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CAUSE NO. 2018-36443
ROBERT PETERSON § IN THE DISTRICT COURT OF
§
Vv. § HARRIS COUNTY, TEXAS
§
INTERPUMP GROUP SPA, et al § 157" JUDICIAL DISTRICT
TO THE HONORABLE JUDGE OF SAID COURT:
DCS ALL AMERICAN, LLC’S MOTION FOR SUMMARY JUDGMENT
TO THE HONORABLE JUDGE OF SAID COURT:
Defendant, DCS All American, LLC (“DCS”) files this Motion for Summary Judgment,
and respectively shows:
INTRODUCTION
Plaintiff was the supervisor for Kayden Industries in charge of repairing equipment, such
as pressure washers, When a pressure washer leaked from a plug upon start up, a DCS’ consultant
attempted to secure it, but when it continued to leak, he contacted Plaintiff. Plaintiff did not ask
the consultant what he did, or perform a Job Safety Analysis or a detailed inspection, as it was
Plaintiffs procedure to start it up to assess the problem. When Plaintiff did, a bolt shot out of a
socket enlarged by an unknown cause, and struck Plaintiff in the eye. DCS is entitled to summary
judgment because:
(1) DCS owed no duty to Plaintiff;
(2) DCS had no duty to ensure its independent contractors performed their work
safely, and Kayden and Plaintiff asserted complete control over them; and
(3) With multiple, contradicting, incomplete speculative causes, Plaintiff cannot
establish that any actions of DCS or its consultants contributed to this incident.
G:\Woodard Matters\02190 - Markel\13501 - DCS Consulting\Pleadings\DCS All American MSJ.docx 1WHO ARE THE ENTITIES INVOLVED?
Interpump Group S.p.A. is an Italian corporation which manufactures high pressure piston
pumps, including the pump at issue. Interpump was never served.
General Pump Company, LLC is a distributor of Interpump products.
Oilnex Supply, LLC sold the pressure washer at issue and designed, manufactured and built the
pressure washer “specifically for Kayden Industries at its request.” Oilnex was dismissed.
Kayden Industries was a well site owner who employed Plaintiff as a supervisor, who was in
charge of repairing equipment, such as pressure washers. Kayden also contacted DCS Consulting to
provide temporary consultants to assist in operating Kayden’s equipment. Kayden also modified a broken
pump received from Oilnex.
DCS is an intermediary temporary employment agency who locate temporary workers for various
projects as requested by its clients.
Chris Jones and Chris Borque were temporary third party independent contractors employed by
Kayden Industries through DCS to assist in the operation of Kayden’s equipment, Jones and Borque have
been designated as responsible third parties, but were never brought into the lawsuit by Plaintiff.
THE CONFLICTING THEORIES
On one hand, Plaintiff alleges the pump at issue was designed, manufactured and marketed with
defects, which were an unreasonable risk of which Plaintiff was not warned. See Exhibit A, Plaintiffs
Second Amended Petition. Consequently, the entire basis of Plaintiff's allegation begins with the failure
to warn of defects, which by the same argument could never have been known by DCS or its consultants.
Contrarily, Robert Tolbert (Plaintiffs expert) is designated to testify:
the pump “ contained manufacturing defects which proximately caused Plaintiff's injuries,
Specifically, the pump’s female threaded holes were larger than specification for the male
threaded plugs. This allowed the plug to be ejected when pressurized.”
G:\Woodard Matters\02190 - Markel\13501 - DCS Consulting\Pleadings\DCS All American MSJ.docx 2However, the designation also states Tolbert is reserving any opinions regarding over-
pressurization until testing is completed, and thereafter, he will issue a full report. To this date, no
report has been issued, See Exhibit B, Plaintiffs Designation of Experts.
Contrarily, in direct contradiction to both of the above claims, Plaintiff asserts the
following allegations against DCS:
Defendants are independent contractors that installed and/or serviced the pressure
washer in a negligent manner. The manner in which Defendants installed and/or
serviced the pressure washer posed an unreasonable risk of harm, and Defendants
knew, or reasonably [should] have known, of the unreasonably dangerous
condition. Moreover, Plaintiff did not have actual knowledge of the dangerous
condition. Defendant’s negligence proximately caused Plaintiffs injuries. See
Exhibit A.
In his deposition, Plaintiff clarified his complaints, testifying that even though Plaintiff
admits he was Kayden’s supervisor in charge of repairing the leaking pressure washer, admits he
did not on wait on Chris Jones to perform a Job Safety Analysis prior to starting the work, and
admits he did not inquire (to Borque) about the problems that were ongoing before Plaintiff
attempted to start the pressure washer up, Plaintiff contends Chris Borque and Chris Jones were
negligent for failing to provide him information as to what was done by Borque to attempt to repair
the leaking pressure washer prior to Plaintiff starting the work. See Exhibit C, pgs. 289-299 and
339-341.
ARGUMENTS AND AUTHORITIES
A. TESTIMONY OF DCS CORPORATE REPRESENTATIVE - MIKE GARDONI
DCS provides independent contractors for solid control companies, ie. they run
centrifuges, dryers and shakers, vertical dryers, excavators, everything on the backside ofa drilling
rig. Ex. D, pg. 7-8. DCS provides the consultants for six different companies, and Kayden is one
of their clients, Ex. D, pg. 19. A client will call DCS and request a guy to perform a specific task,
G:\Woodard Matters\02190 - Markel\13501 - DCS Consulting\Pleadings\DCS All American MSJ.docx 3and DCS has a list of potential consultants, which it calls about the job; the consultant may choose
to take the job or reject it. Ex. D, pg. 21-22.
As to billing, the consultants text or email how many hours they worked and the rig; not
the type of work performed. Ex. D, pg. 55. DCS is the middleman that pays the consultants. Ex.
D, pg. 60. The decision to terminate the consultants is on the company that hires them, not DCS.
Ex, D, pg. 68. The consultants pay for their own business and travel expenses, and provide their
own vehicles; they are not paid for mileage. Ex. D, pg. 70. The consultants provide their owne
equipment, such as hardhats and PPE. Ex. D, pg. 85. DCS issues the consultants, including Jones
and Borque, 1099’s, Ex. D, pg. 102. DCS does not carry workers compensation insurance or
liability insurance for the consultants, as they are not considered employees. Ex. D, pg. 86, 98.
Once the consultants get on site, DCS does not get involved in the day to day operations,
has no interaction with the consultants and does not know what the consultants are doing day to
day. Ex. D, pg. 24, 26. DCS does not receive any daily, weekly or monthly reports Ex. D, pg. 42
DCS does not have its own equipment, and does not provide the consultants with policies and
procedures because each company has its own policies, and some even provide the consultants
training. Ex. D, pg. 25. The companies are free to hire the consultants directly. Ex. D, pg. 24.
DSC does not have a contract with Kayden, but has a bid on the price to be charged based
on a day rate based on a 12 % hour day, and the consultant gets paid on an hourly basis. Ex. D,
pg. 23, Kayden is a company that would provide training if needed. Ex. D, pg. 26. The consultants
are directed by Kayden’s supervisors on the job site. Ex. D, pg. 26. If Kayden wants the consultants
to make minor repairs, that is between Kayden and the consultant. Ex. D, pg. 42. DCS does not
know whether Kayden allows the consultants to make minor repairs to equipment if it breaks down.
Ex. D, pg. 28.
G:\Woodard Matters\02190 - Markel\13501 - DCS Consulting\Pleadings\DCS All American MSJ.docx 4The consultants provided by DCS to Kayden were Chris Jones and Chris Borque. Ex. D,
pg. 29. Both had worked on other Kayden projects. Ex. D, pg. 30. No employees of DCS had
ever been to the rig where the incident occurred, and as the corporate representative, DSC does
not have any knowledge as to how the incident occurred. Ex. D, pg. 34. Chris Jones told him
that he was walking back from the trailer after filling out a Job Safety Analysis, a/k/a JSA, which
is a Kayden initiative that is typically completed prior to performing any work on any equipment.
Ex. D, pg. 35. It is not common to turn on a piece of equipment prior to performing a JSA. Ex.
D, pg. 35. When DCS contacted Kayden about how the accident occurred, he was informed that
Kayden was handling it. Ex. D, pg. 38.
At time of his deposition, Chris Jones was working on a long term project with another
company and Chris Borque was taking days off as he only worked when he wanted to work. Ex.
D, pg. 31-32.
B. TESTIMONY OF TIM WOOTEN — KAYDEN SUPERVISOR
Tim Wooten admits that he does not have personal knowledge on many issues, and is not
qualified to testify on the employment relationship between DCS and Jones / Borque, by testifying:
1. He is not testifying as a corporate representative of Kayden. Ex. E, pg 198;
2. He was not involved in the negotiation of any contracts with DCS and is not aware as
to whether a contract even existed. Ex. E, pg. 198-199;
3. He is not involved in the selection process of any consultants provided by DCS, Ex. E,
pg. 200;
4. He has no daily communications with the individuals at DCS, Ex. E, pg. 200;
5. He has never provided any Kayden policies or procedures to any consultants and does
not get involved in that; Ex. E, pg. 201;
6. He is not aware of anyone at Kayden who had daily or weekly communications with
DCS as to any work going on by Borque or Jones. Ex. pg., 202;
G:\Woodard Matters\02190 - Markel\13501 - DCS Consulting\Pleadings\DCS All American MSJ.docx 57. He is not on the well site at issue on a daily basis, but maybe every other week. Ex, E
pg. 198;
8. He admits that he simply does not know Borque or Jones employment relationship with
DCS. Ex. E, pg. 208;
9, He admits that he cannot affirmatively state that Borque or Jones were “employees’ of
DCS. Ex. E, pg. 208;
10. While as an employee of Kayden, Wooten receives medical benefits, vacation benefits,
and a W-2, he does not know anything about any benefits or payments to Borque or
Jones. Ex, E, pg. 206-207.
However, Wooten acknowledges the consultants jobs were temporary jobs. Ex. E, pg. 200.
