NUMBER 13-25-00368-CV
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI – EDINBURG
YODER FORD, INC., Appellant,
v.
ESMERALDA ESPINOSA, Appellee.
ON APPEAL FROM THE 92ND DISTRICT COURT
OF HIDALGO COUNTY, TEXAS
MEMORANDUM OPINION
Before Justices Silva, West, and Cron
Memorandum Opinion by Justice Silva
This is an appeal from an order denying a motion to dismiss claims pursuant to
section 148.003(f) of the Texas Pandemic Liability Protection Act (PLPA). See TEX. CIV.
PRAC. & REM. CODE §§ 51.014(a)(16), 148.003(f). Appellee Esmeralda Espinosa sued
appellant Yoder Ford, Inc. (Yoder) following the death of her husband, Edgar Espinosa, 1
Yoder’s former employee. In two issues, which we reorganize and construe as one, Yoder
argues that the trial court abused its discretion in denying its motion to dismiss all of
Esmeralda’s claims under section 148.003(f) for failure to provide a sufficient expert
report. See id. We reverse, render, and remand for further proceedings.
I. BACKGROUND
On August 4, 2022, Esmeralda filed her original petition against Yoder asserting
negligence and wrongful death claims. Esmeralda pleaded that Edgar worked for Yoder
at their “Hacienda Ford” dealership in Edinburg during the onset of the COVID-19
pandemic, that Yoder remained open for business “[a]t all times during the pandemic and
especially after several government authorities[’] orders to shut down non-essential
businesses,” and that several of Yoder’s employees got “sick at work and spread[] the
disease to others” during this time. According to the petition, Edgar began exhibiting
symptoms of COVID-19 on or about July 17, 2020, and received treatment at a local
urgent care facility with instructions to return in two days if the symptoms worsened.
However, Edgar was admitted to the hospital on or about July 19, 2020, and remained
there until he passed away on August 4, 2020.
Esmeralda alleged that Yoder violated several governmental orders and failed to:
“warn or remediate a condition that [Yoder] knew was likely to result in the exposure of
an individual to the disease”; “implement or comply with government-promulgated
standards, guidance, or protocols intended to lower the likelihood of exposure to the
1 Because Esmeralda and Edgar share a surname, we will refer to them by their first names.
2
disease”; “conduct their business activities in a safe and reasonable manner . . . in that it
unnecessar[ily] exposed its employees to a greater risk of contracting COVID[-]19”;
“discover and remove employees that may have been exhibiting symptoms of COVID[-]19
within a reasonable time before they exposed other employees”; “provide the appropriate
personal protective equipment (PPE) to its employees”; “implement the necessary and
proper procedures needed . . . to protect its employees from exposure”; “train employees
in proper safety, security and protection procedures”; “properly sanitize or otherwise
disinfect the workplace”; and “perform temperature checks on employees.” Esmeralda
also pleaded that Yoder “failed to adopt any federal, state, or local authority guidance” by
“not mandating and or enforcing”: “the use of masks and PPE at the worksite”; “social
distancing at the workplace”; “that worker[s] who were feeling ill report their symptoms to
their supervisors”; and “that employee[s] who were feeling ill stay home and selfquarantine.” Esmeralda sought damages, exemplary damages, expert’s fees, and
attorney’s fees.
On August 18, 2022, Yoder filed its answer generally denying Emeralda’s claims.
On December 16, 2022, Esmeralda served Yoder with an expert report, authored by Dr.
Lawrence S. Mayer. On December 22, 2022, Yoder objected to the sufficiency of the
expert report, asserting that the report lacked a factual and scientific basis for Dr. Mayer’s
opinions, and sought dismissal of the case. See id. § 148.003(d), (f). Esmeralda thereafter
responded to Yoder’s objections and motion to dismiss. The trial court held a hearing on
January 17, 2023, and denied Yoder’s motion to dismiss. On January 27, 2023, Yoder
appealed the trial court’s denial of its motion to dismiss pursuant to Texas Civil Practice
and Remedies Code section 148.003(f), the PLPA. See Yoder Ford, Inc. v. Espinosa, No.
3
13-23-00046-CV, 2024 WL 5272301, at *1 (Tex. App.—Corpus Christi–Edinburg Dec. 30,
2024, no pet.) (mem. op.).
