Texas Workers' Compensation Commission v. Wausau Underwriters Insurance

FRANK C. PRICE, Justice (Assigned),

dissenting.

The majority, in its effort to affirm the trial court’s judgment, has taken a situation where there absolutely is no evidence of suicide and created some by declaring the medical examiner clairvoyant. Dr. Vladimir Parungao, a forensic pathologist *63 and member of the Harris County Medical Examiner’s staff, with no education, training, or experience in psychiatry, psychology, or any other mental health related discipline, was elevated, by the majority, to the status of psychic so that he could testify what was in the mind of the decedent at the time he met his death. Not only was he permitted, over objection, to testify that the decedent voluntarily jumped to his death, but his notation, “suicide — jumped from height,” typed onto the death certificate likewise was admitted before the jury.

Prior to trial, the trial court, realizing a suicide opinion requires specialized knowledge, conducted a hearing pursuant to the requirements set out in the Daubert and Robinson line of cases to determine the admissibility of Parungao’s expert opinion about the manner of death. Daubert v. Metrell Dow Pharmaceuticals, Inc., 509 U.S. 579 , 113 S.Ct. 2786 , 125 L.Ed.2d 469 (1993); E.I. du Pont deNemours and Co., Inc. v. Robinson, 923 S.W.2d 549 (Tex.1995). When the subject of an expert’s testimony must be based on scientific knowledge, the trial court is required to make inquiry as to whether the testimony’s underlying reasoning or methodology is scientifically valid and properly can be applied to the facts at issue. Tex.R. Evid. 104(a); Daubert, 509 U.S. at 580 , 113 S.Ct. 2786 . The trial court ruled that, because Parungao had no training, education or experience in the mental health field, he had no knowledge that was grounded in the methods and procedures of science. Therefoz’e, any expert opinion, regarding suicide, would be nothing more than unsupported speculation, thus, inadmissible.

Subsequently, the trial court allowed the testimony, not because it changed its decision as to the testimony’s admissibility, but as punishment for a perceived violation of the court’s order prohibiting all such testimony. TWCC and Kaus were accused of offering restricted testimony through Dr. Conway that was first offered by Wausau; thus, TWCC and Kaus erroneously suffered the sanction. Clearly, as the majority points out, the trial court erred by allowing Parungao’s opinion of suicide as a sanction against TWCC and Kaus when Wausau was the real culprit.

From this point, the majority takes a simple case and makes it very complex by explaining why Parungao’s testimony was admissible, regardless of the trial court’s initial decision to exclude it. After the Daubert hearing, the trial court, based on Parungao’s lack of qualifications, disallowed his opinion as to suicide. This ruling was subject to review from an abuse of discretion standpoint, but it has never been challenged by either party; therefore, it must stand. See Robinson, 923 S.W.2d at 558 .

The issue before this Court is whether the trial court erred by admitting the prohibited evidence, over objection, as a sanction against TWCC and Kaus, thereby causing the rendition of an improper verdict. Obviously, it was error to admit the evidence. The character of inadmissible evidence does not change merely because the trial court allowed it into evidence as punishment for violating a court order. This was an inappropi’iate sanction that allowed the jury to consider inadmissible evidence.

Likewise, it caused the rendition of an improper verdict. Expert witnesses have an extremely prejudicial impact on a jury, in part because the jury perceives them as an unbridled authority figure, entitling them to more credibility than others. Additionally, in the present case, as will be discussed below, outside of Parungao’s testimony, there is no evidence to establish suicide.

*64 Because of the lack of evidence to establish suicide, to affirm, the majority must hold that Parungao’s opinion of suicide was proper to be placed before the jury, not as a sanction, but as admissible testimony. In order to accomplish this, the majority must, sua sponte, hold that the trial court abused its discretion when it held Parun-gao’s suicide opinion was not admissible. In light of the majority’s opinion, I will examine the evidence and the rationale used to affirm the trial court’s judgment.

The record reflects, and Parungao admitted, that nothing during his autopsy to determine cause of death indicated the manner of death as suicide. Parungao stated his conclusion of suicide was based on investigative reports generated by law enforcement officers and his office staff.

