STEEL v. RHONE POULENC INC (1997)

OPINION

This is an appeal from a summary judgment in favor of defendant in a wrongful death action.   We reverse.

Plaintiffs ¹ sued defendant Rhone Poulenc, Inc. (Rhone) along with other defendants.²  Plaintiffs' original petition, filed on September 21, 1992, alleged that the exposure of Jeffrey Steel (the husband) to hazardous chemicals while he worked for Rhone from November 1986 to early 1990 caused a malignant brain tumor.   According to the petition, the husband's brain tumor was diagnosed on or about October 6, 1989, but the cause of the injury was not discovered until on or after September 19, 1990.   The husband died on March 28, 1994, as a result of the brain tumor.

On March 11, 1993, plaintiffs filed their third amended petition, alleging that Gregory Steel (the six-year-old son), died as result of leukemia, which was caused by exposure to residue of chemical or product hazards attached to the husband's clothing and “unknowingly and inadvertently” brought home.   The trial court entered a “Second Agreed Case Management Order” on April 28, 1993, regarding the claims involving the son's death.   The order required plaintiffs to detail the exact chemicals to which the husband claimed the son was exposed, the frequency and duration of exposure experienced by the son, the defendant responsible for the exposure, the method of exposure, and an affidavit from a qualified medical doctor with the opinion that the exposure caused the son's leukemia.   In response to the order, plaintiffs provided the affidavit of the husband, a list of chemicals and their origin, and a letter from Dr. Daniel Teitelbaum, M.D., P.C., which opined:

I believe that there is a greater probability than not that the radioactive and organic materials to which Mr. Steel was exposed in the course of Jeff's work at the Rhone-Poulenc site were the sole cause or contributed substantially to the causation of Mr. Steel's anaplastic oligodendroglioma and to Gregory's leukemia.

All defendants moved for summary judgment on October 7, 1994, asserting:  (1) plaintiffs could not prove medical causation as to the husband's brain tumor or the son's leukemia;  and (2) plaintiffs' claims against all defendants relating to the husband's injury were barred by the statute of limitations.   In support of their motion, defendants offered the affidavit of Stanley M. Pier, Ph.D, an environmental toxicologist.   In his affidavit, Pier states:

Plaintiffs basically speculate that for some unspecified period of time, Jeffrey and Gregory Steel may have come into contact with a small amount of unknown chemicals, which plaintiffs allege may have caused their diseases, while at the same time selectively ignoring all other factors in cancer causation such as alcohol, tobacco, drugs and diet, for example.   Essentially, plaintiffs attempt to take an unknown exposure to unknown quantities of unknown chemicals and opine causation with a reasonable medical certainty.   This flaunts all processes of scientific reasoning.

․

Before a physician/scientist/plaintiff can state that a known carcinogen can cause or has caused a given cancer, the plaintiff/physician/scientist must have a definition of the substance involved and the characteristics of exposure ․ Absent chemical or exposure information, no physician/scientist/plaintiff can possibly establish a medical link within a reasonable certainty, between a carcinogenic agent and a particular cancer.

In response to defendants' motion for summary judgment, plaintiffs provided the affidavit of Dr. Daniel Teitelbaum, dated January 20, 1995;  the affidavit of Kenda Steel;  and a newspaper article dated September 19, 1990, from the Brazosport Facts linking chemicals from work sites to cancer.   On February 28, 1995, the trial court granted summary judgment in favor of all defendants except Rhone.   The judgment stated:  (1) all of plaintiffs' claims by and through the husband were barred by limitations;  and (2) all of plaintiffs' claims by and through the son failed for want of medical causation.

Rhone again moved for summary judgment, asserting in relevant part:  (1) the punitive wrongful death damages claim was derivative of the husband's own claims which were barred by statute of limitations;  (2) claims for the son's death were time-barred by the statute of limitations because plaintiffs did not serve the claims on Rhone within two years of the son's death;  and (3) there is no competent summary judgment evidence of exposure or causation which raises an issue of fact as to the cause of the son's death.

Plaintiffs filed a response to Rhone's amended motion for summary judgment.   In support of their response, plaintiffs attached their original response to defendants' original motion for summary judgment and exhibits;  a second affidavit of Dr. Daniel Teitelbaum, dated July 6, 1995;  and other documents.