While the appeal was pending, Esmeralda filed a proposed amended order which
would allow her to amend her expert report. Yoder objected to the filing without a written
motion. On March 17, 2023, the trial court amended its previous order to allow Esmeralda
to file an amended expert report, finding that “[Esmeralda’s expert report could benefit
from providing further factual basis to alleviate [Yoder’s] concerns and fully comply with
the statute.” See TEX. R. APP. P. 29.5. The amended order gave Esmeralda thirty days to
amend her expert report to comply with the PLPA. On March 23, 2023, this Court granted
Yoder’s emergency stay of all trial court proceedings. On March 29, 2023, Esmeralda
filed a “Motion to Remand” requesting that this Court “abstain[] from hearing this cause
of action and remand[ ]the same” to the trial court due to the March 17 amended order,
which this Court construed as a motion to dismiss the appeal. Yoder responded, seeking
review of the trial court’s January 17 order, arguing that the March 17 amended order did
not vacate the January 17 order and that Yoder is entitled to an interlocutory appeal as
to the original order. On December 30, 2024, we concluded that the trial court’s March 17
amended order granted the relief requested by Yoder by ruling that the expert report is
deficient and dismissed the appeal. See Yoder Ford, Inc., 2024 WL 5272301, at *1–2.
On April 16, 2023, during pendency of the first appeal, Esmeralda served an
amended report spanning twenty-three pages. Dr. Mayer’s amended report indicated that
his opinions were “based on his education, training, experience,” and his review of several
documents, including: “Texas Civil Practices and Remedies Code [s]ection 148.003”;
“Medical records of Edgar”; “Death Certificate of Edgar”; “Statement of Esmeralda”;
4
“Statement of Edgar Oliv[i]er Espinosa,” Edgar’s son; “Statement of Deborah Espinosa,”
Edgar’s daughter; “Statement of Sasha Espinosa,” Edgar’s daughter; “Hidalgo County
Orders issued in response to [COVID-19] Pandemic”; “Texas Governor Greg Abbott[’s]
Proclamation and subsequent executive orders issued in response to the [COVID-19]
Pandemic”; “[Center for Disease Control (CDC)] guidelines or recommendations that
were in effect during the relevant time period”; and “[Occupational Safety and Health
Administration (OSHA)] rules and regulations in effect during the relevant time applicable
to [Yoder].” The copy of the amended report in the record does not include any attached
exhibits, including any of the purported statements by Esmeralda, Deborah, Olivier, and
Sasha.
Dr. Mayer found that “medical records indicate that [Edgar] was treated for
[COVID-19] symptoms at a hospital shortly before his death,” “[t]he death certificate lists
[COVID-19] as a contributing cause of death,” and “the temporal proximity between
[Edgar’s] hospitalization and his employment combined with his job duties that required
him to interact with multiple employees and customers on a daily basis, suggest that the
workplace was a significant contributing factor to his contraction of the disease.”
Dr. Mayer found that, based on Deborah’s statement, Edgar “worked as a car
washer and detailer at [Yoder], and he also watered plants and picked up debris from the
property. While these tasks may be important for the functioning of the dealership, they
do not meet the criteria of essential work as defined by the CDC during a pandemic.”
Deborah’s statement also mentioned that Edgar “was not provided with gloves or masks
at work, and he had to obtain masks from home,” which “raise[d] concerns about [Yoder’s]
compliance with government-promulgated standards, guidance, or protocols intended to
5
lower the likelihood of exposure to the disease, which were applicable to [Yoder].”
According to Dr. Mayer, the CDC guidelines at the time Edgar began exhibiting symptoms
of COVID-19 recommended the use of various PPE, including face masks, N95
respirators, eye protection, gloves, and gowns. Deborah’s statement also indicated that
“other employees were sick and still working,” which indicated to Dr. Mayer that “[Yoder]
failed to implement proper protocols to identify, report, and enforce measures related to
COVID-19.” In this regard, Dr. Mayer stated that under CDC guidelines,
employers are expected to implement measures to prevent the spread of
COVID-19 in the workplace, including identifying and isolating sick
employees, encouraging employees to stay home when they are sick, and
implementing policies and procedures for employees to report symptoms or
exposures related to COVID-19. Additionally, employers are expected to
provide training to employees on these protocols and enforce them
consistently to ensure the health and safety of their workforce.
