### T E X A S C O U R T O F A P P E A L S , T H I R D D I S T R I C T , A T A U S T I N

NO. 03-09-00570- CV

Jeff rey F ennern and Farah F ennern, Ind ividu ally and on Behal f of the Estate of S helly Fe nnern, App ellants

v. William Whitehead, M.D., A ppellee

F ROM TH E DISTRI CT COURT O F TO M GREEN CO UNTY, 391 ST JUDICI AL DISTRICT NO. D-0 8-0 664- C, H ONO RAB LE TH OM AS J. GO SSETT, JUDGE P RESIDING

M E M O R A N D U M O P I N I O N

This is a medical neg lige nce case . I n 2007, Shelly Fe nnern (“F enner n”) underw ent colon rese ction surg ery , had a second surg ery 12 day s later to r epair a postoperative leak, and died
at the hospital two wee ks later. Appellants J eff rey Fe nnern and Fa

rah Fe nnern, individually and on behalf of the e state of F enner

n, filed suit ag ainst appellee Wil liam Whitehea d, M.D, alleg ing tha t 1 Fe nnern’ s death was a result of Whit ehea d’s neg lige nce. The district court g rante d Whit ehea d’s motion to exclude the testimony of appellants’ expert witness who testified on the issue of proxi mate

cause , and co n s eq u entl y , the district court also g rante d Whit ehea d’s no-evide nce motion for summary judgme nt. Appellants appea l, asser ting that the district court err ed in g ranting the motion to exclude. We affirm.

J eff rey Fe nnern is the surviving husband, and F ara h Fe nnern is a sur

viving da ug hter. 1Factual an d Procedural Background Fe nnern, a 47-y ear -old woman , underw ent elec tive colon rese ction surg ery on Marc h 28, 2007, at Shannon Medica l Center in San Ang elo. On April 9, 2007, a CT scan perf ormed

on Fe nnern i n d i ca ted an anastomotic leak from the operation, and Fe nnern underw ent additional surg ery to corre ct the lea

k. Following the April 9 surg ery , Fe nnern be g an having incre asing tachy car dia (ra pid hear t rate) and hy

pox emia (low blood oxy g en) and was complaining of shor tness of bre ath. Afte r

sever al day s of rec eiving trea tment for those conditions, Fe nnern improved, was remove d from her

v en t i l at o r o n April 20, and was transfe rre d out of the hospital’s intensive car e unit on April 2 2

. Howeve r, in the early morning of April 23, Fe nnern “bec ame unresponsive.” Although she was initially revive d, she died the morning of April 23, 2007, afte r being remove d from the vasopre ssor ag ents at the re quest of her family

. On May 19, 2008, appellants filed suit ag ainst Whit ehea d—Fe nnern’ s trea ti n g phy sician— al l eging medical neg lige nce and making claims pursuant to the wrong ful death and survival statutes. See Tex. Civ. Prac. & Rem. Code Ann. §§ 71.002, .021 (West 2008). Appellants do not complain of the leak’ s occur renc e following the initial surg ery or the trea tme n t p ro v i d ed once the leak wa s diag nosed. Appe llants’ alleg ation is that W hitehead should ha ve diag nosed the
anastomot i c l ea k as ea rl y as April 5, and that his failure to diag nose the leak until April 9 was a brea ch of the applicable standard of car e and a

proxi mate ca

use of F enner

n’s dea th. Ap p el l ants relied on the expert testimony of Dr. Br ian Camazine on the issue of proxi mate cause . Whit ehea d filed a motion to exclude Dr. Camazi n e’ s t es t i m ony on proxi mate

2cause as well as a no-evide nce motion for summary judgme nt on that element of appellants’ claims.

On August 28, 2009, the di strict court gra nted bot h motions and en t er ed a t ake- nothing judgment ag ainst appellants.

