Praytor v. Ford Motor Co.

• Decision Date: 12 December 2002
• Docket Number: No. 14-01-00734-CV.,14-01-00734-CV.
• Citation: Praytor v. Ford Motor Co., 97 S.W.3d 237 (Tex. App. 2002)
• Parties: Rachael PRAYTOR, Appellant, v. FORD MOTOR COMPANY and Charlie Thomas Ford, Inc., Appellees.
• Court: Texas Court of Appeals

97 S.W.3d 237

Rachael PRAYTOR, Appellant, v. FORD MOTOR COMPANY and Charlie Thomas Ford, Inc., Appellees.

No. 14-01-00734-CV.

Court of Appeals of Texas, Houston (14th Dist.).

December 12, 2002.

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Darrin Mitchell Walker, Kingwood, for appellant.

Amy Douhitt Maddux, Michael P. Lennon, Houston, for appellees.

Panel consists of Justices EDELMAN, SEYMORE, and GUZMAN.

CORRECTED OPINION

CHARLES W. SEYMORE, Justice.

Rachael Praytor appeals a judgment in favor of Ford Motor Company on the ground that she presented sufficient evidence of causation to defeat summary judgment. We affirm.

Factual Background

Praytor was involved in an automobile accident in which the air bag in her Ford Probe deployed. Some time after the accident, she began to suffer from sinusitis and asthma. Praytor filed suit against Ford Motor Company and Charlie Thomas Ford¹ alleging the sinusitis and asthma were caused by exposure to chemicals released when the air bag deployed. Ford filed a no-evidence motion for summary judgment on the ground that Praytor had not produced evidence of causation. Praytor responded by attaching the affidavits of her experts, Dr. Alex Lechin, and Byron Bloch. Ford objected to Praytor's affidavits contending the experts did not meet the requirements of Rule 702 of the Texas Rules of Evidence. Neither party requested a Robinson-Daubert hearing prior to the trial court's ruling on the motion for summary judgment. The trial court granted summary judgment in favor of Ford stating, "Plaintiff has not produced legally competent evidence regarding causation, an essential element of her case."

Standard of Review

The "no-evidence" motion for summary judgment shifts the burden of proof to the non-movant to produce evidence raising a genuine issue of material fact on the contested issue on which the non-movant would bear the burden of proof at trial. See TEX.R. CIV. P. 166a(i). In this motion, a party asserts there is no evidence of one or more essential elements of claims upon which the opposing party would have the burden of proof at trial. Lake Charles Harbor and Terminal Dist. v. Bd. of Trs. of Galveston Wharves, 62 S.W.3d 237, 241 (Tex.App.-Houston [14th Dist.] 2001, pet. denied). Unlike a movant for traditional summary judgment, a movant for a noevidence summary judgment does not bear the burden of establishing a right to judgment by proving each claim or defense. Id. To defeat a "no-evidence" summary judgment motion, the non-movant need not marshal its proof but should only identify more than a scintilla of evidence raising a fact issue on the challenged elements. See TEX.R. Civ. P. 166(i) cmt.

Summary judgment is appropriate if the only evidence offered to prove an essential element of the claim cannot be given weight by the court. W. Wendell Hall, Standards of Review in Texas, 29 St. Mary's L. 351, 419 (1988). The non-movant may not rely on evidence that is barred from consideration by rules of law or evidence, or that amounts to no more than a scintilla. Id. A non-movant presents less than a scintilla of evidence when that which is proffered is "so weak as to do no more than create a mere surmise or suspicion" — the effect being that there is no evidence offered. Hight v. Dublin Veterinary Clinic, 22 S.W.3d 614, 619 (Tex. App.-Eastland 2000, pet. denied).

Necessity of Expert Testimony

Praytor claims the facts established by her summary judgment evidence

were sufficient to raise a fact question on causation for several reasons. First, Praytor contends that rule 702 does not apply because lay testimony is adequate to prove causation. To establish causation, a plaintiff must prove the defendant's conduct caused an event and that event caused the plaintiff to suffer compensable damages. Burroughs Wellcome Co. Crye. 907 S.W.2d 497, 499 (Tex.1995). The causal link between the event sued upon and the plaintiffs injuries must be shown by competent evidence. Morgan v. Compugraphic Corp., 675 S.W.2d 729, 731 (Tex.1984), Lay testimony will suffice when general experience and common sense will enable a lay person fairly to determine the causal nexus. Weidner v. Sanchez, 14 S.W.3d 353, 370 (Tex.App.-Houston [14th Dist.] 2000, no pet.).

