NUMBER 13-14-00319-CV

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI – EDINBURG

BENJAMIN EBASEH-ONOFA,

INDIVIDIUALLY, AND AS PERSONAL

REPRESENTATIVE OF AND ON 

BEHALF OF ALL WRONGFUL 

DEATH BENEFICIARIES OF THE

ESTATE OF OMONOSIONI EBASEHONOFA, Appellants,

v.

MCALLEN HOSPITALS, L.P. D/B/A

EDINBURG REGIONAL MEDICAL 

CENTER, Appellee.

On appeal from the 206th District Court

of Hidalgo County, Texas.

MEMORANDUM OPINION
2

Before Chief Justice Valdez and Justices Rodriguez and Longoria

Memorandum Opinion by Justice Longoria

Appellant, Benjamin Ebaseh-Onofa (“Benjamin”), individually and on behalf of all 

wrongful-death beneficiaries of the estate of his deceased wife, Omonosioni EbasehOnofa (“Onofa”), challenges summary judgment in favor of appellee McAllen Hospitals, 

LP, d/b/a Edinburg Regional Medical Center (“the Hospital”). We affirm. 

I. BACKGROUND

In March of 2009, Mexican health officials reported an outbreak of a strain of Novel 

Influenza A H1N1, also known as the swine flu virus (“H1N1”). Health officials reported 

the first Texas case on April 23, 2009. During this time period, Onofa worked as a nurse 

at the Hospital’s Pediatric Intensive Care Unit (“PICU”) in McAllen, Texas, where there 

were no confirmed cases of H1N1 infections, although there were some confirmed cases 

in other parts of the Hospital.

According to Benjamin’s deposition, on the evening of Friday, May 29, 2009, Onofa 

returned home from a shift at the PICU “not feeling well.” Her symptoms worsened, and 

she sought medical care. A rapid test for influenza strains A and B performed by Onofa’s 

family doctor on June 1, 2009 returned negative. Onofa’s symptoms worsened, and she 

was admitted to the emergency room on June 3, 2009. Onofa died on June 5, 2009. An 

autopsy determined that the cause of death was the H1N1 virus. 

On May 16, 2011, Benjamin filed suit against the Hospital for wrongful death, 

alleging that the Hospital was grossly negligent.1 Benjamin specifically alleged that the 

 

1 Benjamin also brought claims against the Hospital for negligence and negligence per se. The 

trial court dismissed those claims pursuant to a Rule 11 agreement because they were barred by the 

exclusive remedy provision of the Texas Worker’s Compensation Act. See TEX. LAB. CODE ANN.

§ 408.001(a) (West, Westlaw through 2013 3d C.S.). 
3

Hospital knew that Onofa was caring for patients in the PICU with confirmed or suspected 

infections with H1N1, but failed to provide Onofa with an N95 respirator mask to wear 

during her shifts. At the time, the Centers for Disease Control (CDC) had issued 

guidelines recommending that masks be used by healthcare workers caring for such 

patients. Benjamin further alleged that the Hospital failed to comply with CDC guidelines 

requiring hospitals to monitor healthcare workers caring for such patients for symptoms 

of respiratory illness. Benjamin’s allegation that the Hospital failed to monitor Onofa 

assumes that Onofa became infected at the PICU; however, he does not assert that the 

alleged failure to monitor alone caused Onofa’s death. 

On August 29, 2013, the Hospital filed an amended no-evidence motion for 

summary judgment. See TEX. R. CIV. P. 166a(i). Even though Benjamin pleaded a claim 

for gross negligence, the Hospital moved for no-evidence summary judgment on the 

causation element of a Health Care Liability Claim (HCLC).2 The Hospital did not assert 

in its motion for summary judgment or elsewhere that Benjamin’s claim should be 

dismissed for failure to file an expert report, see TEX. CIV. PRAC. & REM. CODE ANN.

§ 74.351 (West, Westlaw through 2013 3d C.S.), but rather that it should have been 

dismissed because there was no evidence of the essential Health Care Liability Claim 

element of causation. 

