benjamin-ebaseh-onofa-individually-as-personal-representative-of-and-on ( 2015 )


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  •                    NUMBER 13-14-00319-CV
    COURT OF APPEALS
    THIRTEENTH DISTRICT OF TEXAS
    CORPUS CHRISTI – EDINBURG
    BENJAMIN EBASEH-ONOFA,
    INDIVIDIUALLY, AND AS PERSONAL
    REPRESENTATIVE OF AND ON
    BEHALF OF ALL WRONGFUL
    DEATH BENEFICIARIES OF THE
    ESTATE OF OMONOSIONI EBASEH-
    ONOFA,                                                 Appellants,
    v.
    MCALLEN HOSPITALS, L.P. D/B/A
    EDINBURG REGIONAL MEDICAL
    CENTER,                                                Appellee.
    On appeal from the 206th District Court
    of Hidalgo County, Texas.
    MEMORANDUM OPINION
    Before Chief Justice Valdez and Justices Rodriguez and Longoria
    Memorandum Opinion by Justice Longoria
    Appellant, Benjamin Ebaseh-Onofa (“Benjamin”), individually and on behalf of all
    wrongful-death beneficiaries of the estate of his deceased wife, Omonosioni Ebaseh-
    Onofa (“Onofa”), challenges summary judgment in favor of appellee McAllen Hospitals,
    LP, d/b/a Edinburg Regional Medical Center (“the Hospital”). We affirm.
    I. BACKGROUND
    In March of 2009, Mexican health officials reported an outbreak of a strain of Novel
    Influenza A H1N1, also known as the swine flu virus (“H1N1”). Health officials reported
    the first Texas case on April 23, 2009. During this time period, Onofa worked as a nurse
    at the Hospital’s Pediatric Intensive Care Unit (“PICU”) in McAllen, Texas, where there
    were no confirmed cases of H1N1 infections, although there were some confirmed cases
    in other parts of the Hospital.
    According to Benjamin’s deposition, on the evening of Friday, May 29, 2009, Onofa
    returned home from a shift at the PICU “not feeling well.” Her symptoms worsened, and
    she sought medical care. A rapid test for influenza strains A and B performed by Onofa’s
    family doctor on June 1, 2009 returned negative. Onofa’s symptoms worsened, and she
    was admitted to the emergency room on June 3, 2009. Onofa died on June 5, 2009. An
    autopsy determined that the cause of death was the H1N1 virus.
    On May 16, 2011, Benjamin filed suit against the Hospital for wrongful death,
    alleging that the Hospital was grossly negligent.1 Benjamin specifically alleged that the
    1 Benjamin also brought claims against the Hospital for negligence and negligence per se. The
    trial court dismissed those claims pursuant to a Rule 11 agreement because they were barred by the
    exclusive remedy provision of the Texas Worker’s Compensation Act. See TEX. LAB. CODE ANN.
    § 408.001(a) (West, Westlaw through 2013 3d C.S.).
    2
    Hospital knew that Onofa was caring for patients in the PICU with confirmed or suspected
    infections with H1N1, but failed to provide Onofa with an N95 respirator mask to wear
    during her shifts.      At the time, the Centers for Disease Control (CDC) had issued
    guidelines recommending that masks be used by healthcare workers caring for such
    patients. Benjamin further alleged that the Hospital failed to comply with CDC guidelines
    requiring hospitals to monitor healthcare workers caring for such patients for symptoms
    of respiratory illness. Benjamin’s allegation that the Hospital failed to monitor Onofa
    assumes that Onofa became infected at the PICU; however, he does not assert that the
    alleged failure to monitor alone caused Onofa’s death.
    On August 29, 2013, the Hospital filed an amended no-evidence motion for
    summary judgment. See TEX. R. CIV. P. 166a(i). Even though Benjamin pleaded a claim
    for gross negligence, the Hospital moved for no-evidence summary judgment on the
    causation element of a Health Care Liability Claim (HCLC).2 The Hospital did not assert
    in its motion for summary judgment or elsewhere that Benjamin’s claim should be
    dismissed for failure to file an expert report, see TEX. CIV. PRAC. & REM. CODE ANN.
