Westfreight Systems Inc. v. John Michael Heuston, Individually and as Dependent Administrator of the Estate of Juana Garza, and Geronimo Rodriguez, Individually ( 2015 )

ACCEPTED
04-14-00124-CV
FOURTH COURT OF APPEALS
SAN ANTONIO, TEXAS
1/9/2015 9:52:25 PM
KEITH HOTTLE
CLERK
NO. 04-14-00124-CV
IN THE COURT OF APPEALS OF TEXAS FILED IN
FOURTH APPELLATE DISTRICT 4th COURT OF APPEALS
SAN ANTONIO, TEXAS
AT SAN ANTONIO
01/9/2015 9:52:25 PM
*****
KEITH E. HOTTLE
WESTFREIGHT SYSTEMS INC. Clerk
v.
JOHN MICHAEL HEUSTON, individually and as
dependent administrator of the ESTATE OF JUANA
GARZA, deceased, and GERONIMO RODRIGUEZ,
individually
*****
Reply and Cross-Appellee’s Brief of
Westfreight Systems Inc.
*****
th
On Appeal from the 79 District Court, Jim Wells County, Texas
Hon. Richard Terrell, Judge
Cause No. 12-03-50966-CV
*****
Brian Miller
State Bar No. 24002607
ROYSTON RAYZOR
VICKERY & WILLIAMS L.L.P.
Frost Bank Plaza, Suite 1300
802 N. Carancahua St.
Corpus Christi, TX 78401
Tel. No. (361) 884-8808
Fax No. (361) 884-7261
E-mail: brian.miller@roystonlaw.com
Lead appellate counsel for appellant
Westfreight Systems Inc.
ORAL ARGUMENT REQUESTED
TABLE OF CONTENTS
INDEX OF AUTHORITIES ......................................................................... iii
ISSUES PRESENTED .................................................................................. vi
SUMMARY OF REPLY AND CROSS-APPELLEE ARGUMENTS ......... 1
ARGUMENT .................................................................................................. 2
I. Plaintiffs did not provide legally sufficient evidence of proximate
cause. ........................................................................................................... 2
A. Plaintiffs apply an incorrect definition of “cause in fact.”................. 2
B. Westfreight did not admit to proximate cause. .................................... 3
C. Plaintiffs’ experts did not provide competent evidence of proximate
cause. ........................................................................................................ 4
1. An objection to admissibility is not a prerequisite when opinion
testimony is conclusory or speculative. ............................................... 4
2. Critical to Plaintiffs’ theory is opinion testimony that Garza
could not perceive the rig’s presence ahead of her.............................. 9
3. Plaintiffs offered only conclusory and speculative opinion
testimony that the rig was not sufficiently visible to Garza. ............. 14
D. No other evidence shows that Westfreight’s conduct created more
than a condition necessary for the collision to occur. ........................... 18
E. Plaintiffs have not ruled out other plausible explanations, such as
driver inattention, as the sole or superseding cause of the accident. .... 23
F. The foreseeability component is also absent. .................................... 24
II. Plaintiffs are not entitled to a new trial. ............................................... 26
A. Plaintiffs’ new trial complaint is moot because the evidence does not
support Westfreight’s liability................................................................ 26
i
B. A new trial may not be granted for factual insufficiency of the
evidence. ................................................................................................. 27
1. Any factual insufficiency point is waived by inadequate
briefing. .............................................................................................. 27
2. The evidence is factually sufficient to support the jury’s
negligence and apportionment findings against Garza...................... 29
C. A new trial may not be granted for improper witness coaching. ...... 30
1. Plaintiffs did not preserve this issue in the trial court. .................. 30
2. Plaintiffs’ inadequate briefing waived the issue............................ 31
3. The record does not show that any impropriety occurred. ............ 32
4. Even assuming that improper coaching occurred, Plaintiffs have
not shown that the trial court abused its discretion by denying a
new trial. ............................................................................................ 33
CONCLUSION AND PRAYER FOR RELIEF ........................................... 35
CERTIFICATE OF SERVICE ..................................................................... 37
CERTIFICATE OF WORD-COUNT COMPLIANCE ............................... 38
ii
INDEX OF AUTHORITIES
Cases
Abdelnour v. Mid Natl. Holdings Inc., 190 S.W.3d 237 (Tex. App. –
Houston [1st Dist.] 2006, no pet.) ............................................................. 28
Alamo Carriage Serv. Inc. v. City of San Antonio, 768 S.W.2d 937 (Tex.
App. – San Antonio 1989, no writ) ........................................................... 30
Bell v. Campbell, 434 S.W.2d 117 (Tex. 1968)................................. 12-14, 18
Cain v. Bain, 709 S.W.2d 175 (Tex. 1986) .................................................. 29
City of Kemah v. Vela, 149 S.W.3d 199 (Tex. App. – Houston [14th Dist.]
2004, pet. den.) .................................................................................... 12, 18
City of San Antonio v. Pollock, 284 S.W.3d 809 (Tex. 2009) ..... 5, 7-8, 14, 17
Coastal Transport Co. Inc. v. Crown Cent. Petrol. Corp., 136 S.W.3d 227
(Tex. 2004) ............................................................................................... 4-8
ERI Consulting Engineers Inc. v. Swinnea, 318 S.W.3d 867 (Tex. 2010) ... 28
Erie Ins. Exch. v. U.S., 115 F. Supp. 2d 493 (M.D. Pa. 2000) ................. 13, 18
Fitzsimmons v. Brake Check Inc., 832 S.W.2d 446 (Tex. App. – Houston
[14th Dist.] 1992, no writ) .......................................................................... 19
Fort Worth & Denver City Railway Co. v. Garrett, 28 S.W.2d 301 (Tex.
Civ. App. 1930, writ ref’d) ........................................................................ 12
Gammill v. Jack Williams Chevrolet Inc., 972 S.W.2d 713 (Tex. 1998) ....... 4
Garza v. Garza, No. 4-11-310-CV, 2013 WL 749727 (Tex. App. – San
Antonio Feb. 27, 2013, no pet.)................................................................. 29
In re Toyota Motor Sales U.S.A. Inc., 407 S.W.3d 746 (Tex. 2013) ........... 31
In re United Scaffolding Inc., 377 S.W.3d 685 (Tex. 2012) ........................ 30
Jackson v. Williams Brothers Construction Co., 364 S.W.3d 317 (Tex. App.