Kayden provides its own equipment. Ex. E, pg. 202. Kayden has its own supervisors, like Mr.
Peterson, with a hierarchy set up by Kayden. Ex. E, pg. 202. The lowest people on the Kayden
hierarchy are not Kayden employees, but individuals such as Borque and Jones. Ex. E, pg. 202.
When a daily project comes in, Kayden has its own daily meetings and the meetings are controlled
by Kayden supervisors, not Jones and Borque. Ex. E, pg. 203, 204-205. When it comes to telling
someone what is going to happen on site on a daily basis, the instructions come from the Kayden
personnel and go down the Kayden chain and ultimately to Borque and Jones. Ex. E, pg. 205. The
Kayden supervisors provide Jones and Borque the specific instructions as to what was expected to
work on a Kayden facility. Ex. E, pg. 208. He acknowledges that Kayden supervisors
communicate to individuals such as Borque and Jones that it was expected that they attempt minor
repairs on Kayden equipment, and is not aware of anyone who ever communicated to Borque or
Jones that they should not work on new equipment. Ex. E, pg. 209, 235. Robert Peterson was
responsible for providing Borque and Jones instructions on what to do on a daily basis. Ex. E, pg.
215.
G:\Woodard Matters\02190 - Markel\13501 - DCS Consulting\Pleadings\DCS All American MSJ.docx 6Mr. Peterson was the individual that Kayden relied upon to repair pressure washers and
other equipment which failed and was owned by Kayden. Ex. E, pg. 243. Mr. Peterson represented
to Kayden that he was qualified and knowledgeable to repair Kayden equipment in a safe manner.
Ex. E, pg. 243-244, Kayden also provided classroom training to Mr. Peterson including policies
and procedures and Job Safety Analysis. Ex. E, pg. 229-230. Kayden follows stop work authority,
such that if Kayden sends in Mr. Peterson as their individual in charge of repairs of equipment,
such as a pressure washer, Peterson has the authority to stop work to make sure he knows
everything before proceeding. Ex. E, pg. 222.
Wooten recognizes that even though Mr. Peterson violated Kayden’s procedures, he is now
attempting to blame Borque. Ex. E, pg. 238. He would have expected Borque to attempt a repair
and to contact his supervisor Mr. Peterson if the new pump was still leaking. Ex. E, pg. 235-236.
Wooten is not aware of anything that Borque or Jones did wrong. Ex. E, pg. 218-219.
Wooten agrees that as the supervisor, when Mr. Peterson was advised of the issue with the
pressure washer, one of the first questions that he should have asked was what was done to the
equipment because it is expected that the consultants will attempt minor repairs. Ex. E, pg. 209-
201. Wooten acknowledges that Peterson knew the pressure washer was leaking prior to
performing any work, and the purpose of a Job Safety Analysis is to understand everything prior
to performing any work, and as the expert in charge of repairs for Kayden, it would have been
reasonable for Mr. Peterson to have asked questions to Borque and Jones. Ex. E, pg. 213. If
Borque was not on site when Peterson showed up to make the repairs, Peterson had his telephone
number, and as his supervisor, Peterson had the ability to ask any questions; which is the purpose
of a JSA prior to pressuring up a piece of equipment that has been reported to be malfunctioning.
Ex. E, pg. 215-216.
G:\Woodard Matters\02190 - Markel\13501 - DCS Consulting\Pleadings\DCS All American MSJ.docx 7Kayden has the ultimate authority to terminate Borque and Jones if they are not doing their
jobs correctly and he has no knowledge of any complaints about Borque or Jones. Ex. E, pg. 214-
215.
Wooten also confirmed one of the pressure washers arrived in a broken state such that the
unloader valve was broke off. Ex. E, pg. 53. As such, Kayden had to modify the pressure washer.
Ex. E, pg. 54, 55. The pressure washer at issue is the only one of the 12 received from Oilnex that
leaked. Ex. E, pg. 59. Kayden modified the unloader valves, Ex. E, pg. 61.
Wooten has used many pressure washers in the oil field and at home. Ex. E, pg. 225-226.
He is familiar with the different types of pumps. Ex. E, pg. 226-227. He acknowledges that the
unloader valve on the pressure washer at issue was installed backwards, which would cause a
pressure back up. Ex. E, pg. 228-229. He recognized the valve cap manifold had expanded as a
result of this incident. Ex. E, pg. 229. Just the one. Jd.
Cc. TESTIMONY OF ROBERT PETERSON - PLAINTIFF
Peterson was a Field Technician for Kayden Industries and in charge of three (3) rigs. Ex.
C, pg. 95, 100. Kayden had filed technicians, like Chris Jones, who are consultants. Ex. C, pg.
112. Kayden provided daily safety training because working in the oil industry is a dangerous
job. Ex. C, pg. 116, Kayden required him to fill out JSA’s which is basically “anything that could
possibly go wrong while performing a job.” Ex. C, pg. 117-119. If he had questions, he would
call Tim Wooten or Chris Lee. Ex. C, pg. 136.
When he receives a call about a piece of equipment malfunctioning, Peterson asks what’s
wrong with it, and may ask for more information before loading up and going to the site. Ex. C,
pg. 143-144. When Borque called him and told him the plug was leaking, Peterson did not ask
any questions, and never called Borque again prior to the incident. Ex. C, pg. 296. He did not ask
G:\Woodard Matters\02190 - Markel\13501 - DCS Consulting\Pleadings\DCS All American MSJ.docx 8either Jones or Borque what they saw was leaking. Ex. C, pg. 290. When he gets to the location,
he typically has a conversation with the field tech, but the on duty field tech did not know in this
instance Ex. C, pg. 145; 147. Peterson’s was taught the procedure, which is to perform a visual
inspection, turn it on to try to figure out what is wrong with it; de-energize it, fill out a Job Safety
Analysis, and go from there. Ex. C, pg. 147-149; 299. Peterson did not do any analysis to
determine whether there was any pressure build up. Ex. C, pg. 289-290. None of the plugs
appeared to be improperly screwed in and tightened. Ex. C, pg. 293.
D. THE NEGLIGENCE CLAIMS AGAINST DCS
While Plaintiff's pleadings are generic claims based on negligence against DCS, in reality,
Plaintiff confirmed the claims are based on the allegation that Borque and Jones negligently failed
to inform Plaintiff of the work that had been done prior to Plaintiff beginning his repair efforts.
Regardless, to prevail on a claim of negligence, a plaintiff must plead and establish that: (1)
defendant owed plaintiff a legal duty; (2) defendant breached that duty; and (3) defendant’s breach
of that duty proximately caused plaintiff’s injuries. Van Horn v. Chambers, 970 S.W.2d 542, 544
(Tex. 1998). DCS did not owe a duty to Plaintiff. In addition, the cause of Plaintiffs injury is
complete speculation because the evidence wholly conflicts, and is all based on either a
manufacturing defect, or due to over pressurization; but not by any actions of DCS or even the
consultants.
(1) NEITHER DCS NOR ITS CONSULTANTS OWED A DUTY TO
PLAINTIFF
DCS owed no duty to Plaintiff because (ft) it had no duty to Kayden’s repair specialist; (2)
while Jones/Borque were not employees of DCS, they also owed no duty to Plaintiff; (3) Plaintiff
supervised and controlled Jones/Borque; and (4) Plaintiffs procedures did not include interviewing
Jones / Borque, but rather were designed to start up a malfunctioning piece of equipment first.
G:\Woodard Matters\02190 - Markel\13501 - DCS Consulting\Pleadings\DCS All American MSJ.docx 9A duty is a legal obligation that requires the defendant to conform to a certain standard of
conduct to protect others against unreasonable risks. Midwest Empls. Cas. Co. v. Harpole, 293
S.W.3d 770, 776 (Tex.App.—San Antonio 2009, no pet.). The existence of a duty is generally a
question of law. Nabors Drilling, 288 S.W.3d at 404. More importantly, a person is under no
legal duty to control another’s conduct, even if the person has the ability to do so, Nabors
Drilling, 288 S.W.3d at 404. Consequent, neither DCS, nor Jones / Borque, had any duty to
Plaintiff, who was Kayden’s repair specialist who admits:
(1) When he receives a call about a piece of equipment malfunctioning, Peterson asks
what’s wrong with it, and may ask for more information before loading up and going
to the site. Ex. C, pg. 143-144.
(2) When Borque called him and told him the plug was leaking, Peterson did not ask any
questions, and never called Borque again prior to the incident. Ex. C, pg. 296.
(3) He did not ask either Jones or Borque what they saw was leaking. Ex. C, pg. 290.
(4) Peterson did not do any analysis to determine whether there was any pressure build up.
Ex. C, pg. 289-290.
(5) None of the plugs appeared to be improperly screwed in and tightened. Ex. C, pg. 293.
(6) Peterson’s was taught the procedure, which is to perform a visual inspection, turn it on
to try to figure out what is wrong with it; de-energize it, fill out a Job Safety Analysis,
and go from there. Ex. C, pg. 147-149; 299,
In summary, the facts not only demonstrate that neither DCS nor its consultants owed a duty to
Plaintiff, but more importantly, Plaintiffs procedures did not include questioning either DSC or
the consultants about the leak prior to simply starting up malfunctioning equipment to see what
happens.
G:\Woodard Matters\02190 - Markel\13501 - DCS Consulting\Pleadings\DCS All American MSJ.docx 10(2)DCS OWED NO DUTY TO ENSURE ITS INDEPENDENT
CONTRACTOR CONSULTANTS PERFORMED THEIR WORK
SAFELY AS KAYDEN AND PLAINTIFF RETAINED COMPLETE
CONTROL OVER THE CONSULTANTS WORK, AND THE EVENTS
LEADING UP TO THE INCIDENT
Although Plaintiffs’ counsel does not like it and elected not to bring the consultants into
the lawsuit, the facts demonstrate DCS hired temporary third party independent contractors to
perform the work at Kayden’s facilities and did not retain any control over the details of their work.
