                                  COURT OF APPEALS
                               EIGHTH DISTRICT OF TEXAS
                                    EL PASO, TEXAS

                                               §
MARIA G. THOMPSON/
LUIS MARIONI, D.C.,                            §                  No. 08-11-00264-CV

                           Appellant,          §                    Appeal from the

v.                                             §               County Court at Law No 5

JAIME STOLAR, M.D.,                            §                of El Paso County, Texas
ALIVIO MEDICAL CENTER,
ALIVIO TREATMENT CENTERS,                      §                    (TC#2007-4842)
P.A. AND LUIS MARIONI,
D.C./MARIA G. THOMPSON,                        §

                           Appellees.          §

                                        OPINION

       This is a multi-party appeal from a judgment in a medical and chiropractic malpractice

case. Maria G. Thompson sued Jaime Stolar, M.D., Luis Marioni, D.C., and Alivio Medical

Center and Alivio Treatment Centers, P.A. (collectively referred to as “Alivio”) due to knee

injuries allegedly caused by treatment she received. For the reasons that follow, we reverse in

part and affirm in part.

                                  FACTUAL SUMMARY

                   THOMPSON’S 1999 ACCIDENT - THE INITIAL KNEE INJURY

       On December 10, 1999, Maria G. Thompson was involved in an automobile accident in

which she sustained injuries to her right knee and ankle. As a result, she underwent multiple
arthroscopic surgeries on her right knee. The first surgery was performed on February 29, 2000.

According to her medical report, Thompson did not feel as though this first surgery helped much.

Due to continued pain, Thompson underwent her second surgical procedure on October 10,

2000.

        At some point thereafter, Thompson’s orthopedic surgeon, Dr. Dickason, released her

from his care. Thompson then began receiving chiropractic care from Dr. Crawford, D.C., who

treated her with physical therapy and subsequently referred her to Dr. Hernandez, M.D. for an

orthopedic evaluation. Thompson complained to Dr. Hernandez of pain in her knee, difficulty

bending, kneeling or squatting, some pain with standing and walking, and occasional swelling.

After several months, Thompson continued to have severe pain with no improvement and Dr.

Hernandez recommended another arthroscopic surgery.

        In June 2001, Dr. Hernandez performed a third arthroscopic surgery on Thompson’s right

knee. Approximately a week after surgery, Dr. Hernandez saw Thompson for a follow-up

appointment. While Thompson was doing very well, Dr. Hernandez told her that she was “going

to get progressive degenerative changes in her right knee” and that she would eventually need a

total knee replacement.1

        Even after the three surgeries, Thompson continued to experience pain in her knee. At

trial, Thompson testified that prior to the 1999 accident she was a runner and loved to dance.

However, after the accident and her initial surgeries, she could no longer run and had trouble

climbing up and down the stairs. While Thompson admitted that the initial injury limited her

abilities, she also testified that from 2000 through 2005 she was able to continue dancing and


1
   According to Dr. Hernandez’s initial evaluation, after Thompson’s second surgery, Dr. Dickason had likewise
informed Thompson that she had torn tendons and that eventually she would need a total knee replacement.

                                                    -2-
exercising. She continued working from 2000 to 2005. In March 2005, Thompson changed

doctors and sought chiropractic care from Dr. Luis Marioni, D.C.

            THOMPSON’S INITIAL KNEE INFECTION AND SPONTANEOUS KNEE FUSION

                     Initial Interactions with Dr. Marioni, Dr. Stolar, and Alivio

         Thompson first visited Dr. Marioni on March 30, 2005, because she wanted to receive

physical therapy. Dr. Marioni diagnosed Thompson as suffering from severe osteoarthritis.

Because her condition could not be treated or improved with chiropractic care, Dr. Marioni told

her that there was nothing he could do. Dr. Marioni then referred Thompson to Dr. Jaime Stolar,

M.D. for pain management.2 Dr. Stolar was a medical doctor who leased office space from

Alivio Treatment Centers, P.A., an entity owned by Dr. Maroni. The two men had individual

offices in the same building, but shared a receptionist. Both men testified that their practices

were independent. There was no employment agreement between Dr. Marioni and/or Alivio and

Dr. Stolar. Dr. Marioni admitted that he made several referrals to Dr. Stolar. The patient

medical records for Dr. Stolar and Dr. Marioni were also kept together, thereby providing each

doctor with the ability to access the other’s patient records.

         Thompson’s first appointment with Dr. Stolar took place on May 11, 2005. According to

Dr. Stolar, Thompson explained to him that she did not want to undergo surgery for a knee

replacement and instead wanted to receive pain management therapy. Dr. Stolar recommended

injecting Thompson’s knee with a steroid to relieve the pain. According to Dr. Stolar, he

explained to Thompson that while the injections may temporarily relieve her pain, her problem

2
  According to Dr. Marioni, he informed Thompson at their initial visit that there was nothing he could do for her as
a chiropractor and that he was referring her to Dr. Stolar. Thompson claimed she did not know why she was being
referred to Dr. Stolar. She learned of her appointment with Dr. Stolar by receiving an appointment card from the
receptionist with his name on it and that the receptionist told her that Dr. Stolar would see her for that particular
appointment.

                                                        -3-
could only be solved by surgery. Initially, Thompson declined to have the injections because she

had experienced problems after receiving an earlier injection from Dr. Hernandez. But in August

2005, Thompson returned to Dr. Stolar and at this point, she agreed to try the injection therapy.

The injection helped with her pain, but it returned approximately a month later.

          On September 30, 2005, Dr. Stolar gave Thompson a second injection. Once again, it

temporarily relieved her pain. However, the relief period was shorter than after the initial

injection. In November 2005, Thompson returned to Dr. Stolar complaining of increased pain.

According to Thompson, her job required that she stand for long periods of time and her whole

leg was swollen. Thompson requested another injection, but Dr. Stolar told her that she had to

wait until December. On December 19, Thompson returned and received her third and final

injection.

          On January 16, 2006, Thompson visited Dr. Marioni complaining of severe pain in her

knee.3 Dr. Marioni noted that her knee was warm, sweaty, and swollen and Thompson was

complaining of pain which she described as a level of “9” on a scale of “10”. At that time,

Thompson was unable to work. Thompson claimed Dr. Marioni told her that he thought her

knee was infected. In contrast, Dr. Marioni testified that he did not suspect an infection. (RR III

79-80; 118) While he admitted swelling and pain could be signs of infection, the knee was no

more swollen than when he had first seen Thompson.4 At Thompson’s request, Dr. Marioni then

referred her to Dr. Hernandez. January 16th was the first time Dr. Marioni had seen Thompson

since he had referred her to Dr. Stolar for pain management.

