
 
 
 



NUMBER 13-01-539-CV
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG

 


BONIFACIO MORON, JR., INDIVIDUALLY AND AS  REPRESENTATIVE OF THE ESTATE OF  EMELIA
MORON, DECEASED, ET AL.,    Appellants


v.



ROGER HEREDIA, M.D. , Appellee.
 


On appeal from the 206th District Court 
of Hidalgo County, Texas.
 


OPINION

Before Chief Justice Valdez and Justices Rodriguez and Dorsey (1)
Opinion by Chief Justice Rogelio Valdez
 This is an appeal of a no evidence summary judgment rendered against the plaintiffs in a medical malpractice case. 
Appellants, Bonifacio Moron, Jr., individually and as independent executor of the estate of Emilia Moron, deceased,
Susana Moron Martinez, Mariana Moron Martinez, Jesus Daniel Moron, Homero Reynaldo Moron, Hector Moises Moron,
and Graciela Moron Garcia, brought suit against appellee, Dr. Roger Heredia, alleging that his negligent treatment of their
mother resulted in her death.  The trial court entered a no evidence summary judgment against appellants and in favor of
Heredia, and this appeal ensued.  
 We affirm the judgment of the trial court.
Factual and Procedural Background  

 On February 23, 2001, Heredia filed a no evidence motion for summary judgment on grounds that appellants lacked expert
testimony establishing a breach of the applicable standard of care.  According to the motion, Heredia had previously moved
to strike appellant's expert, Dr. Patrick McAllister, because appellants failed to produce McAllister for deposition. 
According to the motion for summary judgment, appellants responded to Heredia's motion to strike by filing a motion for
continuance. In the motion for continuance, appellants explained that McAllister was unable to go forward with his
deposition or testify at trial because he suffered from severe depression and bipolar disorder.  Therefore, appellants
requested a continuance to obtain a new expert witness.  The trial court granted the motion for continuance, and ordered
appellants to designate new experts by February 1, 2001.  
 According to Heredia's motion for summary judgment, the appellants failed to meet that deadline.  Heredia attached the
appellant's motion for continuance and the trial court's scheduling order as exhibits to his motion for summary judgment. 
In light of these exhibits, it is undisputed that this no evidence motion for summary judgment was filed after an adequate
time for discovery.  See Tex. R. Civ. P. 166a(i); Specialty Retailers, Inc. v. Fuqua, 29 S.W.3d 140, 145 (Tex. App.-Houston
[14th Dist.] 2000, pet. denied).  
 Based on the foregoing, Heredia argued that appellants had no evidence that Heredia's conduct caused or contributed to the
appellant's damages.  Specifically, Heredia alleged that appellants had failed to produce any evidence from an expert
physician that there was a duty requiring the healthcare provider to conform to a certain standard of conduct, the applicable
standard of care and its breach, injuries, and a reasonably close causal connection between the breach of that standard of
care and the complained of harm.  
 In response to Heredia's motion for summary judgment, appellants produced McAllister's original report.  This report was
neither verified nor accompanied by any documents pertaining to McAllister's qualifications as an expert witness.  In the
trial court, the defendant objected to McAllister's report on grounds that the plaintiffs had dedesignated him.  Although the
trial court did not expressly rule on this objection, see Tex. R. App. P. 33.1(a), the trial court granted the no evidence
motion for summary judgment.
Standard of Review

 A no evidence motion for summary judgment is essentially a pretrial motion for directed verdict, and the appellate court
will apply the same standard of review. Zapata v. Children's Clinic, 997 S.W.2d 745, 747 (Tex. App.-Corpus Christi 1999,
pet. denied); Moore v. K Mart Corp., 981 S.W.2d 266, 269 (Tex. App.-San Antonio 1998, pet. denied). The appellate court
reviews the evidence in the light most favorable to the party against whom the summary judgment was rendered,
disregarding all contrary evidence and inferences.  Merrell Dow Pharm., Inc. v. Havner, 953 S.W.2d 706, 711 (Tex. 1997);
Whalen v. Condo Consulting & Mgmt. Servs., Inc., 13 S.W.3d 444, 446 (Tex. App.-Corpus Christi 2000, pet. denied); Sibai
v. Wal-Mart Stores, Inc., 986 S.W.2d 702, 705 (Tex. App.-Dallas 1999, no pet.).  The nonmovant need not "marshal its
proof," rather, it "need only point out evidence that raises a fact issue on the challenged elements."  Tex. R. Civ. P. 166a(i)
cmt.  When a motion for summary judgment is based on no evidence grounds, the Texas Supreme Court has ordered that:
 1. the no-evidence motion can only be brought against "a claim or defense on which an adverse party would have the
burden of proof at trial,"


 2. "the motion must state the elements as to which there is no evidence," 


 3. "the motion must be specific in challenging the evidentiary support for an element of a claim," and


 4. "paragraph (i) does not authorize conclusory motions or general no-evidence challenges to an opponent's case."