    § 74.351 (West, Westlaw through 2013 3d C.S.), but rather that it should have been
    dismissed because there was no evidence of the essential Health Care Liability Claim
    element of causation.
    On September 24, 2013, Benjamin filed a response to the Hospital’s no-evidence
    motion for summary judgment and filed an amended response on November 19, 2013.
    2 We note that filing special exceptions is preferred over summary judgment as a procedure to
    challenge a defect in the opposing party’s pleadings. See generally Horizon/CMS Healthcare Corp. v. Auld,
    
    34 S.W.3d 887
    , 897 (Tex. 2000) (“An opposing party should use special exceptions to identify defects in a
    pleading so that they may be cured, if possible, by amendment.”).
    3
    Benjamin’s amended response to the motion for summary judgment contained a
    combination of special exceptions and a motion to strike alleging that the Hospital’s
    motion for summary judgment addressed a claim that Benjamin did not plead. The trial
    court did not rule on the combined motion to strike and special exceptions orally or in
    writing. On November 22, 2013, the trial court set Benjamin’s motion for submission on
    December 20, 2013.
    Benjamin’s amended response to the Hospital’s no-evidence motion for summary
    judgment attached three pieces of evidence in support of his claim: an affidavit of Harry
    F. Hull, M.D., an epidemiologist who served as one of Benjamin’s experts; selected pages
    from the transcript of Dr. Hull’s deposition; and redacted medical records of a patient
    being treated in the PICU at the same time as Onofa. Dr. Hull averred that he reviewed
    all redacted patient records provided by the Hospital, and in his opinion, this particular
    patient’s symptoms were consistent with H1N1. Dr. Hull further testified that this patient
    was the source of Onofa’s infection with H1N1. The Hospital filed a reply to Benjamin’s
    response in which it asserted that the medical records reflected that patient tested
    negative for influenza. The Hospital attached to its reply an affidavit from Rebecca Rene
    Palacios. In the affidavit, Palacios identified the medical records on which Dr. Hull relied
    as her own and asserted that she was not infected with H1N1 at the time of her stay in
    the PICU. Palacios further stated that she has never tested positive for H1N1.
    Benjamin had earlier filed a motion to compel the Hospital to respond to his fourth
    set of requests for production relating to the medical records of patients in the PICU during
    Onofa’s shifts there. The Hospital had previously produced redacted selections from
    each of the medical records of those patients, and Benjamin’s motion requested the
    4
    complete medical records, with redactions, of those patients. Benjamin filed an amended
    motion to compel on December 2, 2013, requesting the same records. At a hearing on
    December 20, 2013, the trial court considered Benjamin’s amended motion to compel
    and also submitted the Hospital’s amended motion for summary judgment. Benjamin did
    not object to the submission.3 On January 7, 2014, the trial court signed an order granting
    Benjamin’s first amended motion to compel.            The order directed the Hospital to produce
    the complete redacted medical records of the patients in the PICU during Onofa’s time
    there. The parties signed a Rule 11 agreement briefly extending the deadline, making
    the discovery due January 29, 2014. On that date, the Hospital produced discovery in
    response to the court’s order and tendered supplemental discovery on February 7, 2014.
    On February 18, 2014, Benjamin filed a motion to continue the trial setting, which
    was set at the time for February 24, 2014. However, Benjamin never filed a motion to
    continue the submission of the Hospital’s no-evidence summary-judgment motion. On
    February 19, 2014, the trial court granted the motion to continue the trial setting and
    informed the parties by letter that she was granting the Hospital’s motion for summary
    judgment. The letter reflected that the judge considered (1) the Hospital’s first amended
    motion for summary judgment; (2) Benjamin’s response and motion to strike the
    Hospital’s motion; (3) the Hospital’s reply to Benjamin’s response and motion to strike,
    (4) Benjamin’s first amended response; and (5) the Hospital’s supplemental reply to
    Benjamin’s response to the Hospital’s motion for summary judgment. The trial court
    signed a final judgment on March 10, 2014.