3
    According to Thompson, she went to see Dr. Marioni to get a referral to another physician.
4
  Dr. Marioni further explained: “[m]y impression was that this chronic condition was going to have flare-ups and,
basically, the problem was going to be there as long as she did not have that total knee replacement that was
recommended before she came to me.”
                                                         -4-
           Diagnosis of Knee Infection and Subsequent Spontaneous Knee Fusion

       Thompson was originally scheduled for an appointment with Dr. Hernandez on January

26, 2006. Due to severe pain, she called his office on January 23rd to move up the appointment.

The following morning Thompson was seen by Dr. Zaltz. Dr. Zaltz withdrew fluid from the

knee and diagnosed the infection.      That same day, Thompson had incision and drainage

procedures performed.

       On March 14, 2006 Thompson presented at the emergency room complaining of pain and

a swollen knee. She was held overnight for observation and discharged the following day. In

March and April 2006, Dr. Hernandez performed additional procedures to drain fluid from the

knee. Thompson eventually informed Dr. Hernandez that she would like to undergo total knee

replacement surgery. He was reluctant to perform the procedure and referred her to Dr. Richard

Westbrook, another orthopedic surgeon. Thompson first saw Dr. Westbrook on April 11, 2007.

By this time, she had been free of infection for approximately nine months but her knee had

fused. In other words, she effectually had one piece of bone extending from the hip to the ankle.

Due to the fusion, the knee replacement surgery would involve “taking down” the knee fusion.

Essentially, the procedure involved cutting the fused bones where the knee joint used to be and

inserting a totally new knee joint. Dr. Westbrook explained the complications associated with

the procedure, including the risk of another knee fusion. Thompson was insistent upon having

the surgery, despite the risks, and surgery was performed on August 24, 2007. Thompson had

mobility in her leg following the surgery and in fact returned to work in September 2007.

                           SUBSEQUENT INJURIOUS FALLS AND
                    SECOND KNEE INFECTION AND SURGICAL KNEE FUSION




                                              -5-
                                   Two Falls in October 2007

       In October 2007, Thompson tripped and fell. Dr. Westbrook saw Thompson following

the incident and while she was able to cross her legs, she was unable to extend her knee and

straighten out her leg. Dr. Westbrook determined that Thompson sustained a hyperflexion of the

knee and suffered a rupture to her patella tendon and a portion of her quadriceps.

       Later the same month, Thompson fell a second time while attempting to step out of her

daughter’s vehicle. She scraped her leg against the asphalt, causing her surgical wound to open.

As a result, Thompson went to the hospital and underwent a procedure to wash out the wound.

       Dr. Westbrook saw Thompson again on November 6th. She had fluid leaking from an

open area on her knee. Dr. Westbrook was concerned that the knee was infected, and he

informed Thompson that it may be necessary to remove the knee replacement. Thompson

refused to consider removing the knee replacement at that time. Dr. Westbrook attempted to

immobilize the knee to allow it time to “settle down” and placed Thompson in a cast.

                         Thompson Develops a New Strain of Infection
                           and Surgical Fusion of Thompson’s Knee

       Thompson later developed an infection as a result of her October fall, this one arising

from different bacteria.    She received treatment throughout 2008, but in October 2009,

Thompson’s knee was surgically fused. Dr. Westbrook testified that the surgeries, including the

surgical knee fusion that Thompson underwent following her 2007 knee replacement, were all

“because of her fall and rupture of the quadriceps mechanism and the subsequent infection that

had necessitated...the removal of the prosthesis and the repeat fusion.”

                               PROCEDURAL BACKGROUND




                                               -6-
          In October 2007, Thompson filed her original petition against Dr. Stolar, Dr. Maroni and

Alivio alleging medical and chiropractic malpractice claims. Specifically, Thompson alleged

that in March 2005, she sought treatment at Alivio, a business owned and controlled by

Dr. Marioni, for chronic pain in her right knee. According to Thompson, while Dr. Maroni was

her treating physician, he negligently referred her to Dr. Stolar for injections to her knee. She

alleged that Dr. Stolar was negligent in administering such injections, and that Dr. Stolar and

Dr. Marioni were each negligent for failing to diagnose an infection in the knee, which resulted

from the negligently administered injections. Thompson also alleged that Dr. Marioni and

Alivio were vicariously liable for the negligence of Dr. Stolar based on the theory that Dr. Stolar

was Alivio’s apparent agent.

          As we explain below, Dr. Stolar did not appear at the trial, and the court granted a

directed verdict that he was negligent. The trial court also granted a directed verdict as requested

by Dr. Marioni and Alivio on Thompson’s vicarious liability claims, as well as Thompson’s

claim that Dr. Marioni was negligent in referring her to Dr. Stolar.

          The case was then submitted to the jury. The jury found that Dr. Marioni’s negligence

proximately caused Thompson’s injury5, and apportioned 80% of the negligence to Dr. Stolar

and 20% to Dr. Marioni. The jury awarded Thompson $66,000 in damages for future medical

care expenses and $100,000 in damages for loss of earning capacity. It did not award any

damages for disfigurement, past medical expenses, physical pain and mental anguish, or physical

impairment.

          The trial court denied Dr. Marioni and Alivio’s motion for judgment notwithstanding the

verdict and subsequently award Thompson a judgment against Dr. Stolar in the amount of
5
    The jury was instructed to find that Dr. Stolar’s negligence proximately caused Thompson’s knee injury.

                                                         -7-
$132,800 and a judgment against Dr. Marioni in the amount of $33,200 together with pre- and

post-judgment interest. This appeal follows. We begin our discussion by addressing the issues

asserted by Dr. Marioni in his cross-appeal.

                              DR. MARIONI’S CROSS APPEAL

       Dr. Marioni challenges the legal sufficiency of the evidence to support the jury’s finding

that he was negligent. In a medical negligence case, the plaintiff must prove: (1) a duty by the

physician to act according to a certain standard of care; (2) a breach of that standard of care; (3)

an injury; and (4) a causal connection between the breach of care and the injury. Moreno v.

M.V., 169 S.W.3d 416, 420-21 (Tex.App.--El Paso 2005, no pet.), citing McIntyre v. Smith, 24

S.W.3d 911, 914 (Tex.App.--Texarkana 2000, pet. denied) and McCombs v. Children’s Med.

Ctr. of Dallas, 1 S.W.3d 256, 259 (Tex.App.--Texarkana 1999, pet. denied). Dr. Marioni first

complains that Thompson failed to produce any evidence of an applicable standard of care or a

breach of that standard of care. Alternatively, he argues Thompson presented no evidence that

any breach proximately caused further injury to Thompson’s knee.

