Rosaura Arreola, Individually and on Behalf of the Estate of Jason Orosco Molinar v. Union Pacific Railroad, Herbert Diaz and Bert Fredrick Harkness ( 2022 )

COURT OF APPEALS
EIGHTH DISTRICT OF TEXAS
EL PASO, TEXAS
§
ROSAURA ARREOLA,
Individually and on Behalf of the Estate of § No. 08-20-00133-CV
JASON OROSCO MOLINAR,
Deceased, § Appeal from the
Appellant, § County Court at Law No. 6
v. § of El Paso County, Texas
UNION PACIFIC RAILROAD, § (TC# 2016DCV3664)
HERBERT DIAZ and BERT FREDRICK
HARKNESS, §
Appellees. §
OPINION
Sixteen-year-old Jason Orosco Molinar (Molinar) tragically lost his life when a Union
Pacific train struck him as he was walking on the railroad tracks in Marfa, Texas. Molinar was
wearing headphones and was walking with his back to the oncoming train. Molinar’s mother,
Appellant Rosaura Arreola (Arreola), sued in her individual capacity, as well as on behalf of
Molinar’s estate. She alleged that Appellees Union Pacific, Herbert Diaz (the train’s conductor),
and Bert Fredrick Harkness (the train’s engineer), were negligent in failing to adequately warn
Molinar of the train’s approach and in failing to slow or stop the train in a timely manner. Arreola
also alleged that Union Pacific had failed to adequately instruct its employees on the proper
procedures to follow when confronted with a person walking on the tracks. Following trial, a jury
returned a verdict finding Molinar 90% and Union Pacific 10% at fault for the accident.1 The trial
court thereafter entered a take-nothing judgment in Union Pacific’s favor.
On appeal, Arreola contends that the trial court: committed errors in its evidentiary rulings;
erred in denying her request for spoliation instructions; erroneously instructed the jury that Molinar
should be judged by an adult standard of care; and that the trial court judge exhibited a bias that
deprived her of a fair trial. Further, Arreola contends that there was insufficient evidence to support
the jury’s verdict. For the reasons noted below, we affirm the trial court’s judgment.
I. BACKGROUND
At the time of the accident, Molinar lived in Marfa, Texas with his aunt and other relatives.
His aunt testified that on the day of the accident, Molinar was going to a Dairy Queen on the other
side of town. Molinar was walking on the rails of the train track carrying an iPad and wearing
headphones when a Union Pacific train approached him from behind. It is undisputed that the train
was a “key train” that was carrying hazardous materials and was travelling at a lawful speed as it
went through town, blowing its horn at the various crossings.
Both Harkness (the train’s engineer) and Diaz (the train’s conductor) testified that shortly
before the accident, they were coming around a curve when Harkness first spotted something red
on the tracks. Initially, Harkness told Diaz that he believed the red object was a “red flag” that
Union Pacific occasionally places on the tracks to test the train’s crew to see if they are alert; when
spotted, the crew has a specified time to stop the train, using the train’s normal braking system.
Diaz used a binocular that he had with him to determine what Harkness had seen on the tracks. He
1
In the jury charge, the trial court instructed the jury that any negligence on the part of either Diaz or Harkness was
attributable to their employer, Union Pacific Railroad Company. The charge therefore only asked the jury to determine
whether Union Pacific was negligent, and if so, what percentage of responsibility it bore for the accident in relation
to Molinar’s negligence.
2
immediately recognized that there was a person—later identified as Molinar—walking on the
tracks wearing a red shirt. Neither Diaz nor Harkness, however, could discern that Molinar was
wearing headphones at that time.
Diaz immediately alerted Harkness to begin blowing the train’s horn to warn Molinar to
get off the tracks. Harkness blew the horn in a long continuous manner, while Diaz continued to
track Molinar’s actions, anticipating that he would leave the tracks upon hearing the horn’s
warning. When Diaz realized that Molinar was not responding to the warning, he told Harkness to
apply the emergency brakes.
The train’s event recorder—a device similar to a black box on an airplane—stores data
from a GPS-linked clock and provides timestamps for events such as when the horn was blown
and when the brakes were applied. It showed that the emergency brakes were engaged at 12:38:48.
Because it takes at least one or two seconds for the brakes to engage after the lever is pulled,
Harkness would have pulled the brake lever at 12:38:46 or 12:38:47. But it was too late to stop the
train at that point, and the impact occurred approximately five seconds later, at 12:38:53 or
12:38:54. The train was traveling at 49-50 miles an hour before the emergency braking, but had
only slowed to 48 miles an hour at the time of impact. The train came to a complete stop at
12:39:39, some 51 seconds after the emergency brakes were engaged.
At trial, the jury was shown a video of the accident, which was recorded by the train’s
camera. The video showed that Molinar turned around approximately one second before impact—
unfortunately too late to avoid being struck by the train. The video included an audio portion,
which captured the sound of the horn blowing both before and after the accident. The record
reflects that there were warning bells ringing at a crossing approximately 120 feet from where the
accident occurred.
3
Following trial, the jury returned its verdict finding Molinar 90% at fault in the accident,
and Union Pacific 10% at fault. The trial court thereafter entered a take-nothing judgment in Union
Pacific’s favor.2 Arreola filed a motion for new trial, raising many of the same issues that she does
on appeal, which was overruled by operation of law. This appeal followed.
II. ISSUES ON APPEAL
Arreola raises these arguments on appeal: (1)(a) the trial court erred by failing to declare a
mistrial, and by denying her request for a spoliation instruction, when it surfaced mid-trial that
Union Pacific had failed to provide her expert with the original horn that had been on the train at
the time of the accident in response to her request to have the horn tested; (1)(b) the trial court
erred by refusing to allow her expert to explain why he did not test the original horn; (2)(a) the
trial court erred by allowing into evidence a broken binocular that conductor Diaz testified he had
used to spot Molinar on the tracks, despite Diaz’s prior deposition testimony that he had lost the
binocular, and that the trial court further erred by denying her motion for a spoliation instruction
on this issue; (2)(b) the trial court erred in limiting the testimony of one of Union Pacific’s
designated corporate representatives relating to the details of the accident; (3) the trial court erred
by refusing to give a jury instruction directing the jury to assess Molinar’s negligence by the
standard of a 16-year-old, rather than by the standard of an adult; (4) the trial court erred by
refusing to admit evidence of another accident in which a Union Pacific train struck and killed a
teenager walking on the tracks; (5) the jury’s verdict was factually insufficient; (6) the trial court’s
allegedly erroneous rulings constituted cumulative error that led to an improper verdict; and (7)
the trial court exhibited a biased demeanor toward Arreola’s attorneys that deprived her of a fair
2
See TEX.CIV.PRAC.& REM.CODE ANN. § 33.001 (“In an action to which this chapter applies, a claimant may not
recover damages if his percentage of responsibility is greater than 50 percent.”)
4
trial. In a cross-point, Union Pacific contends that Arreola’s state law claims of negligence were
preempted by federal regulations governing the train’s operation. Because we reject Arreola’s
arguments, we decline to address Union Pacific’s cross-point.
III. SUFFICIENCY OF THE EVIDENCE
We start with Issue Five, in which Arreola contends that the jury’s verdict finding Molinar
90% negligent in causing the accident, and Union Pacific only 10% negligent, was not factually
supported by the record. We disagree.
A. Standard of Review
When a party attacks the factual sufficiency of an adverse finding on an issue on which she
had the burden of proof, she must demonstrate that the adverse finding was against the great weight
and preponderance of the evidence. See Dow Chem. Co. v. Francis, 46 S.W.3d 237, 242
(Tex. 2001) (per curiam). In considering a factual sufficiency challenge, an appellate court “must
consider and weigh all of the evidence and can set aside a verdict only if the evidence is so weak
or if the finding is so against the great weight and preponderance of the evidence that it is clearly
wrong and unjust.” Id. In reviewing the jury’s apportionment of negligence percentages, a court
of appeals must apply this same standard and review the entire record to determine whether the
amounts assigned are against the great weight and preponderance of the evidence. See Zamarron
v. Adame, 864 S.W.2d 173, 177 (Tex.App.--El Paso 1993, writ denied). In making this
determination, we keep in mind that the jury is the sole judge of credibility and demeanor, but that
the “jury’s decisions regarding credibility must be reasonable.” Cartwright v. Armendariz, 583
S.W.3d 798, 803 (Tex.App.--El Paso 2019, pet. denied), citing City of Keller v. Wilson, 168
S.W.3d 802, 820 (Tex. 2005). Accordingly, “[j]urors cannot ignore undisputed testimony that is
5
clear, positive, direct, otherwise credible, free from contradictions and inconsistencies, and could
have been readily controverted.” Id, citing Wilson, 168 S.W.3d at 820.
“We walk a fine line in conducting a factual sufficiency review, mindful both of our duty
not to merely substitute our judgment for that of the jury while at the same time recognizing that
our strong deference to a jury’s verdict does not make that verdict totally unreviewable.” Id. at
803, citing Golden Eagle Archery, Inc., 116 S.W.3d at 761. Thus, as this Court has recognized, a
court of appeals may not reverse a verdict just because it concludes that the evidence
“preponderates” toward a particular answer to a jury question, and instead reversal of a jury’s
verdict is warranted only when a detailed review of the evidence “indicates that the great weight
of that evidence supports” a different answer. Id., quoting Herbert v. Herbert, 754 S.W.2d 141,
144 (Tex. 1988).
B. Applicable Law
In general, when a train crew discovers a person on the tracks, they owe the person a duty
to behave “reasonably,” including in situations where it becomes apparent that the person “will
not extricate himself/herself from danger.”3 See Barnes v. Kansas City S. Ry. Co., No. 4:14-CV-
68, 2016 WL 4801511, at *4 (S.D. Tex. Feb. 19, 2016, no pet.). And as the Texas Supreme Court
has recognized in discussing the doctrine of “discovered peril,” although an engineer should use
all “means at his command” to avoid striking a party on the tracks, this is “not necessarily restricted
to stopping or slowing the train,” and may include “the giving of an alarm by bell or whistle so
that the one in peril may have an opportunity to extricate himself.” Texas & N. O. R. Co. v. Krasoff,
3
The duty might be different for a person trespassing on train tracks. See Barnes v. Kansas City S. Ry. Co., No. 4:14-
CV-68, 2016 WL 4801511, at *4 (S.D. Tex. Feb. 19, 2016, no pet.); Texas Utilities Elec. Co. v. Timmons, 947 S.W.2d
191, 193 (Tex. 1997) (“The only duty a premises owner or occupier owes a trespasser is not to injure him willfully,
wantonly, or through gross negligence.”). That said, the trial court did not instruct the jury that Molinar was a
trespasser, and instead, instructed the jury that Union Pacific owed him a duty of ordinary care (the “degree of care
that would be used by a person or company of ordinary prudence under the same or similar circumstances”).
Accordingly, we decide the sufficiency issue based on the jury instructions as given.
