COURT OF APPEALS SECOND DISTRICT OF TEXAS FORT WORTH
NO. 02-10-00200-CV
DANNY SPRABARY, APPELLANT INDIVIDUALLY, AND ON BEHALF OF THE ESTATE OF DANNY SPRABARY, JR., DECEASED, AND AS NEXT FRIEND OF TIERNEY FAITH RODGERS, A MINOR CHILD
V.
GOODMAN NETWORKS, INC. APPELLEE
----------
FROM THE 153RD DISTRICT COURT OF TARRANT COUNTY
MEMORANDUM OPINION1 ----------
I. Introduction
In two issues, Appellant Danny Sprabary, individually and on behalf of the
Estate of Danny Sprabary, Jr. and Tierney Faith Rogers, a minor child, appeals
1 See Tex. R. App. P. 47.4. the trial court‘s summary judgment for Appellee Goodman Networks, Inc. We
affirm.
II. Factual and Procedural Background
Sprabary sued Goodman for the wrongful death of his son Danny, alleging
that Danny worked for Goodman, that Goodman knew Danny was diabetic, and
that Goodman had a plan in place to contact Danny‘s girlfriend or brother if
Danny began to suffer from hypoglycemia or other health-related issues while
working. He further alleged that on the day Danny died, Goodman had
scheduled Danny to meet with a trainee at a Wal-Mart before they went on a
service call together, that Danny subsequently experienced some distress, and
that the trainee notified Danny‘s supervisor about the situation but the supervisor,
instead of contacting Danny‘s girlfriend or brother, ordered the trainee to return
Danny to the Wal-Mart parking lot where he later died.
Goodman filed a traditional and no-evidence motion for summary judgment
and argued in the no-evidence portion that Sprabary had no evidence to show
that Goodman owed a legal duty to Danny, that it breached this duty on the
occasion in question, or that the breach actually or proximately caused Danny‘s
death. Goodman also argued that Sprabary could not offer more than a scintilla
of evidence that Danny‘s death was related to his diabetes. In the traditional
portion of its motion, Goodman argued, among other things, that heart disease,
rather than any act or omission by Goodman, was the proximate cause of
2 Danny‘s death, and it attached a portion of Tarrant County Deputy Medical
Examiner Marc A. Krouse, M.D.‘s deposition to support this ground.2
To Goodman‘s no-evidence and traditional causation grounds, Sprabary
responded,
Movant also claims that there is no evidence that Danny Sprabary, Jr. died as a result of issues related to his diabetes and that Dr. Marc Krouse, the medical examiner who performed the autopsy on Danny Sprabary, Jr. found that issues related to Danny Sprabary, Jr.[‘s] diabetes were not a proximate cause of Danny Sprabary Jr.‘s death. This claim has been controverted by the Affidavit of Marvin Pietruszka, M.D.[,] which is attached as Exhibit ―A[.]‖ In his affidavit, Dr. Pietruszka states that the finding[s] of the autopsy support a finding that Danny Sprabary‘s death was the result of issues related to diabetes mellitus.
Goodman objected to Dr. Pietruszka‘s affidavit and moved to strike it,
complaining that the affidavit contained conclusory opinions, failed to provide any
factual foundation, and was speculative. The trial court sustained Goodman‘s
objections to Dr. Pietruszka‘s affidavit, struck the affidavit, and granted summary
judgment for Goodman. This appeal followed.
III. Summary Judgment
In his first issue, Sprabary argues that the trial court erred by striking Dr.
Pietruszka‘s affidavit because it ―was based upon and included factual bases and
2 Dr. Krouse testified that based on his autopsy and the toxicology report, Danny‘s death was not proximately caused by a diabetic complication and that the most likely proximate cause of Danny‘s death was heart disease, and he provided factual bases for these conclusions in his testimony. He stated that Danny suffered sudden cardiac death and that his death would have been ―minutes to seconds.‖
3 was not ‗merely conclusory,‘‖ and in his second issue, Sprabary asserts that the
trial court erred by granting summary judgment for Goodman ―because fact
issues existed as to whether [Goodman‘s] negligence resulted‖ in Danny‘s death.
We review a trial court‘s exclusion of evidence for an abuse of discretion.
