                             NUMBER 13-10-00554-CV

                            COURT OF APPEALS

                  THIRTEENTH DISTRICT OF TEXAS

                    CORPUS CHRISTI – EDINBURG

COMMERCE & INDUSTRY INSURANCE COMPANY,                                  Appellant,

                                            v.

KIMBERLY FERGUSON-STEWART, ET AL.,                                      Appellees.


                   On appeal from the 163rd District Court
                         of Orange County, Texas.


                         MEMORANDUM OPINION
     Before Chief Justice Valdez and Justices Rodriguez and Garza
                Memorandum Opinion by Justice Garza
      When pain medication is prescribed for an employee’s on-the-job injury, and that

employee later dies from an overdose of that medicine, is the death compensable by

worker’s compensation? In this case, the trial court rendered judgment that such a

death was compensable.       Appellant Commerce & Industry Insurance Co. (“CIIC”)

argues by two issues that the trial court erred. We affirm.
                                          I. BACKGROUND

        Bruce Mason Stewart was injured on May 25, 2004 while working for

AltairStrickland, an industrial contracting firm. A bolt weighing several pounds fell from

above, striking Stewart and injuring his shoulder and neck.                Magnetic resonance

imaging showed “minor disc bulges” at three levels on his cervical vertebrae. John

Bergeron, M.D., Stewart’s treating physician, diagnosed Stewart with a left shoulder

contusion and prescribed hydrocodone, an analgesic, as part of Stewart’s treatment

plan.   Dr. Bergeron instructed Stewart to take one pill containing 7.5 milligrams of

hydrocodone every eight hours.

        Stewart filed a claim with CIIC, his employer’s worker’s compensation carrier.

CIIC initially denied the compensability of Stewart’s claim. However, the Division of

Worker’s Compensation of the Texas Department of Insurance (the “Division”) 1

overturned CIIC’s decision.           CIIC then sought judicial review of the Division’s

determination in the 133rd District Court of Harris County, Texas. See TEX. LAB. CODE

ANN. § 410.251 (West 2006). The district court affirmed the Division’s determination

that Stewart’s injury was compensable, and the First Court of Appeals affirmed the

district court’s judgment. See Commerce & Indus. Ins. Co. v. Ferguson-Stewart, 339

S.W.3d 744, 746–47 (Tex. App.—Houston [1st Dist.] 2011, no pet.) (concluding in part

that the trial court did not err by excluding evidence of Stewart’s history of prescription

drug use).

        On October 3, 2004, while his worker’s compensation claim was still being

contested, Stewart died from an overdose of hydrocodone. A toxicology report showed

that Stewart’s blood contained a hydrocodone level of 0.38 mg/L, which is consistent

        1
            Formerly known as the Texas Worker’s Compensation Commission (“TWCC”).
                                                 2
with acute severe toxicity.2 The toxicology report also showed that Stewart’s blood

contained carisoprodol, a prescription muscle relaxant, and marihuana.

        Stewart’s widow, appellee Kimberly Ferguson-Stewart, sought death benefits

from CIIC through the Division. However, the Division determined that Stewart failed to

comply with Dr. Bergeron’s instructions and that this failure resulted in Stewart’s death.

Accordingly, the Division concluded that Stewart’s death did not result from the

compensable injury he sustained in 2004, and it ruled that Ferguson-Stewart was not

entitled to death benefits. See TEX. LAB. CODE ANN. § 401.011(31) (West Supp. 2010)

(“An insurance carrier shall pay death benefits to the legal beneficiary if a compensable

injury to the employee results in death.”). Ferguson-Stewart then petitioned for judicial

review of the Division’s determination in the 163th District Court of Orange County,

Texas.3 See id. §§ 410.251, 410.301(a) (West 2006). After a trial, a jury concluded that

