### T E X A S C O U R T O F A P P E A L S , T H I R D D I S T R I C T , A T A U S T I N

NO. 03-12-00125- CV

David DeLarosa, Appellant

v. John Klotz Stokes, M.D ., Appellee

F ROM TH E DISTRI CT COURT O F TRAVIS CO UNTY, 201 ST JUDICI AL DISTRICT NO. D-1 -GN-0 6-0 0215 3, H ONO RAB LE AMY CLARK MEACH UM, J UDGE P RESIDING

M E M O R A N D U M O P I N I O N

David DeL arosa appea ls from a final sum mary judgme n t t erminating a health car e liability claim he had asser ted ag ainst appellee J ohn Klotz Stokes, M.D. I n three issues, DeL arosa complains of err or by the district court in excluding the aff idavit of DeL arosa ’s expert and g ranting summary judgme nt. We will overrule these contentions and a ffirm the district c ourt’s judg ment.

BACK GR OUND DeL arosa came under the car e of Dr. Stokes, a neurosur g eon, afte r he suffe red a neck fra cture in an April 11, 2004 automobile acc ident and was transporte d to the emer g ency room at Austin’s Br acke nridg e Hospit al

. On Ap ri l 12, Stokes opera ted on DeL arosa to stabiliz e the fra cture are a and remove bone fra g ments. DeL arosa acknow ledg es that the surg ery was succe ssful in reme dy ing his neck fra cture and “may have saved him from potential para ly sis.” DeL arosa

rema ined at Br acke nridg e until April 14, when he was discharg ed and went home. But on April 17,an ambulance was summoned to DeL arosa ’s home, wher e he repor ted difficulty walking , sorene ss in his left thigh, and nausea , indicating further that he had beg un experiencing difficulty walking as

ear ly as the afte rnoon of April 15. I t turned out that DeL arosa had suffe red strokes (i.e., interruption of bl ood flow t o the brain) on both the rig ht and left sides of his cer ebellum. He was trea ted wit h aspirin and subseque ntly

underw ent phy sical thera py . DeL arosa later sued Stokes, alleg ing that the neurosur g eon’s profe ssional neg lige nce had cause d him stroke-r elated damag es. DeL arosa ’s liability th e o r ie s c e n te r e d o n th e n e u r o s urg eon’s
acts or omissions in response to the discovery , prior to surg ery , that one of the bone fra g ments from the acc ident had occlude d (blocke d) the patient’s verte bral arte ry . As Stokes would later rec og nize d u ri ng his deposition, this occlusion cre ated a risk of stroke that ultimately came to pass— h e attributed DeL arosa ’s strokes (he opined there wer e two, one on eac h side of the cer ebellum) either to the blockag e in the ver tebra l arter

y itself or “a littl e blood clot or a littl e collection of pl atelets” blocking other blood vesse ls above it. DeL arosa pled that Stokes w as neg lige nt in “ failing to take any steps to addre ss” the occlusion either during surg ery or during DeL arosa ’s postoperative hospital stay and by not presc ribing him medication to l o we r t h e risk of blood clots and strokes. Making
matters worse, DeL arosa further asser ted, Stokes was negli g ent in failing to war n him that he fac ed an incre ased risk of b l o od clots or strokes or to aler t him to “the signs of blood clots and strokes for which he should be on the lookout,” causing him to delay seeking trea tment once stroke sy mptoms appeare d.

Fo l lowing discovery and afte r expert-desig nation deadlines had expired, Stokes filed a “ traditional” motion for summ ary judgme nt on the ground that the deposit ion testimony of DeL arosa ’s sole expert, Dr. Charles Mara ble, neg ated proof of the requisite causa l link betwee n 2DeL arosa ’s claimed d amag es and any brea ch of the duty of car e. I n support, Stokes attache d the

entirety of Mar able’ s deposition, but emphasiz ed the f ollowing e x chang es: Q: Do y o u b el i ev e that Dr. Stokes’s failure to g ive the instructions upon discharg e that y ou talked about: I f y ou have any of t h i s laundry list of sy mptoms, y ou need to come back to the hospital immediately , was a brea ch of the standa

rd of c are ? A: Yes.

. . . . Q: Dr. Mara

ble, it’s my understanding , based on y our testimony here today , that the only criticism that y ou have of Dr. Stokes that y ou believe rises to the level of a brea ch of a standard of car e is hi s fa i l u re to g ive discharg e i nstructions to Mr. De[L ]a[ r]osa on what to look for as signs of a possible stroke and to come back to the hospital immediately if he had any of those— A: Yes. Q: —corr ect? A: Yes. Q: I s that corr ect? A: Yes.