Anal ysis Having alleg ed medical neg lige nce, appellants wer e requi re d t o show by a preponde ranc e of the evidenc e that, to a rea sonable medical probability , the alleg edly neg lige nt act

or omission was a proxi mate cau s e o f t h e h ar m alleg ed. See Park Place Hosp. v. Estate of Milo , 909 S.W .2d 508, 511 (Tex. 1995). To constitute proxi mate cause , the defe ndant’s acts or omissions
must have been a “substantial fac tor” in bring ing about the injury

. See Columbia Rio Grande Healthcare

, L.P. v. Hawley , 284 S.W .3d 851, 860 (Tex. 2009)

. The plaintiffs must demonstrate a

causa l connec tion betwee n the injuries and the neg lige nce of the d ef en d an t based on rea sonable medical probab il it

y , n o t me r e c o n

je cture , specula tion, or possibili ty
. Arlington Mem ’l Hosp. Found., Inc. v . Baird , 991 S.W .2d 918, 922 (Tex. App.—For t Worth 1999, pet. denied). A p p e ll a n ts c o n te n d th a

t th e district court err ed in excluding Dr. Cam a zi n e ’ s te s ti mo ny

on proxi mate cause . I n h is motion to exclude Dr. Camazine’s expert testimony , Whit ehea d arg ued that Dr. Camazin e’ s t es t i m o ny was not based on a reliable foundation. The proponent of expert testimony has the burden to s h o w t h at the scientific technique or principle underlying the testimony is reliable. See E.I. du Pont de Nemours & Co. v. Robinson , 923 S.W .2d 549, 557 (Tex. 1995). Scientific evidence that is not grounde d in the methods and proc edure s of s cienc e is

no more than subjective belief o r unsupported specula tion and, there fore , is not reliable and not admissibl e. S

ee id. (quoting Daubert v. Merre ll Dow Pharms., Inc. , 509 U.S. 579, 590 (1993))

. 3Fa ctors that a trial court may consider when deter mining the reliability of expert testimony involving scientific knowl ed ge i n cl u d e (1) the extent to which the theory has been or can be tested, (2) the
extent to which the technique relies upon the expert’s subjective interpret at i o n , (3) whether the theory has bee n subjected to pe er r eview or publication, (4) the te chnique’ s potential rate of err or, (5) whether the underlying theory or technique has been g ener ally acc epted as valid by the rele vant scientific community , and (6) the non-judicial uses that have been made of the theory or technique. Id. These fac tors may not apply when testimony relies on the expert’s o wn technica l or other specia liz ed knowledg e. See Gammill v. Jack W illiams Chevrolet, Inc. , 9 7 2 S

. W

. 2 d 713, 726 (Tex. 1998)

. Even then, howeve r, there must be some basis for the opinion to show its re liability

. Mack Trucks, Inc . v. Tamez , 206 S.W .3d 572, 578 (Tex. 2006). An expert’s bar e opinion will not suffice , and there cannot be too g reat an analy tical g ap betwee n the data and the opinion proff ere d. Id. To connec t Fe nnern’ s d eath with the four- day delay in Whit ehea d’s diag nosing her anastomotic leak, Dr. Camazine made the following asser tions: (1) the additional spillage from the leak during t h e four- day period prec eding the April 9 surg ery cause d a condition called peritonitis, which in turn led to sep s i s , an d those conditions, either individually or in tandem, led
to acute respiratory distress sy ndrome (ARDS); (2) Fe nnern’ s death was due to either pulmonary embolus or cardiac arr

hy thmia; and (3) neither pulmonary embolu s n o r cardiac arr hy thmia would have occur

red but for the conditions of peritonitis, sepsis, and ARDS tha t de veloped as well as the
trea tment that was nec essitated due to those c onditions.

4I n his orig inal repor t made on April 10, 2008, and attache d to appellants’ pleading s, Dr. Camazine stated that he was “aw are that delay ed diag nosis often leads to death,” and based his opinions on his “educ ation, training and experience ,” as well as “fr om a broad rea ding and g ener al knowledg e of medical l i t er at u re and information related t o these conditions and medical issues.” I n his deposition on April 28, 2009, Dr. Camazine further testified as follows:

I have seen dozens and dozens, may be hundreds of case s of sepsis like this. I f y ou let them g o, the patient dies. I f y ou catc h them ear lier, they survive.

. . . You wouldn’t expect any

body to survive if they wer e operated on postoperative day 12. I t’s a rar e event. Even a y oung person can be taken out if their sepsis has been g oing on until postoperative da

y 12.

