Kimberly Wilson v. Ihsan Shanti, M.D. and Shanti Pain and Wellness Clinic, P.A.

Opinion issued January 6, 2011

In The

Court of Appeals

For The

First District of Texas

NO. 01-09-00707-CV

KIMBERLY WILSON, Appellant

V.

IHSAN

SHANTI, M.D AND

SHANTI

PAIN AND WELLNESS CLINIC, P.A. ,

Appellees

On Appeal from the 215th District Court

Harris County, Texas

Trial Court Cause No. 2007-05068

O P

I N I O N

Kimberly

Wilson filed a medical malpractice action against Dr. Ihsan Shanti and the

Shanti Pain and Wellness Clinic, P.A. The

trial court excluded the testimony of Wilson’s expert and subsequently granted

summary judgment to Dr. Shanti. In five

issues, Wilson contends the trial court erred by (1) excluding her expert’s

testimony as unreliable; (2) granting summary judgment when she raised a

disputed fact issue; and (3) allowing her motion for new trial to be overruled

by operation of law. We affirm the

judgment of the trial court.

Background

Dr. Shanti treated Wilson for pain in

her lower back and left leg. Dr. Shanti

performed three sets of injections to treat her pain: (1) a facet joint

injection, (2) a median joint block, and (3) a radiofrequency thermal

coagulation procedure (RFTC). For each

type of injection, Wilson first received an injection on her right side and

then returned a few days later for an injection on her left side.

Even though the treatment was for her

left side, Wilson began to experience pain on her right side between the second

and third sets of injections. Her pain on

both sides intensified after the RFTC injections. Comparison of electromyogram (EMG) tests [1]

before and after treatment demonstrated nerve root damage not present before

Dr. Shanti’s injections. [2] Wilson filed suit against Dr. Shanti and his

clinic for damaging her nerve root through improper administration of the

injections. More specifically, Wilson

asserts the RFTC—the third set of injections designed to burn the nerve and

thereby alleviate pain—caused her nerve root damage and was conducted without

fluoroscopy. [3]

Wilson attached a report by Dr. Mark

Barhorst to her original petition and designated him as her only expert. Dr. Barhorst’s report stated that he

interviewed Wilson, performed a physical exam, and reviewed her medical records. In Dr. Barhorst’s opinion, Dr. Shanti’s

treatment fell below the standard of care, and the third set of injections

caused increased pain to Wilson’s left side and introduced pain to her right

side. His report stated that Wilson

“distinctly recall[ed] right leg pain beginning as a symptom immediately

following [the third set of injections].”

Dr.

Barhorst gave a deposition in which he confirmed that his report was complete

and accurate. He testified that his

causation opinion was based, in large part, on Wilson telling him her pain

started after the third set of injections.

He also stated that his opinion would “not necessarily” be wrong if

Wilson’s pain had started before the third set of injections. He offered no explanation during the

deposition, however, for how he could reach the same conclusion if this

significant factual basis for his opinion changed. At her deposition, Wilson testified that her right-side

pain started between the second and third sets of injections and intensified

after the third. Thus, her testimony

contradicted Dr. Barhorst’s testimony concerning the commencement of her pain.

Dr.

Shanti filed a motion to exclude Dr. Barhorst’s causation opinion as unreliable. He invoked the well-established Robinson factors for examining the

methodology used by the expert [4]

and the Gammill requirement that the

expert link his conclusions to the data or facts. [5] He relied on the Havner requirement that the expert cannot base his opinion on

unreliable data. [6] More specifically, he asserted Dr. Barhorst’s

opinion was based on an erroneous understanding that Wilson’s right-side pain

started after the third set of injections.

In response, Dr. Barhorst prepared a

supplemental report that purported to correct the inconsistency between the

facts he had stated as the basis for his opinion and the facts as related by

Wilson in her deposition. In his

supplemental report, Dr. Barhorst acknowledged Wilson’s deposition testimony

and asserted he based his original report and deposition testimony on an

inaccurate memory of his conversation with Wilson. A review of his notes refreshed his

recollection that her right-side pain began after the second set of injections,

i.e. the medial block. Dr. Barhorst stated

that these revised facts did not alter his conclusion, but he did not explain

why. He stated that the second set of

injections may have been a proximate cause of her right-side pain, but the

third set of injections constituted “the most proximate cause” of her

nerve damage.

