                                   NO. 07-04-0061-CV

                             IN THE COURT OF APPEALS

                      FOR THE SEVENTH DISTRICT OF TEXAS

                                     AT AMARILLO

                                        PANEL E

                                  SEPTEMBER 8, 2005

                          ______________________________


          AMERICAN PROTECTION INSURANCE COMPANY, APPELLANT

                                            v.

                          PATRICIA A. JOHNSON, APPELLEE


                        _________________________________

             FROM THE 72ND DISTRICT COURT OF LUBBOCK COUNTY;

                NO. 2001-514,001; HON. BLAIR CHERRY, PRESIDING

                         _______________________________

Before QUINN, C.J., REAVIS, J., and BOYD, S.J.1

                                        OPINION

      In this appeal, appellant American Protection Insurance Company (American),

challenges a judgment awarding workers’ compensation benefits to appellee Patricia A.

Johnson (Johnson). In doing so, it presents two issues for our determination. In those

issues, American asks us to determine whether: 1) the testimony of Johnson’s expert

witness, Dr. Thomas Kurt (Kurt), was unreliable and should have been excluded by the trial

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       John T. Boyd, Chief Justice (Ret.), Seventh Court of Appeals, sitting by assignment.
Tex. Gov’t Code Ann. §75.002(a)(1) (Vernon Supp. 2004-2005).
court, and 2) the trial court erred in admitting hearsay testimony from Johnson regarding

carbon monoxide poisoning testing on October 30, 1998. Finding no reversible error in the

trial court’s rulings, we affirm the judgment of the trial court.

                                         Background

       In the underlying case, Johnson contends she was exposed to carbon monoxide

while in the course and scope of her employment with the Highland Medical Center which

was a producing cause of her cardiomyopathy. At the time of her alleged injury from

exposure to carbon monoxide, American was the Highland Medical Center’s workers’

compensation insurance carrier. American did not dispute that Johnson was injured as a

result of work-related exposure to carbon monoxide, but it denied that the exposure caused

her cardiomyopathy.

       At a hearing before a Texas Workers’ Compensation Commission (TWCC) hearing

officer, the officer found that although Johnson had suffered a compensable injury on

October 30, 1998, it was not a producing cause of her cardiomyopathy. Upon appeal to

a TWCC appeals panel, this decision was upheld. Johnson then filed the suit underlying

this appeal seeking judicial review. See Tex. Lab. Code Ann. § 410.251 (Vernon 1996).

       Prior to and during the trial on the merits, American sought to exclude the testimony

of Johnson’s expert witness on the basis that the data upon which Kurt relied in forming his

opinion on the cause of Johnson’s cardiomyopathy was not reliable. American also

unsuccessfully sought to exclude the testimony about the results of an October 30, 1998

air measurement test run at Johnson’s workplace showing the presence of carbon

monoxide. Kurt relied upon the results of this test in giving his expert testimony about the

cause of Johnson’s cardiomyopathy.

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                                        Discussion

       Because of its bearing upon the challenge to Kurt’s testimony, we will first discuss

American’s second issue. In that issue, American contends that Johnson’s testimony about

the results of the carbon monoxide test at her workplace constituted inadmissible hearsay

because it was performed by a local gas company. In considering this challenge, we must

keep in mind that evidentiary rulings admitting or excluding evidence are committed to the

trial court’s sound discretion. See Texas Dep’t of Transp. v. Able, 35 S.W.3d 608, 617

(Tex. 2000); City of Brownsville v. Alvarado, 897 S.W.2d 750, 753 (Tex. 1995). The error

of a trial judge in admitting or excluding evidence will not be cause for reversal unless an

appellant shows both that the ruling was in error and that it probably caused the rendition

of an improper judgment. See Tex. R. App. P. 44.1; Owens-Corning Fiberglas Corp. v.

Malone, 972 S.W.2d 35, 43 (Tex. 1998); City of Brownsville v. Alvarado, 897 S.W.2d at

753. Further, error in the admission of evidence will be deemed harmless if the objecting

party introduces the same or similar evidence, Southwestern Elec. Power Co. v. Burlington

N. R.R. Co., 966 S.W.2d 467, 473 (Tex. 1998), or permits the admission of the same or

similar evidence without objection. Richardson v. Green, 677 S.W.2d 497, 501 (Tex. 1984).

       Assuming, without deciding, that the trial court did err in admitting Johnson’s

testimony about the test, our review of the record reveals that this testimony was

cumulative of other evidence admitted without objection. American’s specific objection was

to Johnson’s identification of the exact reading from the carbon monoxide testing and to

both Johnson’s and Kurt’s testimony about this specific reading. However, the record

shows that Johnson introduced, without objection, two medical evaluation reports prepared

by Kurt in which it was specified that the carbon monoxide reading on October 30, 1998,

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was 316 parts per million of carbon monoxide. Additionally, American did not request

redaction of those specific references. Moreover, American’s expert, Dr. Eric Comstock

(Comstock), states in his report that it was reasonable to assume that Johnson was

exposed to approximately 300 parts per million of carbon monoxide in her workplace. In

view of this evidence, the admission of Johnson’s testimony regarding the carbon monoxide

reading, even if erroneous, probably did not cause the rendition of an improper judgment

and was therefore harmless. American’s second issue is overruled.

