Affirmed; Opinion Filed January 23, 2018.




                                             In The
                               Court of Appeals
                        Fifth District of Texas at Dallas
                                      No. 05-16-00577-CV

                           LUIS ZAMORA, Appellant
                                    V.
                    CHAMPION COOLER CORPORATION, Appellee

                       On Appeal from the County Court at Law No. 2
                                  Grayson County, Texas
                           Trial Court Cause No. 2013-2-063CV

                             MEMORANDUM OPINION
                          Before Justices Bridges, Myers, and Schenck
                                   Opinion by Justice Myers
       Luis Zamora appeals the trial court’s judgment dismissing his claims against Champion

Cooler Corporation. Zamora brings two issues on appeal contending the trial court erred (1) by

excluding his expert witness on causation, denying his motion for a continuance of the trial, and

denying him leave to designate a new causation expert; and (2) by granting appellee’s motion for

summary judgment. We affirm the trial court’s judgment.

                                       BACKGROUND

       Zamora worked for appellee as an apprentice welder and metal cutter. On August 16,

2012, appellee directed Zamora to help cut a metal plate and fit it over a pit where a press

machine once stood. The pit contained grease, oil, moisture, and debris. Zamora used an oxy-

acetylene torch over the pit to cut the plate, and the torch vaporized some of the material in the

pit. Zamora inhaled the vapors, after which he had difficulty breathing. Zamora went to his
doctor, who determined he had pneumonia. Later, Zamora went to a pulmonologist, Dr. Muqad

Zuriqat, who determined Zamora either had asthma, or he had reactive airway dysfunction

syndrome (RADS) from the workplace fumes. After being off work for a month, Zamora was

about eighty percent improved. However, he continued to have breathing issues while he

worked for appellee, and he eventually quit working for appellee because he was too sick to

continue working there.

       Zamora sued appellee, who was a workers’ compensation nonsubscriber, for negligence

seeking actual and exemplary damages. Appellee filed no-evidence and traditional motions for

summary judgment, which the trial court initially denied. Appellee later moved to exclude the

evidence of Zamora’s expert witness on causation, Dr. Zuriqat. The trial court granted the

motion and ordered that Zamora was barred from presenting Dr. Zuriqat’s testimony regarding

causation of Zamora’s injuries. Appellee then moved for the trial court to reconsider appellee’s

motions for summary judgment. Zamora moved for a continuance of the trial date and for leave

to designate a new expert witness on causation. The trial court denied Zamora’s motion and

granted appellee’s motions for summary judgment, dismissing Zamora’s claims.

                             EXCLUSION OF EXPERT WITNESS

       In his first issue, Zamora contends the trial court erred by (a) granting appellee’s motion

to exclude Dr. Zuriqat’s testimony on causation, and (b) denying Zamora’s motion for a

continuance of the trial and for leave to designate a new causation expert.

                                      Standard of Review

       We review a trial court’s decision to exclude expert-witness testimony for an abuse of

discretion. Spin Doctor Golf, Inc. v. Paymentech, L.P., 296 S.W.3d 354, 359 (Tex. App.—

Dallas 2009, pet. denied).    A trial court abuses its discretion when its ruling is arbitrary,




                                               –2–
unreasonable, or without reference to any guiding rules or legal principles. Bocquet v. Herring,

972 S.W.2d 19, 21 (Tex. 1998).

       For an expert’s opinion to be admissible under Texas Rule of Evidence 702, the expert

must be qualified, and the expert’s opinion must be relevant to the issues in the case and based

upon a reliable foundation. TEX. R. EVID. 702; Exxon Pipeline Co. v. Zwahr, 88 S.W.3d 623,

629 (Tex. 2002); Gammill v. Jack Williams Chevrolet, Inc., 972 S.W.2d 713, 720 (Tex. 1998);

E.I. du Pont & de Nemours & Co. v. Robinson, 923 S.W.2d 549, 556 (Tex. 1995). The relevance

requirement, which incorporates traditional relevancy analysis under Texas Rules of Evidence

401 and 402, is met if the expert testimony is “sufficiently tied to the facts of the case that it will

aid the jury in resolving a factual dispute.” Robinson, 923 S.W.2d at 556 (quoting United States

v. Downing, 753 F.2d 1224, 1242 (3rd Cir. 1985)). Evidence that has no relationship to any

issue in the case does not satisfy rule 702 and is thus inadmissible under rule 702, as well as rules

401 and 402. Id.