After a hearing, the trial court

granted the motion and excluded testimony by Dr. Barhorst relating to Wilson’s

right-side pain. Dr. Shanti then filed a

motion for summary judgment. He attached

a letter signed by the attorneys for both parties agreeing that no additional

experts or opinions should be considered and that Wilson would replead to limit

her damages to the right-side leg pain. Dr

Shanti also attached deposition testimony from Dr. Stephen Esses, one of

Wilson’s former treating physicians, who testified he saw no reason to believe

the injections caused Wilson’s injury. Instead,

Dr. Esses identified the cause of Wilson’s pain as a progressive narrowing of

the canal where the nerves exit her spine.

In her response, Wilson filed a motion to reconsider the motion to

exclude Dr. Barhorst’s testimony and admitted that she had no evidence on causation

without his opinion. The trial court

granted summary judgment.

Wilson

timely filed a motion for new trial which was overruled by operation of

law.

Reliability of Expert Testimony

Wilson contends the trial court

abused its discretion by granting Dr. Shanti’s motion to exclude Dr. Barhorst’s

testimony on the cause of her right-leg pain.

I. Standard of Review

We

review a trial court’s ruling on the reliability of expert testimony for an

abuse of discretion. [7] Under this standard, the trial court has

broad discretion in deciding whether to admit or exclude expert testimony. [8] We

will uphold a trial court’s evidentiary ruling excluding expert testimony if a

legitimate basis for the ruling exists. [9] We reverse only if the trial court

acted arbitrarily, unreasonably, or without reference to any guiding rules or

principles. [10] An abuse of discretion is not demonstrated by

a mere error in judgment. [11] Neither will an appellate court reverse the

trial court’s conclusion even if it would have held differently. [12] In an abuse of discretion review, “[c]lose

calls must go to the trial court.” [13] Thus, trial courts are given wide latitude in

their rulings on the reliability of expert testimony. [14]

II. Expert

Reliability

To be admissible,

an expert must be qualified and the testimony must be relevant and reliable. [15] T he challenge to the expert in this

case concerns the reliability of his opinions.

A court cannot simply accept expert testimony at face-value because

unreliable expert testimony constitutes no evidence. [16] The

trial court should “undertake a rigorous

examination” of the three components of the reliability inquiry [17] —namely,

the expert’s methodology, foundational data, and whether too great an

analytical gap exists as the expert connects the foundational data or

methodology with the opinion. [18] Each material part of an expert’s theory must

be reliable. [19] Stated differently, “the expert’s testimony

must be reliable at each and every step or else it is inadmissible.” [20]

There are limits to the

trial court’s rigorous examination.

Courts may not second-guess the correctness of the expert’s conclusions;

they are only to examine whether the analysis used to reach those conclusions

is reliable. [21] A court’s gate-keeping analysis is also not a

substitute for cross-examination. [22] A

court is not permitted to determine reliability based on the weight of the

evidence or the credibility of the witnesses. [23]

Upon

objection, the proponent of the expert opinion must prove the reliability of

each opinion by a preponderance of the evidence. [24] The proponent bears this burden “regardless

of the quality or quantity of the opposing party’s evidence on the issue and

regardless of whether the opposing party attempts to conclusively prove the

expert testimony is wrong.” [25] Part of the burden of proof is ensuring that

the expert’s testimony contains no internal inconsistencies. [26]

III. Dr. Barhorst’s

Reliability

We will uphold

the trial court’s exclusion of Dr. Barhorst’s testimony if a legitimate basis

for the ruling existed. [27] Dr. Shanti’s motion to exclude challenged

whether the basis of Dr. Barhorst’s opinion was reliable given the conflict

between his original understanding of when Wilson’s pain commenced and Wilson’s

deposition testimony. Dr. Barhorst listed

the bases for his causation opinion as a patient interview, a review of Wilson’s medical records featuring EMG tests

showing nerve damage, and a lack of evidence of fluoroscopy. We

address each basis of Dr. Barhorst’s opinion in turn.

