Fernando Chavez, Individually, and Cecilia Lopez, his wife, Individually v. Medtronic, Inc., a Foreign Corporation--Appeal from 168th District Court of El Paso County

COURT OF APPEALS

EIGHTH DISTRICT OF TEXAS

EL PASO, TEXAS

FERNANDO CHAVEZ, Individually and )

CECILIA LOPEZ, His Wife, Individually, ) No. 08-02-00332-CV

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Appellants, ) Appeal from the

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v. ) 168th District Court

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MEDTRONIC, INC., ) of El Paso County, Texas

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Appellee. ) (TC# 98-4314)

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MEMORANDUM OPINION

Fernando Chavez and his wife, Cecilia Lopez, appeal a summary judgment in favor of Medtronic, Inc. (AMedtronic@). On appeal, they raise four issues, arguing that the trial court erred in granting summary judgment in favor of Medtronic. We affirm.

In September 1990, Mr. Chavez suffered a work-related back injury. He was initially diagnosed with a bulging disc at L-4 and L-5 in his lower back. After unsuccessful conservative treatment, Mr. Chavez was referred to Dr. Teegarden who in March 24, 1994, diagnosed him with lumbar facet arthritis and arthralgia. Dr. Teegarden provided Mr. Chavez with a series of injections as treatment to relieve his back pain, but Mr. Chavez did not respond well to this treatment and the back pain persisted. Dr. Teegarden suggested implanting a spinal cord stimulation system (Amedical device@) manufactured by Medtronic into Mr. Chavez=s spine to relieve the pain. Mr. Chavez was provided with a brochure detailing how the medical device worked. On June 6, 1994, Dr. Teegarden implanted the medical device in Mr. Chavez=s back. The medical device provided Mr. Chavez with approximately nine months of pain relief.

In March 13, 1995, Mr. Chavez visited Dr. Teegarden and complained that the medical device was not working. In his medical report dated March 13, 1995, Dr. Teegarden noted that the epidural quad plus lead on the device had been fractured as a result of Mr. Chavez=s seizures. Mr. Chavez had complained of suffering seizures during the three weeks prior to the above office visit with Dr. Teegarden of March 13, 1995. It was later determined that Mr. Chavez had a large tumor on the right frontal parietal region of his brain. On July 28, 1995, Dr. Luis Vasquez performed surgery on Mr. Chavez and successfully removed the tumor. On June 7, 1996, Dr. Karl Andrew Goler performed surgery and removed the medical device from Mr. Chavez=s back.

On December 15, 1998, Appellants filed this lawsuit. Appellants sought money damages from Medtronic alleging six causes of action: (1) strict liability; (2) breach of warranty; (3) fraud; (4) misrepresentation; (5) corporate negligence; and (6) negligence/res ipsa loquitur. Appellants= original petition named Medtronic and Dr. Teegarden as defendants.[1]

On February 1, 1999, Medtronic filed an original answer in which it claimed that Appellants were barred from bringing their claims by the applicable statute of limitations. On June 15, 2000, Medtronic filed a motion for summary judgment on limitation grounds and

no-evidence grounds. In their response to Medtronic=s motion, Appellants argued for the first time the unsound mind tolling provision to Medtronic=s statute of limitations claim. Specifically, Appellants argued that A[a]lthough [Appellants] do not contend that the brain tumor and brain surgery were caused by the [medical device], evidence of [Mr. Chavez=s] seizure disorder, large brain tumor and post-operative diagnosis goes to the issue of tolling the limitations period because of his unsound mind/mental capacity.@ Appellants asserted that the summary judgment evidence showed there were genuine issues of fact regarding the challenged claims of defect and injury. Appellants, as summary judgment, evidence included the following: (1) Dr. Goler=s operative note for 6/7/96 surgery for Fernando Chavez; (2) Medtronic Implanted Device Identification Card; (3) Dr. Teegarden=s operative note for 6/6/94 surgery for Fernando Chavez; (4) Dr. Teegarden=s medical reports of 3/13/95 and 3/21/95; (5) Affidavit of Plaintiff Fernando Chavez; (6) Medtronic Patient Brochure on spinal cord stimulation; (7) Dr. Teegarden=s deposition excerpts; (8) Dr. Boris Kaim Discharge Summary for 7/28/95 surgery; (9) Dr. Luis Vasquez= operative report for 7/28/95 surgery; (10) Affidavit of Plaintiff, Cecilia Lopez; (11) Dr. Kenyon Behrens= medical report dated 6/1/98; and (12) Affidavit of Dr. Charles Marable, M.D., Plaintiff=s expert.

