Tillerd Ardean Smith, Medallion Transport & Logistics, LLC, Tomy Rushing D/B/A Rushing Transport Services, Inc. v. Brandi Williams

ACCEPTED

06-14-00040-CV

SIXTH COURT OF APPEALS

TEXARKANA, TEXAS

WANDA MCKEE FOWLER 4/10/2015 10:25:55 AM

fowler@wrightclose.com DEBBIE AUTREY

CLERK

Retired Justice of the

14th Court of Appeals 1995 – 2008

Direct: (713) 490-4025

April 10, 2015 RECEIVED IN

6th COURT OF APPEALS

TEXARKANA, TEXAS

Court of Appeals 4/10/2015 10:25:55 AM

Sixth Appellate District of Texas DEBBIE AUTREY

Clerk

Attn.: Debra K. Autrey, Clerk

Bi-State Justice Building

100 North State Line Avenue #20

Texarkana, Texas 75501

Re: No. 06-14-00040-CV; Tillerd Ardean Smith, Medallion Transport &

Logistics, LLC, and Tomy Rushing d/b/a Rushing Transport Services,

Inc. v. Brandi Williams

Dear Ms. Autrey:

This post-argument letter brief is filed to answer several questions asked by

the justices at oral argument, held on April 1, 2015. Please forward this letter to the

justices.

Spoliation Questions

Justice Moseley asked whether a spoliation finding is a question of fact or

one of law. In both Brookshire Brothers, Ltd. v. Aldridge and Wackenhut Corp. v.

Gutierrez, the Texas Supreme Court held that whether a party has spoliated

evidence and the particular remedy needed are questions of law for the court.

Wackenhut Corp. v. Gutierrez, No. 12-0136, 2015 WL 496301, * 4 (Tex. February

6, 2015); Brookshire Bros., Ltd v. Aldridge, 439 S.W.3d 9, 14, 20 (Tex. 2014).

The Court also asked if the trial judge needed to make a finding that a lesser

sanction would not adequately address the prejudice any spoliation caused.

Brookshire Brothers answers that question affirmatively: “In the event the trial

court makes … a finding [of intentional spoliation] and concludes, as with any

sanction, that a lesser remedy would be insufficient to ameliorate the prejudice

caused by the spoliating party’s conduct, the trial court is within its discretion in

submitting a spoliation instruction.” Brookshire Bros. v. Aldridge, 439 S.W.3d at

25. In short, without a finding that a lesser sanction would be insufficient to

remedy any prejudice caused, the trial court does not have the discretion to issue a

spoliation instruction. Id. The trial court below did not enter this necessary finding.

WRIGHT & CLOSE, LLP

ONE RIVERWAY, SUITE 2200, HOUSTON, TEXAS 77056  TEL: 713.572.4321  FAX: 713.572.4320

Court of Appeals

Sixth Appellate District of Texas

Attn.: Debra K. Autrey, Clerk

April 10, 2015

Page 2

Not only did the judge not discuss whether a lesser remedy would be

appropriate, the court also did not discuss any prejudice that may have occurred to

Plaintiff. Id. To determine prejudice, a court must assess considerations Justice

Baker referred to in his concurrence in Trevino v. Ortega, 969 S.W.2d 950, 954

(Justice Baker, concurring). These considerations include “the relevance of the

spoliated evidence to key issues in the case, . . . whether the evidence would have

been helpful to the nonspoliating party’s case. . ., and whether the spoliated

evidence was cumulative of other competent evidence that may be used instead of

the spoliated evidence.” Brookshire Bros., 439 S.W.3d at *21 – 22. The trial court

did not evaluate these considerations. Moreover, Medallion has argued that the

evidence produced (i) enabled the Plaintiff to argue that Smith drove while

fatigued and that Smith falsified records, and (ii) covered the relevant driving

periods. The record confirms that Plaintiff was able to ask many questions about

both fatigue and falsification of records; consequently, there was no prejudice.

The Court also asked whether the record supports the trial court’s finding

that Medallion intentionally spoliated evidence. To find intentional spoliation, a

court must conclude that a party “deliberately destroy[ed] evidence.” Id. at *23

(emphasis in original). The court further explained that the instruction must be

reserved for those who exhibit “flagrant bad faith.” Id. This record contains no

evidence of an intent to destroy relevant evidence or of flagrant bad faith by

Medallion. To begin, though Plaintiff sent a letter asking Medallion to preserve

certain types of evidence, Plaintiff did not specify how many days or months to

preserve of each type of evidence; Plaintiff sent the letter several days after the

accident and did not communicate with the company again until suit was filed

almost two years later. Bill Winney, Medallion’s COO, confirmed that it was

Medallion’s practice to preserve 7 days of driver’s logs; when the company

received Plaintiff’s discovery asking for more than 7 days of logs, the logs had

already been destroyed under the normal course of business operations. (4 RR 79–

80) In fact, Winney testified that the company did not understand that it had to

preserve 6 months of logs for this case, that it had never preserved 6 months of

logs, and that it preserved all documents that it normally would preserve for an

accident. (4 RR 117–19) Under Brookshire Brothers, this does not constitute intent

to conceal or destroy relevant evidence. Id. at * 27–28.

Court of Appeals

Sixth Appellate District of Texas

Attn.: Debra K. Autrey, Clerk

April 10, 2015

Page 3

To prove intentional spoliation, the Plaintiff appears to rely primarily on the

testimony of Cathy McMullen, a dispatcher for Medallion who said that after the

passage of 6 months she destroyed all of the documents she had. However,

McMullen testified that she did not destroy any documents until she had sent

copies of all documents to Medallion headquarters. Again, this does not qualify as

intentional destruction of relevant evidence.

Finally, Justice Burgess asked whether the defendants’ failure to object to

the spoliation testimony waived any complaint on appeal regarding its admittance.

Before Brookshire Brothers, the law was unclear regarding the admissibility of

spoliation evidence; for the first time in Brookshire Brothers, the Supreme Court

held that spoliation evidence is inadmissible: “Our holding that the trial court, not

the jury, bears responsibility for making the required spoliation findings and

imposing a remedy affects the propriety of admitting evidence regarding spoliation

at trial.” Id. at *26. Because this was a new holding by the Supreme Court, counsel

did not waive any objection to this evidence.

Moreover, in Brookshire Brothers, the Supreme Court also held, “there is no

basis on which to allow the jury to hear evidence that is unrelated to the merits of

the case, but serves only to highlight the spoliating party’s breach and culpability.”

Id. “While such evidence may be central to the trial court’s spoliation finding, it

has no bearing on the issues to be resolved by the jury.” Id. Much evidence relating

only to spoliation was admitted in this trial. Spoliation testimony also came into

evidence in Brookshire Brothers. Id. at *16. Although the court did not discuss

whether an objection was made, its discussion on the inadmissibility of the

evidence makes it appear that an objection may not have been made, because the

court held simply that the evidence was inadmissible, not that the trial court

wrongly overruled an objection to the evidence. Id. at *26. For this reason as well,

the error was preserved even without an objection.

No evidence to support the negligent hiring/training instructions and jury

findings.

Pointing out that defense counsel began his objections to the negligent

hiring/training instructions by arguing that they were a comment on the weight of

the evidence, Justice Burgess asked whether defense counsel raised a no-evidence

objection. (7 RR 140) The Texas Supreme Court “favor[s] a common sense

Court of Appeals

Sixth Appellate District of Texas

Attn.: Debra K. Autrey, Clerk

April 10, 2015

Page 4

application of our procedural rules that serves the purpose of the rules, rather than

a technical application that rigidly promotes form over substance.” Thota v. Young,

366 S.W.3d 678, 690 (Tex. 2012). Under this common-sense application, the only

test is “whether the party made the trial court aware of the complaint, timely and

plainly, and obtained a ruling.” Id. at 689.

For several reasons, counsel preserved an objection to these instructions on

the ground that no evidence supported them. First, even assuming that counsel

objected only that the instructions were comments on the weight of the evidence

(which defendants do not concede), he clearly said they were improper because

Smith had never had a moving violation or done anything as a truck driver to

suggest that he was an incompetent employee. At its essence, this argues that the

instruction was an improper comment on the weight of the evidence because no

evidence supported the instruction. Second, it appears that counsel was making two

objections rather than only one because counsel first said it was a comment on the

weight of the evidence, and then discussed evidentiary problems with the

instruction, saying “and it’s improper for that reason.” Read broadly, this was an

evidentiary objection as well.

Regardless of whether the court reads this as one objection or two, the court

was made aware that the evidence didn’t support the instruction. This is sufficient

to preserve error. See State Dept. of Highways & Public Transp. v. Payne, 838

S.W.2d 235, 239 (Tex. 1992) (stating that the court “was certainly aware that the

issue was disputed”).

In addition, in their motion for judgment notwithstanding the verdict and

their motion for new trial Defendants argued to the trial court that no evidence

supported either the instruction or the jury findings of negligence based on

negligent hiring and negligent training. (CR 699–718, 752–62)

Finally, these instructions were harmful because they injected a negative

driving history for Smith when there was none at all. When considered in

conjunction with the spoliation instruction, they tipped the balance of the case in

favor of Plaintiff and against all defendants. Regardless of whether these

instructions could be appropriate in some situations, they were improper in this

situation.

Court of Appeals

Sixth Appellate District of Texas

Attn.: Debra K. Autrey, Clerk

April 10, 2015

Page 5

Whether Plaintiff proved that Smith was Rushing’s employee.

On whether Rushing is vicariously liable for Smith’s actions, the Court

questioned whether Rushing had an obligation to secure a finding that Smith was

not Rushing’s employee. The short answer is “no.” An actor’s status as an

employee is an element of a plaintiff’s negligence claim against the employer.

Service Corp. Int’l v. Guerra, 348 S.W.3d 221, 228 (Tex. 2011). To determine if a

person is an employee, a court considers the extent to which the company controls

the details of the employee’s work. See PJC 10.1. If employment was a fact issue,

Plaintiff had to ask a question to establish employment. Guerra, 348 S.W.3d at

228. Here, Plaintiff made Smith’s employment by Rushing a fact issue by refusing

to stipulate that Smith was Rushing’s employee. As a result, a question should

have been submitted to the jury to establish that Smith was an employee. Id. If an

element of a claim is left out of a charge without objection it can be deemed to

have been found by the court. Id.; see also Tex. R. Civ. P. 279. But this general

rule should not apply here because—during the charge conference—Plaintiff’s

counsel refused to stipulate that Smith was Rushing’s employee. (7 RR 141–42)

Plaintiff benefitted by refusing to stipulate that Medallion and Rushing were

vicariously liable for Smith’s action because Plaintiff’s counsel was able to push

for three blanks for defendants instead of just one. Several courts have held that a

separate blank should not be submitted for employers for negligent hiring and

training if the employer is vicariously liable for the defendant’s actions. See,

Simmons v. Bisland, No. 03-08-00141, 2009 WL 961522, *4 (Tex. App.—Austin

April 9, 2009, pet. denied); Rosell v. Central West Motor Stages, Inc., 89 S.W.3d

643, 654 (Tex. App.—Dallas 2002, pet. denied); Williams v. McCollister, 671 F.