Stewart’s death resulted from the treatment for his 2004 compensable injury, and

therefore, Ferguson-Stewart was entitled to death benefits. The trial court rendered

judgment on the verdict and this appeal followed.4

                                            II. DISCUSSION




        2
          At trial, Patricia Rosen, M.D., testified that “[Stewart]’s autopsy showed 10 times as much
[hydrocodone] as what one would expect with therapeutic use.” Dr. Rosen also stated that “[i]f the patient
was taking 7.5 milligrams [of hydrocodone] per pill, we know that the dose would have been
approximately 20 of those pills. So the amount ingested was much higher than what would be
prescribed.”
        3
           Bruce Stewart’s other beneficiaries—minor children Bruce Wayne Stewart, Crystal Leann
Stewart and Daniel Scott Frasier—were named alongside Ferguson-Stewart as plaintiffs in the district
court suit. These parties, all of whom are appellees in the instant proceeding, will be referred to
collectively as “Ferguson-Stewart.”
        4
          This case was transferred from the Ninth Court of Appeals pursuant to a docket equalization
order issued by the Texas Supreme Court. See TEX. GOV’T CODE ANN. § 73.001 (West 2005).

                                                    3
         CIIC contends by its first issue that the evidence was legally and factually

insufficient to show that Stewart’s death resulted from medical treatment instituted to

relieve the effects of his compensable injury.         It argues by its second issue that

Ferguson-Stewart is not entitled to recover death benefits under the Texas Worker’s

Compensation Act (“TWCA”). Because these issues are essentially identical, we will

address them together.

A.       Standard of Review

         In evaluating the legal sufficiency of the evidence supporting a verdict, we

consider the evidence in the light most favorable to the verdict and indulge every

reasonable inference that would support it. City of Keller v. Wilson, 168 S.W.3d 802,

822 (Tex. 2005). We will sustain a legal sufficiency challenge only if: (1) there is a

complete absence of evidence of a vital fact; (2) the court is barred by rules of law or of

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 mere scintilla; or (4) the

evidence establishes conclusively the opposite of the vital fact. Id. at 810. “When the

evidence offered to prove a vital fact is so weak as to do no more than create a mere

surmise or suspicion of its existence, the evidence is no more than a scintilla and, in

legal effect, is no evidence.” Jelinek v. Casas, 328 S.W.3d 526, 532 (Tex. 2010) (citing

Kindred v. Con/Chem, Inc., 650 S.W.2d 61, 63 (Tex. 1983)).

         In reviewing factual sufficiency, we consider all the evidence in a neutral light and

will set aside the judgment only if it is so contrary to the overwhelming weight of the

evidence as to be clearly wrong and unjust. Cain v. Bain, 709 S.W.2d 175, 176 (Tex.

1986).



                                               4
       We construe administrative rules, which have the same force as statutes, in the

same manner as statutes, and we must ensure that the agency, here the Division, has

interpreted its rules in harmony with its enabling statute. See Rodriguez v. Serv. Lloyds

Ins. Co., 997 S.W.2d 248, 254 (Tex. 1999); Southern Ins. Co. v. Brewster, 249 S.W.3d

6, 15 (Tex. App.—Houston [1st Dist.] 2007, pet. denied); Cont’l Cas. Co. v. Rivera, 124

S.W.3d 705, 710 (Tex. App.—Austin 2003, pet. denied). “[A]n agency’s interpretation of

a statute it is charged with enforcing is entitled to ‘serious consideration,’ so long as the

construction is reasonable and does not conflict with the statute’s language.”          R.R.

Comm’n of Tex. v. Tex. Citizens for a Safe Future & Clean Water, 336 S.W.3d 619, 624

(Tex. 2011).

B.     Applicable Law

       The TWCA provides that, with certain exceptions not applicable here, an

employee is entitled to compensation from his employer’s worker’s compensation

insurance carrier, without regard to fault or negligence, if his injury arises out of and in

the course and scope of employment. TEX. LAB. CODE ANN. § 406.031 (West 2006).

Death benefits are payable to the legal beneficiaries of a deceased employee if a

compensable injury results in the employee’s death. Id. § 408.181(a) (West 2006).