– Houston [1st Dist.] 2011, pet. den.) ........................................................ 28
iii
Jelinek v. Casas, 328 S.W.3d 526 (Tex. 2010) ............................................ 16
Marathon Corp. v. Pitzner, 106 S.W.3d 724 (Tex. 2003) .............................. 2
Maritime Overseas Corp. v. Ellis, 971 S.W.2d 402 (Tex. 1998) ................... 6
Merrell Dow Pharmaceuticals Inc. v. Havner, 953 S.W.2d 706 (Tex. 1997)
..................................................................................................................... 4
Shupe v. Lingafelter, 192 S.W.3d 577 (Tex. 2006) ...................................... 27
Ski River Development Inc. v. McCalla, 167 S.W.3d 121 (Tex. App. – Waco
2005, pet. den.) .......................................................................................... 34
Teter v. Comm’n for Lawyer Discipline, 261 S.W.3d 796 (Tex. App. –
Dallas 2008, no pet.).................................................................................. 28
Tex. & New Orleans R. Co. v. Compton, 136 S.W.2d 1113 (Tex. 1940) ..... 21
Tex. Elec. Co-op. v. Dillard, 171 S.W.3d 201 (Tex. App. – Tyler 2005, no
pet.) ............................................................................................................ 18
Union Pump Co. v. Allbritton, 898 S.W.2d 773 (Tex. 1995) ......................... 3
Utz v. Running & Rolling Trucking Inc., 32 So. 3d 450 (Miss. 2010) .......... 15
Volkswagen of America Inc. v. Ramirez, 159 S.W.3d 897 (Tex. 2004) ...... 7-8
Wal-Mart Stores Inc. v. Merrell, 313 S.W.3d 837 (Tex. 2010) ................... 24
Watts v. Watts, 396 S.W.3d 19 (Tex. App. – San Antonio 2012, no pet.)
............................................................................................................. 33- 34
Whirlpool Corp. v. Camacho, 298 S.W.3d 631 (Tex. 2009) ...................... 4, 6
Wolf v. Friedman Steel Sales Inc., 717 S.W.2d 669 (Tex. App. – Texarkana
1986, writ ref’d n.r.e.) ............................................................................... 25
Statutes
TEX. CIV. PRAC. & REM. CODE §33.003 ....................................................... 26
TEX. CIV. PRAC. & REM. CODE §41.001 ........................................................ 34
TEX. TRANSP. CODE §541.302 ...................................................................... 20
iv
TEX. TRANSP. CODE §545.415 ....................................................................... 20
Rules
TEX. R. APP. P. 33.1 ...................................................................................... 31
TEX. R. APP. P. 38.1 ................................................................................ 28, 32
TEX. R. APP. P. 43.3 ...................................................................................... 26
TEX. R. APP. P. 44.1 ...................................................................................... 34
TEX. R. CIV. P. 321........................................................................................ 31
TEX. R. CIV. P. 322........................................................................................ 31
v
ISSUES PRESENTED
Westfreight presents this issue:
Did Plaintiffs present legally sufficient evidence of
proximate causation, such that the trial court could render
judgment on a jury verdict? Or was the evidence legally
insufficient, requiring the rendering of a take-nothing
judgment?
Appellant’s brief, at xi.
Plaintiffs cross-appealed and present the following additional issue
(which is restated):
Did the trial court abuse its discretion by denying
Plaintiffs’ motion for new trial?
See Appellees’ brief, at viii, 47-49.
vi
SUMMARY OF REPLY AND CROSS-APPELLEE
ARGUMENTS
The evidence of proximate cause is not legally sufficient to sustain the
judgment against Westfreight Systems Inc. Essential to Plaintiffs’ causation
theory was opinion testimony that the Westfreight tractor-trailer rig was not
sufficiently conspicuous to allow Juana “Janie” Garza to perceive its
presence ahead of her. That opinion testimony, however, was conclusory and
speculative and therefore incompetent to sustain a judgment. No other
evidence shows that Westfreight’s conduct amounted to more than a
condition necessary for the collision to occur. See below, at 2-26. 1
Although Plaintiffs seek a new trial by their cross-appeal, the cross-
appeal is mooted by the legal insufficiency of the evidence to support
Westfreight’s liability. Plaintiffs nonetheless forfeited their new trial
grounds by failing to preserve them in the trial court, inadequately briefing
them on appeal, or both. Regardless, neither Plaintiffs’ factual-sufficiency
challenge nor their witness-coaching allegations show that the trial court
abused its discretion by denying a new trial. See below, at 26-35.
1
This brief uses the term “Plaintiffs” to refer to all of the plaintiffs-appellees in all of
their capacities. See Appellant’s brief, at ix fn. 1.
1
ARGUMENT
I. Plaintiffs did not provide legally sufficient evidence of proximate
cause.
Westfreight’s appeal challenges the legal sufficiency of Plaintiffs’
proximate cause evidence. Appellant’s brief, at xi (issues presented). “The
components of proximate cause are cause in fact and foreseeability.”
Marathon Corp. v. Pitzner, 106 S.W.3d 724, 727 (Tex. 2003). Westfreight’s
opening brief explained how Plaintiffs’ evidence failed to establish each
component. Appellant’s brief, at 14-38.
A. Plaintiffs apply an incorrect definition of “cause in fact.”
Westfreight’s opening brief explained that “but for” causation is
necessary – but not sufficient – to establish cause in fact. Appellant’s brief,
at 13-14. Texas uses a “substantial factor” standard for cause in fact, asking
“whether the act or omission was a substantial factor in causing the injury
without which the harm would not have occurred.” Marathon, at 727.
Plaintiffs’ brief never addresses “substantial factor” causation. The
word “substantial” does not appear in their brief. Plaintiffs address only
“but-for” causation. See, e.g., Appellees’ brief, at 36-37 (purported
admissions of “but for” causation).
Plaintiffs argue an erroneous causation standard. The law requires a
closer causal relationship than mere “but for” causation. See Appellant’s
2
brief, at 13-14 (additional discussion). “Substantial factor” causation is
essential to establish that the defendant’s conduct did something more than
merely furnish a “condition that makes the plaintiff’s injury possible.” Union
Pump Co. v. Allbritton, 898 S.W.2d 773, 776 (Tex. 1995).
Plaintiffs’ exclusive focus on “but-for” causation is therefore
misplaced.
B. Westfreight did not admit to proximate cause.
Plaintiffs dedicate much of their brief to testimony about
Westfreight’s negligence. See, e.g., Appellees’ brief, at 5-17. But whether
Westfreight was negligent is not at issue in this appeal. Appellant’s brief, at
xi (statement of issues). Westfreight’s challenge to the trial court’s judgment
is based on the absence of evidence to support the proximate cause element
of Plaintiffs’ negligence claim. Id.
Plaintiffs assert that Westfreight admitted “but for” causation, as if
that were sufficient to establish cause in fact. See Appellees’ brief, at 19-21,
36-37. But, as just discussed above, at 2-3, “substantial factor” causation is
also an essential component of cause in fact, and Plaintiffs’ brief never
addresses that component.
Even as to “but for” causation, the purported admissions are not what
Plaintiffs claim them to be. Plaintiffs cite and quote the testimony of
3
Westfreight safety director James Semeschuk, but nearly all of the testimony
is in terms of what “could have” happened if different actions were taken.
See Appellees’ brief, at 20-21, citing and quoting R.R. 5:274-276.
Testimony of what “could have” happened is speculative because the
testimony only identifies what is possible. Gammill v. Jack Williams
Chevrolet Inc., 972 S.W.2d 713, 728 (Tex. 1998) (testimony of what “could
have happened” held insufficient). The burden of proof requires evidence
about what was probable – that is, “more likely than not.” Merrell Dow
Pharmaceuticals Inc. v. Havner, 953 S.W.2d 706, 717 (Tex. 1997).
