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Click here for the full text of this decision FACTS:Dr. Christopher Yancey performed a hysterectomy on Kimberly Daniels. Following the surgery, Kimberly began to suffer from abdominal pain and bowel problems. She returned to the hospital. Dr. Lee Merritt, in consultation with Yancey, determined that it was necessary to remove a section of Kimberly’s small intestine to cure her affliction. This surgery, in turn, caused Kimberly further medical problems. Kimberly and Willie Daniels filed suit against Yancey and Diagnostic Clinic of Longview PA (collectively, Yancey) and alleged that Yancey perforated Kimberly’s small intestine during the hysterectomy, thereby breaching the proper standard of care. The Danielses claimed that this alleged breach of duty caused Kimberly’s subsequent medical problems. The trial court prohibited the Danielses’ expert witness, Dr. Robert Kovac, from testifying about his observations regarding certain pathology slides relating to Kimberly’s surgery. The trial court also excluded testimony regarding a statement purportedly made by Merritt to Kimberly before the second surgery. The court entered a take-nothing judgment in favor of Yancey and the Danielses appealed. HOLDING:Affirmed. The Danielses complain on appeal that the trial court erred in excluding certain testimony from the jury’s consideration. First, the Danielses assert that the trial court erred in granting Yancey’s motion to limit the testimony of Kovac because the motion was untimely. In support of this, the Danielses contend the motion was not filed within the time limitations prescribed by the former Texas Revised Civil Statutes Article 4590i, �14.01(e). But the court found nothing in the record to indicate the trial court was presented with, or considered, the timeliness of the motion. The court points out that the Danielses never filed a response to Yancey’s motion to limit the testimony of Kovac and never complained or objected at the hearing that the motion was in violation of statutory time limits. Because the Danielses failed to present this complaint to the trial court, the court holds that the timeliness issue is waived. While Kovac testified extensively, the Danielses next assert that the trial court erred in ruling that Kovac was not qualified to testify as an expert concerning pathology slides. The court disagrees and finds that even though the Danielses presented some evidence of Kovac’s qualifications to interpret pathology slides and therefore the issue was not waived, the evidence on that subject was very abbreviated. The court also notes that Kovac’s curriculum vitae did not contain specific information regarding pathology credentials. The court reasons that Kovac may be qualified to interpret pathology slides but, based on the record, the trial court acted within its discretion in finding that the evidence was inadequate to establish that Kovac had the requisite knowledge, skill, experience, training or education regarding the interpretation of pathology slides to qualify him to give an opinion on that specific subject. OPINION:Carter, J.; Morriss, C.J., Ross and Carter, JJ.

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