In re J.P.B., 180 S.W.3d 570, 575 (Tex. 2005). A trial court abuses its discretion
by excluding expert testimony if the testimony is relevant to the issues in the
case and is based on a reliable foundation. State v. Cent. Expressway Sign
Assocs., 302 S.W.3d 866, 870 (Tex. 2009). However, ―[b]are, baseless opinions
will not support a judgment.‖ City of San Antonio v. Pollock, 284 S.W.3d 809,
816 (Tex. 2009) (quoting Coastal Transp. Co. v. Crown Cent. Petroleum Corp.,
136 S.W.3d 227, 232 (Tex. 2004), for the proposition that opinion testimony that
is conclusory or speculative is not relevant evidence). ―An expert‘s failure to
explain or adequately disprove alternative theories of causation makes his or her
own theory speculative and conclusory.‖ Wal-Mart Stores, Inc. v. Merrell, 313
S.W.3d 837, 840 (Tex. 2010); see also Gen. Motors Corp. v. Iracheta, 161
S.W.3d 462, 470 (Tex. 2005) (―[The expert] eliminated the obvious possibility that
fuel or vapors from the tank filler neck ignited only by saying so, offering no other
basis for his opinion. Such a bare opinion was not enough.‖).
In his affidavit, Dr. Pietruszka set out his qualifications before stating:
In connection with the above-captioned lawsuit I have reviewed the autopsy report completed by Dr. Marc Krouse and a transcript of his deposition testimony . . . . Based upon my review of those documents, it is my opinion, based upon reasonable medical
4 probability, that Danny Sprabary, Jr.[‘]s death on May 3, 2007, was proximately caused by complications related to diabetes mellitus.
The findings disclosed in the autopsy report of pulmonary edema and in the deposition testimony of cerebral edema are findings that would be expected in a patient that died as a result of hypoglycemia.
Additionally, in my opinion, it is unlikely that an individual of Danny Sprabary‘s age with evidence of only moderate coronary arterial disease would suffer sudden adult death in the absence of some other factor such as hypoglycemia.
In conclusion, it is my opinion based upon reasonable medical probability that complications related to his diabetes mellitus were a proximate cause of the death of Danny Sprabary, Jr.
Dr. Pietruszka attached a copy of his curriculum vitae to his affidavit, but he did
not attach a copy of the documents upon which he based his opinion, and, other
than the excerpt of Dr. Krouse‘s deposition attached by Goodman to support the
traditional portion of its motion, there is no other evidence in the record pertaining
to Danny‘s cause of death.
Sprabary argues that Dr. Pietruszka‘s statements set out in the second
and third paragraphs above are not wholly conclusory and that ―on the contrary
they are statements of medical facts interpreting the autopsy report.‖ However,
Dr. Pietruszka‘s theory that Danny‘s death was proximately caused by
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COURT OF APPEALS SECOND DISTRICT OF TEXAS FORT WORTH
NO. 02-10-00200-CV
DANNY SPRABARY, APPELLANT INDIVIDUALLY, AND ON BEHALF OF THE ESTATE OF DANNY SPRABARY, JR., DECEASED, AND AS NEXT FRIEND OF TIERNEY FAITH RODGERS, A MINOR CHILD
V.
GOODMAN NETWORKS, INC. APPELLEE
----------
FROM THE 153RD DISTRICT COURT OF TARRANT COUNTY
MEMORANDUM OPINION1 ----------
I. Introduction
In two issues, Appellant Danny Sprabary, individually and on behalf of the
Estate of Danny Sprabary, Jr. and Tierney Faith Rogers, a minor child, appeals
1 See Tex. R. App. P. 47.4. the trial court‘s summary judgment for Appellee Goodman Networks, Inc. We
affirm.
II. Factual and Procedural Background
Sprabary sued Goodman for the wrongful death of his son Danny, alleging
that Danny worked for Goodman, that Goodman knew Danny was diabetic, and
that Goodman had a plan in place to contact Danny‘s girlfriend or brother if
Danny began to suffer from hypoglycemia or other health-related issues while
working. He further alleged that on the day Danny died, Goodman had
scheduled Danny to meet with a trainee at a Wal-Mart before they went on a
service call together, that Danny subsequently experienced some distress, and
that the trainee notified Danny‘s supervisor about the situation but the supervisor,
instead of contacting Danny‘s girlfriend or brother, ordered the trainee to return
Danny to the Wal-Mart parking lot where he later died.
Goodman filed a traditional and no-evidence motion for summary judgment
and argued in the no-evidence portion that Sprabary had no evidence to show
that Goodman owed a legal duty to Danny, that it breached this duty on the
occasion in question, or that the breach actually or proximately caused Danny‘s
death. Goodman also argued that Sprabary could not offer more than a scintilla
of evidence that Danny‘s death was related to his diabetes. In the traditional
portion of its motion, Goodman argued, among other things, that heart disease,
rather than any act or omission by Goodman, was the proximate cause of
2 Danny‘s death, and it attached a portion of Tarrant County Deputy Medical
Examiner Marc A. Krouse, M.D.‘s deposition to support this ground.2
To Goodman‘s no-evidence and traditional causation grounds, Sprabary
responded,
Movant also claims that there is no evidence that Danny Sprabary, Jr. died as a result of issues related to his diabetes and that Dr. Marc Krouse, the medical examiner who performed the autopsy on Danny Sprabary, Jr. found that issues related to Danny Sprabary, Jr.[‘s] diabetes were not a proximate cause of Danny Sprabary Jr.‘s death. This claim has been controverted by the Affidavit of Marvin Pietruszka, M.D.[,] which is attached as Exhibit ―A[.]‖ In his affidavit, Dr. Pietruszka states that the finding[s] of the autopsy support a finding that Danny Sprabary‘s death was the result of issues related to diabetes mellitus.