Supp. 2d 884, 887–89 (S. D. Tex 2009). This Court should not allow Plaintiff to

now switch positions and thereby benefit from this tactical decision Plaintiff’s

counsel made.

Whether discussions of expert qualifications in healthcare-liability cases

apply to experts in personal injury cases.

Justice Moseley asked if experts in personal injury cases are subject to the

same inquiries as experts in healthcare liability cases. At its core, this question

seems to ask if one who testifies in a personal-injury case may be less qualified

than a medical expert who testifies in a healthcare-liability case. The answer to this

Court of Appeals

Sixth Appellate District of Texas

Attn.: Debra K. Autrey, Clerk

April 10, 2015

Page 6

question must be “no.” There is no authority that requires an expert in a healthcare-

liability case to meet a more heightened standard than a medical expert in a

personal-injury case.

The standards by which courts evaluate all scientific testimony were not

developed in and are not exclusive to the healthcare-liability context. See, e.g.,

Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579 (1993) (product liability

action); E.I. du Pont de Nemours & Co., Inc. v. Robinson, 923 S.W.2d 549 (Tex.

1995) (same). These standards derive from evidentiary rule 702. Id. The Texas

Supreme Court case on which Defendants rely in their briefing—Broders v. Heise,

924 S.W.2d 148 (Tex. 1996)—is indeed a medical malpractice case, but the rule it

announced for expert qualifications has been reiterated in other contexts. See, e.g.,

Helena Chemical Co. v. Wilkins, 47 S.W.3d 486, 499 (Tex. 2001) (relying on

Broders qualification analysis in consumer lawsuit for proposition that trial courts

“must ensure that those who purport to be experts truly have expertise concerning

the actual subject about which they are offering an opinion”); Gammill v. Jack

Williams Chevrolet, Inc., 972 S.W.2d 713, 719 (Tex. 1998) (relying on Broders

qualification analysis in wrongful death and products liability action). The ultimate

inquiry in any case in which expert testimony is offered is whether the purported

expert truly has expertise on the actual subject about which he offers an opinion.

See ExxonMobil Corp. v. Pagayon, No. 14-13-00456-CV, slip op. at 22–24 (Tex.

App.—Houston [14th Dist.] Apr. 9, 2015, no pet. h.), available at

http://www.search.txcourts.gov/Case.aspx?cn=14-13-00456-CV&coa=coa14

(stating, in healthcare liability case, that matter of doctor’s qualification to testify

on causes and effects of injury must be measured under Broders and TEX. R. EVID.

702, which involve same inquiry as under Health Care Liability Act). 1 The only

additional standard the Healthcare Liability Act imposes on a healthcare-liability

medical expert is that he knows the standard of care that applies to the particular

actions at issue. TEX. CIV. PRAC. & REM. CODE § 74.401(a)(3).

The issue here is not whether Dr. Calodney is qualified to offer a basic

medical opinion on the standard of care or whether the impact of the collision

caused pain or injury. Even though he is not a surgeon, Dr. Calodney provided

1

A copy of this recent opinion from the Fourteenth Court of Appeals, and the accompanying

dissent, is attached to this letter for the Court’s convenience.

Court of Appeals

Sixth Appellate District of Texas

Attn.: Debra K. Autrey, Clerk

April 10, 2015

Page 7

scientific testimony that Plaintiff needed one of two specific spinal surgeries and,

as a result of surgery, would never be able to work again. The specific treatment

needs and effects about which he opined are analogous to those addressed in the

other healthcare liability cases cited by Defendants. See, e.g., Tawa v. Gentry, No.

01-12-00407-CV, 2013 WL 1694869, at *3–8 (Tex. App.—Houston [1st Dist.]

Apr. 18, 2013, no pet.) (considering doctor’s qualification to opine about

discontinuing specific treatment); Cortez v. Tomas, No. 02-11-00231-CV, 2012

WL 407382, at *3–6 (Tex. App.—Fort Worth Feb. 9, 2012, no pet.) (considering

doctor’s qualification to opine on specific surgical procedure and postoperative

care). Accordingly, the cases cited are the clearest illustration of the careful inquiry

this Court must make in determining whether Dr. Calodney’s testimony about

specific lumbar surgeries and their postoperative effect is competent evidence in

support of the large sums the jury awarded for future medical expenses, future

physical impairment, and future lost wages.

Respectfully Submitted,

/s/ Wanda McKee Fowler

Wanda McKee Fowler

Attorney for Appellants

Court of Appeals

Sixth Appellate District of Texas

Attn.: Debra K. Autrey, Clerk

April 10, 2015

Page 8

cc: Via Electronic Service

David M. Gunn

Erin H. Huber

BECK REDDEN LLP

1221 McKinney, Suite 4500

Houston, TX 77010

dgunn@beckredden.com

ehuber@beckredden.com

John R. Mercy

MERCY CARTER TIDWELL LLP

1724 Galleria Oaks Drive

Texarkana, Texas 75503

jmercy@texarkanalawyers.com

Brent Goudarzi

Geoffrey G. Hoover

GOUDARZI & YOUNG

P.O. Box 910

Gilmer, Texas 75644

brent@goudarzi-young.com

ghoover@goudarzi-young.com

Counsel for Appellant

Reversed and Remanded and Opinion and Dissenting Opinion filed April 9,

2015.

In The

Fourteenth Court of Appeals

NO. 14-13-00456-CV

EXXONMOBIL CORPORATION, Appellant

V.

DELIA PAGAYON, MICHELLE FULTON, ALFREDO G. PAGAYON,

MICHAEL G. PAGAYON, AND THE ESTATE OF ALFREDO M.

PAGAYON, Appellees

On Appeal from the Probate Court No. 2

Harris County, Texas

Trial Court Cause Nos. 408,329-401 & 408,329

OPINION

Alfredo M. Pagayon (“Alfredo”) died several weeks after an altercation

between himself, his son Alfredo G. Pagayon (“J.R.”), and an ExxonMobil

Corporation employee at an ExxonMobil service station/convenience store.

ExxonMobil challenges the judgment rendered on the jury’s verdict in favor of

Alfredo’s wife, children, and estate (collectively, “the Pagayons”) on their claims

arising from Alfredo’s death. ExxonMobil asserts that the judgment should be

reversed because (1) it had no duty to control its employee under the facts of this

case, (2) the evidence is legally and factually insufficient to support a finding that

its negligent supervision caused Alfredo’s death, (3) issues of causation and

comparative fault were not fairly tried because the trial court refused to allow

ExxonMobil to present certain evidence and defenses, (4) the evidence is

insufficient to support the medical-expenses damages awarded, and (5) a remittitur

of Alfredo’s widow’s non-pecuniary damages should be suggested because her

pain and mental anguish were due almost entirely to events that occurred during

Alfredo’s hospitalization and not to the fight at the convenience store. We

conclude that ExxonMobil is not entitled to rendition of a take-nothing judgment

on any of the asserted grounds, that is, we conclude that ExxonMobil had a duty to

control the employee who injured Alfredo, and there is legally sufficient evidence

that its breach of that duty caused Alfredo’s death. However, we agree with

ExxonMobil that the trial court erred in striking its designation of an emergency-

room physician as a responsible third party. We further conclude that the error

probably caused the rendition of an improper judgment; thus, without reaching

ExxonMobil’s remaining issues, we reverse the judgment and remand the case for

a new trial.

I. INTRODUCTION

J.R. Pagayon and Carlos Cabulang were both employed by ExxonMobil as

sales associates at a convenience store in the Houston area. Cabulang, J.R., and

J.R.’s father Alfredo had known each other prior to the employment. J.R. had

conflicts with Cabulang at work and reported those problems not only to his

ExxonMobil manager, but also to Alfredo. On July 31, 2011, Alfredo telephoned

2

Cabulang and the two had heated words about the conflict between J.R. and

Cabulang.

The next day, Cabulang and J.R. worked together. During that time,

Cabulang repeatedly cursed J.R. and said things to him that J.R. described as

threats against himself and Alfredo. A co-worker told store manager Roce Asfaw

of Cabulang’s threats against J.R., but Asfaw simply told the co-worker to tell J.R.

to stay away from Cabulang. J.R. did so, but when Alfredo came into the

ExxonMobil store to pick up J.R. from work that afternoon, Cabulang left his sales

register and started a fight with Alfredo. Cabulang struck Alfredo several times in

the head and back, and Alfredo was transported to a hospital for treatment of his

injuries. He was treated in the emergency room by Dr. Hung Hoang Dang until

after midnight, then admitted to the hospital. Shortly thereafter, Alfredo was

transferred to the intensive-care unit for treatment of his respiratory distress, and

Dr. Jaime Clavijo intubated him. An attempt to wean Alfredo from the respirator

failed, and he was transferred to a long-term intensive-care facility. On August 24,

2011, Alfredo died. The stated cause of death was cardiac arrhythmia, renal

failure, and respiratory failure. According to Dr. Clavijo, the organ failure was

caused by sepsis, a blood infection. The source of the infection was not

definitively identified, and the parties’ respective medical experts had differing

opinions regarding the most probable source.

The Pagayons sued ExxonMobil, seeking to hold it directly or vicariously

liable for Alfredo’s injury and death. The Pagayons attributed Alfredo’s death

solely to the events at the store. ExxonMobil maintained that it was not liable for

any harm that Alfredo sustained in the fight, and in any event, his death was caused

by negligent medical care. ExxonMobil sought to designate Dr. Dang as a

responsible third party, but the Pagayons successfully moved to strike the

3

designation. They also successfully moved to exclude the testimony of

ExxonMobil’s medical expert, Dr. Jose Gregorio Casar.

The jury failed to find that Cabulang’s actions were within the course and

scope of his employment; thus, ExxonMobil was not held vicariously liable for its

employee’s actions. The jury did find, however, that ExxonMobil was directly

liable for its negligent supervision of Cabulang, and that this negligence, together

with the negligence of both J.R. and Alfredo, proximately caused Alfredo’s death.

The jury was then asked to apportion liability for the fight among ExxonMobil,

J.R., and Alfredo. It attributed seventy-five percent of the responsibility for

causing the fight to ExxonMobil, fifteen percent to J.R., and ten percent to Alfredo.

Finally, the jury assessed damages of over $1.8 million for the Pagayons’ claims.

In accordance with the proportionate-responsibility statute, the trial court signed a

judgment awarding the Pagayons seventy-five percent of the damages assessed by

the jury. The trial court denied ExxonMobil’s motion for new trial, and

ExxonMobil appealed.

II. VICARIOUS V. DIRECT LIABILITY

In ExxonMobil’s first two issues, it argues that it is entitled to rendition of a

take-nothing judgment on the Pagayons’ two theories of liability: vicarious

liability as Cabulang’s employer (also called “imputed” liability), and direct

liability for negligent supervision. The distinction between these two theories is

crucial to our analysis, because although the jury failed to find ExxonMobil

vicariously liable, many of ExxonMobil’s appellate arguments pertain only to that

theory of liability rather than to the negligent-supervision theory of liability on

which the judgment is based.