The defendants who had been granted summary judgment moved for severance.   The trial court granted severance on June 22, 1995.   An unsigned entry in the record indicates on August 15, 1995, the trial court rescinded the severance order and granted Rhone's motion for summary judgment.   However, there is no signed order rescinding the severance order.   The final judgment incorporated all defendants and granted summary judgment in favor of all defendants on the grounds that “the Court finds that plaintiffs' claims against defendants are barred by limitations.”   The judgment, further states:

Plaintiffs, ․ in open court, do hereby waive and specifically forego any appeal or right of appeal as to Defendants [granted summary judgment on February 28, 1995] and agree that any time limit within which such an appeal could have been taken has lapsed and, therefore any such appeal is barred by law.

Consequently, plaintiffs appeal only their claims against Rhone.

A movant for summary judgment has the burden of showing that there is no genuine issue of material fact and that it is entitled to judgment as a matter of law.  Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 548-49 (Tex.1985).   In deciding whether there is a disputed material fact issue precluding summary judgment, evidence favorable to the nonmovant will be taken as true.  Id. Every reasonable inference must be indulged in favor of the nonmovant and any doubts resolved in its favor.  Id.

Once a movant has established a right to summary judgment, the burden shifts to the nonmovant.  City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678 (Tex.1979).   The nonmovant must then respond to the motion for summary judgment and present to the trial court any issues that would preclude summary judgment.  Id.

To prevail as a movant for summary judgment, a defendant must either (1) disprove at least one element of the plaintiff's theory of recovery, or (2) plead and conclusively establish each essential element of an affirmative defense to rebut the plaintiff's cause of action.  Montgomery v. Kennedy, 669 S.W.2d 309, 310-11 (Tex.1984);  Marchal v. Webb, 859 S.W.2d 408, 412 (Tex.App.-Houston [1st Dist.] 1993, writ denied).

In their first point of error, plaintiffs assert the trial court erred in granting summary judgment based on the running of the statute of limitations because the discovery rule tolled the statute of limitations on the husband's claims, and a genuine issue of material fact exists as to the date of the discovery of their injuries.

Rhone replies that under the doctrine of collateral estoppel, the summary judgment in favor of Rhone's codefendants, based on the husband's claims being barred by the statute of limitations, precludes plaintiffs from challenging the summary judgment granted in favor of Rhone on that issue.

Collateral Estoppel

 Collateral estoppel, or issue preclusion, precludes the relitigation of identical issues of facts or law that were actually litigated and essential to the judgment in a prior suit.   Once an actually litigated and essential issue is determined, that issue is conclusive in a subsequent action between the same parties.  Van Dyke v. Boswell, O'Toole, Davis & Pickering, 697 S.W.2d 381, 384 (Tex.1985).   Collateral estoppel is an affirmative defense that must be pled, or it is waived.  Sysco Food Servs., Inc. v. Trapnell, 890 S.W.2d 796, 802 (Tex.1994);  Voskamp v. Arnoldy 749 S.W.2d 113, 118 (Tex.App.-Houston [1st Dist.] 1987, writ denied).

 Rhone did not plead collateral estoppel in the trial court, but instead raises it for the first time on appeal.   Rhone argues collateral estoppel is timely raised on appeal because the defense only arose once the district court granted summary judgment in favor of Rhone's codefendants, and then granted a final summary judgment.

 The trial court granted the codefendants' summary judgment on February 28, 1995, and severed the cause from plaintiffs' claims against Rhone on June 22, 1995.   A severance divides a lawsuit into two or more independent causes of action, each of which results in a separate, final, and enforceable judgment.  Juhl v. Airington, 936 S.W.2d 640, 641 (Tex.1996);  Kansas Univ. Endowment Ass'n v. King, 162 Tex. 599, 350 S.W.2d 11, 19 (1961);  Cannon v. ICO Tubular Servs., Inc., 905 S.W.2d 380, 390 (Tex.App.-Houston [1st Dist.] 1995, no writ).   When a severance order takes effect, the appellate timetable runs from the signing date of the order that made the judgment severed “final” and appealable.  Martinez v. Humble Sand & Gravel, Inc., 875 S.W.2d 311, 314 (Tex.1994).   When no motion for new trial is filed, the trial court has plenary power to modify, vacate, correct, or reform the judgment only for 30 days after the judgment is signed.  Tex.R. Civ. P. 329b(d).

