Full opinion text
OPINION EVELYN V. KEYES, Justice. Appellants, Control Solutions, Inc., United Phosphorous, Inc. (“UPI”), and Mark Boyd (collectively, “CSI”), appeal from the trial court’s judgment notwithstanding the verdict (“JNOV”) that they take nothing by their claims against appellees, Gharda Chemicals, Ltd. (“Gharda”) and Gharda USA, Inc. (“GUSA”). In four issues, CSI argues that the trial court erred in (1) granting JNOV on the ground of unreliable expert testimony based solely on CSI’s experts’ failure to test chemical properties and characteristics; (2) granting JNOV on the jury’s findings and award against GUSA for a marketing defect when the elements of that claim were not encompassed within the unreliable expert testimony on manufacturing defect and causation; (3) granting JNOV on CSI’s negligence claim because legally and factually sufficient evidence supports the verdict without the expert testimony found unreliable by the trial court; and (4) granting summary judgment on limitations grounds against building owner Mark Boyd. Gharda and GUSA filed cross-points, arguing that: (1) if we reverse the JNOV, the proper disposition of the case is to remand the case to the trial court; (2) the evidence of damages is legally and factually insufficient; and (3) in the case of GUSA, the amount of its damages is limited by Texas Business and Commerce Code section 7.19(a)(1) to the amount CSI paid for the product. We overrule Gharda and GUSA’s cross-points on appeal, and we reverse and remand for the trial court to enter judgment in favor of CSI on the jury verdict. BACKGROUND A. Summary This case arose out of a fire that destroyed CSI’s chemical manufacturing operation and warehouse in Harris County, Texas in 2004. CSI alleged and argued at trial that Gharda and GUSA sold “off-spec” chemicals that were the cause of the fire. Following a jury verdict in favor of CSI, the trial court granted a take-nothing JNOV in favor of Gharda and GUSA. This appeal followed. B. Relationship of Parties CSI is a Texas company that makes insecticides and pesticides. Mark Boyd is the president of CSI, and he is the owner of the warehouse in Pasadena where CSI does its chemical manufacturing. The lease between Boyd and CSI requires CSI to obtain insurance covering all property owned by CSI and Boyd. The policy identifies “Control Solutions Inc. doing business as CJ Martin Co. and/or Gamat, Inc., Mark Boyd, Individual,” as the insured. CSI claims that the underwriters paid $3,163,185.50 for covered damage. In its chemical production, CSI uses a generic chemical produced by Gharda and sold in the United States by GUSA called chlorpyrifos technical (“chlorpyrifos”). Gharda makes three grades of chlorpyri-fos: a 99% pure grade sold in the U.S., a 98% pure grade sold in Europe, and a 94% pure grade sold to rest of world. At the time leading up to the trial, it sold approximately 500 tons of chlorpyrifos per month. CSI had been purchasing chlorpyrifos from Gharda since approximately 2001. On March 8, 2004, a CSI employee placed thirty-two drums containing the solid chemical chlorpyrifos into a “hot box” in CSI’s warehouse for melting. Each drum had been sealed at Gharda’s plant in India, and the seals remained intact until the CSI employee moved the drums into the hot box. The next morning, on March 9, 2004, CSI distribution manager Robert Blair arrived at work at 5:00 a.m. He was working in the distribution building when he heard a “boom” followed approximately thirty seconds later by the fire alarm. CSI’s chemical production facility was destroyed by the resulting fire. The fire also destroyed some of the products of another company, UPI, which stored materials in CSI’s buildings. C. Suit Filed/Pre-Trial Procedural History In December 2004, CSI filed suit against Gharda and GUSA for products liability, breach of express warranty, breach of implied warranty of merchantability, and negligence. UPI subsequently intervened in this suit. Among the many pre-trial filings, on August 12, 2009, Gharda and GUSA moved for summary judgment on damages, arguing, among other things, that CSI did not have the capacity to recover damages for the real property actually owned by Boyd. CSI responded to this motion on the merits. CSI also filed an amended petition adding Boyd as a named plaintiff as the owner/lessor of the facility. Gharda subsequently moved to strike Boyd as a plaintiff based on limitations and moved for summary judgment as to all of Boyd’s claims. On November 10, 2009, the trial court denied the motion to strike “without prejudice to the Defendants of reconsideration after verdict” and further stated, “because the Court finds Defendants’ motions for summary judgment are conditioned upon the Court striking the intervention of Mark Boyd, the merits of those motions are not reached at this time.” Gharda also moved pre-trial to exclude CSI’s expert witnesses. The trial court conducted Daubert/Robinson hearings on the admissibility of the expert testimony on May 5, 2009. Several experts testified at the hearing, including Sammy Russo, CSI’s fire-origin expert; Andy Armstrong, a forensic chemist and chemical fire expert; Nicholas Cheremisinoff, a chemist; and Shannon Rusnak, a forensic accountant and CSI’s damages expert. The trial court denied Gharda’s motions to exclude the testimony of these experts. D. Trial to a Jury The trial lasted for approximately two weeks and included testimony from twenty-two witnesses, many of them expert witnesses, and at least eleven volumes of exhibits. Gharda and GUSA renewed their objections to CSI’s expert witnesses at trial, and the trial court overruled those objections. Robert Blair, the CSI employee who was present when the fire first broke out, stated that he heard a sound like a truck crashing into the building, and, about forty-five seconds later, he heard the fire alarms go off and saw smoke billowing out of vents on the west side of the building. Firefighters responded. They reported that the building was locked and they had to force their way inside. When they entered the northwest quadrant of the building, they observed evidence of the fire to their right, which was the southwest quadrant of building where the hot box was located. Furthermore, firemen indicated that they did not open the hot box doors in the course of fighting the fire. Sammy Russo, CSI’s fire-origin expert witness, investigated the fire. He opined that the fire began in the hot box containing chlorpyrifos and spread to the rest of the facility. Other experts, including Armstrong, a forensic chemist and chemical fire expert, and Cheremisinoff, a chemist, testifying on behalf of CSI, opined that the fire was caused by ignitable vapors produced during the chlorpyrifos’s rapid decomposition and that the rapid decomposition was caused by a contaminant in the chlorpyrifos. Gharda presented expert testimony from Lloyd Hawkins, a certified fire investigator, opining that the fire did not start in or near the hot box, but rather, it started in the northwest quadrant of the warehouse. It also presented expert witnesses Wayne Britton and John Cayais, expert chemists, who tested chlorpyrifos to determine its flammability and who tested the retained samples (“retains”) from the batches of chlorpyrifos sold to CSI and found that there was no contamination. Shannon Rusnak, a forensic accountant and expert on damages, Mark