C. Plaintiffs’ experts did not provide competent evidence of
proximate cause.
1. An objection to admissibility is not a prerequisite when
opinion testimony is conclusory or speculative.
Westfreight’s opening brief explained that conclusory and speculative
opinion testimony is “not relevant evidence” because it does not “make the
existence of material facts more probable or less probable.” Whirlpool Corp.
v. Camacho, 298 S.W.3d 631, 637 (Tex. 2009), quoted in Appellant’s brief,
at 11 (providing additional discussion). Such testimony is “incompetent
evidence” and “cannot support a judgment.” Coastal Transport Co. Inc. v.
Crown Cent. Petrol. Corp., 136 S.W.3d 227, 232 (Tex. 2004).
4
Westfreight’s opening brief also explained that Plaintiffs relied on
conclusory and speculative opinion testimony to assert that the accident
happened because the Westfreight rig was not sufficiently visible to Garza.
Appellant’s brief, at 18-36. In response, Plaintiffs claim that Westfreight was
required to object to the admissibility of the opinion testimony to preserve
that legal sufficiency complaint. Appellees’ brief, at 28-33. Plaintiffs are
wrong.
Plaintiffs acknowledge that the Texas Supreme Court has drawn “a
distinction between challenges to an expert’s scientific methodology and no
evidence challenges where, on the face of the record, the evidence lacked
probative value.” Coastal, at 233 (quot. omitted), quoted in City of San
Antonio v. Pollock, 284 S.W.3d 809, 817 (Tex. 2009), in turn quoted in
Appellees’ brief, at 30. The difference is that, with a methodology challenge,
“a court necessarily looks beyond what the expert said to evaluate the
reliability of the expert’s opinion.” Coastal, at 233 (quot. omitted). But if
“the testimony is challenged as conclusory or speculative and therefore non-
probative on its face, however, there is no need to go beyond the face of the
record to test its reliability.” Id.
5
Westfreight’s challenge is limited to the face of the record. See
Appellant’s brief, at 18-36. Westfreight challenges the sufficiency of what
Plaintiffs’ experts actually said.
Citing Maritime Overseas Corp. v. Ellis, Plaintiffs argue that allowing
a legal sufficiency challenge is “unfair” and subjects them “to trial and
appeal by ambush.” 971 S.W.2d 402, 409-411 (Tex. 1998), quoted in
Appellees’ brief, at 29. But in Coastal, the Texas Supreme Court
distinguished Maritime Overseas as a case that required an examination of
evidence “beyond what the expert said.” Coastal, at 233. The Maritime
Overseas situation thus required a trial court to exercise “discretion in
making a determination of whether the expert testimony is sufficiently
reliable.” Id.
On the other hand, whether opinion testimony is conclusory or
speculative on its face is a question of law, not a matter of trial court
discretion. Id. at 232; Whirlpool, at 638. The question does not require a trial
court to resolve disputed predicate facts. The question is solely one of legal
sufficiency of the evidence presented at trial. Id.
Coastal emphasized that “Maritime Overseas did not change the
general rule that bare conclusions – even if unobjected to – cannot constitute
6
probative evidence,” even when those conclusions come from expert
witnesses. Coastal, at 233.
That point is underscored in Pollock, a case that Plaintiffs abundantly
quote. Appellees’ brief, at 30-31. Pollock reiterated that “a party may
complain that conclusory opinions are legally insufficient evidence to
support a judgment even if the party did not object to the admission of the
testimony.” 284 S.W.3d at 816. Pollock quoted extensively from Coastal’s
discussion of the distinction between “beyond what the expert said”
challenges (which require an objection) and “face of the record” challenges
(which do not). Id. at 817, discussing Coastal, at 233.
Pollock also explained that an opinion is not sufficient merely because
an expert articulates some basis for the opinion. 284 S.W.3d at 817. Thus,
“even when some basis is offered for an opinion, if that basis does not, on its
face, support the opinion, the opinion is still conclusory.” Id.
Pollock cited Volkswagen of America Inc. v. Ramirez as an example.
Pollock, at 817, discussing Volkswagen, 159 S.W.3d 897, 901-902 (Tex.
2004). In Volkswagen, the court assumed that “the expert’s methodology
was reliable” because “the defendant had not objected to it.” Pollock, at 817-
818, discussing Volkswagen, at 910-911. Nonetheless, “taking the record at
7
face value,” the expert’s opinion was conclusory because the basis for his
opinion did not adequately support his opinion. Id.
Pollock also shows that an opinion may be conclusory even when an
expert purports to rely on tests and studies. 284 S.W.3d at 818-820. In
Pollock, one expert’s opinions were conclusory because the record provided
“no evidence whatever from which one could infer” a necessary link
between test results from a well and the expert’s opinions about benzene
concentration in an adjacent home. Id. at 818-819. A second expert’s
opinions in Pollock were conclusory, even though that expert relied on
published studies, because the studies’ conditions were too dissimilar for the
studies to support the expert’s opinions. Id. at 819-820.
The expert opinions in Pollock were admitted without objection. Id. at
816. The lack of an objection did not preclude the determination, on appeal,
that the expert opinions were conclusory and therefore incompetent to
support a judgment. Id. at 818-820.
As in Coastal, Volkswagen, and Pollock, the challenge in this case is
on the face of the trial record. Coastal, at 231-233; Volkswagen, at 910-911;
Pollock, at 817-820. Such a legal sufficiency challenge does not require a
trial court objection to admissibility. Id.
8
2. Critical to Plaintiffs’ theory is opinion testimony that
Garza could not perceive the rig’s presence ahead of her.
Plaintiffs’ brief does not mention that Janie Garza’s minivan collided
into the rear of the Westfreight rig. See, e.g., Appellees’ brief, at 17-19
(describing the collision). As Plaintiffs’ accident reconstructionist James
Lock testified, the left front of Garza’s minivan struck the right rear corner
of the trailer. R.R. 4:43; see also Appellant’s brief, at 3-5 (describing the
collision).
Plaintiffs’ brief suggests that the Westfreight rig had just “pulled out”
in front of Garza’s minivan when the accident occurred. See, e.g., Appellees’
brief, at 25. Their brief suggests that the right northbound lane was free until
a mere instant before the collision. Id. at 43.
But that is not what happened. Those suggestions blatantly contradict
the record.
Plaintiffs’ accident reconstructionist Lock prepared diagrams that
showed the location of the rig as it backed out of the National Oilwell yard.
Pl. Exh. 242, 243. Lock relied on physical evidence to prepare the diagrams.
R.R. 4:40. That physical evidence included “gouge marks” in the roadway
“where the van at impact was crushed downward into the pavement.” R.R.
4:40-41, 44. That physical evidence also included police photographs that
9
showed fresh tire marks. R.R. 4:44-46. Those marks allowed him to “see
exactly what the path of travel was” for the rig. R.R. 4:44.
