Luis Zamora v. Champion Cooler Corporation ( 2018 )

Affirmed; Opinion Filed January 23, 2018.
In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-16-00577-CV
LUIS ZAMORA, Appellant
V.
CHAMPION COOLER CORPORATION, Appellee
On Appeal from the County Court at Law No. 2
Grayson County, Texas
Trial Court Cause No. 2013-2-063CV
MEMORANDUM OPINION
Before Justices Bridges, Myers, and Schenck
Opinion by Justice Myers
Luis Zamora appeals the trial court’s judgment dismissing his claims against Champion
Cooler Corporation. Zamora brings two issues on appeal contending the trial court erred (1) by
excluding his expert witness on causation, denying his motion for a continuance of the trial, and
denying him leave to designate a new causation expert; and (2) by granting appellee’s motion for
summary judgment. We affirm the trial court’s judgment.
BACKGROUND
Zamora worked for appellee as an apprentice welder and metal cutter. On August 16,
2012, appellee directed Zamora to help cut a metal plate and fit it over a pit where a press
machine once stood. The pit contained grease, oil, moisture, and debris. Zamora used an oxy-
acetylene torch over the pit to cut the plate, and the torch vaporized some of the material in the
pit. Zamora inhaled the vapors, after which he had difficulty breathing. Zamora went to his
doctor, who determined he had pneumonia. Later, Zamora went to a pulmonologist, Dr. Muqad
Zuriqat, who determined Zamora either had asthma, or he had reactive airway dysfunction
syndrome (RADS) from the workplace fumes. After being off work for a month, Zamora was
about eighty percent improved. However, he continued to have breathing issues while he
worked for appellee, and he eventually quit working for appellee because he was too sick to
continue working there.
Zamora sued appellee, who was a workers’ compensation nonsubscriber, for negligence
seeking actual and exemplary damages. Appellee filed no-evidence and traditional motions for
summary judgment, which the trial court initially denied. Appellee later moved to exclude the
evidence of Zamora’s expert witness on causation, Dr. Zuriqat. The trial court granted the
motion and ordered that Zamora was barred from presenting Dr. Zuriqat’s testimony regarding
causation of Zamora’s injuries. Appellee then moved for the trial court to reconsider appellee’s
motions for summary judgment. Zamora moved for a continuance of the trial date and for leave
to designate a new expert witness on causation. The trial court denied Zamora’s motion and
granted appellee’s motions for summary judgment, dismissing Zamora’s claims.
EXCLUSION OF EXPERT WITNESS
In his first issue, Zamora contends the trial court erred by (a) granting appellee’s motion
to exclude Dr. Zuriqat’s testimony on causation, and (b) denying Zamora’s motion for a
continuance of the trial and for leave to designate a new causation expert.
Standard of Review
We review a trial court’s decision to exclude expert-witness testimony for an abuse of
discretion. Spin Doctor Golf, Inc. v. Paymentech, L.P., 296 S.W.3d 354, 359 (Tex. App.—
Dallas 2009, pet. denied). A trial court abuses its discretion when its ruling is arbitrary,
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unreasonable, or without reference to any guiding rules or legal principles. Bocquet v. Herring,
972 S.W.2d 19, 21 (Tex. 1998).
For an expert’s opinion to be admissible under Texas Rule of Evidence 702, the expert
must be qualified, and the expert’s opinion must be relevant to the issues in the case and based
upon a reliable foundation. TEX. R. EVID. 702; Exxon Pipeline Co. v. Zwahr, 88 S.W.3d 623,
629 (Tex. 2002); Gammill v. Jack Williams Chevrolet, Inc., 972 S.W.2d 713, 720 (Tex. 1998);
E.I. du Pont & de Nemours & Co. v. Robinson, 923 S.W.2d 549, 556 (Tex. 1995). The relevance
requirement, which incorporates traditional relevancy analysis under Texas Rules of Evidence
401 and 402, is met if the expert testimony is “sufficiently tied to the facts of the case that it will
aid the jury in resolving a factual dispute.” Robinson, 923 S.W.2d at 556 (quoting United States
v. Downing, 753 F.2d 1224, 1242 (3rd Cir. 1985)). Evidence that has no relationship to any
issue in the case does not satisfy rule 702 and is thus inadmissible under rule 702, as well as rules
401 and 402. Id.