6
191 S.W.2d 1, 3 (1945); see also Flanigan v. Texas & Pac. Ry. Co., 273 S.W.2d 110, 112-13
(Tex.App.--El Paso 1954, writ ref’d n.r.e.) (same); S. Pac. Transp. Co. v. Peralez, 546 S.W.2d 88,
94-95 (Tex.App.--Corpus Christi 1976, writ ref’d n.r.e.) (same). In turn, the issue of whether a
train crew exercised ordinary care by using all means at their command to avoid an accident is
generally a question of fact for the jury to resolve. See Houston E. & W.T. Ry. Co. v. Sherman, 42
S.W.2d 241, 244-45 (Tex. Comm’n App. 1931) (question of whether engineer acted as a person
of ordinary prudence would have acted under the circumstances is a question to be determined by
the jury from all the evidence).
C. Analysis
Arreola contends that Union Pacific should have been found more negligent than Molinar
for two reasons. First, Arreola contends that the record overwhelmingly demonstrates that the train
crew was negligent (and therefore primarily responsible for the accident) in using the “wrong horn
pattern” to alert Molinar that the train was approaching. In particular, she points out that her expert,
audiologist Dr. Michael Seidemann, testified at trial that it would have been more effective for the
crew to have blown the horn in a short, staccato pattern, rather than blowing the horn in a long,
continuous pattern as Harkness did. She asserts that it was “common knowledge” in his field that
“sounds going on and off or sounds that fluctuate in either pitch or loudness, or both of those
parameters, are far more attention gathering than sounds that stay on all the time.”
This theory, however, was disputed by Union Pacific. In particular, Harkness testified that
he blew the horn in a long continuous pattern, as he believed this was the best way to get Molinar’s
attention. He and others explained that the sound from a train’s horn is produced by air traveling
through it, and the longer the lever is held down, the more air hits the horn, creating the “loudest
tone.” Moreover, although Harkness acknowledged during his deposition that he customarily
7
blows the train’s horn in a short, staccato pattern when he spots people or livestock on the tracks,
the record reflects that there are no rules requiring a train crew to blow the horn in this way. To
the contrary, the applicable rules state that the crew is to sound the train’s horn when persons or
livestock are on the track in an “attempt to attract attention” when the “engineer believes such
action is appropriate,” without specifying any pattern that the crew must use.
Dr. Seidemann himself acknowledged that Harkness did not violate any rules or regulations
by using this horn pattern, and that it was within the train crew’s “sole judgment” to determine the
best method to attract the attention of a person on the tracks. In addition, at least one other court
that has considered the issue has found that blowing the horn in “long, drawn-out sections,” rather
than in a succession of short bursts, was more than adequate to alert a person of the train’s
approach. Sanchez v. Kansas City S. Ry. Co., No. CIV.A. H-12-862, 2012 WL 6697574, at *2
(S.D. Tex. Dec. 24, 2012). The jury was thus free to reject Arreola’s claim that the train crew was
negligent in the way they attempted to alert Molinar of the approaching train.
Second, Arreola contends that the record overwhelmingly supports a finding that Union
Pacific was primarily responsible for the accident by failing to engage the emergency brakes
immediately and “without hesitation” as soon as Diaz spotted Molinar on the tracks, rather than
first using the train’s horn as a warning in the hope that he would leave the tracks. According to
Arreola, the record reflects that the train crew’s delay in engaging the brakes was both against
Union Pacific’s own policies and was clearly unreasonable. We disagree with both arguments.
In arguing this negligence theory, Arreola acknowledges that the train would not have been
able to completely stop even if the crew had engaged the emergency brakes immediately after
spotting Molinar on the tracks. Instead, she argues that if they had done so earlier, the train would
have at least slowed down, giving Molinar a better opportunity to avoid the impact. How much the
8
train could have slowed was a disputed issue at trial. Arreola argued that the crew began blowing
the horn to warn Molinar at 12:38:06, approximately 42 seconds before the crew engaged the
emergency brakes. She therefore estimated that if the brakes were applied immediately after the
crew blew the horn, the train would have slowed significantly, to two or three miles an hour prior
to impact, potentially giving Molinar additional time to react to avoid the impact. Yet Union
Pacific argued that this estimate was based on a miscalculation. Because the train crew began
blowing the horn to warn Molinar only 25-27 seconds before the emergency brakes were engaged,
Union Pacific contends that the train would not have slowed down significantly before impact.4
Under Union Pacific’s time-line, even if the train’s crew had engaged the emergency brakes 19
seconds sooner, the train would have only slowed down by about 10 miles per hour and thus would
have been traveling around 38-39 miles per hour at the time of impact. And on appeal, Arreola
now acknowledges that the time could have been as short as 20 seconds before the brakes were
applied, but she still contends that engaging the brakes 20 seconds earlier could have made a
difference in saving Molinar’s life.5
At trial, Harkness and Diaz both explained that they did not immediately engage the
emergency brakes for three reasons. First, they anticipated that Molinar would hear the horn and
leave the track. They explained that often in their experience individuals standing on or near the
tracks will move off the tracks upon hearing the train’s horn. Second, Harkness added that a train
4
The timing issue turns on when Harkness blew the horn to warn Molinar, as opposed to when he blew the horn at
the last street crossing in Marfa. According to Union Pacific, Arreola based her timing argument on the time stamp
for the horn at the street crossing which overstates the amount of time available to apply the brakes.
5
Arreola first argued in her brief that the train crew began blowing the horn “over forty seconds” before the crew
engaged the emergency brakes. Union Pacific, however, responded, as it did at trial, that this estimate was incorrect,
as the train’s camera showed that the crew could not have seen Molinar until approximately 27 seconds before the
accident, and that the record reflects that the horn began blowing 23 seconds before impact. In her reply brief, Arreola
appears to acknowledge that her time estimate was incorrect, but argues that even if Union Pacific’s estimate of around
20 seconds was correct, it was still negligent for the crew to wait even that long to pull the emergency brake once they
realized that a person was on the tracks.
9
crew must consider the possibility of derailment before applying the emergency brakes, noting that
in this case, the train was carrying “hazardous materials,” including LPG, which he described as a
“very flammable, dangerous product,” and which would pose a danger in a populated area if the
train derailed. As well, he pointed out that the rear portion of the train was still coming around the
curve when they spotted Molinar on the tracks, thereby increasing the danger of a derailment.
Third, Harkness explained that the train itself was approximately a mile and a half long, and given
the train’s speed, it would have been impossible for the train to have stopped prior to impact even
if they had pulled the emergency brakes sooner.
As for Arreola’s claim that the crew violated company policy, Union Pacific has two
written rules on emergency braking. One rule states: “When emergency braking is necessary to
protect life or property, use the maximum braking effort available consistent with safe train
handling techniques.” Another rule provides that: “When conditions warrant, use an emergency
brake application without hesitation” and leave the brake on until the train stops. These rules make
clear that the train crew need not engage the emergency brakes without first considering the
circumstances they are facing.
As Harkness explained at trial, the rules require the crew to use their discretion in engaging
the emergency brakes. They must do so in accordance with safe train handling techniques, which
he explained includes avoiding derailment that could occur by sudden braking. Harkness added
that due to the possibility of derailment, it is not always reasonable, nor even safe, for a train to
immediately engage its emergency brakes every time the crew spots a trespasser on the tracks.
Instead, he testified that it complies with Union Pacific’s policy, and with safe train handling
techniques, to first seek to alert a person to leave the tracks, and to only engage the emergency
brakes when the crew realizes that the person is not going to heed the warning.
10
Accordingly, the record does not support Arreola’s contention that the train crew violated
any rules or policies in first trying to warn Molinar to evacuate the tracks before engaging the
emergency brakes. Nor do we find that the record proves that the train crew acted unreasonably in
following this course of action. In Barnes, the court encountered a similar situation in which the
plaintiffs sued a railroad company, alleging that its train crew acted unreasonably in first seeking
to warn a group of trespassers walking on the train tracks by blowing the train’s horn before
engaging the emergency brakes. See Barnes, 2016 WL 4801511, at *4 (applying Texas law). The
court, however, granted the defendant railroad’s motion for summary judgment, finding, as a
matter of law, that the engineer in that case did not act negligently or violate any duties of due care
in doing so. Id. In making that determination, the court relied on the following statement by the
Texas Supreme Court: “[W]here one is discovered some distance ahead of a train, and a timely
warning is given, those in charge of the train can presume that such a person is in possession of all
his faculties and that prompted by instinct of self-preservation, he will leave the track and place
himself beyond the reach of danger in time to escape injury[.]” Id. at *3, quoting Sisti v. Thompson,
229 S.W.2d 610, 615 (Tex. 1950); see also Flanigan, 273 S.W.2d at 115 (Fraser, J. concurring)
(referring to the court’s pronouncement in Sisti, as a “well-established” doctrine); see also Krasoff,
191 S.W.2d at 3 (recognizing that a train crew may act reasonably upon discovering a person on
the tracks by giving a warning so that the person has a chance to extricate himself from the danger,
rather than by trying to slow or stop the train).
The court in Barnes therefore held that because the trespassers in that case appeared to be
in control of their faculties, the train’s crew was reasonable in assuming the trespassers would
leave the tracks upon being warned of the train’s approach, and in only engaging the emergency
brakes when they realized the trespassers were not responding. Id. In so holding, the court also
11
observed that it would be “unreasonable for engineers to be forced to throw a 10,000 ton train into
an emergency stop every time they saw someone on the tracks, especially when the individuals
appear to be awake and have every opportunity to move from the tracks.” Id.; see also Sanchez,
2012 WL 6697574, at *2 (recognizing that a train crew cannot pull the emergency brakes every
time they spot a trespasser on the tracks).
In arguing that the jury’s apportionment of negligence was against the great weight and
preponderance of the evidence, Arreola relies primarily on our ruling in Cartwright v. Armendariz,
where we found that the evidence was factually insufficient to support a jury’s take-nothing verdict
for the defendant in a single vehicle auto-accident case. 583 S.W.3d at 805. In that case, however,
there was no evidence to support the jury’s finding that the defendant was not at fault in the parties’
accident. One of the plaintiffs testified that the defendant caused the accident by running a stop
sign while using a cell phone. Id. at 802. The defendant, who could not remember the cause of the
crash, “never put on any conflicting evidence” to answer that evidence. Id. at 802, 804. Thus,
because there was no disputed evidence in the record that the jury could have relied on in reaching
its verdict in the defendant’s favor, we concluded that the “jury’s verdict was contrary to the great
weight and preponderance of the evidence.” Id. at 805.
At best, this case presents conflicting evidence on the parties’ proportionate negligence in
causing the accident. Arreola does not dispute that Molinar was walking on the tracks wearing
headphones, which impeded his ability to hear any warning from the approaching train. In fact,
Arreola’s own expert audiologist, Dr. Seidemann, testified that headphones can be turned up so
loud that a person might not hear a train until it was “right on top of you.” When the train crew
spotted Molinar on the tracks, they could not see that he was wearing headphones, and they were
therefore justified in assuming that he was in control of his faculties and would respond to the
12
warning being given by the train’s horn. Therefore, the jury could have determined that the train
crew acted reasonably by first providing Molinar with a warning, and by waiting to engage the
emergency brakes when they realized he was not hearing that warning. As well, the jury could
have determined that even if the crew had engaged the emergency brakes as soon as they spotted
Molinar on the tracks, the outcome would have been the same, as the undisputed evidence
established that it was impossible for the train to have come to a complete stop before the point of
impact. Thus, we cannot say that the jury’s finding that Molinar was 90% at fault in the accident,
and that Union Pacific was only 10% at fault, was against the great weight and preponderance of
the evidence.