If an expert bases his opinion upon

unreliable foundational data, any opinion drawn from that data is unreliable

and no evidence. [28] Likewise, when an expert bases an opinion on

facts that vary materially from the actual facts, the opinion is unreliable and

no evidence. [29] Although Dr. Barhorst cites multiple bases, at his deposition he emphasized Wilson’s statements on the

timing of her right-leg pain as the foundation for his causation opinion. Dr. Barhorst opined that Dr. Shanti

injured Wilson’s nerve root during the third set of injections. He stated the basis of his opinion as follows:

On the fact that the patient presented with no right

leg radicular symptoms by report to me and the fact that Dr. Reuben, after Dr.

Shanti’s involvement, clearly documents bilateral radicular complaints and the

fact that she’d never had right leg pain until she was injured—or immediately

after the ablative [third] procedure on the right side.

Twice during his deposition, Dr.

Barhorst confirmed that, “a big part of the basis of [his] opinion that Dr.

Shanti injured her nerve root during the [third set of injections] is the fact

that [Wilson] told [him] she woke up and had right-sided leg pain after that

procedure.”

Wilson

characterizes Dr. Barhorst’s reliance on his recollection of her interview as a

mistake, but Dr. Barhorst repeatedly discussed the timing of her pain as a

primary basis for his opinion. His

supplemental report attempted to correct the inconsistency in the basis for his

causation opinion by calling the third set of injections the “ most

proximate cause” of Wilson’s injury. Dr.

Barhorst never stated, however, a basis for his conclusion that the third set

of injections was “the most proximate cause.”

Dr. Barhorst also never explained why his opinion was reliable even

though a “big part” of the data forming the basis for his opinion changed.

Wilson contends the trial court’s

exclusion of Dr. Barhorst’s causation opinion constitutes an improper credibility

determination. She cites LMC Complete Automotive, Inc. v. Burke

for the proposition that the credibility of patient history and the general

weakness of facts in support of an expert’s opinion go to the weight of the

expert’s opinion, not the admissibility. [30] In LMC ,

a treating-physician expert formed a causation opinion based on a myelogram

x-ray taken after the accident in question and the patient’s statement that his

pain started after the accident. Patient

history may be part of a reliable basis for a treating-physician’s causation

opinion. [31] But Dr. Barhorst failed to explain why his

causation opinion remained the same even when a substantial basis for his

opinion had changed. The reliability

inquiry here does not depend on Wilson’s credibility as to her medical history,

but on Dr. Barhorst’s failure to provide a reliable explanation for the basis

of his opinion.

Dr. Barhorst’s failure to explain why

this change in a “big part” of the basis of his opinion did not alter his

opinion demonstrates a legitimate basis for the trial court’s finding that his

opinion was unreliable. [32] Wilson had the burden to present evidence as

to why the third set of injections was “the most proximate cause” of her right

leg pain. Considering Dr. Barhorst’s

emphasis in his deposition on his understanding of Wilson’s medical history and

his failure to explain why the third set of injections constituted the most

proximate cause of her injury, the trial court was within its discretion to

find the foundation of Dr. Barhorst’s causation opinion unreliable. [33]

Dr. Barhorst also relied on the nerve damage shown

by comparing EMG tests. Nothing in the

record indicates an EMG was performed between the second and third set of

injections. Dr. Barhorst did not explain

why the EMGs isolated the third set of injections as “the most proximate cause”

of Wilson’s nerve damage rather than the first or second sets of injections or

a degenerative condition. Thus, Dr.

Barhorst failed to link the data from the EMG to his causation opinion and his

bald assurances are not enough. [34] The trial court was within its discretion to

find Dr. Barhorst’s reliance on the EMGs lacked the explanation and specificity

to make it a reliable basis for his causation opinion.

In

his supplemental report, Dr. Barhorst asserted that Dr. Shanti performed the

third set of injections without fluoroscopy and that this conduct constituted

gross negligence. Wilson raised the

fluoroscopy issue before the trial court in terms of standard of care, not

causation. Dr. Barhorst did not link

this standard of care opinion to his causation conclusion that the third set of

injections caused Wilson’s right leg pain.

Wilson, therefore, cannot claim on appeal that the lack of fluoroscopy

provided a basis for Dr. Barhorst’s causation opinion. [35]

After

considering the foundational data in support of Dr. Barhorst’s causation

opinion, we cannot say the trial court’s ruling was arbitrary, unreasonable, or

made without reference to guiding rules or legal principles. Therefore, the trial court did not abuse its

discretion by excluding Dr. Barhorst’s testimony with regard to the cause of

Wilson’s right-side pain.