    Benjamin timely filed a motion for reconsideration or for new trial in which he
    3  The hearing on December 20, 2013 was apparently unrecorded because the docket sheet reflects
    that the parties’ attorneys were present. However, there is no reporter’s record of the hearing.
    5
    alleged that: (1) the trial court granted summary judgment on a claim not addressed in
    the Hospital’s motion; (2) Dr. Hull’s original affidavit provided evidence of causation; and
    (3) Benjamin did not have adequate time for discovery. In response to the trial court’s
    question at the hearing, Benjamin’s counsel confirmed that he never filed a motion to
    continue the submission of the Hospital’s motion for summary judgment. Benjamin’s
    counsel also confirmed that he did not file any pleading mentioning the need for more
    time before the trial court ruled on the Hospital’s motion for summary judgment.
    The remainder of the hearing on Benjamin’s motion for new trial turned on his
    assertions that the new portions of the medical records produced by the Hospital
    confirmed Dr. Hull’s opinion that Palacios was the source of Onofa’s infection. The
    Hospital responded that it fully produced Palacios’ medical records, including the
    influenza test results, several months before. The trial court requested that the Hospital
    submit an affidavit to that effect by 5:00 p.m. on May 21, 2014. The trial court gave
    Benjamin the same deadline to demonstrate how any of the late-produced selections of
    medical records raised an issue of fact on Benjamin’s claim. The Hospital submitted the
    requested affidavit by the deadline, but Benjamin did not file Dr. Hull’s amended affidavit
    until 6:38 p.m. on the same day. Benjamin did not file a motion for leave to file the affidavit
    or otherwise request that the trial court consider the second affidavit. Benjamin’s motion
    for new trial was eventually overruled by operation of law.
    By three issues, which we have reordered and will address as four, Benjamin
    asserts that the trial court erred by: (1) granting no-evidence summary judgment to the
    Hospital on a claim not raised in Benjamin’s pleadings; (2) considering evidence attached
    to the Hospital’s no-evidence motion for summary judgment; (3) refusing to consider Dr.
    6
    Hull’s amended affidavit; and (4) granting summary judgment when Benjamin produced
    more than a scintilla of evidence supporting causation.
    II. WAS SUMMARY JUDGMENT GRANTED ON A CLAIM NOT ADDRESSED IN THE MOTION?
    By his first issue, Benjamin argues that the trial court erred by granting summary
    judgment on his gross negligence cause of action, which the Hospital did not address in
    its motion. Benjamin reasons that the Hospital’s motion addressed the elements of an
    HCLC while Benjamin pleaded a claim for gross negligence. See Nall v. Plunkett, 
    404 S.W.3d 552
    , 555 (Tex. 2013) (per curiam) (“Granting a summary judgment on a claim not
    addressed in the summary judgment motion therefore is, as a general rule, reversible
    error.”).
    The Hospital responds that its motion was proper because Benjamin’s claim was
    an HCLC regardless of the way in which he chose to plead it. See Yamada v. Friend,
    
    335 S.W.3d 192
    , 196 (Tex. 2010) (observing that “[w]hether a claim is a health care
    liability claim depends on the underlying nature of the claim being made” and that “artful
    pleading does not alter that nature”). The Hospital argues in the alternative that the
    difference between Benjamin’s pleadings and the Hospital’s motion is irrelevant because
    Benjamin had the burden to prove causation under a gross negligence claim or an HCLC,
    and there was no evidence that the Hospital’s actions or failure to act under either claim
    were the proximate cause of Onofa’s death.
    Texas Rule of Civil Procedure 166a(i) requires the movant to challenge the
    evidentiary support for a specific essential element of the nonmovant’s claim or defense.
    
    Id. The motion
    shifts the burden onto the nonmovant to come forward with some evidence
    of the challenged essential element or elements. Lampasas v. Spring Ctr., Inc., 988
    
    7 S.W.2d 428
    , 436 (Tex. App.—Houston [14th Dist.] 1999, no pet.). If the nonmovant does
    not carry its burden, then the court must grant summary judgment on all of the
    nonmovant’s claims containing the challenged element or elements. 