. . . . Q: So reg ardle ss of whether Mr. DelaRosa ca m e to the hos pital on the 15t h or 16th or, as he did, on the 17th, the only thing that could have been done was what was done for him, and it may or m ay n o t have chang ed the outcome, corr ect? A: Correc t. Q: And y ou cer

tainly can’ t sa

y with rea sonable medic al probability the 15th or the 16th would have ma de a dif fer ence . A: No. 3Q: Or is that fa ir?

A: That’s fa ir. Q: That was a bad question on my part. And I think what y ou’re say ing is if, in fac t, he had one stroke on the 15th and one stroke on the 16th, if he had come back in betwee n, are y ou say ing that potentially , if t h ey h ad g iven him any Plavix , it may

have pr evente d the sec ond one, may be? A: Yea

h, bring s him in for stuttering. They usually —they prog ress. A cer ebra l infarc tion, 24, 48 hours and they ’re usually done. Br ainstem infarc ts take up t o five day s to rea lly settle in. I mean they can be acute or they can bum p rig ht a long, and—and the sooner y ou g et to him, y ou might be—if y ou save a fe w bra in cells, y ou know, y ou’ve sa ved a f ew br ain ce lls. Q: And so if Iunderstand w hat y ou’re say ing, if Mr. DelaRosa had come in on the 15th or the 16th that he would have g otten dosed with Plavix sooner, and it may or may not had preve nted a stroke if, in fac t, he had a stroke afte r that fac t? A: I think it could have lessene d the seriousne ss of the ef fec ts of what he ha d. Q: And that’s just a possibilit y ; is that fair? A: Sure. Q: And so y ou’re not g oing to testify to the jury , for example, if he had come in on the 15th or the 16th, then he would have better fine motor s k i l l s on this hand or he would not have— A: Possibl e. Q: I t’s just possi ble. A: He wa s not give n that chanc e. Q: And cer

tainly , y ou would ag ree that Dr. Stokes could have g iven him all the instructions that y ou believe he s hould have been given, and M r. DelaRosa still wouldn’t have come in. A: Sure. Q: I mean, y ou have pa tients that don’t follow y our advic e all the time.

4A: Absolutely . There ’s no discussion about that.

. . . . Q: And y ou—my understanding is, from y our testimony , that that brea ch by him m ay or may not have chang ed Mr. DelaRosa’ s outcome. That’s j u s t a possibili ty , but y ou can’ t say with rea sonable medic al proba bility

. A: The phy si ci an h as a duty to tell the patient about what the possible conseque nces of

his ill ness ar e, and D r. Stokes did not do that. Q: And y ou would ag ree , though, that his failure to do that may or may not have chang ed the outcome ? A: That’s true

. Q: That y ou’re not able to say with rea sonable medical probability had he g iven those instructions, a s y ou believe he should, tha t the outcome would be any differ ent. I t’s possible, but y ou can’ t say it’s probable. A: Yes.

. . . . Q: And that y ou would ag ree that if Dr. Stokes had g iven those instructions that it’s possible the outcome wo u l d have been differ ent or the damag es could have been lessened, but y ou can’ t s ay that with rea sonable medical probability

. A: Correc t.

DeL arosa filed a response to Stokes’s motion for summ ar y j udg ment, attaching excerpts from the deposit ions of bot h DeL arosa and S tokes tending to establish th at , as DeL arosa had alleg ed, the neurosur g eon had not g iven him instructions reg arding the risk of stroke, the indicia of a stroke, or what to do if such signs appea red b efor e discharg ing him. More critica lly for our analy sis, howeve r, DeL arosa also attache d an aff idavit from Mara

ble in which the expert purported to clarify and ela borate upon his prior deposition testimony

. 5I n part, Mara ble reiter ated his opinion to the eff ect that Stokes brea ched the standard of car e by failing to “wa

rn[] Mr. DeL arosa of his incre ased risk for stroke, of the signs and sy mptoms of stroke, and to return to the hospital immediately upon the first signs of a stroke,” as “[o] nly with proper instruction would Mr. DeL arosa have been awa re of what sy

mptoms to look for, and of what
to do at the outset of such sy mptoms.” As for a causa l connec tion to DeL arosa ’s injuries, Mara ble posited, “Ha d Mr. DeL arosa been proper ly instruct ed b y Dr

