Brookshire Brothers, Inc. v. Smith

• Decision Date: 13 May 2004
• Docket Number: No. 01-02-00677-CV.,01-02-00677-CV.
• Citation: 176 S.W.3d 30
• Parties: BROOKSHIRE BROTHERS, INC., Appellant, v. Wesley SMITH, Appellee.
• Court: Texas Supreme Court

176 S.W.3d 30

BROOKSHIRE BROTHERS, INC., Appellant, v. Wesley SMITH, Appellee.

No. 01-02-00677-CV.

Court of Appeals of Texas, Houston (1st Dist.).

May 13, 2004.

Supplemental Opinion Denying Further Rehearing and En Banc Reconsideration February 17, 2005.

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Curtis W. Fenley III, Warren T. McCollum, Fenley & Bate, L.L.P., Lufkin, TX, for Appellant.

Alice Oliver-Parrott, Maria Teresa Arguindegui, Burrow & Parrott, L.L.P., Houston, TX, Reese Andrews, Nacogdoches, TX, for Appellee.

Panel consists of Chief Justice RADACK and Justices ALCALA and HIGLEY.

OPINION ON REHEARING

ELSA ALCALA, Justice.

Appellee, Wesley Smith, has filed a motion for rehearing and a motion for rehearing en banc of our opinion on rehearing, issued on December 31, 2003. Appellant, Brookshire Brothers, Inc. (Brookshire), has filed a response to both motions. We grant rehearing, withdraw our opinion of December 31, 2003, issue this opinion in its stead, and vacate our judgment of December 31, 2003. Accordingly, we deny the motion for rehearing en banc as moot.¹

In this chemical-exposure case, Brookshire appeals a jury verdict rendered in favor of appellee, Wesley Smith, for injuries Smith claims that he sustained when he was exposed to commercial cleaning products while employed by Brookshire. The jury awarded Smith $46,000 in actual damages and $250,000 in punitive damages, but the trial court reduced the punitive-damages award to $200,000. See TEX. CIV. PRAC. & REM.CODE ANN. § 41.008 (Vernon Supp.2004). In seven issues, Brookshire challenges the legal sufficiency of Smith's causation evidence, the admissibility of that evidence, and the jury's finding of malice. We reach only the legal-sufficiency issue and reverse and render judgment that Smith take nothing.

Background

In September 1995, Smith was employed as a general maintenance worker at a Brookshire grocery store. During an evening shift, Doug Kranzler, Smith's immediate supervisor, directed Smith to clean the walls and vents of the store's bakery. Kranzler provided Smith with several commercial cleaners, including Clorox Liquid Bleach, Easy-Off Oven Cleaner, Lime-A-Way, Scrubbing Bubbles, and Clorox Formula 409. After Smith began applying the commercial cleaners in the bakery, he experienced irritation to his eyes, skin, nose, and throat. Smith complained to Kranzler about the irritation and asked for protective gear to wear while cleaning the bakery. Kranzler informed Smith that protective gear was not available and directed Smith to complete his work. Despite persistent irritation, Smith continued cleaning the bakery.

On the following evening, Kranzler again directed Smith to use the same combination of commercial cleaners to clean the store's bathroom. Kranzler did not provide Smith with any protective gear, and Smith experienced the same irritations as those of the previous evening. Smith left at the end of his shift, feeling ill. Smith's parents, concerned about his condition, took him for emergency-room treatment. Smith was diagnosed with reactive airways dysfunction syndrome (RADS), an asthmatic condition that impairs breathing and oxygen flow.

Smith sued Brookshire for personal injuries, alleging that Brookshire's negligence and failure to provide a reasonably safe workplace proximately caused his RADS. At trial, Smith presented excerpts of the deposition testimony of Gary Friedman, M.D., a board-certified specialist in pulmonary disease and internal medicine, as his sole evidence of causation.² Dr. Friedman testified that the September 1995 chemical exposure proximately caused Smith to suffer from either RADS or a similar asthmatic condition. Dr. Friedman based his opinion on material safety data sheets (MSDS), the commercial cleaners' warning labels, Smith's medical records, and Smith's personal account of his exposure to commercial cleaners on the evenings in question. The MSDS and warning labels identified the contents of the commercial cleaners and the health hazards associated with each. Dr. Friedman clarified, however, that he was not an expert in chemistry. He did not know which commercial cleaner, or combination of cleaners, caused Smith's RADS and did not know the amount of chemical concentration to which Smith had been exposed. At no point did Dr. Friedman refer to any scientific literature associating RADS with commercial cleaners.

Causation and Chemical Exposure

In its fifth issue, which is dispositive of this appeal, Brookshire contends that the evidence was legally insufficient to prove that Smith's RADS resulted from chemical exposure. This issue requires us to decide whether the causation evidence Dr. Friedman offered was scientifically reliable and thus more than a scintilla of evidence to support the judgment in Smith's favor.

