IN THE
TENTH COURT OF APPEALS
No. 10-07-00399-CV
KEVIN GLENN SCHRONK, INDIVIDUALLY AND AS
REPRESENTATIVE OF THE ESTATE OF HELEN PATRICIA
SCHRONK, DECEASED, AND DUSTIN SCHRONK
Appellants
v.
CITY OF BURLESON AND LAERDAL MEDICAL CORP.,
Appellees
From the 413th District Court
Johnson County, Texas
Trial Court No. C200600118
OPINION
Kevin Schronk and his son Dustin filed a wrongful death suit against the City of
Burleson and Laerdal Medical Corporation after emergency medical technicians
employed by the City were unable to resuscitate Helen Schronk with an automatic
external defibrillator (AED) manufactured by Laerdal. The trial court granted the City’s
plea to the jurisdiction and Laerdal’s summary-judgment motion. The Schronks
contend in four points that the court erred by: (1) granting Laerdal’s summary-
judgment motion because the motion did not address their product liability claim and
genuine issues of material fact remain on their negligence claim; (2) denying their
special exceptions to the City’s plea to the jurisdiction; (3) granting the City’s plea to the
jurisdiction; and (4) sustaining the City’s objections to evidence they offered in
opposition to the City’s plea to the jurisdiction. We will reverse and remand.
Background
Kevin Schronk called 9-1-1 when his wife Helen suffered a cardiac arrest. EMT’s
employed by the City responded and tried to resuscitate Helen with an AED
manufactured by Laerdal. However, the AED’s battery was too weak to administer a
defibrillating shock. The EMT’s made several attempts to administer a shock with the
AED but could not because of the low battery. Another AED was brought to the
location, but Helen could not be resuscitated. She was pronounced dead on arrival at
the hospital.
Kevin and Dustin filed suit against the City and Laerdal. They alleged that the
City was liable for negligence based on its failure to properly maintain the AED and for
violations of various statutes applicable to emergency services providers. They alleged
that Laerdal was liable: (1) for negligence in the: (a) design, manufacture, marketing,
etc. of the AED; (b) training of City employees in the operation and maintenance of the
AED; (c) service and maintenance of the AED; and (d) labeling of the AED battery; and
(2) for selling an unreasonably dangerous product.
Schronk v. City of Burleson Page 2
The City filed a plea to the jurisdiction alleging that its “sovereign immunity has
not been waived.” Laerdal filed a summary-judgment motion presenting both no-
evidence and traditional grounds. The Schronks filed pleadings responsive to the plea
to the jurisdiction and to the summary-judgment motion. They also filed a summary-
judgment motion of their own.
The City filed objections to evidence relied on by the Schronks in their response
to the plea to the jurisdiction. Laerdal likewise filed objections to evidence relied on by
the Schronks in their summary-judgment response.
The court conducted a hearing on the City’s plea to the jurisdiction, Laerdal’s
summary-judgment motion, and the Schronks’ summary-judgment motion. A week
later, the court signed three separate orders: (1) granting the City’s plea to the
jurisdiction; (2) granting Laerdal’s summary-judgment motion; and (3) sustaining the
City’s objections to the Schronks’ evidence.
Special Exceptions
The Schronks contend in their second point that the court abused its discretion
by denying their special exceptions to the City’s plea to the jurisdiction. The City
responds that the Schronks have failed to preserve this issue for appellate review
because they did not obtain a ruling on their special exceptions. In the alternative, the
City argues that no abuse of discretion is shown because the plea to the jurisdiction
gave the Schronks fair notice of the basis for the City’s immunity claim.
Schronk v. City of Burleson Page 3
Preservation
The trial court did not expressly rule on the special exceptions. When the
Schronks called their special exceptions to the court’s attention at the hearing on the
plea to the jurisdiction, the court responded, “I don’t have a hearing on Special
Exceptions set. I just want to hear the Plea to the Jurisdiction and the responses to that.”
But the order granting the City’s plea to the jurisdiction reads in pertinent part:
came on to be considered the City of Burleson’s Plea to the Jurisdiction,
together with its Brief Supporting City of Burleson’s Plea to the
Jurisdiction (including an Appendix); Plaintiff’s Special Exceptions and
Response to City of Burleson’s Plea to the Jurisdiction and to Brief
Supporting City’s Plea; Plaintiffs’ Supplemental Response to Defendant
Burleson’s Plea to the Jurisdiction; and City of Burleson’s Objections to
Plaintiffs’ Response; and arguments of counsel. Having considered such
matters, the Court has determined that the Plea to the Jurisdiction is well
founded and should be granted.
(emphases added).
Rule of Appellate Procedure 33.1 recognizes that issues may be preserved either
by express or implicit rulings. See TEX. R. APP. P. 33.1(a)(2)(A). In the summary-
judgment context, this Court has consistently held that the grant of a summary-
judgment motion, standing alone, does not constitute an implicit ruling on objections to
the movant’s summary-judgment proof. See, e.g., Allen ex rel. B.A. v. Albin, 97 S.W.3d
655, 663 (Tex. App.—Waco 2002, no pet.). The Schronks contend that a different rule
applies for special exceptions. See, e.g., Fieldtech Avionics & Instruments, Inc. v.
Component Control.Com, Inc., 262 S.W.3d 813, 824 n.3 (Tex. App.—Fort Worth 2008, no
pet.) (“a trial court implicitly overrules special exceptions when it grants summary
Schronk v. City of Burleson Page 4
judgment on the motion to which the special exceptions pertain”). However, we need
not decide in this case whether a different rule applies.
The Schronks called their special exceptions to the trial court’s attention at the
hearing on the plea to the jurisdiction. The court stated on the record that it did not
want to consider the special exceptions, but stated in its written order that it did
consider them. See In re Marriage of Jordan, 264 S.W.3d 850, 855 (Tex. App.—Waco 2008,
no pet.) (written order controls over oral rulings). Thus, the court considered the
Schronks’ challenges to the adequacy of the City’s plea to the jurisdiction and implicitly
overruled their challenges by ruling on the merits of the City’s pleading. See Clement v.
City of Plano, 26 S.W.3d 544, 550 n.5 (Tex. App.—Dallas 2000, no pet.) (by granting
summary judgment, trial court implicitly overruled special exceptions which were
“presented” to court), disapproved on other grounds by Telthorster v. Tennell, 92 S.W.3d 457,
464 (Tex. 2002).
Type(s) of Immunity Alleged
“The purpose of a special exception is to compel clarification of pleadings when
the pleadings are not clear or sufficiently specific.” Baylor Univ. v. Sonnichsen, 221
S.W.3d 632, 635 (Tex. 2007) (per curiam). Pleadings must give “fair notice” of a party’s
claims or defenses. Horizon/CMS Heathcare Corp. v. Auld, 34 S.W.3d 887, 896-97 (Tex.
2000); Schwartz v. Ins. Co. of the State of Pa., 274 S.W.3d 270, 276 (Tex. App.—Houston
[1st Dist.] 2008, pet. denied). The test long-recognized by intermediate appellate courts1
in Texas is “whether an opposing attorney of reasonable competence, perusing the
1
According to our research, the Supreme Court has neither embraced nor rejected this test.
Schronk v. City of Burleson Page 5
pleadings, can ascertain the nature and the basic issues of the controversy and the
testimony probably relevant.” 2 ROY W. MCDONALD & ELAINE A. GRAFTON CARLSON,
TEXAS CIVIL PRACTICE § 7:4[b] (2d ed. 2002); see Schwartz, 274 S.W.3d at 276; Schley v.
Structural Metals, Inc., 595 S.W.2d 572, 587 (Tex. Civ. App.—Waco 1979, writ ref’d n.r.e.);
Daniels v. Conrad, 331 S.W.2d 411, 415 (Tex. Civ. App.—Dallas 1959, writ ref’d n.r.e.).
The Schronks first argue that the City’s plea to the jurisdiction does not give fair
notice of whether the City was asserting immunity from suit or immunity from liability.
It is true that the City’s pleading only uses the term “sovereign immunity” and does not
specify whether immunity from suit or immunity from liability is claimed.
The Schronks cite Baylor College of Medicine v. Hernandez, 208 S.W.3d 4 (Tex.
App.—Houston [14th Dist.] 2006, pet. denied), for the proposition that, because the City
explicitly claimed immunity as an affirmative defense and never used the term
“immunity from suit” in its pleading, the City’s plea to the jurisdiction does not allege
immunity from suit. In Baylor College of Medicine, however, the plaintiff did not
challenge the defendants’ pleadings by special exceptions, and the
defendants/appellants did not claim immunity from suit in their appellate pleadings.
See id. at 9 n.5. Thus, the court made it clear that immunity from suit was not an issue in
that case.
As the text of appellants’ motions and briefs make clear, Baylor and
the Physicians interpret section 312.006 of the Health and Safety Code to
confer immunity from liability on each of them and base their claims of
immunity on this section and on the alleged lack of notice. Although
appellants’ motion to dismiss also contains the conclusory statement that
Baylor and the Physicians are immune from both liability and suit
pursuant to “TEX. HEALTH & SAFETY CODE Section 312 et seq., TEX. CIV.
Schronk v. City of Burleson Page 6
PRAC. & REM.CODE Section 101 et seq., and TEX. EDUC. CODE Section 61 et
seq.,” the appellants repeatedly state that section 312.006(a) confers
immunity from liability and present neither argument nor authority
supporting their claim that any specific section of the globally-cited codes
renders them immune from suit. To the extent that such an issue has been
raised, it is waived pursuant to TEX. R. APP. P. 33.1(a)(1)(A) and 38.1(h).
Id.
Here, the City unequivocally claims immunity from suit on appeal, so we will
examine the City’s trial pleadings to determine whether immunity from suit was
adequately pleaded in the court below.
Sovereign or governmental immunity2 consists of immunity from suit and
immunity from liability. Reata Constr. Corp. v. City of Dallas, 197 S.W.3d 371, 374 (Tex.
