NO. 07-05-0351-CV IN THE COUR

T OF APPEALS FOR THE SEVEN TH DISTRICT OF TEXAS

AT AMARILLO PANEL D FEBRUARY

24, 2006

______________________________ JEFFREY K. BRAZIL, APPELLANT

V. TIMOTHY T. KHATER , M.D., APPEL LEE

_________________________________ FROM THE 99 TH DISTRIC T COURT O F LUBBOCK COUNTY; NO. 2003-523,253; HONORABLE WILLIAM C. SOWDER, JUDGE

_______________________________ Before QUINN, C.J., and REAVIS an d CAMPBELL, JJ.
OPINION
Pursuan t to sec tion 51.014(d) of the Texas Civ il Practi ce and Remedies C ode permitting an interlocutory appeal by agreed order, appellant Jeff rey K. Brazil presents a sole issue contending the trial court erred i n (1) stri king the ex pert testimony of Jay Mark Lustbader, M.D., of Washington D.C., regarding causation in his health care liability claim2

against appellee Timothy T. Khater, M.D . and (2) granting in part Khater’s no-evidence motion for summary judgment. Specif ically, he asserts the tria l co urt erred i n striking Lustbader’s testimony because his quali fications were not disputed and the testimony was relevant an d reliable. W e affirm the orde r granting in part and denying in part objecti ons and motion to strike the expert’s testimony and orde r granting in part and denying in part Khater’s amended no- evidence moti on for summary j udgment.
Brazil was born with congenital cataracts whic h were s urgicall y remove d during childhood. His aphakia created ve ry poor v ision for w hich he used contact lenses and or glassesto correct. B razil contacted Khater to inquir

e about intraocul ar placement of lenses. Follow ing lens i mplantation s u rgery , Brazil commenced this l awsuit as serting Khater was negli gent i n perfor ming t he sur gery . Braz il nam e d Lustba der as an expert witness to support his claim of negligence and to support proximatecause of the clai med injuriesand damages. After Lu stbader’s deposit ion w as taken, Khater moved to strike portions of his testimony as ipse dixit

statements that related to the proper stan dard of care and causal connect ion between t h e surgeryand the subsequ ent retinal detachment suffered by Braz il. Upon co nsideration of the motion to stri ke, the tr ial court den ied the motion as to the proper standard of

care, but g ranted it in part as to Lustbader’s testimony “to the effect that any

alleg ed neg lige nt act or omi ssion on the p art of Ti mothy T. Khater, M.D. caused or contributed to the retin al detachment.”3

Upon a hearing on Khater’s amended no-evi dence motion for summar y judgment based on the order striking part of Lustbader’s testim ony that Khater’s negligence caused
or contributed tothe retinal detac hment, the trial court gr anted the motion in part and denied it in part. The parties el ected to proc e ed with an agreed order prompting this interlocutor

y appeal pur

suant section 51 .014(d) of the Code. By his sole i ssue, Braz il contends th e trial cour t erred i n stri king Lustbader’s testimony

regarding causation because his qualificatio ns were not disputed and t he testimony

was rel evant and rel iable. W e dis agree . Bef ore we comm ence our a nalys is, we firs t con side r the appr opri ate s tand ards of re view.
STA NDA RDS OF REV IEW No-Evide nce Summary Ju dgment
In our determinati on of whether thepartial no- evidence summar y judgment was proper, we apply the standard of review presented in Kimb er v. Sideris, 8 S.W.3d 672, 675- 676 (Tex.App.--Amarillo 1999, no pet.). Expert Testi mony
The admissibil ity of exp ert testimony is governed by

the two par

t test set out i n E.I. du Pont de Nemours & Co. v. Robinson, 923 S.W .2d 549, 556 (Tex. 1995 ), and is within the discretion of the trial cour t. Id . at 558. Under Robinson , Brazil had the burden to show (1) the expert was qual ified and (2) the proffered testimony was rel evant and based on a4

reliable foundati on. To demonstrate an abu se of discretion, Brazil must also show the trial court acted wit hout reference to any guiding rules or principles. Downer v . Aquamarine Operators, In c ., 701 S.W.2d 238, 241-42 (Tex. 1985 ), cert. denied, 476 U.S. 1159, 10 6 S.Ct. 2279, 90 L.Ed.2d 72 1 (1986); Couch v. Simmons, 108 S. W .3d 338, 341 (Tex.App.
-- Amarillo 2003, no pet .). There is no abuse , howeve r, simply because a tri al court may decide a matter wi thin its dis cretion differentl ythan an appellate court. Downer , 701 S.W.2d at 242. When reviewing matters committed to the trial court’s discretion, a court of appeals may no t substitute i ts own jud gment for that of the trial cour

t, thus insul ating the trial court’s dec ision from appell ate second guess ing. B owie Me mori al Hos pita l v. Wright, 79 S.W .3d 48, 52 (Tex. 2002).
An alysis By his objecti on and motion to strike Lus tbader’s test imony, as material here, Khater alleged the expert’ s causation opi nion should be s tricken becau se he cou ld not rule out with reasonable medical certainty or reas onable m edical probabi lity other non-neglig ent
causes of the retinal detachment, and his causati on opinions were unreliabl e, speculative, and /or consti tuted nothing mor e than ipse dixit.
In our a nalys i s, am ong o ther fac tors , we co nsid er th e six Robinsonfactors as follows:5

