Another disagreement over what constitutes no evidence of causation

Posted on September 14, 2010 by Hilaree Casada

I have said on various occasions (during admittedly nerdy conversations with colleagues) that this expert opinion or that piece of evidence surely constitutes no evidence as a matter of law and that no court could possibly see it differently.  But we all know that it is never quite that easy and never that clear cut.  The Beaumont Court of Appeals' recent 2-1 opinion in Pink v. Goodyear Tire & Rubber Company illustrates this point.

In Pink, the panel reversed a no evidence summary judgment rendered for Goodyear.  That reversal was based, in part, on the court's determination that the following expert testimony presented by Pink constituted some evidence of causation: 

I was Veryl Pink's treating oncologist. Mr. Pink was diagnosed with renal cell carcinoma, which was confirmed by biopsy. The ultimate cause of Mr. Pink's death was the progression of the disease.

Based upon reasonable medical probability it is my opinion that the cause of Mr. Pink's renal cell carcinoma was exposure to chemicals, more than likely benzene. In rendering this opinion I have reviewed Mr. Pink's medical records, the deposition testimony of Mr. Pink and three of his coworkers, the deposition of Dr. Radelat, and scientific literature.

The majority held that this testimony was sufficient to overcome a no evidence summary judgment as to causation.   (Slip op. at 12-13).  In so holding, the majority determined that (1) the testimony was not "conclusory as a matter of law," and (2)  the lack of an express ruling on Goodyear's reliability objections and absence of a Robinson hearing prevented the court from addressing those objections on appeal and from presuming that the trial court had sustained the objections. (Slip op. at 13, 22).

In his dissent, Chief Justice McKeithen opined that this testimony "amounts to no evidence regarding causation" and states that  "[t]his case presents a much more fundamental analytical gap than the deficiency found in Borg-Warner." (Slip op. at 25, 26).  He further stated that a Robinson hearing was not required because the testimony "amounts to no evidence." (Slip op. at 25)

 What do you think?  A copy of the opinion is available here.

 
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When does evidence of intent equate with causation?

Posted on November 10, 2009 by Mike Northrup

In Aquaplex, Inc. v. Rancho La Valencia, Inc., the Texas Supreme Court appears to have equated intent with causation in a fraud case.  Aquaplex sued Rancho for fraud.  Aquaplex asserted that it lost the sale of a piece of real property due to Rancho having filed a lis pendens on the property.  On appeal following an adverse verdict, Rancho argued that there was no evidence as to why Aquaplex lost the sale of the property and therefore there was no evidence of causation between the alleged fraud and Aquaplex's damages.  In its per curiam opinion, the Supreme Court holds that there was legally sufficient evidence because both parties knew of the offer for the property and Rancho testified it filed the lis pendens to prevent the sale. 

It is unclear how this holding fits with prior precedent holding that evil motive or intent does not necessarily establish a cause of action.  This opinion should give concern to those who file lis pendens. The purpose of lis pendens is give initial notice of a claim to property.  According to the Aquaplex decision, the filing of a lis pendens might well constitute a complete claim for fraud.

For appellate practitioners, there's another holding in Aquaplex that may be of interest.  The court holds that a Respondent need not raise an alternative ground for affirmance as a cross-point in response to the Petition for Review.  Rather, to request that the Supreme Court consider alternative grounds for affirmance raised in the court of appeals but not decided by that court, the respondent may raise those issues in the petition, the response to the petition, the reply, any brief, or a motion for rehearing.  Here, Rancho preserved a cross-point by raising it in its brief on the merits for the first time.

The court's opinion may be found here.

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