Court of Appeals of Texas, Dallas.

Santa L. MELENDREZ, Appellant,

v.

TUESDAY MORNING, INC., Appellee.

No. 05-98-01230-CV.

|

June 14, 2001.

Before JAMES, FITZGERALD, and FARRIS,¹ JJ.

OPINION

FARRIS.

*1 Santa L. Melendrez sued Tuesday Morning, Inc. (Tuesday Morning), her former employer and a non-subscriber to the Texas Workers’ Compensation Act, for carpal tunnel syndrome injuries sustained in the course of her employment. Melendrez appeals the take-nothing judgment, claiming the court erred by directing a verdict in favor of Tuesday Morning on the issue of proximate causation. Because there was evidence creating a fact issue on the essential elements of Melendrez’s claim, we reverse and remand.

This case involves the causal connection between Tuesday Morning’s alleged failure to provide appropriate equipment and safety instructions and Melendrez’s development of carpal tunnel syndrome injuries to her hands and wrists. To uphold the directed verdict in this case, we must determine that no evidence would support a finding of the essential element, proximate causation. See Szczepanik v. First S. Trust Co., 883 S.W.2d 648, 649 (Tex.1994). We consider all of the evidence in a light most favorable to the party against whom the verdict was instructed and disregard all contrary evidence and inferences; we give the losing party the benefit of all reasonable inferences created by the evidence. Id.

To prove negligence, Melendrez must prove that a breach of the employer’s duty proximately caused her damages. Leitch v. Hornsby, 935 S.W.2d 114, 118 (Tex.1996). Proximate cause consists of two elements: cause-in-fact and foreseeability. Doe v. Boys Clubs of Greater Dallas, Inc., 907 S.W.2d 472, 477 (Tex.1995). Cause-in-fact means that the defendant’s act or omission was a substantial factor in bringing about the injury which would not otherwise have occurred. Id. Cause-in-fact is not shown if the defendant’s negligence did no more than furnish a condition that made the injury possible. Union Pump Co. v. Allbritton, 898 S.W.2d 773, 776 (Tex.1995). The second element of proximate cause, foreseeability, requires that a person of ordinary intelligence should have anticipated the danger created by the negligent act or omission. Doe, 907 S.W.2d at 478.

These elements cannot be established by mere conjecture, guess, or speculation. McClure v. Allied Stores of Tex., Inc., 608 S.W .2d 901, 903 (Tex.1980). However, like any other ultimate fact, proximate cause may be established by direct or circumstantial evidence and the reasonable inferences that may be drawn from that evidence. Id. at 903-04. The trier of fact is usually allowed to decide the issue of causation in cases: (1) when general experience and common sense will enable a layman fairly to determine the causal relationship between the event and the condition; (2) when scientific principles, usually proved by expert testimony, establish a traceable chain of causation from the condition back to the event; or (3) when probable causal relationship is shown by expert testimony. Lenger v. Physician’s Gen. Hosp., Inc., 455 S.W.2d 703, 706 (Tex.1970) This does not mean that the court, in determining whether the issue should be submitted to the jury, must consider only evidence of one type to the exclusion of that falling into the other categories. Id.

*2 Melendrez’s medical expert, Dr. Wilcox, described carpal tunnel syndrome and its causes. In his opinion, Melendrez’s carpal tunnel problems were work-related, due to the repetitive nature of her data entry responsibilities. Tuesday Morning contends testimony that Melendrez’s injuries were work-related is insufficient because it is not evidence that the lack of proper equipment or training proximately caused the injuries. Tuesday Morning points out that Wilcox also testified that preventative precautions will not necessarily prevent carpal tunnel syndrome. Melendrez contends the evidence creates a fact issue on causation, and that further expert testimony is not required because the link between ergonomically correct workstations and carpal tunnel syndrome is not beyond the common understanding or general experience of laymen.

Tuesday Morning contends Melendrez’s arguments are foreclosed by the Texas Supreme Court’s opinion in Leitch v. Hornsby. See Leitch, 935 S.W.2d at 119. In Leitch, an injured employee brought a non-subscriber negligence action against his employer for damages suffered when he lifted a cable reel and injured his back. Id. at 116. The employee alleged his employer was negligent in not providing him lifting equipment or a lifting belt. Id. At 119. The employee’s only expert testified that lifting the cable reel caused the employee’s back injury, but the expert expressly declined to say whether the injury could have been prevented by use of proper equipment. Id. The supreme court held that expert testimony was necessary to establish causation because, in the court’s opinion, the question of whether proper lifting equipment would have prevented the injury was not a question that could be answered by general experience. Id.² In the absence of other competent expert testimony establishing causation, the court held there was no probative evidence to support a causation finding. Id.

The facts in Leitch are distinguishable from the present case. In Leitch, the plaintiff’s doctor declined to express any opinion concerning whether there was a causal connection between the lack of proper equipment and plaintiff’s injuries. In this case, Wilcox testified about the causes of carpal tunnel syndrome. Although Wilcox could not state with medical certainty that proper equipment would have eliminated the possibility of carpal tunnel syndrome, he testified that the chances of getting carpal tunnel syndrome can be reduced by proper ergonomic measures.

Moreover, in the present case there is other evidence concerning the causal connection between poorly designed workstations and repetitive stress injuries such as carpal tunnel syndrome. Jack Ternan, the security safety manager for Tuesday Morning, testified that in 1993, after another Tuesday Morning employee sustained carpal tunnel syndrome injuries, Tuesday Morning employed Russell Peyton, a certified safety professional and consultant. Peyton conducted a safety survey of the Tuesday Morning facilities.³ Peyton testified that in 1991, he had offered to evaluate the Tuesday Morning work site from an ergonomics standpoint to address potential problems with cumulative trauma or repetitive type injuries. When asked about the ergonomic problems associated with poor positioning of keyboards, Peyton testified that a guideline has been published stating wrists should be positioned in a neutral position. Peyton’s testimony presented at least circumstantial evidence that ergonomic design of workstations can be a proximate cause of carpal tunnel syndrome injuries. In addition, the jury was shown a training video that demonstrated the relationship between poor equipment positioning and injuries to the hands and wrists.

*3 In this case, there was both direct and circumstantial evidence that poor ergonomic design of work stations increases the risk of carpal tunnel syndrome, and the evidence established a traceable chain of causation from Melendrez’s condition back to the ergonomic condition of her workstation. See Lenger, 455 S.W.2d at 706. The plaintiff is not required to establish causation in terms of medical certainty, nor is he required to exclude every other reasonable hypothesis. See Kramer v. Lewisville Mem’l Hosp., 858 S.W.2d 397, 400 (Tex.1993). We conclude the jury was entitled to determine whether it is more likely than not that Tuesday’s Morning’s alleged negligence was a substantial factor in bringing about an injury to Melendrez that would not otherwise have occurred. We resolve Melendrez’s sole issue in her favor. We reverse the trial court’s judgment and remand the cause to the trial court for further proceedings.

	Footnotes
1		The Honorable David F. Farris, Retired Justice, Second District Court of Appeals, Fort Worth, Texas, sitting by assignment.
2		In Leitch, the employee had a pre-existing back problem. Medical testimony was necessary because a lay person would not be able to ascertain whether the use of lifting equipment would have prevented the aggravation of the employee’s pre-existing condition.
3		Melendrez worked for Tuesday Morning from 1991 until 1995. She first experienced symptoms of carpal tunnel syndrome in October 1994.