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At a Glance:
American Protection Ins. Co. v. Johnson
September 8, 2005
171 S.W.3d 921
Published Opinion

American Protection Ins. Co. v. Johnson

Court of Appeals of Texas, Amarillo,

Panel E.



Patricia A. JOHNSON, Appellee.

No. 07–04–0061–CV.


Sept. 8, 2005.

Attorneys & Firms

*922 Charles E. Morse, Harris & Harris, Austin, for appellant.

Ted Hogan, Lubbock, for appellee.

Before QUINN, C.J., REAVIS, J., and BOYD, S.J.1


JOHN T. BOYD, Senior Justice (Retired).

In this appeal, appellant American Protection Insurance Company (American), challenges a judgment awarding workers’ compensation benefits to appellee Patricia A. Johnson (Johnson). In doing so, it presents two issues for our determination. In those issues, American asks us to determine whether: 1) the testimony of Johnson’s expert witness, Dr. Thomas Kurt (Kurt), was unreliable and should have been excluded by the trial court, and 2) the trial court erred in admitting hearsay testimony from Johnson regarding carbon monoxide poisoning testing on October 30, *923 1998. Finding no reversible error in the trial court’s rulings, we affirm the judgment of the trial court.


In the underlying case, Johnson contends she was exposed to carbon monoxide while in the course and scope of her employment with the Highland Medical Center which was a producing cause of her cardiomyopathy.

At a hearing before a Texas Workers’ Compensation Commission (TWCC) hearing officer, the officer found that although Johnson had suffered a compensable injury on October 30, 1998, it was not a producing cause of her Tex. Lab.Code Ann. § 410.251 (Vernon 1996).

Prior to and during the trial on the merits, American sought to exclude the testimony of Johnson’s expert witness on the basis that the data upon which Kurt relied in forming his opinion on the cause of Johnson’s cardiomyopathy.


Because of its bearing upon the challenge to Kurt’s testimony, we will first discuss American’s second issue. In that issue, American contends that Johnson’s testimony about the results of the carbon monoxide test at her workplace constituted inadmissible hearsay because it was performed by a local gas company. In considering this challenge, we must keep in mind that evidentiary rulings admitting or excluding evidence are committed to the trial court’s sound discretion. See Richardson v. Green, 677 S.W.2d 497, 501 (Tex.1984).

Assuming, without deciding, that the trial court did err in admitting Johnson’s testimony about the test, our review of the record reveals that this testimony was cumulative of other evidence admitted without objection. American’s specific objection was to Johnson’s identification of the exact reading from the carbon monoxide testing and to both Johnson’s and Kurt’s testimony about this specific reading. However, the record shows that Johnson introduced, without objection, two medical *924 evaluation reports prepared by Kurt in which it was specified that the carbon monoxide reading on October 30, 1998, was 316 parts per million of carbon monoxide. Additionally, American did not request redaction of those specific references. Moreover, American’s expert, Dr. Eric Comstock (Comstock), states in his report that it was reasonable to assume that Johnson was exposed to approximately 300 parts per million of carbon monoxide in her workplace. In view of this evidence, the admission of Johnson’s testimony regarding the carbon monoxide reading, even if erroneous, probably did not cause the rendition of an improper judgment and was therefore harmless. American’s second issue is overruled.

Returning to American’s first issue, American argues Kurt’s expert testimony was unreliable and should have been excluded by the trial court because it was based upon unreliable methodology or factual foundation. Specifically, it points out that Kurt’s opinion that Johnson was chronically exposed to carbon monoxide is not reasonable and lacks a proper factual foundation because it was based upon a single reading. Further, American argues that Kurt’s methodology is not reliable because there is no scientifically accepted theory that chronic exposure to carbon monoxide causes cardiomyopathy. In evaluating these arguments, we will first look to the factual assumptions made by Kurt in forming his opinion and then to the scientific reliability of his conclusion.

A trial court’s determination of the reliability of expert evidence is part of its determination of admissibility and is not erroneous absent an abuse of discretion. See Gee v. Liberty Mut. Fire Ins. Co., 765 S.W.2d at 396.

Reiterated, the thrust of American’s challenge to Kurt’s testimony is its argument that chronic exposure to carbon monoxide cannot be extrapolated from one reading and his reliance upon that one reading makes his testimony unreliable. However, the record reveals that Comstock, American’s expert, specifically indicated that it is reasonable to assume chronic exposure based on the one reading, and further, Kurt’s assumption that Johnson’s carbon monoxide blood saturation was 30 percent could also be considered reasonable. In Comstock’s report, tendered by American, there appears the following paragraph:

Based upon the air monitoring of the patient’s working environment in October of 1998[,] it is reasonable to assume that she had been exposed to carbon monoxide concentrations in the order of 300 ppm throughout the work day for a period which has not been determined but appears to have been a minimum of several months. Such a concentration of carbon monoxide in the ambient air would result in significant hemoglobin saturation and I would concur with the estimate of approximately 30% carboxyhemoglobin to be expected.

*925 Consequently, all of the expert testimony before the trial court supported the conclusion that Johnson was chronically exposed to carbon monoxide and that her blood saturation level was approximately 30 percent.

American also challenges Kurt’s opinion that Johnson’s work-related exposure to carbon monoxide increases the incidence of heart problems....”

Moreover, because workers’ compensation was involved, Johnson was sent to a TWCC-designated doctor, Dr. Randall Wolcott. He opined in two separate reports that, within a reasonable degree of medical probability, Johnson’s work-related exposure to carbon monoxide was a producing cause of her “heart disease.” Indeed, in one of these reports, which was introduced by American without any request to redact or exclude the causation opinion, Wolcott stated:

She [Johnson] has been seen by Dr. Rizzo who has diagnosed her with heart disease.

Thus, even assuming arguendo that the trial court was in error in admitting Kurt’s expert testimony, under this record, we cannot conclude that its admission probably caused the rendition of an improper judgment. See Mancorp, Inc. v. Culpepper, 802 S.W.2d at 230. American’s first issue is overruled.

In summary, both of American’s issues are overruled and the judgment of the trial court is affirmed.



John T. Boyd, Chief Justice (Ret.), Seventh Court of Appeals, sitting by assignment. Tex. Gov’t Code Ann. § 75.002(a)(1) (Vernon Supp.2004–2005).

End of Document