                       In The
                 Court of Appeals
   Sixth Appellate District of Texas at Texarkana

            ______________________________

                  No. 06-07-00122-CV
            ______________________________


    CHARLES T. MERRELL, SR., AS WRONGFUL DEATH
    BENEFICIARY OF CHARLES THOMAS MERRELL, II,
  DECEASED AND AS REPRESENTATIVE OF THE ESTATE
   OF CHARLES THOMAS MERRELL, II, DECEASED, AND
 JANE CERVERNY, AS WRONGFUL DEATH BENEFICIARY
OF CHARLES THOMAS MERRELL, II, DECEASED, Appellants

                              V.

           WAL-MART STORES, INC., Appellee



       On Appeal from the 336th Judicial District Court
                   Fannin County, Texas
                   Trial Court No. 38243




         Before Morriss, C.J., Carter and Moseley, JJ.
                 Opinion by Justice Carter
                                             OPINION

        Charles T. Merrell, Sr., and Jane Cerverny1 (collectively the Parents) bring this appeal of the

trial court's order granting Wal-Mart, Inc., summary judgment.2 This is a products liability suit based

on an allegedly defective halogen torchiere lamp which may have caused the wrongful death of

Charles Thomas Merrell, II (Charles II), Merrell and Cerverny's son. Charles II had just graduated

from Austin College and had been hired as a stockbroker for A.G. Edwards' Paris, Texas, office. The

house Charles II rented caught fire and burned, killing Charles II and his girlfriend, Latosha Gibson.

The fire originated near the recliner in the living room. The fire report indicated the cause of the fire

was unknown. The halogen torchiere lamp, which the Parents allege was the cause of the fire, was

located next to the recliner. Wal-Mart denied the lamp was the cause of the fire. An alternative

cause of the fire, which Wal-Mart alleges was more likely the cause, was that a dropped marihuana

joint or cigarette caused the fire. Both victims had marihuana in their systems at the time of their




        1
        Merrell brought suit in his capacity as a wrongful death beneficiary of Charles Thomas
Merrell, II, deceased, and as representative of the Estate of Charles Thomas Merrell, II, deceased.
Jane Cerverny brought suit in her capacity as wrongful death beneficiary of Charles Thomas
Merrell, II, deceased.
        2
        The Parents also brought suit against the Holmes Group, a manufacturer of halogen torchiere
lamps, and Wilma Pearce, the landlord. The Parents alleged that Pearce failed to equip the residence
with a smoke detector. In addition, Wal-Mart brought a cross-claim for indemnity and contribution
against Pearce for failing to install a smoke detector. The Parents' claims against Wal-Mart were
severed from the rest of the case after the trial court granted Wal-Mart's motion for summary
judgment.

                                                   2
deaths. The trial court granted Wal-Mart's no-evidence and traditional motions for summary

judgment.

        The Parents complain on appeal that the trial court erred in granting Wal-Mart's summary

judgment motion. Wal-Mart raises a counter-issue alleging the trial court erred in admitting some

of the summary judgment evidence. We conclude the trial court did not abuse its discretion in

admitting the summary judgment evidence. The trial court, though, did err in granting Wal-Mart's

motion for summary judgment. The Parents presented more than a scintilla of evidence concerning

each element challenged by Wal-Mart, and Wal-Mart did not establish it was entitled to judgment

as a matter of law. We reverse the judgment of the trial court.

Facts

        When Charles II graduated with honors from Austin College, he accepted a position as a

stockbroker with A.G. Edwards in Paris, Texas. Charles II and Gibson rented a home in Honey

Grove, Texas, near Paris, Texas. In October 2000, Charles II began a nine-week course to prepare

for the stockbroker's examination and asked Merrell to "go and buy a floor lamp so he could study

because the lighting was so bad in that house." The two went together to purchase the lamp at Wal-

Mart. Although Merrell could not remember the specific Wal-Mart store at which the lamp was

purchased, Merrell testified he was positive the lamp was purchased at a Wal-Mart store because he

"never shopped anywhere but Wal-Mart." Charles II selected a lamp which may have been a halogen




                                                3
torchiere lamp.3 Merrell paid around $30.00 for the lamp. Because the lamp was a floor model,

Merrell did not receive a box, any of the accompanying warnings, or instructions for safe operation.

Even though the United States Consumer Product Safety Commission (the Commission) required

all retailers to make available a free wire mesh guard for all halogen torchiere lamps, Wal-Mart did

not provide a wire mesh guard with the lamp. Merrell testified there was a warning sticker on the

cord, but could not remember what the sticker said. Charles II took the lamp home and placed it by

his recliner in the living room.

       During the early morning hours of December 2, 2000, a fire started in the living room while

Charles II and Gibson were sleeping. The fire engulfed the entire house. Neither Charles II nor

Gibson were able to escape, and both died of smoke inhalation. The toxicology report detected

cannabinoids in the blood of both victims at the time of their deaths. It is uncontested that the fire

originated in the general vicinity of the recliner. The recliner was completely consumed in the fire

and was more extensively consumed by the fire than any other piece of furniture. The fire burned

through the ceiling approximately two feet from the recliner.

       The fire inspectors concluded the "exact cause of the fire could not be determined."

Although photographs of the fire were preserved, the lamp was inadvertently disposed of and has




       3
        Merrell testified the lamp was a dark color. He believed the lamp was black, but it could
have been dark blue or dark green.

                                                  4
not been recovered.4 In the fire report, the fire inspectors noted that the victims were known to leave

candles unattended. Mickey Holmes, the chief of police for Honey Grove, testified there were

candleholders located on a small table between the lamp and the sofa.5 The lamp had been warped

from the heat, but was upright and plugged in. Holmes estimated the height of the lamp would be

approximately six feet. Holmes testified that a bong6 and ashtrays were found in the house.7 One

of the ashtrays was on the small table with the candleholders. Larry Phillips, a lieutenant with the

Honey Grove Police Department, testified they found "quite a bit" of drug paraphernalia. The police

found a bong, several pipes, and several joints located in ashtrays. Phillips could not recall if any

of the pipes were found in the living room. Phillips testified the joints and blunts were found in

ashtrays. Although several of the ashtrays were collected and preserved as evidence, the ashtray


       4
         After the fire, the burned lamp was disposed of. After searching a number of dumpsters,
Merrell offered a reward for the lamp. Joe Williams, who had been hired to cover the windows of
the house with plywood, and Royce "Stoney" Mackey presented Merrell with a destroyed lamp and
collected the reward. John Lentini, Wal-Mart's expert, discovered traces of gasoline on the lamp.
In addition, the lamp presented by Williams only contained two tubular vertical pieces while the
photograph at the scene showed the lamp contained three pieces. In his deposition, Williams
admitted they burned another lamp and misrepresented that it was from the fire. Williams admitted
to having a criminal record. Wal-Mart emphasizes this fraud, but there is no evidence Merrell
participated in the deception.
       5
         The officers collected the candleholders and other evidence, but a number of the items
collected are now missing, including the candleholders. The videotape taken at the scene and some
of the photographs are also missing.
       6
           A smoking device.
       7
       Although there is no evidence Charles II smoked cigarettes, there is some evidence that
Gibson smoked cigarettes.

                                                  5
located in the living room was not preserved. Phillips remembered a pole lamp with a bowl on top,

but could not recall whether it was a halogen or incandescent lamp.

