Fourth Court of Appeals San Antonio, Texas OPINION
No. 04-23-00062-CV
Enrique ORTA, III, Individually and as Representative of the Estate of Enrique Orta, II, Ramona E. Moreno and Sabrina Orta, Appellants
v.
SN OPERATING, LLC and Patco Wireline Services, LLC, Appellees
From the 111th Judicial District Court, Webb County, Texas Trial Court No. 2017CVF001213D2 Honorable Monica Z. Notzon, Judge Presiding
Opinion by: Lori I. Valenzuela, Justice
Sitting: Beth Watkins, Justice Liza A. Rodriguez, Justice Lori I. Valenzuela, Justice
Delivered and Filed: March 6, 2024
AFFIRMED
This negligence case arises from the death of Enrique Orta, II. Appellants, Orta’s survivors,
sued appellees SN Operating, LLC (“SN”) and Patco Wireline Services, LLC (“Patco”) alleging
SN and Patco negligently caused Orta’s death. SN and Patco moved for summary judgment,
alleging there was no evidence that Orta’s working conditions caused him to suffer from a fatal
heat stroke. The trial court granted summary judgment. We affirm. 04-23-00062-CV
BACKGROUND
After a few months of being out of work, Patco hired Orta to work on an oil drill site located
in Catarina, Texas. Orta’s first day of work was Friday, June 9, 2017. Orta and his co-worker,
Emiliano Canales, made the two-hour drive from Kingsville, Texas, to Catarina for their 12-hour
shift. Orta’s job duties generally involved being outside for most of the day. Orta and Canales
returned to Kingsville that night.
On his second day of work, June 10, 2017, Orta and Canales returned to Catarina for work.
During the two-hour drive, Orta told Canales he had not had enough water to drink the night
before, so the two stopped to buy something to eat and drink. The two reached Catarina and began
working around 7:00 a.m. At approximately 1:00 p.m., Orta started to feel cramping in his hands.
The cramping progressed to the point where Orta could not continue working, so he took a break
for about an hour and then resumed working.
Later that day, Orta fell while walking down a flight of stairs. Two co-workers picked Orta
up and assisted him to the passenger seat of his truck. While sitting in his truck with the A/C on
and drinking fluids, a high-level employee of Patco walked over and talked to Orta. Orta told the
high-level employee that he was fine and gestured with two thumbs up. Canales climbed in the
driver seat, and the two set off around 7:00 pm for the two-hour drive back to Kingsville.
Shortly into the trip, Orta told Canales to pull over so he could vomit. Suspecting Orta may
be suffering from heat exhaustion or heat stroke, Canales researched the signs an individual
exhibits when they are suffering from either condition. Canales asked Orta if he wanted to go to
the hospital. Orta declined, and the two continued their journey to Kingsville. During this time,
Canales was on the phone with a human resources representative from Patco. The pleadings allege
the representative instructed Canales to take Orta to the hospital, but Orta continued to decline.
The two made it back to Orta’s apartment and Canales assisted Orta inside. After about ten
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minutes, Orta decided he wanted to go to the hospital. Orta, his nephew, and Canales proceeded
to head to the hospital. At some point in their journey to the hospital, for reasons that are disputed
in the record, the three turned around before reaching the hospital and returned to Orta’s apartment.
Upon return, Orta, with the assistance of his nephew, took a shower and climbed into bed.
At some point after, Orta attempted to get up from his bed, fell, hit his head on the windowsill, and
went unconscious. Orta’s family called 911, and EMS transported Orta to the hospital. Orta never
regained consciousness and died. Orta’s death certificate lists his immediate cause of death as
“vomit, seizure.” His death certificate additionally lists the manner of death as “natural” and “heart
attack” as a signification condition contributing to death but not resulting in the underlying cause.
No autopsy was performed.
Appellants sued Patco and SN 1 alleging several theories of negligence. SN filed a no-
evidence motion for summary judgment arguing that appellants had no evidence to support each
element of their negligence claims. The trial court denied SN’s motion. SN moved for
reconsideration raising one point—that appellants had no evidence supporting the causation
element of their negligence claims. Specifically, SN argued appellants were required to proffer
medical expert testimony to establish the link between Orta’s death and heat stroke, and because
appellants had failed to proffer such evidence, SN was entitled to judgment as a matter of law.