On September 24, 2013, Benjamin filed a response to the Hospital’s no-evidence 

motion for summary judgment and filed an amended response on November 19, 2013. 

 

2 We note that filing special exceptions is preferred over summary judgment as a procedure to 

challenge a defect in the opposing party’s pleadings. See generally Horizon/CMS Healthcare Corp. v. Auld, 

34 S.W.3d 887, 897 (Tex. 2000) (“An opposing party should use special exceptions to identify defects in a 

pleading so that they may be cured, if possible, by amendment.”).
4

Benjamin’s amended response to the motion for summary judgment contained a 

combination of special exceptions and a motion to strike alleging that the Hospital’s 

motion for summary judgment addressed a claim that Benjamin did not plead. The trial 

court did not rule on the combined motion to strike and special exceptions orally or in 

writing. On November 22, 2013, the trial court set Benjamin’s motion for submission on 

December 20, 2013. 

Benjamin’s amended response to the Hospital’s no-evidence motion for summary 

judgment attached three pieces of evidence in support of his claim: an affidavit of Harry 

F. Hull, M.D., an epidemiologist who served as one of Benjamin’s experts; selected pages 

from the transcript of Dr. Hull’s deposition; and redacted medical records of a patient 

being treated in the PICU at the same time as Onofa. Dr. Hull averred that he reviewed 

all redacted patient records provided by the Hospital, and in his opinion, this particular 

patient’s symptoms were consistent with H1N1. Dr. Hull further testified that this patient 

was the source of Onofa’s infection with H1N1. The Hospital filed a reply to Benjamin’s 

response in which it asserted that the medical records reflected that patient tested 

negative for influenza. The Hospital attached to its reply an affidavit from Rebecca Rene 

Palacios. In the affidavit, Palacios identified the medical records on which Dr. Hull relied 

as her own and asserted that she was not infected with H1N1 at the time of her stay in 

the PICU. Palacios further stated that she has never tested positive for H1N1.

Benjamin had earlier filed a motion to compel the Hospital to respond to his fourth 

set of requests for production relating to the medical records of patients in the PICU during 

Onofa’s shifts there. The Hospital had previously produced redacted selections from 

each of the medical records of those patients, and Benjamin’s motion requested the 
5

complete medical records, with redactions, of those patients. Benjamin filed an amended 

motion to compel on December 2, 2013, requesting the same records. At a hearing on 

December 20, 2013, the trial court considered Benjamin’s amended motion to compel 

and also submitted the Hospital’s amended motion for summary judgment. Benjamin did 

not object to the submission.3 On January 7, 2014, the trial court signed an order granting 

Benjamin’s first amended motion to compel. The order directed the Hospital to produce 

the complete redacted medical records of the patients in the PICU during Onofa’s time 

there. The parties signed a Rule 11 agreement briefly extending the deadline, making 

the discovery due January 29, 2014. On that date, the Hospital produced discovery in 

response to the court’s order and tendered supplemental discovery on February 7, 2014. 

On February 18, 2014, Benjamin filed a motion to continue the trial setting, which 

was set at the time for February 24, 2014. However, Benjamin never filed a motion to 

continue the submission of the Hospital’s no-evidence summary-judgment motion. On 

February 19, 2014, the trial court granted the motion to continue the trial setting and 

informed the parties by letter that she was granting the Hospital’s motion for summary 

judgment. The letter reflected that the judge considered (1) the Hospital’s first amended 

motion for summary judgment; (2) Benjamin’s response and motion to strike the 

Hospital’s motion; (3) the Hospital’s reply to Benjamin’s response and motion to strike, 

(4) Benjamin’s first amended response; and (5) the Hospital’s supplemental reply to 

Benjamin’s response to the Hospital’s motion for summary judgment. The trial court

signed a final judgment on March 10, 2014. 

