GABRIEL v. LOVEWELL
2005 WL 1240365
Court of Appeals of Texas, Texarkana
May 26, 2005
Summary of Opinion
The plaintiff's filly died shortly after weaning while in the care of a horse
farm where the dam was being bred. Plaintiff sues claiming that
defendant's negligent care caused the filly's death. This court affirms
the jury's verdict in favor of the plaintiff finding that the defendant's
inability to meet the fillys needs including transport to the vet was a
direct cause of the filly's death.
Text of Opinion
I. FACTUAL AND PROCEDURAL HISTORY
A. Summary and Background
In 1998, pursuant to contract, Lovewell bred his
mare, Shappas Delight, with the Gabriels' stallion, Clu Heir. The mare gave
birth in February 1999 to a filly, whose death is the subject of this appeal.
In March 1999, Lovewell took Shappas Delight to the
Gabriel Quarter Horse Farm so she could be bred to Clu Heir again. The filly
went with its mother. While there, the filly would be weaned from her mother,
and offers would be fielded for the filly's sale. Although apparently healthy
when she arrived at the Gabriels' farm, she became ill very shortly after she
was weaned, displaying symptoms of pneumonia and experiencing an elevated
temperature and diarrhea.
On Saturday, July 24, 1999, Ron called William
Gilbert, a veterinarian and partner at the Winnsboro Veterinary Clinic, to
come to the farm to look at the sick filly. Gilbert went to the farm and
ordered medication and fluids be administered to the filly. The parties
dispute what instructions Gilbert left with the Gabriels that day. On Monday,
July 26, 1999, the filly's condition worsened and Lana called David Howton,
also of the Winnsboro Veterinary Clinic and the primary veterinarian who had
been caring for the Gabriels' horses for ten to twelve years. Howton advised
Lana to bring the filly to the clinic, which Lana did at approximately 5:30
p.m. Lana testified this trip to the clinic from their horse farm takes
approximately one hour and fifteen minutes. Although the filly was able to
walk onto the trailer--with assistance--when she left the Gabriels' farm, she
was unable to stand or walk by the time she arrived at the clinic and was in
very poor condition. She died at approximately 8:30 p.m. Renal failure caused
by endotoxemia, stemming from colitis, was diagnosed as the cause of the
B. July 19-23 Treatment by the Gabriels
When the filly began suffering from respiratory
problems and diarrhea, and before Gilbert's visit to the horse farm, the
Gabriels administered the following medications to the horse: Rebound, Naxcell,
Erythromycin, and Banamine.
Rebound, according to Ron's testimony, is a generic
form of Probios, apparently an over-the-counter treatment for diarrhea.
Neither Gilbert nor Howton were familiar with Rebound. Ron conceded he did not
contact a veterinarian regarding this treatment, likening it to a human taking
Naxcell is an antibiotic with which the Gabriels
were treating the filly before Gilbert's visit on Saturday. Neither
veterinarian ordered the use of Naxcell. Gilbert did order the Gabriels to
continue giving the filly Naxcell, in addition to other medication and fluids.
The evidence does not indicate that Naxcell could have caused or contributed
to the horse's symptoms.
Erythromycin is another antibiotic often used by
the Gabriels when a horse develops a respiratory infection. Howton testified
this drug is "very prone to cause diarrhea." Gilbert also confirmed this
common side effect.
Ron testified he does not give antibiotics to a
horse without a doctor's order to do so. Specifically, he testified he does
not give Naxcell or Erythromycin without a veterinarian's orders. Ron
explained that, on this occasion, he must have noted the filly's elevated
temperature and called the clinic and was told to "[p]ut it on Erythro."
Howton testified that clients do not usually need to call about treating
respiratory problems with Erythromycin.
Although Ron testified that one of the
veterinarians must have prescribed Erythromycin for the sick filly, both
doctors deny having ordered it. Additionally, all parties deny there was a
standing order for the Gabriels to use Erythromycin when a horse experienced
respiratory problems. Howton testified, however, that Erythromycin is the
"standard protocol" on the Gabriel farm to treat a foal with respiratory
problems. Gilbert testified Erythromycin would probably have been appropriate
to give to this filly. He also testified that it was good that the filly was
taken off Erythromycin and that the Gabriels were directed to discontinue its
use. Howton agreed that use of Erythromycin was indicated under these
circumstances, at least until the filly suffered from diarrhea.
