                                  NO. 07-01-0115-CV

                             IN THE COURT OF APPEALS

                      FOR THE SEVENTH DISTRICT OF TEXAS

                                     AT AMARILLO

                                        PANEL A

                                   MARCH 13, 2002

                         ______________________________


           TRACY COOK-PIZZI AND HUSBAND, JOE PIZZI, APPELLANTS

                                           V.

VAN WATERS & ROGERS, INC., A SUBSIDIARY OF UNIVAR, ET AL., APPELLEES


                       _________________________________

             FROM THE 99TH DISTRICT COURT OF LUBBOCK COUNTY;

          NO. 94-546,148-B; HONORABLE MACKEY K. HANCOCK, JUDGE

                        _______________________________


Before BOYD, C.J., and REAVIS and JOHNSON, JJ.


      Tracy-Cook Pizzi and her husband Joe Pizzi present one issue containing five sub-

issues challenging the summary judgment1 that they take nothing on their claim for


      1
         Although Tex. R. Civ. P. 166a does not prohibit the presentation of a combination
traditional and no-evidence motion, the better practice is to file two separate motions.
Grant v. Southwestern Elec. Power Co., 20 S.W.3d 764, 768 (Tex.App.–Texarkana 2000,
pet. granted); Kelly v. LIN Television of Texas, L.P., 27 S.W.3d 564, 569 (Tex.App.--
Eastland 2000, pet. denied).
personal injuries under the Deceptive Trade Practices-Consumer Protection Act2 (hereafter

DTPA) and claims of negligence and products liability against Van Waters and Rogers,

Inc., Degussa Corporation, E. I. Du Pont De Nemours and Company, Du Pont Chemicals,

a division of E. I. Du Pont De Nemours and Company, and Du Pont Chemical and Energy

Operations, Inc. Based upon the rationale expressed herein, we affirm.


         Tracy Cook-Pizzi, an ICU nurse employed by St. Mary of the Plains Hospital, and

her husband, Joe Pizzi, brought the underlying action for injuries she claims were caused

by fumes from a sink drain in an ICU room of the Hospital. Tracy claims the fumes were

generated in March 1992, when one of her co-employees at the Hospital poured

chemicals, including hydrogen peroxide, into a clogged sink with water standing in it to

clean the drain.


         Before the occurrence, the Hospital employed James McDonald, a waste water

consultant, d/b/a Controlled Aqua Systems, 3 to study and submit a waste water treatment

study for the Hospital in 1991. On April 30, 1991, he submitted a written study to the

Hospital. According to the report, a process by which ozone is added directly to the waste

stream produced by an on-site generator and a process that adds a 50% hydrogen

peroxide solution to the waste stream in the sump in the basement of the Hospital were


         2
             Tex. Bus. & Com. Code Ann. §§ 17.46-17.826 (Vernon 1987 & Pamph. Supp.
2002).
         3
        The Pizzis’ action against McDonald has been severed and the consultant is not
a party to this appeal.

                                            2
considered. Both procedures oxidize material or solids in the waste water stream so that

the oxidized material remains fluid and free flowing. McDonald preferred the hydrogen

peroxide process because (1) the setup cost was substantially less than the cost of

installing a DAF unit required for ozonization, (2) it would not require any more labor than

the existing procedure of applying an enzyme solution, and (3) containers of the hydrogen

peroxide solution can be carried to other areas of the Hospital to maintain the smaller

sewer lines. (Emphasis added). Several on-site jar tests were conducted of effluent

samples to confirm, among other things, that very high concentrations of the hydrogen

peroxide solution would not generate heat or any condition that would create a hazardous

condition, and the results of the analysis conducted by a testing laboratory were provided

to the Hospital.


       McDonald also conducted an in-service training program and provided an audio-

visual training tape which was furnished by Degussa. The report reflects that employee

participation was good and a test was given to all employees after the presentation. The

report contained the following warning:


       It may sound redundant, but when personnel are using Hydrogen Peroxide
       Solutions, IT IS MANDATORY THAT ALL THE SAFETY AND HANDLING
       PROCEDURES that have been presented be followed EXACTLY!