        Clinton D. Williams, the fire marshall, conducted his investigation approximately four days

after the fire. Although he did not find any candleholders during his investigation of the fire,

Williams testified he had been advised "the subjects that lived in the house did burn candles."

Williams testified the table "was charred heaviest on the side that would have been up against the

chair." Williams opined the candles were not a likely cause of the fire based on the charring of the

table. When asked whether bulb fragments from an exploding halogen lamp could have caused a

smoldering fire in the recliner, the fire marshall stated, "Could be a possibility. I haven't seen

anything that would discount or prove either way." The fire marshall testified a dropped cigarette

butt, joint, or ashes could have caused a smoldering fire, and he could not rule out smoking materials

as a potential cause of the fire. In the fire marshall's opinion, the chair likely smoldered for a couple

of hours before it ignited into flames. The fire marshall based this opinion on "the patterns, the

Sheetrock, and the wood and the charring" as well as the burn-through in the ceiling above the

reclining chair. The lamp had been disassembled by the time the fire marshall conducted his

investigation. The pieces of the lamp were leaning against the wall. The fire marshall did not

investigate whether the lamp was a halogen lamp or what the wattage of the bulb was. The fire

marshall could not recall whether he examined the bowl of the lamp.




                                                   6
       Wal-Mart retained two fire experts: Richard Dyer, the Fire Chief for Kansas City, Missouri,

and Lentini. The Parents originally hired David Dallas as an expert. Shortly before summary

judgment, the Parents retained Dr. Craig Beyler as an expert and removed Dallas' name as a

testifying expert. Both sides agree Dallas' testimony is no longer admissible, since Dallas had been

delisted, and should not be considered by this Court. Because both sides stipulate Dallas' deposition

testimony is inadmissible, we will assume the deposition testimony is inadmissible for the purpose

of this appeal.8 About the only thing the experts could agree on was that the fire investigation was

not very thorough.

Discussion

       The Parents brought suit for negligence, gross negligence, breach of warranty, and strict

products liability. The Parents' claims for negligence, gross negligence, and breach of warranty

involve the same underlying conduct as the strict products liability claim. At trial and on appeal,

Wal-Mart did not challenge any elements unique to negligence, gross negligence, or breach of

warranty. Here, the only alleged negligence was the selling of a defective product. In that instance,

the plaintiff must prove that the injury resulted from a defect in the product. Toshiba Int'l Corp. v.

Henry, 152 S.W.3d 774, 784–85 (Tex. App.—Texarkana 2004, no pet.) (citing Simms v. Sw. Tex.

Methodist Hosp., 535 S.W.2d 192, 197 (Tex. Civ. App.—San Antonio 1976, writ ref'd n.r.e.). In its

order granting Wal-Mart's motion, the trial court stated "all claims and causes of action asserted by

       8
        This conclusion has not been briefed, and we do not express an opinion as to whether the
conclusion reached by both sides is correct.

                                                  7
Plaintiffs against Wal-Mart shall be DISMISSED with prejudice." Because all of the Parents' causes

of action are based on a product defect and the parties have only briefed strict products liability, this

opinion will focus exclusively on strict products liability.

        The Texas Supreme Court has adopted the Second Restatement's standard for products

liability. See Bostrom Seating, Inc. v. Crane Carrier Co., 140 S.W.3d 681 (Tex. 2004); Uniroyal

Goodrich Tire Co. v. Martinez, 977 S.W.2d 328, 335 (Tex. 1998). The Second Restatement

provides:

        (1)     One who sells any product in a defective condition unreasonably dangerous
        to the user or consumer or to his property is subject to liability for physical harm
        thereby caused to the ultimate user or consumer, or to his property, if
                (a)     the seller is engaged in the business of selling such a product, and
                (b)     it is expected to and does reach the user or consumer without
        substantial change in the condition in which it is sold.

RESTATEMENT (SECOND ) OF TORTS § 402A (1965). The four elements for a products liability action

are:

        (a) the product must be defective; (b) the product must reach the consumer without
        substantial change from the time it leaves the possession and control of the
        manufacturer or seller; (c) the defective condition of the product must render the
        product unreasonably dangerous; and (d) the unreasonably dangerous condition of
        the product must be the cause of the injury to the user.

Toshiba, 152 S.W.3d at 778.

        Strict products liability requires proof of producing cause. Producing cause is a cause that

is a substantial factor in bringing about an injury and without which the injury would not have

occurred. Ford Motor Co. v. Ledesma, 242 S.W.3d 32, 45 (Tex. 2007) (rejecting definition that


                                                   8
producing cause is "an efficient, exciting, or contributing cause that, in a natural sequence, produces

the incident in question"). In other words, the essential components of producing cause are "(1) the

cause must be a substantial cause of the event in issue and (2) it must be a but-for cause, namely one

without which the event would not have occurred." Id.

I.      The Parents' Summary Judgment Evidence Was Admissible

        Before we turn to the merits of this appeal, we are faced with the question of whether the trial

court erred in admitting all of the summary judgment evidence. The admission or exclusion of

summary judgment evidence rests with the sound discretion of the trial court. New Braunfels

Factory Outlet Ctr., Inc. v. IHOP Realty Corp., 872 S.W.2d 303, 310 (Tex. App.—Austin 1994, no

writ). Wal-Mart argues the trial court abused its discretion in overruling Wal-Mart's objections to

some of the summary judgment evidence.

        A.      The Trial Court Erred in Admitting Jay Whitlock's Unsworn Affidavit for All
                Purposes

        Wal-Mart argues the trial court erred in admitting the affidavit of Whitlock. In this affidavit,

Whitlock, who was Charles II's neighbor, stated he noticed the living room lamp was still on when

he left his house "late Friday night to go play cards," i.e., the night of the fire. The affidavit, though,

is not sworn. Because the affidavit is not sworn, Wal-Mart argues the affidavit is incompetent

evidence. By statute, an affidavit must be "signed by the party making it, sworn to before an officer

authorized to administer oaths, and officially certified to by the officer under his seal of office." See

TEX . GOV 'T CODE ANN . § 312.011(1) (Vernon 2005). An unsworn affidavit is incompetent summary


                                                    9
judgment evidence. See Clendennen v. Williams, 896 S.W.2d 257, 260 (Tex. App.—Texarkana

1995, no writ); see also Residential Dynamics, LLC v. Loveless, 186 S.W.3d 192, 196 (Tex.

App.—Fort Worth 2006, no pet.); Bernsen v. Live Oak Ins. Agency, Inc., 52 S.W.3d 306, 310 (Tex.

App.—Corpus Christi 2001, no pet.). The trial court erred in admitting Whitlock's affidavit for all

purposes.9 However, as discussed below, Whitlock's affidavit was admissible for a limited purpose

as information reasonably relied upon by Dr. Beyler.