Banamine is an anti-inflammatory medication given
to treat an elevated temperature. Both Gilbert and Howton testified that use
of Banamine would have been appropriate here, where the horse was in decent
shape overall, but its temperature spiked. Gilbert's records, however,
indicate he did not prescribe Banamine for this filly. Howton testified it is
"possible" he (Howton) ordered it. He admitted that Banamine can cause
colitis, but further testified, "It's also the treatment of choice." He stated
that an evaluation of the benefits and side effects of Banamine is a balancing
act that a veterinarian must consider before administering it. Veterinarian
consultation before use, however, is vital, especially when a horse is
dehydrated. This special concern is due to the fact that Banamine is excreted
through the kidneys and can, therefore, lead to renal problems. Uremia is one
of those complications and is one which this filly suffered.
C. Gilbert's July 24 Visit and His Instructions
to the Gabriels
Gilbert testified the filly was in "pretty good
shape" during his visit on Saturday. He directed the Gabriels to discontinue
use of Erythromycin. He ordered them to continue giving Naxcell, and he added
Gentamycin, another antibiotic, to the horse's treatment. He also ordered that
the horse be given fluids. Finally, he maintains he instructed the Gabriels to
contact the clinic if the horse's condition did not improve.
Both doctors testified it is preferable in many
cases to treat a foal at its location as long as the facilities and help are
adequate. They added it is stressful for a foal to be transported during the
extreme East Texas summer heat. Gilbert testified he instructed the Gabriels
to call the clinic if the horse did not improve as far as eating, drinking,
responding to medication, and temperature decreasing.
D. July 25 and 26 Before the Filly's Transport
to the Clinic
Ron testified they followed Gilbert's instructions
regarding the horse's treatment. Gilbert testified he did not give the
Gabriels a choice as to whether the horse should receive the medication
ordered. According to the Gabriels' note cards, however, there is no
indication they gave the horse any medication on Sunday, July 25.
E. Transport to Clinic on July 26
Lana called the clinic when the filly's condition
worsened and her breathing became labored and rapid. Howton directed her to
bring the horse to the clinic because it sounded as though the filly was in
serious condition. He testified that he is able to run laboratory tests at his
clinic more efficiently and that he relies on laboratory results to give
thorough care in these instances. He further testified that, when the filly
arrived at the clinic late that Monday, she was already "trying to die" and,
although he administered several fluids and medications, he was unable to save
F. Medical Cause of Death
Despite Howton's efforts, the filly died two to
three hours after arriving at the clinic. According to Howton, the horse died
from renal failure brought about by complications from endotoxemia resulting
from Colitis X. Colitis X is the term used for the rapid onset of colitis, an
inflammation of the large intestine.
Howton testified to the many causes of Colitis X.
He said that, "[a]ccording to the so-called experts," the cause of colitis can
only be determined approximately twenty percent of the time. Antibiotic and
anti-inflammatory medication are two of the many causes of Colitis X. Both
doctors testified that no act or omission of the Gabriels caused the death of
G. Events Following the Death of the Filly
The morning following the filly's death, her body
was picked up by a stock removal company, processed, and ground into greyhound
food. Lovewell was not notified of this arrangement and did not consent to
disposal in such a manner.
H. Lovewell's Allegations
Lovewell brought suit against the Gabriels,
alleging sixteen specific theories of negligence. He alleged the Gabriels were
negligent by the following acts or omissions: 1) failing to have a trailer to
transport the sick horse; 2) failing to provide proper supervision and care
for the horse; 3) failing to provide care that was represented to be given
but, in fact, was not; 4) providing medication to the horse without
authorization; 5) administering improper medication to the horse; 6) failing
to adequately hydrate the horse; 7) administering medication to the horse
without knowledge of its side effects; 8) failing to have proper equipment to
care for the horse; 9) failing to properly supervise employees that cared for
the horse; 10) allowing the horse to become dehydrated; 11) allowing the horse
to become dehydrated and administering medication that had not been prescribed
by the Gabriels' veterinarians; 12) failing to take the horse to a place where
proper care could have been given, even though requested to do so by the
Gabriels' own veterinarian; 13) transporting the horse when it was not safe to
do so; 14) failing to seek immediate treatment for the horse when it had
diarrhea and pneumonia; 15) failing to properly wean the horse; 16) lacking
the basic knowledge to allow them to properly care for the horse. Lovewell
also alleged breach of an implied warranty to render services in a good and
I. Lovewell's Testimony on Conversation with
1. Previous Attempts To Get Hearsay Testimony
On two occasions, Lovewell attempted to introduce
testimony regarding statements Howton made to him. First, Lovewell tried to
introduce this testimony through his friend, Lee Barton, who was present with
Lovewell and Howton at the clinic during the conversation in question. Second,
Lovewell tried to introduce his own testimony concerning the conversation
between himself and Howton. Both times he argued that the statements were
admissible as statements by an agent of a party opponent. See
Tex.R. Evid. 801(e)(2)(D). Both times, the
trial court disallowed the testimony.
