      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                       NO. 03-06-00210-CV



                         Kenneth R. Jacob and Blair Jacob, Appellants

                                                   v.

                      International Cellulose Corporation, Inc., Appellee


     FROM THE DISTRICT COURT OF TRAVIS COUNTY, 200TH JUDICIAL DISTRICT
       NO. D-1-GN-06-000904, HONORABLE JOSEPH H. HART, JUDGE PRESIDING



                             MEMORANDUM OPINION


               In this property damage case arising from a house fire, appellants Kenneth R. Jacob

and Blair Jacob argue that the trial court erred in granting summary judgment for appellee

International Cellulose Corporation (ICC) and in excluding the affidavit of the Jacobs’ expert

witness. Because we conclude that the Jacobs failed to raise a genuine issue of material fact as to

each of their causes of action and that it was not an abuse of discretion to exclude their expert’s

affidavit, we affirm the trial court’s judgment.


                      FACTUAL AND PROCEDURAL BACKGROUND

               The Jacobs’ home and all of its contents were destroyed by fire. At approximately

9:30 p.m. on November 29, 2002, the Jacobs discovered the fire in their attic and called the fire

department. The fire department arrived and, after extinguishing the fire, removed Sheetrock and

layers of smoldering insulation and used thermal imaging to detect remaining “hot spots.” Damage
from the fire was concentrated in the attic, an office, hallway, and bathroom. In the early morning

hours of November 30, 2002, the fire reignited and the house was completely destroyed. The Travis

County fire investigator determined that the initial cause of the fire was electrical and that the

rekindling was due to the reignition of cellulose insulation in the attic.

               Prior to the fires, the Jacobs had made home improvements. In December 1998, they

contracted with Alexander Builders to remodel their house, and the scope of the work included

electrical rewiring. Alexander Builders subcontracted the electrical work to Neal Wood Electric.

The remodel was completed in late 1999. In 2001, the Jacobs contracted with Enercheck Insulation,

Inc., to install insulation in their attic, and the product used by Enercheck for the project was

cellulose insulation1 manufactured by ICC. It is undisputed that Enercheck installed the ICC

cellulose insulation over an existing layer of cellulose insulation.

               The Jacobs filed suit against Henry Miller, individually and d/b/a Alexander Builders;

Neal Wood, individually and d/b/a Neal Wood Electric; Enercheck; and ICC; however, only the

claims against ICC are currently before this Court, and we will limit our discussion accordingly.2

The Jacobs’ fourth amended original petition presented causes of action against ICC for product

liability, negligence, and breach of warranty. Specifically, they alleged defective manufacturing,



       1
          Cellulose insulation is made from recycled newspaper and treated with fire retardants and
insect protection.
       2
          The trial court also granted summary judgment in favor of Neal Wood, individually
and d/b/a Neal Wood Electric. The Jacobs separately appealed that ruling to this Court, and their
appeals against Wood and ICC were consolidated. The appeal against Wood was dismissed,
however, for lack of jurisdiction. See Jacob v. International Cellulose Corp., No. 03-06-00210-CV
(Tex. App.—Austin Nov. 22, 2006) (order), available at http://www.3rdcoa.courts.state.tx.us/
opinions/HTMLOpinion.asp?OpinionID=15423.

                                                  2
defective design, negligent manufacturing, negligent design, negligent marketing and warning,

negligent testing and inspection, negligent installation and training, breach of express warranty,

breach of the implied warranty of merchantability, and breach of the implied warranty of fitness for

a particular purpose.

               After extensive discovery, ICC filed two motions for summary judgment. In the first

motion, ICC asserted that (i) federal law preempted the Jacobs’ marketing and design defect claims;

(ii) ICC complied with federal regulations and was entitled under section 82.008 of the civil practice

and remedies code to a rebuttable presumption that it was not liable for any injury “caused by some

aspect of the formulation, labeling, or design” of its product, see Tex. Civ. Prac. & Rem. Code Ann.