(Emphasis in original). According to a letter dated May 2, 1991, from McDonald to Jim

Price, Director of Plant Operations for the Hospital, during a casual visit at a local store,



                                             3
Price told McDonald the Hospital had tried using hydrogen peroxide to clean a clogged

drain in a sink located in the kitchen. McDonald’s letter concluded:


      I further reminded you that while I did not recommend the use of Hydrogen
      Peroxide in drains, it would clean them out. Personnel must be careful not
      to use any other chemicals either before or after the addition of the Hydrogen
      Peroxide.


By his deposition, McDonald testified that he did not approve of the use of hydrogen

peroxide in sink drains, but because of pressure from the Hospital Director of Plant

Operations, he did write guidelines for pouring hydrogen peroxide in drains with smaller

pipes than sewer pipe. Du Pont and Degussa supplied hydrogen peroxide to Van Waters

in bulk and Van Waters marked the chemical in 55-gallon drums bearing a Van Waters

label and sold it to the Hospital. Du Pont and Degussa provided material safety data

sheets (MSDS)4 to Van Waters and these sheets and the Van Waters sheets were

provided to the Hospital.


      Because multiple parties are involved, the grounds for the three motions for

summary judgment are not uniform, and the claims against Du Pont, Degussa, and Van

Waters are not common, we briefly summarize the claims against each party, the grounds

of the motions, and posture of the case before commencing our consideration of the issues

presented. After alleging that Tracy was exposed to fumes produced after hydrogen

peroxide was poured into a sink drain in an ICU room, by a paragraph in their fourth


      4
          Occupational Safety and Health Standards, 29 C.F.R. § 1910.1200 (2000).

                                            4
amended original petition, the Pizzis sought damages based on theories of strict liability,

negligence, breach of warranty (specifically for a particular purpose), and section 17.46(b)

(5) and (23) of the DTPA.5 All the Pizzis’ claims were based on their contention that Du

Pont, Degussa, and Van Waters were required to provide adequate MSDS sheets to Tracy

and her employer and that they failed to adequately warn Tracy of the dangers of hydrogen

peroxide.6 Also, the Pizzis allege that Degussa and Van Waters (not Du Pont) knew or

should have known of the particular purpose for which the chemical was to be used at the

Hospital, but failed to warn McDonald and the Hospital of the dangers, thereby breaching

their warranty of fitness for a particular purpose.7


           Presenting similar but not entirely common defenses, Van Waters, Degussa, and

Du Pont filed their motions for summary judgment. As grounds they alleged:




       5
      No special exceptions were lodged against the global pleading. A motion for
summary judgment cannot be used as a substitute for a special exception. Massey v.
Armco Steel Co., 652 S.W.2d 932, 934 (Tex. 1983).
       6
       Among other allegations, the paragraph alleges that “[t]he waste water treatment
program then put in place was inadequately designed and/or marketed and not fit for the
purposes intended,” but it does not identify the party charged with the design and
marketing responsibility. Because the briefs and summary judgment evidence demonstrate
that McDonald designed and/or marketed the waste water treatment system and he was
also named as a party but has been severed from this cause, questions of the design and
marketing of the waste water treatment are not presented for consideration.
       7
        The Pizzis do not contend that Du Pont breached any warranty of fitness for a
particular purpose.

                                              5
                           Grounds of Motions for Summary Judgment


 Degussa                                  Du Pont                                  Van Waters