On September 27, 2001, Medtronic submitted a reply to Appellants= response to its motion and asserted that Appellants waived the unsound mind provision because they failed to plead it and that even if Appellants had not failed to plead the avoidance, they failed to produce any evidence as to raise a fact question on its application in this case. In addition, Medtronic alleged that Appellants failed to produce evidence raising a fact issue regarding their elements of fraud or misrepresentation claims. On November 8, 2001, the trial court granted summary judgment in favor of Medtronic without stating the grounds.

On December 10, 2001, Appellants filed a motion for new trial to set aside the trial court=s summary judgment order. In their motion, Appellants raised four points of error, asserting that the trial court erred in granting summary judgment because: (1) avoidance to the statute of limitations may be raised by an answer, motion or other responsive writing filed in the suit; (2) a genuine issue of fact existed regarding Mr. Chavez=s unsound mind and whether it tolled the statute of limitations; (3) a genuine issue of fact existed with regard to the claim of defect; and (4) more than a scintilla of evidence exists showing Mr. Chavez suffered pain and injury as a result of the medical device.

In its response to Appellants= motion for new trial, Medtronic again asserted that the unsound mind avoidance had been improperly pled and that even if properly pled, it would only apply to Mr. Chavez, not to Ms. Lopez. Medtronic also asserted that Appellants failed to produce any evidence raising a material issue of fact as to all their alleged claims except strict liability, and that the evidence produced to support that claim was incompetent. On January 23, 2002, the trial court granted Appellants= motion for new trial and vacated the summary judgment rendered in Medtronic=s favor.

Medtronic filed a motion for reconsideration or alternative partial reconsideration of the order granting new trial on February 21, 2002. In its motion, Medtronic asserted Appellants waived the unsound mind tolling provision because they failed to properly plead it. In the alternative, Medtronic asked the court to reinstate the summary judgment order with regard to all the claims, except the strict liability claims. On March 22, 2002, Appellants submitted an opposition and response to Medtronic=s motion to which Medtronic filed a response. On April 23, 2002, the trial court granted Medtronic=s motion for reconsideration and reinstated the order granting summary judgment in favor of Medtronic. On May 23, 2002, Appellants filed another motion for new trial, asserting the same points of error raised in their December 10, 2001 motion for new trial. Appellants= had asserted the same points of error raised in their December 10, 2001 motion for new trial. Appellants motion was apparently overruled by operation of law. Appellants now timely appeal the trial court=s summary judgment order.

DISCUSSION

On appeal, Appellants raise four issues, arguing that the trial court erroneously granted Medtronic=s limitations and its no evidence motion for summary judgment: (1) if it did so on the basis that avoidance of the statute of limitations must be raised affirmatively by the pleadings either in the original petition or in an amended petition; (2) because there is a genuine issue of material fact concerning Mr. Chavez=s unsound mind/mental incapacity and whether Mr. Chavez=s mental status tolled the limitation period; (3) because there is more than a scintilla of evidence that Appellee=s medical device was defective, unsafe, ineffective, and unreasonably dangerous; and (4) because there is more than a scintilla of evidence in the summary judgment record that Mr. Chavez suffered pain and injury as a result of the Appellee=s medical device.

In its reply brief, Medtronic contends that the trial court properly granted summary judgment because the limitations period has expired for all Appellants= six claims. Further, Medtronic asserts Appellants= reliance on the unsound mind provision to toll the limitations period was not properly pled and was therefore waived. Medtronic also asserts that Appellants failed to produce summary judgment evidence proving that Mr. Chavez was of unsound mind, that the medical device was defective or unreasonably dangerous, or that Mr. Chavez suffered an injury as a result of a defective medical device.

Standard of Review

The standard of review on appeal of a traditional summary judgment is whether the successful movant at the trial level carried the burden of showing that there is no genuine issue of material fact and that a judgment should be granted as a matter of law. KPMG Peat Marwick v. Harrison County Hous.Fin. Corp., 988 S.W.2d 746, 748 (Tex. 1999); Wyatt v. Longoria, 33 S.W.3d 26, 31 (Tex.App.--El Paso 2000, no pet.). Thus, the question on appeal is not whether the summary judgment proof raises a fact issue as to required elements of the movant=s cause or claim, but whether the summary judgment proof establishes, as a matter of law, that there is no genuine issue of material fact as to one or more elements of the movant=s cause or claim. Wyatt, 33 S.W.3d at 31; Duran v. Furr=s Supermarkets, Inc., 921 S.W.2d 778, 784 (Tex.App.--El Paso 1996, writ denied). In reviewing the evidence, we take as true all evidence favorable to the nonmovant, and we make all reasonable inferences and resolve any doubts, in the nonmovant=s favor. KPMG, 988 S.W.2d at 748; Duran, 921 S.W.2d at 784.