Lock’s diagrams show how the rig occupied the right northbound lane
of Business U.S. Highway 281 during the backing process and while the rig
was moving forward, up to the moment of collision. Lock explained that
“the trailer was always in her [Garza’s] lane.” R.R. 4:78.
Lock’s first diagram, excerpted below, shows the location of the rig
when the rig stopped moving backwards:
Pl. Exh. 242 (Appx. 29). 2 A second diagram, excerpted below, shows the
location of the rig when the collision occurred:
2
“Appx.” references are to the appendix to Westfreight’s opening brief.
10
Pl. Exh. 243 (Appx. 30).
The rig did not suddenly move into those positions. Lock testified that
the “truck was out in the road for over one minute.” R.R. 4:46; see also R.R.
4:57-58 (similar). Plaintiffs’ trucking safety expert David Stopper gave a
similar opinion: His re-enactment showed that it took “about a minute and
13 seconds” to back the rig and then have his spotter return from the rear of
the rig to the cab. R.R. 4:204-205. Bailey said that backing the truck took
“approximately a minute, minute-and-a-half,” R.R. 5:74-75, and agreed with
an estimate of 23 seconds to walk from the spotter position to the cab. R.R.
5:95.
The rig moved slowly forward. As Lock testified, a truck is “a very
slow-moving vehicle” when it moves forward from a stop. R.R. 4:82. He
estimated the rig’s speed at 5 miles per hour at the moment of collision. R.R.
4:79; see also Appellant’s brief, at 5 (collecting testimony on forward
motion of rig).
11
Garza had a flat, straight approach to the accident site. Appellant’s
brief, at 4-5 (collecting testimony about the approach). Even assuming that a
small hill affected her view, the hill was a half-mile away, and at the speed
limit, she still had 25 to 30 seconds to see the rig before the collision. Id.
Critical to Plaintiffs’ liability theory is that Garza could not realize
that the rig was occupying the right northbound lane. As Westfreight’s
opening brief discussed, “blindside backing” did not proximately cause the
accident. Appellant’s brief, at 14-18. That process had ended, and the rig
was moving forward when the collision occurred. Id. The result of that
process was a slow-moving rig ahead of Garza.
Proximate cause is not established merely because a defendant
negligently caused an obstruction on a roadway. See id., citing, e.g., Bell v.
Campbell, 434 S.W.2d 117, 120-121 (Tex. 1968) (overturned trailer on road,
no proximate cause as matter of law); Fort Worth & Denver City Railway
Co. v. Garrett, 28 S.W.2d 301, 305 (Tex. Civ. App. 1930, writ ref’d) (rail
cars blocking road, no proximate cause as matter of law). Such an
obstruction ordinarily does “no more than furnish the condition” that made a
collision possible. City of Kemah v. Vela, 149 S.W.3d 199, 204 (Tex. App. –
Houston [14th Dist.] 2004, pet. den.) (collision into rear of patrol car parked
12
on road); see also Bell, at 120 (similar statement, second collision at
accident site).
Approaching drivers are expected to recognize conditions on the
roadway ahead and act accordingly, and they do in the overwhelming
majority of situations. Even stopped vehicles on highways are “by no means
an uncommon experience” but something that “any driver at any time must
anticipate, whether the stopped vehicle is the result of an accident, road
construction, a car stopped to permit an animal to cross, a snowstorm,
intense rainfall, or any other such occasional roadway phenomenon.” Erie
Ins. Exch. v. U.S., 115 F. Supp. 2d 493, 496 (M.D. Pa. 2000). In our case, the
accident scene presented additional reasons to anticipate stopped or slowed
vehicles, including an intersection with another highway (FM 3376) and the
driveways for several businesses, all along Garza’s approach. 3
A plaintiff must show that a roadway condition, such as a slowed or
stopped vehicle, was more than a mere “condition” or “but for” cause that
allowed the collision to occur. See Appellant’s brief, at 13-14, and above, at
2-3, 12-13. That is true even when the defendant’s negligence created the
3
See Pl. Exh. 243 (Appx. 30) (diagram of collision site); see also, e.g., Pl. Exh. 192,
Photo No. 566 (Appx. 26) (photograph of intersection); Pl. Exh. 62 (Appx. 27) (aerial
photograph of scene); Pl. Exh. 192, Photo No. 615 (Appx. 28) (photograph showing
intersection and businesses along Garza’s approach to collision site).
13
condition. See, e.g., Bell, at 120 (defendants’ negligence was “but for” cause
but not proximate cause).
To make that additional showing, Plaintiffs offered expert testimony
that the rig was not sufficiently visible to Garza. That testimony, however,
was legally insufficient for that purpose. See, e.g., Appellant’s brief, at 18-33
(discussing that testimony); see also below, at 14-17.
3. Plaintiffs offered only conclusory and speculative opinion
testimony that the rig was not sufficiently visible to Garza.
Plaintiffs’ trucking safety expert Stopper opined that Garza could not
see that a rig was ahead of her because the rig’s taillights and side lights
were “basically dots in space” and meaningless to her. R.R. 4:214; see also
Appellant’s brief, at 18-19 (additional discussion). Westfreight’s opening
brief explained why Stopper’s theory was conclusory and speculative, even
though Stopper purported to base his theory on the adoption of regulations to
require retroreflective tape on rigs and on two studies of accident rates.
Appellant’s brief, at 20-30.
As Pollock explained, an opinion can be conclusory or speculative
even though an expert offers a basis for the opinion. 284 S.W.3d at 817-820.
Where “the basis offered provides no support, the opinion is merely a
conclusory statement and cannot be considered probative evidence,
14
regardless of whether there is no objection” at trial to the opinion’s
admissibility. Id. at 818.
Plaintiffs, in their brief, again offer the adoption of regulations and the
studies as bases for Stopper’s opinion. See Appellees’ brief, at 18 (tape), 28-
29 (studies). Plaintiffs say, “Reflective tape is important because both the
United States and Canadian governments have determined that side lights
alone are not sufficiently recognizable.” Id.at 18. While retroreflective tape
may help prevent some collisions, such a statement does nothing to explain
this collision. See Appellant’s brief, at 21 (additional discussion). Such a
statement, if used as a basis for causation, would also absurdly “lead to the
conclusion that in the absence of reflective tape, it is impossible for any
driver to see any commercial transport tractor trailer at night.” Utz v.
Running & Rolling Trucking Inc., 32 So. 3d 450, 467 (Miss. 2010). 4
For many years, however, rigs were operated without retroreflective
tape, and on the overwhelming majority of occasions, drivers recognized the
presence of the rigs from their tail and side lights and the reflection of
4
Plaintiffs attempt to distinguish Utz on various facts and procedural history differences,
but they never discuss why the just-quoted statement is wrong. Appellees’ brief, at 47.
Plaintiffs also suggest that their experts’ testing distinguishes Utz, but that testing only
measured the reflectivity of the retroreflective tape and the time needed to perform
backing and pulling-forward maneuvers. Appellees’ brief, at 47, citing R.R. 4:168-169,
228-229, 235-240 (tape), 197-198, 203-205 (maneuvers). Their testing did nothing to
support the conclusion that, despite the rig’s lights, better retroreflective tape was
necessary to make the rig conspicuous to approaching drivers.
