Subject: August 29, 2007August 29, 2007August 29, 2007
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Date: Mon, 17 Sep 2007 20:37:22 -0500

IN THE SUPREME COURT OF TEXAS

════════════

No. 05-1100

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Noemi Guevara,
Petitioner,

v.

Corazon Labao Ferrer, an heir
& assignee of Arturo Labao, Respondent

════════════════════════════════════════════════════

On Petition for Review from
the

Court of Appeals for the
Eighth District of Texas

════════════════════════════════════════════════════

Argued February 14, 2007

Justice Johnson delivered the opinion of the Court.

This case presents the question of
whether expert medical evidence is required to support a finding that an
automobile accident caused medical expenses of over $1 million. We conclude that
expert medical evidence is required to prove causation unless competent evidence
supports a finding that the conditions in question, the causal relationship
between the conditions and the accident, and the necessity of the particular
medical treatments for the conditions are within the common knowledge and
experience of laypersons. Because only lay evidence was offered to prove that
the accident caused all the medical expenses and expert evidence was required to
prove many of them, we reverse and remand to the court of appeals for further
proceedings.

I.
Background

On October 17, 2002, eighty-six-year-old Arturo Labao was a passenger in a car
being driven by his son-in-law, Pacifico Ferrer, when a car being driven by
Noemi Guevara turned in front of them. The cars collided, and both Pacifico1 and Arturo were injured and taken to a
hospital emergency room by ambulance.

After Arturo died in May 2003, suit was filed by Pacifico and Corazon Labao
Ferrer, Arturo’s daughter and Pacifico’s wife, as a result of the injuries
Pacifico and Arturo suffered in the accident. The only testimony at trial
regarding damages came from Pacifico2 and Corazon. Their testimony was to the
effect that Arturo had a seatbelt on at the time of the accident and that after
the accident Arturo was screaming, complaining about a stomachache and moaning.
Arturo was hospitalized. Corazon testified without objection that he underwent
abdominal surgery on the night of the accident, then had another surgery because
the first was not healing properly. No medical records from the hospitalization
were introduced and no medical testimony was introduced. Medical bills admitted
into evidence show that Arturo was in the hospital’s intensive care unit from
October 18, 2002 until January 2, 2003, then remained in the hospital for
another month. Following his discharge from the hospital in February 2003,
Arturo spent approximately two more weeks in a continuing care facility. The
only medical record introduced for the two-week admission was a note by a
consulting physician which listed Arturo’s chief complaint upon admission as
shortness of breath. The doctor’s “History of Present Illness” noted, among
other matters, the automobile wreck in which Arturo “sustained multiple
orthopedic injuries and has developed bacteremia and respiratory distress” and
that he had a tracheostomy on November 13, 2002. The note also reflected that
Arturo had a significant past medical history of “atrial fibrillation and
hypertension as well as acute and chronic renal failure” and significant past
surgical history for “ileal resection as well as cataract surgery.” No dates
were given as to the conditions noted in the history. On March 6, 2003, Arturo
was admitted to another medical center for two weeks. The only medical records
introduced for the March admission were the attending physician’s “History and
Physical” notes and a consultant’s report. Those two records reflected that
Arturo came to the emergency room because of “[c]ough and shortness of
breath.” He was having chills and low-grade fever and his condition was
worsening. His past medical history was noted as “complicated” and included a
“long history of hypertension and atrial fibrillation,” “known history of
hypertension, atherosclerotic heart disease, history of congestive heart
failure,” peripheral vascular disease, chronic venous insufficiency,
degenerative joint disease, and the auto accident in October 2002 and subsequent
medical treatment including an “exploratory laparotomy for internal bleed.” The
attending physician noted that, upon admission, Arturo was not having “any
significant complaints except for pain in his left knee which he developed about
two days ago. He has not been able to walk due to the pain.”

Medical bills which were introduced included bills for the hospital and both
care facility confinements and associated expenses for items such as drugs,
laboratory procedures, respiratory services, physical therapy, renal dialysis,
multiple anesthesia administrations, echo cardiograms, and “ancillary charges”
of various kinds. The total expenses exceeded $1 million. Corazon testified that
before the accident Arturo had atrial fibrillation and high blood pressure for
several years but did not have medical treatment except for checkups and blood
pressure medications.