 a. Pizzis’ claims for negligence         a. No evidence that Pizzis are           a. No evidence that Tracy was a
 and strict liability should be           consumers.                               consu m er.
 denied because the product’s use
                                          b. Using industrial strength hydrogen    b. Pizzis’ negligence and strict liability
 w a s not a n inte n d e d o r
                                          peroxide as a drain cleaner is not an    claim s should be denied because
 foreseeable use.
                                          intended or reasonably fo reseeable      using industrial strength hydrogen
 b. Pizzis’ claims for breach of          use of the prod uct.                     peroxide as a drain cleaner is not an
 warranty of fitness for particular                                                intended or reasonably foreseeable
                                          c.    Pizzis do not allege that
 purpose fails becau se there is no                                                use of the prod uct.
                                          defendant knew or should have
 evidence (1) of the pro duct’s
                                          known and no evidence that               c.    Pizzis’ claims for breach of
 intended use, (2) that Degussa
                                          defendant kn ew of the Ho spital’s       im plied warranty of fitness for a
 knew     of    th e   H o s p i ta l’s
                                          unforeseeable use or that the            particular purpose should be denied
 unforeseeable use, and (3) that
                                          Hospital relied on defendant to          because there is no evidence that
 the Hospital relied on Degus sa to
                                          select a drain cleaner.                  defendant knew of the Hospita l’s
 select a drain cleaner.
                                                                                   unforeseeable use or that the
                                          d.     Pizzis’ negligence and strict
 c. No evidence that Tracy was a                                                   Hospital relied on defendant to select
                                          liability claims should be denied
 consumer pursuant to the DTPA.                                                    a dra in cleaner.
                                          because Van W aters and the
 d. Degussa adopted all of Du             Ho spita l wer e so phis ticate d        d.     Pizzis’ negligence and strict
 Pont’s grounds.                          comm ercial purchasers of industrial     liability claims should be dismissed
                                          strength hydrogen peroxide.              because th e H ospital was a
 Motion based on Rule 166a (b)
                                                                                   sophisticated comm ercial purchaser
 and (i) of the Texas Rules of C ivil     e.     Pizzis cannot prove that
                                                                                   of indus trial strength hydrogen
 Proced ure.                              defendant sold the product which
                                                                                   peroxide.
                                          allegedly harm ed plaintiff or had any
                                          relation to that p rodu ct.              Motion based on Rule 166a (b) and
                                                                                   (i) of the Texa s Rules of C ivil
                                          Motion based on Ru le 166a (b) and
                                                                                   Procedure.
                                          (i) of the Texas Ru les of C ivil
                                          Procedure.




Although the Pizzis’ claims against Du Pont, Degussa, and Van Waters were not common

and the three motions for summary judgment were not uniform, by one response the Pizzis

presented their issues in opposition to the motions for summary judgment and their issues

on appeal as follows:



                                                          6
 Pizzis’ response to all motions                           Issues presented on appeal
 (a) Plaintiff was a consumer under the DTPA.              (a) The Hospital’s use of hydrogen peroxide was
                                                           foreseeable and not m isuse.      In an y even t,
                                                           m anufacturers have a duty to warn of risks
                                                           associated with misuse.



 (b) Pouring hydrogen peroxide down the drain at the       (b) Van W ate rs and D egussa bre ached their
 Hospital was not an unforeseeable use and                 warranty of fitnes s for a particular p urpo se.
 defendants m isstate the law of s trict liability.



 (c) Van W aters and De guss a k new or should have        (c) The learned intermediary defense does not
 known of the particular purposes for which the            absolve defendants.
 hydrogen peroxide was to be used and that the
 Hospital relied on them.



 (d) The   Hosp ital was not a so phisticated user.        (d) Plaintiff was a consumer under the DTPA.

 (e) Du Pont is a proper defendant under alternative       (e) The hydrogen peroxide was manufactured by
 liability.                                                either Degussa or Du Pont; it is their burd en to
                                                           exculpate themselves.



The Pizzis did not present any objections in the trial court contending that the motions did

not conform to the requirements of Rule 166a (b), (c), and (i), or objections to the form or

admissibility of the summary judgment evidence in the trial court. Before commencing our

analysis, we first set out the appropriate standards of review.


                             Summary Judgment Standard of Review
                                                Rule 166a(c)


       In reviewing a summary judgment, this Court must apply the standards established

in Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 548-49 (Tex. 1985), which

are:


                                                       7
      1. The movant for summary judgment has the burden of showing that there
      is no genuine issue of material fact and that it is entitled to judgment as a
      matter of law.


      2. In deciding whether there is a disputed material fact issue precluding
      summary judgment, evidence favorable to the non-movant will be taken as
      true.


      3. Every reasonable inference must be indulged in favor of the non-movant
      and any doubts resolved in its favor.


      For a party to prevail on a motion for summary judgment, he must conclusively

establish the absence of any genuine question of material fact and that he is entitled to

judgment as a matter of law. Tex. R. Civ. P. 166a(c). A movant must either prove all

essential elements of his claim, MMP, Ltd. v. Jones, 710 S.W.2d 59, 60 (Tex. 1986), or

negate at least one essential element of the non-movant's cause of action. Randall's Food

Markets, Inc. v. Johnson, 891 S.W.2d 640, 644 (Tex. 1995). Once the movant has

established a right to summary judgment, the non-movant has the burden to respond to

the motion for summary judgment and present to the trial court any issues that would

preclude summary judgment. City of Houston v. Clear Creek Basin Authority, 589 S.W.2d