In fact, DCS had no knowledge of the daily operations that were being performed, much less the
specific events which led up to this incident. Moreover, the testimony of both Mr. Peterson and
Mr. Wooten demonstrates that Kayden retained complete control over the details of the work
performed by Jones and Borque, and as Kayden’s supervisor in charge of repairing the pressure
washer, Mr. Peterson had sole control over the manner and method in which to make the repairs.
An owner or general contractor does not owe a duty to its independent contractor’s
employees to ensure that they safely perform their work. Koch Ref. Co. v. Chapa, 11 S.W.3d
153, 155 & n. 1 (Tex.1999). An employer is neither liable for the acts of an independent contractor,
nor owed any duty to use ordinary care to protect an independent contractor from work related
hazards, when the employer did not control the details of the work being performed. Fifth Club,
Inc. v. Ramirez, 196 §.W.3d 788, 791 (Tex.2006); see also Hoechst-Celanese, 967 S.W.2d 354,
357 (Tex.1998).
The requisite control factor is narrowly construed, and to be held responsible, this Court
must find that Defendants either retained or exerted substantive control over the operative details
of plaintiffs work. Arsement v. Spinnaker Exploration Co., LLC, 400 F.3d 238, 249 (5"
Cir.2005)(mode or method of work); Chi Energy, Inc. v. Urias, 156 S8.W.3d 873, 880
(Tex.App.—El Paso 2005, pet. denied). In order to have actual control, a property owner “must
G:\Woodard Matters\02190 - Markel\13501 - DCS Consulting\Pleadings\DCS All American MSJ.docx Ithave the right to control the means, methods, or details of the independent contractor’s work to the
extent that the independent contractor is not entirely free to do the work his own way,” and the
“right to control the work must extend to the ‘operative detail’ of the contractor’s work.” Ellwood
Tex, Forge Corp. v. Jones, 214 S.W.3d 693, at 700 (Tex.App.—Houston [14" Dist.] 2007)(citing
Urias, 156 S.W.3d at 879); see also Arsement, at 249 (the owner must control the “mode or
method” of the contractor’s work). The control exercised must be above the mere general right to
order the work stopped or resumed, to inspect its progress, to receive reports, to make suggestions
or recommendations which need not necessarily be followed, or to prescribe alterations or
deviations. See Francis, 30 S.W.3d at 90; Chi Energy, Inc. v. Urias, 156 S.W.3d 873, 880
(Tex.App.—El Paso 2005, no pet.) Merely exercising or retaining a general right to recommend a
safe manner for the independent contractor to perform their work is not enough to subject a
premises owner to liability for failure to provide a safe workplace. Union Carbide Corp. v. Smith,
313 S.W.3d 370, 375 (Tex.App.—Houston [1st Dist.] 2009, pet. denied). In regard to safety
regulation or supervision, a premises owner does not exercise actual control by requiring
contractors to follow its safety rules and regulations unless doing so increases the risk of harm. Id.
at 378, Moreover, there must be a nexus between the control actually exercised and the resulting
injury. Chi Energy, 156 S.W.3d at 880.
The following conduct by a premises owner is insufficient to establish actual control:
(1) Maintaining general “control of the facilities”!;
(2) “Merely exercising or retaining a general right to recommend a safe manner
' Vanderbeek v. San Jacinto Methodist Hospital, 246 S.W.3d 346 at 353 (Tex.App.—Houston [14" Dist.]
2008)(“Although Vanderebeek’s evidence establishes that the Hospital had control of the facility, as a matter of law
the summary judgment evidence proves that the Hospital did not have control over the manner in which Vanderbeek
performed his job, which his required to satisfy section 95.003); see also Dyall v. Pasadena Paper Co., 152 8.W.3d
688, 701 (Tex.App.—Houston [14" Dist.] 2004, pet denied)(en banc)(concluding that success or failure of an attempt
to eliminate a hazard in a facility or placing a safety employee at the site does not demonstrate “control over the
manner in which the work is performed”).
G:Woodard Matters\02190 - Markel\13501 - DCS Consulting\Pleadings\DCS All American MSJ.docx , 12for the independent contractor’s employees to perform their work”;?
(3) Requiring an independent contractor to follow its safety rules and policies:>
(4) Reserving the right to reject work produce or controlling the specifications
used by the contractor.*
In addition, providing a design or work plan,’ using work permit systems,° safety
supervision,’ and/or retaining the right to order the work started and stopped, or to inspect it
progress and receive reports,* do not prove control.
It is also necessary to note that courts have required that there be a correlation, or
nexus, between the control exerted and the condition or activity that caused the injury at
issue. Dow Chem. Co. v. Bright, 89 S.W.3d 602, 607 (Tex.2002).? It is insufficient to
demonstrate that the defendant controlled one aspect of the independent contractors’
activities if the injury arose from another. Shell Oil Co. vy. Khan, 138 S.W.3d 288, 294
2 Dow Chem. Co. v. Bright, 89 S.W.3d 602, 607 (Tex.2002)(citing Restatement (Second) of Torts, sec, 414
cmt. C (1965); see also Id at 608 (holding that presence of property owner’s safety employee and implementation of
safe work system insufficient to establish actual control); Ellwood Texas Forge Corp., 214 S.W.3d at 702 (stating that
“a premises owner, by requiring an independent contractor to follow its safety rules and regulations does not owe the
independent contractor's employee a duty to ensure that the employee does nothing unsafe,” and that “the premises
owner assumes only a narrow duty to ensure that its rules do not unreasonably increase the probability and severity of
injury”); Union Carbide Corp. v. Smith, 313 $.W.3d 370, 377 (Tex.App—Houston [1% Dist.] 2009, pet
denied)(reversing judgment for plaintiff and holding insufficient evidence of actual control where owner furnished
materials and held safety meetings regarding the dangers of asbestos).
3 Johnston v Oiltanking Houston, L.P., 367 $.W.3d 412, at 415 (Tex.App.—Houston[14" Dist] 2012)(citing
Hoechst-Celanese Corp. v. Mendez, 967 S.W.2d 354, 357-58 (Tex.1998)).
4 See Union Carbide Corp, v. Smith, 313 S.W.3d 370, 377 (Tex.App.—Houston [1 Dist.] 2009, pet.
denied)(though the defendant admitted that the contractors “did not have discretion to deviate” from the defendant’s
specifications, the court held that there was no actual control).
3 See Conoco v. Brown, No. 04-02-00336-CV, 2003 WL 22295302, at 1-2 (Tex.App.—San Antonio, Oct. 8,
2003, pet. denied)
5 Bright, 89 S.W.3d at 606 (Work-permit system merely gives the owner the right to order the work stopped,
but does not establish control over the means and the method of the work)
’ Koch Ref. Co. v. Chapa, 11 8.W.3d 153, 159 (Tex.1999)(“a premises owner, merely by placing a safety
employee on the work site, does not incur a duty to an independent contractor’s employees to intervene and ensure
that they safely perform their work”)
8 Victoria Elec. Coop. v. Williams, 100 S.W.3d 323, 326 (Tex.App.—San Antonio 2002, pet denied)
° See also Eliott-Williams Co. v. Diaz, 9 S.W.3d 801, 804 (Tex.1999); Clayton W. Williams Jr, v. Olivo, 952
S.W.2d 523, 528 (Tex.1997); Johnston, 367 S.W.3d 412 at 415.
G:\Woodard Matters\02190 - Markel\13501 - DCS Consulting\Pleadings\DCS All American MSJ.docx 13(Tex.2004).
In summary, the facts demonstrate Jones and Borque were independent contractors of DCS,
and DCS has no knowledge of the daily operations or the events leading up to the incident at issue.
In addition, Mr. Peterson and Mr. Wooten confirmed that Kayden retained complete supervision
and control over the work performed by Jones and Borque and the events leading to this incident.
(3) DCS Did Not Contribute to the Proximate Cause of the Accident
Regardless of whether there was a duty, which is denied, any actions of DCS, or even the
consultants, were not a proximate cause (i.e. a substantial factor in causing) this incident. In
addition, the conflicting theories presented by Plaintiff and the failure to determine an actual cause,
demonstrates Plaintiffs entire proximate cause theory is based on speculation.
(a) Plaintiffs Procedure for Making Repairs Demonstrates Any Actions
of DCS or the Consultants were not the Proximate Cause
Proximate cause requires Plaintiffs to prove (1) cause-in-fact, and (2) foreseeability.
Western Invs. v. Urena, 162 S.W.3d 547, 551 (Tex.2005). Thus, the negligent act or omission
must have been a substantial factor in bringing about the injury and whether the injury would
have occurred without the act or omission. Del Lago Partners, v. Smith, 307 S.W.3d 762, 774
(Tex.2010). To prove foreseeability, the plaintiff must establish a person of ordinary intelligence
should have anticipated the danger created by the negligence act or omission. Travis v. City of
Mesquite, 830 S.W.2d 94, 98 (Tex.1992). ). Texas law states that cause in fact is not established
where the defendant’s alleged negligent conduct “does no more that furnish a condition
which makes the injuries possible.” Jd. at 799. “In other words, the conduct of the Defendant
may be too attenuated from the resulting injuries to the Plaintiff to be a substantial factor in
bringing about the harm.” Jd. at 798-99.
Plaintiff was Kayden’s supervisor in charge of making the repairs to the power washer.
G:\Woodard Matters\02190 - Markel\13501 - DCS Consulting\Pleadings\DCS All American MSJ.docx 14Plaintiffs procedures left him with the sole discretion as to whether to ask Borque what he did
prior to contacting Plaintiff and informing him about the leak. Moreover, Plaintiffs procedures
were simply to start the pressure up to determine what was wrong with it.
In addition, the allegations against DCS and even the consultants are ridiculous when at
the same time, Plaintiff contends the incident was actually caused by the female thread being
enlarged by an UNKNOWN cause. Regardless, given Plaintiffs procedures of simply starting the
power washer to see what happens, without questioning either DCS or the consultants, there is no
basis for proximate cause against DCS or the third party independent contractor consultants.