Rule 702’s reliability requirement focuses on principles, research, and methodology
underlying an expert’s conclusions. Id. at 557. Under this requirement, expert testimony is
unreliable if it is not grounded “in the methods and procedures of science” and is no more than
“subjective belief or unsupported speculation.” Id. (quoting Daubert v. Merrell Dow Pharm.,
Inc., 509 U.S. 579, 590 (1993)). Expert testimony is also unreliable if there is too great an
analytical gap between the data the expert relies upon and the opinion offered. Gammill, 972
S.W.2d at 727. In applying this reliability standard, however, the trial court does not decide
whether the expert’s conclusions are correct; instead, the trial court determines whether the
analysis used to reach those conclusions is reliable. Id. at 728.
When an expert is challenged, the proponent of the expert opinion must prove the
reliability of each opinion. Mack Trucks, Inc. v. Tamez, 206 S.W.3d 572, 578 (Tex. 2006). The
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proponent bears this burden “regardless of the quality or quantity of the opposing party’s
evidence on the issue and regardless of whether the opposing party attempts to conclusively
prove the expert testimony is wrong.” Whirlpool v. Camacho, 298 S.W.3d 631, 639 (Tex. 2009).
This burden includes ensuring that the expert’s testimony contains no internal inconsistencies.
See Gen. Motors Corp. v. Iracheta, 161 S.W.2d 462, 470–72 (Tex. 2005).
The trial court serves as a gatekeeper to screen out irrelevant and unreliable expert
evidence. Zwahr, 88 S.W.3d at 629. The trial court has broad discretion to determine the
admissibility of evidence, and we review the trial court’s decision under an abuse of discretion
standard. Id. A trial court abuses its discretion when it acts without regard to any guiding rules
or principles. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241–42 (Tex. 1985).
Whether a trial court abused its discretion in making an evidentiary ruling is a question of law.
State v. Bristol Hotel Asset Co., 65 S.W.3d 638, 647 (Tex. 2001).
In chemical-exposure cases, the plaintiff must present evidence of both general and
specific causation. Brookshire Bros., Inc. v. Smith, 176 S.W.3d 30, 36 (Tex. App.—Houston
[14th Dist.] 2004, pet. denied). General causation asks whether a substance is capable of causing
a particular injury in the general population; specific causation asks whether that substance
caused a particular individual’s injury. Id. Proving one type of causation does not necessarily
prove the other, and logic dictates that both are needed for a chemical-exposure plaintiff to
prevail. Id. at 36–37. Generally, expert testimony is necessary to establish causation regarding
medical conditions outside the common knowledge and experience of jurors. JLG Trucking,
LLC v. Garza, 466 S.W.3d 157, 162 (Tex. 2015). Expert testimony is particularly necessary in
chemical-exposure cases, in which medically complex diseases and causal ambiguities
compound the need for expert testimony. Brookshire Bros., 176 S.W.3d at 36.
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Dr. Zuriqat’s Testimony
Dr. Zuriqat testified1 he is board certified in pulmonology and critical-care medicine. He
examined Zamora on September 10, 2012, about three weeks after Zamora’s exposure to the
fumes. Zamora told him he had shortness of breath and coughing that started after he was
exposed to a large amount of smoke. Zamora told Dr. Zuriqat he had not had that problem
before. Dr. Zuriqat did a lung-function test on Zamora and reviewed his chest X-rays, all of
which were normal. He determined that Zamora had symptoms of asthma that were also
consistent with reactive airway dysfunction syndrome (RADS), which he stated “is a disorder
that sometimes—or can be or is induced by heavy exposure to anything in the environment—
some certain things in the environment that can cause—if it is inhaled in large amounts, can
cause some dysfunction in the bronchial tubes that mimics asthma.” Dr. Zuriqat put in his notes
under a question mark “possible asthma” and “possible reactive airway dysfunction syndrome.”
He stated he had seen other patients with RADS after inhalation of fumes.
Two days later, Dr. Zuriqat signed a form stating Zamora would be able to return to work
on September 26. Dr. Zuriqat stated on the form, “due to smoke/chemical exposure the pt did
experience persistent cough with vomiting.” He testified he concluded Zamora’s symptoms
were “suspected or likely” due to smoke and chemical exposure based on Zamora’s statements
and that he had no reason to believe Zamora was dishonest with him. He testified there is no
way to be sure from testing that Zamora’s symptoms were due to the smoke and chemicals. He
testified that when he signed the form, he believed the probability was more than fifty percent
that Zamora’s cough and vomiting were due to the inhalation of fumes based on reasonable
1
Dr. Zuriqat’s testimony comes from his deposition. The only portions of the deposition in the appellate record are the excerpts attached to
Zamora’s summary judgment response and to his response to appellee’s motion to exclude Dr. Zuriqat’s testimony. Appellee’s motion to exclude
Dr. Zuriqat’s testimony cited to the deposition but did not attach it. Some of appellee’s citations are to portions of the deposition that are not
included in the appellate record. On appeal, neither party cites to those missing portions of the deposition. Accordingly, we base our
determination on the portions of Dr. Zuriqat’s testimony included in the appellate record and do not consider the effect, if any, of the portions of
Dr. Zuriqat’s testimony that may have been reviewed by the trial court but that are not included in the appellate record.