At the close of evidence, Guevara moved for a directed verdict. Although she did
not contend that the treatments Arturo received were unnecessary for treatment
of his conditions or that the charges were unreasonable in amount, she argued
that there was no evidence the conditions treated were caused by the accident.
Corazon argued that evidence of the sequence of treatments following the
accident combined with lay testimony about the accident and Arturo’s having no
abdominal problems or requiring a ventilator prior to the accident was
sufficient to establish a causal relationship. The motion for directed verdict
was denied.

The jury found damages in the amount of over $1.1 million for Arturo’s medical
expenses and $125,000 for his pain and mental anguish. Guevara then moved for
judgment notwithstanding the verdict based in part on the same causation
arguments made in her motion for directed verdict. Corazon responded in the same
vein as to the motion for directed verdict. The trial court granted Guevara’s
motion and entered a take-nothing judgment as to Arturo.

Corazon appealed. Citing Morgan v. Compugraphic Corp., 675 S.W.2d 729
(Tex. 1984),
the court of appeals held that there was legally sufficient evidence of
causation. 192 S.W.3d 39, 46. It noted Corazon’s testimony that Arturo “did not
suffer from any of his post-accident injuries prior to the accident,” that he
was not in bad health prior to the accident, and that “[n]o great length of time
passed between the accident and [Arturo’s] death during which he was not in the
hospital or receiving care at home.” Id. at 47. The court of appeals
concluded that this testimony “established a sequence of events which provided a
strong, logically traceable connection between the event and the condition” so
that a layperson could “determine, with reasonable probability, there was some
evidence of the causal relationship between the event and the condition.”
Id. at
47-48. The court of appeals reversed and remanded for entry of judgment based on
the jury’s verdict.

Guevara asserts that the court of appeals’ reliance on Morgan to support
its post hoc, ergo propter hoc reasoning (“after this, therefore because
of this,” Black’s Law Dictionary
1186 (7th ed. 1999)) demonstrates the need for Morgan to be
reexamined. She urges us to overrule Morgan to the extent it is
inconsistent with the rule that expert testimony of causation is required in
cases involving complex medical conditions. See Leitch v. Hornsby, 935
S.W.2d 114, 119 (Tex. 1996); Lenger v.
Physician’s Gen. Hosp., Inc., 455 S.W.2d 703, 706 (Tex. 1970).

II. Standard of
Review

When reviewing a court of appeals’ judgment reversing the trial court’s grant of
judgment notwithstanding the verdict, we conduct a legal sufficiency analysis of
the evidence. City of Keller v. Wilson, 168 S.W.3d 802, 823 (Tex. 2005). We review the
evidence presented at trial in the light most favorable to the jury’s verdict,
crediting evidence favorable to that party if reasonable jurors could, and
disregarding contrary evidence unless reasonable jurors could not. Id. at
827.

III. Causation
Evidence

A. General
Rule

The general rule has long been that expert testimony is necessary to establish
causation as to medical conditions outside the common knowledge and experience
of jurors. See, e.g., Ins. Co. of N. Am. v. Myers, 411 S.W.2d 710,
713 (Tex. 1966) (holding that an “inference that a pre-existing tumor was
activated and the deadly effects of a malignancy accelerated by an injury” was a
“question of science determinable only from the testimony of expert medical
professionals”); Roark v. Allen, 633 S.W.2d 804, 809 (Tex. 1982) (holding
that “the diagnosis of skull fractures is not within the experience of the
ordinary layman” and therefore required expert testimony); Kaster v.
Woodson, 123 S.W.2d 981, 983 (Tex. Civ. App.—Austin 1938, writ ref’d) (“What
is an infection and from whence did it come are matters determinable only by
medical experts.”). Morgan was not the first case to acknowledge an
exception to the general rule whereby causation findings linking events and
physical conditions could, under certain circumstances, be sufficiently
supported by non-expert evidence. See Lenger, 455 S.W.2d at 706;
Parker v. Employers Mut. Liab. Ins. Co. of Wis., 440 S.W.2d 43, 46 (Tex.
1969) (noting that submission of causation issue to a jury is warranted when
under the evidence (1) a layperson’s general experience and common sense will
enable the layperson to fairly determine the causal relationship between the
event and the condition; (2) categorical scientific principles, usually proved
by expert testimony, establish that the result in question is always directly
traceable back to the event in question; or (3) a probable causal relationship
is shown by expert testimony). In Morgan, a default judgment case, we
said: “Proving that the event sued upon caused the plaintiff’s alleged injuries
is part and parcel of proving the amount of damages to which the plaintiff is
entitled. The causal nexus between the event sued upon and the plaintiff’s
injuries must be shown by competent evidence.” 675 S.W.2d at 732. We cited
Lenger for the proposition that “[l]ay testimony is adequate to prove
causation in those cases in which general experience and common sense will
enable a layman to determine, with reasonable probability, the causal
relationship between the event and the condition.” Id. at 733.
Without differentiating between the nature of the events or types of conditions
in question we cited several cases for the proposition that “[g]enerally, lay
testimony establishing a sequence of events which provides a strong, logically
traceable connection between the event and the condition is sufficient proof of
causation.” Id. We concluded that evidence of
chemical fumes from a typesetting machine caused Morgan’s medical symptoms was
legally sufficient without expert medical evidence:

