Eugene M. Sanchez v. David Leija and Lindale Wrecker Service

Opinion issued December 15, 2020

In The

Court of Appeals
For The

First District of Texas
————————————
NO. 01-19-00165-CV
———————————
EUGENE M. SANCHEZ, Appellant
V.
DAVID LEIJA AND LINDALE WRECKER SERVICE, Appellees

On Appeal from the 190th District Court
Harris County, Texas
Trial Court Case No. 2016-14474

MEMORANDUM OPINION

Eugene M. Sanchez sued David Leija and his business, Lindale Wrecker

Services, alleging that Leija caused him medical injuries and property damage in a

motor vehicle accident. In two issues, Sanchez argues that the trial court erred in
granting partial summary judgment on medical causation in favor of Leija and that

the trial court erred in issuing a final take nothing judgment against him. We affirm.

Background

In September 2015, Sanchez and Leija were involved in a motor vehicle

accident in Houston. Sometime after the incident, Sanchez sought medical treatment

for neck and back pain. He also spoke with his existing mental health provider about

the accident’s effect on him.

In March 2016, Sanchez sued Leija and his business, Lindale Wrecker

Service, alleging that Leija’s negligence caused his medical injuries and property

damage. In December 2017, Leija filed a no-evidence motion for partial summary

judgment alleging that Sanchez had not raised evidence to establish a fact question

as to causation. Leija argued that there was no evidence that Sanchez suffered any

damages caused by Leija’s negligence and that Sanchez had failed to present

required expert testimony to prove his injuries. In response, Sanchez submitted

evidence including: (1) Department of Veteran’s Affairs (VA) Billing

Affidavit/Certification, (2) Sanchez’s deposition testimony, and (3) an Allied

Medical Centers billing record with three pages of medical records. After argument,

the court granted Leija’s no-evidence motion for partial summary judgment

regarding medical causation. The court also granted partial summary judgment in

favor of Leija regarding property damage. Sanchez moved for reconsideration of the

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partial summary judgment related to medical causation, and the court denied the

motion. In January 2019, Sanchez moved to retain the case. In response, Leija moved

to dismiss for want of prosecution or, in the alternative, requested entry of final

judgment. The court issued a final take nothing judgment in favor of Leija in

February 2019. Sanchez appeals.

No-Evidence Summary Judgment

In his first issue, Sanchez argues that the trial court erred in granting Leija’s

no-evidence summary judgment motion. Specifically, Sanchez contends that he

provided evidence—medical bills from the VA hospital, three pages of medical

records, and his own deposition testimony—to raise a genuine issue of material fact

as to medical causation and defeat summary judgment. Leija responds that the

evidence Sanchez presented was insufficient. We agree with Leija.

A. Standard of Review

A no-evidence motion for summary judgment under Rule 166a(i) is

essentially a motion for pretrial directed verdict. TEX. R. CIV. P. 166a(i); Timpte

Indus., Inc. v. Gish, 286 S.W.3d 306, 310 (Tex. 2009). After an adequate time for

discovery, a party without the burden of proof may, without presenting evidence,

seek summary judgment on the ground that there is no evidence to support one or

more essential elements of the non-movant’s claim or defense. TEX. R. CIV. P.

166a(i). The motion must specifically state the elements for which there is no

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evidence. Id.; Timpte Indus., Inc., 286 S.W.3d at 310. The trial court is required to

grant the motion unless the nonmovant produces summary judgment evidence that

raises a genuine issue of material fact. TEX. R. CIV. P. 166a(i).

We review no-evidence summary judgments under the same legal sufficiency

standard as directed verdicts. See Merriman v. XTO Energy, Inc., 407 S.W.3d 244,

248 (Tex. 2013); King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 750 (Tex. 2003).

Under that standard, evidence is considered in the light most favorable to the

nonmovant, crediting evidence a reasonable jury could credit and disregarding

contrary evidence and inferences unless a reasonable jury could not. Goodyear Tire

& Rubber Co. v. Mayes, 236 S.W.3d 754, 756 (Tex. 2007) (per curiam); City of

Keller v. Wilson, 168 S.W.3d 802, 823 (Tex. 2005). A no-evidence challenge will

be sustained when

(a) there is a complete absence of evidence of a vital fact, (b) the court
is barred by rules of law or of evidence from giving weight to the only
evidence offered to prove a vital fact, (c) the evidence offered to prove
a vital fact is no more than a mere scintilla, or (d) the evidence
conclusively establishes the opposite of the vital fact.

King Ranch, 118 S.W.3d at 751 (quoting Merrell Dow Pharm. v. Havner, 953

S.W.2d 706, 711 (Tex. 1997)).