Finally, Arreola also argues that the jury’s finding that Molinar suffered no damages before
he died was not factually supported by the record, and was “manifestly unjust” and “shocks the
conscience.” In particular, Arreola points out that the recording from the video camera revealed
that Molinar turned to see the train approaching him a second before the impact, and she argues
that he therefore suffered “mental anguish” before he died. But because of the jury’s finding that
Molinar was 90% negligent, even if the jury had found that he suffered any such mental anguish,
the trial court would have still been required to enter a take-nothing judgment in Union Pacific’s
favor due to the 50-percent bar rule, which prohibits a plaintiff from recovering if he is found to
have been more than 50% negligent. See TEX.CIV.PRAC.& REM.CODE ANN. § 33.001 (“In an action
to which this chapter applies, a claimant may not recover damages if his percentage of
responsibility is greater than 50 percent.”). Accordingly, Arreola’s argument lacks relevance to
our disposition of the appeal.
Arreola’s Issue Five is overruled.
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IV. TESTING THE HORN
In Issue One, Arreola makes multiple complaints about an issue that arose at trial when her
attorneys realized that their expert witness, Dr. Seidemann, tested a different horn on the subject
locomotive from the one involved in the accident. Union Pacific had taken the original horn off
the locomotive and stored it for safekeeping shortly after the accident. Union Pacific then installed
a different horn and the locomotive was put back in service. Years later, Dr. Seidemann ended up
testing that replacement horn. Before discussing the merits of her various arguments on this topic
some background information is needed.
A. Background
Five days after the accident, Union Pacific tested the horn that had been on the locomotive
involved in the accident to ensure that it had been operating at the correct decibel level as required
by federal regulations. The test results, which were admitted into evidence at trial, showed that the
horn was operating at a level above the minimum 96 decibel level required by the regulations.6
The horn was then placed in a Union Pacific vault for safekeeping, and a new horn (the substitute
horn) was placed on the locomotive when it was placed back into service.7
Almost three years later, Arreola submitted a first of a series of discovery requests to Union
Pacific seeking to inspect the locomotive involved in the accident. Although Union Pacific agreed
to the inspection, it rescheduled the dates and locations for the inspection several times due to the
locomotive’s schedule, as it was traveling around the country. The record reflects that Arreola’s
initial requests only sought inspection of the locomotive itself. However, on September 3, 2019,
6
The test results indicate that Union Pacific took six sample readings, with only one result falling below 96 decibels,
reading at 95.8. The average of the six readings, however, was 97.0, making it in compliance with federal regulations.
7
At trial, as well as on appeal, Arreola incorrectly argued that Union Pacific did not test the original horn at that time,
and that it instead tested the “new horn” after the accident. This, however, is not borne out by the record, as the repair
records state that the horn was “removed by claims after horn test [and] replaced.”
14
Arreola’s attorney sent Union Pacific an “Amended Notice of Inspection,” making it clear that
Arreola wanted her experts to test the horn that had been on the subject train.8 Later, Arreola’s
attorneys sent Union Pacific three similarly worded requests. The inspection finally took place in
Dupo, Illinois on September 20, 2019. The month before the inspection, in August 2019, Union
Pacific produced the train’s repair records in response to Arreola’s discovery requests, revealing
that the horn had been taken off the train shortly after the accident and replaced with the substitute
horn. However, when Dr. Seidemann appeared for the inspection, he was unaware that this had
occurred. He believed that he was testing the original horn at the September 20th inspection when
in fact he was testing the substitute horn.
Arreola’s attorneys were also apparently unaware that Union Pacific had not produced the
original horn for testing until the second day of trial. The matter surfaced when Arreola’s attorneys
questioned a former Union Pacific employee, Mark Pollan, about the repair records for the train,
which Arreola’s attorney had introduced into evidence. In response to counsel’s questioning,
Pollan pointed out that the records reflected that Union Pacific’s claim department had requested
that a decibel test be performed on the horn involved in the accident. He added that the records
reflected that the test occurred five days after the accident, and that the claims department
thereafter removed the horn from the train and “replaced” it with another horn. On cross
examination, Union Pacific confirmed with Pollan that the horn had in fact been replaced after the
8
The request stated as follows:
“PLEASE TAKE NOTICE that an inspection for the lead locomotive involved in this incident . . .
has been rescheduled for September 18, 2019 at 3:00 p.m. (MDT).
Included in this inspection, Plaintiffs experts will be inspecting the subject locomotive, including the
horns, and other components as well as the gauges in the locomotive cab. Sound level measurements
will be done in front of the locomotive, so this must occur in an area that conforms to the FRA
requirements with regard to no nearby loud noise sources or sound reflective surfaces. A railroad
representative should be present and available in the locomotive to operate the horn.”
15
accident. Arreola’s attorney then asked Pollan on redirect whether he believed it was important to
test the correct horn. When counsel began to insinuate that it would have been “deceptive” for
Union Pacific to have produced a “different horn” for testing, Union Pacific objected and requested
a bench conference.
At the ensuing bench conference, Arreola’s attorneys accused Union Pacific of replacing
the horn on the train without informing them, and of failing to inform them that the horn produced
at the September 2019 inspection was a substitute horn. Counsel subsequently called
Dr. Seidemann to testify outside the presence of the jury that Union Pacific failed to inform him
that he was not testing the original horn when he travelled to Illinois for the inspection, and that
he learned for the first time during trial that he had tested the substitute horn. Further, Union
Pacific’s attorney acknowledged that he had also been unaware at the time of the inspection that
the testing was done on the substitute horn.
Arreola’s attorneys, however, acknowledged that Union Pacific’s counsel had produced
the train’s repair records to them almost a month before the inspection, and that the records stated
that the horn had been replaced after testing in 2016.9 Arreola’s attorneys pointed out, however,
that the documents produced at that time were voluminous, consisting of ten boxes, and the entries
for the horn’s replacement were in a small font and difficult to read. According to counsel, it was
not until the first night of trial that he noticed the entries showing that the horn had been replaced.
Arreola’s attorneys then requested as a sanction that they be allowed to inform the jury that
Dr. Seidemann was prevented from testing the original horn due to Union Pacific’s failure to
10
disclose that they had produced the wrong horn for testing. The court ruled that Arreola’s
9
Despite this admission, both at trial, as well as on appeal, Arreola incorrectly argues that these documents were
received after the inspection took place.
10
Arreola also argued that as another sanction, Union Pacific should not be permitted to make “any kind of reference
to the horn” in presenting its case, and should not be permitted to “produce experts,” such as audiologists,” to “talk
16
attorneys would be permitted to inform the jury that Dr. Seidemann had not tested the original
horn, but that they could not inform the jury of the reason, stating that it would be improper to
have a “discovery fight” played out in front of the jury. The trial court stated that these kinds of
discovery disputes should have been resolved before trial.11 In reaching that determination, the
trial court found it significant that in August 2019 Union Pacific had provided Arreola’s attorneys
with the repair records showing that the horn had been replaced. And finally, the trial court stated
that if the issue had been raised before trial, the court would have been inclined to grant Arreola a
continuance so she could inspect the original horn.
On the third day of trial, Arreola filed a written motion for sanctions, arguing that Union
Pacific had effectively “concealed” the original horn from her during the discovery process, and
sought a spoliation instruction that would have instructed the jury as follows:
Union Pacific destroyed or failed to preserve the horn which was on the freight train
which struck [Molinar] . . . . You must consider that this evidence would have been
unfavorable to Union Pacific on the issue of whether the horn was sufficiently loud
enough to warn [Molinar] of an approaching train.
She also sought “death penalty sanctions” for what she described as Union Pacific’s “blatant
contempt for the rule of law” in withholding key evidence in her case, asking the court to deem all
of Union Pacific’s defenses “to be waived.” Finally, she asked the court to “require Union Pacific
to pay all fees and costs incurred by Plaintiffs in requesting the inspection, performing the
inspection, rendering expert opinions on the false evidence, and bringing forth this motion.” After
about the horn.” Union Pacific, however, did not produce any experts to testify about the horn, thereby rendering that
argument moot.
11
Despite this ruling, Arreola’s attorney argued during closing arguments, without objection, that the train’s repair
records showed that Union Pacific took the horn off the train and that it then “disappear[ed],” and asked the jury why
Union Pacific would have hidden the horn if it had not been defective.
17
permitting Arreola’s attorneys to put forth their bill of exceptions, the trial court issued an order
denying all of Arreola’s oral and written requests for sanctions.
B. Arreola Failed to Request a Mistrial
On appeal, Arreola first argues that the trial court erred by “refusing to grant a mistrial”
based on Union Pacific’s alleged gamesmanship in “concealing” the original horn from her during
discovery. Union Pacific counters that Arreola never made a request for a mistrial in the trial court
and contends that she therefore may not raise this issue on appeal. We agree with Union Pacific.
Rule 33.1 provides that “[a]s a prerequisite to presenting a complaint for appellate review,
the record must show that: (1) the complaint was made to the trial court by a timely request,
objection, or motion . . . [and] (2) the trial court: (A) ruled on the request, objection, or motion,
either expressly or implicitly; or (B) refused to rule on the request, objection, or motion, and the
complaining party objected to the refusal.” TEX.R.APP.P. 33.1. Arreola never requested a mistrial,
and instead requested other “sanctions,” including death penalty sanctions, financial penalties, and
a spoliation instruction.12 The general rule is that a party waives the right to complain on appeal
about the trial court’s failure to grant a mistrial without any request for such. See Petroleum
Workers Union of the Republic of Mexico v. Gomez, 503 S.W.3d 9, 37 (Tex.App.--Houston
[14th Dist.] 2016, no pet.) (party waived error on appeal when it failed to request a mistrial or other
relief based on the allegedly improper admission of evidence at trial); Cook v. Sabio Oil & Gas,
Inc., 972 S.W.2d 106, 112 (Tex.App.--Waco 1998, pet. denied) (same). Arreola does not explain
12
Arreola suggests in her brief that she moved for a mistrial in her written motion for sanctions, but that motion did
not request a mistrial. She also contends that she orally moved for a mistrial during trial, but we find no such oral
motion in the record.
18
how we can consider this issue without such a request.13 We therefore conclude that she failed to
preserve this issue for our review.
C. The Spoliation Instruction Would Have Been Improper
Next, Arreola contends that the trial court erred in refusing her request for a spoliation
instruction which would have informed the jury that Union Pacific had either destroyed or failed
to preserve the horn, and that the jury must therefore conclude that “this evidence would have been
unfavorable to Union Pacific on the issue of whether the horn was sufficiently loud enough to warn
[Molinar] of an approaching train.” She contends that the trial court committed reversible error in
refusing to give this instruction to the jury. We disagree.
1. Applicable Law and Standard of Review
Spoliation is a particularized form of discovery abuse that ultimately results in the failure
to produce discoverable evidence. Brookshire Bros., Ltd. v. Aldridge, 438 S.W.3d 9, 18
(Tex. 2014). A party alleging spoliation first bears the burden of establishing that the nonproducing
party had a duty to preserve the evidence, and second, to demonstrate that “the other party breached
its duty to preserve material and relevant evidence.” Id. at 20, citing Wal-Mart Stores, Inc. v.