671, 678 (Tex. 1979); Barbouti v. Hearst Corp., 927 S.W.2d 37, 64 (Tex.App.--Houston [1st

Dist.] 1996, writ denied). Issues which the non-movant contends preclude the granting of

a summary judgment must be expressly presented to the trial court by written answer or

other written response to the motion and not by mere reference to summary judgment

evidence. McConnell v. Southside School Dist., 858 S.W.2d 337, 341 (Tex. 1993). Issues


                                           8
not expressly presented to the trial court in writing shall not be considered on appeal as

grounds for reversal. Tex. R. Civ. P. 166a(c). Further, all theories in support of or in

opposition to a motion for summary judgment must be presented in writing to the trial court.

Casso v. Brand, 776 S.W.2d 551, 553 (Tex. 1989). When a summary judgment does not

specify or state the grounds relied on, the summary judgment will be affirmed on appeal

if any of the grounds presented in the motion are meritorious. Carr v. Brasher, 776 S.W.2d

567, 569 (Tex. 1989); Insurance Co. Of N. Am. v. Security Ins., 790 S.W.2d 407, 410

(Tex.App.--Houston [1st Dist.] 1990, no writ).


               No-Evidence Summary Judgment Standard of Review
                                       Rule 166a(i)


       Rule 166a(i) entitled “No-Evidence Motion,” provides that a party may move for

summary judgment on the ground that there is no evidence of one or more essential

elements of a claim or defense on which an adverse party would have the burden of proof

at trial. When a summary judgment does not specify or state the grounds relied on, it will

be affirmed on appeal if any of the grounds presented in the motion are meritorious. Carr,

776 S.W.2d at 569; Insurance Co. Of N. Am., 790 S.W.2d at 410. Where a motion is

presented under Rule 166a(i) asserting there is no evidence of one or more essential

elements of the non-movant's claims upon which the non-movant would have the burden

of proof at trial, the movant does not bear the burden of establishing each element of its

own claim or defense as under subparagraph (a) or (b). Rather, although the non-moving



                                             9
party is not required to marshal its proof, it must present evidence that raises a genuine

fact issue on the challenged elements. See Tex. R. Civ. P. 166a, Notes and Comments.


      Because a no-evidence summary judgment is essentially a pretrial directed verdict,

we apply the same legal sufficiency standard in reviewing a no-evidence summary

judgment as we apply in reviewing a directed verdict. Roth v. FFP Operating Partners, 994

S.W.2d 190, 195 (Tex.App.--Amarillo 1999, pet. denied); Jackson v. Fiesta Mart, Inc., 979

S.W.2d 68, 70 (Tex.App.--Austin 1998, no pet.). Thus, our task as an appellate court is

to ascertain whether the non-movant produced any evidence of probative force to raise a

fact issue on the material questions presented. Id. We consider all the evidence in the

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

rendered, disregarding all contrary evidence and inferences. Merrill Dow Pharmaceuticals

v. Havner, 953 S.W.2d 706, 711 (Tex. 1997), cert. denied, 523 U.S. 1119, 118 S.Ct. 1799,

140 L.Ed.2d 939 (1998). 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. Fiesta Mart, Inc., 979 S.W.2d at 70-71. 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.” Havner, 953 S.W.2d at 711.




                                            10
                                       DTPA Claim8


       The Pizzis’ claim under the DTPA is common to Degussa, Du Pont, and Van

Waters. By sub-issue D, the Pizzis contend the trial court erred in granting summary

judgment because Tracy was a “consumer” under the DTPA. We disagree. In order to

have standing to maintain their action under the DTPA, the Pizzis must demonstrate that

Tracy was a consumer of the goods or services of Degussa, Du Pont, and Van Waters as

the term is applied in section 17.45(4) of the DTPA, that she acquired the goods or

services by purchase or lease, and that the goods or services form the basis of their

complaint. Lukasik v. San Antonio Blue Haven Pools, 21 S.W.3d 394, 400 (Tex.App.--San

Antonio 2000, no pet.); Vinson & Elkins v. Moran, 946 S.W.2d 381, 406-07 (Tex.App.--