Benjamin timely filed a motion for reconsideration or for new trial in which he 

 

3 The hearing on December 20, 2013 was apparently unrecorded because the docket sheet reflects 

that the parties’ attorneys were present. However, there is no reporter’s record of the hearing.
6

alleged that: (1) the trial court granted summary judgment on a claim not addressed in 

the Hospital’s motion; (2) Dr. Hull’s original affidavit provided evidence of causation; and 

(3) Benjamin did not have adequate time for discovery. In response to the trial court’s 

question at the hearing, Benjamin’s counsel confirmed that he never filed a motion to 

continue the submission of the Hospital’s motion for summary judgment. Benjamin’s 

counsel also confirmed that he did not file any pleading mentioning the need for more 

time before the trial court ruled on the Hospital’s motion for summary judgment. 

The remainder of the hearing on Benjamin’s motion for new trial turned on his 

assertions that the new portions of the medical records produced by the Hospital 

confirmed Dr. Hull’s opinion that Palacios was the source of Onofa’s infection. The 

Hospital responded that it fully produced Palacios’ medical records, including the 

influenza test results, several months before. The trial court requested that the Hospital 

submit an affidavit to that effect by 5:00 p.m. on May 21, 2014. The trial court gave 

Benjamin the same deadline to demonstrate how any of the late-produced selections of 

medical records raised an issue of fact on Benjamin’s claim. The Hospital submitted the 

requested affidavit by the deadline, but Benjamin did not file Dr. Hull’s amended affidavit 

until 6:38 p.m. on the same day. Benjamin did not file a motion for leave to file the affidavit 

or otherwise request that the trial court consider the second affidavit. Benjamin’s motion 

for new trial was eventually overruled by operation of law. 

By three issues, which we have reordered and will address as four, Benjamin 

asserts that the trial court erred by: (1) granting no-evidence summary judgment to the 

Hospital on a claim not raised in Benjamin’s pleadings; (2) considering evidence attached 

to the Hospital’s no-evidence motion for summary judgment; (3) refusing to consider Dr. 
7

Hull’s amended affidavit; and (4) granting summary judgment when Benjamin produced 

more than a scintilla of evidence supporting causation.

II. WAS SUMMARY JUDGMENT GRANTED ON A CLAIM NOT ADDRESSED IN THE MOTION?

By his first issue, Benjamin argues that the trial court erred by granting summary 

judgment on his gross negligence cause of action, which the Hospital did not address in 

its motion. Benjamin reasons that the Hospital’s motion addressed the elements of an 

HCLC while Benjamin pleaded a claim for gross negligence. See Nall v. Plunkett, 404 

S.W.3d 552, 555 (Tex. 2013) (per curiam) (“Granting a summary judgment on a claim not 

addressed in the summary judgment motion therefore is, as a general rule, reversible 

error.”).

The Hospital responds that its motion was proper because Benjamin’s claim was 

an HCLC regardless of the way in which he chose to plead it. See Yamada v. Friend, 

335 S.W.3d 192, 196 (Tex. 2010) (observing that “[w]hether a claim is a health care 

liability claim depends on the underlying nature of the claim being made” and that “artful 

pleading does not alter that nature”). The Hospital argues in the alternative that the 

difference between Benjamin’s pleadings and the Hospital’s motion is irrelevant because 

Benjamin had the burden to prove causation under a gross negligence claim or an HCLC, 

and there was no evidence that the Hospital’s actions or failure to act under either claim 

were the proximate cause of Onofa’s death.

Texas Rule of Civil Procedure 166a(i) requires the movant to challenge the 

evidentiary support for a specific essential element of the nonmovant’s claim or defense. 

Id. The motion shifts the burden onto the nonmovant to come forward with some evidence 

of the challenged essential element or elements. Lampasas v. Spring Ctr., Inc., 988 
8

S.W.2d 428, 436 (Tex. App.—Houston [14th Dist.] 1999, no pet.). If the nonmovant does 

not carry its burden, then the court must grant summary judgment on all of the 

nonmovant’s claims containing the challenged element or elements. Id. 

