Reversed and Remanded Opinion and Dissenting Opinion filed April 9, 2015.

In The

Fourteenth Court of Appeals

NO. 14-13-00456-CV

EXXONMOBIL CORPORATION, Appellant

V.

DELIA PAGAYON, MICHELLE FULTON, ALFREDO G. PAGAYON, 

MICHAEL G. PAGAYON, AND THE ESTATE OF ALFREDO M. 

PAGAYON, Appellees

On Appeal from the Probate Court No. 2

Harris County, Texas

Trial Court Cause Nos. 408,329-401 & 408,329

D I S S E N T I N G O P I N I O N

I agree with the Majority’s determination that for purposes of its response to 

the Pagayons’ motion to strike, ExxonMobil was not required to raise a fact issue 

regarding whether Dr. Dang, with willful and wanton negligence, violated the 

standard of care. I disagree, however, with the Majority’s conclusion that 

ExxonMobil raised a fact issue concerning Dr. Dang’s alleged negligence in 
2

providing emergency care to Alfredo. Because I would instead conclude that the 

trial court did not err in striking Dr. Dang’s designation, I respectfully dissent.

Though the trial court did not articulate its basis for striking the designation 

of Dr. Dang in its order, there are two independent reasons that the decision is not 

error. The trial court would not have erred in concluding that the medical opinion 

ExxonMobil offered to raise a fact issue on Dr. Dang’s alleged departure from the 

standard of care was not probative opinion testimony in that (1) the “expert” 

disclaimed knowledge of the applicable standard of care and (2) the physician’s 

“expert opinion” was based upon assumed facts that varied from the actual, 

underlying facts .

1. The basis for the “expert opinion” that Dr. Dang fell below the standard of 

care

The medical record relied upon by Dr. Casar reflects that Alfredo arrived at 

the hospital’s emergency room via EMS at 17:58.

1

The record also shows injury to 

the left back and decreased breath sounds on the lower left side. The radiology 

report also relied upon by Dr. Casar confirms that Dr. Dang immediately ordered a 

chest x-ray due to chest pain, and the x-ray was performed at 18:08. The 

radiologist, Dr. Luis DeSantos, read the x-ray at 18:10 and provided a diagnosis of 

“[c]omplete opacification of the left hemithorax” and commented that the “left 

hemithorax is completely opaque and there is displacement of the mediastinum 

toward the right side suggesting the presence of a large amount of fluid in the left 

hemithorax with displacement of the mediatinum.” At 18:46 the emergency room 

 

1

The entirety of Alfredo’s medical records were not included as part of the motion-tostrike record. Only a two page “Emergency Provider Record” and the “Diagnostic Radiography” 

report are provided as the basis for Dr. Casar’s opinion.
3

records show “chest tube insertion because of hemothorax.”

2

In fact, Alfredo had 

no left lung and the x-ray was misread. According to Dr. Casar, Dr. Dang fell 

below “the standard of care” when, faced with what, in Dr. Casar’s opinion was, an 

unusual x-ray, Dr. Dang failed to wait for a CT scan before deciding to attempt 

insertion of a chest tube. Dr. Casar stated that “[a]fter the CT Scan was obtained, it 

became clear that the patient had a congenital absence of the left lung.”

2. The “expert” disclaims knowledge of the standard of care 

Problematic to the above evidence is Dr. Casar’s testimony that he is not 

familiar with the standard protocol for emergency room physicians when they 

believe they are confronted with a hemothorax and his assumption about the timely 

availability of diagnostic tools in the emergency room. First, Dr. Casar’s field of 

expertise is critical care medicine, which he concedes has a different standard of 

care than emergency room medicine. Standing alone, the fact that Dr. Casar’s 

expertise is in a different area is not fatal if Dr. Casar demonstrates knowledge of 

the area at issue. See Tex. R. Evid. 702 (“If scientific, technical, or other 

specialized knowledge will assist the trier of fact to understand the evidence or to 

determine a fact in issue, a witness qualified as an expert by knowledge, skill, 

experience, training, or education may testify thereto in the form of an opinion or 

otherwise.”); cf. Blan v. Ali, 7 S.W.3d 741, 745–46 (Tex. App.—Houston [14th 

Dist.] 1999, no pet.). But Dr. Casar repeatedly testified that he does not know the 

standard of care for an emergency room physician. Although Dr. Casar testified 

that, in his opinion, the standard of care for reading an x-ray is the same despite the 

diagnostic setting, he also stated that he was not familiar with the standard of care 

for an emergency room physician. When Dr. Casar admitted that he does not know 

 