Houston [14th Dist.] 1997, writ dism’d by agr.). Tracy’s standing as a consumer is a

question of law.      Hedley Feedlot, Inc. v. Weatherly Trust, 855 S.W.2d 826, 831

(Tex.App.–Amarillo 1993, writ denied); Metropolitan Life Ins. Co. v. Haney, 987 S.W.2d

236, 242 (Tex.App.--Houston [14th Dist.] 1999, pet. denied). Although the statute does not

require the consumer to be a direct purchaser, Kennedy v. Sale, 689 S.W.2d 890, 891-92

(Tex. 1985), the transaction must be specifically required by or intended to benefit the party

claiming consumer status. Lukasik, 21 S.W.3d at 401. Moreover, an incidental benefit to

an employee is not sufficient to create standing as a consumer. Brandon v. American

Sterilizer Co., 880 S.W.2d 488, 492 (Tex.App.--Austin 1994, no writ.). As a nurse working



       8
           Tex. Bus. & Com. Code Ann. § 17.45(4) (Vernon Pamph Supp. 2002).

                                             11
for the Hospital, Tracy’s status as a consumer is not determined by the existence of a

contractual relationship; rather, it is determined by the parties’ relationship to the

transaction. See Arthur Andersen v. Perry Equipment Corp., 945 S.W.2d 812, 815 (Tex.

1997).


         In Metropolitan Life, the court held that MetLife’s primary purpose in developing and

selling software to its agents was not for the benefit of the agents, but was incidental to

MetLife’s ultimate goal to increase the sale of its products.          987 S.W.2d at 243.

Accordingly, an agent who bought the software was not a consumer under the DTPA. In

support of Tracy’s status as a consumer, the Pizzis cite Kennedy v. Sale, 689 S.W.2d 890

(Tex. 1985), and contend the Hospital bought the hydrogen peroxide for Tracy’s benefit;

however, they do not make any reference to the summary judgment evidence to support

such contention and we have found none. Applying the appropriate standard of review,

we conclude the summary judgment evidence presents no evidence to raise a genuine

issue of material fact of Tracy’s status as a consumer. Sub-issue D is overruled as to Du

Pont, Degussa, and Van Waters.


                   Hospital Use to Clean Drains Foreseeable (Misuse)
                            and Learned Intermediary Defense
                                   Du Pont and Degussa


         By sub-issue A, the Pizzis contend the Hospital’s use of industrial strength hydrogen

peroxide was foreseeable and not misuse, and in any event, manufacturers have a duty


                                              12
to warn of risks associated with misuse.9 By sub-issue C, the Pizzis contend that the

learned intermediary defense does not absolve Du Pont, Degussa, and Van Waters.

Because these issues involve similar issues and evidence, they will be considered

together.


       We commence our analysis by noting that the Pizzis do not contend the Hospital

based its decision to use the hydrogen peroxide on the recommendation of either Du Pont

or Degussa. Instead, they contend that “based on McDonald’s recommendation, the

hospital used 50% and 35% hydrogen peroxide in the sewage sump and to maintain clear

sewer drain lines.” Among other things, Du Pont10 and Degussa alleged that the Pizzis’

claims of negligence and strict liability should be denied because Van Waters and the

Hospital were sophisticated commercial purchasers of industrial strength hydrogen

peroxide. Accordingly, citing Munoz v. Gulf Oil Co., 732 S.W.2d 62, 65 (Tex.App.--Houston

[14th Dist.] 1987, writ ref’d n.r.e), Du Pont and Degussa urged that they owed no duty to

warn the ultimate consumer. According to the Pizzis’ response, “Van Waters is one of the

larger distributors of chemicals in the world with 104 locations in North America and Puerto

Rico.” Van Waters maintained a tank farm in Dallas where it would repackage bulk

materials, such as hydrogen peroxide into 55-gallon drums with Van Waters labels and


       9
       Although the issue presented in the trial court is not identical to the issue presented
on appeal, we conclude that it substantially complies with the rule that all issues in
opposition to a motion for summary judgment must be presented in writing to the trial court.
Casso, 776 S.W.2d at 553.
       10
            Degussa adopted Du Pont’s motion.

                                             13
then truck the materials to its branch in Odessa and elsewhere. Although the Pizzis

contended that the Hospital was not a sophisticated user, they did not contend that Van

Waters was not a sophisticated user. Moreover, by their appellate brief, the Pizzis

acknowledge that Van Waters passed along the warnings from Du Pont and Degussa and

had more knowledge regarding the dangers of hydrogen peroxide than McDonald.