Benjamin is correct that, as a general rule, a trial court cannot grant no-evidence 

summary judgment on grounds not presented in the motion. Timpte Indus., Inc. v. Gish, 

286 S.W.3d 306, 310 (Tex. 2009). However, we disagree that the trial court granted 

summary judgment on a claim not addressed by the pleadings. The Fourteenth Court of 

Appeals addressed a similar issue in Kennedy v. Arahzadeh. No. 14-98-00428-CV, 1999 

WL 418369, at *3 (Tex. App.—Houston [14th Dist.] June 24, 1999, no pet.) (mem. op.). 

The appellant in that case sued a dentist for negligence, gross negligence, and fraud 

arising out of the dentist’s treatment of the appellant. Id. at *1. The dentist moved for noevidence summary judgment alleging that the appellant’s claims were HCLCs and that 

there was no evidence of either a breach of an accepted standard of care applicable to 

dentists treating a patient or that the departure proximately caused the appellant’s 

injuries. Id. The Fourteenth Court of Appeals concluded that the appellant’s claims were 

HCLCs because all were necessarily predicated on a departure from accepted standards 

of medical care. Id. at *2. The court concluded that the dentist’s motion encompassed 

the appellant’s claims because the motion challenged the existence of evidence of both 

a breach of the standard of care and of causation, elements common to a claim for

negligence and an HCLC. Id. at **2–3. Being guided by the Houston Court’s analysis, 

we conclude that Benjamin’s claim is an HCLC because it is predicated on a departure 

from the accepted standard of care applicable to a health care provider. 
9

We further conclude that the Hospital’s motion was broad enough to encompass 

Benjamin’s claim because it challenged the essential element of causation, which is 

common to both claims. In Texas West Oaks Hospital, LP v. Williams, the Texas 

Supreme Court addressed a dispute between a mental hospital and one of its employees 

over the hospital’s alleged failure to protect the employee from a dangerous patient. 371 

S.W.3d 171, 175–76 (Tex. 2012). The Court rejected Williams’s argument that his claim 

was not an HCLC, explaining that the dispute was, “at its core, over the appropriate 

standards of care owed to this mental health professional in treating and supervising a 

psychiatric patient at the mental hospital, what services, protocols, supervision, 

monitoring and equipment were necessary to satisfy the standard, and whether such 

specialized standards were breached.” See id. at 182. The same reasoning is applicable 

here. Regardless of the form of Benjamin’s pleadings, at its core, Benjamin’s dispute with 

the Hospital is over the appropriate standard of care that the Hospital owed to Onofa, a 

nursing professional treating patients potentially infected with H1N1, “what services, 

protocols, supervision, monitoring and equipment were necessary to satisfy the standard, 

and whether such specialized standards were breached.” Id. at 182. Benjamin cannot 

escape the nature of his claim by pleading it in a different manner. See Yamada, 335 

S.W.3d at 196. Furthermore, the Hospital’s motion challenged the evidence supporting 

causation, an essential element that is common to both an HCLC and a claim for gross 

negligence. See Tex. W. Oaks Hosp., 371 S.W.3d at 179–80 (stating that one of the 

elements of an HCLC is that the defendant’s departure from the standard of care 

proximately cause the plaintiff’s injuries); Frias v. Atl. Richfield Co., 999 S.W.2d 97, 103 

(Tex. App.—Houston [14th Dist.] 1999, pet. denied) (stating that one of the elements of a 
10

claim for gross negligence authorized by the Texas Workers’ Compensation Act is 

causation) (citing TEX. LAB. CODE ANN. § 408.001(b) (West, Westlaw through 2013 3d 

C.S.)). Because the Hospital’s no-evidence motion for summary judgment challenged 

the causation element of Benjamin’s claim, we conclude that the Hospital’s motion was 

broad enough to encompass it. See Lampasas, 988 S.W.2d at 436–37; see also 

Kennedy, 1999 WL 418369, at *3. 

Having concluded that the Hospital’s motion address Benjamin’s claim, we 

overrule Benjamin’s first issue. 