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medical probability. Dr. Zuriqat examined Zamora again on September 25, and Zamora said he
was about eighty percent improved.
Dr. Zuriqat testified that RADS is “an irritant-induced type of asthma” and that the
irritant can be a gas, such as acetylene, or “fumes from grease and oil heated by a torch when
somebody is cutting something nearby.” He also testified that he could not determine whether
anything Zamora inhaled at appellee’s facility caused his lung condition. He agreed his
impression as to the cause of Zamora’s condition was “speculation . . . a possibility.” He also
stated he did not know the amount of any substance or length of time Zamora breathed in to
cause his lung condition. He also stated that if exposure to a substance leads to coughing and the
symptoms persist after the person is no longer exposed to the substance, “that indicates that you
might have been exposed to a significant amount.”
Zamora’s attorney asked Dr. Zuriqat if Zamora had RADS:
Q. . . . So if we take your record from the first visit and until the last one, based on
his improvement, are you of the opinion that when he first presented to your
office on September 10th, 2012, he had respiratory airway dysfunction syndrome
and that that condition had improved by the time you last saw him?
A. I would say he could have, and it improved. He could. This is not a—you
know, as a—this, yes, can suggest that, and can suggest, you know, asthma still,
you know. And these are all subjective because the initial symptoms are
subjective and improvement was subjective, too.
(Appellee’s objections omitted.)
Dr. Zuriqat also testified he reached a “differential diagnosis” about Zamora on
September 10. “Differential diagnosis is a ‘patient-specific process of elimination that medical
practitioners use to identify the “most likely” cause of a set of signs and symptoms from a list of
possible causes.’” Neal v. Dow Agrosciences LLC, 74 S.W.3d 468, 473 n.3 (Tex. App.—Dallas
2002, no pet.) (quoting Minn. Mining & Mfg. Co. v. Atterbury, 978 S.W.2d 183, 194 n. 9 (Tex.
App.—Texarkana 1998, pet. denied) (citing Pick v. Am. Med. Sys., Inc., 958 F. Supp. 1151,
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1162–63 (E.D. La. 1997))). The differential diagnosis was what Dr. Zuriqat recorded in his
impressions on September 10, namely, that Zamora was suffering from either RADS or asthma.
Hearing on the Motion to Exclude
At the hearing on appellee’s motion to exclude Dr. Zuriqat’s testimony, the trial court
was concerned that Dr. Zuriqat’s testimony was that Zamora had either “asthma, which many
people have, or RADS, which would be an exact diagnosis that plaintiff wants presented to the
jury.” Zamora’s attorney said Dr. Zuriqat “is not being presented to say [Zamora] has RADS.”
Instead, Zamora’s attorney stated the strategy was to present Dr. Zuriqat’s testimony that Zamora
either had asthma or he had RADS from exposure to the fumes in the workplace, and then
present evidence of Zamora’s lack of a prior history of asthma. However, the trial court was
concerned that Dr. Zuriqat’s testimony of an ambiguous diagnosis of asthma or RADS would not
aid the jury in making a determination that Zamora’s condition was RADS from inhalation of
fumes in the workplace and not asthma.
Zamora’s Argument on Appeal
On appeal, Zamora quotes extensively from Dr. Zuriqat’s deposition and states, “From
the foregoing testimony the trial court should have reasonably inferred that Appellant’s injury
proximately caused by Appellee’s conduct was at least asthma-like symptoms, if not chemical
exposure.” We disagree. Dr. Zuriqat’s “impressions” were asthma or RADS. Dr. Zuriqat tied
the possibility of RADS to the workplace fumes, but he did not testify that if Zamora had asthma
then it resulted from the fumes. Instead, he observed that Zamora had no prior history of asthma
based on Zamora’s statements to him. However, even knowing Zamora’s prior lack of asthma,
Dr. Zuriqat did not testify that Zamora’s problems were caused by RADS and not asthma.