                                      STANDARD OF REVIEW

       A legal sufficiency or “no evidence” challenge will be sustained if the party suffering the

adverse decision at trial shows: (1) the complete absence of a vital fact; (2) the court is barred by

rules of law or evidence from giving weight to the only evidence offered to prove a vital fact; (3)

the evidence offered to prove a vital fact is no more than a scintilla; or (4) the evidence

establishes conclusively the opposite of the vital fact. City of Keller v. Wilson, 168 S.W.3d 802,

810 (Tex. 2005); Stanley Works v. Wichita Falls Independent School District, 366 S.W.3d 816,

828 (Tex.App.--El Paso 2012, pet. denied). When conducting a legal sufficiency review, we

must view the evidence in the light favorable to the verdict, crediting favorable evidence if a

                                                -8-
reasonable fact finder could, and disregarding contrary evidence unless a reasonable fact finder

could not. City of Keller, 168 S.W.3d at 830. The final test for legal sufficiency must always be

whether the evidence at trial would enable reasonable and fair-minded people to reach the verdict

under review. City of Keller, 168 S.W.3d at 827.

                                       STANDARD OF CARE

       The threshold question in a medical malpractice case is the standard of care. Moreno,

169 S.W.3d at 421; McIntyre, 24 S.W.3d at 914; Hammonds v. Thomas, 770 S.W.2d 1, 1

(Tex.App.--Texarkana 1989, no writ). It is important to first establish the standard of care so that

the fact finder can determine whether the doctor’s conduct deviated from the standard to the

degree that it constituted malpractice. Moreno, 169 S.W.3d at 421; McIntyre, 24 S.W.3d at 914;

Hammonds, 770 S.W.2d at 1-2. It is not sufficient for a medical expert to simply state that he

knows the standard of care and to then draw a conclusion as to whether that standard was met.

Moreno, 169 S.W.3d at 421. Rather, the expert must explicitly state the standard of care and

explain how the defendant’s acts met or failed to meet that standard. Moreno, 169 S.W.3d at

421; McIntyre, 24 S.W.3d at 915; Whittley v. Heston, 954 S.W.2d 119, 122 (Tex.App.--San

Antonio 1997, no writ); Chopra v. Hawryluk, 892 S.W.2d 229, 233 (Tex.App.--El Paso 1995,

writ denied).

       Dr. Donald Bonney, D.C. served as Thompson’s expert witness to establish the proper

standard of care and how Dr. Marioni breached that standard.           According to Dr. Bonney,

Dr. Maroni breached the standard of care in three respects. First, when Dr. Marioni determined

Thompson could not benefit from chiropractic care, he should have referred her to an orthopedic

surgeon. In other words, Dr. Marioni should not have accepted Thompson’s case. Second,

Dr. Marioni failed to properly manage Thompson’s care from March 30, 2005 until January 16,

                                               -9-
2006 because (1) he failed to discuss it with Dr. Stolar and (2) he failed to review Thompson’s

medical records during that time. Finally, Dr. Marioni breached the standard of care by failing to

“perform an emergent referral” on January 16, 2006.

        We need only address the third violation. The first is of no import because the trial court

granted Dr. Marioni’s motion for directed verdict with regard to negligent referral to Dr. Stolar

and Thompson has not challenged that ruling.            As for Dr. Marioni’s failure to monitor

Thompson’s condition throughout her relationship with Dr. Stolar, the only testimony with

respect to causation relates to the lack of a prompt or emergent referral and Thompson’s eventual

injury, a spontaneous knee fusion. Thus, our analysis will focus on whether Dr. Bonney’s

testimony sufficiently established that, based on the facts and circumstances, the standard of care

required Dr. Marioni to make an emergent referral on January 16, 2006.

        Dr. Bonney testified that he reviewed Dr. Marioni’s medical reports and in his

professional opinion, “[Thompson] was, in fact, showing signs of an infection of the right knee,

at least no later than January 16, 2006.” Dr. Bonney identified the signs of infection as the knee

being warm, sweaty, and swollen or inflamed. He was then asked the significance of the fact

that Thompson’s pain had increased from a “5” when Dr. Marioni had seen her in March, to a

“9” when he saw her the following January, Dr. Bonney testified as follows: It’s significant for

two reasons. Number one, if my patient’s pain levels are going up, I’m not doing the right thing,

or I’m missing something and I’m not helping that patient. So, that, of course, is why we

practice -- to bring relief.

        And, secondly, it’s significant that it could be a symptom of an infection. And
        that would be clearly a red flag for me when my antennas would be going up.




                                               - 10 -
Finally, after being read the definition of negligence and then asked for his opinion as to whether

or not Dr. Marioni was negligent, Dr. Bonney stated: Yes, sir. My professional opinion is that he

was, in fact, negligent in his treatment and management of Ms. Thompson.

       On appeal, Dr. Maroni contends that Dr. Bonney’s testimony is no evidence of either the

applicable standard of care or breach thereof. Specifically, he takes issue with the fact that

Dr. Bonney did not: (1) testify regarding any specific personal experience he had in treating

patients with infections similar to Thompson’s, despite testifying it is very rare for knee

infections to present in a chiropractic office; and (2) “cite any chiropractic medical literature

demonstrating that an emergent (as opposed to some other type of referral) represented the

applicable standard of chiropractic care” when an infection is suspected.            To the extent

Dr. Marioni is attacking Dr. Bonney’s credibility as an expert witness, this issue was not raised

at the trial level and therefore not properly preserved for appeal. Moreover, this argument

ignores Dr. Marioni’s own testimony that a chiropractor must provide an immediate referral if an

infection is suspected.

       Dr. Marioni testified regarding his practices and what he understood as the applicable

standard of care. If a chiropractor suspects an infection, the patient needs an immediate referral

so the joint can be examined to diagnose the infection. Dr. Marioni admitted that he observed

the symptoms and signs which Dr. Bonney believed should cause a reasonable and prudent

chiropractor to suspect an infection. And Thompson testified that Dr. Marioni told her on

January 16th that her knee was likely infected but he did not express that the situation was an

emergency.

       As the trier of fact, the jury was free to resolve the conflict in the testimony. In doing so,

a reasonable juror could have concluded that Dr. Marioni did in fact suspect an infection on

                                               - 11 -
January 16, and that by his own admission the standard of care required that he provide

Thompson an immediate referral to a physician.          We conclude the evidence was legally

sufficient to support the jury’s decision that the applicable standard of care required that

Dr. Marioni to make an emergent referral on January 16, 2006 and his failure to do so breached

that duty.