To defeat summary judgment, the nonmovant is required to produce more

than a scintilla of probative evidence to raise a genuine issue of material fact on the

challenged elements. Forbes, Inc. v. Granada Biosciences, Inc., 124 S.W.3d 167,

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172 (Tex. 2003). That burden is not met when the evidence is “so weak as to do no

more than create a mere surmise or suspicion” of a fact. King Ranch, 118 S.W.3d at

751 (quoting Kindred v. Con/Chem, Inc., 650 S.W.2d 61, 63 (Tex. 1983)). In

determining whether the nonmovant has produced more than a scintilla of evidence,

we review the evidence in the light most favorable to the nonmovant, crediting such

evidence if reasonable jurors could, and disregarding contrary evidence unless

reasonable jurors could not. See City of Keller, 168 S.W.3d at 827.

B. Analysis

To prevail on a negligence cause of action, Sanchez must establish the

existence of a duty, a breach of that duty, and damages proximately caused by the

breach. W. Invs. v. Urena, 162 S.W.3d 547, 550 (Tex. 2005). Establishing causation

in a personal injury case requires a plaintiff to “prove that the conduct of the

defendant caused an event and that this event caused the plaintiff to suffer

compensable injuries.” JLG Trucking, LLC v. Garza, 446 S.W.3d 157, 162 (Tex.

2015) (quoting Burroughs Wellcome Co. v. Crye, 907 S.W.2d 497, 499 (Tex. 1995)).

When an accident victim seeks to recover medical expenses, he must show “what all

the conditions were that generated the expenses and ‘that all the conditions were

caused by the accident.’” Id. (quoting Guevara v. Ferrer, 247 S.W.3d 662, 669 (Tex.

2007)).

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 No evidence in the record before us raises a fact question to establish

causation and defeat summary judgment. In his deposition, Sanchez testified that he

first sought medical treatment at an emergency room days after the accident because

his low back was hurting. He saw another health care provider who recommended

physical therapy, Sanchez did not remember when. He received physical therapy for

his low back pain and also saw a chiropractor. He testified that he had a prior back

injury from years before the accident. Sanchez also stated that he received mental

health treatment for post-traumatic stress disorder prior to and after the accident. He

testified that he discussed the accident with this mental health provider because the

accident made him more cautious while driving.

In Guevara, the Texas Supreme Court concluded that “expert medical

evidence is required to prove causation unless competent evidence supports a finding

that the conditions in question, the causal relationship between the conditions and

the accident, and the necessity of the particular medical treatments for the conditions

are within the common knowledge and experience of laypersons.” 247 S.W.3d at

663. The court also observed that expert testimony on causation is not required in

limited circumstances when “both the occurrence and conditions complained of are

such that the general experience and common sense of laypersons are sufficient to

evaluate the conditions and whether they were probably caused by the

occurrence.” Id. at 667–68. When the exception applies, then “[g]enerally, lay

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testimony establishing a sequence of events which provides a strong, logically

traceable connection between the event and the condition is sufficient proof of

causation.” Morgan v. Compugraphic Corp., 675 S.W.2d 729, 733 (Tex. 1984).

Sanchez did not provide expert testimony to raise a fact question as to

causation, and his injuries are not the type of “basic” injuries identified in Guevara

in which expert testimony regarding the casual connection between an occurrence

and a physical condition is unnecessary. Guevara, 247 S.W.3d at 667. The type of

injuries for which Sanchez seeks compensation—ligament sprain of the thoracic

spine and lumbar spine, back spasms, lumbar radiculopathy, and increased

symptoms of post-traumatic stress disorder—are neither common nor basic. See id.

at 669–70.

Not only are the medical conditions not within the common knowledge and

experience of layperson, but temporal proximity alone in this case, that is, the time

between the accident and Sanchez’s treatment, does not support an inference of

medical causation. See id. at 667. Sanchez sought treatment days after, and later

months after, the accident. Sanchez’s testimony that he experienced back pain

sometime after the accident merely raises a suspicion that the accident caused his

injury. See id. at 668. Sanchez acknowledged that he had preexisting back pain and

mental health issues. The Supreme Court has observed that suspicion is not legally

sufficient to support a finding of causation. See id.; Urena, 162 S.W.3d at 551

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(proximate causation cannot be shown through conjecture, guess or speculation);

IHS Cedars Treatment Ctr. of DeSoto, Tex., Inc. v. Mason, 143 S.W.3d 794, 799

(Tex. 2004) (in negligence case, cause-in-fact not established where defendant’s

negligence did no more than furnish condition which made the injury possible). The

fact that Sanchez sought medical treatment at some point in time after the accident

is not sufficient evidence of causation to defeat summary judgment.

The medical records also do not raise a fact question with respect to causation.

Competent expert medical causation evidence, whether expressed in testimony or in

medical records, must be grounded in reasonable medical probability, not

speculation or conjecture. Burroughs Wellcome Co., 907 S.W.2d at 500; Plunkett v.

