The Dallas Court of Appeals recently addressed summary judgment practice in a rare en banc opinion. At issue was whether the defendants’ no-evidence motion for summary judgment adequately challenged the elements of plaintiffs’ claims by listing the elements and then stating that the plaintiffs had no evidence to support "one or more" of the elements
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.
Can the non-movant in a summary judgment context use the movant’s evidence (attached to support a traditional motion for summary judgment) to challenge no-evidence grounds for summary judgment on appeal?
According to the El Paso Court of Appeals, the answer is "no."
The Texarkana Court of Appeals held that a no-evidence motion for summary judgment need only identify the challenged element in order to comply with Rule 166a(i). Plaintiff argued that the motion must list all of the elements and identify the challenged element(s). The court of appeals disagreed and held the motion sufficient if it "merely reference[s] the element…