    Id. Benjamin is
    correct that, as a general rule, a trial court cannot grant no-evidence
    summary judgment on grounds not presented in the motion. Timpte Indus., Inc. v. Gish,
    
    286 S.W.3d 306
    , 310 (Tex. 2009). However, we disagree that the trial court granted
    summary judgment on a claim not addressed by the pleadings. The Fourteenth Court of
    Appeals addressed a similar issue in Kennedy v. Arahzadeh. No. 14-98-00428-CV, 
    1999 WL 418369
    , at *3 (Tex. App.—Houston [14th Dist.] June 24, 1999, no pet.) (mem. op.).
    The appellant in that case sued a dentist for negligence, gross negligence, and fraud
    arising out of the dentist’s treatment of the appellant. 
    Id. at *1.
    The dentist moved for no-
    evidence summary judgment alleging that the appellant’s claims were HCLCs and that
    there was no evidence of either a breach of an accepted standard of care applicable to
    dentists treating a patient or that the departure proximately caused the appellant’s
    injuries. 
    Id. The Fourteenth
    Court of Appeals concluded that the appellant’s claims were
    HCLCs because all were necessarily predicated on a departure from accepted standards
    of medical care. 
    Id. at *2.
    The court concluded that the dentist’s motion encompassed
    the appellant’s claims because the motion challenged the existence of evidence of both
    a breach of the standard of care and of causation, elements common to a claim for
    negligence and an HCLC. 
    Id. at **2–3.
    Being guided by the Houston Court’s analysis,
    we conclude that Benjamin’s claim is an HCLC because it is predicated on a departure
    from the accepted standard of care applicable to a health care provider.
    8
    We further conclude that the Hospital’s motion was broad enough to encompass
    Benjamin’s claim because it challenged the essential element of causation, which is
    common to both claims.      In Texas West Oaks Hospital, LP v. Williams, the Texas
    Supreme Court addressed a dispute between a mental hospital and one of its employees
    over the hospital’s alleged failure to protect the employee from a dangerous patient. 
    371 S.W.3d 171
    , 175–76 (Tex. 2012). The Court rejected Williams’s argument that his claim
    was not an HCLC, explaining that the dispute was, “at its core, over the appropriate
    standards of care owed to this mental health professional in treating and supervising a
    psychiatric patient at the mental hospital, what services, protocols, supervision,
    monitoring and equipment were necessary to satisfy the standard, and whether such
    specialized standards were breached.” See 
    id. at 182.
    The same reasoning is applicable
    here. Regardless of the form of Benjamin’s pleadings, at its core, Benjamin’s dispute with
    the Hospital is over the appropriate standard of care that the Hospital owed to Onofa, a
    nursing professional treating patients potentially infected with H1N1, “what services,
    protocols, supervision, monitoring and equipment were necessary to satisfy the standard,
    and whether such specialized standards were breached.” 
    Id. at 182.
    Benjamin cannot
    escape the nature of his claim by pleading it in a different manner. See 
    Yamada, 335 S.W.3d at 196
    . Furthermore, the Hospital’s motion challenged the evidence supporting
    causation, an essential element that is common to both an HCLC and a claim for gross
    negligence. See Tex. W. Oaks 
    Hosp., 371 S.W.3d at 179
    –80 (stating that one of the
    elements of an HCLC is that the defendant’s departure from the standard of care
    proximately cause the plaintiff’s injuries); Frias v. Atl. Richfield Co., 
    999 S.W.2d 97
    , 103
    (Tex. App.—Houston [14th Dist.] 1999, pet. denied) (stating that one of the elements of a
    9
    claim for gross negligence authorized by the Texas Workers’ Compensation Act is
    causation) (citing TEX. LAB. CODE ANN. § 408.001(b) (West, Westlaw through 2013 3d
    C.S.)). Because the Hospital’s no-evidence motion for summary judgment challenged
    the causation element of Benjamin’s claim, we conclude that the Hospital’s motion was
    broad enough to encompass it.       See 
    Lampasas, 988 S.W.2d at 436
    –37; see also
    Kennedy, 
    1999 WL 418369
    , at *3.
    Having concluded that the Hospital’s motion address Benjamin’s claim, we
    overrule Benjamin’s first issue.
