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Click here for the full text of this decision FACTS:Appellants, Deborah Sue McShane and James Patrick McShane, individually and as next friends of Maggie Yvonne McShane, a minor, sued appellees, Bay Area Healthcare Group, Ltd., individually and d/b/a Corpus Christi Medical Center-Bay Area; and Columbia Hospital Corporation of Bay Area, individually and as a partner of Bay Area Healthcare Group, Ltd. Appellants sought to recover for injuries sustained during Deborah McShane’s labor and delivery of her daughter, Maggie, who was severely brain damaged and suffered from cerebral palsy, developmental disability and mental retardation. Appellants alleged that the negligence of appellees, either directly or vicariously through the negligence of their nursing staff, caused Maggie’s injuries. The jury returned a 10-2 verdict against appellants. The trial court then entered a take-nothing judgment against appellants and denied their motion for new trial. HOLDING:Reversed and remanded for further proceedings. Appellants first contend that the trial court erred by failing to order a new trial because of the misconduct of appellees’ counsel during trial. But the court finds that appellants have provided no authority, other than the Texas Lawyer’s Creed and the preamble to the state bar rules, to establish that counsel’s behavior amounted to attorney misconduct. In overruling appellants’ issue for failure to present authority to establish an abuse of discretion, the court finds it significant that appellants’ counsel failed to request a mistrial based on any of the alleged instances of attorney misconduct until after the jury’s verdict was returned. In their second issue, appellants contend that the trial court erred by excluding the testimony of Arthur Shaw, their proposed expert on the hospital’s standard of care. Appellees argued at trial that Shaw was unqualified to offer expert testimony because he had no training, education, or experience as a physician or nurse. Appellants argued that Shaw’s knowledge, skill, experience, training and education as a health-care administrator qualified him to testify as to appellees’ failure to use reasonable care in formulating policies and procedures. On appeal, the court holds that appellants have neglected to discuss whether Shaw’s opinions were based upon a reliable foundation, an issue which was hotly contested before the trial court. The court notes that the brief filed by appellees maintains that the trial court’s ruling should be affirmed on this ground, an argument which is unacknowledged in either of appellants’ briefs. Because appellants have failed to make a key argument to support their issue on appeal, the court overrules the point of error. In their final issue, appellants argue that the trial court erroneously admitted testimony regarding superseded pleadings showing that a Dr. Rothschild and a Dr. Eubank were previously named in the suit as having committed acts of negligence that proximately caused the damages, injuries or harm claimed. The court states the issue is whether the trial court erred by allowing testimony regarding statements made in superseded pleadings. The court points out that a party who judicially admits a fact in a live pleading cannot later challenge that fact. But the court also notes that if a pleading is abandoned, superseded or amended, it ceases to be a judicial pleading and statements in such a pleading cease to be judicial admissions. The court reviews the five superseded pleadings filed by appellants, as well as appellants’ live pleading, their sixth amended petition. The court identifies no statement or position in the superseded pleadings that is inconsistent with appellants’ live petition. The court holds that all of appellants’ pleadings are consistent with appellants’ theory at trial, which was that appellees’ negligence, either directly or indirectly (through the actions of its nursing staff), was a proximate cause of the injuries and damages suffered by appellants. The court finds that appellants’ pleadings did not request inconsistent remedies or make inconsistent demands and that none alleged what the others denied. The court therefore concludes that the statements in the superceded pleadings were not admissions and were therefore inadmissible and that the trial court abused its discretion by allowing witnesses to testify regarding statements made in the superceded pleadings. The court reasons that the error probably led to the rendition of an improper verdict. OPINION:Garza, J.; Yanez, Castillo and Garza, JJ. DISSENT:Castillo, J. “The majority concludes that the evidence was not an admission, was inadmissible, and that the trial court’s error was reasonably calculated to and probably led to the rendition of an improper judgment. Respectfully, I disagree that appellants have shown reversible error.”

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