(b) Plaintiff’s Proximate Cause Theory is Based on Incomplete
Analysis and Speculation
It is well established that mere conjecture, guess or speculation will not support cause in
fact. Excel Corp. v. Apodaca, 81 8.W.3d 817, 820 (Tex.2002). In this case, Plaintiff has designated
an expert to testify on proximate cause. According to the generic designation, Robert Tolbert is
expected to testify:
the pump “contained manufacturing defects which proximately caused Plaintiff's injuries.
Specifically, the pump’s female threaded holes were larger than specification for the male
threaded plugs. This allowed the plug to be ejected when pressurized.”
The designation further states Mr. Tolbert is reserving any opinions regarding over-pressurization
until after further non-destructive and destructive testing was completed, and would issue a full
report. The inspection and testing were performed months ago, and to this date, no report has been
issued as to how the pump’s female threaded holes were larger than specification. See Exhibit B,
Plaintiffs Designation of Experts.
Thereafter, Wooten also confirmed the pressure washer at issue is the only one of the 12
received from Oilnex that leaked. Ex. E, pg. 59. He confirmed one of the pressure washers arrived
in a state such that the unloader valve was broken off and Kayden had to modify the unloader
G:\Woodard Matters\02190 - Markel\13501 - DCS Consulting\Pleadings\DCS All American MSJ.docx 15valves on it. Ex. E, pg. 53-55, 61. He acknowledges the unloader valve was installed backwards,
which would cause a pressure back up. Ex. E, pg. 228-229. He recognized the valve cap manifold
had expanded as a result of this incident. Ex. E, pg. 229.
The Texas Supreme Court has recognized that professional expert witnesses are available
to render an opinion on almost any theory, regardless of its merit. EL. du Pont de Nemours & Co.
v, Robison, 923 S.W.2d 549, 553 (Tex. 1995). As such, Plaintiff has the burden of demonstrating
the admissibility of the opinions, testimony and/or reports of its experts. See Gammill v. Jack
Williams Chevrolet, 972 §.W.2d 713, 719 (Tex.1998). Consequently, the trial court must act as a
“gatekeeper” to determine the qualifications of an expert and whether the expert’s opinion is
admissible. Robison, 923 S.W.2d at 556. Thus, the Court is required to “rigorously examine the
validity of the facts and assumptions on which the testimony is based, as well as the principles,
research, and methodology underlying the expert’s conclusions and the manner in which the
principles and methodologies are applied by the expert to reach the conclusions.” Whirlpool Corp.
vy. Camacho, 298 S.W.3d 631, 637 (Tex.2009)(citing Exxon Pipeline Co. v. Zwahr, 88 S.W.3d 623,
629 (Tex.2002).
Expert testimony is allowed only if it “will assist the trier of fact to understand the evidence
or to determine a fact in issue.” TRE 702; K-Mart Corp. v. Honeycutt, 24 S.W.3d 357, 360-61
(Tex. 2000). The opinion must be reliable. Robinson, S.W.2d at 557; see TRE 702. It cannot be
based on flawed reasoning and methodology. Merrel Dow Pharms., Inc. v. Havner, 953 S.W.24
706, 714 (Tex. 1997), The opinion must be relevant, i.e. it must be so “sufficiently tied to the facts
of the case that it will aid the jury in resolving a factual dispute.” Robinson, 923 S.W.2d at 555-
56; see TRE 702. The opinion must be based on sufficient “underlying facts or data” under TRE
702 and TRE 703, TRE 705(c). In Kumho, the Court emphasized that the purpose of the
G:\Woodard Matters\02190 - Markel\13501 - DCS Consulting\Pleadings\DCS All American MSJ.docx 16gatekeeping requirement is “to make certain that an expert, whether basing testimony upon
professional studies or personal experience, employs in the courtroom the same level of intellectual
rigor that characterizes the practice of an expert in the relevant field.” Kumho Tire Co., Ltd. v.
Carmichael, 119 §.Ct.1171, 1176 (1999).
In Robinson, the Court recognized there are many factors that a trial court may consider in
making the threshold determination of admissibility under Rule 7021, which include, but are not ‘
limited to:
(1) The extent to which the theory has been or can be tested;
(2) The extent to which the technique relies upon the subjective interpretation of
the expert;
(3) Whether the theory has been subjected to peer review and/or publication;
(4) The technique’s potential rater of error;
(5) Whether the underlying theory or technique has been generally accepted as
valid by the relevant scientific community, and
(6) The non-judicial uses which have been made of the theory or technique.
See Robison, 923 8.W.2d at 557. Furthermore, an expert who is trying to find cause of
something should carefully consider alternative causes, and exclude other potential causes.
Id, at 558-559. If an expert fails to rule out other causes of the damaged, his opinion is little
more than speculation and must be excluded, Jd. at 559.
Finally, if the Court finds that the expert’s opinion is admissible, the court has the
additional duty to weigh the expert’s testimony against the danger of unfair prejudice, confusion
of the issues or the possibility of misleading the jury. TRE 403.
G:\Woodard Matters\02190 - Markel\13501 - DCS Consulting\Pleadings\DCS All American MSJ.docx 17Plaintiffs entire case is based on confusion and misleading the jury with conflicting,
incomplete theories of causation. While Mr. Tolber states the pump’s female threaded holes were
larger than specification for the male threaded plugs, Mr. Tolbert issues NO opinion on the cause of the
condition.
(1) Was it created at the time of manufacture, as none of the other holes in the
pressure washer at issue, or the other eleven pressure washers purchased by
Kayden had any evidence of the condition;
(2) Alternatively, was the condition created by over pressurization, as Mr. Tolbert
has rendered no opinions on over pressurization;
(3) If the cause was over pressurization, how and what caused it:
a. Was it created when Oilnex put the component parts of the pressure
washer together? Did Oilnex perform any testing?
b. Alternatively, was the condition created when a pressure washer was
delivered to Kayden in a broken state, and Kayden made the repairs?
c, Was the condition created by the installation of the valve backwards,
and if so, who did it?
d. Is this the same unit that Kayden repaired?
e. Can any expert exclude the potential causes when Kayden destroyed
and/or modified the evidence?
As an expert, Mr. Tolbert admits that specialized testing had to be performed to evaluate the
over pressurization theory, and consistent with Plaintiff’s claims, it would have been
impossible for Plaintiff, DCS or its consultants to have expected or known the condition at
the time of attempting the repairs. However, Mr. Tolbert’s analysis is void of any actual
causation, and thus, unfounded as his opinions are not based on solid evidence, and he has
not excluded the other potential causes. Consequently, any last minute supplemental
opinions cannot defeat summary judgment as such were due long ago and cannot exclude
the potential causes above.
G:\Woodard Matters\02190 - Markel\13501 - DCS Consulting\Pleadings\DCS All American MSJ.docx. 18E. GROSS NEGLIGENCE
Since a finding of negligence is a prerequisite to establishing gross negligence, the gross
negligence claims must fail for the same reasons the negligence fail. See Shell Oil Co. v. Humphrey,
880 S.W.2d 170, 174 (Tex.App—Houston [14" Dist.] 1994, writ denied) (a finding or ordinary
negligence is a prerequisite to a finding of gross negligence); see also Sonic System Intern, Inc. v
Croix, 278 §.W.3d 366 (Tex.App—Houston [14 Dist. 2008), reh’g overruled, March 5, 2009 and
tule 53.7(f) motion granted, (April 17, 2009).
In addition, gross negligence requires “more than momentary thoughtlessness, inadvertence
or error in judgment.” Lee Lewis Const., Inc. v. Harrison, 70 §.W.3d 778, 791 (Tex.2001)(italics in
original, emphasis added). “Under the first, objective element, an extreme risk is not a remote
possibility of injury or even a high probability of minor harm, but rather the likelihood of serious
injury to the plaintiff.” Reeder vy. Wood County Energy, LLC, 395 $.W.789 (Tex.2012). “Under the
subjective element, actual awareness means the defendant knew about the peril, but its acts or
omissions demonstrated it did not care.” Mobil Corp. v. Ellender, 968 S.W.2d 917, 921 (Tex.1998).
What separates ordinary negligence from gross negligence is the defendant’s state of mind; in other
words, the plaintiff must show that the defendant knew about the peril, but his acts or omissions
demonstrate that he did not care. City of Plano v. Homoky, 294 §.W.3d 809 (Tex.App.-Dallas 2009).
The facts demonstrate that none of the actions of either the consultants or DCS constituted
gross negligence as the sole decision maker as to whether to inquire into the work that was performed
by Borque was Plaintiff, and with incomplete, contradicting theories as to how the incident actually
occurred, there is no basis for a gross negligence claim against DCS or the consultants.
G:\Woodard Matters\02190 - Markel\13501 - DCS Consulting\Pleadings\DCS All American MSJ.docx 19PRAYER
WHEREFORE, PREMISES CONSIDERED, DCS requests that this Motion for Summary
Judgment be GRANTED in its entirety and further pray for such other and further relief, whether
general or special, whether at law or in equity, whether pled or unpled, to which they may be justly
entitled.
Respectfully submitted,
BUSH & RAMIREZ, PLLC
/s/ John K. (Ken) Woodard
John K. (Ken) Woodard; TBN: 00791955
5615 Kirby Drive, Suite 900
Houston, Texas 77005
(713) 626-1555
(713) 622-8077 Facsimile
kwoodard.atty@bushramirez.com
ATTORNEY FOR DEFENDANT,
DCS ALL AMERICAN, LLC
G:\Woodard Matters\02190 - Markel\13501 - DCS Consulting\Pleadings\DCS All American MSJ.docx 20CERTIFICATE OF SERVICE
Ihereby certify that a copy of the foregoing was served on all interested counsel of record
in accordance with the applicable provisions of the TEXAS RULES OF CIVIL PROCEDURE on this the
7 day of October, 2019.
