Rhône-Poulenc, Inc., Petitioner

Kenda Steel, individually and on behalf of

her minor children, Garrison Steel, Samantha Gail Steel,

and a/n/f of Gregory Steel, a minor child, now deceased

and on behalf of the Estate of Gregory Steel, Respondents

Justice Hecht, dissenting.

I respectfully dissent. Plaintiffs agreed to pretrial orders requiring them to produce, by a specified date, a qualified medical doctor's affidavit stating that Jeffrey Steel's claimed exposure to chemicals at work was, in reasonable medical probability, a substantial contributing cause of his brain cancer and his son's leukemia, and stating the basis for that opinion. Without such evidence plaintiffs cannot prevail on their claims against Rhône-Poulenc. Plaintiffs did not produce an affidavit within the time agreed. The orders stated that the parties could move for modifications or for further pretrial orders. Plaintiffs did not do so. Plaintiffs later presented a physician's affidavit in response to Rhône-Poulenc's motion for summary judgment that contained the required opinion regarding causation but offered no basis for it.

In Koslow's v. Mackie , we held that a trial court can strike a party's pleadings for disobeying a pretrial order under Rule 166 of the Texas Rules of Civil Procedure. ⁽¹⁾ The district court in the present case did not impose this sanction on the plaintiffs. It allowed plaintiffs to present a physician's affidavit in response to Rhône-Poulenc's motion for summary judgment. But because this affidavit did not state a reliable basis for the physician's opinion -- evidence that the plaintiffs had agreed to produce, that the pretrial orders required, and that is essential to their claims -- the district court granted summary judgment for Rhône-Poulenc. The Court holds that the district court impermissibly shifted the summary judgment burden by relieving Rhône-Poulenc of its burden to disprove an element of the plaintiffs' claims, and by placing on the plaintiffs the burden of raising a fact issue. Assuming the Court is correct, I fail to see how the plaintiffs were harmed when the district court was fully authorized by Rule 166 to strike the plaintiffs' pleadings and dismiss their claims outright without allowing their belated efforts to produce the necessary evidence. Plaintiffs' failure to comply with the agreed pretrial orders was not technical, inadvertent, or otherwise excusable; rather, they were unable to produce essential evidence in support of their claims even long after they had agreed to do so. In these circumstances, I would hold that the district court's dismissal of plaintiffs' claims was not reversible error.

Nathan L. Hecht

Justice

Opinion delivered: July 1, 1999

1. 796 S.W.2d 700, 703-705 (Tex. 1990).