X

Thank you for sharing!

Your article was successfully shared with the contacts you provided.
Click here for the full text of this decision FACTS:Jose de Alminana Smothers was attacked by fire ants while in the care of a nursing home facility run by Gulf Health Care Center-Galveston. She subsequently died from other causes. Her daughter, Sandra Smothers Bartosh, in her individual capacity and as administratrix of her mother’s estate, sued Gulf Health and Ecolab, Inc., the company that provided pest protection services at the property. She alleged medical malpractice and premises liability against Gulf Health and negligence against Ecolab. The trial court granted summary judgment favoring Gulf Health on the malpractice claims prior to trial and granted a directed verdict favoring Ecolab at the close of Bartosh’s case-in-chief. Only the premises liability claim against Gulf Health was submitted to the jury. The jury found Gulf Health liable and awarded $136,000 to Bartosh. The trial court entered final judgment in accordance with the jury’s findings. Both Bartosh and Gulf Heath appealed. HOLDING:Affirmed. Bartosh contends that the trial court erred in excluding testimony from Texas Department of Human Resources personnel as well as a report generated by those personnel. But the court holds that because Bartosh received a verdict and a judgment that Gulf Health’s negligence proximately caused Smothers’ damages, she cannot show harm from the exclusion of evidence related solely to causation, even if its exclusion was error. Bartosh also contends that the trial court erred in excluding the testimony of her medical expert, Dr. John Messmer, which she claims would have demonstrated the great extent of her damages. Messmer gave two depositions in the suit. He opined that the fire ant attack might explain why Smothers went into a sudden decline requiring her transfer to the hospital and that it may have contributed to her death. Messmer claimed specialized training and knowledge regarding geriatric patients but not in regard to insect attacks or the effect of insect attacks on such patients. The court notes that Messmer’s testimony is replete with references to the speculative nature of his analysis. He stated that he was hired to speculate on what may have caused Smothers’ health to deteriorate, that he gave his best speculation regarding possible causes and that he was just offering an opinion on what might have happened. The court concludes that Messmer’s testimony did not reveal that he had specialized training or experience relating to insect bites and their effect on geriatric patients. Consequently, the trial court did not abuse its discretion in determining that Bartosh failed in her burden to establish that Messmer’s testimony was based on a reliable foundation. Bartosh then contends that the trial court erred in excluding photographs taken of Smothers after the fire ant attack. The trial court admitted seven photographs, all of which except one showed areas of Smothers’ legs that were attacked by the fire ants. The court holds that the trial court did not err in excluding five other photographs that were cumulative of the seven photographs of bites already admitted. Photographs that also revealed bedsores on the decedent’s buttock and arm, the court holds, were properly excluded because it is likely that the bed sores developed while Smothers was in Gulf Health’s care, and the prejudicial effect of these photographs outweighed their probative value under Texas Rule of Evidence 403. Finally, Bartosh contends that the trial court erred in granting a directed verdict favoring Ecolab at the close of her case-in-chief. In the contract between Ecolab and Gulf Health, Ecolab agreed to provide periodic services “in accordance with current pest elimination procedures to eliminate rats, mice, and cockroaches,” and it guaranteed that during the period of service, rats, mice, and cockroaches would not become established on the premises. The agreement expressly excludes coverage for fire ants unless noted in the “Special Instructions” section. The only reference to ants in the “Special Instructions” section is the statement: “Ants not guaranteed.” The court finds that it was Gulf Health’s, and not Ecolab’s, responsibility to monitor the property for fire ants, and that Gulf Health repeatedly refused to purchase the GroundForce Ant Program, which would have placed a duty on Ecolab to monitor for fire ants and to train facility staff. Consequently, the court holds that Bartosh has failed to demonstrate that she presented evidence raising a fact issue essential to her right of recovery. OPINION:Hedges, C.J.; Hedges, C.J., Anderson, J., and Mirabal, S.J.

Want to continue reading?
Become a Free ALM Digital Reader.

Benefits of a Digital Membership:

  • Free access to 1 article* every 30 days
  • Access to the entire ALM network of websites
  • Unlimited access to the ALM suite of newsletters
  • Build custom alerts on any search topic of your choosing
  • Search by a wide range of topics

*May exclude premium content
Already have an account?

 
 

ALM Legal Publication Newsletters

Sign Up Today and Never Miss Another Story.

As part of your digital membership, you can sign up for an unlimited number of a wide range of complimentary newsletters. Visit your My Account page to make your selections. Get the timely legal news and critical analysis you cannot afford to miss. Tailored just for you. In your inbox. Every day.

Copyright © 2021 ALM Media Properties, LLC. All Rights Reserved.