[T]he evidence shows that Morgan had always been in good
health prior to returning to work from her vacation. Upon returning to her job,
she worked with her face two inches from a typesetting machine which, it is
admitted by default, was leaking chemical fumes. Soon after resuming her
employment, that is, soon after being exposed to the fumes emanating from the
typesetting machine, Morgan experienced problems with “breathing and swelling
and the like.” After four or five days of being constantly exposed to these
fumes during her working hours, Morgan developed symptoms such as watering of
the eyes, blurred vision, headaches and swelling of the breathing passages. We
believe this evidence establishes a sequence of events from which the trier of
fact may properly infer, without the aid of expert medical testimony, that the
release of chemical fumes from the typesetting machine caused Morgan to suffer
injury.

Id.

Competent proof of the relationship between the event sued upon and the injuries
or conditions complained of has always been required. In Morgan, we
merely applied the rule to a particular set of facts.

B. Non-Expert
Evidence of Causation

In personal injury cases, trial evidence generally includes evidence of the
pre-occurrence condition of the injured person, circumstances surrounding the
occurrence, and the course of the injured person’s physical condition and
progress after the occurrence. The record before us contains lay testimony about
Arturo’s pre-accident physical condition, his activities and other events
leading up to the accident, the accident, an investigating police officer’s
report, and post-accident events including medical treatments. This type of
evidence “establishing a sequence of events which provides a strong, logically
traceable connection between the event and the condition” could suffice to
support a causation finding between the automobile accident and basic physical
conditions which (1) are within the common knowledge and experience of
laypersons, (2) did not exist before the accident, (3) appeared after and close
in time to the accident, and (4) are within the common knowledge and experience
of laypersons, caused by automobile accidents. For example, if Arturo had been
pulled from a damaged automobile with overt injuries such as broken bones or
lacerations, and undisputed evidence which reasonable jurors could not
disbelieve showed that he did not have such injuries before the accident, then
the physical conditions and causal relationship between the accident and the
conditions would ordinarily be within the general experience and common
knowledge of laypersons. Thus, it would be within the general experience and
common knowledge of laypersons that the accident caused Arturo to be transported
to a medical care facility and to be cared for medically to some degree. To this
extent, we do not understand Guevara to disagree with Morgan.