In this case, the appellate time table began to run on June 22, 1995.   Plaintiffs did not file a motion for new trial after the first summary judgment or severance order.   Thus, the trial court's plenary power to rescind the severance order and modify the first judgment ended on July 22, 1995.   The court's unsigned entry dated August 15, stating the severance order was rescinded, was ineffective;  the summary judgment remained final as to Rhone's codefendants.   See Tex.R. Civ. P. 329b(a), (d), (f);  Levit v. Adams, 841 S.W.2d 478, 487 (Tex.App.-Houston [1st Dist.] 1992), rev'd on other grounds, 850 S.W.2d 469 (Tex.1993).   Rhone had the opportunity to raise the defense of collateral estoppel in the trial court.   Rhone has not raised the issue of collateral estoppel timely by raising it for the first time on appeal.   Accordingly, we reach the merits of plaintiffs' points of error with regard to the husband.

Discovery Rule

 When a defendant moves for summary judgment on the basis of limitations, and the plaintiff raises the discovery rule, the defendant must negate the discovery rule by proving as a matter of law that there is no genuine issue of material fact about when the plaintiff discovered or should have discovered the nature of the injury.  Burns v. Thomas, 786 S.W.2d 266, 267 (Tex.1990);  Jampole v. Matthews, 857 S.W.2d 57, 63 (Tex.App.-Houston [1st Dist.] 1993, no writ);  Rose v. Baker & Botts, 816 S.W.2d 805, 809 (Tex.App.-Houston [1st Dist.] 1991, writ denied).   Only when a case proceeds to trial on the merits does the burden shift to the plaintiff to plead and prove the requirements of the discovery rule.  Woods v. William M. Mercer, Inc., 769 S.W.2d 515, 517 (Tex.1988).

 The discovery rule is an exception to the general rule that a cause of action accrues when facts come into existence authorizing a claimant to seek a judicial remedy.  S.V. v. R.V., 933 S.W.2d 1, 4 (Tex.1996);  Computer Assocs. Int'l, Inc. v. Altai, Inc., 918 S.W.2d 453, 455 (1994).   When applied, the rule tolls the running of the statute of limitations until the plaintiff discovers the injury, or acquires knowledge of facts which, in the exercise of reasonable care and diligence, would lead to the discovery of the wrongful act and resulting injury.  S.V., 933 S.W.2d at 4;  Rose, 816 S.W.2d at 810.   Under the discovery rule, limitations begin to run when the fact of the injury is known, not when the alleged wrongdoers are identified.  Moreno v. Sterling Drug, Inc., 787 S.W.2d 348, 351 (Tex.1990);  Leeds v. Cooley, 702 S.W.2d 213, 215 (Tex.App.-Houston [1st Dist.] 1985, writ ref'd n.r.e.) (patients cause of action for malpractice accrued when she discovered her condition, not when anesthesiologist was discovered to have played a part in the cause).

 Whether the discovery rule applies to a given context is a question of law, and we review all applicable evidence.   S.V., 933 S.W.2d at 8. The rule applies to those cases in which the alleged wrongful act and resulting injury were “inherently undiscoverable” at the time they occurred but may be “objectively verified.”  Id. at 6. “Inherently undiscoverable” requires that the existence of the injury is not ordinarily discoverable, despite the plaintiff's due diligence.  Computer Assocs., 918 S.W.2d at 456;  see, e.g., Nelson v. Krusen, 678 S.W.2d 918, 923 (Tex.1984) (malpractice in gene-screening for muscular dystrophy undiscoverable until child showed symptoms);  Gaddis v. Smith, 417 S.W.2d 577, 578 (Tex.1967) (discovery of foreign object left in body virtually impossible to discover within limitations);  Hays v. Hall, 488 S.W.2d 412, 414 (Tex.1972) (negligent performance of vasectomy not discoverable until patient's wife becomes pregnant or patient shown to be fertile).   The requirement of inherent undiscoverability recognizes the discovery rule's applicability only in circumstances where “it is difficult for the injured party to learn of the negligent act or omission.”  Computer Assoc., 918 S.W.2d at 457.   Facts upon which liability are asserted are “objectively verifiable” when the plaintiff demonstrates direct, physical evidence.   Compare Gaddis, 417 S.W.2d at 578 (presence of sponge in plaintiff's body and how it got there were undisputable) with Robinson v. Weaver, 550 S.W.2d 18, 21-22 (Tex.1977) (negligent diagnosis is subject to proof only by expert hindsight, and therefore discovery rule does not apply).

