in Re Fire Alarm Control Services, Inc. and Cosme Alvizo ( 2022 )

Fourth Court of Appeals
San Antonio, Texas
MEMORANDUM OPINION
No. 04-22-00160-CV
IN RE FIRE ALARM SERVICES, INC. and Cosme Alvizo
Original Mandamus Proceeding 1
Opinion by: Liza A. Rodriguez, Justice
Sitting: Patricia O. Alvarez, Justice
Liza A. Rodriguez, Justice
Lori I. Valenzuela, Justice
Delivered and Filed: July 20, 2022
PETITION FOR WRIT OF MANDAMUS CONDITIONALLY GRANTED
Relators Fire Alarm Control Services, Inc. (“Fire Alarm”) and Cosme Alvizo have filed a
petition for writ of mandamus, complaining of the trial court’s order excluding testimony of their
expert witness. We conditionally grant the petition for writ of mandamus.
BACKGROUND
On June 14, 2017, Orlando Lopez’s vehicle was rear-ended by Cosme Alvizo, who was
driving a work vehicle (a 1/2 ton Chevrolet pick-up truck) for Fire Alarm. Lopez brought a
personal injury lawsuit against Alvizo and Fire Alarm, alleging that Alvizo, while in the course
and scope of his employment, was negligent, negligent per se, and grossly negligent in his
operation of his work vehicle. Further, Lopez alleged direct liability theories against Fire Alarm,
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This proceeding arises out of Cause No. 2018-CI-00850, styled Orlando Lopez v. Fire Alarm Control Services, Inc.
and Cosme Alvizo, pending in the 57th Judicial District Court, Bexar County, Texas, the Honorable Tina Torres
presiding.
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including negligent hiring and supervision; negligent entrustment; negligent training and
supervision; negligent retention; and “encouraging and allowing distraction of its driver.” Lopez
also alleged that Fire Alarm’s conduct was itself grossly negligent.
In response to the lawsuit, Fire Alarm and Alvizo filed a “Stipulation to Liability” in which
Alvizo stipulated that he “is legally responsible for causing the occurrence in question” and that
“he was negligent in the operation of his vehicle, specifically for driver inattention.” Fire Alarm
stipulated that it was liable for Alvizo’s negligence under the theory of respondeat superior.
However, both Fire Alarm and Alvizo denied any liability for gross negligence.
Fire Alarm and Alvizo then designated expert Jimmy Sill, “a retained expert in the area of
transportation safety and compliance and fleet safety.” They stated Sill is “expected to testify
concerning fleet safety in the trucking industry and more specifically the safety compliance of
Defendants.” Sill “will also testify as to his qualifications and may also provide rebuttal testimony
regarding any testimony offered by the Plaintiff or others on matters within the scope of his
expertise.” They attached to their designation Sill’s expert report and curriculum vitae.
Sill’s deposition was scheduled by agreement of the parties for January 13, 2022. However,
before the deposition, Lopez filed a motion to exclude Sill’s expert testimony, arguing that Sill’s
opinions as contained in his expert report “are conclusory and are not based on a reliable
foundation.” In response, Fire Alarm and Alvizo emphasized that Sill has been “a Certified
Director of Safety for over seventeen years and has numerous certifications relevant to
transportation safety and compliance.” They explained that Lopez had alleged various direct
theories of negligence against Fire Alarm and that Sill offered the following opinions in his report:
(1) Fire Alarm met or exceeded standards applicable to ground transportation through policy,
training and the management of technicians who were issued a company vehicle: (2) Fire Alarm
met its duty in training Alvizo; (3) Fire Alarm owed a duty to the general public to not entrust
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unsafe and dangerous employees behind a company vehicle and Fire Alarm met this duty; (4) Fire
Alarm met its duty in hiring Alvizo; (5) Fire Alarm owed a duty to formulate, institute, and
implement appropriate hiring, supervision, training, and retention procedures in order to keep the
public safe, and Fire Alarm met or exceeded this standard; and (6) but for the independent and
careless actions of Alvizo, this accident would not have occurred. At the hearing on Lopez’s
motion to exclude, Fire Alarm and Alvizo explained that Sill’s deposition had not yet occurred
and was scheduled for January 13, 2022, and that the motion was premature. They also explained
that an expert can rely on disputed facts.
Although the hearing occurred on December 15, 2021, the trial court did not sign an order
granting the motion to exclude Sill’s testimony until March 15, 2022. Between the time of the
hearing and the signing of the order, Fire Alarm and Alvizo noticed Sill’s deposition for February
18, 2022. Lopez filed a motion to quash the deposition, and the trial court granted the motion. Trial
was set for April 18, 2022.