Cases decided after Morgan have expounded upon the circumstances in which
competent expert testimony is required to prove the nature of and causal
connection between physical conditions and an occurrence. The holdings of such
cases in many instances reflect advances in science and medicine. Even so, such
cases reflect the basic premise affirmed in Morgan: competent evidence is
required to prove the existence and nature of a condition and a causal
relationship to the event sued on even though, in limited circumstances, the
existence and nature of certain basic conditions, proof of a logical sequence of
events, and temporal proximity between an occurrence and the conditions can be
sufficient to support a jury finding of causation without expert evidence.
See Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579 (1993); E.I. du
Pont de Nemours & Co. v. Robinson, 923 S.W.2d 549 (Tex. 1995).
Daubert and Robinson require trial judges to scrutinize evidence
for reliability. Robinson, 923 S.W.2d at 554. Most federal courts3 that have considered the issue after
Daubert have concluded that temporal proximity alone does not meet
standards of scientific reliability and does not, by itself, support an
inference of medical causation. See, e.g., McClain v. Metabolife
Int’l, Inc., 401 F.3d 1233, 1243 (11th Cir. 2005) (concluding that a
temporal relationship does not, by itself, establish causation, and rejecting
“the false inference that a temporal relationship proves a causal
relationship”); Rolen v. Hansen Beverage Co., 193 Fed. App’x 468, 473
(6th Cir. 2006); Porter v. Whitehall Labs., 9 F.3d 607, 611 (7th Cir.
1993); see also Roche v. Lincoln Prop. Co., 278 F. Supp. 2d 744, 764 (E.D. Va. 2003) (“An
opinion based primarily, if not solely, on temporal proximity does not meet
Daubert standards.”); In re Breast Implant Litig., 11 F. Supp. 2d
1217, 1238-39 (D. Colo. 1998) (“[A] temporal relationship by itself, provides no
evidence of causation. . . . The fact of a temporal relationship
establishes nothing except a relationship in time. Proof of a temporal
relationship merely suggests the possibility of a causal connection and does not
assist Plaintiffs in proving medical causation.”); Schmaltz v. Norfolk &
W. Ry., 878 F. Supp. 1119, 1122 (D. Ill. 1995) (“It is well settled that a
causation opinion based solely on a temporal relationship is not derived from
the scientific method and is therefore insufficient to satisfy the requirements
of [Rule] 702.”). One federal court noted the importance of focusing on
scientific reliability to ensure “that decisionmakers will not be misled by the
post hoc ergo propter hoc fallacy—the fallacy of assuming that simply
because a biological injury occurred after a spill, it must have been caused by
the spill.” Ohio v.
U.S. Dep’t of the Interior, 880
F.2d 432, 473 (D.C. Cir. 1989). This is not to say that evidence of temporal
proximity, that is, closeness in time, between an event and subsequently
manifested physical conditions is irrelevant to the causation issue. Evidence of
an event followed closely by manifestation of or treatment for conditions which
did not appear before the event raises suspicion that the event at issue caused
the conditions. But suspicion has not been and is not legally sufficient to
support a finding of legal causation. When evidence is so weak as to do no more
than create a surmise or suspicion of the matter to be proved, the evidence is
“no more than a scintilla and, in legal effect, is no evidence.” Ford Motor
Co. v. Ridgway, 135 S.W.3d 598, 601 (Tex. 2004). Nevertheless, when combined with
other causation evidence, evidence that conditions exhibited themselves or were
diagnosed shortly after an event may be probative in determining causation.
See, e.g., Westberry v. Gislaved Gummi AB, 178 F.3d 257, 265
(4th Cir. 1999). In Westberry, the plaintiff alleged that talc in his
workplace caused him to suffer sinus problems. There was evidence that the
plaintiff’s symptoms worsened after exposure at work, lessened when his doctor
experimented with keeping him away from work, and increased when he returned to
work. Id. at 260. While this evidence was not
sufficient to support a causal relationship finding, it could be considered in
support of such a finding when combined with evidence that the plaintiff was
exposed to high concentrations of airborne talc at work and there was no dispute
that “exposure to high concentrations of airborne talc could cause irritation to
mucous membranes.” Id. at 264.

Undoubtedly, the causal connection between some events and conditions of a basic
nature (and treatment for such conditions) are within a layperson’s general
experience and common sense. This conclusion accords with human experience, our
prior cases, and the law in other states where courts have held that causation
as to certain types of pain, bone fractures, and similar basic conditions
following an automobile collision can be within the common experience of lay
jurors. See Burandt v. Clarke, 547 P.2d 89 (Or. 1976) (“As defendants
concede, medical testimony of causation between collision and injury is not
essential if there is an ‘uncomplicated situation.’”); see also Choi v.
Anvil, 32 P.3d 1, 4 (Alaska 2001); Roling v. Daily, 596 N.W.2d 72, 75
(Iowa 1999); Walton v. Gallbraith, 166 N.W.2d 605, 606 (Mich. Ct. App.
1969). Thus, non-expert evidence alone is sufficient to support a finding of
causation in limited circumstances where both the occurrence and conditions
complained of are such that the general experience and common sense of
laypersons are sufficient to evaluate the conditions and whether they were
probably caused by the occurrence. See Burroughs Wellcome Co. v. Crye,
907 S.W.2d 497, 499 (Tex. 2005).

C.
Application

The jury awarded damages for Arturo’s treatments which included, among other
expenses, the cost of (1) at least two abdominal surgeries; (2) three separate
confinements in health care facilities, one of which was for over three months;
(3) a great variety and quantity of various pharmaceutical supplies, medicines,
and drugs; (4) numerous varied laboratory procedures; (5) extensive treatments
for respiratory failure and therapy; (6) physical therapy of various kinds; (7)
treatments for kidney failure; and (8) a great assortment and quantity of
“central supply” and miscellaneous medical charges. Corazon maintains that a
legally sufficient causal link was established as to all the conditions and
treatments for them even though no expert evidence provided such a link. We
disagree.

