East Texas Medical Center D/B/A East Texas Medical Center Emergency Medical Services v. Jody Delaune Individually and as Personal Representative of the Estate of Crystal Delaune, and as Next Friend of D. D., D. D. and D. A. D., Minors ( 2015 )


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  •                                                                                                ACCEPTED
    12-15-00014-CV
    TWELFTH COURT OF APPEALS
    TYLER, TEXAS
    6/3/2015 3:52:12 PM
    CATHY LUSK
    CLERK
    ORAL ARGUMENT REQUESTED
    No. 12-15-00014-CV                        FILED IN
    12th COURT OF APPEALS
    _______________________________________________
    TYLER, TEXAS
    6/3/2015 3:52:12 PM
    COURT OF APPEALS                                  CATHY S. LUSK
    Clerk
    for the
    TWELFTH DISTRICT OF TEXAS
    Tyler, Texas
    _______________________________________________
    East Texas Medical Center d/b/a East Texas Medical Center
    Emergency Medical Services
    Appellant,
    v.
    Jody Delaune, Individually and as Personal Representative of the Estate of
    Crystal Delaune, Deceased; and as Next Friend of D.D., D.D. and DA.D, Minors
    Appellee.
    _______________________________________________
    Appeal from Cause No. 13-0984-A
    TH
    7 District Court, Smith County, Texas
    Honorable Kerry L. Russell, Presiding Judge
    _______________________________________________
    APPELLANT’S BRIEF ON THE MERITS
    _______________________________________________
    Russell G. Thornton
    THIEBAUD REMINGTON THORNTON BAILEY LLP
    Two Energy Square
    4849 Greenville Avenue, Suite 1150
    Dallas, Texas 75206
    (214) 954-2200 – Telephone
    (214) 754-0999 – Telecopier
    ATTORNEYS FOR DEFENDANT – APPELLANT
    East Texas Medical Center d/b/a East Texas Medical Center Emergency Medical Services
    June 3, 2015
    LIST OF PARTIES AND COUNSEL
    In order that members of the Court may determine disqualification or recusal,
    Appellant certifies that the following is a complete list of the names and addresses of
    parties to this appeal and their counsel:
    APPELLEE:                                       Jody Delaune, Individually and as
    Personal Representative of the Estate of
    Crystal Delaune, Deceased; and as Next
    Friend of D.D., D.D. and DA.D., Minors
    COUNSEL FOR APPELLEE:                           Mr. Ryan Krebs, M.D., J.D.
    THE LAW OFFICE OF RYAN KREBS
    805 W. 10th Street, Suite 300
    Austin, Texas 78701
    APPELLANT:                                      East Texas Medical Center d/b/a East
    Texas Medical Center Emergency
    Medical Services
    COUNSEL FOR APPELLANT:                          Russell G. Thornton (Appeal)
    Stan Thiebaud (Trial)
    R. Gregg Byrd (Trial)
    THIEBAUD REMINGTON THORNTON
    BAILEY LLP
    4849 Greenville Avenue, Suite 1150
    Dallas, Texas 75206
    i
    TABLE OF CONTENTS
    LIST OF PARTIES AND COUNSEL ................................................................................ i
    INDEX OF AUTHORITIES .............................................................................................. iv
    STATEMENT OF THE CASE ........................................................................................... 2
    REQUEST FOR ORAL ARGUMENT ............................................................................... 4
    ISSUES PRESENTED ........................................................................................................ 5
    I.          Judgment in Favor of Appellee Should be Reversed Because There is
    Legally Insufficient Evidence of Proximate Cause Against ETMC
    II.         Judgment in Favor of Appellee Should be Reversed Because There is
    Legally Insufficient Evidence of the Applicable Standard of Care and
    Breach by ETMC
    STATEMENT OF FACTS .................................................................................................. 6
    SUMMARY OF ARGUMENT ......................................................................................... 16
    ARGUMENT..................................................................................................................... 18
    I.       Judgment in Favor of Appellee Should be Reversed Because There
    is Legally Insufficient Evidence of Proximate Cause Against ETMC ...... 20
    II.      Judgment in Favor of Appellee Should be Reversed Because There
    is Legally Insufficient Evidence of the Applicable Standard of Care
    and Breach by ETMC ................................................................................ 26
    CONCLUSION ................................................................................................................. 45
    PRAYER ........................................................................................................................... 48
    CERTIFICATE OF COMPLIANCE ................................................................................ 49
    CERTIFICATE OF SERVICE .......................................................................................... 50
    ii
    APPENDIX ...................................................................................................... INDEX TAB
    A.       December 23, 2014 Final Judgment
    B.       November 24, 2014 Charge of Court completed by jury
    C.       July 28, 2014 Order Granting Defendants’ Moore and Spurgers’ Motions
    for Summary Judgment
    D.       Wansey v. Hole, 
    379 S.W.3d 246
    (Tex. 2012)
    E.       Wal-Mart Stores, Inc. v. Aguilera-Sanchez, 2003 Tex. App. LEXIS 4846
    (Tex. App.—San Antonio)(Jun. 11, 2003)(pet. denied)(mem. op.)
    F.       Gonzales v. Willis, 
    995 S.W.2d 729
    (Tex. App.—San Antonio 1999, no
    pet.), overruled in part on o.g., Hoffman-LaRoche v. Zeltwanger,
    
    155 S.W.3d 438
    (Tex. 2004)
    G.       The Methodist Hospital v. German, 
    369 S.W.3d 333
    (Tex. App.—Houston
    [1st Dist.] 2011, pet denied)
    iii
    INDEX OF AUTHORITIES
    UNITED STATES DISTRICT COURT CASES:
    Allen v. Wal-Mart Stores Texas, LLC,
    
    2015 U.S. Dist. LEXIS 56425
    (S.D. Tex.)(Apr. 29, 2015) ................................................ 21
    Goodarzi v. Hartzog,
    
    2013 U.S. Dist. LEXIS 85727
    (S.D. Tex.)(Jun. 14, 2013) ................................................ 
    20 Hughes v
    . Yodle, Inc.,
    
    2015 U.S. Dist. LEXIS 63011
    (W.D. Tex.)(May 14, 2015) .............................................. 21
    Udoewa v. Plus 4 Credit Union,
    
    2009 U.S. Dist. LEXIS 54964
    (S.D. Tex.)(June 29, 2009) ................................................ 20
    TEXAS SUPREME COURT CASES:
    AutoZone, Inc. v. Reyes¸
    
    272 S.W.3d 588
    (Tex. 2008) ............................................................................................ 19
    Burrow v. Acre,
    
    997 S.W.2d 229
    (Tex. 1999) ............................................................................................ 29
    City of Keller v. Wilson,
    
    168 S.W.3d 802
    (Tex. 2005) .............................................................. 18, 19, 31, 34, 35, 44
    City of San Antonio v. Pollock,
    
    284 S.W.3d 809
    (Tex. 2009) ................................................................................ 29, 30, 33
    Coastal Transportation Co. v. Crown Central Petroleum Corp.,
    
    136 S.W.3d 227
    (Tex. 2004) ............................................................................................ 29
    Earle v. Ratliff,
    
    998 S.W.2d 882
    (Tex. 1999) .............................................................. 28, 29, 33, 34, 37, 38
    Exxon Corp. v. Emerald Oil & Gas Co.,
    
    348 S.W.3d 194
    (Tex. 2011) ............................................................................................ 18
    Jackson v. Axelrad,
    
    221 S.W.3d 650
    (Tex. 2007) ............................................................................................ 26
    iv
    Jelinek v. Casas,
    
    328 S.W.3d 526
    (Tex. 2010) .............................................................. 28, 29, 33, 34, 37, 38
    Marathon Oil Corp. v. Pitzner,
    
    106 S.W.3d 724
    (Tex. 2003) ................................................................................ 19, 30, 36
    Tanner v. Nationwide Mutual Fire Ins. Co.,
    
    289 S.W.3d 828
    (Tex. 2009) ............................................................................................ 18
    Wansey v. Hole,
    
    379 S.W.3d 246
    (Tex. 2012) ................................................................................ 21, 24, 25
    TEXAS COURTS OF APPEALS CASES:
    Allsup’s Convenience Stores, Inc. v. Warren,
    
    934 S.W.2d 433
    (Tex. App.—Amarillo, 1996, writ denied) .................... 28, 37, 38, 41, 42
    Chopra v. Hawryluk,
    
    892 S.W.2d 229
    (Tex. App.—El Paso, 1995, writ denied) ............................ 27, 28, 37, 38
    Clark v. PFPP Limited Partnership,
    
    455 S.W.3d 283
    , 287 (Tex. App.—Dallas 2015, no pet.) ................................................ 21
    Cobb v. Dallas Fort Worth Medical Center,
    
    48 S.W.3d 820
    (Tex. App.—Waco 2001, no pet.) ........................................................... 26
    Crown Pine Timber 1, L.P. v. Durrett,
    2012 Tex. App. LEXIS 3658 (Tex. App.—Tyler)(May 9, 2012)(no pet.)(mem. op.) 18, 44
    Dangerfield v. Ormsby,
    
    264 S.W.3d 904
    (Tex. App.—Fort Worth 2008, no pet.) .................................... 28, 36, 38
    Denton Regional Medical Center v. Lacroix,
    
    947 S.W.2d 941
    (Tex. App.—Fort Worth 1997, pet. dism’d by agmt.) .................... 23, 24
    Gonzales v. Sid Peterson Memorial Hospital,
    2000 Tex. App. LEXIS 3137 (Tex. App.—San Antonio)(May 17, 2000)(pet.
    denied)(mem. op.) ............................................................................................................. 27
    Gonzales v. Willis,
    
    995 S.W.2d 729
    (Tex. App.—San Antonio 1999, no pet.), overruled in part on o.g.,
    Hoffman-LaRoche v. Zeltwanger, 
    155 S.W.3d 438
    (Tex. 2004) ................................ 20, 25
    v
    Host Marriott Corp. v. Meadows,
    2001 Tex. App. LEXIS 4409 (Tex. App.—Dallas)(Jun. 20, 2001)(pet. denied)(not
    designated for publication) ......................................................................................... 20, 
    25 Jones v
    . Miller,
    
    966 S.W.2d 851
    (Tex. App—Houston [1st Dist.] 1998, no pet.) ...................................... 26
    Kingwood Pines Hospital, LLC v. Gomez,
    
    362 S.W.3d 740
    (Tex. App.—Houston [14th Dist.] 2011, no pet.) ............................ 26, 27
    LaBella v. Charlie Thomas, Inc.,
    
    942 S.W.2d 127
    (Tex. App.—Amarillo 1997, writ denied) ............................................. 20
    Latimer v. Memorial Hermann Hospital System,
    2011 Tex. App. LEXIS 423 (Tex. App.—Houston [14th Dist.])(Jan. 20, 2011)(no
    pet.)(mem. op.) ..................................................................................................... 24, 25, 26
    Lermon v. Minyard Food Stores, Inc.,
    2014 Tex. App. LEXIS 12498 (Tex. App.—Dallas)(Nov. 19, 2014)(pet. filed)(mem. op.)
    .................................................................................................................................... 21, 
    27 Mackey v
    . U.P. Enterprises, Inc.,
    
    935 S.W.2d 446
    (Tex. App.—Tyler 1996, no pet.) .................................................... 39, 40
    Morrell v. Finke,
    
    184 S.W.3d 257
    (Tex. App.—Fort Worth 2005, pet. denied) .......................................... 26
    Nichols v. Nacogdoches Hospital District,
    
    96 S.W.3d 582
    (Tex. App.—Tyler 2002, no pet.) ...................................................... 26, 27
    Ortegon v. Benavides,
    2008 Tex. App. LEXIS 1576 (Tex. App.—San Antonio)(Mar. 5, 2008)(pet. denied)(mem.
    op.). ............................................................................................................................. 26, 27
    Patino v. Complete Tire, Inc.,
    
    158 S.W.3d 655
    (Tex. App.—Dallas 2005, pet. denied) ......................... 28, 37, 38, 43, 44
    Shaw v. BMW Healthcare, Inc.,
    
    100 S.W.3d 8
    (Tex. App.—Tyler 2002, pet. denied) ..................................... 27, 28, 37, 38
    The Methodist Hospital v. German,
    
    369 S.W.3d 333
    (Tex. App.—Houston [1st Dist.] 2011, pet. denied) ........................ 21, 25
    vi
    Vaughn v. Drennon,
    
    372 S.W.3d 726
    (Tex. App.—Tyler 2012, no pet.) .......................................................... 18
    Wal-Mart Stores, Inc. v. Aguilera-Sanchez,
    2003 Tex. App. LEXIS 4846 (Tex. App.—San Antonio)(Jun. 11, 2003)(pet. denied)(mem.
    op.) .................................................................................................................. 20, 21, 24, 25
    CASE LAW FROM OTHER JURISDICTIONS:
    Haverly v. Kaytec, Inc.,
    
    738 A.2d 86
    (Vt. 1999) ..................................................................................................... 22
    Hogan v. Forsyth Country Club Co.,
    
    340 S.E.2d 116
    (N.C. App. 1986) .................................................................................... 22
    Louis Marsch, Inc. v. Pekin Ins. Co.,
    
    491 N.E.2d 432
    (Ill. App. 1985) ....................................................................................... 22
    Mulhern v. City of Scottsdale,
    
    799 P.2d 15
    (Ariz App. 1990) .......................................................................................... 22
    Rogala v. District of Columbia,
    
    161 F.3d 44
    (D.C. Cir.1998) ............................................................................................. 22
    Schoff v. Combined Ins. Co. of America,
    
    604 N.W.2d 43
    (Iowa 1999) ............................................................................................. 22
    Stevenson v. Precision Standard, Inc.,
    
    762 So. 2d 820
    (Ala. 1999) ............................................................................................... 22
    Texas Skaggs, Inc. v. Joannides,
    
    372 So. 2d 985
    (Fla. App. 1979) ....................................................................................... 22
    Thrasher v. Ivan Leonard Chevrolet, Inc.,
    
    195 F. Supp. 2d 1314
    (S.D. Ala. 2002) .............................................................................. 22
    Tindall v. Enderle,
    
    320 N.E.2d 764
    (Ind. App. 1974) ..................................................................................... 22
    vii
    No. 12-15-00014-CV
    ___________________________________________________
    COURT OF APPEALS
    for the
    TWELFTH DISTRICT OF TEXAS
    Tyler, Texas
    ___________________________________________________
    East Texas Medical Center d/b/a East Texas Medical Center
    Emergency Medical Services
    Appellant,
    v.
    Jody Delaune, Individually and as Personal Representative of the Estate of
    Crystal Delaune, Deceased; and as Next Friend of D.D., D.D. and DA.D., Minors,
    Appellee.
    ___________________________________________________
    Appeal from Cause No. 13-0984-A
    7th Judicial District Court, Smith County, Texas
    Honorable Kerry L. Russell, Presiding Judge
    ___________________________________________________
    TO THE TWELFTH COURT OF APPEALS:
    Appellant East Texas Medical Center d/b/a East Texas Medical Center Emergency
    Medical Services, Defendant in Cause No. 13-0984-A in the 7th Judicial District Court of
    Smith County, Texas, Honorable Kerry L. Russell presiding, respectfully submits its
    Brief on the Merits.       Appellee is Jody Delaune, Individually and as Personal
    Representative of the Estate of Crystal Delaune, Deceased; and as Next Friend of D.D.,
    D.D. and DA.D., Plaintiff in the district court.
    1
    STATEMENT OF THE CASE
    Nature of the case:         Appellee asserts a health care liability claim against
    Appellant East Texas Medical Center d/b/a East Texas
    Medical Center Emergency Medical Services
    (“ETMC”)(See, CR 1-9; 1 CR 5-12)(Please note that
    the Clerk’s Record submitted to the Tyler Court of
    Appeals is submitted [1] with consecutive bates
    numbers in the lower right hand corner of each
    document ranging from 1 – 1095, and [2] in five
    volumes. Hereinafter references to the 5 volumes of
    the Clerk’s Record will [1] cite “CR” followed by the
    proper 1 – 1095 Bates number and [2] also cite the
    specific volume of the Clerk’s record, followed by
    “CR,” followed by the page number of that specific
    volume of the Clerk’s Record. For example, “1 CR 1”
    refers to page 1 of Volume 1 of the Clerk’s Record.
    References to the 22 volumes of the Reporter’s Record
    will be made in the same manner, but with the
    designation “RR” rather than “CR”). This claim arises
    out of the death of Ms. Crystal Delaune
    (“Ms. Delaune”) when she jumped out of an ETMC
    ambulance on August 19, 2012 while being
    transported to the hospital during an emotional crisis
    (CR 5; 1 CR 9; 3 RR 26, lines 22-24). Ms. Linda
    Moore and Ms. Lindsay Spurgers were the ETMC
    employees in the ambulance with Ms. Delaune at that
    time. The issue tried to the jury was ETMC’s direct
    liability to Appellee for Ms. Delaune’s death.
    Appellee’s only claim against ETMC was that it failed
    to train Ms. Moore and Ms. Spurgers on the use of
    restraint in handling patients like Ms. Delaune (See, 2
    RR 206, line 23 – 207, line 14; 3 RR 174, lines 10-11;
    6 RR 173, lines 11-18; 179, lines 6-13; 182, lines 3-7)
    Course of proceedings:      Appellee filed his Original Petition on April 15, 2013
    (CR 1; 1 CR 5). Appellee asserted negligence claims
    against ETMC, Ms. Moore and Ms. Spurgers (CR 6; 1
    CR 10). During the pretrial proceedings, Defendants
    Moore and Spurgers moved for summary judgment on
    the claims against them on both a “traditional” and a
    “no evidence” basis, wherein they asserted that they
    were not negligent, as alleged (CR 36-298; 1 CR 40-
    2
    250; 2 CR 5-23). On July 29, 2014, the trial court
    entered an order granting Ms. Moore and Ms.
    Spurgers’ motion for summary judgment and
    dismissing Appellee’s claims against them with
    prejudice (CR 365-66; 2 CR 119-120). On November
    18, 2014, the trial court called the case to trial. The
    parties announced ready for trial and a jury was
    impaneled (See, 2 RR 10-11, 188-192). At the
    conclusion of the evidence, the trial court submitted
    the case to the jury in the Charge of the Court (See,
    CR 373-87; 2 CR 127-41; 6 RR 167-71).                On
    November 24, 2014, the Jury returned a verdict in
    favor of Appellee and against ETMC (CR 373-87;
    2 CR 127-41; 6 RR 225-28). On November 26, 2014,
    Appellee filed his Motion for Judgment on the Verdict
    (CR 388-471; 2 CR 142-225). On December 2, 2014,
    Appellee filed his First Amended Motion for Judgment
    on the Verdict (CR 472-556; 2 CR 226-54). On
    December 16, 2014, ETMC filed its Response to
    Appellee’s First Amended Motion for Judgment on the
    Verdict and Motion for Judgment Non Obstante
    Veredicto (CR 557-737; 3 CR 61-241).
    Trial court’s disposition:   On December 23, 2014, the trial entered court its Final
    Judgment granting Appellee judgment on the jury
    verdict (CR 738-41; 3 CR 242-45).
    Appeal:                      Appellant timely filed its Notice of Appeal on
    January 21, 2015 (CR 1078-1085; 5 CR 82-89).
    3
    REQUEST FOR ORAL ARGUMENT
    Pursuant to Rule 39 of the TEXAS RULES OF APPELLATE PROCEDURE, Appellant
    East Texas Medical Center d/b/a East Texas Medical Center Emergency Medical
    Services requests that this matter be submitted for oral argument to allow the Court to
    more completely understand the facts and legal issues presented by this appeal.
    4
    ISSUES PRESENTED
    I.    JUDGMENT IN FAVOR OF APPELLEE SHOULD BE REVERSED
    BECAUSE THERE IS LEGALLY INSUFFICIENT EVIDENCE OF
    PROXIMATE CAUSE AGAINST ETMC, AND;
    II.   JUDGMENT IN FAVOR OF APPELLEE SHOULD BE REVERSED
    BECAUSE THERE IS LEGALLY INSUFFICIENT EVIDENCE OF
    THE APPLICABLE STANDARD OF CARE AND BREACH BY
    ETMC.
    5
    STATEMENT OF FACTS
    I.     THE KEY CONTENTIONS, TRIAL COURT RULING AND EVIDENCE
    AT TRIAL:
    A.     Appellee’s Contention and Evidence:
    1.     Appellee’s Contention:
    Appellee contended that Ms. Delaune should have been restrained while being
    transported in ETMC’s ambulance on August 19, 2012 (2 RR 212; 6 RR 179).
    Ms. Moore and Ms. Spurgers (hereinafter also referred to collectively as “the EMS
    Providers”) were the ETMC employees in the ETMC ambulance at that time (See, CR 6;
    1 CR 10). Appellee claimed Ms. Delaune was not restrained solely because ETMC failed
    to train Ms. Moore and Ms. Spurgers on the use of restraint (See, 6 RR 51, lines 10-16).
    The trial focused on ETMC’s training as related to the use of restraint outlined in
    its Behavioral Disorders Policy (“the Behavioral Policy”)(12 RR 6 [Pl. Ex. 9]).
    Specifically, Appellee represented to the trial court and jury that the “narrow” issue was
    whether or not ETMC had trained the EMS Providers on aspects of the Behavioral Policy
    that involved the use of chemical and physical restraint in handling patients like
    Ms. Delaune (See, 3 RR 173, lines 20-23—“THE COURT: Sounds like your expert was
    saying they didn’t train them very well. MR. KREBS: With regard to restraints. With
    regard to restraints only”; 3 RR 174, lines 10-11—“Ours [criticism] is narrowly directed
    at teaching restraint is what it’s all about [sic].” See also, 2 RR 206, line 23 – 207,
    line 14; 6 RR 173, lines 11-18; 179, lines 6-13; 182, lines 3-7).
    6
    This alleged “failure to train” was Appellee’s only complaint against ETMC.
    Appellee represented to the trial court and jury that he had no complaint about the
    Behavioral Policy itself (See, 5 RR 109, line 23- 110, line 2; 6 RR 126, lines 8-21).
    At trial, Appellee produced no evidence regarding the standard of care applicable
    to the EMS Providers when they cared for Ms. Delaune. Appellee also produced no
    evidence of any breach of the applicable standard of care by the EMS Providers.
    The Charge of the Court (“the Charge”) submitted at the close of evidence only
    asked whether or not ETMC’s negligence, if any, was a proximate cause of Appellee’s
    alleged injuries (CR 376; 2 CR 130). With respect to ETMC’s alleged negligence, the
    Charge defined negligence and ordinary care only in regards to ETMC’s conduct with
    respect to the formulation, implementation and enforcement of its policies and procedures
    (CR 374-75; 2 CR 128-29). The Charge did not submit the EMS Providers’ conduct, and
    it did not define negligence as to ETMC in terms of any action or failure to act by the
    EMS Providers (CR 373-87; 2 CR 127-41). Appellee neither requested that the EMS
    Providers’ conduct be submitted for determination, nor did he object to the failure of the
    Charge to submit these matters for determination (See, 6 RR 150-159).
    2.     Appellee’s Evidence:
    Appellee relied on his retained expert, Dr. Marvin Wayne, to support his failure to
    train claim. Dr. Wayne offered the following testimony on ETMC’s alleged failure to
    train:
    • With respect to the Behavioral Policy, the Behavioral Policy was
    reasonable and he was not critical of the Behavioral Policy itself (3 RR 28
    line 10-25; 3 RR 90, lines 8-17);
    7
    • “My concern is that – and my feeling where the failure of the standard of
    care occurred is that if the EMS providers only knew to talk-down, they
    had not been taught [other techniques]” (3 RR 36, lines 6-9)(emphasis
    added);
    • “The paperwork says: This is what we teach. The knowledge based by the
    two EMS providers – not one but two – say, ‘That’s not what we knew’”
    (3 RR 43, lines 2-5), and;
    • He agreed ETMC’s education and training program tracked the
    requirements of the national registry for EMS provider certification (3 RR
    82, lines 11-19).
    According to Appellee’s expert, ETMC was negligent only “if the EMS providers
    only knew to talk-down.” Appellee’s expert concluded the EMS Providers’ only knew to
    “talk-down” and did not know about restraint because (1) they did not restrain
    Ms. Delaune and (2) they did not mention restraint in their depositions (3 RR 60, lines
    13-18; 3 RR 74, lines 14-20). Dr. Wayne offered no other facts and nothing more
    specific in support of his opinion that ETMC failed to train the EMS Providers on the use
    of restraint.
    3.    Significant Pretrial Ruling by Trial Court:
    Appellee named the EMS Providers as defendants in his original petition (CR 1; 1
    CR 5).     Appellee alleged the EMS Providers were negligent because they failed to
    restrain Ms. Delaune (CR 6; 1 CR 10).
    The EMS Providers moved for summary judgment on Appellee’s claims against
    them on both a “traditional” and a “no evidence” basis (CR 36-298; 1 CR 40-250; 2 CR
    5-23). Their request for dismissal was based on the fact that the evidence conclusively
    established they did not violate the applicable standard of care in their care and treatment
    of Ms. Delaune and there was no evidence they violated the standard of care in their care
    8
    and treatment of Ms. Delaune. Appellee responded to this motion (CR 299-335; 2 CR
    53-89).
    On July 29, 2014, the trial court entered an order granting the EMS Providers’
    motion for summary judgment (CR 365-66; 2 CR 119-120). Specifically, the trial court
    ordered that all claims against Ms. Moore and Ms. Spurgers “are dismissed with
    prejudice” (CR 365; 2 CR 119). Thus, prior to trial, the EMS Providers’ conduct in
    caring for Ms. Delaune was determined to not be negligent as a matter of law. Stated
    another way, the trial court determined that as a matter of law the EMS Providers did not
    depart from any applicable standard of care in their care and treatment of Ms. Delaune.
    B.     Evidence of ETMC’s Training and the EMS Providers’ Knowledge
    Beyond “Talk-Down”:
    Evidence about ETMC’s training on restraint and the EMS Providers’ knowledge
    about the utilization of restraint when speaking with a patient was no longer effective was
    presented through the testimony of Ms. Moore, Ms. Spurgers, Dr. Paul Lehrfeld
    (ETMC’s expert), Dr. William Moore (ETMC’s Medical Director), and Dr. Wayne
    (Appellee’s expert), as well as documents showing ETMC had trained Ms. Moore and
    Ms. Spurgers on the use of restraint. In review of this testimony, the Court should keep
    in mind that at the time of Ms. Delaune’s death Ms. Moore was the ETMC employee
    with Ms. Delaune in the back of the ambulance. Ms. Spurgers was in the front of the
    ambulance driving. (See, 4 RR 43, lines 14-18; 44, lines 6-14).
    9
    The significant testimony and documentary evidence offered by each witness
    about ETMC’s training and Ms. Moore and Ms. Spurgers’ knowledge of restraint is set
    forth below:
    1.   Ms. Moore:
    •    The Behavioral Policy discusses use of restraints (2 RR 242,
    lines 5-7; 3 RR 96, lines 2-5);
    •    In paramedic school, she was taught about the use of
    chemical and physical restraints (3 RR 129, lines 7-21; 3 RR
    145, line 25 – 146, line 16);
    •    Since about 1996, she has been certified as a paramedic by
    the State of Texas and the United States’ national paramedic
    registry (3 RR 133, line 23 – 134, line 1; 3 RR 129, line 22 –
    130, line 6);
    •    To obtain each certification, she had to pass testing (3 RR
    131, line 6 – 132, line 18);
    •    To maintain each certification, every two and four years, she
    has to take book classes, hands-on classes and pass testing
    (3 RR 134, lines 2-20);
    •    To obtain and maintain each certification, she had/has to
    demonstrate her competency regarding the use of restraints
    through testing (3 RR 133, lines 5-15);
    •    Ms. Moore has continuously and successfully recertified in
    Texas and nationally since 1996 (3 RR 134, lines 22-25);
    •    Before working at ETMC or going to paramedic school,
    Ms. Moore worked at Rusk State Hospital (“Rusk”), a
    psychiatric facility, for 13 years (3 RR 135, line 25 – 136,
    line 5; 3 RR 137, lines 2-5);
    •    Ms. Moore employed restraint techniques on a daily basis in
    her management of patients during the 13 years she worked at
    Rusk (3 RR 139, lines 5-12);
    •    During her 13 years at Rusk, Ms. Moore was trained in the
    use of chemical and physical restraints (3 RR 140, lines 19-
    24);
    •    During Ms. Moore’s 13 years at Rusk she also taught the use
    of chemical and physical restraints (3 RR 141, line 22 – 142,
    line 10);
    •    The restraint concepts Ms. Moore used, learned and was
    taught at Rusk were the same techniques she was taught and
    10
    learned in paramedic school (3 RR 145, lines 4-11; 3 RR 150,
    lines 16-20);
    •   Since 1996, Ms. Moore has been with ETMC (3 RR 152,
    lines 18-25);
    •   When Ms. Moore was oriented at ETMC after being hired,
    she was trained on the use of restraints (3 RR 156, line 19 –
    157, line 10);
    •   Ms. Moore’s orientation at ETMC was consistent with what
    she had been taught and what she had learned about the use of
    restraint at Rusk and in paramedic school (3 RR 156, line 19
    – 157, line 10);
    •   Use of restraints have also been covered since 1996 in
    continuing education provided through ETMC (3 RR 157,
    lines 11-19; 3 RR 158, line 10 – 160, line 13; 3 RR 161, line
    8 – 162, line 8; 3 RR 162, line 24 – 163, line 1; 3 RR 163,
    lines 14-20);
    •   Ms. Moore also received education and training through
    “Ninth Brain” at ETMC (3 RR 164, lines 12-18);
    •   Her Ninth Brain documentation shows education and training
    on the use of restraints while she has been at ETMC (3 RR
    164, line 21 – 167 , line 6);
    •   While at ETMC, Ms. Moore has been tested annually on its
    protocols (3 RR 167, line 19 – 168, line 5);
    •   Ms. Moore has passed all of these tests (3 RR 168, line 11-
    12);
    •   A copy of the Behavioral Policy is kept in ETMC’s
    ambulances (3 RR 168, lines 20-24);
    •   ETMC’s reviews of Ms. Moore document that she “has a
    good understanding of the policies and procedures we use” (3
    RR 174, lines 17-24);
    •   In response to a direct question from Appellee’s counsel,
    Ms. Moore discussed what she was “taught or trained”
    regarding the use of soft restraints mentioned in the
    Behavioral Policy (2 RR 242, line 15 – 243, line 5; 2 RR 244,
    lines 5-8);
    •   In response to a direct question from Appellee’s counsel,
    Ms. Moore also testified that during Ms. Delaune’s
    ambulance transport, she could have put Ms. Delaune in
    restraints if she felt that was necessary (3 RR 120, lines 21-
    24);
    11
    •     Ms. Moore testified that she believed her care of Ms. Delaune
    was consistent with the Behavioral Policy (3 RR 202,
    lines 13-16);
    •     Ms. Moore’s ETMC personnel file documents that she
    properly followed ETMC protocols (14 RR 40, 43, 48, 54, 59
    [Pl. Ex. 20]), and;
    •     Ms. Moore provided documentation of training in 2010 and
    on April 17, 2012 that covered behavioral crises and restraint
    (3 RR 166, line 3 – 167, line 6; 13 RR 16 [Pl. Ex. 15]; 20 RR
    9, 15 [Def. Ex. 31]).
    2.   Ms. Spurgers:
    •     Ms. Spurgers was the ambulance driver on the occasion in
    question (4 RR 43, lines 14-18);
    •     Ms. Spurgers went to paramedic school (4 RR 44, lines 18-
    20);
    •     Ms. Spurgers was trained in paramedic school and at ETMC
    about the use of restraints (4 RR 44, line 22 – 45, line 1; 4 RR
    52, lines 7-15; 4 RR 60, lines 17-22; 4 RR 61, line 12 – 62,
    line 1; 4 RR 64, lines 12-20);
    •     Ms. Spurgers has been employed by ETMC since 2003 (4 RR
    6, lines 5-15);
    •     Ms. Spurgers had been taught about the use of restraints by
    ETMC prior to the incident involved here (4 RR 15, lines 2-
    19; 4 RR 38, line 25 – 39, line 10);
    •     Ms. Spurgers’ ETMC personnel file documents that she
    properly followed ETMC protocols (13 RR 56, 61, 66, 71, 82
    [Pl. Ex. 19]), and;
    •     Ms. Spurgers provided documentation of training on
    October 4, 2010 and April 17, 2012 covering behavioral
    crises and restraint (4 RR 61, line 12 – 62, line 1; 13 RR 26
    [Pl. Ex. 16]; 20 RR 19, 25 [Def. Ex. 32]).
    3.   Dr. Lehrfeld:
    •     ETMC provided Ms. Moore and Ms. Spurgers continuing
    education during their time with it that covered chemical
    restraint and physical restraint (5 RR 62, line 4 – page 63, line
    7; 64, line 18 – page 65, line 10; 68, line 18 – 69, line 13);
    •     The education and training of providers like Ms. Moore and
    Ms. Spurgers is universal and follows a standardized national
    12
    curriculum, in that it is focused on national guidelines set by
    the national registry (5 RR 60, line 5 – 62, line 25), and;
    •    ETMC’s education and training on the use of restraints is in
    line with the applicable standardized national curriculum
    (5 RR 62, lines 1-7; 65, lines 11-19; 68, line 18 – page 69,
    line 13).
    4.   Dr. Moore:
    •    He is an emergency room physician and the medical director
    for the ETMC Emergency Medical Services (6 RR 54, line
    22- 55, line 4);
    •    He has been the medical director of ETMC Emergency
    Medical Services since the fall of 1989 (6 RR 55, lines 5-7);
    •    He is personally involved in the education and training of the
    EMS personnel (6 RR 66 lines 4-25);
    •    He has also served as the medical director of college-based
    paramedic training programs in Tyler and Waco (6 RR 72,
    lines 6-23);
    •    There is a standardized national curriculum that is followed in
    the teaching of paramedics in paramedic school (6 RR 88,
    lines 8-14);
    •    During their paramedic school training, Ms. Moore and
    Ms. Spurgers would have been trained consistent with the
    standardized national curriculum established by the national
    registry and certification requirements (6 RR 89, line 21 – 90,
    line 1);
    •    At ETMC Ms. Moore and Ms. Spurgers would be educated
    and trained through orientation, continuing education, Ninth
    Brain education, and testing on protocols (6 RR 93, lines 2-4;
    6 RR 94, line 20 – 95, line 18; 6 RR 112, lines 9-22);
    •    The training Ms. Moore and Ms. Spurgers received while
    they have been at ETMC is consistent with the standardized
    national curriculum established by the national registry and
    certification requirement s (6 RR 90, lines 2-6; 6 RR 92, lines
    7-16; 6 RR 96, line 1-9; 6 RR 113, lines 10-17);
    •    Ms. Moore and Ms. Spurgers had to pass written
    examinations to obtain and maintain their national and Texas
    certification as paramedics (6 RR 90, line 7 – 91, line 2);
    •    This testing would cover the use of restraint (6 RR 91, lines
    7-11);
    •    ETMC’s education and training covers the use of restraints (6
    RR 96, lines 10-20);
    13
    •     ETMC provided documentation showing live training on
    “Behavioral Crises and Restraint” in April-May 2012, within
    four months of this incident (20 RR 30 [Def. Ex. 37]);
    •     Ms. Moore and Ms. Spurgers attended this training (3 RR
    166-67; 4 RR 61; 20 RR 15 [Def. Ex. 31]; 20 RR 25 [Def.
    Ex. 32]);
    •     Dr. Moore gave a Power Point program on behavioral
    emergencies that covered the use of restraints six months
    before this incident (6 RR 97, line 20 – 98, line 13; 6 RR 105,
    lines 11-23; 6 RR 106, line 4 – 107, line 17);
    •     The concluding five slides of Dr. Moore’s 2012 Power Point
    presentation specifically addressed and covered the use of
    restraints in behavioral emergencies like Ms. Delaune’s
    (20 RR 81-85 [Def. Ex. 38]);
    •     ETMC’s education and training on the use of restraint is
    consistent with the national registry’s position on the use of
    restraint (6 RR Exhibit 105, line 24 – 106, line 3), and;
    •     ETMC does not teach the talk-down technique only (6 RR
    102, line 24 – 103, line 7).
    5.    Dr. Wayne: In addition to the testimony set forth above, Dr. Wayne:
    •     Agreed that after their completion of paramedic school,
    Ms. Moore and Ms. Spurgers would have been trained on the
    use of restraints (3 RR 51, line 2 – 3 RR 52, line 9; 3 RR 54,
    lines 9-15);
    •     Agreed that a standardized national curriculum exists in the
    education and training of providers like Ms. Moore and
    Ms. Spurgers (3 RR 52, line 11-23; 3 RR 53, lines 4-13);
    •     Agreed that this standardized national curriculum covers the
    use of chemical and physical restraints (3 RR 53, lines 18-
    22), and;
    •     Agreed that ETMC’s education and training program tracks
    what is required by the national registry for provider
    certification (3 RR 82, lines 11-19).
    II.   THE VERDICT, POST-TRIAL MOTIONS, FINAL JUDGMENT AND
    NOTICE OF APPEAL:
    On November 24, 2014, the Jury returned a verdict in favor of Appellee and
    against ETMC (CR 373-387; 2 CR 127-141).
    14
    On November 24, 2014, Appellee filed his Motion for Judgment on the Verdict
    (CR 388-471; 2 CR 142-225). On December 2, 2014, Appellee filed his First Amended
    Motion for Judgment on the Verdict (CR 472-500; 2 CR 226-254).
    On December 16, 2014, ETMC filed its Response to Appellee’s First Amended
    Motion for Judgment on the Verdict and Motion for Judgment Non Obstante Veredicto
    (“JNOV”) (CR 557-737; 3 CR 61-241). In its response and motion for JNOV, ETMC
    submitted that the trial court should enter judgment in favor of ETMC notwithstanding
    the verdict because (1) there was no evidence of causation against ETMC because neither
    Ms. Moore nor Ms. Spurgers was negligent on the occasion in question and (2) Appellee
    presented no evidence or legally insufficient evidence that ETMC failed to train either
    Ms. Moore or Ms. Spurgers.
    On December 23, 2014, the trial court entered Final Judgment in favor of Appellee
    based on the jury verdict (CR 738-41; 3 CR 242-45).
    On January 21, 2015, ETMC timely filed its Notice of Appeal (CR 1078-1085;
    5 CR 82-89).
    15
    SUMMARY OF ARGUMENT
    This is solely a “failure to train” case. At trial Appellee contended the narrow
    issue was ETMC had failed to teach the EMS Providers on the use of restraints in
    handling behavioral emergencies like Ms. Delaune’s (See, 3 RR 174, lines 10-11).
    Appellee presented no other complaint about ETMC, and presented no evidence that
    would support any other basis of liability against ETMC.
    Under Texas law, an employer’s alleged failure to train an employee can be a
    proximate cause of a claimant’s alleged injuries only if the employee “committed an
    actionable tort” on the occasion in question.      If the employee did not commit an
    actionable tort, an employer’s failure to train cannot be a proximate cause of a claimant’s
    alleged injuries as a matter of law. Because it was determined prior to trial that the EMS
    Providers were not negligent, as a matter of law any failure to train by ETMC could not
    be a proximate cause of Appellee’s alleged injuries. For this reason, Appellee has legally
    insufficient evidence of causation and the trial court erred in failing to grant ETMC’s
    JNOV.
    There is also legally insufficient evidence that ETMC failed to train Ms. Moore
    and Ms. Spurgers on the use of restraint. First, the testimony of Appellee’s expert,
    Dr. Marvin Wayne, constitutes no evidence of the applicable standard of care or a failure
    to train by ETMC because he offered nothing more than conclusory, ipse dixit statements
    in support of this vital fact. Second, the evidence conclusively establishes the EMS
    Providers knew about the use of restraint and ETMC trained them on the use of restraint.
    Third, Dr. Wayne’s opinion involves improper inference-stacking. For these reasons,
    16
    Appellee has legally insufficient evidence of the standard of care and breach by ETMC
    and the trial court erred in failing to grant ETMC’s JNOV.
    Accordingly, the Tyler Court of Appeals should reverse the trial court’s
    December 23, 2014 Final Judgment in favor of Appellee and against ETMC and render a
    take nothing judgment in favor of ETMC and against Appellee.
    17
    ARGUMENT
    STANDARD OF REVIEW
    The denial of EMTC’s JNOV and ETMC’s contention that there is legally
    insufficient evidence to support the verdict and judgment against it are both reviewed
    under the same standard. See, Exxon Corp. v. Emerald Oil & Gas Co., 
    348 S.W.3d 194
    ,
    215 (Tex. 2011); Tanner v. Nationwide Mutual Fire Ins. Co., 
    289 S.W.3d 828
    , 830
    (Tex. 2009); Vaughn v. Drennon, 
    372 S.W.3d 726
    , 731 (Tex. App.—Tyler 2012, no pet.).
    The applicable standard of review is the “legal sufficiency standard.” See, 
    id. Evidence is
    legally insufficient under this standard of review when one or more of
    the following circumstances exist:
    1.     The record discloses a complete absence of a vital fact;
    2.     The court is barred by rules of law or rules of evidence from giving weight
    to the only evidence offered to prove a vital fact;
    3.     The evidence offered to prove a vital fact is no more than a mere scintilla,
    or;
    4.     The evidence establishes conclusively the opposite of a vital fact.
    City of Keller v. Wilson, 
    168 S.W.3d 802
    , 810 (Tex. 2005); Crown Pine Timber 1, L.P. v.
    Durrett, 2012 Tex. App. LEXIS 3658 *8-9 (Tex. App.—Tyler)(May 9, 2012)(no
    pet.)(mem. op.). As more fully explained below in Paragraphs I and II, one or more of
    these circumstances exist in this case.
    While the general rule associated with a legal sufficiency standard of review is to
    view the evidence in the light favorable to the verdict and to disregard contrary evidence,
    unless reasonable jurors could not, exceptions exist where appellate courts should
    consider contrary evidence. See, City of 
    Keller, 168 S.W.3d at 810-11
    .
    18
    First and foremost, when an appellate court reviews the evidence in a legal
    sufficiency challenge, the evidence “cannot be considered in isolated bits and pieces
    divorced from its surroundings; it must be viewed in its proper context with the other
    evidence.” AutoZone, Inc. v. Reyes, 
    272 S.W.3d 588
    , 592 (Tex. 2008)(citing City of
    