We

overrule Wilson’s first and second issues.

Summary Judgment Without

Causation

Dr. Shanti filed traditional and

no-evidence motions for summary judgment after the trial court excluded Dr.

Barhorst’s testimony. A trial court must

grant a traditional motion for summary judgment if there is no genuine issue as

to any material fact and the moving party is entitled to judgment as a matter

of law on the issues expressly set out in the motion. [36] A court must grant a no-evidence motion for

summary judgment if: (1) the moving party asserts that there is no evidence of

one or more specified elements of a claim or defense on which the adverse party

would have the burden of proof at trial; and (2) the respondent produces no

summary judgment evidence raising a genuine issue of material fact on those

elements. [37]

We

found no error in the exclusion of Dr. Barhorst’s testimony as to the cause of

Wilson’s right-side pain. In a medical

malpractice cause of action, breach of the standard of care and proximate cause

must be established through expert testimony. [38] In her summary

judgment response, Wilson admitted she had no evidence to rebut Dr. Shanti’s

motion following the exclusion of her expert witness. She also asserted at the exclusion hearing

that she had no case without her expert.

Wilson has no expert testimony on causation and therefore no evidence of

an element to which she bears the burden of proof at trial.

Nevertheless,

Wilson contends the testimony of Dr. Shanti’s own expert, Dr. Esses, raised a

fact issue as to causation. Wilson did

not raise this ground for defeating summary judgment in the trial court. A ground for defeating a summary judgment

motion cannot be raised for the first time on appeal. [39] Accordingly, we will not consider whether Dr.

Esses’s testimony raises a fact issue.

We

overrule Wilson’s third and fourth issues.

Motion for New Trial

In

her fifth issue, Wilson contends the trial court erred by overruling her motion

for new trial. Although Wilson complains

of this alleged error in her issues presented and summary of the arguments, she

asserts no case law or arguments in support of her contention. Consequently, Wilson failed to brief this

issue adequately and error, if any, on this ground is waived. [40]

Conclusion

We

hold the trial court did not abuse its discretion in excluding Dr. Barhorst’s

testimony or err in granting summary judgment.

We therefore affirm the judgment of the trial court.

Harvey

Brown Justice

Panel consists of Chief Justice Radack, Justice Massengale,

and Justice Brown .

[1] An EMG

test reveals nerve damage through nerve responsiveness.

[2] The

expert reports in this case indicate the initial EMG was performed before Dr.

Shanti’s second procedure and may have been performed before all of Dr.

Shanti’s treatments.

[3] Fluoroscopy

is an imaging technique to ensure correct placement of the needle.

[4] See E.I. du Pont

de Nemours & Co. v. Robinson , 923

S.W.2d 549, 557 (Tex. 1995).

[5] See Gammill v.

Jack Williams Chevrolet, Inc. , 972 S.W.2d

713, 726 (Tex. 1998).

[6] See Merrell Dow

Pharm., Inc. v. Havner , 953 S.W.2d 706 ,

713–15 (Tex. 1997).

[7] Mack Trucks, Inc. v. Tamez , 206 S.W.3d

572, 578 (Tex. 2006); Robinson , 923

S.W.2d at 558 .

[8] Gammill , 972 S.W.2d at 719 .

[9] Weingarten Realty Investors v. Harris Cnty.

Appraisal Dist. , 93 S.W.3d 280 , 283 (Tex. App.—Houston [14th Dist.] 2002,

no pet.) (citing Owens-Corning Fiberglas

Corp. v. Malone , 972 S.W.2d 35, 43 (Tex. 1998)).

[10] Harris Cnty.

Appraisal Dist. v. Hartman Reit Operating P’ship , 186 S.W.3d

155, 157 (Tex. App.—Houston [1st Dist.] 2006, no pet.).

[11] Id.

[12] Lincoln v. Clark Freight Lines, Inc. ,

285 S.W.3d 79, 84 (Tex. App.—Houston [1st Dist.] 2009, no pet.).

[13] Larson v. Downing , 197 S.W.3d 303, 304

(Tex. 2006) (per curiam).

[14] Hartman Reit Operating , 186 S.W.3d at

157, 162 .

[15] TXI Transp. Co. v.

Hughes , 306 S.W.3d 230, 234 (Tex.

2010).

