross-examination of appellee prior to permitting appellee’s medical experts to testify out of order, and in denying appellants’ motion for new trial, denied appellants the right to present their case fairly. Whether this denial requires reversal, however, depends on whether it was reasonably calculated to cause and probably caused rendition of an improper judgment in the case. TEX.R.APP.P. 81(b)(1).

All medical malpractice cases rest almost entirely upon the testimony of expert medical witnesses. Presumably, these medical experts are impartial, medically qualified experts who will provide a guide for a lay jury to make its findings. Thus, it is urgent in prosecuting and defending such cases to be able to discredit or impeach the opinions of opposing medical experts who are so heavily relied upon by a lay jury. However, this should be accomplished within the bounds of the rules of evidence and certainly the rulings of the court.

Appellants presented one medical witness, Dr. John Helfrick. Dr. Helfrick’s testimony was undermined considerably by the repeated efforts of appellee’s counsel to collaterally impeach him in violation of the court’s rulings. The trial court correctly sustained appellant’s repeated objections and instructed the jury and counsel accordingly. While these actions cannot form the basis for a valid point of error since the trial judge properly sustained the objection, instructed the jury, and never denied appellant any relief requested, they can be considered in the application of TEX.R.APP.P. 81(b)(1).

This court has previously addressed the harmless error issue in Nix v. H.R. Management Co., et al, 733 S.W.2d 573 (Tex.App.—San Antonio 1987, writ ref’d n.r.e.) stating:

The Supreme Court recognized the impossibility of prescribing a specific test for determining whether any error was reasonably calculated to cause and probably did cause the rendition of an improper judgment. [Lorusso v. Members Mutual Insurance Co., 603 S.W.2d 818 (Tex.1980).] With that in mind, the Court has given, on at least two occasions, an example which we think useful in the instant case. The Supreme Court has stated that in a case in which the complaining party failed to prove his cause of action of defense, an error could not be said to have resulted in a materially unfair trial. On the other hand, when the trial is contested and the evidence is sharply conflicting, the error results in a materially unfair trial without showing more. Lorusso, 603 S.W.2d at 821; Patterson Dental Co. v. Dunn, 592 S.W.2d 914, 921 (Tex.1979). While in those cases the Court was speaking of juror strikes, the Court made clear in Lorusso that it was speaking of all errors of law by the trial court. Lorusso, 603 S.W.2d at 821.

Nix, supra, at 576.⁴

In Lorusso v. Members Mut. Ins. Co., supra, the Supreme Court of Texas stated:

The language of the rule is clear and direct. The rule [⁵] recognizes that a litigant is not entitled to a perfect trial for, indeed, few trials are perfect. In recognition of this fact, the harmless error rule establishes a sound and common sense policy of not reversing a judgment unless the error or errors can be said to have contributed in a substantial way to bring about the adverse judgment, [citations omitted] The rule by its very terms applies to all errors in that it draws no distinction as to the type of errors involved in its requirement for reversal.

* * * * * *

.... [W]e expressly recognized the Tamburello⁶ requirement that the complaining party show that the trial which resulted in the judgment against him was “materially unfair.” In considering how this is met, we said:

[W]hether any such error resulted in a materially unfair trial, however, must be decided from an examination of the entire trial record. For example, in a case in which the complaining party failed to prove his cause of action or defense, an error in allocating or equalizing strikes could not be said to have resulted in a materially unfair trial. On the other hand, when the trial is contested and the evidence is sharply conflicting, the error results in a materially unfair trial without showing more....

Lorusso, supra at 819, 820, 821.

This case was vigorously contested, and involved sharply conflicting evidence. Further, the trial judge unwittingly prevented appellants from exercising their right to elicit the crucial late admission from the appellee prior to the out of order testimony of appellee’s experts. This prevented the appellants the opportunity to fairly question appellee’s medical experts equipped with appellees pertinent late admission which could have very well changed or at least weakened appellee’s medical experts’ opinions. Further, the court failed to correct the situation by granting a new trial.

Moreover, the only medical expert presented by the appellants was considerably weakened by repeated attempts at collateral impeachment in violation of the court rulings.

We therefore must conclude, that the foregoing errors resulted in a materially unfair trial which probably caused the rendition of an improper judgment in this case. TEX.R.APP.P. 81(b)(1).

The judgment is reversed and the cause is remanded for a new trial.

1 . The dissent would deny any relief to appellant because appellant did not make "an adequate and specific objection” and the court was "obviously enforcing some agreement of the parties. In so doing, the dissent ignores Tex.R.Civ.P. 11, requiring such agreements be in writing, which is not the case here. Without support from the record or transcript, the dissent engages in improper presumptions concluding that the so called verbal "agreement” was witnessed and endorsed by the court. The obvious disagreement as to what the "agreement" was is vivid in this record, and we find nothing from the court to indicate it had any personal knowledge as to what the agreement was. The need for Rule 11 is ironically illustrated here, where one party’s recollection of the agreement was different from the other.

Further, the dissent ignores the clear language of the record:

MS. RESER: Your Honor I had told plaintiff’s counsel I was bringing Dan Verne Monday morning and it was my understanding I would be able to take him out of turn. And would I like to proceed with him at this time.

MR. VICKERY: I have no objection to bringing Dr. Verne out of turn in the case. I told her the other day I do object to her doing it prior to finishing up with Dr. Christiansen.