§ 82.008(a) (West 2005); and (iii) the Jacobs had no evidence of causation, which is an element of

each of their alleged causes of action. In the second motion, ICC maintained that, because there was

no evidence as to certain required elements, or alternatively, because ICC had established as a matter

of law that the Jacobs could not prove certain required elements, ICC was entitled to summary

judgment on the Jacobs’ claims for manufacturing defect, negligent testing and inspection, negligent

training and installation, and breaches of express and implied warranties. The second motion also

asserted that use of res ipsa loquitur was not appropriate in this case. Both of ICC’s motions

included summary judgment evidence.

               The Jacobs filed separate responses, including summary judgment evidence, to both

motions. Attached to both responses was the affidavit of one of the Jacobs’ experts, Robert Brady

Williamson. ICC objected to Williamson’s affidavit on the grounds that the affidavit addressed

issues about which Williamson was not designated to testify, did not address causation, and was



                                                  3
not competent expert testimony because it made conclusory allegations and was not credible or free

from contradictions.

                The trial court sustained ICC’s objections to the Jacobs’ summary judgment evidence

and granted both of ICC’s motions for summary judgment. The court did not specify which ground

or grounds it relied upon in granting the motions. The claims against ICC were severed from the

claims against the other defendants, and this appeal followed.


                                           ANALYSIS

                On appeal, the Jacobs argue that the trial court erred in finding that their claims

against ICC were preempted by federal law and in granting summary judgment in favor of ICC as

to the Jacobs’ state law claims. They also contend that the trial court erred in excluding their

expert’s affidavit.


Standard of Review

                We review summary judgments de novo. Valence Operating Co. v. Dorsett, 164

S.W.3d 656, 661 (Tex. 2005). ICC moved for summary judgment on both no-evidence and

rule 166a(c) summary judgment grounds; however, because we conclude that ICC satisfied the

burden for a no-evidence summary judgment, we discuss only that standard of review. A party

seeking a no-evidence summary judgment must assert that no evidence exists as to one or more of

the essential elements of the nonmovant’s claims on which it would have the burden of proof at trial.

Tex. R. Civ. P. 166a(i); Holmstrom v. Lee, 26 S.W.3d 526, 530 (Tex. App.—Austin 2000, no pet.).

Once the movant specifies the elements on which there is no evidence, the burden shifts to the



                                                 4
nonmovant to produce summary judgment evidence raising a genuine issue of material fact on

the challenged elements, and the court must grant the motion if the nonmovant fails to do so.

Tex. R. Civ. P. 166a(i). To defeat the motion for summary judgment, the nonmovant must present

more than a scintilla of probative evidence. Forbes Inc. v. Granada Biosciences, Inc., 124 S.W.3d

167, 172 (Tex. 2003). More than a scintilla of evidence exists if it would allow reasonable and

fair-minded people to differ in their conclusions. Id. 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. Id.

When a trial court’s order granting summary judgment does not specify the ground or grounds relied

on for its ruling, as here, summary judgment will be affirmed on appeal if any of the theories

advanced are meritorious. Carr v. Brasher, 776 S.W.2d 567, 569 (Tex. 1989).

               We review the admissibility of expert testimony using the same standard on summary

judgment as at trial. United Blood Servs. v. Longoria, 938 S.W.2d 29, 30 (Tex. 1997). However,

as an appellate court, we do not consider the admissibility or inadmissibility of the evidence de novo.

Instead, a trial court has broad discretion in determining whether expert testimony is admissible, and

its ruling will be reversed only if that discretion is abused. Mack Trucks v. Tamez, 206 S.W.3d 572,

578 (Tex. 2006). A court abuses its discretion if it acts without reference to any guiding rules and

principles. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex. 1985). When

reviewing matters committed to the trial court’s discretion, a court of appeals may not substitute its

own judgment for that of the trial court. Walker v. Gutierrez, 111 S.W.3d 56, 63 (Tex. 2003).