                                            CAUSATION

       We must now determine whether Thompson presented legally sufficient evidence that Dr.

Marioni’s failure to provide Thompson with an immediate or emergent referral proximately

caused further injury to Thompson’s knee.

                                        Applicable Law

       A plaintiff in medical malpractice case must prove that her injuries were proximately

caused by the negligence of the defendant. Proximate cause requires proof of: (1) foreseeability,

and (2) cause-in-fact. Leitch v. Hornsby, 935 S.W.2d 114, 118-19 (Tex. 1996); Arlington Mem’l

Hosp. Found., Inc. v. Baird, 991 S.W.2d 918, 922 (Tex.App.--Fort Worth 1999, pet. denied).

Foreseeability means that a plaintiff is required to show that the defendants should have

anticipated the danger that resulted from their negligence. McClure v. Allied Stores of Texas,

Inc., 608 S.W.2d 901, 903 (Tex. 1980). Cause-in-fact, on the other hand, means that a plaintiff

must show that the defendants’ negligence was “a substantial factor in bringing about the injury

and without which no harm would have occurred.” Id.

       The ultimate standard of proof on the causation issue is “whether, by a preponderance of

the evidence, the negligent act or omission is shown to be a substantial factor in bringing about

the [injury] and without which the harm would not have occurred.” Park Place Hosp. v. Estate

of Milo, 909 S.W.2d 508, 511 (Tex. 1995), quoting Kramer v. Lewisville Mem’l Hosp., 858

                                              - 12 -
S.W.2d 397, 400 (Tex. 1993). The plaintiff must establish a causal connection between the

defendant’s negligence and the injuries based upon a “reasonable medical probability” and not

mere conjecture, speculation, or possibility. Park Place Hosp., 909 S.W.2d at 511; Kramer, 858

S.W.2d at 400; W.C. LaRock, D.C., P.C. v. Smith, 310 S.W.3d 48, 55 (Tex.App.--El Paso 2010,

no pet.). However, a plaintiff, “is not required to establish causation in terms of medical

certainty nor is he . . . required to exclude every other reasonable hypothesis.” Bradley v.

Rogers, 879 S.W.2d 947, 953-54 (Tex.App.--Houston [14th Dist.] 1994, writ denied). Whether

expert testimony on causal connection rests upon reasonable medical probability must be

determined by the substance and context of the testimony rather than semantics or use of a

particular term or phrase. Burroughs Wellcome Co. v. Crye, 907 S.W.2d 497, 500 (Tex.1995);

Baird, 991 S.W.2d at 922.

                                        Expert Testimony

       The relevant expert testimony regarding causation came largely from Dr. Benzel

Christopher McMaster. Dr. McMaster is a board certified orthopedic surgeon. He testified that

“based on a reasonable medical probability” the infection diagnosed on January 24th was a result

of a complication from an injection administered by Dr. Stolar on December 19, 2005.

Dr. McMaster explained that signs and symptoms of the infection would have appeared

approximately a week later. The type of infection Thompson developed was “highly unusual”

indicating that an improper technique was likely used.

       When asked to identify the cause of Thompson’s spontaneous knee fusion (her first knee

fusion), Dr. McMaster testified that, in his opinion, the auto-fusion was caused by, “the infection,

and in my opinion, the delay in handling it.” It is not clear from this testimony whether the delay

referred to a failure by Dr. Stolar or by Dr. Marioni.        Following this comment, however,

                                               - 13 -
Dr. McMaster explained his opinion with respect to Dr. Stolar’s negligence. First, he criticized

Dr. Stolar’s technique in giving the injection and noted, “Dr. Stolar failed to recognize an

infection that would be ordinarily obvious to a physician of average experience and average

education.”   Dr. McMaster then summarized the three circumstances by which Dr. Stolar

breached the standard of care: (1) in giving Thompson injections at all when her medical history

did not indicate such injections; (2) in using improper technique and allowing a highly unusual

bacteria to be injected into Thompson’s knee; and (3) in failing to recognize the signs and

symptoms of infection.

       Dr. McMaster explained that a knee infection is a medical emergency and should be

treated as soon as possible. The only way to properly diagnose the knee infection was by

drawing fluid from the knee and testing it, and he acknowledged that Dr. Marioni, as a

chiropractor, was not allowed to perform such a procedure and therefore could not have made the

diagnosis.

       Dr. McMaster did testify that during the eight day period between January 16th -- when

Thompson last saw Dr. Marioni -- and January 24th -- the date the infection was diagnosed by a

physician, Thompson most likely suffered further deterioration of her knee. But he could not

quantify the deterioration and “did not know of even a scale [he] could use.” The exchange

below followed:

       Q. [BY COUNSEL FOR DR. MARIONI]: That nothing [Dr. Marioni] could
       have -- even if he had referred her right then and there, she -- the damage would
       have already been done to her knee?

       A. [BY DR. McMASTER]: Certainly to a great degree, yes.

       Q. Okay. Would she likely have suffered the same complications in her
       subsequent knee replacement surgery?


                                             - 14 -
        A. It -- the reason I am hesitant is because what actually happened is her knee
        underwent a spontaneous fusion, which indicates the entire synovium was wiped
        out. It would be my opinion that it would have been much less likely that that
        would have occurred had she promptly been referred.

        Q. There’s just no way to know?

        A. There’s no way to know.

Nor could Dr. McMaster assign a percentage of “less likely.” He “would simply be guessing,

which is not appropriate.” Finally, he admitted, “[t]here’s no way to know.”

        Dr. R. David Bauer testified as a witness for Dr. Marioni via a videotaped deposition.

Dr. Bauer is a board certified orthopedic surgeon specializing in spinal injury and disease.6 He

reviewed Thompson’s medical records from her 1999 knee injury “up to and including her knee

replacement surgery and subsequent fusion.” According to Dr. Bauer, if the infection was

present on January 16th, there was nothing Dr. Marioni could have done as a chiropractor to

remove it. There was no way to know how much damage occurred as a result of the delay in

diagnosis between January 16th and January 24th. When asked if there were “any way to tell

whether the knee was, in fact, the same, worse, or better during that eight day delay,” and he

responded, “[t]here’s absolutely no way to know.” Both experts agreed that the longer an

infection persists, the more likely it is to cause harm and that the resulting harm will be worse.