2006). Immunity from suit “bars a suit unless the state has consented,” while immunity
from liability “protects the state [or a political subdivision] from judgments even if it
has consented to the suit.” Id. “[I]mmunity from suit deprives a trial court of subject-
matter jurisdiction.” Id. By contrast, immunity from liability is an affirmative defense
which must be pleaded or it is waived. Tex. Dep’t of Transp. v. Jones, 8 S.W.3d 636, 638
(Tex. 1999); City of Weslaco v. Borne, 210 S.W.3d 782, 789-90 (Tex. App.—Corpus Christi
2006, pet. denied). “Immunity from liability does not affect a court’s jurisdiction to hear
a case.” Jones, 8 S.W.3d at 638; accord Borne, 210 S.W.3d at 789.
First, we observe that the City filed a three-part defensive pleading. In the first
part, the City generally denied the Schronks’ allegations. In the second, the City
2
“Sovereign immunity protects the State, state agencies, and their officers, while governmental
immunity protects subdivisions of the State, including municipalities and school districts.” Mission
Consol. Indep. Sch. Dist. v. Garcia, 253 S.W.3d 653, 655 n.2 (Tex. 2008).
Schronk v. City of Burleson Page 7
asserted the “affirmative defense” of “sovereign immunity.” See Jones, 8 S.W.3d at 638;
Borne, 210 S.W.3d at 789-90. The City entitled the third part a “plea to the jurisdiction.”3
Paragraph 3.02 states, “Because the City’s sovereign immunity has not been waived,
Plaintiff’s claims are barred. Therefore, this Court does not have jurisdiction as to the
City.” From this allegation, “an opposing attorney of reasonable competence” would
understand that the City was claiming immunity from suit in the “plea-to-the-
jurisdiction” section of its defensive pleading. See Reata Constr. Corp., 197 S.W.3d at 374.
Supporting Brief
The Schronks also challenge the propriety of the City’s brief supporting its plea
to the jurisdiction “to the extent [the supporting brief] attempts to cure the defects or
add grounds, argument or evidence omitted from the Plea.” Restated, they contend
that a brief in support of a plea to the jurisdiction cannot: (1) cure defects in the plea to
the jurisdiction; (2) allege additional grounds on which a court may determine that it
does not have jurisdiction; (3) present additional argument regarding the grounds
stated in the plea to the jurisdiction; or (4) present evidence supporting the grounds
stated in the plea to the jurisdiction.
We need not address the first two contentions because the City’s plea to the
jurisdiction is not “defective” and because the brief in support of the City‘s plea does
3
The Schronks also complain about the City’s incorporating by reference in this third part of its
defensive pleading “the reasons set forth in the foregoing paragraphs numbers 2.01, 2.02, 20.3 [sic], 2.04
and 2.05” (which are paragraphs in the “immunity-from-liability” section of the pleading) as grounds for
its claim of immunity from suit. We are unpersuaded. This pleading method merely reflects the close
relationship in the Tort Claims Act between immunity from suit and immunity from liability. See TEX.
CIV. PRAC. & REM. CODE ANN. § 101.025(a) (Vernon 2005) (“Sovereign immunity to suit is waived and
abolished to the extent of liability created by this chapter.”); Tex. Dep’t of Parks & Wildlife v. Miranda, 133
S.W.3d 217, 224 (Tex. 2004) (“The Tort Claims Act creates a unique statutory scheme in which the two
immunities are co-extensive”).
Schronk v. City of Burleson Page 8
not present additional grounds on which the Court could find that the City’s immunity
from suit is not waived.
In Burford v. Wilson, the Tyler Court held that, under Rule of Civil Procedure
166a(c),4 exhibits attached to the appellees’ brief filed in support of their summary-
judgment motion but not referred to in the motion could not be considered as part of
the summary-judgment record. 885 S.W.2d 253, 256 (Tex. App.—Tyler 1994), rev’d on
other grounds, 904 S.W.2d 628 (Tex. 1995) (per curiam). The Supreme Court reversed
because a deposition attached to the appellees’ supporting brief was also referred to in
the appellants’ summary-judgment response. Wilson v. Burford, 904 S.W.2d 628, 629
(Tex. 1995) (per curiam). The Burford case serves to illustrate the unique provisions of
Rule of Civil Procedure 166a governing summary-judgment practice. Admittedly, the
Supreme Court has looked to summary-judgment cases for guidance in defining the
standard of review for a plea to the jurisdiction. See Tex. Dep’t of Parks & Wildlife v.
Miranda, 133 S.W.3d 217, 227-28 (Tex. 2004). But the Court has expressly rejected the
4
Rule 166a(c) provides in pertinent part that a summary-judgment ruling must be based on:
(i) the deposition transcripts, interrogatory answers, and other discovery responses
referenced or set forth in the motion or response, and (ii) the pleadings, admissions,
affidavits, stipulations of the parties, and authenticated or certified public records, if any,
on file at the time of the hearing, or filed thereafter and before judgment with permission
of the court.
TEX. R. CIV. P. 166a(c). Under the plain language of this rule (and contrary to the Tyler Court’s decision in
Burford), documentary evidence may be considered as part of the summary-judgment record if it is “on
file at the time of the hearing, or filed thereafter and before judgment with permission of the court.”
Enter. Leasing Co. of Houston v. Barrios, 156 S.W.3d 547, 549 (Tex. 2004) (per curiam) (quoting TEX. R. CIV. P.
166a(c)). Of course, it is preferable that a summary-judgment motion or response make specific reference
to other evidence on file but not attached to the motion or response.
Schronk v. City of Burleson Page 9
application of the summary-judgment procedures required by Rule 166a in the context of
a plea to the jurisdiction. Id. at 228-29.
The Tyler Court observed in Burford that “[t]he sole purpose of a brief in support
of a motion for summary judgment is to aid the court in determining whether the
summary judgment grounds and evidence in support of those grounds entitles the
movant to judgment as a matter of law.” 885 S.W.2d at 256. Thus, a brief filed in
support of a particular trial pleading should ordinarily clarify the grounds asserted in
that pleading and present additional argument and authorities in support of those
grounds.
The City’s supporting brief is divided into eight parts: (1) authority to submit
brief and appendix; (2) general discussion of the law regarding sovereign immunity; (3)
summary of the Schronks’ claims; (4) argument and authority regarding why the City’s
immunity is not waived under the Tort Claims Act; (5) argument and authority
regarding why the City’s immunity is not waived under the Health and Safety Code; (6)
argument and authority regarding why the City’s immunity has not been waived with
regard to the Schronks’ bystander claims; (7) an alternative argument with supporting
authority that there is no evidence the AED caused a legally cognizable loss of chance of
survival; and (8) a summary and conclusion.
In the concluding summary, the supporting brief states:
The City’s March 20, 2006 Plea to the Jurisdiction asserted the
City’s sovereign immunity to all of Plaintiff’s [sic] claims. The City
asserted that the injuries and death at issue are not caused by the City’s
property. The City asserted that bystander claims are not the type of
claim for which sovereign immunity is waived. The City asserted that
Schronk v. City of Burleson Page 10
Tort Claims Act § 101.055 does not waive immunity. For these reasons,
and based upon the evidence and in the Appendix supporting this Brief,
and based upon the legal arguments contained in this Brief, the City’s Plea
to the Jurisdiction must be granted and the claims against the City
dismissed.
As clarified by this concluding summary, the City’s supporting brief offers
additional argument and authorities to support the contentions set forth in its plea to
the jurisdiction, namely: (1) the City has immunity from suit because the AED did not
cause Helen’s death; (2) there is no waiver of immunity for the Schronks’ bystander
claims; and (3) the City has immunity from suit under sections 101.055 and 101.062 of
the Tort Claims Act, which apply respectively to emergency services providers and 9-1-
1 emergency services.5 The supporting brief does not assert additional grounds for
immunity from suit.
The supporting brief incorporates by reference an appendix containing
authenticated copies of pertinent City records, depositions and exhibits, and affidavits.
This is the evidence on which the City relies to prevail on its claim of immunity from
suit. The Schronks argue that this is improper because the supporting evidence is not
attached to the City’s plea to the jurisdiction itself. We disagree. There is no rule
specifying the manner in which a party must present evidence in support of a plea to
the jurisdiction. Although summary-judgment practice may provide a useful analytical
framework, there is no rule requiring that evidence be attached to a plea to the
jurisdiction to be considered by a trial court. Cf. TEX. R. CIV. P. 166a(c) (summary
5
The City’s claim of immunity under section 101.062 of the Tort Claims Act relates to the
Schronks’ allegations that the City violated sections 773.042 and 779.003 of the Health and Safety Code.
Schronk v. City of Burleson Page 11
judgment should be based in part on evidence “referenced or set forth in the motion or
response”).
The City filed its supporting brief and appendix more than a month before the
hearing on the plea to the jurisdiction. The Schronks do not contend that they were
surprised or prejudiced by the evidence included in the appendix and referenced in the
supporting brief. Therefore, we hold that the court did not abuse its discretion by
considering the evidence the City submitted in this manner.
Nature of Jurisdictional Challenge
Finally, the Schronks contend that the plea to the jurisdiction is deficient because
it does not specify whether the City is challenging the adequacy of their petition or the
existence of jurisdictional facts. See Miranda, 133 S.W.3d at 226-27 (describing two types
of challenges which may be asserted in a plea to the jurisdiction).
The Schronks allege in their petition that the City’s use of a defective AED was a
proximate cause of Helen’s death. The Schronks further allege that the “non-waiver” of
immunity under section 101.055 for emergency services providers does not apply
because the City acted “with conscious indifference or reckless disregard for the safety
of others.” And the Schronks allege that the “non-waiver” of immunity under section
101.062 for providers of 9-1-1 emergency services does not apply because the City
violated statutes regarding the maintenance and testing of AED’s.
The City contends in its plea to the jurisdiction that (1) it has immunity from suit
under section 101.021 because the AED did not cause Helen’s death; (2) there is no
Schronk v. City of Burleson Page 12
waiver of immunity under section 101.021 for the Schronks’ bystander claims; and (3) it
has immunity from suit under sections 101.055 and 101.062.