[16] Exxon Corp. v. Makofski , 116 S.W.3d 176,

180 (Tex. App.—Houston [14th Dist.] 2003, pet. denied).

[17] Mack

Trucks , 206 S.W.3d at

579 .

[18] See TXI Transp. , 306 S.W.3d at 239 (discussing

first and third inquiry); Whirlpool Corp. v. Camacho , 298 S.W.3d 631, 637, 642 (Tex. 2009)

(noting that courts are to examine reliability of underlying data, methodology

or principles, and application to reach conclusions and that expert must connect

data relied to opinion and show how that data is valid support for opinion); Ford Motor Co. v Ledesma , 242 S.W.3d 32,

39 (Tex. 2007) (stating that expert testimony is unreliable if “it is based on

unreliable data or the expert draws conclusions from his underlying data ‘based

on flawed methodology’ or there is simply too great an analytical gap between

the data and the opinion offered”); Mack

Trucks , 206 S.W.3d at 579 (describing three-part reliability inquiry) ; see also Havner ,

953 S.W.2d at 713–15 (referring to three parts of reliability inquiry).

[19] Whirlpool , 298 S.W.3d at 637 .

[20] Knight v. Kirby Inland Marine, Inc. , 482 F.3d 347,

355 (5th Cir. 2007) .

[21] TXI Transp. , 306 S.W.3d at 239 .

[22] See Gammill , 972 S.W.2d at 728 .

[23] LMC

Complete Auto., Inc. v. Burke , 229 S.W.3d 469 , 478–79 (Tex. App.—Houston

[1st Dist.] 2007, pet. denied) (finding weakness of facts in support of

expert’s opinion and credibility of patient history go to weight and not

admissibility); N. Dallas Diagnostic Ctr. v. Dewberry , 900 S.W.2d 90, 95

(Tex. App.—Dallas 1995, writ denied) (holding only the jury should determine

credibility and weight to be attached to expert’s testimony).

[24] Mack Trucks , 206 S.W.3d at 578 ; Guadalupe-Blanco River Auth. v. Kraft ,

77

S.W.3d 805, 807 (Tex. 2002); see

Robinson , 923 S.W.2d at 549, 559 .

[25] Whirlpool , 298 S.W.3d at 639 .

[26] See Gen. Motors Corp. v. Iracheta , 161

S.W.3d 462 , 470–72 (Tex. 2005).

[27] See Weingarten Realty Investors , 93

S.W.3d at 283.

[28] Havner , 953 S.W.2d at 714 .

[29] Burroughs Wellcome Co. v. Crye , 907

S.W.2d 497, 499 (Tex. 1995).

[30] LMC Complete Auto. , 229 S.W.3d at

478–79.

[31] Id. at 479.

[32] See Mack Trucks , 206 S.W.3d at 578 ; Guadalupe-Blanco

River Auth. , 77 S.W.3d at 806 .

[33] Havner , 953 S.W.2d at 714 .

[34] Id. at 712 .

[35] See Tex.

R. App. P. 33.1( a)(1); see also

Regan v. Schlumberger Tech. Corp. , No. 01-00-00026-CV, 2001 WL 1344077 , at

*1-2 (Tex. App.—Houston [1st Dist.] Nov. 1, 2001, pet. denied.) (noting

appellant waives grounds on appeal challenging trial court’s exclusion of expert

testimony when those grounds were not raised at trial court).

[36] See

Tex. R. Civ. P. 166a(c); Lockett v. HB Zachry Co. , 285 S.W.3d 63,

67 (Tex. App.—Houston [1st Dist.] 2009, no pet.).

[37] See

Tex. R. Civ. P. 166a(i); Lockett , 285 S.W.3d at 67 .

[38] Ocomen v. Rubio , 24 S.W.3d 461, 466

(Tex. App.—Houston [1st Dist.] 2000, no pet.).

[39] See Tex.

R. Civ. P. 166 a(c) (“Issues not expressly presented to the trial court

by written motion, answer or other response shall not be considered on appeal

as grounds for reversal.”); see also Via Net

v. TIG Ins. Co. , 211 S.W.3d 310, 313 (Tex. 2006).

[40] See Tex.

R. App. P. 38.1; see also Stephens

v. Dolcefino , 126 S.W.3d 120, 129 (Tex. App.—Houston [1st Dist.] 2003), pet. denied , 181 S.W.3d 741 (Tex.

2005).