NO. 07-02-0278-CV IN THE COUR

T OF APPEALS FOR THE SEVEN TH DISTRICT OF TEXAS

AT AMARILLO PANEL B MARCH 31, 2003

______________________________ RODNEY C OUCH, IND IVIDUALLY A ND AS NEXT FRIEND FOR TESSA COUCH, APPELLANT V. JOHN PAUL S IMMONS, M .D. AND C OVENANT MEDI CAL GROUP, A PPELLEES

_________________________________ FROM THE 237 TH DISTRIC T COURT O F LUBBOCK COUNTY; NO. 2001-512,394; HONORABLE SAM MEDINA, J UDGE

_______________________________ Before JOHNSON, C.J., and QUINN and CAMPBE LL, JJ.
OPINION Rodney Couch, indiv idually and as next fri end of Tessa Couch, a minor, and Kathy Adams, intervenor , appeal from a take- nothing summary judgment in t heir medical malpract ice sui ta g a i n s tJ o h n P a u l S i m m o n s , M

. D

. a n d C o v e n a n tM e d i c a l G r o u p . We affirm.2 BACKGROUND Rodney Couch, indi vidu ally and as next friend of Tessa Cou ch, a minor, filed suit against defendants Joh n Paul Simmons, M.D. and Covenant Medical Gr oup alleging that Simmons was negligent in his treatment of Tessa. Coven ant Medical G roup was al leged to have been the e mployer of Simm ons, and w

as s ued o n thebasi s of respondeat super ior

. References to Si mmons will encompass Covenant unless noted otherwis e. Rodney is Tessa’s father. Kathy Adams, T essa’s mother, intervened . For convenience, references to Rodney w ill be inten ded to include Kathy unless specifically noted otherw ise.
On January19, 2000, Tessa was undergoing physical therapy foll owing s urgery on her right kn ee. She devel oped a headache, weakness, confusion, tingling of her right arm and leg, and beg an vomiting . She was taken to the emerg ency room of Cov enant Medical Center, where she was seen by Dr. Kowaleski, the emer genc y room physician. Dr. Kowaleski ordered tests , req uested consultat ion by Dr . Simmons, a neurol ogist, and admitted Tessa to the hospital in the ca re of Dr. Simmons. Kowaleski’s orders i nclude d neurological examinations every four hours. Si mmons assumed Tessa’s care and first saw her shortly

after 7:00 p.m. on the evening of J anuary 19th

. At 7:30 a.m. on the morning of January 20th , Tessa wasfound to have weakness in her right leg; she was u nable to squeezeher rig ht hand; and she w ould not respond verba lly. Simmons was notified and ordered an EEG. The test f indings were abnormal. Simmons ordered Tessa transfe rred to the pediatric intensive care unit. He ex amined her1 An ische mi c stroke occurs w hen tissue isdamaged because of l ack of sufficient

blood flow to the t issue

. The disruption of blood flow can result from one or more of several causes, including a clot in the blood vessel or nar rowing of the vessel due to disease or sp asm. 3 shortlyafter noon. He then orde red administration of f luids intravenously and furt her studies. The studies indicated tha t Tessa had suffered an ischemic stroke of the brain. 1
Suit was filed alleging that Dr. Si mmons was neg ligent in his treatment of Tess a. The negligence allegations were supported by testimony from Robert Snodgrass, M.D., a professor

of pediatric neur

ology. As relev ant to this appea l, Sno dgrass opi ned that Simmons failed to meet the a ppropri ate stand ard of care by failing to t imely admini ster intravenous

fluids to Tessa, and that if IV fluids had been timely

administered t he chances
were “9 out of 10" that Tess a would have had either no s trok e or a lesser s troke wi th a smaller amount of brain inj ury from the s troke. In his deposition, Snodgrass expressed his opinion that Tessa’s s troke was a progr essive s troke whi ch began duri ng her physical therapy session, before she sought treat ment at the emergen cy room or was attended by Simmons. Citing E.I du Pont de Nemours and Co. v. Robinson , 923 S.W .2d 5 49 (T ex. 1995) and its progeny , Simmons moved to strike the testim ony of Snodgrass, plaintiff s’ sole expert, as to the caus al relations hip between S immons’ alleg ed failure to timely admi nister IVfluids and the ef fects of Tessa ’s stroke . Simmons als o filed an orig inal, then an amended, no-evidence motion for summary judgment. The motion for summary judgment hinged in part on the trial court’s ruling as to Snodgrass’ testimony. Because Sno dgrass
was Rodney’s onlyexpert w itness, if Snodg rass’ testi mony as to caus ation wasstricken,2 Simmons maintains that he conte sts other allegations made against him, such as