Boyd, and others presented evidence of CSI’s damages as a result of the fire. The jury reached the following conclusions: • Question One: “Did the negligence, if any, of those named below proximately cause the occurrence in question?” The jury was instructed on the meaning of negligence, ordinary care, and proximate cause, and it answered “no” as to CSI and “yes” as to both GUSA and Gharda. • Question Two: “Was there a manufacturing defect in the Chlorpyrifos Technical at the time it left the possession of [Gharda] that was a producing cause of the occurrence in question?” The jury answered “yes.” • Question Three: “Did [GUSA] exercise substantial control over the content of the warning or instruction that accompanied the Chlorpyrifos Technical sold to [CSI]?” The jury answered “yes.” • Question Four: “Was the warning or instruction inadequate?” The jury was instructed on what constitutes “adequate” warnings, and it answered “yes.” • Question Five: “Did the plaintiffs’ damages, if any, result from the inadequacy of the warning or instruction?” The jury answered “yes.” • Questions Six and Seven: “Did [GUSA] make an express factual representation to [CSI] about a material aspect of the Chlorpyrifos Technical?” The jury answered “yes,” but it also found, in Question Seven, that the factual representation was not materially incorrect. • Questions Ten and Eleven: ‘Was there a defect in the marketing of the Chlorpyrifos Technical at the time it left the possession of [Ghar-da] that was a producing cause of the occurrence in question?” The jury was instructed on the meaning of “marketing defect,” “adequate” warnings, “unreasonably dangerous” products, and “producing cause.” The jury answered “no.” The jury also responded “no” to the same question asked about GUSA. • Question Twelve: “For each company you found caused or contributed to cause the occurrence, find the percentages of responsibility attributable to each.... ” The jury found that CSI had 0% responsibility, that GUSA had 10% responsibility, and that Gharda had 90% responsibility. • Questions Thirteen, Fourteen, and Fifteen: The jury found that GUSA and CSI had “an agreement to sell Chlorpyrifos Technical that met product specifications and was free of contaminants,” that GUSA failed to comply with its agreement with CSI, and that GUSA’s breach of its agreement was not a proximate cause of CSI’s injuries. • Question Sixteen: Regarding damages, the jury found, for Boyd, that “[t]he reasonable costs in Harris County, Texas to restore the building in question to the condition it was in immediately before the occurrence in question” was $1.9 million; for UPI, that “the difference in the market value in Harris County, Texas, of [UPI’s] contents of the warehouse immediately before and immediately after the occurrence” was $1 million; for CSI, the jury found that the “difference in the market value ... of [CSI’s] contents of the warehouse immediately before and immediately after the occurrence” was $2.8 million, that the difference in the market value of the contents of the office building was $100,000, that the “reasonable and necessary costs for environmental cleanup costs as a result of the occurrence” were $2.1 million, that the “reasonable costs ... for bulk tank repairs and cleanup costs” were $20,000, that the “[r]easonable and necessary extra production costs” were $950,000, and that lost profits amounted to $0. The jury returned its verdict on February 25, 2010. E. Post-Trial Motions and Final Judgment On March 2, 2010, the trial court, on its own motion, ordered that all parties attend post-verdict mediation with David Math-iesen within thirty days. Also on March 2, 2010, the trial court granted “the Defendant’s Motion for Summary Judgment as to All Claims of Mark Boyd.” This motion was originally filed by Gharda and GUSA pre-trial, on September 2, 2009. On April 6, 2010, CSI moved for judgment on the verdict. On April 9, 2010, Gharda filed its “Response Opposing Motion for Entry of Judgment.” Gharda argued that it was entitled to JNOV and that CSI had erroneously included Mark Boyd in its proposed judgment because (1) the trial court’s March 2, 2010 summary judgment had eliminated the award to Mark Boyd and “Interested Insurers”; (2) CSI had “hidden what amounts of money the insurers paid to each separate Plaintiff and why and when those payments were made”; and (3) the insurers had never proved that they had paid any claims, and the motion for entry of judgment offered no proof of that fact either, in that the attached copies of a Lloyd’s insurance policy and three proofs of loss were not admitted as evidence at trial. This motion asked that the trial court deny CSI’s motion for entry of judgment and grant Gharda JNOV, or, alternatively, if the court entered judgment for CSI, that the court not enter judgment for Boyd or the “Interested Insurers” because the court had granted summary judgment on all of Boyd’s claims. Also on April 9, 2010, Gharda moved for JNOV. In this motion, Gharda argued that the “Plaintiffs cannot make a case based on speculation,” that the Plaintiffs had “essentially tried the case as a res ipsa case even though CSI, not Defendants, controlled the drums,” and that, “[i]n fact, the Court properly denied Plaintiffs a res ipsa instruction.” Gharda argued that the jurors could not infer contamination of the product without competent evidence of contamination and that “although a jury could have chosen to disbelieve Gharda’s testimony about what the retains [samples retained by Gharda from the batch of chlorpyrifos at issue here] showed, the jury had no competent affirmative testimony on which to conclude that the [chlorpy-rifos] was defective when it left Gharda’s control.” Gharda argued that there was no competent evidence to support the jury’s answer to Question One on negligence and proximate cause because Cher-emisinoffs testimony was incompetent. Gharda argued that he did not testify in terms of reasonable probability (rather, he stated “reasonable possibility”) and that “his testimony was conclusory and speculative, his testimony was unreliable under Daubert standards, and his testimony reasoned backwards from a desired result.” Gharda also argued that there was no competent evidence to support the jury’s answer to Question Two, that a manufacturing defect was a producing cause of the fire. It argued that the expert testimony on this subject was conclusory, speculative, and unreliable under Daubert. Finally, Gharda argued that there was no competent evidence to support the jury’s answer to Question Sixteen regarding damages. On April 23, 2010, CSI filed a motion for leave to amend its petition. It alleged that the parties and the trial court had agreed that subrogation rights involving the interested insurers would be addressed and calculated post-trial. It further argued that the parties had treated the issue as if it had been pleaded, and, therefore, it was tried by consent. CSI also filed an amended motion for judgment on the verdict. In this motion, it addressed Boyd’s claims, arguing that the trial court had erred in dismissing his claims on limitations grounds, and it again argued that the interested insurers had a contractual right of subrogation to the jury awards in favor of CSI and Boyd. On April 29, 2010, Gharda filed a response opposing CSI’s motion for leave to amend its petition, arguing that the “insurers failed to appear or prove up their damages” and that “there was no agreement to do so post-verdict.” Also on April 29, 2010, Gharda filed a supplement to its motion for JNOV. This supplement argued that CSI “failed to disclose trial witnesses and had no good cause for their [sic] failure.” Finally, Gharda also responded to CSI’s amended motion for entry of judgment, arguing that the trial court had correctly granted summary judgment on Boyd’s claims and that CSI’s alternative judgment gave it $1.5 million more than the jury awarded. GUSA filed a joinder in these motions. On May 14, 2010, CSI responded to the motion for FNOV. It also argued that GUSA’s motion to join Gharda’s motion was not sufficient for the trial court to grant JNOV in favor of GUSA because the two companies “stand in different shoes.” On May 20, 2010, the trial court signed the following orders: (1) an order denying CSI’s motion for leave to amend its petition; (2) an order denying CSI’s motion for reconsideration of the trial court’s order granting Gharda’s motion to dismiss all claims of Mark Boyd; (8) an order denying Gharda’s motion for JNOV, including the supplement; and (4) an order denying GUSA’s motion for JNOV and supplement. Also on May 20, 2010, the trial court signed a final judgment awarding CSI $4,928,000 from Gharda and $547,000 from GUSA, awarding UPI $900,000 from Ghar-da and $100,000 from GUSA, and ordering that Boyd take nothing against Gharda and GUSA. On June 9, 2010, Gharda filed its “First Amended Motion for Judgment Notwithstanding the Verdict.” This motion again argued that CSI “cannot make a case based on speculation,” that CSI “essentially tried this case as a res ipsa case,” and that there was no competent evidence supporting the jury’s answers to Questions One, Two, and Sixteen. Gharda also argued that CSI “failed to disclose trial witnesses and had not good cause for their [sic] failure.” Also on June 9, 2010, Gharda moved for a new trial based on “the jury’s prejudice” and on its arguments that CSI “cannot make a case based on speculation,” that there was factually insufficient evidence to support the jury’s answers to Questions One, Two, and Sixteen, and that CSI had failed to disclose trial witnesses, specifically arguing that CSI “should not have been allowed to call any witnesses based on their [sic] failure to timely and properly list them” in response to Gharda’s timely, pretrial interrogatory and that CSI had no good cause for this failure. Gharda further argued that CSI failed to provide the actual address for Jerry Gardner, the former chief of the Pasadena Fire Department, even though it knew his address. On June 17, 2010, GUSA joined Gharda’s amended motion for JNOV, and it filed its own motion for new trial. On July 8, 2010, CSI responded to these motions. On August 10, 2010, the trial court denied Gharda’s and GUSA’s motions for new trial. Also on August 10, 2010, the trial court entered its “Amended Final Judgment.” This judgment stated that the trial court “finds [CSI’s] expert testimony is unreliable and constitutes no evidence of negligence, manufacturing defect and causation and, therefore, cannot support the jury’s answers to jury questions one and two. As a result, the court disregards the jury’s answers to questions one and two, and finds for Defendants Gharda USA, Inc. and Gharda Chemicals, Ltd. and grants, in part, Defendant’s Motion for Judgment Notwithstanding the Verdict.” It vacated its May 20, 2010 judgment and order denying Gharda’s motion for JNOV and ordered that “all Plaintiffs take nothing against” Gharda and GUSA and that all of the plaintiffs’ claims were dismissed with prejudice. JURISDICTION As a threshold matter, we address the trial court’s jurisdiction to enter JNOV in this case. CSI argues that the trial court granted JNOV sua sponte and thereby violated Texas Rule of Civil Procedure 301, which provides: The judgment of the court shall conform to the pleadings, the nature of the case proved and the verdict, if any, and shall be so framed as to give the party all the relief to which he may be entitled either in law or equity. Provided, that upon motion and reasonable notice the court may render judgment non obstante ve-redicto if a directed verdict would have been proper, and provided further that the court may, upon like motion and notice, disregard any jury finding on a question that has no support in the evidence. Only one final judgment shall be rendered in any cause except where it is otherwise specially provided by law. Judgment may, in a proper case, be given for or against one or more of several plaintiffs, and for or against one or more of several defendants or inter-venors. Tex.R. Civ. P. 301. In making this argument, CSI misrepresents the record. Gharda and GUSA both moved for JNOV, and they both filed amended JNOV motions along with their motions for new trial following the trial court’s original May 20, 2010 judgment. Any motions for new trial or motions to reconsider or modify this judgment had to be filed within thirty days, or by June 21, 2010. Tex.R. Civ. P. 329b(a). Gharda filed its amended motion for JNOV and a separate motion for new trial on June 9, 2010, and GUSA joined Gharda’s motion for JNOV and filed its own motion for new trial on June 17, 2010. These timely motions extended the court’s plenary power seventy-five days, to August 3, 2010, at which time all of these motions were overruled by operation of law. Tex.R. Civ. P. 329b(c). However, Texas Rule of Civil Procedure 329b(e) provides that when a timely motion for new trial is filed, the trial court has plenary power to grant a new trial or to vacate, modify, correct, or reform the judgment until thirty days after all such timely-filed motions are overruled, either by a written and signed order or by operation of law, whichever occurs first. Tex.R. Civ. P. 329b(e). Thus, the trial court had plenary power to vacate the original judgment up until September 2, 2010, and the August 10, 2010 judgment vacating the May 20, 2010 judgment was entered within the trial court’s plenary power. We conclude that the trial court had jurisdiction to act as it did. We therefore address the merits of the appeal. JNOV In its first, second, and third issues, CSI challenges the trial court’s JNOV. A. Standard of Review A trial court may grant a motion for JNOV if a directed verdict would have been proper, and it may disregard any jury finding on a question that has no support in the evidence. Tex.R. Crv. P. 301. A trial court may disregard a jury finding and render JNOV if the finding is immaterial or if there is no evidence to support one or more of the findings on issues necessary to liability. Tiller v. McLure, 121 S.W.3d 709, 713 (Tex.2003); Spencer v. Eagle Star Ins. Co. of Am., 876 S.W.2d 154, 157 (Tex.1994). A question is immaterial, for the purpose of determining whether a court may disregard a jury finding, when the question should not have been submitted or when it was properly submitted but has been rendered immaterial by other findings. Spencer, 876 S.W.2d at 157. A trial court properly enters a directed verdict (1) when a defect in the opposing party’s pleadings makes them insufficient to support a judgment; (2) when the evidence conclusively proves a fact that establishes a party’s right to judgment as a matter of law; or (3) when the evidence offered on a cause of action is insufficient to raise an issue of fact. M.N. Dannenbaum, Inc. v. Brummerhop, 840 S.W.2d 624, 629 (Tex.App.