       B.      Dr. Beyler's Affidavit Was Admissible Summary Judgment Evidence

       Wal-Mart advances two reasons for excluding Dr. Beyler's affidavit. First, Wal-Mart argues

the affidavit should have been excluded because it relies on inadmissible evidence, i.e., Whitlock's

affidavit. Second, Wal-Mart argues Dr. Beyler's testimony should not have been admitted because

it was scientifically unreliable. Wal-Mart does not challenge Dr. Beyler's qualifications as an expert

witness.10



       9
        To obtain a reversal of the judgment, appellant must first show that the trial court did in fact
commit error, and second that the error was reasonably calculated to cause and probably did cause
the rendition of an improper verdict. Gee v. Liberty Mut. Fire Ins. Co., 765 S.W.2d 394, 396 (Tex.
1989). There is no reversible error if the evidence in question is cumulative or is not controlling on
a material issue dispositive of the case. Id.; Sanders v. Shelton, 970 S.W.2d 721, 727 (Tex.
App.—Austin 1998, pet. denied). This error would not be reversible.
       10
          Summary judgment evidence must establish the witness' qualifications as an expert. Hall
v. Huff, 957 S.W.2d 90, 99–102 (Tex. App.—Texarkana 1997, pet. denied). The summary judgment
evidence indicates Dr. Beyler is qualified as an expert. Dr. Beyler has bachelor's degrees in civil
engineering and fire protection engineering, master's degrees in mechanical engineering and fire
safety engineering, and a Ph.D. in engineering science. In addition, Dr. Beyler lists approximately
three pages of published articles and has over twenty-five years of experience in the field.

                                                  10
               1.      Dr. Beyler's Affidavit Is Not Invalid Because It Relied on Hearsay

       Wal-Mart argues Dr. Beyler's affidavit is inadmissible because it relies upon the unsworn

affidavit of Whitlock. The Parents argue Dr. Beyler could reasonably rely on the statement under

Rule 703 of the Texas Rules of Evidence.

       The Texas Rules of Evidence were adopted over twenty years ago to permit experts to

consider inadmissible evidence. Traditionally, an expert could not rely upon statements of third

parties that were not properly admitted into evidence. See Moore v. Grantham, 599 S.W.2d 287, 289

(Tex. 1980). Although Moore has not been overruled, both this Court and the Texas Supreme Court

have noted it was effectively overruled by the adoption of the Texas Civil Rules of Evidence (now

the Texas Rules of Evidence). See E.I. du Pont de Nemours & Co. v. Robinson, 923 S.W.2d 549,

562–63 (Tex. 1995); Stam v. Mack, 984 S.W.2d 747, 750 (Tex. App.—Texarkana 1999, no pet.);

Baylor Med. Plaza Servs. Corp. v. Kidd, 834 S.W.2d 69, 76 (Tex. App.—Texarkana 1992, writ

denied).

       Rule 703 expressly permits an expert to base his or her opinion upon facts or data "perceived

by, reviewed by, or made known to the expert at or before the hearing." TEX . R. EVID . 703; see In

re Christus Spohn Hosp. Kleberg, 222 S.W.3d 434, 440 (Tex. 2007) (orig. proceeding); Kidd, 834

S.W.2d at 76. "If of a type reasonably relied upon by experts in the particular field in forming

opinions or inferences upon the subject, the facts or data need not be admissible in evidence." TEX .

R. EVID . 703. "This change was designed to broaden the basis for expert opinions and to bring



                                                 11
courtroom practice in line with the practice of experts themselves when they are not in court."

Robinson, 923 S.W.2d at 563.

       Wal-Mart cites 1 MCCORMICK ON EVIDENCE § 15 (6th ed. 2006) (Westlaw through 2008),

for the proposition that an expert should not have reasonably relied upon Whitlock's statement. We

disagree that the treatise provides support for Wal-Mart's argument. This is not an "extreme case"

where a judge should "have a residual power to second guess the customary practice" and declare

a source untrustworthy. See id. The hypotheticals in MC CORMICK         ON   EVIDENCE are clearly

distinguishable from this case. Whitlock is not an unknown bystander, nor does the statement repeat

a rumor. See id. at n.10. The veracity of Whitlock's statement can be verified, and Wal-Mart could

present contrary evidence if the statement is incorrect. An expert is not required to have personal

knowledge of the facts upon which he or she bases his or her opinion and can reasonably rely upon

the factual statements of eyewitnesses.       See Sosa v. Koshy, 961 S.W.2d 420, 427 (Tex.

App.—Houston [1st Dist.] 1997, pet. denied) (expert could rely on statements by eyewitness). Wal-

Mart's experts also rely on witness statements which were not introduced into the record in

admissible form (or even introduced at all). Because the trial court could reasonably conclude

Whitlock's statement was of the nature reasonably relied upon by experts, the trial court did not

abuse its discretion in admitting Dr. Beyler's affidavit.




                                                  12
               2.      Dr. Beyler's Affidavit Is Not Incompetent Evidence

       Wal-Mart claims Dr. Beyler's affidavit is speculative, conclusory, and scientifically

unreliable. We note that Wal-Mart failed to make a Robinson challenge11 to Dr. Beyler in the trial

court.12 The Texas Supreme Court has held that an objection is required "when a challenge to expert

testimony questions the underlying methodology, technique, or foundational data used by the

witness." Coastal Transp. Co. v. Crown Cent. Petroleum Corp., 136 S.W.3d 227, 229 (Tex. 2004);

see Mar. Overseas Corp. v. Ellis, 971 S.W.2d 402, 409 (Tex. 1998) (to "preserve a complaint that




       11
         The trial court must make a threshold determination of the admissibility of expert testimony
under Rule 702. TEX . R. EVID . 702; Robinson, 923 S.W.2d at 556. To be reliable, the scientific
techniques or principles underlying the expert's testimony must be well grounded in the methods and
procedures of science. Robinson, 923 S.W.2d at 557. In determining the reliability of an expert's
testimony, a trial court may consider the following nonexhaustive list of factors: (1) the extent to
which the theory has been or can be tested; (2) the extent to which the techniques rely on the
subjective interpretation of the expert; (3) whether the theories have been subjected to peer review
and/or publication; (4) the techniques' potential rate of error; (5) whether the underlying theories or
techniques have been generally accepted as valid by the relevant scientific community; and (6) the
nonjudicial uses which have been made of the theories or techniques. Id. The Texas Supreme Court
has noted the factors listed in Robinson do not apply with equal force to all types of scientific or
technical evidence. See Gammill v. Jack Williams Chevrolet, Inc., 972 S.W.2d 713, 726 (Tex. 1998).
We review the trial court's decision on a Robinson challenge for an abuse of discretion. Robinson,
923 S.W.2d at 558; Tucker's Beverages, Inc. v. Fopay, 145 S.W.3d 765, 767 (Tex. App.—Texarkana
2004, no pet.).
       12
         Wal-Mart objected to Dr. Beyler's affidavit in its "Objections to Summary Judgment
Evidence in Support of Plaintiffs' Response." Wal-Mart complained that Dr. Beyler's affidavit
contained hearsay, was speculative, and was conclusory. Wal-Mart, though, did not complain about
the scientific reliability of the affidavit and did not cite Daubert, Robinson, or their progeny. See
Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 590 (1993); Robinson, 923 S.W.3d 549.

                                                  13
scientific evidence is unreliable . . . a party must object to the evidence before trial or when the

evidence is offered").

       The Texas Supreme Court, in Coastal Transportation, explicitly refused to overrule Maritime

Overseas and explained its holding in Maritime Overseas as follows:

       We concluded that examination of the expert's underlying methodology was a task
       for the trial court in its role as gatekeeper, and was not an analysis that should be
       undertaken for the first time on appeal. Id. at 412. This rule allows the trial court to
       exercise its discretion in making a determination of whether the expert testimony is
       sufficiently reliable. Id. It also ensures that a full record will be developed, and that
       appellate courts will be able to evaluate the legal and factual sufficiency of the
       evidence without looking beyond the appellate record. Id.

