## In The Court of Appeals Sixth Appellate District of Texas at Texarkana

No. 06

- 20

- 00056

- CV

DIPANKAR CHANDRA , Appellant

V. LEONARDO DRS, INC., AND DRS NETWORK & IMAGING SERVICES, LLC , Appellee s

On Appeal from the 116th District Court Dallas Count y , Texas Trial Court No. DC

- 19

- 03484

Before Morriss, C.J., Burgess and Stevens, JJ. Memorandum Opinion by Chief Justice Morriss2 

### ME MORANDUM OPINION Dipankar Chandra acted pro se in his attempt t o prosecut e a toxic tort claim in D allas County 1 against hi s former employer, Leonardo DRS, Inc., and DRS Network & Imaging Services, Inc. ( collectively DRS), alleging that his on

- the

- job , regular exposure to dangerous chem icals, includ ing mercury telluride and cadmium telluride, caused his colon and prostate
canc er and other r esulting damages. 2 T he trial court , after granting DRS’s traditional and no

evidence motion for summary judgment , entered a take

- nothing judgment against Chandra. Chandra appeals. Because we conclude that the trial court ’ s no - evidence summ ary judgment
w as proper, we affirm its judgment. Factual and Procedural Background D R S f iled a motion for summary judgment containing both traditional and no

- evidence elements
. The traditional portion of its motion argued that Chandra ’ s claims were barred by the Texas Workers Compensation Act ’ s exclusive remedy provisions and that Chanda ’ s claims revolving around his 2006 colon

- cancer diagnosis were barred by the statute of limitations
. The
no - evidence portion of the motion argu ed that Chandra had no proo f of either sp e cific or general causation between exposure to cadmium and mercury telluride and the development of his colon and prostate cancers
.

1 Originally appealed to the Fifth Court of Appeals, this case was transferred to this Court by the Texas Supreme Court pursua nt to its docket equalizat io n effor ts. See T EX . G OV ’ T C ODE A NN . § 73.001. We follow the precedent of the Fifth Court of Appeals in deciding this case. See T EX . R. A PP . P. 41.3.
2 Chandra’s employment w i t h D R S w a s t e r m i n a t e d in 2009.3

Chandra ’ s response to DRS ’ s summary judgment motion attached his own affi davit stating that “ [c]olon and pros tate cancer ar e 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 af

t er exposure to deadly chemicals. ” Chandra also attached “ studies [he] found online ” that discussed links between such exposures and various cancers. 3 DRS objected to Chandra ’ s affidavit, which it described as “ simply a bald assertion of P l aintiff ’ s pers o nal opinion ” and as conclusory, lacking in personal knowledge, and containing hearsay. DRS also objected to the articles attached to Chandra ’ s affidavit because they were incomplete, were not properly authenticated, were not demonstrated t o be reliable, and did not estab l ish causation of Chandra ’ s damages. As a result, DRS ask ed the trial court to strike Chandra ’ s summary judgment evidence. The trial court sustained DRS ’ s objections to the affidavit and articles and struck them from co nsi d eration as summary judgment e vidence. It then granted DRS ’ s traditional and no

- evidence motion and entered a take

- nothing judgment against Chandra.

3 The attached art icles included these items: ( 1) the ab stract po r t ion of an article titled “Review Cadmium carcinogenesis” that was published in the “Mutation Research/Fundamental and Molecular Mechanisms of Mutagenesis,” whi ch stated , “Cadmium exposure has also been l i n ked to human prostate and renal c ancer, although t his lin k age is weaker than for lung cancer ” ; (2) the first page of “Carcinogenic, teratogenic and mutagenic effects of cadmium” published in “Mutation Research/Re views in Genetic Toxicology,” stating that c admium “has been known as a tox i c agent ” ; (3) the a bstract of “Role of oxidative stress in cadmium toxicity and carcinogenesis ” published in “Toxicology and Applied Pharmacology,” stating that cadmium “is a toxi c metal, targeting the
. . . testes . . . a n d causing
. . . tumors after pro l on ged ex posures ” ; and (4) the abstract from “Current status of cadmium as an environmental health problem ” published in “Toxicology and Applied Pharmacology,” stating that cadmiu m is a “toxic metal occurring in the envi ron m ent naturally and as a pollutant em anati ng from i n dustrial and agricultural sources” for which “recent data also suggest increased cancer risks
. . . in environmentally expose d populations. ”4

Standard of Review

“ W hen a party moves for a traditional summary judgment under rule 166a(c) and a n o e v idence motion for summary ju d gment under rule 166a(i), we first review the trial court ’ s judgment under the standards of rule 166a(i). ” Green v. McKay , 376 S.W.3d 891, 898

– 99 (Tex. App.

— Dallas 2012 , pet. denied ) (citing Ford Motor Co. v. Ridgway , 135 S.W
. 3d 598, 600 (Tex. 2004) ).

“ We review a trial court ’ s decision to grant summary judgment de novo. ” Hernandez v. Sun Crane & Hoist

, Inc
. , 600 S.W.3d 48 5, 493 (Tex. App.