the allegatio n that he breached the standard of car e. Because of the postu re of the appeal 4 R odney had no evidence to prove Simmons’ alleged ne gligence was a proximate ca us e of the effects of Tessa’s str oke and the damagessought.
The trial cour

t granted Si mmons’ motion to st rike, gr anted his motion for summa ry judgment and ren dered a take-not hing judg ment. Rodney presents four i ssues by w hich he urg es that the t rial cour t abused its discretion: (1) in appl ying the Robinson test to Snodgr ass’ testimony

instead of what

he refers to as an “anal ytical g ap” test enunciated in Gammill v. Jack W illiams Chevrolet, Inc. , 972 S.W .2d 713, 726-27 (Te x. 1998); (2) in finding that Sno dgrass’ testimony did not meet the Robinson test for reli ability; (3) by allowing Simmon s to file a motion fo r summary judgment

after the scheduling ord er’s d eadline for filin g disposit ive motions ; and (4) by refusing to grant Rodney an opportunity to obtain anothe r expert witness. We will address the issues i n the order pr esented.
ISSUES 1 & 2: RELIABILITY OF DR. SNODGRA SS’ CAUSA TION T ESTIMO NY
For an expert' s testimony

to be admissibl e under Texas Rule of Evidence 702, the expertmust be qualified, and t he expert's opinion must be r

elevant to t he issues in the
case and based upon a reliable foundation. See T EX . R. E VID . 702; Exxon Pi peline Co. v. Zwahr , 88 S.W.3d 623, 628-29 (Tex. 2002) ; Gammill , 972 S.W.2d at 720; Robinson , 923 S.W .2d at 556. As pertinent to th is appeal, 2 Simmons challeng ed the reliabi lity ofbefore us, t he on ly issu e we address is Snodgrass’ testimony as to causation. W e express

no opinion on any

other issue. 5 Snodgrass’ testimony as to a causal r

elationship bet

ween the al leged b reach of the appropriate standard of care by Simmons and the damage to Tessa from the stroke . Thus,
we consider only the reliabi lity r equirements of R ule 702. See Zwahr , 88 S.W.3d at 629. The burd en of showin g the r elia bilit y of S nod grass ’ test imon y i s on Ro dney. See Robinson , 923 S.W.2d at 556.
Rule 702 's r eliability

requirement

focuses on the pri nciples, re search, and metho dology underlying an expert's conclusions. See Zwahr , 88 SW.3d at 629; Robinson , 923 S.W.2d at 557. Under such r equir eme nt, expert testimony i s unreliabl e if it is not grounded in the methods and p rocedures of sci ence and is no more than subjective belief
o r unsupported spec ulation. See Zwahr , 88 S.W.3d at 629 . In applying this reliabili t y standard, the trial court determines whether the ana ly sis used to reach the opinions in question is relia ble. See id ; Gammill , 972 S. W.2d at 728. E xper t test imo n y is also unreliable if there is to o g rea t an analyti cal gap betw een the data the ex pert relies upon and the opinion offered. See Zwahr , 88 S.W.3d at 629 ; Gammill , 972 S.W.2d at 727.
We review

the trial court's decis ion to admit or exclude the testimony and opinions in question us ing the abuse of discr etion standard. See Zwahr , 88 S.W.3d at 629. Thus,
we review t he tri al court’s decision to exclude Dr. Snodgrass’ testimony to determ ine if
some evidence s upports the deci sion, see Bocquet v. Herri ng , 972 S.W .2d 1 9, 21 (Tex. 1998) , and to determine whether the trial court acted wit houtreference to any guiding rules6

and principles

. See Craddock v . Sunshine BusLines , 134 Tex. 388, 133S.W.2d 124, 126 (1939).
The validity of the causatio n que stion as to IV fluid administra tion is directly addressed in an affidavit fro m Snodgrass w hich was submitted by Rodney in op positi o n to Simmons’ motion to stri ke and motion for summar y judgment. First, S nodgrass note d that“The theory is that normal ization of pl asma volume by vigor ous IV hydrati on improves stroke outcome.” He also stated “This concept has not been dir

