On Appeal from the 133rd District Court Harris County, Texas Trial Court Cause No. 1999-31936
Panel consists of Chief Justice Radack and Justices Nuchia and Hanks.
The opinion of the court was delivered by: George C. Hanks, Jr., Justice
After James B. Daniels died of lung cancer allegedly caused by workplace exposure to benzene, Daniels's wife and daughter sued Lyondell-Citgo Refining Co., Ltd., Atlantic Richfield Company, and Lyondell Chemical Company f/k/a Lyondell Petrochemical Company, *fn1 the owners of the refinery where Daniels had worked. The trial court granted a no-evidence summary judgment in favor of the refinery owners on the issue of causation.
In two points of error, Eugina J. Daniels and Isadora Susan Daniels (the Daniels family) argue that they presented more than a scintilla of evidence on general and specific causation and that the trial court erred when it granted summary judgment. We affirm.
James B. Daniels began working for a petrochemical plant in 1976. The plant is currently owned by Lyondell-Citgo Refining Co., Ltd, but was previously owned and operated by Atlantic Richfield Company and Lyondell Petrochemical Company. Throughout his career, Daniels worked in the Aromatics Recovery Unit (ARU), holding various positions as assistant stillman, helper, boardman, and operator.
During the course of his work, Daniels was exposed to a variety of chemicals, including benzene, mixed xylenes, ethylene, and propane. There were allegedly numerous benzene leaks, which usually occurred in conjunction with the plant's low-line connection and feed filtrate coils. The "low-line" is a system of pipes wherein various chemicals-including benzene-are moved throughout the plant. The feed filtrate coils take chemicals used for mixing chemical product from the "hot side" of the ARU the cooler side wherein they are actually mixed.
In October 1996, Daniels was diagnosed with bronchial alveolar carcinoma, a form of terminal lung cancer. He died in October 1997 at the age of 56.
The Daniels family sued the refineries for negligence and gross negligence in this wrongful death action. The petition alleged that the refineries were responsible for Daniels's death "through their willful act and omission or gross negligence in allowing the improper release of known carcinogens into Jim Daniels' (sic) work environment. By their wrongful conduct, Jim Daniels was exposed to carcinogens which resulted in his death."
The refinery owners filed a no-evidence motion for summary judgment based solely on the Daniels family's inability to show any evidence that benzene causes bronchial alveolar carcinoma in humans. A hearing was held on the motion, and the trial court granted the Daniels family additional time to conduct discovery. A second hearing was held, and the trial court granted the refinery owners' motion for summary judgment.
Under rule 166a(i), a party is entitled to summary judgment if, after adequate time for discovery, there is no evidence of one or more essential elements of a claim or defense on which an adverse party would have the burden of proof at trial. Tex. R. Civ. P. 166a(i). Thus, a no-evidence summary judgment is similar to a directed verdict. Flameout Design & Fabrication, Inc. v. Pennzoil Caspian Corp., 994 S.W.2d 830, 834 (Tex. App.-Houston [1st Dist.] 1999, no pet.). The motion for summary judgment may not be general, but must state the elements on which there is no evidence. Tex. R. Civ. P. 166a(i).
The trial court must grant the motion unless the non-movant produces more than a scintilla of evidence raising a genuine issue of material fact on each of the challenged elements. Tex. R. Civ. P. 166a(i); Macias v. Fiesta Mart, Inc., 988 S.W.2d 316, 317 (Tex. App.-Houston [1st Dist.] 1999, no pet.). More than a scintilla of evidence exists when the evidence supporting the finding, as a whole, rises to a level that would enable reasonable and fair-minded people to differ in their conclusions. Burroughs Wellcome Co. v. Crye, 907 S.W.2d 497, 499 (Tex. 1995).
The central issue presented is not whether the Daniels family's witnesses possessed adequate credentials, skills, or experience to testify about causation. The issue before us is whether the trial court abused its discretion in finding that the Daniels family's evidence was scientifically unreliable and thus legally insufficient to defeat the refinery owners' motion for summary judgment.
Sometimes, causation in toxic tort cases is discussed in terms of general and specific causation. Merrell Dow Pharmaceuticals, Inc. v. Havner, 953 S.W.2d 706, 714 (Tex. 1997). General causation exists when a substance is capable of causing a particular injury or condition in the general population, while specific causation exists when a substance causes a particular individual's injury. Id. In many toxic tort cases, direct experimentation cannot be done, and there will be no reliable evidence of specific causation. Id. at 715.
The Daniels family presented evidence from two experts-Michael Wolfson, M.D., a board certified specialist in occupational medicine, and Hari Dayal, Ph.D., a professor and researcher in human epidemiology at the University of Texas Medical Branch, Galveston-to support their general causation theory that occupational exposure to benzene at an oil refinery causes lung cancer. An expert's bare opinion will not suffice. See Burroughs Wellcome, 907 S.W.2d at 499-500. When the expert brings to court little more than his credentials and a subjective opinion, this is not evidence that would support a judgment. Viterbo v. Dow Chem. Co., 826 F.2d 420, 421 (5th Cir. 1987). The testimony of an expert is generally opinion testimony. Whether it rises to the level of evidence is determined under our rules of evidence, including rule 702, which require courts to determine if the opinion testimony will assist the jury in deciding a fact issue. *fn3 Havner, 953 S.W.2d at 712.
In Havner, the Texas Supreme Court clarified this determination as follows:
To say that the expert's testimony is some evidence under our standard of review simply because the expert testified that the underlying technique or methodology supporting his or her opinion is generally accepted by the scientific community is putting the cart before the horse. Id.
The underlying data should be independently evaluated in determining whether the opinion itself is reliable.
In E.I. du Pont de Nemours & Co. v. Robinson, 923 S.W.2d 549 (Tex. 1995), the Texas Supreme Court set forth some of the factors that courts should consider in looking beyond the ...