Dupree v. Valero Energy Corp

*Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
128 U.S.C. § 1332(a)(1).
United States Court of Appeals
Fifth Circuit
F I L E D
August 17, 2005
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 05-20151
Summary Calendar
DWYN L. DUPREE
Plaintiff-Appellant,
versus
VALERO ENERGY CORPORATION
Defendant-Appellee.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:03-CV-4986
--------------------
Before JOLLY, DAVIS, and OWEN, Circuit Judges.
PER CURIAM:*
In this civil diversity case,1 Dwyn L. Dupree, a former
employee at a gas station owned by defendant Valero Energy
Corporation’s former subsidiary, appeals the district court’s
summary judgment in Valero’s favor on Dupree’s negligence claim.
Dupree alleges that workplace exposure to gasoline fumes with the
chemical additive t-amyl methyl ether (TAME) exacerbated his
preexisting medical conditions — gastro esophageal reflux disease

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(GERD), hiatal hernia, and hemorrhoids — and caused him to develop
bilateral maxillary sinus disease.
Valero moved for summary judgment, arguing that there is no
evidence that Dupree’s alleged exposure to gasoline fumes and TAME
caused his injuries. In addition to the pleadings and other
evidence on file, Valero submitted evidence that included Dupree’s
deposition testimony, his medical records, and expert testimony
that Dupree’s alleged exposure to gasoline fumes and TAME did not
cause his injuries. Valero also submitted a “Summary Report” and
other documents that discuss the components of gasoline and TAME in
general and the possible effects of exposure, including workplace
exposure to service station workers. The “Summary Report” states
that “the reported health effects of gasoline inhalation include
intoxication, headaches, blurred vision, dizziness, nausea, eye
nose, and throat irritation, and dizziness and mild anesthesia.”
The report also indicates that TAME can be absorbed dermally and
may cause central nervous system depression. There is no mention
of any injuries similar to those alleged to have occurred in this
case.
Dupree did not file an opposition to the motion for summary
judgment or any controverting evidence. Instead, he contends the
evidence Valero submitted in support of its motion raises a genuine
issue of material fact on causation. Specifically, Dupree argues
that the “Summary Report” along with his medical records proves
that exposure to gasoline fumes and TAME caused his injuries.

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2Allstate Ins. Co. v. Disability Servs. of the Southwest,
Inc., 400 F.3d 260, 262-63 (5th Cir. 2005).
3FED. R. CIV. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317,
322 (1986) (“[T]he plain language of Rule 56(c) mandates the entry
of summary judgment . . . against a party who fails to make a
showing sufficient to establish the existence of an element
essential to that party’s case, and on which that party will bear
the burden of proof at trial.”).
4See Erie R.R. Co. v. Tompkins, 304 U.S. 64 (1938); Hamburger
v. State Farm Mut. Auto. Ins. Co., 361 F.3d 875, 884 (5th Cir.
2004) (“‘[W]e apply federal standards of review to assess “the
Dupree provided no expert witness evidence, and in fact, withdrew
his expert witness designations, maintaining that expert testimony
is not required in this case because the hazards associated with
gasoline fumes is common knowledge.
The district court granted Valero’s motion for summary
judgment and dismissed Dupree’s claims with prejudice. The
district court concluded that expert testimony was required to
establish a causal connection, but Dupree produced no expert
witness who could link his medical conditions to gasoline or TAME
exposure. The court also determined that Dupree’s medical records
and the documents discussing gasoline and TAME components and
exposure risks did not raise a genuine issue of material fact on
the causation issue.
We review a summary judgment de novo, applying the same
standard applied by the district court.2 Summary judgment is
proper if no genuine issue of material fact exists and the moving
party is entitled to judgment as a matter of law.3 The parties
agree that Texas substantive law applies in this diversity case.4

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sufficiency or insufficiency of the evidence in relation to the
verdict,” but in doing so we refer to state law for “the kind of
evidence that must be produced to support a verdict.”’” (quoting
Ayres v. Sears, Roebuck & Co., 789 F.2d 1173, 1175 (5th Cir.
1986))); Thrash v. State Farm Fire & Cas. Co., 992 F.2d 1354, 1356
(5th Cir. 1993) (“In a diversity case state law provides the
elements of the plaintiff's case.” (citation omitted)).
5On appeal, Dupree also asserts that Valero is liable as a
manufacturer of TAME, but these claims are not supported by a fair
reading of the pleadings in this case. Moreover, because causation
is also an essential element of a products liability claim, our
analysis of Dupree’s negligence claim is dispositive of his
products liability claim.
There is no expert testimony supporting Dupree’s claims,
Dupree has disclaimed any intent to rely on expert testimony, and
the deadline to designate expert witnesses had passed when the
district court ruled on the summary judgment motion. Moreover,
there is nothing in the “Summary Report,” Dupree’s medical records,
or any other document in the record that indicates a link between
Dupree’s alleged chemical exposure and his alleged injuries. The
medical records do not in any way state or demonstrate, even by
implication, that Dupree’s alleged injuries were caused by gasoline
exposure. There is no evidence in the record that Dupree’s alleged
injuries were caused by exposure to gasoline fumes or TAME. On the
record before the court, such a conclusion would be pure
speculation. Because there is no evidence of an essential element
of Dupree’s claims, Valero is entitled to judgment as a matter of
law.5
In passing, Dupree also asserts that the district court abused
its discretion by granting Valero’s motion to quash Dupree’s

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6See FED. R. APP. P. 28(a)(9) (requiring appellant’s brief to
include “the argument, which must contain . . . appellant’s
contentions and the reasons for them, with citations to the
authorities and parts of the record on which the appellant
relies”); see also L&A Contracting Co. v. S. Concrete Servs. Inc.,
17 F.3d 106, 113 (5th Cir. 1994) (holding an argument waived for
failure to cite authority).
subpoena requesting a certified copy of Valero’s Material Safety
Data Sheets for TAME. Because Dupree offers no supporting
argument, analysis, or authority, the argument is waived.6
For the foregoing reasons, the judgment is AFFIRMED.

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