       Rule 702’s reliability requirement focuses on principles, research, and methodology

underlying an expert’s conclusions. Id. at 557. Under this requirement, expert testimony is

unreliable if it is not grounded “in the methods and procedures of science” and is no more than

“subjective belief or unsupported speculation.” Id. (quoting Daubert v. Merrell Dow Pharm.,

Inc., 509 U.S. 579, 590 (1993)). Expert testimony is also unreliable if there is too great an

analytical gap between the data the expert relies upon and the opinion offered. Gammill, 972

S.W.2d at 727. In applying this reliability standard, however, the trial court does not decide

whether the expert’s conclusions are correct; instead, the trial court determines whether the

analysis used to reach those conclusions is reliable. Id. at 728.

       When an expert is challenged, the proponent of the expert opinion must prove the

reliability of each opinion. Mack Trucks, Inc. v. Tamez, 206 S.W.3d 572, 578 (Tex. 2006). The

                                                 –3–
proponent bears this burden “regardless of the quality or quantity of the opposing party’s

evidence on the issue and regardless of whether the opposing party attempts to conclusively

prove the expert testimony is wrong.” Whirlpool v. Camacho, 298 S.W.3d 631, 639 (Tex. 2009).

This burden includes ensuring that the expert’s testimony contains no internal inconsistencies.

See Gen. Motors Corp. v. Iracheta, 161 S.W.2d 462, 470–72 (Tex. 2005).

       The trial court serves as a gatekeeper to screen out irrelevant and unreliable expert

evidence. Zwahr, 88 S.W.3d at 629. The trial court has broad discretion to determine the

admissibility of evidence, and we review the trial court’s decision under an abuse of discretion

standard. Id. A trial court abuses its discretion when it acts without regard to any guiding rules

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

Whether a trial court abused its discretion in making an evidentiary ruling is a question of law.

State v. Bristol Hotel Asset Co., 65 S.W.3d 638, 647 (Tex. 2001).

       In chemical-exposure cases, the plaintiff must present evidence of both general and

specific causation. Brookshire Bros., Inc. v. Smith, 176 S.W.3d 30, 36 (Tex. App.—Houston

[14th Dist.] 2004, pet. denied). General causation asks whether a substance is capable of causing

a particular injury in the general population; specific causation asks whether that substance

caused a particular individual’s injury. Id. Proving one type of causation does not necessarily

prove the other, and logic dictates that both are needed for a chemical-exposure plaintiff to

prevail. Id. at 36–37. Generally, expert testimony is necessary to establish causation regarding

medical conditions outside the common knowledge and experience of jurors. JLG Trucking,

LLC v. Garza, 466 S.W.3d 157, 162 (Tex. 2015). Expert testimony is particularly necessary in

chemical-exposure cases, in which medically complex diseases and causal ambiguities

compound the need for expert testimony. Brookshire Bros., 176 S.W.3d at 36.




                                               –4–
                                                      Dr. Zuriqat’s Testimony

           Dr. Zuriqat testified1 he is board certified in pulmonology and critical-care medicine. He

examined Zamora on September 10, 2012, about three weeks after Zamora’s exposure to the

fumes. Zamora told him he had shortness of breath and coughing that started after he was

exposed to a large amount of smoke. Zamora told Dr. Zuriqat he had not had that problem

before. Dr. Zuriqat did a lung-function test on Zamora and reviewed his chest X-rays, all of

which were normal.                 He determined that Zamora had symptoms of asthma that were also

consistent with reactive airway dysfunction syndrome (RADS), which he stated “is a disorder

that sometimes—or can be or is induced by heavy exposure to anything in the environment—

some certain things in the environment that can cause—if it is inhaled in large amounts, can

cause some dysfunction in the bronchial tubes that mimics asthma.” Dr. Zuriqat put in his notes

under a question mark “possible asthma” and “possible reactive airway dysfunction syndrome.”

He stated he had seen other patients with RADS after inhalation of fumes.

           Two days later, Dr. Zuriqat signed a form stating Zamora would be able to return to work

on September 26. Dr. Zuriqat stated on the form, “due to smoke/chemical exposure the pt did

experience persistent cough with vomiting.” He testified he concluded Zamora’s symptoms

were “suspected or likely” due to smoke and chemical exposure based on Zamora’s statements

and that he had no reason to believe Zamora was dishonest with him. He testified there is no

way to be sure from testing that Zamora’s symptoms were due to the smoke and chemicals. He

testified that when he signed the form, he believed the probability was more than fifty percent

that Zamora’s cough and vomiting were due to the inhalation of fumes based on reasonable


     1
       Dr. Zuriqat’s testimony comes from his deposition. The only portions of the deposition in the appellate record are the excerpts attached to
Zamora’s summary judgment response and to his response to appellee’s motion to exclude Dr. Zuriqat’s testimony. Appellee’s motion to exclude
Dr. Zuriqat’s testimony cited to the deposition but did not attach it. Some of appellee’s citations are to portions of the deposition that are not
included in the appellate record. On appeal, neither party cites to those missing portions of the deposition. Accordingly, we base our
determination on the portions of Dr. Zuriqat’s testimony included in the appellate record and do not consider the effect, if any, of the portions of
Dr. Zuriqat’s testimony that may have been reviewed by the trial court but that are not included in the appellate record.