A plea to the jurisdiction which challenges the plaintiff’s pleadings asserts that
the plaintiff’s pleadings fail to allege “facts that affirmatively demonstrate the court’s
jurisdiction to hear the cause.” See Miranda, 133 S.W.3d at 226. Conversely, a plea to the
jurisdiction which disputes the existence of jurisdictional facts asserts in essence that the
evidence conclusively negates the existence of the relevant jurisdictional facts. Id. at
227-28.
The heart of the Schronks’ claims is that the City’s use of a defective AED was a
proximate cause of Helen’s death. The City does not contend in its plea to the
jurisdiction that this allegation is not sufficient to allege a waiver of immunity under
section 101.021 or the other applicable statutes. Rather, the City disputes whether its
use of the AED was a proximate cause of Helen’s death. Thus, “an opposing attorney of
reasonable competence” would understand that the City’s plea to the jurisdiction
challenged the existence of jurisdictional facts. Id.
The court did not abuse its discretion by overruling the Schronks’ special
exceptions. Accordingly, we overrule the Schronks’ second point.
Schronk v. City of Burleson Page 13
Objections to the Schronks’ Evidence
The Schronks aver in their fourth point that the court abused its discretion by
sustaining the City’s objections to the evidence they offered in response to the City’s
plea to the jurisdiction.6
The Schronks do not contest the applicability of the Rules of Evidence to
evidence submitted in connection with a plea to the jurisdiction. We are aware of no
reason these rules should not govern the admissibility of such evidence. See TEX. R.
EVID. 101(b) (“Except as otherwise provided by statute, these rules govern civil and
criminal proceedings (including examining trials before magistrates) in all courts of
Texas, except small claims courts.”); cf. Allbritton v. Gillespie, Rozen, Tanner & Watsky,
P.C., 180 S.W.3d 889, 892 (Tex. App.—Dallas 2005, pet. denied) (“Summary-judgment
evidence must be presented in a form that would be admissible in a conventional trial
proceeding.”); Choctaw Props., L.L.C. v. Aledo Indep. Sch. Dist., 127 S.W.3d 235, 240 (Tex.
App.—Waco 2003, no pet.) (same).
Depositions Regarding Violation of
Section 779.003 of the Health & Safety Code
The City raised a three-part objection to deposition excerpts from various
firefighters which the Schronks offered to establish that the AED was not maintained
and tested in accordance with manufacturer guidelines and that the City thus violated
6
Because the admissibility of the Schronks’ evidence impacts our review of the merits of the City’s
plea to the jurisdiction, we first address their fourth point. See Torres v. GSC Enters., Inc., 242 S.W.3d 553,
557 (Tex. App.—El Paso 2007, no pet.); Choctaw Props., L.L.C. v. Aledo Indep. Sch. Dist., 127 S.W.3d 235, 240
(Tex. App.—Waco 2003, no pet.).
Schronk v. City of Burleson Page 14
section 779.003 of the Health and Safety Code.7 The City objected that the Schronks
omitted from these excerpts the objections the City lodged at the time of the
depositions.8 But see TEX. R. CIV. P. 203.6(b) (“All or part of a deposition may be used for
any purpose in the same proceeding in which it was taken.”) (emphasis added); Jones v.
Colley, 820 S.W.2d 863, 866 (Tex. App.—Texarkana 1991, writ denied) (“[T]he
defendants, on the sole ground that the tape was out of chronological order or was not
complete, had no right to prevent the use of the edited videotape. Their remedy was to
introduce the unedited deposition or their own edited version in response to Jones’
offer.”).
The City also objected that the testimony of these firefighters was conclusory
regarding any failure to follow the manufacturer’s guidelines because there is no
evidence in the record of: (1) the factual content of the guidelines allegedly violated; (2)
how the guidelines pertained to maintenance or testing; or (3) how the guidelines were
violated. In addition, the City objected that this testimony was conclusory regarding
any violation of section 779.003 because there is no evidence that the firefighters: (1)
knew the content of this law; (2) knew how the law was violated; or (3) were qualified
to give an opinion concerning the alleged violation.
7
Section 779.003 provides, “A person or entity that owns or leases an automated external
defibrillator shall maintain and test the automated external defibrillator according to the manufacturer’s
guidelines.” TEX. HEALTH & SAFETY CODE ANN. § 779.003 (Vernon 2003).
8
The City states that most of these objections were to the form of the questions posed. See TEX. R.
CIV. P. 199.5(e). The City suggests that there were other objections but does not identify the nature of the
objections.
Schronk v. City of Burleson Page 15
We first observe that the City’s objections appear to be directed to the excerpts of
deposition testimony included within the body of the Schronks’ response. However,
the Schronks attached more complete excerpts of these depositions as exhibits.
Regarding the manufacturer’s guidelines, counsel handed the witnesses a copy of a 46-
page document with “Directions for Use” for the AED and asked them questions about
particular instructions without objection.9 If the quoted excerpts are read standing
alone, they are somewhat conclusory, but when read in conjunction with the remainder
of each witness’s testimony, they merely summarize that witness’s previous testimony
and are supported by a written copy of the manufacturer’s guidelines attached as an
exhibit to one of the depositions.10
Summary-judgment evidence is considered “conclusory” if it “does not provide
the underlying facts to support the conclusion.” Choctaw Props., 127 S.W.3d at 242
(quoting Dolcefino v. Randolph, 19 S.W.3d 906, 930 (Tex. App.—Houston [14th Dist.]
2000, pet. denied)) (other citations omitted). “A ‘conclusory’ statement may set forth an
unsupported legal conclusion or an unsupported factual conclusion.” Id. A lay witness
“may not give legal conclusions or interpret the law to the jury.” United Way of San
Antonio, Inc. v. Helping Hands Lifeline Found., Inc., 949 S.W.2d 707, 713 (Tex. App.—San
Antonio 1997, writ denied).
9
This 46-page document is entitled, “Laerdal HEARTSTART 911, Automated External
Defibrillator, Directions for Use.” We refer to it hereinafter as the “instruction manual.”
10
We have already ruled that the City’s evidence did not need to be attached to its plea to the
jurisdiction to be considered by the trial court. We likewise hold that the entirety of a responding party’s
evidence need not be quoted within the body of a response to the plea to the jurisdiction. Such evidence
may be attached to the responsive pleading or filed separately and contemporaneously thereto or
“thereafter and before judgment with permission of the court.” Cf. TEX. R. CIV. P. 166a(c).
Schronk v. City of Burleson Page 16
Taking as true the deposition testimony favorable to the Schronks,11 Firefighter
Steve Burchett testified that the manufacturer’s guidelines “specifically” say “you’re
supposed to check the date codes on every battery before you use them.” He did not
know of anyone in the department who did this, which was in his opinion a violation of
the guidelines. Lieutenant Michael Gloff testified that the batteries in the AED had
expired and their use on the occasion in question was a violation of the guidelines.
In both instances, these witnesses provided an adequate factual basis for their
testimony. Thus, the court abused its discretion to the extent that it sustained the City’s
objections on the basis that the testimony of these witnesses was conclusory regarding
the City’s alleged failure to follow the manufacturer’s guidelines. See Choctaw Props.,
127 S.W.3d at 242-43.
However, both witnesses and others were also asked whether this conduct
constituted a violation of section 779.003. This was improper. See United Way of San
Antonio, 949 S.W.2d at 713. Thus, the court did not abuse its discretion insofar as it
sustained the City’s objections that these witnesses were improperly testifying
regarding legal conclusions.
Dr. Reese’s Affidavit
The City objected to the affidavit of the Schronks’ expert Dr. Edward Reese on
the grounds that: (1) he relies on Laerdal records which cannot be used against the City;
(2) his affidavit is supported by a “random collection” of documents which are not
11
See Miranda, 133 S.W.3d at 228 (appellate court must “take as true all evidence favorable to the
nonmovant” and “indulge every reasonable inference and resolve any doubts in the nonmovant’s
favor”).
Schronk v. City of Burleson Page 17
properly identified or authenticated; (3) his concluding statement of opinion does not
adequately identify the bases for the opinion; and (4) he is not qualified to provide a
medical opinion on the cause of Helen Schronk’s death.
The City states no legal basis for its initial objection regarding Dr. Reese’s use of
Laerdal records. We are aware of no such limitation. The Schronks’ theory is that City
employees used a defective AED manufactured by Laerdal which was a proximate
cause of Helen Schronk’s death. Laerdal records regarding the AED are relevant to the
Schronks’ claims and admissible even against the City. See Olympic Arms, Inc. v. Green,
176 S.W.3d 567, 578 (Tex. App.—Houston [1st Dist.] 2004, no pet.) (testimony of co-
defendant gunsmith considered in product liability suit against manufacturer of
defective rifle barrel).
Next, the City complains that Dr. Reese’s affidavit is inadmissible because it is
supported by a “random collection” of documents which are not properly identified or
authenticated. We disagree. The affidavit specifically identifies the documents on
which Dr. Reese relied. For example, Dr. Reese relied in paragraph 21 on “Defendant
Laerdal’s ‘Incident Information’ report (see LMC 03590, also marked Exhibit #30).” In
paragraph 24, he referred to “the Med Watch Report [Mandatory Reporting FDA Form
3500A]” and provided citations to various “LMC” numbers12 in this report which
correspond to the pagination of the report attached as an exhibit to his affidavit.
12
These “LMC” numbers apparently refer to Laerdal’s pagination of the pertinent documents.
They are similar to Bates stamp numbers.
Schronk v. City of Burleson Page 18
Regarding the admissibility of the exhibits attached to Dr. Reese’s affidavit, Rule
of Evidence 703 provides in pertinent part, “If of a type reasonably relied upon by
experts in the particular field in forming opinions or inferences upon the subject, the
facts or data need not be admissible in evidence.” TEX. R. EVID. 703. An expert in this
case may reasonably rely on the records of the manufacturer to evaluate whether the
product in question is defective. Cf. Olympic Arms, 176 S.W.3d at 578 (experts testified
about rifle manufacturing process and about another defective rifle barrel produced by
defendant at about same time). Therefore, the admissibility of the exhibits is irrelevant.
See TEX. R. EVID. 703.