A no evidence summary judgment is essentially a pretrial directed verdict, and we apply the same legal sufficiency standard in reviewing a no evidence summary judgment as we apply in reviewing a directed verdict. Wyatt, 33 S.W.3d at 31; Moore v. K-Mart Corp., 981 S.W.2d 266, 269 (Tex.App.--San Antonio 1998, pet. denied). We review the evidence in the light most favorable to the respondent against whom the no-evidence summary judgment was rendered, disregarding all contrary evidence and inferences. Wyatt, 33 S.W.3d at 31; Merrell Dow Pharmaceuticals, Inc. v. Havner, 953 S.W.2d 706, 711 (Tex. 1997). A no-evidence summary judgment is improperly granted if the respondent brings forth more than a scintilla of probative evidence to raise a genuine issue of material fact. Wyatt, 33 S.W.3d at 31; See Tex.R.Civ.P. 166(a)(i). Less than a scintilla of evidence exists when the evidence is Aso weak as to do no more than create a mere surmise or suspicion@ of a fact. Wyatt, 33 S.W.3d at 31; Ruiz v. Government Employees Ins. Co., 4 S.W.3d 838, 840 (Tex.App.--El Paso 1999, no pet.), citing Kindred v. Con/Chem, Inc., 650 S.W.2d 61, 63 (Tex. 1983). More than a scintilla of evidence exists when the evidence Arises to a level that would enable reasonable and fair-minded people to differ in their conclusions.@ Wyatt, 33 S.W.3d at 31; Havner, 953 S.W.2d at 711. Where the trial court has granted summary judgment without stating the grounds for doing so, as here , we must consider all grounds for judgment presented in the motion and affirm if any has merit. Weiner v. Wasson, 900 S.W.2d 316, 317 (Tex. 1995).

Unsound Mind

In Issue Two, Appellants argue that the trial court erred in granting summary judgment in favor of Appellee because there is a genuine issue of material fact concerning Mr. Chavez=s unsound mind/mental capacity and whether Mr. Chavez=s mental status tolled the limitations period. Appellee urges that Appellants failed to bring forth competent evidence to show that Mr. Chavez was of unsound mind at the time his cause of action accrued.

An Aunsound mind@ tolls the statute of limitations. Grace v. Colorito, 4 S.W.3d 765, 769 (Tex.App.--Austin 1999, pet. denied); See Tex.Civ.Prac.&Rem.Code Ann. '16.001 (Vernon 2002). The limitations period is tolled for persons of unsound minds for two reasons: first, to protect persons without access to the courts; and second, to protect persons who are unable to participate in control, or understand the progression and disposition of their lawsuit. Hargraves v. Armco Foods, Inc., 894 S.W.2d 546, 548 (Tex.App.--Austin 1995, no writ); Grace, 4 S.W.3d at 769. To prevent summary judgment on an unsound-mind theory, the non-movant must produce specific evidence that would enable the trial court to conclude that he or she did not have the mental capacity to pursue litigation for a definite period of time, or must produce a fact-based expert opinion to testify to that effect. Grace, 4 S.W.3d at 769.

To establish Mr. Chavez=s unsound mind, Appellants rely on Mr. Chavez=s affidavit, Ms. Lopez=s affidavit, and the medical records of Dr. Teegarden, Dr. Boris Kaim, Dr. Vasquez, and Dr. Kenyon Behrens.

The following are excerpts from Mr. Chavez=s affidavit regarding his mental disability:

The medical report of Dr. Teegarden . . . confirms that I began having seizures in March of 1995. With those seizures, I would lose consciousness, fall and usually hit my head, and suffer loss of memory and confusion.

. . .

Although Dr. Vasquez took out my big brain tumor, I continued to suffer from seizures throughout 1995, 1996, 1997 and most of 1998.

. . .

Although I do not contend that my big brain tumor and brain surgery were caused by the Medtronic medical device in my back, I did suffer from a mental disability and unsound mind during this period, from the time of my initial seizures in March of 1995 until the fall of 1998.

During that period of time, I was substantially unable to provide food, clothing or shelter for myself, or to care for myself. My spouse, Cecilia Lopez, provided food, clothing, and shelter for me and cared for me.

Moreover, from March of 1995 until the fall of 1998, I could not manage my own financial affairs, and I would often suffer from memory loss, loss of consciousness and a blow to my head when I fell following one of my seizures. I had a lot of closed head injuries.

. . .

During that period of time from March of 1995 until the fall of 1998, my mental disability and unsound mind, caused me to have confusion, memory loss, poor coherence and poor judgment. I often became argumentative and aggressive toward those medical care providers who were trying to treat me and help me, as well as toward my spouse.

. . .

Finally, during that period of time, I would also leave home, for several months at a time, and wander around El Paso County. To date, I have no recollection of where I went or what I did. One time I ended in Los Angeles, California, not knowing how I got there, and had to have a bus ticket sent to me to return home.