 Rhone argues the husband's injury was not inherently undiscoverable because the husband knew of the nature of his injury on October 6, 1989, when he was diagnosed with the brain tumor and knew he had previously worked with chemicals.   Thus, Rhone asserts the statute of limitations was tolled only until October 6, 1989, at the latest.   Plaintiffs assert the statute of limitations was tolled until September 19, 1990 when Rhonda Steel read a newspaper article about the link between hazardous chemical exposure and cancer.

Rhone analogizes this case to Seibert v. General Motors Corp., 853 S.W.2d 773, 776 (Tex.App.-Houston [14th Dist.] 1993, no writ).   In Seibert, the plaintiff suffered a spinal injury in an accident while riding as a passenger in a car manufactured by the defendant.  Seibert, 853 S.W.2d at 775.   The plaintiff argued the statute of limitations on his cause of action was tolled by the discovery rule because, although the accident occurred more than two years before suit was filed, he did not learn a defect in the car's seatbelt caused his injury until he saw a news report on the car several years after the incident.  Id. The court held that the discovery rule applies only to those situations in which a claimant was unable to know of his injury at the time of actual accrual.  Id. The court reasoned that because the plaintiff in Seibert knew of his injury at the time of the accident, the injury was not inherently undiscoverable, and the burden was on the plaintiff to determine whether he should file suit against those who may have been responsible for the injury.  Id. at 777.

 Unlike the automobile accident that caused the Seibert plaintiff's injury, in occupational diseases there is no overt act that causes the injury.   Consequently, the discovery rule is often applied in such cases.   Although a worker may know of the dangers of his occupation, there is no one action that puts the worker on notice that he may be developing an occupational disease.  Strickland v. Johns-Manville Int'l Corp., 461 F.Supp. 215, 217 (S.D.Tex.1978);  Martinez v. Humble Sand & Gravel, Inc., 940 S.W.2d 139, 143-45 (Tex.App.-El Paso 1996, no writ).   A firm diagnosis of the occupational disease undoubtedly starts the statute of limitations running.   Martinez, 940 S.W.2d at 145.   But, short of an actual diagnosis, the plaintiff cannot engage in blameless ignorance of the disease.  Id.;  see also Fibreboard Corp. v. Pool, 813 S.W.2d 658, 679 (Tex.App.-Texarkana 1991, writ denied).   In Pool, the plaintiff repeatedly sought diagnosis of asbestos for his symptoms, but did not receive it.  Pool, 813 S.W.2d at 678.   The court held the statute of limitations did not begin to run until the positive diagnosis of silicosis alerted the plaintiff of his cause of action.  Id.

Unlike the diagnosis of asbestosis or silicosis, the diagnosis of cancer is not always linked specifically to an occupational hazard.   Rhone was required to negate the discovery rule, but Rhone did not provide any summary judgment evidence showing what methods of discovery were available to the husband, such that through due diligence he could have been alerted that working with chemicals could cause cancer.   Discovery of a malignant brain tumor does not equate to discovery of an actionable injury or of a negligent act or omission.   We conclude that the husband's “injury” was inherently undiscoverable at the time of the cancer diagnosis.

 For the discovery rule to apply, the husband's injury must also be “objectively verifiable.”  S.V., 933 S.W.2d at 6. While expert testimony alone, which amounts to a “swearing match between experts over opinions,” does not suffice, “recognized expert opinion on a particular subject [could] be so near consensus that, in conjunction with objective evidence,” it could provide the verification required.  Id. at 15.   Evidence such as studies, or other objective evidence, linking exposure to hazardous chemicals to cancer, provides the objective evidence such that the husband's claim may be objectively verified.

 We conclude that the husband's claim was “inherently undiscoverable” and “objectively verifiable.”   Therefore, the discovery rule applies.   We must now consider whether the evidence raised a fact issue as to when the husband knew or should reasonably have known of the claimed injury.   See S.V., 933 S.W.2d at 8. If the husband, using due diligence, could have known or should have known of the circumstances which led to the cause of his brain tumor on October 6, 1989, the statute of limitations would begin to run on that date, and the suit will be barred.