III. EVIDENCE ATTACHED TO THE HOSPITAL’S MOTION

Benjamin asserts in his second issue that the trial court erred by considering the 

evidence attached to the Hospital’s summary-judgment motion. Benjamin reasons that 

the Texas Supreme Court has ruled that if the moving party attaches evidence to a noevidence motion, “that evidence should not be considered unless it creates a fact 

question.” Binur v. Jacobo, 135 S.W.3d 646, 651 (Tex. 2004).

We agree that attaching evidence to the motion was improper and that the Hospital 

may not rely on that evidence on appeal. See id. We also agree that it appears from our 

review of the record the trial court may have considered some of the evidence. For 

example, a docket sheet entry for December 17, 2013 reflects that the trial court “reviewed 

all documents tabbed by courts staff on [the Hospital’s] amended motion for summary 

judgment.” Benjamin argues that considering the evidence was “improper” but does not 

explain how the court’s review of the improperly attached evidence amounted to 

reversible error. See TEX. R. APP. P. 38.1(i) (holding that the appellant’s brief “must 

contain a clear and concise argument for the contentions made, with appropriate citations 
11

to authorities and to the record”).4 Even a novel argument must be grounded in analogous 

case law or present the relevant jurisprudential framework for evaluating the claim. 

Abdelnour v. Mid Nat’l Holdings, Inc., 190 S.W.3d 237, 241–42 (Tex. App.—Houston [1st 

Dist.] 2006, no pet.). Because Benjamin does not explain why the court’s consideration 

of the evidence attached to the motion was reversible error, we overrule Benjamin’s 

second issue. See TEX. R. APP. P. 38.1(i); see also Abdelnour, 190 S.W.3d at 241–42.

IV. DID BENJAMIN HAVE ADEQUATE TIME FOR DISCOVERY?

By his third issue, Benjamin asserts that he did not have adequate time to make 

use of the full set of medical records of Palacios’ stay at the PICU, and that those records 

“confirm and reinforce” Dr. Hull’s opinion that Palacios was the cause of Onofa’s infection. 

Benjamin reasons that the trial court should have granted him adequate time to make use 

of these records.

Texas Rule of Civil Procedure 166a(i) provides that a party may move for noevidence summary judgment after an adequate time for discovery has passed. TEX. R.

CIV. P. 166a(i). The rules require only that there was an adequate time for discovery, not 

that discovery be completed. Specialty Retailers, Inc. v. Fuqua, 29 S.W.3d 140, 145 (Tex. 

App.—Houston [14th Dist.] 2000, pet. denied). A party claiming inadequate time for 

discovery must either file an affidavit explaining the need for more time or a verified motion 

for continuance. Reule v. Colony Ins. Co., 407 S.W.3d 402, 407 (Tex. App.—Houston 

[14th Dist.] 2013, pet. denied); Rankin v. Union Pac. R. Co., 319 S.W.3d 58, 67 (Tex. 

App.—San Antonio 2010, no pet.). Benjamin’s counsel filed neither a verified motion for 

 

4 Binur v. Jacobo, the sole case Benjamin cited in this issue, holds only that evidence attached to 

a no-evidence motion should not be considered. 135 S.W.3d 646, 651 (Tex. 2004). Binur does not hold 

that considering evidence attached to a no-evidence motion is reversible error. See id.
12

a continuance nor an affidavit. Based on the foregoing, we conclude that Benjamin has 

waived his complaint of inadequate time for discovery.5 See Reule, 407 S.W.3d at 407; 

Rankin, 319 S.W.3d at 67. We overrule Benjamin’s third issue. 

V. DID THE TRIAL COURT PROPERLY GRANT SUMMARY JUDGMENT?

By his fourth issue, Benjamin asserts that summary judgment should not have 

been granted because he produced more than a scintilla of evidence on the essential 

HCLC element of causation. 

A. Standard of Review 

We review the trial court’s decision to grant summary judgment de novo. Merriman 

v. XTO Energy, Inc., 407 S.W.3d 244, 248 (Tex. 2013). When, as here, the trial court 

does not specify the ground for its ruling, we will affirm if any of the grounds presented in 

the motion were meritorious. Id. 

