Texas Court Affirms Summary Judgment Favoring Former Employer in Toxic Tort Suit

A Texas appellate court recently affirmed a state trial court’s decision granting summary judgment in favor of a former employer (and a companion company) who had been sued by a former employee who contended his prostate cancer and colon cancer were caused by his work-related exposure to toxic chemicals [Chandra v. Leonardo DRS, Inc., 2020 Tex. App. LEXIS 9177 (Nov. 24, 2020)]. The appellate court stressed that while the pro se plaintiff was required to show proof of both “general” and “specific” causation, he had come forward with neither. In particular, his failure to offer expert testimony was fatal to his tort claim, held the court.

Background

Plaintiff, acting pro se, filed a toxic tort claim against his former employer and an affiliated company (collectively DRS), alleging that his on-the-job, regular exposure to dangerous chemicals, including mercury telluride and cadmium telluride, caused his colon and prostate cancer and other resulting damages. DRS filed a motion for summary judgment containing both traditional and no-evidence elements. The traditional portion of its motion argued that Plaintiff’s claims were barred by the Texas Workers Compensation Act’s exclusive remedy provisions and that Plaintiff’s claims revolving around his 2006 colon cancer diagnosis were barred by the statute of limitations. The no-evidence portion of the motion argued that Plaintiff had no proof of either specific or general causation between exposure to cadmium and mercury telluride and the development of his colon and prostate cancers.

Plaintiff Produces Online Research

Plaintiff responded with his own affidavit stating that “[c]olon and prostate cancer are clearly tied to cadmium exposures in scientific literature,” that two co-workers had also been diagnosed with colon cancer, and that “scientific literature indicated that prostate cancer is a slow growth cancer which can develop over a ten year period after exposure to deadly chemicals.” Plaintiff also attached “studies [he] found online” that discussed links between such exposures and various cancers.

Trial Court Grants Summary Judgment

DRS objected to Plaintiff’s affidavit and to the articles attached to Plaintiff’s affidavit because they were incomplete, were not properly authenticated, were not demonstrated to be reliable, and did not establish causation. DRS asked the trial court to strike Plaintiff’s summary judgment evidence. The trial court sustained DRS’s objections to the affidavit and articles and struck them from consideration as summary judgment evidence. It then granted DRS’s traditional and no-evidence motion and entered a take-nothing judgment against Plaintiff. Plaintiff appealed.

“General” and “Specific” Causation

The appellate court noted that toxic tort cases required proof of both “general” and “specific” causation. “General” causation addressed whether a substance was capable of causing a particular injury or condition in the general population, while specific causation addressed whether a substance caused a particular individual’s injury. The court continued that as a result, expert testimony was particularly necessary in toxic-tort and chemical-exposure cases, in which medically complex diseases and causal ambiguities compounded the need for expert testimony.

The court noted further that Plaintiff had not introduced any expert testimony and the trial court struck his affidavit and the portions of articles that he had attached as summary judgment evidence. Under a summary judgment review, the court could not consider struck portions of the record.

Mere Scintilla of Evidence

The court concluded that because Plaintiff did not argue that the trial court erred by striking the attachments to his summary judgment motion, he had waived any right to complain about the exclusion, and the court could not consider the struck attachments as summary judgment evidence. Without the stricken attachments, Plaintiff had no summary judgment evidence and failed to produce more than a scintilla of evidence establishing that his damages were caused by a toxic tort by DRS. Consequently, said the appellate court, the trial court’s summary judgment was proper.