The City also complains that Dr. Reese’s concluding statement renders his
affidavit inadmissible because it does not provide a sufficiently specific statement of the
bases for his opinion. The statement in question reads, “The opinions stated herein are
based upon information provided by the Plaintiff and my knowledge and expertise
with medical devices, the medical industry, and FDA Rules and Regulations.” Standing
alone, this probably would be insufficient. Cf. Volkswagen of Am., Inc. v. Ramirez, 159
S.W.3d 897, 902, 911 (Tex. 2004) (expert’s reliance on the “laws of physics” does not
provide a sufficient basis for his opinion). However, Dr. Reese provided much more
detail in the 15-plus pages preceding this concluding summary statement. In the body
of his affidavit, Dr. Reese relied on specified federal regulations, specified portions of
Laerdal’s guidelines for use of the AED, Laerdal’s incident information report, a
mandatory FDA “Med Watch” report regarding the incident, and other specified
documents. Therefore, his affidavit provided sufficient factual substantiation for his
Schronk v. City of Burleson Page 19
expert opinion regarding whether the AED was defective. See Merrell v. Wal-Mart
Stores, Inc., 276 S.W.3d 117, 128 (Tex. App.—Texarkana 2009, pet. filed).
Finally, the City challenges Dr. Reese’s qualifications to render an expert opinion
on the cause of Helen Schronk’s death. Dr. Reese is not a medical doctor. He has a
doctor of philosophy degree in medical technology studies and holds certifications as a
forensic examiner and a forensic consultant, a certification in forensic medicine, and
certification as a “Level Five” medical investigator. He states in his affidavit that he is
“a medical device expert.” He states in his CV that his “competencies” include
determining “if a causal relationship exists between a suspect medical device and its
manufacturer, distributor, physician, and/or hospital.” (emphasis added). Because Dr.
Reese is not a medical doctor and because his affidavit and CV do not demonstrate any
special experience in determining medical causation, we cannot say the court abused its
discretion by determining that he is not qualified to render an expert opinion on cause
of death. See Methodist Health Ctr. v. Thomas, No. 14-07-00085-CV, 2007 Tex. App. LEXIS
6655, at *8-9 (Tex. App.—Houston [14th Dist.] 2007, no pet.) (mem. op.); Marts ex rel.
Marts v. Transp. Inc. Co., 111 S.W.3d 699, 703-04 (Tex. App.—Fort Worth 2003, pet.
denied).
General References to Exhibits
The City objected to sections of the Schronks’ response, beginning with
paragraph 17, in which the Schronks refer to “ample proof” that the City’s use of a
malfunctioning AED was a proximate cause of Helen Schronk’s death. Throughout
several pages of the response beginning here, the Schronks generally refer to “exhibits
Schronk v. City of Burleson Page 20
A-F with exhibits” or “exhibits A-G” without any more specificity. It appears that the
Schronks sought to establish two things at this point in their response: (1) their petition
alleged sufficient facts to state a waiver of immunity; and (2) they provided “ample
proof” to support these allegations. The City contends that their general references to
the exhibits do not constitute competent evidence of cause of death. To the extent the
Schronks relied on these general references to show evidence of cause of death, we
agree. See State v. Life Partners, Inc., 243 S.W.3d 236, 242 (Tex. App.—Waco 2007, pet.
denied) (“A general reference to a voluminous record that does not direct the trial court
and parties to the evidence on which the movant relies is insufficient.”) (quoting Aguilar
v. Morales, 162 S.W.3d 825, 838 (Tex. App.—El Paso 2005, pet. denied)).
Dr. Desser’s Affidavit
The City objected that the affidavit of Dr. Kenneth Desser is inadmissible
because: (1) it did not comply with Rule of Civil Procedure 194.2(f)(3) by providing a
brief summary of the basis for Dr. Desser’s opinion; (2) it contains internal conflicts; and
(3) it fails to address undisputed evidence.13
Rule 194.2(f) governs disclosure of information regarding the opposing party’s
testifying experts. See TEX. R. CIV. P. 194.2(f). Under the trial court’s scheduling order,
the deadline for disclosure of testifying experts was December 7, 2007. The Schronks
13
The City also objected that the Schronks could not rely on Dr. Desser’s affidavit because he had
not been timely designated as an expert witness. However, the trial court did not sustain this objection,
and the City has not perfected its own appeal to challenge this ruling.
Schronk v. City of Burleson Page 21
filed their supplemental response with Dr. Desser’s affidavit and the court heard the
City’s plea to the jurisdiction eight days before that deadline.14
The City cites Cunningham v. Columbia/St. David’s Healthcare Sys., L.P., 185 S.W.3d
7 (Tex. App.—Austin 2005, no pet.), for the proposition that an expert’s affidavit is not
admissible summary-judgment evidence if the expert has not been properly designated
under Rule 194.2. Id. at 12-13. The Supreme Court has recently endorsed this
proposition. Fort Brown Villas III Condominium Ass’n v. Gillenwater, 52 Tex. Sup. Ct. J.
632, 633-34, 2009 Tex. LEXIS 125, at *3-7 (Tex. Apr. 17, 2009) (per curiam). However, we
are unaware of any decision applying this same principle in the context of a plea to the
jurisdiction, and we decline to do so.
Summary judgments are rendered where: (1) a plaintiff conclusively establishes
each element of his claim; (2) a defendant conclusively negates a single element of a
plaintiff’s claim; or (3) a defendant conclusively establishes an affirmative defense. See
U.S. Fire Ins. Co. v. Scottsdale Ins. Co., 264 S.W.3d 160, 165 (Tex. App.—Dallas 2008, no
pet.); Van Es v. Frazier, 230 S.W.3d 770, 784 (Tex. App.—Waco 2007, pet. denied). Thus,
a summary-judgment proceeding focuses on the merits of the plaintiff’s claim or of an
affirmative defense.
By contrast, “[a] plea to the jurisdiction is a dilatory plea, the purpose of which is
to defeat a cause of action without regard to whether the claims asserted have merit.”
Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 554 (Tex. 2000). Although the State or other
14
The Schronks filed a formal designation of their experts, including Dr. Desser, on December 6.
Schronk v. City of Burleson Page 22
governmental unit bears the burden of conclusively establishing that its immunity has
not been waived, “we protect the plaintiffs from having to ‘put on their case simply to
establish jurisdiction.’” Miranda, 133 S.W.3d at 228 (quoting Blue, 34 S.W.3d at 554).
“The purpose of a dilatory plea is not to force the plaintiffs to preview their case on the
merits but to establish a reason why the merits of the plaintiffs’ claims should never be
reached.” Blue, 34 S.W.3d at 554; cf. Kelly v. Rendon, 255 S.W.3d 665, 672 (Tex. App.—
Houston [14th Dist.] 2008, no pet.) (expert report in healthcare liability case “need not
marshall all of the plaintiff’s proof” and need not satisfy same admissibility standards
as evidence offered in summary-judgment proceeding or at trial) (citing Am. Transitional
Care Ctrs. of Tex., Inc. v. Palacios, 46 S.W.3d 873, 878-79 (Tex. 2001)); Baylor Univ. Med.
Ctr. v. Rosa, 240 S.W.3d 565, 570 (Tex. App.—Dallas 2007, pet. denied) (same).
Although evidence offered in support of or in response to a plea to the
jurisdiction must satisfy the requirements of the Rules of Evidence, we hold that an
expert need not be properly designated under Rule of Civil Procedure 194.2 before he can
offer evidence relevant to the jurisdictional issues in dispute. This is particularly true
when, as here, the deadline for designation of testifying experts had not passed.
Finally, the City objected to Dr. Desser’s affidavit because it has internal conflicts
and fails to address undisputed evidence. Here, the City refers primarily to Dr.
Desser’s assumption that there was “a 6 minute delay from cardiac arrest to attempted
electrical defibrillation” while other evidence in the record suggests that the period of
delay may have been more than 20 minutes. However, these complaints go to the
credibility of Dr. Desser’s statements and not the admissibility of his affidavit.
Schronk v. City of Burleson Page 23
If a party provides inconsistent or conflicting summary judgment
proof, that party has created a fact issue for the trier of fact to resolve. As
the Supreme Court has stated, “If the motion involves the credibility of
affiants or deponents, or the weight of the showings or a mere ground of
inference, the motion should not be granted.”
Thompson v. City of Corsicana Hous. Auth., 57 S.W.3d 547, 557 (Tex. App.—Waco 2001, no
pet.) (quoting Great Am. Reserve Ins. Co. v. San Antonio Plumbing Supply Co., 391 S.W.2d
41, 47 (Tex. 1965)) (other citations omitted); accord Pierce v. Washington Mut. Bank, 226
S.W.3d 711, 717-18 (Tex. App.—Tyler 2007, pet. denied); Shaw v. Maddox Metal Works,
Inc., 73 S.W.3d 472, 478 (Tex. App.—Dallas 2002, no pet.); Larson v. Family Violence &
Sexual Assault Prevention Ctr. of S. Tex., 64 S.W.3d 506, 513 (Tex. App.—Corpus Christi
2001, pet. denied). We have previously applied this principle in an appeal involving a
plea to the jurisdiction in which a political subdivision claimed immunity from suit. See
Stewart v. City of Corsicana, 211 S.W.3d 844, 849-50 (Tex. App.—Waco 2006), rev’d on
other grounds, 249 S.W.3d 412 (Tex. 2008).
Accordingly, the court abused its discretion by sustaining the City’s objections to
Dr. Desser’s affidavit.
Summary
The trial court did not abuse its discretion when it sustained the City’s objections
that: (1) the firefighters were improperly testifying regarding legal conclusions; (2) Dr.
Reese was not qualified to render an expert opinion on Helen’s cause of death; and (3)
the Schronks provided general references to their supporting evidence to show cause of
death. The trial court abused its discretion when it sustained the City’s objections that:
(1) the Schronks provided only selected excerpts of deposition testimony in the body of
Schronk v. City of Burleson Page 24
their response to the plea to the jurisdiction; (2) the firefighters were improperly
testifying regarding factual conclusions; (3) Dr. Reese’s affidavit was otherwise
objectionable; and (4) Dr. Desser’s affidavit was inadmissible. Accordingly, we sustain
the Schronks’ fourth point in part and overrule it in part.
