Opinion
No. 05-03-01153-CV
Opinion Filed July 20, 2004.
On Appeal from the 15th District Court, Grayson County, Texas, Trial Court Cause No. 00-0999.
Affirm.
Before Justices WRIGHT, O'NEILL, and FRANCIS.
MEMORANDUM OPINION
Appellant Durrel N. Hair, Jr. appeals a no-evidence summary judgment granted in favor of appellee Church Dwight Co., Inc. In three points of error, Hair generally contends summary judgment was improper because (1) the trial court did not order schedule three discovery, and (2) he raised a fact issue in response to the no-evidence motion. For the following reasons, we affirm the trial court's judgment.
In his first and second points of error, Hair contends the trial court's failure to order schedule three discovery requires reversal of the summary judgment. These points are both premised on Hair's assumption that a trial court cannot rule on a no-evidence motion for summary judgment unless it properly follows the rules concerning the scheduling of discovery. However, in determining whether to grant a no-evidence motion for summary judgment, the trial court need determine only whether the nonmovant has had an adequate time for discovery. Restaurant Teams Int'l, Inc. v. MG Sec. Corp., 95 S.W.3d 336, 339 (Tex. App.-Dallas 2002, no pet.); Branum v. Northwest Texas Healthcare Sys., Inc., 134 S.W.3d 340, 343 (Tex. App.-Amarillo 2003, pet. denied). Whether a nonmovant has had an adequate time for discovery is case specific. Restaurant Teams, 95 S.W.3d at 339. Here, Hair has failed to assert he did not have an adequate time for discovery under the specific facts of this case. Hair's complaint that the trial court did not order level three discovery is not a proper attack on a no-evidence motion for summary judgment. See Restaurant Teams, 95 S.W.3d at 339; Branum, 134 S.W.3d at 343.
Moreover, a plaintiff cannot complain that he did not have an adequate time for discovery unless he filed either an affidavit explaining the need for further discovery or a verified motion for continuance. Tenneco Inc. v. Enter. Prods. Co., 925 S.W.2d 640, 647 (Tex. 1996); Stangel v. Perkins, 87 S.W.3d 706, 709 (Tex. App.-Dallas 2002, no pet.). Hair filed neither. Although Hair did file a motion for continuance with his response to the motion for summary judgment, this motion was not verified and did not request any specific discovery. Consequently, Hair waived any argument that he did not have adequate time for discovery. Stangel, 87 S.W.3d at 709; see also Restaurant Teams, 95 S.W.3d at 341. We overrule Hair's first and second points of error.
In his third point of error, Hair contends the trial court erred in granting the no-evidence motion for summary judgment because he raised a fact issue on each element challenged in the motion. A no-evidence motion for summary judgment asserts there is no evidence of one or more essential elements of a claim upon which the opposing party would have the burden of proof at trial. See Gen. Mills Rest. Inc. v. Tex. Wings, Inc., 12 S.W.3d 827, 832 (Tex. App.-Dallas 2000, no pet.). A no-evidence summary judgment is essentially a pretrial directed verdict to which we apply the same legal sufficiency standard of review. Id. at 832-33. Although the nonmoving party is not required to marshal its proof, it must present evidence that raises a genuine issue of material fact on the challenged elements. Id. A no-evidence summary judgment is properly granted if the nonmovant fails to bring forth more than a scintilla of probative evidence to raise a genuine issue of material fact on the challenged elements. Id. at 833. In determining whether the nonmovant has met its burden, we review the evidence in the light most favorable to the nonmovant and resolve all doubts in its favor. Id.
Hair sued Church Dwight for breach of warranty asserting a product Church Dwight manufactured caused his asthma to worsen. The product, ARMEX, was a baking soda-based soluble abrasive used to clean baking machines. Hair was exposed to the product while employed at a Pillsbury dough plant. Hair alleged his exposure to ARMEX exacerbated his asthma to the point it became severe and he could no longer work under the conditions that existed. According to Hair, Church Dwight was liable for his injuries because Church Dwight did not give adequate warnings about the safe use of ARMEX.
In its motion for summary judgment, Church Dwight asserted, among other things, Hair had no evidence his injury was proximately caused by its product. In response to the motion, Hair asserted his own deposition testimony raised a fact issue with respect to whether the ARMEX caused his injury. Specifically, he testified that his asthma became more severe after Pillsbury started using ARMEX. He also testified other coworkers suffered injury by exposure to ARMEX. According to Hair, his deposition testimony alone raises a fact issue on proximate cause and he was not required to present expert testimony to avoid summary judgment. We disagree.
Lay testimony can be sufficient to raise a fact question on proximate cause if general experience and common sense would allow a lay person to fairly determine causation. Praytor v. Ford Motor Co., 97 S.W.3d 237, 241 (Tex. App.-Houston [14th Dist.] 2002, no pet.). Here, Hair was required to present competent evidence that Church Dwight's product was the proximate cause of his respiratory condition. This is not an area in which common sense and general knowledge would allow a lay person to determine causation. Praytor, 97 S.W.3d at 241; Hernandez v. Tex. Employers Ins. Assoc., 783 S.W.2d 250, 253 (Tex. App.-Corpus Christi 1989, no pet.). Therefore, expert testimony was required. See Hernandez, 783 S.W.2d at 253. Indeed, expert testimony is "particularly necessary in chemical-exposure cases, in which medically complex diseases and causal ambiguities compound the need for expert testimony." Brookshire Bros., Inc. v. Smith, 01-02-00677-CV, 2004 WL 1064776 * 3 (Tex. App.-Houston [14th Dist.] May 13, 2004, no pet.). More specifically, expert testimony is necessary to prove the cause of asthma. Marts ex rel. Marts, Transportation Ins. Co., 111 S.W.3d 699, 703 (Tex. App.-Fort Worth 2003, pet. denied). Because Hair did not direct the trial court to any expert testimony that Church Dwight's product caused his injury, he did not raise a fact question on proximate cause. Consequently, the trial court properly granted Church Dwight's motion for summary judgment. See Praytor, 97 S.W.2d at 246; Marts, 111 S.W.3d at 705. We overrule Hair's third point of error.
We affirm the trial court's judgment.