Instead, his “impressions” were asthma or RADS.
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Zamora also points to Dr. Zuriqat’s testimony about the Medical Leave Act form. Dr.
Zuriqat wrote on the form that Zamora experienced persistent cough with vomiting “due to
smoke/chemical exposure.” Dr. Zuriqat testified that when he signed the form, he “believe[d]”
“at that time” “that the probability of this being the case was more than 50 percent.” However, at
his deposition more than two years later, Dr. Zuriqat did not testify Zamora’s problems were
“due to [RADS from] smoke/chemical exposure.” Instead he testified the problems were either
from RADS or asthma.
In this case, the trial court could reasonably have concluded that Dr. Zuriqat’s inability to
tie Zamora’s injuries to his workplace-exposure to fumes and not to asthma made his testimony
unhelpful to the jury on the subject of causation. Zamora points to Dr. Zuriqat’s testimony that it
is impossible to determine whether Zamora’s breathing difficulties resulted from RADS or from
asthma because the symptoms are the same. Although this testimony explains why Dr. Zuriqat
could not identify RADS and rule out asthma as the cause of Zamora’s injuries, the trial court
could have concluded it did not make Dr. Zuriqat’s testimony on causation more helpful to a
jury. We conclude the trial court did not abuse its discretion by excluding Dr. Zuriqat’s
testimony on the causation of Zamora’s injuries.2
Zamora also contends in his statement of the first issue that the trial court erred by
denying his motion for continuance and for leave to designate a new expert witness on causation.
However, Zamora’s argument on appeal does not address this contention beyond the bare
conclusion that the trial court erred by denying the motion. Accordingly, we conclude Zamora
has not shown the trial court abused its discretion by denying the motion.
We overrule Zamora’s first issue.
2
Whether the trial court would have abused its discretion by denying appellee’s motion to exclude Dr. Zuriqat’s testimony on causation is
not before us, and we express no opinion on that subject.
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SUMMARY JUDGMENT
In his second issue, Zamora contends the trial court erred by granting appellee’s
traditional and no-evidence motions for summary judgment. We conclude the trial court
properly granted appellee’s no-evidence motion for summary judgment. Accordingly, we do not
address whether the trial court erred by granting the traditional motion for summary judgment.
The same legal sufficiency standard of review that is applied when reviewing a directed
verdict is also applied when reviewing a no-evidence summary judgment. See Tex. Integrated
Conveyor Sys., Inc. v. Innovative Conveyor Concepts, Inc., 300 S.W.3d 348, 375 (Tex. App.—
Dallas 2009, pet. denied) (op. on motion for reh’g); RTLC AG Prods., Inc. v. Treatment Equip.
Co., 195 S.W.3d 824, 829 (Tex. App.—Dallas 2006, no pet.). When reviewing a no-
evidence summary judgment, we must determine whether the non-movant produced any
evidence of probative force to raise a fact issue on the material questions presented. Tex.
Integrated, 300 S.W.3d at 375; RTLC, 195 S.W.3d at 833. We review a no-
evidence summary judgment for evidence that would enable reasonable and fair-minded jurors to
differ in their conclusions. See Hamilton v. Wilson, 249 S.W.3d 425, 426 (Tex. 2008) (per
curiam); Wal–Mart, Stores, Inc. v. Spates, 186 S.W.3d 566, 568 (Tex. 2006) (per curiam); City of
Keller v. Wilson, 168 S.W.3d 802, 822 (Tex. 2005). We view all of the evidence in the light
most favorable to the party against whom the no-evidence summary judgment was rendered and
disregard all contrary evidence and inferences. See Smith v. O’Donnell, 288 S.W.3d 417, 424
(Tex. 2009); Merrell Dow Pharm. v. Havner, 953 S.W.2d 706, 711 (Tex. 1997). A no-
evidence summary judgment is improperly granted if the non-movant presents more than a
scintilla of probative evidence to raise a genuine issue of material fact. See Smith, 288 S.W.3d at
424. More than a scintilla of evidence exists when the evidence rises to a level that would enable
reasonable and fair-minded people to differ in their conclusions. See Merrell Dow, 953 S.W.2d
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at 711. When, as in this case, the trial court’s order granting summary judgment does not specify
the grounds relied on, we will affirm the summary judgment if any of the summary judgment
grounds are meritorious. FM Props. Operating Co. v. City of Austin, 22 S.W.3d 868, 872–73
(Tex. 2000); Cunningham v. Tarski, 365 S.W.3d 179, 186 (Tex. App.—Dallas 2012, pet.
denied).