Similarly, Dr. Mayer found that Olivier’s statement indicated that Yoder “was not
providing the proper PPE to its employees,” that “several other employees were getting
sick[,] and [Yoder] was not sanitizing the workplace properly.” Based on Olivier’s
statement, Dr. Mayer stated “it is clear that [Yoder] failed to implement or comply with
governmental-promulgated standards, guidance, or protocols intended to lower the
likelihood of exposure to the disease, and failed to warn the employee of or remediate a
condition that the employer knew was likely to result in the exposure of the employee to
[COVID-19].” In this regard, Dr. Mayer stated that CDC guidelines recommended frequent
cleaning and disinfecting of “frequently-touched surfaces, such as doorknobs, light
switches, countertops, and shared equipment, at least daily or more often if possible”; the
use of Environmental Protection Agency (EPA)-approved disinfectants; “proper
ventilation in indoor spaces”; “frequent handwashing with soap and water for at least 20
6
seconds, or using hand sanitizer with at least 60% alcohol content when soap and water
are not available”; and the use of PPE. Dr. Mayer further found that “[t]he repeated
occurrence of employees getting sick at work indicates a failure by [Yoder] to implement
adequate sanitization measures in the workplace,” which “could include insufficient
cleaning and disinfection of frequently-touched surfaces, inadequate ventilation, and a
lack of proper hand hygiene protocols, all of which may contribute to the spread of
infectious diseases, including COVID-19.” Dr. Mayer also found that Olivier’s statement:
“highlights [Yoder’s] failure to enforce preventive measures[,]” “such as wearing masks,
maintaining social distancing, and providing adequate PPE to employees, which could
have helped to reduce the risk of transmission of the virus in the workplace”;
demonstrates Yoder’s “disregard for the health and safety of employees and a failure to
comply with relevant guidelines and regulations”; “suggests that [Yoder] failed to respond
to known cases”; and “reflects [Yoder’s] lack of communication and employee education
regarding [COVID-19].”
Dr. Mayer also found that, based on Esmeralda’s statement,
[Esmeralda], [Edgar], and their children took various precautions at home,
including wearing masks, gloves, and disinfecting regularly. Despite these
measures, [Edgar] fell ill with COVID-19 after working at [Yoder], where he
mentioned that other coworkers were also sick and not sent home. This
suggests that [Edgar] likely contracted the disease at work, as there was no
known exposure to COVID-19 outside of the workplace, and no one at home
was sick or displaying any symptoms.
In addition, Dr. Mayer further found that, based on Esmeralda’s statement, Edgar “was
taken to the ER by his family and the illness was reported to his supervisor via text” and
“[t]hey did not receive a response.” Dr. Mayer found that the lack of a response “suggests
that [Yoder] may not have been complying with OSHA[’]s May 19, 2020 Revised
7
Enforcement Guidance for Recording Cases of Coronavirus Disease,” which “required
employers to increase in person inspections at all types of workplaces and required
employers to record cases of coronavirus and make reasonable efforts to determine if
each case is work related.”
Dr. Mayer found that Sasha’s statement
suggests that [Yoder] failed to notice and address [Edgar’s] condition when
he came home sweating and with chills, indicating possible illness. As per
[Sasha’s] statement, [Edgar] mentioned to them that workers at his job were
sick and not wearing gloves or masks, and they were not sent home. This
indicates that [Yoder] failed to adequately monitor the health of [its]
employees and take necessary preventive measures to protect other
employees from potential exposure to the disease.
[Sasha’s] statement also mentions that [Edgar] would get masks from home
as the job did not provide masks or gloves to the employees during that
time. [Yoder] had a responsibility to provide adequate [PPE] to their
employees as per government guidelines and protocols to minimize the risk
of exposure to the disease in the workplace. The failure to provide PPE
shows a lack of compliance with established standards, which may have
increased the risk of exposure for [Edgar] and other employees.
[Sasha’s] statement mentions that [Edgar] provided a doctor’s excuse for
being sick, but the person in charge of his job position did not respond to it.
This indicates that [Yoder] knowingly failed to remediate a condition that
they knew was likely to result in the exposure of an individual to the disease.