Howeve r, Dr. Camazine also acknow ledg ed that he had perf ormed no medical literature revie w to deter mine whether

there was published docume ntation to support his opi nions. On J uly 8, 2009, Dr. Camazine supplemented his prior repor t with an aff

idavit to which he attache d two article s on anastomotic leaka g e, eac h of which states that ear ly intervention improves the patient’s outcome. Neither article , howev er , l ends support for Dr. Camazine’s testimony reg arding the signific ance of the delay in F enner n’s diag nosis—specifica lly , from day 8 following her initial surg ery to day 12. Acc ordi n g t o the first article , of 655 patients who underw ent colonic or rec tal

rese ction in the article ’s study g roup, 39 experience d leaka g e. No deaths occur red among the 11 patients reope rate d on befor e day 5, but 5 of the 23 patients reope rate d on afte r day 5 died. The

mean postoperative period for diag nosis was 8.1 plus or minus 4 day s, and the applicable rang e was 4 to 25 day s. The second article descr ibed a separ ate study in which there wer e 36 patients identified

5with a postoperative l o we r gastrointestinal leak. I n that study , the majority of patients wer e

reope rate d on at day

10 afte r their primary operation, with an ave rag e of 10.1 da y s, and a r ang e of 2 to 50 day s. The study g roup had 3 deaths, but the article did not provide any information reg arding when the reope rations occur red for those who died. Thus, neith er article provides any evidenc e reg arding the specific signific ance of the 8- to 12-day rang e, and in fac t, Fe nnern was reope rate d on within both studies’ rang e and well below the maxi mums of 25 and 50 day s. Moreove r, appellants do not a lleg e that Fe nnern should have been diag nosed by day 5, which is the cut-off , acc ording to the first ar

ticle, for a

mortality rate of zero. 2 There fore , while there is evidenc e that Fe nnern develo p ed peritonitis, sepsis, and ARDS, and while Dr. Camazine aver s that there was no evidenc e of “sig nificant” peritonitis or sepsis

as of April 5, Dr. Camazine has not shown sufficie nt basis for his opinion that Fe nnern’ s death was

cause d by a four- day delay in diag nosis. The medical literature provided by Dr. Camaz i n e is
not consistent with his testimony that survival is rar e for reope ration occur ring on day 12 following the initial surg ery , and g ives no support for his opinion that a delay from day 8 to day 12 was

a subs t an t i al fac tor in bring ing about the conditions that cause d Fe nnern’ s death. Moreove r, Dr. Camazi ne did not set forth how his training or ex perie nce inf ormed his conc lusions reg arding the rela tionship betwee n a 4-day delay and Fe nnern’ s death beyond his g ener al observa tion that “the

Neither article sets out the specific n u m b er s of postoperative day s when eac h of the 2 patients was diag nosed. We note, howeve r, that the first study ’s selec tion of day 5 as the cut-off for the mortality statistics leads to a rea sonable infere nce that one of the patients in the study who died had a r eoper ation on day

6. 6longe r y ou leave someone with an anastomotic leak, the less their chanc es of survival.” Appellants

have not shown a reliable basis for Dr. Camazine’s ultimate opinion as to Fe nnern’ s cause of death.

I n addition, the district court could have rea sonably conclude d that Dr. Camazine did not sufficiently

demonstrate a

causa l connec tion betwee n the conditi ons of peritoniti s, sepsis, and ARDS and the pulmonary embolus or car diac arr hy thmia that alleg edly cause d Fe nnern’ s death. See Ga mm i ll , 972 S.W .2d at 727-28 (af firming exclusion of expert testimony due to “ana ly tic al gap ” betwee n data and opinion proff ere d). Reg arding pulmonary embolus, which Dr. Camazine testified was the pr obable c ause of Fe nnern’ s death, Dr . Camazine aver red the following : [I ]t is rec og nized in scienc e and literature that one o f the main risks of pulmonary embolus is a long period of bed rest. I n this case , had Mrs. Fe nnern not suffe red her leng thy illness, she would have been discharg ed in a prompt fashion and would have been at home for a lengthy period of time eng ag ed in the activiti es of daily living. She would not have develope d thrombus in the deep veins of her pelvis that eventua lly brea

k off and move t o the pul monary s y s t em t o result i n car diovascular collapse had she not been hospitaliz ed for a leng thy period of time. I n this connec tion, I would note that Dr. Whitehea d considere d pulmonary embolus at the time of the event and trea ted it with TPA. This is a medication desig ned to dissolve clots like a pulmonary sy stem. Thus, the patient could have sustained a pulmonary embolus that cause d a car diovascular arr est for long enoug h to sustain brain damag e but the evidenc e for pulmonary embolus was dissolved by the TPA and there fore not found at a utopsy
.
Dr. Camazine provided no su p p o r t o ther than his bare opinion that Whit ehea d’s trea tment of Fe nnern resulted in pulmonary embolus, which then cause d her death. Specifica lly , he relies on the asser tion that bed rest is “one of the main risks” of pulmonary embolus, the fac t that Whit ehea d “conside red” the possibili ty of pulmonary embolus in his trea tment of Fe nnern, and the arg ument that the absenc e