Jason A. Itkin / Cary D. Itkin
Ryan S. MacLeod / Jacob M. Karam
Arnold & Itkin, LLP
6009 Memorial Drive
Houston, Texas 77007
Randy L. Fairless . Timothy J. Nisbet
Johanson & Fairless, L.L.P.
1456 First Colony Blvd.
Sugar Land, Texas 77479
Steve J. Owens
Reed Smith, L.L.P.
811 Main Street, Suite 1700
Houston, Texas 77002
Ms/{ John_K. (Ken) Woodard
John K. (Ken) Woodard
G:\Woodard Matters\02190 - Markel\13501 - DCS Consulting\Pleadings\DCS All American MSJ.docx 21
Preview
CAUSE NO. 2018-36443 ROBERT PETERSON § IN THE DISTRICT COURT OF § Vv. § HARRIS COUNTY, TEXAS § INTERPUMP GROUP SPA, et al § 157" JUDICIAL DISTRICT TO THE HONORABLE JUDGE OF SAID COURT: DCS ALL AMERICAN, LLC’S MOTION FOR SUMMARY JUDGMENT TO THE HONORABLE JUDGE OF SAID COURT: Defendant, DCS All American, LLC (“DCS”) files this Motion for Summary Judgment, and respectively shows: INTRODUCTION Plaintiff was the supervisor for Kayden Industries in charge of repairing equipment, such as pressure washers, When a pressure washer leaked from a plug upon start up, a DCS’ consultant attempted to secure it, but when it continued to leak, he contacted Plaintiff. Plaintiff did not ask the consultant what he did, or perform a Job Safety Analysis or a detailed inspection, as it was Plaintiffs procedure to start it up to assess the problem. When Plaintiff did, a bolt shot out of a socket enlarged by an unknown cause, and struck Plaintiff in the eye. DCS is entitled to summary judgment because: (1) DCS owed no duty to Plaintiff; (2) DCS had no duty to ensure its independent contractors performed their work safely, and Kayden and Plaintiff asserted complete control over them; and (3) With multiple, contradicting, incomplete speculative causes, Plaintiff cannot establish that any actions of DCS or its consultants contributed to this incident. G:\Woodard Matters\02190 - Markel\13501 - DCS Consulting\Pleadings\DCS All American MSJ.docx 1WHO ARE THE ENTITIES INVOLVED? Interpump Group S.p.A. is an Italian corporation which manufactures high pressure piston pumps, including the pump at issue. Interpump was never served. General Pump Company, LLC is a distributor of Interpump products. Oilnex Supply, LLC sold the pressure washer at issue and designed, manufactured and built the pressure washer “specifically for Kayden Industries at its request.” Oilnex was dismissed. Kayden Industries was a well site owner who employed Plaintiff as a supervisor, who was in charge of repairing equipment, such as pressure washers. Kayden also contacted DCS Consulting to provide temporary consultants to assist in operating Kayden’s equipment. Kayden also modified a broken pump received from Oilnex. DCS is an intermediary temporary employment agency who locate temporary workers for various projects as requested by its clients. Chris Jones and Chris Borque were temporary third party independent contractors employed by Kayden Industries through DCS to assist in the operation of Kayden’s equipment, Jones and Borque have been designated as responsible third parties, but were never brought into the lawsuit by Plaintiff. THE CONFLICTING THEORIES On one hand, Plaintiff alleges the pump at issue was designed, manufactured and marketed with defects, which were an unreasonable risk of which Plaintiff was not warned. See Exhibit A, Plaintiffs Second Amended Petition. Consequently, the entire basis of Plaintiff's allegation begins with the failure to warn of defects, which by the same argument could never have been known by DCS or its consultants. Contrarily, Robert Tolbert (Plaintiffs expert) is designated to testify: the pump “ contained manufacturing defects which proximately caused Plaintiff's injuries, Specifically, the pump’s female threaded holes were larger than specification for the male threaded plugs. This allowed the plug to be ejected when pressurized.” G:\Woodard Matters\02190 - Markel\13501 - DCS Consulting\Pleadings\DCS All American MSJ.docx 2However, the designation also states Tolbert is reserving any opinions regarding over- pressurization until testing is completed, and thereafter, he will issue a full report. To this date, no report has been issued, See Exhibit B, Plaintiffs Designation of Experts. Contrarily, in direct contradiction to both of the above claims, Plaintiff asserts the following allegations against DCS: Defendants are independent contractors that installed and/or serviced the pressure washer in a negligent manner. The manner in which Defendants installed and/or serviced the pressure washer posed an unreasonable risk of harm, and Defendants knew, or reasonably [should] have known, of the unreasonably dangerous condition. Moreover, Plaintiff did not have actual knowledge of the dangerous condition. Defendant’s negligence proximately caused Plaintiffs injuries. See Exhibit A. In his deposition, Plaintiff clarified his complaints, testifying that even though Plaintiff admits he was Kayden’s supervisor in charge of repairing the leaking pressure washer, admits he did not on wait on Chris Jones to perform a Job Safety Analysis prior to starting the work, and admits he did not inquire (to Borque) about the problems that were ongoing before Plaintiff attempted to start the pressure washer up, Plaintiff contends Chris Borque and Chris Jones were negligent for failing to provide him information as to what was done by Borque to attempt to repair the leaking pressure washer prior to Plaintiff starting the work. See Exhibit C, pgs. 289-299 and 339-341. ARGUMENTS AND AUTHORITIES A. TESTIMONY OF DCS CORPORATE REPRESENTATIVE - MIKE GARDONI DCS provides independent contractors for solid control companies, ie. they run centrifuges, dryers and shakers, vertical dryers, excavators, everything on the backside ofa drilling rig. Ex. D, pg. 7-8. DCS provides the consultants for six different companies, and Kayden is one of their clients, Ex. D, pg. 19. A client will call DCS and request a guy to perform a specific task, G:\Woodard Matters\02190 - Markel\13501 - DCS Consulting\Pleadings\DCS All American MSJ.docx 3and DCS has a list of potential consultants, which it calls about the job; the consultant may choose to take the job or reject it. Ex. D, pg. 21-22. As to billing, the consultants text or email how many hours they worked and the rig; not the type of work performed. Ex. D, pg. 55. DCS is the middleman that pays the consultants. Ex. D, pg. 60. The decision to terminate the consultants is on the company that hires them, not DCS. Ex, D, pg. 68. The consultants pay for their own business and travel expenses, and provide their own vehicles; they are not paid for mileage. Ex. D, pg. 70. The consultants provide their owne equipment, such as hardhats and PPE. Ex. D, pg. 85. DCS issues the consultants, including Jones and Borque, 1099’s, Ex. D, pg. 102. DCS does not carry workers compensation insurance or liability insurance for the consultants, as they are not considered employees. Ex. D, pg. 86, 98. Once the consultants get on site, DCS does not get involved in the day to day operations, has no interaction with the consultants and does not know what the consultants are doing day to day. Ex. D, pg. 24, 26. DCS does not receive any daily, weekly or monthly reports Ex. D, pg. 42 DCS does not have its own equipment, and does not provide the consultants with policies and procedures because each company has its own policies, and some even provide the consultants training. Ex. D, pg. 25. The companies are free to hire the consultants directly. Ex. D, pg. 24. DSC does not have a contract with Kayden, but has a bid on the price to be charged based on a day rate based on a 12 % hour day, and the consultant gets paid on an hourly basis. Ex. D, pg. 23, Kayden is a company that would provide training if needed. Ex. D, pg. 26. The consultants are directed by Kayden’s supervisors on the job site. Ex. D, pg. 26. If Kayden wants the consultants to make minor repairs, that is between Kayden and the consultant. Ex. D, pg. 42. DCS does not know whether Kayden allows the consultants to make minor repairs to equipment if it breaks down. Ex. D, pg. 28. G:\Woodard Matters\02190 - Markel\13501 - DCS Consulting\Pleadings\DCS All American MSJ.docx 4The consultants provided by DCS to Kayden were Chris Jones and Chris Borque. Ex. D, pg. 29. Both had worked on other Kayden projects. Ex. D, pg. 30. No employees of DCS had ever been to the rig where the incident occurred, and as the corporate representative, DSC does not have any knowledge as to how the incident occurred. Ex. D, pg. 34. Chris Jones told him that he was walking back from the trailer after filling out a Job Safety Analysis, a/k/a JSA, which is a Kayden initiative that is typically completed prior to performing any work on any equipment. Ex. D, pg. 35. It is not common to turn on a piece of equipment prior to performing a JSA. Ex. D, pg. 35. When DCS contacted Kayden about how the accident occurred, he was informed that Kayden was handling it. Ex. D, pg. 38. At time of his deposition, Chris Jones was working on a long term project with another company and Chris Borque was taking days off as he only worked when he wanted to work. Ex. D, pg. 31-32. B. TESTIMONY OF TIM WOOTEN — KAYDEN SUPERVISOR Tim Wooten admits that he does not have personal knowledge on many issues, and is not qualified to testify on the employment relationship between DCS and Jones / Borque, by testifying: 1. He is not testifying as a corporate representative of Kayden. Ex. E, pg 198; 2. He was not involved in the negotiation of any contracts with DCS and is not aware as to whether a contract even existed. Ex. E, pg. 198-199; 3. He is not involved in the selection process of any consultants provided by DCS, Ex. E, pg. 200; 4. He has no daily communications with the individuals at DCS, Ex. E, pg. 200; 5. He has never provided any Kayden policies or procedures to any consultants and does not get involved in that; Ex. E, pg. 201; 6. He is not aware of anyone at Kayden who had daily or weekly communications with DCS as to any work going on by Borque or Jones. Ex. pg., 202; G:\Woodard Matters\02190 - Markel\13501 - DCS Consulting\Pleadings\DCS All American MSJ.docx 57. He is not on the well site at issue on a daily basis, but maybe every other week. Ex, E pg. 198; 8. He admits that he simply does not know Borque or Jones employment relationship with DCS. Ex. E, pg. 208; 9, He admits that