Patco also filed a no-evidence motion for summary judgment asserting it was entitled to
judgment as a matter of law because appellants had no evidence that its actions caused Orta’s
death. Patco’s motion mirrored SN’s reconsideration argument—that appellants did not proffer
medical expert testimony establishing the link between Orta’s death and heat stroke. After a
hearing, the trial court granted both motions. The trial court’s order specifically limited its ruling
1 Patco is an independent contractor of SN.
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to finding that appellants presented no evidence to establish a genuine issue of material fact as to
the proximate cause of Orta’s death.
On appeal, appellants argue the trial court erred by holding they had presented no evidence
that SN and Patco proximately caused Orta’s death. SN and Patco argue appellants offered no
evidence because medical expert testimony is necessary to support causation where the condition
at issue is outside of the common knowledge and experience of laypersons.
STANDARD OF REVIEW
“[A] movant seeking a no-evidence summary judgment need only identify ‘one or more
essential elements of a claim or defense . . . as to which there is no evidence,’ and the burden then
shifts to the nonmovant to produce ‘summary judgment evidence raising a genuine issue of
material fact.’” B.C. v. Steak N Shake Operations, Inc., 598 S.W.3d 256, 259 (Tex. 2020) (per
curiam) (quoting TEX. R. CIV. P. 166a(i)); Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 600 (Tex.
2004) (opining, to overcome a no-evidence summary judgment, “[t]he non-movants . . . must
produce summary judgment evidence raising a genuine issue of material fact to defeat the summary
judgment[.]”). “A genuine issue of material fact exists if more than a scintilla of evidence
establishing the existence of the challenged element is produced.” Ford Motor, 135 S.W.3d at 600.
“More than a scintilla of evidence exists when the evidence rises to a level that would enable
reasonable and fair-minded people to differ in their conclusions.” King Ranch, Inc. v. Chapman,
118 S.W.3d 742, 751 (Tex. 2003). “Less than a scintilla of evidence exists when the evidence is
so weak as to do no more than create a mere surmise or suspicion of a fact.” Id. “If a nonmovant
fails to carry this burden, then the court ‘must’ grant summary judgment.” B.C., 598 S.W.3d at
259 (citing TEX. R. CIV. P. 166a(i)).
“We review the trial court’s summary judgment de novo.” Valence Operating Co. v.
Dorsett, 164 S.W.3d 656, 661 (Tex. 2005). While conducting our de novo review, we scrutinize
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the record “in the light most favorable to the nonmovant, indulging every reasonable inference and
resolving any doubts against the motion.” City of Keller v. Wilson, 168 S.W.3d 802, 824 (Tex.
2005).
DISCUSSION
Appellants’ petition asserts two causes of action against SN and Patco—negligence and
gross negligence. Both negligence and gross negligence carry an element of causation. Lee Lewis
Const., Inc. v. Harrison, 70 S.W.3d 778, 784–85 (Tex. 2001). SN and Patco’s no-evidence
motions for summary judgment shifted the burden to appellants to present competent evidence
showing SN and Patco’s actions, or inactions, proximately caused Orta’s death. See TEX. R. CIV.
P. 166a(i). Proximate cause is composed of two elements—cause in fact and foreseeability—and
appellants were required to present competent evidence of both elements to survive summary
judgment. See id.; Windrum v. Kareh, 581 S.W.3d 761, 777 (Tex. 2019).
Appellants argue they raised a genuine issue of material fact that Orta’s working conditions
mandated by SN and Patco proximately caused him to suffer from a heat stroke—which
ultimately led to his death. Appellants assert heat stroke is a condition within the common
knowledge and experience of laypersons; therefore, they were not required to present medical
expert testimony to support causation. SN and Patco disagree and argue that the symptoms and
varying effects of heat stroke are outside the common knowledge and experience of laypersons.
Therefore, appellants were required to present medical expert testimony establishing the link
between Orta’s death and heat stroke. They assert appellants’ failure to present any competent
evidence on this element requires the conclusion that appellants failed to raise a genuine issue of
material fact on causation. Because we agree with SN and Patco on the cause-in-fact element, we
need not address the foreseeability element of proximate cause.
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Applicable Law
“The general rule has long been that expert testimony is necessary to establish causation as
to medical conditions outside the common knowledge and experience of jurors.” Guevara v.