Fire Alarm and Alvizo then filed this petition for writ of mandamus and an emergency
motion seeking a stay of their trial setting. We granted the motion and stayed the trial setting
pending resolution of this mandamus proceeding.
MANDAMUS
A. Standard of Review
Mandamus is an extraordinary remedy that will issue only to correct a clear abuse of
discretion when there is no other adequate remedy at law. In re Sw. Bell Tel. Co., 235 S.W.3d 619,
623 (Tex. 2007) (orig. proceeding).
B. Abuse of Discretion
Fire Alarm and Alvizo argue the trial court abused its discretion in granting Lopez’s motion
to exclude Sill’s expert testimony pursuant to Texas Rule of Evidence 702. Lopez’s motion to
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exclude contended that Sill’s opinions as contained in his expert report had no reliable foundation
and were conclusory. Under Rule 702 of the Texas Rules of Evidence, a qualified expert may offer
opinion testimony if that testimony is both relevant and based on a reliable foundation. E.I. du
Pont de Nemours & Co. v. Robinson, 923 S.W.2d 549, 558 (Tex. 1995); see also TEX. R. EVID.
702. “To be relevant, the expert’s opinion must be based on the facts; to be reliable, the opinion
must be based on sound reasoning and methodology.” State v. Cent. Expressway Sign Assocs., 302
S.W.3d 866, 870 (Tex. 2009). Further, “[c]onclusory or speculative opinion testimony is not
relevant evidence because it does not tend to make the existence of material facts more probable
or less probable.” Whirlpool Corp. v. Camacho, 298 S.W.3d 631, 637 (Tex. 2009) “We review a
trial court’s determination that a witness’s testimony is unreliable for an abuse of discretion.” Cent.
Expressway, 302 S.W.3d at 870. “A trial court abuses its discretion in excluding expert testimony
if the testimony is relevant to the issues in the case and is based on a reliable foundation.” Id.
In his motion to exclude Sill’s expert testimony, Lopez argued that Sill’s opinions had no
reliable foundation because “[n]otably absent from his report is any reference to a specific standard
Sill believes applies to [Fire Alarm] that [Fire Alarm] adopted and enforced.” Lopez also argued
that Sill’s opinions were conclusory because Sill stated Fire Alarm “complied with industry
standards in screening, hiring, and training” without providing facts to support his assertion.
Further, Lopez argues the facts Sill did include were not supported by the depositions and
documents he reviewed.
In response, Fire Alarm points out that an expert’s testimony may rely on disputed facts.
See Caffe Ribs, Inc. v. State, 487 S.W.3d 137, 144 (Tex. 2016) (“When an expert’s opinion is
predicated on a particular set of facts, those facts need not be undisputed. An expert’s opinion is
only unreliable if it is contrary to actual, undisputed facts.”) (citation omitted). Fire Alarm
emphasizes that Sill’s expert report should be construed as a whole document, and contends that
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Lopez selectively chooses sentences in arguing Sill’s expert report is conclusory and certain
deposition testimony in arguing Sill’s report is not supported by evidence.
“An expert may base an opinion on facts or data in the case that the expert has been made
aware of, reviewed, or personally observed.” TEX. R. EVID. 703. “The weakness of facts in support
of an expert’s opinion generally go to the weight of the testimony rather than its admissibility.” In
re Payne, 605 S.W.3d 240, 246 (Tex. App.—San Antonio 2020, orig. proceeding) (citation
omitted).
We have reviewed Sill’s expert report and construe it as a whole document. Sill’s report
listed the specific industry and governmental standards upon which his opinions rely. He further
explains that of the materials he reviewed, the following “are most specific and authoritative to”
his report: (1) American National Standards Institute (ANSI) Publication AN-Z15.1-2012, Safe
Practices for Motor Vehicle Operations; (2) American Society of Safety Engineers (ASSE), Safe
Practices for Motor Vehicle Operations-Technical Update ASSE Brief (ANSI/ASSE 15.1.-2012);
(3) Federal Motor Carrier Safety Administration website; Occupational Health and Safety
Administration (OSHA), General Duty Clause of the Occupational Safety and Health Act; (4)
Department of Motor Vehicles, U.S. Road Rules 2019; and (5) National Highway Transportation
Safety Administration, Rules of the Road-Speeding 2019.