A no-evidence summary-judgment motion filed under Texas Rule of Civil 

Procedure 166a(i) is essentially a motion for a pretrial directed verdict; it requires the 

nonmoving party to present evidence raising a genuine issue of material fact supporting 

each element contested in the motion. Mack Trucks, 206 S.W.3d at 581–82. Evidence 

raises a genuine issue of fact if it is more than a scintilla. Ciguero v. Lara, No. 08-13-

00075-CV, ___ S.W.3d ____, 2015 WL 136197, at *2 (Tex. App.—El Paso Jan. 9, 2015, 

no. pet). “If the evidence supporting a finding rises to a level that would enable 

reasonable, fair-minded persons to differ in their conclusions, then more than a scintilla 

of evidence exists.” Id. Evidence is less than a scintilla if it is “so weak as to do no more 

than create a mere surmise or suspicion of a fact.” Nalle Plastics Family Ltd. P'ship v. 

 

5 Moreover, on the same day as the trial court’s deadline, Benjamin filed Dr. Hull’s new affidavit, 

which thoroughly evaluated those records. 
13

Porter, Rogers, Dahlman & Gordon, P.C., 406 S.W.3d 186, 199 (Tex. App.—Corpus 

Christi 2013, pet. denied) (internal quotations omitted). We review the summary judgment 

record in the light most favorable to the nonmovant, indulging every reasonable inference 

and resolving any doubts in the nonmovant’s favor. Neely v. Wilson, 418 S.W.3d 52, 60 

(Tex. 2013) (op. on reh’g). 

B. Discussion6

Benjamin asserts that he produced more than a scintilla of evidence from which a 

reasonable factfinder could conclude that the Hospital’s inaction caused Onofa’s death. 

Benjamin reasons that Onofa was exposed to patients with H1N1. Benjamin further 

asserts that the standard of care set by the CDC required that healthcare workers use 

N95 masks when treating patients suspected of having H1N1, and that the Hospital 

monitor staff for symptoms of respiratory illness. Benjamin asserted that the Hospital 

disregarded the standard set by the CDC by not providing Onofa with an N95 mask, not 

requiring her to use it, and not monitoring her. The Hospital responds that there was no 

evidence in the record that Onofa was exposed to H1N1 while working in the Hospital, 

 

6 As a threshold matter, the Hospital asserts that Benjamin waived this issue because he did not 

address causation in his response to the trial court. We may not consider on appeal any ground for reversal 

that was not expressly presented to the trial court by motion, answer, or other response to the motion for 

summary judgment. See McConnell v. Southside Indep. Sch. Dist., 858 S.W.2d 337, 341 (Tex. 1993);

Holloway v. Tex. Elec. Util. Const., Ltd., 282 S.W.3d 207, 211 (Tex. App.—Tyler 2009, no pet.). Benjamin 

was not required to marshal his proof in his response, but only “point out evidence that raises a fact issue 

on the challenged elements.” Smith v. Mosbacker, 94 S.W.3d 292, 294 (Tex. App.—Corpus Christi 2002, 

no pet.) (citing TEX. R. CIV. P. 166a(i) cmt.). 

The response and amended response filed by Benjamin’s counsel admittedly do not use the word 

“causation.” However, reading the factual background and the argument section of the response together, 

it is clear that Benjamin asserted that the Hospital caused Onofa’s death by failing to follow CDC guidelines 

regarding the use of respirator masks and the monitoring of healthcare personal for signs of respiratory 

illness. It is also clear that he asserted that the evidence attached to the response is more than a scintilla. 

See Smith, 94 S.W.3d at 294. The language used in the response could have been clearer, but it sufficed

to make Benjamin’s argument. See McConnell, 858 S.W.2d at 341. We will accordingly address 

Benjamin’s challenge on the merits.
14

and even assuming that the standard of care required her to wear the N95 mask, there is 

no evidence that she did not wear one.

