                                   NO. 07-12-00089-CV

                              IN THE COURT OF APPEALS

                       FOR THE SEVENTH DISTRICT OF TEXAS

                                          AT AMARILLO

                                           PANEL C

                                   NOVEMBER 29, 2012


                          CLARENCE DAVIS, JR., APPELLANT

                                              v.

               AETREX WORLDWIDE, INC., F/K/A APEX FOOT HEALTH
                        INDUSTRIES, INC., APPELLEE


            FROM THE 237TH DISTRICT COURT OF LUBBOCK COUNTY;

               NO. 2009-548,128; HONORABLE LESLIE HATCH, JUDGE


Before QUINN, C.J., and HANCOCK and PIRTLE, JJ.


                                           OPINION


       Appellant, Clarence Davis, Jr., appeals from the trial court’s granting of a no-

evidence motion for summary judgment in favor of appellee, Aetrex Worldwide, Inc.,

and resulting take-nothing judgment. In two issues, Davis contends that the trial court

erred in sustaining Aetrex’s objections to the opinions of his expert witness, and that the

trial court erred in granting Aetrex’s no-evidence motion for summary judgment. We will

affirm the judgment of the trial court.
                          Factual and Procedural Background


       On July 14, 2007, Davis, who is a diabetic, attended a community celebration in

his hometown of Seagraves, Texas. Davis arrived at the celebration at approximately

9:30 a.m. and stayed until approximately 6:00 p.m. Late in the afternoon, around 4:30

or 5:00 p.m., Davis began to complain that his feet felt as if they were burning. He was

taken home and, when his shoes were removed, it was discovered that the top of his

feet were blistered. Davis was taken to the emergency room at Seminole Memorial

Hospital where a physician treated his feet for blisters. Davis was sent home from the

emergency room that day.      Upon Davis’s return to the hospital ten days later, the

treating physician noted that his feet contained E. coli and staph aureus and that his

feet were necrotic. Davis was then transferred to a hospital in Lubbock for specialized

treatment. Subsequently, Davis underwent a below-the-knee amputation of both legs.


       At the time of Davis’s attendance at the community celebration, he was wearing

a pair of diabetic shoes that had been prescribed by the Veteran’s Hospital in Big

Spring, Texas. Davis had acquired the shoes in the fall of 2006. The shoes were

manufactured by Aetrex and shipped directly to Davis. The shoes in question were

black in color.


       Davis filed suit against Aetrex alleging negligence, gross negligence, product

liability, and breach of warranty. After certain discovery, Aetrex filed a traditional and

no-evidence motion for summary judgment.         Aetrex also filed an objection to the

testimony of Davis’s expert, Dr. Andrew Schneider. Ultimately, the trial court sustained



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Aetrex’s objections to Schneider’s testimony, and granted Aetrex’s no-evidence motion

for summary judgment.


      Davis appeals contending that the trial court erred in, 1) sustaining Aetrex’s

objections to the testimony of Schneider, and 2) granting Aetrex’s no-evidence motion

for summary judgment.


                               Dr. Schneider’s Testimony


      The trial court ruled that Dr. Schneider lacked the qualifications to testify

regarding the causal relationship between the shoes and the injury sustained by Davis.

In addition, the trial court ruled that Dr. Schneider lacked the qualifications to testify

regarding Davis’s marketing defect claim.       Finally, the trial court sustained Aetrex’s

objections that Dr. Schneider’s opinions were conclusory and speculative.


Standard of Review


      We review the trial court’s ruling excluding expert testimony for abuse of

discretion. See McIntyre v. Ramirez, 109 S.W.3d 741, 749 (Tex. 2003); Gammill v.

Jack Williams Chevrolet, Inc., 972 S.W.2d 713, 718-19 (Tex. 1998). A trial court abuses

its discretion when it acts in an arbitrary and unreasonable manner without any regard

to guiding rules or principles. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238,

241-42 (Tex. 1985).




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Applicable Law


       Rule 702 of the Texas Rules of Evidence permits a witness qualified as an expert

by knowledge, skill, experience, training, or education to testify on scientific, technical,

or other specialized subjects if the testimony would assist the trier of fact in

understanding the evidence or determining a fact in issue. TEX. R. EVID. 702. Whether

a witness is qualified as an expert is a preliminary question for the trial court to

determine. Id. 104(a); Gammill, 972 S.W.2d at 718. The burden to prove an expert’s

qualification is on the offering party. Yard v. DaimlerChrysler Corp., 44 S.W.3d 238,

241 (Tex.App.—Fort Worth 2001, no pet.) (citing Broders v. Heise, 924 S.W.2d 148,

151 (Tex. 1996)). Further, the offering party must demonstrate that the proposed expert

witness possesses expertise concerning the actual subject about which they are

offering an opinion. Gammill, 972 S.W.2d at 718.


                             Evidence and Expert’s Opinion


       Davis’s sole expert witness was Dr. Schneider. From the record before us, we

learn that Dr. Schneider is a practicing podiatrist who treats diabetic patients. He has

been practicing podiatry for approximately 19 years. Dr. Schneider states that he had

treated approximately 20 patients who had suffered sunburns on their feet and two

patients who had suffered chemical burns on their feet. He has never treated patients

who had injuries similar to the injuries suffered by Davis. Dr. Schneider has never

treated Davis personally. He did review the medical reports of Davis’s treatment at the

Seminole Memorial Hospital. Dr. Schneider had no knowledge of what the temperature

was on the day Davis suffered his injuries. He did not know what the cloud cover was

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like on the day of the injuries. Dr. Schneider did not know how long Davis’s feet were

exposed to direct sun light. Dr. Schneider did review an article printed in the Journal of

the American Podiatric Medical Association (JAPMA) regarding “Effect of Shoe Color on

Shoe Temperature and Potential Solar Injury to the Insensate Foot.”          He had not

reviewed, nor was he aware of, any other publications or studies having to do with heat

retention effects of different colored shoes.   Dr. Schneider testified in answer to a

question regarding heat retention, “I’m not a physicist, I’m a podiatrist.” Dr. Schneider

has never done any type of heat retention testing. Dr. Schneider stated that he is not

an expert in retail and packaging; in fact, he testified that he did not think he was the

one to ask about such matters. He did, however, opine that Aetrex should have warned

consumers that there was a risk to their feet when black or dark colored shoes were

worn in conditions of prolonged exposure to the sun. Dr. Schneider further stated that

he had never seen such a warning on any diabetic shoes, Aetrex or otherwise. Dr.

