Burroughs Wellcome Co. v. Crye

907 S.W.2d 497, 38 Tex. Sup. Ct. J. 848, 1995 Tex. LEXIS 104, 1995 WL 359028
CourtTexas Supreme Court
DecidedJune 15, 1995
Docket94-0792
StatusPublished
Cited by1,062 cases

This text of 907 S.W.2d 497 (Burroughs Wellcome Co. v. Crye) is published on Counsel Stack Legal Research, covering Texas Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Burroughs Wellcome Co. v. Crye, 907 S.W.2d 497, 38 Tex. Sup. Ct. J. 848, 1995 Tex. LEXIS 104, 1995 WL 359028 (Tex. 1995).

Opinions

SPECTOR, Justice,

delivered the opinion of the Court,

in which PHILLIPS, Chief Justice, HIGHTOWER, CORNYN, GAMMAGE and ENOCH, Justices, join.

We consider whether, under the facts of this case, there is any evidence of causation to support a products liability judgment against Burroughs Wellcome Company. The court of appeals held that the jury’s finding of producing cause is supported by legally sufficient evidence. - S.W.2d -. We hold that there is no evidence establishing that Jewell K. Crye suffered a frostbite injury as a result of using the product at issue, Polysporin® spray. Therefore, we reverse the judgment of the court of appeals and render judgment that Robert N. Crye, as Independent Executor of the Estate of Jewell K. Crye, take nothing.

This suit arose when Jewell K. Crye sought treatment for ulcers on her feet that were caused by diabetes. Such ulcers create a portal of entry for infection. Dr. Peter Herman, a dermatologist, recommended to Crye that she use Polysporin in the powder form for treatment of fungal infections on her feet. Instead, Crye purchased a can of Polysporin spray, which is manufactured by Burroughs Wellcome Company and available over the counter. Polysporin spray is an antibiotic powder that is applied by an aerosol spray using freon as its propellant.

Crye applied Polysporin spray to her foot for the first and only time on or about March 4, 1987. Her foot became red and swollen following application of the spray. Crye visited Dr. Herman on March 6,1987, and gave a history of having used Polysporin spray. Dr. Herman noted swelling of the first and second toes and foot ulcers. He diagnosed the problem as an infection of the left first toe web, the area of skin between the big toe and the adjacent toe. Dr. Herman, who frequently treats diabetics, prescribed medication for the infection, including antibacterial, antifungal and anti-yeast soaks, creams for ulcers, and antibiotics.

Crye returned to Dr. Herman on March 13. At this time, Dr. Herman recommended hospitalization because the ulcers had not healed, and this condition created the potential for ongoing infection, which could lead to skin necrosis, larger ulcers, and possible foot amputation.

Instead of entering the hospital, on March 16, 1987, Crye visited Dr. Cornelius Blesius, her long-time primary care physician. Dr. Blesius diagnosed Crye’s foot condition as frostbite. He based this diagnosis on the lack of redness on the foot and on a small piece of dead skin in the web of her foot next to the big toe. Dr. Blesius referred Crye to a podiatrist, Dr. Errol Schoenbrun. Shortly thereafter, Crye was hospitalized. Crye’s infection was controlled during her hospitalization without amputation, but she was never able to walk unaided again.

[499]*499Crye brought this products liability action against Burroughs Wellcome Company, alleging design and marketing defects, negligence, and breach of warranty. The jury found that design and marketing defects in Polysporin spray were a producing cause of Crye’s injuries. The jury also found that Burroughs was negligent, that the spray was unfit for the ordinary purposes for which such sprays are used, and that both Burroughs’ negligence and the unfit condition of the spray proximately caused Crye’s injuries. The trial court granted Burroughs’ motion for judgment notwithstanding the verdict as to design defect, but rendered judgment for Robert N. Crye, as Independent Executor of the Estate of Jewell K. Crye, based on the remainder of the claims.1 The court of appeals affirmed.

In reviewing a claim of legal insufficiency of the evidence, this Court considers only the evidence and inferences that tend to support the jury’s finding and disregards all evidence and inferences to the contrary. Davis v. City of San Antonio, 752 S.W.2d 518, 522 (Tex.1988); Garza v. Alviar, 395 S.W.2d 821, 823 (Tex.1965). A jury’s finding will be upheld if more than a scintilla of evidence supports it. Stafford v. Stafford, 726 S.W.2d 14, 16 (Tex.1987). More than a scintilla of evidence exists where 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.” Transportation Ins. Co. v. Moriel, 879 S.W.2d 10, 25 (Tex.1994).