    Keller, 168 S.W.3d at 827
    ). Evidence also cannot be taken out of context in a way that
    makes it seem to support a verdict when in fact it never did. City of 
    Keller, 168 S.W.3d at 812
    . Further, inference stacking cannot create or provide legally sufficient evidence.
    See, Marathon Oil Corp. v. Pitzner, 
    106 S.W.3d 724
    , 728 (Tex. 2003).
    Second, a number of circumstances exist that require the Court to consider
    evidence beyond that which supports the verdict.        These circumstances are because
    (1) ETMC asserts Appellee’s evidence of standard of care and breach is incompetent,
    (2) Appellee relies on circumstantial evidence under which the circumstances are equally
    consistent with either of two facts, (3) Appellee relies on Ms. Moore and Ms. Spurgers’
    conscious knowledge of restraint at the time they cared for Ms. Delaune, and (4) ETMC
    asserts the evidence conclusively establishes that ETMC did train the EMS Providers on
    the use of restraint. See, City of 
    Keller, 168 S.W.3d at 812
    -17.
    I.     JUDGMENT IN FAVOR OF APPELLEE SHOULD BE REVERSED
    BECAUSE THERE IS LEGALLY INSUFFICIENT EVIDENCE OF
    PROXIMATE CAUSE AGAINST ETMC:
    A.     Essential Elements of a Failure to Train Case:
    Appellee’s sole claim against ETMC is that it failed to train the EMS Providers on
    the use of restraint. The essential elements of Appellee’s failure to train claim against
    ETMC are:
    19
    • ETMC owed a legal duty to train its employees;
    • ETMC breached that duty, and;
    • ETMC’s breach proximately caused the Appellee’s injuries.
    See, Wal-Mart Stores, Inc. v. Aguilera-Sanchez, 2003 Tex. App. LEXIS 4846 *16
    (Tex. App.—San Antonio)(Jun. 11, 2003)(pet. denied)(mem. op.)(citing LaBella v.
    Charlie Thomas, Inc., 
    942 S.W.2d 127
    , 137 (Tex. App.—Amarillo 1997, writ denied));
    Gonzales v. Willis, 
    995 S.W.2d 729
    , 739-40 (Tex. App.—San Antonio 1999, no pet.),
    overruled in part on o.g., Hoffman-LaRoche v. Zeltwanger, 
    155 S.W.3d 438
    (Tex. 2004).
    B.      Proximate Cause Requires Actionable Tort By Employee:
    In order for an employer’s failure to train to be a proximate cause of a claimant’s
    injury, its employee must have committed an actionable tort on the occasion in question.
    See, Aguilera-Sanchez, 2003 Tex. App. LEXIS 4846 at *16 (citing Gonzales v. 
    Willis, 995 S.W.2d at 739-40
    ). See also, Goodarzi v. Hartzog, 
    2013 U.S. Dist. LEXIS 85727
    *50-51 (S.D. Tex.)(Jun. 14, 2013)(applying Texas law); Udoewa v. Plus 4 Credit Union,
    
    2009 U.S. Dist. LEXIS 54964
    *22 (S.D. Tex.)(Jun. 29, 2009)(applying Texas law); Host
    Marriott Corp. v. Meadows, 2001 Tex. App. LEXIS 4409 *4-6 (Tex. App.—Dallas)(Jun.
    20, 2001)(pet. denied)(not designated for publication). This means that in order for
    Appellee to prevail on his failure to train claim against ETMC, he had to prove the EMS
    Providers committed an actionable tort when caring for Ms. Delaune.
    Because recovery is predicated on the employee’s commission of an actionable
    tort, claims for negligent hiring, supervision, training and retention are referred to as
    “dependent torts.” See, Aguilera-Sanchez, 2003 Tex. App. LEXIS 4846 at *16. That is to
    say, the existence of Appellee’s failure to train claim against ETMC is “dependent” on
    20
    the EMS Providers’ commission of an actionable tort when they were caring for
    Ms. Delaune. See, The Methodist Hospital v. German, 
    369 S.W.3d 333
    , 350 (Tex.
    App.—Houston [1st Dist.] 2011, pet. denied)(“…German could not show he was harmed
    by the hospital’s failure to train unless it resulted in both the nurses’ failure to conform to
    the proper standard of care and his injury”). See also, Aguilera-Sanchez, 2003 Tex. App.
    LEXIS 4846 at *16.
    While the Texas Supreme Court has not specifically addressed whether the
    employee’s commission of an actionable tort is necessary in the dependent tort of
    negligent training, it has addressed this requirement in the dependent torts of negligent
    hiring and negligent supervision. In Wansey v. Hole, 
    379 S.W.3d 246
    (Tex. 2012), the
    Texas Supreme Court held that “some harmful or negligent conduct of an employee” is
    required to recover under the dependent torts of negligent hiring and negligent
    supervision. 
    Id. at 246.
    There is no reason to expect the Texas Supreme Court would not impose this same
    actionable tort requirement when presented with a negligent training claim. In fact Texas
    state and federal courts uniformly interpret Wansey as requiring the employee commit an
    actionable tort in all dependent torts, including negligent training. See, Hughes v. Yodle,
    Inc., 
    2015 U.S. Dist. LEXIS 63011
    *16 (W.D. Tex.)(May 14, 2015); Allen v. Wal-Mart
    Stores Texas, LLC, 
    2015 U.S. Dist. LEXIS 56425
    *17 (S.D. Tex.)(Apr. 29, 2015); Clark v.
    PFPP Limited Partnership, 
    455 S.W.3d 283
    , 287 (Tex. App.—Dallas 2015, no pet.);
    Lermon v. Minyard Food Stores, Inc., 2014 Tex. App. LEXIS 12498 *23-24 n. 7 (Tex.
    App.—Dallas)(Nov. 19, 2014)(pet. filed)(mem. op.). Courts in other jurisdictions that
    21
    have addressed this issue in the dependent torts of negligent hiring, supervision, training
    and retention have also held that the employee must have committed a tort on the
    occasion in question. See, Rogala v. District of Columbia, 
    161 F.3d 44
    , 56 n.9 (D.C. Cir.
    1998)(applying D.C. law); Thrasher v. Ivan Leonard Chevrolet, Inc., 
    195 F. Supp. 2d 1314
    , 1319-20 (S.D. Ala. 2002)(applying Alabama law); Schoff v. Combined Ins. Co. of
    America, 
    604 N.W.2d 43
    , 53 (Iowa 1999); Stevenson v. Precision Standard, Inc., 
    762 So. 2d 820
    , 824-25 (Ala. 1999); Haverly v. Kaytec, Inc., 
    738 A.2d 86
    , 91 (Vt. 1999);
    Mulhern v. City of Scottsdale, 
    799 P.2d 15
    , 18 (Ariz App. 1990); Hogan v. Forsyth
    Country Club Co., 340 S.E.2d116, 124 (N.C. App. 1986); Louis Marsch, Inc. v. Pekin
    Ins. Co., 
    491 N.E.2d 432
    , 437 (Ill. App. 1985); Texas Skaggs, Inc. v. Joannides,
    
    372 So. 2d 985
    , 987 (Fla. App. 1979); Tindall v. Enderle, 
    320 N.E.2d 764
    , 767-68 (Ind.
    App. 1974).
    The actionable tort requirement in a negligent training claim is a logical and
    reasonable essential element because, otherwise, the alleged improper training of an
    employee by an employer could not result in injury to another. Put another way, how and
    why could an employer be liable for the failure to train an employee when that employee
    was not negligent on the occasion in question? More importantly, what legal and public
    policy reason would justify holding an employer liable for a failure to train when the
    employee did not breach any duty owed on the occasion in question?
    This requirement is also consistent with the definition of “proximate cause” in the
    Charge.   Specifically, the Charge instructed that ETMC’s negligence had to be “a
    22
    substantial factor in bringing about an occurrence, and without which cause such
    occurrence would not have occurred” (CR 375; 2 CR 129).
    Under this definition of proximate cause, how could ETMC’s failure to train the
    EMS Providers be a substantial factor in bringing about Ms. Delaune’s death unless they
    breached an applicable standard of care when caring for Ms. Delaune? Similarly, a
    failure to train by ETMC could only be a “but for” cause of Ms. Delaune’s death if the
    EMS Providers departed from an applicable standard of care when caring for Ms.
    Delaune.
    According to the legal requirement that commission of an actionable tort by the
    employee is a vital fact of Appellee’s negligent training claim against ETMC, three of the
    four circumstances under which evidence is legally insufficient exist here. Because the
    trial court ruled prior to trial that the EMS Providers were not negligent as a matter of
    law, (1) the evidence conclusively establishes the opposite of this vital fact, (2) the trial
    court was barred by Texas law in giving any weight to any evidence Appellee may have
    offered at trial to prove this vital fact, and (3) there is a complete absence of this vital
    fact.
    C.    Appellee’s Reliance on Lacroix v. Denton Regional Medical Center is
    Misplaced:
    ETMC anticipates Appellee will argue Denton Regional Medical Center v.
    Lacroix, 
    947 S.W.2d 941
    (Tex. App.—Fort Worth 1997, pet. dism’d by agmt.),
    establishes Texas law does not require that an employee commit an actionable tort in
    order for the employer to be liable in an failure to train claim. Appellee’s reliance on
    23
    Lacroix is misplaced because a careful reading of Lacroix shows that it does not stand for
    this proposition.
    First and foremost, Lacroix is not a failure to train case. It is also not a negligent
    hiring, retention or supervision case. The issue in Lacroix was that the hospital required
    an anesthesiologist be present for all deliveries, but one was not present for Ms. Lacroix’s
    delivery. See, 
    id. at 949-50.
    As such, Lacroix is neither binding nor persuasive precedent
    because it does not involve a “dependent” tort. See, Aguilera-Sanchez, 2003 Tex. App.
    LEXIS 4846 at *16. Further, Lacroix is a Fort Worth Court of Appeals opinion and a
    petition for review filed by the hospital was dismissed by agreement before it was
    addressed by the Texas Supreme Court.
    In addition to Lacroix’s petition for review history, the fact that Lacroix was
    decided in 1997 is also significant.      This is significant because in 2012 the Texas
    Supreme Court addressed the dependent torts of negligent hiring and negligent
    supervision in Wansley. When the Texas Supreme Court addressed these dependent torts
    in Wansley, it held that negligent conduct by the employee was a predicate to recovery.
    
    Wansley, 379 S.W.3d at 246
    . As such, Wansley really controls disposition of this appeal
    because it directly addresses dependent torts like a failure to train claim.
    D.     Latimer v. Memorial Hermann Hospital System Support ETMC’s
    Position:
    The Fourteenth District Court of Appeals’ decision in Latimer v. Memorial
    Hermann Hospital System, 2011 Tex. App. LEXIS 423 (Tex. App.—Houston [14th
    Dist.])(Jan. 20, 2011)(no pet.)(mem. op.) is instructive and persuasive authority
    24
    supporting ETMC’s argument in this point of error. In Latimer plaintiff asserted a claim
    based on the dependent tort of negligent supervision.        Memorial Hermann Hospital
    moved for summary judgment wherein it established that the employee at issue
    committed no actionable tort against plaintiff. The trial court granted Hermann’s motion.
    On appeal the Fourteenth District Court of Appeals held that plaintiff’s claim was
    properly dismissed because “there is no actionable tort to support the negligent
    supervision claim.” 
    Id. at *9-10.
    The same situation exists here. Appellee asserted the dependent tort of failure to
    train. Texas law requires that Appellee establish one or both of the EMS Providers
    committed an actionable tort against Ms. Delaune. See, Aguilera-Sanchez, 2003 Tex.
    App. LEXIS 4846 at *16 (citing 
    Gonzales, 995 S.W.2d at 739-40
    ); 
    German, 369 S.W.3d at 350
    . See also, 
    Wansley, 379 S.W.3d at 246
    ; Host Marriott Corp., 2001 Tex. App.
    LEXIS 4409 at *4-6. Prior to trial, however, the trial court ruled that as a matter of law
    neither Ms. Moore nor Ms. Spurgers committed a tort in their care of Ms. Delaune (CR
    365-66; 2 CR 119-120). In fact, the court granted summary judgment in favor of the
    EMS Providers on Appellee’s claim they were negligent in failing to restrain
    Ms. Delaune (See, CR 33; 1 CR 37). Thus, as in Latimer, Appellee cannot recover from
    ETMC because no actionable tort exists to support his failure to train claim.          See,
    Latimer, 2011 Tex. App. LEXIS 423 at *9-10.
    As such, ETMC is entitled not only to reversal of the Final Judgment against it and
    in favor of Appellee, but it is entitled to rendition of judgment in favor of it and against
    25
    Appellee because there is legally insufficient evidence of proximate cause to support
    Appellee’s failure to train claim.
    II.    JUDGMENT IN FAVOR OF APPELLEE SHOULD BE REVERSED
    BECAUSE THERE IS LEGALLY INSUFFICIENT EVIDENCE OF THE
    APPLICABLE STANDARD OF CARE AND BREACH BY ETMC:
    A.     Appellee’s Burden:
    In health care liability claims like this matter, the threshold issue that must be
    established is the applicable standard of care. See, Ortegon v. Benavides, 2008 Tex. App.
    LEXIS 1576 *13 (Tex. App.—San Antonio)(Mar. 5, 2008)(pet. denied)(mem. op.)(citing
    Jones v. Miller, 
    966 S.W.2d 851
    , 854 (Tex. App.—Houston [1st Dist.] 1998, no pet.));
    Cobb v. Dallas Fort Worth Medical Center, 
    48 S.W.3d 820
    , 825 (Tex. App.—Waco
    2001, not pet.). The plaintiff in a health care liability claim has the burden at trial to
    establish the applicable standard of care; the actual specifics of duty owed by the health
    care provider to the patient. See, Jackson v. Axelrad, 
    221 S.W.3d 650
    , 655 (Tex. 2007);
    Morrell v. Finke, 
    184 S.W.3d 257
    , 271 (Tex. App.—Fort Worth 2005, pet. denied).
    Establishing the applicable standard of care is essential because without that information
    the fact finder cannot determine if the facts show the defendant breached the standard of
    care. See, Kingwood Pines Hospital, LLC v. Gomez, 
    362 S.W.3d 740
    , 747 (Tex. App.—
    Houston [14th Dist.] 2011, no pet.); Ortegon, 2008 Tex. App. LEXIS 1576 at *13; Nichols
    v. Nacogdoches Hospital District, 
    96 S.W.3d 582
    , 586 (Tex. App.—Tyler 2002, no pet.).
    While in general terms the standard of care applicable to ETMC is to do what an
    ordinarily prudent emergency medical services provider would do under the same or
    similar circumstances, a statement of this nature is not sufficient to establish the
    26
    applicable standard of care. Specific factual information is required to establish the
    applicable standard of care and a resulting breach of that standard. See, Kingwood Pines
    
    Hosp., 362 S.W.3d at 747
    ; Shaw v. BMW Healthcare, Inc., 
    100 S.W.3d 8
    , 13-14 (Tex.
    App.—Tyler 2002, pet. denied); 
    Nichols, 96 S.W.3d at 586
    ; Gonzales v. Sid Peterson
    Memorial Hospital, 2000 Tex. App. LEXIS 3137 *5 (Tex. App.—San Antonio)(May 17,
    2000)(pet. denied)(mem. op.). In particular, plaintiff is required to provide specific
    factual information about what the defendant should have done differently. See, 
    id. To establish
    the applicable standard of care, factual information must be provided
    that describes the steps needed to comply with the applicable standard of care. For
    example, when establishing the standard of care applicable to a radiologist for reading a
    mammogram, a statement that the radiologist should “examine the mammogram x-rays
    and report the results in a written report” is not sufficient. See, Chopra v. Hawryluk,
    