To impute liability to an employer for its employee’s tort, the employee’s act

usually must fall within the course and scope of the employee’s general authority

4

and must have been performed in furtherance of the employer’s business. See

Wrenn v. G.A.T.X. Logistics, Inc., 73 S.W.3d 489, 493 (Tex. App.—Fort Worth

2002, no pet.). Intentional torts are not ordinarily within the scope of a worker’s

employment. Cowboys Concert Hall-Arlington, Inc. v. Jones, No. 02-12-00518-

CV, 2014 WL 1713472, at *9 (Tex. App.—Fort Worth May 1, 2014, pet. denied)

(per curiam, mem. op.). And as ExxonMobil points out, an employer ordinarily is

not vicariously liable for the employer’s intentional torts that are motivated by

personal animosity. See Wrenn, 73 S.W.3d at 494 (citing Tex. & P. Ry. Co. v.

Hagenloh, 151 Tex. 191, 197, 247 S.W.2d 236, 239 (1952)).

Unlike a claim of vicarious liability, a claim of negligent supervision does

not depend on a finding that the employee committed the tort while acting in the

course and scope of his employment. See Soon Phat, L.P. v. Alvarado, 396

S.W.3d 78, 100 (Tex. App.—Houston [14th Dist.] 2013, pet. denied). In

particular, an employer can be held liable under a negligent-supervision theory for

its employee’s intentional torts.

To illustrate this, we need only look to the test for determining whether the

“duty” element of a negligent-supervision claim is satisfied. Where, as here, a

claimant seeks to hold an employer liable under a negligent-supervision theory for

an employee’s actions that were outside the scope of his employment, the Texas

Supreme Court has adopted the following test to determine whether the employer

had a duty to use reasonable care to control the employee so as to prevent him

from harming others:

A master is under a duty to exercise reasonable care so to control his

servant while acting outside the scope of his employment as to

prevent him from intentionally harming others or from so conducting

himself as to create an unreasonable risk of bodily harm to them, if

(a) the servant

5

(i) is upon the premises in possession of the master or upon

which the servant is privileged to enter only as his

servant, or

(ii) is using a chattel of the master, and

(b) the master

(i) knows or has reason to know that he has the ability to

control his servant, and

(ii) knows or should know of the necessity and opportunity

for exercising such control.

RESTATEMENT (SECOND) OF TORTS § 317 (1965) (emphasis added), adopted in

Kelsey-Seybold Clinic v. Maclay, 466 S.W.2d 716, 720 (Tex. 1971), superseded by

statute on other grounds as stated in Helena Labs. Corp. v. Snyder, 886 S.W.2d

767, 768 (Tex. 1994) (per curiam); see also Otis Eng’g Corp. v. Clark, 668 S.W.2d

307, 309 (Tex. 1983) (including this section among other Restatement provisions

in which, as a matter of law, a relationship imposes certain duties upon the parties);

accord, Nabors Drilling, U.S.A., Inc. v. Escoto, 288 S.W.3d 401, 404–05 (Tex.

2009). Thus, under a negligent-supervision theory, an employer that breaches this

duty can be held directly liable for harm that is proximately caused by its

employee’s intentional conduct that is outside the scope of his employment.

Because the jury failed to find ExxonMobil liable on a theory of vicarious

liability, we do not address ExxonMobil’s arguments and authorities that pertain to

that theory of liability rather than to the Pagayons’ negligent-supervision claim.

Specifically, we do not address ExxonMobil’s arguments that liability cannot be

imputed to it because the altercation was (a) based on intentional conduct or

personal animosity, (b) unauthorized, (c) not in the course and scope of Cabulang’s

employment, or (d) not in the furtherance of ExxonMobil’s business. We instead

analyze only ExxonMobil’s arguments that could require reversal of the judgment

on the Pagayons’ negligent-supervision claim.

6

III. NEGLIGENT SUPERVISION

To prevail on a claim of negligent supervision, the Pagayons were required

to prove that (a) ExxonMobil owed Alfredo a duty to supervise its employees,

(b) ExxonMobil breached that duty, and (c) the breach proximately caused

Alfredo’s injuries. See Knight v. City Streets, L.L.C., 167 S.W.3d 580, 584 (Tex.

App.—Houston [14th Dist.] 2005, no pet.). In ExxonMobil’s first issue, it argues

that, as a matter of law, it had no duty to control Cabulang, and in its second issue,

it contends that the evidence is legally insufficient to support the finding that its

actions were a proximate cause of Alfredo’s death. ExxonMobil also makes a

subsidiary argument that we construe as an assertion that ExxonMobil fulfilled any

duty that it owed to the Pagayons, or in other words, that it did not breach its duty.

To analyze the legal sufficiency of the evidence, we review the record in the

light most favorable to the challenged finding, crediting favorable evidence if a

reasonable factfinder could and disregarding contrary evidence unless a reasonable

factfinder could not. See City of Keller v. Wilson, 168 S.W.3d 802, 827 (Tex.

2005). Evidence is legally sufficient if it “rises to a level that would enable

reasonable and fair-minded people to differ in their conclusions.” Ford Motor Co.

v. Ridgway, 135 S.W.3d 598, 601 (Tex. 2004). We will conclude that the evidence

is legally insufficient to support the finding only if (a) there is a complete absence

of evidence of a vital fact, (b) the court is barred by rules of law or evidence from

giving weight to the only evidence offered to prove a vital fact, (c) the evidence

offered to prove a vital fact is no more than a mere scintilla, or (d) the evidence

conclusively establishes the opposite of the vital fact. City of Keller, 168 S.W.3d

at 810.

7

A. ExxonMobil’s Duty

In its first issue, ExxonMobil contends that there is no evidence to support

the imposition of a duty. Whether a duty exists is generally a legal question for the

court. See Nabors Drilling, 288 S.W.3d at 404; Tex. Home Mgmt., Inc. v. Peavy,

89 S.W.3d 30, 33 (Tex. 2002); Otis Eng’g Corp., 668 S.W.2d at 312. As

previously discussed, the duty for an employer to use reasonable care to prevent its

employee from harming others can arise if (1) the employee is on the employer’s

premises, (2) the employer knows it has the ability to control the employee, and

(3) the employer “knows or should know of the necessity and opportunity for

exercising such control.” RESTATEMENT (SECOND) OF TORTS § 317. According to

the uncontroverted evidence, Cabulang was on ExxonMobil’s premises when he

threatened physical violence and when he fought Alfredo, and store manager Roce

Asfaw knew that she was authorized to exercise control over him, to reprimand

him, send him home, or terminate his employment. Thus, the question of whether

ExxonMobil had a duty to use reasonable care to prevent Cabulang from

intentionally harming others turns on whether there is legally sufficient evidence

that ExxonMobil knew or should have known “of the necessity and opportunity for

exercising such control” over Cabulang. See id.

ExxonMobil asserts there is no evidence that it should have known of

Cabulang’s violent tendencies, thereby implying that it should not have known of

the need and opportunity to exercise control over him. But the evidence on this

issue is uncontroverted; indeed, it consists largely of admissions by Asfaw.

First, Asfaw’s testimony established that ExxonMobil knew or should have

known of the need to control Cabulang. Asfaw acknowledged that if she, as the

store manager, were alerted to a threat of violence, then she should do something

about it, and that failing to do so could pose a threat to others. It is undisputed that

8

before the fight occurred, Asfaw was alerted to a threat of violence. Asfaw admits

that she left the store before Cabulang arrived to work at around 3:30 p.m. to work

a shift that overlapped with J.R.’s, and while she was away, Cabulang’s co-worker

Jovita Leslie telephoned her and said that Cabulang was threatening “to beat J.R.

up” and asking him to go outside to fight. Asfaw agreed that such statements are

threatening. Nevertheless, she did not tell Cabulang to stop, and she did not

investigate the complaint.

Second, Asfaw’s testimony established that she had the opportunity to

exercise control over Cabulang. She acknowledged that J.R. continued working

until around 4:30 p.m., and she admitted that she received the phone call about

Cabulang’s threats “long before” that time. Asfaw agreed that although she was

not physically present at the store when she was told of Cabulang’s threats, she still

could have sent him home. Indeed, she conceded that, regardless of whether she

believed the report of Cabulang’s threats, the fight could have been avoided if she

had just spoken to him.

This evidence distinguishes the facts of this case from those of the cases

ExxonMobil cites in support of its argument that, as a matter of law, it had no duty

to exercise reasonable care to prevent Cabulang from intentionally harming others.

Here, the employee’s manager had advance warning of his current violent

tendencies, expressed through his verbal threats of physical violence while

working on the employer’s premises. There was no such evidence in the cases on

which ExxonMobil relies. See, e.g., Garrett v. Great W. Distrib. Co. of Amarillo,

129 S.W.3d 797, 804 (Tex. App.—Amarillo 2004, pet. denied) (holding that

employer has no duty to prevent employee from fighting unless it reasonably

should have known of that particular employee’s propensity for violence; thus,

beer-distribution company’s executive secretary’s knowledge that “fights could

9

occur in a bar” or that two other employees had been involved in such a fight did

not make it foreseeable that different employees would do so on a different

occasion); Dailey v. Albertson’s, Inc., 83 S.W.3d 222, 229 (Tex. App.—El Paso

2002, no pet.) (explaining that a grocery store should not have foreseen its

employee’s physical assault of a customer where the assault was preceded only by

the employee making loud comments about the customer’s hair and following the

customer from one check-out line to another); Peek v. Equip. Servs., Inc., 906

S.W.2d 529, 532 (Tex. App.—San Antonio 1995, no writ) (holding that an

employee’s shooting of a customer was unforeseeable because although the

employee was “nervous and sweating” on the day of the shooting, he had made no

threats and acted “without warning”). In contrast to the holdings of these cases, we

conclude that the evidence here establishes, as a matter of law, that ExxonMobil

had a duty to exercise reasonable care to control Cabulang so as to prevent him

from harming others.

B. Breach

Although not listed as a distinct issue, ExxonMobil also makes an argument

that appears to be directed to the element of breach of duty. ExxonMobil states

that although it had no duty, Asfaw nevertheless “did take precautions” by relaying

instructions to J.R. to stay away from Cabulang. ExxonMobil implies that this was

all that was required. But the duty at issue here was the duty to exercise reasonable

care “to control the servant while acting outside the scope of his employment as to

prevent him from intentionally harming others or from so conducting himself as to

create an unreasonable risk of bodily harm to them.” RESTATEMENT (SECOND) OF

TORTS § 317 (emphasis added). The only person who expressed an intention to

harm “others” or who is claimed to have posed an unreasonable risk of bodily

harm to “others” was Cabulang; thus, ExxonMobil’s duty was to exercise

10

reasonable care to control Cabulang. Moreover, the duty was owed not just to

J.R., but to “others” who were similarly situated—including Alfredo. ExxonMobil

asserts in its reply brief that it could not have foreseen that Cabulang would assault

Alfredo because Asfaw was told only that Cabulang had threatened J.R. This,

however, was sufficient, because for a result to be foreseeable, “[a]ll that is

required is ‘that the injury be of such a general character as might reasonably have

been anticipated; and that the injured party should be so situated with relation to

the wrongful act that injury to him or to one similarly situated might reasonably

have been foreseen.’” Motsenbocker v. Wyatt, 369 S.W.2d 319, 323 (Tex. 1963)

(quoting Carey v. Pure Distrib. Corp., 133 Tex. 31, 35, 124 S.W.2d 847, 849

(1939)); see also Mindi M. v. Flagship Hotel, Ltd., 439 S.W.3d 551, 557 (Tex.

