TRIAL BRIEF ON POSSIBILITY CAUSATION TESTIMONY TO THE HONORABLE JUDGE OF SAID COURT: COMES NOW, Plaintiff, and files

this trial brief on the issue of whether the defense can interject evidence of causes, other than the Defendants negligence, based on possibilities rather than medical probabilities. In support of efforts to exclude this testimony, the Plaintiffs show the court the following: I. Introduction The Defendants have demonstrated in their questions during Plaintiffs doctors deposition, their intention to question witnesses regarding mere possible causes other than their negligence, for the injuries in this case. This testimony is not based on medical probabilities; but, is based on mere possibility. As this Court knows, the standard of proof in a civil personal injury case for injuries is reasonable medical probability. Defendants want Plaintiffs evidence held to this standard, however, they have attempted to apply a different standard to themselves. This is not the law. II. Authorities Texas courts prohibit experts from testifying to a defensive theory based on mere possibility, speculation and surmise. Grider v. Naaman, 83 S.W.3d 241, 246 (Tex. App. Corpus Christi 2002, no pet.) (citing Schaefer v. T.E.I.A. 612 S.W.2d 199, 204 (Tex. 1980)); Tsai v. Wells, 725 S.W.2d 271, 274 (Tex. App.Corpus Christi 1986, writ refd n.r.e.). This is so because expert testimony that is based on mere possibility, speculation and surmise, rather than a reliable basis, is legally no evidence at all. Merrell Dow Pharms., Inc. v. Havner, 953 S.W.2d 706, 712 (Tex. 1996).
Trial Brief on Possibility Causation Testimony Page 1

Causation must be established by reasonable medical probability and not mere conjecture, speculation or possibility. See Park Place Hosp. v. Estate of Milo, 909 S.W.2d 508, 511 (Tex. 1995); Lenger, 455 S.W.2d at 706; Marvelli v. Alston, ___ S.W.3d ___, 2003 WL 151998 *5 (Tex. App.Fort Worth 2003, no pet. h.). This reasonable medical probability standard applies equally to both defendants and plaintiffs experts. Grider, 83 S.W.3d at 246 (defense expert); Tsai, 725 S.W.2d at 274 (defense expert); Marvelli, 2003 WL 151998 at *5-6 (plaintiffs expert). The opinion in Grider explains the courts insistence on the medical reliability standard. There, the defendant physician

admitted that he had severed nerve roots which resulted in a permanent claw left hand. One of the defendants experts testified that if the plaintiff had an abnormal anatomy, it would not be beneath the standard of care would not apply. However, there was no proof that the plaintiffs anatomy was abnormal in any way. As a result, the court held: Even if the defensive theory had been properly based on a body of scientific, technical or other specialized knowledge [which the court found it was not] it was no evidence in this case because there was no proof appellants anatomy was abnormal in any respect. If an expert opinion is based on facts that are materially different from the facts and evidence, then the opinion is not evidence. General Motors Corp. v. Sanchez, 997 S.W.2d 584, 596 (Tex. 1999). Appellees experts defensive theory is not based on fact, but relies on mere possibility, speculation and surmise. Grider, 83 S.W.3d at 246. The Grider courts holding is consistent with the Texas Supreme Courts opinion in Burroughs Wellcome Co. v. Crye, 907 S.W.2d 497, 500 (Tex. 1995). In that case, the Court was faced with a situation where the plaintiff claimed that a frost bite injury was caused by a pharmaceutical spray. The undisputed facts concerning the application of the spray were not consistent with the plaintiffs experts testimony. constituted no evidence of causation, the court held:
Trial Brief on Possibility Causation Testimony Page 2

In ruling that this evidence

However, to constitute evidence of causation an expert opinion must rest on reasonable medical probability (citations omitted). This rule applies whether the opinion is expressed in testimony or in a medical record, as the need to avoid opinions based on speculation and conjecture is identical in both situations (citations omitted). Id. In yet another case, a court found that a defendants expert testimony based on a possibility rather than reasonable medical probability was not admissible and would not support a judgment. Tsai, 725 S.W.2d at 274. There, the plaintiff sued her gynecologist as a result of a pelvic infection she contracted following treatment. After an adverse jury verdict, the defendant doctor appealed claiming that the trial court improperly excluded his experts evidence of a potential defensive theory. Specifically, the defendant argued that the medical records reflected that the plaintiff had sexual contact with a man who had contracted a sexually transmitted disease. He proposed to testify that the sexually transmitted disease was the possible cause of the pelvic infection. Id. However, there was no evidence that the plaintiff had ever contracted the disease. As a result, the court ruled: The question before us is whether there is a distinction between a reasonable medical probability and a medical possibility. A possible cause becomes probable when, based upon the facts of the case, it becomes more likely than not that the injury was a result of its action. Parker v. Employers Mut. Liability Ins. Co., 440 S.W.2d 43, 47 (Tex. 1969). In the instant case, appellant is unable to testify that the sexual contact with a person infected with gonorrhea caused the injury (pelvic inflammatory disease). Rather, appellant can only testify that contracting gonorrhea could cause the injury, and there is no evidence that Regina Wells contracted gonorrhea. Therefore, the inference that would result from appellant's testimony would be no more than speculation and conjecture. See Otis Elevator Co. v. Wood, 436 S.W.2d 324, 331 (Tex. 1968). Appellant's conclusion is not a probable cause because he is unable to say that it is more likely than not that the pelvic inflammatory disease was a result of sexual contact with a
Trial Brief on Possibility Causation Testimony Page 3

person afflicted with gonorrhea. Tsai, 725 S.W.2d at 274. Accordingly, the court affirmed the trial courts exclusion of evidence that the plaintiff had contact with a man who had contracted a sexually transmitted disease. The Defense may try to argue that Plaintiff has not absolutely ruled out all other possible causes by absolutely certainty so they can talk about them. This isnt true. In Sloan v. Molandes, 32 S.W.3d 745, 749 (Tex. App.Beaumont 2000, no pet.) the court held that the plaintiff need not rule out all other possible causes of her injuries since she met the burden of showing a single cause was a substantial factor in her injuries. Id. Applying the lessons of these cases to the facts in this caseit is obvious that testimony of a mere possibility of another cause is the type of speculation and surmise that Texas Courts have repeatedly condemned. III. Conclusion The court should exclude any evidence or testimony pertaining to possible causes rather than causes based upon reasonable medical probability.

Respectfully submitted, Simmons and Fletcher

_______________________ Paul H. Cannon Bar No. 00793457 9821 Katy Freeway Suite 925 Houston, Texas 77024 Telephone: 713/932-0777 Telecopier: 713/935-1410
Trial Brief on Possibility Causation Testimony Page 4

ATTORNEYS FOR PLAINTIFF

Trial Brief on Possibility Causation Testimony

Page 5