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Buls v. Fuselier8/14/2001
Jennifer Buls appeals from a take-nothing judgment in her suit against Charles Fuselier, D.P.M., for negligent rendition of health care services during two podiatric surgeries. On appeal Buls contends the trial court erred by: excluding certain parts of her experts' testimonies, overruling the challenges for cause of two jurors, and submitting the inferential rebuttal defenses of "sole proximate cause" and "new and independent cause" in its jury charge and allowing expert testimony regarding these issues. We overrule each of these points of error and affirm the judgment of the trial court.
Buls was first examined by Fuselier in November 1994, after receiving treatment from other doctors for various podiatric ailments such as knots on the top of both her feet, calluses on the bottom of both her feet, and the formation of bunions on both her feet. After going to the emergency room with severe foot pain, Buls had Fuselier perform surgery to correct the bunions and hammertoes on both feet, as well as remove the knots from the top of both her feet and the calluses from the bottom of both her feet. Despite Fuselier's preference that the surgeries be performed on only one foot at a time, Buls requested that both feet be operated on during the same visit. Buls had surgery on both feet on December 14, 1994, with no complications, but she began having problems with her left foot. She developed an infection, spilled coffee on her foot, and bruised her great toe after tripping over a stump. Shortly after these events, Buls began complaining of pain in the arch of her left foot. After treating Buls for nearly a year, Fuselier diagnosed the source of the pain as a sesamoid bone and recommended its surgical removal. Buls later sought an independent medical recommendation from Dr. Jeff DeHaan, an orthopedist in Texarkana, who concurred with Fuselier's assessment and recommendation. Fuselier performed the sesamoid removal on October 6, 1995.
Buls eventually relocated and began receiving treatment from Dr. Thomas McCloskey, a podiatrist in Tyler, in June 1996. Later, in September 1996, Buls retained counsel, who subsequently referred her to James Naples, a D.P.M. in Texarkana. Naples advised Buls that Fuselier's procedure to remove her bunions was completely unnecessary and that the metatarsal knots on the tops of her feet did not require removal. McCloskey performed surgery on Buls' left foot in February 1997, but the surgery was unsuccessful and left her great toe a centimeter short. No corrective surgery was conducted. Buls' left foot problems were exacerbated when she tripped on a stair and fractured her shortened left great toe in March 1999.
In her first point of error, Buls contends that the trial court erred by excluding a portion of Naples' testimony regarding his allegation that Fuselier performed unnecessary surgeries on Buls' feet solely for remuneration.
As a general rule, all relevant evidence is admissible, including expert testimony. See Tex. R. Evid. 401, 402, 702. Like all other relevant evidence having any tendency to make the existence of a consequential fact more or less probable, the admission of relevant expert testimony is favored, and one opposing it has the burden to show that its probative value is substantially outweighed by other factors. See Tex. R. Evid. 403, 410.
We review the trial court's exclusion of expert testimony under an abuse of discretion standard. K-Mart Corp. v. Honeycutt, 24 S.W.3d 357, 360 (Tex. 2000); Gammill v. Jack Williams Chevrolet, 972 S.W.2d 713, 718-19 (Tex. 1998). The trial court abuses its discretion when its ruling is arbitrary, unreasonable, or without reference to any guiding rules or legal principles.
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