Plea to the Jurisdiction
The Schronks contend in their third point that the court erred by granting the
City’s plea to the jurisdiction. As we have already observed, the primary focus of the
City’s plea to the jurisdiction is whether the use of the AED was a proximate cause of
Helen’s death.
When, as here, a plea to the jurisdiction challenges the existence of jurisdictional
facts, we “take as true all evidence favorable to the [plaintiffs]” and “indulge every
reasonable inference and resolve any doubts in the [plaintiffs’] favor.” Miranda, 133
S.W.3d at 228; Johnson v. Johnson County, 251 S.W.3d 107, 109 (Tex. App.—Waco 2008,
pet. denied). To avoid dismissal, the plaintiffs must “show that there is a disputed
material fact regarding the jurisdictional issue.” Miranda, 133 S.W.3d at 228.
Section 101.021(2) waives a governmental unit’s immunity from suit and liability
for personal injury or death proximately caused by a condition or use of tangible
personal property if a private person would be liable under the same circumstances.
See TEX. CIV. PRAC. & REM. CODE ANN. §§ 101.021(2), 101.025(a) (Vernon 2005); City of
Grapevine v. Sipes, 195 S.W.3d 689, 691-92 (Tex. 2006); Wise Reg’l Health Sys. v. Brittain,
268 S.W.3d 799, 807 (Tex. App.—Fort Worth 2008, no pet.).
Schronk v. City of Burleson Page 25
The City relies on cases distinguishing “use” and “non-use” of tangible personal
property with the former being necessary to waive immunity. See, e.g., Tex. Dep’t of
Criminal Justice v. Miller, 51 S.W.3d 583, 587 (Tex. 2001) (“our cases have distinguished
claims involving the failure to use, or the non-use of property, which do not waive
sovereign immunity, from claims involving a ‘condition or use’ of tangible personal
property that causes injury, which do effect a waiver”). “’Use’ means ‘to put or bring
into action or service; to employ for or apply to a given purpose.’” Id. at 588 (quoting
Tex. Natural Res. Conservation Comm’n v. White, 46 S.W.3d 864, 869 (Tex. 2001)). Here,
there is no dispute that City firefighters “used” the AED in an effort to resuscitate
Helen. The primary dispute is whether their use of this AED was a proximate cause of
Helen’s death.
Proximate Cause
The Schronks cite Salcedo v. El Paso Hospital District, 659 S.W.2d 30 (Tex. 1983),15
and related authorities for the proposition that the requisite causation is established by
evidence that the use of the AED was “a contributing factor” to Helen’s death. See id. at
32. The City responds by citing Miller for the proposition that the use of the AED must
have “actually caused” Helen’s death. See Miller, 51 S.W.3d at 588 (citing White, 46
S.W.3d at 869). The correct standard of causation lies somewhere in between. See Wise
15
The Supreme Court has “limited [Salcedo] to its facts.” Dallas County Mental Health & Mental
Retardation v. Bossley, 968 S.W.2d 339, 342 (Tex. 1998). There is a vigorous debate among the intermediate
appellate courts about the continuing viability of Salcedo. Compare Tex. Tech. Univ. Health Sciences Ctr. v.
Lucero, 234 S.W.3d 158, 168-72 (Tex. App.—El Paso 2007, pet. denied), with Anderson v. City of San Antonio,
120 S.W.3d 5, 7-9 (Tex. App.—San Antonio 2003, pet. denied). However, we need not wade into that fray.
The statute establishes the requisite causation as “proximate cause.” TEX. CIV. PRAC. & REM. CODE ANN. §
101.021; City of Grapevine v. Sipes, 195 S.W.3d 689, 691-92 (Tex. 2006); Wise Reg’l Health Sys. v. Brittain, 268
S.W.3d 799, 807 (Tex. App.—Fort Worth 2008, no pet.). We will apply settled precedent defining the term
“proximate cause.”
Schronk v. City of Burleson Page 26
Reg’l Health Sys., 268 S.W.3d at 808 (“The causation requirement in section 101.021(2) is
one of proximate cause—not a heightened standard such as sole cause.”); Univ. of Tex.
Med. Branch v. Estate of Blackmon, 169 S.W.3d 712, 717 (Tex. App.—Waco 2005) (“The
court in White did not expressly or implicitly abandon the TTCA’s proximate-cause
requirement for a different standard such as immediate cause, direct cause, or sole
cause.”), vacated on other grounds, 195 S.W.3d 98 (Tex. 2006) (per curiam).
Section 101.021 provides that “proximate cause” is the applicable standard. See
TEX. CIV. PRAC. & REM. CODE ANN. § 101.021(1) (“proximately caused”), § 101.021(2) (“so
caused”); see Sipes, 195 S.W.3d at 691-92; Dallas County Mental Health & Mental
Retardation v. Bossley, 968 S.W.2d 339, 342-43 (Tex. 1998); Wise Reg’l Health Sys., 268
S.W.3d at 807. “Proximate cause includes both cause in fact and foreseeability.”16
Columbia Med. Ctr. of Las Colinas, Inc. v. Hogue, 271 S.W.3d 238, 246 (Tex. 2008). “In
particular, cause in fact requires that the allegedly negligent act or omission constitute
‘a substantial factor in bringing about the injuries, and without it, the harm would not
have occurred.’” Id. (quoting IHS Cedars Treatment Ctr. of DeSoto, Tex., Inc. v. Mason, 143
S.W.3d 794, 799 (Tex. 2004)). This principle has been applied in cases governed by the
Tort Claims Act, although not consistently. See, e.g., Travis v. City of Mesquite, 830
S.W.2d 94, 98 (Tex. 1992); Wise Reg’l Health Sys., 268 S.W.3d at 807; Ordonez v. El Paso
County, 224 S.W.3d 240, 244 (Tex. App.—El Paso 2005, no pet.).
16
The City contends that the use of the AED was not a cause in fact of Helen’s death. The issue of
foreseeability is not before us.
Schronk v. City of Burleson Page 27
Cause in fact is proven in negligence cases involving injury or death by evidence
that the injury or death was in “reasonable medical probability” or in “reasonable
probability” caused by the defendant’s negligent act or omission.17 Park Place Hosp. v.
Est. of Milo, 909 S.W.2d 508, 511 (Tex. 1995); Kramer v. Lewisville Mem’l Hosp., 858 S.W.2d
397, 400 (Tex. 1993); see Columbia Rio Grande Healthcare, L.P. v. Hawley, 52 Tex. Sup. Ct. J.
804, 808, 2009 Tex. LEXIS 323, at *16 (Tex. June 5, 2009). This means “simply that it is
‘more likely than not’ that the ultimate harm or condition resulted from such
negligence.” Kramer, 858 S.W.2d at 400 (quoting Lenger v. Physician’s Gen. Hosp., Inc.,
455 S.W.2d 703, 707 (Tex. 1970)); accord Thomas v. Farris, 175 S.W.3d 896, 899 (Tex.
App.—Texarkana 2005, pet. denied); Marvelli v. Alston, 100 S.W.3d 460, 480 (Tex. App.—
Fort Worth 2003, pet. denied).
The Supreme Court has explained in more detail how this requirement is met
“where preexisting illnesses or injuries have made a patient’s chance of avoiding the
ultimate harm improbable even before the allegedly negligent conduct occurs—i.e., the
patient would die or suffer impairment anyway.” Kramer, 858 S.W.2d at 400; Arredondo
v. Rodriguez, 198 S.W.3d 236, 239 (Tex. App.—San Antonio 2006, no pet.); Hodgkins v.
Bryan, 99 S.W.3d 669, 673 (Tex. App.—Houston [14th Dist.] 2003, no pet.). In this
instance, “recovery is barred when the defendants’ negligence deprived the [plaintiff] of
only a fifty percent or less chance of survival.” Park Place Hosp., 909 S.W.2d at 511
(citing Kramer, 858 S.W.2d at 400); Arredondo, 198 S.W.3d at 239; accord Columbia Rio
17
Although these precise terms need not be used, the evidence must demonstrate “to a reasonable
degree of medical certainty” that the injury or death was caused by the defendant’s negligence. Columbia
Med. Ctr. of Las Colinas, Inc. v. Hogue, 271 S.W.3d 238, 247 (Tex. 2008).
Schronk v. City of Burleson Page 28
Grande Healthcare, 52 Tex. Sup. Ct. J. at 808, 2009 Tex. LEXIS 323, at *17; Hodgkins, 99
S.W.3d at 673.
Here, it is undisputed that City employees actually used the AED in an attempt
to resuscitate Helen. It is likewise undisputed that the AED did not work because the
battery did not have a sufficient charge. Thus, the “dispositive issue as to the claims
against the [City] is whether [Helen] could have survived if [a properly functioning
AED had been used].” See Park Place Hosp., 909 S.W.2d at 511; Arredondo, 198 S.W.3d at
239.
The City refers to alleged “judicial admissions” by the Schronks’ counsel as
establishing that the use of the AED was not a proximate cause of Helen’s death.18 The
two statements are: “There’s no contention the AED caused the underlying heart
condition”; and “there’s not been any allegations by anyone that the AED itself killed
her or caused her to die.”
“A judicial admission must be a clear, deliberate, and unequivocal statement.”
Givens v. Ward, 272 S.W.3d 63, 70 (Tex. App.—Waco 2008, no pet.) (quoting
Horizon/CMS Healthcare, 34 S.W.3d at 905). The first quoted statement, which refers to
Helen’s “underlying heart condition,” does not constitute “a clear, deliberate, and
unequivocal statement” that the use of the AED was not a proximate cause of her death.
18
The Schronks allege for the first time on appeal that the City judicially admitted causation in its
defensive pleadings by stating that Laerdal’s negligent design, etc. of the AED “was a proximate cause or
the proximate cause of the incident, injuries and death and damages at issue.” However, the Schronks
did not rely on this “admission” in the trial court as a basis for denial of the City’s plea to the jurisdiction
or Laerdal’s summary-judgment motion. Because they did not raise it in the trial court, they cannot rely
on it on appeal. See Sherman v. Merit Office Portfolio, Ltd., 106 S.W.3d 135, 140-41 (Tex. App.—Dallas 2003,
pet. denied); Smith v. Altman, 26 S.W.3d 705, 709 (Tex. App.—Waco 2000, pet. dism’d w.o.j.).