    892 S.W.2d 229
    , 233 (Tex. App.—El Paso, 1995, writ denied). To establish the standard
    of care there must be more factual detail. For example, the steps taken to properly read
    the x-ray must be described and a description of what should be contained in an adequate
    report must be provided. 
    Id. Similarly, simple
    assertions that a health care provider failed to do something is
    not sufficient. See, 
    Shaw, 100 S.W.3d at 14
    . More factual detail is required such as what
    are appropriate actions under the circumstances or what factually should have been done
    differently to comply with the applicable standard of care. 
    Id. In a
    failure to train claim, plaintiff is required to prove that a reasonably prudent
    employer would have provided training beyond that which was given. See, Lermon, 2014
    27
    Tex. App. LEXIS 12498 at *25; Dangerfield v. Ormsby, 
    264 S.W.3d 904
    , 912 (Tex.
    App.—Fort Worth 2008, no pet.); Patino v. Complete Tire, Inc., 
    158 S.W.3d 655
    , 661
    (Tex. App.—Dallas 2005, pet. denied); Allsup’s Convenience Stores, Inc. v. Warren,
    
    934 S.W.2d 433
    , 437 (Tex. App.—Amarillo, 1996, writ denied).               Plaintiff is also
    required to provide “factual proof” of specific training that the employer should have
    provided but didn’t. Allsup’s Convenience Stores, 
    Inc., 934 S.W.2d at 437
    . Simply
    saying ETMC “failed to train” the EMS Providers is not enough to establish the
    applicable standard of care. See, 
    Shaw, 100 S.W.3d at 14
    ; 
    Chopra, 892 S.W.2d at 233
    .
    This form of standard of care evidence is insufficient because it is conclusory and ipse
    dixit in nature. See, Jelinek v. Casas, 
    328 S.W.3d 526
    , 539-40 (Tex. 2010); Earle v.
    Ratliff, 
    998 S.W.2d 882
    , 890 (Tex. 1999).
    B.     Appellee’s Evidence:
    Appellee relied on his retained expert Dr. Wayne to establish the standard of care
    applicable to ETMC in training Ms. Moore and Ms. Spurgers on the use of restraint and
    to establish a breach of that standard of care. Dr. Wayne’s only specific testimony about
    the applicable standard of care was a statement that EMS providers should be trained that
    if “talk down” does not work, physical or chemical restraint is used (3 RR 28, lines 4-9).
    Dr. Wayne later mentioned making sure employees understood what they were being
    taught, but provided no further facts, details or specifics relevant to this opinion (See, 3
    RR 36, lines 1-3; 62, lines 6-9).
    With respect to ETMC’s breach of the standard of care, Dr. Wayne testified it was
    his opinion ETMC did not train the EMS Providers on the use of restraint because
    28
    (1) they did not restrain Ms. Delaune, and (2) they did not mention restraint in their pre-
    trial depositions (3 RR 60, lines 13-18; 3 RR 74, lines 14-20).
    Dr. Wayne’s testimony was wholly based on inferences and not on any facts
    related to ETMC’s actual training of the EMS Providers. Significantly, Dr. Wayne failed
    to provide any facts about what specifically ETMC should have done differently or about
    what training ETMC should have provided, but failed to provide.
    Dr. Wayne simply inferred the EMS Providers were not trained because they did
    not discuss the use of restraint in their depositions and because they did not restrain
    Ms. Delaune. As shown below, this is legally insufficient evidence of the applicable
    standard of care and breach of any standard of care by ETMC.
    C.     Appellee’s Evidence is Legally Insufficient Evidence of Applicable
    Standard of Care and Breach by ETMC:
    1.     Conclusory and ipse dixit testimony and inference stacking is
    legally insufficient evidence:
    Expert testimony that is conclusory and ipse dixit in nature is incompetent
    evidence and cannot support a jury verdict or judgment. See, City of San Antonio v.
    Pollock, 
    284 S.W.3d 809
    , 816, 818 (Tex. 2009). A party may complain about conclusory
    and incompetent evidence on appeal, even if no objection was asserted at trial. See, 
    id. at 816
    (citing Coastal Transportation Co. v. Crown Central Petroleum Corp., 
    136 S.W.3d 227
    , 232 (Tex. 2004)); 
    id. at 817-18
    (citing Burrow v. Acre, 
    997 S.W.2d 229
    , 235 (Tex.
    1999)).
    Expert testimony is conclusory and ipse dixit in nature where there is no factual
    basis offered to support that opinion. See, 
    Jelinek, 328 S.W.3d at 539-40
    ; Earle, 
    998 29 S.W.2d at 890
    . Expert testimony is also conclusory and ipse dixit in nature when the
    stated basis of the opinion does not support the opinion. See, 
    Pollock, 284 S.W.3d at 817-18
    .
    Further, an inference stacked on other inferences is not legally sufficient evidence.
    Marathon 
    Corp., 106 S.W.3d at 728
    . Dr. Wayne’s standard of care and breach testimony
    is legally insufficient evidence because it is conclusory and ipse dixit in nature.
    Dr. Wayne’s testimony on these issues is also legally insufficient evidence because it
    involves one inference stacked on other inferences.
    2.     Dr. Wayne’s testimony on the applicable standard of care and
    breach is legally insuficient:
    a.     Failure to train on restraints:
    The only evidence Appellee produced at trial that established a possible applicable
    standard of care and breach of that standard by ETMC is Appellee’s assertion that ETMC
    simply did not ever train the EMS Providers on the use of restraint. (See, 3 RR 36,
    lines 6-8)(“…my feeling where the failure of the standard of care occurred is that if the
    EMS providers only knew to talk down, they had not been taught.”).
    Dr. Wayne’s opinion that the EMS Providers only knew talk-down and were not
    taught about the use of restraints was based only on two things. This opinion was based
    on (1) the fact the EMS Providers’ did not restrain Ms. Delaune and (2) because these
    ladies did not mention restraint in their depositions (3 RR 60, lines 13-18; 3 RR 74, lines
    14-20). This testimony is legally insufficient evidence of the applicable standard of care
    and breach of that standard by ETMC.
    30
    (1)    Evidence contrary to the verdict can be considered:
    This Court can and should consider evidence contrary to the verdict when
    evaluating ETMC’s claim that Dr. Wayne’s testimony is legally insufficient evidence of
    the applicable standard of care and breach by ETMC.              First, ETMC asserts that
    Dr. Wayne’s testimony is incompetent because it is conclusory and ipse dixit in nature.
    In evaluation of a claim that evidence is incompetent, evidence showing such
    incompetence can be considered, even if contrary to the verdict. See, City of 
    Keller, 168 S.W.3d at 812
    . Also applicable to evaluation of Dr. Wayne’s testimony is the fact
    that when an expert’s opinion is based on a certain assumption about the facts, appellate
    courts cannot disregard evidence showing those factual assumptions were unfounded. 
    Id. at 813.
    In addition, Dr. Wayne makes inferences based on certain circumstantial evidence.
    When the underlying circumstances are equally consistent with two facts, all of the
    evidence and known circumstances can be considered. See, 
    id. at 813-14.
    In addition,
    Dr. Wayne makes conclusions about what the EMS Providers knew and did not know. In
    evaluating Dr. Wayne’s conclusions about the EMS Providers’ conscious knowledge and
    appreciation, evidence contrary to the verdict can be considered. See, 
    id. at 817.
    Finally, the evidence conclusively establishes that ETMC did train the EMS
    Providers on the use of restraint. Appellate courts should consider and do not disregard
    evidence that conclusively establishes the opposite of such a vital fact. See, 
    id. at 814.
    31
    (2)     Testimony is conclusory and ipse dixit:
    Dr. Wayne’s testimony is conclusory and ipse dixit in nature because (1) his
    opinion is not supported by what he relies on as the basis of his testimony, (2) the factual
    assumptions he made are unfounded, and (3) he does not provide any factual basis for his
    opinion. First, with respect to the EMS Providers’ actions, Dr. Wayne agreed that the
    decision to utilize restraints involves the exercise of judgment by the EMS provider
    (3 RR 75, lines 3-9). Dr. Wayne also agreed that even though the Behavioral Policy
    covered restraint use in patients with behavioral emergencies, this policy is only a
    “guideline” and not a “rule” (3 RR 73, lines 7-12).            Dr. Wayne also agreed that
    application of this policy to the treatment of a particular patient also involves the exercise
    of judgment by the EMS provider (3 RR 73, lines 7-12).
    Because an exercise of judgment is involved, one cannot simply infer from the fact
    Ms. Delaune was not restrained that the failure to restrain was because the EMS
    Providers were not trained on or did not know about restraint, as Dr. Wayne did here.
    The fact restraint was not used could have just as likely been because it was not felt that
    restraint was indicated. In fact, Ms. Moore testified that this was the reason Ms. Delaune
    was not restrained (See, 3 RR 202-03).
    The summary judgment in favor of the EMS Providers is also of significance.
    Prior to trial it was determined that as a matter of law the EMS Providers did not have a
    duty to restrain Ms. Delaune and did not breach any duty to restrain Ms. Delaune
    (CR 365-66; 2 CR 119-120). Based on this established matter of law, the fact that the
    EMS Providers did not restrain Ms. Delaune cannot and does not provide any support for
    32
    Dr. Wayne’s opinion that ETMC failed to train the EMS Providers on restraint. As such,
    this opinion is conclusory and incompetent. See, 
    Pollock, 284 S.W.3d at 817-18
    . In fact,
    this ruling by the trial court conclusively prevents Dr. Wayne from inferring a failure to
    train was the reason the EMS Providers did not restrain Ms. Delaune.
    Second, Dr. Wayne claims the EMS Providers’ deposition testimony shows
    ETMC failed to train them on the use of restraint. Dr. Wayne infers this from his
    recollection the EMS Providers did not mention restraint in their depositions (3 RR 29,
    lines 12-16).   Dr. Wayne’s testimony here is wholly conclusory.            See, 
    Jelinek, 328 S.W.3d at 539-40
    ; 
    Earle, 998 S.W.2d at 890
    . At no time did Dr. Wayne quote or
    point a specific area in these depositions as evidence that confirms or supports his
    inference.
    Also of significance is the fact that there is nothing in the record that shows the
    EMS Providers were ever asked a question during deposition that would have required
    them to discuss or mention the use of restraint. The record establishes that the answers a
    witness gives during deposition depends upon the questions asked (3 RR 57, lines 7-16; 3
    RR 59, lines 1-14). The record also establishes that whether or not the EMS Providers
    discussed utilization of restraints in their deposition depended on Appellee’s counsel
    asking one or more questions directed at the issue of restraints (5 RR 113, line 21 – 114,
    line 17).
    Dr. Wayne’s claim the EMS Providers’ depositions show ETMC did not train
    them on restraints is conclusory and ipse dixit because there is no factual basis for this
    opinion. See, 
    Jelinek, 328 S.W.3d at 539-40
    ; 
    Earle, 998 S.W.2d at 890
    . Specifically,
    33
    Dr. Wayne did not establish that based on the questions asked during their depositions the
    EMS Providers should have mentioned the use of restraint if they had knowledge about
    the use of restraint. To the contrary, Dr. Wayne simply assumed restraint was not
    mentioned because the EMS Providers did not know about it (3 RR 29, lines 12-16).
    Because this opinion is based on Dr. Wayne assumption that failure to mention restraint
    means ETMC did not train them on restraint and they did not have knowledge of
    restraint, this Court must consider and cannot disregard evidence that shows this
    assumption is unfounded. See, City of 
    Keller, 168 S.W.3d at 813
    .
    Under the circumstances, one also is equally able to infer restraint was not
    mentioned in the depositions because it was not asked about. Further, as will be shown
    immediately below, the evidence not only shows Dr. Wayne’s “factual” assumption is
    unfounded, the evidence conclusively establishes ETMC did train the EMS Providers on
    restraint and that they had knowledge of restraint before starting work with ETMC.
    (3)    Evidence conclusively establishes training on and
    knowledge of restraints:
    In testifying ETMC failed to train on the use of restraint, Dr. Wayne first stated
    the conclusion the EMS Providers “did not have the intrinsic knowledge” about the use of
    restraint (3 RR 9, lines 15-16). Later, Dr. Wayne refined this opinion to state that ETMC
    would have been negligent “if the EMS providers only knew to talk down” (3 RR 36,
    lines 6-9).
    The evidence conclusively establishes not only that ETMC trained Ms. Moore and
    Ms. Spurgers on the use of restraint, but also that they had “intrinsic knowledge” about
    34
    the use of restraint long before they started work with ETMC. Because the evidence
    conclusively establishes ETMC trained on the use of restraint and the EMS Providers did
    not only know to talk down, the Court should consider, and cannot disregard, this
    evidence contrary to the verdict. See, City of 
    Keller, 168 S.W.3d at 814
    .
    The evidence shows the EMS Providers were aware of ETMC’s Behavioral Policy
    and its provisions on the use of restraint (See, 3 RR 96, lines 2-5, 156; 4 RR 13, lines 16-
    19). The evidence also established the EMS Providers were trained on the use of restraint
    at ETMC (3 RR 156-57, 158-60, 166-67; 4 RR 28, 61-62; 20 RR 9, 15 [Def. Ex. 31];
    20 RR 19, 25 [Def. Ex. 32]; 20 RR 30 [Def. Ex. 37]; 20 RR 81-85 [Def. Ex. 38]). While
    Dr. Wayne testified that ETMC did not train on the use of restraint, this is conclusory
    testimony and is not validated by the evidence. In addition, the uncontroverted evidence
    also establishes the EMS Providers were trained on and had knowledge about the use of
    restraint prior to the time they started work for ETMC (See, 3 RR 135-36, 141, 145, 150;
    4 RR 41, lines 19-25; 44, line 18 – 45, line 1).          This evidence not only shows
    Dr. Wayne’s opinion ETMC failed to train is incompetent because it has no factual basis,
    it conclusively establishes that ETMC trained the EMS Providers on the use of restraint
    and that the EMS Providers knew about the use of restraint. Appellee never controverted
    this evidence.
    (4)    Opinion involves improper inference stacking:
    Dr. Wayne’s testimony on this issue is also legally insufficient because it involves
    one inference stacked on other inferences. Specifically, Dr. Wayne inferred the EMS
    Providers were not trained on and did not know about restraint because (1) Ms. Delaune
    35
    was not restrained on the occasion in question and (2) the use of restraint was not
    mentioned in their depositions.
    Dr. Wayne then infers (1) the EMS Providers did not restrain Ms. Delaune
    because they did not know about restraint, and (2) they did not mention restraint when
    they were deposed for the same reason (See, 3 RR 35, 36, 60). Dr. Wayne’s inferences
    are not based on any facts about what training ETMC did provide or what training ETMC
    should have provided but did not provide. Thus, Dr. Wayne’s “opinion” ETMC failed to
    train the EMS providers is legally insufficient because it is the result of improper
    inference-stacking. See, Marathon 
    Corp., 106 S.W.3d at 728
    .
    b.     ETMC’s training program:
    To the extent that Appellee tries to argue the adequacy, degree, or sufficiency of
    the restraint training provided by ETMC was improper, ETMC would point out that there
    is nothing in the record that provides any evidence of the standard of care applicable to
    ETMC on this issue or a breach of a standard of care on this issue. Dr. Wayne never
    made any statement that the ETMC’s restraint training was not adequate for any specific
    reason, that it did not cover the proper topics, or that the frequency or substance of the
    training ETMC provided on restraint was inadequate.
    Absent from the record on this issue is any factual evidence showing that as a
    reasonably prudent employer ETMC was required to go beyond what it did do in training
    the EMS Providers on the use of restraint. Because this information is absent from the
    record, there is no evidence to support the applicable standard of care or a breach of any
    such standard by ETMC on this issue. See, 
    Dangerfield, 264 S.W.3d at 912
    , 913;
    36
    
    Patino, 158 S.W.3d at 661
    ; Allsup’s Convenience Stores, 
    Inc., 934 S.W.2d at 437
    .
    Further, to the extent that Appellee tries to argue Dr. Wayne’s testimony somehow
    implicates such a standard of care and breach, ETMC submits that any such testimony is
    legally insufficient evidence because it is conclusory and ipse dixit in nature.
    Specifically, Dr. Wayne never provides the necessary facts showing what additional
    action or steps a reasonable employer should take or that ETMC failed to take any such
    specific action or additional steps. See, id; See also, 
    Jelinek, 328 S.W.3d at 539-40
    ;
    
    Earle, 998 S.W.2d at 890
    ; 
    Shaw, 10 S.W.3d at 14
    ; 
    Chopra, 892 S.W.2d at 233
    .
    In fact, Dr. Wayne agreed that the structure of ETMC’s training program tracked
    what the national organization that certifies EMS providers requires for certification
    (3 RR 11-14). This further establishes Appellee does not have legally sufficient evidence
    of any applicable standard of care related to the nature and substance of ETMC’s training
    on restraint or any breach of that standard.
    c.    Making sure what was taught is understood:
    What Appellee is left to argue is that ETMC failed to make sure the EMS
    Providers understood what they were taught on restraint (See, 3 RR 36, lines 1-3; 3 RR
    62, lines 6-9). This may be the true focus of Dr. Wayne’s testimony (See, 3 RR 36 [“Fact
    two is assessing that those people have understood...”]; 3 RR 62 [“Again, what you’re
    taught and what you know may not be the same thing. And there’s a responsibility to
    assure that what you’re taught is what you know”]).
    Appellee, however, produced no evidence as to the standard of care applicable to a
    provider like ETMC to make sure that its employees understood what they were taught.
    37
    Whenever Dr. Wayne mentioned this concept, he never provided any details about how a
    provider goes about making sure its employees understand what they are taught. More
    importantly, Dr. Wayne never stated what ETMC should have done but failed to do to
    make sure the EMS Providers understood what they were taught on the use of restraint.
    For these reasons, Appellee did not carry his burden to establish the applicable
    standard of care and breach on this issue. See, 
    Dangerfield, 264 S.W.3d at 912
    , 913;
    
    Patino, 158 S.W.3d at 661
    ; Allsup’s Convenience Stores, 
    Inc., 934 S.W.2d at 437
    . For
    these same reasons, any testimony Dr. Wayne offered on this issue is legally insufficient
    because it is conclusory and ipse dixit in nature. See, 
    Jelinek, 328 S.W.3d at 539-40
    ;
    
    Earle, 998 S.W.2d at 890
    ; 
    Shaw, 100 S.W.3d at 14
    ; 
    Chopra, 892 S.W.2d at 233
    .
    The fact Appellee produced no evidence of the standard of care or breach here is
    emphasized by Dr. Wayne’s admission that he did not even know what ETMC’s
    processes were to check compliance and make sure its EMS providers understood what
    they were taught (3 RR 83, lines 5-8). Thus, not only was there no evidence of the
    applicable standard of care on this issue, there was not even a basis from which Appellee
    or Dr. Wayne could claim ETMC violated any applicable standard of care related to this
    issue.
    Finally, the evidence conclusively establishes that ETMC did act to make sure that
    its providers understood what they were taught. Dr. Wayne did not dispute that ETMC
    tested its providers on its protocols every year (3 RR 82, lines 15-19). Dr. Wayne also
    did not controvert that the EMS Providers’ competency on restraint was demonstrated by
    passing tests every two and four years to maintain their Texas and national certifications
    38
    (See, 3 RR 133, lines 5-15; 3 RR 134, lines 22-25). ETMC also documented through
    routine evaluations that the EMS Providers knew and followed its protocols (See, 13 RR
    56, 61, 66, 71, 82 [Pl. Ex. 19]; 14 RR 40, 43, 48, 54, 59 [Pl. Ex. 20]). For all these
    reasons, Appellee does not have legally sufficient evidence of the standard of care or
    breach on this issue.
    D.     Supportive Case Law:
    The following cases support ETMC’s position Appellee has legally insufficient
    evidence of the applicable standard of care or a breach of the standard of care by ETMC:
    1.        Mackey v. U.P. Enterprises, Inc.:
    This Court’s opinion in Mackey v. U.P. Enterprises, Inc., 
    935 S.W.2d 446
    (Tex.
    App.—Tyler 1996, no pet.) supports ETMC’s claim that there is legally insufficient
    evidence ETMC failed to train the EMS Providers on the use of restraint.
    In Mackey, plaintiff alleged that she was sexually harassed by two of her
    employer’s mangers, Smith and Johnson. 
    Id. at 449.
    Plaintiff alleged her employer was
    liable for “negligent supervision, training, and evaluation of Smith and Johnson.” 
    Id. at 451,
    459.
    The employer, UPE, moved for summary judgment asserting that the summary
    judgment evidence conclusively showed there was no failure to train Smith and Johnson.
    
    Id. at 459-60.
    The summary judgment evidence showed UPE had a written policy against
    sexual harassment posted in all of its stores, required all new employees to read the
    policy, and stressed to employees that sexual harassment was against company policy.
    
    Id. 39 In
    contrast, plaintiff relied on her allegations that sexual harassment had occurred
    to establish a failure to supervise, train and evaluate. Plaintiff did not present evidence
    controverting the employer’s facts or specifying other acts or omissions by the employer
    showing it failed to properly train its employees on sexual harassment. 
    Id. at 460.
    Because plaintiff failed to produce such evidence, she failed to create a genuine issue of
    material fact to support her failure to train claim. 
    Id. The situation
    before the Court here is analogous to the situation before the Court
    in Mackey. The evidence here establishes that long before the EMS Providers started
    work with ETMC they were educated, trained on and knew about the use of restraint
    (See, 3 RR 129, 145-46, 140; 4 RR 44, line 22 – 45, line 1; 4 RR 52, lines 7-15). ETMC
    also has a written policy on the use of restraint that Appellee and his expert agree is a
    reasonable and proper policy (See, 3 RR 28, lines 10-25; 3 RR 90, lines 8-17). Both the
    EMS Providers knew about this Behavioral Policy (See, 3 RR 156; 4 RR 13).               In
    addition, a copy of this policy was always in their ETMC ambulance (See, 3 RR 168,
    lines 20-24). Further, ETMC trained both the EMS Providers on restraint (13 RR 16 [Pl.
    Ex. 20]; 13 RR 26 [Pl. Ex. 16]; 20 RR 9, 15 [Def. Ex. 31]; 20 RR 19, 25 [Def. Ex. 32]).
    The EMS Providers’ understanding and knowledge of the use of restraint was also
    routinely tested and both ladies passed this routine testing (See, 3 RR 134, lines 2-20; 3
    RR 167, line 19 – 168, line 5). Finally, ETMC provided Power Point training on the use
    of restraint about four months before this incident (6 RR 97, line 20 – 98, line 13; 6 RR
    105, lines 11-23; 6 RR 106, line 4 – 107, line 17; 20 RR 81-85 [Def. Ex. 38]).
    40
    In response to this evidence, like the plaintiff in Mackey, Appellee simply relies on
    the fact the EMS Providers did not restrain Ms. Delaune. Prior to trial, however, the trial
    court determined that the standard of care did not require that the EMS Providers restrain
    Ms. Delaune.         Further, Appellee produced no evidence that controverted ETMC’s
    training facts and provided no facts that showed ETMC somehow otherwise failed to
    train the EMS Providers on restraint. For these reasons, like in Mackey, Appellee has
    legally insufficient evidence to establish a failure to train by ETMC.
    2.        Allsup’s Convenience Stores, Inc. v. Warren:
    An employee who injured her back lifting boxes full of gallon milk jugs sued for
    negligent training in Allsup’s Convenience Stores. 
    Allusp’s, 934 S.W.2d at 434
    . The
    employee prevailed at trial. The jury verdict and judgment in her favor was reversed on
    appeal.
    The evidence at trial showed that the employee was familiar with the employer’s
    safety manual and that this manual covered proper lifting techniques. A fellow employee
    also testified that he had shown the employee how to unload boxes. 
    Id. at 437.
    The
    Amarillo Court of Appeals ruled that the employee’s own testimony she was not trained
    to lift heavy boxes was not only conclusory, but it was not validated by the evidence. 
    Id. The Amarillo
    Court of Appeals also stated that the employee had the burden to
    “provide factual proof of the training that Allsup negligently failed to provided.” 
    Id. The court
    also stated:
    What is missing from the record to sustain [the employee’s] claim is
    evidence of any training beyond that given [employee] for lifting
    41
    items from the truck which would be necessary and proper by a
    reasonably prudent employer.
    