Because the issue of Van Waters’s status as a learned intermediary and the resulting

defense were not expressly presented to the trial court by the Pizzis in their response or

otherwise, it may not be considered on appeal as grounds for reversal. Tex. R. Civ. P.

166a(c); Casso, 776 S.W.2d at 553.


      Moreover, the Pizzis’ claims of negligence and strict liability are premised on the

alleged duty of Du Pont and Degussa to adequately warn of potential misuse of their

products. Yet, by their argument, they acknowledge that Du Pont and Degussa did provide

MSDS sheets, which provided in part:


                                                  Du Pont
      Decom position:      Contam ination and heat m ay cause self-accelerating exoth erm ic
      decomposition with oxygen, gas and stea m rele ase that can cause dangerous pressures.
      Reacts dangerously with rust, dust, dirt, iron, copper, heavy metals or their salts (such as
      m ercuric oxide or c hloride), alk alis and with organic m aterials (especially vinyl monom ers).
      ...
      Fire and Explosion Hazards
      Strong oxidizer. Contact with clothing or combustibles may cause fire. C ontac t with org anic
      liquids or vapors m ay cause im m ediate fire or e xplosion, es pecially if heated. Under certain
      circumstances, detonation may be delayed. Oxygen released from hydrogen peroxide may
      force organic or hydrogen vap ors into an exp losive rang e. Follow appropriate National Fire
      Protection Association (NFPA) codes.




                                                     14
                                           Degussa
      Dang er! This product is a strong oxidizer which may release oxygen and promote the
      com bus tion of flam m able m aterial.
                                             ***



In addition to training given to Hospital maintenance personnel, by his letter of May 2,

1991, McDonald reminded the Hospital that he did not recommend that hydrogen peroxide

be used in drains.


      According to the Pizzis, the hydrogen peroxide was poured into the drain by a

hospital employee. Even though the Pizzis do not allege that Tracy’s injuries resulted from

her use of the chemical, they contend that Du Pont and Degussa had the duty to provide

her with adequate warning of hazards of the chemical by the MSDS sheets. However, 29

C.F.R. § 1910.1200 (b) provides in part:


       (b) Scope and application. (1) this section requires chemical manufacturers
       or importers to assess the hazards of chemicals which they produce or
       import, and all employers to provide information to their employees about the
       hazardous chemicals to which they are exposed, by safety data sheets, and
       information and training. In addition, this section requires distributors to
       transmit the required information to employers.


(Emphasis added). Although, the regulation requires that the MSDS sheets be provided

to the employer, it imposes the duty of warning and training employees on the employer.

Because the Pizzis did not challenge the adequacy of the warning in the trial court, that

issue is not presented for review. Tex. R. Civ. P. 166a(c). Accordingly, sub-issues A and

C are overruled as to Du Pont and Degussa.



                                              15
                                         Van Waters


        By sub-issue A, the Pizzis contend the Hospital’s use of industrial strength

hydrogen peroxide was foreseeable and not a misuse, and that in any event, Van Waters

had a duty to warn of risks associated with misuse. By sub-issue C, they contend that the

learned intermediary defense does not absolve Van Waters. In the trial court and on

appeal, Van Waters asserted that the Pizzis’ negligence and strict liability claims should

be denied because (1) using industrial strength hydrogen peroxide as a drain cleaner is not

an intended or reasonably foreseeable use of the product, and (2) the Hospital was a

sophisticated commercial purchaser of industrial strength hydrogen peroxide. Van Waters

contends it did not have a duty to further warn because the Hospital was a sophisticated

purchaser. Munoz v. Gulf Oil Co., 732 S.W.2d 62, 65 (Tex.App.--Houston [14th Dist.] 1987,

writ ref’d n.r.e.). By their response in the trial court, the Pizzis contended that the Hospital

was not a sophisticated user; however, on appeal that issue is not presented. See Tex.

R. App. P. 38.1(e); Ajibade v. Edinburg General Hosp., 22 S.W.3d 37, 40 (Tex.App.---

Corpus Christi 2000, no pet.); Rayl v. Borger Economic Development Corp, 963 S.W.2d

109, 114 (Tex.App.--Amarillo 1998, no pet.). Thus, our review is limited to consideration

of whether the Hospital’s use of the chemical was foreseeable and not misuse and whether

warnings were given.