Johnson, 106 S.W.3d 718, 722 (Tex. 2003). The Texas Supreme Court has explained that a duty
to preserve evidence arises “when a party knows or reasonably should know that there is a
substantial chance that a claim will be filed and that evidence in its possession or control will be
material and relevant to that claim.” Id. Here, the horn was material evidence and Union Pacific
therefore had a duty to preserve it. So we focus on the second element—breach of the duty.
A party cannot breach its duty to preserve evidence, without at least acting negligently.
Petroleum Sols., Inc. v. Head, 454 S.W.3d 482, 488 (Tex. 2014), citing Brookshire Bros., 438
13
Union Pacific raised waiver in its brief, and Arreola did not address that issue in her reply brief.
19
S.W.3d at 20-21 & n.8. And the court has further observed that, assuming a trial court finds that
spoliation has occurred, the trial court “may impose an appropriate remedy.” Brookshire Bros.,
438 S.W.3d at 21. In this regard, Rule 215.2 of the Texas Rules of Civil Procedure “enumerates
an array of remedies available to a trial court when addressing a discovery abuse, such as an award
of attorney’s fees or costs to the harmed party, exclusion of evidence, striking a party’s pleadings,
or even dismissing a party’s claims,” all of which are available in the “spoliation context.” Id.,
citing TEX.R.CIV.P. 215.2-215.3; Trevino v. Ortega, 969 S.W.2d 950, 953 (Tex. 1998). The court
has further noted that a trial court “has discretion to craft other remedies it deems appropriate,”
depending on the circumstances, but the court must ensure that the remedy for an act of spoliation
has a “direct relationship” to the act itself and is not “excessive.” Brookshire Bros., Ltd., 438
S.W.3d at 21. In determining the proper remedy, the court should weigh the “culpability of the
spoliating party and the prejudice to the nonspoliating party.” Id. 14
In some cases, a trial court has the discretion to provide the jury with a spoliation
instruction informing the jury that it may presume that the “missing evidence would have been
unfavorable to the spoliator.” Id. at 21-22. Yet the Aldridge court recognized that a spoliation
instruction is “among the harshest sanctions a trial court may utilize to remedy an act of
spoliation,” as it has the “propensity to tilt a trial in favor of a nonspoliating party [and] it can, in
some sense, be tantamount to a death-penalty sanction.” Id. at 23, citing Wal-Mart Stores, 106
S.W.3d at 724; TransAmerican Nat. Gas Corp. v. Powell, 811 S.W.2d 913, 917-918 (Tex. 1991).
At the same time, the court has recognized that the “destruction of relevant evidence can also
14
In particular, a trial court should assess the following: “(1) the degree of fault of party who failed to preserve
evidence, (2) the degree of prejudice suffered by the opposing party, and (3) whether there is a lesser sanction that
will avoid substantial unfairness to the opposing party.” Brookshire Bros., Ltd., 438 S.W.3d at 21. “Prejudice is
evaluated based on the spoliated evidence’s relevance to key issues in the case, whether the evidence would have been
harmful to the spoliating party’s case (or, conversely, helpful to the nonspoliating party’s case), and whether the
spoliated evidence was cumulative of other competent evidence that may be used in its stead.” Petroleum Sols., Inc.
v. Head, 454 S.W.3d 482, 489 (Tex. 2014), citing Brookshire Brothers, 438 S.W.3d at 21-22.
20
unfairly skew the outcome of a trial.” Brookshire Bros., Ltd., 438 S.W.3d at 23. Thus, it has
observed that the improper grant or denial of a spoliation instruction can deprive a party of the
right to a fair trial, and it “follows that an instruction should be available to address spoliation in
certain circumstances, but should be used cautiously.” Id. at 23, citing TransAmerican, 811 S.W.2d
at 917. The court has accordingly held that a spoliation instruction is proper only if the trial court
finds that: “(1) the spoliating party acted with intent to conceal discoverable evidence, or (2) the
spoliating party acted negligently and caused the nonspoliating party to be irreparably deprived of
any meaningful ability to present a claim or defense.”15 Petroleum Sols., Inc., 454 S.W.3d at 489,
citing Brookshire Bros., 438 S.W.3d at 23-26.
Subject to these considerations, we employ an abuse of discretion standard when reviewing
a trial court’s decision to grant or deny a spoliation instruction. Telesis/Parkwood Ret. I, Ltd. v.
Anderson, 462 S.W.3d 212, 254 (Tex.App.--El Paso 2015, no pet.), citing Brookshire Bros., Ltd.,
438 S.W.3d at 27; see also Am. Flood Research, Inc. v. Jones, 192 S.W.3d 581, 583 (Tex. 2006)
(recognizing that in general a trial court has the discretion to determine whether to impose a
sanction for a discovery abuse subject to review for an abuse of discretion). In determining whether
a trial court abused its discretion, we must decide whether the trial court acted without reference
to any guiding rules or principles; in other words, we must decide whether the act was arbitrary or
unreasonable. Telesis/Parkwood Ret. I, Ltd., 462 S.W.3d at 254. Although a trial court may decide
a matter within its discretion in a different manner than an appellate court would in a similar
circumstance, that does not necessarily mean that an abuse of discretion has occurred. Id., citing
Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex. 1985) (discussing the test
15
As well, the court has held that this same standard applies to “limit a trial court’s discretion to issue other remedies
akin to death-penalty sanctions, such as striking a party’s claims or defenses.” Petroleum Sols., Inc., 454 S.W.3d at
489.
21
for abuse of discretion). In addition, a trial court’s error in determining whether to give a spoliation
instruction is reversible only if it probably caused the rendition of an improper judgment. Id., citing
Brookshire Bros., Ltd., 438 S.W.3d at 29.
2. Analysis
Union Pacific argues that it fulfilled its duty to preserve the original horn by storing it in
an evidence vault for the three years pending trial. Arreola, on the other hand, argues that the
original horn was hidden or “concealed” from her, pointing out that Union Pacific failed to inform
her expert that he was testing the wrong horn. She further argues that this alleged concealment was
a form of spoliation. We agree with Arreola that spoliation can occur not only when a party has
destroyed evidence, but also when a party has intentionally hidden or concealed material evidence
from the other party. See generally Brookshire Bros., 438 S.W.3d at 23-24 (recognizing that a
spoliation instruction “is based on the presumption of wrongdoing, so it follows that the more
appropriate requirement is intent to conceal or destroy discoverable evidence”); Petroleum Sols.,
Inc., 454 S.W.3d at 489-90 (finding no spoliation where there was no proof that the defendant
“intentionally concealed evidence”). Still, even if we were to assume that Union Pacific concealed
the original horn from Arreola’s attorneys, we cannot conclude that the concealment was
intentional or that it otherwise caused Arreola to be irreparably deprived of any meaningful ability
to present a claim or defense, such that reversal of the jury’s verdict is required. Petroleum Sols.,
Inc., 454 S.W.3d at 489.
First, we find no evidence in the record to support a finding that Union Pacific intentionally
concealed the horn from Arreola or her experts at the time of the inspection; instead, the record
reflects that if anything, both parties were equally at fault in ensuring that the proper horn was
tested. Although we recognize that Arreola’s attorneys expressly stated in their discovery requests
22
that they sought to conduct sound tests on the original horn, nothing in the record suggests that
Union Pacific acted to intentionally conceal evidence when it instead produced the substitute horn
at the inspection. As set forth above, Union Pacific’s own attorney stated at trial that he had been
unaware that the original horn had not been produced at the inspection when the issue arose at
trial. Three years had passed between the time the original horn was removed and Arreola
requested to inspect the locomotive, and then only in an amendment to that request did she seek to
test the horn. In addition, Union Pacific provided Arreola’s attorneys with the train’s repair records
before the inspection that expressly stated that it had “replaced” the original horn on the locomotive
shortly after the accident. At a minimum, the records would have alerted Arreola of the need to
verify that the locomotive that was produced at the inspection had the original horn on it. 16
Additionally, Union Pacific provided Arreola with copies (which contained the original horn’s
serial number) of the tests that it performed on the horn before it was replaced. Arreola’s experts
had the opportunity at the inspection to verify whether they were testing the original horn simply
by looking at the horn’s serial number. As such, we cannot conclude that Union Pacific
intentionally sought to trick Arreola’s experts into testing the wrong horn.
Second, we cannot say that Union Pacific’s failure to produce the original horn at the
inspection was so prejudicial to Arreola’s case that she was “irreparably deprived of any
meaningful ability to present a claim or defense,” such that a spoliation instruction would have
been a proper remedy. See Petroleum Sols., Inc., 454 S.W.3d at 489. The video from the
locomotive, which was played to the jury, had an audio portion that demonstrated there was an
audible horn sounding as the train approached Molinar. At trial Arreola acknowledged that the
16
In her brief, Arreola contends that Union Pacific did not inform her that it had replaced the defective horn with a
new one before the inspection. As discussed above, however, the record belies this contention, as the repair records
that Union Pacific gave to Arreola the month before the inspection state that the horn had been “replaced” after the
accident.
23
train crew blew the horn in a continuous manner prior to engaging the emergency brakes, and her
theory at trial was that this was the wrong horn pattern to use, as it was ineffective to alert Molinar
to the danger of the approaching train. Moreover, she never suggested the alternative theory that
she raises on appeal—that the train’s horn was simply not loud enough for Molinar to hear it.
The record also contains evidence that Union Pacific tested the original horn shortly after
the accident, and those test results showing that the horn passed inspection were submitted into
evidence at trial. In addition, Mark Pollan testified at trial as to the validity of the test results, and
the fact that the horn performed at the minimum decibel level required by federal regulations.
Arreola, however, failed to challenge the validity of the test results.
We therefore conclude that Union Pacific’s failure to produce the original horn at the time
of the September inspection did not “irreparably deprive” Arreola of her ability to present her
claim to the jury that Molinar was not adequately warned of the train’s approach. Thus, we cannot
say that the trial court abused its discretion in refusing to give a spoliation instruction under these
circumstances. For these reasons, we reject Arreola’s argument the trial court’s failure to provide
her requested spoliation instruction warrants a reversal of the trial court’s judgment.
Arreola’s Issue One-A is overruled.
V. THE LIMITATIONS ON DR. SEIDEMANN’S TESTIMONY
In Issue One-B, Arreola argues that the trial court erred in limiting her expert witness,
Dr. Seidemann, from testifying on two topics: (1) why he did not test the original horn at the
inspection; and (2) his opinion that the train’s repair records reflected that the train’s horn had been
24
17
malfunctioning before the accident and had not been repaired. We disagree with both
arguments.
A. Standard of Review
We review a trial court’s exclusion of evidence under an abuse of discretion standard. See
JLG Trucking, LLC v. Garza, 466 S.W.3d 157, 161 (Tex. 2015); see also Kia Motors Corp. v.
Ruiz, 432 S.W.3d 865, 879 (Tex. 2014). A trial court abuses its discretion when it acts without
regard for guiding rules or principles. U-Haul Int’l, Inc. v. Waldrip, 380 S.W.3d 118, 132
(Tex. 2012). In all events, a trial court’s error in excluding evidence is reversible only if it probably
caused the rendition of an improper judgment. JLG Trucking, LLC, 466 S.W.3d at 165, citing
TEX.R.APP.P. 44.1(a)(1); see also DeAnder & Felhaber, LP v. Montgomery, 615 S.W.3d 352, 356
(Tex.App.--El Paso 2020, pet. denied) (even if a trial court’s evidentiary ruling is an abuse of
discretion, reversal is appropriate only if the error was harmful). An appellate court must uphold a
trial court’s evidentiary ruling if there is “any legitimate basis for the ruling.” Owens-Corning
Fiberglas Corp. v. Malone, 972 S.W.2d 35, 43 (Tex. 1998).