6
   In addition, Dr. Bauer testified that he is not only authorized to see workers’ compensation patients, but was
appointed by the Texas Department of Insurance to the medical quality review board. As a member of the review
board, Dr. Bauer reviews the care that workers’ compensation patients receive. This review encompasses care
patients receive from both physicians and non-physician practitioners and includes care from chiropractors and
physical therapists. Dr. Bauer also testified that he has experience with referring patients to chiropractors and
physical therapists, as well as with treating patients referred by chiropractors and physical therapists.

                                                     - 15 -
                                             Analysis

       Dr. Marioni challenges the legal sufficiency of the evidence to establish the causal

connection between the breach of the standard of care and the injury or harm suffered by

Thompson. At trial, Thompson bore the burden of establishing a causal connection between her

injury and the negligence of Dr. Marioni based upon “reasonable medical probability,” not mere

conjecture, speculation, or possibility. See, e.g., Park Place Hosp. v. Estate of Milo, 909 S.W.2d

508, 511 (Tex. 1995); Burroughs Wellcome Co. v. Crye, 907 S.W.2d 497, 500 (Tex. 1995);

Kramer v. Lewisville Mem’l Hosp., 858 S.W.2d 397, 400 (Tex. 1993); Duff v. Yelin, 751 S.W.2d

175, 176 (Tex. 1988). In other words, the ultimate standard of proof on the causation issue is

whether, “by a preponderance of the evidence, the negligent act or omission is shown to be a

substantial factor in bringing about the harm and without which the harm would not have

occurred.” Park Place Hosp., 909 S.W.2d at 511, citing Kramer, 858 S.W.2d at 400. Therefore,

as applied to this case, the issue is would there have been a better outcome had the diagnosis of

her knee infection been made immediately after seeing Dr. Marioni and if so, would that better

outcome have avoided a spontaneous knee auto-fusion?

       The implications of an emergent or immediate referral are clear enough -- Thompson

would be seen by a physician before January 24th, the date she did in fact see a physician as a

result of Dr. Marioni’s referral. But the reality of applying this negligent act or omission in the

context of a causation problem is much more complex.              The evidence establishes that

Dr. Marioni did not cause the infection. The infection resulted from an injection administered by

Dr. Stolar and had been present in Thompson’s knee for approximately three weeks when

Dr. Marioni saw her on January 24th. The uncontradicted evidence also shows that a physician

inserting a needle into Thompson’s knee and drawing out fluid was the only way Thompson’s

                                              - 16 -
knee infection could be diagnosed.7 Therefore, even assuming that providing an immediate or

emergent referral meant literally sending someone immediately, and that Dr. Marioni did in fact

send Thompson directly from his office straight over to Dr. Hernandez’s office on January 16th,

Thompson would still have had an infection and still have had to have a needle inserted into her

knee to draw out fluid.8

         We must determine whether the evidence is sufficient to prove, by a preponderance of the

evidence, that had Dr. Marioni made an immediate referral on January 16th, a “reasonable

medical probability” existed that Thompson’s auto-fusion would not have occurred. There was

no evidence detailing how the infection may have progressed between January 16th and January

24th. There was no testimony as to the normal progression of that type of bacterial infection nor

how it would have been treated had it been caught earlier. The record may be crystallized to one

statement: the auto-fusion would have been “less likely” if Thompson had been seen by an

orthopedic surgeon immediately, and even then, there is no way to know how “less likely” it

would have been.

         We must conclude that Thompson produced legally insufficient evidence that had she

been immediately referred to a physician, she would not have suffered the injuries forming the



7
  As a chiropractor, Dr. Marioni could not diagnose or treat the infection, regardless of whether or not he suspected
such infection existed.
8
  Of note, even if we assume that Thompson saw Dr. Hernandez on January 16 th, we must then also assume one of
three alternatives: (1) Dr. Hernandez would have immediately suspected a knee infection if he saw Thompson on
January 16th; or (2) that Dr. Marioni did in fact tell Thompson he suspected a knee infection and that Thompson
would have relayed that suspicion to Dr. Hernandez; or (3) that Dr. Marioni did in fact suspect a knee infection and
would have informed Dr. Hernandez of his suspicion as party of the emergent referral. However, if one of the three
above alternatives occurred, then it is reasonable to assume, based on the facts and what actually happened when
Thompson saw a physician on January 24th, that the physician would have drawn fluid from her knee, diagnosed the
infection and begun treatment.

                                                       - 17 -
basis of her suit.      Dr. McMaster’s testimony provides mere speculation.          We sustain

Dr. Marioni’s issue on appeal and reverse and render the judgment as to him.

                                  THOMPSON’S APPEAL

       In her appeal, Thompson presents two issues. In Issue One, she challenges the factual

sufficiency of the evidence to support the jury’s findings on damages. In Issue Two, she

complains that the trial court erred in granting a directed verdict in favor of Alivio Treatment

Centers, P.A. because the evidence was legally sufficient to prove that Dr. Stolar was the

apparent agent of this entity.

                                          DAMAGES

       The jury found that both Dr. Stolar and Dr. Marioni were negligent and that such

negligence proximately caused injury to Thompson. As a result, the jury awarded Thompson

$66,000 in damages for future medical expenses and $100,000 in damages for loss of earning

capacity. However, the jury awarded zero damages for the remaining categories of damages:

past and future physical pain and mental anguish; past and future physical impairment; past and

future disfigurement; and past medical expenses.       The first issue challenges the factual

sufficiency of the evidence to support the jury’s findings on damages.         More specifically,

Thompson challenges each of the jury’s zero damages findings as against the great weight and

preponderance of the evidence because there is uncontroverted evidence of an objective injury.

Thompson also challenges the jury’s finding of $66,000 for future medical expenses as against

the great weight and preponderance of the evidence.

                                      Standard of Review

       A challenge to the propriety of a damages award is subject to factual sufficiency review.

See Lofton v. Texas Brine Corp., 720 S.W.2d 804, 805 (Tex. 1986). When conducting a factual

                                             - 18 -
sufficiency review, we must consider and weigh all of the evidence, both in support of and

against the findings, in order to decide whether the verdict should be set aside. Doctor v.

Pardue, 186 S.W.3d 4, 17 (Tex.App.--Houston [1st Dist.] 2006, pet. denied), citing Pool v. Ford

Motor Co., 715 S.W.2d 629, 635 (Tex. 1986); see Ortiz v. Jones, 917 S.W.2d 770, 772 (Tex.

1996); Lofton, 720 S.W.2d at 805. We reverse and remand for a new trial only if the verdict is so

against the great weight and preponderance of the evidence that it is manifestly unjust or

shocking to the conscience. Golden Eagle Archery, Inc. v. Jackson, 116 S.W.3d 757, 761 (Tex.