2. The Gabriels Open the Door
The Gabriels then elicited the following testimony
on direct examination of Howton:
Q. Do you remember, Dr. Howton, having any
conversations with Mr. Lovewell after the filly died?
A. Yes, sir.
Q. What do you remember about those?
A. Very little.
Q. Okay. Do you remember telling Mr. Lovewell that
the filly died because it wasn't brought in soon enough?
Q. Do you remember telling Mr. Lovewell the filly
died because of something Ron and Lana Gabriel did or did not do?
At this point, Lovewell argued the Gabriels opened
the door to the previously-rejected testimony regarding the telephone
3. Rebuttal Testimony Allowed
Outside the presence of the jury, the trial court
agreed the Gabriels' direct examination of their witness on his memory of
conversations with Lovewell opened the door to Lovewell's testimony about what
Howton said to him during that conversation. The Gabriels again urged their
objection to the testimony as hearsay. The trial court overruled the
objection. The jury was returned, and Lovewell was permitted to testify on
rebuttal that Howton attributed the death of the horse to the Gabriels'
failure to bring it to the clinic sooner:
Q. I want to take you back in time to when you went
to the clinic and spoke with Dr. Howton. Do you understand what I'm asking you
Q. Did you have a conversation with Dr. Howton--
A. I did.
Q. --at the clinic? Did you talk to him about his
opinions and his expressions about your horse that day when you first went up
A. Yes, sir.
Q. Did he provide you his opinions and his thoughts
about why your horse died?
A. Yes, sir. ....
Q. What did he tell you?
A. When he walked in, he shook hands with me and he
said, "This is a bad, bad deal. This should never have happened."
Q. Did he say why?
A. .... He said, "We had a vet out there Saturday.
We wanted to bring him to the clinic, gave the fluids, Ron Gabriel said he
didn't have a trailer, so he didn't bring it."
Q. Did you ask him whether or not that would have
made a difference, in his opinion?
A. Yes, sir.
Q. What did he say?
A. I said, "If he had brought it in there Saturday,
would the horse have died," and he said "No."
Q. Did you ask him about Sunday?
A. I did.
Q. What did he say?
A. He said, "He would have brought it in Sunday, it
would have had a lot better chance."
Q. Did you ask him about Monday? A. Yes, sir.
Q. What did he say?
A. "If it had been brought in Monday morning, it
would have had a lot better chance."
4. The Door Was Opened to Hearsay
"Opening the door" or inviting testimony that would
otherwise pertain to an inadmissible subject matter does not mean that such
testimony is necessarily invited into evidence in any form, including hearsay.
However, where such testimony pertains to the same subject matter and is
directly contrary to earlier testimony, it is admissible, including hearsay.
In the instant case, Lovewell's testimony pertained to the same subject matter
as did Howton's testimony and was directly contrary to Howton's testimony.
This evidence was clearly admissible for the limited purpose of impeaching
Howton's earlier testimony. The trial court properly admitted it over the
Gabriels' hearsay objection.
J. Jury's Findings
Although Lovewell alleged sixteen specific theories
of negligence, the jury charge properly included only one broad question on
negligence: "Did the negligence, if any, of those persons named below
proximately cause the occurrence in question?" The charge went on to define
"negligence" and "proximate cause." The jury answered yes as to both Ron and
Lana. The jury also found that the Gabriels failed to comply with a warranty
and that such breach was the producing cause of Lovewell's loss.
II. SUBSTANTIVE LAW
A. Proximate Cause, Producing Cause Compared
Negligence requires a showing of proximate cause,
while producing cause is the test when alleging a breach of an implied
Tex. Bus. & Com.Code Ann. § 17.50(a)(2) (Vernon
Helena Chem. Co. v. Wilkins, 47 S.W.3d 486, 502 (Tex.2001);
Read v. Scott Fetzer Co., 990 S.W.2d 732, 737 (Tex.1998);
Dredging, Inc. v. De-Kaizered, Inc., 120 S.W.3d 380, 391
(Tex.App.-Texarkana 2003, pet. denied).
Proximate cause and producing cause differ in that foreseeability is an
element of proximate cause, but not of producing cause.
