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Click here for the full text of this decision FACTS:Billy Joe McKee, individually and as independent executor of the estate of Thelma McKee, deceased, appeals from a judgment denying him recovery against Dr. David G. McNeir, Dr. Dennis Dove, individually and d/b/a Dove & Associates, and Dr. Barry L. Horowitz. His sole issue involves the trial court’s refusal to admit evidence, during the rebuttal phase of the trial, of prior medical malpractice claims against Dove. McKee sought to admit the evidence 1. because the defendants purportedly “opened the door” to it and 2. for purposes of rebutting Dove’s opinions. However, the trial court excluded it because it was not rebuttal evidence, no one had opened the door to its admission, and its prejudicial effect “would far outweigh any probative value” it may have. HOLDING:Affirmed. McKee informed the trial court that the evidence was admissible to discredit Dove’s opinions and because the door to its use had been opened. Nowhere did he urge that it was admissible due to its similarity to the circumstances or claims before us. Since the grounds asserted on appeal must comport with those mentioned at trial to preserve a complaint, Moser v. Davis, 79 S.W.3d 162, 169 (Tex. App.-Amarillo 2002, no pet.), and they do not here, the issue was waived, the court concludes. To the extent that evidence of similar wrongs may be admissible, despite Texas Rule of Evidence 404(b), it is clear that, at the very least, the circumstances of the incidents and conditions under which they occurred must be reasonably similar. The degree of similarity required depends upon the fact or issue in dispute. Yet, even if similar, the evidence remains subject to exclusion if it creates undue prejudice, confusion or delay. Additionally, inherent in both Nissan and Farr is the requirement that the proponent of the evidence illustrate that the supposedly similar incident actually occurred. Simply put, if the incident did not happen, then it could hardly be admissible to prove the occurrence of some other act or event. And, therein lies the problem here. The only evidence of record purporting to illustrate the existence of the extraneous incidents of malpractice were copies of pleadings and final orders issued by various courts. Yet, most anything can be said in a pleading, whether true or not. Consequently, including an allegation favorable to the pleader in such a document is seldom evidence of its occurrence. Furthermore, the final orders accompanying each pleading in question say nothing about the veracity of the particular plaintiff’s claims. Instead, they either indicate that the claims were settled or that recovery was denied; none state that Dove was negligent or that the incident described in the respective pleading actually happened. So, because the incidents underlying McKee’s complaint appear as nothing more than mere allegations in various pleadings, the court finds no basis upon which to infer that they actually occurred or that they were reasonably similar to those underlying the claims against Dove. OPINION:Quinn, J.; Quinn, Reavis and Boyd, JJ.

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