In a case that turns on the reliability of expert medical testimony, the Dallas Court of Appeals has reversed a judgment for an employee in a worker’s compensation case.
The University of Texas System v. Diane M. Bartek (No. 05-20-00525-CV; filed December 29, 2022) arose from a worker’s compensation claim filed by a System employee alleging an occupational disease caused by toxic mold. The employee lost at every stage of the administrative process but succeeded in the trial court, where 10 of 12 jurors found that she had suffered a compensable injury. The System appealed, alleging that the evidence was legally and factually insufficient to support the judgment because the expert’s opinion on causation was unreliable and should have been excluded by the trial court.
The court of appeals reversed and rendered judgment for the System. The case makes for worthwhile reading because of its review of Texas Rule of Evidence 702 and the applicable case law governing the admissibility of expert testimony. The System argued that plaintiff’s expert, her treating physician, was unreliable because it relied on facts not in the record, was based on testing methods that have been openly rejected by the scientific and medical communities, and several other courts rejected the same physician’s testimony as scientifically unsound. As to the facts in the record, plaintiff claimed that she had sustained a compensable injury in the form of an occupational disease on the date she discovered mold in her office and had a disability for several months subsequent to that date. The expert, however, testified that plaintiff had given him a patient history indicating five years of exposure to toxic mold dating back to 2010, although plaintiff testified at trial that she had not noticed any mold in her office prior to February 2015 and was not aware of any mold testing before March 2015. (In the event, the mold was remediated within two months of that date.) Several witnesses corroborated the System’s position that nobody had reported a mold problem until February 2015 and no testing had been done prior to that date. Based on this evidence, the court of appeals concluded that the expert’s opinion was indeed based on facts not in the record and was not validated by scientific tests (i.e., prior tests for toxic mold).
The court likewise found that the expert’s opinion was unreliable because the tests he used to diagnose various conditions associated with exposure to toxic mold had been “openly rejected by the scientific and medical communities.” Based on the testimony of the System’s expert, of the seven diagnostic tests ordered by plaintiff’s expert, not one of them was appropriate to test an allergic reaction to toxic mold. Plaintiff argued that because her expert was also her treating physician, the worker’s compensation statute permitted him to offer an opinion on medical causation. The court responded that even the opinion of the employee’s treating physician “must meet the same criteria for establishing causation as any other expert” (citations omitted). In an attempt to shore things up, plaintiff submitted “causation letters” from two other physicians. These were submitted at trial over the System’s hearsay objection. The court agreed with the System that the trial court erred in admitting them on both hearsay grounds and that they were based on the same “deficiencies as [plaintiff’s expert’s] testimony.”
This is one of those cases that should not have gotten to a jury, much less reached the court of appeals. If the trial court had simply applied the law, the case would have ended at the summary judgment stage. Once again, we see a court of appeals doing the thankless job of correcting trial court errors. It would be one thing if the trial court had to make a judgment call in a close case, but that’s not what happened here.
