The Court of Appeals for the First District of Texas (“Texas Appellate Court”), in its Memorandum Opinion filed on February 25, 2020, held: “we conditionally grant the petition for writ of mandamus and direct the trial court to (1) vacate its order granting a new trial and (2) deny the motion for new trial. We are confident that the trial court will promptly comply, and our writ will issue only if it does not. We dismiss any pending motions as moot.”
The underlying case involved a Texas medical malpractice lawsuit that alleged that a man died from acute myeloid leukemia five days after he was seen by a physician’s assistant in the defendant hospital’s emergency room, where he was diagnosed with tonsillitis. The medical examiner concluded that the primary cause of death was acute myeloid leukemia with involvement of the skin, tonsils, lymph nodes, epiglottis, spleen, lungs, heart, kidneys, liver, testes, and brain. The secondary finding was sepsis from two strains of bacteria.
The plaintiff’s expert testified during the Texas medical malpractice wrongful death trial that (1) based on evidence of bleeding, the man should have had a blood test to determine the cause of the blood loss, and (2) based on the leukemic cells that he believed would have been identified by these tests, the man would have been presumed to have acute promyelocytic leukemia, a specific sub-type of acute myeloid leukemia that the plaintiff contended can be effectively treated within days. The expert conceded that the findings in the autopsy report for the alleged lesions on the man’s face were excoriations (scabs) and not petechiae (spots that appear on the skin as a result of bleeding), and it was possible that there was no rash or splotches on his skin at the time of the emergency room visit. The expert further conceded that the autopsy did not mention a massive hemorrhage or bleed.
The jury returned a defense verdict.
The plaintiff filed a motion for a new trial citing recently obtained photographs from the autopsy that were not available before the trial. The trial court later granted the plaintiff’s motion to amend the petition to include an affidavit by the plaintiff’s Texas medical malpractice attorney in support of the motion for new trial, which consisted of “bare assertions that the requirements for a new trial on the ground of newly discovered evidence were met.”
The trial court granted the motion for new trial, and the defendants subsequently filed a petition for writ of mandamus.
Texas Appellate Court Opinion
The Texas Appellate Court held that the new trial order is facially invalid because it is no more than a pro forma template listing the legal standard and lacks the required specificity for granting a new trial (“The trial court’s “stated reason” must be (1) “legally appropriate,” articulating a “well-defined legal standard” or a “defect that probably resulted in an improper verdict,” and (2) “specific enough to indicate that the trial court did not simply parrot a pro forma template, but rather derived the articulated reason[ ] from the particular facts and circumstances from the case at hand”).
The Texas Appellate Court explained: “In this case, the order meets the first requirement because it provides that a new trial is being granted on the basis of newly discovered evidence, which is a legally appropriate reason for granting a new trial.” However, “The order must indicate that the trial judge considered the specific facts and circumstances of the case at hand and explain how the evidence (or lack of evidence) undermines the jury’s findings. A trial court abuses its discretion if its new-trial order provides no more than a pro forma template rather than the trial judge’s analysis. This two-part test adequately ensures that jury verdicts are not overturned without specific and proper reasons, while still maintaining trial courts’ discretion in granting new trials.”
The Texas Appellate Court concluded that “the new trial order fails to satisfy the facial specificity requirements.” The Texas Appellate Court further held: “In this case, however, ordering the trial court to issue a new order specifying its reasons for granting a new trial on the basis of the autopsy photographs would be futile because the record does not support granting a new trial on the basis of newly discovered evidence,” explaining: “the record fails to demonstrate that Plaintiffs were diligent in seeking the autopsy photographs before trial. Rather, the record demonstrates that Plaintiffs did not seek out the evidence until after trial … Here, the same technique used after trial—talking to the medical examiner and asking if other evidence existed—would have fully informed Plaintiffs of the autopsy photographs before trial … Accordingly, the trial court abused its discretion in granting the motion for new trial because Plaintiffs failed to demonstrate due diligence in seeking the autopsy photographs.”
The Texas Appellate Court further held that the autopsy photographs were cumulative evidence (“the autopsy photos are mere visual representations of the detailed descriptions of [the man’s] external appearance and organs provided in the autopsy report. The record demonstrates that the autopsy report was introduced into evidence and extensively discussed in testimony at trial, including expert testimony from plaintiff and defense experts on [the man’s] external appearance … the photographs cannot confirm the presence of leukemic cells … experts on both sides testified at trial that the facial scabs described in the autopsy report were scratches, not petechiae. Plaintiffs fail to demonstrate that the photographs provide anything more than a visual representation of these descriptions”).
Source In Re Iftikhar Ahmed, P.A. and Farhan Khan, M.D., Relators, No. 01-19-00584-CV.
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