                                                  5
Causation

               The Jacobs brought causes of action against ICC in strict liability, negligence, and

breach of warranty, all of which require proof of causation. See Mack Trucks, 206 S.W.3d at 582.

The test for strict liability claims is producing cause, while negligence and breach of warranty claims

require a showing of proximate cause. Union Pump Co. v. Allbritton, 898 S.W.2d 773, 775

(Tex. 1995) (strict liability and negligence); Hyundai Motor Co. v. Rodriguez, 995 S.W.2d 661, 667

(Tex. 1999) (strict liability and breach of warranty); see also Tex. Civ. Prac. & Rem. Code Ann.

§ 82.005(a)(2) (West 2005) (requiring claimant in design defect case to prove by a preponderance

of evidence that defect was a producing cause). A producing cause is an efficient, exciting, or

contributing cause, which in a natural sequence of events, produces injuries or damages. Union

Pump Co., 898 S.W.2d at 775. Proximate cause consists of both cause in fact and foreseeability.

Id. Common to both proximate and producing cause is causation in fact, id., the test for which is

whether the negligent act or omission was a substantial factor in bringing about the harm and without

which the harm would not have occurred. Doe v. Boys Clubs of Greater Dallas, Inc., 907 S.W.2d

472, 477 (Tex. 1995). A finding of cause in fact may be based on either direct or circumstantial

evidence, but cannot be supported by mere conjecture, guess, or speculation. Marathon Corp. v.

Pitzner, 106 S.W.3d 724, 727 (Tex. 2003).

               In its first motion for summary judgment, ICC asserted that, because there were two

layers of cellulose insulation installed in the Jacobs’ house, the Jacobs had no evidence that ICC’s

product—rather than the original layer of insulation—smoldered and caused the second fire. In

support of its motion, ICC attached the deposition testimony of the Jacobs’ experts and a Travis



                                                  6
County fire investigator. Each witness, with one exception, testified that he could not identify which

insulation caused the fire to reignite. Mack Fuller, a certified fire investigator, testified that


        [k]nowing the fact that there’s two layers of cellul[ose] insulation, I have no way of
        telling you which one was which or where—you know, it certainly would stand to
        reason that the one that’s closer to the Sheetrock or to the lower level would probably
        have ignited before the one that was blown in above it.


In addition, Fuller stated that he could not rule out that wood rekindled the fire or that someone set

the fire. Andrew Armstrong, who had tested a product sample (although he did not know who

manufactured the sample), stated that he had no opinion as to the cause of either the first or second

fire. Lem Biggs, the Travis County fire investigator, testified that he was unaware there were two

kinds of cellulose insulation in the attic and that he did not know which one might have smoldered.

The Jacobs’ final expert, Robert Brady Williamson, did not distinguish between the two insulations;

instead, he testified during deposition that both insulations caused the second fire: “I think they both

smoldered, and I don’t think you could point the finger at either one of them as being the primary

one. They both smoldered.”

                In response to ICC’s motion for summary judgment, the Jacobs proffered, as evidence

of causation, Williamson’s deposition testimony that both insulations caused the fire and a five-page

affidavit from Williamson.3 ICC objected to Williamson’s affidavit, arguing that it addressed issues

about which Williamson was not designated to testify, did not address causation, and was not




        3
          Also attached to the Jacobs’ response was Biggs’s incident report listing the cause of the
second fire as rekindling of cellulose insulation and the deposition testimony of Gary Langshaw, an
assistant fire chief who witnessed smoldering insulation after the first fire.

                                                   7
competent expert testimony because it made conclusory allegations and was not credible or free from

contradictions. The trial court sustained ICC’s objections and, thus, did not consider the affidavit

when granting ICC’s motions for summary judgment. On appeal, the Jacobs assert that the trial

court erred in excluding Williamson’s affidavit.