       Returning to American’s first issue, American argues Kurt’s expert testimony was

unreliable and should have been excluded by the trial court because it was based upon

unreliable methodology or factual foundation. Specifically, it points out that Kurt’s opinion

that Johnson was chronically exposed to carbon monoxide is not reasonable and lacks a

proper factual foundation because it was based upon a single reading. Further, American

argues that Kurt’s methodology is not reliable because there is no scientifically accepted

theory that chronic exposure to carbon monoxide causes cardiomyopathy. In evaluating

these arguments, we will first look to the factual assumptions made by Kurt in forming his

opinion and then to the scientific reliability of his conclusion.

       A trial court’s determination of the reliability of expert evidence is part of its

determination of admissibility and is not erroneous absent an abuse of discretion. See

Gammill v. Jack Williams Chevrolet, Inc., 972 S.W.2d 713, 727 (Tex. 1998). The test for

determining whether the trial court abused its discretion is whether it acted without

reference to any guiding rules or principles. Downer v. Aquamarine Operators, Inc., 701

S.W.2d 238, 241-42 (Tex. 1985).          When erroneously admitted evidence is merely

cumulative or does not concern a material issue dispositive of the case, the error is

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harmless. Mancorp, Inc. v. Culpepper, 802 S.W.2d 226, 230 (Tex. 1990); Gee v. Liberty

Mut. Fire Ins. Co., 765 S.W.2d 394, 396 (Tex. 1989). Harmfulness is determined by

looking at the entire record to see whether the judgment was controlled by the testimony

that should have been excluded. Mancorp, Inc. v. Culpepper, 802 S.W.2d at 230; Gee v.

Liberty Mut. Fire Ins. Co., 765 S.W.2d at 396.

      Reiterated, the thrust of American’s challenge to Kurt’s testimony is its argument

that chronic exposure to carbon monoxide cannot be extrapolated from one reading and

his reliance upon that one reading makes his testimony unreliable. However, the record

reveals that Comstock, American’s expert, specifically indicated that it is reasonable to

assume chronic exposure based on the one reading, and further, Kurt’s assumption that

Johnson’s carbon monoxide blood saturation was 30 percent could also be considered

reasonable. In Comstock’s report, tendered by American, there appears the following

paragraph:

      Based upon the air monitoring of the patient’s working environment in
      October of 1998[,] it is reasonable to assume that she had been exposed to
      carbon monoxide concentrations in the order of 300 ppm throughout the work
      day for a period which has not been determined but appears to have been
      a minimum of several months. Such a concentration of carbon monoxide in
      the ambient air would result in significant hemogoblin saturation and I would
      concur with the estimate of approximately 30% carboxyhemoglobin to be
      expected.

Consequently, all of the expert testimony before the trial court supported the conclusion

that Johnson was chronically exposed to carbon monoxide and that her blood saturation

level was approximately 30 percent.

      American also challenges Kurt’s opinion that Johnson’s work-related exposure to

carbon monoxide caused her to develop cardiomyopathy. We note that Comstock opined


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that even chronic exposure to carbon monoxide does not cause any clinical illnesses.

However, that causation opinion is merely cumulative of other causation evidence in the

record. For example, although he indicates that Kurt’s theory regarding chronic exposure

has not been accepted in the scientific community in the United States, he acknowledges

that the British scientific community believes that “chronic exposure to carbon monoxide

increases the incidence of heart problems . . . .”

       Moreover, because workers’ compensation was involved, Johnson was sent to a

TWCC-designated doctor, Dr. Randall Wolcott. He opined in two separate reports that,

within a reasonable degree of medical probability, Johnson’s work-related exposure to

carbon monoxide was a producing cause of her “heart disease.” Indeed, in one of these

reports, which was introduced by American without any request to redact or exclude the

causation opinion, Wolcott stated:

       She [Johnson] has been seen by Dr. Rizzo who has diagnosed her with
       cardiomyopathy. It is clear that carbon monoxide does cause significant
       cellular destruction to myocardial cells. There is reasonable medical
       probability that the carbon monoxide did contribute to the patient’s heart
       disease.

       Thus, even assuming arguendo that the trial court was in error in admitting Kurt’s

expert testimony, under this record, we cannot conclude that its admission probably caused

the rendition of an improper judgment. See Mancorp, Inc. v. Culpepper, 802 S.W.2d at

230. American’s first issue is overruled.

       In summary, both of American’s issues are overruled and the judgment of the trial

court is affirmed.


                                                 John T. Boyd
                                                 Senior Justice

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