[Yoder] had a duty to respond to [Edgar’s] sick leave excuse in a timely and
appropriate manner and take necessary actions to prevent the spread of
the disease in the workplace. The failure to respond to the sick leave excuse
shows a lack of proper remediation measures by [Yoder], which may have
increased the risk of exposure for [Edgar] and other employees.
Dr. Mayer opined:
Based on the information provided to me and my review of the additional
records . . ., it is my expert opinion that [Yoder] knowingly failed to warn
[Edgar] of or remediate a condition that [Yoder] knew was likely to result in
exposure to [COVID-19]. [Yoder] had control over the workplace
environment, knew that the employees were more likely than not to come
into contact with the virus, and had a reasonable opportunity and ability to
8
remediate the condition or warn [Edgar] of the condition before he came
into contact with the virus.
It is also my expert opinion that [Yoder] knowingly failed to implement or
comply with the government[-]promulgated standards, guidance, or
protocols intended to lower the likelihood of exposure to the disease that
were applicable to [Yoder’s] business. [Yoder] had a reasonable opportunity
and ability to implement or comply with the standards, guidance, or
protocols and either refused to implement or comply with them or acted with
flagrant disregard of the standards, guidance, or protocols. The standards,
guidance, or protocols that [Yoder] failed to implement or comply with did
not in any way conflict with those that they did implement.
It is my expert opinion that reliable scientific evidence shows that the failure
to warn the individual of the condition, remediate the condition, or implement
or comply with the government[-]promulgated standards, guidance, or
protocols was the cause in fact of [Edgar] contracting the disease.
Elsewhere in his amended report, Dr. Mayer explained, among other things, that
“SARS-CoV-2” is the virus that causes COVID-19, that “COVID-19 is quite contagious”
and is transmitted through “direct physical contact between an uninfected person and [a]
person who is infected with [COVID-19],” “when droplets, large or small, are expelled from
an infected host and reach a vulnerable individual,” and when smaller droplets called
aerosols “remain suspended in the air and reach a vulnerable individual.” He further
explained that due to COVID-19’s properties, “during peak infectivity, it is reasonable and
prudent to operate on the assumption that all of the air and surfaces that the host
individual contacts are damaged and infectious.” Dr. Mayer also explained that “[n]ot all
individuals infected by SARS-CoV-2 display symptoms of COVID-19,” that such
“asymptomatic carriers are unaware of being infected . . . are far more likely to infect
others,” and “[e]vidence suggests that at least 30% of people infected with SARS-CoV-2
are asymptomatic.” Dr. Mayer further explained “[t]here is a lapse of time between the
9
infection and the display of symptoms,” and “[i]nfected individuals can be contagious
during this pre-symptomatic period.”
After mandate issued for the first appeal, Yoder filed “Defendants’ Objection to
[Esmeralda’s] Amended Report and Motion to Dismiss” under the PLPA on January 21,
2025, again seeking the dismissal of Esmeralda’s claims with prejudice and the award of
its attorney’s fees and costs of court. See TEX. CIV. PRAC. & REM. CODE § 148.003(f). In
its motion, Yoder argued, among other things, that Dr. Mayer’s amended report “once
again, fails to sufficiently provide ‘factual and scientific basis’ for [his] opinion” and was
conclusory. According to Yoder, Dr. Mayer’s report “relie[d] simply on personal affidavits
of various family members to form his expert opinion,” and “simply states that [Yoder] did
not practice mitigation procedures without setting out what such mitigation procedures
are, or should have been, and what is the scientific basis for requiring such mitigation
procedures, and how they may have prevented exposure to [Edgar].” Yoder averred that
“Dr. Mayer has assumed [Yoder] was ordered to close at the time [Edgar] contracted
COVID-19” and that he “did not indicate which . . . health protocols were violated.” Yoder
further argued that the amended report did “not account for, or address, the fact that
[Edgar] was a porter, and his job duties included watering plants, keeping the outside
areas of the premises clean, and cleaning vehicles.” Yoder attached several exhibits to
its motion, including Dr. Mayer’s amended report, Governor Abbott’s June 3, 2020,
Executive Order No. GA-26, a “Minimum Standard Health Protocols” pamphlet,
“Hacienda Guidelines on COVID-19,” a “COVID-19 Inspection Form” issued by the City
of Edinburg, and an affidavit by Alfredo Moreno Jr., Edgar’s supervisor.