When death benefits are sought, a

       [c]ausal connection must be established between the injury and the death.
       The injury must be the producing cause of the death, and producing cause
       has been defined as that cause which, in a natural and continuous
       sequence, produces the death . . . in issue, and without which the
       death . . . would not have occurred.

Transcont’l Ins. Co. v. Crump, 330 S.W.3d 211, 222 (Tex. 2010) (citing Jones v. Traders

& Gen. Ins. Co., 140 Tex. 599, 169 S.W.2d 160, 162 (1943)).



                                             5
       In a 1993 opinion, the Division’s appeal panel stated that the law does not

“include, within the ambit of compensable injury, every consequence that might

arguably not have occurred ‘but for’ the fact of an injury”; nevertheless, the law does

support “compensation for a condition brought about by reasonable or necessary

medical treatment for a work related injury.” TWCC Appeal No. 93612, 1993 TX Wrk.

Comp. LEXIS 3515, at *19 (Sep. 3, 1993) (emphasis added) (citing Home Ins. Co. v.

Gillum, 680 S.W.2d 844 (Tex. App.—Corpus Christi 1984, writ ref’d n.r.e.); Liberty Mut.

Ins. Co. v. Pool, 449 S.W.2d 121, 123 (Tex. Civ. App.—Texarkana 1969, writ ref’d

n.r.e.)). In particular,

       [w]here disability or death results from medical treatment instituted to cure
       or relieve an employee from the effects of his injury, it is regarded as
       having been proximately caused by the injury and is compensable; such
       aggravation is regarded as a probable sequence and natural result likely
       to flow from the injury.

W. Cas. & Sur. Co. v. Gonzales, 506 S.W.2d 303, 309 (Tex. Civ. App.—Corpus Christi

1974), aff’d, 518 S.W.2d 524 (Tex. 1975). However, “damage or harm that results from

the failure of a claimant to comply with doctor’s instructions is not included within the

scope of the original compensable injury.” TWCC Appeal No. 050105-s, 2005 TX Wrk.

Comp. LEXIS 50, at *8 (Mar. 8, 2005); TWCC Appeal No. 94257, 1994 TX Wrk. Comp.

LEXIS 5675, at *6 (Apr. 18, 1994).

       As the party challenging the determination of the Division’s appeals panel,

Ferguson-Stewart had the burden at trial to persuade the jury by a preponderance of

the evidence that Stewart’s death was the result of treatment for his compensable

injury. TEX. LAB. CODE ANN. § 410.303 (West 2006); see Transcont’l Ins. Co., 330

S.W.3d at 226 (quoting Morales v. Liberty Mut. Ins. Co., 241 S.W.3d 514, 516 (Tex.

2007)) (“[T]he appealing party bears the burden of proof by a preponderance of the
                                            6
evidence.     The factfinder may consider, but is not bound by, the appeals panel’s

decision. The method of review that [the labor code] provides is known as modified de

novo review.”).5

C.      Analysis

        The following facts were undisputed at trial: Stewart’s original 2004 injury was

compensable; Stewart’s treating physician prescribed hydrocodone to relieve the pain

caused by that injury; the prescription constituted “reasonable or necessary” medical

treatment for that injury; and Stewart died from an overdose of hydrocodone. The only

issue at trial and on appeal is whether Stewart’s death resulted from this medical

treatment.

        The jury charge in this case instructed the jury that “[a] claimant’s death does not

result from medical treatment instituted to relieve the effects of his compensable injury if

the death results solely from a claimant intentionally or knowingly failing to comply with

his doctor’s instructions.”6 The parties do not direct us to any judicial or administrative

authority, and we find none, establishing either that (1) a failure to comply with doctor’s