A. Preservation of Error

As a preliminary matter, we address Smith's contention that Brookshire did not preserve error. "To preserve a complaint that scientific evidence is unreliable and thus, no evidence, a party must object to the evidence before trial or when the evidence is offered." Kerr-McGee Corp. v. Helton, 133 S.W.3d 245, 251 (2004) (quoting Maritime Overseas Corp. v. Ellis, 971 S.W.2d 402, 409 (Tex.1998)). An objection made after the jury has returned its verdict comes too late. Id. (quoting same). The purpose of the timeliness requirement is twofold: to allow the offering party "an opportunity to cure any defect" and to prevent "trial and appeal by ambush." Id. (quoting same).

In Kerr-McGee Corporation, the expert testimony of Michael Riley was the only evidence offered on the amount of damages for breach of an implied covenant to protect a leasehold. 133 S.W.3d at 247. After cross-examining Riley, Kerr-McGee objected and moved to strike the testimony as unreliable. Id. The trial court overruled the motion and entered judgment on the jury verdict, and the court of appeals affirmed. Id. On Kerr-McGee's petition for review, the supreme court concluded that Riley's expert testimony was unreliable and, therefore, no evidence. As here, the responding party argued that Kerr-McGee did not timely object and therefore had not preserved error. See id. at 251, 133 S.W.3d at 250-51. The supreme court held that Kerr-McGee preserved error, as required by Maritime Overseas v. Ellis, by objecting to Riley's testimony immediately after cross-examining him. Kerr-McGee Corp., 133 S.W.3d at 252.

Before trial began, Brookshire moved to strike Dr. Friedman's testimony on the grounds that it was scientifically unreliable. The trial court considered this motion at a pretrial hearing and overruled Brookshire's objection.³ Dr. Friedman testified at trial through excerpts of his deposition read into the record. Before his testimony was offered, the trial court ruled on the objections that Brookshire had made during the deposition and thus clarified which excerpts would come into evidence. As Dr. Friedman's deposition testimony was presented, Brookshire objected again to Dr. Friedman's testimony, as follows: "[H]e is not qualified based on Daubert-Havner. He does not know the chemical concentrations and does not know the chemicals and does not know the exposures. His testimony is based on MSDS sheets, which is improper scientific evidence." Brookshire's objection occurred just before the portion of Dr. Friedman's testimony in which he referred to MSDS sheets. The trial court overruled Brookshire's objection, noting, "Your objection is overruled. You have it on the record."

We conclude that Brookshire complied with the timeliness requirements of Maritime Overseas v. Ellis by moving to strike and exclude Dr. Friedman's testimony, both before trial began and during trial, on the grounds that his expert testimony was not reliable. There was no trial by ambush, and there has been no appeal by ambush. See Kerr-McGee Corp., 133 S.W.3d at 251.

B. Standard of Review

Brookshire's burden on appeal is to demonstrate that there is no evidence to support the adverse judgment in favor of Smith. See Croucher v. Croucher, 660 S.W.2d 55, 58 (Tex.1983). In determining whether there is no evidence of probative force to support a jury's finding, we consider the evidence in the light most favorable to the verdict and indulge every reasonable inference in the prevailing party's favor. Merrell Dow Pharm., Inc. v. Havner, 953 S.W.2d 706, 711 (Tex.1997). We will sustain a no-evidence point when (1) there is a complete absence of evidence of a vital fact, (2) the court is barred by rules of law or 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 conclusively establishes the opposite of a vital fact. Id. More than a scintilla of evidence exists when the evidence supporting the finding, as a whole, rises to a level that would enable reasonable and fair-minded people to differ in their conclusions. Id.

To establish causation in a personal-injury suit, a plaintiff must prove that the defendant's conduct caused an event and that this event caused the plaintiff to suffer compensable injuries. Burroughs Wellcome Co. v. Crye, 907 S.W.2d 497, 499 (Tex.1995); Coastal Tankships, U.S.A., Inc. v. Anderson, 87 S.W.3d 591, 603 (Tex.App.-Houston [1st Dist.] 2002, pet. denied). When a lay person's general experience and common sense will not enable that person to determine causation, expert testimony is required. Coastal Tankships, 87 S.W.3d at 603. Expert testimony is particularly necessary in chemical-exposure cases, in which medically complex diseases and causal ambiguities compound the need for expert testimony. See id.; see also Hernandez v. Tex. Employers' Ins. Ass'n, 783 S.W.2d 250, 252-53 (Tex.App.-Corpus Christi 1989, no writ) (holding that expert testimony needed to determine cause of asthma, which had uncertain causal nature).

Expert testimony must be reliable; otherwise, it...