Coastal Transp., 136 S.W.3d at 233. The court reaffirmed "that when a reliability challenge requires

the court to evaluate the underlying methodology, technique, or foundational data used by the expert,

an objection must be timely made so that the trial court has the opportunity to conduct this analysis."

Id. By failing to raise the issue in the trial court, Wal-Mart has failed to preserve its complaints

about the methodology for review. Because error is not preserved, we decline to address these

arguments. We note Coastal Transportation held a party may challenge "[o]pinion testimony that

is conclusory or speculative" for the first time on appeal because such testimony was "incompetent

evidence." Id. at 232. We will address Wal-Mart's complaints that Dr. Beyler's testimony was

speculative and conclusory.

       The Texas Supreme Court has held that a speculative or conclusory statement of an expert

witness is insufficient to create a question of fact to defeat summary judgment. See IHS Cedars



                                                  14
Treatment Ctr. of Desoto, Tex., Inc. v. Mason, 143 S.W.3d 794, 803 (Tex. 2004); Coastal Transp.,

136 S.W.3d at 232. A naked and unsupported opinion of a witness is incompetent evidence. See

Coastal Transp. Co., 136 S.W.3d at 232. "An expert opinion is conclusory when it offers an opinion

with no factual substantiation. . . . . The expert must explain how he reached his conclusion."

Sparks v. Booth, 232 S.W.3d 853, 863 (Tex. App.—Dallas 2007, no pet.) (citations omitted); see

Paradigm Oil, Inc. v. Retamco Operating, Inc., 242 S.W.3d 67, 74 (Tex. App.—San Antonio 2007,

pet. denied); Beaumont v. Basham, 205 S.W.3d 608, 621 (Tex. App.—Waco 2006, pet. denied).

       In his report, Dr. Beyler states, "On the basis of the eyewitness observation, physical evidence

and analysis of the fire, the fire was caused by the halogen torchiere lamp." Wal-Mart argues this

conclusion demonstrates that Dr. Beyler's opinion is merely unsupported speculation. In Volkswagen

of America, Inc. v. Ramirez, the Texas Supreme Court held an expert's opinion was conclusory when

the expert based his opinion on the "laws of physics." 159 S.W.3d 897, 911 (Tex. 2004). When a

party challenges the conclusory nature of an expert opinion, appellate courts look to the entire record,

not to statements in isolation. United Servs. Auto. Ass'n v. Croft, 175 S.W.3d 457, 464 (Tex.

App.—Dallas 2005, no pet.). Although Dr. Beyler's statement, when considered in isolation, might

appear similar to the "laws of physics" statement in Volkswagen, consideration of the entire affidavit

and supporting attachments demonstrates that Dr. Beyler's opinion has considerably more factual

substantiation than the expert in Volkswagen.




                                                  15
       Dr. Beyler's affidavit specifically incorporates his report, which was attached to the affidavit.

The affidavit states, "[t]he basis of my opinions expressed herein and in my report are more fully

developed and are contained in my report dated February 8, 2007, attached hereto." When we

consider Dr. Beyler's affidavit in connection with the attached report, there is sufficient factual

substantiation of Dr. Beyler's opinions.

       Dr. Beyler used numerous published articles to establish general causation, i.e., the fact that

halogen lamps can cause fires. Dr. Beyler listed an extensive list of articles and government reports

on which he relied. Dr. Beyler relied upon research conducted by Underwriters Laboratories (UL)

concerning halogen lamp temperatures. Dr. Beyler also relied upon sixteen articles, many of which

have been published in scientific journals.        The scientific literature established four main

mechanisms by which halogen lamps can cause fires as documented by scientific literature:

1) ignition of combustibles in close proximity, 2) ignition of combustibles by exploding lamp

fragments, 3) electrical short circuits, and 4) tip-over of the lamp resulting in ignition of

combustibles. Dr. Beyler asserts that halogen lamps operate at very high temperatures and generate

sufficient heat to allow ordinary combustibles to be ignited without direct bulb contact. Using

scientific studies, he illustrated that combustibles within two or three inches from the bulb pose a

serious risk of igniting. Logically, if the bulb itself, or fragments, come into direct contact with a

combustible, the risk of igniting would be even greater.




                                                  16
        Dr. Beyler established specific causation, i.e., that Charles II's halogen lamp was the cause

of the fire, by elimination of other possible causes of the fire and evaluating the statements of the fact

witnesses along with the evidence collected at the scene. Dr. Beyler concluded the "most likely

mechanism" was "'nonpassive failure' of the lamp igniting the recliner below." Nonpassive failure

involves an exploding bulb causing hot glass, capable of igniting ordinary combustibles like

furniture, to ignite. Dr. Beyler's report contains an extensive recitation of the facts, including that

the lamp lacked a wire mesh guard, was located adjacent to the recliner, and the ceiling had been

penetrated by the fire in the area of the recliner. The report also noted that Whitlock stated the lamp

was still on when he left his house around midnight the night of the fire. Dr. Beyler noted the sofa

and small table were both damaged more extensively on the side closest to the lamp, and the halogen

lamp was extensively damaged.

        Wal-Mart argues Dr. Beyler failed to exclude other potential causes. But Dr. Beyler did

examine and exclude the alternative causes. Dr. Beyler considered these possibilities, but rejected

the candle theory because of the disparity between the damage to the recliner and the sofa. The

pictures of the scene showed the recliner was completely consumed, but the sofa was only partially

consumed. Dr. Beyler concluded the disparity demonstrated the fire did not originate at the table

because the sofa was closer to the table. Dr. Beyler also states the candle wax would not have

survived the fire if the candles were the point of origin. The conclusion that smoking materials

caused the fire was incorrect according to Dr. Beyler. Dr. Beyler states that there is no evidence



                                                   17
smoking materials caused the fire and that "[t]he condition of the recliner after the fire is in no way

indicative of ignition of the recliner by a cigarette." Further, Dr. Beyler found no evidence of

electrical activities or other indicators of an electrical cause of the fire.

        Wal-Mart argues Dr. Beyler's reasoning is inadmissible post hoc reasoning.13 In Merrell Dow

Pharmaceuticals v. Havner, the Texas Supreme Court stated "[p]ost hoc, speculative testimony will

not suffice." 953 S.W.2d 706, 719 (Tex. 1997) (announcing requirements for epidemiological

studies to prove causation in toxic tort case). As noted by the First District, the temporal sequence

of the reasoning is not necessarily fatal. See Coastal Tankships, U.S.A., Inc. v. Anderson, 87 S.W.3d

591, 613 (Tex. App.—Houston [1st Dist.] 2002, pet. denied). The First District noted such

"reasoning is sometimes correct, sometimes fallacious" and emphasized the speculative nature of the

testimony as the relevant inquiry. Id.