-Houston [14th Dist.] 1992, writ denied). In such a case, the issue should not be submitted to the jury. See id. In reviewing the rendition of JNOV, the reviewing court must determine whether there is any evidence upon which the jury could have made the finding. Tiller, 121 S.W.3d at 713; see also B & W Supply, Inc. v. Beckman, 305 S.W.3d 10, 15 (Tex.App.-Houston [1st Dist.] 2009, pet. denied) (holding that we review JNOV’s under no-evidence standard). The reviewing court must view the evidence in the light most favorable to the verdict, crediting favorable evidence if reasonable jurors could and disregarding contrary evidence unless reasonable jurors could not. City of Keller v. Wilson, 168 S.W.3d 802, 822 (Tex.2005); see Tiller, 121 S.W.3d at 713 (holding that, in reviewing “no evidence” point, court views evidence in light that tends to support finding of disputed fact and disregards all evidence and inferences to contrary); Bradford v. Vento, 48 S.W.3d 749, 754 (Tex.2001). To sustain a challenge to the legal sufficiency of the evidence to support a jury finding, the reviewing court must find that (1) there is a complete lack of evidence of a vital fact; (2) the court is barred by rules of evidence from giving weight to the only evidence offered to prove a vital fact; (3) there is no more than a mere scintilla of evidence to prove a vital fact; or (4) the evidence conclusively established the opposite of a vital fact. Volkswagen of Am., Inc. v. Ramirez, 159 S.W.3d 897, 903 (Tex.2004). If some evidence supports the disregarded finding, the reviewing court must reverse the JNOV and render judgment on the verdict unless the appellee asserts cross-points showing grounds for a new trial. M.N. Dannenbaum, Inc., 840 S.W.2d at 628; Basin Operating Co. v. Valley Steel Prods. Co., 620 S.W.2d 773, 776 (Tex.Civ.App.-Dallas 1981, writ ref'd n.r.e.); see also Beckman, 305 S.W.3d at 15-16 (holding that we must uphold jury’s verdict and not trial court’s judgment if more than scintilla of evidence supports jury’s finding). However, JNOV is proper when the trial court is barred by the rules of evidence from giving weight to the only evidence offered to prove a vital fact. Volkswagen of Am., Inc., 159 S.W.3d at 903; see also Whirlpool Corp. v. Camacho, 298 S.W.3d 631, 638 (Tex.2009) (holding that party may assert on appeal that scientific evidence or expert testimony is unreliable and therefore legally insufficient to support verdict); Coastal Transp. Co., Inc. v. Crown Cent. Petroleum Corp., 136 S.W.3d 227, 234-35 (Tex.2004) (holding that expert witness testimony on gross negligence claim was legally insufficient and rendering judgment that plaintiff take nothing). B. Reliability of Expert Testimony In its first issue, CSI argues that the trial court erred in disregarding the jury’s answers to Questions One, Two and Sixteen and entering JNOV on the issues of negligence, product defect, and causation. In its motion for JNOV, Gharda argued that there was no competent evidence to support the jury’s answer to Question One on negligence and proximate cause, because the testimony of CSI’s expert, Cher-emisinoff, was incompetent and unreliable; Gharda also argued that there was no competent evidence to support the jury’s answer to Question Two, that a manufacturing defect was a producing cause of the fire because the expert testimony on this subject was conclusory, speculative, and unreliable under Daubert; and it argued that, consequently, there was no competent evidence to support the jury’s answer to Question Sixteen, regarding damages. In determining whether the trial court’s rendition of JNOV was proper, we must first determine whether the trial testimony of CSI’s experts was unreliable and therefore constituted no evidence. The admission of expert testimony is governed by Texas Rule of Evidence 702, which provides: If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify thereto in the form of an opinion or otherwise. Tex.R. Evid. 702; E.I. du Pont de Nemours & Co. v. Robinson, 923 S.W.2d 549, 554 (Tex.1995). “Expert testimony is admissible if (1) the expert is qualified, and (2)the testimony is relevant and based on a reliable foundation.” Cooper Tire & Rubber Co. v. Mendez, 204 S.W.3d 797, 800 (Tex.2006) (citing Helena Chem. Co. v. Wilkins, 47 S.W.3d 486, 499 (Tex.2001) and Robinson, 923 S.W.2d at 556). “In deciding whether an expert is qualified, the trial court must ‘ensur[e] that those who purport to be experts truly have expertise concerning the actual subject about which they are offering an opinion.’ ” Mendez, 204 S.W.3d at 800 (quoting Gammill v. Jack Williams Chevrolet, Inc., 972 S.W.2d 713, 719 (Tex.1998)). Scientific testimony must be based on a reliable underlying scientific technique or principle. Robinson, 923 S.W.2d at 557. “Scientific testimony is unreliable if it is not grounded ‘in the methods and procedures of science,’ and amounts to no more than a ‘subjective belief or unsupported speculation.’ ” Mendez, 204 S.W.3d at 800 (quoting Robinson, 923 S.W.2d at 557). Expert testimony may also be unreliable if “there is simply too great an analytical gap between the data and the opinion proffered.” Id. (quoting Gammill, 972 S.W.2d at 727). “A flaw in the expert’s reasoning from the data may render reliance on a study unreasonable and render the inferences drawn therefrom dubious. Under that circumstance, the expert’s scientific testimony is unreliable and, legally, no evidence.” Id. at 801 (quoting Merrell Dow Pharm., Inc. v. Havner, 953 S.W.2d 706, 714 (Tex.1997)). “Rule 702 envisions a flexible inquiry focusing solely on the underlying principles and methodology, not on the conclusions they generate.” Robinson, 923 S.W.2d at 557 (citing Daubert, 509 U.S. at 593-94, 113 S.Ct. at 2797); see also Allison v. Fire Ins. Exch., 98 S.W.3d 227, 238 (Tex.App.-Austin 2002, pet. granted, judgm’t vacated w.r.m.) (“A trial court must focus solely on the validity of principles and methodology underlying the testimony, not the conclusions generated.”) (internal quotations omitted). The Texas Supreme Court has identified six non-exclusive factors that trial courts may consider in determining whether expert testimony is reliable: (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 rate 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. Mendez, 204 S.W.3d at 801 (citing Robinson, 923 S.W.2d at 557). The supreme court has emphasized, however, that these factors are not exclusive and that they do not fit every scenario. TXI Transp. Co. v. Hughes, 306 S.W.3d 230, 235 (Tex.2010) (citing Gammill, 972 S.W.2d at 726); see also Ford Motor Co. v. Ledesma, 242 S.W.3d 32, 39 (Tex.2007) (holding that Robinson factors are particularly hard to apply in vehicular-accident cases involving accident reconstruction testimony). Thus, the supreme court has determined that, “[rjather than focus[ing] entirely on the reliability of the underlying technique used to generate the challenged opinion, as in Robinson,” it is appropriate in some eases “to analyze whether the expert’s opinion actually fits the facts of the case.” Hughes, 306 S.W.3d at 235 (citing Volkswagen of Am., Inc., 159 S.W.3d at 904-05). “In other words, we determine whether there are any significant analytical gaps in the expert’s opinion that undermine its reliability.” Id. Generally, rulings on objections as to the admissibility of evidence, including whether expert testimony is reliable, are reviewed for an abuse of discretion. Whirlpool Corp., 298 S.W.3d at 638. However, in a no-evidence review, we independently consider whether the evidence at trial would enable reasonable and fair-minded jurors to reach the verdict. Id. “[A] no-evidence review encompasses the entire record, including contrary evidence tending to show the expert opinion is incompetent or unreliable.” Id. In Robinson, the supreme court held that it is not the trial court’s role “to determine the truth or falsity of the expert’s opinion. Rather, the trial court’s role is to make the initial determination whether the expert’s opinion is relevant and whether the methods and research upon which it is based are reliable.” 