The evidence does not specify the conditions for which Arturo was treated in the
hospital except by medical history set out in records for the subsequent care
facility admissions. Those histories do not purport to be diagnoses of Arturo’s
previously treated conditions nor to relate his conditions to the accident. Some
of the conditions for which Arturo was treated could be speculated about by
reviewing entries on the bills for medical care, but the bills do not specify
the conditions treated. For example, the bills set out dates and charges for
respiration therapy, but they give no condition for which the therapy was given,
do not specify the type of therapy, or give any indication of who ordered the
therapy or why. The bills generally name the medications given, but do not set
out the condition treated by the medications or the intended effect of the
medicines. Patients in hospitals are often treated for more than one condition
brought on by causes independent of each other. See Texarkana Mem’l Hosp.,
Inc. v. Murdock, 946 S.W.2d 836, 840 (Tex. 1997). Absent expert proof of the
conditions and their causes, judgment for the expense of treatment is not
supported by legally sufficient evidence.

Arturo’s medical course clearly was not smooth or simple. Affidavits proving up
the medical bills are evidence that expenses were reasonable in amount and
necessary for treatment of Arturo’s conditions, but the bills are not evidence
of what all the conditions were nor that all the conditions were caused by the
accident. See Tex. Civ. Prac.
& Rem. Code § 18.001 (providing that “an affidavit that the amount a
person charged for a service was reasonable at the time and place that the
service was provided and that the service was necessary is sufficient evidence
to support a finding of fact by judge or jury that the amount charged was
reasonable or that the service was necessary”). Nor do the few medical records
for admission and consultation by physicians several months after the accident
provide the causal link.4

Non-expert evidence of circumstances surrounding the accident and Arturo’s
complaints is sufficient to allow a layperson of common knowledge and experience
to determine that Arturo’s immediate post-accident condition which resulted in
his being transported to an emergency room and examined in the emergency room
were causally related to the accident. Thus, the evidence is legally sufficient
to support a finding that some of his medical expenses were causally related to
the accident. On the other hand, the evidence is not legally sufficient to prove
what the conditions were that generated all the medical expenses or that the
accident caused all of the conditions and the expenses for their
treatment.

III.
Disposition

Because the evidence is legally insufficient to support a finding that the car
accident caused all of the medical expenses awarded by the jury, we reverse the
court of appeals’ judgment. Generally we render judgment when a no evidence
issue is sustained following a trial on the merits. See Murdock,
946 S.W.2d at 841. However, when there is evidence to support some damages
it is not appropriate to render judgment. See Tony Gullo Motors I, L.P. v.
Chapa, 212 S.W.3d 299, 314-15 (Tex. 2006); Minn. Mining & Mfg. Co. v.
Nishika Ltd., 953 S.W.2d 733, 740 (Tex. 1997). In the latter instance we
have both remanded cases to the court of appeals for determination of
appropriate remittiturs, see Tony Gullo Motors, 212 S.W.3d at 310, and
have remanded for new trials. See Minn. Mining, 953 S.W.2d at 739-40. We
believe the proper course in this instance is to remand to the court of appeals
to consider remittitur as to expenses for which expert evidence is required. If
the court of appeals concludes that a proper remittitur cannot be determined,
then the case should be remanded to the trial court for a new trial.
Id.

________________________________________

Phil Johnson

Justice

OPINION DELIVERED: August 31, 2007

1 We
refer to the parties by their first names to avoid confusion.

2
Pacifico testified that the accident caused him to have slight pain in
his neck and hand and he was “just kind of shook up.” He was examined and
x-rayed in the emergency room, then released. He had a follow-up x-ray
examination and was treated by a chiropractor for a few weeks but was “fine”
when he testified at trial. Neither Pacifico nor Guevara appealed from the
judgment in Pacifico’s favor.

3
Considering federal precedent as to evidentiary matters is appropriate.
See Gammill v. Jack Williams Chevrolet, Inc., 972 S.W.2d 713, 727 (Tex.
1998) (“[T]here is much to be said for maintaining as much uniformity in state
and federal evidence rules as possible.”).

4 The
physician histories were neither entirely consistent with each other nor with
Corazon’s testimony as to Arturo’s condition before the accident. See
Crye, 907 S.W.2d at 500.