App.—Houston [14th Dist.] 2014, pet. pending) (“An employer is negligent if the

employer hires, retains, or supervises an employee whom the employer knows, or

by the exercise of reasonable care should have known, is unfit or incompetent, and

whose unfitness or incompetence creates an unreasonable risk of harm to others

because of the employee’s job-related duties.” (emphasis added)); Watkins v.

Basurto, No. 14-10-00299-CV, 2011 WL 1414135, at *4 (Tex. App.—Houston

[14th Dist.] Apr. 14, 2011, no pet.) (mem. op.) (“An employer has a general duty

to control its employees . . . , and to adequately hire, train, and supervise

employees to prevent injuries to third parties that are reasonably foreseeable.”

(emphasis added) (citations omitted)). As the facts of this case illustrate, relaying a

message to one potential victim—J.R.—to “stay away” from Cabulang did not

prevent Cabulang from harming someone else who was similarly situated. 1

1

ExxonMobil does not argue that J.R. and his father were not “similarly situated.”

11

C. Proximate Cause

In its second issue, ExxonMobil asks us to reverse and render a take-nothing

judgment because the evidence is legally insufficient to support the jury’s finding

that ExxonMobil’s negligent supervision proximately caused Alfredo’s death.

Proximate cause consists of the elements of cause-in-fact and foreseeability. See

Doe v. Boys Club of Greater Dall., Inc., 907 S.W.2d 472, 477 (Tex. 1995). Cause-

in-fact is shown by establishing that the negligent act or omission was a substantial

factor in bringing about the injury; without the act or omission, harm would not

have occurred. See Transcontinental Ins. Co. v. Crump, 330 S.W.3d 211, 221–23

(Tex. 2010); Travis v. City of Mesquite, 830 S.W.2d 94, 98 (Tex. 1992).

Foreseeability means that the actor, as a person of ordinary intelligence, should

have anticipated the dangers his negligent act or omission created for others. See

D. Hous., Inc. v. Love, 92 S.W.3d 450, 454 (Tex. 2002). Thus, “before liability

will be imposed, there must be sufficient evidence indicating that the defendant

knew or should have known that harm would eventually befall a victim.” Greater

Hous. Transp. Co. v. Phillips, 801 S.W.2d 523, 526 (Tex. 1990).

As the jury here was instructed, there can be more than one proximate cause

of an event. Del Lago Partners, Inc. v. Smith, 307 S.W.3d 762, 774 (Tex. 2010).

ExxonMobil does not contend otherwise. It instead implies that, as a matter of

law, other events proximately caused the fight, and that the existence of these other

causes negates the jury’s finding that ExxonMobil’s negligence was “a proximate

cause” of the fight or of Alfredo’s death. Specifically, ExxonMobil urges that its

negligence cannot be a proximate cause of either event because, as a matter of law,

(1) intentional conduct caused the fight rather than any act or omission by

ExxonMobil; and (2) the store “merely provided the location for this assault to

occur,” so that Exxon Mobil was not the legal cause of this “personal-animus

12

incident.” Stated in terms of the standard of review, ExxonMobil contends that

“the evidence establishes conclusively the opposite of the vital fact.” See City of

Keller, 168 S.W.3d at 810.

These arguments are variations of ExxonMobil’s assertion that it cannot be

liable under a negligent-supervision theory if its employee acted intentionally and

from personal animus. As previously explained, however, this is incorrect as a

matter of law. The question of whether Cabulang’s behavior was an intentional

tort motivated by personal animus is relevant to the determination of whether he

acted in the course and scope of his employment or in the furtherance of

ExxonMobil’s business. Those are elements necessary to establish vicarious

liability, but not to establish ExxonMobil’s direct liability under a negligent-

supervision theory. As previously discussed, it is precisely because Asfaw was

told that Cabulang made threats of violence while he was on the premises working

that ExxonMobil had a duty to exercise reasonable care “to prevent him from

intentionally harming others or from so conducting himself as to create an

unreasonable risk of bodily harm to them.” RESTATEMENT (SECOND) OF TORTS

§ 317 (emphasis added). Thus, even if Cabulang’s conduct were intentional and

motivated by personal animus, these would not be grounds on which to reverse the

judgment on the Pagayons’ negligent-supervision claim. Cf. CoTemp, Inc. v.

Hous. W. Corp., 222 S.W.3d 487, 492 (Tex. App.—Houston [14th Dist.] 2007, no

pet.) (plurality op.) (“Under the tort of negligent hiring, supervision, or retention,

an employer who negligently hires an incompetent or unfit individual may be

directly liable to a third party whose injury was proximately caused by the

employee’s negligent or intentional act.” (emphasis added)).2

2

This is not the only problem with ExxonMobil’s argument. In addition, it appears to be

contrary to the position it maintained at trial, where it argued that Cabulang did not cause the

fight, but instead acted only in self-defense. Whether Cabulang caused the fight was a disputed

13

ExxonMobil also contends that its conduct was “too attenuated” from the

fight to have proximately caused it, because the store was “just the location for an

inevitable wrestling match,” which occurred there “only because events and people

coincided by chance inside the store.” But the only evidence on these subjects is at

odds with ExxonMobil’s assertions. First, there is no evidence that the altercation

was inevitable. Asfaw instead testified that if she had sent Cabulang home or

simply spoken to him, then the altercation would not have occurred. Cabulang

additionally testified that if he had just let J.R. and Alfredo walk out of the store,

then there would have been no fight. Second, it was not a coincidence that the

participants in the altercation were all inside the store; it instead was foreseeable to

ExxonMobil, because it scheduled Cabulang and J.R. to work overlapping shifts,

and it did not send Cabulang home after being informed that Cabulang was

threatening J.R. It was foreseeable to ExxonMobil that a person “similarly

situated” to J.R.—his father—would come to the store that afternoon, because

Asfaw knew that Alfredo provided J.R.’s transportation. And it was foreseeable

that J.R. and Alfredo would be in the store with Cabulang because Asfaw knew

both that J.R. customarily waited inside the store for his father—a practice that she

permitted—and that Alfredo customarily came inside the store when he arrived to

drive J.R. home. The day of the altercation was no exception to this pattern: J.R.

called his father when he finished working, and twelve minutes after he changed

out of his uniform, Alfredo entered the store to pick him up.3

In sum, the store was the location where ExxonMobil’s duty to supervise its

employees arose, and the evidence supports the jury’s finding that ExxonMobil’s

question of fact. Moreover, the jury found that ExxonMobil, J.R., and Alfredo acted negligently,

but it was not asked to find that anyone acted intentionally.

3

Although ExxonMobil points out that its written “policies prohibit loitering inside the

store,” there is no evidence that J.R. did so.

14

negligence in supervising Cabulang was a proximate cause of the altercation, as

described in more detail above. We thus reject ExxonMobil’s argument that the

store was “merely the location” of the fight and that its conduct was too attenuated

to have been a proximate cause of Alfredo’s death. We overrule this issue.4

IV. DESIGNATION OF RESPONSIBLE THIRD PARTIES

In its third issue, ExxonMobil argues that the trial court erred by striking its

designation of emergency-room physician Dr. Dang as a responsible third party.5

The resolution of this issue turns on the interpretation and application of the

proportionate-responsibility statute found in Chapter 33 of the Texas Civil Practice

and Remedies Code and the health-care-liability statute found in Chapter 74 of the

same code. We review the trial court’s ruling de novo. See Flack v. Hanke, 334

S.W.3d 251, 261 (Tex. App.—San Antonio 2010, pet. denied) (sub. op.).

A. Chapter 74’s “Standard of Proof” v. Chapter 33’s “Responsibility”

The parties principally join issue on the legal question of whether, to survive

a motion to strike the designation of an emergency-room physician as a responsible

third party, the designating defendant is required to produce evidence of simple

negligence, or instead must produce evidence of “wilful and wanton” negligence.

Under Chapter 74 of the Texas Civil Practice and Remedies Code governing

health-care-liability claims, “the claimant bringing the suit” for damages arising

from allegedly deficient emergency medical care cannot establish liability absent

4

Having rejected ExxonMobil’s arguments that it cannot be the proximate cause of

Alfredo’s death because (a) “intentional conduct” caused the fight, and (b) the store was merely

the location of the fight, we do not reach its remaining argument under this heading, i.e., that

“[a]ny reliance on the foreseeability of medical negligence cannot overcome these problems with

causation.”

5

The parties sometimes refer to the trial court’s ruling as a denial of ExxonMobil’s

motion to designate Dr. Dang as a responsible third party, and sometimes refer to it as a grant of

the Pagayons’ motion to strike the designation. Our record contains only an order granting the

Pagayons’ motion to strike the designation of Dr. Dang as a responsible third party.

15

proof that the physician or health-care provider deviated from the standard of care

“with wilful and wanton negligence.” See TEX. CIV. PRAC. & REM. CODE § 74.153

(West 2011). The parties dispute whether this is the correct standard to apply

when measuring the sufficiency of ExxonMobil’s response to a motion to strike its

designation of an emergency-room physician as a responsible third party.

The Pagayons argue that the following provision from Chapter 74 applies:

Standard of Proof in Cases Involving Emergency Medical Care

In a suit involving a health care liability claim against a physician or

health care provider for injury to or death of a patient arising out of

the provision of emergency medical care in a hospital emergency

department . . . , the claimant bringing the suit may prove that the

treatment or lack of treatment by the physician or health care provider

departed from accepted standards of medical care or health care only

if the claimant shows by a preponderance of the evidence that the

physician or health care provider, with wilful and wanton negligence,

deviated from the degree of care and skill that is reasonably expected

of an ordinarily prudent physician or health care provider in the same

or similar circumstances.

Id. (emphasis added). Citing this provision, the Pagayons moved to strike

ExxonMobil’s designation of Dr. Dang as a responsible third party solely on the

ground that there was no evidence that Dr. Dang deviated from the standard of care

“with wilful and wanton negligence.”