15
headlights against the rigs. Many other vehicles are operated without
retroreflective tape today, and the lack of retroreflective tape does not make
those vehicles effectively invisible at night.
As to the studies, Plaintiffs now call them “learned treatises.”
Appellees’ brief, at 29. But Plaintiffs do not explain how the studies support
Stopper’s opinions. See id.
Nor do the studies support his opinions. Even assuming (without any
record basis) that the studies considered only similar accidents, the studies
contradict one another about whether the absence of retroreflective tape
doubles the risk of a collision (and therefore satisfies the “more likely than
not” burden of proof). Appellant’s brief, at 27-29 (additional discussion).
According to Stopper, one study found a 27 percent decrease with the use of
the tape (a 1.37 relative risk) while the other found up to a 58 percent
decrease (a 2.38 relative risk). Id. at 24, 27, citing R.R. 4:213. Stopper
provided no basis for choosing one study over the other, leaving equal
inferences about (and no basis to decide) which study is more correct. See
Appellant’s brief, at 28 (additional discussion), citing Jelinek v. Casas, 328
S.W.3d 526, 532 (Tex. 2010) (under equal-inference rule, “neither fact may
be inferred”).
16
And that was only one of multiple reasons why the studies do not
support Stopper’s conclusion. See also Appellant’s brief, at 23-30 (additional
reasons).
An expert’s reliance on studies does not ensure the legal sufficiency
of his opinions. As Pollock shows, a legal sufficiency challenge to an
expert’s reliance on studies must be sustained where, on the face of the
record, the studies fail to support the expert’s opinion. 284 S.W.3d at 819-
820. That is the situation here.
Beyond the fleeting mentions of the regulations and the two studies,
Plaintiffs say only that “the expert opinions were not bald assertions without
explanation or support.” Appellees’ brief, at 32-33. Plaintiffs do not identify
the supposed “explanation or support.” Like the opinions themselves,
Plaintiffs’ defense of those opinions is conclusory.
Plaintiffs’ brief also offers this opinion from their accident
reconstructionist Lock: “And I don’t care whether you have lights on or I
don’t care whether or not it doesn’t. It’s going to get hit because it creates a
very hazardous situation.” R.R. 4:83, quoted in Appellees’ brief, at 22. This
opinion too is conclusory. Lock offered no reason – not even a tangentially
related study – to support his bald assertion of certainty.
17
D. No other evidence shows that Westfreight’s conduct created more
than a condition necessary for the collision to occur.
A defendant’s negligence, resulting in a stopped or slowed vehicle or
other obstruction in a roadway, may create a condition necessary for an
accident to occur, but such negligence is not automatically the legal cause of
the accident. See, e.g., Bell, 434 S.W.2d at 120-121 (citing additional cases).
Drivers must anticipate slow-moving and stopped vehicles, for example,
because they are “by no means an uncommon experience.” Erie, 115 F.
Supp. 2d at 495. Something more is required to raise the defendant’s
negligence to a “substantial factor” in an approaching driver’s failure to
recognize the condition.
If the negligence results in a concealed obstruction, the concealment
may suffice to raise the defendant’s negligence from a mere condition to a
substantial factor in causing the accident. See, e.g., Tex. Elec. Co-op. v.
Dillard, 171 S.W.3d 201, 208 (Tex. App. – Tyler 2005, no pet.) (unmarked
carcass of dead cow on dark road). On the other hand, if the slow or stopped
vehicle or other obstruction is visible to approaching traffic at a distance that
allows a timely response, the negligence that caused the obstruction is not,
as a matter of law, a legal cause of the accident. See, e.g., Bell, 434 S.W.2d
at 120-121 (citing additional cases, overturned trailer on road); City of
Kemah, 149 S.W.3d at 204 (patrol cars parked on road); Fitzsimmons v.
18
Brake Check Inc., 832 S.W.2d 446, 449-450 (Tex. App. – Houston [14th
Dist.] 1992, no writ) (lead vehicle rear-ended after slowing for loose wheel
on roadway).
As discussed above and in Westfreight’s opening brief, Plaintiffs
cannot rely on the opinion testimony about Garza’s purported inability to
“connect the dots” formed by the rig’s taillights and side lights. See above, at
14-17, and Appellant’s brief, at 18-33.
Nor do Plaintiffs’ contentions about “blindside backing” suffice.
Although backing onto a highway presents risks “if there is traffic on that
highway,” R.R. 5:187, Business 281 was empty except for Garza’s car,
which was at least a minute away when the longer-than-one-minute backing
process began. See above, at 11 (collecting testimony about duration of
backing process). If Garza were traveling at the speed limit, which increased
from 60 miles per hour to 70 miles per hour during the approach, R.R. 4:80,
6:25, she was at least one mile away when the backing process started.
Westfreight’s Rainsford Johnston did not see any traffic while he acted as
spotter. R.R. 5:73-76, 95, 100-101. Although Plaintiffs emphasize
Westfreight driver Jeffrey Bailey’s testimony about an “extreme degree of
risk” being possible to some “extent,” that testimony pertained to a situation
19
(“if there is traffic on that highway”) that did not exist. R.R. 5:187; see also
Appellees’ brief, at 9, 35. 5
A vehicle backing onto a roadway is not unforeseeable to an
approaching driver. The Texas Transportation Code permits the backing of
vehicles onto most roadways, including Business 281. 6 Even assuming that
it is negligent to back a vehicle onto a roadway when forward egress is
possible, trucks backing onto roadways is not unheard of on routes, like
Business 281, that serve commercial and industrial areas.
But ultimately, “blindside backing” could not be a proximate cause
because the backing process had completed, and the rig was moving
forward. See Appellant’s brief, at 14-18 (additional discussion). A slow-
moving rig could be in a similar position on the roadway for reasons
unrelated to “blindside backing,” such as a lane change or the completion of
5
Plaintiffs’ excerpts of that testimony do not answer this question: An extreme degree of
risk of what? Appellees’ brief, at 9, 35.
6
Section 545.415 of that Code states:
Sec. 545.415. BACKING A VEHICLE. (a) An operator may not
back the vehicle unless the movement can be made safely and
without interference with other traffic.
(b) An operator may not back the vehicle on a shoulder or
roadway of a limited-access or controlled-access highway.
Business U.S. Highway 281 is not a “limited-access or controlled-access highway.”
Compare TEX. TRANSP. CODE §541.302(8) (defining those terms) with above, at 13 fn. 3
(diagrams and photographs of scene).
20
a turn from the adjacent intersection. Id. The causation issue does not turn on
“blindside backing” but on Garza’s failure to react to the rig’s presence
ahead of her. 7
Plaintiffs also fault Johnston for not staying “at his post as the spotter
until the Westfreight truck was in a safe position off to the shoulder” of the
road. Appellees’ brief, at 42. But Plaintiffs offered no evidence that Johnston
would have prevented the collision from that position – even if Johnston
were equipped with a reflective vest and a flashlight, as Plaintiffs claim he
should have been. See Appellees’ brief, at 42, 44-45.