    III. EVIDENCE ATTACHED TO THE HOSPITAL’S MOTION
    Benjamin asserts in his second issue that the trial court erred by considering the
    evidence attached to the Hospital’s summary-judgment motion. Benjamin reasons that
    the Texas Supreme Court has ruled that if the moving party attaches evidence to a no-
    evidence motion, “that evidence should not be considered unless it creates a fact
    question.” Binur v. Jacobo, 
    135 S.W.3d 646
    , 651 (Tex. 2004).
    We agree that attaching evidence to the motion was improper and that the Hospital
    may not rely on that evidence on appeal. See 
    id. We also
    agree that it appears from our
    review of the record the trial court may have considered some of the evidence. For
    example, a docket sheet entry for December 17, 2013 reflects that the trial court “reviewed
    all documents tabbed by courts staff on [the Hospital’s] amended motion for summary
    judgment.” Benjamin argues that considering the evidence was “improper” but does not
    explain how the court’s review of the improperly attached evidence amounted to
    reversible error. See TEX. R. APP. P. 38.1(i) (holding that the appellant’s brief “must
    contain a clear and concise argument for the contentions made, with appropriate citations
    10
    to authorities and to the record”).4 Even a novel argument must be grounded in analogous
    case law or present the relevant jurisprudential framework for evaluating the claim.
    Abdelnour v. Mid Nat’l Holdings, Inc., 
    190 S.W.3d 237
    , 241–42 (Tex. App.—Houston [1st
    Dist.] 2006, no pet.). Because Benjamin does not explain why the court’s consideration
    of the evidence attached to the motion was reversible error, we overrule Benjamin’s
    second issue. See TEX. R. APP. P. 38.1(i); see also 
    Abdelnour, 190 S.W.3d at 241
    –42.
    IV. DID BENJAMIN HAVE ADEQUATE TIME FOR DISCOVERY?
    By his third issue, Benjamin asserts that he did not have adequate time to make
    use of the full set of medical records of Palacios’ stay at the PICU, and that those records
    “confirm and reinforce” Dr. Hull’s opinion that Palacios was the cause of Onofa’s infection.
    Benjamin reasons that the trial court should have granted him adequate time to make use
    of these records.
    Texas Rule of Civil Procedure 166a(i) provides that a party may move for no-
    evidence summary judgment after an adequate time for discovery has passed. TEX. R.
    CIV. P. 166a(i). The rules require only that there was an adequate time for discovery, not
    that discovery be completed. Specialty Retailers, Inc. v. Fuqua, 
    29 S.W.3d 140
    , 145 (Tex.
    App.—Houston [14th Dist.] 2000, pet. denied). A party claiming inadequate time for
    discovery must either file an affidavit explaining the need for more time or a verified motion
    for continuance. Reule v. Colony Ins. Co., 
    407 S.W.3d 402
    , 407 (Tex. App.—Houston
    [14th Dist.] 2013, pet. denied); Rankin v. Union Pac. R. Co., 
    319 S.W.3d 58
    , 67 (Tex.
    App.—San Antonio 2010, no pet.). Benjamin’s counsel filed neither a verified motion for
    4 Binur v. Jacobo, the sole case Benjamin cited in this issue, holds only that evidence attached to
    a no-evidence motion should not be considered. 
    135 S.W.3d 646
    , 651 (Tex. 2004). Binur does not hold
    that considering evidence attached to a no-evidence motion is reversible error. See 
    id. 11 a
    continuance nor an affidavit. Based on the foregoing, we conclude that Benjamin has
    waived his complaint of inadequate time for discovery.5 See 
    Reule, 407 S.W.3d at 407
    ;
    
    Rankin, 319 S.W.3d at 67
    . We overrule Benjamin’s third issue.
    V. DID THE TRIAL COURT PROPERLY GRANT SUMMARY JUDGMENT?
    By his fourth issue, Benjamin asserts that summary judgment should not have
    been granted because he produced more than a scintilla of evidence on the essential
    HCLC element of causation.