ExxonMobil responded that the provisions of Chapter 74 should not affect

the application of responsible-third-party practice because Chapter 74 is designed

to apply to health-care-liability claims in which damages are sought directly from

the physician or health-care provider. See id. § 74.001(2), (13) (West Supp. 2014)

(defining “claimant” as “a person, including a decedent’s estate, seeking or who

has sought recovery of damages in a health care liability claim,” and defining a

“health care liability claim” as “a cause of action against a health care provider or

16

physician for . . . claimed departure from accepted standards of medical care, or

health care, or safety or professional or administrative services directly related to

health care, which proximately results in injury or death of a claimant”). In

contrast, the proportionate-responsibility statute concerns “responsibility,” not

“liability,” so that a person can be wholly or partially “responsible” for the harm at

issue without being “liable” for the damages assessed as compensation for that

harm. Compare id. § 33.011(3) (West 2015) (“‘Liable defendant’ means a

defendant against whom a judgment can be entered for at least a portion of the

damages awarded to the claimant.” (emphasis added)) with id. § 33.011(6)

(“‘Responsible third party’ means any person who is alleged to have caused or

contributed to causing in any way the harm for which recovery of damages is

sought . . . .” (emphasis added)). To determine that a person is “responsible,” the

factfinder need find only that the person “caus[ed] or contribut[ed] to cause in any

way the harm for which recovery of damages is sought, whether by negligent act or

omission, by any defective or unreasonably dangerous product, by other conduct or

activity that violates an applicable legal standard, or by any combination of these.”

Id. § 33.003 (emphasis added).

B. Chapter 74’s “Standard of Proof” of Liability is Inapplicable

We agree with ExxonMobil that section 74.153 does not apply to the

designation of Dr. Dang as a responsible third party. Since Hood v. Phillips, the

Texas Supreme Court’s seminal case defining a physician’s standard of care, a

single standard of care has applied to physicians: the question to be answered is

whether the physician undertook “a mode or form of treatment which a reasonable

and prudent member of the medical profession would not have undertaken under

the same or similar circumstances.” 554 S.W.2d 160, 165 (Tex. 1977). In

answering that question, “[t]he circumstances to be considered include, but are not

17

limited to, the expertise of and means available to the physician-defendant, the

health of the patient, and the state of medical knowledge.” Id.

Section 74.153 of the Civil Practice & Remedies Code does not purport to

change this standard of care; it instead provides the standard of proof that is

required to establish liability for harm to a patient arising from the provision of

emergency medical care, because with limited exceptions, one “who in good faith

administers emergency care is not liable in civil damages for an act performed

during the emergency unless the act is wilfully or wantonly negligent.” See TEX.

CIV. PRAC. & REM. CODE ANN. § 74.151(a) (West Supp. 2014); see also Benish v.

Grottie, 281 S.W.3d 184, 191 (Tex. App.—Fort Worth 2009, pet. denied)

(“Section 74.153’s statutorily created standard of proof and the applicable medical

standards of care are not the same thing.”); Baylor Med. Ctr. at Waxahachie v.

Wallace, 278 S.W.3d 552, 556 (Tex. App.—Dallas 2009, no pet.) (same); Bosch v.

Wilbarger Gen. Hosp., 223 S.W.3d 460, 464 (Tex. App.—Amarillo 2006, pet.

denied) (same). Thus, when a claimant seeks to recover damages for harm caused

by allegedly deficient emergency medical care, the legislature has heightened the

standard of proof required to establish the health-care provider’s liability. See

Bosch, 223 S.W.3d at 464 (citing TEX. CIV. PRAC. & REM. CODE ANN. § 74.153).

Stated differently, Chapter 74 does not change the “acceptable standard of medical

care”; it simply allows one providing emergency medical care to deviate from that

standard by a wider margin before becoming liable in damages for its breach. But

as discussed further below, even if an emergency-room physician has not deviated

from the standard of care sufficiently to make him “liable” for damages, he

nevertheless may have deviated from it sufficiently to make him “responsible.”

18

C. Chapter 33’s Definition of “Responsibility” Applies

In contrast to section 74.153, the proportionate-responsibility statute does

not address the standard of proof for a claimant to hold a defendant liable for

damages. It instead provides a means for comparing the extent of fault, providing

the means for a defendant to reduce both its own liability and the claimant’s

recovery. See TEX. CIV. PRAC. & REM. CODE ANN. § 33.012 (West 2015)

(reducing the amount of a claimant’s recovery); id. § 33.013 (reducing the amount

of a liable defendant’s liability). Because the statute evidences the legislature’s

intent that the factfinder determine the “percentage of responsibility,” its plain

language requires the factfinder to compare the conduct of those who allegedly

violated a legal standard—even if the plaintiff could not hold all of them liable for

the resulting harm. See In re Transit Mix Concrete & Materials Co., No. 12-13-

00364-CV, 2014 WL 1922724, at *2–3 (Tex. App.—Tyler 2014, orig. proceeding)

(mem. op.) (agreeing that a motion to strike the designation of a responsible third

party may be defeated without evidence of an “actionable act or omission” to

“establish liability”; the designating party need only produce more than a scintilla

of evidence that the third party is “responsible” for the claimant’s injury or

damage, as that term is used in the proportionate-responsibility statute (internal

quotation marks omitted)). We may not ignore such specific statutory language

even where its application may render a plaintiff less than whole. See, e.g.,

Galbraith Eng’g Consultants, Inc. v. Pochucha, 290 S.W.3d 863, 868–69 (Tex.

2009) (noting that the proportionate-liability statute is “apparently unconcerned

with the substantive defenses of responsible third parties” that place them beyond

the reach of the plaintiff).

Accordingly, we agree with ExxonMobil that for purposes of its response to

the Pagayons’ motion to strike, it was not required to raise a fact issue regarding

19

whether Dr. Dang, “with wilful and wanton negligence,” violated the standard of

care. On the other hand, we disagree with ExxonMobil that it needed only to raise

a fact issue on whether Dr. Dang “caused or contributed to cause” Alfredo’s death;

that is, we disagree that causation is the sole question under Chapter 33. As the

discussion above demonstrates, ExxonMobil needed to respond to the Pagayons’

motion to strike by producing evidence sufficient to raise a fact question about

whether Dr. Dang contributed to causing Alfredo’s death in a manner encompassed

by the proportionate-responsibility statute, such as by (1) negligent act or omission,

(2) any defective or unreasonably dangerous product, (3) other conduct or activity

that violates an applicable legal standard, or (4) any combination of these. See

TEX. CIV. PRAC. & REM. CODE ANN. § 33.003(a).

D. Sufficiency of the Evidence

Under the proportionate-responsibility statute, a motion to strike the

designation of a responsible third party is warranted only if “there is no evidence

that the designated person is responsible for any portion of the claimant’s alleged

injury or damage.” See id. § 33.004(l). When measured by the correct standard,

ExxonMobil produced sufficient evidence to defeat the Pagayons’ motion to strike.

In its response, ExxonMobil asserted that in the opinion of its expert Dr.

Casar, Dr. Dang breached the standard of care in three interconnected ways.

First, Dr. Casar contends that Dr. Dang misread a chest x-ray that was taken

shortly after Alfredo arrived in the emergency room. Alfredo was born without a

left lung, but according to Dr. Casar, Dr. Dang misinterpreted the chest x-ray

showing this defect and instead diagnosed Alfredo with a hemothorax on that side,

meaning that Dr. Dang believed that blood was collecting in the space between

Alfredo’s chest wall and his left lung. Dr. Casar stated in his report that the x-ray

revealed three signs that could be “clearly viewed on the chest x-ray” and that were

20

“inconsistent with the diagnosis of hemothorax.” Dr. Casar additionally stated that

if Alfredo had been bleeding into his chest cavity, his blood pressure would have

dropped, but instead, his blood pressure was elevated.

Second, Dr. Dang failed to order a CT scan of Alfredo’s chest before

attempting to insert a chest tube to drain the hemothorax that he believed existed.

Regarding the failure to timely secure a CT scan of Alfredo’s chest, Dr. Casar

stated in his report only that “any prudent physician would have ordered a CT scan

in order to acquire more information in regards to the chest x-ray,” and that when

the scan was actually performed, it revealed that Alfredo was born without a left

lung and had a large hematoma from the unsuccessful attempt to place a chest tube.

Third, Dr. Casar opined that Dr. Dang breached the standard of care by

attempting to insert a chest tube to drain the hemothorax. Dr. Casar stated that

after the failed attempts to insert a chest tube, Alfredo was given ten milligrams of

morphine for his resulting complaints of pain. Dr. Casar explained that a patient

who is missing a lung and has pulmonary hypertension is “extremely sensitive to

the depressing effects of narcotics and it comes as no surprise that the patient

developed progressive respiratory failure that required intubation and mechanical

ventilation.” According to Dr. Casar, “This was a direct result of giving the patient

narcotics to control the chest wall pain caused by the attempted insertion of a chest

tube that should ha[ve] not been placed to begin with.” He further stated that

Alfredo developed multiple organ failures, most likely as a result of uncontrolled

sepsis. He opined that although the source of the sepsis was not clear from the

cultures obtained, the most likely source was an infected chest-wall hematoma that

was directly caused by the attempted chest-tube placement. In Dr. Casar’s opinion,

21

Dr. Dang’s acts and omissions began a chain of medical complications that

ultimately led to Alfredo’s death.6

This evidence is sufficient to raise a question of fact as to whether Dr. Dang

is responsible for at least a portion of the Pagayons’ “alleged injury or damage,”

which is all that the statute requires. See id.

Although our dissenting colleague would conclude that the trial court did not

err in granting the motion to strike because Dr. Casar was not familiar with the

standard of care for an emergency-room physician, that is a conclusion concerning

Dr. Casar’s qualifications. See Roberts v. Williamson, 111 S.W.3d 113, 121–22

(Tex. 2003). But on appeal, no one has challenged Dr. Casar’s qualifications to

offer an expert opinion on the applicable standard of care—nor, so far as we can

tell, did anyone do so in the trial court. Thus, any objection to his qualifications to

render an expert opinion on the subject has been neither preserved nor presented.

See Croft v. State, 148 S.W.3d 533, 544 (Tex. App.—Houston [14th Dist.] 2004,

no pet.).

Moreover, the dissent applies the wrong test. Whether Dr. Casar is qualified

to testify on the causes and effects of a person’s injuries would be measured by

Texas Rule of Evidence 702. See Roberts, 111 S.W.3d at 121–22. The question to

be answered is whether the party offering the expert’s testimony has established

that the witness “has ‘knowledge, skill, experience, training, or education’

6

We acknowledge that “if evidence presents ‘other plausible causes of the injury or

condition that could be negated, the [proponent of the testimony] must offer evidence excluding

those causes with reasonable certainty.’” See Crump, 330 S.W.3d at 218 (quoting Merrell Dow

Pharm., Inc. v. Havner, 953 S.W.2d 706, 720 (Tex. 1997) (alterations in original)). But, in

determining whether the trial court erred in striking the designation of Dr. Dang as a responsible

third party, we must consider the evidence before it at the time of that ruling. See TEX. CIV.

PRAC. & REM. CODE ANN. § 33.004(l). At this point in the proceedings, the trial court was not

presented with evidence about other possible sources of sepsis; it was simply presented with Dr.

Dang’s opinion that even though cultures did not clarify the source of the sepsis, the chest-wall

hematoma from the failed chest-tube insertion was the most likely cause.