        All of the cases cited by Wal-Mart are distinguishable from the facts in this case. A number

of the cases involved reviews of Robinson challenges, which as discussed above was not preserved

for our review, and are of marginal relevance.14 The remaining cases cited by Wal-Mart are factually



        13
        Dr. Beyler's testimony is "post hoc" only in that he proposes several hypotheses, and then
examines each in turn. This is not inadmissible reasoning; this is the scientific method.
        14
         Gammill, 972 S.W.2d at 726 (applying Robinson to technical rather than scientific expert
testimony); Havner, 953 S.W.2d at 712 (applying Robinson in the context of epidemiological
studies); Robinson, 923 S.W.2d at 556; Wolfson v. Bic Corp., 95 S.W.3d 527, 532 (Tex.
App.—Houston [1st Dist.] 2002, writ denied). Wal-Mart also cites two federal cases. These cases
do not rely upon Texas caselaw and have marginal, if any, persuasive value. See Bryte v. Am.
Household, Inc., 429 F.3d 469 (4th Cir. 2005); Lanza v. Poretti, 537 F. Supp. 777 (E.D. Pa. 1982).

                                                   18
distinguishable. Borg-Warner concerned the level of proof required in toxic tort cases to show that

the exposure was a ''substantial factor'' in bringing about the plaintiff's injury and has little relevance

to this case. See Borg-Warner Corp. v. Flores, 232 S.W.3d 765 (Tex. 2007). In Ridgway, the expert

witness only testified he "suspect[ed]" the electrical system caused the fire and failed to exclude

other possible causes. Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 601 (Tex. 2004). The Tyler

Court of Appeals in DeGrate concluded the expert failed to provide any basis of support for his

opinion the candles were defectively designed. See DeGrate v. Executive Imprints, Inc., 261 S.W.3d

402, 411 (Tex. App.—Tyler 2008, no pet.). In Gonzales v. Shing Wai Brass & Metal Wares Factory,

Ltd., there was no evidence "explain[ing] how the lamp was defective." 190 S.W.3d 742, 746 (Tex.

App.—San Antonio 2005, no pet.).

        At oral argument, Wal-Mart argued there was no distinction between this case and our recent

opinion in Driskill v. Ford Motor Co., No. 06-07-00119-CV, 2008 Tex. App. LEXIS 7910 (Tex.

App.—Texarkana Oct. 17, 2008, no pet.). We believe the distinctions between this case and Driskill

are profound. In Driskill, the plaintiff's expert witness was disqualified and there was no expert

testimony "bridging the analytical gap between the origin of a fire in the left rear area of an engine

compartment and the conclusion that the [speed control deactivation switch] in that area was the

cause-in-fact of the fire." Id. This case does not contain the "analytical gap" which proved fatal in

Driskill. Dr. Beyler's affidavit provides expert testimony bridging the analytical gap between the




                                                    19
origin of the fire in the general area of the lamp and the conclusion that the halogen lamp was the

cause-in-fact of the fire. There is more than a scintilla of evidence bridging the analytical gap.

       It is clear that Wal-Mart's experts disagree with the conclusions reached by Dr. Beyler.

Conclusory evidence lacks probative value due to insufficient factual substantiation—not from

"differing conclusions as to the underlying factual situation." See Brandt v. Surber, 194 S.W.3d 108,

132 (Tex. App.—Corpus Christi 2006, pet. denied). The fact that an expert witness may have made

errors does not create an impermissible "analytical gap." See SAS & Assocs. v. Home Mktg.

Servicing, 168 S.W.3d 296, 300 (Tex. App.—Dallas 2005, pet. denied). While Dr. Beyler's analysis

is not irrefutable, Dr. Beyler did provide factual substantiation for his opinions. Dr. Beyler's

opinions were based on his knowledge, training, and experience as an expert in fire science and fire

investigation, his review of the pictures of the scene, the statements of the fact witnesses, and

numerous published articles. The evidence is not speculative or conclusory and does not contain an

impermissible "analytical gap" between the data and the conclusions. Dr. Beyler's testimony is not

incompetent evidence.

       C.      Timeliness and Specificity of Self-Authentication of Wal-Mart Documents

       Wal-Mart claims the Parents' exhibits 4 and 14 through 17 were not competent summary

judgment evidence because they were not authenticated. In its appellee's brief and its objections to

the Parents' summary judgment evidence, Wal-Mart argued to the trial court that it did not receive

the ten days' notice required for self-authentication by Rule 193.7 of the Texas Rules of Civil



                                                 20
Procedure.    See TEX . R. CIV . P. 193.7.       The Parents responded that the exhibits were

self-authenticated under the rule by a notice provided seventeen months before the summary

judgment. The Parents filed a document titled "Notice of Self Authentication Pursuant to Rule

193.7, Tex. R. Civ. P.," which provides in pertinent part:

       Please take notice that the documents you produced in response to all parties' Request
       for Production of Documents are authenticated pursuant to Rule 193.7, TEX. R.
       CIV. P., and will be used by Plaintiff at any trial or hearing.

Clearly, Wal-Mart received more than ten days' notice.

       In their response to the Parents' reply brief, Wal-Mart states it was represented by different

counsel at the time of the notice and was not aware of the above notice. Wal-Mart, in the alternative,

argues the above notice lacked sufficient specificity under the rule. According to Wal-Mart, the

notice must list every document to be used by the document's title, etc. Such a requirement is not

found in the text of the rule. Rule 193.7 provides in its entirety:

       A party's production of a document in response to written discovery authenticates the
       document for use against that party in any pretrial proceeding or at trial
       unless—within ten days or a longer or shorter time ordered by the court, after the
       producing party has actual notice that the document will be used—the party objects
       to the authenticity of the document, or any part of it, stating the specific basis for
       objection. An objection must be either on the record or in writing and must have a
       good faith factual and legal basis. An objection made to the authenticity of only part
       of a document does not affect the authenticity of the remainder. If objection is made,
       the party attempting to use the document should be given a reasonable opportunity
       to establish its authenticity.

TEX . R. CIV . P. 193.7. Wal-Mart proposes two arguments as to why we should infer a specificity

requirement into the rule.


                                                 21
       First, Wal-Mart argues the snap-back provisions of Rule 193.3(d) require such a requirement.

See TEX . R. CIV . P. 193.3(d). Wal-Mart argues the notice of intent to use the document "also triggers

the ability to 'snap back' an inadvertently produced privileged document." Second, Wal-Mart argues

the comments to the rule indicate the notice must specify the document by title. The only comment

referencing Rule 193.7 is as follows:

       7.      The self-authenticating provision is new. Authentication is, of course, but a
       condition precedent to admissibility and does not establish admissibility. See TEX .
       R. EVID . 901(a). The ten-day period allowed for objection to authenticity (which
       period may be altered by the court in appropriate circumstances) does not run from
       the production of the material or information but from the party's actual awareness
       that the document will be used. To avoid complications at trial, a party may identify
       prior to trial the documents intended to be offered, thereby triggering the obligation
       to object to authenticity. A trial court may also order this procedure. An objection
       to authenticity must be made in good faith.

TEX . R. CIV . P. 193 cmt. 7. Wal-Mart claims the language "may identify" creates a specificity

requirement that requires a party to list the specific document he or she intends to use.