Schronk v. City of Burleson Page 29
The second statement must be read in context with a follow-up statement by counsel,
namely, “What’s been alleged by the plaintiffs in this case is that the AED didn’t work
and so therefore she couldn’t be rescued from her ventrical fibrillation.” When read in
context, this second statement likewise does not constitute “a clear, deliberate, and
unequivocal” admission. Thus, the statements in question do not constitute judicial
admissions. See id.
Dr. Desser concludes in his report that “[t]o a reasonable degree of medical
probability exceeding 51%, Mrs. Schronk would have been successfully defibrillated
had the Laerdal Heartstart 911 automatic electrical defibrillator functioned
appropriately.” This conclusion was based on his review of the medical records, the fire
department records including the monitor strip from the AED, the deposition testimony
of various firefighters who responded to the Schronks’ home, and “[p]opulation-based
cohort studies.”
Dr. Desser explains that a “10% increment of ventricular fibrillation mortality per
minute without electrical defibrillation statistic applies to subjects who are not
undergoing cardiopulmonary resuscitation by a bystander who is trained in the
technique.” He notes, however, that Helen did receive CPR from a trained EMT. He
opines that the performance of CPR while awaiting the AED “would, to a reasonable
degree of medical probability, have increased her chance of successful electrical
defibrillation and survival to over 51%.” He describes this as “a conservative estimate
since success rates for non-physician bystanders who are trained in [CPR] in
combination with electrical defibrillation has [sic] a success rate which exceeds 80%.”
Schronk v. City of Burleson Page 30
Desser noted that this survival rate is based on “data which has been accumulated from
free-standing cardiac rehabilitation units where cardiac arrests have occurred in
subjects with serious cardiovascular disorders.” He also observed that the survival rate
is “even higher” for “non-medical environments with access to [EMT’s] and
defibrillators.”
To summarize, Desser took into account Helen’s heart condition before she
suffered the cardiac arrest, examined studies regarding cardiac patients who received
CPR “in combination with electrical defibrillation,” and concluded that, in reasonable
medical probability, there is a better than 51% chance that Helen would have been
successfully defibrillated and would have survived her cardiac arrest if the AED had
functioned properly.
Because we “take as true all evidence favorable to the [Schronks]” and “indulge
every reasonable inference and resolve any doubts in [their] favor,” we conclude “that
there is a disputed material fact” regarding whether the use of the AED was a
proximate cause of Helen’s death. See Bustillos v. Rowley, 225 S.W.3d 122, 129-31 (Tex.
App.—El Paso 2005, no pet.) (expert report that it was “more likely than not” that
patient would have survived adequately addressed causation regarding failure to
monitor cardiac patient); Marvelli, 100 S.W.3d at 481 (expert’s testimony that plaintiff’s
vision would have “in reasonable medical probability” been saved held legally
sufficient to establish cause-in-fact); Bottoms v. Smith, 923 S.W.2d 247, 251-52 (Tex.
App.—Houston [14th Dist.] 1996, no writ) (expert’s testimony that, if appropriate tests
had been done, polyp would have been identified and patient would have better than
Schronk v. City of Burleson Page 31
70% survival rate held sufficient to create fact issue on proximate cause regarding
patient’s death).
Exception for Emergency Responders
According to section 101.055(2) of the Tort Claims Act, there is no waiver of
immunity under the Act19 for the conduct of an emergency responder “if the action is in
compliance with the laws and ordinances applicable to emergency action, or in the
absence of such a law or ordinance, if the action is not taken with conscious indifference
or reckless disregard for the safety of others.” TEX. CIV. PRAC. & REM. CODE ANN. §
101.055(2) (Vernon 2005). The Schronks argue that in this instance the City’s failure to
maintain the AED in accordance with the manufacturer’s guidelines constitutes a
violation of law (section 779.003 of the Health and Safety Code) and removes the
conduct of the emergency responders from the exception provided by section
101.055(2).
Section 779.003 states, “A person or entity that owns or leases an automated
external defibrillator shall maintain and test the automated external defibrillator
according to the manufacturer's guidelines.” TEX. HEALTH & SAFETY CODE ANN. §
779.003 (Vernon 2003). This statute is found in title 9, subtitle B of the Health and Safety
Code. See Act of May 26, 1999, 76th Leg., R.S., ch. 679, § 1, 1999 Tex. Gen. Laws 3250.
Title 9 is entitled “Safety” and subtitle B is entitled “Emergencies.” See Act of May 18,
19
Neither section 101.055 nor section 101.062, which we discuss hereinafter, provides an
independent waiver of immunity. Rather, even if a waiver of immunity is established under section
101.021, a governmental unit may nonetheless retain its immunity if it meets the requisites of section
101.055 or section 101.062. See Gipson v. City of Dallas, 247 S.W.3d 465, 470-71 (Tex. App.—Dallas 2008,
pet. denied); City of El Paso v. Hernandez, 16 S.W.3d 409, 415-16 (Tex. App.—El Paso 2000, pet. denied).
Schronk v. City of Burleson Page 32
1989, 71st Leg., R.S., ch. 678, § 1, 1989 Tex. Gen. Laws 2230, 2235 (table of contents).
Subtitle B also includes statutory provisions governing, among other things,
“emergency communications,” “emergency medical services,” and “emergency services
districts.” Id. Thus, we hold that section 779.003 is a law “applicable to emergency
action.” See TEX. CIV. PRAC. & REM. CODE ANN. § 101.055(2); Mejia v. City of San Antonio,
759 S.W.2d 198, 200 (Tex. App.—San Antonio 1988, no writ).
The Schronks presented the deposition testimony of several firefighters detailing
how the Burleson Fire Department failed to maintain the AED in accordance with the
manufacturer’s guidelines. Taking as true all evidence favorable to the Schronks and
indulging every reasonable inference and resolving any doubts in their favor, we
conclude “that there is a disputed material fact” regarding whether the City failed to
comply with a law “applicable to emergency action.” See Mejia, 759 S.W.2d at 200-01.
Exception for 9-1-1 Emergency Services
According to section 101.062 of the Tort Claims Act, there is a waiver of
immunity for:
a claim against a public agency that arises from an action of an employee
of the public agency or a volunteer under direction of the public agency
and that involves providing 9-1-1 service or responding to a 9-1-1
emergency call only if the action violates a statute or ordinance applicable
to the action.
TEX. CIV. PRAC. & REM. CODE ANN. § 101.062(b) (Vernon 2005).
Under section 101.062(b), the City’s immunity is waived only if the Schronks’
claims arise from the action of a City employee (1) “that involves . . . responding to a
9-1-1 emergency call” and (2) that “violates a statute or ordinance applicable to the
Schronk v. City of Burleson Page 33
action.” Here, the Department’s maintenance of the AED is directly involved with its
response to 9-1-1 calls. As noted, the Schronks have presented evidence that the
Department failed to maintain the AED in accordance with the manufacturer’s
guidelines, which would be a violation of section 779.003.
Taking as true all evidence favorable to the Schronks and indulging every
reasonable inference and resolving any doubts in their favor, we conclude “that there is
a disputed material fact” regarding whether an action of a City employee that involved
responding to a 9-1-1 call violated a statute applicable to the action. See City of Dallas v.
Porter, No. 05-02-00364-CV, 2002 Tex. App. LEXIS 5658, at *7-10 (Tex. App.—Dallas
Aug. 2, 2002, no pet.) (not designated for publication).
Summary
The Schronks presented evidence raising “a disputed material fact” regarding
whether the City’s use of the AED was a proximate cause of Helen’s death, whether the
City failed to comply with a “law[ ] applicable to emergency action,” and whether an
action of a City employee that involved responding to a 9-1-1 call violated a statute
applicable to the action. Therefore, the court erred by granting the City’s plea to the
jurisdiction. We sustain the Schronks’ third point.
Summary Judgment
The Schronks contend in their first point that the court erred by granting
Laerdal’s summary-judgment motion. In particular, they argue: (1) the trial court
granted only Laerdal’s traditional summary-judgment motion; (2) Laerdal’s motion
addressed only their negligence claim and thus summary judgment was improper on
Schronk v. City of Burleson Page 34
their strict product liability claim; and (3) genuine issues of material fact remain on both
claims. Laerdal also presents a procedural issue, contending that Dr. Reese’s affidavit
cannot be considered part of the summary-judgment record on appeal because the trial
court sustained the City’s objections to the affidavit.
Standards of Review
In reviewing a traditional summary judgment, we must consider whether
reasonable and fair-minded jurors could differ in their conclusions in light of all of the
evidence presented. See Goodyear Tire & Rubber Co. v. Mayes, 236 S.W.3d 754, 755 (Tex.
2007) (per curiam) (citing Wal-Mart Stores, Inc. v. Spates, 186 S.W.3d 566, 568 (Tex. 2006)
(per curiam); City of Keller v. Wilson, 168 S.W.3d 802, 822-24 (Tex. 2005)). We must
consider all the evidence in the light most favorable to the nonmovant, indulging every
reasonable inference in favor of the nonmovant and resolving any doubts against the
movant. See Goodyear Tire, 236 S.W.3d at 756 (citing Sudan v. Sudan, 199 S.W.3d 291, 292
(Tex. 2006) (per curiam); Spates, 186 S.W.3d at 568).
We apply the same standard in reviewing a no-evidence summary judgment as
we would in reviewing a directed verdict. See Mack Trucks, Inc. v. Tamez, 206 S.W.3d
572, 581 (Tex. 2006). “We review the evidence presented by the motion and response in
the light most favorable to the party against whom the summary judgment was
rendered, crediting evidence favorable to that party if reasonable jurors could, and
disregarding contrary evidence unless reasonable jurors could not.” Id. at 582. A no-
evidence summary judgment will be defeated if the nonmovant produces some
Schronk v. City of Burleson Page 35
evidence “raising an issue of material fact” on the elements challenged by the movant.
Id.