Read, 990 S.W.2d at 737;
Parkway Co. v. Woodruff, 857 S.W.2d 903, 914 (Tex.App.-Houston [1st
Dist.] 1993), modified on other grounds &
901 S.W.2d 434 (Tex.1995).
B. Proximate Cause
Proximate cause consists of both cause in fact and
Read, 990 S.W.2d at 737. Cause in fact
means that the defendant's act or omission was a substantial factor in
bringing about the injury which would not otherwise have occurred.
Purina Mills, Inc. v. Odell, 948 S.W.2d 927, 936 (Tex.App.-Texarkana
1997, writ denied). The cause-in-fact element
of proximate cause is met when there is some evidence that the defendant's "
'act or omission was a substantial factor in bringing about injury' without
which the harm would not have occurred."
Read, 990 S.W.2d at 737.
Foreseeability, in the context of proximate cause,
requires that a person of ordinary intelligence should have anticipated the
danger created by a negligent act or omission.
Foreseeability in the context of causation asks whether an injury might
reasonably have been contemplated because of the defendant's conduct.
Foreseeability does not permit simply viewing the facts in retrospect and
theorizing an extraordinary sequence of events by which the defendant's
conduct caused the injury. Id.
Rather, the question of foreseeability "involves a practical inquiry based on
'common experience applied to human conduct.' "
Foreseeability requires only that the general
danger, not the exact sequence of events that produced the harm, be
Walker v. Harris, 924 S.W.2d 375, 377 (Tex.1996).
When causation facts are disputed, causation may be established by
circumstantial or direct evidence.
McMillen Feeds, Inc. v. Harlow, 405 S.W.2d 123, 130 (Tex.Civ.App.-Austin
1966, writ ref'd n.r.e.). The plaintiff need
not exclude every other possibility. Comty.
Pub. Serv. Co. v. Dugger, 430 S.W.2d 713, 719 (Tex.Civ.App.-Texarkana
1968, no writ). All that is required is proof
of a causal connection beyond the point of conjecture or mere possibility.
v. Physician's Gen. Hosp., 455 S.W.2d 703, 706 (Tex.1970).
C. Producing Cause
A producing cause is "an efficient, exciting, or
contributing cause, which in a natural sequence, produced injuries or damages
complained of, if any."
Roberts v. Healey, 991 S.W.2d 873, 878
(Tex.App.-Houston [14th Dist.] 1999, pet. denied). Common to both proximate
and producing cause is causation in fact, including the requirement that the
defendant's conduct be a substantial factor in bringing about the plaintiff's
However, producing cause requires a lesser burden than proximate cause because
it does not require foreseeability.
The Gabriels contend expert testimony was necessary
to aid the jury on the element of causation in this case. They argue that,
without such testimony, legally and factually insufficient evidence supports
the causation element to support the judgment against the Gabriels for
negligence or breach of implied warranty.
A. Necessity of Expert Testimony
A jury may decide the required causal nexus between
the event sued upon and the plaintiff's injuries when 1) general experience
and common sense will enable a layperson to fairly determine the causal nexus;
2) expert testimony establishes a traceable chain of causation from injuries
back to an event; or 3) expert testimony shows a probable cause nexus.
Weidner v. Sanchez, 14 S.W.3d 353, 370 (Tex.App.-Houston [14th Dist.]
2000, no pet.). In this case, many of the
circumstances surrounding the cause of the filly's death were matters within
the jury's common understanding. The jury was further aided by the Gabriels'
own experts' testimony in concluding there was a probable cause nexus between
the Gabriels' acts or omissions and the filly's demise. As Lovewell asserts,
this is not a veterinary malpractice case; the veterinarians were not the
defendants. The acts and omissions of Ron and Lana must be the focus of our
B. Scope and Force of Lovewell's Hearsay
1. No Limiting Instruction Requested
The Gabriels were entitled to a limiting
instruction concerning Lovewell's hearsay testimony contradicting Howton's
earlier testimony. The Rules of Evidence allow such an instruction to the jury
when evidence is admitted for a limited purpose.
Tex.R. Evid. 105. It is incumbent on the
opponent of the evidence to request such an instruction. In the absence of a
request by the opponent, the trial court's failure to instruct the jury cannot
be a ground for complaint on appeal.
Tex.R. Evid. 105. Here, the Gabriels did not
request the trial court give the jury a limiting instruction regarding the
purpose of this impeaching testimony by Lovewell, and the trial court did not
give one, either at the time the testimony was given or in the court's charge
to the jury. We must now assess the impact of Lovewell's testimony in light of
the absence of a limiting instruction.