2 According to Dr. Casar, the thorax is the space between the waist and the neck; a 

hemothorax is a thorax full of blood, which means that something is bleeding inside, and it is a 

condition that may be life-threatening if not treated promptly.
4

the standard for an emergency room physician, he caused his own opinion that the 

standards are the same to be completely without foundation. In other words, if he 

does not know what the emergency standard is, he cannot know that the emergency 

standard is the same as the non-emergency standard. 

Where the treatment criticized is provided as part of emergency care, the 

expert should demonstrate familiarity with that standard of care, not simply guess 

that the setting for care does not matter. Cf. Ly v. Austin, No. 03-05-00516-CV, 

2007 WL 2010757, at *5 (Tex. App.—Austin July 13, 2007, no pet.) (mem. op) 

(holding that when the specific issue before the court is “the standard of care 

applicable to neurologists providing emergency care immediately following a 

stroke,” testimony from an expert in caring for stroke patients in rehabilitative 

setting is insufficient). Thus, in my view, Dr. Casar must know the applicable 

standard of care—in this case, what a reasonably prudent emergency room 

physician would have done in the same or similar circumstances—to support the 

designation of Dr. Dang as a responsible third party. 

In short, Dr. Casar admitted he has neither the expertise nor the knowledge

of reading x-rays or making critical decisions in an emergency room setting. Thus, 

I would conclude that the trial court did not err in determining that Dr. Casar 

lacked the requisite knowledge, skill, experience, training, or education to opine on 

the emergency care provided to Alfredo. See Tex. R. Evid. 702; cf. Ehrlich v. 

Miles, 144 S.W.3d 620, 625 (Tex. App.—Fort Worth 2004, pet. denied) (“A 

medical expert who is not of the same school of medicine, however, is competent 

to testify if he has practical knowledge of what is usually and customarily done by 

a practitioner under circumstances similar to those confronting the [allegedly 

negligent physician].” (emphasis added)).
5

The majority urges that, notwithstanding Dr. Casar’s admission that he is not 

familiar with the applicable standard, we may not affirm on this basis because the 

Pagayon’s did not object to Dr. Casar’s qualifications. I disagree factually and 

legally. Counsel for the Pagayons consistently and persistently pointed out Dr. 

Casar’s lack of qualification before the trial court:

Q. Certainly, an emergency room physician’s practice is very different 

from your practice as a critical care doctor, correct?

. . .

A. It is different, yes.

. . .

Q. You don’t practice in the ER, correct?

A. I practice in ICU.

Q. Okay.

A. Not in the ER.

Q. So you don’t know what the standard protocol is for emergency 

room physicians when they believe they have a hemothorax is, do 

you?

A. I don’t know what their standard is.

. . .

Q. But – but for the emergency room. You don’t know the emergency 

room standard – you’re – you’re basing your understanding of the 

ICU standard with the ER standard, fair?

A. Fair.

Q. That’s not necessarily fair to the doctors is it? Because you agree 

with me that an ICU setting is different from emergency room setting, 

fair?

. . .

A. It is different, yes.

Q. And so, sitting here today, you don’t know what the standard 

protocol is for an emergency room physician?
6

A. I don’t – I don’t know what the standard of care is for an 

emergency room physician.

. . .

Q. Again, you’re not familiar with the standard of care in the 

emergency room?

. . .

A. I’m not sure if – what the standard of care for the emergency room, 

but I would be surprised if it’s any different.

Q. But I just want to make sure. 

You’re not qualified to testify on the standard of care in an 

emergency room?

. . .

A. I don’t know what the standard of care in the emergency room is.

Thus, in my view, the Pagayons placed Dr. Casar’s qualification at issue. 

