Randalls Food and Drugs, Lp v. Sharon Kocurek ( 2006 )

Reversed and Remanded in Part and Memorandum Opinion filed September 28, 2006

Reversed and Remanded in Part and Memorandum Opinion filed September 28, 2006.

In The

Fourteenth Court of Appeals

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NO. 14-05-01184-CV

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RANDALLS FOOD AND DRUGS, L.P., Appellant

V.

SHARON KOCUREK, Appellee

On Appeal from the 405th Judicial District Court

Galveston County, Texas

Trial Court Cause No. 04CV1056

M E M O R A N D U M   O P I N I O N

This is an interlocutory appeal in a health-care-liability case.  A pharmacy, one of two named defendants, challenges the trial court=s denial of its objection to the plaintiff=s expert witness report.  Because the witness the plaintiff designated as an expert was not qualified to offer an expert opinion on the issue of causation, we reverse the trial court=s order as to the pharmacy, and remand for further proceedings consistent with this opinion.

I.  Factual and Procedural Background

Appellee/plaintiff Sharon Kocurek filed a health-care-liability claim against appellant Randalls Food and Drugs, L.P. (ARandalls@) and Dr. Paige Carlin, seeking to recover for injuries she claims to have sustained after Randalls allegedly mis-filled a prescription. Kocurek designated Dr. Ernest Lykissa, a toxicologist, as an expert witness.  Kocurek provided Dr. Lykissa=s written report, in the form of an affidavit, as well as his curriculum vitae.

Randalls and Dr. Carlin filed joint written objections to Dr. Lykissa=s qualifications as an expert and to the sufficiency of Dr. Lykissa=s written report, under Texas Civil Practice and Remedies Code sections 74.351 and 74.402.  Randalls and Dr. Carlin requested the trial court to dismiss Kocurek=s claims against them with prejudice under section 74.351 of the Texas Civil Practice and Remedies Code.  Kocurek responded by submitting an amended affidavit from Dr. Lykissa.  Randalls and Dr. Carlin filed a joint reply with an amended affidavit.  The trial court dismissed with prejudice all claims against Dr. Carlin under section 74.351.  In the same order, the trial court denied Randalls= request to dismiss Kocurek=s claims against Randalls with prejudice under section 74.351.

II.  Issues Presented

Challenging the trial court=s order denying its objection to Kocurek=s expert=s report, Randalls brings this interlocutory appeal raising the following issues:

(1)     Did the trial court abuse its discretion in denying Randalls= request that it dismiss Kocurek=s claims based on Randalls= objection to the qualifications of Kocurek=s expert witness?

(2)     Did the trial court abuse its discretion in denying Randalls= request that it dismiss Kocurek=s claims based on Randalls= objection to the sufficiency of Kocurek=s expert witness= report?

III.  Standard of Review

We review a trial court=s determination that an expert is qualified under an abuse-of-discretion standard.  Broders v. Heise, 924 S.W.2d 148, 151B52 (Tex. 1996). We also apply this same standard when reviewing a trial court=s decision regarding the adequacy of an expert report.  Am. Transitional Care Cntrs. of Tex., Inc. v. Palacios, 46 S.W.3d 873, 875 (Tex. 2001).  Kocurek, as the proponent of the expert, has the burden to show that the expert is qualified.  Olveda v. Sepulveda, 141 S.W.3d 679, 682 (Tex. App.CSan Antonio 2004, pet. filed).

The trial court abuses its discretion if it acts arbitrarily, unreasonably, or without reference to guiding rules or principles.  See Garcia v. Martinez, 988 S.W.2d 219, 222 (Tex. 1999). An abuse of discretion does not occur merely because the appellate court may have decided a discretionary matter in a different way than the trial court.  Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex. 1985).

IV.  Analysis

To support its contention that the trial court abused its discretion in denying its request that the trial court dismiss Kocurek=s claims under section 74.351, Randalls essentially contends that Kocurek failed to demonstrate that Dr. Lykissa was qualified to render an expert opinion on the issue of causation.  Under section 74.351 of the Texas Civil Practice and Remedies Code, a claimant, not later than the 120th day after the date a health care liability claim is filed, must serve on each party one or more expert reports addressing liability and causation. Tex. Civ. Prac. & Rem.Code Ann. ' 74.351(a), (j) (Vernon 2005).

To qualify as an expert witness who may render a report in a suit against a health care provider, the physician preparing the report must be qualified on the basis of training or experience to offer an expert opinion regarding the accepted standard of medical care for the diagnosis, care, or treatment of the illness, injury, or condition involved in the claim. Id. ' 74.402(b) (Vernon 2005).  In accordance with section 74.351(l), a trial court should grant a motion challenging the adequacy of an expert report if the report is not an objective good faith effort to comply with the definition of an expert report provided in subsection (r)(6). Id. ' 74.351(1).  Subsection (r)(6) of section 74.351defines Aexpert report@ as:

a written report by an expert that provides a fair summary of the expert=s opinions as of the date of the report regarding applicable standards of care, the manner in which the care rendered by the physician or health care provider failed to meet the standards, and the causal relationship between that failure and the injury, harm, or damages claimed.