10
Esmeralda filed a response to Yoder’s second motion to dismiss. On April 15,
2025, the trial court conducted a hearing on Yoder’s second motion to dismiss. After
hearing arguments by the parties, the trial court took the matter under advisement. On
April 28, 2025, Yoder filed a reply to Esmeralda’s response. On June 24, 2025, the trial
court signed its order denying Yoder’s second motion to dismiss. Yoder did not request
findings of fact or conclusions of law. This interlocutory appeal followed. See id.
§§ 51.014(a)(16), 148.003(f).
II. DISCUSSION
Yoder argues that Dr. Mayer’s amended report does not represent an objective,
good faith effort to comply with the definition of an expert report because it “fails to provide
a factual and scientific basis for the assertion that [Yoder’s] failure to act in one of the
ways set out in [section] 148.003(a)(1) actually caused [Edgar] to contract a pandemic
disease.” According to Yoder, the trial court erred in determining that the amended report
was sufficient and denying its second motion to dismiss. 2
A. Standard of Review and Applicable Law
We review a trial court’s ruling on a motion to dismiss challenging the adequacy of
an expert report under the PLPA for an abuse of discretion. Gonzalez v. CS Auto, LTD,
710 S.W.3d 903, 913 (Tex. App.—Corpus Christi–Edinburg 2025, no pet.). Because the
PLPA’s expert report requirement is similar to the Texas Medical Liability Act’s expert
report requirement found in section 74.351 of the Civil Practice and Remedies Code, we
2 Esmeralda did not file an appellate brief.
11
consider caselaw addressing that section to the extent it is relevant to the issues raised
in this case. See id.; TEX. CIV. PRAC. & REM. CODE § 74.351.
The PLPA “provides civil liability protections to . . . corporations for claims that an
individual suffered injury or death caused by exposing the individual to a pandemic
disease during a pandemic emergency,” “unless claimants satisfy two requirements.”
Gonzalez, 710 S.W.3d at 913 (citation modified); see TEX. CIV. PRAC. & REM. CODE
§ 148.003(a).
First, the statute requires claimants to demonstrate that the defendant
“knowingly failed” to do one of two things: (1) warn of or remediate a
condition that it knew was likely to result in exposure to the disease, or
(2) “comply with government-promulgated standards, guidance, or
protocols intended to lower the likelihood of exposure.” Second, claimants
must establish “reliable scientific evidence,” which “shows the
failure . . . was the cause in fact of the individual contracting the disease.”
Gonzalez, 710 S.W.3d at 913 (quoting Johnson v. Tyson Foods, Inc., No. 22-10171, 2023
WL 2645553, at *2 (5th Cir. 2023) (per curiam) (internal citations omitted)); see TEX. CIV.
PRAC. & REM. CODE § 148.003(a)(1)(A)–(B), (2).
The PLPA requires that a claimant must serve on the defendant “a report authored
by at least one qualified expert that provides a factual and scientific basis for the assertion
that the defendant’s failure to act caused the individual to contract a pandemic disease”
and “a curriculum vitae for each expert whose opinion is included in the report.” TEX. CIV.
PRAC. & REM. CODE § 148.003(b)(1)–(2). If a claimant fails to timely serve “a sufficient
report . . ., the court, on the defendant’s motion, shall enter an order: (1) dismissing the
claim with respect to the defendant, with prejudice; and (2) awarding to the defendant
reasonable attorney’s fees and costs of court incurred by the defendant in the action.” Id.
§ 148.003(f)(1)–(2).
12
If an expert report is timely served on the defendant, but the trial court determines
that the report “does not represent an objective, good faith effort to provide a factual and
scientific basis for the assertion that the defendant’s failure to act caused the injured
individual to contract a pandemic disease,” the trial court has the discretion to grant the
claimant “on one occasion, a 30-day period to cure any deficiency in the report,” as
previously occurred here. Id. §148.003(e).
The PLPA’s causation element “requires that the expert explain ‘how and why’ the
alleged failure to act by the defendant caused the individual to contract” a pandemic
disease, including COVID-19. Gonzalez, 710 S.W.3d at 914 (quoting Abshire v. Christus
Health Se. Tex., 563 S.W.3d 219, 224 (Tex. 2018) (per curiam)). Though “cause” is not
defined under section 148.003, we have previously adopted the Supreme Court of
Texas’s “proximate cause” standard with respect to the PLPA. See id. at 915.