22

regarding the specific issue before the court which would qualify the expert to give

an opinion on that particular subject.” Broders v. Heise, 924 S.W.2d 148, 153

(Tex. 1996) (quoting TEX. R. EVID. 702). A physician from one school of practice

may testify about the negligence of a physician of a different school of practice “so

long as the ‘subject of inquiry is common to and equally recognized and

developed’ in both fields.” Id. at 152 (quoting Hart v. Van Zandt, 399 S.W.2d 791,

797 (Tex. 1965)). Thus, in determining whether a doctor is qualified to testify on

the specific issue before it, the trial court “should not focus on the specialty of the

medical expert.” Tenet Hosps. Ltd. v. Love, 347 S.W.3d 743, 750 (Tex. App.—El

Paso 2011, no pet.) (citing Roberts, 111 S.W.3d at 122). And here, Dr. Casar

testified repeatedly—and without contradiction—that the standard of care for

reading a chest x-ray is the same regardless of the physician’s school of practice.

In rejecting Dr. Casar’s opinion on the ground that he was not familiar with

the standard of care for an emergency-room physician, the dissent follows the

approach that we rejected in Blan v. Ali. In that health-care-liability case, the

defendant physicians did not dispute that the opposing expert was “qualified by

training and experience to offer expert testimony regarding the diagnosis, care and

treatment of a neurological condition”; they simply argued that the opposing expert

“does not know the standard of care as applied to emergency room physicians.” 7

S.W.3d 741, 746 (Tex. App.—Houston [14th Dist.] 1999, no pet.). But as we

explained in Blan, that argument “ignores the plain language of the statute, which

focuses not on the defendant doctor’s area of expertise, but on the condition

involved in the claim.” Id. (emphasis in original) (quoting the predecessor to TEX.

CIV. PRAC. & REM. CODE ANN. § 74.401(a) (West 2011)).7 The expert in Blan

7

Tellingly, this statute is entitled, “Qualifications of Expert Witness in Suit Against

Physician,” and provides as follows:

23

attested “that the standard of care he describes applies to any physician treating a

patient suffering from a stroke and lupus, regardless of the physician’s area of

expertise.” Id. (emphasis in original). Although in Blan we discussed the

application of provisions in the health-care-liability statute concerning expert

qualifications to testify regarding “the standards applicable to the ‘illness, injury,

or condition involved in the claim,’”8 the inquiry is the same under Texas Rule of

Evidence 702, that is, whether the expert is qualified to testify “regarding the

specific issue before the court.” See Broders, 924 S.W.2d at 153 (concluding that

the trial court properly excluded expert testimony where the proponent failed to

establish that the physician was qualified to opine “on cause in fact”); see also

Roberts, 111 S.W.3d at 122 (concluding that the proponent established that a

physician from a different school of practice “had experience and expertise

regarding the specific causes and effects” of the decedent’s injuries). And here,

there is no issue before us regarding Dr. Casar’s qualifications to opine that Dr.

Dang breached the standard of care and proximately caused Alfredo’s death

(a) In a suit involving a health care liability claim against a physician for

injury to or death of a patient, a person may qualify as an expert witness

on the issue of whether the physician departed from accepted standards of

medical care only if the person is a physician who:

(1) is practicing medicine at the time such testimony is given or was

practicing medicine at the time the claim arose;

(2) has knowledge of accepted standards of medical care for the

diagnosis, care, or treatment of the illness, injury, or condition

involved in the claim; and

(3) is qualified on the basis of training or experience to offer an expert

opinion regarding those accepted standards of medical care.

(emphasis added).

8

Id. at 746 (quoting Act of May 5, 1995, 74th Leg., R.S., ch. 140, § 2, sec. 14.01(a)(2),

1995 TEX. GEN. LAWS 985, 988, repealed by Act of June 2, 2003, 78th Leg., R.S., ch. 204,

§ 10.09, 2003 TEX. GEN. LAWS 847, 884).

24

through his misreading of the chest x-ray and his resultant attempts to treat Alfredo

for a hemothorax he did not have.

In sum, we conclude the evidence is sufficient to raise a question of fact as

to whether Dr. Dang caused or contributed to causing “in any way the harm for

which recovery of damages is sought, whether by negligent act or omission . . . , by

other conduct or activity that violates an applicable legal standard, or by any

combination of these.” See TEX. CIV. PRAC. & REM. CODE ANN. § 33.003(a). We

accordingly sustain this issue.

E. Harm Analysis

Although we conclude that the trial court erred in striking ExxonMobil’s

designation of Dr. Dang as a responsible third party, the error is not reversible

unless it probably caused the rendition of an improper judgment or probably

prevented the appellant from properly presenting the case on appeal. See TEX. R.

APP. P. 44.1(a). By striking the designation of Dr. Dang as a responsible third

party, the trial court removed Dr. Dang from the list of persons whose percentage

of responsibility could be submitted to the jury. See TEX. CIV. PRAC. & REM. CODE

ANN. § 33.003(a).9 Thus, the result is analogous to charge error, which “is

generally considered harmful if it relates to a contested, critical issue.” See Thota

v. Young, 366 S.W.3d 678, 687 (Tex. 2012). To determine if the error was

harmful, we must examine the entire record. See Timberwalk Apartments,

Partners, Inc. v. Cain, 972 S.W.2d 749, 756 & n.25 (Tex. 1998) (citing Lorusso v.

Members Mut. Ins. Co., 603 S.W.2d 818, 821–22 (Tex. 1980) and Patterson

Dental Co. v. Dunn, 592 S.W.2d 914, 921 (Tex. 1979)); Heritage Gulf Coast

9

Having removed that issue from the jury’s consideration, the trial court also excluded

evidence relevant to that determination.

25

Props., Ltd. v. Sandalwood Apartments, Inc., 416 S.W.3d 642, 655 (Tex. App.—

Houston [14th Dist.] 2013, no pet.).

Here, the extent to which Dr. Dang was responsible for “causing or

contributing to cause in any way the harm for which recovery of damages is

sought”10 was such a “contested, critical issue.” Medical records reflect that the

Houston Fire Department evaluated Alfredo at the scene at 5:06 p.m. Responders

were told that Alfredo had been punched in the face and the back. He was alert,

and complained of swelling in his cheek and pain in his neck. He also had

difficulty breathing. Alfredo was transported to the hospital’s emergency room,

arriving at 5:34 p.m. In medical records prepared at that time, the only complaints

listed were “assault—punched on the left side of head and on the back.” Alfredo

also continued to be described as alert and oriented. He complained of pain in his

face and lower back, but when CT scans of his brain and lumbar spine were

performed later that evening, neither showed any injuries. No one contends that

Cabulang struck Alfredo in the chest; that Alfredo fell on his chest; or that

Alfredo’s chest was injured in the fight.

But as Dr. Casar would have testified, something else happened in the

emergency room. When Alfredo’s vital signs were checked upon his arrival, it was

discovered that he had no breath sounds from the lower left side of his chest, and

he had an oxygen saturation of just 75%.11 Dr. Dang ordered a chest x-ray, which

10

See TEX. CIV. PRAC. & REM. CODE ANN. § 33.003(a).

11

There are many inconsistencies in the medical records. To cite a few examples, Dr.

Dang’s handwritten notes identify Alfredo himself as the person from whom Dr. Dang obtained

Alfredo’s medical history; other records identify the family as the historian. Dr. DeSantos stated

on the radiology report that Alfredo was referred for a chest x-ray due to chest pain, but this was

not listed among Alfredo’s complaints. Although Dr. Clavijo was not present when Alfredo

arrived at the hospital, he wrote that Alfredo was confused and disoriented at that time; however,

before Dr. Dang administered sixteen milligrams of morphine as discussed infra, Alfredo was

consistently described as alert and oriented by those who evaluated him at ExxonMobil and by

26

was performed at 6:08 p.m. The radiologist, Dr. Luis DeSantos, read the x-ray and

commented that the “left hemithorax is completely opaque and there is

displacement of the mediastinum toward the right side suggesting the presence of a

large amount of fluid in the left hemithorax with displacement of the

mediastinum.” Dr. Dang reviewed the x-ray and concluded that Alfredo had a

hemothorax. Although this conclusion was consistent with Dr. DeSantos’s

observations, it was Dr. Dang who actually diagnosed Alfredo as having a

hemothorax.

It is undisputed, however, that this diagnosis was wrong. Alfredo did not

have a hemothorax; he was born without a left lung. Dr. Casar would have

testified that Dr. Dang breached the standard of care by misreading the x-ray in

that he failed to note the signs that Alfredo did not have a hemothorax and had

only one lung. Even Dr. Clavijo, the Pagayons’ testifying medical expert, wrote in

his own consultation notes, “Chest x-ray showed absence of left lung.”

According to Dr. Casar, Alfredo’s medical complications and eventual death

arose from Dr. Dang’s misreading of the chest x-ray and his resultant efforts to

treat a condition that Alfredo did not have (a hemothorax), while failing to take

into consideration the condition that Alfredo did have (a missing lung).12 The

evidence of Dr. Dang’s actions and their consequences is as follows:

the emergency-room personnel. Our description of the evidence is intended only to show our

reasons for concluding that the extent of Dr. Dang’s responsibility, if any, for causing or

contributing to Alfredo’s death was a contested, critical issue.

12

Even if a chest CT scan were needed to properly diagnose Alfredo’s true condition and

rule out a hemothorax, evidence supports Dr. Casar’s opinion that Dr. Dang had time to have the

scan performed. Dr. DeSantos made his comments on the chest x-ray at approximately 6:10

p.m., and Dr. Dang did not administer the first dose of morphine in preparation for the chest tube

until 6:42 p.m.—a time lapse of thirty-two minutes. Medical records also show that Dr. Dang

finally ordered a chest CT scan at 8:31 p.m., and that it was completed at 8:53 p.m.—a time

lapse of just twenty-two minutes. Thus, the record supports the conclusion that if Dr. Dang had

ordered a chest CT scan after seeing the unusual chest x-ray, the extra procedure would not have

27

Dr. Dang stated in his notes that Alfredo was given morphine for the

attempted insertion of a chest tube to drain the excess fluid that Dr. Dang believed

was collecting in Alfredo’s chest. Alfredo was given the first dose of four

milligrams of morphine at 6:42 p.m., four minutes before Dr. Dang’s first attempt

to insert a chest tube. He attempted to insert a chest tube at 6:46 p.m. and again at

around 6:52 p.m. After these attempts, Alfredo’s primary complaint of pain no

longer concerned his face or back, and he instead complained of pain at the site

where Dr. Dang had attempted to insert the chest tube. Dr. Dang responded with

more morphine. Sixteen minutes after Dr. Dang’s second attempt to insert a chest

tube, Alfredo was given four more milligrams of morphine, and twenty minutes

after that, Alfredo was given a further six milligrams of morphine. Thus, in

connection with his attempt to insert a chest tube, Dr. Dang caused Alfredo to be

given a total of fourteen milligrams of morphine in the space of forty-six minutes.

Dr. Casar would have testified that when a dose of about eight milligrams is given

to someone with only one lung, it can be expected that the patient will stop

breathing. He stated that although Alfredo was given a medication to reverse the

effects of morphine and “for a little bit he became more responsive,”13 his

condition continued to deteriorate, and he had to be placed on a respirator. At

12:20 a.m. on August 2, 2011, Dr. Dang wrote in Alfredo’s progress notes,

delayed the insertion of the chest tube if the CT scan had confirmed his diagnosis of a

hemothorax. We note, however, that it is unclear what role the chest CT scan played in Dr.