                The only evidence presented by the Jacobs that would suggest that ICC’s product was

a cause of their house fire comes from Williamson. Thus, whether the Jacobs raised a material fact

issue as to causation turns on whether probative weight can be given to Williamson’s expert

testimony. A no-evidence summary judgment is proper if the only evidence offered by the

nonmovant to prove an essential element of the claim cannot be given weight by the court. Praytor

v. Ford Motor Co., 97 S.W.3d 237, 240 (Tex. App.—Houston [14th Dist.] 2002, no pet.). The

burden is on the proponent of expert testimony to show that the testimony is both relevant to the

issues in the case and based upon a reliable foundation. E.I. du Pont de Nemours & Co., Inc. v.

Robinson, 923 S.W.2d 549, 557 (Tex. 1995). To be relevant, the evidence must be “sufficiently tied

to the facts of the case that it will aid the jury in resolving a factual dispute,” and to be reliable, the

opinion must be based on principles or techniques that are “grounded ‘in the methods and procedures

of science.’” Id. at 556-57 (quoting Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 589

(1993)). To determine reliability, the supreme court has stated that a trial court should undertake a

“rigorous examination” of the facts on which the expert relies, the method by which the expert draws

an opinion from those facts, and how the expert applies the facts and methods to the case at hand.

Mack Trucks, 206 S.W.3d at 579.




                                                    8
                In Robinson, the supreme court listed six nonexclusive factors a trial court

may consider in making the threshold determination of admissibility: (1) the extent to which

the theory has been or can be tested; (2) the extent to which the technique relies upon the subjective

interpretation of the expert; (3) whether the theory has been subjected to peer review and/or

publication; (4) the technique’s potential rate of error; (5) whether the underlying theory or technique

has been generally accepted as valid by the relevant scientific community; and (6) the non-judicial

uses that have been made of the theory or technique. 923 S.W.2d at 557. These factors may not

“fit” all types of expert testimony; however, that does not relieve the court of its responsibility to

evaluate reliability of the testimony. Gammill v. Jack Williams Chevrolet, Inc., 972 S.W.2d 713,

724 (Tex. 1998).

                Conclusory statements made by an expert witness are insufficient summary judgment

evidence. Anderson v. Snider, 808 S.W.2d 54, 55 (Tex. 1991). It is the basis of the witness’s

opinion, and not the witness’s qualifications or his bare opinions alone, that can settle an issue as a

matter of law—“a claim will not stand or fall on the mere ipse dixit of a credentialed witness.”

Burrow v. Arce, 997 S.W.2d 229, 235 (Tex. 1999). The expert must explain the basis of his

statements to link his conclusions to the facts. Earle v. Ratliff, 998 S.W.2d 882, 890 (Tex. 1999).

There cannot be too great an “analytical gap” between the expert’s opinion and the facts upon which

he relies. Gammill, 972 S.W.2d at 726-27 (quoting General Elec. Co. v. Joiner, 522 U.S. 136, 146

(1997)). An expert who is trying to determine causation should carefully consider alternative causes;

the failure to rule out other causes of the damage renders the opinion little more than speculation.

Robinson, 923 S.W.2d at 559.



                                                   9
       1.      Williamson’s deposition testimony

               In his deposition testimony, Williamson stated that both insulations caused the second

fire at the Jacobs’ house. During the deposition, ICC’s attorney questioned Williamson about how

the rekindling occurred and which insulation caused it:


       Q.      Why do you think that the underlying smoldering insulation wouldn’t have
               self-extinguished? . . .

       A.      We had the fire.

       ....

       Q.      So because it happened, it must not have. . . . Is that your opinion?

       A.      That’s correct.

       ....

       Q.      [L]et me give you a hypothesis. The old insulation smoldered and caused a
               second fire. Can you disprove that?

       A.      Yes. I just don’t think there is, they, all cellulose insulations smolder, and
               they have a propensity to smolder, and I don’t think you can distinguish
               between the two.