(1) the ex

tent to whi ch the theory has been or can be tested; (2) the extent towhich thetechnique r elies upon the subjectiv e interpretati on of the expert; (3) whet her the theory

has been subjected to peer rev iew and publ ication; (4) the technique’s potential rate of error; (5) whether th e underlyi ng theory or techniq ue has been gener ally accepted as valid by the rel evant scie ntific community ; and (6) the non-j udicial uses that have been made of the theory o r technique

. 923 S.W.2d at 557. See also Merrell Dow Pharmaceutical s, Inc. v. Havner, 953 S.W.2d 706, 714 (Tex. 1997). Further, t he reliabil ity requirement

of Rule 702 of the Texas Rule s of Evidence focuses on the pri nciples, re search, and methodology underlying an expert’s conclusions. In Couch , we held that expert testimony is unreliable if it is not grounded in the methods and procedur es of science and i s no more than subjectiv e b elief or unsupported specul ation. 108 S.W.3d at 341.
We continue our ana lysis by considering factors t wo, three, and five disc ussed i n Robinson with rel evant porti ons of Lustbade r ’s testimony . By hisdeposition, he acknowledg ed:

• he knew of no scientific s tudies or any published literature to support his causation opinion;

• he was unaware o f a ny prevailing aut hority th at discussed t he technique of usi ng a suture v ersus a sulc us method of adhesion;

• he ac know ledge d he had never publi shed an y ar

ticl e or co mme n t regarding the procedure o r his opini on;

• he did no t reca ll ever see ing a ny ar ticl e from a recognized journal that supported his opinion during the last 1 3 years;6

• he had never seen, diagnosed, read ab out, or studied a si tuatio n whereby an inferiorly dislocated l ens will cause a retinal detachment; and

• his opinion w

as based on his training and experience. Citing Gamm ill v. Jack Williams Chevr olet, Inc., 972 S.W.2d 713, 726 (Tex. 1998), Brazil contends the Robinson factors are not applica b le because Braz il’s sur gery w as unusual “for toda y” and that both ex perts agre ed the absence of medical liter ature and research into these sur gical ci rcumstances i s the result of continuing changes reg arding this type of surgery and how it is n ow pe rformed. However, alt hough Gammill suggests thatexperience may provide a sufficient basis f or an expert’s testimony in some cases, it also recognizes that such is not true in every case. Id . at 722. The fact that the expert’s opin ion has no t been published or evaluated in pro fessional journals does no t compel a determination that his opinion is wrong, however the absence of any

review or evaluat ion by third parti es renders hi s personal opi nion unreliabl e. See Couch , 108 S.W.3d at 341- 42.
To co nstit ute evidence of causation , an expert opinion must rest in reasonab le medical probability . Insurance C o. of North Amer ica v. Myers, 411 S .W .2d 7 10, 7 13 (T ex. 1966). Later, in Burroughs Wellcome Co. v. Crye, 907 S.W.2d 497, 500 (Tex. 1995), the Court acknowled ged the need to avo id opinions bas ed on speculatio n and conjectur e. Even assuming that

Lustbader’s op inion based on hi s personal ex perience in Washington D.C. is corr

ect, a questi on we do not dec ide, the absence of med ical literature at this time7

and general kn owledge in the medi cal co mmunity of the procedure recommended by Lustbadfer

renders a determination of the foreseeability element of proximate ca us e speculative. See Leitch v. Hornsby, 935 S.W .2d 114, 119 (Tex. 1996 ).
Brazil suggests that Marvelli v. Alsto n, 100 S.W.3d 460, 479 (Tex.App.--F ort Worth 2003, pet. denied), s upports his pos ition that the absence of medical l iterature does not render the opinion merely subjective and ipse dixit statements. However, Marvelli is not controlling because, consi dering the evidence presented ther e, the gatekeeper

concluded thatthe expert’s opinions were not merely subjective ipse dixit statements unsuppor ted by scientific principle or data and were reliable. Moreover , the Robinson factors do not constitute the legal e quival ent of a litmus test , but instead, furnish guideline s fo r the trial court to use in determinin g the relev ance and reliab ility requirements in dischar

ging its duty
as the ga tekeeper. Here, however, based on the evidence be fore it, in exercising it s discretion, the gatekeeper excluded the expert’ s opinion as to causation. Concluding that Brazil has not met his burden, we find the trial court did not abus e its discr etion in strik ing Lustbader’s expert testimony regardin g causation and, consequently signing the partial summary judg ment. Brazi l’s sole i ssue is overruled.
Acco rdin gly, the interlocutory order granting the no-evidence summary judg mentin part is affirmed.
Don H. Reavis Justice