Ms. Lopez=s affidavit is almost identical to that of Mr. Chavez. Ms. Lopez states:

Although Dr. Vasquez took out [Mr. Chavez=] brain tumor, I observed that [Mr. Chavez] appeared to continue to suffer from seizures throughout 1995, 1996, 1997 and most of 1998. He was diagnosed as having a seizure disorder.

Throughout that period, I observed that [Mr. Chavez] would appear to suffer a seizure, usually lose consciousness, fall and hit his head, then suffer memory loss and confusion.

I observed some seizures in which [Mr. Chavez] did not appear to lose consciousness, but the left side of his body would become weakened, causing his legs to collapse, resulting in a fall in which he often hit his head before anyone could get over to help him.

Ms. Lopez also testified in her affidavit as to Mr. Chavez=s memory loss, poor coherence and poor judgment, and to his going to California without knowing how or why he had gone.

The medical record from Dr. Teegarden=s office visit on March 20, 1995 states the following:

[Mr. Chavez] states he is well controlled, seizure free, since 03/13/95, when Dilantin therapy was instituted after talking to the neurologist Dr. Robert Schneider and medication has been continued since that time to present. The seizure activity appeared at that time to be petitmal type with good control with Dilantin therapy . . . .

Dr. Teegarden stated that Mr. Chavez=s prognosis was Agood.@

Additionally, a discharge summary prepared by Dr. Boris Kaim for the hospital stay of Mr. Chavez from July 15, 1995 to August 2, 1995, states the following:

At the time of admission, the neurologic examination was normal except for that the patient had some difficulty walking with the left lower extremity because of pain.

. . .

By August 1, 1995, the patient was doing much better. He was alert and calm. His speech was normal. He was friendly. There was a minimal, almost insignificant weakness in the left lower extremity. No further seizures.

Mr. Chavez was discharged and given Dilantin, the same medication prescribed by Dr. Teegarden to control his seizures. The report also states that on July 19, 1995, Mr. Chavez told the nurse that he had been using drugs and alcohol for the past six years after denying to Dr. Kaim the use of drugs.

On the discharge summary for a hospital stay from May 21, 1998 to May 28, 1998, Dr. Kenyon Behrens states that Mr Chavez complained of weakness in the left side associated with nausea, vomiting, back pain, left-sided weakness, and numbness. Mr. Chavez stated he fell and had a closed head injury. In addition, Mr. Chavez tested positive for cocaine and cannabinoids. Mr. Chavez became totally asymptomatic and was neurologically intact. He was discharged and reffered to a rehabilitation program.

In considering whether there was evidence tending to establish Mr. Chavez=s mental incapacity, we find that Appellants failed to produce any evidence that created a fact issue as to whether Mr. Chavez was of unsound mind. Appellants rely solely on Mr. Chavez=s and Ms. Lopez=s affidavits to show Mr. Chavez=s mental disability. Mr. Chavez=s and Ms. Lopez=s statements that Mr. Chavez was of unsound mind are legal conclusions that are insufficient to raise an issue of fact. See Brownlee v. Brownlee, 665 S.W.2d 111, 112 (Tex. 1984). The medical records, however, do not indicate that Mr. Chavez was of unsound mind during his doctor=s office visits or short-term stays in the hospital. Rather, the medical records indicate that Mr. Chavez=s seizures were controlled by medication. Nowhere in the medical records does any doctor make any reference to Mr. Chavez=s alleged unsound mind. Instead, Mr. Chavez was able to make decisions regarding his health as is shown by his decision to undergo brain surgery and the removal of the medical device in his back. Viewing the evidence in the light most favorable to Appellants, and disregarding all contrary evidence and inferences, we hold that there is less than a scintilla of evidence as to whether Mr. Chavez was of unsound mind. See Wyatt, 33 S.W.3d at 31. The evidence provided by Appellants Acreate[s] a mere surmise or suspicion@ of fact. See Wyatt, 33 S.W.3d at 31. The evidence does not support the claim that because Mr. Chavez suffered from a seizure disorder, Appellants were unable to participate and control a lawsuit within the appropriate limitations period. See Hargraves, 894 S.W.2d at 548; Grace, 4 S.W.3d at 769. We find that in reviewing the summary judgment evidence, Appellants failed to produce specific evidence that would enable a court to conclude that Mr. Chavez did not have the mental capability to pursue litigation during the limitations period. See Grace, 4 S.W.3d at 769. Issue Two is overruled.

Issue Two is dispositive and we do not reach the Appellants= remaining issues. We hold that the trial court properly rendered summary judgment. See Wyatt, 33 S.W.3d at 31; Tex.R.Civ.P. 166(a)(i). We affirm the judgment of the trial court.

February 19, 2004

DAVID WELLINGTON CHEW, Justice

Before Panel No. 2

Barajas, C.J., McClure, and Chew, JJ.

[1] On September 12, 2001, Dr. Teegarden was dismissed from the lawsuit.