    A. Standard of Review
    We review the trial court’s decision to grant summary judgment de novo. Merriman
    v. XTO Energy, Inc., 
    407 S.W.3d 244
    , 248 (Tex. 2013). When, as here, the trial court
    does not specify the ground for its ruling, we will affirm if any of the grounds presented in
    the motion were meritorious. 
    Id. A no-evidence
    summary-judgment motion filed under Texas Rule of Civil
    Procedure 166a(i) is essentially a motion for a pretrial directed verdict; it requires the
    nonmoving party to present evidence raising a genuine issue of material fact supporting
    each element contested in the motion. Mack 
    Trucks, 206 S.W.3d at 581
    –82. Evidence
    raises a genuine issue of fact if it is more than a scintilla. Ciguero v. Lara, No. 08-13-
    00075-CV, ___ S.W.3d ____, 
    2015 WL 136197
    , at *2 (Tex. App.—El Paso Jan. 9, 2015,
    no. pet).    “If the evidence supporting a finding rises to a level that would enable
    reasonable, fair-minded persons to differ in their conclusions, then more than a scintilla
    of evidence exists.” 
    Id. Evidence is
    less than a scintilla if it is “so weak as to do no more
    than create a mere surmise or suspicion of a fact.” Nalle Plastics Family Ltd. P'ship v.
    5Moreover, on the same day as the trial court’s deadline, Benjamin filed Dr. Hull’s new affidavit,
    which thoroughly evaluated those records.
    12
    Porter, Rogers, Dahlman & Gordon, P.C., 
    406 S.W.3d 186
    , 199 (Tex. App.—Corpus
    Christi 2013, pet. denied) (internal quotations omitted). We review the summary judgment
    record in the light most favorable to the nonmovant, indulging every reasonable inference
    and resolving any doubts in the nonmovant’s favor. Neely v. Wilson, 
    418 S.W.3d 52
    , 60
    (Tex. 2013) (op. on reh’g).
    B. Discussion6
    Benjamin asserts that he produced more than a scintilla of evidence from which a
    reasonable factfinder could conclude that the Hospital’s inaction caused Onofa’s death.
    Benjamin reasons that Onofa was exposed to patients with H1N1. Benjamin further
    asserts that the standard of care set by the CDC required that healthcare workers use
    N95 masks when treating patients suspected of having H1N1, and that the Hospital
    monitor staff for symptoms of respiratory illness. Benjamin asserted that the Hospital
    disregarded the standard set by the CDC by not providing Onofa with an N95 mask, not
    requiring her to use it, and not monitoring her. The Hospital responds that there was no
    evidence in the record that Onofa was exposed to H1N1 while working in the Hospital,
    6  As a threshold matter, the Hospital asserts that Benjamin waived this issue because he did not
    address causation in his response to the trial court. We may not consider on appeal any ground for reversal
    that was not expressly presented to the trial court by motion, answer, or other response to the motion for
    summary judgment. See McConnell v. Southside Indep. Sch. Dist., 
    858 S.W.2d 337
    , 341 (Tex. 1993);
    Holloway v. Tex. Elec. Util. Const., Ltd., 
    282 S.W.3d 207
    , 211 (Tex. App.—Tyler 2009, no pet.). Benjamin
    was not required to marshal his proof in his response, but only “point out evidence that raises a fact issue
    on the challenged elements.” Smith v. Mosbacker, 
    94 S.W.3d 292
    , 294 (Tex. App.—Corpus Christi 2002,
    no pet.) (citing TEX. R. CIV. P. 166a(i) cmt.).
    The response and amended response filed by Benjamin’s counsel admittedly do not use the word
    “causation.” However, reading the factual background and the argument section of the response together,
    it is clear that Benjamin asserted that the Hospital caused Onofa’s death by failing to follow CDC guidelines
    regarding the use of respirator masks and the monitoring of healthcare personal for signs of respiratory
    illness. It is also clear that he asserted that the evidence attached to the response is more than a scintilla.
    See 
    Smith, 94 S.W.3d at 294
    . The language used in the response could have been clearer, but it sufficed
    to make Benjamin’s argument. See 
    McConnell, 858 S.W.2d at 341
    . We will accordingly address
    Benjamin’s challenge on the merits.
