KEVIN GLENN SCHRONK, INDIVIDUALLY AND AS REPRESENTATIVE OF THE ESTATE OF HELEN PATRICIA SCHRONK, DECEASED AND DUSTIN SCHRONK, Appellants
LAERDAL MEDICAL CORPORATION, Appellee
From the 413th District Court Johnson County, Texas Trial Court No. C200600118
Before Chief Justice Gray, Justice Davis, and Justice Scoggins
AL SCOGGINS Justice
In four issues, appellants, Kevin Schronk, individually and as representative of the estate of Helen Schronk, deceased, and Dustin Schronk, challenge the trial court's evidentiary decisions and granting of a summary judgment in favor of appellee, Laerdal Medical Corporation. We affirm.
This is the third time this case has been before this Court. See Schronk v. City of Burleson, 378 S.W.3d 692 (Tex. App.—Waco 2009, pet. filed); see also In re Schronk, No. 10-11-00248-CV, 2011 Tex.App. LEXIS 7212 (Tex. App.—Waco Aug. 31, 2011, orig. proceeding) (mem. op.). As noted in our original opinion pertaining to these facts, appellants filed a wrongful-death lawsuit against the City of Burleson and Laerdal "after emergency medical technicians employed by the City were unable to resuscitate Helen Schronk with an automatic external defibrillator ("AED") manufactured by Laerdal." Schronk, 378 S.W.3d at 697-98. Appellants alleged that emergency medical technicians made several attempts to administer a defibrillating shock with the AED but could not do so because of a low battery. Id. at 697. Later, another AED was brought to the scene and additional shocks were administered, but Helen could not be resuscitated. Id. She was pronounced dead on arrival at the hospital. Id.
In their lawsuit, appellants argue that Laerdal is liable "(1) for negligence in the: (a) design, manufacture, marketing, etc. of the AED; (b) training of City employees in the operation and maintenance of the AED; (c) service and maintenance of the AED; and (d) labeling of the AED battery; and (2) for selling an unreasonably dangerous product." Id. at 698.
On original submission, appellants complained about a plea to the jurisdiction granted in favor of the City and a summary judgment granted in Laerdal's favor. Id. at 698. Specifically, appellants contended that the trial court erred by, among other things, granting Laerdal's summary-judgment motion "because the motion did not address their product liability claim and genuine issues of material fact remain on their negligence claim." Id. We concluded that summary judgment for Laerdal was improper because genuine issues of material fact remained as to whether the AED malfunctioned or was defective; whether the AED was misbranded; and whether the manufacturer's alleged negligence was a proximate cause of Helen's death. Id. at 715. Accordingly, this matter was remanded to the trial court for further proceedings. Id. at 720.
On remand, Laerdal filed motions to exclude the testimony of Dr. Desser and Dr. Reese based primarily on Texas Rule of Evidence 702. See Tex. R. Evid. 702. In particular, Laerdal asserted that Dr. Desser's testimony is unreliable and constitutes unsupported speculation. With regard to Dr. Reese's testimony, Laerdal contended that: (1) Dr. Reese is unqualified to opine as to any defect of the AED or its battery; (2) his opinions are irrelevant with respect to the adequacy of the warnings or labeling of the batteries; (3) his opinions with regard to Laerdal's alleged non-compliance with Federal Drug Administration regulations are irrelevant; and (4) his opinions are unreliable because they are "based on a wholly unsubstantiated assumption that the wrong battery was returned to Laerdal for testing." On the other hand, Laerdal sought to exclude Dr. Desser's testimony because his testimony: (1) is unreliable and speculative; (2) conflicts with data contained in the American Heart Association's Advanced Cardiac Life Support Manual; and (3) amounts to "a mere ipse dixit (emphasis in original)."
The trial court subsequently granted, in two orders, Laerdal's motions to exclude the testimony of both Drs. Desser and Reese. The trial court also denied a summary judgment filed by appellants.
In response to the trial court's ruling, appellants filed a motion for reconsideration and an unopposed motion to stay the matter so that they could file a petition for writ of mandamus in this Court. The trial court denied appellants' motion for reconsideration but granted their motion to stay.
Thereafter, appellants filed a petition for writ of mandamus in this Court, seeking to compel the trial court to vacate its orders excluding the testimony from Drs. Reese and Desser. See In re Schronk, 2011 Tex.App. LEXIS 7212, at *1. We denied appellants' mandamus petition, concluding that they have an adequate remedy by appeal by which to challenge the trial court's orders excluding the testimony of Drs. Reese and Desser. See id. at **10-11.