In his report, Sill also listed the specific thirty-two documents he relied upon in
understanding the facts of this case, including depositions and expert reports. He further listed
internal documents from Fire Alarm he reviewed, including the following: Employee Handbook;
Drug & Alcohol Policy; “Safety Meeting Sign-in Sheets for 2015-2018”; email responses from
Fire Alarm’s insurance general agency Insperity regarding driver history for 2014; calendar for
work assignments on June 14, 2017; Safety Notebook 2016/2017; meeting agendas for 2014-2017;
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Alvizo’s personnel file; Alvizo’s time sheet records and background check; maintenance records
on 2013 Chevy Silverado driven by Alvizo; and a photo of Fire Alarm’s safety poster.
Sill’s report then explained the facts of the case, which he clearly based on his review of
the above documentation. Sill then explained Fire Alarm’s duties owed to others, explaining that
he specifically relied on the Texas Administrative Code, ANSI Publication Z15.1-2012, and the
National Highway Transportation Safety Administration’s “Rules of the Road.” Sill then stated
that Fire Alarm had policies, procedures, and programs in place “to promote a safe working
environment for their employees and the general public.” While Lopez argues this statement in
Sill’s report is conclusory, in reading Sill’s expert report as a whole document, this statement is
clearly referring to the internal Fire Alarm documents Sill reviewed.
Similarly, other statements in Sill’s report are not conclusory when his report is read as a
whole document. For example, Sill discussed in his report the safety training platform provided by
Fire Alarm’s insurance general agency Insperity and the fact that Fire Alarm made it mandatory
for its employees to attend the trainings. He also discussed Fire Alarm’s maintenance and
inspection program for their commercial non-fleet vehicles (like the one Alvizo was driving) and
that “[e]mployees who used them were required to provide written documentation of inspections
and repairs or request for repair to be made periodically.” These are clearly referring to policies
and procedures Fire Alarm had in place.
While Lopez selectively points to certain sentences in Sill’s report and argues his opinions
are either conclusory or without foundation, when Sill’s report is read as a whole document, it
sufficiently provides a factual basis and reliable foundation for Sill’s opinions. Thus, the arguments
brought by Lopez relate to the weight of Sill’s testimony, and not to its admissibility, and should
be brought through cross-examination. See Gammill v. Jack Williams Chevrolet, Inc., 972 S.W.2d
713, 728 (Tex. 1998) (noting that, although the trial court has a threshold responsibility to ensure
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that an expert’s opinion is both reliable and relevant, that “gatekeeping function under Rule 702
does not supplant cross-examination as ‘the traditional and appropriate means of attacking shaky
but admissible evidence’”); see also Ford Motor Co. v. Ledesma, 242 S.W.3d 32, 40-41 (Tex.
2007) (holding party’s complaints that opposing expert’s testimony did not consider all relevant
facts “go to its weight, not its admissibility”). Based on this mandamus record, we conclude the
trial court abused its discretion in excluding Sill’s testimony.
C. Adequate Remedy by Appeal
We next turn to whether Fire Alarm and Alvizo have an adequate remedy by appeal.
Although Fire Alarm and Alvizo have the right to appeal the trial court’s ruling after a trial on the
merits, they have “no adequate remedy at law” if their ability to present a viable claim or defense
at trial is vitiated or severely compromised by the trial court’s discovery error. See In re Garza,
544 S.W.3d 836, 840 (Tex. 2018) (orig. proceeding) (“The second requirement—appeal is an
adequate remedy—is fulfilled where a party’s ability to present a viable claim or defense at trial is
either completely vitiated or severely compromised.”); In re Marshall, 617 S.W.3d 670, 673 (Tex.
App.—San Antonio 2021, orig. proceeding) (same).
Fire Alarm and Alvizo emphasize that Lopez has designated a fleet expert to testify at trial.
According to Fire Alarm and Alvizo, because the trial court struck their sole expert on fleet safety
and safety compliance and set the case for trial so that they would not have time to designate
another fleet expert, the trial court severely comprised their defense of Lopez’s gross negligence
claims against them. We agree with Fire Alarm and Alvizo. Under the circumstances presented in
this mandamus proceeding, we conclude Fire Alarm and Alvizo did not have an adequate remedy
by appeal. See In re Kings Ridge Homeowners Ass’n, 303 S.W.3d 773, 785-86 (Tex. App.—Fort
Worth 2009, orig. proceeding) (holding no adequate remedy by appeal because exclusion of expert
testimony prevented the relator’s ability to try his lawsuit).
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CONCLUSION
We hold the trial court abused its discretion by excluding the expert testimony of Jimmy
Sill and the relators had no adequate remedy by appeal. We therefore conditionally grant the
petition for writ of mandamus and direct the trial court, within fifteen days from the date of this
opinion, to vacate its March 15, 2022 order excluding the expert testimony of Jimmy Sill.
Liza A. Rodriguez, Justice
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