Id. ' 74.351(r)(6) (emphasis added).  Thus, the expert report must address (1) the standard of care, (2) breach of that standard of care, and (3) causation.  Id.  The qualifications of the expert necessary to fulfill these criteria must be found in the expert report itself.  Am. Transitional Care Ctrs. of Tex., 46 S.W.3d at 878; Olveda, 141 S.W.3d at 683.   

To qualify as an expert witness on the issue of causation, the physician must be qualified to render opinions on that causal relationship under the Texas Rules of Evidence.  See Tex. Civ. Prac. & Rem. Code Ann. ' 74.403(a) (Vernon 2005); Longino v. Crosswhite, 183 S.W.3d 913, 917B18 (Tex. App.CTexarkana 2006, no pet.).  An acceptable report demonstrates the expert is qualified to do so. Tex. Civ. Prac. & Rem. Code Ann. ' 74.351(r)(5)(B). Subject to exceptions that do not apply in this case, section 74.403 requires that:

in a suit involving a health care liability claim against a physician or health care provider, a person may qualify as an expert witness on the issue of the causal relationship between the alleged departure from accepted standards of care and the injury, harm, or damages claimed only if the person is a physician and is otherwise qualified to render opinions on that causal relationship under the Texas Rules of Evidence.

Id. ' 74.403(a)(Vernon 2005)(emphasis added).  In section 74.401, Aphysician@ is defined as a person who is:

(1) licensed to practice medicine in one or more of the states in the United States; or  (2) a graduate of a medical school accredited by the Liaison Committee on Medical Education or the American Osteopathic Association only if testifying as a defendant and that testimony relates to that defendant=s standard of care, the alleged departure from that standard of care, or the casual relationship between the alleged departure from that standard of care and the injury, harm, or damages claimed.

Id.  ' 74.401(g).  Thus, at a minimum, to render an expert report as to causation, Dr. Lykissa, who is not a defendant in this case,  must be licensed to practice medicine in one or more of the states in the United States.^[1]

The expert report reflects that Dr. Lykissa has an undergraduate degree and a master=s degree in microbiology from California State University, and a Ph.D. in toxicology and experimental surgery from the University of Montreal.  The expert report, however, does not reflect that Dr. Lykissa works as a physician or is licensed to practice medicine in any of the states of the United States.  Therefore, under the plain language of the statute, Dr. Lykissa is not qualified to render an expert opinion regarding causation.  See id. '' 74.401; 74.403(a); see also Methodist Healthcare Sys. of San Antonio, LTD., LLP v. Martinez-Partido, No. 04-05-00868-CV, 2006 WL 1627844, at *3 (Tex. App.CSan Antonio June 14, 2006, no pet. h.) (concluding that although the expert previously had been certified by the American Board of Emergency Medicine, his inactive status coupled with a lack of specific information in either his report or his curriculum vitae about his expertise in the specific area in question, did not establish that his opinion Awould have risen above mere speculation to offer genuine assistance to the jury [and] did not establish that his expertise on the issue of cause in fact met the requisites of Rule 702@) (mem. op.) (not designated for publication).  Thus, Kocurek failed to establish that Dr. Lykissa was qualified to render an expert opinion on the issue of causation. Accordingly, we conclude that the trial court abused its discretion in denying Randalls= request that the trial court dismiss Kocurek=s claims against Randalls with prejudice under section 74.351 of the Civil Practice and Remedies Code.  We sustain Randalls= two issues on appeal.^[2]

V. Conclusion

We  reverse the trial court=s order of October 13, 2005, as to Randalls and remand with instructions to the trial court to render judgment dismissing with prejudice Kocurek=s claims against Randalls.

/s/      Kem Thompson Frost

Justice

Judgment rendered and Memorandum Opinion filed September 28, 2006.

Panel consists of Justices Anderson, Edelman, and Frost.

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^[1]  We note that another statutory provision, states that a Aphysician@ is defined as Aan individual licensed to practice medicine in this state.@  Tex. Civ. Prac. & Rem. Code Ann. ' 74.001(a)(23)(Vernon 2005) (emphasis added). However, because there is no showing that Dr. Lykissa is licensed in any of the states of the United States, we need not and do not address in this case the apparent conflict between sections 74.001 and 74.401 of the Civil Practice and Remedies Code.

^[2]  Because we conclude that Dr. Lykissa was not qualified to testify on the issue of causation, it is not necessary for this court to reach any of the statutory arguments brought forth by the parties regarding whether Dr. Lykissa was qualified to offer an opinion as to the standard of care or whether any standard of care was breached.