he cannot affirmatively state that Borque or Jones were “employees’ of DCS. Ex. E, pg. 208; 10. While as an employee of Kayden, Wooten receives medical benefits, vacation benefits, and a W-2, he does not know anything about any benefits or payments to Borque or Jones. Ex, E, pg. 206-207. However, Wooten acknowledges the consultants jobs were temporary jobs. Ex. E, pg. 200. Kayden provides its own equipment. Ex. E, pg. 202. Kayden has its own supervisors, like Mr. Peterson, with a hierarchy set up by Kayden. Ex. E, pg. 202. The lowest people on the Kayden hierarchy are not Kayden employees, but individuals such as Borque and Jones. Ex. E, pg. 202. When a daily project comes in, Kayden has its own daily meetings and the meetings are controlled by Kayden supervisors, not Jones and Borque. Ex. E, pg. 203, 204-205. When it comes to telling someone what is going to happen on site on a daily basis, the instructions come from the Kayden personnel and go down the Kayden chain and ultimately to Borque and Jones. Ex. E, pg. 205. The Kayden supervisors provide Jones and Borque the specific instructions as to what was expected to work on a Kayden facility. Ex. E, pg. 208. He acknowledges that Kayden supervisors communicate to individuals such as Borque and Jones that it was expected that they attempt minor repairs on Kayden equipment, and is not aware of anyone who ever communicated to Borque or Jones that they should not work on new equipment. Ex. E, pg. 209, 235. Robert Peterson was responsible for providing Borque and Jones instructions on what to do on a daily basis. Ex. E, pg. 215. G:\Woodard Matters\02190 - Markel\13501 - DCS Consulting\Pleadings\DCS All American MSJ.docx 6Mr. Peterson was the individual that Kayden relied upon to repair pressure washers and other equipment which failed and was owned by Kayden. Ex. E, pg. 243. Mr. Peterson represented to Kayden that he was qualified and knowledgeable to repair Kayden equipment in a safe manner. Ex. E, pg. 243-244, Kayden also provided classroom training to Mr. Peterson including policies and procedures and Job Safety Analysis. Ex. E, pg. 229-230. Kayden follows stop work authority, such that if Kayden sends in Mr. Peterson as their individual in charge of repairs of equipment, such as a pressure washer, Peterson has the authority to stop work to make sure he knows everything before proceeding. Ex. E, pg. 222. Wooten recognizes that even though Mr. Peterson violated Kayden’s procedures, he is now attempting to blame Borque. Ex. E, pg. 238. He would have expected Borque to attempt a repair and to contact his supervisor Mr. Peterson if the new pump was still leaking. Ex. E, pg. 235-236. Wooten is not aware of anything that Borque or Jones did wrong. Ex. E, pg. 218-219. Wooten agrees that as the supervisor, when Mr. Peterson was advised of the issue with the pressure washer, one of the first questions that he should have asked was what was done to the equipment because it is expected that the consultants will attempt minor repairs. Ex. E, pg. 209- 201. Wooten acknowledges that Peterson knew the pressure washer was leaking prior to performing any work, and the purpose of a Job Safety Analysis is to understand everything prior to performing any work, and as the expert in charge of repairs for Kayden, it would have been reasonable for Mr. Peterson to have asked questions to Borque and Jones. Ex. E, pg. 213. If Borque was not on site when Peterson showed up to make the repairs, Peterson had his telephone number, and as his supervisor, Peterson had the ability to ask any questions; which is the purpose of a JSA prior to pressuring up a piece of equipment that has been reported to be malfunctioning. Ex. E, pg. 215-216. G:\Woodard Matters\02190 - Markel\13501 - DCS Consulting\Pleadings\DCS All American MSJ.docx 7Kayden has the ultimate authority to terminate Borque and Jones if they are not doing their jobs correctly and he has no knowledge of any complaints about Borque or Jones. Ex. E, pg. 214- 215. Wooten also confirmed one of the pressure washers arrived in a broken state such that the unloader valve was broke off. Ex. E, pg. 53. As such, Kayden had to modify the pressure washer. Ex. E, pg. 54, 55. The pressure washer at issue is the only one of the 12 received from Oilnex that leaked. Ex. E, pg. 59. Kayden modified the unloader valves, Ex. E, pg. 61. Wooten has used many pressure washers in the oil field and at home. Ex. E, pg. 225-226. He is familiar with the different types of pumps. Ex. E, pg. 226-227. He acknowledges that the unloader valve on the pressure washer at issue was installed backwards, which would cause a pressure back up. Ex. E, pg. 228-229. He recognized the valve cap manifold had expanded as a result of this incident. Ex. E, pg. 229. Just the one. Jd. Cc. TESTIMONY OF ROBERT PETERSON - PLAINTIFF Peterson was a Field Technician for Kayden Industries and in charge of three (3) rigs. Ex. C, pg. 95, 100. Kayden had filed technicians, like Chris Jones, who are consultants. Ex. C, pg. 112. Kayden provided daily safety training because working in the oil industry is a dangerous job. Ex. C, pg. 116, Kayden required him to fill out JSA’s which is basically “anything that could possibly go wrong while performing a job.” Ex. C, pg. 117-119. If he had questions, he would call Tim Wooten or Chris Lee. Ex. C, pg. 136. When he receives a call about a piece of equipment malfunctioning, Peterson asks what’s wrong with it, and may ask for more information before loading up and going to the site. Ex. C, pg. 143-144. When Borque called him and told him the plug was leaking, Peterson did not ask any questions, and never called Borque again prior to the incident. Ex. C, pg. 296. He did not ask G:\Woodard Matters\02190 - Markel\13501 - DCS Consulting\Pleadings\DCS All American MSJ.docx 8either Jones or Borque what they saw was leaking. Ex. C, pg. 290. When he gets to the location, he typically has a conversation with the field tech, but the on duty field tech did not know in this instance Ex. C, pg. 145; 147. Peterson’s was taught the procedure, which is to perform a visual inspection, turn it on to try to figure out what is wrong with it; de-energize it, fill out a Job Safety Analysis, and go from there. Ex. C, pg. 147-149; 299. Peterson did not do any analysis to determine whether there was any pressure build up. Ex. C, pg. 289-290. None of the plugs appeared to be improperly screwed in and tightened. Ex. C, pg. 293. D. THE NEGLIGENCE CLAIMS AGAINST DCS While Plaintiff's pleadings are generic claims based on negligence against DCS, in reality, Plaintiff confirmed the claims are based on the allegation that Borque and Jones negligently failed to inform Plaintiff of the work that had been done prior to Plaintiff beginning his repair efforts. Regardless, to prevail on a claim of negligence, a plaintiff must plead and establish that: (1) defendant owed plaintiff a legal duty; (2) defendant breached that duty; and (3) defendant’s breach of that duty proximately caused plaintiff’s injuries. Van Horn v. Chambers, 970 S.W.2d 542, 544 (Tex. 1998). DCS did not owe a duty to Plaintiff. In addition, the cause of Plaintiffs injury is complete speculation because the evidence wholly conflicts, and is all based on either a manufacturing defect, or due to over pressurization; but not by any actions of DCS or even the consultants. (1) NEITHER DCS NOR ITS CONSULTANTS OWED A DUTY TO PLAINTIFF DCS owed no duty to Plaintiff because (ft) it had no duty to Kayden’s repair specialist; (2) while Jones/Borque were not employees of DCS, they also owed no duty to Plaintiff; (3) Plaintiff supervised and controlled Jones/Borque; and (4) Plaintiffs procedures did not include interviewing Jones / Borque, but rather were designed to start up a malfunctioning piece of equipment first. G:\Woodard Matters\02190 - Markel\13501 - DCS Consulting\Pleadings\DCS All American MSJ.docx 9A duty is a legal obligation that requires the defendant to conform to a certain standard of conduct to protect others against unreasonable risks. Midwest Empls. Cas. Co. v. Harpole, 293 S.W.3d 770, 776 (Tex.App.—San Antonio 2009, no pet.). The existence of a duty is generally a question of law. Nabors Drilling, 288 S.W.3d at 404. More importantly, a person is under no legal duty to control another’s conduct, even if the person has the ability to do so, Nabors Drilling, 288 S.W.3d at 404. Consequent, neither DCS, nor Jones / Borque, had any duty to Plaintiff, who was Kayden’s repair specialist who admits: (1) When he receives a call about a piece of equipment malfunctioning, Peterson asks what’s wrong with it, and may ask for more information before loading up and going to the site. Ex. C, pg. 143-144. (2) When Borque called him and told him the plug was leaking, Peterson did not ask any questions, and never called Borque again prior to the incident. Ex. C, pg. 296. (3) He did not ask either Jones or Borque what they saw was leaking. Ex. C, pg. 290. (4) Peterson did not do any analysis to determine whether there was any pressure build up. Ex. C, pg. 289-290. (5) None of the plugs appeared to be improperly screwed in and tightened. Ex. C, pg. 293. (6) Peterson’s was taught the procedure, which is to perform a visual inspection, turn it on to try to figure out what is wrong with it; de-energize it, fill out a Job Safety Analysis, and go from there. Ex. C, pg. 147-149; 299, In summary, the facts not only demonstrate that neither DCS nor its consultants owed a duty to Plaintiff, but more importantly, Plaintiffs procedures did not include questioning either DSC or the consultants about the leak prior to simply starting up malfunctioning equipment to see what happens. G:\Woodard Matters\02190 - Markel\13501 - DCS Consulting\Pleadings\DCS All American MSJ.docx 10(2)DCS OWED NO DUTY TO ENSURE ITS INDEPENDENT CONTRACTOR CONSULTANTS PERFORMED THEIR WORK SAFELY AS KAYDEN AND PLAINTIFF RETAINED COMPLETE CONTROL OVER THE CONSULTANTS WORK, AND THE EVENTS LEADING UP TO THE INCIDENT Although Plaintiffs’ counsel does not like it and elected not to bring the consultants into the lawsuit, the facts demonstrate DCS hired temporary third party independent contractors to perform the work at Kayden’s facilities and did not retain any control over the details of their work. In fact, DCS had no knowledge of the daily operations that were being performed, much less the specific events which led up to this incident. Moreover, the testimony of both Mr. Peterson and Mr. Wooten demonstrates that Kayden retained complete control over the details of the work performed by Jones and Borque, and as Kayden’s supervisor in charge of repairing the pressure washer, Mr. Peterson had sole control over the manner and method in which to make the repairs. An owner or general contractor does not owe a duty to its independent contractor’s employees to ensure that they safely perform their work. Koch Ref. Co. v. Chapa, 11 S.W.3d 153, 155 & n. 1 (Tex.1999). An employer is neither liable for the acts of an independent contractor, nor owed any duty to use ordinary care to protect an independent contractor from work related hazards, when the employer did not control the details of the work being performed. Fifth Club, Inc. v. Ramirez, 196 §.W.3d 788, 791 (Tex.2006); see also Hoechst-Celanese, 967 S.W.2d 354, 357 (Tex.1998). The requisite control factor is narrowly construed, and to be held responsible, this Court must find that Defendants either retained or exerted substantive control over the operative details of plaintiffs work. Arsement v. Spinnaker Exploration Co., LLC, 400 F.3d 238, 249 (5" Cir.2005)(mode or method of work); Chi Energy, Inc. v. Urias, 156 S8.W.3d 873, 880 (Tex.App.