
                                                       NO. 07-06-0075-CV

                                             IN THE COURT OF APPEALS

                                   FOR THE SEVENTH DISTRICT OF TEXAS

                                                          AT AMARILLO

                                                              PANEL B

                                                      JANUARY 25, 2008
                                        ______________________________
 
                                 CONNIE ALLEN, SURVIVING SPOUSE AND 
                     LEGAL REPRESENTATIVE OF GRANVILLE DEAN ALLEN, 
 
Appellant

                                                                    v.

                                                   TED. C. SCOTT, M.D., 
 
Appellee


                                     _________________________________

                    FROM THE 72ND DISTRICT COURT OF LUBBOCK COUNTY;

                      NO.  2002-519,163; HON. J. BLAIR CHERRY, PRESIDING
                                       _______________________________

                                                   Memorandum Opinion
                                       _______________________________

Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ. 
          Connie Allen, surviving spouse and legal representative of Granville Dean Allen,
appeals from a judgment denying her recovery against Ted C. Scott, M.D.  Through six
issues, she contends that the trial court erred by 1) denying her motion for new trial, 2)
instructing a verdict on the issue of exemplary damages and 3) excluding her expert’s
published article.  We affirm. 
Issue One – Motion for New Trial - Insufficient Evidence
          Through her motion for new trial, Allen attacked the legal and factual sufficiency
of the evidence supporting the verdict.  Purportedly, the trial court erred because, in her
view, the evidence conclusively showed that Granville had symptoms of a post-operative gastric leak which symptoms went ignored by Scott.  We overrule the issue.
          Whether the trial court erred in denying a motion for new trial depends on
whether it abused its discretion.  Champion Int'l Corp. v. Twelfth Court of Appeals, 762
S.W.2d 898, 899 (Tex.1988) (orig. proceeding).  And, that depends upon whether its
decision was arbitrary, capricious or without basis in guiding rules and principles or fact.
Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex. 1985).  One
guiding principle dictates that evidence supporting a verdict is not legally insufficient if it
enables reasonable and fair-minded jurors to reach the verdict under review. City of
Keller v. Wilson, 168 S.W.3d 802, 827 (Tex. 2005).  And, whether it did requires us to
review all the evidence, giving deference to that favoring the verdict if reasonable and
fair-minded jurors could and disregarding that contrary or unfavorable to the verdict
unless reasonable and fair-minded jurors could not.  Id.  Another principle holds that the
verdict is not factually insufficient if upon considering the entire evidentiary record, the
verdict is not so against the great weight of the evidence as to be clearly wrong.  Dow
Chem. Co. v. Francis, 46 S.W.3d 237, 242 (Tex. 2001) (per curiam).  And, in neither
case may we simply substitute our judgment for that of the factfinder.  Golden Eagle
Archery, Inc. v. Jackson, 116 S.W.3d 757, 761 (Tex. 2003).  With these standards in
mind, we turn to the record before us.
          Allen contended that Scott committed medical malpractice by failing to recognize
and respond (via additional surgery) to symptoms indicative of a post-surgical gastric
leak.  The failure to so recognize and respond to the symptoms proximately caused
Granville’s death, she concluded.  While she cited the court to testimony purporting to
illustrate the existence of those symptoms, other testimony of record depicted that the
symptoms were related to maladies unrelated to a gastric leak.  Furthermore, at least
one expert testified that returning the patient to surgery would have been improper due
to his pulmonary condition.  This contradictory evidence created a fact issue for the jury
to resolve.  May v. Barton’s Pump Service, Inc., 153 S.W.3d 469, 474 (Tex. App.–
Amarillo 2004, no pet.).  So, since the trial court was obligated to defer to the way in
which the jury weighed the evidence and resolved evidentiary disputes, we cannot say
that its decision to overrule that part of the motion for new trial founded upon claims of
legal and factual insufficiency evinced an abuse of discretion. 
Issue Two - Gross Negligence 
          Next, Allen contends that the trial court erred when it instructed a verdict against
her claim for gross negligence. We overrule the issue. 
          The jury having found no negligence on the part of Scott, there is no basis upon
which to predicate liability for gross negligence.  In other words, we find little fault in a
decision effectively holding that there was no evidence of gross negligence given the
absence of a finding of negligence.   
 
 
Issue Three - Exclusion of Evidence 
          Next, Allen asserts that the trial court erred by excluding evidence of an article
written by a defense expert.  The article purportedly was admissible for impeachment
purposes and because it was used by the expert at trial to refresh his memory.  
For the following reasons, we overrule the issue. 
          Below, Allen stated that the article was admissible because it was used to refresh
a witness’ memory.  That same contention is mentioned here.  Yet, she also posits that
it should have been admissible for impeachment purposes.  The latter theory was not
broached below, however; thus, it was waived.  Moser v. Davis, 79 S.W.3d 162, 169
(Tex. App.–Amarillo 2002, no pet.) (holding that the grounds asserted on appeal must
comport with those mentioned at trial to preserve a complaint, and if they do not then
the issue is waived).  
          As for the former ground, Allen had the burden to establish the admissibility of
the article.  Formosa Plastics Corp., USA, v. Kajima Intern., Inc., 216 S.W.3d 436, 468
(Tex. App.–Corpus Christi 2005, pet. filed) (stating that the proponent of evidence has
the burden to establish its admissibility).  Furthermore, while writings used to refresh the
memory of a testifying witness may be admissible, the rule encompasses simply “those
portions [of the document] which relate to the testimony of the witness.”  Tex. R. Evid.
612.  In other words, the entire document is not necessarily admissible; only those
portions relating to the witness’ testimony are.  Here, Allen attempted to admit the entire
document.  Allen did not argue that its entirety related to the expert’s testimony.  Nor did
she show that it did.  And, as its proponent, it fell upon her to do so per the terms of
Rule 612.  Thus, the trial court did not abuse its discretion in excluding the article.
Issues Four, Five and Six - Newly Discovered Evidence, Discovery Abuse, Fraud 
          Allen’s final three issues involve a document wherein Scott purportedly admitted
his negligence and entitled her to a new trial.  The document was entitled “Agreed
Order” and concerned an administrative or disciplinary proceeding initiated against
Scott before the Texas Medical Board.  Though signed by Scott on October 4, 2005, the
presiding officer of the Medical Board did not execute it until December 9, 2005, or
shortly after trial ended.  According to Allen, it constituted newly discovered evidence
and evinced that Scott abused the discovery process and defrauded the court.  These
circumstances, therefore, mandated a new trial so that it could be tendered to the
factfinder for consideration in assessing Scott’s negligence, concluded Allen.  We
overrule the issues.
          Of the numerous statements in the “Agreed Order,” one is of particular import.  It
states that the “Agreed Order is a settlement agreement under the Texas Rules of
Evidence for purposes of civil litigation.”  According to our Supreme Court, “settlement
agreements are discoverable . . . to the extent relevant . . . but not admissible at trial to
prove liability.”  Ford Motor Co. v. Leggat, 904 S.W.2d 643, 649 (Tex. 1995), citing Tex.
R. Evid. 408.  Moreover, irrespective of how she characterizes the discovery of the
document or Scott’s purported failure to disclose it and its contents, it is clear that Allen
sought a new trial so that she could tender the “Agreed Order” as evidence establishing
Scott’s negligence.  Because that would have violated the Supreme Court’s directive in
Ford Motor Co. v. Leggat, we cannot say that the trial court abused its discretion in
refusing to grant Allen a new trial to effectuate her intent.  
          Accordingly, the judgment is affirmed.
 
Per Curiam  
 
 
 