        Regarding warnings, Van Waters passed along the MSDS sheets and provided

them to the Hospital. Also, in connection with his study, McDonald had tests run by an


                                              16
outside laboratory and the results were furnished to the Hospital. McDonald notified the

Hospital by letter that he did not recommend that the chemical be used in lavatory drains.

Notwithstanding these warnings and the Hospital’s own experience with the chemical that

when placed in the kitchen sink drain, it effervesced and bubbled, the Hospital used the

chemical in the ICU lavatory as a drain cleaner. We conclude that warnings were given,

but because the adequacy of the warnings is not presented for review, sub-issues A and

C are overruled as to Van Waters.


                     Warranty of Fitness for Particular Purpose
                               Degussa and Van Waters


      By their no-evidence motions for summary judgment, Degussa and Van Waters both

contended that there was no evidence that (1) they knew of the chemicals intended use

as a drain cleaner, or (2) the Hospital relied on Degussa or Van Waters to select a drain

cleaner. By sub-issue B, the Pizzis contended that Degussa and Van Waters breached

their implied warranty of fitness for a particular purpose in failing to provide a product

suitable for sewage drain line treatment. We disagree.


      Citing section 2.315 of the Texas Business and Commerce Code Annotated

(Vernon 1994), the Pizzis contended that Degussa and Van Waters knew or should have

known of the Hospital’s particular purpose of pouring hydrogen peroxide into the sewer

system for pretreatment of waste water in the building before it entered the municipal

sewer system. Because the Pizzis’ pleadings, response, and appellate brief demonstrate


                                           17
that the particular use made the basis of the underlying suit was the use of hydrogen

peroxide in a sink drain in an ICU room, we will review the issue as involving that particular

use. Section 2.315 provides:


       § 2.315 Implied Warranty: Fitness for Particular Purpose


       Where the seller at the time of contracting has reason to know any particular
       purpose for which the goods are required and that the buyer is relying on the
       seller’s skill or judgment to select or furnish suitable goods, there is unless
       excluded or modified under the next section an implied warranty that the
       goods shall be fit for such purpose.


Although the no-evidence motions for summary judgment expressly challenged the

element of reliance on no-evidence grounds, the Pizzis’ response to the motion does not

address reliance. Because the issue of reliance by the Hospital on the skill or judgment

of Degussa or Van Waters to furnish a suitable drain cleaner was not presented to the trial

court in writing, the issue cannot be considered on appeal. Tex. R. Civ. P. 166a(c); Casso,

776 S.W.2d at 553.


       Moreover, as mentioned above, by his written report dated April 30, 1991, McDonald

submitted a study for the treatment of Hospital waste water. The report suggested a

method by which ozone would be added directly to the waste stream by an on-site

generator or another method by which a 50% hydrogen peroxide solution would be added

to the sewage in the sump which was located in the basement of the Hospital. Among

other matters, the Pizzis submitted the deposition of McDonald as summary judgment


                                             18
evidence. By their brief, the Pizzis submit that McDonald’s study indicated that the

chemical would also be used in lavatories; however, there is no summary judgment

evidence demonstrating the study provided to the Hospital was also provided to Van

Waters or Degussa. Also, the Pizzis contend that by facsimile, a Hospital employee

inquired about using the chemical in lavatories.       However, as previously noted, by

argument elsewhere in their brief, the Pizzis do not contend that they used hydrogen

peroxide with a concentration of 50% in the sump and 35% in the sinks in the hospital

room in reliance on Degussa and Van Waters. To the contrary, they assert that the

Hospital took such action based upon McDonald’s recommendation.               Additionally,

McDonald had certain tests conducted by an outside laboratory and the results were

furnished to the Hospital. Accordingly, applying the appropriate standard of review, we

conclude that the Pizzis’ summary judgment evidence does not raise a genuine issue of

material fact as to their reliance on Van Waters or Degussa to select a drain cleaner. Sub-

issue B is overruled.     Our disposition of the foregoing sub-issues pretermits our

consideration of sub-issue E.


       Accordingly, the judgment of the trial court is affirmed.



                                                 Don H. Reavis
                                                   Justice


Publish.




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