—El Paso 2005, pet. denied). In order to have actual control, a property owner “must G:\Woodard Matters\02190 - Markel\13501 - DCS Consulting\Pleadings\DCS All American MSJ.docx Ithave the right to control the means, methods, or details of the independent contractor’s work to the extent that the independent contractor is not entirely free to do the work his own way,” and the “right to control the work must extend to the ‘operative detail’ of the contractor’s work.” Ellwood Tex, Forge Corp. v. Jones, 214 S.W.3d 693, at 700 (Tex.App.—Houston [14" Dist.] 2007)(citing Urias, 156 S.W.3d at 879); see also Arsement, at 249 (the owner must control the “mode or method” of the contractor’s work). The control exercised must be above the mere general right to order the work stopped or resumed, to inspect its progress, to receive reports, to make suggestions or recommendations which need not necessarily be followed, or to prescribe alterations or deviations. See Francis, 30 S.W.3d at 90; Chi Energy, Inc. v. Urias, 156 S.W.3d 873, 880 (Tex.App.—El Paso 2005, no pet.) Merely exercising or retaining a general right to recommend a safe manner for the independent contractor to perform their work is not enough to subject a premises owner to liability for failure to provide a safe workplace. Union Carbide Corp. v. Smith, 313 S.W.3d 370, 375 (Tex.App.—Houston [1st Dist.] 2009, pet. denied). In regard to safety regulation or supervision, a premises owner does not exercise actual control by requiring contractors to follow its safety rules and regulations unless doing so increases the risk of harm. Id. at 378, Moreover, there must be a nexus between the control actually exercised and the resulting injury. Chi Energy, 156 S.W.3d at 880. The following conduct by a premises owner is insufficient to establish actual control: (1) Maintaining general “control of the facilities”!; (2) “Merely exercising or retaining a general right to recommend a safe manner ' Vanderbeek v. San Jacinto Methodist Hospital, 246 S.W.3d 346 at 353 (Tex.App.—Houston [14" Dist.] 2008)(“Although Vanderebeek’s evidence establishes that the Hospital had control of the facility, as a matter of law the summary judgment evidence proves that the Hospital did not have control over the manner in which Vanderbeek performed his job, which his required to satisfy section 95.003); see also Dyall v. Pasadena Paper Co., 152 8.W.3d 688, 701 (Tex.App.—Houston [14" Dist.] 2004, pet denied)(en banc)(concluding that success or failure of an attempt to eliminate a hazard in a facility or placing a safety employee at the site does not demonstrate “control over the manner in which the work is performed”). G:Woodard Matters\02190 - Markel\13501 - DCS Consulting\Pleadings\DCS All American MSJ.docx , 12for the independent contractor’s employees to perform their work”;? (3) Requiring an independent contractor to follow its safety rules and policies:> (4) Reserving the right to reject work produce or controlling the specifications used by the contractor.* In addition, providing a design or work plan,’ using work permit systems,° safety supervision,’ and/or retaining the right to order the work started and stopped, or to inspect it progress and receive reports,* do not prove control. It is also necessary to note that courts have required that there be a correlation, or nexus, between the control exerted and the condition or activity that caused the injury at issue. Dow Chem. Co. v. Bright, 89 S.W.3d 602, 607 (Tex.2002).? It is insufficient to demonstrate that the defendant controlled one aspect of the independent contractors’ activities if the injury arose from another. Shell Oil Co. vy. Khan, 138 S.W.3d 288, 294 2 Dow Chem. Co. v. Bright, 89 S.W.3d 602, 607 (Tex.2002)(citing Restatement (Second) of Torts, sec, 414 cmt. C (1965); see also Id at 608 (holding that presence of property owner’s safety employee and implementation of safe work system insufficient to establish actual control); Ellwood Texas Forge Corp., 214 S.W.3d at 702 (stating that “a premises owner, by requiring an independent contractor to follow its safety rules and regulations does not owe the independent contractor's employee a duty to ensure that the employee does nothing unsafe,” and that “the premises owner assumes only a narrow duty to ensure that its rules do not unreasonably increase the probability and severity of injury”); Union Carbide Corp. v. Smith, 313 $.W.3d 370, 377 (Tex.App—Houston [1% Dist.] 2009, pet denied)(reversing judgment for plaintiff and holding insufficient evidence of actual control where owner furnished materials and held safety meetings regarding the dangers of asbestos). 3 Johnston v Oiltanking Houston, L.P., 367 $.W.3d 412, at 415 (Tex.App.—Houston[14" Dist] 2012)(citing Hoechst-Celanese Corp. v. Mendez, 967 S.W.2d 354, 357-58 (Tex.1998)). 4 See Union Carbide Corp, v. Smith, 313 S.W.3d 370, 377 (Tex.App.—Houston [1 Dist.] 2009, pet. denied)(though the defendant admitted that the contractors “did not have discretion to deviate” from the defendant’s specifications, the court held that there was no actual control). 3 See Conoco v. Brown, No. 04-02-00336-CV, 2003 WL 22295302, at 1-2 (Tex.App.—San Antonio, Oct. 8, 2003, pet. denied) 5 Bright, 89 S.W.3d at 606 (Work-permit system merely gives the owner the right to order the work stopped, but does not establish control over the means and the method of the work) ’ Koch Ref. Co. v. Chapa, 11 8.W.3d 153, 159 (Tex.1999)(“a premises owner, merely by placing a safety employee on the work site, does not incur a duty to an independent contractor’s employees to intervene and ensure that they safely perform their work”) 8 Victoria Elec. Coop. v. Williams, 100 S.W.3d 323, 326 (Tex.App.—San Antonio 2002, pet denied) ° See also Eliott-Williams Co. v. Diaz, 9 S.W.3d 801, 804 (Tex.1999); Clayton W. Williams Jr, v. Olivo, 952 S.W.2d 523, 528 (Tex.1997); Johnston, 367 S.W.3d 412 at 415. G:\Woodard Matters\02190 - Markel\13501 - DCS Consulting\Pleadings\DCS All American MSJ.docx 13(Tex.2004). In summary, the facts demonstrate Jones and Borque were independent contractors of DCS, and DCS has no knowledge of the daily operations or the events leading up to the incident at issue. In addition, Mr. Peterson and Mr. Wooten confirmed that Kayden retained complete supervision and control over the work performed by Jones and Borque and the events leading to this incident. (3) DCS Did Not Contribute to the Proximate Cause of the Accident Regardless of whether there was a duty, which is denied, any actions of DCS, or even the consultants, were not a proximate cause (i.e. a substantial factor in causing) this incident. In addition, the conflicting theories presented by Plaintiff and the failure to determine an actual cause, demonstrates Plaintiffs entire proximate cause theory is based on speculation. (a) Plaintiffs Procedure for Making Repairs Demonstrates Any Actions of DCS or the Consultants were not the Proximate Cause Proximate cause requires Plaintiffs to prove (1) cause-in-fact, and (2) foreseeability. Western Invs. v. Urena, 162 S.W.3d 547, 551 (Tex.2005). Thus, the negligent act or omission must have been a substantial factor in bringing about the injury and whether the injury would have occurred without the act or omission. Del Lago Partners, v. Smith, 307 S.W.3d 762, 774 (Tex.2010). To prove foreseeability, the plaintiff must establish a person of ordinary intelligence should have anticipated the danger created by the negligence act or omission. Travis v. City of Mesquite, 830 S.W.2d 94, 98 (Tex.1992). ). Texas law states that cause in fact is not established where the defendant’s alleged negligent conduct “does no more that furnish a condition which makes the injuries possible.” Jd. at 799. “In other words, the conduct of the Defendant may be too attenuated from the resulting injuries to the Plaintiff to be a substantial factor in bringing about the harm.” Jd. at 798-99. Plaintiff was Kayden’s supervisor in charge of making the repairs to the power washer. G:\Woodard Matters\02190 - Markel\13501 - DCS Consulting\Pleadings\DCS All American MSJ.docx 14Plaintiffs procedures left him with the sole discretion as to whether to ask Borque what he did prior to contacting Plaintiff and informing him about the leak. Moreover, Plaintiffs procedures were simply to start the pressure up to determine what was wrong with it. In addition, the allegations against DCS and even the consultants are ridiculous when at the same time, Plaintiff contends the incident was actually caused by the female thread being enlarged by an UNKNOWN cause. Regardless, given Plaintiffs procedures of simply starting the power washer to see what happens, without questioning either DCS or the consultants, there is no basis for proximate cause against DCS or the third party independent contractor consultants. (b) Plaintiff’s Proximate Cause Theory is Based on Incomplete Analysis and Speculation It is well established that mere conjecture, guess or speculation will not support cause in fact. Excel