A similar contention was rejected in Texas & New Orleans Railroad
Co. v. Compton, 136 S.W.2d 1113 (Tex. 1940). In that case, the plaintiff
asserted that a statutorily required warning sign would have prevented a
collision of the deceased’s vehicle with a train. Id. at 1115. The court agreed
with opinions in earlier cases that, if a motorist “could not see the moving
[train] cars ahead of him” and timely react, there was no reason to believe
that a sign would have made any difference. Id.at 1115. The negligence in
7
In describing “blindside backing,” Plaintiffs’ brief refers to a “ditch in the median
separating the northbound and southbound lanes.” Appellees’ brief, at 7. Business 281
had a center turn lane but no median separating its northbound and southbound lanes, let
alone a ditch in a median. See, e.g., Pl. Exh. 62 (Appx. 27) (aerial view of accident site);
see also above, at 13 fn. 3 (additional diagrams and photographs of accident site).
21
not posting the sign was, as a matter of law, not a proximate cause of the
collision. Id.
Garza did not react to a lighted tractor-trailer rig ahead of her, even
though she had a clear, straight, and flat approach for at least 25 to 30
seconds at the speed limit. Appellant’s brief, at 4-5 (discussing approach). 8
Given that she did not react to the rig’s presence, there is no reason to
believe that she would have reacted to the presence of a man standing next
to the rig with a reflective vest and a flashlight.
Plaintiffs also argue that, because Johnston did not stay to “spot[]
Garza oncoming in the right northbound lane, Bailey pulled the Westfreight
truck further into that lane” and thereby caused the accident. Appellees’
brief, at 43. At another point, Plaintiffs assert that it was “important for
Bailey … to ensure that Janie Garza’s lane of traffic was clear before he
accelerated the Westfreight truck into that lane[.]” Id. at 13. These
arguments make no sense when compared to the record. As Plaintiffs’
accident reconstructionist Lock testified, and as his diagrams based on the
physical evidence show, “the trailer was always in her lane.” R.R. 4:78; Pl.
8
Plaintiffs claim that “Garza tried to take evasive action,” Appellees’ brief, at 18, but that
evasive action is not identified in either their brief or on the record page that they offer.
Id., citing R.R. 4:316. The only possible “evasive action” might be a too-late decrease in
speed as the collision occurred, Appellees’ brief, at 18, but, as Lock testified, the
evidence provides no way to estimate Garza’s speed during her approach. R.R. 4:117.
22
Exh. 242-243 (Appx. 29-30); see also above, at 9-11 (additional discussion).
The rig did not suddenly pull into Garza’s lane but had been there for about
a minute, if not more. See above, at 9-11. Not only do these arguments lack
any nonspeculative basis, they contradict the evidence. 9
E. Plaintiffs have not ruled out other plausible explanations, such as
driver inattention, as the sole or superseding cause of the accident.
Westfreight’s opening brief explained that, with at least 25 to 30
seconds of visible approach at the speed limit, Garza had plenty of time to
react to the rig’s presence in the road. Appellant’s brief, at 33-34. That brief
noted that driver inattention, driver distraction, and fatigue are commonly
known and appreciated causes of collisions into the rear of another vehicle.
Id. at 35. Westfreight noted the lack of any “basis for ruling out these
possible causes as the sole legal cause of the accident.” Id. at 35-36.
Plaintiffs do not respond with any argument to rule out these other
causes.
Plaintiffs’ statement of facts offers that “Garza was not speeding or on
her cellphone” at the time. Appellees’ brief, at 18. Such a statement does not
9
Plaintiffs also quote testimony of Westfreight’s trucking safety expert Barry Brunstein
and safety director Semeschuk that criticized the decision to back out of the yard.
Appellees’ brief, at 43, quoting R.R. 5:204-205, 276. But Plaintiffs quote the testimony
out of context, erroneously leaving the impression that these witnesses were referring to a
“start from a stopped position” on the roadway, as opposed to referring to a “stopped
position” before backing onto the roadway. R.R. 5:204-205; see also R.R. 5:276. Nor
does anything in the quoted testimony address the critical issue of proximate cause.
23
rule out distraction from other sources, let alone driver inattention and
fatigue. Nor is the statement supported by the evidence. While there is no
evidence that Garza was speeding, there is also no evidence that she was not
speeding. As Lock explained, “there’s no way to physically say in a
scientific basis what her pre-crash travel speed was.” R.R. 4:117. He could
testify about Garza’s speed only at the moment of impact. Id. Cell phone
records showed only that Garza was not on a call and had neither just sent or
received a text. R.R. 4:37, 155-156; Pl. Exh. 268. The records could not rule
out other uses of Garza’s cell phone, part of which was on her minivan’s
dashboard after the accident. R.R. 4:342.
Plaintiffs’ “failure to explain or adequately disprove alternative
theories of causation” makes their own theory “speculative and conclusory”
and therefore legally insufficient to support a judgment. Wal-Mart Stores
Inc. v. Merrell, 313 S.W.3d 837, 840 (Tex. 2010) (failure to rule out other
possible causes of fire, evidence held legally insufficient).
F. The foreseeability component is also absent.
While the parties’ arguments focus on the cause-in-fact component of
proximate cause, the foreseeability component is also a problem. The
following principle applies to our case:
24
In applying the test of foreseeability to situations where a
negligently created pre-existing condition combines with
a later act of negligence causing an injury, there is a
distinction between a situation in which one has created a
dangerous condition and a later actor observes, or by the
circumstances should have observed, the existence of the
dangerous condition and a situation in which the
dangerous condition is not apparent and cannot be
observed by the actor. In regard to the first situation, the
intervening act interrupts the natural sequence of the
events and cuts off the legal effect of the negligence of
the initial actor. This is based upon the premise that it is
not reasonable to foresee or expect that one who actually
becomes cognizant of a dangerous condition in ample
time to avert the injury will fail to do so.
Wolf v. Friedman Steel Sales Inc., 717 S.W.2d 669, 673 (Tex. App. –
Texarkana 1986, writ ref’d n.r.e.).
Rather than address this principle, Plaintiffs focus on the “obvious
factual dissimilarities” of Wolf. Appellees’ brief, at 39-40. Plaintiffs do not
argue that the principle is inapplicable or wrong.
Plaintiffs quote conclusory testimony from Lock that it was “certainly
a foreseeable hazard” to block the lanes. Appellees’ brief, at 40, quoting R.R.
4:81-82. But Lock did not explain why it was reasonably foreseeable that a
driver – who was at least a minute away when the backing process started
and who had (at the speed limit) at least 25 to 30 seconds of clear, flat,
straight approach – would nonetheless run into the back of a lighted rig. See
above, at 9-12. Plaintiffs also cite Bailey’s testimony that, “an extreme
25
degree of risk” may exist “if there is traffic on that highway[.]” Appellees’
brief, at 40, quoting R.R. 5:187-188. But there was no traffic on the highway
when Bailey began the backing process, see above, at 19-20, and none of his
testimony establishes that it was foreseeable that a driver would fail to
recognize the rig during the approach.