923 S.W.2d at 558. The court held that the trial court’s exclusion of Robinson’s expert testimony was not an abuse of discretion because “[i]t was not based upon a reliable foundation.” Id. The court cited the fact that the expert “conducted no testing to exclude other possible causes of the damage ... even though he admitted in his deposition that many of the symptoms could be caused by something other than contaminated Benlate” and stated that “[a]n expert who is trying to find a cause of something should carefully consider alternative causes.” Id. at 558-59. The court further stated that the expert used “problematic” methodology and that, while “[scientists may form initial tentative hypotheses,” by “coming to a firm conclusion first and then doing research to support it,” the expert used unreliable methodology. Id. at 559. Finally, the court considered that “[the expert’s] research and opinions were conducted and formed for the purpose of litigation.” Id. The court held, The fact that an opinion was formed solely for the purposes of litigation does not automatically render it unreliable. However, “when an expert prepares reports and findings before being hired as a witness, that record will limit the degree to which he can tailor his testimony to serve a party’s interest.” On the other hand, opinions formed solely for the purpose of testifying are more likely to be biased toward a particular result. Id. (quoting Daubert v. Merrell Dow Pharm., Inc., 43 F.3d 1311, 1317 (9th Cir.1995) (on remand)). In its motion for JNOV, Gharda asked the trial court to hold that the only evidence in support of the jury’s answers to Questions One, Two, and Sixteen was expert testimony, that the testimony of each of CSI’s experts amounted to “no evidence” because it was unreliable, and that, therefore, the testimony of each of these witnesses was inadmissible, and the court was barred by the rules of evidence from submitting it to the jury. Our task, therefore, is to review the testimony to determine whether the trial court erred in ruling that the testimony of these experts was unreliable and, therefore, should not have been submitted to the jury, justifying the rendition of JNOV. 1. Gharda’s Arguments in Support of JNOV on Expert Reliability To establish that contaminated chlorpy-rifos caused the fire that destroyed CSI’s warehouse, CSI relied on the following experts’ testimony: (1) Sammy Russo, a fire investigator, who testified that the physical evidence showed that the fire started in the southwest portion of the building in the hot box and that the damage to that area was consistent with a low-order gas explosion; (2) Harold Rice, the lead investigator from the Harris County Fire Marshal’s Office, who also testified that he ended his investigation with the conclusion that the fire started in the hot box; (8) Roger Owen, an electrical engineer retained at Russo’s request to inspect the hot box for mechanical or electrical malfunction, who determined that mechanical or electrical malfunction of the hot box could be ruled out as a cause for starting the fire in the hot box; (4) Andy Armstrong, a forensic chemist and chemical fire expert contacted by Russo to analyze the potential cause of the “differential burning” patterns around some of the drums in the hot box; and (5) Nicholas Cheremisinoff, a chemical engineer, who testified that the EDO contamination of the chlorpyrifos occurred at Gharda’s plant. Gharda and GUSA argue that all of these experts are neither qualified nor reliable. Therefore, we address the reliability of the testimony each of the experts gave to determine whether the trial court properly ruled in response to Gharda’s motion for JNOV that all of their testimony amounted to no evidence and should not have been submitted to the jury. 2. Reliability of Sammy Russo’s Testimony Gharda argues that the testimony of Sammy Russo, a fire investigator who investigated the fire at issue in this case, was unreliable and should have been excluded. Gharda admits that Russo followed the correct methodology, namely, the National Fire Protection Association (“NFPA”) guide for fire and explosion investigations, or “NFPA 921.” However, it argues that while Russo claimed to follow NFPA 921 as his methodology, he did not do so faithfully. Gharda argues that (1) Russo did not follow NFPA 921’s statement that fires usually start at the lowest point in the areas of greatest burn; (2) Russo did no testing, including failing to test his hypothesis about where the fire started; (3) Russo failed to conduct interviews with persons with knowledge about the events; and (4) Russo gave contradictory and evasive testimony regarding his ability to “identify the fuel that fed a hotbox-started fire” and the explanation for differential burn patterns. a. Russo’s Testimony Russo testified that he followed the procedures and recommendations in NFPA 921 and that the physical evidence showed that the fire started in the southwest portion of the building in the hot box and that the damage to that area was consistent with a low-order gas explosion. He testified that each investigation effort is a little different because each fire is different, so there is not a predetermined list of steps for investigators to follow. Russo first heard about the fire on the news, and he was contacted by CSI’s attorney a few days later to aid in the investigation into the cause of the fire. Russo testified that the first thing he did was examine the outside of the building. He got information from CSI personnel about what materials and chemicals were in the building and where they were located, and he gathered material safety data sheets, which contain information about physical and chemical properties of the materials in the warehouse. Russo also interviewed CSI personnel, including Robert Blair, who was present when the fire first broke out. Blair told Russo that he heard a sound like a truck crashing into the building, and then, about forty-five seconds later, the fire alarms went off. Russo further testified that he was working with another investigator who conducted interviews with the firefighters and related information back to him. Russo testified that he did not want to interview a lot of the firefighters because he had trained them and he did not want to influence them unduly. After collecting information, Russo inspected the inside of the entire building with a team of investigators. He looked at burn patterns and at items that appeared not to have been damaged by the fire. Russo testified that the burn