ectly tes ted. Physi cians
are unwilling to deprive patients of IV fluids, as would be needed in the control g roup.” Yet , he proceeded to notethat “The theory has been subject

to peer rev iew and publ ication.” He referenced sev

eral peer r

eview articles an d attached some of those articles.
In attacking Snodgrass’ testimony, Simmons points outthat sever al of the articl es do notdirectly

address the ca usal relati onship betwe en failure to admini ster IV fluids and effects of the strok e. Simmons cites t wo of the peer r

eview articles w hich address the question and which conclude, in par t, that (1) administrati on of fluids affects blood flow and hemodynamics to the brain, but (2) no sp ecific beneficial relationshi p has been establishe d between administrati on of IV fluids and stroke outcome. Simmons further mai ntains that Snodgrass has not establi shed sufficient personal experience in the effects of delayed IV fluid administration to render his opinion reliable under Gammill

. The pe er revie w artic les in ques tion werebefore the trial court, along with a deposition from Snodgrass and his affidavit. The tr ial court could have determined that the peer review articles did not support Snodgrass’ causation testimony. Also, Snod grass’3 The pee r rev iew articles referenced by Snodgrass indicate that stroke rate s,

recommended treatment moda lities and r esults var

y wi th age and other

factors. 7 affidavit and depo sition test imony would support a conclusion by the trial court that Snodgrass did not

evidence sufficient prior personal ex perience w ith, or study of the results of, failing to timely administer IV fluids to teen agers suffering strokes. 3 The trial court also
cou ld have co nsidered the r eliability of the causation opi nions in li ght of Snodgras s’ (1) testimony

that the theory had not been directly tested; (2) conclusion that with timely administrati on of IV fluids Tessa p roba bly would have had either no str oke or a less er stroke with a s maller amount of brain injur

y; ( 3) fail ure tospeci fy w hich o utcome was more likely (no stroke or a lesser

stroke); an d (4) testi mony that he c ould not s peci fy

how much less the injury would have been if the result of timely IV fluid administra tion had be en a lesser str

oke instead of prevention of the stroke.
The evidence s upported a conclusion by the trial court that the causal relationship between the lack of w hat Snodgrassreferred to as timely IV fluid ad minist ration and the outcomeof Tessa’s s tro ke was a t heory to w hich Snodgra ss adhered, but w hich he had nottested and on w hich he had insu fficient person al experi en ce to render hi s causation testimony

reliable. Assuming, arguendo , that Snodgra ss’ testimon y sh ould have been considered under what Rodney ref ers to as t he “ana lytical gap” m ethod ology of Gammill , the record affords sup port for the trial court’s striking of the testimony

. See Gammill , 972 S.W.2d at 724-25.
In rev iew ing the r

ecor d und er t he g uida nce o f Robinson and i ts six non-exclusi ve factors, we note that Snodgrass’ affida vit specifically addressed each of the six facto rs.4 Atoral submiss ion Rodney’ s counsel stated th at the cla im being made w as that timelyadministration of IV f luids would have resul ted in a better result for Tess a, not that her stroke w

ould have been p revented. 8 Thus, the trial court had before it Snodgrass’ attempt to val idate the theory both a s to standard of care and as to causation. The af fidav it stated that t he theory had not been directlytested to determine what resulted from the failure to tim ely administer IV fluids. However, two of the peer review articles before the court addresse d studie s of case historieswhich contradicted Snodgrass’ opinion that admi nistration of IV flui ds wou ld ha ve caused a better r

esult for Tessa. 4
We cannot say

that there was no evidence to support thetrial cour t’s conclus ion that Rodney did not prove the testimony to be reliable. Thus, the trial court did not abuse its discretion in strik ing Snodgr ass’ causati on testimony under the gui ding princ iples of Robinson . We overrule Rodney ’s first and s econd issues.
ISSUE 3: LATE FILING OF MOTION FOR SUMMARY JUDGMENT Rodney’s third issue urg es that the trial cour t abused its di scretion in allowi ng Simmons to file a motion for summary judg ment after the date set by a prior scheduling order for filing di spositiv e motions. Rodne yalso complains that under this record Simmons’ motio n to strik e was a di spositiv e motion and that the trial cour t abused its discretion in allow ing that moti on to be filed late.9

