                                Fourth Court of Appeals
                                       San Antonio, Texas
                                   MEMORANDUM OPINION
                                          No. 04-13-00753-CV

                                           Robert SCHRADE,
                                               Appellant

                                               v.
                           Stephen E. EARLE MD and Stephen E. Earle MD
                      Stephen E. EARLE, M.D. and Stephen E. Earle, M.D., P.A.,
                                            Appellees

                       From the 45th Judicial District Court, Bexar County, Texas
                                    Trial Court No. 2011-CI-03779
                               Honorable Laura Salinas, Judge Presiding

Opinion by:       Catherine Stone, Chief Justice

Sitting:          Catherine Stone, Chief Justice
                  Sandee Bryan Marion, Justice
                  Marialyn Barnard, Justice

Delivered and Filed: July 9, 2014

AFFIRMED

           The sole issue presented in this appeal is whether the trial court erred in denying appellant,

Robert Schrade, an evidentiary hearing on his motion for new trial. We affirm the trial court’s

judgment.

                                              BACKGROUND

           Schrade sued appellees, Stephen E. Earle, M.D. and Stephen E. Earle, M.D., P.A., asserting

that Earle was negligent in performing an unnecessary surgery on his neck, specifically at the C4-

C5 level. Earle testified that an intraoperative discography established the necessity of the surgery
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at that level. Earle testified that dye was injected at the C4-C5 level during the intraoperative

discography, and the dye leaked out from the disc at that level. Schrade introduced into evidence

the radiologist’s report from the discography which was performed at the C3-C4, C4-C5, and C5-

C6 levels. Although the radiologist mentions dye leaking at the C3-C4 level, 1 the radiologist does

not mention an injection or leaking of the dye at the C4-C5 level 2 or C5-C6 level. 3 Schrade used

the radiologist’s report to discredit Earle’s testimony. Despite the radiologist’s report, Earle

maintained that the dye was injected at the C4-C5 level and leaked, and that the discography film

would support his testimony. Toward the end of cross-examination, Schrade sought to introduce

the discography film into evidence in an effort to further impeach Earle’s testimony. The trial

court excluded the film because the film had not been produced during discovery.

         Attached to Schrade’s motion for new trial was an affidavit from his expert. In the

affidavit, the expert stated that the discography film did not show any evidence of injected dye at

the C4-C5 and C5-C6 levels. Based on the affidavit, Schrade’s motion asserted that Earle

committed perjury in testifying that the discography showed that dye leaked at the C4-C5 level. 4

                                                    DISCUSSION

         A trial court is required to conduct a hearing on a motion for new trial only if the motion

“alleges facts, which if true, would entitle the movant to a new trial.” Hensley v. Salinas, 583


1
  The “Description” section of the report for this level states, “A single cross-table lateral view was obtained.” The
“Findings” section of the report for this level states, “An endotracheal tube is in place. A needle overlies the C3-C4
intervertebral disk. Contrast has been injected. Some posterior extravasation is observed.”
2
  The “Description” section of the report for this level states, “A single cross-table lateral view was obtained. An
endotracheal tube is in place. A needle overlies the anterior aspect of the C4-C5 intervertebral disk.” The report for
this level contains no “Findings” section.
3
  The “Description” section of the report for this level states, “A single cross-table lateral view was obtained. An
endotracheal tube is in place. A needle now overlies the central aspect of the C5-C6 intervertebral disk.” The report
for this level contains no “Findings” section.
4
  No affidavit from the radiologist was attached to Schrade’s motion. At the hearing on the motion for new trial, the
attorneys disagreed about what the radiologist would say, with Earle’s attorney stating, “Judge, I will tell you I am
very constraining [sic] to listen to his [Schrade’s attorney] versions of trying to tell you what a witness would say
when our office has spoken to [the radiologist] and when [the radiologist] would not say the things that he’s purporting
he would say. And so I’m — I will tell you that he’s not the only people that have talked to [the radiologist].”