       Assuming, without deciding, the rule contains a specificity requirement, Wal-Mart has

waived any error. The Parents filed the notice of self-authentication approximately seventeen

months before summary judgment. If Wal-Mart had any complaints concerning the notice, it should

have raised those complaints in the trial court at a time when any deficiency could have been

remedied. Wal-Mart did not raise its specificity complaint until it filed its response to the Parents'

reply brief. "Silence or inaction, for so long a period as to show an intention to yield the known

right," may be sufficient to establish a waiver of that right. Tenneco Inc. v. Enter. Prods. Co., 925



                                                  22
S.W.2d 640, 643 (Tex. 1996). Wal-Mart had seventeen months in the trial court to complain about

the notice of self-authentication. Wal-Mart waived any complaints by not objecting to the specificity

of the notice in the trial court.

II.     The Trial Court Erred in Granting the No-Evidence Motion

        Wal-Mart argues there are numerous deficiencies in the Parents' evidence. "A product may

be unreasonably dangerous because of a defect in manufacturing, design, or marketing." Uniroyal

Goodrich Tire Co., 977 S.W.2d at 335. Wal-Mart claims there is no evidence the lamp was a

halogen lamp, no evidence the lamp was purchased at a Wal-Mart store, no evidence the lamp

contained a design defect, and no evidence of a marketing defect.

        A no-evidence summary judgment is essentially a pretrial directed verdict. We, therefore,

apply the same legal sufficiency standard in reviewing a no-evidence summary judgment as we apply

in reviewing a directed verdict. Wal-Mart Stores, Inc. v. Rodriguez, 92 S.W.3d 502, 506 (Tex.

2002). We must determine whether the nonmovant produced any evidence of probative force to

raise a fact issue on the material questions presented. Id.; Vial v. Gas Solutions, Ltd., 187 S.W.3d

220, 228 (Tex. App.—Texarkana 2006, no pet.). A no-evidence

        motion for summary judgment must be granted if: (1) the moving party asserts that
        there is no evidence of one or more specified elements of a claim or defense on
        which the adverse party would have the burden of proof at trial; and (2) the
        respondent produces no summary judgment evidence raising a genuine issue of
        material fact on those elements.

Sudan v. Sudan, 199 S.W.3d 291, 292 (Tex. 2006); see TEX . R. CIV . P. 166a(i).



                                                 23
       A nonmovant will defeat a no-evidence summary judgment motion if the nonmovant presents

more than a scintilla of probative evidence on each element of his or her claim. DR Partners v.

Floyd, 228 S.W.3d 493 (Tex. App.—Texarkana 2007, pet. denied); Price v. Divita, 224 S.W.3d 331,

336 (Tex. App.—Houston [1st Dist.] 2006, pet. denied). The final test for legal sufficiency must

always be whether the evidence at trial would enable reasonable and fair-minded people to reach the

verdict under review. City of Keller v. Wilson, 168 S.W.3d 802, 827 (Tex. 2005). More than a

scintilla of evidence exists when the evidence "rises to a level that would enable reasonable and

fair-minded people to differ in their conclusions." Havner, 953 S.W.2d at 711. "Less than a scintilla

of evidence exists when the evidence is 'so weak as to do no more than create a mere surmise or

suspicion' of a fact." King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 751 (Tex. 2003) (quoting

Kindred v. Con/Chem, Inc., 650 S.W.2d 61, 63 (Tex. 1983)).

       A.      There Is Some Evidence the Lamp Was a Halogen Lamp

       Wal-Mart argues there is no evidence the lamp purchased by Merrell for his son was a

halogen lamp. A halogen lamp uses "halogen gas in the bulb as a media for producing the light."

An incandescent bulb consists of a sealed vacuum. The proof of this fact is critical to the Parents'

case. Without evidence the lamp was a halogen lamp, there is no evidence of a product defect or

causation.

       Merrell provided some evidence that the lamp was actually a halogen lamp. During the

deposition, Merrell testified the lamp he purchased for his son was a halogen lamp and frequently



                                                 24
referred to the lamp as a halogen lamp. Merrell also testified he could distinguish the difference

between an incandescent bulb and a halogen bulb. Merrell described the bulb in the lamp as a

"round cylinder looking bulb"—"[n]ot like a regular light bulb." According to Merrell, a halogen

bulb is normally cylindrical, and an incandescent bulb is normally round. Merrell, though, testified

he did not know the wattage of the bulb. Merrell testified he had seen the lamp in that location about

a month before the fire, and "it was like looking at the sun."

       J. M. Bershirs, who had been hired by the landlord to remove items from the burned house,

testified that the bulb on the lamp he removed from the living room was "more flat on the surface

and then round at the back." Bershirs testified the bulb was similar to a flood lamp. Bershirs later

identified a drawing of a bulb as similar to the bulb in the lamp. Bershirs testified he was not sure

whether the bulb was a halogen or incandescent bulb.

       The evidence that the lamp at issue was a halogen lamp is more than a mere suspicion or

surmise. Merrell's testimony is more than a scintilla of evidence the lamp at issue was a halogen

lamp. The description of the bulb by Bershirs also suggests the lamp was a halogen lamp. We

conclude there is more than a scintilla of evidence the lamp at issue was a halogen lamp.

       B.      There Is Some Evidence the Halogen Lamp Was Purchased at Wal-Mart

       Wal-Mart argues there is no evidence that the lamp was purchased at Wal-Mart because the

Parents do not have any document establishing the purchase. Merrell testified that he purchased the




                                                 25
lamp at a Wal-Mart store even though he did not remember the location. Merrell's testimony that

he purchased the lamp at Wal-Mart is sufficient to create a fact issue.

       C.      There Is Some Evidence of a Design Defect

       Wal-Mart argues there is no evidence of a design defect. We note Wal-Mart also argues the

Parents waived this issue by failing to provide this Court with an adequate brief.15 We also note the

Parents claim Wal-Mart waived this issue by not raising it in the trial court.16

       A design defect exists when a condition of the product renders it "'unreasonably dangerous

as designed, taking into consideration the utility of the product and the risk involved in its use.'"


       15
          Wal-Mart argues the Appellants' brief lacks sufficient citations to authority. An appellant
can waive an issue by failing to provide adequate citations to authority. See TEX . R. APP . P. 38.1;
Save Our Springs Alliance, Inc. v. Lazy Nine Mun. Util. Dist., 198 S.W.3d 300, 314 n.9 (Tex.
App.—Texarkana 2006, pet. denied). Whether a party has provided adequate citations to authority
is not judged by the quantity of cases cited. What constitutes adequate citations to authority depends
on the issue raised. For some issues, citing a single case may be adequate briefing. See Save Our
Springs, 198 S.W.3d at 324 (op. on reh'g). For complex issues or issues where the law is unsettled,
numerous cases along with extensive discussion of those cases may be required in order to
adequately brief the issue. See id. The Parents provided adequate authority for the arguments raised.
While the authority cited by the Appellants' brief could have been more extensive, the brief is not
inadequate.
       16
         A movant must establish his or her entitlement to a summary judgment on the issues
expressly presented to the trial court. City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671
(Tex. 1979). Wal-Mart, though, did expressly present this issue to the trial court in its motion for
summary judgment. Wal-Mart's motion contains three main complaints: 1) no evidence the lamp
was purchased at Wal-Mart; 2) no evidence the lamp was "defective and/or unreasonably
dangerous"; and 3) no evidence a product defect caused the injury. Wal-Mart argued there was no
evidence of a product defect because a product defect cannot be inferred, and "an inherent risk (such
as a high temperature bulb)" is not evidence the product is unreasonably dangerous. Wal-Mart's
challenge to the design defect is preserved, but Wal-Mart is limited to the grounds alleged in its
motion.

