CITY OF DALLAS, Appellant v. FORREST FURGASON, GARY HALE, DUSTIN SCOGGINS, AND MICHAEL HAMRO, Appellees

REVERSE and RENDER and Opinion Filed September 18, 2007
 
 
 
In The
Court of Appeals
Fifth District of Texas at Dallas
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No. 05-06-00875-CV
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CITY OF DALLAS, Appellant
V.
FORREST FURGASON, GARY HALE, DUSTIN SCOGGINS, AND MICHAEL HAMRO, Appellees
 
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On Appeal from the County Court at Law No. 2
Dallas County, Texas
Trial Court Cause No. cc-03-10069-B
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MEMORANDUM OPINION
Before Justices Whittington, Wright, and FitzGerald
Opinion By Justice Wright
        The City of Dallas appeals the trial court's judgment awarding Forrest Furgason, Gary Hale, Dustin Scoggins, and Michael Hamro damages for personal injuries after they were exposed to Scourge, an insecticide the City sprayed to control mosquitos. In seven issues, the City contends the evidence is legally and factually insufficient to support the trial court's judgment. In a single cross-point, Furgason and Hamro contend the trial court erred by excluding their expert's opinion testimony on causation. For the reasons that follow, we sustain the City's legal sufficiency challenge on causation, overrule Furgason and Hamro's cross-point, reverse the trial court's judgment, and render judgment that appellees take nothing on their claims against the City.         In its second and third issues, the City contends the evidence is legally insufficient to prove appellees' injuries were caused by exposure to Scourge.   See Footnote 1  When, as here, an appellant attacks the legal sufficiency of an adverse finding on an issue on which it did not have the burden of proof, it must demonstrate that no evidence supports the finding. Croucher v. Croucher, 660 S.W.2d 55, 58 (Tex. 1983). We review the evidence presented at trial in the light most favorable to the jury's verdict, crediting evidence favorable to that party if reasonable jurors could, and disregarding contrary evidence unless reasonable jurors could not. Guevara v. Ferrer, 2007 WL 2457760, *3 (Tex. Aug. 31, 2007); City of Keller v. Wilson, 168 S.W.3d 802, 822 (Tex. 2005). We sustain a no-evidence point only when (1) there is a complete absence of evidence of a vital fact, (2) the court is barred by rules of law or of evidence from giving weight to the only evidence offered to prove a vital fact, (3) the evidence offered to prove a vital fact is no more than a scintilla, or (4) the evidence conclusively establishes the opposite of the vital fact. City of Keller, 168 S.W.3d at 810.
        To establish causation in a personal-injury suit, a plaintiff must prove that the defendant's conduct caused an event and that this event caused the plaintiff to suffer compensable injuries. Burroughs Wellcome Co. v. Crye, 907 S.W.2d 497, 499 (Tex. 1995). Chemical-exposure plaintiffs must prove both general and specific causation. Brookshire Brothers, Inc. v. Smith, 176 S.W.3d 30, 36 (Tex. App.-Houston [1st Dist.] 2004, pet. denied). General causation asks whether a substance is capable of causing a particular injury in the general population; specific causation asks whether that substance caused a particular individual's injury. Id. Proving one type of causation does not necessarily prove the other, and logic dictates that both are needed for a chemical-exposure plaintiff to prevail. Id.         In limited circumstances, non-expert evidence may be sufficient to support a finding of causation in cases where both the occurrence and the medical conditions complained of are such that the general experience and common sense of lay persons are sufficient to evaluate the conditions and whether they were probably caused by the occurrence. Guevara, at *5; Crye, 907 S.W.2d at 499. Generally, however, expert testimony is necessary to establish causation regarding medical conditions. Guevara, at *3; Coastal Tankships, U.S.A., Inc. v. Anderson, 87 S.W.3d 591, 603 (Tex. App.-Houston [1st Dist.] 2002, pet. denied). Expert testimony is particularly necessary in chemical-exposure cases, in which medically complex diseases and causal ambiguities compound the need for expert testimony. Brookshire Brothers, 176 S.W.3d at 36; Coastal Tankships, 87 S.W.3d at 603.
        Here, the record does not contain any expert testimony regarding either general or specific causation. Thus, we conclude the evidence is legally insufficient to show the causal connection between appellees' exposure to Scourge and their injuries. In reaching this conclusion, we necessarily reject appellees' contention that expert testimony is not necessary in this case. According to appellees, because (1) they each experienced symptoms including sore throats, runny noses, skin irritation, headaches, and fatigue within a short time after being sprayed, and (2) the material safety data sheet (MSDS) for Scourge lists such effects, there is a “logically traceable connection” between their exposure to Scourge and their physical complaints and expert testimony is not necessary. Evidence of an event followed closely by manifestation of or treatment for conditions which did not appear before the event raises suspicion that the event at issue caused the condition. Guevara, at * 4. However, suspicion is not legally sufficient to support a finding of legal causation. Id. And, the MSDS, has little value to a lay person without expert testimony to explain the link between levels of exposure, symptomology, and the toxicological information contained in the MSDS. Cf. Moore v. Ashland Chem., Inc., 151 F.3d 269, 278 (5th Cir. 1998) (district court entitled to find MSDS had limited value where expert did not know what tests were conducted in generating the MSDS and did not have information about level of exposure necessary to sustain warned-about injuries). Further, because this case involves varied and ambiguous symptoms which could be caused by factors other than exposure to Scourge, we cannot conclude it falls within the exception where both the occurrence and conditions complained of are such that the general experience and common sense of lay persons are sufficient to evaluate the conditions and whether they were probably caused by the occurrence. We sustain the City's legal sufficiency challenges in issues two and three. See Guevara, at * 5-6 (lay testimony legally insufficient to show causation between car accident and majority of hospitalization expenses); Moore, 151 F.3d at 278-80 (concluding expert opinion testimony based on temporal proximity and MSDS legally insufficient to show causation in chemical exposure case).