. Stokes, and had Mr. DeL arosa then
returne d to the hospital for trea tment immediately afte r his first stroke, medical providers could and should have beg un trea tment then both to attempt to improve his rec overy from that first stroke, and
to reduc e the possibili ty of Mr. DeL arosa having a second subsequent stroke.” “Ha d that occur red,” Mara ble conclude d , “ M r . D e L a r o s a ’s rec overy may have been better, and the subsequent strokes may have been preve nted.” Mara ble made the ident i ca l asser tions with respe ct to DeL arosa ’s second stroke and any subsequent strokes that occur red. Howeve r, the expert ultimately conce ded that “[a]s I h av e previously testified, I cannot say that prior trea tment befor e any one stroke would to a

rea so nable medical probability have preve nted a subsequent stroke”—in fac t, he admitted that “accor ding to the s tudies to date, all of t he remaining trea tment options available offe r l ess t han a 51% chanc e of preve nting an additional stroke following a single stroke”—or that “prope r trea tment following any one stroke would to a rea sonable medical probability have improved Mr. DeL arosa ’s

rec overy from that one stroke.” But de spite these conc essions, Mara ble attempted to e stablish the requisite ca

usal linkag e in two way s. First, Mara

ble relied on the premise that, “[f]rom the history in the medical

rec ords”—whic h wer e not attache d to Mara ble’s aff idavit—“it appea

rs that Mr. DeL arosa suffe red

a string of multipl e strokes afte r he was rele ased from the hospital.” Thus, Mara ble rea soned, “due 6t o Dr. Stokes’[s] failure to follow the applicable standard of car e, Mr. DeL arosa misse d at l ea s t

three opportunities to rec eive trea tment whi ch co uld have preve nted subsequent strokes” and likewise “lost at least three opport u n i t i es t o rec eive immediate, timely trea tment for his multipl e strokes.” And, while conce ding that any one of these lost opportunities could not be shown to have singula rly impacted DeL arosa ’s outcome within a rea sonable medical probability , or eve n that the first two had in combination, Mara ble insisted nonetheless that “[b] ased on all of these opportunities collective ly to provide proper trea tment, had Dr. Stokes acte d within the proper standard of car e and

. . . proper ly instructed Mr. DeL arosa on the signs and s y m ptoms of stroke and to return to the hospital i m m ed i at el y upon the appeara nce of the first sy

mptoms so that proper medical treatment could have been provided timely , then there is a rea sonable medical probabili t y that the injuries suffe red by Mr. DeL arosa as a result of the multiple strokes would have been reduc ed or preve nted.” (Emphase s added.)

The second way in which Mara ble attempted to demonstrate a causa l linkag e was by sug g es t i n g that a broader rang e of acts or omissions by Stokes constituted brea ches of the dut y of

car e and, in turn, wer e cause s of DeL arosa ’s injuries. Returning to a theme from his deposit i on, Mara ble asser ted that “Dr

. Stokes should have kept Mr. DeL arosa in the hospital for a longe r period of time for observa tion g iven his incre ased risk of stroke,” but ag ain stopped short of “say [i ng ] that his discharg e alone rises to the level of medical malprac tice or falls outside the applicable standard of car e.” But, Mara

ble aver red, “I do believe it rose to the level of medical malprac tice and brea ched the applicable standard of car e for Dr. Stokes to prema turely discharg e Mr. DeL arosa when he did instead of keeping him for further observa tion and to fail to instruct Mr. DeL arosa or his car e g iver

on the signs an d s y

m p t o m s of stroke so they could observe for those sy mptoms themselves.” 7(Emphasis in orig inal.) And, Mara ble continued, “[h] ad Mr. DeL arosa been kept in the hospital even

one more day , then hos pital staff would ha ve bee n able to re cog nize the onset of t he sy mptoms of Mr. DeL arosa ’s first stroke, and could have beg un trea tment immediately ” and would have been in a position therea fter to tre at the succ ession of “multiple strokes” a nd, within a rea sonable medic al probability , reduc e or pr event De L arosa ’s damag es there from.