2003); Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986); Pool, 715 S.W.2d at 635.

       In conducting our review, we must bear in mind that the jury is the sole judge of the

credibility of the witnesses and the weight to be given to their testimony. Golden Eagle Archery,

116 S.W.3d at 761; Jones v. Tarrant Util. Co., 638 S.W.2d 862, 866 (Tex. 1982). As this court

is not a fact finder, we may not substitute our judgment for that of the jury, even if the evidence

would clearly support a different result. Pool, 715 S.W.2d at 634. Further, as fact finder, the

jury is free to believe one witness and disbelieve another. McGalliard v. Kuhlmann, 722 S.W.2d

694, 697 (Tex. 1986). The jury also resolves any inconsistencies in any witness’s testimony.

McGalliard, 722 S.W.2d at 697. Where the award is based on non-empirical damages such as

mental anguish and pain and suffering, the court will generally leave that determination to the

discretion of the jury. See Dico Tire, Inc. v. Cisneros, 953 S.W.2d 776, 791-92 (Tex.App.--

Corpus Christi 1997, writ denied).

       Where, as here, someone suffers personal injuries, the damages fall within two broad

categories: economic and non-economic damages. Golden Eagle Archery, 116 S.W.3d at 763.

Texas recognizes the following categories of non-economic damages: pain, suffering, mental

anguish, disfigurement, and physical impairment. Id. at 769. These categories of non-economic

                                              - 19 -
damages may overlap. Id. at 770. When the jury’s failure to award damages in more than one

overlapping category is challenged, we must first determine if the evidence unique to each

category is factually sufficient. Id. at 775. If it is not, we must then consider all of the

overlapping evidence, together with the evidence unique to each category, to determine if the

total amount awarded in the overlapping categories is factually sufficient. Id. This standard of

review gives due regard to a jury’s choice of whether to award damages and if so, how to

categorize those damages that could reasonably fall into more than one category of damages. Id.

       Finally, “[b]efore a court can properly conduct a factual sufficiency review, it must first

have a clear understanding of the evidence that is pertinent to its inquiry. The starting point

generally is the charge and instructions to the jury.” Golden Eagle Archery, 116 S.W.3d at 762.

In the instant case, the relevant jury question asked the jury to fill in nine blanks: (1) past

physical pain and mental anguish; (2) future physical pain and mental anguish; (3) past physical

impairment; (4) future physical impairment; (5) past disfigurement; (6) future disfigurement; (7)

past medical expenses; (8) future medical expenses; and (9) loss of earning capacity. The only

definition relevant to the various categories of damages contained in the charge was the

definition of mental anguish. Specifically, the jury was instructed as follows:

       ‘Mental Anguish,’ means a relatively high degree of mental pain and distress. It
       is more than mere disappointment, anger, resentment, or embarrassment, although
       it may include all of these. It includes a mental sensation of pain resulting from
       such painful emotions as grief, severe disappointment, indignation, wounded
       pride, shame, despair, and/or public humiliation.

The jury was also instructed to award only those damages which would fairly and reasonably

compensate Thompson for any injury she may have suffered as a result of the occurrence in

question.   [Emphasis added].     Further, by a separate paragraph, the jury was specifically

instructed as follows:

                                              - 20 -
       Do not include any amount for any condition not resulting from the occurrence in
       question.

Likewise, the jury was instructed not to include any amount for any condition: (1) relating to

Thompson’s failure to act as “a person of ordinary prudence would have done under the same or

similar circumstances in caring for and treating her injuries, if any, that resulted from the

occurrence in question,” and (2) existing prior to the occurrence in question, “except to the

extent, if any, that such other condition was aggravated by any injuries that resulted from the

occurrence in question.”    Finally, the charge instructed the jury to consider each element

separately and to exclude damages for one element in any other element. Unless the record

demonstrates otherwise, we must presume the jury followed the instructions given. Golden

Eagle Archery, 116 S.W.3d at 771.

                    Zero Damages Despite Evidence of an Objective Injury

       The presence or absence of pain is an inherently subjective question for which the

plaintiff bears the burden of production and persuasion. Enright v. Goodman Distribution, Inc.,

330 S.W.3d 392, 398 (Tex.App.--Houston [14th Dist.] 2010, no pet.), citing Dollison v. Hayes,

79 S.W.3d 246, 249-51 (Tex.App.--Texarkana 2002, no pet.); see Waltrip v. Bilbon Corp., 38

S.W.3d 873, 881 (Tex.App.--Beaumont 2001, pet. denied). However, when uncontroverted

evidence of an objective injury exists, a jury finding that the plaintiff suffered no past pain and

suffering is against the great weight and preponderance of the evidence.              Hammett v.

Zimmerman, 804 S.W.2d 663, 665 (Tex.App.--Fort Worth 1991, no writ); see Lopez v. Salazar,

878 S.W.2d 662, 662-63 (Tex.App.-Corpus Christi 1994, no writ); see also Lowery v. Berry, 269

S.W.2d 795, 796-97 (Tex. 1954)(holding that where a party establishes damages as matter of

law, a jury is not at liberty to award zero damages). Alternatively, if the plaintiff’s complaints


                                              - 21 -
are subjective in nature and, therefore, incapable of direct proof, the jury may award zero

damages. See Hyler v. Boytor, 823 S.W.2d 425, 427-28, citing Blizzard v. Nationwide Mut. Fire

Ins. Co., 756 S.W.2d 801, 805 (Tex.App.--Dallas 1988, no writ); see also Sanchez v. King, 932

S.W.2d 177, 182 (Tex.App.--El Paso 1996, no writ)(finding that where evidence of plaintiff’s

injury is purely subjective, as in soft tissue cases, a jury may deny an award of damages).

                                             Analysis

       The record contains uncontroverted evidence that Thompson suffered from several

physical problems. At the time of trial, Thompson’s knee was permanently fused, causing her

knee to remain straight and fully extended at all times. Her knee also bears a large scar and

pictures taken one week prior to trial and depicting the scar on Thompson’s knee were admitted

into evidence.

