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Click here for the full text of this decision FACTS:In 1998, Clyde Lovewell contracted with Ron and Lana Gabriel to breed Lovewell’s mare with the Gabriels’ stud. The mare gave birth to a filly in February 1999. The next month, Lovewell took his mare back to the Gabriels to breed again. The filly was taken along so that, while at the Gabriels farm, she could be weaned from her mother. The filly became ill shortly after being weaned. She had pneumonia, an elevated temperature and diarrhea. Upon noticing the filly’s condition around July 19, the Gabriels administered four medications to her: Rebound, an over-the-counter treatment for upset stomach; Naxcell, an antibiotic; Erythromycin, another antibiotic; and Banamine, an anti-inflammatory. William Gilbert, a veterinarian, came to look at the filly at Ron Gabriel’s request on July 24. Gilbert gave the Gabriels directions on administering medication and fluids. Though he had never heard of Rebound, he did instruct the Gilberts to continue with the Naxcell and to stop using the Erythromycin. He also prescribed Gentamycin, another antibiotic, and fluids, and told the Gabriels to call him if the filly’s condition worsened. Two days later, as the filly’s condition worsened, Lana Gabriel called another vet, David Howton, who advised the Gabriels to bring the filly to the vet clinic, which Lana did at approximately 5:30 p.m. that day. Though the filly walked into the trailer, she was too weak to exit on her own once they arrived at the clinic around 6:15. Howton said the filly was already “trying to die.” The filly died at 8:30 of what the vet said was renal failure caused by endotoxemia, stemming from colitis. Without notifying Lovewell, the Gabriels had a stock removal company pick up the filly’s body the next day and process it into greyhound food. Lovewell sued the Gabriels on 16 different theories of negligence, ranging from failure to transport and failure to adequately hydrate, to improperly administering medications and improperly weaning the filly. At trial, Gilbert testified that it is preferable to treat a foal at its location, provided the facilities are adequate. Both Gilbert and Howton testified as to the side effects of the medications the Gabriels gave the filly on their own, indicating that something like Erythromycin could be administered without a doctor’s visit, but that Banamine required a vet’s supervision. A jury returned a verdict of $58,893, including court costs and attorneys’ fees. On appeal, the Gabriels argue that, because Lovewell failed to present expert testimony, the evidence was legally and factually insufficient to establish the causation of each cause of action. HOLDING:Affirmed. The court first finds that the trial court was correct in admitting Lovewell’s testimony that Howton told him in a phone call that Gabriel knew that the filly’s death should not have happened. Howton supposedly told Lovewell that the horse may not have died if they had brought her in on July 24. The court said that even though the evidence was hearsay, it was offered only after the Gabriels opened the door to by asking Howton if he remembered telling Lovewell that the filly died because of something the Gabriels did. The court points out that, although the Gabriels could have secured a limiting instruction to the jury on Lovewell’s hearsay testimony, they did not request one. The trial court did not give one on its own, either. The court then assesses the impact of Lovewell’s testimony in light of the absence of a limiting instruction. Without the limiting instruction, Lovewell’s testimony was considered by the jury for any and all purposes. Also, even inadmissible hearsay, once the testimony is entered without limitation, can be competent evidence, provided it is not speculative or conclusory. The court adds that, even if Howton’s statements to Lovewell do not qualify as expert testimony under Texas Rule of Evidence 702, such statements include a factual basis with probative value. Because Lovewell’s hearsay testimony carries full probative force, the jury could rely on that testimony for causation. To support this conclusion, there is also testimony that Lana was out of town on July 24 and that she had the farm’s horse trailer with her. This is evidence of a vital fact. Failure to have a trailer to transport the sick horse and failure to take the horse to a place where proper care could be given were specific acts of negligence alleged by Lovewell against the Gabriels, and this evidence specifically supports those allegations. Testimony concerning the medications and the manner in which they were administered is additional evidence the jury could consider. Also, even though Howton knew the filly was not owned by the Gabriels, the horse was promptly destroyed without Lovewell’s knowledge or consent and before a necropsy was performed. The jurors were entitled to consider this evidence, along with the long-standing business relationship Howton had with the Gabriels, in drawing inferences that reasonably support the verdict. The evidence was legally sufficient, the court concludes. The evidence was factually sufficient, too, the court rules, as established by the vets’ testimony on the medications and their side effects. OPINION:Ross, J.; Morriss, C.J., Ross and Carter, JJ. DISSENT:Carter, J. “Though Lovewell presented no expert testimony, the majority nevertheless concludes the evidence is legally and factually sufficient to support the jury’s finding of negligence and proximate cause. The majority reaches this conclusion after holding Lovewell was not required to present expert testimony on the issue of causation. Because I disagree with that assessment of the law, I respectfully dissent. “Though this is not a malpractice case, the facts and issues are more than sufficiently akin to the complex area of veterinary science that I believe similar expert testimony was essential to aid the jury. I do not believe there is any probative evidence to support the jury’s finding on causation and, therefore, the case should be reversed and rendered.”

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