B. Testimony about Inspection of the Horn
Arreola first contends that the trial court abused its discretion by refusing to allow
Dr. Seidemann to testify that he had been unable to test the original horn due to Union Pacific’s
actions in producing a substitute horn at the inspection. As set forth above, the trial court permitted
Dr. Seidemann to testify that he had not tested the original horn but ruled that he could not testify
17
Arreola further contends that Dr. Seidemann should have been permitted to testify that “Union Pacific, though
involved in hundreds of other similar cases, had never before implemented a policy of removing and storing a horn
involved in a fatal collision, as it did in this case.” Dr. Seidemann, however, never testified to that fact in Arreola’s
bill of exceptions. Instead, he testified that he had never been involved in a situation in which he had been given the
wrong equipment for testing. We therefore do not consider this argument in our analysis as it was not preserved for
our review. See Hernandez v. Moss, 538 S.W.3d 160, 166 (Tex.App.--El Paso 2017, no pet.) (in order to preserve the
issue of whether testimony was improperly excluded, the appellant must make an offer of proof or a bill of exception
to show what the witness’s testimony would have been).
25
about the reason why; the trial court did not intend to have a “discovery fight” played out in front
of the jury. Arreola argues that the trial court’s exclusion of Dr. Seidemann’s testimony on this
topic was “prejudicial and erroneous,” relying on the Texas Supreme Court’s holding in State v.
Cent. Expressway Sign Assocs., 302 S.W.3d 866, 870-74 (Tex. 2009). That case, however, does
not fit as it merely holds that a trial court may abuse its discretion by excluding expert witness
testimony that has a “reliable foundation,” and is relevant to the issues in a case. Id. at 870. In
contrast, Arreola was not attempting to question Dr. Seidemann in his capacity as an expert witness
to elicit expert witness testimony from him. Instead, Arreola was seeking to question
Dr. Seidemann about a discovery issue relating to her claim of spoliation.
This distinction is important because, as the trial court correctly observed, it would have
been improper for the parties to litigate a discovery dispute in front of the jury. The Texas Supreme
Court has recognized that spoliation is an “evidentiary concept,” rather than a cause of action, and
“the trial court, rather than the jury, must determine whether a party spoliated evidence and, if so,
impose the appropriate remedy.” Brookshire Bros., Ltd., 438 S.W.3d at 20, citing Trevino, 969
S.W.2d at 954 (Baker, J., concurring); Massie v. Hutcheson, 270 S.W. 544, 545 (Tex. Comm’n
App. 1925, holding approved) (stating that determining whether a party intentionally destroyed
evidence is a preliminary question for the court to decide). The court has further explained that
giving the trial court sole responsibility to rule on spoliation issues ensures that the “jury’s focus
stays where it belongs—on the merits.” Brookshire Bros., Ltd., 438 S.W.3d at 20 (holding that it
is improper for the trial court to hold spoliations hearings in the jury’s presence).
Our sister court in Houston recognized that a trial court should avoid allowing the jury to
even indirectly consider whether evidence has been spoliated. In Johnson v. Nat’l Oilwell Varco,
LP, 574 S.W.3d 1, 17 (Tex.App.--Houston [14th Dist.] 2018, no pet.), the defendant employer had
26
destroyed a video that purportedly showed an incident that led to the plaintiff employee’s
termination. Id. at 12. The plaintiff argued that the destruction was intentional, and requested a
spoliation instruction, or in the alternative, permission to inform the jury that the defendant had
destroyed the video, without referencing whether the destruction was intentional. Id. at 17. The
trial court rejected both requests. On appeal, the Houston court found that the trial court did not
abuse its discretion. Id. at 16-17. Significant to our analysis, the court held that it would have been
improper to inform the jury of the video’s destruction, as this “approach would have essentially
left it up to the jury to determine whether spoliation occurred and what to make of the video’s
destruction,” in violation of the Texas Supreme Court’s directive that “the trial court, rather than
the jury, must determine whether a party spoliated evidence and, if so, impose the appropriate
remedy.” Id. at 17, quoting Brookshire Brothers, 438 S.W.3d at 20.
Similarly, if Dr. Seidemann had been permitted to testify about Union Pacific’s failure to
produce the correct horn for testing, this would have opened the door to allowing the jury to
determine whether Union Pacific had spoliated evidence, a matter not within its province.
Brookshire Bros., Ltd., 438 S.W.3d at 20; see also Telesis/Parkwood Ret. I, Ltd., 462 S.W.3d at
253 (recognizing that “discovery matters” are within the trial court’s sole province). In addition, it
would have also opened the door to a prolonged debate about whether the evidence had in fact
been spoliated and would have taken the jury’s focus away from the true issue in the case—whether
Union Pacific acted negligently on the day of the accident.
We thus conclude that the trial court did not abuse its discretion in prohibiting
Dr. Seidemann from testifying on this issue.
27
C. Testimony about the Horn’s Repair Records
Arreola next contends that the trial court erred in prohibiting Dr. Seidemann from
expressing his opinion that the train’s repair records reflected that the train’s horn was “defective,”
as it had been malfunctioning before the accident and had allegedly never been repaired. We
conclude, however, that this issue was not properly preserved for our review.
By way of background, the train’s repair records, which Arreola introduced into evidence,
contained two entries dated July 4, 2016, both of which were in a “defect/repair” column stating:
(1) “exam defect,” with the following notation: “miscellaneous-ed defective horn/bell,” and
(2) “troubleshoot,” with a notation stating, “horn operation.” Both entries indicate that the repair
status was still open on that date, with another note stating: “[t]o be completed at the Diesel Ramp.”
However, the records also contain an entry on July 5, 2016, saying that an examination was
conducted that day, that there was no defect in the horn, and that the problem related to the “horn
bonnet” and had been “completed.” At trial, Pollan explained that the term “horn bonnet” refers to
the fabric that is placed over the top of the horn’s “trumpets” to prevent debris and bugs from
getting inside the horn itself. Pollan believed that the records reflected that the horn “must have
had a ripped bonnet” and needed to be replaced.18 He also opined that the problem had in fact been
resolved as the records contained an entry specifying that the issue had been “completed.”
Arreola, however, apparently believed that the issue had not in fact been satisfactorily
resolved before Molinar’s accident, and sought to have Dr. Seidemann testify that the repair
records reflected that the horn was “defective.” Union Pacific objected, arguing that
Dr. Seidemann did not discuss the repair records in his expert witness report, and therefore, it
18
The records indicate that a horn test was also performed on August 30, 2016, which Pollan believed was conducted
in a routine manner after the train was involved in another incident. The records indicate that the horn test was
successfully completed.
28
would be improper for him to provide an opinion on the records at trial. In addition, Union Pacific
pointed out that Dr. Seidemann’s testimony would have been cumulative, as the repair records
were already in evidence and had been sufficiently explained by Pollan’s testimony. The trial court
agreed, again pointing out that Arreola’s attorneys had the repair records since August 2019, but
“didn’t do anything” with them before trial. Later, when Arreola made a bill of exceptions for this
issue, she only questioned Dr. Seidemann about the discovery issues relating to the horn and did
not question him on how he interpreted the repair records or, more specifically, whether he
believed the records reflected that the horn was defective.
To preserve an argument that the trial court improperly excluded evidence, the proponent
of the evidence must offer the evidence and secure an adverse ruling from the court. See Perez v.
Lopez, 74 S.W.3d 60, 66-67 (Tex.App.--El Paso 2002, no pet.), citing TEX.R.EVID. 103. Without
such an offer of proof, there is nothing for an appellate court to review. Id.; see also Hogg v. Lynch,
Chappell & Alsup, P.C., 553 S.W.3d 55, 67 (Tex.App.--El Paso 2018, no pet.) (“The party
complaining about the exclusion of evidence must show by either a bill of exception or an offer of
proof the substance of the evidence excluded.”). Here, although Arreola’s attorneys generally
asserted that Dr. Seidemann would have testified that in his opinion, the repair records reflected a
defect with the train’s horn, we have no way of knowing whether he did in fact hold this opinion
or what evidence he had to support the opinion. Without any offer of proof, we have no way to
determine whether Dr. Seidemann’s testimony would have had any impact on the jury. See Quiroz
v. Llamas-Soforo, 483 S.W.3d 710, 722 (Tex.App.--El Paso 2016, pet. dism’d) (while a reviewing
court may be able to discern from the record the nature of the evidence and the propriety of the
trial court’s ruling, without an offer of proof, the court can never determine whether exclusion of
29
the evidence was harmful). We therefore conclude that Arreola failed to preserve this issue for our
review.
Arreola’s Issue One-B is overruled.
VI. THE DELAY IN PRODUCING THE BINOCULAR
In Issue Two-A, Arreola argues that: (1) the trial court erred in admitting evidence of the
binocular that Conductor Diaz claimed he used to determine there was a person on the tracks, and
(2) the trial court should have provided a spoliation instruction to the jury for either Union Pacific’s
delay in producing the binocular, or its alleged failure to produce the actual binocular that Diaz
used on the day of the accident. We reject both arguments, but first provide some needed
background on this issue.
A. Background
During his deposition in April 2018—almost two years after the accident—Diaz testified
that on the day of the accident, he had with him one half of a “toy” binocular that belonged to his
daughter. He explained that after she broke the binocular, she gave him the half that he used that
day. Although he did not describe the broken binocular in detail, he testified that it was made of
plastic, and was the type that could be bought in the “toy department” at Wal-Mart. He added that
although he did not know the binocular’s magnification, he described it as being like a “magnifying
glass,” and asserted that it only provided “a little bit” of clarification. According to Diaz, on the
day of the accident, he used the broken binocular in the manner of a “monocular” by placing it up
to his eye after the engineer spotted the red object on the tracks, after which he “immediately”
determined that the object on the tracks was a person. At his deposition, however, he testified that
he no longer had the broken binocular in his possession.
30
In July 2019, Arreola served a discovery request on Union Pacific to produce the broken
binocular that Diaz had stated he used on the day of the accident, and in its response a month later,
Union Pacific replied: “None within Defendants’ possession, custody, or control. Defendants
continue to look for responsive items and will produce them if they are found.” Subsequently, in
September 2019, Arreola filed a motion for spoliation of evidence, alleging that Union Pacific had
intentionally and negligently failed to preserve the broken binocular, which Union Pacific knew
or should have known would be material and relevant to Arreola’s claim. Soon after, on October 9,
2019, Union Pacific’s counsel emailed Arreola’s attorneys informing them that Diaz had found
the missing “binocular,” and that it was available for their inspection. The email contained
photographs of a Bushnell binocular, which appeared to have been broken in half.19
In November 2019, Arreola’s attorney filed a supplemental motion for a spoliation
instruction, arguing that Union Pacific had “offered no justification for not producing the
binoculars in a timely manner,” and insinuating that Union Pacific had produced the wrong
binocular—a professional-level binocular—rather than the toy one that Diaz had referenced in his
deposition testimony. The motion alleged that Union Pacific had thereby “intentionally and
negligently spoliated” the evidence. As a sanction for Union Pacific’s conduct, Arreola again
requested that the trial court give the jury a spoliation instruction, allowing the “jury to presume
the spoliated evidence is unfavorable to the Defendants.” The trial court did not expressly rule on
the motion before trial, but impliedly did so when it issued a written post-trial order denying all of
Arreola’s motions for sanctions.
