HOUSTON – A Texas appeals court has upheld a lower court’s decision to throw out the personal injury action of a man who claimed he suffered permanent injuries as a result of work-related exposure to liquid acrylic nitrogen.
On Aug. 6, Court of Appeals for the First District of Texas justices Terry Adams, Peter Kelly and Gordon Goodman unanimously upheld the 295th District Court of Harris County, Texas’s ruling, in Jose Cepeda’s action versus Ascend Performance Materials Texas, Inc.
Adams wrote the Court’s opinion in this case.
“Ascend owns and operates a chemical manufacturing facility in Alvin, Texas. Turner Industries Group, LLC, is an independent contractor that, at the time relevant to this appeal, was providing industrial maintenance services at Ascend’s facility. On Jan. 9, 2020, Cepeda, a Turner employee, was working with a Turner multi-craft crew assigned to assist with maintenance of a heat exchanger at the facility. The work involved installing ‘blinds’ in the system to prevent chemical escape. According to Cepeda, as he was removing bolts from a cover, liquid contacted his gloved left hand. Minutes later, his hand began to tingle. He washed his hand but did not seek medical attention or immediately report the incident to Ascend. The next day, a rash appeared on Cepeda’s left hand. Cepeda spoke with a workplace friend, Joseph Kelso, who was an Ascend operator but not present at the time of the incident,” Adams said.
“According to Cepeda, Kelso identified various chemicals possibly present in that part of the facility, which included ‘liquid acrylic nitrogen’ or ‘acrylonitrile.’ On Jan. 13, 2020, Cepeda sought medical treatment and was prescribed silver sulfadiazine topical cream. Over the next few days, the rash worsened – spreading to his right hand and a foot – and blisters appeared. After beginning another topical cream and antiviral medication, Cepeda developed an itchy rash on his back and legs. He was re-evaluated and prescribed new medication. By Feb. 3, 2020, according to his medical records, Cepeda’s blistered areas were healed and the rash was improving. But he reported weakness in his left hand and underwent occupational therapy. By March 2020, the weakness had resolved, and Cepeda denied having any pain.”
In October 2021, Cepeda sued Ascend for negligence. Cepeda alleged that Ascend had a duty to properly train and supervise its employees, to maintain a safe workplace and to warn of dangerous conditions.
Cepeda alleged that Ascend breached these duties and, as a result, he was exposed to liquid acrylic nitrogen, which caused him to suffer corrosion, second-degree burns, partial-thickness burns, Stevens-Johnson erythema multiforme exudativum, post-inflammatory hyperpigmentation, lichen simplex chronicus, neuropathy, chronic denervation and reinnervation, and pain.
Cepeda sought over $1,000,000 in damages.
In response, Ascend moved for summary judgment on three bases.
First, Ascend asserted that was no evidence of a causal link (1) between the alleged conduct by Ascend and the alleged chemical exposure at its facility and (2) between the alleged exposure and the “complex and relatively obscure injuries” Cepeda asserts as a result.
Second, Ascend argued that Cepeda failed to present probative evidence of general and specific causation – in other words, that he failed to present evidence that he was exposed to a substance that is generally capable of causing the type of injuries at issue and that the substance caused his specific injuries.
Third, Ascend argued that its status as a property owner brings it within the purview and protections of Chapter 95 of the Texas Civil Practice and Remedies Code and that there is no evidence it controlled the operative details of Turner’s work or that it had actual knowledge of the alleged dangerous condition.
The trial court had granted Cepeda two continuances to depose Kelso. After Cepeda was unsuccessful and sought a third continuance, Ascend objected on the ground that Kelso lacked personal knowledge of the incident, was not qualified to render a medical or expert opinion and was not designated as an expert witness. Ascend argued that Kelso’s lay testimony, regardless of its substance, could not constitute competent causation evidence.
After a hearing, the trial court denied Cepeda’s request for a third continuance, issued a take-nothing summary judgment for Ascend, and dismissed this suit – which led Cepeda to appeal.
On appeal, Cepeda argued that the trial court erred in rendering summary judgment against him because his evidence raises material fact issues as to the causation element of his negligence claim. Cepeda contended that expert testimony is not required to establish that he sustained injuries as a result of exposure to liquid acrylic nitrogen because, according to Cepeda, “causation is readily observable by the trier of fact.”
However, Adams and his First District appeals court colleagues disagreed.
According to Adams, “Cepeda’s testimony about Kelso’s conjecture that he was exposed to acrylonitrile is not probative evidence. Mere speculation and subjective belief, especially by a layperson, amounts to no evidence of causation in a case involving alleged exposure to harmful chemicals.”
“Whether there exists a causal link between any exposure to acrylonitrile, or another chemical, and these specific alleged injuries is not a matter within the common knowledge and experience of lay persons. And the acrylonitrile MSDS is of ‘little value to a lay person without expert testimony to explain the link between levels of exposure, symptomology and the toxicological information contained in the MSDS.’ Even Cepeda’s own medical records reflect that his various conditions may have stemmed from several other possible causes. When other plausible causes of injuries exist, a plaintiff must offer evidence excluding those causes with reasonable certainty. It was therefore Cepeda’s burden to provide expert testimony linking these evidentiary pieces together. But he failed to do so,” Adams said.
“It is undisputed that Cepeda did not present any expert testimony to establish a causal connection between the alleged exposure and his alleged injuries. We thus conclude that Cepeda did not met his burden to present more than a scintilla of probative evidence to raise a genuine issue of material fact as to the causation element of his negligence claim. Because Ascend established its right to summary judgment on Cepeda’s negligence claim as a matter of law, we hold that the trial court did not err in rendering a take-nothing summary judgment in favor of Ascend. We overrule Cepeda’s first issue. Based on the record before us, and all the reasons above, we affirm the trial court’s summary judgment in all things.”
Court of Appeals for the First District of Texas case 01-23-00564-CV
295th District Court, Harris County, Texas case 2021-66106
From the Southeast Texas Record: Reach Courts Reporter Nicholas Malfitano at: nick.malfitano@therecordinc.com