instructions must be shown to be “intentional” or “knowing” in order to avoid

        5
           In her appellate brief, Ferguson-Stewart characterizes CIIC’s position as a “sole proximate
cause defense,” noting that: (1) CIIC is asserting that Stewart’s death is not compensable because it was
not the result of reasonable and necessary medical treatment, and (2) “injuries are compensable even if
the workplace incident was merely one of several producing causes of the injury . . . .” Ferguson-Stewart
proceeds to argue that, “[b]ecause of the statutory scheme and the implicit policy imperatives, when the
carrier raises a sole proximate cause defense, it, and not the claimant, bears the burden of proof.”
Without determining whether Ferguson-Stewart’s characterization of CIIC’s appellate argument is
accurate, we do not believe the legal proposition is supported by law. The TWCA clearly states that the
party challenging the determination of the Division’s appeals panel as to compensability bears the burden
of proof when seeking judicial review. TEX. LAB. CODE ANN. § 410.303 (West 2006). In this context, that
means Ferguson-Stewart bore the burden at trial to show, by a preponderance of the evidence, that the
treatment prescribed by Dr. Bergeron caused Stewart’s death. See id.
        6
          The charge further stated that “[a] person acts ‘intentionally’ with respect to the nature of his
conduct when it is his conscious objective or desire to engage in the conduct” and that “[a] person acts
‘knowingly’ with respect to the nature of his conduct or to the circumstances surrounding his conduct
when he is aware of the nature of his conduct or that the circumstances exist.”

                                                    7
compensability, or (2) that such failure must be the “sole” producing cause of the

claimant’s death. Cf. TWCC Appeal No. 050105-s, 2005 TX Wrk. Comp. LEXIS 50, at

*8 (stating only that “damage or harm that results from the failure of a claimant to

comply with doctor’s instructions is not included within the scope of the original

compensable injury”); TWCC Appeal No. 94257, 1994 TX Wrk. Comp. LEXIS 5675, at

*6 (same). Nevertheless, because neither party objected to the jury charge, we will

assess the sufficiency of the evidence in light of the instruction as given. See Osterberg

v. Peca, 12 S.W.3d 31, 55 (Tex. 2000) (“[I]t is the court’s charge, not some other

unidentified law, that measures the sufficiency of the evidence when the opposing party

fails to object to the charge.”). Accordingly, the question presented by this appeal can

be further narrowed to the following: was the evidence sufficient to support the jury’s

implicit finding that Stewart’s death did not “result[] solely” from his “intentionally or

knowingly failing to comply with his doctor’s instructions”?

       At trial, Ferguson-Stewart presented two theories as to how and why Stewart

might have unintentionally or unknowingly ingested a lethal dose of hydrocodone. First,

in what CIIC describes as the “accidental overdose” theory, Ferguson-Stewart alleged

that the overdose must have been accidental because her husband did not intentionally

or knowingly commit suicide.             Tommy J. Brown, D.O., a forensic pathologist who

performed an autopsy on Stewart, concluded that the cause of death was hydrocodone

toxicity and that the manner of death was “accidental.” When asked to expound on his

conclusion as to the manner of death, Dr. Brown testified7:

       Well, I—I see it a lot. I do autopsies on people with chronic pain a lot and
       this—like before I see them, start out with their drugs and then they
       increase the drugs, and then to try the [sic] alleviate the pain more, and

       7
           At trial, the doctor witnesses’ expert testimony was given via videotaped depositions.
                                                      8
      pretty soon they’re taking more than prescribed, and pretty soon they will
      overdose theirselves [sic] or they will overdose theirselves [sic], some
      people do. And then they die and it’s usually in a low lethal range [like
      that observed in Stewart]. So I consider that an accidental death because
      they were overdosing due to the chronic pain.

Ferguson-Stewart testified as follows:

      Q. [Ferguson-Stewart’s counsel] Based on what you saw in your
                                      husband, what you saw going on, how
                                      sure are you [that it was an] accidental
                                      overdose?

      A. [Ferguson-Stewart]              I’m positive it was accidental.

      Q.                                 Because?

      A.                                 Because he wouldn’t have done that on
                                         purpose. He—I mean, he had every
                                         reason to want to live. He was just
                                         about to get custody of his oldest son,
                                         which he had fought for for years. And
                                         we—we were finally going to church like
                                         we were supposed to be doing and he
                                         was—his faith in God had gotten really
                                         strong and he had changed a lot.