    Id. Because this
    evidence was not in the record, employee did not carry her burden, the
    judgment in her favor was reversed, and judgment was entered that she take nothing. 
    Id. at 438-39.
    ETMC’s position here is supported by even more favorable circumstances than
    those in Allsup’s. As in Allsup’s, the evidence shows the EMS Providers were aware of
    the Behavioral Policy and its provisions on the use of restraint (See, 3 RR 96, lines 2-5,
    156; 4 RR 13, lines 16-19). The evidence also established the EMS Providers were
    trained on the use of restraint at ETMC (3 RR 156-57, 158-60; 4 RR 28, lines 17-24; 39,
    lines 1-10; 61, line 12 – 62, line 1; 20 RR 9, 15 [Def. Ex. 31]; 20 RR 19, 25 [Def. Ex.
    32]). While Dr. Wayne testified ETMC did not train on the use of restraint, this is
    conclusory testimony and is not validated by the evidence. Thus, the same circumstances
    that established legally insufficient evidence of a failure to train in Allsup’s are present
    here. In addition, however, the uncontroverted evidence establishes the EMS Providers
    were trained on and knew about the use of restraint before they started work for ETMC
    (See, 3 RR 135-36, 141, 145, 150; 4 RR 41, lines 19-25; 44, line 18 – 45, line 1).
    As in Allsup’s, absent from the record is evidence of any training beyond that
    ETMC provided on restraint that would be required of a reasonably prudent emergency
    medical services provider. For this reason, Allsup’s supports ETMC’s assertion that the
    verdict and judgment in favor of Appellee should be reversed and that a take nothing
    judgment should be entered in favor of ETMC.
    42
    3.       Patino v. Complete Tire, Inc.:
    In Patino, an employee hired to remove and repair flat truck tires was injured
    while removing a large flat tire from a tire rim. 
    Patino, 158 S.W.3d at 658
    . Claimant
    alleged his employer did not properly train him because he had not received any formal
    training on changing tires.      The evidence showed that for the first few days of
    employment, claimant was accompanied by a more experienced tire technician who
    observed his tire-changing technique. This more experienced technician would have
    shown examples of proper technique to claimant and commented on any adjustments in
    technique that claimant needed to make. 
    Id. at 661.
    Claimant did not present any evidence showing what training beyond that he was
    given should be provided by a reasonable and prudent employer. 
    Id. Because this
    evidence was missing, the Dallas Court of Appeals concluded claimant presented no
    evidence of a breach of any standard of care. 
    Id. Here, Appellee
    presented no evidence about training on restraint beyond that
    provided by ETMC that should be provided by a reasonable and prudent EMS provider.
    Appellee simply claimed in conclusory fashion that proper training was not provided.
    For this reason, Patino also supports ETMC’s request for a reversal of the verdict and
    judgment against it.
    43
    CONCLUSION
    ETMC is entitled to reversal of the Final Judgment against it and in favor of
    Appellee because ETMC has shown there is legally insufficient evidence as to causation
    against ETMC and a failure to train by ETMC.                Appellee’s evidence is legally
    insufficient if one or more of the following circumstances exist:
    1.       The record discloses a complete absence of a vital fact;
    2.       The court is barred by rules of law or rules of evidence from giving weight
    to the only evidence offered to prove a vital fact;
    3.       The evidence offered to prove a vital fact is no more than a mere scintilla,
    or;
    4.       The evidence establishes conclusively the opposite of a vital fact.
    City of 
    Keller, 168 S.W.3d at 810
    ; Crown Pine Timber 1, L.P., 2012 Tex. App. LEXIS
    3658 at *8-9.
    There is legally insufficient evidence of causation because Appellee did not
    establish the EMS Providers committed an actionable tort. Not only is there a complete
    absence of this vital fact, the record establishes conclusively the opposite. The record
    establishes that as a matter of law the EMS Providers did not commit a tort against
    Appellee. This is a vital fact that Appellee had to prove in order to establish causation in
    his failure to train claim. Because this vital fact was not established, and could not be
    established as a matter of law, Appellee has legally insufficient evidence of causation on
    his failure to train claim and ETMC is entitled to reversal of the judgment against it.
    There is also legally insufficient evidence of the standard of care applicable to
    ETMC and a breach of any standard of care. Other than making a conclusory and ipse
    44
    dixit assertion that ETMC simply did not train the EMS Providers on the use of restraint,
    Appellee presented no legally sufficient evidence of the standard of care applicable to
    ETMC in training providers like Ms. Moore and Ms. Spurgers on the use of restraint or a
    breach of that standard.
    Appellee never provided any specific information about what was required of a
    reasonable employer in training EMS personnel on the use of restraint or that ETMC
    failed to provide some specific training that a reasonable employer would have provided.
    Appellee essentially did nothing more than claim Ms. Delaune should have been
    restrained and then assert she was not restrained because of a failure to train by ETMC.
    As shown by the authority cited above, the testimony Appellee offered is not competent
    evidence of the applicable standard of care or breach.
    Because the actual facts did not support Appellee, the only way Appellee could
    argue there was a failure to train was by stacking inference upon inference. Not only is
    inference-stacking insufficient to create legally sufficient evidence, the inferences made
    are not supported by the facts.
    The fact of the matter is the evidence conclusively established ETMC did train the
    EMS Providers on the use of restraint and that the EMS Providers were evaluated and
    tested on their knowledge of restraint at ETMC. Appellee never controverted those facts.
    Appellee only asserted in response that training and knowledge are two different things.
    Appellee, however, never provided any facts or evidence showing what a reasonable
    emergency medical services provider was required to do beyond what ETMC did.
    45
    Because Appellee did not provide these facts or evidence, his evidence on the applicable
    standard of care and breach is legally insufficient.
    Because Appellee’s evidence is legally insufficient on causation, the applicable
    standard of care and breach of the standard of care, the Tyler Court of Appeals should
    reverse the verdict and Final Judgment in favor of Appellee and enter a take nothing
    judgment against Appellee and in favor of ETMC.
    46
    PRAYER
    WHEREFORE, PREMISES CONSIDERED, East Texas Medical Center d/b/a
    East Texas Medical Center Emergency Medical Services, respectfully requests that the
    Twelfth Court of Appeals grant it the following relief:
    1.     Reverse the verdict and Final Judgment against it in the trial court, and;
    2.     Enter a take nothing judgment against Appellee and in favor of East Texas
    Medical Center d/b/a East Texas Medical Center Emergency Medical
    Services.
    Respectfully Submitted,
    THIEBAUD REMINGTON THORNTON BAILEY,
    L.L.P.
    By: /s/Russell G. Thornton
    RUSSELL G. THORNTON
    State Bar Card No. 19982850
    rthornton@trtblaw.com
    4849 Greenville Avenue, Suite 1150
    Dallas, Texas 75206
    (214) 954-2200
    (214) 754-0999 (Fax)
    COUNSEL FOR APPELLANT
    EAST TEXAS MEDICAL CENTER d/b/a
    EAST TEXAS MEDICAL CENTER
    EMERGENCY MEDICAL SERVICES
    47
    CERTIFICATE OF COMPLIANCE
    Pursuant to TEXAS RULES OF APPELLATE PROCEDURE 9.4(i)(3) Appellant certifies
    that its Brief on the Merits, filed on June 3, 2015 in the Twelfth Court of Appeals,
    contains 11,211 words.
    /s/ Russell G. Thornton
    RUSSELL G. THORNTON
    48
    CERTIFICATE OF SERVICE
    The undersigned certifies that on the 3rd day of June, 2015, a true and correct
    copy of the foregoing document was delivered to counsel listed below:
    Mr. Ryan Krebs, M.D., J.D.                                    VIA E-SERVE & E-MAIL
    THE LAW OFFICE OF RYAN KREBS
    805 W. 10th Street, Suite 300
    Austin, Texas 78701
    ryan@ryankrebsmdjd.com
    /s/Russell G. Thornton
    RUSSELL G. THORNTON
    49
    APPENDIX
    APPENDIX- ''A''
    0
    Cause No. 13-0984-A
    JODY DELAUNE, Individually; and                         §
    as Personal Representative of the Estate                §
    of CRYSTAL DELAUNE, Deceased;                           §
    and as Next Friend of DALTON                            §
    DELAUNE, DESTINY DELAUNE,                               §
    and DEE ANN DELAUNE, Minors,                            §
    §
    Plaintiffs,                                       §
    §
    v.                                                      §                     SMITH COUNTY, TEXAS
    §
    EAST TEXAS MEDICAL CENTER                               §
    D/B/A EAST TEXAS MEDICAL CENTER                         §
    EMERGENCY MEDICAL SERVICES,                             §
    §
    §
    §
    §
    Defendant.                                         §                     7th JUDICIAL DISTRICT
    FINAL JUDGMENT
    The Court finds thai the jury's verdict in this healthcare liability claim is rupported by the
    evidence and therefore renders judgment against Defendant and for Plaintiffs as follows:
    1.      The Court orders that Plaintiff, Jody Delaune, Individually recovers from Defendant, the sum
    of:
    a.) $7,500.00 for pecuniary loss sustained in the past;
    b.) $36,000.00 for pecuniary loss in the future;
    The Court orders that Plaintiff, Jody Delaune, as Next Friend of Dalton Delaune recovers
    from Defendant, the sum of.
    c.)   $7,500.00 for pecuniary loss sustained in the past;
    d.)   $20,000.00 for pecuniary loss in the future;
    e.)   $2,500.00 for loss of companionship and society in the past;
    f.)   $2,500,00 for loss of companionship and society in the future;
    g.)   $2,500.00 for mental anguish in the past;
    Page 738
    0
    h.) $2,500.00 for mental anguish in the future;
    The Court orders that Plaintiff, Jody Delaune, as Next Friend of Destiny Delaune recovers
    from Defendant, the sum of:
    i.) $7,500.00 for pecuniary loss sustained in the past;
    j.) $26,000.00 for pecuniary loss in the future;
    k.) $2,500.00 for loss of companionship and society in the past;
    1.) $2,500.00 for loss of companionship and society in the future;
    m.) $2,500.00 for mental anguish in the past;
    n,) $2,500.00 for mental anguish in the future;
    The Court orders that Plaintiff, Jody Delaune, as Next Friend of Dee Arm Delaune recovers
    from Defendant, the sum of:
    o.)   $7,500.00 for pecuniary loss sustained in the past;
    p.)   $36,000.00 for pecWiiary loss in the future;
    q.)   $2,500.00 for loss of companionship and society in the past;
    r.)   $2,500.00 for loss of companionship and society in the future;
    s.)   $2,500.00 for mental anguish in the past;
    t.)   $2,500.00 for mental anguish in the future;
    The Court orders that Plaintiff, Jody Delaune, as Personal Representative of the Estate of
    Crystal Delaune recovers from Defendant, the sum of:
    u.) $3,000.00 for funeral and burial expenses.
    The total judgment for a-u above is $181,000.00.
    The judgment for "past damages" for items a, c, e, g, i, k, m. o, q and s is $45,000.00.
    Plaintiff is entitled to recover pr~udgment interest on the $45,000.00 in "past damages." The
    prejudgment interest rate on these past damages is equivalent to the post judgment Interest
    rate ofS%. Tex. Fin. Code§ 304.103 (Vernon Supp. 2002). Pursuant to Texas Finance Code
    section 304.007, the Court hereby takes judicial notice of the fact that at the time of the
    rendition of this judgment, the post judgment interest rate as set by the Consumer Credit
    Commission and published in the Texas Register is 5 percent (S%). Pre-judgment interest in
    a health care liability claim begins accruing on the earlier of the l80'h day after the date
    Defendant received written notice of the claim or the date suit is filed and ends on the date
    before the judgment is signed. Defendant received written notice of the claim on November
    Page 739
    0
    8, 2012. See Exhibit B attached to Plaintiffs' First Amended Motion for Judgment on the
    Verdict. (Plaintiffs' Original Petition was filed Aprill5, 2013). 180 days from November 8,
    2012 is May 7, 2013. May 7, 2013 to December 21, 2014, the day before signing of the
    judgment on December 22, 2014 is 594 days or 1.63 years (594/365          = 1.63). Using these
    calculations, the Court finds that prejudgment interest of 5% simple interest on the
    $45,000.00 in "past damages" accruing 1.63 years is $3,661.64 (.05 x 1.63 x 45,000 =
    3,661.64).
    2.   The Court orders that Plaintiffs, Jody Delaune, Individually; and as Personal Representative
    of the Estate of Crystal Delaune, Deceased; and as Next Friend of Dalton Delaune, Destiny
    Delaune, and Dee Ann Delaune, Minors, recover from Defendant taxable court costs in the
    amount of $7,377.48 from Defendant. See Exhibit C attached to Plaintiffs' First Amended
    Motion for Judgment on the Verdict.
    3.   The Court orders that the total judgment for damages recoverable by Plaintiffs from
    Defendant as reflected in the Charge of the Court attached to Plaintiffs' First Amended
    Motion for Judgment on the Verdict as Exhibit A, taxable court costs attached to Plaintiffs'
    First Amended Motion for Judgment on the Verdict as Exhibit C, and pre-judgment interest
    on past damages is $192,039.12 (181,000 + 7,377.48 + 3,661.64 = 192,039.12).
    4.   Pursuant to Texas Finance Code section 304.005(a) {Vernon Supp. 2002), the Court orders
    that post judgment interest will begin to accrue on this judgment at the legal rate of 5%
    beginning on the date this judgment is signed and that Defendant is responsible and shall
    continue to be responsible to Plaintiffs for such post judgment interest until the judgment is
    satisfied in full.
    5.   The Court orders execution to issue for this judgment.
    6.   This judgment finally disposes of all claims and all parties and is appealable.
    Page 740
    7.    Tlte Cou``enies all relief not granted in this judgme_nt_.--..
    SIGNED on this23dayof     Deo&tbff ,2014.
    Page 741
    APPENDIX- ''B''
    0                                                  FILED
    LOIS RCXoERS
    DISTRiCT CLERK
    CAUSE NO. 13·0984-A
    JODY DELAUNE, Individually; and                    §
    as Personal Representative of the Estate           §
    of CRYSTAL DELAUNE, Deceased;                     §
    and as Next Friend of DALTON                      §
    DELAUNE, DESTINY DELAUNE,                         §
    and DEE ANN DELAUNE, Minors,                      §
    §
    Plaintiffs,                                       §
    §
    v.                                                §                      COURT IN AND FOR
    §
    EAST TEXAS MEDICAL CENTER                         §
    d/b/a EAST TEXAS MEDICAL                          §
    EMERGENCY MEDICAL SERVICES,                       §
    §
    Defendant.                                   §                SMITH COUNTY, TEXAS
    CHARGEOFTHECOURT
    MEMBERS OF THE JURY:
    After the closing arguments, you will go to the jury room to decide the case, answer the
    questions that are attached, and reach a verdict. You may discuss the case with other jurors only
    when you are all together in the jury room.
    Remember my previous instructions: Do not discuss the case with anyone else, either in
    person or by any other means. Do not do any independent investigation about the case or conduct
    any research. Do not look up any words in dictionaries or on the Internet. Do not post information
    about the case on the Internet. Do not share any special knowledge or experiences with the other
    jurors. Do not use your phone or any other electronic device during your deliberations for any reason.
    Here are the instructions for answering the questions.
    1.       Do not let bias, prejudice, or sympathy play any part in your decision.
    2.      Base your answers only on the evidence admitted in court and on the law that is in
    these instructions and questions. Do not consider or discuss any evidence that was not admitted in
    the courtroom.
    3.       You are to make up your own minds about the facts. You are the sole judges of the
    credibility of the witnesses and the weight to give their testimony. But on matters of law, you must
    follow all of my instructions.
    Page 373
    0
    4.      If my instructions use a word in a way that is different from its ordinary meaning, use
    the meaning I give you, which will be a proper legal definition.
    5.      All the questions and answers are important. No one should say that any question or
    answer is not important
    6.      Answer "yes" or "no" to all questions unless you are told otherwise. A "yes" answer
    must be based on a preponderance of the evidence. Whenever a question requires an answer other
    than "yes" or "no," your answer must be based on a preponderance of the evidence.
    The term "preponderance of the evidence" means the greater weight of credible evidence
    presented in this case. If you do not find that a preponderance of the evidence supports a "yes"
    answer, then answer "no." A preponderance of the evidence is not measured by the number of
    witnesses or by the number of do<.,'llments admitted in evidence. For a fact to be proved by a
    preponderance of the evidence, you must find that the fact is more likely true than not true.
    A fact is established by direct evidence when proved by documentary evidence or by
    witnesses who saw the act done or heard the words spoken. A fact is established by circumstantial
    evidence when it may be fairly and reasonably inferred from other facts proved.
    7.     Do not decide who you think should win before you answer the questions and then
    just answer the questions to match your decision. Answer each question carefully without
    considering who will win. Do not discuss or consider the effect your answers will have.
    8.      Do not answer questions by drawing straws or by any method of chance.
    9.     Some questions might ask you for a dollar amount. Do not agree in advance to decide
    on a dollar amount by adding up each juror's amount and then figuring the average.
    10.   Do not trade your answers. For example, do not say, "I will answer this question your
    way if you answer another question my way."
    11.    The answers to the questions must be based on the decision of at least ten of the
    twelve jurors. The same ten jurors must agree on every answer. Do not agree to be bound by a vote
    of anything less than ten jurors, even if it would be a majority.
    As I have said before, if you do not follow these instructions, you will be guilty of juror
    misconduct, and I might have to order a new trial and start this process over again. This would waste
    your time and the parties' money, and would require the taxpayers of this county to pay for another
    trial. If a juror breaks any of these rules, tell that person to stop and report it to me immediately.
    "Negligence" when used with respect to the conduct of East Texas Medical Center
    Emergency Medical Services, means failure to use ordinary care, that is, failing to do that which an
    emergency medical services provider of ordinary prudence would have done under the same or
    Page 374
    ..
    0
    similar circumstances or doing that which an emergency medical services provider of ordinary
    prudence would not have done under the same or similar circumstances. A finding of negligence may
    not be based solely on evidence of a bad result to the claimant in question, but a bad result may be
    considered by you, along with other evidence, in determining the issue of negligence. You are the
    sole judges of the weight, if any, to be given to this kind of evidence.
    "Ordinary care," when used with respect to the conduct of East Texas Medical Center
    Emergency Medical Services, means that degree of care that an emergency medical services provider
    of ordinary prudence would use under the same or similar circumstances. An emergency medical
    services provider acts in the manner in which it formulates, implements, and enforces its policies,
    procedures, rules, bylaws, and other governing protocols, whether express or implied.
    "Proximate cause," when used with respect to the conduct of East Texas Medical Center
    Emergency Medical Services, means a cause that was a substantial factor in bringing about an
    occurrence, and without which cause such occurrence would not have occurred. In order to be a
    proximate cause, the act or omission complained of must be such that an emergency medical services
    provider using ordinary care would have foreseen that the occorrence, or some similar occurrence,
    might reasonably result therefrom. There may be more than one proximate cause of an occuuence.
    Page 375,
    0
    QUESTION 1
    Did the negligence, if any, of East Texas Medical Center Emergency Medical Services
    proximately cause the death of Crystal Delaune?
    Answer "Yes" or "No":
    Answer: --=J~fdi'e.;l$c__ __
    Page 376
    u
    Answer Question 2 if you answered "Yes" for Question 1. Otherwise, do not answer
    Question 2.
    QUESTION2
    What sum of money, if paid now in cash, would fairly and reasonably compensate Jody
    Delaune for his damages, if any, resulting from the death of Crystal Delaune?
    Consider the elements of damages listed below and none other. Consider each element
    separately. Do not award any sum of money on any element if you have otherwise, under some other
    element, awarded a sum of money for the same loss. That is, do not compensate twice for the same
    loss, if any. Do not include interest on any amount of damages you find.
    Answer separately, in dollars and cents, for damages, if any.
    Do not consider, discuss, or speculate whether any party is or   is not subject to any damages
    limit under applicable law.
    1.       Peeuniary loss sustained in the past:
    "Pecuniary loss" means the loss of the care, maintenance, support, services, advice, counsel,
    and reasonable contributions of a pecuniary value, excluding loss of inheritance, that Jody Delaune,
    in reasonable probability, would have received from Crystal Delaune had she Jived.
    Answer:$     7 1 260 .60
    2.       Pecuniary loss that, in reasonable probability, will be sustained in the future.
    Answer:      3 &taoo. Do
    I
    3.       Loss of companionship and society sustained in the past.
    "Loss of companionship and society" means the loss of the positive benefits flowing from
    the love, comfort, companionship, and society that Jody Delaune, in reasonable probability, would
    have received from Crystal Delaune had she lived.
    Answer: $_ _0_::::__._0..;._::0:::.._
    4.       Loss of companionship and society that, in reasonable probability, will be sustained
    in the future.
    Answer: $_     ___,Q"=~·-0_0_
    Page 377
    5.     Mental anguish sustained in the past.
    "Mental anguish" means the emotional pain, torment, and suffering experienced by Jody
    Delaune because of the death of Crystal Delaune.
    Answer: $_ _ _ _ _         0~·;.,_:_•~0"-0:::::.__ _~
    6.     Mental anguish that, in reasonability probability, will be sustained in the future.
    Answer:$              0. 00
    In determining damages elements for 3, 4, 5, and 6, you may consider the relationship
    between Jody Delaune and Crystal Delaune, their living arrangements, any extended absences from
    one another, the harmony of their family relations, and their common interests and activities.
    Page 378
    Answer Question 3 if you answered "Yes" for Question 1. Otherwise, do not answer
    Question 3.
    QUESTION3
    What sum of money, if paid now in cash, would fairly and reasonably compensate Dalton
    Delaune for his damages, if any, resulting from the death of Crystal Delaune?
    Consider the elements of damages listed below and none other. Consider each element
    separately. Do not award any sum of money on any element if you have otherwise, under some other
    element, awarded a sum of money for the same loss. That is, do not compensate twice for the same
    loss, if any. Do not include interest on any amount of damages you find.
    Answer separately, in dollars and cents, for damages, if any.
    Do not consider, discuss, or speculate whether any party is or is not subject to any damages
    limit under applicable law.
    1.     Pecuniary loss sustained in the past.
    "Pecuniary loss" means the loss of the care, maintenance, support, services, advice, counsel,
    and reasonable contributions of a pecuniary value, excluding loss of inheritance, that Dalton
    Delaune, in reasonable probability, would have received from Crystal Delaune had she lived.
    Answer:$     7, s-00. GO
    2.     Pecuniary loss that, in reasonable probability, Dalton Delaune will sustain in the
    future.
    Answer:$       20io:o ,[50
    '
    3.     Loss of companionship and society sustained in the past.
    "Loss of companionship and society" means the loss of the positive benefits flowing from
    the Jove, comfort, companionship, and society that Dalton Delaune, in reasonable probability, would
    have received fmm Crystal Delaune had she lived.
    Answer:$         7 1-s--00 .00
    4.      Loss of companionship and society that, in reasonable probability, Dalton Delaune
    will sustain in the future.
    Answer:   $_--l2:...--+/-c;'-----O--"()"--~_C:J_6_ __
    Page 379
    ''
    u
    5.    Mental anguish sustained in the past.
    "Mental anguish" means the emotional pain, torment, and suffering experienced by Dalton
    Delaune because of the death of Crystal Delaune.
    Answer: $     2 1c:;-o () ,D0
    6.    Mental anguish that, in reasonability probability, Dalton Delaune will sustain in the
    future.
    Answer: $   (_...)   S()Q . 00
    In determining damages elements for 3, 4, 5, and 6, you may consider the relationship
    between Dalton Delaune and Crystal Delaune, their living arrangements, any extended absences
    from one another, the harmony of their family relations, and their common interests and activities.
    Page 380
    Answer Question 4 if you answered "Yes" for Question 1. Otherwise, do not answer
    Question 4.
    QUESTION4
    What sum of money, if paid now in cash, would fairly and reasonably compensate Destiny
    Delaune for her damages, if any, resulting from the death of Crystal Delaune?
    Consider the elements of damages listed below and none other. Consider each element
    separately. Do not award any sum of money on any element if you have otherwise, under some other
    element, awarded a sum of money for the same loss. That is, do not compensate twice for the same
    loss, if any. Do not include interest on any amount of damages you find.
    Answer separately, in dollars and cents, for damages, if any.
    Do not consider, discuss, or speculate whether any party is or is not subject to any damages
    limit under applicable law.
    1.      Pecuniary loss sustained in the past.
    "Pecuniary loss" means the loss of the care, maintenance, support, services, advice, counsel,
    and reasonable contributions of a pecuniary value, excluding loss of inheritance, that Destiny
    Delaune, in reasonable probability, would have received from Crystal Delaune had she lived.
    Answer:$      ]    \   S"o-D • 00
    2.      Pecuniary loss that, in reasonable probability, Destiny Delaune will sustain in the
    future.
    Answer:$     L     &,QOD •CO
    3.                     '
    Loss of companionship and society sustained in the past.
    "Loss of companionship and society" means the loss of the positive benefits flowing from
    the love, comfort, companionship, and society that Destiny Delaune, in reasonable probability, would
    have received from Crystal Delaune had she lived.
    Answer:$     '2! .:;00 • a0
    4.      Loss of companionship and society that, in reasonable probability, Destiny Delaune
    will sustain in the future.
    Answer:$     "2 1r;-Q() • DO
    Page 381
    u
    5.    Mental anguish sustained in the past.
    "Mental anguish" means the emotional pain, torment, and suffering experienced by Destiny
    Delaune because of the death of Crystal Delaune.
    Answer: $   2    1
    I
    c;-Q 0 • (j)
    6.    Mental anguish that, in reasonability probability, Destiny Delaune will sustain in the
    future.
    Answer:$    2, SO 0                , 60
    In determining damages elements for 3, 4, 5, and 6, you may consider the relationship
    between Destiny Delaune and Crystal Delaune, their living arrangements, any extended absences
    from one another, the harmony of their family relations, and their common interests and activities.
    Page 382
    Answer Question 5 if you answered "Yes" for Question 1. Otherwise, do not answer
    Question 5.
    QUESTIONS
    What sum of money, if paid now in cash, would fairly and reasonably compensate Dee Ann
    Delaune for her damages, if any, resulting from the death of Crystal Delaune?
    Consider the elements of damages listed below and none other, Consider each element
    separately. Do not award any sum of money on any element if you have otherwise, under some other
    element, awarded a sum of money for the same loss. That is, do not compensate twice for the same
    loss, if any. Do not include interest on any amount of damages you find.
    Answer separately, in dollars and cents, for damages, if any.
    Do not consider, discuss, or speculate whether any party is or is not subject to any damages
    limit under applicable law.
    1. Pecuniary loss sustained in the past.
    "Pecuniary loss" means the loss of the care, maintenance, support, services, advice, counsel,
    and reasonable contributions of a pecuniary value, excluding loss of inheritance, that Dee Ann
    Delaune, in reasonable probability, would have received from Crystal Delaune had she lived.
    Answer:$    7J SCJO , 00
    2.     Pecuniary loss that, in reasonable probability, Dee Ann Delaune will sustain in the
    future.
    Answer:$    3 G, OOQ,                crtl
    3. Loss of companionship and society sustained in the past.
    "Loss of companionship and society" means the loss of the positive benefits flowing from
    the love, comfort, companionship, and society that Dee Ann Delaune, in reasonable probability,
    would have received from Crystal Delaune had she lived.
    Answer: $   L      ..;1}0 • CO
    4.      Loss of companionship and society that, in reasonable probability, Dee Ann Delaune
    will sustain in the future.
    Answer: $    2 1 5{)()         • 06
    Page 383
    5. Mental anguish sustained in the past.
    "Mental anguish" means the emotional pain, torment, and suffering experienced by Dee Ann
    Delaune because of the death of Crystal Delaune.
    Answer: $   2 1 £00             . OD
    6.     Mental anguish that, in reasonability probability, Dee Ann Delaune will sustain in the
    future.
    Answer:$    2,     ~ 0 • 00
    In determining damages elements for 3, 4, 5, and 6, you may consider the relationship
    between Dee Ann Delaune and Crystal Delaune, their living arrangements, any extended absences
    from one another, the harmony of their family relations, and their common interests and activities.
    Page 384
    .·
    Answer Question 6 if you answered "Yes" for Question 1. Otherwise, do not answer
    Question 6.
    QUESTION6
    What sum of money would have fairly and reasonably compensated Crystal Delaune for-
    1.     Pain and mental anguish.
    "Pain and mental anguish" means the conscious physical pain and emotional pain, torment,
    and suffering experienced by Crystal Delaune before her death as a result of the occurrence in
    question.
    Answer in dollars and cents for damages, if any.
    Answer: $, _ _ _     0=---..!•--=0~Q"'
    2.     Funeral and burial expenses.
    "Funeral and burial expenses" means the reasonable amount of expenses for funeral and
    burial for Crystal Delaune reasonably suitable to her station in life.
    Answer in dollars and cents for damages, if any.
    Answer: $    )   1   dOQ • 00
    •
    Page 385
    .•
    u
    PRESIDiNG JUROR
    1.     When you go into the jury room to answer the questions, the first thing you will
    need to do is choose a presiding juror.
    2.     The presiding juror has these duties:
    a.      have the complete charge read aloud if it will be helpful to your deliberations;
    b.      preside over your deliberations, meaning manage the discussions, and see that
    you follow these instructions;
    c.      give written questions or comments to the bailiff who will give them to the
    judge;
    d.      write down the answers you agree on;
    e.      get the signatures for the verdict certificate; and
    f.      notify the bailiff that you have reached a verdict.
    Do you understand the duties of the presiding juror? If you do not, please tell me now.
    INSTRUCfiONS FOR SIGNING THE VERDICT CERTIFICATE
    L      You may answer the questions on a vote of ten jurors. The same ten jurors must agree
    on every answer in the charge. This means you may not have one group of ten jurors agree on one
    answer and a different group of ten jurors agree on another.
    2.      If ten jurors agree on every answer, those ten jurors sign the verdict.
    If eleven jurors agree on every answer, those eleven jurors sign the verdict.
    If all twelve of you agree on every answer, you are unanimous and only the presiding juror
    signs the verdict.
    3.     All jurors should deliberate on every question. You may end up with all twelve of you
    agreeing on some answers, while only ten or eleven of you agree on other answers. But when you
    sign the verdict, only those then who agree on every answer will sign the verdict.
    L.RUSSELL
    atJlfGE PRESIDING, rn' DISTRICT COURT
    Page 386
    '   .'                            .._.
    t "
    VERDICT CERTIFICATE
    Check one:
    Our verdict is unanimous. All twelve of us have agreed to each and every answer. The
    presiding juror has signed the certificate for all twelve of us.
    Signature of Presiding Juror                       Printed Name of Presiding Juror
    ~    :;;: ~
    (/)
    :s     0
    --c
    Our verdict is not unanimous. Eleven of us have agreed to each and every ~-~- an~ave~ ~
    signed the certificate below.                                                        J  "' ~;)_ ,J :.!}
    ``  N   .. 1Jr
    c    -"'       -1()[Tl
    Our verdict is not unanimous. Ten of us have agreed to each and every a swe?~n~ve -:; '~) 0
    signed the certificate below.                                                 F:~' -_:           S SJ
    ~      S2 Cf?        :D (f)
    Signature                                   Name Printed    =<     2n 'c:!       ?'
    1.                                                  m/ffls!ln          tJl-tT2(<:~ 1-1/
    2.                                               -----~'-\l r;t k 1    V\.1
    3.                                                 }.. " d ceo- 2:, . \.D~,IS.:u-.n
    4.
    Srd.c¥ 7'
    5.
    6.
    7.
    8.
    9.
    10.
    11.
    Page 387
    APPENDIX- ''C''
    CIIIN ~o. 13..o984-A
    JOPY PELAVNE,lndlvldully;1111d
    u Ptnoaal RtprtHntadvt of tilt Ettatt
    of CRYSTAL DELAUNE, 0.1...S;
    •
    I
    f
    lDthe
    and at ~m Frltnd of DALTON                               I
    DELAt~ DESTINY DELAU!'I'E,                               I
    ud DEE AN.'i DELAUNE, Millon,                            I
    I
    Plaladtrt,                                        0
    I
    y,                                                                              SMlm COtlNTY, TEXAS
    I
    EAST TEXAS MEDICAL CENTER                                ••
    EMS. LINDA MOORE, 1111d
    U.'iDY SPUllGERS,                                        •
    I
    'I                      7tll Jt'DJCIAL DISTRICT
    Order on •• d a• P a'!
    w2!!!   LILli       Ill      1   mDefeudantt• Tradltlonal•lld No-Evldtnee Motlont for
    Symmanr JudmtP' RnKJUPI WQfulgr Waptgp, Ngltsgs;c
    Dtfen&na Eul Toxu Me4le.t Center dlb/a Ban Texu Medical Cent.. Emerpncy
    Me4lcal Servicet, Linda Moore, and Lindy Spuraert (toitltber, "Dtfcnduta'')                           preNtttod   lhe!r
    Reply to Pllint!fli' Rctpoi\IC to Dcfemllnll' Tl'lditional and No·Evldence MoliO!If for SlllnliWY
    Judammt RcprdlnJ Wilful or Wcton                   :-le,U&a~ce     in nt tl)r
    S``~M>J~Y JlldF"oat "'fOI'dlnl Wilful or WlftiOn ~IJ!lson~- P111 I
    Page 365
    All relief not npnuly J!ID~fd h«ein iJ ~td.
    StG:\'ID thil   ~day of..-ru:;o..---1--A.'-~
    Otdlt 011 c.,.,.,..• k'!'lr
    "'PW.``·    Jl.o-10 011\a!ao!l' TIICIIUonll lad s..!vid- M~oN tor
    SIIIMIII'l' Judi!UIIIIltp'du~J Wllr.l Of WMIOft ll'lll...oo • P111 2
    Page 366
    APPENDIX- ''D''
    Page I
    LexisNexis@
    MICHAEL B. WANSEY, INDIVIDUALLY AND D/B/A RIO GRANDE DEFEN-
    SIVE DRIVING SCHOOL, PETITIONER, v. CHERYL D. HOLE, RESPONDENT
    NO. 11-0348
    SUPREME COURT OF TEXAS
    