patterns he found all led away from the hot box. He stated that “there was a preliminary indication I had an area of origin in the southwest quadrant” because he “had seen the ridge vent [in that area] compromised on the video.” He saw the hot box with the hinges “pushed open” and determined that “the fire spread was from that area.” Russo also noticed “a distortion of the roof above the hot box that [he] typically see[s] in gas vapor explosions because when you get ignition, these vapor clouds tend to expand three dimensionally where I had distortion of the roof.” Russo further testified that he examined the “fuel load” and could “see where the fire had followed the fuel past the wall behind the hot box.” Following his inspection of the building with a team of people, including some investigators who Russo believed were there on behalf of either Gharda or GUSA, all of the investigators made a list of the samples they would like to have taken. According to Russo, none of the investigators expressed any interest in the northwest quadrant of the building at that time. Russo further testified that all of the experts had input into developing a sampling protocol. Russo was concerned about “the differential burning of the drums within the hot box, that even though it was everybody’s understanding and my understanding that all the drums contained the same product, something very different, you know, from a reaction standpoint had occurred.” Russo also testified that he contacted Andy Armstrong, “a competitor in the past in the laboratory business,” and asked for his input as to the best protocol for collecting chemical samples from the drums in the hot box. He detailed the protocol used for conducting the 3M charcoal badge testing and explained how the testing canisters worked. After the sampling was performed, Russo continued to inspect the facilities, removing additional equipment and other items of interest. He testified, “When you do a fire investigation, you’ve got to look at the whole picture. It’s — it’s got many, many components and you’ve got to systematically examine them and then either rule them in or out. So this is part of looking at other components in the structure.” In addition to having an electrical engineer inspect fans, electrical boxes, and other electrical components of the warehouse, Russo recommended having another electrical engineer inspect the hot box because he “wanted to be sure it was either working right or not.” Russo also testified that, after the building was razed, he examined the concrete slab to determine if there were any areas of extreme heat that he had missed on his earlier inspection. Russo testified that the charcoal badges were removed for testing on April 9, 2004, and that his team “physically took samples from each drum.” He also stated that he “didn’t try to save all of the drums because this is a permitted facility under EPA, I believe; and you can’t keep waste materials at a facility like this for more than 90 days. So we were under some regulatory pressure to get the samples out-” Russo testified about the science behind the 3M charcoal badge tests and about how the tests were analyzed, and he stated that “in mass spectrometry, you can look at selected ions, selected fragments from classes of compounds.” Finally, he testified that “the bottom line is that while the material appears to be basically the — the same product, there are differences within the product. They’re not — they don’t all demonstrate they’re exactly the same. And it gives us some idea as to what compounds might be there. Toluene showed — showed up, and I think EDC showed up as well.” He testified that the results of the badge testing told him “[t]hat the product is non-uniform or consistent, that there are differences within the product that makes me question whether or not all of the product was on spec.” CSI’s counsel asked, based on Russo’s review of the documents that were produced during the investigation and in the course of the lawsuit, deposition testimony, and news videos, “Have you formed an opinion which is based on reasonable scientific probability as to the origin of this fire?” Russo answered, ‘Tes, ... [t]he origin is — is the area at the — at the hot box. And the point of origin, which is a refinement of the identification of origin, is within the hot box.” He went on to explain the basis of his opinion, which was based in part on news footage, which early on showed fire in the area where the hot box was located, but nothing in the northwest corner, where Gharda argued the fire started. He looked at things like heating of the metal roof, burn patterns, paint discoloration, and the displacement of a ridge vent on the roof over the location of the hot box. He testified that the video showed firefighters entering the building through the northwest quadrant early on in the fire, and he stated that “[t]hey’re reporting fire off to their right, which is where exactly I would expect it to be” — in the direction of the hot box area. Russo testified that the fire progressed from the hot box area toward an area referred to as the “label room” where “there’s a storage rack ... that had cardboard boxes that would have been the first combustibles that would have been ignited.” Russo also testified that early on in the fire, there was “[n]o damage on the other side of the building”: [Russo]: The totes hadn’t started to burn. So they would not be a — particularly a cause. You want to see where the fire starts and how it progresses. You got to add the dimension of time when you’re looking at fire patterns. [CSI’s counsel]: And by “totes” are you talking about the same solvent area that we talked about ... earlier? [Russo]: The solvent area’s in here.... That’s the area of the building that collapsed. And you look at the after-the-event pictures, that’s where the fire department let that burn so that didn’t all run out and contaminate the environment and there’s a tremendous amount of fire damage and if you’re not trained in fire investigation, you might just immediately say, Hey, greatest burn at the lower burn, that’s it, without taking into consideration the dimension of time and that would be a false origin. Same way with that northwest eorner. If you just read literally NFPA 921, it’s the greatest burn at the lowest point and the reason they say that is because fire burns up and out. It rises. Okay? So where it starts it’s supposed to do the greatest damage at the lowest point and spread from there and it will also do the greatest damage to the roof. If you look at this and don’t take into account the time element and that this had solvents there, which are good fuels, and the fact that the fire department didn’t suppress that, you — -follow NFPA 921 and you’re — you’re likely to pick that as an origin .... or the northwest comer there. But it was not involved in the — the initial video. (Emphasis added.) Russo also testified that his examination of the hot box revealed evidence of damage to the hot box that was very consistent with what I see quite frequently in my type of work, natural gas explosions, as opposed to dynamite or something like that. It’s a very low order explosion typically characterized by a deflagration, which is a fancy word for a flash fire that accelerates. When you trap a fire in a confined space and you add temperature from the burning, for every 10 