The El Paso Court of Appeals has reversed a trial court judgment in favor of a plaintiff in a personal injury action based on legal insufficiency on the issue of causation. The court remanded the case for new trial.
A Guardian Angel Child Care Center, Inc. v. Marcos Rios (No. 08-20-00024-CV) arose from alleged injuries caused by the exposure of Rios, an employee of Guardian, to powder from a fire extinguisher located under the passenger seat of a van he was driving. Rios began experiencing shortness of breath and swelling in his throat about three days after the incident. He sought treatment at the emergency room and was discharged. He returned to the emergency room later that day with shortness of breath, which soon required intubation. After a week in the hospital, he was discharged, but three days later returned once more, this time with respiratory failure. He received a permanent tracheostomy and was diagnosed with both chronic and non-chronic health conditions, including diabetes, obesity, and obstructive sleep apnea. Rios sued Guardian alleging negligence for failing to secure the fire extinguisher, to train employees on the use of the fire extinguisher, and to provide a safe workplace.
Based on the plaintiff’s testimony and medical bills submitted into the record, the jury awarded Rios more than $132,000 in past medical expenses, as well as awards past and future mental anguish damages, loss of earning capacity, disfigurement, and past and future physical management. The court entered judgment on the verdict and denied Guardian’s motion for judgment notwithstanding the verdict and motion for new trial. Guardian appealed.
On appeal, Guardian presented two issues: (1) whether an expert report was required to establish causation; and (2) whether expert testimony was required to establish the basis for Rios’s medical expenses. In the absence of such evidence, Guardian argued, the jury’s verdict and subsequent judgment were not founded on legally sufficient evidence. With respect to the causation argument, Guardian contended that lay testimony was insufficient “to differentiate between conditions which were attributable to the incident, if any, and those which were not.” Guardian further argued that only expert testimony could establish whether Rios’s shortness of breath could be attributed to the incident or to a pre-existing condition.
The court’s analysis involved the application of Guevara v. Ferrer, 247 S.W.3d 662 (Tex. 2007), which permits lays testimony of medical causation if it “‘establish[es] a sequence of events which provides a strong, logically traceable connection between the event and condition[s]’ and the physical conditions complained of ‘(1) are within the common knowledge and experience of laypersons, (2) did not exist before the [incident], (3) appeared after and close in time to the [incident], and (4) are within the common knowledge and experience of laypersons, caused by [the incident,]’ then such lay testimony alone ‘could suffice to support a causation finding[.’” The court of appeals found that Rios’s testimony presented some evidence of “a sequence of events providing a strong, logically traceable connection between the fire extinguisher accident and his subsequent respiratory problems.” But, the court further held, medical expenses for treatment after his third discharge from the hospital several weeks after the incident do not meet the proximity requirement and fail the “strong, logically traceable connection” premise of the Guevara test.
The next question was whether Rios’s respiratory problems satisfied the four prongs of the test. The court had no difficulty finding that Rios’s shortness of breath and other symptoms did not exist before the incident and appeared after and close in time to the incident. Furthermore, his symptoms—difficulty swallowing, wheezing, and thick phlegm—were the types of conditions a lay person knows about and expert testimony is not needed to explain. While inhaling material from a fire extinguisher might not fall within common knowledge, certainly in haling fumes “of some kind” do. Nevertheless, once Rios went to the hospital, his pre-existing medical conditions came out. The billing records Rios submitted list conditions such as dyspnea, laryngeal edema, and stridor, which lay people may not understand without expert testimony, much less whether any of these conditions might be caused by inhaling from a fire extinguisher.
At this point, the court of appeals found Rios’s testimony and the records insufficient to show causation. Moreover, Rios’s chronic health conditions were clearly not caused by the fire extinguisher, and on his second and third hospitalizations he was treated for these conditions as well as the respiratory problems. Consequently, the court ruled that expert testimony was required to prove that the fire extinguisher incident proximately caused any condition for which Rios received treatment on his second and third visits beyond common symptoms of respiratory distress and any treatment following his third discharge from the hospital. Based on this determination, the court of appeals found that while expert testimony was not required to support past medical damages for some of Rios’s treatments for respiratory distress in the hospitals, it was necessary to support the jury’s award of past medical damages for treatment arising from other conditions and all treatment provided after his final discharge. The court of appeals thus reversed the judgment and remanded so that Rios could provide evidence segregating his hospital bills between treatment for the inhalation and treatment for everything else. It further remanded for new trial on both liability and damages because if liability is contested, “a separate trial on unliquidated damages alone is improper.”
This is an interesting case for its analysis of the sufficiency of lay testimony of proximate causation and damages. But one thing we are scratching our heads about is the absence of an analysis of whether a fire extinguisher can cause respiratory distress to begin with. The defendant clearly contested causation all along the line, so it’s curious that Guardian does not appear to have presented any evidence rebutting Rios’s lay testimony by an expert or anyone else but instead hung its hat on Rios’s failure to carry its evidentiary burden. That seems pretty risky, and it didn’t give the court of appeals any good grounds upon which to reverse and render rather than sending the case back for new trial. We point this out because one factor that should be taken into account when evaluating appellate decisions for signs of an “ideological” predisposition involves asking how the lawyers tried the case and what issues they actually presented in the appeal. Here you might say the court of appeals gave a plaintiff another bite at the apple (they did, but not nearly as big a bite the second time around), but it’s also possible that the case went in this direction in part because of the defense trial strategy. Who knows, but suffice to say that we try to look at appellate decisions from as an objective position as we can. Judges have a very difficult job, and we are not here to make things harder for them.