The trial cour

t signed a s cheduling order dated March 9, 2001. The order directed thatall motions w hich, if gr anted by the court, woul d dispose of part or all of the case, be filed by January 11, 2002. The order also provided that th e dates set in the sch eduli ng order could no t be changed w ithout the cour t’s approval.
On February 22, 2002, Simmons f ile d a motion for summary judgment combin ed with objectionsto the expert opinions of Dr. Snodgrass on causation and a mot ion to strike the opinions. On February 25, 2002, the trial cour t signed an amend ment to its schedul ing order an d changed the trial setting from March 29, 2002, to June 3, 2002. On February 25th , Rodney filed a motion to stri ke Simmons’ motion to strike Snodgrass’ testimony an d for summary judg ment because it w as untimely

filed. Various pleadings and motions were filed and orders entered thereafter, culminat ing with an order signed on May 31stgranting Simmons’ motion to strike and motion for summary judgment. Rodney filed an objection to the trial court’s action. The trial court heard Rodn ey’s objection on J une 7th

. As a result of the June 7th hearing, t he trial cour t signed an or

der dated June 17th which ( 1) set aside the May 31stord er, (2)extende d thedead lin e for fi li ng disposi tive motions , (3) denied Rodn ey’ s m otion to strike Simmons’ motio n for summary judgment and Snodgrass’ test imon y, (4) gr

anted Simmons’ motio n to strike, and (5) gr anted Simmons’ motio n for summary judg ment

. The parties ag ree that wereview the trial court’s ac

tion for abuse of dis cretion. Both parties cite Clanton v. Clark , 639 S.W.2d 929 (Tex. 1982) for the proposition t hatthe trial court has wide dis cretion to mana ge its docke t. Beyond citing Clanton , howeve r, Rodney does not call our attention to any authori ty supporti ng his reques t that we i nterfere wi th the10

trial court’s manag ement of its docket. More speci fically, h e does not citeauthority which (1) allows us to set aside the t rial court ’s order g ranting an extensio n of time for Simmons to file the motions i n q u estion, or ( 2) prevents the trial court from chang ing the date for filing dispositive motions, which seemingly is contemplated by the schedul ing order itself which states that the dates canno t be changed “without the court’s approval.”
Failure to either cite authori ty, expl ai n why no authority is cited, or advance subs tant ive analysis

waiv es the issue on appeal. See T EX . R. A PP . P. 38.1(h); Mose r v. Davis , 7 9 S.W.3d 162 , 169, 170 (Tex. App.--Amaril lo 2002, no pet.) ; In re Willi ams , 998 S.W .2d 724, 730 (Tex.App. --Amarillo 1999, no pet.). Rodney does not explain w hy he cites

no authority

for his issue o ther than authori ty for t h e s t a n d a r d o f r

e v i e w . We consider ci tation to a si ngle case for the standard for review to be insufficient ci tation of authority

to c ompl y w ith the m anda te of T EX . R. A PP . P. 38.1(h) and the authoriti es cited above. We overrule issue t hree.

ISSUE 4: FAILURE TO GRANT TIME FOR RODNEY TO OBTAIN ANOTHER EXPERT By his fourt h issue Rodney compl ains that the trial court should have granted him time to obtain anoth er expert after Simmons’ motion to strike Dr. Snodgr ass’ causati on testi mony

was gr anted. He poses no standard of rev iew for us to use and c ites n o authority either for a standard of review or for his substantive assertion of error. Nor does he claim that he reques ted a continuance or in any other manner advised thetrial cour

t of its alleg ed error.11

To preserv e a complaint for ap pellate review, a party must present to the trial court
a time ly r eq uest, motion, or objection, state the specific grounds ther efor, and obtain a ruling. See T EX . R. A PP . P. 33.1; Holland v. W al-Mart Stores, Inc. , 1 S.W.3d 91, 94 (Tex. 1999). In re C.O.S. , 988 S.W.2d 760, 764-65 (Tex. 1999); General Chem. C orp. v. D e La Lastra , 852 S .W .2d 9 16, 9 20-2 1 (Te x. 1993). Rodney did not do so. Mor eover, failure to cite authority

or explai n the absence of such citation waiv es the issue on appeal. See T EX . R. A PP . P. 38.1(h); Moser , 79 S.W.3d at 169, 170 . We overrule issue four

. CONCLUSION Having overrul ed Rodney’s four issues, w

e affirm the judgment o f the trial cour t.

Phil Johnson Chief Justice