Edgar Ortega and Bituminous Insurance Company v. National Oilwell Varco, L.P. ( 2014 )

In The
Court of Appeals
Seventh District of Texas at Amarillo
No. 07-13-00140-CV
EDGAR ORTEGA AND BITUMINOUS INSURANCE COMPANY, APPELLANTS
V.
NATIONAL OILWELL VARCO, L.P., APPELLEE
On Appeal from the 31st District Court
Hemphill County, Texas
Trial Court No. 6708, Honorable Steven Ray Emmert, Presiding
April 24, 2014
MEMORANDUM OPINION
Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.
Edgar Ortega and Bituminous Insurance Company (jointly referred to as Ortega) 1
appeal from the granting of a no evidence motion for summary judgment in favor of
National Oilwell Varco, L.P. (NOV). Ortega sued NOV alleging claims of negligence
and products liability for injuries received while working on an oil rig manufactured by
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Bituminous Insurance Company was subrogated to the rights of Edgar Ortega by virtue of
having paid him workers’ compensation benefits.
NOV. In response to the summary judgment motion,2 Ortega offered only an affidavit
from an engineer who opined as to NOV’s liability. NOV objected to the opinions
offered in the affidavit, and the trial court sustained the objections in part and granted
the motion for summary judgment. The issues raised on appeal involve the propriety of
the affidavit. We affirm the judgment.
Ortega challenges the trial court’s finding that William Munsell (the engineer)
lacked the qualifications to render the opinions given and that his testimony was
conclusory, speculative, and lacking in factual support. We need only address the
propriety of the latter finding for it is dispositive.
Munsell’s affidavit consisted of a statement describing the information he had
reviewed which information included his examination or review of 1) “component parts
and research concerning such component parts,” 2) “the Model 5C rig manufactured by
National Oilwell VARCO . . . and involved in the subject accident,” and 3) seven
depositions and exhibits thereto. He also mentioned interviewing four persons. The
entirety of the opinions that followed are these:
My opinion is that the subject workover rig . . . was defective as designed
and manufactured, and that said rig was negligently designed and
manufactured by the manufacturer, in such respects as are more
specifically set forth hereafter. Further, the defects and acts and
omissions of negligence were producing and proximate causes of the
accident in which Mr. Ortega was injured.
A. National Oilwell VARCO (NOV) is responsible for incorporating a
component part which failed to perform as NOV intended at the
time of the accident and which acted as a producing and proximate
cause of the accident.
B. The subject NOV rig incorporated a manufacturing defect.
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NOV alleged there was no evidence of any of the elements of negligence or strict products
liability and no evidence of the elements of breach of duty and proximate cause with respect to negligent
products liability.
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C. The NOV rig was defectively designed in that it incorporated a
safety system that failed in a foreseeable way, which made the
machine unreasonably dangerous.
D. At the time of manufacture of the subject NOV rig, economically
feasible, safer alternative designs were available.
E. The subject NOV rig was defectively designed in that it
incorporated unnecessary delays in the braking function.
F. NOV is either withholding evidence or in the alternative has failed to
perform any of the steps of proper design and development in
creating the braking system in use on the subject rig at the time of
the accident.
G. NOV irrevocably spoiled the evidence which had been previously
preserved by Northstar after the subject accident.
H. During the accident, the service and emergency brakes of the
subject rig completely failed to function.
Conclusory statements by an expert witness are insufficient to raise a question of
fact to defeat a summary judgment. McIntyre v. Ramirez, 109 S.W.3d 741, 749 (Tex.
2003). Conclusory statements are ones that do not provide the underlying facts to
support the conclusion. Brown v. Brown, 145 S.W.3d 745, 751 (Tex. App.—Dallas
2004, pet. denied); see also City of San Antonio v. Pollock, 284 S.W.3d 809, 818 (Tex.
2009) (stating that an expert opinion is conclusory when the opinion has no basis or
when the basis provides no support); Burrow v. Arce, 997 S.W.2d 229, 236 (Tex. 1999)
(stating that an expert must provide a reasoned basis for his opinion).