Mara ble further asser

ted that Stokes brea ched the standard of care by failing to “tre at[] Mr. DeL aros a befor e his rele ase from the hospital with Plavix or a simil ar drug to reduc e Mr. DeL arosa ’s chanc es of having a stroke in the first place .” The expert conclude d that, “[t] aken collectively , Dr. Stokes’[s] failure s to act within the proper s tandar d of care, by failing to initially
trea t Mr. DeL arosa befor e his rele ase from the hospita l with Plavix or a simil ar drug to reduc e Mr. DeL arosa ’s chanc es of having a stroke in the first place , by failing either to keep Mr. DeL arosa in the hospital wher e he could be observe d by competent medical staff and wher e proper trea tment could have been provided timely , or to pr operly instruct Mr. DeL arosa on the signs and sy mptoms of stroke and to return to the hospital immediately upon the appea ranc e of the first sy

mptoms, wer e

a s u b s t antial fac tor in bring ing about Mr. DeL arosa ’s injuries which could have been avoided o r lessened but f

or Dr. Stokes’[s] failures.” I n reply , Stokes arg ued that DeL arosa had failed to r aise a fac t issue as to c ausation and, further , objected to Mara ble’s aff idavit on the g rounds that (1) his opinion s we re based on medical rec ords that wer e not attache d as require d by Tex. R. Civ. P. 166a(f ); (2) his opinions wer e unsupported by or inconsistent with underlying fac ts, and thus incompetent; and (3) his aff idavit was

a “sham” and incompetent to raise a fac t issue. Following a hear ing, the district court sustained Stokes’s objections in their entirety and g rante d his summary -judg ment motion. This appea l ensued. 8ANALYSIS DeL arosa bring s three issues on appea l. I n his first, he arg ues that the district c ourt abused its discretion in excluding Mara ble’s aff idavit. I n the second, DeL arosa urg es that Mara ble’s aff idavit, if considere d, raises a g enuine issue of materia l fac t as to causa tion such that the district court err ed in g ranting summ ar y j u d g ment. I n what he sty les as his third issue, DeL arosa advocates a leg al premise underly ing some of his asser

tions in support of his other two issues: that the district court err ed by “conside r[ing] eac h fa i l u re an d eac h missed opportunity for trea tment individually

and sepa rate ly when c onsidering causa tion,” rathe r than “ consider[ing ] t he combined eff ect, as [Marable] did, of all failure s by [S tokes] and all missed opportunities for trea tment cause d by [S tokes’s] neg lige nce tog ether .”

Stand ards of review

We revie w the district court’s exclusion of evidenc e for an abuse of discretion

. In re J.P.B. , 180 S.W .3d 570, 575 (Tex. 2005); see Fairfield Fin. Grp., Inc. v. Synnott , 200 S.W .3d 316, 319 (Tex. App.—Austin 2009, no pet.) (apply ing same standard to exclusion of summary -judg ment evidenc e). A trial court abuses i t s d i s cr et i on when it makes a decision that is arbitra ry or

unrea sonable or that is without ref ere nce to any g uiding rules and principles. Downer v. Aquamarine Op er a t o r s , Inc ., 701 S.W .2d 238, 241–42 (Tex. 1985). We must uphold the district court’s evidentiar y ruling if there i s an y l egitimate basis for it. See Owens-Corning Fiberglas Corp. v. Malone , 972 S.W .2d 35, 43 (Tex. 1998).

We revie w the district court’s summary -judg ment ruling de nov o . V a le n c e O p e r a ti n g Co. v. Dorsett , 164 S.W .3d 656, 661 (Tex. 2005). A party moving for summary judgme nt must

9demonstrate that there is no g enuine issue of materia l fac t and that he i s entitled to judgme nt as

a matter of law. Tex. R. C i v. P. 166a(c ); Nixon v. Mr. Prop. Mgmt. Co. , 690 S.W .2d 546, 548 (Tex. 1985). Where, as here , a defe ndant moves for summary judgme nt under th e “tra ditional” standard, he must meet the initial burden o f eit her conclusively neg ating at least one essential element of each o f the pl aintiff’s causes of action or conclusively establishing eac h element of an aff irmative defe nse. Scienc e Spectrum, Inc. v. Martinez , 941 S.W .2d 910, 911 (Tex. 1997)

. I f the defe ndant meets this initial burden, he is entitled to summary judgme nt u n l es s t h e non-movant plai n t iff prese nts summary -judg ment evidenc e raising a g enuine issue of materia l fac t as to

one of the elements at issue. M.D. Anderson Ho s p . & Tumor Inst. v. W

illri ch , 28 S.W .3d 22, 23 (Tex. 2000) (per curia m). When revie wing a summary judgme n t , we take as true all evidenc e favor able to the non-movant, and indulge ever y rea sonable infere nce and resolve all d oubts in his favor. Id

.

