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.