                                                                       –5–
medical probability. Dr. Zuriqat examined Zamora again on September 25, and Zamora said he

was about eighty percent improved.

       Dr. Zuriqat testified that RADS is “an irritant-induced type of asthma” and that the

irritant can be a gas, such as acetylene, or “fumes from grease and oil heated by a torch when

somebody is cutting something nearby.” He also testified that he could not determine whether

anything Zamora inhaled at appellee’s facility caused his lung condition.             He agreed his

impression as to the cause of Zamora’s condition was “speculation . . . a possibility.” He also

stated he did not know the amount of any substance or length of time Zamora breathed in to

cause his lung condition. He also stated that if exposure to a substance leads to coughing and the

symptoms persist after the person is no longer exposed to the substance, “that indicates that you

might have been exposed to a significant amount.”

       Zamora’s attorney asked Dr. Zuriqat if Zamora had RADS:

       Q. . . . So if we take your record from the first visit and until the last one, based on
       his improvement, are you of the opinion that when he first presented to your
       office on September 10th, 2012, he had respiratory airway dysfunction syndrome
       and that that condition had improved by the time you last saw him?

       A. I would say he could have, and it improved. He could. This is not a—you
       know, as a—this, yes, can suggest that, and can suggest, you know, asthma still,
       you know. And these are all subjective because the initial symptoms are
       subjective and improvement was subjective, too.

(Appellee’s objections omitted.)

       Dr. Zuriqat also testified he reached a “differential diagnosis” about Zamora on

September 10. “Differential diagnosis is a ‘patient-specific process of elimination that medical

practitioners use to identify the “most likely” cause of a set of signs and symptoms from a list of

possible causes.’” Neal v. Dow Agrosciences LLC, 74 S.W.3d 468, 473 n.3 (Tex. App.—Dallas

2002, no pet.) (quoting Minn. Mining & Mfg. Co. v. Atterbury, 978 S.W.2d 183, 194 n. 9 (Tex.

App.—Texarkana 1998, pet. denied) (citing Pick v. Am. Med. Sys., Inc., 958 F. Supp. 1151,


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1162–63 (E.D. La. 1997))). The differential diagnosis was what Dr. Zuriqat recorded in his

impressions on September 10, namely, that Zamora was suffering from either RADS or asthma.

                              Hearing on the Motion to Exclude

       At the hearing on appellee’s motion to exclude Dr. Zuriqat’s testimony, the trial court

was concerned that Dr. Zuriqat’s testimony was that Zamora had either “asthma, which many

people have, or RADS, which would be an exact diagnosis that plaintiff wants presented to the

jury.” Zamora’s attorney said Dr. Zuriqat “is not being presented to say [Zamora] has RADS.”

Instead, Zamora’s attorney stated the strategy was to present Dr. Zuriqat’s testimony that Zamora

either had asthma or he had RADS from exposure to the fumes in the workplace, and then

present evidence of Zamora’s lack of a prior history of asthma. However, the trial court was

concerned that Dr. Zuriqat’s testimony of an ambiguous diagnosis of asthma or RADS would not

aid the jury in making a determination that Zamora’s condition was RADS from inhalation of

fumes in the workplace and not asthma.

                               Zamora’s Argument on Appeal

       On appeal, Zamora quotes extensively from Dr. Zuriqat’s deposition and states, “From

the foregoing testimony the trial court should have reasonably inferred that Appellant’s injury

proximately caused by Appellee’s conduct was at least asthma-like symptoms, if not chemical

exposure.” We disagree. Dr. Zuriqat’s “impressions” were asthma or RADS. Dr. Zuriqat tied

the possibility of RADS to the workplace fumes, but he did not testify that if Zamora had asthma

then it resulted from the fumes. Instead, he observed that Zamora had no prior history of asthma

based on Zamora’s statements to him. However, even knowing Zamora’s prior lack of asthma,

Dr. Zuriqat did not testify that Zamora’s problems were caused by RADS and not asthma.