    379 S.W.3d 246
    ; 2012 Tex. LEXIS 559; 55 Tex. Sup. J. 1093
    June 29, 2012, Opinion Delivered
    SUBSEQUENT HISTORY:              Released for Publica-     cordingly, pursuant to Texas Rule of Appellate Proce-
    tion August 17,2012.                                       dure 59.1, without hearing oral argument we reverse the
    Motion for rehearing on petition for review denied by      court of appeals' judgment and render judgment for peti-
    Wansey v. Hole, 2012 Tex. LEXIS 648 (Tex., Aug. 17,        tioner.
    2012)
    Cheryl and Ronald Hole, both attorneys, enrolled
    their minor daughter in a driving [**2] school owned
    PRIORHISTORY: [**I]
    and operated by Michael B. Wansey. One evening, when
    ON PETITION FOR REVIEW FROM THE COURT
    Ronald arrived at the business to pick up his daughter, he
    OF APPEALS FOR THE THIRTEENTH DISTRICT OF
    was unable to find her inside. He proceeded to a door
    TEXAS.
    that stood ajar at the back of the building. Opening the
    Wansey v. Hole, 2011 Tex. App. LEXIS 2594 (Tex. App.
    door, Ronald found her standing outside, in the dark,
    Corpus Christi, Apr. 7, 2011)
    backing away from one of her driving instructors. Ronald
    suspected that they had engaged in inappropriate behav-
    ior, but both his daughter and the instructor denied any
    COUNSEL: For Wansey, Michael B., PETITIONER:
    wrongdoing.
    Mr. William L. Hubbard, Attorney at Law, Edinburg TX;
    Mr. Steve Efthimiou, Attorney at Law, Brownsville TX;          Thereafter, the Holes removed their daughter from
    Mr. Thomas G. Rayfield, Law Offices of Thomas Ray-         the course and demanded a full refund from Wansey,
    field, McAllen TX; Mr. Jason Roger Mann, Jason R           since she would have to start a new course from the be-
    Mann & Associates, HARLINGEN TX.                           ginning. Wansey refused to offer any explanation for the
    instructor's behavior, and disclaimed any responsibility
    For Hole, Cheryl D., RESPONDENT: Ms. Ida Cecilia           for his employee's behavior after class hours. Wansey
    Garza, Gault Nye & Quintana LLP, McAllen TX; Mr.           also refused to issue a full refund, but instead sent a
    Ronald G. Hole, Hole & Alvarez, L.L.P., McAllen TX.        check for only eighteen dollars--the pro-rated cost of the
    four hours of instruction remaining in the course.
    OPINION
    Cheryl Hole--the lone plaintiff in this case--sued
    [*246] PER CURIAM                                     Wansey, not for harm endured by her daughter in the
    allegedly inappropriate incident with the driving instruc-
    In this case, we must decide whether a plaintiff may
    tor, but for the cost of the driving course, alleging breach
    recover on a claim for negligent hiring and supervision
    of contract and grossly negligent [**3] or malicious
    despite suffering [*24 7] no harm at the hands of the
    hiring, training, supervision, or retention. The jury re-
    employee who was allegedly negligently hired. We hold
    tumed a verdict in favor of Hole, finding that Wansey's
    that a negligent hiring claim requires that some harmful
    negligent conduct had proximately caused harm to Hole
    or negligent conduct of an employee--one hired pursuant
    and that Wansey had breached the contract. The jury
    to the defendant's negligent hiring or supervision prac-
    awarded Hole $225 (the cost of the course) in compen-
    tices--proximately caused the injury complained of. Ac-
    satory damages, $5,000 in attorney fees, and $15,000 in
    Page 2
    379 S,W.3d 246, *; 2012 Tex. LEXIS 559, **;
    55 Tex. Sup. J. 1093
    exemplary damages. The court of appeals reversed the          sey's [**5] driving schooL Even had Cheryl Hole sued
    breach of contract claim and the award of attorney fees,      on behalf of her daughter, she presented no evidence that
    but affirmed the negligent hiring judgment and the com-       the driving instructor actually engaged in inappropriate
    pensatory and punitive damages.         S.W.3d     , The      behavior--indeed, Ronald Hole conceded in his trial tes-
    court of appeals reasoned that Hole sustained harm in the     timony that he does not know that anything illegal hap-
    form of the un-refunded cost of the driving course, and       pened, but rather just thought the situation was inappro-
    that Wansey's negligent hiring practices proximately          priate. Hole also presented no evidence that proper hiring
    caused those damages. We disagree.                            and supervision policies would have prevented the inci-
    dent, or that her daughter suffered any harm. Rather, the
    Though we have never expressly set out what duty
    only harm presented in this case was the purely econom-
    an employer has in hiring employees, or said that a neg-
    ic harm--caused to Cheryl as an indirect result of the
    ligent hiring claim requires more than just negligent hir-
    alleged incident--of the loss of the driving course tnition.
    ing practices, there is a broad consensus among Texas
    Besides being an indirect, attenuated harm, the loss of
    courts that such a claim requires that the plaintiff suffer
    the tnition was harm to the subject matter of the contract
    some damages from the foreseeable misconduct of an
    between the Holes and Wansey, which is not recoverable
    employee hired pursuant to the defendant's negligent
    in tort. 1 See Sw. Bell Tel. Co. v. DeLanney, 809 S. W.2d
    practices. See Brown v. Swett & Crawford of Tex., Inc.,
    493, 494 (Tex. 1991); Sterling Chems., Inc. v. Texaco
    
    178 S.W.3d 373
    , 384 (Tex. App.--Houston [1st Dist.]
    Inc., 
    259 S.W.3d 793
    , 796 (Tex. App.--Houston [1st
    2005, no pet.) [**4] ("To prevail on a claim for negli-
    Dist.] 2007, pet. denied) ("Simply stated, under the eco-
    gent hiring or supervision, the plaintiff is required to
    nomic loss rule, a duty in tort does not lie when the only
    establish not only that the employer was negligent in
    injury claimed is one for economic damages recoverable
    hiring or supervising the employee, but also that the em-
    under a breach of contract claim. 11 ) ,
    ployee committed an actionable tmi against the plain-
    tiff."); Gonzales v. Willis, 
    995 S.W.2d 729
    , 739 (Tex.
    The court [**6] of appeals found the evi-
    App, --San Antonio 1999, no pet.) overruled in part on
    dence legally insufficient to support the jury's
    other grounds by Hoffinann-La Roche Inc. v. Zeltwanger,
    breach of contract finding, and Hole did not ap-
    
    144 S.W.3d 438
    , 447-48 (Tex. 2004); Mackey v. U.P.                  peal that finding to this Court.
    Enters., Inc., 
    935 S.W.2d 446
    , 459 (Tex. App.--Tyler
    1996, no writ). We have explicitly established this re-            A negligence finding requires a duty, breach, and
    quirement in negligent [*248] entrustment cases,              damages proximately caused by that breach. Doe v. Boys
    which are factually similar to negligent hiring claims.       Clubs., 
    907 S.W.2d 472
    , 477 (Tex. 1995). Because Hole
    Schneider v. Esperanza Transmission Co., 744 S, W.2d          presented no evidence of harm caused by an employee
    595, 596 (Tex. 1987) ("[T]here must be a showing , , ,        hired pursuant to Wansey's hiring policies, we hold she
    that the [employee] driver's negligence proximately           did not present legally sufficient evidence of damages
    caused the accident."); see also TXI Transp. Co. v.           proximately caused by Wansey's alleged negligence. We
    Hughes, 
    306 S.W.3d 230
    , 240 (Tex. 2010) (concluding          reverse the judgment of the court of appeals insofar as it
    that negligent hiring should have a similar requirement to    affirmed the award of compensatory and exemplary
    negligent entrustment cases, which requires that the em-      damages for negligent hiring and supervision, and render
    ployee's negligent conduct harm the plaintiff).               judgment for Wansey. In all other respects the court of
    appeals' judgment is affirmed.
    In this case, Hole did not present legally sufficient
    evidence of any harm caused by an employee of Wan-                OPINION DELIVERED: June 29, 2012
    APPENDIX- ''E''
    Page I
    LexisNexis®
    W AL-MART STORES, INC. and Wayne Cruickshank, Appeiiants v. Ignacio
    AGUILERA-SANCHEZ, Individually and as Surviving Spouse/Heir of Irene
    Aguilera and as Next Friend of Marina Aguilera, a Minor, Veronica Aguilera and
    Ignacio Aguilera, Children and Statutory Heirs of Irene Aguilera, Appellees
    No. 04-02-00458-CV
    COURT OF APPEALS OF TEXAS, FOURTH DISTRICT, SAN ANTONIO
    2003 Tex. App. LEXIS 4846
    June 11, 2003, Delivered
    June 11, 2003, Filed
    SUBSEQUENT HISTORY:              Released for Publica-
    Appeiiants Wai-Mart Stores, Inc. ("Wai-Mart") and
    tion January 27, 2004.
    Wayne Cruickshank appeal the trial court's judgment
    Petition for review denied by Aguilera-Sanchez v.
    arguing that there is insufficient evidence to support the
    Wal-Mart Stores, Inc., 2004 Tex. LEXIS 33I (Tex., Apr.
    jury's findings, that the trial court erroneously denied
    9, 2004)
    their motion to transfer venue, and that the judgment
    Motion for rehearing on petition for review denied by
    improperly awards a double recovery. Because we find
    Aguilera-Sanchez v. Wa/-Mart Stores, Inc., 2004 Tex.
    that the evidence is legally insufficient to support the
    LEXIS 1373 (Tex., July I6, 2004)
    jury1s findings of malicious prosecution, intentional in-
    fliction of emotional distress, and negligent hiring, we
    PRIOR HISTORY:           [*I] From the 229th Judicial
    reverse and render judgment in favor of Wal-Mart and
    District Court, Starr County, Texas. Trial Court No.
    Cruickshank.
    DC-95-61. Honorable Alex W. Gabert, Judge Presiding.
    BACKGROUND
    DISPOSITION:        REVERSED AND RENDERED.
    Cruickshank, a loss prevention investigator for
    Wal-Mart had received an internal Wal-Mart report de-
    COUNSEL: FOR APPELLANTS: Chad M. Forbes,                   scribing the infamous "Mickey Mouse" gang. This gang
    Lucy Haroutunian, Thomas C. Wright, The Wright Law         had been shoplifting from Wal-Mart and other retailers.
    Firm, Houston, TX. Russeii H. McMains, Law Offices         According to the report, the modus operandi [*2] of the
    OfRusseii H. McMains, corpus Christi, TX.                  gang was to use juveniles to steal the merchandise while
    the adults acted as look-outs. The juveniles would line
    FOR APPELLEES: Thomas H. Crofts, Jr., Christopher          the shopping baskets with cardboard paper, place mer-
    A. Lotz, Crofts & Caiiaway, P.C., San Antonio, TX,         chandise in the basket, and then place clothing on top of
    James P. Sharp, Jr., Sharp Law Firm, Houston, TX.          the basket to hide the merchandise. The juveniles would
    then walk out with the merchandise. If the juveniles were
    JUDGES: Opinion by: Karen Angelini, Justice. Dis-          apprehended leaving the store, the adults could flee the
    senting opinion by: Alma L. Lopez, Chief Justice. Sit-     scene and avoid prosecution. Meanwhile, the juveniles
    ting: Alma L. Lopez, Chief Justice, Karen Angelini, Jus-   would eventuaiiy be released from police custody with-
    tice, Phylis J. Speedlin, Justice.                         out facing prosecution.
    OPINION BY: Karen Angelini                                      On the afternoon of June 15, 1994, Cruickshank ob-
    served two Hispanic juvenile males in the stationary de-
    partment take colored poster paper from the shelf and
    OPINION
    line two shopping carts with the paper. Cruickshank then
    Page 2
    2003 Tex. App. LEXIS 4846, *
    saw the juveniles push the shopping carts into the elec-            Cruickshank received a call at home from the Round
    tronics department where they were directed by adults to       Rock Police Department asking that he come in for a
    place merchandise into the shopping carts. As the juve-        photo line-up. Using the photos from DPS, Officer Rob-
    niles attempted to leave the electronics department with       ert Shumaker presented Cruickshank with a photo
    the merchandise, Cruickshank intercepted the juveniles         line-up. From the line-up, Cruickshank identified Maria
    and detained them for questioning. While the juveniles         Cristina Flores, Judy Martinez, Annette Perez, Carmen
    were being detained, all of the adults, except a man and a     Solis, Felipe Rios Hernandez, and Irene Perez Aguilera
    woman whom Cruickshank suspected were the juveniles'           (the plaintiff in the underlying lawsuit). Cruickshank
    parents, [*3] left the store. Cruickshank interrogated         then prepared a second, much more detailed statement in
    the juveniles in a back room in front of these "suspected 11   which he names all of the adults who aided the juveniles.
    parents; however, the "suspected 11 parents and the juve-
    niles all denied knowiug one another. Cruickshank then              On the day the juveniles were arrested, Judy Mar-
    tinez, also identified as a suspect by Cruickshank, had
    called the Round Rock Police Department. Sergeant Jack
    Abbott was dispatched to the store. When Abbott ar-            gone to the Round Rock police station and attempted to
    rived, the "suspected" parents left the store. The man left    claim the juveniles. Officer Abbott told her that she
    needed to come back with proof that the juveniles be-
    in a black Chevrolet Blazer while the women departed in
    longed to her. On the same day that Cruickshank made
    an orange Chevrolet.
    the photo identifications, Martinez was driving back
    According to Cruickshank, there were five security     from Houston with the necessary proof for one of the
    cameras in the electronics department. Two cameras in          juveniles. The guardian of the other juvenile was Irene
    the ceiling were not working. Two camcorders on the            Aguilera1s mother. Because Aguilera 1s mother was el-
    back aisle acted as security cameras and were placed at        derly and disabled, Aguilera accompanied her mother to
    shoulder level. The final camera was in the ceiling and        Round Rock to pick up the juvenile. They both rode with
    had a view of the cash register shooting down the front        [*6] Martinez. When the threesome arrived at the juve-
    aisle of the electronics department. Although Cruick-          nile detention facility, Officer Abbott received a call
    shank testified at trial that he had not reviewed the vide-    informing him that they were there. Now armed with
    otape from this final camera, he admitted that he would        Cruickshank's identifications and written statements,
    have been able to see the shoplifters had he watched it.       Abbott acquired arrest warrants for Aguilera and Mar-
    Cruickshank testified that he gave Abbott the only vide-       tinez. Aguilera and Martinez were arrested at the deten-
    otape showing the incident and that he did not make a          tion center. Aguilera was in jail for a month before her
    copy. However, at trial, Abbott could not remember re-         family could accumulate the money for her bail. Ac-
    ceiving a videotape. Moreover, although [*4] Wal-Mart          cording to Aguilera, she was physically assaulted during
    policy requires employees to document the distribution         this time in jail. After she made bail, she was under
    of such a vid.eotape to the police department in an evi-       house arrest. As a result of her arrest and detention,
    dence log, Cruickshank failed to log the distribution of       Aguilera developed post-traumatic stress disorder. The
    this videotape to the Round Rock Police Department.            District Attorney's office later dismissed the charge of
    engaging in organized criminal activity against her. At
    At 6:00p.m. on the evening of the incident, Cruick-
    trial, the mailman responsible for delivering the mail to
    shank prepared a voluntary statement for the police in
    Aguilera's home testified that Aguilera met him at the
    which he affirms that he observed two Hispanic juvenile
    door of her Houston home on June 15, 1994 and could
    males remove merchandise from the shelves; he also
    not have been in Round Rock committing shoplifting.
    affirms that he saw a Hispanic female aid the juvenile
    Aguilera also testified that she was at home on the day in
    males. Two days after the juveniles were taken into cus-                   1
    question.
    tody, Abbott met with Detective Hamby, an officer with
    the Houston Police Department, John Smith, a Wal-Mart
    I       Because Aguilera died before trial, her depo-
    employee with their Investigative Task Force, and Steve
    sition testimony was read into the record.
    Vina, another loss-prevention employee with Target.
    Detective Hamby, who had been investigating this                    [*7]       Aguilera filed suit against Wal-Mart and
    11
    Mickey Mouse11 gang, had a list of suspects, along with   Cruickshank, alleging claims of malicious prosecution,
    their drivees license numbers and/or Texas Identification      intentional infliction of emotional distress, and negligent
    Card Numbers. Using Hamby's list of suspects, Abbott           hiring. At trial, the jury found that Wal-Mart and
    called the Texas Department of Public Transportation           Cruickshank maliciously prosecuted Aguilera and inten-
    and requested copies of the photographs on the driver's        tionally inflicted emotional distress upon her. The jury
    licenses and identification cards for these suspects. Ab-      also found that Wal-Mart was negligent in its hiring of
    bott then retrieved the photographs from the Austin [*5]       Cruickshank. Based upon the affirmative liability find-
    office of the DPS.                                             ings as to the malicious prosecution and intentional in-
    Page 3
    2003 Tex. App. LEXIS 4846,   *
    fliction of emotional distress claims, the jury awarded       S.W.2d 917, 921, 
    27 Tex. Sup. Ct. J. 23
    (Tex. 1983). The
    actual damages in the amount of $ 6.5 million. Based          probable cause inquiry asks whether a reasonable person
    upon its finding of negligent hiring, the jury awarded an     would believe a crime had been committed, given the
    additional $ 6.5 million in actual damages. The jury also     facts as the defendant honestly and reasonably believed
    assessed$ 3,700 in exemplary damages against Cruick-          them to be before the criminal proceedings were insti-
    shank and $ I in exemplary damages against Wal-Mart.          tuted. 
    Id. The question
    is not what the actual facts were,
    The final judgment awards plaintiffs approximately $ 20       but what the [* 10] defendant honestly and reasonably
    million. Wal-Mart and Cruickshank appeal.                     believed the facts to be. Closs v. Goose Creek Canso/.
    ISD, 
    874 S.W.2d 859
    , 877 (Tex. App.--Texarkana 1994,
    STANDARD OF REVIEW                                            no writ). When the facts underlying the defendant's deci-
    sion to prosecute are disputed, the trier of fact is charged
    In their first three issues, Wal-Mart and Cruickshank
    with resolving conflicts in the evidence to determine if
    contend that there is legally and factually insufficient
    probable cause exists. 
    Richey, 952 S.W.2d at 518
    . If the
    evidence to support the jury's findings on malicious
    facts are uncontested, then the question of whether de-
    prosecution, intentional infliction of emotional distress,
    fendant acted based upon probable cause becomes a
    and negligent hiring. In reviewing a "no [*8] evidence"
    question of Jaw to be decided by the court. 
    Id. issue, we
    must view the evidence in a light that tends to
    support the finding of the disputed fact and disregard all         Appellees argue that Cruickshank acted without
    evidence and inferences to the contrary. Bradford v.          probable cause because he unreasonably failed to review
    Vento, 
    48 S.W.3d 749
    , 754, 
    44 Tex. Sup. Ct. J. 655
    (Tex.     the Wal-Mart videotape that he admits would have
    2001). If there is more than a scintilla of evidence to       shown the perpetrators of the crime. While it is true that
    support the finding, the finding will be upheld. Formosa      Cruickshank could have reviewed the videotape to con-
    Plastics Corp. USA v. Presidio Engineers & Contrac-           firm the identity of the suspects, the proper inquiry is not
    tors, Inc., 
    960 S.W.2d 41
    , 48, 
    41 Tex. Sup. Ct. J. 289
           whether Cruickshank was negligent in failing to view the
    (Tex. 1998). In reviewing a factual sufficiency point, we     videotape; the proper inquiry is whether a reasonable
    are required to weigh all of the evidence in the record.      person would have believed that Aguilera had committed
    Tex. Dep't of Mental Health & Mental Retardation v.           the offense of shoplifting. It is undisputed that Cruick-
    Rodriguez, 
    63 S.W.3d 475
    , 480 (Tex. App.--San Antonio        shank witnessed individuals shoplifting and that after
    2001, pet. denied). Findings may be overturned only if        looking at the picture of Aguilera [*II] in the photo
    they are so against the great weight and preponderance of     line-up, he thought that Aguilera was the woman he saw
    the evidence as to be clearly wrong and unjust. 
    Id. aiding the
    juveniles. These undisputed facts amount to
    probable cause.
    MALICIOUS PROSECUTION
    Appellees also argue that there is evidence of proba-
    There are seven elements of a malicious prosecution       ble cause because the jury could infer that Cruickshank
    claim in Texas: (1) the commencement of a criminal            withheld the videotape from the police. It is immaterial,
    prosecution against the plaintiff; (2) initiation or pro-     however, to the probable cause inquiry that the defendant
    curement of the prosecution by the defendant; (3) termi-      did not fully and fairly disclose all material information.
    nation of the prosecution in the plaintiffs favor; (4) the    In Richey v. Brookshire Grocery Co., 
    952 S.W.2d 515
    ,
    plaintiffs innocence; (5) the lack of probable [*9] cause     519, 
    40 Tex. Sup. Ct. J. 839
    (Tex. 1997), the Texas Su-
    for the proceedings; (6) malice in filing the charge; and     preme Comt held that failing to fully and fairly disclose
    (7) damage suffered by the plaintiff. Richey v. Brook-        all material infmmation and knowingly providing false
    shire Grocery Co., 
    952 S.W.2d 515
    , 517, 40 Tex. Sup. Ct.      information to the prosecutor are relevant to the malice
    J. 839 (Tex. 1997). According to Wal-Mart and Cruick-         and causation elements of a malicious prosecution claim
    shank, there is legally and factually insufficient evidence   but have no bearing on probable cause .... The probable
    (!) that Cruickshank initiated or procured Aguilera's         cause inquiry asks only whether the complainant rea-
    prosecution, (2) that the criminal case terminated in         sonably believed that the elements of a crime had been
    Aguilera's favor, (3) that Cruickshank lacked probable        committed based on the information available to the
    cause, and (4) that Cruickshank acted with malice. We         complainant before criminal proceedings began. When a
    hold that there is legally insufficient evidence that         complainant reasonably believes a crime has occmred;
    Cruickshank lacked probable cause.                            the reasonableness of that belief is not negated by the
    failure to fully disclose all relevant facts to the officer.
    In the context of malicious prosecution, probable
    Thus, the extent [*12] of the disclosure to the prosecu-
    cause is defined as the existence of those facts and cir-
    tor is not probative of lack of probable cause, but rather
    cumstances that would excite a belief in a reasonable
    indicates whether the complainant may have acted with
    person, acting on the facts within his knowledge, that the
    person charged was guilty of a crime. Akin v. Dahl, 661
    Page 4
    2003 Tex. App. LEXIS 4846,     *
    malice or may have, by knowingly providing false· in-            trespassing charges against Vento if he returned. 
    Id. at formation,
    caused the prosecution.                               758. Bradford did not inform the police that there was a
    dispute over the ownership of the store. See 
    id. The su-
         There is, therefore, legally insufficient evidence to·
    preme court held that Bradford's conduct was not ex-
    support the jury's finding of lack of probable cause. We
    treme and outrageous, noting that Bradford was trying to
    sustain this issue.
    quell the disturbance in the mall, which he was within his
    legal rights to do. 
    Id. The court
    emphasized,
    INTENTIONAL INFLICTION OF EMOTIONAL
    DISTRESS                                                              Although Bradford could certainly have given the
    police more information than he did, his failure to do so
    Additionally, Wal-Mart and Cruickshank argue that
    was not extreme and outrageous. By responding to the
    there is no evidence to support the jury's finding on in-
    police officer1s question, Bradford was merely exercising
    tentional infliction of emotional distress. The elements of
    his rights as mall manager in a permissible way; without
    a cause of action for intentional infliction of emotional
    more his behavior does not amount to extreme and out-
    distress are (1) that the defendant acted intentionally or
    rageous conduct. [*15] 1d. at 759.
    recklessly, (2) that the defendant's conduct was extreme
    and outrageous, (3) that the defendant's conduct was di-              Here, like Bradford, Cruickshank was merely exer-
    rected at the plaintiff or at a third person in the plaintiffs   cising his legal right, in this case, his right to report that a
    presence, (4) that the defendant's conduct proximately           crime had occurred. And, like Bradford, while Cruick-
    caused the plaintiff emotional distress, and (5) that the        shank could have reviewed the videotape to be cet1ain of
    emotional distress suffered by the plaintiff was severe.         his identification and could have given the police the
    Morgan v. Anthony, 
    27 S.W.3d 928
    , 929, 43 Tex. Sup. Ct.         videotape, his failure to do so does not amount to ex-
    J. 1172 (Tex. 2000) (per curiam).                                treme and outrageous behavior. We decline to hold that
    simply failing to review a videotape and failing to give
    According to Wal-Mart and Cruickshank, there is no
    the videotape to the police is conduct so extreme and
    evidence that [*13] Cruickshank's conduct was extreme
    outrageous as to go beyond all possible bounds of de-
    and outrageous. Whether a defendant's conduct is 11 ex-
    cency. As such, we hold that there is legally insufficient
    treme and outrageous" is a question oflaw. Bradford, 48
    evidence to support the jury's finding that Cruickshank's
    S. W.3d at 758. The mere fact that a defendant's conduct
    conduct was extreme and outrageous. We sustain this
    is tortious or otherwise wrongful does not, standing
    issue.
    alone, necessarily render it nextreme and outrageous, 11 
    Id. Instead, to
    be "extreme and outrageous," conduct must be
    11                                                               NEGLIGENT HIRING
    SO outrageous in character, and so extreme in degree, as
    to go beyond all possible bounds of decency, and to be                Wal-Mart and Cruickshank also argue that there is
    regarded as atrocious, and utterly intolerable in a civi-        no evidence to support the jury's negligent hiring finding.
    lized community." Jd. (citation omitted).                        Claims against an employer for negligent hiring, super-
    vising, training, or retaining an employee are based on
    Appellees respond that Cruickshank's conduct was
    the theory of direct liability--not vicarious liability. La-
    extreme and outrageous because it is outrageous 11 for a
    Bella v. Charlie Thomas, Inc., 
    942 S.W.2d 127
    , 137 n.9
    person with the training, and vested with the authority,
    (Tex. App.--Amarillo 1997, writ denied). The elements of
    responsibility, and power of Cruickshank to withhold
    a cause of action [*16] for negligently hiring, supervis-
    exculpatory information from the police and utterly fail
    ing, training, or retaining an employee are the following:
    to review that information himself when levying an alle-
    (!) the employer owed the plaintiff a legal duty to hire,
    gation that was certain to result in the arrest of another
    supervise, train, or retain competent employees; (2) the
    human being, and likely to result in lengthy incarcera-
    employer breached that duty; and (3) the breach proxi-
    tion.n
    mately caused the plaintiffs injury. !d. at 13 7. However,
    In Bradford v. Vento, 
    48 S.W.3d 749
    , 44 Tex. Sup.          the employer cannot be held liable if the employee does
    Ct. J. 655 (Tex. 2001), Taylor and Vento, partners of a          not commit an actionable tort recognized under common
    sports memorabilia store had a dispute over whether              law. Gonzales v. Willis, 
    995 S.W.2d 729
    , 739-40 (Tex.
    [*14] Taylor had sold the store to Vento. On separate            App.--San Antonio 1999, no pet.). As such, negligent
    occasions, each partner told Bradford, the manager of the        hiring is a dependent tort. 
    Id. Here, there
    is no evidence
    mall in which the store was located, that he was the cur-        of an actionable tort committed by Cruickshank. We,
    rent owner of the store. One day, Taylor and Vento were          therefore, sustain this issue.
    in a heated argument in the store when one of them
    called the police. According to Vento, when asked by the         OTHER ISSUES
    police who owned the store, Bradford told the police that
    Taylor owned the store and threatened to file criminal
    Page 5
    2003 Tex. App. LEXIS 4846,   *
    Wal-Mart and Cruickshank also complain that the           the defendant's decision to prosecute are disputed, the
    trial court erroneously denied their motion to transfer        trier of fact must weigh the evidence and resolve con-
    1
    venue and that the judgment improperly awards double           flicts to determine if probable cause exists, as a mixed
    recovery. 2 Because we have sustained Wal-Mart and             question of law and fact." !d. The facts in this case could
    Cruickshank's first three issues, we need not reach these      not be more clearly in dispute. Cruickshank identified
    other issues.                                                  Aguilera as being involved in a theft offense. Aguilera
    testified that she was not present at the scene and had an
    2    Appellees concede in their brief that the          alibi to support her testimony.
    judgment does improperly award them double
    "Once [the] opposing parties have entered into a
    recovery.
    factual contest on the issue of probable cause, a factual
    issue is [*19] created for resolution by the trier of fact."
    [*17] CONCLUSION
    Akin v. Dahl, 
    661 S.W.2d 917
    , 920,
    27 Tex. Sup. Ct. J. 23
         As there is legally insufficient evidence to support      (Tex. 1983). "This is the cornerstone of our judicial sys-
    the jury's findings on malicious prosecution, intentional      tem." 
    Id. 111When the
    facts are in controversy the question
    infliction of emotional distress, and negligent hiring, we     of probable cause must necessarily go to the jury, and
    reverse the judgment of the trial court and render judg-       then the court must give such instruction as will enable
    ment in favor ofWal-Mart and Cruickshank.                      them to draw the correct conclusion from the facts as
    they may find them and the law thus given."' !d. (quoting
    Karen Angelini, Justice
    Landa v. Obert, 
    45 Tex. 539
    , 543 (Tex. 1876)) (citations
    omitted).
    DISSENT BY: Alma L. Lopez
    In the context of a malicious prosecution cause of
    DISSENT                                                        action, probable cause is defined as the existence of facts
    and circumstances that would excite a belief in a reason-
    DISSENTING OPINION                                             able person, acting on the facts within his knowledge,
    that the person charged is guilty of a crime. Richey, 952
    In finding that the evidence is legally insufficient to
    S.W.2d at 517. "The probable cause inquiry asks only
    support the probable cause element of the appellees' ma-
    whether the complainant reasonably believed that the
    licious prosecution claim, I believe the majority misap-
    elements of a crime had been committed based on the
    plies the applicable standard of review. For this reason, I
    information available to the complainant before criminal
    respectfully dissent.
    proceedings begin." !d. at 519.
    In conducting a legal sufficiency review, we review
    The key to the jury affirmatively finding no probable
    the evidence in a light that tends to support the finding of
    cause in this case is based on the facts it determined
    the disputed facts and disregard all evidence and infer-
    [*20] to be within Cruickshank's knowledge. Cruick-
    ences to the contrary. Lee Lewis Constl·., Inc. v. Harri-
    shank testified that a videotape existed that showed every
    son, 
    70 S.W.3d 778
    , 782, 
    45 Tex. Sup. Ct. J. 232
    (Tex.
    person involved in the offense. ' Cruickshank testified
    2001). If more .than a scintilla of evidence exists, the
    that he gave that videotape to Officer Abbott, but Officer
    evidence is legally sufficient. !d. More than a scintilla of
    Abbott did not recall receiving the videotape. No evi-
    evidence exists if the evidence furnishes some reasonable
    dence was introduced to prove that Cruickshank com-
    basis for differing conclusions by reasonable minds
    pleted a log showing that he had given Officer Abbott
    about a vital fact's existence, !d. at 782-83. Because a
    the videotape in accordance with company policy. Fur-
    court of appeals [*I 8] is not a fact finder, we may not
    thermore, neither the evidence receipt Cruickshank al-
    pass upon a witness's credibility or substitute our judg-
    legedly received from Officer Abbott nor the videotape
    ment for that of the jury, even if the evidence would
    was produced at trial. From this evidence, the jury could
    make a credibility determination that Cruickshank did
    clearly support a different result. Maritime Overseas
    not give Officer Abbott the videotape.
    Corp. v. Ellis, 
    971 S.W.2d 402
    , 406-07, 41 Tex. Sup. Ct.
    J. 683 (Tex. 1998).
    I Q: So, there's no question but had you looked
    During oral argument, counsel for the appellants re-             at the videotape you could have compared it be.-
    peatedly stated that the issue of probable cause was a                cause you know you're positively sure of your
    question of law. "Whether probable cause is a question                photo identifications, they would have jibed.
    of law or a mixed question of law and fact depends on
    A: Yes, sir.
    whether the parties dispute the underlying facts." Richey
    v. Brookshire GroceiJ> Co., 
    952 S.W.2d 515
    , 518, 40 Tex.           Cruickshank testified that he did not watch the vide-
    Sup. Ct. J. 839 (Tex. 1997). "When the facts underlying        otape, but he also knew that his job performance was
    Page 6
    2003 Tex. App. LEXIS 4846, *
    based upon the number of apprehensions [*21] he made                    2 Interestingly, Cruickshank received a com-
    and the dollar value of the prevented theft. ' From this                mendation letter and a raise for his actions relat-
    evidence, the jury could make a credibility determination               ing to the theft offense.
    that Cruickshank had watched the videotape and infer
    The reason the jury could [*23] have chosen to
    that the videotape would not have supported Cruick-
    simply disbelieve that Cruickshank honestly and reason-
    shank's identification of Aguilera. This inference is bol-
    ably believed that Aguilera was present during the of-
    stered by the evidence that Cruickshank identified at
    fense could not be more heavily documented in the rec-
    least one other individual as being involved in the of-
    ord. Cruickshank lied at his deposition about graduating
    fense who was not prosecuted based on alibi testimony.
    from high school. Cruickshank lied at his deposition
    Based on the evidence as a whole, the jury could have
    ~bout receiving certain awards and medals while serving
    disbeheved that the true facts within the knowledge of
    m the Navy. Cruickshank lied about needing authoriza-
    Cruickshank would excite a belief in a reasonable person
    tion from the President of the United States before dis-
    that Aguilera was guilty of a Ciime. See Akin, 661 S. I¥. 3d
    closing the reason for receiving one of those awards.
    at 921 (holding evidence supported jury finding of no
    Cruickshank admitted that he lied on his Wal-Mart ap-
    pr?bable cause where conflicting evidence was presented
    plication. Cruickshank's initial statement to the police
    with regard to whether a reasonable basis in the known
    Identified only one other female assisting two juveniles
    facts supported a belief that plaintiff was mentally in-
    with the theft by placing clothes on top of merchandise
    competent even though physician records supported
    in a shopping cart. Cruickshank did not identify
    fmdmg of mental incompetency); San Antonio Credit
    Aguilera's alleged role in acting as a lookout until his
    Union v. O'Connor, 2002 Tex. App. LEXIS 8406, No.
    second statement was taken two days later. The jury
    04-00-00714-CV, 
    2002 WL 31662054
    , at *7-8 (Tex.
    could have questioned whether Cruickshank honestly
    App.--San Antonio Nov. 27, 2002, no pet. h.) (holding
    believed that the additional individuals identified in his
    JUry could have found that complainant's belief [*22]
    second statement were present given Cruickshank's fail-
    that plaintiff misappropriated loan funds was unreasona-
    ure to initially mention them and given that Cruick-
    ble based on conflicting evidence); First Valley Bank of
    shank's performance was evaluated in part based on the
    Los Fresnos v. Martin, 55 S. I¥. 3d 172, 184 (Tex.
    nmnber of apprehensions he made. Finally, the jury
    App.--Corpus Christi 2001, pet. filed) (holding evidence
    [*24] could have believed that Cruickshank lied about
    supported no probable cause finding where evidence was
    giving Officer Abbott the videotape and about not view-
    presented that defendant could not have reasonably be-
    ing the videotape. In sum, the jury had every reason to
    lieved that plaintiff committed crime); King v. Graham,
    find that Cruickshank's testimony about the facts within
    47 S. I¥. 3d 595, 607-08 (Tex. App.--San Antonio 2001, no
    his knowledge was false and that the facts that were
    pet.) (holding more than a scintilla of evidence existed to
    within Cruickshank's knowledge would not excite a be-
    support finding of no probable cause where evidence was
    lief in a reasonable person that Aguilera was guilty of a
    offered to show that defendant's version of the facts was
    crime.
    inaccurate). "While the jury was not required to believe
    [Aguilera's] story and could have rejected it, it was cer-          Because I believe the majority passes upon the wit-
    tainly within the jury's province to accept it." Richey, 952   nesses' credibility and substitutes its judgment for that of
    S.W'.2d at 521 (Comyn, J., dissenting).                        the jury, I respectfully dissent.
    Alma L. Lopez, Chief Justice
    APPEND IX - ''F''
    Page I
    LexisNexis®
    James GONZALES, Appellant and Olga WILLIS, Appellant/Appellee v. Olga
    WILLIS, Appellee/Appellant and TOM BENSON CHEVROLET COMPANY, INC.,
    Appellee
    No. 04-97-00949-CV
    COURT OF APPEALS OF TEXAS, FOURTH DISTRICT, SAN ANTONIO
    