Munsell’s opinions and statements are conclusory. The most we can derive from
them is that 1) some unnamed “component part” failed to perform as intended and
acted as “a producing and proximate cause of the accident,” 2) an unnamed safety
system failed in a foreseeable way, 3) safer alternative designs were available, 4) there
were unnecessary delays in the braking function, and 5) the service and emergency
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brakes failed to function.3 Yet, the affiant did not explain or reveal 1) what the
component part was and whether it was part of the braking system or some other
system, how the part was designed or manufactured defectively, and how the failure of
the part resulted in the accident, 2) whether the safety system that failed is the braking
system or some other system, how the safety system was designed or manufactured
defectively, why it was foreseeable that the system would fail, and how that failure
resulted in the accident, 3) the identity or description of safer alternative designs that
were purportedly feasible, why they were safer and feasible, and whether they would
have prevented or reduced the risk of personal injury without impairing the utility of the
product, 4) what facts made the delays in the braking function unnecessary and how
those delays resulted in the accident, and 5) what facts showed a breach of duty by
NOV with respect to the failure of the brakes. The absence of this information is fatal
since no other summary judgment evidence appears of record to explain the
conclusions reached by Munsell. Therefore, the trial court did not err in finding his
opinions to be conclusory, that is, lacking in factual support. See Yost v. Jered Custom
Homes, 399 S.W.3d 653, 660-61 (Tex. App.—Dallas 2013, no pet.) (noting that “Porter's
affidavit presents no evidence that appellee did not construct the house and foundation
according to the designs prepared by the Byerses' experts” and finding the statement
that the foundation problems resulted from "‘the absence of provisions to protect against
heaving’" conclusory because “neither his affidavit nor his report detail what these
‘provisions’ were, nor do they provide evidence of how those provisions could have
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We will not address the opinions regarding spoliation and withholding of evidence because no
such claims have been asserted.
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prevented the foundation damage in this case or how their absence caused the
damage”).
And, to the extent that Ortega argued the trial court’s ruling as to the conclusory
nature of the affidavit is contradicted by its finding that Munsell’s opinions were based
on personal knowledge, we find the matter inconsequential. Simply put, personal
knowledge of what may be said in an affidavit and disclosing that knowledge and the
facts intertwined with it are different things. A witness may have personal knowledge of
facts; yet, he must still disclose those facts for his testimony to have any value. So,
while the engineer at bar may have had personal knowledge of his opinions and facts
underlying them, his opinions were conclusory and lacked probative value because
those facts (or the rationale for his opinions) went unmentioned in his affidavit.
Similarly inconsequential is Ortega’s proposition that the trial court’s rulings were
tantamount to granting a Robinson challenge without a hearing. See E.I. du Pont de
Nemours and Co., Inc. v. Robinson, 923 S.W.2d 549, 556 (Tex. 1995) (requiring the
proponent of expert testimony to show it is based on a reliable foundation). The flaw
again involves comparing unlike topics. The trial court was dealing not with the
reliability of Munsell and his opinions but rather with a summary judgment tenet
denuding conclusory statements of evidentiary value. Munsell’s opinions may be quite
reliable but they have no evidentiary value (for purposes of summary judgment practice)
if unaccompanied by explanation or fact. Indeed, when testimony is challenged as
being non-probative or conclusory on its face, there is no need to go beyond the face of
the record to determine their reliability. Coastal Transp. Co. v. Crown Cent. Petroleum
Corp., 136 S.W.3d 227, 233 (Tex. 2004) (stating that “[w]hen the expert's underlying
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methodology is challenged, the court ‘necessarily looks beyond what the expert said’ to
evaluate the reliability of the expert's opinion . . . . When the testimony is challenged as
conclusory or speculative and therefore non-probative on its face, however, there is no
need to go beyond the face of the record to test its reliability”).
Accordingly, the judgment is affirmed.
Per Curiam
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