       However, there was also evidence of several different events, all of which the jury could

have believed played a role in Thompson’s injuries. First, there was testimony regarding

Thompson’s 1999 car accident, the injury to her knee and ankle, and the multiple surgeries that

followed, all of which occurred before Thompson even met the Appellees. This evidence

included medical records from Dr. Hernandez detailing Thompson’s injuries and explaining that

she would eventually have to undergo a total knee replacement.            Dr. Hernandez’s notes

repeatedly described Thompson’s pain as severe, and in a note from February 2004 he describes

Thompson as “severely debilitated.” There were also notes from Dr. Hernandez’s medical report

that, more than a year before Thompson ever saw Dr. Marioni or Dr. Stolar, she was taking

narcotic pain medication to control her pain and “get through the day.”           There was also

testimony that the second, post-knee replacement infection which eventually required doctors to

surgically and permanently fuse her knee, was caused by a fall Thompson had after her knee

                                              - 22 -
replacement surgery. The jury was instructed not to “include any amount for any condition not

resulting from the occurrence in question.” Here, the jury could have reasonably believed that

the knee replacement surgery was inevitable and the subsequent falls which led to infection and

eventually to a surgical fusion of Thompson’s knee were unrelated to Dr. Stolar’s negligence.

For these same reasons, the jury’s award of $66,000 for future medical expenses is not against

the great weight and preponderance of the evidence.

       Finally, we address Thompson’s contention that the evidence is factually insufficient to

support an award of no damages for past medical expenses. With respect to past medical

expenses, the jury heard evidence that all of Thompson’s past medical expenses had been paid by

worker’s compensation.      There was no limiting instruction given with this information.

Therefore, the jury could have decided that based on the amounts paid by worker’s compensation

benefits, Thompson was fairly compensated for past medical expenses.              Accordingly, the

evidence is sufficient to sustain a zero damages award for past medical expenses.

       As stated above, the fact finder is the sole judge of the credibility of the witnesses and the

weight to be given their testimony. As fact finder the jury was also free to believe one witness

and disbelieve another, and resolve inconsistencies in testimony. Keeping this in mind, we find

the evidence is factually sufficient to sustain the jury’s findings of zero damages for pain and

suffering and mental anguish, physical impairment and disfigurement as well as the $66,000

award for future medical expenses. We overrule Thompson’s first issue.

                                       DIRECTED VERDICT

       In Thompson’s second issue, she challenges the trial court’s decision to direct a verdict in

favor of Alivio Treatment Centers because the evidence was legally insufficient to prove Alivio

held Dr. Stolar out as its employee or agent.

                                                - 23 -
                                       Standard of Review

       A directed verdict is proper only under limited circumstances: (1) when the evidence

conclusively establishes the right of the movant to judgment or negates the right of the opponent;

or (2) when the evidence is insufficient to raise a material fact issue. See Farlow v. Harris

Methodist Fort Worth Hosp., 284 S.W.3d 903, 919-20 (Tex.App.--Fort Worth 2009, pet. denied),

citing Prudential Ins. Co. v. Fin. Review Servs., Inc., 29 S.W.3d 74, 77 (Tex. 2000) and Hogue v.

Propath Lab., Inc., 192 S.W.3d 641, 646 (Tex.App.--Fort Worth 2006, pet. denied).               In

reviewing a directed verdict, we must credit favorable evidence if reasonable jurors could and

disregard contrary evidence unless reasonable jurors could not. Farlow, 284 S.W.3d at 919-20,

citing City of Keller v. Wilson, 168 S.W.3d 802, 827 (Tex. 2005).

       When the question to be decided is whether the party opposing the directed verdict raised

a material fact issue, we consider all the evidence in a light most favorable to the party against

whom the verdict was instructed. Farlow, 284 S.W.3d at 920. In doing so, we disregard all

contrary evidence and inferences, and we give the opposing party the benefit of any reasonable

inferences created by the evidence. See Coastal Transp. Co. v. Crown Cent. Petroleum Corp.,

136 S.W.3d 227, 234 (Tex. 2004). If we determine that any conflicting evidence of probative

value raises a material fact issue on any theory of recovery, then the directed verdict is improper

because such an issue is for the jury to resolve. Szczepanik v. First S. Trust Co., 883 S.W.2d

648, 649 (Tex. 1994).

                                       Ostensible Agency

       “Ostensible agency,” also known as agency by estoppel or apparent agency, does not

depend upon an express appointment or actual authority but instead arises from the words,

attitude, conduct, and knowledge of the principal, not the agent. Valdez v. Pasadena Healthcare

                                              - 24 -
Mgmt., Inc., 975 S.W.2d 43, 49 (Tex.App.--Houston [14th Dist.] 1998, pet. denied). In fact, an

ostensible or apparent agent is not really an agent at all. Id. Rather, ostensible agency in Texas

is based on the notion of estoppel, that is, some representation by the principal causes justifiable

reliance and results in harm. Baptist Memorial Hospital Sys. v. Sampson, 969 S.W.2d 945, 948

(Tex. 1998); Ames v. Great Southern Bank, 672 S.W.2d 447, 450 (Tex. 1984). The elements of

ostensible agency are that: (1) the principal (Alivio), by some holding out or act; (2) caused the

third party (Thompson) to reasonably believe in the agent’s (Dr. Stolar’s) authority; and (3) the

third party (Thompson) justifiably relied on the representation of authority. Baptist Memorial

Hospital Sys., 969 S.W.2d at 948.

       On appeal, Thompson complains that the evidence raised fact issues with respect to each

of the three elements of ostensible agency. Specifically, Thompson contends that there are

genuine issues of material fact as to whether Dr. Stolar was Alivio’s ostensible agent based on

the following evidence: (1) Dr. Marioni and Dr. Stolar both leased office space from Alivio; (2)

the office building bore the sign “Alivio Treatment Centers” and there was no signage posted

inside the offices stating that Dr. Marioni and Dr. Stolar had separate practices; (3) the two

doctors shared a waiting area and a receptionist; (4) the receptionist made appointments for both

doctors; and (5) Dr. Marioni referred patients to Dr. Stolar for medical services which he could

not provide.

       Thompson relies on evidence of Alivio’s failures to sufficiently distinguish itself and Dr.

Marioni’s practice from Dr. Stolar’s practice. However, a finding of ostensible agency requires

an affirmative act on the part of the principal (Alivio).         Absent any evidence of such an

affirmative act which Thompson relied upon, and absent any evidence that such reliance caused

her harm, a directed verdict is proper. Issue Two is overruled.

                                               - 25 -
                                    DR. STOLAR’S APPEAL

       Dr. Stolar, appearing pro se, brings several issues challenging the sufficiency and validity

of the evidence to support the verdict against him. The initial paragraph in his summary of the

argument reflects his position:

       Even though evidence was presented, which included expert testimony[,] all the
       evidence, accusations, allegations and related comments were based on opinions
       only. As stated in the Affidavit and the Second Motion for New Trial . . .
       Dr. Stolar’s contention is that the entire case against him was built on a false
       premise: Ms. Maria G. Thompson’s knee infection was caused by Dr. Stolar’s
       injections.”