      Q.                                 Despite the denial and what y’all were
                                         going through as a family, did you ever
                                         see him just give up?

      A.                                 Absolutely not.     Even through the
                                         depression, he tried to fight the
                                         depression, just by making him[self] do
                                         things even though he didn’t want to do
                                         it.   Even though, you know, all he
                                         wanted to do was lay in bed and cry and
                                         just, you know, try to forget the whole
                                         thing, like try to pretend it never
                                         happened, he did everything he could to
                                         try to not let us see how bad he was
                                         hurting.




                                           9
Stewart’s mother, Susan Briggs, agreed with Ferguson-Stewart, testifying that her son’s

death was “definitely an accident. He had too many plans to be—he was—too full of

too many plans [to have committed suicide].”

       We find that the evidence relating to the “accidental overdose” theory was

insufficient by itself to support the jury’s finding. Dr. Brown concluded that the manner

of Stewart’s death was “accidental” but, when asked to elaborate on his conclusion, he

stated that such an “accident” typically occurs when a patient “increase[s] the drugs”

and “tak[es] more than prescribed” in order to “alleviate the pain more . . . .” In the

scenario suggested by Dr. Brown, the patient does not intend to take his own life, but

the patient does intend to take more drugs than are prescribed in order to better

alleviate the pain—i.e., he intends to disobey his doctor’s instructions—and death is an

unintended consequence of that act. Dr. Brown’s statement, along with the testimony of

Ferguson-Stewart and Briggs, is evidence that Stewart did not intentionally or knowingly

commit suicide.    But these statements do not constitute probative evidence that

Stewart’s overdose was caused by something other than his “intentionally or knowingly

fail[ing] to comply with his doctor’s instructions.”       On the contrary, the “accident”

scenario suggested by Dr. Brown actually relies on the notion that patients may

intentionally take more medicine than was prescribed in order to alleviate pain. This

evidence cannot support the jury’s verdict in this case.

       Ferguson-Stewart’s second theory at trial was that Stewart had accidentally

taken too many hydrocodone pills because of side effects brought about by the

prescribed medication. The evidence supporting this theory consisted of lay testimony

as to Stewart’s condition prior to his death and expert testimony regarding the side



                                            10
effects of hydrocodone and other medications. Ferguson-Stewart testified as follows

with respect to the days leading to her husband’s death:

       The day before or the day of—that he died. They say he actually died
       early in the morning; so, I guess the day before. He was really
       disoriented. He was not acting normal or the way he had been acting
       since he was hurt. He wasn’t acting normal at all. His speech was
       slurred. He was stumbling and falling all over things. I remember—I think
       I remember one time he actually falling [sic] out of a chair and—in the yard
       because he was trying to get up and he tripped over a root and he fell on
       the shoulder he had injured. And that made it even that much more
       painful for him. He was—he was very—he was crying about it. He really
       had hurt himself.

               ....

       He was—in the last couple of days before he died, he was getting really
       bad about forgetting that he had already taken his medicine and taking it
       again; and you know, sometimes I would have to tell him, “Hey, you
       already took it. You can’t take it again.”

       And usually he would agree with me; but there were times when he would
       say, “No. No. No. I didn’t take it. I’m sure I didn’t take it. I’m still hurting
       too bad, and I don’t remember taking it.” So, he’d take it again.

       But especially the day of [his death], he was entirely too confused. He
       wasn’t—like I said, he wasn’t himself at all.

Briggs also testified that, on the day preceding Stewart’s death, he “stumbled a couple

of times” and “d[id]n’t look right.”

       Ferguson-Stewart also presented expert testimony as to whether the side effects

of the medication caused Stewart to overdose.           Gary Wimbish, Ph.D., a forensic

toxicologist, agreed with Ferguson-Stewart’s counsel that one of the side effects of

drugs such as hydrocodone and carisprodol is “confusion.” Dr. Wimbish then stated:

       The sedative effects of [h]ydrocodone and [carisoprodol] both—both
       produce [e]ffects that—the warnings are don’t drive vehicles, operate
       heavy equipment, or complex tasks while the side effects are appearing.
       That’s when the person first starts taking the medication. They could last
       several months until they become, if you will, tolerant to those side effects.