       Q.      In reality, Dr. Williamson, wouldn’t you agree, you have no idea which
               insulation particles smoldered and then ignited and caused the second fire
               . . . . Is there any possible way to tell?

       A.      They both could have smoldered.

       Q.      I’m asking you which one smoldered and caused the second fire in this case,
               specifically.

       ....

       A.      I don’t think we know.



                                                10
ICC’s attorney also asked about what facts Williamson was relying on to support his opinion:


       Q.     What definite evidence are you relying on in stating that no other material
              could have caused the second fire? I’m—your definite evidence, if you could
              list it for me, I would appreciate it.

       A.     Well, what my opinion is is that the reasonable scientific certainty, the
              insulation caused it. I have identified other potential causes, like arson. I
              haven’t ruled that out today. I haven’t ruled out arson . . . . To a reasonable
              scientific certainty, I have, because I know the propensity of insulation.

       ....

       Q.     What evidence do you have or what facts are you relying on to support your
              opinion that the International Cellulose product, as opposed to the first layer
              of insulation, caused the second fire?

       A.     We don’t have any, there is no way to distinguish between the two.

       Q.     Okay. So if there is no way to distinguish between the two, then there is also
              no way to say that one, as opposed to the other, caused the second fire?

       A.     I’m not distinguishing between one as opposed to the other.

       Q.     Okay. So is it fair to say that we don’t know if the second fire was caused by
              the first layer or the second layer of insulation?

       A.     I think that both contributed.

       Q.     You think they could have, or they actually did?

       A.     I think they did. . . . I’m saying that those products both had the propensity
              to smolder. One doesn’t have a greater propensity. They both smolder, and
              they had surface contact over a large area. They are both going to smolder,
              and they caused the rekindling.

       ....

       Q.     Do you know if the smoldering insulation traveled through the International
              Cellulose product?



                                                11
       A.      I think so.

       Q.      Okay. How do you know that?

       A.      The two are going to act the same.


               Williamson’s statement that both insulations smoldered and caused the Jacobs’

second fire did not amount to more than mere speculation. Williamson stated that the insulation did

not self-extinguish, because “[w]e had the fire.” When asked specifically which layer smoldered and

caused the second fire, he stated, “I don’t think we know,” and when asked what evidence he was

relying on to determine that ICC’s product smoldered as opposed to the underlying layer of

insulation, he stated, “We don’t have any, there is no way to distinguish between the two. . . . I’m

not distinguishing between one as opposed to the other.” The basis for his opinion appears to be that

because the Jacobs’ attic contained cellulose insulation and because all cellulose insulation has a

propensity to smolder, the second fire must have been caused by both layers of cellulose insulation.

There is an analytical gap, however, between stating that cellulose insulation has a propensity to

smolder and concluding that ICC’s product actually smoldered and caused the fire. For instance,

even assuming both layers of insulation smoldered after the first fire, the record reveals that the fire

department removed large portions of smoldering insulation and could have removed all of the

smoldering ICC insulation. Thus, it appears equally plausible that the smoldering began solely in

the underlying layer of insulation and that without smoldering in that layer the fire would not have

reignited.   We conclude that the “analytical gap” between the facts Williamson relied

upon—cellulose insulation’s presence in the Jacobs’ attic and its propensity to smolder—and his

opinion that both insulations caused the second fire is too great. See Gammill, 972 S.W.2d at 727.

                                                  12
               In addition, Williamson’s opinion does not adequately address alternative causes of

the fire. He stated that he had considered other potential causes, specifically mentioning arson and

that arson could not be ruled out, but that he determined to a “reasonable scientific certainty” that

the insulation caused the fire. Williamson’s assurance that he had determined to a “reasonable

scientific certainty” that insulation caused the rekindling is not sufficient without some explanation

of the basis for his opinion. See Schaefer v. Texas Employers’ Ins. Ass’n, 612 S.W.2d 199, 205

(Tex. 1980) (“To ignore the substance of [the expert’s] testimony and accept his opinion as ‘some’

evidence simply because he used the magic words ‘reasonable probability’ effectively removes this

Court’s jurisdiction over any case requiring expert opinion testimony.”). Williamson did not name

any other potential causes, nor did he explain how he ruled out the other potential causes.