In this case, although the onset of the tumor occurred sometime before actual diagnosis, the husband did not learn of the brain tumor until October 6, 1989, the date of diagnosis.   Thus, the earliest time at which the husband could have learned the nature of his injury was October 6, 1989.   Kenda Steel's affidavit states that when her husband was diagnosed with the brain tumor, no medical care provider, or anyone else, suggested any connection between her husband's illness and his work.   She did not understand “the cause nor how or why Jeff was ill.”   She had no idea about the nature and origin of the tumor until September 19, 1990, when she read a newspaper article about the link between hazardous chemical exposure and cancer.   Rhone offers no evidence rebutting plaintiffs' evidence that they could not have known the origin of the husband's tumor until September 19, 1990.   In support of its summary judgment, Rhone asserts workplace exposure of its employees was closely monitored in accordance with 10 C.F.R. § 20.1003 and 20.1201(a)(1)(I), and the husband's exposure was significantly below these limits.   However, Rhone offers no summary judgment evidence to link (1) its monitoring of employees for exposure, to (2) the husband's knowledge that this exposure may have been the cause of his brain tumor.   Rhone did not negate the discovery rule by proving as a matter of law when the husband should have discovered the nature of his actionable injury.   Thus, a material fact issue remained as to when the husband should have reasonably discovered the nature of his injury.

Accordingly, we sustain point of error one.

The discussion of the remaining points of error does not meet the criteria for publication, Tex.R.App. P. 47, and is thus ordered not published.   We reverse the summary judgment and remand the case to the trial court.

In their second point of error, plaintiffs assert that the cause of action for the son's wrongful death was not time-barred because Rhone had timely notice of the claim and participated in a defense against the claim before the two-year statute of limitations expired.

To bring suit within the statute of limitations for a cause of action, a plaintiff must file suit within the applicable limitations period and use due diligence to have the defendant served with process.  Gant v. DeLeon, 786 S.W.2d 259, 260 (Tex.1990).   Proper issuance of citation upon the filing of a lawsuit is required to confer jurisdiction upon the court and requires strict compliance with Tex.R. Civ. P. 106;  actual notice without proper service is not sufficient.

A defendant who has already filed an answer to the plaintiff's original petition is not entitled to service of new process after the plaintiff amends its petition, even if the amended petition sets up a new cause of action.   Slattery v. Uvalde Rock Asphalt Co., 140 S.W.2d 987, 991 (Tex.Civ.App.-Beaumont, 1940, writ ref'd).  Texas Rule of Civil Procedure 21a states that:

every pleading, plea, motion, or other form of request required to be served under Rule 21, other than the citation to be served upon the filing of a cause of action and except as otherwise expressly provided in these rules, may be served by delivery of a copy to the party to be served, or the party's duly authorized agent or attorney of record, as the case may be ․

Tex. R. Civ. P. 21a.

Plaintiffs had two years from the date of the son's death on June 22, 1991, to file and serve a claim for the son's wrongful death.   See Tex. Civ. Prac. & Rem.Code Ann. §§ 16.003, 71.004 (Vernon 1986).   Plaintiffs filed their Third Amended Petition, which alleged for the first time a claim for the son's wrongful death, on March 11, 1993.   New issuance of citation was not required because Rhone had already answered plaintiffs' original petition and appeared before the court.   Even if the third amended petition was not mailed to Rhone's attorneys, the record is clear that Rhone, through its attorneys, had timely notice that a claim had been filed based on the son's alleged wrongful death.   The “Second Agreed Case Management Order,” pertaining to the son's death, was mailed to Rhone's attorney as evidenced by the certified return receipt, dated June 14, 1993, eight days before the statute of limitations had run.   Additionally, plaintiffs responded to “Defendants' First Set of Interrogatories,” which contained several questions related to the son's death.   A certified mail return receipt signed by Rhone's attorney's office and dated June 10, 1993 shows his office received the responses twelve days before the statute of limitations had run.   Thus, Rhone had notice of the additional claims within the statute of limitations.   We are not dealing here with additional plaintiffs;  rather, only additional claims by already named plaintiffs.   The additional claims based on the son's death were timely filed and noticed.

Accordingly, we sustain point of error two.

In their third point of error, plaintiffs assert the trial court erred in granting summary judgment because plaintiffs raised a material fact issue regarding causation.

At trial, Rhone challenged the competency and admissibility of plaintiffs' affidavits.   Rhone alleges the husband's affidavit is conclusory and inadmissible hearsay.   Rhone points to the following statement contained in the husband's affidavit:

During the years 1986 to 1990 while I was working for Freeport General Contractors, Inc., and Rhone-Poulenc, Inc., I unknowingly brought residues of Chemical or Product hazards as discussed above attached to my clothing, shoes and skin, home resulting in daily exposure to my son Gregory Steel.   This exposure to such highly toxic and hazardous chemicals and wastes caused my son to develop leukemia and eventually led to his death.