Ferrer, 247 S.W.3d 662, 665 (Tex. 2007); e.g. Ins. Co. of N. Am. v. Myers, 411 S.W.2d 710, 713
(Tex. 1966) (holding that an “inference that a pre-existing tumor was activated and the deadly
effects of a malignancy accelerated by an injury” was a “question of science determinable only
from the testimony of expert medical professionals”); Roark v. Allen, 633 S.W.2d 804, 809 (Tex.
1982) (holding that “the diagnosis of skull fractures is not within the experience of the ordinary
layman” and therefore required expert testimony); Kaster v. Woodson, 123 S.W.2d 981, 983 (Tex.
Civ. App.—Austin 1938, writ ref’d) (“What is an infection and from whence did it come are
matters determinable only by medical experts.”).
An exception to the general rule exists where “the causal connection between some events
and conditions of a basic nature (and treatment for such conditions) are within a layperson’s
general experience and common sense.” Guevara, 247 S.W.3d at 668. For example, “causation
as to certain types of pain, bone fractures, and similar basic conditions following an automobile
collision can be within the common experience of lay jurors.” Id.; Morgan v. Compugraphic
Corp., 675 S.W.2d 729, 733 (Tex. 1984) (holding layperson testimony was sufficient to establish
chemical fumes cause plaintiff to suffer an injury). “Thus, non-expert evidence alone is sufficient
to support a finding of causation in limited circumstances where both the occurrence and
conditions complained of are such that the general experience and common sense of laypersons
are sufficient to evaluate the conditions and whether they were probably caused by the
occurrence.” Guevara, 247 S.W.3d at 668.
Guevara establishes a two-step analysis for the exception to the general rule to apply. See
id. at 667–68; A Guardian Angel Child Care Ctr., Inc. v. Rios, 657 S.W.3d 44, 53 (Tex. App.—
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El Paso 2022, no pet.). First, we must determine whether appellants proffered competent
“evidence establishing a sequence of events which provides a strong, logically traceable
connection between” Orta’s working conditions, Orta suffering from a heat stroke, and his death.
Guevara, 247 S.W.3d at 667. If appellants can show a strong, logically traceable connection, we
then must determine whether the evidence showed the physical conditions Orta complained of
(1) are within the common knowledge and experience of laypersons, (2) did not exist before the
incident, (3) appeared after and close in time to Orta’s death, and (4) are within the common
knowledge and experience of laypersons, namely: the symptoms and effects caused by heat
stroke. Id.; Rios, 657 S.W.3d at 53.
Analysis
Appellants argue expert testimony is not necessary in the case at bar because there is a
strong, logically traceable connection between Orta’s working conditions, Orta suffering from a
heat stroke, and his death immediately following his second day at work. Because of the temporal
proximity of the condition and the event, and because the symptoms and effects of heat stroke are
within the common knowledge and experience of laypersons, appellants conclude the trial court
erred by finding they had produced no evidence on causation.
Assuming without deciding that appellants showed a strong, logically traceable connection
between Orta’s working conditions and heat stroke, appellants have not shown that the symptoms
and effects of heat stroke are within the common knowledge and experience of laypersons. See
Guevara, 247 S.W.3d at 667; Lara v. Bui, No. 01-21-00484-CV, 2023 WL 2249205, at *5 (Tex.
App.—Houston [1st Dist.] Feb. 28, 2023, pet. denied) (mem. op.) (“[E]vidence of temporal
proximity only raises a suspicion that the event caused the condition but is not legally sufficient to
support a finding of causation.”). It is not within the common knowledge and experience of
laypersons to know the symptoms and severity of heat stroke, or why one similarly situated person
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may experience a heat stroke and another may not. 2 See Com. Standard Ins. Co. v. Allred, 413
S.W.2d 910, 913 (Tex. 1967) (exemplifying the shared symptoms of heat stroke with other
independent conditions); see also Bernard v. Rangers Baseball, LLC, No. 02-19-00194-CV, 2020
WL 3869626, at *3 (Tex. App.—Fort Worth July 9, 2020, no pet.) (holding “[i]t is not within the
common knowledge and experience of laypersons to know what kinds of knee injuries are caused
by sudden stops or jerking motions and what kind of knee conditions require physical therapy and
either total knee replacement or ‘cleaning’ with a scope to treat.”); Sinclair v. Estate of Ramirez,
No. 10-14-00157-CV, 2015 WL 3534156, at *5 (Tex. App.—Waco June 4, 2015, no pet.) (mem.