Proximate cause has two components: (1) foreseeability and (2) cause-infact. For a negligent act or omission to have been a cause-in-fact of the
harm, the act or omission must have been a substantial factor in bringing
about the harm, and absent the act or omission—i.e., but for the act or
omission—the harm would not have occurred.
This is the causal relationship between breach and injury that an expert
report must explain to satisfy the Act.
Columbia Valley Healthcare Sys., L.P. v. Zamarripa, 526 S.W.3d 453, 460 (Tex. 2017)
(citation omitted). A report under the PLPA “is sufficient if it makes a good-faith effort to
explain, factually, how proximate cause is going to be proven.” Gonzalez, 710 S.W.3d at
914 (citation modified). “[W]ithout factual explanations, the reports are nothing more than
the ipse dixit of the experts, which . . . are clearly insufficient.” Id. at 914–15 (quoting
Zamarripa, 526 S.W.3d at 461); see also Abshire, 563 S.W.3d at 224 (“A conclusory
13
statement of causation is inadequate; instead, the expert must explain the basis of his
statements and link conclusions to specific facts.”). We limit our review to the four corners
of the amended report. Gonzalez, 710 S.W.3d at 915 (citing Am. Transitional Care Ctrs.
of Tex. v. Palacios, 46 S.W.3d 873, 878–79 (Tex. 2001)) (applying Palacios’s “four
corners” analysis to section 148.003(b)(1)).
B. Adequacy of Dr. Mayer’s Amended Expert Report
Yoder lodges several arguments challenging the sufficiency of Dr. Mayer’s
amended report. We first address Yoder’s argument that the amended report was based
on “the unverified, written statements of [Esmeralda, Deborah, Olivier, and Sasha],” which
“constitute hearsay and incompetent and unreliable evidence.” According to Yoder, a
report is “conclusory and baseless” if “based on unreliable, unauthenticated information.”
However, Yoder cites no authorities holding that an expert who is preparing a report as
required by section 148.003 may not review or reference documents or statements that
would be inadmissible as evidence at trial, and we have found none. See TEX. CIV. PRAC.
& REM. CODE § 148.003; Gannon v. Wyche, 321 S.W.3d 881, 890–91 (Tex. App.—
Houston [14th Dist.] 2010, pet. denied) (citing Hiner v. Gaspard, No. 09-07-240 CV, 2007
WL 2493471, at *3 (Tex. App.—Beaumont Sept. 6, 2007, pet. denied) (mem. op));
Comstock v. Clark, No. 09-07-300-CV, 2007 WL 3101992, at *1 (Tex. App.—Beaumont
Oct. 25, 2007, pet. denied) (mem. op.) (noting the appellants cited no authority for the
proposition that an expert may not rely on information that may not be admissible at trial
in formulating his opinions for purposes of Chapter 74’s expert-report requirement, and
observing that the Beaumont Court of Appeals had “recognized that a trial court’s
determination of the adequacy of the plaintiff’s expert reports is a preliminary proceeding
14
in which the rules of evidence may not apply to either the expert reports or the evidence
the experts reviewed in preparing their reports”).
In addition, the Supreme Court of Texas has reiterated that an expert report
pursuant to section 74.351 need not “meet the same requirements as the evidence
offered in a summary-judgment proceeding or at trial.” Miller v. JSC Lake Highlands
Operations, LP, 536 S.W.3d 510, 517 (Tex. 2017) (per curiam) (quoting Scoresby v.
Santillan, 346 S.W.3d 546, 556 n.60 (Tex. 2011)); see also Rice v. McLaren, 554 S.W.3d
195, 206 (Tex. App.—Houston [14th Dist.] 2018, no pet.) (concluding that the mere fact
that an expert report “referenced a hearsay statement . . . does not in itself make the
report inadequate”). We see no reason to deviate from application of that holding to expert
reports under section 148.003. 3 See Gonzalez, 710 S.W.3d at 913 (adopting the
applicable case law regarding expert reports under section 74.351 to case involving an
expert report under section 148.003). Thus, we conclude that Dr. Mayer was permitted to
consider the statements of Esmeralda, Deborah, Olivier, and Sasha in formulating his
expert opinion in his amended report.