At trial, in response to questioning by Arreola’s attorney, Diaz explained that although he
at first informed Union Pacific that he had thrown away the broken binocular after the accident,
19
In her brief, Arreola calls the Bushnell binocular a “professional level monocular,” but the images in the record
appear to indicate that it was a binocular broken in half. We therefore call it a binocular.
31
he later found the binocular in “an old bag” that he believed had been discarded after the accident.
He gave the binocular to Union Pacific sometime in 2019. Arreola’s attorney then moved to admit
into evidence the Bushnell binocular that Union Pacific had earlier produced in discovery.
Arreola’s attorney subsequently questioned Diaz on how the Bushnell binocular did not match the
description of the binocular that he had given at his deposition. Diaz, however, confirmed that the
Bushnell binocular was in fact the “toy” one he had borrowed from his stepdaughter, and that it
was useful in helping him spot Molinar on the tracks. Arreola did not pursue the issue further at
trial, and in particular, she did not renew her request for a spoliation instruction on the binocular
during the jury charge conference, and did not submit a proposed written instruction for the court’s
consideration on this issue.
B. The Admission of the Binocular
On appeal, Arreola first contends that the trial court erred by “permitting Union Pacific to
introduce the professional monocular into evidence,” given Union Pacific’s delay in producing the
binocular and its alleged substitution of a “professional grade monocular” for the “lost toy”
binocular that Diaz testified at his deposition he had used on the day of the accident. But it was
Arreola (and not Union Pacific) that moved to admit the Bushnell binocular into evidence. Under
the invited error doctrine, “a party cannot complain on appeal that the trial court took a specific
action that the complaining party requested.” Tittizer v. Union Gas Corp., 171 S.W.3d 857, 862
(Tex. 2005) (per curiam); see also Meyers v. 8007 Burnet Holdings, LLC, 600 S.W.3d 412, 422
(Tex.App.--El Paso 2020, pet. denied) (“Under what is termed the invited error doctrine, a party
cannot complain on appeal about an action that the trial court took at the request of the complaining
party.”). Accordingly—regardless of whether Arreola believes that Union Pacific produced the
32
wrong binocular during discovery proceedings—she cannot now complain that the trial court erred
in allowing its admission at trial, as she was responsible for requesting its admission.
C. The Failure to Give a Spoliation Instruction
Arreola next contends that the trial court erred in denying her motion for a spoliation
instruction, making a two-fold argument. First, she again accuses Union Pacific of intentional
spoliation by engaging in what she describes as a “bait-and-switch” tactic in response to her
discovery request, by producing the “professional” grade Bushnell binocular, rather than the toy
binocular that Diaz described at his deposition. Second, she argues that the delay in producing the
binocular amounted to an intentional concealment of the evidence, causing her to be unable to
inspect the binocular before trial. Further, she argues that the binocular constituted a “critical”
piece of evidence, contending that the “caliber of those binoculars was vital information” in
determining how soon the train crew spotted—or should have spotted—Molinar. She claims this
was a “central issue at trial.” We find several problems with her arguments.
Initially, Arreola failed to tender a proposed instruction in the trial court, and further failed
to address the issue at the jury charge conference. Rule 278 of the Texas Rules of Civil Procedure
expressly provides that the “[f]ailure to submit a definition or instruction shall not be deemed a
ground for reversal of the judgment unless a substantially correct definition or instruction has been
requested in writing and tendered by the party complaining of the judgment.” TEX.R.CIV.P. 278.
This rule has repeatedly been interpreted to mean that a purported error about an omitted jury
instruction is deemed waived absent a written tender of the instruction, and that an objection to the
lack of an instruction cannot preserve error on the issue. See Woods v. Crane Carrier Co., Inc.,
693 S.W.2d 377, 379 (Tex. 1985) (finding that appellant’s failure to properly request a special
issue instruction in writing was fatal to this point of error on appeal.); Lopez v. S. Pac. Transp.
33
Co., 847 S.W.2d 330, 333 (Tex.App.--El Paso 1993, no writ) (finding appellant’s objection to the
lack of an instruction on certain evidentiary presumptions, did not preserve error where appellant
failed to tender a proposed written instruction for the court’s consideration as required by Rule
278). As our sister court in Waco pointed out, despite the general rule that a party need only bring
an issue to the court’s attention to preserve an issue for review, every Texas court addressing the
issue has declined “to relax the requirement of Rule 278 that a written request must be made” for
a jury instruction to preserve the issue for appellate review. See In re F.L.R., 293 S.W.3d 278, 281-
82 (Tex.App.--Waco 2009, no pet.) (collecting cases).
While Arreola argued in her “supplemental motion for spoliation of evidence” that the trial
court should provide the jury with a spoliation instruction pertaining to the binocular, she did not
provide the court with a proposed instruction, or even explain how she believed the instruction
should be worded. In addition, Arreola did not raise this issue at the charge conference or otherwise
object that the charge lacked the spoliation instruction before it was read to the jury. 20 See
generally TEX.R.CIV.P. 272 (all objections to a jury charge not presented to the trial court before
reading the charge to the jury “shall be considered as waived”). We thus conclude that Arreola
failed to preserve the issue of the trial court’s alleged error in failing to include a spoliation
instruction for the binocular in the jury charge.
Moreover, even if we were to find that Arreola preserved the issue, we would not find that
a spoliation instruction would have been proper under these circumstances. In order to find that a
spoliation occurred, the trial court must find that the spoliating party had a duty to preserve the
evidence and that it breached that duty by failing to either preserve the evidence, or by concealing
it from the nonspoliating party. Petroleum Sols., Inc., 454 S.W.3d at 488-89; Brookshire Bros.,
20
At the charge conference, Arreola’s attorneys raised the issue of the court’s failure to give a spoliation instruction
about the horn but did not do so for the binocular.
34
438 S.W.3d at 23-24. Here, although the binocular was material evidence, the record does not
support a finding that Union Pacific breached its duty to preserve the binocular or that it otherwise
concealed it from Arreola. As explained above, Union Pacific first informed Arreola that the
binocular was missing but that Union Pacific was continuing to search for it. Upon finding it,
Union Pacific produced the binocolar for inspection over a month before trial. Union Pacific’s
initial inability to locate the binocular, which caused a delay in its production, is simply not the
equivalent of a spoliation. See generally Mattar v. BBVA Compass Bank, NA, No. 13-16-00496-
CV, 2018 WL 2440382, at *10 (Tex.App.--Corpus Christi May 31, 2018, no pet.) (mem. op.) (trial
court did not err in refusing to give a spoliation instruction where the record reflects that the
defendant either could not locate the documents requested by plaintiffs despite its best efforts, or
that the defendant produced the documents even if in a different form than requested); see also
Christerson v. Speer, No. 01-16-00469-CV, 2017 WL 1520449, at *7 (Tex.App.--Houston
[1st Dist.] Apr. 27, 2017, pet. denied) (mem. op.) (finding that the trial court did not err in rejecting
a request for a spoliation instruction because the record showed that, “after a thorough search” the
parties were unable to find a missing promissory note, and there was no evidence it had been
intentionally destroyed).
Further, while Arreola accuses Union Pacific of engaging in “gamesmanship” by delaying
the production of the binocular, and by allegedly making a “misrepresentation of the type and
quality” of the binocular Diaz used, the record reflects that Diaz provided uncontradicted
testimony at trial explaining the delay and expressly explaining that he did in fact use the Bushnell
binocular that Union Pacific produced during discovery. While Arreola may not believe Diaz’s
testimony, it was up to the trial court to assess Diaz’s credibility in determining whether he was
speaking the truth on this matter. See generally EJ Madison, LLC v. Pro-Tech Diesel, Inc., 594
35
S.W.3d 632, 639 (Tex.App.--El Paso 2019, no pet.) (recognizing that the trial court is the sole
judge of the credibility of the witnesses and the weight to be given to their testimony); see also
McGalliard v. Kuhlmann, 722 S.W.2d 694, 697 (Tex. 1986) (trier of fact “may resolve
inconsistencies in the testimony of any witness”).
In addition, we fail to see how the delay in producing the binocular deprived Arreola of her
ability to present her claim to the jury or otherwise prejudiced her case. As explained above, Union
Pacific informed Arreola over a month before trial that it had found the binocular and sent
photographs of the binocular to her attorneys. Arreola did not ask to inspect the binocular at that
time, and she does not explain how an inspection of the binocular would have assisted her case.
Moreover, it was undisputed that Diaz spotted Molinar on the tracks by using the binocular. If
anything, he would have spotted Molinar sooner by using the “professional” grade binocular,
rather than the “toy” one he described at his deposition.21 Thus, the trial court acted properly in
refusing to give a spoliation instruction under these circumstances.
Finally, Arreola complains for the first time in her reply brief that the “jury should have
been told about Diaz’s original testimony” at his deposition in which he claimed that he had used
a “toy” binocular to spot Molinar on the tracks, rather than the professional grade binocular that
was introduced at trial. Arreola, however, may not raise a new issue for the first time in a reply
brief. See Watret v. Watret, 623 S.W.3d 555, 563-64 (Tex.App.--El Paso 2021, no pet.), citing
TEX.R.APP.P. 38.3. Even at that, Arreola’s attorneys did question Diaz at trial—albeit briefly—
about the contradictions in his deposition testimony. She does not identify any additional testimony
that she sought to elicit, but was denied admission. See Rhey v. Redic, 408 S.W.3d 440, 458
21
When questioning Diaz, Arreola’s attorney appeared to recognize as much, when she asked him: “And you had a
little bit of an advantage over Mr. Harkness because you had [the Bushnell binocular]?” to which Diaz responded in
the affirmative. As well, during closing arguments Arreola’s attorney stated that Diaz had a “[v]ery, very good brand”
of binocular—rather than a “toy” one—that let him immediately see that there was a person walking on the tracks.
36
(Tex.App.--El Paso 2013, no pet.) (“To preserve error concerning the exclusion of evidence, the
complaining party must actually offer the evidence and secure an adverse ruling from the court.”);
TEX.R.APP.P. 33.1(a).
Arreola’s Issue Two-A is overruled.
VII. CORPORATE REPRESENTATIVE TESTIMONY
In Issue Two-B, Arreola contends that the trial court erred by limiting the testimony of one
of Union Pacific’s designated corporate representatives, William Spaar, about the “cause and
manner of the accident.” We agree with Union Pacific, however, that the trial court’s ruling was
not error. Further, in any event, the evidence was cumulative of other evidence presented at trial.
And its exclusion, even if erroneous, did not impact the jury’s verdict or otherwise prejudice
Arreola’s case.