Following the denial of appellants' mandamus petition, Laerdal moved for summary judgment on no-evidence grounds. Specifically, Laerdal asserted that it is entitled to summary judgment because the trial court excluded Dr. Desser's testimony and because appellants did not proffer expert testimony establishing that, but for the alleged failure of the AED, Helen would have survived the heart attack. The trial court granted Laerdal's summary-judgment motion and ordered that appellants take nothing from Laerdal.
A couple of months later, appellants filed a second motion to reconsider, requesting that the trial court reconsider the exclusion of testimony of appellants' expert witnesses and its rulings on a motion for continuance and Laerdal's no-evidence motion for summary judgment. In response, Laerdal moved for a final judgment, which the trial court signed on January 18, 2012. In its final judgment, the trial court granted summary judgment in favor of Laerdal and ordered that appellants take nothing in this action.
Undeterred, appellants filed a motion for new trial, which was denied by the trial court on February 22, 2012. This appeal followed.
II. Standard of Review
In this appeal, appellants challenge not only the summary judgment granted in favor of Laerdal but also several intermediate rulings made by the trial court. Because the trial court's summary judgment is premised upon on the intermediate rulings made—chiefly, the decision to exclude the testimony of both Drs. Desser and Reese, we will recite the standard of review for no-evidence motions for summary judgment.
The function of a summary judgment is to eliminate patently unmeritorious claims and untenable defenses, not to deprive litigants of the right to a trial by jury. Tex. Dep't of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 228 (Tex. 2004). We review the grant or denial of a summary judgment de novo. See Tex. Mun. Power Agency v. Pub. Util. Comm'n of Tex., 253 S.W.3d 194, 192, 199 (Tex. 2007); see also Provident Life & Accident Ins. Co., 128 S.W.3d 211, 215 (Tex. 2003). If the trial court's order granting summary judgment does not specify the ground or grounds relied upon for the ruling, we will affirm the judgment on appeal if any of the theories advanced by the movant are meritorious. Dow Chem. Co. v. Francis, 46 S.W.3d 237, 242 (Tex. 2001).
Here, Laerdal filed a no-evidence motion for summary judgment. We review a no-evidence motion for summary judgment under the same legal sufficiency standard used to review a directed verdict. King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 750-51 (Tex. 2003). After an adequate time for discovery has passed, a party without the burden of proof at trial may move for summary judgment on the ground that the nonmoving party lacks supporting evidence for one or more essential elements of its claim. See Tex. R. Civ. P. 166a(i); Espalin v. Children's Med. Ctr. of Dallas, 27 S.W.3d 675, 682-83 (Tex. App.—Dallas 2000, no pet.). Once a no-evidence motion for summary judgment has been filed, the burden shifts to the nonmoving party to present evidence raising an issue of material fact as to the elements specified in the motion. Mack Trucks, Inc. v. Tamez, 206 S.W.3d 572, 581-82 (Tex. 2006). The trial court should not grant a no-evidence motion for summary judgment if the nonmovant brings forth more than a scintilla of probative evidence to raise a genuine issue of material fact on the challenged element. Smith v. O'Donnell, 288 S.W.3d 417, 424 (Tex. 2009). More than a scintilla of evidence exists if the evidence would enable reasonable and fair-minded jurors to differ in their conclusions. Hamilton v. Wilson, 249 S.W.3d 425, 426 (Tex. 2008) (per curiam); Macias v. Fiesta Mart, Inc., 988 S.W.2d 316, 317 (Tex. App.—Houston [1st Dist.] 1999, no pet.) (noting that less than a scintilla of evidence exists when the evidence is "so weak as to do no more than create a mere surmise or suspicion" (citing Kindred v. Con/Chem, Inc., 650 S.W.2d 61, 63 (Tex. 1983))). We review the evidence presented by the motion and response in the light most favorable to the party against whom the summary judgment was rendered, crediting evidence favorable to that party if reasonable jurors could, and disregarding contrary evidence unless reasonable jurors could not. Tamez, 206 S.W.3d at 581-82; King Ranch, Inc., 118 S.W.3d at 750.
III. Excluding Expert Witness Testimony
In their first two issues, appellants challenge the trial court's order excluding the testimony of Drs. Desser and Reese. Specifically, appellants assert that the trial court abused its discretion in excluding the expert testimony because: (1) Dr. Desser's opinion that Helen would have survived if the AED had not malfunctioned is reliable; and (2) Dr. Reese is qualified to render opinions on marketing defects in the AED and its batteries, and his opinions are relevant and reliable.
A. Applicable Law
The trial court's decision to admit or exclude expert testimony is reviewed for abuse of discretion. Gammill v. Jack Williams Chevrolet, Inc., 972 S.W.2d 713, 718 (Tex. 1998). "The test for abuse of discretion is whether the trial court acted without reference to any guiding rules or principles." E.I. du Pont de Nemours & Co. v. Robinson, 923 S.W.2d 549, 558 (Tex. 1995); see ...