Corp. v. Apodaca, 81 8.W.3d 817, 820 (Tex.2002). In this case, Plaintiff has designated an expert to testify on proximate cause. According to the generic designation, Robert Tolbert is expected to testify: the pump “contained manufacturing defects which proximately caused Plaintiff's injuries. Specifically, the pump’s female threaded holes were larger than specification for the male threaded plugs. This allowed the plug to be ejected when pressurized.” The designation further states Mr. Tolbert is reserving any opinions regarding over-pressurization until after further non-destructive and destructive testing was completed, and would issue a full report. The inspection and testing were performed months ago, and to this date, no report has been issued as to how the pump’s female threaded holes were larger than specification. See Exhibit B, Plaintiffs Designation of Experts. Thereafter, Wooten also confirmed the pressure washer at issue is the only one of the 12 received from Oilnex that leaked. Ex. E, pg. 59. He confirmed one of the pressure washers arrived in a state such that the unloader valve was broken off and Kayden had to modify the unloader G:\Woodard Matters\02190 - Markel\13501 - DCS Consulting\Pleadings\DCS All American MSJ.docx 15valves on it. Ex. E, pg. 53-55, 61. He acknowledges the unloader valve was installed backwards, which would cause a pressure back up. Ex. E, pg. 228-229. He recognized the valve cap manifold had expanded as a result of this incident. Ex. E, pg. 229. The Texas Supreme Court has recognized that professional expert witnesses are available to render an opinion on almost any theory, regardless of its merit. EL. du Pont de Nemours & Co. v, Robison, 923 S.W.2d 549, 553 (Tex. 1995). As such, Plaintiff has the burden of demonstrating the admissibility of the opinions, testimony and/or reports of its experts. See Gammill v. Jack Williams Chevrolet, 972 §.W.2d 713, 719 (Tex.1998). Consequently, the trial court must act as a “gatekeeper” to determine the qualifications of an expert and whether the expert’s opinion is admissible. Robison, 923 S.W.2d at 556. Thus, the Court is required to “rigorously examine the validity of the facts and assumptions on which the testimony is based, as well as the principles, research, and methodology underlying the expert’s conclusions and the manner in which the principles and methodologies are applied by the expert to reach the conclusions.” Whirlpool Corp. vy. Camacho, 298 S.W.3d 631, 637 (Tex.2009)(citing Exxon Pipeline Co. v. Zwahr, 88 S.W.3d 623, 629 (Tex.2002). Expert testimony is allowed only if it “will assist the trier of fact to understand the evidence or to determine a fact in issue.” TRE 702; K-Mart Corp. v. Honeycutt, 24 S.W.3d 357, 360-61 (Tex. 2000). The opinion must be reliable. Robinson, S.W.2d at 557; see TRE 702. It cannot be based on flawed reasoning and methodology. Merrel Dow Pharms., Inc. v. Havner, 953 S.W.24 706, 714 (Tex. 1997), The opinion must be relevant, i.e. it must be so “sufficiently tied to the facts of the case that it will aid the jury in resolving a factual dispute.” Robinson, 923 S.W.2d at 555- 56; see TRE 702. The opinion must be based on sufficient “underlying facts or data” under TRE 702 and TRE 703, TRE 705(c). In Kumho, the Court emphasized that the purpose of the G:\Woodard Matters\02190 - Markel\13501 - DCS Consulting\Pleadings\DCS All American MSJ.docx 16gatekeeping requirement is “to make certain that an expert, whether basing testimony upon professional studies or personal experience, employs in the courtroom the same level of intellectual rigor that characterizes the practice of an expert in the relevant field.” Kumho Tire Co., Ltd. v. Carmichael, 119 §.Ct.1171, 1176 (1999). In Robinson, the Court recognized there are many factors that a trial court may consider in making the threshold determination of admissibility under Rule 7021, which include, but are not ‘ limited to: (1) The extent to which the theory has been or can be tested; (2) The extent to which the technique relies upon the subjective interpretation of the expert; (3) Whether the theory has been subjected to peer review and/or publication; (4) The technique’s potential rater of error; (5) Whether the underlying theory or technique has been generally accepted as valid by the relevant scientific community, and (6) The non-judicial uses which have been made of the theory or technique. See Robison, 923 8.W.2d at 557. Furthermore, an expert who is trying to find cause of something should carefully consider alternative causes, and exclude other potential causes. Id, at 558-559. If an expert fails to rule out other causes of the damaged, his opinion is little more than speculation and must be excluded, Jd. at 559. Finally, if the Court finds that the expert’s opinion is admissible, the court has the additional duty to weigh the expert’s testimony against the danger of unfair prejudice, confusion of the issues or the possibility of misleading the jury. TRE 403. G:\Woodard Matters\02190 - Markel\13501 - DCS Consulting\Pleadings\DCS All American MSJ.docx 17Plaintiffs entire case is based on confusion and misleading the jury with conflicting, incomplete theories of causation. While Mr. Tolber states the pump’s female threaded holes were larger than specification for the male threaded plugs, Mr. Tolbert issues NO opinion on the cause of the condition. (1) Was it created at the time of manufacture, as none of the other holes in the pressure washer at issue, or the other eleven pressure washers purchased by Kayden had any evidence of the condition; (2) Alternatively, was the condition created by over pressurization, as Mr. Tolbert has rendered no opinions on over pressurization; (3) If the cause was over pressurization, how and what caused it: a. Was it created when Oilnex put the component parts of the pressure washer together? Did Oilnex perform any testing? b. Alternatively, was the condition created when a pressure washer was delivered to Kayden in a broken state, and Kayden made the repairs? c, Was the condition created by the installation of the valve backwards, and if so, who did it? d. Is this the same unit that Kayden repaired? e. Can any expert exclude the potential causes when Kayden destroyed and/or modified the evidence? As an expert, Mr. Tolbert admits that specialized testing had to be performed to evaluate the over pressurization theory, and consistent with Plaintiff’s claims, it would have been impossible for Plaintiff, DCS or its consultants to have expected or known the condition at the time of attempting the repairs. However, Mr. Tolbert’s analysis is void of any actual causation, and thus, unfounded as his opinions are not based on solid evidence, and he has not excluded the other potential causes. Consequently, any last minute supplemental opinions cannot defeat summary judgment as such were due long ago and cannot exclude the potential causes above. G:\Woodard Matters\02190 - Markel\13501 - DCS Consulting\Pleadings\DCS All American MSJ.docx. 18E. GROSS NEGLIGENCE Since a finding of negligence is a prerequisite to establishing gross negligence, the gross negligence claims must fail for the same reasons the negligence fail. See Shell Oil Co. v. Humphrey, 880 S.W.2d 170, 174 (Tex.App—Houston [14" Dist.] 1994, writ denied) (a finding or ordinary negligence is a prerequisite to a finding of gross negligence); see also Sonic System Intern, Inc. v Croix, 278 §.W.3d 366 (Tex.App—Houston [14 Dist. 2008), reh’g overruled, March 5, 2009 and tule 53.7(f) motion granted, (April 17, 2009). In addition, gross negligence requires “more than momentary thoughtlessness, inadvertence or error in judgment.” Lee Lewis Const., Inc. v. Harrison, 70 §.W.3d 778, 791 (Tex.2001)(italics in original, emphasis added). “Under the first, objective element, an extreme risk is not a remote possibility of injury or even a high probability of minor harm, but rather the likelihood of serious injury to the plaintiff.” Reeder vy. Wood County Energy, LLC, 395 $.W.789 (Tex.2012). “Under the subjective element, actual awareness means the defendant knew about the peril, but its acts or omissions demonstrated it did not care.” Mobil Corp. v. Ellender, 968 S.W.2d 917, 921 (Tex.1998). What separates ordinary negligence from gross negligence is the defendant’s state of mind; in other words, the plaintiff must show that the defendant knew about the peril, but his acts or omissions demonstrate that he did not care. City of Plano v. Homoky, 294 §.W.3d 809 (Tex.App.-Dallas 2009). The facts demonstrate that none of the actions of either the consultants or DCS constituted gross negligence as the sole decision maker as to whether to inquire into the work that was performed by Borque was Plaintiff, and with incomplete, contradicting theories as to how the incident actually occurred, there is no basis for a gross negligence claim against DCS or the consultants. G:\Woodard Matters\02190 - Markel\13501 - DCS Consulting\Pleadings\DCS All American MSJ.docx 19PRAYER WHEREFORE, PREMISES CONSIDERED, DCS requests that this Motion for Summary Judgment be GRANTED in its entirety and further pray for such other and further relief, whether general or special, whether at law or in equity, whether pled or unpled, to which they may be justly entitled. Respectfully submitted, BUSH & RAMIREZ, PLLC /s/ John K. (Ken) Woodard John K. (Ken) Woodard; TBN: 00791955 5615 Kirby Drive, Suite 900 Houston, Texas 77005 (713) 626-1555 (713) 622-8077 Facsimile kwoodard.atty@bushramirez.com ATTORNEY FOR DEFENDANT, DCS ALL AMERICAN, LLC G:\Woodard Matters\02190 - Markel\13501 - DCS Consulting\Pleadings\DCS All American MSJ.docx 20CERTIFICATE OF SERVICE Ihereby certify that a copy of the foregoing was served on all interested counsel of record in accordance with the applicable provisions of the TEXAS RULES OF CIVIL PROCEDURE on this the 7 day of October, 2019. Jason A. Itkin / Cary D. Itkin Ryan S. MacLeod / Jacob M. Karam Arnold & Itkin, LLP 6009 Memorial Drive Houston, Texas 77007 Randy L. Fairless . Timothy J. Nisbet Johanson & Fairless, L.L.P. 1456 First Colony Blvd. Sugar Land, Texas 77479 Steve J. Owens Reed Smith, L.L.P. 811 Main Street, Suite 1700 Houston, Texas 77002 Ms/{ John_K. (Ken) Woodard John K. (Ken) Woodard G:\Woodard Matters\02190 - Markel\13501 - DCS Consulting\Pleadings\DCS All American MSJ.docx 21