Exclusion of Marable’s aff idavit DeL arosa ’s first issue on appea l asser ts that the district court abused i t s d i s cr et ion in excluding Marable’ s aff idavit. We disag ree . Rule 166a of the T ex as R ules of C ivil Procedur e require s, among other things, that summary -judg ment af f id a v it s in c lu d e a s a

n a tt a c hment “[s] worn or

cer tified copies of all paper s or parts there of ref err ed to in [t he] aff

idavit.” Tex. R. Civ. P. 166a(f ). Mara ble expli citly aver

red that he based his opinion that DeL arosa had “a string of multipl e strokes”

on his r eview of DeL arosa ’s medical rec ords, and the contents of the rec ord wer e likewise integ ral
t o o ther opinions he expressed reg arding causa tion. Howeve r, these rec ords wer e not attache d t o Mara ble’s aff idavit. Stokes objected to the omission of these medical rec o rd s , p o i n t i n g out both

10Mara

ble’s failure to c omply with r ule 166a(f

) and that absent the rec ords, Mara ble’s asser

tion that DeL arosa suffe red multipl e strokes lacke d any underly ing fac tual basis and was thus inc ompetent. I n response , DeL arosa sug g ests that the failure to attach the medical r ecor ds is of no conseque nce beca use it was obvious from context and his deposition on what re co rd s he was rely ing. But the bottom line here is that by failing to attach ref ere nced documents, Mara ble’s aff idavi t v i o l ated rule 166a(f

)’s require ments and, acc ording ly , we cannot say that the district court abused its discretion in excluding Mara ble’s aff idavit. See Guthrie v. Suiter , 934 S.W .2d 820, 824–25 (Tex. App.—Houston [1st Dist.] 1996, no writ) (holding that expert aff idavit that did not include copies of supporting documents as require d by rule 166a(f ) was inadmissible as summary -judg ment evidenc e). DeL arosa arg ues that, even if the failure to attach supporting documents rende red the aff idavit defe ctive under rule 166a(f ), the trial court should have g iven him the opportunity to amend Mara ble’s aff idavit beca

use the failure to att ac h refere nced documents to a summary -judg ment aff idavit is a defe ct in form ra ther than in substanc e. See M artin v. Durden , 965 S.W .2d 562, 565 (Tex. App.—Houston [14t h Dist.] 1997, pet. denied) (holding that failure to attach documents relied on in rende ring expert opinion i s d ef ec t i n form); but see Ceballos v. El Paso Health Care Sys ., 881 S.W

. 2 d 4 3 9 , 4 4 5 (Tex. App.—El Paso 1994, writ denied) (holding that same failure is defe ct in substance)

. But DeL arosa had the opportunity to amend or at least seek to amend the defe ct when Stokes filed his objec tion based on that defic iency

. See Tex. R. C iv. P. 166a(f). F urther, to the extent that DeL arosa asser ts on appea l that he asked the district court to amend the aff idavit, but that the district court did n o t ru l e o n h is reque st, DeL arosa failed to prese rve that complaint for

11appea l. See Tex. R. App. P. 33.1 (re quiring that trial court have ruled on reque st or ref used to r ule on the re quest and the c omplaining pa rty object to that re fusal). We overrule DeL arosa ’s first issue on appe al.
Question of

fact Even if we wer e to assume that Mara ble’s aff idavit met rule 166a(f

)’s require ments such that we should consider a ll or part of it, howeve r, t he affidavit does not raise a g enuine issue of materia l fac t reg arding causa tion. “‘[P] laintiffs [i n medical- malprac tice ca s es ] ar e require d to adduce evidenc e of a “re asonable medical probability ” or “re asonable probability ” that their injuries

wer e cause d by the neg lige nce o f o n e or more defe ndants, meaning simply that it is “more likely
t h an n o t ” that the ultimate harm or condition resulted from such neg lige nce.’ ” Jelinek v. Casas , 328 S.W .3d 526, 532–33 (Tex. 2010) (quoting Kramer v. Lewisville Mem ’l Hosp. , 858 S.W .2d 397, 399–400 (Tex. 1993)). Her e, Stokes prese nted summary -judg ment evidenc e, principally in the form of Mara ble’s deposition t ra n s cript discussed above, conclusively establishing that there was no

causa l link betwee n DeL arosa ’s injury and Stokes’s alleg ed neg lige nce—i.e ., discharg ing DeL arosa from the hospital without educa ting him about his incre ased risk for stroke and the s i gn s o f stroke and war

ning him to g o to the hospital if he experience d any of those signs. I n that deposition testimony , Mara

ble admitted that he could not say with rea sonable medical probability that Stokes’s fa i l ure to g ive DeL arosa proper discharg e instructions resulted in a differ ent outcom e fo r DeL arosa —i.e., Mara

ble could not say that if Stokes h ad proper ly war ned DeL arosa , DeL arosa would probably have had a better outcome. T h u s , Stokes prese nted s ummary -judg ment evidenc e conclusively

neg ating an ele ment of De L arosa ’s claim, entitling him to summary judgme nt unless