    995 S.W.2d 729
    ; 1999 Tex. App. LEXIS 3014
    April 21, 1999, Delivered
    April 21, 1999, Filed
    PRIOR HISTORY:          [**I] From the 73rd Judicial         [*732] OPINION ON APPELLEE'S MOTION FOR
    District Court, Bexar County, Texas. Trial Court No.        REHEARING
    96-CI-04401. Honorable Carlos C. Cadena, Judge Pre-
    Appellee Tom Benson Chevrolet Company's motion
    siding.
    for rehearing is granted. The prior opinions and judgment
    This Qpinion Substituted on Grant of Rehearing for      in this appeal, issued February 10, 1999, are withdrawn
    Withdrawn Opinion of February 10, 1999, Previously          and the following opinion and judgment are substituted
    Reported at: 1999 Tex. App. LEX!S 838.                      therefor.
    DISPOSITION:   REVERSED AND RENDERED IN                     INTRODUCTION
    PART; AFFIRMED IN PART
    Olga Willis sued James Gonzales and his employer,
    Tom Benson Chevrolet Company, Inc. (Benson), claim-
    ing that Gonzales made sexual advances toward her
    COUNSEL: FOR APPELLANT: Tina Torres, Rob
    while ostensibly assisting her in obtaining a job at Ben-
    Hughes, Jr. LAW OFFICES OF PETER TORRES, JR.,
    son. She asserted claims for intentional infliction of
    P.C., San Antonio, TX. Jeffrey R. Davis, OSHEROW &
    emotional [**2] distress, sexual harassment, sexual
    DAVIS, P.C., SAN ANTONIO, TX. Thomas H. Crofts,
    discrimination, and negligent hiring, retention, training,
    Jr., Ellen B. Mitchell, CROFTS, CALLAWAY & JEF-
    and supervision. At trial, she prevailed only on the inten-
    FERSON, P.C., SAN ANTONIO, TX.
    tional infliction of emotional dist-ress claim. The court
    entered a judgment against Gonzales on this claim for $
    FOR APPELLEE: Humberto G. Garcia, John D. Me-
    55,000. Gonzales appeals this pm1ion of the judgment.
    reness, JOHNSON, CURNEY, GARCIA, WISE &
    Willis appeals the trial court's decision to direct a verdict
    FARMER, P.C., San Antonio, TX.
    on her negligence claims. Although Gonzales's behavior
    could be considered extreme and outrageous, Willis did
    JUDGES: Opinion by: Tom Rickhoff, Justice. Concur-
    not establish that she suffered severe emotional distress.
    ring opinion by: Karen Angelini, Justice, joined by Sarah
    We therefore reverse the portion of the judgment award-
    B. Duncan, Justice. Sitting: Tom Rickhoff, Justice, Sarah
    ing Willis $ 55,000, and render judgment that she take
    B. Duncan, Justice, (concurring in the judgment only).
    Karen Angelini, Justice (concurring in the judgment on-
    nothing on the intentional infliction of emotional distress
    claim. Because Gonzales did not commit an actionable
    ly).
    tort against Willis, her claims for negligent hiring, reten-
    OPINION BY: TOM RiCKHOFF
    tion, training, and supervision are precluded as a matter
    of law. We therefore affirm the portion of the judgment
    ordering that Willis take nothing on these claims.
    OPINION
    Page 2
    
    995 S.W.2d 729
    , *; 1999 Tex. App. LEXIS 3014, **
    FACTS                                                              When asked whether she got up from the table at
    that point, she responded:
    Hoping to obtain a job selling cars, Willis contacted
    an acquaintance who was a sales manager at Benson. He             I did not. I was embarrassed. I'm trying to keep, you
    told her she should talk to James Gonzales, another           know, nice with him, but I also show him that I was very,
    Benson employee, about [**3] getting a job there. At          very uncomfortable [with] what he's telling me.
    the time of the events giving rise to this suit, Gonzales
    Although Gonzales initially agreed to take Willis
    had been twice fired and twice rehired by Benson. One
    back to E-Z Motors, he nevertheless continued his sexual
    time he was fired for bringing a pornographic movie to
    advances:
    work to show at a meeting of salesmen. He was also rep-
    rimanded for pinching a female co-worker's buttocks.              He say, "Come on. You1re not going to work any-
    The second time he was fired, a notation was made on          more. Let's go stay and dance. I would like to
    his record that he was not rehireable. He was rehired         close--dance with you real close. That way, I can feel
    anyway.                                                       your tits close to me. I want to see you. I want to feel
    your waist," and, you lrnow, "Let1s go stay." And I say,
    During their first meeting, Gonzales informed Willis
    "No, I can't stay. I have to go work. I have long hours the
    that she could not be hired at that time because she had
    next day; and besides that, they're going to close the
    no experience selling cars. He suggested that she seek a
    dealer, and I will not be able to get my car out of the
    job at a used car lot called E-Z Motors. After Willis se-
    dealer--out of the parking lot."
    cured a job at E-Z Motors, she kept in touch with Gon-
    zales: she submitted [*733] an application and re-                 Finally, after this protestation, Gonzales drove Wil-
    sume, informed him when she made her first sale, and          lis back to E-Z Motors. She testified that on the way
    sought advice regarding problems she encountered at           back to E-Z Motors:
    E-Z Motors. During these conversations, Gonzales sug-
    I didn't say much. I was so embarrassed. I can't re-
    gested that she might be able to obtain a job at Benson if
    member exactly what we talked about, so--l remember
    Benson has an opening. One day, Gonzales invited Wil-
    when we get to the lot, he--! tell him--! tell him, "Please,
    lis to dinner to discuss a potential job. Willis accepted
    you know, don't [**6] keep these conversations with
    the invitation, and Gonzales, driving a Benson automo-
    me anymore." He goes, "Okay, that's fine." And that was
    bile, picked her up that night at E-Z Motors. Willis testi-
    it.
    fied that on the way to dinner, [**4] he commented
    that she had "baby legs" and asked if he could touch               Willis described her feelings at the end of the even-
    them. Willis said "no" and tried to change the topic of       ing as follows:
    conversation. During the remainder of the drive, 'they
    discussed selling cars. They arrived at the restaurant, a          I [felt] a little bit uncomfortable, but I'm trying ... to
    barbecue place, and resumed their discussion about sell-      do my best, you know, not to think negative about him
    ing cars. Willis testified that the following exchange oc-    because I was looking at him as a person that was going
    cun·ed after their dinner was served:                         to help me to get a job.
    So he starts getting his hands dirty [with barbecue           Sometime after their dinner together, Gonzales
    called Willis, told her he had won a trip to
    sauce], and he say, "You know, I'm thinking about
    something." I said, "What are you thinking about?" He              Acapulco, and invited her along. When Willis de-
    goes, 1Tm thinking about, you know, my fingers are all        clined the invitation, Gonzales told her, 11 0ne of my
    with barbecue sauce. If you will let me stick barbecue        dreams if I take you to Acapulco is you--seeing
    sauce in finger--my finger in your pussy to see, you          you--seeing you in the shower, you know, taking a bath.
    know, how it's like. And I'm sure when I'm telling you        I promise you I will not touch you. I will not do any-
    this, you're getting wet," and said, "I can see your tits     thing, just--but watch you there in the bathroom taking a
    getting hard," you know.                                      bath." Willis informed Gonzales that she doesn't "take
    And then after that, you know, "Go bring by [sic]        those trips." Undeterred, Gonzales called [*734] her
    cock in your pussy and kiss you all over and, oh, it
    back to ask again if she would go with him and again
    would be a lot of fun" and all kind of stuff. And I say,      Willis told him no.
    "Would you please stop? You know, I don't think this is            The next time Willis saw Gonzales he stopped by
    nice to tell me that. 11                                      the dealership where she worked and invited her to lunch
    And, you know, constantly I'm trying to change            with this lure: "We're going to talk about a job. I think I
    conversation ... , and so I feel uncomfortable. So I ask
    have something for you." Willis told him she would go if
    him, [**5] 11 Can you--" you know, "Can we go back?"
    he promised that he would not [**7] "say nasty things"
    to her. Gonzales responded, "I promise you. rt•s going to
    And he goes, "Sure."
    Page 3
    
    995 S.W.2d 729
    , *; 1999 Tex. App. LEXIS 3014, **
    be strictly about a job." Once he had Willis away from        talk to older people anymore. I'm afraid to get close to
    the dealership, however, he disregarded his promise:          them. I'm afraid to believe in people again. I can't.
    We ordered the food and everything, and he told me,         Willis further testified that when her co-workers
    "You know, I'll help you if you help me." He started          conveyed Gonzales 1s 11 message":
    talking nasty again about me, about his dreams about
    They made me feel dirty. I even got home, took a
    sitting on the chair dreaming about me, about getting
    shower, crying. I mean, I cannot sleep. Every single time
    hard, about getting wet, about--dreaming about, you
    I go to sleep, I can listen to voices. I can listen to his
    know, the way I take my bath, about sticking his finger
    voice talking nasty with me.
    in my pussy, and swallow the finger, and touching my
    tits, because he always tell me that I have beautiful tits.       After the event involving her co-workers, Willis re-
    solved to take action against Gonzales:
    And I say, "Do you know what? You promised me
    something, and you did it again. And, you know, I don't            That was the last thing I can took [sic], because I
    want to hear about it." .... He say, "I'll help you if you    feel like he was making everybody lose respect for me. I
    help me." And I say, "I don't need your help then," and I     work so hard for people at that particular dealer to be-
    asked him to take me back.                                    lieve in me and respect me, for him to come to them and
    say nasty things.
    Willis testified that her understanding of the com-
    ment, "I'll help you if you help me," was that she had to          [*735] And then later on, I was afraid that some-
    "pleasure himu in order to get a job. When he returned        body else was going to come to that office and say
    her to the dealership, she informed him, "not to bother       something nasty to me. And that really needs to stop.
    me, not to call me anymore, that I don't want to hear
    Accordingly, Willis filed an administrative com-
    about him anymore." In spite of this plea, Gonzales
    plaint against Gonzales and Benson. After [**10] re-
    called [**8] her again to talk about her job. Willis re-
    ceiving a "right to sue" letter from the Texas Commis-
    minded him that she had asked him not to call her any-
    sion on Human Rights, she brought this suit.
    more and then hung up on him.
    Thus thwarted from having direct contact with Wil-       GONZALES'S APPEAL
    lis, Gonzales nevertheless managed to inject himself into
    In Twyman v. Twyman, 
    855 S.W.2d 619
    , 621-22
    her life. One day, he went to lunch with some of her
    (Tex. 1993), our supreme court adopted the tort of inten-
    co-workers. When the co-workers returned from lunch,
    tional infliction of emotional distress as set out in section
    they told Willis that Gonzales asked them to send her "a
    46(1) of the Second Restatement of Torts. To recover for
    message" that he was still waiting for her to go to Aca-
    this tort, the plaintiff must prove: I) the defendant acted
    pulco with him and he was still dreaming about her.
    intentionally or recklessly; 2) the conduct was extreme
    Gonzales testified that his encounters with Willis       and outrageous; 3) the defendant's actions caused the
    were purely professional, and that he never made a sexu-      plaintiff emotional distress; and 4) the resulting emotion-
    al advance toward her.                                        al distress was severe. See 
    Twyman, 855 S.W.2d at 621
    .
    Gonzales argues that the evidence is legally and factually
    When asked how Gonzales's conduct had affected
    insufficient to establish the first, second, and fourth ele-
    her, Willis testified:
    ments.
    Every single time I remember things like this com-
    In reviewing legal sufficiency or 11 no evidencen ar-
    ing back over and over, it hurts me. He made me feel,
    guments, we must consider the evidence and draw all
    you know--
    inferences in the light most favorable to the verdict. See
    And I even think about, "What did I do wrong for          Southwestern Bell Mobile Sys., Inc. v. Franco, 971
    him to talk to me this way?" Because everybody, every         S. W.2d 52, 54 (Tex. 1998). In reviewing factual suffi-
    single person I work for, they always respect me, any         ciency or "insufficient evidence 11 arguments, we must
    job, any position. I work between a lot of mens [sic], and    consider and weigh all the evidence, and should set aside
    I'm the only girl; and nobody talk anything nasty ... in      the verdict only if it is so contrary to the overwhelming
    front of me.                                                  [**11] weight of the evidence as to be clearly wrong
    and unjust. See Cain v. Bain, 
    709 S.W.2d 175
    , 176 (Tex.
    And when I met Mr. Gonzales--he is an older per-
    1986).
    son--my education was that older people [**9] needs to
    be respected; and I always like to be close to older peo-
    1. Extreme and Outrageous Conduct
    ple, because the older people is the people w\lo teach you
    best. And when he started talking to me, it hurts me be-          To be actionable, conduct must be SO outrageous in
    11
    cause I didn't know what I did wrong; and I was afraid to     character, and so extreme in degree, as to go beyond all
    Page 4
    
    995 S.W.2d 729
    , *; 1999 Tex. App. LEXIS 3014, **
    possible bounds of decency, and to be regarded as atro-          tantamount to saying that no reasonable person, under-
    cious, and utterly intolerable in a civilized community. 11      standing the context, would exclaim, uoutrageous! 11 upon
    RESTATEMENT (SECOND) OF TORTS§ 46 cmt. d                                                 1
    overhearing Gonzales s obviously unwelcome vulgari-
    (1965). It has been noted that courts have little guidance       ties. See RESTATEMENT§ 46 cmt. d. At a minimum,
    in deciding when conduct crosses the line from the cate-         reasonable minds could disagree regarding whether
    gory of merely rude and offensive behavior to the cate-                   1
    Gonzales s conduct was extreme and outrageous. There-
    gory of extreme and outrageous conduct, and that the test        fore, it was for the jury--the representatives of the com-
    is essentially a subjective one. See Twyman, 855 S. W.2d         munity and the proper arbiters [**14] of what exceeds
    at 629 (Hecht, J., concurring and dissenting); GTE               11
    the bounds of decency, 11 and what is uatrocious, and
    Southwest, Inc. v. Bruce, 
    956 S.W.2d 636
    , 646 (Tex.             utterly intolerable in a civilized community"-- to decide
    App.--Texarkana 1997, pet. granted). Generally, howev-           this question. 
    Id. er, 11
    the case is one in which the recitation of the facts to
    an average member of the community would arouse his               We recognize that some courts have held that conduct
    resentment against the actor, and lead him to exclaim,                               1
    similar to Gonzales s conduct was not extreme and out-
    'Outrageous!"' RESTATEMENT§ 46 emf. d. The extreme               rageous. See, e.g., Wilson v. Sysco Food Servs., 940 F.
    and outrageous character of the conduct may arise from           Supp. 1003 (N.D. Tex. 1996); Gearhart v. Eye Care
    an abuse of a position or a relation with the victim that        Ctrs., 
    888 F. Supp. 814
    (S.D. Tex. 1995); Garcia v. An-
    [**12) gives the tortfeasor actual or apparent authority         drews, 
    867 S.W.2d 409
    (Tex. App.--Corpus Christi 1993,
    over~ the   victim, or power to affect his or her interests.     no writ). Other cases have held that similar conduct was
    See 
    id. cmt. e.
                                                     extreme and outrageous. See, e.g., Soto v. El Paso Natu-
    ral Gas Co., 
    942 S.W.2d 671
    (Tex. App.--El Paso 1997,
    It is for the court to determine, in the first instance,
    writ denied); 
    Bruce, 956 S.W.2d at 647
    . None of these
    whether the defendant's conduct may reasonably be re-
    cases is binding on us; their holdings merely provide
    garded as so extreme and outrageous as to permit recov-
    proof that the extreme and outrageous standard is some-
    ery. See Wornick Co. v. Casas, 
    856 S.W.2d 732
    , 734
    what amorphous.
    (Tex. 1993); RESTATEMENT§ 46 cmt. h. But when
    reasonable minds could disagree, it is for the jury to de-
    2. Intent or Recklessness
    termine whether, in a particular case, the conduct is suf-
    ficiently extreme and outrageous to result in liability. See          To be liable for intentional infliction of emotional
    RESTATEMENT§ 46 cml. h. After evaluating the evi-                distress, the defendant must have either intended to cause
    dence in this case, the trial judge determined that a jury       the distress or acted with reckless disregard of the risk
    question was presented on this issue and the jury decided        that he would cause such distress. See Twyman, 855
    that Gonzales's conduct was extreme and outrageous.              S. W.2d at 623-24. Gonzales denied that he had any intent
    to cause Willis pain or make her uncomfortable [**15]
    Given these considerations, our task is to determine
    or upset. Based on this testimony, he argues that the evi-
    whether patiicular behavior in its surrounding context,
    dence is insufficient to establish intent or recklessness.
    could or could not, as a matter of law, amount to extreme
    and outrageous conduct. The behavior at issue in this                 Defendants will rarely admit knowing of a substan-
    case consists of vile sexual advances that were repeated         tial certainty that their conduct would cause emotional
    in the face of persistent and unwaivering entreaties that        distress. 
    See 855 S.W.2d at 623
    . Noting this fact, the su-
    the perpetrator refrain from making such comments. The           preme court has emphasized that juries are free to dis-
    behavior also [**13) includes encouraging the victim's           credit the defendant's protestations that no harm was in-
    co-workers to convey indecent propositions to the victim         tended and draw necessary inferences to establish intent.
    at her place of employment. The [*736] context in                See 
    id. In this
    case, not only did Gonzales deny any in-
    which the advances were made is also important. Clear-           tent to hurt Willis, he denied that he even engaged in the
    ly, Gonzales led Willis to believe that he could assist her      conduct that is the subject of this action. The jury could
    in obtaining the job she desired at Benson. He thus ac-          infer intent or at least recklessness from the nature of
    quired a position of power over her-- a position he used         Gonzales's statements and from Willis's requests that he
    to subject her to his lecherousness. Considering this con-       refrain from making such statements.
    text and the demeanor of Willis and Gonzales, the jmy
    could infer that Gonzales chose his victim well--a victim        3, Severe Emotional Distress
    reluctant to 11 make a scene, 11 a victim who would quietly
    endure the indignities cast upon her for fear of angering a      Emotional.distress includes all highly unpleasant mental
    person in power or being humiliated by her co-workers.           reactions, such as humiliation, embanassment, anger,
    To hold that this behavior cannot, as a matter of law,           worry, and disappointment. See Villasenor v. Villasenor,
    amount to extreme and outrageous conduct would be
    Page 5
    
    995 S.W.2d 729
    , *; 1999 Tex. App. LEXIS 3014, **
    
    911 S.W.2d 411
    , 416 (Tex. App.--San Antonio 1995, no           a violation of the Texas Commission on Human Rights
    wlit); see also RESTATEMENT§ 46 cmt. }.                        Act (TCHRA). Regarding this claim, the jury found that
    Benson failed to hire Willis because she is female and
    Complete emotional tranquility is seldom attainable
    that Gonzales sexually harassed her. But the trial court
    in this world, and some degree of transient and trivial
    granted a take-nothing judgment on this claim because
    [**16] emotional distress is a part of the price of living
    Willis's administrative complaint was not timely filed.
    among people. The law intervenes only where the dis-
    See TEX LAB. CODE ANN. § 21.202(a); Specialty
    tress inflicted is so severe that no reasonable [person]
    Retailers, Inc. v. DeMoranville, 
    933 S.W.2d 490
    , 492
    could be expected to endure it. The intensity and the du-
    (Tex. 1996). The trial court also granted Benson's motion
    ration of the distress are factors to be considered in de-
    for directed verdict on Willis's negligence claims on the
    termining its severity.
    ground that those claims were preempted by the
    TCHRA. Willis argues that this ruling was erroneous.
    RESTATEMENT§ 46 emf.}. Feelings of anger, depres-
    B,enson argues that the finding of preemption was cor-
    sion, and humiliation are not sufficient to establish se-
    rect, or in the alternative, was harmless error.
    vere emotional distress. See 
    Villasenor, 911 S.W.2d at 417
    . Furthermore, conduct is not actionable as intention-
    L Preemption
    al infliction of emotional distress [*737] merely be-
    cause it may damage the plaintiffs reputation. See Dia-             The TCHRA prohibits employment disclimination
    mond Shamrock Ref & Mktg. Co. v. Mendez, 844 S. W.2d           on a number of grounds, including sex. See TEX LAB.
    198, 202 (Tex. 1992).                                          CODE ANN. § 21.051 (Vernon 1996); Perez v. Living
    Centers-Devcon, Inc., 
    963 S.W.2d 870
    , 872 (Tex.
    Willis testified that when Gonzales made the ad-
    App.--San Antonio 1998, pet. denied). It sets forth a
    vances toward her she was merely 11 embarrassed" and
    comprehensive administrative review system that a dis-
    "uncomfortable. 11 She also testified that remembering
    crimination victim must follow before filing [**19] a
    what Gonzales did "hurts 11 her and makes her wonder
    civil action alleging violations of the TCHRA. See
    what she did wrong; that his conduct has affected her
    Schroeder v. Texas Iron Works, Inc., 
    813 S.W.2d 483
    ,
    ability to trust people, particularly older people; that the
    485-88 (Tex. 1991).
    comments relayed by her co-workers made her feel dirty
    and made her cry; that she "cannot sleep, 11 and when she          In Perez, we addressed the question of "whether the
    goes to sleep she hears Gonzales "talking nasty11 to her.      Texas legislature intended for the TCHRA to preempt
    Drawing all [* *17] inferences in favor of Will is, the        common law causes of 
    action." 963 S.W.2d at 873
    . After
    most that can be said of this testimony is that it is some     examining the act1s language, we stated:
    evidence of a highly unpleasant emotional reaction. Wil-
    Notably, neither an intent to serve as an exclusive
    lis failed to muster any evidence from which a jury could
    reasonably infer that her emotional distress has been se-      remedy, nor an intent to preclude common law causes of
    action, is contained within the stated purposes of the
    vere. For example, there is no indication of the intensity
    TCHRA. Additionally, the statute contains no provision
    or duration of the emotional distress. The evidence is
    that implies the TCHR's administrative review system
    therefore legally insufficient to establish severe emotion-
    precludes a lawsuit for common law causes of action.
    al distress. Cf Gorges Foodservice, Inc. v. Huerta, 
    964 S.W.2d 656
    , 668-69 (Tex. App.--Corpus Chlisti 1997, 
    no 963 S.W.2d at 874
    (citation omitted). We further noted
    pet.) (testimony that plaintiffs wife temporarily ejected
    him from the house, that his relationship with his wife        that section 21.211 of the TCHRA implies that the legis-
    lature did not intend to preempt common law causes of
    and children had suffered, that he was unable to concen-
    trate, that he felt insecure about his prospects for finding   action. See 
    id. That section
    provides:
    employment, and that he was embmnssed held legally                   [*738] A person who has initiated an action in a
    insufficient).                                                 court of competent jurisdiction or who has an action
    Because the evidence is legally insufficient to estab-    pending before an administrative agency under other law
    or an order or ordinance of a political subdivision of this
    lish severe emotional distress, we reverse the portion of
    the judgment that awards Willis $ 55,000 in damages            state based on an act that would be an unlawful employ-
    from Gonzales and render judgment that she take nothing        ment practice under this chapter may not file a complaint
    on her intentional infliction of emotional distress claim.     under this [**20] subchapter for the same grievance.
    TEX LAB. CODE ANN. § 21.211. Focusing on this
    WILLIS'S APPEAL
    section, we stated:
    In addition to her intentional infliction [**18] of emo-          Rather than preclude other causes of action that
    tional distress and negligence claims, Willis also alleged     might arise from an employment practice made unlawful
    Page 6
    