    13
    and even assuming that the standard of care required her to wear the N95 mask, there is
    no evidence that she did not wear one.
    Viewing the evidence in the light most favorable to Benjamin and indulging every
    reasonable inference in his favor as we must, we conclude that Benjamin did not present
    any evidence that Onofa became infected with H1N1 while working in the PICU. Dr. Hull
    speculated during his deposition that “it was very likely” that there were unconfirmed
    cases of H1N1 in the PICU at the time because the virus was spreading in the community.
    However, Dr. Hull’s statement in his affidavit that Palacios was the source of Onofa’s
    infection was the only evidence Benjamin put forward regarding causation. We have
    reviewed both the part of Palacios’s medical records that Dr. Hull relied on in his initial
    affidavit and the part of the records disclosed by the Hospital following the ruling on the
    motion to compel, and both sets explicitly state that Palacios’ “Rapid influenza test A and
    B were negative.” Because Palacios tested negative for influenza, Benjamin had no
    evidence that Onofa became infected in the PICU as opposed to the community at large.
    Benjamin also cites to Dr. Hull’s amended affidavit, filed after Benjamin moved for
    a new trial.7 However, we may not consider Dr. Hull’s affidavit because it is not part of
    the summary judgment record. Benjamin filed Dr. Hull’s second affidavit almost two hours
    after the deadline set by the trial court expired. Late-filed evidence may become part of
    the summary judgment record on leave of the court. Benchmark Bank v. Crowder, 919
    7 The amended affidavit, which Benjamin contends establishes causation, contained all of the
    information in the first affidavit and a new substantive assertion: there were no confirmed cases of H1N1
    in the PICU at the relevant time because there were no rapid tests for H1N1 commercially available at the
    time. According to the amended affidavit, the rapid tests for Influenza A and B had “high rates of false
    negatives results and [so] physicians could not rely on rapid tests to determine if a patient was ill with”
    H1N1. At the time, the only reliable way to confirm infection by H1N1 was a time-consuming laboratory
    culture. Because there is no evidence such a test was performed for Palacios, and her symptoms were
    otherwise consistent with H1N1, Dr. Hull reasons that the negative test does not establish that Palacios
    was not infected with H1N1.
    
    14 S.W.2d 657
    , 663 (Tex. 1996); Ciguero, 
    2015 WL 136197
    , at *1 n.1. Without an affirmative
    indication in the record that the trial court granted leave, we presume that the trial court
    did not consider the evidence. Alphaville Ventures, Inc. v. First Bank, 
    429 S.W.3d 150
    ,
    154 (Tex. App.—Houston [14th Dist.] 2014, no pet.) (citing INA of Tex. v. Bryant, 
    686 S.W.2d 614
    , 615 (Tex. 1985)). We have reviewed the record and found no affirmative
    indication that the trial court granted leave. Benjamin also did not file a motion for
    extension of time, a motion for leave, or otherwise request that the trial court consider the
    affidavit. Dr. Hull’s affidavit is therefore not part of the summary judgment record, and we
    may not consider it. See id.; Pipkin v. Kroger Tex., L.P., 
    383 S.W.3d 655
    , 663 (Tex.
    App.—Houston [14th Dist.] 2012, pet. denied).
    Excluding Dr. Hull’s amended affidavit and reviewing the remaining evidence in
    the light most favorable to Benjamin, we conclude that Benjamin produced nothing more
    than speculation on the element of causation. Without any evidence that there were
    patients positive for H1N1 in the PICU during the time that Onofa worked there, the
    evidence Benjamin brought forth does “no more than create a mere surmise or suspicion”
    that Onofa became infected with H1N1 in the PICU as opposed to elsewhere in the
    community. See Nalle 
    Plastics, 406 S.W.3d at 199
    .
    In sum, we conclude that Benjamin did not carry his burden to produce more than
    a scintilla of evidence on the challenged element of causation. See Ciguero, 
    2015 WL 136197
    , at *2. Accordingly, we overrule Benjamin’s fourth issue.
    15
    VI. CONCLUSION
    We affirm the judgment of the trial court.
    NORA L. LONGORIA
    Justice
    Delivered and filed the
    21st day of May, 2015.
    16