Dang’s treatment of Alfredo. Although other doctors state in their notes that the CT scan

“confirmed” that Alfredo had only one lung, the CT scan is not mentioned in Dr. Dang’s

narrative. He instead wrote, “Wife arrive to ER many hours later and I was informed that patient

was born w/o one lung, but they are not sure which side.”

13

At 11:30 p.m., Dr. Dang wrote that Alfredo was asleep and was given Narcan, a drug

which, as Dr. Casar explained in his deposition, was intended to reverse the effects of morphine.

After writing that Narcan was given, Dr. Dang wrote “patient continues to be drowsy → more

alert now.” The time of this entry was also stated to be 11:30 p.m. (or as written in the records,

2330 pm).

28

“Discuss [with] Dr. Fisher about events in E.R. Agrees to admit → observation for

pain controll [sic].” But here, too, the testimony of the Pagayons’ expert Dr.

Clavijo is consistent with Dr. Casar’s proffered testimony rather than with Dr.

Dang’s notes. Dr. Clavijo testified that Alfredo was admitted to the hospital from

the emergency room for observation and for somnolence, because Alfredo “was

just entirely . . . lethargic.”

Alfredo was admitted “to the floor” of the hospital, but shortly after his

arrival, he suffered acute respiratory failure and was transferred to the intensive-

care unit where Dr. Clavijo intubated him at 8:20 a.m. Dr. Clavijo testified that

Alfredo was intubated because he was hypoventilating, meaning that his body

could not get rid of carbon dioxide. Dr. Clavijo testified that hypoventilating

“causes somnolence and lethargy and, subsequently, complete respiratory failure,”

but he identified no injuries that Alfredo received in the fight that could have

caused hypoventilation. He further testified that Alfredo was never able to be

weaned off of intubation, and that continuing intubation was a problem because

this leaves tubes in the patient’s body that can cause infection and further

complications—including, in Alfredo’s case, “a sepsis-type of infection.”

According to Dr. Clavijo, Alfredo’s respiratory failure also caused his other

systems to shut down. Dr. Casar, Dr. Clavijo, and Alfredo’s death certificate all

identify respiratory failure as one of the causes of Alfredo’s death.

Finally, Dr. Clavijo agreed that “the trauma . . . that occurred on August 1, at

Exxon, it kind of set off a chain of events that caused this respiratory failure that

then caused [Alfredo’s] renal failure and that eventually resulted in his death.”

(emphasis added). The “trauma” sustained “at Exxon” was not identified, and the

jury did not hear the evidence that the events in this chain included Dr. Dang’s

alleged negligence in misreading Alfredo’s chest x-ray, failing to observe that

29

Alfredo had only one lung, attempting to insert a chest tube, and administering

morphine in doses high enough to cause respiratory failure. Jurors also did not

hear Dr. Casar’s testimony that the injuries Alfredo received in the fight did not

cause his death, and that Alfredo’s death instead was caused by Dr. Dang’s

negligence. And because the question of Dr. Dang’s responsibility was removed

from the case by the trial court’s striking of the designation, the jury was unable to

consider this hotly contested issue.

The Pagayons contend that even if Dr. Dang made errors that increased the

harm to Alfredo or led to his death, Exxon would still bear the liability for the

doctor’s negligence under the “original tortfeasor rule.” See, e.g., Cannon v.

Pearson, 383 S.W.2d 565, 567 (Tex. 1964) (“It has long been an accepted and

established in this State that one who wrongfully injures another is liable in

damages for the consequences of negligent treatment by a doctor or surgeon

selected by the injured person in good faith and with ordinary care.”); Galvan v.

Fedder, 678 S.W.2d 596, 598 (Tex. App.—Houston [14th Dist.] 1984, no writ)

(same). But as the Texas Supreme Court recently pointed out, the legislature “has

overhauled Texas’s system for apportioning fault in negligence cases” over the

past four decades, enacting a comparative-negligence statute, which was replaced

by a comparative-responsibility statute, and which has since been modified to

become our current proportionate-responsibility statute. See Nabors Well Servs.,

Ltd. v. Romero, No. 13-0136, 2015 WL 648858, at *1, *4 (Tex. Feb. 13, 2015). By

its terms, the proportionate-responsibility statute applies to “any cause of action

based on tort in which a defendant, settling person, or responsible third party is

found responsible for a percentage of the harm for which relief is sought.” TEX.

CIV. PRAC. & REM. CODE ANN. § 33.002(a)(1) (West 2015). The Pagayons

asserted causes of action based on tort, and the jury determined ExxonMobil’s

30

percentage of responsibility; thus, the proportionate-responsibility statute governs

the determination of responsibility in this case.14 For the reasons we have

described, we conclude that ExxonMobil was harmed by the trial court’s erroneous

application of the statute in striking the designation of Dr. Dang as a responsible

third party.

We sustain this portion of ExxonMobil’s third issue. Because we conclude

that this error requires us to reverse the judgment and remand the case for a new

trial, we do not reach ExxonMobil’s remaining issues.

V. CONCLUSION

Although the evidence is legally sufficient to support the jury’s liability

finding against ExxonMobil under a negligent-supervision theory, we conclude

that the trial court erred in striking the designation of Dr. Dang as a responsible

third party, and that this error harmed ExxonMobil. Thus, without reaching

ExxonMobil’s remaining issues, we reverse the judgment and remand the case for

a new trial consistent with this opinion.

/s/ Tracy Christopher

Justice

Panel consists of Justices Christopher, McCally, and Wise (McCally, J.,

dissenting).

14

Although the statute contains a few exceptions to its broad application, the Pagayons

do not contend that any of the enumerated exceptions applies. See id. § 33.002(c) (providing that

Chapter 33 does not apply to actions for workers’ compensation benefits, claims for exemplary

damages, or claims arising from the manufacture of methamphetamine).

31

Reversed and Remanded Opinion and Dissenting Opinion filed April 9, 2015.

In The

Fourteenth Court of Appeals

NO. 14-13-00456-CV

EXXONMOBIL CORPORATION, Appellant

V.

DELIA PAGAYON, MICHELLE FULTON, ALFREDO G. PAGAYON,

MICHAEL G. PAGAYON, AND THE ESTATE OF ALFREDO M.

PAGAYON, Appellees

On Appeal from the Probate Court No. 2

Harris County, Texas

Trial Court Cause Nos. 408,329-401 & 408,329

DISSENTING OPINION

I agree with the Majority’s determination that for purposes of its response to

the Pagayons’ motion to strike, ExxonMobil was not required to raise a fact issue

regarding whether Dr. Dang, with willful and wanton negligence, violated the

standard of care. I disagree, however, with the Majority’s conclusion that

ExxonMobil raised a fact issue concerning Dr. Dang’s alleged negligence in

providing emergency care to Alfredo. Because I would instead conclude that the

trial court did not err in striking Dr. Dang’s designation, I respectfully dissent.

Though the trial court did not articulate its basis for striking the designation

of Dr. Dang in its order, there are two independent reasons that the decision is not

error. The trial court would not have erred in concluding that the medical opinion

ExxonMobil offered to raise a fact issue on Dr. Dang’s alleged departure from the

standard of care was not probative opinion testimony in that (1) the “expert”

disclaimed knowledge of the applicable standard of care and (2) the physician’s

“expert opinion” was based upon assumed facts that varied from the actual,

underlying facts .

1. The basis for the “expert opinion” that Dr. Dang fell below the standard of

care

The medical record relied upon by Dr. Casar reflects that Alfredo arrived at

the hospital’s emergency room via EMS at 17:58.1 The record also shows injury to

the left back and decreased breath sounds on the lower left side. The radiology

report also relied upon by Dr. Casar confirms that Dr. Dang immediately ordered a

chest x-ray due to chest pain, and the x-ray was performed at 18:08. The

radiologist, Dr. Luis DeSantos, read the x-ray at 18:10 and provided a diagnosis of

“[c]omplete opacification of the left hemithorax” and commented that the “left

hemithorax is completely opaque and there is displacement of the mediastinum

toward the right side suggesting the presence of a large amount of fluid in the left

hemithorax with displacement of the mediatinum.” At 18:46 the emergency room

1

The entirety of Alfredo’s medical records were not included as part of the motion-to-

strike record. Only a two page “Emergency Provider Record” and the “Diagnostic Radiography”

report are provided as the basis for Dr. Casar’s opinion.

2

records show “chest tube insertion because of hemothorax.”2 In fact, Alfredo had

no left lung and the x-ray was misread. According to Dr. Casar, Dr. Dang fell

below “the standard of care” when, faced with what, in Dr. Casar’s opinion was, an

unusual x-ray, Dr. Dang failed to wait for a CT scan before deciding to attempt

insertion of a chest tube. Dr. Casar stated that “[a]fter the CT Scan was obtained, it

became clear that the patient had a congenital absence of the left lung.”

2. The “expert” disclaims knowledge of the standard of care

Problematic to the above evidence is Dr. Casar’s testimony that he is not

familiar with the standard protocol for emergency room physicians when they

believe they are confronted with a hemothorax and his assumption about the timely

availability of diagnostic tools in the emergency room. First, Dr. Casar’s field of

expertise is critical care medicine, which he concedes has a different standard of

care than emergency room medicine. Standing alone, the fact that Dr. Casar’s

expertise is in a different area is not fatal if Dr. Casar demonstrates knowledge of

the area at issue. See Tex. R. Evid. 702 (“If scientific, technical, or other

specialized knowledge will assist the trier of fact to understand the evidence or to

determine a fact in issue, a witness qualified as an expert by knowledge, skill,

experience, training, or education may testify thereto in the form of an opinion or

otherwise.”); cf. Blan v. Ali, 7 S.W.3d 741, 745–46 (Tex. App.—Houston [14th

Dist.] 1999, no pet.). But Dr. Casar repeatedly testified that he does not know the

standard of care for an emergency room physician. Although Dr. Casar testified

that, in his opinion, the standard of care for reading an x-ray is the same despite the

diagnostic setting, he also stated that he was not familiar with the standard of care

for an emergency room physician. When Dr. Casar admitted that he does not know

2

According to Dr. Casar, the thorax is the space between the waist and the neck; a

hemothorax is a thorax full of blood, which means that something is bleeding inside, and it is a

condition that may be life-threatening if not treated promptly.

3

the standard for an emergency room physician, he caused his own opinion that the

standards are the same to be completely without foundation. In other words, if he

does not know what the emergency standard is, he cannot know that the emergency

standard is the same as the non-emergency standard.

Where the treatment criticized is provided as part of emergency care, the

expert should demonstrate familiarity with that standard of care, not simply guess

that the setting for care does not matter. Cf. Ly v. Austin, No. 03-05-00516-CV,

2007 WL 2010757, at *5 (Tex. App.—Austin July 13, 2007, no pet.) (mem. op)

(holding that when the specific issue before the court is “the standard of care

applicable to neurologists providing emergency care immediately following a

stroke,” testimony from an expert in caring for stroke patients in rehabilitative

setting is insufficient). Thus, in my view, Dr. Casar must know the applicable

standard of care—in this case, what a reasonably prudent emergency room

physician would have done in the same or similar circumstances—to support the

designation of Dr. Dang as a responsible third party.