II. Plaintiffs are not entitled to a new trial.
A. Plaintiffs’ new trial complaint is moot because the evidence does
not support Westfreight’s liability.
As discussed in Part I of this argument section, the evidence is legally
insufficient to satisfy the proximate cause element of Plaintiffs’ negligence
claim against Westfreight. That legal insufficiency requires a reversal of the
trial court’s judgment and the rendering of a judgment that Plaintiffs take
nothing. Appellant’s brief, at 38; see also TEX. R. APP. P. 43.3.
Plaintiffs’ cross-appeal challenges “the jury’s apportionment of fault.”
Appellees’ brief, at 48. But to justify an apportionment of fault question, the
evidence must be legally sufficient to support Westfreight’s liability. TEX.
CIV. PRAC. & REM. CODE §33.003(b) (requiring “sufficient evidence to
support the submission” of a party in an apportionment question).
Any challenge to the jury’s answer to the apportionment question is
moot because the challenge cannot affect the outcome, and any error
premised on the jury’s answer is harmless. Compare Shupe v. Lingafelter,
26
192 S.W.3d 577, 580 (Tex. 2006) (negligent entrustment instruction could
not affect outcome because driver was not negligent).
B. A new trial may not be granted for factual insufficiency of the
evidence.
1. Any factual insufficiency point is waived by inadequate
briefing.
Plaintiffs argue that the evidence must be factually insufficient to
support the jury’s apportionment of responsibility because both sides
challenged that apportionment in post-trial motions. Appellees’ brief, at 23-
24, 48. But the parties’ challenges were different. Plaintiffs argued that the
evidence was factually and legally insufficient to support a finding that
Garza was 20 percent responsible. C.R. 587. Westfreight argued a contrary
proposition: that the evidence was legally insufficient to support a finding
that Garza was less than 51 percent responsible. C.R. 594. 10 In other words,
Plaintiffs asserted that 20 percent was too much, and Westfreight asserted
that 20 percent was far too little.
Plaintiffs offer no authority for the proposition that a new trial must be
granted merely because each side raised a different sufficiency-of-the-
evidence challenge to an apportionment question. An appellate brief requires
10
Westfreight did not raise a factual sufficiency point and did not request a new trial.
C.R. 594. By its complaint, Westfreight only sought a judgment notwithstanding the
verdict. Id.
27
“appropriate citations to authorities and to the record.” TEX. R. APP. P.
38.1(i). Plaintiffs only cite Jackson v. Williams Brothers Construction Co.,
and they do so only for the principle that an apportionment finding must
have support in the record. 364 S.W.3d 317, 325 (Tex. App. – Houston [1st
Dist.] 2011, pet. den.), cited in Appellees’ brief, at 48. An issue is waived
where, as here, an appellant “cites only to a single non-controlling case.”
Abdelnour v. Mid Natl. Holdings Inc., 190 S.W.3d 237, 241 (Tex. App. –
Houston [1st Dist.] 2006, no pet.).
Nor have Plaintiffs adequately briefed any other basis for a factual
insufficiency challenge. They make no argument to explain why the
evidence is factually insufficient. See Appellees’ brief, at 47-49 (new trial
arguments).
“The law is clear that bare assertions of error, without argument or
authority, waive error.” Teter v. Comm’n for Lawyer Discipline, 261 S.W.3d
796, 799 (Tex. App. – Dallas 2008, no pet.); see also TEX. R. APP. P. 38.1(i).
That rule applies to factual sufficiency complaints. ERI Consulting
Engineers Inc. v. Swinnea, 318 S.W.3d 867, 880 (Tex. 2010).
Referring to factual sufficiency in the statement of issues and
mentioning the factual sufficiency standard of review is not enough. Garza
v. Garza, No. 4-11-310-CV, 2013 WL 749727, *3 (Tex. App. – San Antonio
28
Feb. 27, 2013, no pet.). But that is all Plaintiffs have done. Appellees’ brief,
at xi, 33-34. As a result, they have waived any factual sufficiency complaint.
2. The evidence is factually sufficient to support the jury’s
negligence and apportionment findings against Garza.
After an approach that provided at least 25 to 30 seconds of visibility
at the speed limit, Garza drove her minivan into the rear of a tractor-trailer
rig. Appellant’s brief, at 3-5 (describing scene and collision). The rig was lit
with more lights than federal regulations require, and nothing outside
Garza’s minivan obstructed her view during the clear, flat, and straight
approach. Id.; see also id. at 18 (describing lights).
Factual sufficiency review requires a court to “consider and weigh all
the evidence,” and a court “should set aside the verdict only if it is so
contrary to the overwhelming weight of the evidence as to be clearly wrong
and unjust.” Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986). Assuming that
the evidence were sufficient to support Westfreight’s liability, the evidence
is also factually sufficient to support a finding that Garza’s negligence made
her 20 percent responsible for the collision.
29
C. A new trial may not be granted for improper witness coaching.
1. Plaintiffs did not preserve this issue in the trial court.
Plaintiffs argue for a new trial “in the interests of justice” because
Westfreight’s counsel allegedly coached a witness. Appellees’ brief, at 48.
Plaintiffs forfeited the issue by not immediately seeking relief during
the trial. R.R. 5:103-104 (no motion or objection). A complaint about a trial
participant’s misconduct requires a timely objection, so that the trial court
has the opportunity to consider whether to address the misconduct with an
instruction, a mistrial, or another appropriate remedy. Alamo Carriage Serv.
Inc. v. City of San Antonio, 768 S.W.2d 937, 943 (Tex. App. – San Antonio
1989, no writ) (alleged jury misconduct, staff of party’s counsel arranged for
juror’s taxi). “[I]t would be wantonly unfair to allow a litigant to take his
chances with the jury and later complain of misconduct when he is unhappy
with the result.” Id.
Even assuming that the issue were still viable, Plaintiffs did not
preserve the issue in their motion for new trial. C.R. 576-582.
Because the interests of justice “is never an independently sufficient
reason for granting a new trial,” a trial court must give a more specific
reason for doing so. In re United Scaffolding Inc., 377 S.W.3d 685, 689-690
(Tex. 2012). To allow a trial court to satisfy that requirement, a motion for
30
new trial must give each specific reason why a new trial is sought in the
interests of justice. Otherwise, an appellant cannot show that the reason
argued on appeal was argued to the trial court. TEX. R. APP. P. 33.1(a).
Moreover, the rules for new trial motions require grounds that “can be
clearly identified and understood” and that are not merely “couched in
general terms.” TEX. R. CIV. P. 321, 322.
Because Plaintiffs’ motion for new trial did not raise the issue of
witness coaching, they have not preserved the issue for appeal. TEX. R. APP.
P. 33.1(a).
2. Plaintiffs’ inadequate briefing waived the issue.
As discussed above, at 27-29, a complaint is waived when an
appellant fails to cite appropriate authority to support the complaint.