Here, we are not faced with an alleged error on the admissibility of Dr. Casar’s 

opinion. The trial court did not exclude the evidence. Instead, as the Texas 

Supreme Court has recently pointed out, the question is whether the expert’s 

opinion is any evidence at all. Cf. Houston Unlimited, Inc. Metal Processing v. Mel 

Acres Ranch, 443 S.W.3d 820, 832–33 (Tex. 2014) (“[I]f no basis for the opinion 

is offered, or the basis offered provides no support, the [expert] opinion is merely a 

conclusory statement and cannot be considered probative evidence, regardless of 

whether there is no objection.” (internal quotation and citation omitted)).

Further, the nature of the opinion Dr. Casar proffers is, in the words of our 

opinion in Blan v. Ali, “peculiar to the field” of emergency medicine about which 

he knows nothing. 7 S.W.3d 741, 746 (Tex. App.—Houston [14th Dist.] 1999, no 

pet.). As noted above, Alfredo was admitted to the emergency room at 5:58 p.m. 

Dr. Dang testified that he “was very concerned about [Alfredo]’s medical 

condition and believed that if [he] did not take immediate medical action, 
7

[Alfredo]’s health could have been placed in serious jeopardy.” Dr. Dang 

performed a physical examination and obtained a chest x-ray at approximately 6:08 

p.m., which, as noted above, revealed complete opacification of the left 

hemithorax. Dr. Dang’s interpretation of the chest x-ray was confirmed by Dr. 

DeSantos. Further, as Dr. Dang testified, 

Based on, among other things, the x-ray, Mr. Pagayon’s medical 

condition, and his need for emergency care, I made the decision to 

place a chest tube to drain what I believed to be a hemothorax in his 

left lung. . . . Based on the circumstances and the emergency 

situation, I made the determination that there was not time to perform 

a CAT scan prior to placing the chest tube. In my training and 

experience when dealing with what one believes to be a hemothorax, 

the same must be addressed as soon as possible.

(emphasis added). Thus, according to Dr. Dang—and acknowledged by Dr. 

Casar—Dr. Dang was providing emergency medical care when he attempted the 

chest tube insertion. Dr. Casar’s admission that he does not know the standard of 

care for emergency room physicians is “determinative.” See id.

3. The “expert opinion” rests on misperceived facts

Second, Dr. Casar repeatedly displayed his unfamiliarity with the facts of 

Alfredo’s care in his deposition testimony. Cf. Houston Unlimited, Inc. Metal 

Processing, 443 S.W.3d at 822 (“If an expert’s opinion is unreliable because it is 

‘based on assumed facts that vary from the actual facts,’ the opinion ‘is not 

probative evidence.’” (quoting Burroughs Wellcome Co. v. Crye, 907 S.W.2d 497, 

499–500 (Tex. 1995)). If the factual assertions or assumptions underlying an 

expert’s opinion are contrary to the facts, opinion testimony founded on those 
8

assumptions is not competent evidence. Cf. id. at 833. Here, Dr. Casar’s opinion 

was based on assumptions contrary to proven facts in several respects.3 

For example, Dr. Casar was mistaken about the time and dosages of 

morphine provided to Alfredo: Dr. Casar initially stated that the morphine was 

still in Alfredo’s system when he was intubated, but when confronted with 

Alfredo’s medical records that established the contrary, Dr. Casar acknowledged 

that morphine was “probably not” still in Alfredo’s system when he was later 

intubated in the ICU. Dr. Casar also testified that Alfredo’s respiratory rate was 32 

breaths per minute, an elevated rate, when he was admitted to the ICU. But when 

confronted with Alfredo’s records, Dr. Casar stated that the record showed 

Alfredo’s breath rate was 24 breaths per minute. Further, he testified that there 

was a note in Alfredo’s medical records that Afredo could be released that 

“afternoon” from the emergency room.4 Yet, the doctor was unable to find this 

note when given an opportunity to search through the records. Finally, Dr. Casar’s

criticism of Dr. Dang’s failure to wait for a CT scan to confirm his hemothorax 

diagnosis emanated from his belief that “in the emergency room, you can get a 

CAT scan in 15 minutes.” But the following exchange occurred during Dr. Casar’s 

deposition:

 

3

The “facts” as proven at the time of the motion to strike did not include Alfredo’s entire 

medical records. Instead, these “facts” included Dr. Casar’s deposition testimony and a few 

pages from Alfredo’s records. Thus, although the Majority notes several facts from Alfredo’s 

medical records in its harm analysis, those facts were not part of the record when the trial court 

implicitly determined that Dr. Casar’s opinion testimony failed to raise a fact issue regarding Dr. 