To establish causation in a personal injury case, a plaintiff must prove that the conduct of the defendant caused an event and that this event caused the plaintiff to suffer compensable injuries. Morgan v. Compugraphic Corp., 675 S.W.2d 729, 731 (Tex.1984). The issue in this cause is whether there is more than a scintilla of evidence that supports a causal nexus between the event sued upon — the use of Polysporin spray in the absence of adequate warnings and instructions in the packaging and labeling of the spray — and Crye’s injuries.

Frostbite is the only injury for which Crye alleges Burroughs failed to provide warnings and instructions. The nature of a frostbite injury is such that expert medical testimony is required to establish causation. Cf. Insurance Co. of North Am. v. Myers, 411 S.W.2d 710, 713 (Tex.1966).

The evidence offered in support of Crye’s claim that she suffered a frostbite injury as a result of using the Polysporin spray consists of the expert opinion of Dr. Blesius, factual testimony concerning the progression of Crye’s injuries, and hospital and other medical records. We now turn to a review of the legal sufficiency of this evidence.

Dr. Blesius testified that Polysporin spray caused Crye to suffer from frostbite. Dr. Blesius based this opinion on the assumptions (1) that there was no redness on Crye’s foot after the spray was applied; and (2) that Crye did not apply the spray as directed by the product labeling and instructions. Dr. Blesius stated that if Crye’s foot was red after the spray was applied, then his diagnosis would have been different. He explained that redness is consistent with Dr. Herman’s diagnosis of infection. Dr. Blesius also testified that if Crye followed the product labeling and instructions, then she probably did not suffer a frostbite injury.

Jewell Crye testified in a deposition and her husband testified at trial that Crye’s foot was red after the spray was applied. No witness testified and no evidence was offered to the contrary. Furthermore, Crye testified that she applied the spray as directed. Once again, there is no evidence to the contrary.

We hold that Dr. Blesius’ testimony constitutes no evidence that Polysporin spray caused Crye to sustain a frostbite injury. When an expert’s opinion is based on assumed facts that vary materially from the actual, undisputed facts, the opinion is without probative value and cannot support a verdict or judgment. See Schaefer v. Texas Employers’ Ins. Ass’n, 612 S.W.2d 199, 202-05 (Tex.1980) (reviewing substance of medi[500]

Free access — add to your briefcase to read the full text and ask questions with AI

Related

N.F. v. A.S.
Court of Appeals of Texas, 2017
Monasco v. Gilmer Boating and Fishing Club
339 S.W.3d 828 (Court of Appeals of Texas, 2011)
Martinez v. Hays Construction, Inc.
355 S.W.3d 170 (Court of Appeals of Texas, 2011)
AUSTIN ISD v. Manbeck
338 S.W.3d 147 (Court of Appeals of Texas, 2011)
Muela v. Gomez
343 S.W.3d 491 (Court of Appeals of Texas, 2011)
Leesboro Corp. v. Hendrickson
322 S.W.3d 922 (Court of Appeals of Texas, 2010)
Barton v. Whataburger, Inc.
276 S.W.3d 456 (Court of Appeals of Texas, 2009)
Houston Cab Co. v. Fields
249 S.W.3d 741 (Court of Appeals of Texas, 2008)
In the Interest of Roy
249 S.W.3d 592 (Court of Appeals of Texas, 2008)
Lake v. Premier Transportation
246 S.W.3d 167 (Court of Appeals of Texas, 2008)
Emerson Electric Co. v. American Permanent Ware Co.
201 S.W.3d 301 (Court of Appeals of Texas, 2006)
Springs Window Fashions Division, Inc. v. Blind Maker, Inc.
184 S.W.3d 840 (Court of Appeals of Texas, 2006)
Reliance Steel & Aluminum Co. v. Sevcik
268 S.W.3d 65 (Court of Appeals of Texas, 2006)

Cite This Page — Counsel Stack

Bluebook (online)
907 S.W.2d 497, 38 Tex. Sup. Ct. J. 848, 1995 Tex. LEXIS 104, 1995 WL 359028, Counsel Stack Legal Research, https://law.counselstack.com/opinion/burroughs-wellcome-co-v-crye-tex-1995.