7of evidenc e at the au t o p s y d i d not impact the possibili ty that Fe nnern “could have” sustained a

pulmonary

embolus that resulted in her death. Reg arding a car diac arr

hy thmia, which Dr. Camazine testified was the other possible

cause of F enner

n’s dea th, Dr. Camazine ave rre d the following :
There ar e . . . sever al risk fac tors for car diac arr hy thmia that wer e cre ated by Dr. Whitehead’ s neg lige nce. O ne is weig ht ga in. . . . Second, the patient had a persistent tachy car dia or eleva ted hear t rate probably due to the whole body swelling and the ong oing infec tion in the patient’s body

. At the time o f h er death, her white blood cell count had come down from its peak levels but was sti ll eleva ted i n a rang e that is signific ant for ong oing inf ection. This ong oing infec tion was p ro bably part of the cause for the patient’s tachy car dia. This tachy car dia p u t t h e patient at an incre ased risk of car diac arr hy thmia. Fur

ther, the evidenc e shows that the patient’s potassium was eleva ted at around the time of arr est at 5.5

. . . . I n this connec tion, the patient’s leng thy infec tion, peritonitis, and sepsis probably led to anemia and l o w b l o o d pressure (lab work does show the patient is anemic prior to death) , which in turn compromised blood flow to the kidney s leading to acute tubular necr osis which in turn inhibited the kidney s’ ability to g et potassium out of the sy stem which in turn led t o an eleva ted potassium level which puts a patient at risk of car diac arr hy thmia and asy stole. Eac h of the st ep s I have just descr ibed is basic informa tion taught in medica l school.

Dr. Camazine provided no support for his opinions reg arding Whit ehea d’s neg lige nce causing Fe nnern to suffe r car diac arr hy thmia other than the exis tence of conditions—which, he alleg es, wer e “proba bly ” ca used by Whit ehea d’s neg lige nce—tha t are “risk fa ctors” f or ca rdiac arr hy thmia. Even taking as true that the only possible cause s for Fe nnern’ s death are pulmonary embolus and car diac arr hy thmia, Dr. Camazine has only aver red that Whit ehea d’s alleged 3 neg lige nce probably incre ased Fenne rn’s risk of deve loping e ither of the c onditions t hat he thinks

Fe nnern’ s autopsy

did not result in a conclusive ide ntification of her cause of death. 3 8may

have cause d Fe nnern’ s death. To constitute proxi mate cause, W hitehead’ s acts or omissions
must have been a “substantial fac tor” in bring ing about Fe nnern’ s death. See Columbia Rio Grande Healthcare , 284 S.W .3d at 8 6 0

. T h e alleg ed causa l connec tion must be based on “re asonable medical probability ,” not mere conjec ture, specula tion, or possibili ty
. See Arlington Me m’l Hosp. Found. , 991 S.W .2d at 922. There fore , we conclude it was not err o r for the district court to have deter

mined that Dr. Camazine’s opinion—that a four- day delay in diag nosis was the proxi mate

cause of Fen n er n ’s d eath—was specula tive and contains an analy tical gap, causing his opinion to be unreliable

. See W

iggs v. All Saints Health Sys. , 124 S.W .3d 407, 412-14 (Tex. App.—For t Worth 2003, pet. denied)

.

The district cour

t did not err by excluding Dr. Camazine’s testimony as unre liable. We affir m the judgme nt of the district court. 4

__________________________________________ G. Alan Waldrop, Just ice Be fore Chief J ustice Jones, J ustices Pemberton a nd Waldrop Affir med Filed: June 18, 2010

Appellants do not contend that, with Dr . Camazine’s testimony excluded, it was err or to 4 g rant Whitehead’ s motion for summary judgme nt. 9