Goodman objected to Dr. Pietruszka‘s affidavit and moved to strike it,
complaining that the affidavit contained conclusory opinions, failed to provide any
factual foundation, and was speculative. The trial court sustained Goodman‘s
objections to Dr. Pietruszka‘s affidavit, struck the affidavit, and granted summary
judgment for Goodman. This appeal followed.
III. Summary Judgment
In his first issue, Sprabary argues that the trial court erred by striking Dr.
Pietruszka‘s affidavit because it ―was based upon and included factual bases and
2 Dr. Krouse testified that based on his autopsy and the toxicology report, Danny‘s death was not proximately caused by a diabetic complication and that the most likely proximate cause of Danny‘s death was heart disease, and he provided factual bases for these conclusions in his testimony. He stated that Danny suffered sudden cardiac death and that his death would have been ―minutes to seconds.‖
3 was not ‗merely conclusory,‘‖ and in his second issue, Sprabary asserts that the
trial court erred by granting summary judgment for Goodman ―because fact
issues existed as to whether [Goodman‘s] negligence resulted‖ in Danny‘s death.
We review a trial court‘s exclusion of evidence for an abuse of discretion.
In re J.P.B., 180 S.W.3d 570, 575 (Tex. 2005). A trial court abuses its discretion
by excluding expert testimony if the testimony is relevant to the issues in the
case and is based on a reliable foundation. State v. Cent. Expressway Sign
Assocs., 302 S.W.3d 866, 870 (Tex. 2009). However, ―[b]are, baseless opinions
will not support a judgment.‖ City of San Antonio v. Pollock, 284 S.W.3d 809,
816 (Tex. 2009) (quoting Coastal Transp. Co. v. Crown Cent. Petroleum Corp.,
136 S.W.3d 227, 232 (Tex. 2004), for the proposition that opinion testimony that
is conclusory or speculative is not relevant evidence). ―An expert‘s failure to
explain or adequately disprove alternative theories of causation makes his or her
own theory speculative and conclusory.‖ Wal-Mart Stores, Inc. v. Merrell, 313
S.W.3d 837, 840 (Tex. 2010); see also Gen. Motors Corp. v. Iracheta, 161
S.W.3d 462, 470 (Tex. 2005) (―[The expert] eliminated the obvious possibility that
fuel or vapors from the tank filler neck ignited only by saying so, offering no other
basis for his opinion. Such a bare opinion was not enough.‖).
In his affidavit, Dr. Pietruszka set out his qualifications before stating:
In connection with the above-captioned lawsuit I have reviewed the autopsy report completed by Dr. Marc Krouse and a transcript of his deposition testimony . . . . Based upon my review of those documents, it is my opinion, based upon reasonable medical
4 probability, that Danny Sprabary, Jr.[‘]s death on May 3, 2007, was proximately caused by complications related to diabetes mellitus.
The findings disclosed in the autopsy report of pulmonary edema and in the deposition testimony of cerebral edema are findings that would be expected in a patient that died as a result of hypoglycemia.
Additionally, in my opinion, it is unlikely that an individual of Danny Sprabary‘s age with evidence of only moderate coronary arterial disease would suffer sudden adult death in the absence of some other factor such as hypoglycemia.
In conclusion, it is my opinion based upon reasonable medical probability that complications related to his diabetes mellitus were a proximate cause of the death of Danny Sprabary, Jr.
Dr. Pietruszka attached a copy of his curriculum vitae to his affidavit, but he did
not attach a copy of the documents upon which he based his opinion, and, other
than the excerpt of Dr. Krouse‘s deposition attached by Goodman to support the
traditional portion of its motion, there is no other evidence in the record pertaining
to Danny‘s cause of death.