Schneider also was of the opinion that the absence of such a warning made the shoes

in question unreasonably dangerous and a proximate cause of the burns to Davis’s feet.


      Dr. Schneider’s opinions rely extensively on one published article. The JAPMA

article in question was published, according to the record, in July of 1998. A review of

the article reveals that when shoes were placed about 19 inches from an infrared heat

lamp, the black shoes became warmer quicker than the white shoes. It is interesting to

note that, in the discussion portion of the article, the authors state, “It is generally

recognized that darker material tends to absorb more heat than lighter colored material.”

There is nothing in the article that attempts to correlate the time the shoes were

exposed to the heat lamp to the natural variables of ambient temperature, cloud cover,
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effect of shade, or amount of time exposed to direct sun light. In fact, the article does

nothing more than conclude that darker colored shoes will become hotter than lighter

shoes when exposed to sun light.


      From this article, his medical education, treatment of patients and review of

Davis’s medical records, Dr. Schneider posits his opinions.        We find that, for the

reasons stated below, such opinions are not reliable, and are conclusory and

speculative. Further, Dr. Schneider is not qualified to render such opinions.


                                        Analysis


      Schneider’s opinion regarding causation goes to both the claim for strict liability

under products liability causes of action and to the negligence causes of action. In

each, Davis must demonstrate that the failure to take certain actions or the taking of

some actions on the part of Aetrex was the cause-in-fact of the injuries he suffered.

Both producing cause, in the products liability causes of action, and proximate cause, in

the negligence causes of action, require proof that Aetrex’s acts or omissions were a

substantial factor in bringing about the injury suffered and without which the harm would

not have occurred. Metro Allied Ins. Agency, Inc. v. Lin, 304 S.W.3d 830, 835 (Tex.

2009). In either circumstance, the failure is the same.


      There is no evidence that but for the wearing of black shoes, the injuries suffered

by Davis would not have occurred. See Ford Motor Co. v. Ledesma, 242 S.W.3d 32, 46

(Tex. 2007) (applying the but for causation requirement to a products liability case); Sw.

Key Program, Inc. v. Gil-Perez, 81 S.W.3d 269, 274 (Tex. 2002) (applying the but for

causation requirement to a negligence case). It is clear that Dr. Schneider’s opinion
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was rendered without any knowledge of the relevant facts surrounding the day Davis

suffered his injuries, such as, temperature, cloud cover, or how long Davis’s feet were

actually exposed to direct sun light.    Further, Dr. Schneider failed to provide any

testimony regarding the temperature at which he would expect blisters to form on

Davis’s feet. He did not talk to Davis or any members of his family nor did he treat the

wounds. Dr. Schneider simply reviewed the medical records, which reflected that there

had been significant blistering of Davis’s feet.    Dr. Schneider relies heavily on the

JAPMA article to fill in the blanks. However, the article in question also has a number of

analytical gaps as applicable to this case. Some of these gaps include the failure of the

article to correlate the effect of direct exposure to a heat lamp to those of direct

exposure to natural sun light, the ambient temperature which would be required to

replicate the heat lamp, the mitigating effects of cloud cover or shade, and the amount

of time a person would have to be exposed to direct sun light in order for his feet to

blister. These are the types of analytical gaps that the Texas Supreme Court discussed

in Gammill, 972 S.W.2d at 726. Essentially, what we have is Dr. Schneider testifying

that Davis wore black shoes, that black shoes absorb more heat than white shoes, and,

therefore, the black shoes caused the blisters. In short, all we have is Dr. Schneider’s

ipsi dixit. Such a gap in the analysis renders his opinion unreliable and speculative. Id.

at 728.   As such, the trial court did not abuse its discretion in sustaining Aetrex’s

objections to the testimony of Davis. See Downer, 701 S.W.2d at 241-42.


      Davis contends that, even if the trial court was correct in excluding Dr.

Schneider’s testimony, there was sufficient evidence of causation from the medical

records that would preclude the granting of a no-evidence motion for summary
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judgment. A review of the medical records that were submitted as summary judgment

evidence reflects that they identify the nature of the injury sustained by Davis, and

include some naked conclusions about the cause of the burns suffered by Davis.

Nothing in these records amounts to any evidence of causation regarding the burns to

Davis’s feet. As such, this evidence is not sufficient to defeat a no-evidence motion for

summary judgment.


        Because Davis’s causes of action each rely on the causation testimony of his

expert, Dr. Schneider, and we have affirmed the trial court’s sustaining of objections to

that testimony and because the medical records provide no evidence as to causation,

we affirm the trial court’s granting of Aetrex’s motion for summary judgment.

Consequently, we do not reach the other issues in Davis’s brief. See TEX. R. APP. P.

47.1.


                                      Conclusion


        Because there is no evidence of causation in the record, we affirm the trial

court’s granting of Aetrex’s motion for summary judgment.




                                                      Mackey K. Hancock
                                                          Justice




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