2. Without Instruction, Testimony Was Considered
for Any and All Purposes
This Court has held that evidence admitted without
limitation comes into evidence for any and all purposes.
Cigna Ins. Co. v. Evans, 847 S.W.2d 417, 421 (Tex.App.-Texarkana 1993,
no writ). In Evans, a document was
offered into evidence for a limited purpose. The document was admitted over
Cigna's hearsay objections. The document was then read in its entirety to the
jury, but no instruction was requested or given to restrict the jury's
consideration of the document to a limited purpose.
appeal, Cigna claimed the document was admitted only for a limited purpose,
but this Court found that assertion was not supported by the record.
noted that the document was read in its entirety to the jury; that the court
did not state it was admitting the document for a limited purpose, nor did it
so instruct the jury; and that counsel for Cigna did not request such an
instruction or object to its absence. Id.
at 421. This Court held that, "In the absence of any directive to the fact
finder to consider a piece of evidence only for a limited purpose, the fact
finder may consider it for any and all purposes."
The Austin court relied on Evans to reach a
similar conclusion when evidence was admitted without a limiting instruction.
Owens-Corning Fiberglas Corp. v. Keeton, 922 S.W.2d 658, 660
(Tex.App.-Austin 1996, writ
[FN6] Most recently, the Amarillo court relied
on Evans to reach a similar conclusion. First United Bank v.
Panhandle Packing & Gasket, Inc., No. 07-04-0039-CV, 2005 Tex.App. LEXIS
1995, at *15-16 (Tex.App.-Amarillo Mar.16, 2005, no pet. h.).
Criminal cases have arrived at similar conclusions
with respect to evidence admitted without a limiting instruction. When
confronted with impeaching evidence admitted without limitation, the Texas
Court of Criminal Appeals plainly held that "once evidence is received without
a proper limiting instruction, it becomes part of the general evidence in the
case and may be used as proof to the full extent of its rational persuasive
Garcia v. State, 887 S.W.2d 862, 878 (Tex.Crim.App.1994)
(citing 1 Edward W. Cleary et al., McCormick on Evidence 4th Ed. § 54
(1992)); see also
Hammock v. State, 46 S.W.3d 889, 892 (Tex.Crim.App.2001).
The Fourteenth court, likewise, held that, if impeaching evidence is admitted
without a limiting instruction, it becomes part of the general evidence and
may be considered for all purposes. See
Arana v. State, 1 S.W.3d 824, 829 (Tex.App.-Houston [14th Dist.] 1999,
The rationale behind this rule is clear: We cannot
burden the jury with the task of limiting its consideration of certain items
of evidence when, although the evidence may have been intended to have a
limited purpose, the limitation was never communicated to the jury. "Jurors
cannot be expected to know exactly how to use the evidence unless we tell
them, nor can we guarantee that they will 'remain open-minded until the
presentation of all of the evidence and instructions.' "
Hammock, 46 S.W.3d at 893-94 (citing
Rankin v. State, 974 S.W.2d 707 (Tex.Crim.App.1996)).
3. Hearsay Testimony Can Support Judgment
We also rely on another rule of evidence to arrive
at our holding that Lovewell's testimony was before the jury for any and all
purposes. Even as inadmissible hearsay, once into evidence without limitation,
then it may support a judgment. Hearsay statements are not "incompetent"
evidence and, therefore, may support a judgment, whereas speculative and
conclusory expert testimony will not.
Coastal Transp. Co. v. Crown Cent. Petroleum Corp., 136 S.W.3d 227, 232
n. 1 (Tex.2004); Olympic Arms, Inc. v.
Green, No. 01-02- 00781-CV, 2004 Tex.App. LEXIS 11825, at *20 n. 7
(Tex.App.-Houston [1st Dist.] Dec. 30, 2004, no pet.).
4. Testimony Was Not Conclusory
Coastal Transport also brings another issue
into our consideration. While hearsay testimony is not incompetent and may
support a judgment, speculative and conclusory expert testimony will not. A
statement of an expert witness that had no facts to support the expert's
conclusions is insufficient to create a question of fact because it is not
credible or susceptible to being readily controverted.
McIntyre v. Ramirez, 109 S.W.3d 741, 749 (Tex.2003);
Ryland Group, Inc. v. Hood, 924 S.W.2d 120, 122 (Tex.1996).
Coastal Transport stands for the proposition that such evidence is
incompetent and cannot support a judgment. The Gabriels rely on Coastal
Transport's holding to argue that Howton's statements embedded within
Lovewell's testimony are conclusory and, thus, incompetent. They also contend
such statements do not constitute expert testimony as defined by
Rule of Evidence 702.