               In this case, while circumstantial evidence may be sufficient to point to some cellulose

insulation as the cause of the second fire, that is not enough. Because there were two types of

cellulose insulation in the Jacobs’ house, there must also be some evidence that it is more likely than

not that the insulation manufactured by ICC was a cause of the fire. See Gaulding v. Celotex Corp.,

772 S.W.2d 66, 68 (Tex. 1989) (requiring plaintiff to prove which defendant supplied product

causing injury); see also City of Keller v. Wilson, 168 S.W.3d 802, 813 (Tex. 2005) (“In claims or

defenses supported only by meager circumstantial evidence, the evidence does not rise above a

scintilla . . . if jurors would have to guess whether a vital fact exists.”). Williamson does not point

to any evidence supporting his theory that both insulations caused the fire. When ICC’s attorney

asked Williamson how he can be sure that the smoldering did not take place solely in the underlying

layer of insulation, Williamson stated that the two layers were indistinguishable. While proving



                                                  13
causation may be difficult that does not excuse the plaintiff from introducing some evidence of

causation. Schaefer, 612 S.W.2d at 205. Williamson’s failure to rule out other causes of the fire

renders his opinion little more than speculation. See Robinson, 923 S.W.2d at 559.

                Because there is too great an “analytical gap” between Williamson’s opinion and the

facts he relied upon and because Williamson failed to rule out other causes of the fire, we conclude

that the trial court did not err in finding that his deposition testimony did not constitute more than

a scintilla of probative evidence to raise a genuine issue of material fact as to causation.


        2.      Admissibility of Williamson’s affidavit

                The trial court excluded the only other evidence the Jacobs submitted to show

causation, an affidavit from Williamson. We review the trial court’s exclusion of the affidavit for

an abuse of discretion. Mack Trucks, 206 S.W.3d at 578.

                In his affidavit, which was filed after ICC filed its summary judgment motions,

Williamson does not discuss the theory he presented in his deposition testimony that both insulations

smoldered and caused the fire. Instead, after recounting his qualifications, Williamson avers that

ICC had a duty to warn installers that it is unsafe to allow old cellulose insulation to remain in

buildings, a duty to train installers in proper installation techniques, and a duty to instruct installers

to warn consumers that existing cellulose insulation should be removed before installing ICC’s

product. The affidavit then introduces a new theory of how the fire occurred—“[t]he installation of

new insulation over old, deteriorated and contaminated insulation created a hazardous condition in

the Jacobs’ attic” and the new cellulose insulation “prevented detection of the smoldering sub-layers

of insulation in the Jacobs’ attic after the first fire.”

                                                    14
               One ground ICC relied upon in challenging Williamson’s affidavit was that it was

not competent expert testimony because it contained conclusory allegations and was not credible or

free from contradictions. See Anderson, 808 S.W.2d at 55. A review of Williamson’s affidavit

reveals that it suffers from the same problems as his deposition testimony. Williamson does not

provide any evidentiary support for his assertion that new cellulose insulation prevented detection

of smoldering sublayers of insulation nor does he rule out alternative causes of the fire. Especially

when viewed in light of his earlier deposition testimony that smoldering took place in both layers

of cellulose insulation, we cannot say that the trial court abused its discretion in excluding

Williamson’s affidavit.


                                          CONCLUSION

               We conclude that the Jacobs failed to produce evidence raising a genuine issue of

material fact showing that ICC’s insulation was a cause in fact of the fire that destroyed their house.

Because causation is a required element of each of the Jacobs’ claims, the trial court properly granted

summary judgment, and we affirm the judgment.




                                               Jan P. Patterson, Justice

Before Justices Patterson, Pemberton and Waldrop

Affirmed

Filed: April 27, 2007

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