Procedural Issues
Laerdal filed a summary-judgment motion presenting both no-evidence and
traditional grounds. They entitled this pleading “Defendant Laerdal Medical Corp.’s
Motion for Summary Judgment and No Evidence Motion for Summary Judgment.”
With regard to the Schronks’ negligence claims, Laerdal alleged that there was no
evidence that: (1) the AED or its battery was “defectively manufactured, designed,
supplied, sold or marketed to the City”; or (2) any act or failure to act on Laerdal’s part
was a proximate cause of Helen’s injuries. With regard to the Schronks’ strict product
liability claim, Laerdal alleged that there was no evidence that the AED or its battery
was defective. As a traditional ground for summary judgment, Laerdal alleged that the
“undisputed evidence demonstrates neither the HeartStart 911 AED or the
accompanying battery used during the attempted resuscitation were defective.”
In the Schronks’ summary-judgment response, they argued that genuine issues
of material fact remained concerning whether: (1) the AED malfunctioned according to
FDA regulations; (2) the AED battery was “misbranded” (i.e., mislabeled) under FDA
regulations regarding replacement of batteries; (3) Laerdal failed to provide adequate
training and service to the City regarding battery maintenance; and (4) these were
proximate causes of Helen’s death.
In its order granting summary judgment, the court stated that it had considered
and was granting the “Motion for Summary Judgment.” The court rendered judgment
Schronk v. City of Burleson Page 36
that the Schronks take nothing on their claims against Laerdal. The Schronks first
contend that, in view of the two-part title Laerdal gave to its summary-judgment
pleading, the court’s reference to the “Motion for Summary Judgment” is necessarily a
reference to only the traditional grounds for summary judgment stated in the motion.
We disagree.
At the summary-judgment hearing, the court informed the parties that it wanted
to hear “Laerdal’s Motion for Summary Judgment.” Laerdal’s counsel promptly
advised the court that Laerdal’s motion encompassed both traditional grounds and no-
evidence grounds for summary judgment. The Schronks did not object to this
characterization. Thus we hold that the trial court’s order granted both the traditional
and no-evidence portions of Laerdal’s summary-judgment motion. This holding also
answers the Schronks’ next argument, namely, that the court granted summary
judgment only on the Schronks’ negligence claim because that is the only claim
challenged by the traditional portion of Laerdal’s summary-judgment motion.
Laerdal contends that Dr. Reese’s affidavit is not part of the summary-judgment
record because the trial court sustained the City’s objections to the affidavit. Laerdal
filed written objections to Dr. Reese’s affidavit but did not call those objections to the
trial court’s attention at the summary-judgment hearing and did not obtain a ruling on
the objections.20
20
Laerdal also filed written objections to Dr. Desser’s affidavit but did not call those objections to
the trial court’s attention at the summary-judgment hearing and did not obtain a ruling on the objections.
Laerdal does not challenge the admissibility of Dr. Desser’s affidavit on appeal.
Schronk v. City of Burleson Page 37
Objections to the form of summary-judgment evidence are preserved for
appellate review only if those objections are made and ruled on in writing by the trial
court. See Choctaw Props., 127 S.W.3d at 241; Trusty v. Strayhorn, 87 S.W.3d 756, 762 (Tex.
App.—Texarkana 2002, no pet.). By contrast, objections to the substance of such
evidence may be raised for the first time on appeal. See Choctaw Props., 127 S.W.3d at
241; Trusty, 87 S.W.3d at 765.
We assume without deciding that Laerdal may rely on the City’s objections and
the court’s rulings thereon. As we have determined, however, the only objection which
the trial court properly sustained was the objection that Dr. Reese was not qualified to
give an expert opinion on Helen’s cause of death. Nevertheless, because Laerdal’s
primary objection is that Dr. Reese’s affidavit is conclusory, we may consider that
objection for the first time on appeal because it challenges the substance of the evidence.
Id.
Laerdal contends that Dr. Reese’s affidavit is conclusory because it is “not based
on anything remotely related to the facts,” because it is “instead based solely on his own
conjecture and conclusions,” and because there is “no evidence he inspected, evaluated
or tested the device or battery in question.” Because Laerdal makes only these general
objections and provides scant argument or authority,21 we limit our analysis to the issue
21
Laerdal’s argument and authority on the allegedly conclusory nature of Dr. Reese’s affidavit is
contained in a footnote in its brief which reads as follows:
Mr. Reese’s affidavit failed to satisfy Appellants’ burden because Mr. Reese cannot
establish that the AED battery, had it been properly charged, would not have functioned
appropriately. His affidavit was wholly conclusive, not based on anything remotely
related to the facts, instead based solely on his own conjecture and conclusions. There is
Schronk v. City of Burleson Page 38
of whether Dr. Reese’s affidavit is conclusory because he did not personally inspect the
AED or its battery. Summary-judgment evidence is considered “conclusory” if it “does
not provide the underlying facts to support the conclusion.” Choctaw Props., 127 S.W.3d
at 242 (quoting Dolcefino, 19 S.W.3d at 930)).
Under Rule of Evidence 703, an expert’s opinion may be based on facts or data
“perceived by, reviewed by, or made known to the expert at or before the hearing.”
TEX. R. EVID. 703. Such facts or data need not be admissible in evidence if they are “of a
type reasonably relied upon by experts in the particular field.” Id. Personal knowledge
of the underlying facts or data is not required. See id. 602, 703; Henderson v. State, 14
S.W.3d 409, 412 (Tex. App.—Austin 2000, no pet.); 2 STEVEN GOODE ET AL., GUIDE TO THE
TEXAS RULES OF EVIDENCE § 703.3 (3d ed. 2002). Thus, it is not necessary for a testifying
expert to have personally inspected an object as a prerequisite to offering expert
testimony regarding that object. See SPT Fed. Credit Union v. Big H Auto Auction, Inc.,
761 S.W.2d 800, 802-03 (Tex. App.—Houston [1st Dist.] 1988, no writ) (expert permitted
to testify to value of shrimp boat even though he had never inspected or viewed the
boat). That the expert had not personally inspected the object would go to the weight of
his testimony and not its admissibility. See LMC Complete Automotive, Inc. v. Burke, 229
S.W.3d 469, 478 (Tex. App.—Houston [1st Dist.] 2007, pet. denied) (“The weakness of
facts in support of an expert’s opinion generally goes to the weight of the testimony
rather than the admissibility.”).
further no evidence he inspected, evaluated or tested the device or battery in question.
(C.R. V7, 1461) Laerdal continues to assert these substantive objections to this Court and
argues that, as such, Mr. Reese’s Affidavit is not competent summary judgment evidence.
Rizkallah v. Conner, 952 S.W.2d 580, 587 (Tex. App.—Houston [1st Dist.] 1997, no pet.).
Schronk v. City of Burleson Page 39
Accordingly, we reject Laerdal’s challenge to the admissibility of Dr. Reese’s
affidavit.
Defective Product
The Schronks contend that genuine issues of material fact remain on the question
of whether the AED or its battery was defective.22 Laerdal alleged in its summary-
judgment motion that: (1) the evidence conclusively establishes that the AED and its
battery were not defective and were “fully functional and operational” on the occasion
in question; and (2) there is no evidence that (a) the AED or its battery was defective or
(b) the AED or its battery was “defectively manufactured, designed, supplied, sold or
marketed to the City.”
The Schronks relied primarily on Dr. Reese’s affidavit in their summary-
judgment response to establish that the AED was defective. They assert essentially four
defects: (1) the AED malfunctioned because it did not provide defibrillating shocks after
giving a “low battery” warning; (2) the AED malfunctioned because it never gave a
“replace battery” warning; (3) the AED battery is misbranded because it is labeled with
a “recommended replacement” date rather than an “expiration date”; and (4) the AED
battery is misbranded because its labeling is not sufficiently prominent.
According to pertinent FDA regulations:
22
The Schronks’ defective product claim is based on section 402A of the Restatement (Second) of
Torts. See RESTATEMENT (SECOND) OF TORTS § 402A (1965). The elements for a strict product liability
claim under section 402A are: (1) a product defect; (2) that existed at the time the product left the
manufacturer’s hands; (3) made the product unreasonably dangerous; and (4) was a producing cause of
the plaintiff’s injuries. Parsons v. Ford Motor Co., 85 S.W.3d 323, 329 (Tex. App.—Austin 2002, pet.
denied).
Schronk v. City of Burleson Page 40
“Malfunction” means the failure of a device to meet its performance
specifications or otherwise perform as intended. Performance
specifications include all claims made in the labeling for the device. The
intended performance of a device refers to the intended use for which the
device is labeled or marketed, as defined in § 801.4 of this chapter.
21 C.F.R. § 803.3.
Section 301 of the Federal Food, Drug and Cosmetic Act prohibits the sale or
distribution of “misbranded”23 drugs and medical devices.24 21 U.S.C.S. § 331(a)
(LexisNexis 2006). Section 502 defines a “misbranded” drug or device in pertinent part
as follows:
False or misleading label. If its labeling is false or misleading in any
particular.
Prominence of information on label. If any word, statement, or other
information required by or under authority of this Act [21 USCS §§ 301 et
seq.] to appear on the label or labeling is not prominently placed thereon
with such conspicuousness (as compared with other words, statements,
designs, or devices, in the labeling) and in such terms as to render it likely
to be read and understood by the ordinary individual under customary
conditions of purchase and use.
Restricted devices using false or misleading advertising or used in
violation of regulations. In the case of any restricted device distributed or
offered for sale in any State, if (1) its advertising is false or misleading in
any particular, or (2) it is sold, distributed, or used in violation of
regulations prescribed under section 520(e) [21 USCS § 360j(e)].
23
A claim that a drug or medical device is “misbranded” is in essence a marketing defect claim.
See, e.g., Merck & Co. v. Garza, 277 S.W.3d 430, 437 (Tex. App.—San Antonio 2008, pet. filed).
24
It is undisputed that an AED is a medical device governed by the Federal Food, Drug and
Cosmetic Act. See United States v. Laerdal Mfg. Corp., 853 F. Supp. 1219, 1238 (D. Or. 1994), aff’d, 73 F.3d
852 (9th Cir. 1995).