Instead, his “impressions” were asthma or RADS.




                                              –7–
          Zamora also points to Dr. Zuriqat’s testimony about the Medical Leave Act form. Dr.

Zuriqat wrote on the form that Zamora experienced persistent cough with vomiting “due to

smoke/chemical exposure.” Dr. Zuriqat testified that when he signed the form, he “believe[d]”

“at that time” “that the probability of this being the case was more than 50 percent.” However, at

his deposition more than two years later, Dr. Zuriqat did not testify Zamora’s problems were

“due to [RADS from] smoke/chemical exposure.” Instead he testified the problems were either

from RADS or asthma.

          In this case, the trial court could reasonably have concluded that Dr. Zuriqat’s inability to

tie Zamora’s injuries to his workplace-exposure to fumes and not to asthma made his testimony

unhelpful to the jury on the subject of causation. Zamora points to Dr. Zuriqat’s testimony that it

is impossible to determine whether Zamora’s breathing difficulties resulted from RADS or from

asthma because the symptoms are the same. Although this testimony explains why Dr. Zuriqat

could not identify RADS and rule out asthma as the cause of Zamora’s injuries, the trial court

could have concluded it did not make Dr. Zuriqat’s testimony on causation more helpful to a

jury.     We conclude the trial court did not abuse its discretion by excluding Dr. Zuriqat’s

testimony on the causation of Zamora’s injuries.2

          Zamora also contends in his statement of the first issue that the trial court erred by

denying his motion for continuance and for leave to designate a new expert witness on causation.

However, Zamora’s argument on appeal does not address this contention beyond the bare

conclusion that the trial court erred by denying the motion. Accordingly, we conclude Zamora

has not shown the trial court abused its discretion by denying the motion.

           We overrule Zamora’s first issue.


     2
       Whether the trial court would have abused its discretion by denying appellee’s motion to exclude Dr. Zuriqat’s testimony on causation is
not before us, and we express no opinion on that subject.



                                                                    –8–
                                   SUMMARY JUDGMENT

       In his second issue, Zamora contends the trial court erred by granting appellee’s

traditional and no-evidence motions for summary judgment.           We conclude the trial court

properly granted appellee’s no-evidence motion for summary judgment. Accordingly, we do not

address whether the trial court erred by granting the traditional motion for summary judgment.

       The same legal sufficiency standard of review that is applied when reviewing a directed

verdict is also applied when reviewing a no-evidence summary judgment. See Tex. Integrated

Conveyor Sys., Inc. v. Innovative Conveyor Concepts, Inc., 300 S.W.3d 348, 375 (Tex. App.—

Dallas 2009, pet. denied) (op. on motion for reh’g); RTLC AG Prods., Inc. v. Treatment Equip.

Co., 195 S.W.3d 824, 829 (Tex. App.—Dallas 2006, no pet.). When reviewing a no-

evidence summary judgment, we must determine whether the non-movant produced any

evidence of probative force to raise a fact issue on the material questions presented. Tex.

Integrated, 300 S.W.3d at 375; RTLC, 195 S.W.3d at 833.                       We review a no-

evidence summary judgment for evidence that would enable reasonable and fair-minded jurors to

differ in their conclusions. See Hamilton v. Wilson, 249 S.W.3d 425, 426 (Tex. 2008) (per

curiam); Wal–Mart, Stores, Inc. v. Spates, 186 S.W.3d 566, 568 (Tex. 2006) (per curiam); City of

Keller v. Wilson, 168 S.W.3d 802, 822 (Tex. 2005). We view all of the evidence in the light

most favorable to the party against whom the no-evidence summary judgment was rendered and

disregard all contrary evidence and inferences. See Smith v. O’Donnell, 288 S.W.3d 417, 424

(Tex. 2009); Merrell Dow Pharm. v. Havner, 953 S.W.2d 706, 711 (Tex. 1997).                  A no-

evidence summary judgment is improperly granted if the non-movant presents more than a

scintilla of probative evidence to raise a genuine issue of material fact. See Smith, 288 S.W.3d at

424. 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. See Merrell Dow, 953 S.W.2d


                                               –9–
at 711. When, as in this case, the trial court’s order granting summary judgment does not specify

the grounds relied on, we will affirm the summary judgment if any of the summary judgment

grounds are meritorious. FM Props. Operating Co. v. City of Austin, 22 S.W.3d 868, 872–73

(Tex. 2000); Cunningham v. Tarski, 365 S.W.3d 179, 186 (Tex. App.—Dallas 2012, pet.

denied).