                                             11
        And they produce confusion, lethargy, sedative [e]ffects, drowsiness, lack
        of mental acuity, all take place during that time.

Dr. Wimbish also agreed with counsel that these medications can “make you kind of

groggy” and that “when a person is groggy, they’re more susceptible to maybe not

remembering things.” Ferguson-Stewart’s counsel then proposed a hypothetical:

        Q. [Ferguson-Stewart’s counsel] Assume with me that Mr. Stewart
                                        experienced this syndrome, the Marilyn
                                        Monroe syndrome, where he forgot that
                                        he took his—that he had already taken
                                        his medication, and he accidentally
                                        took—just as you described with Marilyn
                                        Monroe, woke up, took some later,
                                        couldn’t remember whether he had
                                        taken it, took some, and perhaps one
                                        more time within a 24-hour period did
                                        the same thing, didn’t remember that he
                                        had taken it, took some again, so he
                                        took more than he was supposed to
                                        take because he couldn’t remember.

                                                 Assume that to be the case. If that was
                                                 the case, if that is what happened, and
                                                 assume that Dr. Brown took the sample
                                                 of blood from—from the central
                                                 compartment of the body,[8] would it be
                                                 possible for—for the findings of how
                                                 much [h]ydrocodone was in Mr.
                                                 Stewart’s body to be consistent with that
                                                 scenario I just described of forgetting
                                                 to—whether you had taken your
                                                 medicine and taken—accidentally taken
                                                 more than—you should have?

        A. [Dr. Wimbish]                         We wouldn’t be able to differentiate that
                                                 from an overdose.



        8
          Dr. Wimbish previously testified that, in order to determine how many pills Stewart ingested from
the autopsy findings, “you have to consider . . . if the death occurred during what we call the absorption
phase . . . . If the death occurs during this particular phase, the drug has not been completely absorbed,”
and a “high concentration of that drug will exist in the central compartment, that is[,] in the heart, the
lungs, the brain.”

                                                    12
      Q.                               Okay. All right. So you absolutely—
                                       there’s no way, in reasonable scientific
                                       probability, that you could say that he—
                                       that he had any kind of intentional
                                       overdose where he took more pills than
                                       he was supposed to in a knowing
                                       fashion. There’s no way anybody can
                                       say that in reasonable scientific
                                       probability.

      A.                               That’s correct.

      Ferguson-Stewart’s counsel also asked Dr. Brown whether hydrocodone or the

other drugs found in Stewart’s body could cause drowsiness:

      A. [Dr. Brown]                   Probably in some instances, yes.

      Q. [Ferguson-Stewart’s counsel] All right. And if someone were to take—
                                      to take a medicine late at night—or have
                                      you ever been aware of people—
                                      patients where they get confused on the
                                      dosage on what they [have] taken
                                      because of the drowsy effects of
                                      medication?

      A.                               Yes, I’ve—I’ve heard of that and I think
                                       that that has occurred.

      Q.                               Can you explain how that happens, a
                                       little bit?

      A.                               They just lose count of, or, you know,
                                       they lose inattention, too [sic], you know,
                                       not only drowsiness, but older people
                                       sometimes will overdose from—they
                                       don’t know how many pills they took, or
                                       don’t keep up with them.

      Q.                               Is it, from your general understanding,
                                       fair to assume [that if] somebody takes
                                       one hydrocodone that might make them
                                       drowsy, have a confusing side effect. If
                                       they took another one, that they would
                                       get progressively more drowsy from an
                                       additional dosage [sic]?

                                         13
      A.                                 Probably so, because, you know, it’s
                                         loading it up more.