op.) (holding severe head and back injuries, caused by multiple actors, required medical expert
testimony); cf. Barraza, 2013 WL 6255761, at *4 (“Common experience indicates that when a
person who claims to have no previous injuries to a foot and shoulder is involved in a bus accident
where both of the body parts collide with metal surfaces, a metal plate and pipe respectively, the
source of the collision is likely the cause for the resulting injuries.”).
Appellants cite Travelers Insurance Co. v. Blazier, for the proposition that heat stroke can
be within the common knowledge and experience of laypersons. See 228 S.W.2d 217, 219 (Tex.
App.—Fort Worth 1950, writ dism’d). In this pre-Guevara workers compensation appeal, the issue
was whether the plaintiff was entitled to worker’s compensation because he had suffered from a
heat stroke at work and ultimately contracted polio. Id. Plaintiff testified that his weakened
condition from heat stroke caused him to contract polio. Id. at 219–20. Plaintiff’s doctor testified
that plaintiff contracted polio but did not suffer a heat stroke. Id. In holding there was no evidence
2 Although there is evidence in the record supporting appellants’ contention that Orta did not have any health issues prior to his death, this evidence goes to the temporal proximity of the event rather than whether heat stroke is within the jury’s purview absent medical expert testimony. See VIA Metro. Transit Auth. v. Barraza, No. 04-13-00035-CV, 2013 WL 6255761, at *4 (Tex. App.—San Antonio Dec. 4, 2013, pet. denied) (mem. op.).
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that plaintiff contracted polio as a result of suffering from a heat stroke, the Fort Worth Court of
Appeals observed:
If there had been only the testimony [from plaintiff] in the present case, with no evidence of a diagnosis of polio, it might be that the trial court, though a layman, would have been justified in finding from the evidence that a heat stroke had been suffered. But where the question to be determined was whether [plaintiff] had polio or a heat stroke, or whether he had a heat stroke which in turn contributed to or brought about polio, it is our belief that the subject was one so peculiarly within the realm of scientific knowledge that the trial court was not authorized to make a diagnosis, so to speak, contrary to that made by the only medical witness.
Id. at 219–20 (emphasis added). Although the Fort Worth Court, through dicta, opined that
heat stroke may be within the trial court’s discretion to find layperson testimony sufficient under
specific-uncontradicted facts, like those present in Travelers, we do not interpret Travelers to stand
for the proposition that heat stroke is generally within the common knowledge and experience of
laypersons. See Guevara, 247 S.W.3d at 667; Com. Standard, 413 S.W.2d at 913; see, e.g.,
Bernard, 2020 WL 3869626, at *3.
Appellants further argue that Patco’s workplace policies and Occupational Safety and
Health Administration documents related to a worker’s compensation claim filed on behalf of Orta
recognize heat stroke as a serious condition; therefore, medical expert testimony is not required.
This is misguided reasoning. The question before us is whether a layperson through common
knowledge and experience would know if Orta was suffering from a severe heat stroke due to his
symptoms and outward manifestations, not whether a Patco employee or individuals involved in
the worker’s compensation proceeding would recognize the same. See Guevara, 247 S.W.3d at
667; Com. Standard, 413 S.W.2d at 913; see also Perez v. Smart Corp., Inc., No. 04-12-00712-
CV, 2013 WL 6203358, at *3 (Tex. App.—San Antonio Nov. 27, 2013, pet. denied) (mem. op.)
(noting OSHA citations and fines, or the inverse, are inadmissible evidence to establish liability
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and are irrelevant to the issue of negligence). We conclude the exception to the causation medical
expert-testimony requirement relied on by appellants does not apply here. Accordingly, appellants
were required to present medical expert testimony to raise a genuine issue of material fact
regarding causation to survive summary judgment.