With regard to the appropriate standard of review for legal sufficiency, he questions, “How can

courts assume that jurors credited testimony favorable to the verdict and disbelieved evidence

contrary to it, when in fact jurors were not even exposed to contrary evidence?” He further

posits that if the jury is expected to resolve conflicts in the evidence, it is indispensable that the

jury be presented with contrary evidence:

       It follows that in the absence of contrary evidence there cannot even be the
       possibility of conflict. . . . The absence of contrary evidence would in fact disable
       reasonable and fair minded people not only from differing in their conclusions but
       even from reaching valid conclusions as to the culpability or innocence of
       Dr. Stolar. As far as the evidence falling within the zone of reasonable
       disagreement, there can be no disagreement when there is only one-sided
       evidence, as was the case in the trial against Dr. Stolar.

We do not disagree with his statement of the standard of review. But as a defendant, it was

indeed Dr. Stolar’s obligation to present contrary evidence. He did not do so, although portions

of his deposition were read to the jury in which he testified concerning his treatment of

Thompson. We overrule Issue One.

       In Part A of his second issue, Dr. Stolar challenges the validity of the evidence. In so

doing, he contends that there is indeed “physical evidence that can and will prove its falsehood


                                                - 26 -
beyond any doubt, in a way that the entire structure of this case against Dr. Stolar will just

crumble and justice will be served.” He claims that all of the testimony and medical reports were

taken out of context because an essential time frame was missing.             It was Dr. Stolar’s

responsibility to present this evidence at trial, to object to the testimony of expert witnesses or

otherwise challenge evidence supporting his negligence. He did not do so. This brings us to the

procedural posture of the case and the basis for his argument in Part B of Issue Two.

       Dr. Stolar alleges that he is entitled to a new trial for a variety of reasons. We first

recount the timetable. This lawsuit was filed October 31, 2007. Attorney Rodney Baxter filed

an answer on behalf of Dr. Stolar on May 2, 2008. Dr. Stolar lost his visa status on July 6, 2010.

Baxter was permitted to withdraw on April 2, 2011, approximately six weeks before trial began

on May 16, 2011. Dr. Stolar was unable to attend the hearing on Baxter’s motion due to his

immigration status.

       Dr. Stolar maintains in his brief that he was unable to attend the trial because of an

“unrelated immigration status situation, which culminated in the invalidation of his visa, without

which Customs and Border Protection denied his entry to the USA on the eve of trial.” As we

have noted, the record clearly reflects that Dr. Stolar lost his immigration status on July 6, 2010,

nearly a year before trial. On the day trial commenced, Dr. Stolar’s immigration attorney, Jesse

Herrera, appeared and explained the situation to the trial court:

       THE COURT: Are you Doctor Stolar.

       MR. HERRERA: Your Honor, I’m Jesse Herrera. I represent him in his
       immigration matter. And he is not able to cross over, Judge, and he wanted me to
       come down here and inform the Court. We’re still trying to cross him over as we
       speak. I have somebody down at the bridge trying to get him across. And he has
       some immigration issues with his visa, and that’s what I’m trying to do. That’s
       why I came here this morning -- to inform the Court.


                                               - 27 -
        THE COURT: You’re not going to participate in the trial itself?

        MR. HERRERA: No, Judge. I’m just an immigration lawyer, yes.

        THE COURT: You’re just informing me that he’s trying to cross over?

        MR. HERRERA: Yeah, he’s trying to -- he’s over there right now, Judge. Now,
        I’m not sure he’s going to make it over today. We need to get a paid escort to
        bring him over, but we want Immigration to approve it and they haven’t approved
        it yet. We have been trying to do this since Friday.

        THE COURT: All right.

        MR. HERRERA: So, with that, Judge, can I be excused?

        THE COURT: Yes, you may.

        MR. HERRERA: Thank you, Your Honor.

        THE COURT: Thank you.

        MR. HERRERA: And is there anything I can tell him, Judge, regarding
        what’s going to take place?

        THE COURT: Tell him we’re moving forward.

        MR. HERRERA: Okay.

        THE COURT: So hopefully, he gets here. If he’s not, then we just – there’s
        going to be an empty chair here.

        MR. HERRERA: I’ll try to do that, sir. [Emphasis added].

No oral or written motion for continuance was urged and Dr. Stolar never appeared for trial.

        The case was tried to a jury between May 16th and May 20, 2011. The trial court entered

judgment in accordance with the verdict on June 8, 2011. A timely motion for new trial, signed

by Jesse Herrera and filed on July 7, 20119, was denied by written order on July 14, 2011.

Dr. Stolar apparently filed a second motion for new trial on August 23, 2011, after the court had
9
  A motion for new trial shall be filed prior to or within thirty days after the judgment is signed. T EX.R.C IV.P.
329b(a).

                                                      - 28 -
denied the first one.10 It does not appear in the clerk’s record and is only contained as an

appendix to Dr. Stolar’s brief. On this basis alone, we cannot consider it.11 This motion was

signed by Rodney Baxter and predicated on newly discovered evidence. It was accompanied by

a six-page affidavit from Dr. Stolar. But as he himself notes in his brief, there is no evidence in

the record that the second motion was received or read by the trial judge. Nor could it have been

granted inasmuch as the trial court’s plenary power had already expired.12 We overrule Issue

Two in its entirety.

         The trial court’s judgment as to Dr. Marioni is reversed and a take nothing judgment

rendered. Having overruled the issues raised by Thompson and Dr. Stolar, the remainder of the

judgment is affirmed.


October 8, 2014
                                               ANN CRAWFORD McCLURE, Chief Justice



Before McClure, C.J., Rivera, and Rodriguez, JJ.
(Rivera, J., not participating)




10
  One or more amended motions for new trial may be filed without leave of court before any preceding motion for
new trial is overruled and within thirty days after the judgment is signed. T EX.R.C IV.P. 329b(b). [Emphasis
added].
11
   An appellate court may not consider matters outside the appellate record. Siefkas v. Siefkas, 902 S.W.2d 72, 74
(Tex.App.--El Paso 1995, no writ). The attachment of documents as appendices to briefs is not formal inclusion in
the record on appeal and the documents cannot be considered. Perry v. Kroger Stores, Store No. 119, 741 S.W.2d
533, 534 (Tex.App.--Dallas 1987, no writ).
12
   If a motion for new trial is timely filed, the trial court has plenary power to grant a new trial until thirty days after
all timely filed motions are overruled by written order or by operation of law, whichever first occurs. T EX.R.C IV.P.
329b(e).

                                                          - 29 -