A. Background
In response to Arreola’s discovery request to designate a corporate representative to testify
on a list of topics, Union Pacific informed Arreola that there was not one single individual who
could testify on all those topics. Union Pacific thereafter designed various individuals, including
Spaar, who at the time was a manager in Union Pacific’s risk management division, to serve as its
corporate representatives, and agreed to allow Arreola to depose Spaar before trial. At his
deposition, Spaar testified that he had been designated to testify on several topics, including “topic
five,” which asked Union Pacific to “describe how the occurrence happened, giving all events in
detail in the order in which they occurred, before, at the time of, or after the occurrence, which had
any bearing on the cause and manner of the happening of the occurrence.” Spaar then testified
briefly to the events that occurred that day and provided testimony consistent with Union Pacific’s
theory of the case.
37
Later, at a pretrial hearing, Union Pacific argued that Spaar should not have to testify on
topic five at trial, or any topics relating to “train handling” as he was in the “claims department”
and these topics were therefore not within his area of knowledge or expertise. Instead, Union
Pacific suggested that its other designated corporate representatives could fulfill that role.
Although the trial court did not expressly rule on the issue, it ordered Spaar to appear for trial, but
cautioned that he would be permitted only to testify on matters within his “area[s] of knowledge.”
Union Pacific later withdrew its designation of Spaar as its representative on these topics, and on
the first day of trial, the court ruled that—although Spaar had testified at his deposition on those
topics—he would not have to do so at trial.
Despite this limitation on his testimony, the trial court allowed Arreola to question Spaar—
over Union Pacific’s objection—regarding whether he believed the train crew reacted properly
when they spotted Molinar on the tracks.22 In response, Spaar provided similar testimony to that
in his deposition, testifying that it was “reasonable to assume people will move” off the tracks
when a train is approaching, and that he believed the train crew properly engaged the emergency
brake as soon as they realized that Molinar was not responding to the train’s warning. Although
he acknowledged that the train crew arguably could have applied the emergency brakes
immediately after spotting Molinar on the tracks, he believed the crew would not have been able
to stop the train before impact had they done so.
After Spaar finished testifying, Arreola’s attorneys made an “offer of proof” submitting
Spaar’s deposition testimony. They argued that the deposition supported their position that Spaar
22
The trial court sustained one objection to Arreola asking Spaar if he could “imagine a circumstance that warrants
hitting the emergency brake more than a pedestrian walking away from the train with their back to the train?” The
trial court agreed with Union Pacific that this was not within Spaar’s field of expertise and that he did not provide any
testimony to that effect during his deposition.
38
was in fact designated to testify on topic five and on safe train handling techniques, and that he
should have been permitted to testify at trial on these topics.23 In addition, her attorneys argued
that Spaar should have been permitted to testify at trial on other subjects, such as “other instance[s]
of trespassers or people on or near the tracks,” as well as Union Pacific’s policy on how its crews
are to handle situations in which persons are spotted on the tracks. The trial court, however,
declined to alter its ruling limiting Spaar’s testimony.
B. Analysis
Arreola contends that because Union Pacific designated Spaar to testify on most of the
topics at issue in the case (and allowed him to testify to those topics at his deposition), the trial
court erred by restricting Spaar’s trial testimony to “just those subjects that Spaar claimed to know
something about.” In particular, Arreola contends that Spaar should have been permitted to testify
about topic five and “safe train handling” techniques.
We could agree in general that when a corporation designates a representative to testify on
a certain subject, it must prepare that representative to testify on that subject even if the subject is
not within the representative’s personal knowledge. See Brazos River Auth. v. GE Ionics, Inc., 469
F.3d 416, 433-35 (5th Cir. 2006) (discussing federal rule, which limits the scope of such testimony
to matters within the “corporate knowledge of the organization”); see also Network Multifamily
Sec. Corp. v. Homes for Am. Holdings, Inc., No. 3:10-CV-1981-M-BH, 2012 WL 13093946, at *4
(N.D. Tex. Aug. 29, 2012) (same). Here, however, the record shows that Union Pacific withdrew
23
In their offer of proof, Arreola’s attorneys argued, among other things, that Spaar testified at his deposition that the
train crew had used the “wrong horn pattern” in alerting Molinar to the approaching train and Arreola repeats that
argument in her brief on appeal. Our review of the record, however, shows that Spaar never testified that the train
crew used the wrong horn pattern during his deposition. Instead, when asked if Union Pacific had a rule requiring the
crew to have used a staccato pattern to alert Molinar, he responded: “I’m not sure if that’s in the rule or not,” and that
he believed it was a “judgment call . . . for the train crew to do what they can to try to alert someone.” He did, however,
acknowledge that using a short succession “could in some cases” be more likely to get a person’s attention, but that
he did not know if it would have been more effective in Molinar’s case.
39
any designation that it made for Spaar to testify on those topics prior to trial and instead designated
two other corporate representatives to testify on those issues, both of whom provided extensive
testimony at trial in their respective areas of expertise. First, Michael Shindo, who works as a
trainer for Union Pacific, testified at length about safe train handling techniques, and the proper
protocol to follow when a person is discovered on the tracks. In addition, as set forth above, Mark
Pollan testified in detail on topic five. Providing other corporate representatives to adequately
cover these topics at trial fulfilled any duty that Union Pacific had to ensure that a qualified
representative provided testimony on the requested issues. See generally Brazos River Auth., 469
F.3d at 433 (recognizing that when a designated representative is unable or unwilling to testify on
a certain subject, a corporation may comply with its duty by “designat[ing] another witness with
personal or corporate knowledge of the questions asked”).
Finally, as Union Pacific points out, even if the trial court erred in limiting Spaar’s
testimony, nothing in the record suggests that Arreola was harmed by the trial court’s ruling such
that it warrants reversal of the judgment. Union Pacific tendered two other corporate
representatives who testified extensively on those subjects, and any testimony Spaar could have
given would have been cumulative, thereby rendering the exclusion of his testimony harmless. See
Gunn v. McCoy, 554 S.W.3d 645, 668 (Tex. 2018) (recognizing that the improper exclusion of
evidence is “likely harmless if the evidence was cumulative or if the rest of the evidence was so
one-sided that the error likely made no difference in the judgment”). Spaar did not provide any
testimony at his deposition that would have favored Arreola’s case. On the contrary, his deposition
testimony supported Union Pacific’s defense that the crew acted reasonably in handling the
situation when they first observed Molinar on the tracks, and that the outcome would not have
been altered even if the crew had engaged the emergency brakes sooner. Moreover, Spaar testified
40
at his deposition that he placed “all fault” on Molinar in causing the accident by walking on the
railroad tracks wearing headphones. Accordingly, even if Arreola had been able to question Spaar
more extensively about the issues in question, his testimony would not have helped her case.
Arreola’s Issue Two-B is overruled.
VIII. THE APPLICABLE STANDARD OF CARE
In Issue Three, Arreola contends that the trial court erred in rejecting her requested jury
instruction that in determining the percentage of negligence, Molinar should be held to the standard
of a reasonably prudent individual of his same age—that is, a sixteen-year-old. According to
Arreola, Texas law requires that a minor be held to the degree of care that would be exercised by
an ordinarily prudent child of the same age, intelligence, experience, and capacity under the same
or similar circumstances, unless he was engaged in an adult activity that created a danger to third
parties. This, however, is not a correct statement of the law.
A. Applicable Law
In general, Texas law provides that a child is held to the same degree of care that would be
exercised by an “ordinarily prudent child of [the same] age, intelligence, experience and capacity
. . . under the same or similar circumstances.” See, e.g., Nabors Well Servs., Ltd. v. Romero, 456
S.W.3d 553, 564 (Tex. 2015); see also Rudes v. Gottschalk, 324 S.W.2d 201, 206-07 (1959)
(recognizing that “ordinary care” as applied to a minor “may be defined as such care as an
ordinarily prudent child of the age, intelligence, experience and capacity of the [the minor plaintiff]
would have exercised under the same or similar circumstances”). Yet long ago, the Texas Supreme
Court bracketed the rule, treating very young and older children differently. That is, at times a
child might be too young to be capable of negligence, while, on the other hand, a child in the “later
years of minority,” such as a 16-year-old—or perhaps even a child as young as 14—may be
41
presumed to have the capacity and discretion of an adult absent any evidence to the contrary. See
Dallas Ry. & Terminal Co. v. Rogers, 218 S.W.2d 456, 461 (1949) (recognizing that while a very
young child, such as a three-year-old, is presumed to be incapable of contributory negligence, a
child in the later years of minority, for example sixteen years old may be “presumed prima facie
to have the capacity and discretion of an adult,” and be judged by that standard without any
evidence to rebut the presumption), citing Seinsheimer v. Burkhart, 122 S.W.2d 1063, 1065
(Tex. Comm’n App. 1939). Our sister courts that have directly addressed the issue have uniformly
held that 16-year-old children should be judged by an adult standard of care in determining their
negligence unless there is evidence of a mental deficiency or other factors that would render an
adult application improper. See, e.g., Barnes v. Zinda, 464 S.W.2d 501, 504 (Tex.App.--Waco
1971, writ ref’d n.r.e.); Renegar v. Cramer, 354 S.W.2d 663, 676 (Tex.App.--Austin 1962, writ
ref’d n.r.e.); Ambrose & Co. v. Booth, 301 S.W.2d 223, 225 (Tex.App.--Fort Worth 1957, writ
ref’d n.r.e.); see also City of Austin v. Hoffman, 379 S.W.2d 103, 107-08 (Tex.App.--Austin 1964,
writ dism’d by agr.) (holding that a child of 14½ years should be held to an adult standard of care
absent any showing that the child labored under a mental disability).
Arreola argues that we should reconsider this rule, pointing out that the Texas Supreme
Court cases holding that a child in the later years of maturity may be held to an adult standard of
care are over 50 years old, and arguing that the “modern” view—expressed by courts in other
jurisdictions—does not apply an adult standard of care to cases involving minors. We decline to
do so. While the Texas Supreme Court cases addressing this issue may be old, that court has not
deviated from its earlier pronouncement drawing an age distinction for determining the appropriate
standard of care. And regardless of what other jurisdictions may do—an issue over which the
parties disagree—as an intermediate appellate court, we may not ignore Texas Supreme Court
42
precedent until it is overruled either by the high court or the Texas Legislature. Lubbock County v.
Trammel’s Lubbock Bail Bonds, 80 S.W.3d 580, 585 (Tex. 2002) (recognizing that “[i]t is not the
function of a court of appeals to abrogate or modify established precedent” as that function lies
solely with the Texas Supreme Court); Texas Dep’t of Family & Protective Servs. v. Parra, 503
S.W.3d 646, 657-58 (Tex.App.--El Paso 2016, pet. denied).
B. Analysis
At trial, Arreola presented no evidence that Molinar had any mental deficiency or that he
otherwise lacked the capacity to act as an adult. The only evidence at trial on the level of Molinar’s
maturity came from Arreola’s testimony in which she testified that although he could be
“immature” for his age, he had no learning disabilities, and was like a “mini counselor” to her,
providing support and reassurance when she was having a “bad day.” Accordingly, we conclude
that the trial court did not err in refusing to give a jury instruction that would have directed the jury
to determine Molinar’s negligence by a non-adult standard of care.
Arreola’s Issue Three is overruled.