       One of the grounds of appellee’s no-evidence motion for summary judgment was that

Zamora had no evidence that his injuries were caused by exposure to toxic fumes in the

workplace. Lay testimony can be sufficient to raise a fact question on proximate cause if general

experience and common sense would allow a lay person to fairly determine causation. Praytor

v. Ford Motor Co., 97 S.W.3d 237, 241 (Tex. App.—Houston [14th Dist.] 2002, no pet.). In

chemical-exposure cases, lay testimony is not sufficient because “medically complex diseases

and causal ambiguities compound the need for expert testimony.” Brookshire Bros., 176 S.W.3d

at 36; see Hair v. Church & Dwight Co., No. 05-03-01153-CV, 2004 WL 1615833, at *2 (Tex.

App.—Dallas July 20, 2004, no pet.) (mem. op.) (quoting Brookshire Bros.).

       After the trial court signed the order excluding Dr. Zuriqat’s testimony on causation,

Zamora had no expert evidence on the causation of his injuries. As Brookshire Brothers and this

Court’s opinion in Hair point out, expert testimony is necessary in this type of case to establish

causation. Because Zamora had no expert evidence of the causation of his injuries, the trial court

did not err by granting appellee’s no-evidence motion for summary judgment.

       In his reply brief, Zamora argues the summary judgment record shows the trial court

erred by granting the motion for summary judgment even without expert testimony on causation.

Zamora’s argument relies on the Fifth Circuit’s opinion in Austin v. Kroger Texas, L.P., 864 F.3d

326 (5th Cir. 2017) (per curiam). In that case, Austin, an employee at a Kroger grocery store,

was directed to clean an oily spill in the store’s restrooms. The store was out of “Spill Magic,” a

                                              –10–
substance put on spills to help clean them safely. While trying to clean the oily spill without

Spill Magic, Austin slipped and fell, breaking his leg. Id. at 327–28. Austin sued Kroger

alleging it failed to provide him with a necessary instrumentality to perform his job safely,

namely, Spill Magic. Id. at 328. The district court granted Kroger’s motion for summary

judgment. On appeal, the Fifth Circuit determined there was some evidence that Spill Magic

was a necessary instrumentality for Austin’s job and some evidence that Kroger had the duty to

supply Spill Magic. However, the Fifth Circuit did not reach the issue of causation because it

determined the district court erred by denying under the wrong rule Austin’s motion for

reconsideration of the court’s denial of his motion to file a surreply containing his doctor’s

expert report on causation. Id. at 328, 336–37. The opinion does not hold that causation under

those facts could be established without expert testimony. However, even if it did so hold, a slip

and fall on an oily floor resulting in a broken leg is much closer to a situation where a lay

person’s general experience and common sense would allow a causation determination than is

the situation in a chemical-exposure case.      See Brookshire Bros., 176 S.W.3d at 36. We

conclude Austin is not applicable to the case before us.

       Zamora also cites Herrmann v. Goff Custom Homes, L.P., No. 05-12-00318-CV, 2013

WL 4517274 (Tex. App.—Dallas Aug. 23, 2013, no pet.), concerning whether “Appellee

breached its duties to [Zamora] and thereby proximately caused or at least contributed to his

resulting injuries and damages.” However, Herrmann addressed only whether the defendant

owed the plaintiff a duty to warn of a dangerous condition. Id. The opinion did not address the

issue of causation, and the facts in that case, a person falling down an elevator shaft when a

guardrail gave way, do not involve the medically complex questions present in a chemical-

exposure case. We conclude Herrmann is not applicable.

       We overrule Zamora’s second issue.

                                               –11–
                                      CONCLUSION

      We affirm the trial court’s judgment.




                                                 /Lana Myers/
                                                 LANA MYERS
160577F.P05                                      JUSTICE




                                              –12–
                               Court of Appeals
                        Fifth District of Texas at Dallas
                                       JUDGMENT

LUIS ZAMORA, Appellant                               On Appeal from the County Court at Law
                                                     No. 2, Grayson County, Texas
No. 05-16-00577-CV         V.                        Trial Court Cause No. 2013-2-063CV.
                                                     Opinion delivered by Justice Myers. Justices
CHAMPION COOLER CORPORATION,                         Bridges and Schenck participating.
Appellee

     In accordance with this Court’s opinion of this date, the judgment of the trial court is
AFFIRMED.

        It is ORDERED that appellee CHAMPION COOLER CORPORATION recover its costs
of this appeal from appellant LUIS ZAMORA.


Judgment entered this 23rd day of January, 2018.




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