Sprabary argues that Dr. Pietruszka‘s statements set out in the second
and third paragraphs above are not wholly conclusory and that ―on the contrary
they are statements of medical facts interpreting the autopsy report.‖ However,
Dr. Pietruszka‘s theory that Danny‘s death was proximately caused by
complications related to diabetes mellitus is conclusory and speculative because
he fails to provide any factual discussion or explanation of how the autopsy
report findings of pulmonary and cerebral edema were caused by diabetes-
related hypoglycemia and not sudden adult death caused by heart disease. Nor
5 does he explain why such findings could not be conclusive to declare heart
disease as the cause of death. See Pollock, 284 S.W.3d at 816.
Additionally, Dr. Pietruszka‘s statement that the findings of pulmonary and
cerebral edema ―would be expected in a patient that died as a result of
hypoglycemia‖ is conclusory and insufficient to prove that hypoglycemia or other
diabetes-related complications were the cause of Danny‘s death. See Merrell,
313 S.W.3d at 840 (stating that expert‘s statement that halogen lamps in general
can cause fires was speculative and insufficient to establish that the particular
lamp in question caused the fire); see also Pollock, 284 S.W.3d at 819–20
(holding that expert‘s testimony about exposure to benzene in high amounts
causing chromosomal anomalies was conclusory and provided no evidence that
the chromosomal anomalies at issue were caused by exposure to significantly
lesser amounts of benzene). And Dr. Pietruszka‘s opinion that someone Danny‘s
age with evidence of only moderate coronary arterial disease would be unlikely to
suffer sudden adult death ―in the absence of some other factor such as
hypoglycemia‖ neither offers evidence to eliminate other conditions, such as
heart disease, that could have contributed to Danny‘s death nor explains how
hypoglycemia or ―some other factor‖ caused Danny‘s death. Rather, Dr.
Pietruszka merely speculates as to a possible cause of death of someone
Danny‘s age. See Coastal Transp., 136 S.W.3d at 232. The trial court did not
abuse its discretion by sustaining Goodman‘s objections and striking Dr.
Pietruszka‘s affidavit. Therefore, we overrule Sprabary‘s first issue.
6 As to Sprabary‘s second issue, when a party moves for summary judgment
under both rules 166a(c) and 166a(i), we will first review the trial court‘s judgment
under the standards of rule 166a(i). Ford Motor Co. v. Ridgway, 135 S.W.3d
598, 600 (Tex. 2004). If the appellant failed to produce more than a scintilla of
evidence under that burden, then there is no need to analyze whether the
appellee‘s summary judgment proof satisfied the less stringent rule 166a(c)
burden. Id. If the nonmovant brings forward more than a scintilla of probative
evidence that raises a genuine issue of material fact, then a no-evidence
summary judgment is not proper. Smith v. O’Donnell, 288 S.W.3d 417, 424 (Tex.
2009); King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 751 (Tex. 2003), cert.
denied, 541 U.S. 1030 (2004). Less than a scintilla of evidence exists when the
evidence is so weak that it does nothing more than create a mere surmise or
suspicion of a fact. Kindred v. Con/Chem, Inc., 650 S.W.2d 61, 63 (Tex. 1983).
Here, the trial court did not specify the grounds for granting the summary
judgment motion. When a trial court‘s order granting summary judgment does
not specify the ground or grounds relied on for its ruling, summary judgment will
be affirmed on appeal if any of the theories presented to the trial court and
preserved for appellate review are meritorious. Provident Life & Accident Ins.
Co. v. Knott, 128 S.W.3d 211, 216 (Tex. 2003); Star-Telegram, Inc. v. Doe, 915
S.W.2d 471, 473 (Tex. 1995).
In the no-evidence portion of its summary judgment motion, Goodman
asserted that Sprabary could not offer more than a scintilla of evidence that
7 Danny‘s death was related to his diabetes and that Sprabary had no evidence
that Goodman‘s alleged breach caused Danny‘s death. See, e.g., D. Houston,
Inc. v. Love, 92 S.W.3d 450, 454 (Tex. 2002) (stating that a negligence action
requires showing damages proximately caused by the breach of a legal duty).
Sprabary responded by offering Dr. Pietruszka‘s affidavit to support his theory
that Danny‘s death was related to his diabetes. Having held that the trial court
did not abuse its discretion by excluding Dr. Pietruszka‘s affidavit—the only
evidence supporting the causal connection between Goodman‘s alleged duty and
breach and the theory that Danny‘s death was related to his diabetes rather than
heart disease—we conclude that Sprabary failed to provide more than a scintilla
of evidence that Danny died as a result of his diabetic condition. Accordingly, we
overrule Sprabary‘s second issue. See Knott, 128 S.W.3d at 216.
IV. Conclusion
Having overruled both of Sprabary‘s issues, we affirm the trial court‘s
judgment.
PER CURIAM
PANEL: MCCOY, DAUPHINOT, and GARDNER, JJ.
DELIVERED: March 10, 2011