Schronk v. City of Burleson Page 41
Id. § 352(a), (c), (q) (LexisNexis 2006); see also TEX. HEALTH & SAFETY CODE ANN. §
431.112(a)(1), (c), (o) (Vernon Supp. 2008) (similar definitions for misbranded drug or
device in Texas Food, Drug, and Cosmetic Act).
Dr. Reese noted that, according to the instruction manual for the AED, “a low
battery signal indicates that there is sufficient energy remaining in the battery to allow
four (4) additional shocks.” Firefighter Burchett testified that when the AED indicated
that a defibrillating shock should be administered to Helen, the AED “said audibly
‘Low Battery’” but failed to administer a shock. The evidence is undisputed that the
AED never administered a defibrillating shock on that occasion.
Dr. Reese also observed that, according to the instruction manual, “when the
battery does not have enough charge to allow four (4) additional shocks, the device will
signal a “Replace Battery warning.”25 According to Laerdal records, the AED gave a
“low battery warning” each time it failed to administer a shock “and then powered
down because of a low battery, notated on the printout as ‘BAT.FAIL.’” The instruction
manual explains that “BAT.FAIL” indicates that the AED has shut down because of a
low battery. The Laerdal incident report does not indicate that the “REPLACE
BATTERY” warning was given on the occasion in question.
25
Section 4.8.2 of the instruction manual provides in pertinent part, “If three more charge-to-shock
cycles are initiated after the ‘BATTERY LOW’ warning, a ‘REPLACE BATTERY’ warning will be given.”
“‘REPLACE BATTERY’ indicates that there may not be enough capacity in the battery to deliver another
shock.”
Schronk v. City of Burleson Page 42
Dr. Reese opines that these failures of the AED to perform in accordance with the
instruction manual constitute “malfunctions” as defined by 21 C.F.R. § 803.3.26
Viewing the evidence in the light most favorable to the Schronks and indulging
every reasonable inference and resolving any doubts in their favor, we hold that the
Schronks produced some evidence “raising an issue of material fact” on the question of
whether the AED malfunctioned.
With regard to the Schronks’ “misbranding” claims, they first complain that the
AED battery label is misleading because it is labeled with a “recommended
replacement” date rather than an “expiration date.” According to the deposition
testimony of Laerdal employee Linda Riedeburg, the pertinent portion of the battery
label has a box with the printed notation “Recommended Replacement” beside it.
Riedeburg examined an enlarged photograph of the battery label and testified that the
box beside the “recommended replacement” notation was blank, that is, it did not
provide a recommended replacement date.
Dr. Reese opined that the use of the term “recommended replacement” or
“recommend replacement” instead of “expiration date” is misleading. According to Dr.
Reese:
The use of these terms is potentially hazardous and even life threatening
because in order to assure that the AED’s are capable of functioning in
response to their design objective intent, these batteries MUST be changed
no later than upon an identified “Expiration Date” of no more than two (2)
26
Because the Schronks seek only to enforce federal regulations for medical devices in their suit,
their product liability claims are not preempted by the FDCA. See Riegel v. Medtronic, Inc., ___ U.S. ___,
128 S. Ct. 999, 1011, 169 L. Ed. 2d 892 (2008) (FDCA “does not prevent a State from providing a damages
remedy for claims premised on a violation of FDA regulations; the state duties in such a case ‘parallel,’
rather than add to, federal requirements”).
Schronk v. City of Burleson Page 43
years. The terms “Recommended Replacement” or “Recommend
Replacement” are clearly subjective, open-ended and not interpreted as a
mandatory requirement by Laerdal, which in reality it is.
The instruction manual provides, “Replace batteries every two years. Check date
codes on a regular basis.” However, Battalion Chief Tom Foster testified in his
deposition that, when he contacted Laerdal about ordering new batteries, a Laerdal
representative informed him that the AED batteries had “a seven-year shelf life.” Foster
understood this to mean that the “[b]atteries were good for seven years.”
A medical device is “misbranded” if “its labeling is false or misleading in any
particular.” 21 U.S.C.S. § 352(a).
If an article is alleged to be misbranded because the labeling or
advertising is misleading, then in determining whether the labeling or
advertising is misleading there shall be taken into account (among other
things) not only representations made or suggested by statement, word,
design, device, or any combination thereof, but also the extent to which
the labeling or advertising fails to reveal facts material in the light of such
representations or material with respect to consequences which may result
from the use of the articles to which the labeling or advertising relates
under the conditions of use prescribed in the labeling or advertising
thereof or under such conditions of use as are customary or usual.
Id. § 321(n) (LexisNexis 2006). Thus, Laerdal’s representations are relevant to this
inquiry.
The [FDCA] is plain and direct. Its comprehensive terms condemn
every statement, design and device which may mislead or deceive.
Deception may result from the use of statements not technically false or
which may be literally true. The aim of the statute is to prevent that
resulting from indirection and ambiguity, as well as from statements
which are false. It is not difficult to choose statements, designs and
devices which will not deceive. Those which are ambiguous and liable to
mislead should be read favorably to the accomplishment of the purpose of
the act.
Schronk v. City of Burleson Page 44
United States v. Ninety-Five Barrels (More or Less) Alleged Apple Cider Vinegar, 265 U.S. 438,
442-43, 44 S. Ct. 529, 531, 68 L. Ed. 1094 (1924); accord United States v. An Article . . . ACU-
DOT, 483 F. Supp. 1311, 1315 (N.D. Ohio 1980); Edward M. Basile et al., Medical Device
Labeling and Advertising: An Overview, 54 FOOD & DRUG L.J. 519, 521 (1999).
Viewing the evidence in the light most favorable to the Schronks and indulging
every reasonable inference and resolving any doubts in their favor, we hold that
genuine issues of material fact remain on the question of whether the AED battery is
misbranded because of the manner in which the replacement date is indicated on the
label. Cf. United States v. Jamieson-McKames Pharms., Inc., 651 F.2d 532, 545-46 (8th Cir.
1981) (drugs misbranded because labels depicted false expiration date).
The Schronks also contend that the AED battery is misbranded because its
labeling is not sufficiently prominent. A drug or medical device does not satisfy the
prominence requirements of the FDCA if “the information is presented in type that is
too small, fades into the background, is obscured, or crowded with other graphic
matter.” Basile, supra, 54 FOOD & DRUG L.J. at 522-23 (citing 21 C.F.R. § 801.15(a)(6)). A
drug or medical device also fails to satisfy these requirements if required information
does not “appear on the part or panel of the label which is presented or displayed under
customary conditions of purchase.” 21 C.F.R. § 801.15(a)(1).
Laerdal employee Riedeburg testified that the box beside the “recommended
replacement” notation was blank, that is, it did not provide a recommended
replacement date. Viewing the evidence in the light most favorable to the Schronks and
indulging every reasonable inference and resolving any doubts in their favor, we hold
Schronk v. City of Burleson Page 45
that genuine issues of material fact remain on the question of whether the AED battery
is misbranded because it does not depict an expiration date. See United States v. Dino,
919 F.2d 72, 75 (8th Cir. 1990) (sample drugs misbranded because they were not marked
with lot numbers or expiration dates).
Thus, genuine issues of material fact remain on the questions of whether the
AED or its battery was defective and whether the AED or its battery was “defectively
manufactured, designed, supplied, sold or marketed to the City.”
Causation
Laerdal alleged in its summary-judgment motion that it is entitled to judgment
on the Schronks’ negligence claim because there is no evidence any act or failure to act
on Laerdal’s part was a proximate cause of Helen’s injuries.
The Schronks allege, among other things, that Laerdal was negligent because it:
(1) failed to properly train employees of the City on maintenance, testing and upkeep of
the AED and/or its batteries; (2) advised Battalion Chief Foster that the batteries were
good for seven years; and (3) failed to label the batteries with expiration dates.
Battalion Chief Foster testified that the AED batteries were not replaced every two years
because Laerdal advised that they were good for seven years.
Dr. Reese opined that Laerdal’s negligence resulted in the AED not “being fully
functional” and “denied life saving therapy” to Helen. Dr. Desser concluded that, in
reasonable medical probability, there is a better than 51% chance that Helen would have
been successfully defibrillated and would have survived her cardiac arrest if the AED
had functioned properly.
Schronk v. City of Burleson Page 46
Viewing the evidence in the light most favorable to the Schronks and indulging
every reasonable inference and resolving any doubts in their favor, they produced some
evidence “raising an issue of material fact” on the question of whether Laerdal’s
negligence was a proximate cause of Helen’s death.
We sustain the Schronks’ first point.
Conclusion
The trial court erred by granting the City’s plea to the jurisdiction and by
granting Laerdal’s summary-judgment motion. Accordingly, we reverse the judgment
and remand this cause to the trial court for further proceedings consistent with this
opinion.
FELIPE REYNA
Justice
Before Chief Justice Gray,
Justice Reyna, and
Justice Davis
(Chief Justice Gray dissenting in part
and concurring in part with note)*
Reversed and remanded
Opinion delivered and filed July 22, 2009
[CV06]
* (Chief Justice Gray dissents in part and concurs in part with the judgment of the
Court. A separate opinion will not issue. He notes, however, that the claims against the
City of Burleson were properly dismissed. The claim is based entirely on the fact that
the AED the fire department first attempted to use did not work properly. As such, it is
either a suit for the failure to use a working AED device--in essence non-use of tangible
personal property which is not actionable. In the alternative, it was for the use of an
AED that did not work. But it is undisputed that the AED device did not cause her
death. The Court gets around this problem by finding the Fire Department violated the
law in an emergency by failing to properly check or test the AED batteries. But that
negligence, if any, was not part of the emergency, and the waiver of immunity for such
Schronk v. City of Burleson Page 47
activity is not implicated--if anything, it was simple negligence of a governmental
employee for which sovereign immunity is not waived. For these and other reasons, I
join no part of the Court’s opinion and respectfully dissent to that portion of the
judgment which reverses the judgment in favor of the City of Burleson. And though I
join no part or portion of the opinion, I concur in the reversal of the judgment to the
extent it reverses and remands the judgment in favor of Laerdal for further
proceedings.)
Schronk v. City of Burleson Page 48