— Dallas 2020 , no pet. ) (citing Tarr v. Timberwood Park Owners Ass ’ n , Inc. , 556 S.W .3d 2 74, 278 (Tex. 2018) )
. “ A d efe ndant is entitled to summary judgment on a plaintiff ’ s claim if it conclusively negates at least one element of the cause of action. ” Id. (citing Sw. Elec. Power Co. v. Grant , 73 S.W.3d 211, 215 (Tex. 2002 ) )
. “ A party s eeki n g a no - evidence summary jud gme n t must assert that no evidence exists as to one or more essential elements of the nonmovant ’ s claim on which the non movant would have the burden of proof at trial. ” Id. ( citing T EX . R. C IV . P
. 166a(i ) ). “ The burden the n sh i fts to the nonmovant to raise a fa ct i ssue on the challenged elements. ” Id.

“ We review a no

- evidence summary judgment under the same legal sufficiency standard used to review a directed verdict. ” Id. (citing T EX . R. C IV . P
. 166a( i ); Flood v. Katz , 294 S.W.3d 756, 762 (Tex. App.

— Dallas 200 9, pet. denied ) ). “ A no

- evidence motion for summary judgment is improperly granted if the nonmovant pre sented more than a scintilla of probative evidence to raise a genuine issue of material fact on the challenged ele m ents. ” Id. (citing Ridgway , 13 5 S .W.3 d at 600 )
. “ More than a scintilla of evidence exists if the evidence ‘ rises to a5

level that woul d enable reasonable, fair

- minded persons to differ in their conclusions. ’” Id. (quoting Ridgway , 135 S.W.3d at 601 )
. “ [ W]hen the evidence offere d to pro ve a vital fact is so weak as to do no more than create a mere surmise or suspicion of its existence, the evidence is no more than a scintilla and, in legal effect, is no evidence. ” Id. (quoting Ridgway , 135 S.W.3d a t 601 )
.

“ In reviewing a su mmary judgm ent of either type, we consider the evidence ‘ in the light most favorable to the nonmova nt, indulging every reasonable inference and resolving any doubts against the motion. ’ ” Id. (quoting Sudan v. Sudan , 199 S.W.3d 291, 2 92 (Tex. 2006)). “ Wher e, as here , th e trial court ’ s order granting summary judgment does not specify the grounds relied
o n, we must affirm if any of the summary judgment grounds are meritorious. ” Id. (citing Cunningham v. Tarski , 365 S.W.3d 179, 18 6 (Te x . App.

— Dallas 2012, pet . denied ) )
. Th e No

- Evidence Summary Judgment Was Proper

“ [T] oxic tort cases require proof of both ‘ general ’ and ‘ specific ’ causation. ” Plunkett v. Connecticut Gen. Life Ins. Co
. , 285 S.W.3d 106, 120 (Tex. App.

— Dallas 2009, pe t. de n ied) (citing Merrell Do w Pharm. , Inc. v. Havner , 953 S.W.2d 706, 71 4 (Tex. 1997) ; Mobil Oil Corp. v. Bailey , 187 S.W.3d 265, 270 (Tex. App.

— Beaumont 2006, pet. denied); Frias v. Atl
. Richfield Co. , 104 S.W.3d 925, 928 (Tex. App.

— Houston [14th Dist.] 2003, no pet. ); Coastal T ankships , U.S. A. , Inc. v. Anderson , 87 S.W.3d 591, 601

– 02 n. 19 (Tex. App.

— Houston [1st Dist.] 2002, pet. denied) )
. “ General causation addresses whether a substance is ‘ capable of causing a particular injury or condition in the gen eral p opulation, ’ whil e specific c ausat ion addresses whether a substance ‘ caused a p articular individual ’ s injury. ’” Id
. at 120

– 21 (quoting Havner ,6

953 S.W.2d at 714 ) ; Neal v. Dow Agrosciences L.L.C
. , 74 S.W.3d 468, 472 (Tex. App.

— Dallas 2002, no pet.) ( citing P raytor v. For d Motor Co
. , 97 S.W.3d 237, 244 (Tex. App.

— Houston [14th Dist. ] 2002, no pet.) ( “ With regard to whether a plaintiff ’ s injury was caused by exposure to a particular substance, a resident generally must prove both that the substance is capable o f causing a p articular in

jury or condition and that the substance in fact c aused the plaintiff ’ s injury. ” ) )
. “ Havner also requires the plaintiff to present some evidence excluding other plausible causes of the injury with reasonable certainty. ” Chase v
. Packing , No. 05

- 16

- 00620

- CV, 2017 WL 2774449, at *1 (Tex. App.

— Dallas June 27, 2017, no pet.) (mem. op.) (citing Havner , 953 S.W.2d at 720). As a result, “ [e] xpert testimony is particularly necessary in toxic

- tort and chemical

- exposure cases, in which m e di cally co mp lex diseases and causal a mbig uities compound the need for expert testimony. ” Starr v. A.J. Struss & Co
. , No. 01

- 14

- 00702

- CV, 2015 WL 4139028, at *6

– 7 (T ex. App.