                                                 26
Hernandez v. Tokai Corp., 2 S.W.3d 251, 258 (Tex. 1999) (quoting jury instruction contained in

Turner v. Gen. Motors Corp., 584 S.W.2d 844, 847 n.1 (Tex. 1979)). "'The inference of defect may

not be drawn . . . from the mere fact of a product-related accident.'" Ridgway, 135 S.W.3d at 602

(quoting Restatement (Third) of Torts: Products Liability § 3 reporters' note to cmt. d (1998)); see

Cooper Tire & Rubber Co. v. Mendez, 204 S.W.3d 797, 807 (Tex. 2006).

       We note a design defect also requires proof of a safer alternative design. TEX . CIV . PRAC.

& REM . CODE ANN . § 82.005 (Vernon 2005); Mendez, 204 S.W.3d at 807; see Jaimes v. Fiesta Mart,

Inc., 21 S.W.3d 301, 306 (Tex. App.—Houston [1st Dist.] 1999, pet. denied); Hernandez, 2 S.W.3d

at 256 (noting "Section 82.005 does not attempt to state all the elements of a product liability action

for design defect"). Wal-Mart, though, did not challenge the evidence concerning a safer alternative

design.17

       17
          Wal-Mart did not argue there was no evidence of a safer alternative design, nor did Wal-
Mart argue its evidence conclusively established there was no safer alternative design. Summary
judgment cannot be granted except on the grounds expressly presented in the motion. Johnson v.
Brewer & Pritchard, P.C., 73 S.W.3d 193, 204 (Tex. 2002); Sci. Spectrum, Inc. v. Martinez, 941
S.W.2d 910, 912 (Tex. 1997); McConnell v. Southside Indep. Sch. Dist., 858 S.W.2d 337, 342 (Tex.
1993); AIG Life Ins. Co. v. Federated Mut. Ins. Co., 200 S.W.3d 280, 284 (Tex. App.—Dallas 2006,
pet. denied); Thomas v. Omar Invs., Inc., 156 S.W.3d 681, 685 (Tex. App.—Dallas 2005, no pet.).
Rule 166a(i) provides "[t]he motion must state the elements as to which there is no evidence." TEX .
R. CIV . P. 166a(i). "A motion for summary judgment must itself expressly present the grounds upon
which it is made, and must stand or fall on these grounds alone." Martinez, 941 S.W.2d at 912
(quoting McConnell, 858 S.W.2d at 341). The appellate court is not permitted to "read between the
lines, infer or glean from the pleadings or the proof" any grounds for granting summary judgment
other than those grounds expressly set forth in the motion for summary judgment. McConnell, 858
S.W.2d at 343; Mott v. Red's Safe & Lock Servs., Inc., 249 S.W.3d 90, 98 (Tex. App.—Houston [1st
Dist.] 2007, no pet.) (motion which alleged there was no evidence the product "was unfit for the
purposes for which it was intended . . . ." was insufficient to challenge existence of product defect

                                                  27
               1.      There Is Some Evidence of a Product Defect

       According to Dr. Beyler, all halogen lamps are defective and unreasonably dangerous because

typical "lamp envelope" temperatures are between 500 and 600 degrees Celsius (932 and 1,112

degrees Fahrenheit). There are four main mechanisms by which halogen lamps can cause fires as

documented by scientific literature: 1) ignition of combustibles in close proximity; 2) ignition of

combustibles by exploding lamp fragments; 3) electrical short circuits; and 4) tip-over of the lamp

resulting in ignition of combustibles. There is more than a scintilla of evidence that the lamp

contained a product defect.

               2.      There Is Some Evidence Halogen Lamps Are Unreasonably Dangerous

       Wal-Mart challenges the evidence that halogen lamps are unreasonably dangerous.

Dr. Beyler's affidavit contains some evidence of this element. The Parents introduced numerous

articles showing halogen lamps produce high levels of heat. A memorandum from the Commission

lists these dangers. The memorandum was the result of 260 reported incidents involving halogen

torchiere floor lamps. The study included 232 fires caused by halogen torchiere-style floor lamps,

of which twelve resulted in deaths.




or unreasonably dangerous condition). Because Wal-Mart failed to challenge the evidence
concerning a safer alternative design in its summary judgment motion, summary judgment could not
be granted on that basis. Further, we note Dr. Beyler stated incandescent and flourescent bulbs do
not generate temperatures as high as halogen bulbs. Lentini and Phillips both testified similar lamps
with incandescent bulbs were available.

                                                 28
       The unreasonably dangerous concept is similar to the safer alternative design discussion

above, but has a slightly different focus. Even though a product may have a safer alternative design,

the product may not be unreasonably dangerous based on a risk-utility analysis. See Hernandez,

2 S.W.3d at 256. The risk-utility analysis employed by Texas courts involves consideration of

several factors, including:

       (1) the utility of the product to the user and to the public as a whole weighed against
       the gravity and likelihood of injury from its use; (2) the availability of a substitute
       product which would meet the same need and not be unsafe or unreasonably
       expensive; (3) the manufacturer's ability to eliminate the unsafe character of the
       product without seriously impairing its usefulness or significantly increasing its
       costs; (4) the user's anticipated awareness of the dangers inherent in the product and
       their avoidability because of the general public knowledge of the obvious condition
       of the product, or of the existence of suitable warnings or instructions, and (5) the
       expectations of the ordinary consumer.

Id. (citing Am. Tobacco Co. v. Grinnell, 951 S.W.2d 420, 432 (Tex. 1997)).

       Wal-Mart argues that the Parents' proof, which only attacks halogen torchiere lamps in

general, does not establish that the product is unreasonably dangerous. Wal-Mart claims the model

sold must be unreasonably dangerous in comparison to other halogen torchiere lamps. A rational

juror could conclude that an incandescent torchiere lamp is an adequate substitute for a halogen

torchiere lamp and determine, using the above factors, that the utility of halogen lights does not

outweigh its dangers. There is some evidence of unreasonable danger.




                                                 29
                 3.     There Is Some Evidence of Causation

        Wal-Mart claims there is no evidence the lamp in dispute caused the fire. Wal-Mart argues

the Parents cannot prove causation without producing the actual lamp. While we agree the missing

lamp makes the Parents' case much more difficult to prove, its absence does not make the case

impossible to prove. We have previously discussed the testimony of Dr. Beyler supporting the claim

that the halogen lamp was the cause of the fire.

        As discussed above, Dr. Beyler opined the fire was most likely caused by the halogen lamp

and substantiated his opinion with an analysis of the fire, physical evidence, and observations.

Dr. Beyler used numerous published articles to establish that halogen lamps can cause fires. Based

on the data and statistics contained in the published articles, Dr. Beyler concluded "halogen lamps

generate sufficient heat to allow ordinary combustibles to be ignited without direct bulb contact."

Dr. Beyler concluded the most likely mechanism is "'nonpassive failure' of the lamp igniting the

recliner below." He reached this conclusion by eliminating the other possible causes of the fire and

analyzing the statements of the fact witnesses along with the evidence gathered at the scene. We

further note the ceiling burn-through was not directly over the recliner, but rather approximately two

feet from the recliner. Dr. Beyler's testimony was based on the condition of the recliner, sofa, and

table after the fire.