Even if Howton's statements to Lovewell do not
qualify as expert testimony under
Rule 702, such statements included a factual
basis and had probative value. The record shows that Gilbert, Howton's partner
at the clinic, had been called to the Gabriels' farm on Saturday, July 24, to
treat the ailing horse. The record further shows that, on that day, Lana had
taken the farm's trailer out of town to a horse show and their trailer was
therefore not available to transport the horse to the clinic. Howton testified
that he had been a practicing veterinarian for several years and that he
provided a great deal of veterinary care for the Gabriels' quarter horse farm.
More specifically, Howton testified he treated the filly on the day it died.
He also testified the horse was severely dehydrated on its arrival at the
clinic. There is ample factual basis in the record for Howton's statements to
C. Sufficiency of the Evidence
We hold that Lovewell's testimony was before the
jury for any and all purposes and now turn to a review of the entire record
with this in mind.
1. Standards and Scope of Review
When both legal and factual sufficiency issues are
raised, the court should review the legal sufficiency first to determine
whether there is any probative evidence to support the jury's verdict.
Glover v. Tex. Gen. Indem. Co., 619 S.W.2d 400, 401 (Tex.1981).
a. Legal Sufficiency Review
We consider all the evidence in the light most
favorable to the jury's verdict, indulging every reasonable inference of the
Associated Indem. Corp. v. CAT Contracting, Inc., 964 S.W.2d 276,
285-86 (Tex.1998). A point challenging the
legal sufficiency of the evidence will be sustained only when 1) there is a
complete absence of evidence of a vital fact, 2) the court is barred by rules
of law or evidence from giving weight to the only evidence offered to prove a
vital fact, 3) the evidence offered to prove a vital fact is no more than a
scintilla, or 4) the evidence conclusively establishes the opposite of a vital
Merrell Dow Pharms., Inc. v. Havner, 953 S.W.2d 706, 711 (Tex.1997).
b. Factual Sufficiency Review
In a factual sufficiency review, we must consider
all the evidence in the case in a neutral light to determine whether the
jury's verdict is so against the great weight and preponderance of the
evidence as to be manifestly unjust.
Lofton v. Tex. Brine Corp. ., 720 S.W.2d 804, 805 (Tex.1986).
2. Legally Sufficient Evidence
Because Lovewell's hearsay testimony carries full
probative force, the jury could rely on that testimony for causation. To
support this conclusion, there is also testimony, as noted above, that Lana
was out of town at the time and that she had with her the farm's horse
trailer. Therefore, we cannot conclude there is a complete absence of a vital
fact. Additionally, as we have discussed in detail, the Rules of Evidence do
not prevent us from giving weight to Lovewell's testimony concerning what
Howton told him. Failure to have a trailer to transport the sick horse and
failure to take the horse to a place where proper care could be given were
specific acts of negligence alleged by Lovewell against the Gabriels, and this
evidence specifically supports those allegations.
Likewise, we cannot conclude that this record
conclusively establishes the opposite of a vital fact. The opinion testimony
of expert witnesses, even though not contradicted by an opposing expert, is
generally held not to be binding on the trier of fact if more than one
possible conclusion can be drawn from the facts.
Gregory v. Tex. Employers Ins. Ass'n, 530 S.W.2d 105, 107 (Tex.1975);
Exxon Corp. v. West, 543 S.W.2d 667, 672 (Tex.App.-Houston [1st Dist.]
1976, writ ref'd n.r.e).
[FN9] Even when the subject matter of the
expert's testimony is such that the trier of fact must be guided solely by the
opinion of experts, the opinions given by the expert witnesses may be regarded
as conclusive only if they are otherwise credible and free from contradiction
and inconsistency. Lovewell's testimony, at a minimum, diminished Howton's
credibility and certainly contradicted both Gilbert's and Howton's testimony
regarding the cause of the horse's death. That being said, the jury was free
to draw its own conclusion based on the expert testimony before it of the
Gabriels' treatment and care of Lovewell's horse.
The testimony concerning the medications and the
manner in which they were administered is additional evidence the jury was
entitled to consider. This evidence included the testimony of the Gabriels'
own experts that some of these medications have the propensity to cause the
very symptoms from which this filly died. Howton testified Erythromycin is
"very prone to cause diarrhea." Ron testified he administered this antibiotic
to the filly and, although he further testified he never administered
antibiotics without a veterinarian's prescription, both doctors, Gilbert and
Howton, denied ordering this medication. The Gabriels also gave this horse
Banamine. Gilbert denied ordering Banamine, and Howton said it is "possible"
he ordered it. Howton testified that Banamine can cause colitis and that
veterinarian consultation before its use is vital, especially when a horse is
dehydrated. He said this special concern is due to the fact Banamine is
excreted through the kidneys and can, therefore, lead to renal problems.