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                                                                                                  04-13-00753-CV


S.W.2d 617, 618 (Tex. 1979). In this case, Schrade contends an evidentiary hearing was required

because he alleged that Earle falsely testified that dye was injected during the discography

procedure at the C4-C5 level which leaked. In short, Schrade alleges that Earle’s perjury was

newly discovered evidence.

        Schrade candidly admits in his brief that he cannot satisfy the requirements necessary for

a new trial based on newly discovered evidence. Those requirements include showing: (1) the

evidence came to the movant’s knowledge after the trial; (2) “it was not owing to the want of due

diligence that it did not come sooner;” (3) the evidence is not cumulative; and (4) the evidence “is

so material that it would probably produce a different result if a new trial were granted.” Jackson

v. Van Winkle, 660 S.W.2d 807, 809 (Tex. 1983), overruled on other grounds, Moritz v. Preiss,

121 S.W.3d 715 (Tex. 2003); Neyland v. Raymond, 324 S.W.3d 646, 652 (Tex. App.—Fort Worth

2010, no pet.); In re C.Z.B., 151 S.W.3d 627, 632 (Tex. App.—San Antonio 2004, no pet.). “The

due diligence requirement has not been met if the same diligence used to obtain the evidence after

trial would have had the same result if exercised before trial.” Neyland, 324 S.W.3d at 652.

Schrade concedes that he cannot satisfy the due diligence requirement because the evidence he

sought to introduce at the motion for new trial hearing could have been obtained before trial.

During trial, Schrade’s expert testified about the intraoperative discography having been

performed, and the radiologist’s report from the discography was admitted into evidence at trial in

an effort to discredit Earle’s testimony. Schrade even attempted to introduce into evidence the

discography film which the trial court excluded based on the discovery rules. 5




5
  The record does not demonstrate that the trial court’s ruling would have precluded Schrade from calling the
radiologist or the radiology technologist as witnesses; however, from the record before us, it does not appear that
Schrade made an effort to do so.

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                                                                                      04-13-00753-CV


        Citing two cases from the 1930’s issued by two of our sister courts, Schrade contends that

he was not required to satisfy the due diligence requirement in order for the trial court to be

required to hold an evidentiary hearing in this case because he alleged Earle’s testimony was

perjured. See Steed v. Winder, 130 S.W.2d 403 (Tex. Civ. App.—Galveston 1939, no writ); Dixie

Gas & Fuel Co. v. Jacobs, 47 S.W.2d 457 (Tex. Civ. App.—Beaumont 1932, writ dism’d w.o.j.).

The only affidavit Schrade presented with his motion for new trial is the affidavit of his expert,

who stated that the discography film did not show any evidence of injected dye at the C4-C5 level.

Not surprisingly, the trial testimony of Schrade’s expert and Earle was also contradictory in their

interpretation of the preoperative MRI and x-rays. Evidence that Schrade’s expert disagreed with

Earle in interpreting the discography film does not establish perjury. This distinguishes the instant

case from the cases cited by Schrade in which “the appellants presented with their motion for new

trial affidavits from competent witnesses available to testify who swore to facts that demonstrated

almost beyond doubt that the verdicts rested on perjured testimony.” In re Williams, No. 12-06-

00361-CV, 2007 WL 1241517, at *3 (Tex. App.—Tyler Apr. 30, 2007, orig. proceeding) (mem.

op.). Therefore, even assuming a trial court is required to conduct an evidentiary hearing on a

motion for new trial where the affidavits attached to the motion demonstrate “almost beyond doubt

that the verdicts rested on perjured testimony,” no such affidavits were presented in the instant

case.

        The facts alleged in Schrade’s motion for new trial and the attached affidavit would entitle

Schrade to a new trial only if he was able to satisfy the requirements for a new trial based on newly

discovered evidence. Because the record establishes, and Schrade concedes, that he cannot satisfy

those requirements, the trial court did not err in refusing to conduct an evidentiary hearing on

Schrade’s motion.



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                                  CONCLUSION

The trial court’s judgment is affirmed.

                                           Catherine Stone, Chief Justice




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