    995 S.W.2d 729
    , *; 1999 Tex. App. LEXJS 3014, **
    by the TCHRA, this language implies that a plaintiff                   prevent double recovery for single wrong), writ
    cannot have two bites at the apple, That is, a plaintiff               denied per curiam, 
    758 S.W.2d 753
    (Tex. 1988).
    cannot first sue a defendant-employer for a non-TCHRA
    [**22] Finally, Benson points out that three feder-
    cause of action for conduct arising from the same facts as
    al district court opinions, two of which are unpublished,
    employment discrimination and then pursue a claim of
    have held that the TCHRA preempts common law causes
    employment discrimination through the administrative
    of action. See Cook v. Fidelity Investments, 908 F. Supp.
    review system established under the TCHRA .... This
    438, 442 (N.D. Tex. 1995); Hardy v. Fleming Food Co.,
    provision requires a plaintiff to pick a remedy and per-
    
    1996 U.S. Dist. LEXIS 3923
    , No. H-94-3759, 1996 WL
    mits a plaintiff like Perez to pursue common law causes
    145463, at *27 (S.D. Tex. March 21, 1996); Bates v.
    of action that arise from the same facts as sexual harass-
    Humana, Inc., 
    1993 U.S. Dist. LEXIS 20764
    , No.
    ment.
    SA-92-CA-432, 
    1993 WL 556416
    , at *11 (W.D. Tex.
    Oct. 12, 1993). Benson suggests that we should follow
    
    Perez, 963 S.W.2d at 874
    . After examining the language
    these decisions because our supreme court has held that
    of the TCHRA, including section 21.211, and its legisla-
    federal decisions interpreting federal discrimination stat-
    tive history, we concluded that the TCHRA is not the
    utes may be instructive in construing the TCHRA. See
    exclusive state law remedy for conduct that violates its
    Specialty 
    Retailers, 933 S.W.2d at 492
    . The cases cited
    provisions, 
    See 963 S.W.2d at 872-75
    .
    by Benson, however, do not interpret federal discrimina-
    Based on Perez, Willis argues that the trial court      tion statutes; rather, [*739] they address the purely
    erred by directing a verdict on her negligence causes of     state-law question of whether the TCHRA preempts
    action. Benson responds that this case is distinguishable    common law claims. Because their answer to this ques-
    [**21] from Perez because unlike Perez, Willis at-           tion is inconsistent with our own precedent, we decline
    tempted to pursue both a claim under the TCHRA and           to follow them.
    common law claims. As support for its argument, Ben-
    The trial court erred by directing a verdict on Wil-
    son focuses on our analysis of section 21.211, particu-
    lis's negligence causes of action on the basis of preemp-
    larly the statements that a plaintiff must "pick a remedy"
    tion,
    and is not allowed "two bites at the apple."
    The fact that Willis pursued an administrative rem-     2. Absence of Underlying Tort
    edy does not change the preemption analysis. Nothing in
    In its motion for rehearing, Benson asserts that even
    Perez suggests that our no-preemption holding was lim-
    if the trial [**23] comt's preemption ruling was erro-
    ited to the facts of that case. The language of section
    neous, the granting of the directed verdict was harmless
    21.211 was merely one of the reasons we cited for con-
    in light of our disposition of Gonzales's appeal. Benson
    cluding that Perez's common law claims were not
    argues that since Gonzales did not commit an actionable
    preempted. Moreover, the election of remedies provision
    tort against Willis, it cannot be held liable for negligently
    in section 21.2ll does not apply to this case because                                                                2
    hiring, retaining, training, or supervising Gonzales.       We
    Willis did not initiate suit on her common law claims
    agree.
    before pursuing her claim under the TCHRA. ' By ex-
    hausting her administrative remedies, Willis acted con-
    2 For purposes of this discussion, there is no
    sistently with the legislative intent underlying the
    relevant distinction among negligent hiring, re-
    TCHRA. See 
    Schroeder, 813 S.W.2d at 486
    (holding that
    tention, training, or supervision, We will refer to
    the TCHRA1s administrative process 11 clearly encourages
    all these torts collectively as "negligent hiring."
    compliance through voluntary resolution, conference,
    conciliation and persuasion--informal processes other             Although we have not found a Texas case directly
    than litigation;').                                          on point, courts in other jurisdictions have held that an
    employer cannot be held liable for negligently hiring au
    Because Willis did not recover on her claim       employee unless the employee committed an actionable
    under the TCHRA, the common law election of          tmt. See Hays v. Patton-Tully Transp. Co., 844 F. Supp.
    remedies rule and one-satisfaction rule are also     1221, 1223 (W.D. Tenn. 1993); Mulhern v. City of
    inapplicable. See Stewart Title Guar. Co. v. Ster-   Scottsdale, 
    165 Ariz. 395
    , 
    799 P.2d 15
    , 18 (Ariz. Ct. App.
    ling,   
    822 S.W.2d I
    ,          7 (Tex.      1991)    1990); Hogan v. Forsyth Count1y Club Co., 79 N.C. App.
    (one-satisfaction rule prevents plaintiff from ob-   483, 
    340 S.E.2d 116
    , 123-25 (N.C. Ct. App. [**24]
    taining more than one recovery for the same in-      1986); Louis Marsch, Inc. v. Pekin Ins. Co., 140 Ill. App.
    jury); Green Oaks, Ltd. v. Cannan, 
    749 S.W.2d 3d
    1079, 
    491 N.E.2d 432
    , 437, 
    96 Ill. Dec. 386
    (Ill. App.
    128, 131 (Tex. App.--San Antonio 1987) (sole         Ct. 1985).
    purpose of election of remedies doctrine is to
    Page 7
    
    995 S.W.2d 729
    , *; 1999 Tex. App. LEXIS 3014, **
    This rule comports with the fundamental tort princi-
    ple that a person is not liable for negligence, no matter         
    Hays, 844 F. Supp. at 1223
    (citation omitted). Moreo-
    how egregious, unless the negligence causes a legally            ver, if we allowed a sexual harassment finding to supply
    compensable injury. See W. PAGE KEETON ET AL.,                   the basis for recovery on a negligent hiring claim, the
    PROSSER AND KEETON ON THE LAW OF TORTS                           statutory procedures and limitations applicable to such
    § 30, at 165 (5th ed. 1984). In the context of negligent         claims would be rendered superfluous. See, e.g., TEX
    hiring claims, if the employee did not commit an action-         LAB. CODE ANN. § 21.201 (Vernon 1996) (requiring
    able tort, the plaintiff has not been injured in the eyes of     exhaustion of administrative remedies); 
    id. § 21.2585
                                         1
    the law; therefore, the employer s negligence has not            (limiting available damages). ' Accordingly, negligent
    caused a legally compensable injury.                             hiring will be a viable cause of action in a sexual har-
    assment case only if the harassment encompasses mis-
    This rule is also consistent with well-settled Texas
    conduct that is independently actionable under the com-
    precedent regarding negligent entrustment claims, which
    mon law, such as battery or intentional infliction of emo-
    are akin to negligent hiring claims. See Deerings West
    tional distress. See 
    Hays, 844 F. Supp. at 1223
    .
    Nursing Ctr. v. Scott, 
    787 S.W.2d 494
    , 495-96 (Tex.
    App.--El Paso 1990, writ denied). To prevail on a claim
    3    In this case, for example, Willis was pre-
    for negligent entrustment of a vehicle, the plaintiff must
    cluded from recovering on her sexual harassment
    establish not only that the owner was negligent in en-
    claim, in spite of the jury's favorable finding, be-
    trusting the vehicle, but also that the driver's negligent
    cause she did not timely file a complaint with the
    operation of the vehicle proximately caused damage to
    Texas Commission on Human Rights.
    the plaintiff. See Schneider v. Esperanza Transmission
    [**25] Co., 
    744 S.W.2d 595
    , 596 (Tex. 1987); Fidelity                [**27]
    & Guar. Ins. Underwriters v. McManus, 
    633 S.W.2d 787
    ,
    . We must affirm a directed verdict if the record dis-
    790 (Tex. 1982); see also Rodgers v. McFarland, 402
    closes a ground that establishes, as a matter of law, that
    S.W.2d 208, 210 (Tex. Civ. App.--El Paso 1966, writ
    the movant was entitled to judgment, even though the
    rerd n.r.e.) ("Obviously, an owner who is negligent in
    ground was not embodied in the motion for directed ver-
    entrusting his vehicle is not liable for such negligence
    dict. See Granato v. Bravo, 
    498 S.W.2d 499
    , 502 (Tex.
    until some wrong is committed by the one to whom it is
    Civ. App.--San Antonio 1973, no writ); see also Texas
    entrusted."). Analogously, to prevail on a claim for neg-
    Employers Ins. Ass'n v. Page, 
    553 S.W.2d 98
    , 102 (Tex.
    ligent hiring, the plaintiff should be required to establish
    1977); Connell v. Connell, 889 S:W.2d 534, 539 (Tex.
    not only that the employer was negligent in hiring the
    App.--San Antonio 1994, writ denied). Because Willis
    employee, but also that the employee committed an ac-
    failed to establish that Gonzales conunitted an actionable
    tionable tort against her. When this rule is applied here, it
    tort, her negligence claims are precluded as a matter of
    is apparent that Willis's negligence claims must fail. Be-
    law. We therefore affirm the directed verdict on these
    cause Willis did not present legally sufficient evidence to
    claims.
    establish that she suffered severe emotional distress, she
    failed to establish that Gonzales committed an actionable            Tom Rickhoff, Justice
    tort. Therefore, assuming that Benson was negligent in
    hiring, retaining, training, and supervising Gonzales,           CONCUR BY: Karen Angelini
    Willis suffered no compensable injury as a result of this
    negligence.                                                      CONCUR
    We also note that the jury's finding that Gonzales              I do not believe Gonzales's conduct was "so outra-
    sexually harassed Willis cannot provide the basis for            geous in character, and so extreme in degree, as to go
    Willis's negligence [**26] claims. As one comi has               beyond all possible bounds of decency, and to be re-
    stated:                                                          garded as atrocious, and utterly intolerable in a civilized
    community." RESTATEMENT (SECOND) OF TORTS§
    Sexual harassment has never been a common law
    46 cmt. d (1965). I agree with all other aspects of the
    tort; as a cause of action, it is a ~tatutory creation. A neg-
    [**28] majority opinion and therefore concur in the
    ligent supervision [*740] claim cannot be based solely
    judgment.
    upon an underlying claim of sexual harassment per se,
    because the effect would be to impose liability on em-               Karen Angelini, Justice
    ployers for failing to prevent a harm that is not a cog-
    nizable injury under the common law.
    APPENDIX- ''G''
    Page I
    LexisNexis"
    THE METHODIST HOSPITAL, Appellant v. JOHN GERMAN, Appellee
    NO. 01-09-00925-CV
    COURT OF APPEALS OF TEXAS, FIRST DISTRICT, HOUSTON
    
    369 S.W.3d 333
    ; 2011 Tex. App. LEXIS 10215
    December 29, 2011, Opinion Issued
    SUBSEQUENT HISTORY:               Released for Publica-       ous reaction to medication, and that their failure to take
    tion July 27, 2012.                                           appropriate action led to the eventual amputations. Ger-
    Rehearing denied by Methodist Hasp. v. German, 2012           man also alleged that Methodist did not properly train its
    Tex. App. LEXIS 6246 (Tex. App. Houston 1st Dist., Apr.       nurses to [**2) recognize and appropriately respond to
    19, 2012)                                                     his symptoms.
    Petition for review denied by German v. Methodist
    The jury awarded damages to German based on
    Hasp., 2013 Tex. LEX1S 408 (Tex., May 17, 2013)
    findings that Methodist was negligent and was 50% re-
    sponsible for the injuries. The jury also found that the
    PRIOR HISTORY: [**1)
    hospital had acted with conscious indifference in
    On Appeal from the !25th District Court, Harris
    providing medical care and awarded exemplary damages.
    County, Texas. Trial Court Case No. 2003-30417.
    The trial court entered judgment on the verdict in Ger-
    In re Methodist Hasp., 2009 Tex. App. LEXIS 4993 (Tex.
    man's favor. Among other things, the hospital contends
    App. Houston 1st Dist., June 26, 2009)
    on appeal that the evidence was legally insufficient to
    support the verdict, primarily because critical testimony
    by German's expert witness was unreliable and conclu-
    JUDGES: Panel consists of Justices Keyes, Sharp, and
    sory.
    Massengale. Justice Sharp, concurring without opinion.
    Because there is no evidence of at least one element
    OPINION BY: Michael Massengale                                of each of German1s theories of negligence, we reverse
    the trial court's judgment and render a take-nothing
    OPINION                                                       judgment in favor of The Methodist Hospital.
    [*336) This is a medical malpractice case against
    Background
    a hospital involving the care provided by its nurses. Ap-
    pellee John Geiman was admitted to The Methodist                   John German, then a 32-year-old mechanic, was
    Hospital for surgery to repair a congenital heart defect. A   admitted to The Methodist Hospital for surgery to correct
    tragic surgical error committed during his first heart sur-   a congenital heart defect. During the surgery, Dr. Ma-
    gery required additional surgeries and interventions.         hesh Ramchandani committed a serious error by punc-
    German survived, but only after suffering the amputation      turing German's healthy mitral valve. The puncture re-
    of one leg, one foot, and most of his fingers.                sulted in a condition known as acute mitral valve regur-
    gitation, which caused blood to flow backwards through
    German filed suit to recover damages for injuries
    the heart and which would [**3) have been fatal if left
    arising from the original surgery and his subsequent
    untreated. Ramchandani attempted to repair the valve
    course of treatment. After settling with his doctors, he
    during this surgery by suturing it, [*337) but a variety
    proceeded to trial against the sole remaining defendant,
    of serious medical conditions over the following two
    The Methodist Hospital. Geiman sought to hold Meth-
    days indicated that the attempted repair was not success-
    odist responsible for the acts of its nurses, alleging that
    ful. On two consecutive days, doctors performed addi-
    the nurses failed to notice that he was having a danger-.
    tional open-heart surgeries, attempting again to repair the
    Page 2
    
    369 S.W.3d 333
    , *; 2011 Tex. App. LEXIS 10215, **
    valve and then, upon the realization that the valve was         that it was preventable, and that the negligent failure to
    iiTeparably damaged, ultimately replacing it. During each       prevent it resulted in his amputations. German alleged
    surgery, German was placed on a cardiopulmonary by-             that Methodist was liable for the negligence of its cardi-
    pass machine (also known as a heart-lung machine). Af-          ovascular ICU nurses who failed to recognize the signs
    ter the second failed valve repair, an extracorporeal           and symptoms of HIT and failed to alert the doctors to
    membrane oxygenation machine (or ECMO) was also                 these conditions. In addition, German alleged that
    used to provide external cardiopulmonary support. Both          Methodist negligently failed to train its cardiovascular
    the heart-lung machine and the ECMO required use of a           ICU nurses [**6] about HIT. Finally, German alleged
    blood-thinning medication, and for this reason German           that Methodist and its nurses acted with conscious indif-
    was given heparin, an FDA-approved anticoagulant.               ference in caring for him.
    These were the only times that German received heparin
    The jury found that Methodist was negligent and
    during this hospital stay, and it was administered by the
    acted with malice, and it awarded [*338] compensa-
    doctors themselves, not the nurses in the cardiovascular
    tory and exemplary damages to German. The final judg-
    intensive care unit. After each surgery, German received
    ment awarded $7,1J6,095.89 to German on his claims
    care in the hospital's cardiovascular !CU.
    against Methodist.
    Over the course of eight days beginning with his
    original [**4] surgery, German experienced, among               Analysis
    other things, cardiac distress, multi-system organ failure,
    In its first three issues, Methodist challenges the suf-
    life-threatening bleeding, and low blood pressure. He
    ficiency of the evidence to support the jury's negligence
    required multiple blood transfusions, prompting the doc-
    findings. The elements of a medical negligence claim
    tors to artificially elevate his blood pressure through the
    are: (1) a duty to conform to a certain standard of care;
    use of drugs known as vasopressors. German also expe-
    (2) a failure to conform to the required standard; (3) ac-
    rienced a significant decline in his blood platelet count,
    tual injury; and (4) a causal connection between the
    weak pulses, and other signs of blood clotting in his ex-
    conduct and the injury. See, e.g., Mariner Health Care of
    tremities. At trial, German's expert witness testified that
    Nashville, Inc. v. Robins, 
    321 S.W.3d 193
    , 205 (Tex.
    these symptoms could indicate a rare adverse reaction to
    App.--Houston [1st Dist.] 2010, no pet.). A medical
    heparin called heparin-induced thrombocytopenia, also
    malpractice plaintiff must present evidence of a reasona-
    known as HIT. But German's expert conceded that these
    ble medical probability that the alleged injuries "were
    symptoms were also consistent with the numerous surgi-
    caused by the negligence of one or more defendants,
    cal interventions and medications that had been adminis-
    meaning simply that it is 'more likely than not' that the
    tered, and some of German's doctors testified that at the
    ultimate harm or condition resulted from such negli-
    time of treatment they believed the symptoms were
    gence." Kramer v. Lewisville Mem'l Hasp., 858 S. W.2d
    caused by factors other than HIT. For example, German's
    397, 399-400 (Tex. 1993). Methodist argues [**7] there
    decreased platelet count was consistent with the mitral
    was no evidence that its nurses breached a duty under a
    valve regurgitation resulting from the punctured valve,
    legally proper standard of care, no evidence that any al-
    and it was also consistent with the repeated use of the
    leged breach caused German's injuries, and no evidence
    heart-lung machine and ECMO during German's treat-
    of any standard of care for the nurses' training.
    ment, both of which had the effect of decreasing plate-
    lets. [**5] His weak pulses were consistent with the use             When a party who does not have the burden of proof
    of vasopressors, which constricted blood vessels and had        at trial challenges the legal sufficiency of the evidence,
    the effect of depriving the capillaries in his extremities of   we consider the evidence in the light most favorable to
    blood in order to keep blood flowing to the brain and           the verdict, indulging every reasonable inference that
    other vital organs.                                             would support it. City of Keller v. Wilson, 
    168 S.W.3d 802
    , 822 (Tex. 2005). We will sustain a no-evidence
    The treating doctors testified without contradiction
    point when:
    at trial that German would have died without these sur-
    gical interventions. Unfortunately, the doctors could not
    (a) there is a complete absence of evi-
    restore circulation to his extremities, and German later
    dence of a vital fact, (b) the court is
    underwent surgery to amputate his left leg above the
    baned by rules of law or of evidence from
    knee, all of his fingers, and all of the toes and part of his
    giving weight to the only evidence offered
    right foot.
    to prove a vital fact, (c) the evidence of-
    German filed a medical malpractice lawsuit against                 fered to prove a vital fact is no more than
    his treating physicians and Methodist. He settled all of                a mere scintilla, or (d) the evidence con-
    his claims against the doctors, and he proceeded to trial               clusively establishes the opposite of the
    solely against Methodist on a theory that he had HIT,                   vital fact.
    Page 3
    
    369 S.W.3d 333
    , *; 2011 Tex. App. LEXIS 10215, **
    the reliability of the information [**10] upon which he
    relied in forming his opinions.
    Merrell Dow Pharmaceuticals, Inc. v. Havner, 953
    Challenges to expert opinions ordinarily arise in the
    S.W.2d 706, 711 (Tex. 1997) (citing Robert W. Calvert,
    context of rulings on their admissibility, which are re-
    "No Evidence" and "Insufficient Evidence" Points of
    viewed for an abuse of discretion. See Whirlpool Corp. v.
    Error, 38 TEX. L. REV. 361, 362-63 (1960)). We review
    Camacho, 
    298 S.W.3d 631
    , 638 (Tex. 2009). But in some
    the factual sufficiency of the evidence to support a jury
    cases, as here, a party asserts on appeal "that unreliable .
    verdict by considering and [**8] weighing all the evi-
    .. expert testimony is not only inadmissible, but also that
    dence, and we will set the verdict aside "only if it is so
    its uureliability makes it legally insufficient to support a
    contrary to the overwhelming weight of the evidence as
    verdict.'' 
    Id. "Opinion testimony
    that is conclusory or
    to be clearly wrong and unjust." Cain v. Bain, 709
    speculative is not relevant evidence, because it does not
    S.W.2d 175, 176 (Tex. 1986).
    tend to make the existence of a material fact 'more prob-
    Two distinct theories of Methodist's negligence were     able or less probable.'" Coastal Transp. Co. v. Crown
    presented at trial. German contended that Methodist was       Cent. Petroleum C01p., 
    136 S.W.3d 227
    , 232 (Tex. 2004)
    responsible for the negligent failures of its nurses to       (quoting TEX. R. EVID. 401). In such cases, courts must
    know the adverse effects of heparin, to appropriately         determine if the testimony is sufficiently reliable to make
    document and report them, and to initiate the hospital's      it probative of a material fact. See Whirlpool, 298 S. W.3d
    internal chain of command when the doctors did not di-        at 637. "[I]t is the basis of the witness's opinion, and not
    agnose HIT. German's other theory was that the hospital       the witness's qualifications or his bare opinions alone,
    failed to train its nurses properly. To demonstrate the       that can settle an issue as a matter of law; a claim will
    insufficiency of the evidence to support the jury's finding   not stand or fall on the mere ipse dixit of a credentialed
    of negligence, Methodist must demonstrate the absence         witness." Burrow v. Arce, 
    997 S.W.2d 229
    , 235 (Tex.
    of evidence to support at least one element of each theo-     1999). "It [**11] is not enough for an expert simply to
    ry. As to the theory based on the nurses' alleged failures,   opine that the defendant's negligence caused the plain-
    Methodist argues that a critical component of German's        tiffs injury." 
    Jelinek, 328 S.W.3d at 536
    .
    proposed standard of care conflicted with Texas law by
    Dr. Akella Chendrasekhar was designated as Ger-
    effectively requiring the nurses to diagnose German's
    man's expert witness on the standard of care for nursing
    symptoms as HIT, and therefore the proposed standard
    care. Before trial, Methodist challenged Chendrasekhar's
    was not supported by any legally sufficient evidence.
    qualifications, and the trial court held a two-day hearing
    Moreover, Methodist contends that there is no [**9]
    on a motion to exclude his testimony. While permitting
    evidence that the nurses breached any other duty or that
    much of Chendrasekhar's proposed testimony, the trial
    any such breach caused German's injuries. With respect
    court ruled that he could not testify that the nurses should
    to the alleged failure to train, [*339] Methodist argues
    have diagnosed HIT. Nevertheless, at trial Chendrasek-
    that German offered no evidence of the standard of care
    har opined that the nurses' standard of care required them
    for training nurses. We will address each of German's
    to recognize clotting signs and a downward platelet trend
    liability theories and Methodist's contentions in tum.
    as symptoms of HIT, to report them to the physicians as
    such, and ultimately to use the hospital's internal chain of
    I. Negligence of Methodist's nurses
    command to get 11 satisfaction 11 when the doctors failed to
    diagnose HIT and treat Getman accordingly.
    A. Standard of care--nurses' alleged duty to identify
    and act upon symptoms of medical condition                         Methodist argues that Chendrasekhar's opinion
    about the standard of care conflicted with legal prohibi-
    Methodist challenges the sufficiency of the evidence
    tions against the practice of medicine by nurses because
    to establish certain aspects of the standard of care appli-
    his proposed standard required the nurses not only to
    cable to nurses, and it argues that the standard of care
    recognize and report the objective data that German's
    propounded by German's expert is legally flawed. Be-
    platelet levels were dropping [**12] or fluctuating, but
    cause determination of the standard of care in medical
    also to take the further step of diagnosing HIT. That is,
    malpractice requires knowledge and skills not ordinarily
    Methodist contends that under Chendrasekhar's [*340]
    possessed by lay persons, evidence of the applicable
    proposed standard of care, the nurses would have been
    standard of care and its breach is usually established by
    required to conclude that German's platelet levels were
    expert testimony. See Jelinek v. Casas, 
    328 S.W.3d 526
    ,
    dropping or fluctuating because he had HIT and that the
    533 (Tex. 2010) (causation); Battaglia v. Alexander, 177
    doctors had misdiagnosed German by not concluding
    S. W.3d 893, 899 & n. 7 (Tex. 2005) (standard of care).
    that he had HIT. Methodist contends this proposed
    Methodist's arguments implicate the sufficiency of Ger-
    standard of care is incorrect as a matter of law, and thus
    man1s expert testimony--both the expert's opinions and
    Page 4
    
    369 S.W.3d 333
    , *; 2011 Tex. App. LEXIS 10215, **
    Chendrasekhar's testimony in this regard is no evidence       drome." Chendrasekhar specifically opined that in the
    of the standard of care.                                      case of German's treatment, Methodist's nurses had the
    following duties under their standards of care:
    In response, German argues that he never sought to
    o The nurses have a responsibility to
    impose liability on the hospital because its nurses failed
    notify a physician if a patient is having an
    to make a medical diagnosis. Rather, German contends
    allergic reaction to a medicine. He testi-
    that the nurses had a statutory duty to know, document,
    fied that "HIT is--thrombocytopenia in
    and report the effect of medications and treatments ad-
    this setting related to HIT is an allergic
    ministered to patients. German contends that the nurses
    reaction."
    should have known that HIT is an adverse effect of hep-
    arin, should have recognized that the signs and symp-                    o The nurses should have recognized
    toms they observed were consistent with HIT, and should               German's clotting signs and downward
    have communicated that information to the treating phy-               platelet trend as signs and symptoms of
    sicians.                                                              HIT, and they should have informed the
    treating physicians.
    At trial, Chendrasekhar testified that his qualifica-
    tions included intensive care work during his residency, a                o Although all the doctors "missed"
    post-residency [**13] critical care fellowship, and                   the diagnosis of HIT, the nurses should
    practice of critical care medicine since 1994. He is board            have caught it.
    certified in general surgery, critical care medicine, and
    [*341] o The nurses have a respon-
    surgical critical care. He has taught doctors and medical
    sibility to use the chain of command to
    students, and he served as the assistant director and di-
    [**15] inform superiors "if they don't get
    rector of trauma and critical care medicine at Iowa
    an appropriate response from the physi-
    Methodist Medical Center for eight years. At the time of
    trial, he was the director of trauma and critical care at
    cian," and they should have done so in
    this case.
    Lincoln Hospital in New York. He testified that he
    served as the chairman of the quality improvement
    committee, which encompassed nursing as well as med-
    Despite his opinion that the applicable standard of care
    ical care improvement. He testified that he had interacted
    required that the nurses recognize and report the symp-
    with nurses on the care and treatment of HIT and that he
    toms as indicative of HIT, Chendrasekhar nevertheless
    had reviewed nursing literature pertaining to HIT.
    also confirmed that German's many symptoms and com-
    Chendrasekhar's testimony included reading from           plications were also consistent with diagnoses other than
    several nursing journals, including an article entitled       HIT, such as the decreased platelet levels being con-
    11
    Bleeding complications in the patient with cardiac dis-    sistent with his acute mitral valve regurgitation.
    ease following thrombolytic and anti-coagulant thera-
    On cross-examination, Chendrasekhar testified that
    pies" from Critical Care Nursing Clinics of North Amer-
    he did not know that there was a Texas statute that gov-
    ica, which he said was relevant to the nurses' standard of
    emed the practice of nursing, had never heard of the
    care. The article stated:
    North American Nursing Diagnosis Association, and was
    unaware of licensing or continuing education require-
    While the patient is receiving heparin,
    ments for nurses in Texas. He also did not know whether
    the platelet count should be monitored
    Texas excluded medical diagnosis from the practice of
    regularly, and any downward [**14]
    nursing.
    trends in the count reported, as well as
    any change in pulsation or color of an ex-             In contrast to Dr. Chendrasekhar's opinions about
    tremity. The nurse should observe for              the nurses' duties and the applicable standard of care,
    poor capillary refill, weakened or absent          Nurse Kathy Knaack, the nursing director of Methodist's
    pulses or other signs of decreased perfu-          cardiovascular intt:tnsive care unit, testified that a nursing
    sion, such as decreased urinary output or          diagnosis is "based off the nurse's assessment, a problem
    neurologic changes, which may indicate             in the patient that they can address [**16] based on
    emboli.                                            their education and license." She distinguished a nursing
    diagnosis from a medical diagnosis in that a "medical
    diagnosis has to do with the medical condition of the
    He also read an excerpt from "Heparin-induced throm-          patient in which the physician would order specific
    bocytopenia" published in the Journal of Vascular Nurs-       treatments; a nursing diagnosis has things to do with
    ing, which stated: "Nurses are responsible for recogniz-      what a nurse can do to intervene and support the medical
    ing and reporting the signs and symptoms of HIT syn-          diagnosis." She also testified that the North American
    Page 5
    