degrees Centigrade that you increase the temperature, you double the reaction rate. So by having a vapor fire in a confined space, you start increasing the rate and you can accelerate that until you build a — you know, build pressure in the box. In this case, you build very low pressure, probably in the order of 1 to 3 pounds. With the 15,000 or so square inches of surface area on the door, 1 pound of pressure will give you 15,000 pounds of force against that front door. It didn’t take a lot of pressure to spring the front door latches, bend the hinges and the rumble or boom is the decompression of that material into the — you know, as the doors open. Russo went on to explain how the remainder of the damage to the hot box was consistent with his belief that a low-order explosion occurred. He also testified that the damage to the outside of the hot box indicated that there was not “enough temperature on the outside of the box to get past the insulation of the hot box to heat the contents, you know, to their flammable level.” Regarding the vent at the back of the hot box, which Gharda argues was the weakest area of the hot box and would have failed in the event of a low-order explosion, Russo disagreed, stating that a “control rod going through the vent ... reinforee[d] the vent. Plus the surface area there, that’s a very small vent. You don’t have a lot of pounds per square inch on the surface area of the vent. Plus you got a steel right up the middle that holds the vent in place. You’re going have to [sic] bend that steel rod or disjoin the vent flapper itself from the rod.” He testified that the “pressure differential between the inside of the box and outside of the box is relatively small. You don’t have enough force” to push the vent open, and that in his scientific analysis of the issue, he would not have expected the vent to fail or be breached. Russo further testified that he examined burn patterns all over the building and that he examined the burn patterns from within the hot box and outside of the hot box. Russo also testified that he examined and discarded the theory that some propane from nearby tanks might have leaked out and come into contact with the hot box to cause the explosion or that the smaller hot box might have somehow been involved. He examined burn patterns and other characteristics of the fire distribution. Regarding the bungs, he testified, “[Y]ou notice the bungs [are] removed. Those bungs, after the low order explosion, are going to be in the same spot. You don’t have differential pressure to blow those bungs out or give direction to this — this type of event.” Russo testified that all of his investigation indicated “the fire actually emanating at the hot box and then mov[ing] into the combustibles of the label storage room.” He testified that he used the scientific method to arrive at his conclusions and stated, “What I’m trying to do is bracket the area of origin, so if all — either if all the indicators point to it or there’s something that says, Hey, you’re not right. So I’m literally looking for that.” During cross-examination, Russo agreed that the chlorpyrifos drums in the hot box “showed no signs of explosion or high pressure ... from within the drum[s].” When counsel asked, “And you saw at least to some extent, the ones you could see, you had the bung caps sitting right up there on top of the drums where they had been set by the workers?” Russo replied, ‘Yes, sir. I didn’t — I didn’t see bungs on any drums.” Regarding testing, on cross-examination, Russo testified that the 3M badge testing was the only testing he was aware of CSI having done — the other samples that were collected from inside the chlorpyrifos drums were never tested, “though there [were] other tests on other pieces of equipment.” Russo also testified that the 3M badge test was completely different from testing “the virgin product” before it was damaged by fire. Regarding testing the coke and ash buildup from the burned drums, Russo testified that, in some ways, the 3M badge test was different and in some ways it was similar. He stated, “[0]ne of the things you would do with the coke is to heat the coke, drive the vapors out of the coke and absorb it into a charcoal strip or, in essence, a 3M badge. So in part this would be exactly the same analysis that’s conducted on the coke material.” Regarding the results of the 3M badge testing, Russo testified that type of testing “can be” both qualitative and quantitative “with appropriate standards and analysis. It’s used every day in the laboratory to measure how many parts per million or how many parts per billion of compounds you have.” He testified that in this case, the testing results were not quantitative, but that the results did present the relative amounts of particular compounds. Regarding differential burning, Russo testified that he identified the area around drums two and three that showed different burn patterns, and he concluded that the drums in that area were the ones that contained the contaminated chlorpyrifos. Russo testified that he was not asked during his direct examination about which contaminant caused the problem. Russo again testified that he did not interview the firefighters — that he had another investigator do that and report back to him the information developed in the interviews. He testified that firefighters “saw fire in the northwest corner and that when they made entry, they saw it to the right. They entered the main door and saw it to the right.” Russo also confirmed that the drums that he identified as containing the contaminant were either TF-2, TF-3, or TF-4 and that those same drums did not show any EDO levels in the testing done by Dr. Armstrong. Russo further testified that he received a number of documents from Gharda, but, regarding testing done by Gharda or other experts, “[t]he chemistry has not been my assignment. And I — I—there are chemists to evaluate that.” He testified that he did not conduct any calculations or testing to determine what “the yield strength of [the hot box latches] were” because he did not need to: “I know it failed under the conditions of the event. I know that’s a fact.” Russo agreed that the drums from the hot box had been exposed to other chemicals during the fire, before the charcoal badge tests were performed. He testified that was “why we were comparing the different badges to see what was the same in all of the drums. That would be material that was absorbed from the warehouse. What we’re looking for are spikes in chemicals that were not evenly distributed in the sample.” He testified, consistent with his deposition testimony, that he was not prepared to identify which chemical caused the fire or what the ignition source might be. He testified that possible ignition sources he considered were electrical sparking, perhaps a connection on the heater strips. That’s why I asked that — that hot box be sent to an electrical engineer, Mr. Owens, who made an examination to see if there were any sparks. Also made a determination as to whether or not the hot box is operating correctly. That’s one possibility. Thermal degradation of the product. The product, when it degrades, it becomes exothermic, which means it’s self-heat generating, and that can accelerate the — the product to a temperature that you can get — you will get auto ignition or can get auto ignition. Obviously with