        The Parents were not required to marshal all of their evidence at the summary judgment

stage. See TEX . R. CIV . P. 166a (cmt.). The Parents only had to produce a scintilla of evidence.



                                                   30
There is some evidence the lamp was a substantial factor in bringing about an injury and without the

lamp, the injury would not have occurred.

       D.      There Is Some Evidence of a Marketing Defect

       A ''marketing defect'' exists if the manufacturer or seller fails to warn of a dangerous

characteristic of the product. A marketing defect may exist even though the product is not otherwise

flawed. Munoz v. Gulf Oil Co., 732 S.W.2d 62, 65 (Tex. App.—Houston [14th Dist.] 1987, writ

ref'd n.r.e.). A marketing defect consists of five elements:

       (1) a risk of harm that is inherent in the product or that may arise from the intended
       or reasonably anticipated use of the product must exist; (2) the product supplier must
       actually know or reasonably foresee the risk of harm at the time the product is
       marketed; (3) the product must possess a marketing defect; (4) the absence of the
       warning and/or instructions must render the product unreasonably dangerous to the
       ultimate user or consumer of the product; and (5) the failure to warn and/or instruct
       must constitute a causative nexus in the product user's injury.

Goodyear Tire & Rubber Co. v. Rios, 143 S.W.3d 107, 116 (Tex. App.—San Antonio 2004, pet.

denied).

       As discussed above, the record contains ample evidence halogen lamps are defective. There

is some evidence establishing that Wal-Mart was aware of the risk of harm. The record contains

several memorandums and other documents concerning Wal-Mart's implementation of a requirement

imposed by the Commission that all retailers make available without cost, a wire mesh guard for all

halogen torchiere lamps. However, Wal-Mart did not provide a wire mesh guard with the lamp.

Merrell testified Wal-Mart sold the lamp without a box or adequate warnings. A rational juror could



                                                 31
conclude a causative nexus existed between the failure to warn and/or instruct and Charles II's death.

There is more than a scintilla of evidence establishing a marketing defect.

III.   The Trial Court Erred in Granting the Traditional Motion for Summary Judgment

       Wal-Mart's motion was both a no-evidence and a traditional motion for summary judgment.

The Parents argue that Wal-Mart failed to conclusively establish that the lamp was not purchased

at Wal-Mart, that the lamp was an incandescent lamp, or that smoking materials were the cause of

the fire. We agree the trial court erred in granting the traditional motion for summary judgment.

       When reviewing a traditional motion for summary judgment, summary judgment is proper

when the movant establishes that there is no genuine issue of material fact and that he or she is

entitled to judgment as a matter of law. Clear Creek Basin Auth., 589 S.W.2d 671; see TEX . R. CIV .

P. 166a(c). The defendant must conclusively negate at least one element of each of the plaintiff's

theories of recovery or plead and conclusively establish each element of an affirmative defense.

Martinez, 941 S.W.2d at 911. Because the movant bears the burden of proof, all conflicts in the

evidence are disregarded, evidence favorable to the nonmovant is taken as true, and all doubts as to

the genuine issues of material fact are resolved in favor of the nonmovant. Nixon v. Mr. Prop. Mgmt.

Co., 690 S.W.2d 546 (Tex. 1985); see Limestone Prods. Distribution, Inc. v. McNamara, 71 S.W.3d

308, 311 (Tex. 2002); Rhone-Poulenc, Inc. v. Steel, 997 S.W.2d 217, 223 (Tex. 1999).




                                                 32
       A.      Wal-Mart Did Not Conclusively Negate That the Lamp Was Purchased at Wal-
               Mart

       Wal-Mart introduced an affidavit of Jim Scantlin, the Director of Data Management for Wal-

Mart. Scantlin searched Wal-Mart's records for a record of Merrell's purchase. Scantlin testified he

reviewed 95,000 sales records from the three locations in question and could not find a sale that

matched Merrell's description. A jury would not be required to find all of Scantlin's testimony to be

credible. As a Wal-Mart employee, Scantlin was an interested witness. In addition, Scantlin

restricted his search to specific dates, product features, and other criteria. Merrell's purchase could

have been outside these dates or the other search limitations. The Parents argue a purchase on

October 8 could have been the purchase of the lamp in question. This date was outside the search

dates used by Scantlin. Last, Merrell testified he purchased the lamp at Wal-Mart. While Wal-Mart

has persuasive evidence, it has not conclusively established the lamp was not purchased at Wal-Mart.

There are genuine issues of material fact concerning whether the lamp was purchased at Wal-Mart.

       B.      Wal-Mart Did Not Conclusively Negate That the Lamp Was a Halogen Lamp

       Both Lentini and Dyer testified the lamp was an incandescent lamp. Lentini testified the two

photographs of the lamp were of an incandescent fixture, not a halogen fixture. From the

descriptions of the lamp and the photographs, Dyer concluded the lamp indicated was an

incandescent, rather than a halogen, lamp. Dyer testified the shape of the bowl indicates the lamp

was an incandescent lamp. The record, though, contains evidence contradicting the conclusions

reached by Lentini and Dyer. In its summary judgment motion, Wal-Mart admits the photographs


                                                  33
of the lamp are "blurry" and "fuzzy." Phillips testified a person could buy both incandescent lamps

and halogen lamps similar to the appearance of the lamp in dispute. As discussed above, Merrell

testified the lamp was a halogen lamp. Wal-Mart admitted selling halogen lamps. The testimony

of an expert witness usually does not establish any fact as a matter of law. See Uniroyal Goodrich

Tire Co., 977 S.W.2d at 338. Wal-Mart failed to conclusively establish the lamp was an

incandescent lamp.

       C.      Wal-Mart Did Not Conclusively Establish the Marihuana Joints Caused the
               Fire

       Wal-Mart argues throughout its brief that the marihuana joints or cigarettes caused the fire.

Wal-Mart, though, has not conclusively established this fact. Lentini concluded the most probable

cause of the fire was careless disposal of smoking materials. Dyer testified the cause of the fire

could not be determined due to the lack of a thorough fire investigation and the significant amount

of missing elements of key evidence.

       The presence of smoking materials is not conclusive evidence they were the cause of the fire.

Neither is the presence of cannabinoids in the blood of the victims. Dr. Beyler disagreed with the

conclusion that marihuana joints or other smoking materials caused the fire. While Lentini opined

the fire was caused by smoking materials, such testimony only creates a fact issue for a jury's

consideration. In other words, Wal-Mart's evidence creates a fact issue—not conclusive proof.




                                                34
Conclusion

       The trial court did not err in admitting all the summary judgment evidence. Although

Whitlock's affidavit was not admissible for all purposes, Dr. Beyler could rely upon Whitlock's

statement in his affidavit. Dr. Beyler's affidavit was not speculative or conclusory. Because the

Parents introduced more than a scintilla of evidence on each challenged element of their cause of

action, the trial court erred in granting Wal-Mart's no-evidence motion for summary judgment.

Further, Wal-Mart failed to establish it was entitled to a traditional summary judgment. We reverse

the order of the trial court granting Wal-Mart's summary judgment motion and remand this case to

the trial court for further proceedings consistent with this opinion.




                                               Jack Carter
                                               Justice

Date Submitted:        October 29, 2008
Date Decided:          December 16, 2008




                                                 35