The investigating officers testified, consistent with their reports, that the scene survey revealed there was no evidence to indicate homicide, suicide, or accident. If any such evidence ever existed, it would have been washed away by the heavy rains that drenched the area before the body was discovered. Because of lack of evidence, the officers also were unsure of where on the building the decedent might have gone over the side, if in fact, he did. In fact, one officer testified his conclusion of suicide was based on Parungao’s opinion which was subsequently typed onto the death certificate. I wonder whose report and opinion influenced whom?

In an effort to support a suicide conclusion, Wausau offered testimony from fellow employees and the decedent’s widow. One co-worker testified that the decedent had lost his interest in a class-action law suit and was concerned about his financial situation. Other testimony revealed that the decedent preferred working on weekends because his relationship with his wife was not the happiest. This was a preference that he had followed for several years. Nothing about either one of these situations should suggest suicidal tendencies. Very few people have not experienced similar emotions.

According to one witness, the decedent’s wife told him that the decedent had been depressed for years and threatened suicide on previous occasions, the last time was over a year before his death. The decedent’s wife denied these comments were made. Nonetheless, nothing about these comments, if made, should suggest present day tendencies. In fact, the decedent’s actions that day were described as those of a well-adjusted person who entered work well-dressed, well-groomed, happy, in good spirits, joking with fellow employees, and making coffee as usual before going about his daily duties in a normal fashion.

Wausau called Dr. Conway, the decedent’s personal physician, to the stand. He testified, pursuant to questions by Wausau, that it was unlikely that the decedent committed suicide. He based this opinion on his long-term relationship, both professional and personal, with the decedent. Dr. Conway’s opinion was reaffirmed during cross-examination by TWCC and Kaus. This was the act for which TWCC and Kaus were sanctioned.

In addition to Dr. Conway’s testimony disproving suicide, the evidence consistent with a homicide revealed that decedent’s watch and billfold were missing and never found. A “brush burn” wound was discovered on the back of decedent’s head.

The evidence described above comprises all of the information compiled into the investigative reports. It would be highly speculative for anyone, with or without special training, to conclude that the decedent met his death as a result of homicide, accident, or suicide. Certainly, Parungao has no special powers that entitle him to such a conclusion.

*65 Because Parungao puts so much emphasis on the substantive information in the investigative reports as a basis for his expert opinion of suicide, the trial court must have considered these same reports in arriving at its holding that Parungao was not qualified to render a suicide opinion. If it did not consider the reports, then the trial court’s judgment was based solely on Parungao’s curriculum vitae and his testimony claiming other qualifications, which are grossly lacking in the mental health area and no kind of investigative report would make up for that deficiency.

Obviously, the majority cares nothing about the quality of the information Parun-gao considered in arriving at his conclusion, only that he claimed to have read some investigative reports. Other than the evidence discussed above, if there was any other evidence consistent with suicide, Wausau would have offered it, because what was presented would never pass muster on a sufficiency challenge.

To support its conclusion that Parun-gao’s opinion was admissible from its inception, the majority relies on Rules of Evidence 702, 703, 704 and 705, which it points out, were codified in 1983. It claims these rules, regardless of the trial court’s ruling, allow Parungao’s opinion. What the majority misunderstands is that these rules only define the appropriate limits on the admissibility of purportedly scientific evidence. They are not used to determine who qualifies as an expert to be able to give such opinion testimony. This determination is reserved for the trial court, with the standard of review being abuse of discretion. That is why the Daubert and Robinson line of cases were decided years after the rules were codified — to assist the courts to more accurately identify qualified experts. The majority, in effect, has overruled this whole line of cases.

For these same reasons stated above, Parungao’s opinion “suicide — jumped from height” typed onto the death certificate was not admissible. I have no problem with the majority’s analysis of the admissibility of the death certificate, just that Parungao’s opinion should have been redacted.

There is no question that the trial court committed reversible error by admitting the opinion testimony and evidence that suicide was the manner of death. With no other evidence available, Parungao’s testimony was all the jury had on which to base a verdict. The verdict obviously was improper.

I do not offer this as a vigorous dissent, but only as an exercise in common sense and logic to try to convince the majority of the error in its ways. If this does not work, my next effort will be to seek out Dr. Parungao for a list of the next set of lotto numbers.