12DeL arosa prese nted summary -judg ment evidenc e raising a g enuine issue of materia l fac t on that

element. See W

illri ch , 28 S.W .3d at 23. I n his second and third issues o n ap p eal, DeL arosa arg ues that Mara

ble’s aff idavit raises a question of fac t on the element of causa tion and, rela tedly , that the district court should have considere d the combined eff ect of eac h alleg ed failure and missed opportunity for trea tment toge ther in determining whether

Stokes’s alleg ed ac ts or omissions cause d DeL arosa ’s injuries, rathe r than rely on Mara

ble’s deposition testimony that he could not say , to a reasonable medical probability , that Stokes’s neg lige nce cause d DeL arosa ’s injury

. I n other words, DeL arosa arg ues that Mara ble’s aff idavit shows that i

f Stokes had g iven DeL arosa proper discharg e instructions and war nings reg arding the s igns of stroke and if DeL arosa

had soug ht treatment a fter each of his three strokes, his injuries from the multiple strokes would have be en re duced or preve nted. We disag ree . DeL arosa ’s causa tion theory rests on the p remise that DeL arosa suffe red at least three strokes afte r his neck surg ery . This is beca use, as discussed previously , Mara ble could not state with a reasonable deg ree of m edica l probability that any one of these opportuniti es had singula rly aff ecte d DeL arosa ’s outcome, or even that the fi rst two had in combination, but rathe r only that all t h e m issed opportunities collectively resulted in a worse outcome. Howeve r, the competent summary -judg ment evidenc e in the rec ord—name ly excerpts from Stokes’s and M ar able’s depositions—establishes only t h at Stokes thought, based on DeL arosa ’s MRI , that DeL arosa had
two strokes following his neck surg ery and that Mara ble, based on his revie w of DeL arosa ’s medical

rec ords, thought that DeL arosa had as few as two strokes or possibly “multiple” strokes. Although Mara ble’s sum mary -judg ment aff idavit specific ally

ref ers to three strokes, he based that asser tion

on fac ts shown in DeL arosa ’s medical rec ords that, as discussed, wer e not attache d to his aff idavit. 13To that extent, Mara ble’s testimony that DeL arosa s u ff er ed from three strokes is a conclusion unsupported by fac ts and is, thus, incompetent. See Ryland Grp., Inc. v. Hood ; 924 S.W .2d 120, 122 (Tex. 1996) (“Conclusory aff idavits ar e n ot enoug h to raise fac t issues.”); City of San Angelo Fire Dep’t v. Hudson , 179 S.W .3d 695, 701 n.6 (Tex. App.—Austin 2005, no pet.) (ag ree ing that wi t n es s’s failure to explain conclusion with supporting fac ts rende red aff idavit incompete n t

s u mm a r y - ju d g me n t e v id ence (citing Ryland , 924 S.W .2d at 122); Brownlee v. Brownlee , 665 S. W. 2 d 111, 112 (Tex. 1984)); see also Earle v. R a t l i f f , 998 S.W .2d 882, 890 (Tex. 1999) (“Summary judgme nt c an be g rante d on the aff idavit of an interested expert witness,

. . . but the aff idavit must
not be conclusory

. . . . [R ]ath er , t h e expert must explain the basis of his statements to link his conclusions to the fac ts.”). His s u b s eq u en t conclusions based on those unsupported fac ts are likewise incompete nt summary -judg ment evidenc e. See R yland , 924 S.W .2d at 122. We overrule DeL arosa ’s sec ond and third issues.

CONCLUSION Having overr

uled eac h of DeL arosa ’s issues on appea l, we aff irm the district court’s judgme nt.

__________________________________________ Bob Pembe rton, J ustice Be fore Chief J ustice Jones, J ustices Pemberton a nd Rose Affir med Filed: Aug ust 17, 2012

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