One of the grounds of appellee’s no-evidence motion for summary judgment was that
Zamora had no evidence that his injuries were caused by exposure to toxic fumes in the
workplace. Lay testimony can be sufficient to raise a fact question on proximate cause if general
experience and common sense would allow a lay person to fairly determine causation. Praytor
v. Ford Motor Co., 97 S.W.3d 237, 241 (Tex. App.—Houston [14th Dist.] 2002, no pet.). In
chemical-exposure cases, lay testimony is not sufficient because “medically complex diseases
and causal ambiguities compound the need for expert testimony.” Brookshire Bros., 176 S.W.3d
at 36; see Hair v. Church & Dwight Co., No. 05-03-01153-CV, 2004 WL 1615833, at *2 (Tex.
App.—Dallas July 20, 2004, no pet.) (mem. op.) (quoting Brookshire Bros.).
After the trial court signed the order excluding Dr. Zuriqat’s testimony on causation,
Zamora had no expert evidence on the causation of his injuries. As Brookshire Brothers and this
Court’s opinion in Hair point out, expert testimony is necessary in this type of case to establish
causation. Because Zamora had no expert evidence of the causation of his injuries, the trial court
did not err by granting appellee’s no-evidence motion for summary judgment.
In his reply brief, Zamora argues the summary judgment record shows the trial court
erred by granting the motion for summary judgment even without expert testimony on causation.
Zamora’s argument relies on the Fifth Circuit’s opinion in Austin v. Kroger Texas, L.P., 864 F.3d
326 (5th Cir. 2017) (per curiam). In that case, Austin, an employee at a Kroger grocery store,
was directed to clean an oily spill in the store’s restrooms. The store was out of “Spill Magic,” a
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substance put on spills to help clean them safely. While trying to clean the oily spill without
Spill Magic, Austin slipped and fell, breaking his leg. Id. at 327–28. Austin sued Kroger
alleging it failed to provide him with a necessary instrumentality to perform his job safely,
namely, Spill Magic. Id. at 328. The district court granted Kroger’s motion for summary
judgment. On appeal, the Fifth Circuit determined there was some evidence that Spill Magic
was a necessary instrumentality for Austin’s job and some evidence that Kroger had the duty to
supply Spill Magic. However, the Fifth Circuit did not reach the issue of causation because it
determined the district court erred by denying under the wrong rule Austin’s motion for
reconsideration of the court’s denial of his motion to file a surreply containing his doctor’s
expert report on causation. Id. at 328, 336–37. The opinion does not hold that causation under
those facts could be established without expert testimony. However, even if it did so hold, a slip
and fall on an oily floor resulting in a broken leg is much closer to a situation where a lay
person’s general experience and common sense would allow a causation determination than is
the situation in a chemical-exposure case. See Brookshire Bros., 176 S.W.3d at 36. We
conclude Austin is not applicable to the case before us.
Zamora also cites Herrmann v. Goff Custom Homes, L.P., No. 05-12-00318-CV, 2013
WL 4517274 (Tex. App.—Dallas Aug. 23, 2013, no pet.), concerning whether “Appellee
breached its duties to [Zamora] and thereby proximately caused or at least contributed to his
resulting injuries and damages.” However, Herrmann addressed only whether the defendant
owed the plaintiff a duty to warn of a dangerous condition. Id. The opinion did not address the
issue of causation, and the facts in that case, a person falling down an elevator shaft when a
guardrail gave way, do not involve the medically complex questions present in a chemical-
exposure case. We conclude Herrmann is not applicable.
We overrule Zamora’s second issue.
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CONCLUSION
We affirm the trial court’s judgment.
/Lana Myers/
LANA MYERS
160577F.P05 JUSTICE
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Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
LUIS ZAMORA, Appellant On Appeal from the County Court at Law
No. 2, Grayson County, Texas
No. 05-16-00577-CV V. Trial Court Cause No. 2013-2-063CV.
Opinion delivered by Justice Myers. Justices
CHAMPION COOLER CORPORATION, Bridges and Schenck participating.
Appellee
In accordance with this Court’s opinion of this date, the judgment of the trial court is
AFFIRMED.
It is ORDERED that appellee CHAMPION COOLER CORPORATION recover its costs
of this appeal from appellant LUIS ZAMORA.
Judgment entered this 23rd day of January, 2018.
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