a recirculating system, if you got particulates in that system, you can generate static electricity.... At this point I don’t have an ignition source that I’m willing to identify within a reasonable degree of scientific probability. I’ll defer to the chemist who’s looked at that. GUSA’s counsel asked, “If no one can tell us how much fuel was in there, then we can’t possibly say what caused this fire?” Russo responded, “I — I wouldn’t agree with that. I just said I wouldn’t do it.... I would want to know that I had sufficient fuel to reach the lower explosive limit and that that would be available in the original product.” On redireet-examination, Russo testified that his investigation indicated that the fire started with “ignitable vapor within the hot box” and that the only thing in the hot box was drums of chemicals from Gharda, so he concluded, based on those two facts, that the ignitable vapor came from the Gharda chemicals. He testified that all of the evidence he looked at led to that conclusion and that the fact that he did not have an ignition source that he could identify “probably means I’m just not smart enough to identify it or I haven’t seen enough evidence. But the bottom line is we did have ignition. So I know it exists. It’s not a — not an imaginary thing.” He also testified that the products in the warehouse fire had been “significantly heat stressed. EDC’s a very volatile product. For it to remain after a fire like this would be a bit unusual and might indicate a very high concentration” but that he “would defer to the chemist the things” that were within the chemist’s purview. Gharda’s attorney asked if he could have concluded two days after the fire what caused it. Russo testified that “there may be fire investigators who would determine the cause as being an explosion in the hot box and it would be possible to do that,” but he did not do that. He testified that he had “a higher standard of scientific responsibility to eliminate a number of possibilities, and I systematically did that for my job” and that he had to follow the scientific method. He specifically testified that he did not start his investigation with any particular conclusion in mind and that he does not “reverse engineer” his investigations. b. Analysis To show that Russo’s testimony was unreliable as a matter of law and, therefore, barred by the rules of evidence and improperly submitted to the jury, Gharda had to show that Russo was unqualified or that his testimony was not relevant or reliable. See Mendez, 204 S.W.3d at 800; Robinson, 928 S.W.2d at 556. Gharda challenged the relevance and reliability of Russo’s testimony. It makes no argument and cites no authority showing that Russo, as a professional fire investigator, was unqualified to opine on the origin of the fire. We conclude that Ghar-da failed to show that this testimony should have been barred. Russo testified that the nature of investigating the origin of a fire is something that is not readily subject to testing. Rather, it involves application of some standard protocols and depends to some extent on the experience and subjective interpretation of the investigator. In this regard, Russo’s investigation is comparable to other types of accident-reconstruction testimony, in which the supreme court has held that it is appropriate to analyze whether the expert’s opinion actually fits the facts of the case and whether there are any significant analytical gaps in the expert’s opinion that undermine its reliability. See Hughes, 306 S.W.3d at 235; Le-desma, 242 S.W.3d at 39. Russo testified regarding the very thorough nature of his investigation, the multiple theories or potential sources for the fire he considered and the reasons he rejected many of those theories, and the use he made of other information and physical evidence from the fire. He based his opinion regarding the location of the origin of the fire on video footage taken by news helicopters during the fire, on firefighter testimony, information about the contents of the warehouse, burn patterns and physical evidence at the scene, including the nature of the damage to the hot box itself, and several other sources. Thus, we conclude that, although his theory, by nature of the investigation itself, does not lend itself to testing, his opinion fits the facts of the case and there are no significant analytical gaps in his testimony explaining why he determined that the fire originated in the hot box. See Hughes, 306 S.W.3d at 235. Gharda’s argument that Russo did no testing, including that he failed to test his hypothesis about where the fire started, is without merit. Gharda argues, “For example, if the hot box had contained drums with water, Russo would have reconsidered his origin assumptions. Though the drums did not contain water, the same principle applies.” Furthermore, the evidence shows that Russo conducted testing on the contents of the drums and recommended that a chemist interpret those tests. The tests showed that the drums did not contain a benign substance such as water; rather, they contained known flammable substances. This was sufficient testing to support Russo’s conclusion that ignition of flammable vapors in the hot box was the source of the fire. Russo also had Owen, an electrical engineer, inspect the hot box and other items for a mechanical or electrical malfunction. Russo’s testimony is also reliable when considering several other Robinson factors. See Whirlpool Corp., 298 S.W.3d at 639-40 (recognizing that some subjects do not lend themselves to scientific testing and scientific methodology, but that many cases require evaluating expert testimony by considering both Robinson-type factors and by examining for analytical gaps in testimony). The methodology Russo used in conducting his investigation, NFPA 921, has been subjected to peer-review and publication, and it has been generally accepted as valid by the relevant scientific community. It is the method used by the Harris County Fire Marshal’s Office and many other accredited fire investigators, and Gharda does not dispute the validity of the NFPA methodology. See Mendez, 204 S.W.3d at 801 (discussing Robinson factors). Gharda claims, however, that Russo violated NFPA’s standard that the investigator “interview people with knowledge of information about the events” by failing to interview firefighters. However, this is a mischaracterization of the evidence. Russo testified that he did not personally interview the firefighters, but a member of his investigatory team conducted those interviews and reported back to him. Thus firefighter interviews were conducted as part of Russo’s investigation. Gharda also claims that Russo did not follow NFPA 921’s statement that fires usually start at the lowest point in the areas of greatest burn. However, Russo’s testimony explained why CSI’s fire presented an unusual situation and why he concluded that the fire started in a different location, namely, the initial videos did not show that the lowest point was involved in the early stages of the fire. He also testified that some of the chemicals in the warehouse burned hotter than other materials in spite of burning for shorter amounts of time, which would affect the appearance of the burn patterns, and that firefighters made the decision to let certain areas of the warehouse burn longer than others as a method of preventing environ