Uremia is one of those complications and is one which this filly suffered.
Further, the Gabriels' records showed that no
medications were administered to this filly on Sunday, July 24, the day before
the horse died. The jurors could reasonably infer from this evidence that the
Gabriels failed in part to follow Gilbert's instructions in their treatment of
Finally, the evidence showed that, even though
Howton knew the filly was not owned by the Gabriels, its body and a blood
specimen taken from the horse were promptly destroyed without Lovewell's
knowledge or consent. This was done without a necropsy having been performed
and without an independent analysis of the blood specimen. The jurors were
entitled to consider this evidence, along with the long-standing business
relationship Howton had with the Gabriels, in drawing inferences that
reasonably support the verdict.
The jurors were entitled to consider all this
evidence in light of their own general experience and common sense and
conclude that the Gabriels' acts or omissions were a substantial factor in
bringing about the injury (the death of the horse), without which acts or
omissions the harm would not have occurred. See
Read, 990 S.W.2d at 737. Viewing the
evidence in a light most favorable to the verdict, we conclude it was legally
sufficient to support the jury's verdict.
3. Factually Sufficient Evidence
The record reveals that the jury relied on
Lovewell's testimony about his conversation with Howton to some extent, as
indicated by notes to the trial court during deliberations. Additionally, we
again note the record shows that Lana had taken the farm's trailer out of town
to a horse show for a few days and that the trailer was not there on Saturday,
July 24. Ron testified as to the availability of trailers at his property,
indicating that, even if the farm's trailer was being used, he had access to
several owners' trailers left on his property or he could have borrowed one
from a neighbor. The jury, however, could have disregarded this testimony. A
jury is free to believe or disbelieve the testimony of any witness, or any
part of a witness' testimony.
Both veterinarians testified to the possible side
effects of the drugs administered by the Gabriels. In other words, their
testimony established that the drugs have the propensity to cause some of the
ailments suffered by the horse. But they both also testified that the drugs
did not in this case. The veterinarians both testified the Gabriels did not
cause the death of the horse. However, as we previously concluded, the
Gabriels' experts' testimony on the cause of the filly's death was not
conclusive on the matter. In light of Gregory and West, the jury
was free to disregard the veterinarians' trial conclusions. Considering all of
the evidence in a neutral light, we cannot conclude the jury's verdict was so
against the great weight and preponderance of the evidence as to be manifestly
In summary, the impact of the admission of
Lovewell's testimony concerning his conversation with Howton is at least
two-fold. First, without having been limited before the jury, the testimony
carries full probative weight. This testimony, together with the other
evidence and its logical inferences, renders the evidence legally and
factually sufficient to support the jury's verdict in favor of Lovewell.
Second, Lovewell's hearsay testimony undermines the experts' testimony that
the Gabriels' acts or omissions were not the cause of the horse's death and,
thus, eliminates the conclusive nature that the experts' testimony likely
would have had otherwise. For these reasons, we conclude the evidence is
legally and factually sufficient to support the jury's verdict.
We affirm the judgment.
JACK CARTER, Justice, dissents.
The central issue in this case is whether alleged
acts of negligence by the Gabriels caused the death of Lovewell's filly.
Though Lovewell presented no expert testimony, the majority nevertheless
concludes the evidence is legally and factually sufficient to support the
jury's finding of negligence and proximate cause. The majority reaches this
conclusion after holding Lovewell was not required to present expert testimony
on the issue of causation. Because I disagree with that assessment of the law,
I respectfully dissent.
Lovewell's suit against the Gabriels alleged
sixteen theories of negligence. A cause of action for ordinary negligence
requires a showing (1) that the defendant owed the plaintiff a duty recognized
by law, (2) that there was a breach of that duty, (3) that the breach of the
defendant's duty proximately caused injury to the plaintiff, and (4) that the
plaintiff suffered actual loss or damages as a result of the defendant's
Southwest Key Program, Inc. v. Gil-Perez, 81 S.W.3d 269, 273-74
(Tex.2002); Sunbridge Healthcare Corp. v.