Here, Dr. Lechin testified in his deposition that there can be several causes of sinusitis and asthma and that the diagnosis of their cause depends on the individual. General experience and common sense do not enable a fair understanding of causation under these circumstances; accordingly, expert testimony is required. See Leitch v. Hornsby, 935 S.W.2d 114, 119 (Tex.1996) (holding plaintiff must provide probative evidence through expert testimony connecting injury to tortious act). Praytor's reliance on Morgan, in which the supreme court held that lay testimony sufficiently showed chemical fumes caused an injury, is misplaced. Lay testimony sufficed in Morgan because a default rent left no evidentiary dispute as to whether general experience and common sense could allow a lay person to determine causation. 675 S.W.2d at 733.

Waiver of Rule 702 Requirements

Second, Praytor contends Ford valved its complaint that her expert affidavits were inadmissible by failing to obtain a ruling in the trial court. In support of her waiver argument, Praytor relies on Rogers v. Continental Airlines, Inc., 41 S.W.3d 196 (Tex. App.-Houston [14th Dist.] 2001, no pet.) and Dolcefino v. Randolph, 19 S.W.3d 906 (Tex.App.-Houston [14th Dist.] 2000, pet. denied). In those cases, we held that to preserve error with regard to admissibility of evidence, a party must obtain a ruling from the trial court. Rogers, 41 S.W.3d at 200; Dolcefino, 19 S.W.3d at 925. Those cases, however, involved an appealing party's attempt to preserve error on the admissibility of evidence.

Here, Praytor carried the burden to produce competent summary judgment evidence. Consequently, her reliance on Dolcefino and Rogers is misplaced. See Weiss, 989 S.W.2d at 124, n. 6. Ford, as the appellee, is not required to preserve error for appeal. Accordingly, Ford did not waive its rule 702 challenge to Praytor's expert witness affidavits. Finally, Praytor was notified of Ford's intent to challenge the qualifications and methodology of her experts when she received appellee's motion for summary judgment. The trial court, in holding that Praytor had failed to present "legally competent evidence," effectively concluded that the expert testimony was either inadmissible or insufficient.

Rule 702 Challenge in the No-Evidence Summary Judgment Context

Rule 702 contains three requirements for the admission of expert testimony: (1) the witness must be qualified; (2) the proposed testimony must be scientific knowledge; and (3) the testimony must assist the trier of fact to understand the evidence or to determine a fact in issue. E.I. du Pont de Nemours and Co., Inc., v. Robinson, 923 S.W.2d 549, 556 (Tex.1995). In order to constitute scientific knowledge which will assist the trier of fact, the proposed testimony must be relevant and reliable. Id.

The trial court must make the preliminary decision regarding the expert's qualifications under Rule 104(a). Gammill v. Jack Williams Chevrolet, Inc., 972 S.W.2d 713, 718 (Tex.1998). In United Blood Services v. Longoria, 938 S.W.2d 29 (Tex.1997), the Texas Supreme Court required summary judgment proof of an expert's qualifications in support of the response to a motion for summary judgment. Id. at 30. As a practical matter, this holding means that a party relying on an expert should not wait until trial to develop the expert's qualifications. The supreme court specifically rejected the approach of waiting for trial. Id. at 30 ("no difference obtains between the standards for evidence that would be admissible in a summary judgment proceeding and those applicable at a regular trial."). The party offering the expert's testimony bears the burden to prove the witness is qualified under rule 702. Broders v. Heise, 924 S.W.2d 148, 151 (Tex.1996). The offering party must demonstrate that the witness "possesses special knowledge as to the very matter on which he proposes to give an opinion." Gammill, 972 S.W.2d at 718. As an appellate court, we may not disturb a trial court's determination that a witness is unqualified as an expert unless a clear abuse of discretion is shown. Id. at 718-19. An expert may testify on scientific, technical, or other specialized subjects if the testimony would assist the fact finder in understanding the evidence or determining a fact issue. TEX.R. EVID. 702.

Praytor offered affidavits from two experts, Dr. Alex Lechin and Byron Bloch. Dr. Lechin is a medical doctor, board certified in pulmonary medicine. In his affidavit, he states that he reviewed medical literature concerning exposure to the chemicals released by air bag deployment. Lechin admitted in his deposition that he is not an expert on asthma, the causes of asthma, or whether deployment of an air bag can cause asthma. Further, Lechin does not purport to be an expert on the toxicity of chemicals released when an air bag deploys. Dr. Lechin's medical expertise is greater than that of the general population, but Praytor did not establish that his expertise on the issue of cause in fact met the requisites of Rule 702.

Similarly, there is sound basis for the trial court to conclude that Byron Bloch is not qualified to render an opinion on whether deployment of the air bag caused Praytor's respiratory symptoms. Bloch stated, in his affidavit, that he is an independent consultant on automotive safety design and vehicle crashworthiness. He has been qualified and given testimony as an expert in matters pertaining to defective automobiles. Further, Bloch is familiar with the air bag system that was in the automobile owned by Praytor. Bloch, however, professes no knowledge of the possible causes of respiratory illness.

We acknowledge the difficult circumstance Praytor faces in...