Plaintiffs cite no authority to support their contention that witness coaching
requires a new trial, let alone on a record similar to ours. Appellees’ brief, at
48. Plaintiffs only cite an opinion for the proposition that appellate courts
once had broad discretion to grant new trials in the interests of justice. Id.;
but see In re Toyota Motor Sales U.S.A. Inc., 407 S.W.3d 746, 758-759
(Tex. 2013) (grants of new trials are subject to “merits-based review”). That
tangential citation does not satisfy Plaintiffs’ burden of providing
“appropriate citations to authorities” and results in waiver of the issue. TEX.
31
R. APP. P. 38.1(i); see also above, at 27-29 (additional briefing-waiver
discussion).
3. The record does not show that any impropriety occurred.
Plaintiffs allege that Westfreight’s trial counsel Christopher Lowrance
coached Johnston to deny that his conduct created an “extreme risk” for
motorists. Appellees’ brief, at 48. Johnston testified that he did not perceive
“an extreme risk of a collision or an accident” from backing the rig onto
Business 281. R.R. 5:75. He also testified that he did not believe that his and
Bailey’s conduct put “any motorist who might be in that road at an extreme
risk … .” R.R. 5:100.
Johnston spoke with Lowrance during a break, and Plaintiffs’ counsel
asked Johnston about the conversation. R.R. 5:102-103. According to
Johnston, Lowrance said that he would ask a question about putting
motorists in extreme risk and that Johnston “should say” that he did not do
so. R.R. 5:103.
Plaintiffs’ counsel did not ask any more questions. R.R. 5:103-104.
Critically absent is any question about whether the alleged coaching affected
Johnston’s answer. Nothing in the record shows that Johnston’s answer was
anything but his honest opinion.
32
Plaintiffs’ complaint about witness coaching is without merit. There is
no evidence of any impropriety.
4. Even assuming that improper coaching occurred,
Plaintiffs have not shown that the trial court abused its
discretion by denying a new trial.
A trial court does not abuse its discretion by denying a motion for new
trial when newly discovered evidence is “cumulative,” used for “purposes of
impeachment,” or not “so material it would probably produce a different
result if a new trial were granted.” Watts v. Watts, 396 S.W.3d 19, 23 (Tex.
App. – San Antonio 2012, no pet.) (quot. omitted). Although our situation
differs, in that the alleged witness coaching was discussed during the trial,
these principles are no less applicable.
Plaintiffs cite multiple witnesses’ testimony about the dangers of
“blindside backing.” Appellees’ brief, at 6-17. Even assuming that Johnston
were to give a different answer to the “extreme risk” question, that answer
would be merely cumulative. The trial court did not abuse its discretion by
refusing to grant a new trial on the possibility that a jury may hear different,
but nonetheless cumulative, testimony from Johnston. Watts, at 23-24 (no
abuse of discretion, new evidence was cumulative).
A trial court could also reasonably infer that Plaintiffs’ purpose in
putting the coaching before the jury was impeachment. R.R. 5:102-104.
33
Plaintiffs’ counsel asked Johnston about the witness coaching but not about
whether he gave an untrue answer. Id. Plaintiffs, who presented two expert
witnesses (Lock and Stopper) on liability issues, were not relying on
Johnston’s opinions about risk to establish their case. The denial of a new
trial under these circumstances is not an abuse of discretion. See, e.g., Ski
River Development Inc. v. McCalla, 167 S.W.3d 121, 132 (Tex. App. –
Waco 2005, pet. den.) (no abuse of discretion, impeachment was apparent
purpose for presenting evidence that attorney asked witness “to forget some
things”).
Plaintiffs also have not shown that Johnston’s opinion about “extreme
risk” was “so material that it would probably produce a different result in a
new trial.” Watts, at 23. While classification of a risk as “extreme” may
matter where a charge asks about gross negligence (which requires an
“extreme” risk), TEX. CIV. PRAC. & REM. CODE §41.001(11)(A), nothing in
this case’s charge required such a classification. C.R. 555, 557-558.
Moreover, given the totality of the evidence received, the effect of one
opinion from Johnston is merely speculative in a situation where “probably”
is the standard. Watts, at 23; see also TEX. R. APP. P. 44.1(a).
34
Even assuming that improper witness coaching occurred, and that
Plaintiffs preserved their complaint, Plaintiffs have failed to show an
entitlement to a new trial.
CONCLUSION AND PRAYER FOR RELIEF
The evidence is legally insufficient to show that Westfreight’s
conduct was a proximate cause of the collision. The evidence does no more
than show that Westfreight’s conduct, which placed a slow-moving rig onto
Business 281, did more than merely furnish a condition that made a collision
possible. See above, at 2-26, and Appellant’s brief, at 10-38.
The trial court erred by overruling Westfreight’s objection to the jury
charge and again by denying Westfreight’s motion for judgment
notwithstanding the verdict, each of which raised the lack of evidence to
support a finding of proximate causation. Appellant’s brief, at 38.
Westfreight asks the Court for the relief that Westfreight requested in
its opening brief. Westfreight also asks that the Court deny the relief that
Plaintiffs request by their cross-appeal.
35
Respectfully submitted,
/s/ Brian Miller
Brian Miller (lead)
State Bar No. 24002607
Christopher Lowrance
State Bar No. 00784502
ROYSTON RAYZOR
VICKERY & WILLIAMS L.L.P.
Frost Bank Plaza, Suite 1300
802 N. Carancahua St.
Corpus Christi, TX 78401
Tel. No. (361) 884-8808
Fax No. (361) 884-7261
E-mail:
brian.miller@roystonlaw.com,
chris.lowrance@roystonlaw.com
Attorneys for appellant
Westfreight Systems Inc.
36
CERTIFICATE OF SERVICE
A true copy of this document was served using the electronic filing
and service system (for service on registered users) and as shown below on
January 9, 2015.
Via e-mail to Via e-mail to
jgsanger@edwardsfirm.com khood@fabregahood.com
John Blaise Gsanger Kevin L. Hood
THE EDWARDS LAW FIRM FABREGA HOOD L.L.P.
802 N. Carancahua St., Suite 1400 1800 St. James Pl., Suite 304
Corpus Christi, TX 78401 Houston, TX 77056
Lead appellate counsel for Plaintiffs Counsel for additional trial court
defendant National Oilwell Varco
L.P.
Via e-mail to dbright@swhhb.com Via e-mail to crkeener@aol.com
David Bright Craig R. Keener
SICO WHITE HOELSCHER CRAIG R. KEENER P.C.
HARRIS & BRAUGH L.L.P. 1005 Heights Blvd.
802 N. Carancahua St., Suite 900 Houston, TX 77092
Corpus Christi, TX 78401
Counsel for additional trial court
Additional appellate counsel for defendant National Oilwell Varco
Plaintiffs L.P.
/s/ Brian Miller
Brian Miller
37
CERTIFICATE OF WORD-COUNT COMPLIANCE
I certify that this document complies with Rule of Appellate
Procedure 9.4. Excluding the portions listed in Rule 9.4(i)(1), and according
to the word count of the computer program used, this document contains
7,434 words.
/s/ Brian Miller
Brian Miller
38