To suffice as summary judgment evidence, “affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show that the affiant is competent to testify to matters stated therein.”  Tex.R. Civ. P. 166a(f).   An affidavit must affirmatively show how the affiant became personally familiar with the facts so as to be able to testify as a witness, but a self-serving recitation of such does not satisfy the requirement.  Ryland Group, Inc. v. Hood, 924 S.W.2d 120, 122 (Tex.1996).   Subjective beliefs are no more than conclusions and are not competent summary judgment evidence.  Texas Division-Tranter, Inc. v. Carrozza, 876 S.W.2d 312, 314 (Tex.1994).   Portions of an affidavit may be competent summary judgment evidence, while other portions of the affidavit may not.   See Doe v. Boys Clubs of Greater Dallas, Inc., 868 S.W.2d 942, 952 n. 9 (Tex.App.-Amarillo 1994), aff'd, 907 S.W.2d 472 (Tex.1995).

The husband's affidavit details his job responsibilities at Rhone.   The affidavit contains statements related to specific job tasks, chemicals involved, and processes related to these tasks.   For example, the husband attests:

When I filtered out the rare earth nitrates from F.O. 41, I reslurried (agitated) the waste and sent it through the filter again.   Often times, the holding tanks in F.O. 41 reached the high level, so we would use F.O. 42 for this process.   This would extract the last bit of Rare Earth Nitrates that were in the solids.   I would then drum up the remaining waste downstairs.   During that drumming process, it would splatter my face and skin and sometimes cause ingestion of this waste.   Gangue I contained high acid contents.

I was responsible for the cleaning process that was necessary as a result of electrical or mechanical failures at Rhone-Poulenc, Inc. During these electrical or mechanical problems, the vacuum systems in the filters would also fail, causing the precoats in the filter tanks and/or drums to fall off.   The cleaning up process would then consist of rinsing the entire system, during which time the chemicals would splash and often would end up on my face and skin.

Before being hauled away, the mud-like Gangue was stored in a ten (10) foot sump.   Every three (3) or four (4) months I was responsible for cleaning them out.   I would physically get down into the sump, take the grating off, shovel out the waste in buckets and put it into drums.   While down in the sump, the Gangue would be all over me by going through my clothes and safety equipment.

Certainly, the husband was competent to attest to the very duties he performed while at work and the processes involved in those duties.   Through the performance of his job responsibilities, the husband would have personal knowledge if waste or other substances splattered, or came into contact with his skin, clothes, and mouth.   Further, the husband would know that he “brought residues of Chemical or Product hazards” home.   However, the husband's statement, that the chemicals and waste contributed to the death of his son, is not based on the husband's personal knowledge, but is conclusory and not competent summary judgment evidence.   These portions of the husband's affidavit that state his job responsibilities and relate the processes and chemicals involved in those activities, and how substances came into contact with his skin and clothing, are competent summary judgment evidence.

Rhone also asserts that Dr. Teitelbaum's affidavit is incompetent as summary judgment evidence because it is based on inadmissible hearsay, and not personal knowledge.   An expert's affidavit opposing a motion for summary judgment must present some probative evidence of the facts at issue.  Ryland, 924 S.W.2d at 122.   Expert medical testimony can enable a plaintiff's action to go to the jury if the testimony is that there is a “reasonable probability” of a causal connection between an act and a present injury.  Parker v. Employers Mut. Liab. Ins. Co. of Wis., 440 S.W.2d 43, 46 (Tex.1969).   However, expert opinion that is merely conclusory, and does not state the basis or reasoning behind the opinion, is not competent summary judgment evidence.  Anderson v. Snider, 808 S.W.2d 54, 55 (Tex.1991).   An expert affiant can gain personal knowledge of the facts in an affidavit by examining records pertaining to the case.   Syntax, Inc. v. Hall, 881 S.W.2d 719, 722 (Tex.App.-Houston [1st Dist.] 1994), rev'd on other grounds, 899 S.W.2d 189 (Tex.1995).