Conn. Gen. Life Ins. Co., 285 S.W.3d 106, 119 (Tex. App.—Dallas 2009, pet.

denied). Mere recitations of medical history, such as those included in the VA

medical records, are not independent opinions on causation. Burroughs Wellcome

Co., 907 S.W.2d at 500. The fact that Sanchez visited a doctor seven months after

the incident and was diagnosed with various back conditions does not raise a fact

issue as to whether he experienced injuries related to the accident. See Guevara, 247

S.W.3d at 669.

Moreover, Sanchez did not properly designate the doctor mentioned in the

medical records as an expert. TEX. R. CIV. P. 194.2. While he submitted an expert

witness designation, it failed to state the subject matter, conclusion, and the materials

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reviewed by Dr. Syed. See id. The designation also fails to disclose the “general

substance of the expert’s mental impression and opinions and a brief summary of

the basis for them” in accordance with the rule. See id.

The billing affidavits do not raise a fact question with respect to causation.

The list of charges merely recites that Sanchez was treated at the VA hospital by

physical therapists, emergency medicine doctors, and a chiropractor. “Patients in

hospitals are often treated for more than one condition brought on by causes

independent of each other.” Guevara, 247 S.W.3d at 669. The bill is not evidence of

the underlying conditions for which Sanchez was treated nor does it provide

evidence to show that he was treated as a result of the accident. See id.

For the first time on appeal, Sanchez argues that he could not obtain testimony

from the medical doctors who treated him at the VA hospital because they are

prevented from testifying by federal statute. Pursuant to its authority under 5 U.S.C.

§ 301, the Department of Veterans Affairs (VA) has promulgated regulations

restricting the circumstances in which VA employees may be called to testify and

the scope of their testimony in matters that do not involve the federal government as

a party. See 38 C.F.R. §§ 14.800–.810. A VA employee may provide testimony or

produce VA records in legal proceedings only as authorized in accordance with the

regulations and only as authorized by a determining official. See 38 C.F.R. § 14.803.

Such testimony or records must be sought through the process provided in the

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regulations. See 38 C.F.R. § 14.800, .806. This issue is not properly before the court

because Sanchez did not raise it in his summary judgment response or motion for

reconsideration. See TEX. R. CIV. P. 166(a)(c) (“Issues not expressly presented to the

trial court by written motion, answer or other response shall not be considered on

appeal as grounds for reversal.”). And federal regulation does not prohibit VA

officials from testifying in court proceedings, it simply establishes a framework

through which testimony may be obtained. See 38 C.F.R. § 14.808. The code also

does not prevent Sanchez from retaining an outside expert to review VA records or

any other records he presents to address causation. Because Sanchez did not provide

expert evidence of the causation of his injuries, the trial court did not err by granting

Leija’s no-evidence motion for summary judgment.

Sanchez failed to produce more than a scintilla of competent evidence on the

element of causation of his medical injuries. The trial court did not err in granting

summary judgment in favor of Leija. Forbes, Inc., 124 S.W.3d at 172. We overrule

Sanchez’s first issue.

Final Judgment

In his second issue, Sanchez contends that the trial court erred in issuing a

final take nothing judgment against him and abused its discretion in denying his

motion to retain. In January 2019, Sanchez moved to retain the case, and in response,

Leija moved to dismiss for want of prosecution or, in the alternative, requested entry

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of final judgment. After reviewing the record, summary judgment order, and a Rule

11 agreement between the parties, the trial court issued a final judgment in favor of

Leija in February 2019. On appeal, Sanchez contends that he diligently pursued his

claims and that the trial court erred in entering final judgment because he had

“additional causes of action to prosecute.” Sanchez does not state specifically what

claims remained unresolved.

Sanchez has failed to adequately brief this argument. An appellant must

provide a brief containing “clear and concise argument[s] for the contentions made,

with appropriate citations to authorities and to the record.” TEX. R. APP. P. 38.1(i).

Sanchez alleged that Leija’s negligence caused his medical injuries and property

damage. Sanchez’s claims for past and future medical expenses, past and future pain

and mental anguish, past and future impairment, and future loss of wages resulting

from Leija’s negligence were disposed of when the court granted partial summary

judgment regarding medical causation. This order was never vacated. The trial court

also granted partial summary judgment as to property damage of a motorcycle. On

appeal, Sanchez does not contend that his property damage claim remained

outstanding.1 Therefore, Sanchez has failed to meet his burden to show how the trial

court erred in issuing a final judgment against him. TEX. R. APP. P. 38.1(i). Since

1
Leija’s brief states that the property damage claim was resolved by summary
judgment and a Rule 11 agreement between the parties.
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there were no remaining issues before the court, the court did not err in entering a

final judgment. We overrule Sanchez’s second issue.

Conclusion

We affirm the judgment of the trial court.

Peter Kelly
Justice

Panel consists of Justices Kelly, Goodman, and Countiss.

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