Penny, No. 06-03-00124-CV, 2005 Tex.App. LEXIS 1887, at * 26
(Tex.App.-Texarkana Mar.11, 2005, no pet.). "An essential element of the
plaintiff's cause of action for negligence, or for that matter for any other
tort, is that there be some reasonable connection between the act or omission
of the defendant and the damage which the plaintiff has suffered. Prosser, Law
of Torts (3rd Ed.) 240-241, 'Causation', 41 (1964)." E.
Tex. Theatres, Inc. v. Rutledge, 453 S.W.2d 466, 468 (Tex.1970).
Lovewell alleged that the Gabriels committed acts
or omissions that proximately caused the death of the horse. Therefore, proof
of the cause of the death of the horse was required. The majority opinion
states that the circumstances surrounding the cause of the filly's death were
matters within the jury's common understanding. In this case, the evidence
shows that the horse died from renal failure due to complications from
endotoxemia resulting from Colitis X. May a jury make the determination,
without expert testimony, that the actions or omissions of the Gabriels were
the cause in fact of the horse contracting Colitis X causing endotoxemia and
renal failure and ultimately death? The veterinarians testified that no act or
omissions of the Gabriels caused the death of the horse. It is undisputed that
there are many causes of Colitis X. The Texas Supreme Court has stated:
In determining the question of proximate cause, the
general rule is "that proof of causation must be beyond a showing of a
possibility that the injuries arose from the defendant's negligence or lack of
skill, since the jury will not be permitted to speculate as to the cause of
the injury. Thus where the evidence most favorably to the plaintiff develops
more than one equally probable cause, for one or more of which defendant is
not responsible, the plaintiff has failed to sustain his burden of proof."
Hart v. Van Zandt, 399 S.W.2d 791, 792-93 (Tex.1965)
(quoting 13 A.L.R.2d 22) (superseded by statute on other grounds, see
Peterson v. Shields, 652 S.W.2d 929, 930 (Tex.1983)).
Though not precisely on point, a recent decision by
the Second Court of Appeals supports the Gabriels' position that Lovewell was
required to present expert testimony at trial regarding causation. In McGee
v. Smith, a horse owner sued a veterinarian for negligent care that
allegedly led to the death of a foal.
107 S.W.3d 725, 726-27 (Tex.App.-Fort Worth 2003, pet. denied).
The horse owner offered no expert testimony at trial on the element of
Id. at 727. Instead, the owner "relied
on his own testimony and that of his father-in-law. Although both men had been
involved in the horse industry for many years, neither was qualified as an
expert in veterinary medicine." Id.
The court of appeals wrote that veterinary malpractice cases, like medical
malpractice cases, require the plaintiff to provide expert testimony to prove
causation "unless the form or mode of treatment is a matter of common
knowledge, or the matter is within the experience of a layperson."
McGee court ultimately held the dearth of expert evidence on behalf of the
plaintiff's case was insufficient to support the jury's verdict.
Id. at 728.
The court then reversed the trial court's judgment and rendered a
take--nothing judgment for the veterinarian.
Given the facts of this case--the array of drugs
(Rebound, Naxcell, Erythromycin, Banamine, Ampicillin, and Gentamicin) that
had been recently administered to the horse, the side effects of those drugs
to create or exacerbate other life-threatening illnesses, the short onset of
death (less than one week passed from the onset of symptoms until the filly's
death), the complex nature of the disease, and the treatment by multiple
veterinarians and other care providers--I believe that understanding the
proximate cause of the filly's death would be outside the purview of a
layperson's common knowledge or experience. Jurors do not commonly have
experience in diagnosing the cause of a disease or ailment, especially in
equines. Without expert testimony, the jury must engage in speculation to
conclude that the actions of the Gabriels proximately caused the death of the
horse. Even if there is evidence of the Gabriels' negligence, there must be a
connection between the negligence and the death of the animal. In cases
involving the diagnosis and progression of a disease leading to death, that
connecting link is supplied by expert testimony. See
Ins. Co. of N. Am. v. Myers, 411 S.W.2d 710, 713 (Tex.1966);
Ins. Ass'n v. Gallegos, 415 S.W.2d 708, 711 (Tex.App.-San Antonio 1967,
no writ). I believe the causal nexus between
the alleged acts of negligence and the death of the filly should have been
established and supported by expert testimony presented during Lovewell's
Though this is not a malpractice case, the facts
and issues are more than sufficiently akin to the complex area of veterinary
science that I believe similar expert testimony was essential to aid the jury.
I do not believe there is any probative evidence to support the jury's finding
on causation and, therefore, the case should be reversed and rendered.
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