                                                                  United States Court of Appeals
                                                                           Fifth Circuit
                                                                          F I L E D
                 IN THE UNITED STATES COURT OF APPEALS
                         FOR THE FIFTH CIRCUIT                            August 17, 2005

                                                                     Charles R. Fulbruge III
                                                                             Clerk
                                  No. 05-20151
                                Summary Calendar



DWYN L. DUPREE

                                               Plaintiff-Appellant,

versus

VALERO ENERGY CORPORATION

                                               Defendant-Appellee.

                        --------------------
           Appeal from the United States District Court
                for the Southern District of Texas
                       USDC No. 4:03-CV-4986
                        --------------------

Before JOLLY, DAVIS, and OWEN, Circuit Judges.

PER CURIAM:*

     In this civil diversity case,1 Dwyn L. Dupree, a former

employee   at   a    gas     station   owned    by   defendant   Valero     Energy

Corporation’s       former    subsidiary,      appeals   the   district    court’s

summary judgment in Valero’s favor on Dupree’s negligence claim.

Dupree alleges that workplace exposure to gasoline fumes with the

chemical   additive        t-amyl   methyl   ether    (TAME)   exacerbated      his

preexisting medical conditions — gastro esophageal reflux disease


     *
      Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
     1
      28 U.S.C. § 1332(a)(1).
                           No. 05-20151
                                -2-

(GERD), hiatal hernia, and hemorrhoids — and caused him to develop

bilateral maxillary sinus disease.

     Valero moved for summary judgment, arguing that there is no

evidence that Dupree’s alleged exposure to gasoline fumes and TAME

caused his injuries.     In addition to the pleadings and other

evidence on file, Valero submitted evidence that included Dupree’s

deposition testimony, his medical records, and expert testimony

that Dupree’s alleged exposure to gasoline fumes and TAME did not

cause his injuries.   Valero also submitted a “Summary Report” and

other documents that discuss the components of gasoline and TAME in

general and the possible effects of exposure, including workplace

exposure to service station workers.   The “Summary Report” states

that “the reported health effects of gasoline inhalation include

intoxication, headaches, blurred vision, dizziness, nausea, eye

nose, and throat irritation, and dizziness and mild anesthesia.”

The report also indicates that TAME can be absorbed dermally and

may cause central nervous system depression.   There is no mention

of any injuries similar to those alleged to have occurred in this

case.

     Dupree did not file an opposition to the motion for summary

judgment or any controverting evidence.   Instead, he contends the

evidence Valero submitted in support of its motion raises a genuine

issue of material fact on causation.   Specifically, Dupree argues

that the “Summary Report” along with his medical records proves

that exposure to gasoline fumes and TAME caused his injuries.
                                No. 05-20151
                                     -3-

Dupree provided no expert witness evidence, and in fact, withdrew

his expert witness designations, maintaining that expert testimony

is not required in this case because the hazards associated with

gasoline fumes is common knowledge.

     The    district   court    granted   Valero’s   motion   for   summary

judgment    and   dismissed    Dupree’s   claims   with   prejudice.   The

district court concluded that expert testimony was required to

establish a causal connection, but Dupree produced no expert

witness who could link his medical conditions to gasoline or TAME

exposure.    The court also determined that Dupree’s medical records

and the documents discussing gasoline and TAME components and

exposure risks did not raise a genuine issue of material fact on

the causation issue.

     We review a summary judgment de novo, applying the same

standard applied by the district court.2             Summary judgment is

proper if no genuine issue of material fact exists and the moving

party is entitled to judgment as a matter of law.3             The parties

agree that Texas substantive law applies in this diversity case.4


     2
      Allstate Ins. Co. v. Disability Servs. of the Southwest,
Inc., 400 F.3d 260, 262-63 (5th Cir. 2005).
     3
      FED. R. CIV. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317,
322 (1986) (“[T]he plain language of Rule 56(c) mandates the entry
of summary judgment . . . against a party who fails to make a
showing sufficient to establish the existence of an element
essential to that party’s case, and on which that party will bear
the burden of proof at trial.”).
     4
     See Erie R.R. Co. v. Tompkins, 304 U.S. 64 (1938); Hamburger
v. State Farm Mut. Auto. Ins. Co., 361 F.3d 875, 884 (5th Cir.
2004) (“‘[W]e apply federal standards of review to assess “the
                                No. 05-20151
                                     -4-

        There is no expert testimony supporting Dupree’s claims,

Dupree has disclaimed any intent to rely on expert testimony, and

the deadline to designate expert witnesses had passed when the

district court ruled on the summary judgment motion.                Moreover,

there is nothing in the “Summary Report,” Dupree’s medical records,

or any other document in the record that indicates a link between

Dupree’s alleged chemical exposure and his alleged injuries.                The

medical records do not in any way state or demonstrate, even by

implication, that Dupree’s alleged injuries were caused by gasoline

exposure. There is no evidence in the record that Dupree’s alleged

injuries were caused by exposure to gasoline fumes or TAME.               On the

record      before   the   court,   such   a   conclusion   would    be    pure

speculation.     Because there is no evidence of an essential element

of Dupree’s claims, Valero is entitled to judgment as a matter of

law.5

        In passing, Dupree also asserts that the district court abused

its discretion by granting Valero’s motion to quash Dupree’s




sufficiency or insufficiency of the evidence in relation to the
verdict,” but in doing so we refer to state law for “the kind of
evidence that must be produced to support a verdict.”’” (quoting
Ayres v. Sears, Roebuck & Co., 789 F.2d 1173, 1175 (5th Cir.
1986))); Thrash v. State Farm Fire & Cas. Co., 992 F.2d 1354, 1356
(5th Cir. 1993) (“In a diversity case state law provides the
elements of the plaintiff's case.” (citation omitted)).
        5
      On appeal, Dupree also asserts that Valero is liable as a
manufacturer of TAME, but these claims are not supported by a fair
reading of the pleadings in this case. Moreover, because causation
is also an essential element of a products liability claim, our
analysis of Dupree’s negligence claim is dispositive of his
products liability claim.
                                  No. 05-20151
                                       -5-

subpoena requesting a certified copy of Valero’s Material Safety

Data       Sheets   for   TAME.   Because   Dupree   offers   no   supporting

argument, analysis, or authority, the argument is waived.6

       For the foregoing reasons, the judgment is AFFIRMED.




       6
      See FED. R. APP. P. 28(a)(9) (requiring appellant’s brief to
include “the argument, which must contain . . . appellant’s
contentions and the reasons for them, with citations to the
authorities and parts of the record on which the appellant
relies”); see also L&A Contracting Co. v. S. Concrete Servs. Inc.,
17 F.3d 106, 113 (5th Cir. 1994) (holding an argument waived for
failure to cite authority).