— Houston [1st Dist.] July 9, 2015 , no pet. ) (mem. op.) (citing Anderson , 87 S.W.3d at 602

– 04; Br ookshire B ros . , Inc. v. Smith , 176 S.W. 3d 30, 36

– 38 (Tex. App.

— Houston [1st Dist.] 2004, pet. denied) (holding expert testimony required to show causatio n of reactive airway dysfunction syndrome) ). Chandra did not introduce any expert testi m ony , and the trial co ur t s truck his affidavit
a nd th e portions of articles that he attached as summary judgment evidence. 4 “ Under a

4 In any event, “[t]o raise a fact issue on causation and thu s to survive legal sufficiency review , a cla ima nt mus t do more than simply introduce into evidence epidemiological studies that show a substantially elevated risk.” Daniels v. Lyondell

- Citgo Ref. Co
. , 99 S.W.3d 722, 728 (Tex. App.

— Houston [1st Dist.] 2003 , no pet.). As discussed by Daniels , A claim ant must show that he or she is similar to those in the studies. This would include proof that (1) the injured person was exposed to the same substance, (2) the exposure or dose levels were comparable to or gr eate r than those in the studies, (3) t he exposu re occu r r ed before the onset of7

summary - judgment review, we may not consider struck portions of the record because such evidence is not a part of the summ a ry - judgment r ecord. ” S aul s v. Munir Bata , LLC , No. 02

- 14

- 00208

- CV, 2015 WL 3905671, at *5 (Tex. App.

— Fort Worth June 11, 2015, no pet.) (mem. o p.) (citing Trudy ’ s Tex. Star , Inc. v. City of Austin , 307 S.W.3d 894, 898 n.2 (Tex. App.

— Austin 2010, no pet.) ; Esty v. Beal Bank , S.S. B
. , 298 S. W.3 d 280, 294 (Tex. App.

— Dall as 2009, no pet. ) ) ; see Callahan v. Vitesse Aviation Servs
. , LLC , 397 S.W.3d 342, 347 (Tex. App.

— Dallas 20 13, no pet
. )
. “ [ W ]here evidence has been held to be inadmissible and that holding has n ot been challenged on ap peal, th is [C ]ourt cannot consider the excluded evidence. ” Beavers v. Aluminium Co. Of Am. , No. 13

- 08

- 00214

- CV, 2010 WL 881734, at *2 (Tex. App.

— Corpus Christi Mar. 11, 2010, no pet.) (mem. op.) (quoting Taylor

- Made Hose v. Wilker s on , 21 S.W.3d 484, 493 (Tex. App
. — San Antonio 20 00, pet. d enied ) (en banc) (op. on reh ’ g) (quoting Frazier v. Yu , 987 S.W.2d 607, 610 (Tex. App.

— Fort Worth 1999, writ denied) ( citing Inglish v. Prudential Ins. Co
. , 928 S.W.2d 702, 706 (Tex. App.

— Houston [ 1 st Dist.] 1996, writ denied) (op
. on reh ’ g); Rhodes v. Inte rfirst Bank Fort Worth , N.A
. , 719 S.W.2d 263, 265 (Tex. App.

— Fort Worth 1986, no writ); Talbo tt v. Hogg , 298 S.W.2d 883, 889 (Tex. App.

— Amarillo 1957, writ dism ’ d)). “ Where excluded evidence is n o t the sub ject of a point of erro r, ‘ plaintiffs have waiv ed any right to complain about the exclusion. ’” Id. (quoting Rhode s, 719 S.W.2d at 265 (quoting Talbott , 298 S.W.2d at 889) )
.

injury, (4 ) the timing of the onset of injury was consistent with that experienced by those in the study, and (5) if there are other plausible causes of the injury or condition that could be negated, the plaintiff m us t offer eviden c e excluding those causes with reas onable certainty. Havner , 953 S.W.2d at 720. Id
.8

Because Chandra does not argue that the trial court erred by striking t h e attachm ents to his summary jud gm ent motion, he has “ wa ive d any right to complain about the exclusion , ” and we cannot consider the struck attachments as summary judgment evidence. Id. Without the stricken attachments , Chandra had n o summary judgment ev i dence and failed to produce more t han a scinti lla of evi den ce establishing that his damages were caused by a toxic tort by DRS
. 5 See id
. Consequently, the trial court ’ s summary ju dgment was proper. We affirm the trial court ’ s judgment.

Josh R. Morr i ss, III Chief Justice Date S ub mitted : No vember 2 , 2020 Date Decided : November 24 , 2020

5 Although Chandra’s pro se petitio n couched his toxic tort claim in terms of negligence, gross negligence, premises liab i lity, and product liability, the gr avamen of each c omplaint was that expos ur e to tox ic chemicals caused Chandra’s colon and prostate cancers and other resulting damages including medical bills and pain and suffering.