In short, Dr. Casar admitted he has neither the expertise nor the knowledge

of reading x-rays or making critical decisions in an emergency room setting. Thus,

I would conclude that the trial court did not err in determining that Dr. Casar

lacked the requisite knowledge, skill, experience, training, or education to opine on

the emergency care provided to Alfredo. See Tex. R. Evid. 702; cf. Ehrlich v.

Miles, 144 S.W.3d 620, 625 (Tex. App.—Fort Worth 2004, pet. denied) (“A

medical expert who is not of the same school of medicine, however, is competent

to testify if he has practical knowledge of what is usually and customarily done by

a practitioner under circumstances similar to those confronting the [allegedly

negligent physician].” (emphasis added)).

4

The majority urges that, notwithstanding Dr. Casar’s admission that he is not

familiar with the applicable standard, we may not affirm on this basis because the

Pagayon’s did not object to Dr. Casar’s qualifications. I disagree factually and

legally. Counsel for the Pagayons consistently and persistently pointed out Dr.

Casar’s lack of qualification before the trial court:

Q. Certainly, an emergency room physician’s practice is very different

from your practice as a critical care doctor, correct?

...

A. It is different, yes.

...

Q. You don’t practice in the ER, correct?

A. I practice in ICU.

Q. Okay.

A. Not in the ER.

Q. So you don’t know what the standard protocol is for emergency

room physicians when they believe they have a hemothorax is, do

you?

A. I don’t know what their standard is.

...

Q. But – but for the emergency room. You don’t know the emergency

room standard – you’re – you’re basing your understanding of the

ICU standard with the ER standard, fair?

A. Fair.

Q. That’s not necessarily fair to the doctors is it? Because you agree

with me that an ICU setting is different from emergency room setting,

fair?

...

A. It is different, yes.

Q. And so, sitting here today, you don’t know what the standard

protocol is for an emergency room physician?

5

A. I don’t – I don’t know what the standard of care is for an

emergency room physician.

...

Q. Again, you’re not familiar with the standard of care in the

emergency room?

...

A. I’m not sure if – what the standard of care for the emergency room,

but I would be surprised if it’s any different.

Q. But I just want to make sure.

You’re not qualified to testify on the standard of care in an

emergency room?

...

A. I don’t know what the standard of care in the emergency room is.

Thus, in my view, the Pagayons placed Dr. Casar’s qualification at issue.

Here, we are not faced with an alleged error on the admissibility of Dr. Casar’s

opinion. The trial court did not exclude the evidence. Instead, as the Texas

Supreme Court has recently pointed out, the question is whether the expert’s

opinion is any evidence at all. Cf. Houston Unlimited, Inc. Metal Processing v. Mel

Acres Ranch, 443 S.W.3d 820, 832–33 (Tex. 2014) (“[I]f no basis for the opinion

is offered, or the basis offered provides no support, the [expert] opinion is merely a

conclusory statement and cannot be considered probative evidence, regardless of

whether there is no objection.” (internal quotation and citation omitted)).

Further, the nature of the opinion Dr. Casar proffers is, in the words of our

opinion in Blan v. Ali, “peculiar to the field” of emergency medicine about which

he knows nothing. 7 S.W.3d 741, 746 (Tex. App.—Houston [14th Dist.] 1999, no

pet.). As noted above, Alfredo was admitted to the emergency room at 5:58 p.m.

Dr. Dang testified that he “was very concerned about [Alfredo]’s medical

condition and believed that if [he] did not take immediate medical action,

6

[Alfredo]’s health could have been placed in serious jeopardy.” Dr. Dang

performed a physical examination and obtained a chest x-ray at approximately 6:08

p.m., which, as noted above, revealed complete opacification of the left

hemithorax. Dr. Dang’s interpretation of the chest x-ray was confirmed by Dr.

DeSantos. Further, as Dr. Dang testified,

Based on, among other things, the x-ray, Mr. Pagayon’s medical

condition, and his need for emergency care, I made the decision to

place a chest tube to drain what I believed to be a hemothorax in his

left lung. . . . Based on the circumstances and the emergency

situation, I made the determination that there was not time to perform

a CAT scan prior to placing the chest tube. In my training and

experience when dealing with what one believes to be a hemothorax,

the same must be addressed as soon as possible.

(emphasis added). Thus, according to Dr. Dang—and acknowledged by Dr.

Casar—Dr. Dang was providing emergency medical care when he attempted the

chest tube insertion. Dr. Casar’s admission that he does not know the standard of

care for emergency room physicians is “determinative.” See id.

3. The “expert opinion” rests on misperceived facts

Second, Dr. Casar repeatedly displayed his unfamiliarity with the facts of

Alfredo’s care in his deposition testimony. Cf. Houston Unlimited, Inc. Metal

Processing, 443 S.W.3d at 822 (“If an expert’s opinion is unreliable because it is

‘based on assumed facts that vary from the actual facts,’ the opinion ‘is not

probative evidence.’” (quoting Burroughs Wellcome Co. v. Crye, 907 S.W.2d 497,

499–500 (Tex. 1995)). If the factual assertions or assumptions underlying an

expert’s opinion are contrary to the facts, opinion testimony founded on those

7

assumptions is not competent evidence. Cf. id. at 833. Here, Dr. Casar’s opinion

was based on assumptions contrary to proven facts in several respects.3

For example, Dr. Casar was mistaken about the time and dosages of

morphine provided to Alfredo: Dr. Casar initially stated that the morphine was

still in Alfredo’s system when he was intubated, but when confronted with

Alfredo’s medical records that established the contrary, Dr. Casar acknowledged

that morphine was “probably not” still in Alfredo’s system when he was later

intubated in the ICU. Dr. Casar also testified that Alfredo’s respiratory rate was 32

breaths per minute, an elevated rate, when he was admitted to the ICU. But when

confronted with Alfredo’s records, Dr. Casar stated that the record showed

Alfredo’s breath rate was 24 breaths per minute. Further, he testified that there

was a note in Alfredo’s medical records that Afredo could be released that

“afternoon” from the emergency room.4 Yet, the doctor was unable to find this

note when given an opportunity to search through the records. Finally, Dr. Casar’s

criticism of Dr. Dang’s failure to wait for a CT scan to confirm his hemothorax

diagnosis emanated from his belief that “in the emergency room, you can get a

CAT scan in 15 minutes.” But the following exchange occurred during Dr. Casar’s

deposition:

3

The “facts” as proven at the time of the motion to strike did not include Alfredo’s entire

medical records. Instead, these “facts” included Dr. Casar’s deposition testimony and a few

pages from Alfredo’s records. Thus, although the Majority notes several facts from Alfredo’s

medical records in its harm analysis, those facts were not part of the record when the trial court

implicitly determined that Dr. Casar’s opinion testimony failed to raise a fact issue regarding Dr.

Dang’s purported responsibility. In other words, the Majority has reviewed the trial court’s

alleged error based upon a record that was not before the trial court at the time it made the

challenged ruling. Moreover, the facts the Majority draws from the expanded record are facts

neither articulated, nor apparently known, by Dr. Casar at the time he supplied the deposition

testimony ExxonMobil presented to the trial court.

4

As noted above, Alfredo was admitted to the emergency room at 17:58, which is 5:58

p.m. Thus, it does not appear that Alfredo was in the emergency room in the “afternoon.”

8

Q. You also testified he had a CT scan less than an hour after . . . after

the chest tube.

Remember that?

A. Yes.

Q. That’s not the case, is it, Doctor?

A. I said I don’t remember exactly the time line.

Q. In fact, let me show you what’s . . . previously been marked as

Exhibit No. 37.

A. Okay.

Q. And he didn’t have a CT scan until 8:53 that night, more than two

hours —

A. Two hours. Well, that’s terrible.

Q. More than two hours, correct?

A. That’s terrible.

Q. And more than three hours after his initial . . . consult, right?

A. Yeah. So, you see — uh-huh.

Q. You can’t wait three hours for a CAT scan, can you doc?

A. Well, they waited and nothing happened.

Q. If you can get a CAT scan at the snap of a finger, as you claim you

can —

A. Yeah. You should be able to here.

Q. Took two hours here?

A. Right.

Q. And they ordered one immediately, and it took two hours?

A. That’s not good. That’s not good. That’s not what it [sic] should

happen in an emergency room.

***

Q. Would you like to correct your testimony wherein you stated he

received a CAT scan 30 minutes after his chest tube?

A. Yes.

9

In summary, Dr. Casar did not indicate that he was familiar with the facts of

Alfredo’s care. Instead, the record before the trial court indicates that he based his

conclusions on either improper recollections of the facts or assumptions. See id.; cf.

Jelinek v. Casas, 328 S.W.3d 526, 539 (Tex. 2010) (holding that the basis for an

expert’s opinion must be linked to the facts).

4. Conclusion

I would conclude, after considering Dr. Casar’s testimony as a whole, that

Dr. Casar’s opinions do not raise a fact question regarding whether Dr. Dang failed

to act as a reasonably prudent physician under the same or similar circumstances.

Although Exxon Mobil offered Dr. Casar’s opinion on emergency room treatment

in an emergency situation, Dr. Casar did not undertake to analyze Dr. Dang’s

conduct in the context of the circumstances of emergency care. As such, Dr.

Casar’s statements that he does not know the emergency room standard of care is

determinative. Cf. Ehrlich, 144 S.W.3d at 625; Blan, 7 S.W.3d at 746 (noting that

expert’s admission that he was unfamiliar with the emergency room and cardiology

standards of care would be “persuasive, if not determinative if [he] were purporting

to offer expert medical opinions in matters peculiar to the fields of cardiology or

emergency medicine”). Dr. Casar’s testimony completely misses the mark

regarding whether Dr. Dang’s care of Alfredo fell below the standard of care for a

reasonably prudent physician in an emergency room setting. Indeed, Dr. Casar’s

testimony demonstrated he was unfamiliar with the actual facts surrounding

Alfredo’s medical care. Cf. Houston Unlimited, Inc. Metal Processing, 443 S.W.3d

at 832–33; Jelinek, 328 S.W.3d at 539. Thus, I would conclude that Dr. Casar’s

opinion is no evidence of Dr. Dang’s responsibility for Alfredo’s death.

In sum, I agree with the Majority that ExxonMobil did not need to bring

forth evidence that Dr. Dang willfully and wantonly departed from the standard of

10

care. But ExxonMobil nonetheless needed to bring forth some probative evidence

that Dr. Dang departed from the applicable standard of care. Because ExxonMobil

failed to do so, I would conclude that the trial court did not err in striking the

designation of Dr. Dang. Because the Majority concludes otherwise, I respectfully

dissent.

/s/ Sharon McCally

Justice

Panel consists of Justices Christopher, McCally, and Wise (Christopher, J.,

majority).

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