      Dr. Bergeron, the physician who prescribed the hydrocodone, was also asked

about the possibility that side effects from the medication caused Stewart’s overdose:

      Q. [Ferguson-Stewart’s counsel] Although not something I’m sure you
                                      would ever predict or want to happen, is
                                      it possible or common that someone can
                                      forget that they took their last dosage
                                      and take more doses? Have you ever
                                      heard of this phenomenon before?

      A. [Dr. Bergeron]                  Possibly, yes.

      Q.                                 Can you describe that for us?

      A.                                 Again, I’ve just heard of patients who
                                         say they couldn’t remember if they took
                                         their medicine; so, they took another
                                         one.

      Q.                                 Mr. Stewart who died actually during the
                                         night, is it possible that could have
                                         happened to Mr. Stewart?

      A.                                 It’s possible that he took an extra med.

      Q.                                 And if someone takes an extra one, then
                                         what happens to them? Do the side
                                         effects compound?

      A.                                 They could.

      Q.                                 How so? How does that work?

      A.                                 Again, just higher doses of the
                                         medications are going to give you higher
                                         levels of drowsiness.

      Q.                                 Which would make it even—could
                                         compound or make the drowsiness or
                                         the effects of these medications—it
                                         could make it even more dangerous or
                                         likely that he could make a mistake and

                                           14
                                         then take too many of a type of
                                         medication.

      A.                                 It could.

      Q.                                 Could that be—is that something you
                                         would consider a horrible but somewhat
                                         naturally flowing result of treatment, that
                                         someone could have an accident like
                                         this?

      A.                                 An accident like this?

      Q.                                 Well, like—

      A.                                 I mean, I think somebody can take an
                                         extra pill now and then. But to cause,
                                         you know, enough to overdose, I don’t
                                         know about that.

      CIIC contends the evidence supporting Ferguson-Stewart’s “side effects” theory,

including the above-quoted testimony, was insufficient because (1) the theory requires

expert testimony to substantiate, and (2) the expert testimony offered by Ferguson-

Stewart was based on “possibility, speculation, and surmise.”

      While we recognize that the expert testimony offered at trial was largely

hypothetical and speculative, we conclude that expert testimony was not required to

establish Ferguson-Stewart’s “side effects” theory. “[E]xpert testimony is necessary to

establish causation as to medical conditions outside the common knowledge and

experience of jurors.” Guevara v. Ferrer, 247 S.W.3d 662, 667 (Tex. 2007). “[I]n limited

circumstances, the existence and nature of certain basic conditions, proof of a logical

sequence of events, and temporal proximity between an occurrence and the conditions

can be sufficient to support a jury finding of causation without expert evidence.” Id. at

668 (citing Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579 (1993); E.I. du Pont de

Nemours & Co. v. Robinson, 923 S.W.2d 549 (Tex. 1995)). In Guevara, the Texas
                                           15
Supreme Court noted that “the causal connection between some events and conditions

of a basic nature (and treatment for such conditions) are within a layperson’s general

experience and common sense.” Id. For instance, “courts have held that causation as

to certain types of pain, bone fractures, and similar basic conditions following an

automobile collision can be within the common experience of lay jurors.” Id. “Thus,

non-expert evidence alone is sufficient to support a finding of causation in limited

circumstances where both the occurrence and conditions complained of are such that

the general experience and common sense of laypersons are sufficient to evaluate the

conditions and whether they were probably caused by the occurrence.”         Id. at 669

(citing Burroughs Wellcome Co. v. Crye, 907 S.W.2d 497, 499 (Tex. 1995)); see

Jelinek, 328 S.W.3d at 533 (“When lay testimony is credited as evidence of causation, it

usually highlights a connection between two events that is apparent to a casual

observer.”).

       In this case, there was no dispute as to the medical cause of Stewart’s death.

Each of the experts agreed that he died from ingesting a lethal amount of hydrocodone.