    369 S.W.3d 333
    , *; 2011 Tex. App. LEXJS 10215, **
    Nursing Diagnosis Association, or NAND A, sets stand-           151.002(a)(I3). Medical diagnosis is commonly under-
    ards for acceptable nursing diagnoses. The 2001-2002            stood to be the determination of the cause and nature of a
    NANDA manual, which was admitted into evidence at               patient's condition. See, e.g., Loper v. Andrews, 404
    trial, defmed "nursing diagnosis" as "[a] clinical judg-        S. W.2d 300, 304-05 (Tex. 1966); Texas Employer's Ins.
    ment about individual, family, or community responses           Ass'n v. Sauceda, 
    636 S.W.2d 494
    , 498 (Tex. App.--San
    to actual or potential health problems/life processes. A        Antonio 1982, no writ).                       '
    nursing diagnosis provides the basis for selection of
    Both Methodist and German agree that nurses can-
    n,ursing interventions to achieve outcomes for which the
    not legally make medical diagnoses. Methodist [**19]
    nurse is accountable." NANDA, NURSING DIAGNOSES:
    argues that Chendrasekhar's stated standard of care re-
    DEFINITIONS & CLASSIFICATIONS 2001-2002, at 245
    quired exactly that. In response, German argues that the
    (Marjory Gordon eta!., eds., 2001).
    Chendrasekhar's standard of care required no more than
    Knaack offered her opinion that a doctor's order is         for the nurses to know and report the effects of the med-
    required for the administration of medication, but a nurse      ications they administer, because Chendrasekhar testified
    is nevertheless required to know why a medication is            that HIT is an allergic reaction to heparin.
    ordered and its effects. This includes adverse reactions,
    German received heparin only during his surgeries
    such as the risk of bleeding [**17) associated with giv-
    and only when administered by a doctor. The Standards
    ing a patient a blood-thinning medication like heparin.
    of Nursing Practice required the nurses assisting with
    She also testified that Methodist's nurses do not--and
    German's care to know the rationale for and effects of
    legally cannot--make medical diagnoses, because nurses
    using heparin, as well as to accurately and completely
    are not educated or licensed to do so, Nurse Virginia
    report and document German's status, including his
    Hathaway, a certified critical care registered nurse who
    signs, symptoms, and responses. See 22 TEX. ADMIN.
    cared for German in the cardiovascular ICU, also testi-
    CODE§ 217.11(J)(C), (D). The nurses' duties thus in-
    fied that a diagnosis of HIT is a medical diagnosis that a
    cluded accurately and completely reporting the signs,
    nurse cannot make.
    symptoms, and responses relied upon by German's treat-
    Both Methodist and German rely on the Nursing               ing physicians (and later relied upon by Chendrasekhar
    Practice Act and its implementing regulations in the            in the formation of his opinions), such as German's fall-
    Texas Administrative Code as defining the standard of           ing or fluctuating platelet levels and intermittent weak
    care for nurses applicable to this case. See TEX ace.           pulses. These signs, symptoms, and responses were con-
    CODE ANN. §§ 301.001-301.307 (West 2004 & West                  sistent with more than one medical or clinical cause, not
    Supp. 2010) (Nursing Practice Act); 22 TEX. ADMIN.              just HIT. Determining that these clinical findings actual-
    CODE§§ 213.1-227.6 (2010). Although these regulations           ly were symptoms [**20) of HIT--as opposed to side
    have been amended since the events giving rise to Ger-          effects of German 1s ongoing treatment or symptoms of
    man's claims, neither party argues that any change is           some other disorder such as acute mitral valve regurgita-
    relevant to this appeal. Rule 217.11 of the Texas Admin-        tion--would have required the nurses to analyze the cause
    istrative Code, entitled 11 Standards of Nursing Practice, 11   and nature of German1s condition. This is a medical di-
    defines the 11 minimum acceptable level of nursing prac-        agnosis, prohibited to nurses under Texas Jaw. See TEX.
    tice" for a given setting. See 22 TEX ADMIN. CODE §             ace. CODE ANN.§ 301.004(b) (Nursing Practice Act); 
    id. 217.11. Among
    the standards applicable [*342) to all            § 151.002(a)(J3) (Medical Practice Act). Accordingly,
    nurses are the requirements that a nurse [**18) know            the signs, symptoms, and responses the nurses were
    the rationale for and effects of medications and treat-         obliged to report and document could not have included
    ments and correctly administer them, as well as accu-           the characterization or diagnosis of the symptoms as be-
    rately and completely reporting the patient's signs,            ing indicative of HIT.
    symptoms, and responses. !d.§ 217.11(/)(C), (D).
    Chendrasekhar's proposed standard of care effec-
    11
    In defining         professional nursing," the Nursing      tively required the nurses to engage in the unauthorized
    Practice Act specifically excludes "acts of medical diag-       practice of medicine by making a medical diagnosis.
    nosis." TEX. ace. CODE ANN. § 301.002(2) (West Supp.            Anything that could be characterized as the practice of
    20 I 0). Furthermore, the Act specifically states that it       medicine is expressly excluded from the scope of profes-
    "does not authorize the practice of medicine as defined         sional nursing in Texas as defined by the Nursing Prac-
    by Chapter !51" of the Occupations Code. See 
    id. § tice
    Act. See TEX. ace. CODE ANN. § 301.004(b). The
    301.004(b). The Medical Practice Act defines "practicing        nurses had no legal duty to draw any conclusion from
    medicine 11 to include "the diagnosis, treatment, or offer to   their observations about the patient1s signs, symptoms,
    treat a mental or physical disease or disorder or a physi-      and responses that would have required a medical diag-
    cal deformity or injury by any system or method, or the         nosis. Chendrasekhar's testimony [*343] suggesting
    attempt to effect cures of those conditions." 
    Id. § otherwise
    constituted no evidence [**21] of a higher
    Page 6
    
    369 S.W.3d 333
    , *; 2011 Tex. App. LEXIS 10215, **
    standard of care because such a standard would imper-         that a particular medical condition has resulted. This is
    missibly hold nurses to standard higher than that allowed     particularly true when, as occurred in this case, the signs
    by law. See Birchfield v. Texarkana Mem'l Hasp., 747          and symptoms observed by a nurse are consistent with
    S. W.2d 361, 365 (Tex. 1987) (expert's opinion on a           more than one disease, syndrome, or cause. Opinion tes-
    mixed question of law and fact must be predicated on          timony about the standard of care in a medical malprac-
    "proper legal concepts"); Schneider v. Haws, 118 S. W.3d      tice case cannot be used to expand this responsibility to
    886, 889-90 (Tex. App.--Amarillo 2003, no pet.) (medical      nurses in conflict with Texas statutes and regulations
    malpractice expert witness1s attempt to impose upon a         governing the nursing profession. To the extent Chen-
    doctor and his assistant "a standard of care greater than     drasekhar also opined that Methodist's nurses should
    that compelled by law ... constituted no evidence, as a       have gone over the heads of German's treating doctors to
    matter of law, of the applicable standard of care"). The      seek 11 Satisfaction11 when those doctors did not diagnose
    nursing journals entered into evidence also were no evi-      German with HIT and treat [**24] him [*344] ac-
    dence that a nurse should interpret certain symptoms as       cordingly, we hold that such testimony also fails because
    indicating HIT. Instead, consistent with the definition of    it is based on the same flawed premise that the nurses
    professional nursing in Texas, see 22 TEX. ADMIN. CODE        effectively could be required to diagnose HIT.
    § 217.11 (l)(C), (D), they merely stated that, when a pa-
    tient receives heparin, a nurse should: monitor and report    B. Breach and causation--adequacy and effect of
    11
    downward trends in platelet count; report any change in       nurses' observations and reports
    11
    pulsation or color of an extremityn; observe certain
    11
    The nurses' failures to identify HIT and act in ac-
    signs including "poor capillary refill, weakened or absent
    cordance with Dr. Chendrasekhar's opinion of their du-
    pulses or other signs of decreased perfusion 11 ; and "re-
    ties in that regard were not the only theories of Meth-
    port11 such 11 signs [**22] and symptoms."
    odist1s negligence presented at trial. German also con-
    In addition, Chendrasekhar's testimony that he was       tended that the nurses failed to observe and properly
    unaware of the Texas statutes governing or restricting        communicate to the doctors the presence of symptoms
    nursing practice made his testimony about the standard        that may have indicated HIT. In particular, Gennan ar-
    of care unreliable. See 
    Whirlpool, 298 S.W.3d at 637
    ,        gues that he presented evidence that the nurses failed to
    642. Although Chendrasekhar testified about his exten-        document and report to the physicians his downward
    sive experience in intensive care, including working with     trend in platelet counts, weak pulses, and clotting signs.
    and reviewing the work of nurses, Chendrasekhar did not       Chendrasekhar testified that the nurses failed to satisfy
    provide any basis for his opinion that the nurses' standard   their duty to document and communicate this infor-
    of care required them to determine that a patient suffered    mation to the doctors. German thus argues that the evi-
    from HIT and then act upon that determination. Any            dence supports the jury's verdict that acts of negligence
    such opinion in this case necessarily required reference      attributable to the hospital proximately caused his inju-
    to the relevant legal restrictions on the practice of nurs-   ries.
    ing, yet Chendrasekhar's opinion could not account for
    Methodist argues both that there is no evidence that
    these restrictions considering that he admitted being ig-
    the nurses failed to report completely on German's signs
    norant of their substance. Thus, to the extent that he tes-
    and no evidence that the nurses' [**25] actions caused
    tified that the nurses should have recognized German's
    Gennan1s injuries and amputations. In particular, Meth-
    symptoms as signs of HIT and characterized them as
    odist points to the evidence in the record about the thor-
    such, this testimony is no evidence of the applicable
    ough nursing assessments conducted in the cardiovascu-
    standard of care because of its fundamental unreliability.
    lar ICU and the physicians' testimony that they would not
    We hold that German offered no evidence of any           have done anything differently if the nurses provided
    standard of care effectively requiring the nurses to diag-    more information.
    nose HIT. This holding does [**23] not mean that a
    nurse has no duty to recognize and appropriately report       a. Adequacy of nurses' observations and communica-
    or otherwise act on the signs and symptoms of a danger-       tion
    ous allergic reaction. Instead, consistent with the com-
    Chendrasekhar testified that the nurses should have
    plementary provisions of the Medical and Nursing Prac-
    known the potential adverse effects of heparin, but their
    tice Acts, we hold that Texas law specifies that it is the
    deposition testimony showed their knowledge was inad-
    doctor, not the nurse, who draws medical conclusions
    equate. For example, Methodist's nurses testified that
    from the information observed and reported by the nurse.
    heparin can cause excessive bleeding, but they did not
    Only doctors are legally authorized to make a medical
    indicate awareness that clotting was one of the drug's
    diagnosis by evaluating a patient's medical treatment and
    potential adverse effects. When German's blood pressure
    the development of subsequent symptoms to conclude
    and pulses did not correlate, according to Chendrasekhar
    Page 7
    
    369 S.W.3d 333
    , *; 2011 Tex. App. LEXIS 10215, **
    the discordant pressure data implied "that some other           During German's critical first days in the cardiovascular
    process is going on, like--that's within the blood vessel,      ICU, nurses performed more than 30 head-to-toe nursing
    such as clotting, Because you are not feeling a pulse yet       assessments. Knaack testified that they were done within
    the blood pressure is such that you should be feeling a         one hour from the time German was admitted or read-
    pulse." He testified that the nurses should have recog-         mitted to the JCU and every four hours thereafter, These
    nized that the blood pressure was discordant and "at least      assessments included monitoring blood pressure and
    informed the physician that was caring for him"; that the       looking for signs of clotting. The nurses monitored Ger-
    nurses [**26] should have noticed a significant drop in         man's pulses and platelet counts during this same period,
    German's platelet counts from the time of his admission         testing his platelet counts ten times. Knaack also testified
    to the hospital to the time of each assessment; and that        that a bedside computer is assigned to each patient for
    they should have reported trends in his clotting signs as       the purpose of documenting the medical record and
    well.                                                           nursing notes. Nurses access laboratory results, including
    platelet levels, through the bedside computer. All the
    Nurse Knaack testified that, consistent with hospital
    doctors, respiratory therapists, and physical therapists, as
    procedure, the nurses performed a head-to-toe, hands-on
    well as the dietician and pharmacist, also had access to
    nursing assessment of German within one hour of each
    the laboratory results through the bedside computer.
    admittance to the cardiovascular ICU after surgery and
    every four hours thereafter. In doing so, a nurse exam-               Dr. Faisal Masud, a critical care anesthesiologist and
    ined all of German's major organ systems by sight, touch,       cardiac anesthesiologist, worked at Methodist's cardio-
    and measurements with medical equipment, as well as by          vascular ICU and treated German there, Methodist em-
    speaking to him when possible, For example, the cardio-         ployed around-the-clock cardiovascular ICU physicians
    vascular part of the assessment required the nurse to           and critical care specialists, so that physicians [**29]
    monitor German's heart sounds with a stethoscope, to            were available at all times if a nurse needed to contact a
    touch his neck veins to assess cardiac function, to look        specialist. Masud explained that the nurses work with the
    for swelling throughout his body, to check for pulses by        cardiovascular ICU team of surgeons, critical care spe-
    touching his arms, feet, and other body parts or by using       cialists, residents, physicians' assistants, and nurse prac-
    a Doppler machine, and to squeeze his nail beds and             titioners. He testified that nurses are an important part of
    watch the color return to determine capillary refill time.      patient care, serving 11 continuously at the bedside 11 be-
    The cardiovascular ICU nurses also monitored German's           cause 11 no physician can be continually at the bedside. 11
    [*345] vital signs--either every hour or every 15               He characterized the nurses' role as an 11 integral part of
    minutes--when he received certain medications. This             anything," explaining that physicians provide instruction
    monitoring [**27] included his blood pressure, respira-         to the nurses, that the physicians and nurses routinely
    tory rate, temperature, heart rate, pulmonary artery cath-      exchange information, with nurses reporting significant
    eter reading, drip medication and pulmonary status, ox-         changes to the physician or other appropriate team
    ygen or- ventilator status, and neurological assessment.        member. Although he reviewed the nursing notes at
    The vital signs and the information from the periodic           times, he relied on the nurses' verbal updates about
    hands-on, head-to-toe assessments were stored in Ger-           changes in a patient's status. Masud explained that both
    man's bedside computer, which could be accessed by              as his general practice and specifically in the case of
    every member of the cardiovascular !CU.                         German's treatment, he listens to the nurses and actively
    evaluates and treats the patient while he is at the bedside,
    Knaack also testified about the importance of conti-
    nuity of care, which required communication among the                Chendrasekhar opined that the nurses' failure to
    patient1s health care providers, Continuity of care in-         recognize and act on the signs and symptoms of HIT
    cluded both written nursing records and verbal bedside          proximately caused [*346] German's injuries. Again
    updates from the nurses to the health care providers.           we look to the basis of his opinions, See Whirlpool
    Knaack testified that a nurse updates a doctor on 11 her        
    Corp., 298 S.W.3d at 637
    . [**30] Although the nurses
    clinical assessment findings ... anything related to the        could not be required to make a medical diagnosis of
    medications that the patient is receiving [and] lab work        HIT, they were required to accurately and completely
    or test results." She testified that the standard of care       report German's signs, symptoms, and responses. See 22
    does not require the nurse to record verbatim what she          TEX. ADMIN. CODE § 217. 11. There is no evidence sup-
    told the doctor; rather, the standard of care is satisfied if   porting Chendrasekhar's opinion that they failed to do so
    the nurse simply notes, uupdate given. 11                       in the sense that the relevant information was not actual-
    ly observed and documented. Nurse Knaack testified that
    Cardiovascular ICU nurses at Methodist follow
    the nursing record included notes on clinical assessments
    nursing standards based on those set by the American
    done in accordance with the one-hour and four-hour
    Association of Critical Care Nurses. Knaack reviewed
    standards set by the hospital and that these assessments
    [**28] the nurses' notes from the relevant time period.
    Page 8
    
    369 S.W.3d 333
    , *; 2011 Tex. App. LEXIS 10215, **
    included checking blood pressures, pulses in Gennan's          immediately before Gennan's second surgery, in which
    extremities, and looking for signs of clotting. In other       Dr. Michael Reardon, the co-director of the ICU, was
    words, the head-to-toe nursing assessments included the        present when Gennan began to descend into cardiac ar-
    very signs and symptoms that Chendrasekhar testified           rest. A nurse [*347] asked for Reardon's assistance.
    would be present in a patient who had HIT. And, criti-         Reardon placed German on the heart-lung machine,
    cally, Chendrasekhar himself testified that the doctors        [**33] administering heparin in the process. Chen-
    were provided all of the information they needed to di-        drasekhar offered his opinion that a nurse should have
    agnose HIT, including infonnation about Gennan's weak          told Reardon about the downward platelet trend, and if
    pulses and falling platelet levels. Although he criticized     she had, a hematology consult should have been ordered,
    the nurses' alleged failure to identity trends in the infor-   HIT should have been diagnosed, and ultimately heparin
    mation they recorded and the adequacy of the nurses'           should not have been used.
    verbal reports to the doctors, [**31] such as their fail-
    Dr. Reardon confirmed that when the nurse asked
    ure to verbally report about Gennan's downward trending
    him for help, he was not specifically made aware of any
    platelet count and fluctuating pulses at a critical point in
    downward trend in German's platelets and he did not call
    time, he acknowledged that the nurses had documented
    for a hematology consult. He looked only at the daily lab
    the underlying information in their assessments, which
    work and did not know of the falling platelet trend. But
    were available to the doctors. He thus agreed that the
    he testified that he would not have done anything differ-
    doctors should have been able to make a diagnosis of
    ently even if he had known of the falling trend, because
    HIT with the infonnation available to them--the same
    Gennan would have died if he did not take immediate
    information he relied upon to conclude that German's
    action. He testified:
    symptoms indicated HIT. Methodist's nurses observed
    and documented all of this information, upon which
    Q. On 9/20/02, if you had known that
    German's physicians contemporaneously relied for their
    Mr. Gennan's blood platelets were 68 on
    treatment decisions.
    that day and were 24 3 upon admission,
    The nursing notes indicate that treating physicians               would you have called for a hematology
    were frequently at Gennan's bedside while the nurses                  consult?
    were there monitoring and caring for German. Having
    A.No.
    reviewed the record, including those pmiions of the rec-
    ord identified in German's briefing as supportive of his                   Q. And why is that?
    claim, we find no evidence that the nurses failed to fully
    A. Because he was going to be dead
    discharge their duties to accurately and completely
    document the patient1S signs, symptoms, and responses.
    in a short period of time if I didn't get him
    Accordingly, the only possible remaining theories upon                on bypass, and by the time we could have
    gotten a hematologist, he would be dead
    which the jury could have concluded that the nurses
    and his platelet count would have been
    failed to satisfy the nursing [**32] standard of care are
    inunaterial.
    the possibilities that the nurses' duty to report infor-
    mation included the duty to identity trends in that infor-                 Q. So that would be the same for any
    mation or to verbally communicate particular infor-                    blood platelet [**34]level?
    mation at a particular time. We need not express any
    opinion about whether the evidence would have sup-                         A. That1s correct. It was my opinion,
    ported a finding of breach on these narrow theories be-               when the nurses asked me, that he was
    cause, as explained below, there is no evidence that any              going to die in short order without getting
    breach of that nature caused German's injuries.                       on the heart lung machine, which is why I
    placed him on it. If he had been stable
    b. Effect of nurses' reports on treatment decisions by
    enough to wait, I would have done what it
    German's physicians
    took to tide him over until his doctor, Dr.
    Ramchandani, was there.
    As suggested above, German contends that it was
    not enough for the nurses to observe and record infor-
    mation. Chendrasekhar testified that the nurses should
    have identified a downward trend in Gennan's platelets,             Dr. Masud was also present at this same time, and he
    that they should have specifically informed a treating         had been treating German for several days and was
    physician of that trend, and that their failure to do so       aware of the platelet count. Masud did not believe Ger-
    caused German to lose his fingers, a leg, and a foot.          man had HIT at the time. Instead, he believed that the
    Chendrasekhar also testified about a particular incident       low platelet count was a direct result of German's multi-
    ple surgeries and his bleeding. He testified that if a nurse
    Page 9
    
    369 S.W.3d 333
    , *; 2011 Tex. App. LEXIS 10215, **
    had persisted in questioning his judgment as to the cause       he had been checking German's laboratory results "con-
    of German's bleeding, he would have thanked the nurse,          tinuously ... interoperatively and post-operatively."
    explained why HIT was not the proper medical diagno-
    Chendrasekhar testified that if the nurses had in-
    sis, and, if necessary, asked for the nurse to be reassigned
    formed Reardon [**37] of the downward trend in
    to another patient.
    platelet levels, then Reardon should have called for a
    Three of German's other treating physicians also tes-      hematology consult and used the alternate anticoagulant
    tified that they either had all the information necessary to    when putting German on the heart-lung bypass machine.
    diagnose HIT, or tha~ if a nurse suggested a diagnosis of       But Reardon specifically testified that he would not have
    HIT it would not have changed their course of action or         taken that course of action if the nurses had informed
    their assessment that German did not have HIT. Dr.              him of German's platelet trend because it would have
    Lawrence Rice is a board-certified [**35] hematologist          cost German his life--thus indicating that the nurses' fail-
    who was consulted regarding German's case. Rice testi-          ure to report in accordance with Chendrasekhar's opinion
    fied that he would not have suspected HIT or ordered a          of how they should have did not cause German to receive
    heparin antibody test in the days following German's first      heparin. Chendrasekhar actually agreed that the surgical
    surgery, even if he knew the complete history of platelet       and medical interventions performed at Methodist were
    counts, because there were 11 8 lot of alternative explana-     necessary to save German's life and that he would have
    tions for the things going on." He testified that the two       died if the doctors had not performed the second heart
    additional surgeries and Reardon's action in placing            surgery. Finally, Chendrasekhar conceded that German's
    German on an emergency heart-lung bypass machine                many symptoms and complications were consistent with
    were necessary to save German's life. And although              diagnoses other than HIT, such as acute mitral valve re-
    German introduced evidence that an alternative blood            gurgitation.
    thinner, Argatroban, was used in treating patients with
    Causation requires proof that the "allegedly negli-
    HIT, Rice testified that even assuming German had HIT,
    gent act or omission constitute[s] 1a substantial factor in
    he would not have recommended the use of an alterna-
    bringing about the injuries, and without it, the harm
    tive blood thinner.
    would not have occurred."' Columbia Med. Ctr. of Las
    Dr. Luis Velez-Pestana, a physician who treated            Colinas, Inc. v. Hogue, 271 S. W3d 238, 246 (Tex. 2008)
    German in the cardiovascular ICU, testified that he had         (quoting [**38] IHS Cedars Treatment Ctr. of DeSoto,
    all the information he needed to care for German when           Texas, Inc. v. Mason, 143 S.W3d 794, 799 (Tex. 2004)).
    11
    he did. He said that although the nurses did not [*348]            Proximate cause cannot be satisfied by mere conjecture,
    identify a downward "trend" in platelet levels, he made         guess, or speculation. 11 
    Id. German1s treating
    physicians
    himself aware of German's platelet trend by checking his        testified that additional information or questions from the
    records. Velez testified that if a nurse had questioned         nurses would not have changed their course of treatment,
    him about whether German had HIT, he would have                 refuting the suggestion that any deficiency in the nurses'
    thanked her for the information "because [**36] it's            reporting proximately caused Ge1man s injuries. German
    1
    very important what they see there with the patient all         properly notes that the jury could have disbelieved the
    the time," but he would not have diagnosed HIT because          treating doctors' testimony, but he still carried the burden
    German did not display the signs and symptoms of HIT            of proving by a reasonable medical probability that his
    at that time. Velez also testified that if the nurse said she   injuries were caused by the alleged breach of failing to
    believed German to be having an allergic or adverse re-         identify trends in the information they had observed or
    action to heparin, he would have explained the clinical         by the alleged breach of failing to verbally notify a doc-
    and laboratory findings comported more with use of the          tor about this information. Chendrasekhar offered opin-
    cardiopulmonary bypass pump and his extreme                     ion testimony that, with more information, a doctor
    post-surgical bleeding than with a diagnosis ofHIT.             should have requested a hematology consult and then
    should have altered the course of treatment so as to avoid
    Dr. Saleem Zaidi was another critical care specialist
    use of heparin. But this speculative [*349] testimony
    with Methodist who treated German. When asked if he
    is insufficient to raise a question of fact on the element of
    would have acted differently if a nurse had suggested a
    causation, particularly in light of the undisputed evidence
    diagnosis of HIT, Zaidi explained that HIT was already
    that German would have died unless [**39] Reardon
    in his mind as a potential medical diagnosis, but the
    had immediately intervened. See Hogue, 271 S. W3d at
    treatment for HIT would have exacerbated bleeding and
    247.
    German was already in a ulife and death" situation.
    Moreover, Zaidi testified that he knew of the downward              In sum, there is no evidence establishing a reasona-
    platelet trend because German was his patient, he had           ble medical probability that the course of German's
    cared for him 11 Continuously for four or five days, 11 and     treatment was influenced by any failure by nurses to
    communicate information to physicians. See Jelinek, 328
    Page 10
    
    369 S.W.3d 333
    , *; 2011 Tex. App. LEXIS 10215, **
    S. W.3d at 533. The documentary record reflects that the        platelet count was an adverse reaction to heparin, Knaack
    doctors had all of the information they needed available        stated, "They are trained that a drop in platelet count can
    to them, and the only fact question suggesting a breach         be an adverse reaction to many things, and it's the physi-
    of duty is whether the nurses should have done more to          cian's decision whether it's related to heparin or whether
    distill certain information for them. Regardless of any         it's a disease process. 11
    such breach by the nurses, the undisputed evidentiary
    Chendrasekhar did not testify as to a particular
    record also reflects German would have died if the treat-
    standard of care regarding training. He did not offer any
    ing doctors altered their course of treatment to obtain the
    opinion about what the nurses should have been taught,
    hematology consult suggested by German's expert. Ac-
    how they should have been trained, or how often they
    cordingly, there is no proof that the nurses' alleged defi-
    should received such instruction. He did not opine that
    ciencies were a substantial factor in bringing about Ger-
    the appropriate standard of care required Methodist to
    man's injuries. See 
    Hogue, 271 S.W.3d at 246
    . Chen-
    train its ICU nurses to recognize the adverse signs and
    drasekhar's opinions to the contrary were based on noth-
    symptoms of heparin. Rather, Chendrasekhar said that
    ing more than conjecture, guess, or speculation, render-
    the excerpts from nursing journals were relevant to the
    ing them insufficient to establish proximate causation by
    appropriate standard of care. [*350] In addition he
    a reasonable medical probability to support German's
    testified that he was completely unaware of licensin~ or
    negligence claims.
    continuing education requirements for nurses. Thus, to
    the extent he did [**42] offer testimony pertinent to the
    II. Failure to train [**40] nurses
    standard of care for training, his testimony was not sup-
    German also claimed that Methodist was negligent          ported by a reliable foundation.
    for failiug to train its nurses about potential adverse reac-
    Even if there were evidence of the hospital's duty to
    tions to heparin. On appeal, Methodist contends that
    train and a breach of that duty, German could not show
    there is no evidence of the standard of care with regard to
    that he was harmed by the hospital's failure to train un-
    the hospital's duty to train because the trial court specifi-
    less it resulted iii both the nurses' failure to conform to
    cally ruled before trial that Dr. Chendrasekhar could not
    the proper standard of care and his injury. As we have
    testify that Methodist should have provided nursing edu-
    explained, German's treating physicians testified that
    cation conc~ming HIT or that Methodist maliciously
    additional information or questions from the nurses
    failed to tram Its nurses about HIT. To prevail on this
    would not have changed their course of treatment. Ac-
    theory, German had to prove: (1) under the applicable
    cordingly, there is no evidence of a causal connection
    standard of care, the hospital had a duty to train its nurs-
    between any alleged failure to train the nurses and the
    es abo~t HIT; (2) the hospital breached this duty; (3) he
    injuries tliat German alleges. See Hogue, 2 71 S. W.3d at
    was mJured; and (4) there is a causal connection between
    247. We therefore hold that there was no evidence of
    the breach of care and the injury. See, e.g., Robins, 321
    standard of care or causation for German's theory of neg-
    S. W.3d at 205.
    ligent failure to train.
    There is no evidence of the standard of care in the
    record. Nurse Knaack testified that, during the time when       Conclusion
    German was in the hospital, it was her job to make sure
    Because we hold that there is no evidence of at least
    she had "hired and trained competent staff." She said that
    one element of each of German's theories of negligence,
    Methodist's nurses were trained to monitor the patients
    we sustain Methodist's first three issues. We reverse the
    including performing the head-to-toe assessment look:
    ing at lab values, recording information, and re~orting
    trial court's judgment and render a take-nothing judgment
    in favor of Methodist. In light of this disposition, we
    [**41] to the physicians. She testified that she did not
    need not address Methodist's remaining issues.
    specifically train the nurses that blood clotting could be
    an adverse reaction to heparin, and she could not say if            Michael [**43] Massengale
    that training had been otherwise provided to them. When
    asked whether the nurses were trained that a drop in                Justice