Viewing the evidence in the light most favorable to Benjamin and indulging every 

reasonable inference in his favor as we must, we conclude that Benjamin did not present 

any evidence that Onofa became infected with H1N1 while working in the PICU. Dr. Hull 

speculated during his deposition that “it was very likely” that there were unconfirmed 

cases of H1N1 in the PICU at the time because the virus was spreading in the community. 

However, Dr. Hull’s statement in his affidavit that Palacios was the source of Onofa’s 

infection was the only evidence Benjamin put forward regarding causation. We have 

reviewed both the part of Palacios’s medical records that Dr. Hull relied on in his initial 

affidavit and the part of the records disclosed by the Hospital following the ruling on the 

motion to compel, and both sets explicitly state that Palacios’ “Rapid influenza test A and 

B were negative.” Because Palacios tested negative for influenza, Benjamin had no 

evidence that Onofa became infected in the PICU as opposed to the community at large.

Benjamin also cites to Dr. Hull’s amended affidavit, filed after Benjamin moved for 

a new trial.

7

 However, we may not consider Dr. Hull’s affidavit because it is not part of

the summary judgment record. Benjamin filed Dr. Hull’s second affidavit almost two hours 

after the deadline set by the trial court expired. Late-filed evidence may become part of 

the summary judgment record on leave of the court. Benchmark Bank v. Crowder, 919 

 

7 The amended affidavit, which Benjamin contends establishes causation, contained all of the 

information in the first affidavit and a new substantive assertion: there were no confirmed cases of H1N1 

in the PICU at the relevant time because there were no rapid tests for H1N1 commercially available at the 

time. According to the amended affidavit, the rapid tests for Influenza A and B had “high rates of false 

negatives results and [so] physicians could not rely on rapid tests to determine if a patient was ill with” 

H1N1. At the time, the only reliable way to confirm infection by H1N1 was a time-consuming laboratory 

culture. Because there is no evidence such a test was performed for Palacios, and her symptoms were 

otherwise consistent with H1N1, Dr. Hull reasons that the negative test does not establish that Palacios 

was not infected with H1N1. 
15

S.W.2d 657, 663 (Tex. 1996); Ciguero, 2015 WL 136197, at *1 n.1. Without an affirmative 

indication in the record that the trial court granted leave, we presume that the trial court 

did not consider the evidence. Alphaville Ventures, Inc. v. First Bank, 429 S.W.3d 150, 

154 (Tex. App.—Houston [14th Dist.] 2014, no pet.) (citing INA of Tex. v. Bryant, 686 

S.W.2d 614, 615 (Tex. 1985)). We have reviewed the record and found no affirmative 

indication that the trial court granted leave. Benjamin also did not file a motion for 

extension of time, a motion for leave, or otherwise request that the trial court consider the 

affidavit. Dr. Hull’s affidavit is therefore not part of the summary judgment record, and we 

may not consider it. See id.; Pipkin v. Kroger Tex., L.P., 383 S.W.3d 655, 663 (Tex. 

App.—Houston [14th Dist.] 2012, pet. denied).

Excluding Dr. Hull’s amended affidavit and reviewing the remaining evidence in 

the light most favorable to Benjamin, we conclude that Benjamin produced nothing more 

than speculation on the element of causation. Without any evidence that there were 

patients positive for H1N1 in the PICU during the time that Onofa worked there, the 

evidence Benjamin brought forth does “no more than create a mere surmise or suspicion” 

that Onofa became infected with H1N1 in the PICU as opposed to elsewhere in the 

community. See Nalle Plastics, 406 S.W.3d at 199.

In sum, we conclude that Benjamin did not carry his burden to produce more than 

a scintilla of evidence on the challenged element of causation. See Ciguero, 2015 WL 

136197, at *2. Accordingly, we overrule Benjamin’s fourth issue.
16

VI. CONCLUSION

We affirm the judgment of the trial court.

 

NORA L. LONGORIA

Justice

Delivered and filed the

21st day of May, 2015.