Schwartz, Keira A. v. Donald Hund, D.C. and Spring Branch Chiropractic

• Court: Court of Appeals of Texas
• Decided: October 14, 2003
• Docket: 14-02-01285-CV
• Status: Published

Opinion

Affirmed and Memorandum Opinion filed October 14, 2003

Affirmed and Memorandum Opinion filed October 14, 2003.

In The

Fourteenth Court of Appeals

_______________

NO. 14-02-01285-CV

KEIRA A. SCHWARTZ, Appellant

V.

DONALD HUND, D.C. AND SPRING BRANCH CHIROPRACTIC, Appellees

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On Appeal from the 55th District Court

Harris County, Texas

Trial Court Cause No. 01-08806

M E M O R A N D U M   O P I N I O N

            Appellant Keira Schwartz appeals a judgment in favor of appellees Donald Hund and his chiropractic clinic.  In three issues, Schwartz contends that the trial court erred in excluding certain testimony from her family physician because (1) the testimony was an exception to the “same school rule”; (2) her physician was qualified to testify about Dr. Hund’s chiropractic treatment; and (3) factual weaknesses in her physician’s testimony went to weight and credibility, rather than admissibility.  We affirm.

            After a car accident, Schwartz sought treatment for headaches, neck pain, and shoulder pain from Dr. Donald Hund, a chiropractor.  After four months of treatment, and after a specific manipulation of her spine, Schwartz’s lower back began to hurt.  She sought follow-up treatment from her family physician, Dr. Lynn Gibbs.  Ultimately, an MRI revealed disc protrusions in Schwartz’s lower back.  Her theory at trial was that Dr. Hund caused the disc protrusions through his chiropractic manipulations.  Ultimately, the jury assigned no negligence to Dr. Hund.

            We first address whether Schwartz preserved error.  Before trial, the court granted a motion in limine regarding Dr. Gibbs’s testimony on causation and breach of the standard of care as follows: “I’m going to grant the motion right now.  Let’s hear what Dr. Gibbs’s testimony is and I’ll take it up when we hear his testimony.”  A ruling in limine merely precludes reference to the subject of the motion unless the party first obtains a ruling on admissibility outside the presence of the jury.  Owens-Corning Fiberglas Corp. v. Malone, 916 S.W.2d 551, 557 (Tex. App.—Houston [1st Dist.] 1996), aff’d, 972 S.W.2d 35 (Tex. 1998).  At trial, Schwartz did not revisit the issue as contemplated in the trial court’s ruling in limine.  Although Schwartz made an offer of proof, there was never an oral or written ruling excluding Dr. Gibbs’s testimony.  See Perez v. Lopez, 74 S.W.3d 60, 66 (Tex. App.—El Paso 2002, no pet.); Richards v. Comm’n for Lawyer Discipline, 35 S.W.3d 243, 252 (Tex. App.—Houston [14th Dist.] 2000, no pet.) (before a bill of exceptions is required, there must be an offer during the evidentiary portion of trial and an adverse ruling).  A ruling on a motion in limine does not exclude evidence, Gutierrez v. Gutierrez, 86 S.W.3d 729, 733 n.8 (Tex. App.—El Paso 2002, no pet.), nor does it preserve error for appeal.  Hiroms v. Scheffey, 76 S.W.3d 486, 489 (Tex. App.—Houston [14th Dist.] 2002, no pet.).

            Because there is no ruling in the record excluding Dr. Gibbs’s testimony, we overrule Schwartz’s three issues.  Accordingly, the trial court’s judgment is affirmed.

                                                                        /s/        Charles W. Seymore

                                                                                    Justice

Judgment rendered and Memorandum Opinion filed October 14, 2003.

Panel consists of Chief Justice Brister and Justices Anderson and Seymore.