In the alternative, appellants argue they have proffered sufficient medical expert testimony
through their workplace safety engineer, David Zolyak. As the party offering expert testimony,
appellants carry the burden to “demonstrate that the witness possesses special knowledge as to the
very matter on which he proposes to give an opinion.” Gammill v. Jack Williams Chevrolet, Inc.,
972 S.W.2d 713, 718 (Tex. 1998). “[T]o constitute evidence of causation, an expert opinion must
rest in reasonable medical probability.” Burroughs Wellcome Co. v. Crye, 907 S.W.2d 497, 500
(Tex. 1995). “This rule applies whether the opinion is expressed in testimony or in a medical
record, as the need to avoid opinions based on speculation and conjecture is identical in both
situations.” Id. “Reasonable probability is determined by the substance and context of the opinion,
and does not turn on semantics or on the use of a particular term or phrase.” Id.; see, e.g., Gammill,
972 S.W.2d at 719 (“Just as not every physician is qualified to testify as an expert in every medical
malpractice case, not every mechanical engineer is qualified to testify as an expert in every
products liability case.”).
Here, appellants assert Zolyak is qualified to opine on the medical probability that Orta
suffered a lethal heat stroke caused by his working conditions. Zolyak is a professional engineer,
certified safety professional, and certified industrial hygienist. Zolyak’s deposition and declaration
focus on Orta’s working conditions and his conclusion that such conditions may lead a worker to
develop heat stroke or other heat-related illnesses. Although Zolyak may be qualified to provide
an expert opinion on workplace safety, he does not have any knowledge, skill, experience, training,
or education in medicine to be sufficiently qualified to render a medical opinion on the causes,
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symptoms, and probable severity of heat stroke. See Gammill, 972 S.W.2d at 719; Burroughs
Wellcome, 907 S.W.2d at 500; TEX. R. EVID. 702 (“A witness who is qualified as an expert by
knowledge, skill, experience, training, or education may testify in the form of an opinion or
otherwise if the expert’s scientific, technical, or other specialized knowledge will help the trier of
fact to understand the evidence or to determine a fact in issue.”). We hold that Zolyak is not
qualified to render expert testimony on the medical causation of Orta’s cause of death. 3
Finally, appellants assert SN waived any challenge to medical expert testimony because it
did not present this specific argument until its motion for reconsideration. In its original no
evidence motion for summary judgment and in its motion for reconsideration, SN averred
appellants presented no-evidence supporting causation. See TEX. R. CIV. P. 166a(i) (establishing
that a no-evidence motion for summary judgment “must state the elements as to which there is no
evidence.”). Because both motions presented a challenge to a required element of appellants’
causes of action, appellants had the burden to present competent evidence raising a genuine issue
of material fact. See id.; B.C., 598 S.W.3d at 259.
Appellants’ argument implies SN only had one opportunity to raise a no-evidence motion
for summary judgment and that its alleged failure to raise certain arguments in its original motion
prevented it from raising a new challenge to appellants’ evidence, or lack thereof. A plain reading
of Rule 166a(i) contains no limit on the number of times a party may move for summary judgment,
and no party disputes that the trial court may have considered SN’s reconsideration motion to be
a proper vehicle to move for judgment as a matter of law once again. See TEX. R. CIV. P. 166a(i);
3 We do not express an opinion on whether Zolyak was qualified to give an expert opinion on other matters in the case. Appellants also contend Orta’s treating EMTs could qualify as medical experts. However, the summary judgment record does not include expert reports by the EMTs, their deposition testimony in the summary judgment record does not provide evidence of causation, and appellants did not provide substantive arguments and authority supporting this conclusion. See TEX. R. APP. P. 38.1(i).
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Surgitek, Bristol-Myers Corp. v. Abel, 997 S.W.2d 598, 601 (Tex. 1999) (“[W]e look to the
substance of a motion to determine the relief sought, not merely to its title.”). Whether viewed as
a reconsideration of its previous motion or as a new independent motion for summary judgment,
we hold SN did not waive its ability to challenge the evidence, or lack thereof, supporting
appellants’ causes of action. See id. We overrule appellants’ issues. 4
CONCLUSION
The trial court did not err in granting SN and Patco’s no evidence motions for summary
judgment on causation. Having overruled appellants’ issues, we affirm the judgment of the trial
court.
Lori I. Valenzuela, Justice
4 We need not reach the remainder of appellants’ arguments because they were not reached by the trial court and are therefore not properly before us. See TEX. R. APP. P. 47.1.
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