Deborah Sue McShane and James Patrick McShane v. Bay Area Healthcare Group, Ltd., Individually and d/b/a The Corpus Christi Medical Center - Bay Area, et al.--Appeal from 28th District Court of Nueces County

NUMBER 13-04-174-CV

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

DEBORAH SUE McSHANE AND

JAMES PATRICK McSHANE, Appellants,

v.

BAY AREA HEALTHCARE GROUP, LTD.,

INDIVIDUALLY AND D/B/A THE

CORPUS CHRISTI MEDICAL CENTER -

BAY AREA, ET AL., Appellees.

On appeal from the 28th District Court of Nueces County, Texas.

DISSENTING OPINION

Before Justices Ya ez, Castillo and Garza

Dissenting Opinion by Justice Castillo

Appellants assert that the trial court reversibly erred by allowing testimony of superseded pleadings to inform the jury that the testifying doctors were once defendants in the case. 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.

We ordinarily do not find reversible error for erroneous rulings on admissibility of evidence where the evidence in question is (1) cumulative, and (2) not controlling on a material issue dispositive of the case. See Gee v. Liberty Mut. Fire Ins. Co., 765 S.W.2d 394, 396 (Tex. 1989) (citing Whitener v. Traders and Gen. Ins. Co., 289 S.W.2d 233, 236 (Tex.1956)). Even assuming that the trial court abused its discretion in allowing the testimony and further assuming that appellants preserved error, respectfully, I would hold that: (1) the complained-of evidence was cumulative of evidence that the testifying physicians were not parties to the lawsuit, see Gee, 765 S.W.2d at 396; and (2) appellants, with the burden to show prejudicial error, have not shown the error "turns on" the particular evidence admitted, see Tex. Dep't of Transp. v. Able, 35 S.W.3d 608, 617 (Tex. 2000); City of Brownsville v. Alvarado, 897 S.W.2d 750, 753-54 (Tex. 1995); Whitener, 289 S.W.2d at 236.

Accordingly, I respectfully dissent.[1]

ERRLINDA CASTILLO

Justice

Dissenting Opinion delivered and filed

this 6th day of July, 2005.

[1] I need not address the majority's decision on the first through fourth issues presented because the fifth issue is dispositive. See Tex. R. App. P. 47.1. Similarly, I need not address appellants' sixth and seventh issues presented regarding juror misconduct, because the majority does not reach them. Id.