Yoder next argues that the amended report did not identify “which condition [Edgar]
should have [been] warned about or that [Yoder] needed to remediate, and which was
3 Furthermore, section 148.003 provides that an expert report “is not admissible in evidence by any
party,” “may not be used in a deposition, trial, or other proceeding,” and “may not be referred to by any party during the course of the action, except in a proceeding to determine if a report is sufficient or timely.” TEX. CIV. PRAC. & REM. CODE § 148.003(h). This provision is some indication that the Legislature likely did not intend for the evidence reviewed by experts in preparing their reports to comply with the rules of evidence. See Hiner v. Gaspard, No. 09-07-240 CV, 2007 WL 2493471, at *7 (Tex. App.—Beaumont Sept. 6, 2007, pet. denied) (mem. op.) (“Because Chapter 74 prohibits the introduction of expert reports into evidence, the Legislature likely did not intend that expert reports and the evidence reviewed by experts in preparing the reports must comply with the rules of evidence.”).
15
the []cause in fact of the individual contracting COVID-19.” An expert’s report does not
“constitute a good-faith effort if it omits any of the statutory requirements.” Palacios, 46
S.W.3d at 879. We previously held in Gonzalez that
an expert’s report must provide a factual and scientific basis for the
assertion that specific conduct by the defendant, constituting a knowing
failure under [section] 148.003(a)(1), was the ‘cause-in-fact’ of the plaintiff
contracting a pandemic disease, and that, “but for” such specific failure by
the defendant, the plaintiff would not have contracted the pandemic
disease.
710 S.W.3d at 916–17 (first citing TEX. CIV. PRAC. & REM. CODE § 148.003(a)(1), (2),
(b)(1); then citing Abshire, 563 S.W.3d at 223, 224; and then citing Zamarripa, 526 S.W.3d
at 460). The amended report referenced statements by Esmeralda, Deborah, Olivier, and
Sasha, which indicated the following:
• Edgar worked as a car washer and detailer, and also watered plants and picked
up debris.
• Edgar was not provided with gloves or masks at work.
• Edgar had to obtain masks from home.
• Esmeralda, Edgar, and their children took various precautions at home, including
wearing masks, gloves, and disinfecting regularly.
• There was no known exposure to COVID-19 outside of the workplace, and no one
at home was sick or displaying any symptoms.
• Other employees at Edgar’s job were sick, not wearing gloves or masks, and were
not sent home.
• Yoder was “not sanitizing the workplace properly” nor “providing the proper PPE”
to its employees.
16
• Edgar provided a doctor’s excuse for being sick, but the person in charge of his
job position did not respond to it.
From this information, Dr. Mayer broadly found that Yoder should have undertaken
numerous CDC-recommended actions intended to lower the likelihood of exposure to
COVID-19. However, “[u]nder the PLPA, the expert report cannot just point out failures;
it must also provide ‘a factual and scientific basis” for the assertion that these failures in
fact ‘caused the individual to contract a pandemic disease.’” J. Davis Auto. Grp. Inc. v.
Armitage, 728 S.W.3d 249, 256 (Tex. App.—Houston [1st Dist.] 2025, no pet.).
Though the information referenced in the amended report indicated that Yoder did
not provide PPE to its employees and that other employees were sick at Edgar’s
workplace and not sent home, there is no evidence regarding what particular illness these
other employees were afflicted with, or information concerning any symptoms they
exhibited, or the degree of interaction Edgar had with them. In addition, there is no
information provided about Edgar’s actions in the workplace other than that he brought
masks from home. For example, the amended report contains no information about
whether Edgar actually wore the masks he brought from home, engaged in social
distancing, wore gloves, frequently washed his hands, or engaged in any of the many
recommended actions intended to lower the likelihood of exposure to COVID-19 that Dr.
Mayer detailed in his amended report. See id. at 255 (holding that the report at issue was
deficient, in part, because it offered no information concerning the decedent’s actions
inside or outside the workplace “such as mask-wearing, social distancing, or avoiding
gatherings”).