According to Teitelbaum's curriculum vitae, he is a clinical toxicologist specializing in medical toxicology and occupational medicine.   In Teitelbaum's first affidavit, dated January 20, 1995, he states that in preparing his affidavit, he reviewed the husband's statement of exposure, the list of chemicals with which the husband worked, and the husband's and son's medical records.   Further, Teitelbaum reviewed documents produced by Rhone, including the husband's job description, personnel file, and exposure data.   He also reviewed Rhone's policies and procedures, material safety data sheets, internal exposure, safety memorandum, and rare earth, nitric attack and battery acid working procedures.   In his second affidavit, dated July 26, 1995, Teitelbaum adds that he relies also on his own personal knowledge of Rhone and the chemical industry and toxicology worker exposure to radioactivity.

In Parker, the Texas Supreme Court held the expert opinion on the causal link between a worker's four-and-one-half-years of exposure to radioactive material at his workplace, and cancer, presented no evidence of causation because the substance of the expert's testimony was that there was a possibility of a causal connection.  Parker v. Employers Mut. Liab. Ins. Co., 440 S.W.2d 43, 47 (Tex.1969).   In contrast, Teitelbaum opines that “in all reasonable medical probability” the husband's prolonged exposure to radioactive materials caused the husband's brain cancer.   Teitelbaum explains that anaplastic oligodendroglioma is a rare brain cancer, and the husband's early onset of this cancer supports exposure as a cause of the condition.   Based on the husband's explanations of his job activities and work with Gangue I and II, and his knowledge of the make-up of those substances, Teitelbaum states that the husband had “a daily prolonged exposure to highly radioactive, and carcinogenic materials at the organic productions unit.”   Further, Teitelbaum attests the materials to which the husband was exposed are alpha and beta emitters and are easily carried on one's person, clothes and personal effects.   Because of his review of Rhone's monitoring procedures, Teitelbaum opines that these emitters would be carried home at the end of the day.   Teitelbaum states:

With reasonable medical probability it is more likely than not that Gregory Steel's leukemia was caused as a result of his exposure to yttrium, thorium, uranium, radium 226, and radium 228 brought home daily and, unwittingly, by Jeffrey Steel;

Teitelbaum further attests:

It is clear from the documents provided by Rhone-Poulenc that safety consultants brought the “lax” nature of monitoring safety procedures and radiation exposure safety monitoring to the attention of those responsible within Rhone-Poulenc.   Furthermore, it is important to note that after being provided notice of same, that Rhone-Poulenc took no actions in order to ameliorate, or rectify the dangerous “laxness” in procedures routinely experienced by employees of the Rhone-Poulenc plant.   Furthermore, the personnel file on Jeffrey Steel evidences that he was a diligent, safe, and procedure conscious employee who had (unfortunately) a superior attendance record during the years of employment.   Tragically, these same records show that in at least one (1) year, Mr. Steel had the highest radioactive count of any employee in the plant.   In my professional opinion, as a medical doctor and a toxicologist, Rhone-Poulenc's procedures, and lack of corrective action amount to a gross neglect of Jeffrey Steel's health and welfare, as an employee of Rhone-Poulenc.

In arriving at his conclusion that residue on the husband's clothes contributed to the death of the son, Teitelbaum need not rely on the husband's assertion to that effect;  rather, Teitelbaum attests that chemicals which are alpha and beta emitters can attach to clothing and skin and opines that exposure to radioactive substances probably resulted in the son's leukemia.

We conclude Dr. Teitelbaum's affidavit was competent summary judgment evidence to controvert the affidavit of Dr. Pier. When an expert witness presents legally sufficient evidence in support of a motion for summary judgment, the opposing party must produce other expert testimony to controvert the claims.   Anderson, 808 S.W.2d at 55.   Plaintiffs are not required to prove they would prevail at a trial on the merits;  they need only produce evidence sufficient to raise an issue of fact with respect to the causation.  Id. Teitelbaum raises material issues of fact regarding the husband's and the son's specific exposures to specific chemicals and the causal connection between those exposures and their deaths.

Accordingly, we sustain point of error three.

We reverse the summary judgment for Rhone and remand the case to the trial court.

FOOTNOTES

1.   Plaintiffs/Appellants are Kenda Steel, suing (1) individually, (2) as next friend of her two minor children and one deceased child, and (3) on behalf of the estate of her deceased husband, Jeffrey Steel.

2.   It appears plaintiffs' claims against Rhone were for punitive wrongful death damages.   It is apparently uncontested that plaintiffs' claims for compensatory damages from Rhone are barred by the exclusive remedy provision of the Texas Worker's Compensation Act, Tex. Lab.Code Ann. § 408.001(a) (Vernon 1996).

MIRABAL, Justice.