Tex. R. Civ. P. 166a(i), 166a(i) cmt.; see Oasis Oil Corp. v. Koch Ref. Co., 60 S.W.3d 248, 250 (Tex. App.-Corpus Christi
2001, pet. denied).
 "The trial court may not grant a no-evidence summary judgment if the respondent brings forth more than a scintilla of
probative evidence to raise a genuine issue of material fact."  Oasis Oil Corp., 60 S.W.3d at 250; Zapata, 997 S.W.2d at
747.  Evidence that is "so weak as to do no more than create a mere surmise or suspicion" of a fact is legally insufficient
and constitutes no evidence.  Moore, 981 S.W.2d at 269 (quoting Kindred v. Con/Chem, Inc., 650 S.W.2d 61, 63 (Tex.
1983)). 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."  Merrell Dow Pharm., Inc., 953 S.W.2d at 711; Zapata, 997 S.W.2d at
747.
Analysis 

   The only document produced by appellants in response to appellee's motion for summary judgment was McAllister's
report.  This document was neither verified nor accompanied by an affidavit.  As such, it did not constitute admissible
evidence as required by the rules of civil procedure.  See Tex. R. Civ. P. 166a(e) (court must grant a no evidence motion for
summary judgment "unless the respondent produces summary judgment evidence raising a genuine issue of material fact")
(emphasis added).  The absence of a jurat is substantive, and not a "purely formal" defect. Tucker v. Atl. Richfield Co., 787
S.W.2d 555, 557 (Tex. App.-Corpus Christi 1990, writ denied); see Hall v. Rutherford, 911 S.W.2d 422, 425 (Tex.
App.-San Antonio 1995, writ denied).  Accordingly, McAllister's report did not constitute competent summary judgment
proof.  See Hall, 911 S.W.2d at 425.  Therefore, the trial court properly granted summary judgment in favor of Heredia.
 Moreover, even if we were to consider McAllister's report as competent summary judgment evidence, the report itself fails
to constitute more than a scintilla of probative evidence as required to defeat a no evidence motion for summary judgment. 
To raise a fact issue sufficient to defeat summary judgment in a medical malpractice action, the plaintiff's controverting
expert should specifically identify the standard of care, establish the expert's familiarity with that standard, and explain why
the treatment rendered by the defendant health-care provider breached the applicable standard.  Hightower v. Saxton, 54
S.W.3d 380, 389 (Tex. App.-Waco 2001, no pet.); Keeton v. Carrasco, 53 S.W.3d 13, 28 (Tex. App.-San Antonio 2001,
pet. denied).  
 McAllister's report, as the only summary judgment evidence, wholly fails to establish his familiarity with the standard of
care.  Although appellants cite to a different affidavit filed during another proceeding in the trial court, and claim that this
other affidavit sets out McAllister's experience in family practice, this second affidavit was not produced in response to
summary judgment.  This second affidavit was not even incorporated by reference into the appellants' response to the
motion for summary judgment.  See Tex. R. Civ. P. 166a(d).  Therefore, McAllister's report itself fails to raise a fact issue
sufficient to defeat summary judgment.  See Hightower, 54 S.W.3d at 389; Keeton, 53 S.W.3d at 28.
 Heredia also contends that McAllister's report was incompetent summary judgment evidence because McAllister was not
qualified to give an opinion regarding Heredia's conduct.  McAllister's report does not address his qualifications to discuss
the applicable standard of care.  The objection to the failure of an expert's affidavit to disclose the expert's qualifications
goes to the substance of the affidavit and may be considered by this Court.  Trusty v. Strayhorn, No. 06-01-122-CV, 2002
Tex. App. LEXIS 6667, *21 (Texarkana Sept. 13, 2002, no pet. h.); Crow v. Rockett Special Util. Dist., 17 S.W.3d 320,
324 (Tex. App.-Waco 2000, pet. denied).  Thus, McAllister's report is also deficient insofar as it fails to address
McAllister's qualifications to testify.  Trusty, 2002 Tex. App. LEXIS 6667, at *21; Crow, 17 S.W.3d at 324.
Conclusion

 McAllister's report did not constitute competent summary judgment evidence and was substantially deficient insofar as it
failed to discuss McAllister's qualifications and his familiarity with the applicable standard of care.  See Tex. R. Civ. P.
166a(i);Trusty, 2002 Tex. App. LEXIS 6667, at *21; Tucker, 787 S.W.2d at 557; Hall, 911 S.W.2d at 525.  Thus, we
conclude that appellants failed to bring forth more than a scintilla of probative evidence to raise a genuine issue of material
fact.  Accordingly, we affirm the summary judgment. 


 
ROGELIO VALDEZ
Chief Justice
Opinion delivered and filed
this 24th day of April , 2003.


























1. Retired Justice J. Bonner Dorsey assigned to this Court by the Chief Justice of the Supreme Court of Texas
pursuant to Texas Government Code section 74.003.  Tex. Gov't Code Ann. § 74.003 ( Vernon 1988).