The jury was not asked to determine what caused Stewart’s death; rather, it was asked

to determine what caused Stewart to ingest a lethal amount of hydrocodone.         The

former question presents an issue of medical causation that must be supported by

expert testimony. See Guevara, 247 S.W.3d at 667. The latter question, however, is so

“basic” that it may be answered merely with reference to “the general experience and

common sense of laypersons.” Id. at 669. It takes no specialized knowledge for a juror

to conclude, for example, that a patient exhibiting symptoms of disorientation and

memory loss may unwittingly take an excessive amount of prescribed medication.



                                          16
Rather, the “connection” between symptoms of disorientation and memory loss on the

one hand, and an overdose on the other, “is apparent to a casual observer.” Id.

        Having found that no expert testimony was required to establish the “side effects”

theory of Stewart’s overdose, we further conclude that the lay testimony adduced at trial

was sufficient to support the jury’s verdict. Ferguson-Stewart testified that, on the day

before Stewart’s death, “[h]is speech was slurred” and “[h]e was stumbling and falling all

over things.” She testified that, “in the last couple of days before he died, he was

getting really bad about forgetting that he had already taken his medicine” and would

sometimes “take it again.” Considering this testimony in the light most favorable to the

verdict, see City of Keller, 168 S.W.3d at 822, we find that it constitutes probative

circumstantial evidence that Stewart’s intentional or knowing failure to comply with

doctor’s instructions was not the sole cause of his overdose. Moreover, this testimony

constitutes more than a mere scintilla of evidence because it gives rise to more than a

mere surmise or suspicion that a cause other than intentional failure to comply with

doctor’s instructions was a proximate cause of Stewart’s overdose. See Jelinek, 328

S.W.3d at 532 (citing Kindred, 650 S.W.2d at 63).                      Rather, the jury could have

reasonably inferred from Ferguson-Stewart’s testimony that Stewart’s disorientation and

apparent memory loss was at least partly the cause of his overdose.9 Moreover, the


        9
           It is important to note that the jury was instructed to find that Stewart’s death was compensable
if his knowing and intentional failure to comply with doctor’s instructions was not the sole cause of his
overdose and death. As noted, even though the instruction does not appear to comply with Division
precedent, see TWCC Appeal No. 050105-s, 2005 TX Wrk. Comp. LEXIS 50, at *8 (Mar. 8, 2005); TWCC
Appeal No. 94257, 1994 TX Wrk. Comp. LEXIS 5675, at *6 (Apr. 18, 1994), CIIC did not object to the
instruction. Accordingly, the instruction’s inclusion in the jury charge meant that Ferguson-Stewart’s
burden at trial was merely to produce evidence that any occurrence other than Stewart’s intentional or
knowing failure to comply with doctor’s instructions constituted a proximate cause of Stewart’s overdose.
See Osterberg v. Peca, 12 S.W.3d 31, 55 (Tex. 2000) (“[I]t is the court’s charge, not some other
unidentified law, that measures the sufficiency of the evidence when the opposing party fails to object to
the charge.”); see also Del Lago Partners v. Smith, 307 S.W.3d 762, 774 (Tex. 2010) (“There may be
more than one proximate cause of an event . . . .”). Ferguson-Stewart was not required to show that
                                                    17
jury was not barred from giving weight to this evidence, and the evidence did not

conclusively establish the contrary proposition; i.e., that Stewart’s overdose was caused

solely by his intentional or knowing failure to comply with doctor’s instructions. See City

of Keller, 168 S.W.3d at 810. The evidence was therefore legally sufficient to support

the jury’s verdict.

       We further conclude that the judgment is not so contrary to the overwhelming

weight of the evidence as to be clearly wrong or unjust. See Cain v. Bain, 709 S.W.2d

at 176. The evidence was therefore factually sufficient to support the jury’s implied

finding that Stewart’s death did not result solely from his intentionally and knowingly

failing to comply with his doctor’s instructions.

       CIIC’s issues are overruled.

                                         III. CONCLUSION

       The trial court’s judgment is affirmed.




                                                     DORI CONTRERAS GARZA
                                                     Justice

Delivered and filed the
10th day of May, 2012.




Stewart’s intentional or knowing failure to comply with doctor’s instructions was not a cause of his
overdose.
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