The reason isn’t to be horsey. The reason is there is some things that I need to clear up based on the position that he has taken in court in order to properly examine Dr. Verne. And she had said before lunch she had 2 hours with him and she went the rest of the full afternoon. So she can’t possibly have much more with Dr. Christiansen. But I need to come back and clear up some things in my own mind in order to—

THE COURT: How long is your redirect with him?

MR. VICKERY: 30 minutes, (emphasis added)

After the parties argued further, each asserting their version of the agreement, the court allowed Dr. Verne to testify out of order without allowing the appellant to cross-examine ap-pellee for 30 minutes prior to Dr. Verne’s testimony. Appellant’s objection and the reason for it was sufficient to preserve error.

2 . The dissent suggests that the trial court purportedly had unbridled discretion to permit witnesses out of order under the authority of TEX. R.CIV.EVID. 611(a). However, the dissent ignores that the rule merely authorizes a reasonable control of the trial judge over the mode and order of interrogating witnesses. We think it an unreasonable control when the result prevents a party from exercising their right to present their case fairly. This case illustrates why a trial court must be very cautious before permitting experts, whose testimony is so dependent on the testimony of a party, to testify out of order prior to terminating the testimony of the party upon whose testimony their testimonies depend. This is especially true in face of an objection and request to be permitted “to clear up" something with the adverse party "to properly examine” the adverse party’s experts, as we find here. The trial judge here could not have known the appellee was going to change his testimony later, but the 30-minute cross examination of appellee requested by appellants prior to the out of order testimony of appellee’s experts was a reasonable request which should have been granted.

The dissent is also troubled that the majority opinion might have an adverse effect on fiiture discretionary decisions of trial judges. Certainly, one of the purposes of appellate opinions is to be instructive, especially to trial judges. Nevertheless, we perceive the issue before us as being more paramount; that is, whether, under these circumstances, the appellant received a fair trial.

3 . The dissent would deny appellant relief because a partial statement of facts was filed and appellants failed to comply with TEX.R.APP.P. 53(d) by not designating the point of error that would be relied upon at the time the partied statement of facts was requested. However, the dissent concedes that the statement of facts before this court consists of five volumes, plus final arguments, and all the medical testimony and rulings pertaining thereto. The dissent also recognizes that partial statement of facts are encouraged if there is no real need for the entire record.

While it may be true that the presumption in favor of appellant under TEX.R.APP.P. 53(d) may not be available because of a failure to comply statutorily with rule 53(d), the record before us is sufficient to review the complaints made.

It is largely uncontroverted and supported by this record 1) that prior to the out of order testimony of appellee’s two medical experts, ap-pellee contended and had so advised his medical experts that he had taken cephalometric x-rays of the appellant, 2) that appellants’ request for 30 minutes of cross-examination of appellee pri- or to the out of order examination of appellee’s medical expert witnesses was denied, 3) that over appellant’s objection, appellee’s medical expert witnesses were permitted to testify out of order and were excused, 4) that only after ap-pellee's expert witnesses had testified and had been excused, did appellee change his testimony and admit for the first time that he had not taken cephalometric x-rays of the appellant, 5) that whether appellee had in fact taken cephalo-metric x-rays was critical, 6) that appellants’ motion for new trial, grounded in the complaint before us, was denied, and 7) that appellants never had the opportunity to cross-examine ap-pellee expert witnesses ¿Eter appellee’s critical late admission. Most, if not all of these facts are unchallenged, which permits this court to accept them as correct. TEX.R.APP.P. 74(f).

Further, the record shows that appellee’s counsel repeatedly attempted to improperly collaterally impeach appellants’ lone medical expert witness in violation of repeated court rulings.

The dissent chastises the majority for supposedly erroneously speculating when concluding that the error was harmful in the absence of a complete statement of facts. However, at the same time, the dissent finds justification in engaging in its own speculation by assuming that the testimony of appellee’s experts would not have been affected had they been confronted by appellee's late critical admissions. This record and the unchallenged statements made by appellants in their brief sufficiently establish that appellants were materially deprived of the right to fairly present their case, and that under these circumstances they were entitled to a new trial, which was also denied.

4 . Although the dissent has concluded there wets no error here, it nevertheless finds it necessary to be critical of this court’s holding in Nix v. H.R. Management Co., 733 S.W.2d 573 (Tex.App.—San Antonio 1987, writ ref'd n.r.e.). Nix, supra, found support in Lorusso v. Members Mutual Insurance Co., 603 S.W.2d 818 (Tex.1980). The dissent contends that Lorusso, supra was misapplied by this court in Nix, supra and should not be applied in the case before us because the Lorusso decision only applies to cases which involve improperly allocated jury strikes. In so doing, Ae dissent ignores Ae language of Ae Texas Supreme Court:

The rule [harmless error] by its very terms applies to all errors in that it Aaws no distinction as to Ae type of errors involved in its requirement for reversal.

Lorusso, supra at 820.

We know of no auAority which sets one harmless error standard for improperly allocated jury strike errors and anoAer standard for oAer types of errors. Further, Ae Texas Supreme Court has declared Aat Ae same standard exists as to all types of errors. Lorusso, supra.

5 . Referring to Texas Rule of Civil Procedure 503, Ae predecessor of Texas Rule Appellate Procedure 184(b) which is Ae harmless error rule applicable to Ae Supreme Court. TEX.R. APP.P. 81(b)(1) is the harmless error rule applicable to the Courts of Appeals. BoA rules for all practical purposes apply Ae same standard.

6 . Tamburello v. Welch, 392 S.W.2d 114 (Tex.1965).