        Having concluded the evidence of causation is legally insufficient, we must now address Furgason and Hamro's conditional cross-point. Under this cross-point, Furgason and Hamro contend the trial court abused its discretion by excluding Dr. Alfred Johnson's testimony regarding causation. Furgason and Hamro maintain Johnson's testimony met the requirements of Texas Rule of Evidence 702, as well as those set forth in E.I. du Pont de Nemours & Co. v. Robinson, 923 S.W.2d 549 (Tex. 1995) and Merrell Dow Pharmaceuticals, Inc. v. Havner, 953 S.W.2d 706 (Tex. 1997). After reviewing the record in this case, we cannot agree.
        We review a trial court's decision to exclude an expert witness's testimony under an abuse of discretion standard. Robinson, 923 S.W.2d at 558; Jarrell v. Park Cities Carpet & Upholstery Cleaning, Inc., 53 S.W.3d 901, 902 (Tex. App.-Dallas 2001, pet. denied). A trial court abuses its discretion when its decision is arbitrary or unreasonable or without reference to any guiding rules or principles. Mercedes-Benz Credit Corp. v. Rhyne, 925 S.W.2d 664, 666 (Tex. 1996); Neal v. Dow Agrosciences LLC, 74 S.W.3d 468, 471 (Tex. App.-Dallas 2002, no pet.). A trial court does not abuse its discretion by excluding expert testimony when (1) the testimony was not based on a reliable foundation, (2) no testing was conducted to exclude other possible causes, (3) the expert's methodology was suspect, (4) the expert's research was conducted for litigation, or (5) the expert's methodology had not been subjected to peer review or publication. Neal, 74 S.W.3d at 471; Jarrell, 53 S.W.3d at 902 (citing Robinson, 923 S.W.2d at 558-59).
        To admit expert testimony, rule 702 requires the witness to be qualified as an expert by knowledge, skill, experience, training, or education and the testimony must “assist the trier of fact to understand the evidence or to determine a fact in issue.” Tex. R. App. P. 702. To constitute scientific knowledge that will “assist the trier of fact,” the proposed testimony must be both relevant and reliable. Robinson, 923 S.W.2d at 556. The trial court's role is to make the initial determination of whether an expert's opinion is relevant and whether the methods and research upon which it is based are reliable. Id. at 558. Expert testimony is unreliable if “there is simply too great an analytical gap between the data and the opinion proffered.” Gammill v. Jack Williams Chevrolet, Inc., 972 S.W.2d 713, 719 (Tex. 1998) (citing Gen. Elec. Co. v. Joiner, 522 U.S. 136, 146 (1997)). Scientific evidence which is not grounded “in the methods and procedures of science” is no more than “subjective belief or unsupported speculation.” Robinson, 923 S.W.2d at 557 (quoting Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 590 (1993)); see Havner, 953 S.W.2d at 711-14 (expert's bare opinion is not sufficient; trial court must examine expert's methodology and underlying studies or data to determine whether opinion is reliable). Evidence that is unreliable is inadmissible. Robinson, 923 S.W.2d at 557.
        An expert's assertion that a physical examination confirmed causation should not be accepted at face value. Havner, 953 S.W.2d at 720. (Tex. 1997). The temporal connection between exposure to chemicals and the onset of symptoms, standing alone, is “entitled to little weight” in determining causation. Moore, 151 F.3d at 278. If there are other plausible causes of the injury or condition that could be negated, the plaintiff must offer evidence excluding those causes with reasonable certainty. Havner, 953 S.W.2d at 720. Further, courts should reject as unreliable evidence consisting of isolated case reports, random experience, and reports lacking the details which permit scientific evaluation. Id. To be reliable scientific evidence, expert opinion testimony must be based on foundation data that is itself shown to be reliable and the expert must use a reliable methodology. Id. at 714. Epidemiological studies can aid in showing general causation (to show a substantially elevated risk of injury), so long as the study itself is shown to be scientifically reliable and there is proof that the person was exposed to the same substance, at levels comparable or greater than those in the studies, and that the timing of exposure and the onset of symptoms was consistent with those in the study. Id. at 720.
        Johnson examined appellees in August 2002; and after reviewing the MSDS for Scourge, he determined appellees' injuries were caused by their exposure to Scourge. The record does not contain any evidence that Johnson attempted to negate other plausible causes of appellees' conditions. Johnson did not analyze the exposure levels or dose of Scourge appellees received. And, although Johnson admitted it was important to know the amount of exposure to an insecticide, he did not know the concentration of Scourge the City used to spray for mosquitos the day appellees were exposed. Finally, although Johnson reviewed the MSDS, Johnson did not offer any foundational data or epidemiological studies to support his determination that Scourge caused the complained-of injuries. Under these circumstances, we cannot conclude the trial court abused its discretion by determining Johnson's testimony regarding causation was unreliable. We overrule Hamro and Furgason's cross-point.
        Accordingly, we reverse the trial court's judgment, and render judgment that appellees take nothing on their claims against the City.
 
 
                                                          
                                                          CAROLYN WRIGHT
                                                          JUSTICE
 
060875F.P05
 
Footnote 1 In its second issue, the City contends the evidence is legally and factually insufficient to show general causation, and in its third issue, the City challenges the legal and factual sufficiency of the evidence regarding specific causation. We discuss only the legal sufficiency of the evidence.