Likewise, though the information referenced in the amended report indicated that
17
no one in Edgar’s home was sick or showing symptoms of COVID-19, it also explained
that “asymptomatic carriers . . . are far more likely to infect others,” that “[e]vidence
suggests that at least 30% of people infected with SARS-CoV-2 are asymptomatic,” and
that “[t]he possibilities of asymptomatic and pre-symptomatic transmission of COVID-19
makes it clear that quarantine of only symptomatic individuals is not, by itself, an effective
means to control transmission.” In this regard, the amended report contains no
information concerning Edgar’s and his family members’ actions outside the home, such
as whether they engaged in mask-wearing, social distancing, avoided social gatherings
when outside of the home, or whether they avoided going outside the home altogether.
See id. The amended report also references information about how Yoder “was not
sanitizing the workplace properly” but does not include any information concerning
Yoder’s specific deficiencies in that regard given Dr. Mayer’s detailed explanation of the
numerous CDC guidelines concerning sanitization.
Dr. Mayer concluded in the amended report that, “It is my expert opinion that
reliable scientific evidence shows that the failure to warn the individual of the condition,
remediate the condition, or implement or comply with the government[-]promulgated
standards, guidance, or protocols was the cause in fact of the individual contracting the
disease.” Though the amended report provided a detailed explanation of COVID-19’s
ease of transmission, it otherwise did not provide a sufficient factual or scientific basis as
to how and why, “but for” any specific failure on Yoder’s part, Edgar would not have
contracted COVID-19 at his workplace as opposed to anywhere else. See Gonzalez, 710
S.W.3d at 917; see also Armitage, 728 S.W.3d at 256 (explaining that the report at issue
did not show how or why any of the employer’s alleged failures caused the decedent “to
18
contract COVID-19 at her workplace, rather than through any ‘of the myriad places and
way’ she may have contracted it” (quoting Johnson, 2023 WL 2645553, at *3.) The
amended report here does not adequately explain the links in the casual chain from
Yoder’s alleged failures to Edgar’s contraction of the easily transmissible COVID-19. See
Armitage, 728 S.W.3d at 255. (holding that the report at issue did not “‘adequately
explain[] the links in the causal chain’ from [the employer’s] alleged failures to act to [the
decedent] actually contracting the readily transmissible COVID-19” (quoting Bush v.
Columbia Med. Ctr. of Arlington Subsidiary, L.P., 714 S.W.3d 536, 546 (Tex. 2025)).
Accordingly, we conclude that Dr. Mayer’s amended report fails to provide a factual
and scientific basis for the assertion that Yoder’s failure to act in one of the ways set out
in section 148.003(a)(1) actually caused Edgar to contract a pandemic disease. See TEX.
CIV. PRAC. & REM. CODE § 148.003(a)(1), (2), (b)(1). We hold that the trial court abused
its discretion in determining that Dr. Mayer’s amended report represented an objective,
good faith effort to provide a factual and scientific basis for Dr. Mayer’s assertion that
Yoder’s failure to act caused Edgar to contract a pandemic disease. See Gonzalez, 710
S.W.3d at 918; Abshire, 563 S.W.3d at 223. Thus, the amended report was not a
“sufficient report” as required to avoid dismissal under section 148.003(f). See TEX. CIV.
PRAC. & REM. CODE § 148.003(f)(1). Additionally, because the trial court had already
granted Esmeralda “on one occasion, a 30-day period to cure any deficiency in the
report,” see id. § 148.003(e)—which resulted in the service of Dr. Mayer’s amended
report—we hold that the trial court abused its discretion in denying Yoder’s motion to
dismiss Esmeralda’s claims with prejudice pursuant to section 148.003(f)(1).
19
III. CONCLUSION
We reverse the trial court’s order denying Yoder’s motion to dismiss and render
judgment dismissing Esmerald’s claims against Yoder with prejudice. See id.
§ 148.003(f)(1). We lift the stay previously imposed in this case. See TEX. R. APP. P.
52.10. Because Yoder is statutorily entitled to an award of reasonable attorney’s fees and
costs, we remand for a determination of the amount of this award. See TEX. CIV. PRAC. &
REM. CODE § 148.003(f)(2). 4
CLARISSA SILVA
Justice
Delivered and filed on the
13th day of August, 2026.
4 All pending motions are denied as moot.
20