Dang’s purported responsibility. In other words, the Majority has reviewed the trial court’s 

alleged error based upon a record that was not before the trial court at the time it made the 

challenged ruling. Moreover, the facts the Majority draws from the expanded record are facts 

neither articulated, nor apparently known, by Dr. Casar at the time he supplied the deposition 

testimony ExxonMobil presented to the trial court. 

4 As noted above, Alfredo was admitted to the emergency room at 17:58, which is 5:58 

p.m. Thus, it does not appear that Alfredo was in the emergency room in the “afternoon.”
9

Q. You also testified he had a CT scan less than an hour after . . . after 

the chest tube.

Remember that?

A. Yes.

Q. That’s not the case, is it, Doctor?

A. I said I don’t remember exactly the time line.

Q. In fact, let me show you what’s . . . previously been marked as 

Exhibit No. 37.

A. Okay.

Q. And he didn’t have a CT scan until 8:53 that night, more than two 

hours —

A. Two hours. Well, that’s terrible.

Q. More than two hours, correct?

A. That’s terrible.

Q. And more than three hours after his initial . . . consult, right?

A. Yeah. So, you see — uh-huh.

Q. You can’t wait three hours for a CAT scan, can you doc?

A. Well, they waited and nothing happened.

Q. If you can get a CAT scan at the snap of a finger, as you claim you 

can —

A. Yeah. You should be able to here.

Q. Took two hours here?

A. Right.

Q. And they ordered one immediately, and it took two hours?

A. That’s not good. That’s not good. That’s not what it [sic] should 

happen in an emergency room.

***

Q. Would you like to correct your testimony wherein you stated he 

received a CAT scan 30 minutes after his chest tube?

A. Yes.
10

In summary, Dr. Casar did not indicate that he was familiar with the facts of 

Alfredo’s care. Instead, the record before the trial court indicates that he based his 

conclusions on either improper recollections of the facts or assumptions. See id.; cf.

Jelinek v. Casas, 328 S.W.3d 526, 539 (Tex. 2010) (holding that the basis for an 

expert’s opinion must be linked to the facts). 

4. Conclusion

I would conclude, after considering Dr. Casar’s testimony as a whole, that 

Dr. Casar’s opinions do not raise a fact question regarding whether Dr. Dang failed 

to act as a reasonably prudent physician under the same or similar circumstances. 

Although Exxon Mobil offered Dr. Casar’s opinion on emergency room treatment 

in an emergency situation, Dr. Casar did not undertake to analyze Dr. Dang’s 

conduct in the context of the circumstances of emergency care. As such, Dr. 

Casar’s statements that he does not know the emergency room standard of care is 

determinative. Cf. Ehrlich, 144 S.W.3d at 625; Blan, 7 S.W.3d at 746 (noting that 

expert’s admission that he was unfamiliar with the emergency room and cardiology 

standards of care would be “persuasive, if not determinative if [he] were purporting 

to offer expert medical opinions in matters peculiar to the fields of cardiology or 

emergency medicine”). Dr. Casar’s testimony completely misses the mark 

regarding whether Dr. Dang’s care of Alfredo fell below the standard of care for a 

reasonably prudent physician in an emergency room setting. Indeed, Dr. Casar’s 

testimony demonstrated he was unfamiliar with the actual facts surrounding 

Alfredo’s medical care. Cf. Houston Unlimited, Inc. Metal Processing, 443 S.W.3d 

at 832–33; Jelinek, 328 S.W.3d at 539. Thus, I would conclude that Dr. Casar’s 

opinion is no evidence of Dr. Dang’s responsibility for Alfredo’s death.

In sum, I agree with the Majority that ExxonMobil did not need to bring 

forth evidence that Dr. Dang willfully and wantonly departed from the standard of 
11

care. But ExxonMobil nonetheless needed to bring forth some probative evidence 

that Dr. Dang departed from the applicable standard of care. Because ExxonMobil 

failed to do so, I would conclude that the trial court did not err in striking the 

designation of Dr. Dang. Because the Majority concludes otherwise, I respectfully 

dissent. 

/s/ Sharon McCally

Justice

Panel consists of Justices Christopher, McCally, and Wise (Christopher, J., 

majority).