IX. EXCLUSION OF THE PRIOR ACCIDENT
In Issue Four, Arreola contends that the trial court erred in refusing to allow her to introduce
evidence of a prior fatal accident that occurred in 2011, when 14-year-old Justin Alcantar was
walking on the tracks and failed to heed the warning given by a Union Pacific freight train, leading
to his death (the Alcantar accident). Arreola contends that evidence of the Alcantar accident was
“highly probative” to her case, as it supported her theory that the train crew could have foreseen
that they might encounter a teenager on the train who would fail to heed the train’s warning, and
that they therefore should have immediately engaged the emergency brakes when they observed
43
that Molinar was walking on the tracks to avoid another fatality. We find no abuse of discretion in
the trial court’s decision to exclude this evidence.
A. Applicable Law
In a negligence case, evidence of prior accidents may be admissible if they are relevant to
contested issues in the case. See Nissan Motor Co. Ltd. v. Armstrong, 145 S.W.3d 131, 138
(Tex. 2004) (recognizing that proof of prior accidents may be admissible to show that a railroad
crossing was “extra-hazardous” or that a product is “unreasonably dangerous”). But to be
admissible, the prior accidents must have occurred under reasonably similar (though not
necessarily identical) conditions because proof of what happened in a prior accident does not, by
itself, prove what happened in the current one. Id.; see also Missouri Pac. R.R. Co. v. Cooper, 563
S.W.2d 233, 236 (Tex. 1978) (in a negligence case, evidence of prior similar accidents is generally
admissible if the “earlier accidents occurred under reasonably similar but not necessarily identical
circumstances”). “‘Reasonably similar’ generally means the same type of occurrence.” In re Sun
Coast Res., Inc., 562 S.W.3d 138, 148 (Tex.App.--Houston [14th Dist.] 2018, no pet.). The
proponent of the evidence bears the burden of proving that the incidents are reasonably similar.
Columbia Med. Ctr. Subsidiary, L.P. v. Meier, 198 S.W.3d 408, 411-12 (Tex.App.--Dallas 2006,
pet. denied).
A trial court may decline to admit evidence of prior accidents if it concludes that their
admission would create “undue prejudice, confusion, or delay,” because prolonged proof of what
happened in other accidents cannot be used to distract a jury’s attention from what happened in
the case at hand.” Armstrong, 145 S.W.3d at 138; see also N. Am. Van Lines, Inc. v. Emmons, 50
S.W.3d 103, 125 (Tex.App.--Beaumont 2001, pet. denied); see generally TEX.R.EVID. 403 (court
“may exclude relevant evidence if its probative value is substantially outweighed by a danger of
44
one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue
delay, or needlessly presenting cumulative evidence”). As the Texas Supreme Court has cautioned,
a trial court must “carefully consider the bounds of similarity, prejudice, confusion, and sequence,”
before admitting evidence of prior accidents. Waldrip, 380 S.W.3d at 132-33.
And finally, because the prior accidents must be relevant to the issues in the case, the court
must consider the purpose for which they are being offered, as prior accidents may be admissible
for some purposes but not others. Armstrong, 145 S.W.3d at 138. In general, evidence of
substantially similar prior accidents of which a defendant was aware may be admissible to
demonstrate that the defendant could have foreseen the accident under consideration. See, e.g., In
re Sun Coast Res., Inc., 562 S.W.3d at 148 (notice of prior similar incidents may strengthen a claim
that an incident was foreseeable).
With these principles in mind, we measure the trial court’s decision to exclude the evidence
of the Alcantar accident under the abuse of discretion standard, and will only reverse the trial
court’s decision if it probably resulted in an improper judgment. See JLG Trucking, LLC, 466
S.W.3d at 161, 165.
B. Analysis
Arreola contends that the trial court abused its discretion in excluding evidence of the
Alcantar accident, arguing that it occurred under reasonably similar conditions as Molinar’s
accident. She points out that both accidents occurred on the same El Paso-Alpine route, at the same
approximate time of day and year—a sunny afternoon in late summer, and both accidents involved
teenagers walking on the train tracks who failed to heed the train’s warning. 24 According to
24
Although Arreola contends that Alcantar was found with earbuds in his possession, we find nothing in the current
record or in our prior opinion that resolved a mandamus in that case, to substantiate that fact. See In re Union Pac.
R.R. Co., 459 S.W.3d 127 (Tex.App.--El Paso 2015, orig. proceeding).
45
Arreola, evidence of the Alcantar accident was relevant to demonstrate that encountering teenagers
on the tracks along this route was not an “isolated incident,” and that it was foreseeable that a
teenager might not respond to a train’s warning, thereby supporting her theory that the train crew
was negligent by not immediately engaging the emergency brakes when they first spotted Molinar
on the tracks to avoid another fatality.
Although Union Pacific points out some differences between the two accidents, we assume
without deciding that the accidents were substantially similar. Nor do we find it necessary to
disagree with Arreola’s argument that the Alcantar accident was relevant to her theory of the
case—that it was foreseeable to the train crew that they could have encountered a minor walking
on the track who would not hear or otherwise respond to the horn blowing.
Instead, the key issue for our consideration is whether the trial court abused its discretion
in determining that admitting evidence of the Alcantar accident would have been unduly
distracting and confusing to the jury. In ruling that the evidence was inadmissible, the trial court
expressly found that its admission would likely have resulted in a battle over fault in that accident,
as Union Pacific would have no doubt attempted to prove it was not at fault in Alcantar’s death,
leading to a prolonged presentation of the facts in that case. And the court further feared that this
would have effectively resulted in the parties trying both cases at the same time. As the trial court
recognized, to compare the two events the parties would have been required to provide additional
evidence on several issues, including the type of train that was involved in the Alcantar case,
whether it was carrying dangerous chemicals, whether there was a possibility of derailment in that
case, how fast the train was going, whether it could have stopped before hitting Alcantar if the
46
emergency brakes had been applied sooner, the configuration of the tracks, and the type of horn
on the train, as well as how the horn was blown.25
Arreola, however, contends that the evidence of the Alcantar accident was so highly
relevant to her case that the trial court should have admitted the evidence despite the possibility
that it would distract the jury’s attention away from the issues in Molinar’s case. In support of her
argument, she relies on Missouri-Kansas-Texas R.R. Co. v. May, in which the court ruled that
evidence of prior accidents at a particular railroad crossing was highly relevant to the issue of
whether the crossing could be considered “extra-hazardous.” 600 S.W.2d 755, 756 (Tex. 1980)
(per curiam). The May court concluded that the exclusion of such evidence “was reasonably
calculated to cause and probably did cause the rendition of an improper judgment in the case,”
thereby warranting reversal of the case. Id. But May is inapt because Arreola did not seek to admit
the Alcantar accident to show the tracks here were “extra-hazardous.” As Union Pacific points out,
the Alcantar accident happened over 180 miles away and Arreola never argued at trial that the
entire length of the El Paso-Alpine line was somehow unreasonably dangerous. Instead, Arreola
sought admission of the prior accident to establish that Union Pacific should have foreseen that a
teenager might be walking on the tracks and might not heed a train’s warnings. Yet at trial, Union
Pacific did not dispute that its train crews often encountered trespassers walking on the tracks.
Instead, its defense was that it was reasonable for its crews to assume that those individuals will
extricate themselves from the track with a timely warning—despite the fact that there are rare
times this does not occur. We therefore conclude that the trial court did not abuse its discretion in
25
Arreola contends that any danger of confusion or prejudice could have been avoided by giving the jury a “limiting
instruction restricting the jury’s consideration of the Alcantar incident to Union Pacific’s notice of the dangers on this
particular route,” citing John Deere Co. v. May, 773 S.W.2d 369, 374 (Tex.App.--Waco 1989, writ denied) (limiting
instructions restricting the jury’s use of extraneous incidents to the issue of whether the defendant had notice of the
defective design of its tractor reduced the possibility of any prejudice occurring due to the admission of the evidence).
Arreola, however, did not suggest at trial that the court could provide any such instruction, and has therefore waived
this issue on appeal.
47
determining that any probative value the evidence had was outweighed by the possibility that the
admission of the evidence would have been unduly distracting and confusing to the jury.
Arreola’s Issue Four is overruled.
X. CUMULATIVE ERROR
In Issue Six, Arreola contends that the trial court committed “multiple erroneous” rulings,
and that even if the errors did not independently warrant reversal of the trial court’s judgment,
considered together, they constituted cumulative error that was reasonably calculated to cause the
rendition of an improper judgment. Arreola correctly points out that a reviewing court may reverse
a trial court’s judgment under the so-called “cumulative-error” doctrine when the appellant can
demonstrate that, but for the trial court’s multiple errors, the jury would have rendered a verdict
favorable to her. See, e.g., Rhey, 408 S.W.3d at 462 (recognizing that a reviewing court may
reverse a lower-court judgment under the cumulative-error doctrine when the record shows many
instances of error, no one instance being sufficient to call for reversal, yet all the instances taken
together may do so); see also Lakeside Vill. Homeowners Ass’n, Inc. v. Belanger, 545 S.W.3d 15,
46 (Tex.App.--El Paso 2017, pet. denied) (“When several errors exist but are not considered
reversible, all errors considered together could present cumulative error requiring reversal.”).
But as set forth above, we have not found that the trial court committed multiple errors in
its rulings, and we have therefore overruled all of Arreola’s issues. As a result, we find no
cumulative error on this record. See Rhey, 408 S.W.3d at 462 (there can be no cumulative error
where court overruled appellant’s issues on appeal).
Arreola’s Issue Six is overruled.
48
XI. THE TRIAL JUDGE’S ALLEGED BIAS
In Issue Seven, Arreola contends that the trial court judge exhibited a “biased demeanor”
toward her attorneys in the jury’s presence, as reflected in the court’s “numerous rulings and
comments,” which Arreola contends “rewarded Union Pacific’s discovery abuse” and exhibited a
“disdain” for her attorneys. According to Arreola, the judge verbally confronted her attorneys and
displayed displeasure toward them in the jury’s presence, making it clear that she lost her ability
to act in a fair and impartial manner, and thereby depriving her of the right to a fair trial. For the
reasons below, we disagree.
A. Standard of Review and Applicable Law
Critical to our justice system is the fundamental precept that all parties have a right to a
fair and impartial trial before a neutral and detached judge. See generally Ward v. Vill. of
Monroeville, Ohio, 409 U.S. 57, 61-62, (1972) (finding that defendant who stood trial for traffic
offense was deprived of his right to a “neutral and detached judge” where judge was mayor of the
city and had an interest in collecting fines against traffic offenders); see also Markowitz v.
Markowitz, 118 S.W.3d 82, 86 (Tex.App.--Houston [14th Dist.] 2003, pet. denied) (recognizing a
party’s right to a trial in front of a “neutral and detached judge”). The Texas Supreme Court,
however, has recognized that adverse judicial rulings alone only rarely constitute a valid basis for
a claim that a judge was biased or partial in a proceeding. See Francis, 46 S.W.3d at 240, citing
Liteky v. United States, 510 U.S. 540, 555 (1994); see also Chappell v. Allen, 414 S.W.3d 316,
329 n.5 (Tex.App.--El Paso 2013, no pet.) (same). It is only in the “rarest circumstances” that
judicial rulings demonstrate the degree of favoritism or antagonism necessary to show that a fair
and impartial trial was impossible. Markowitz, 118 S.W.3d at 87, citing Liteky, 510 U.S. at 555.
Such rulings are instead generally best brought as grounds for appeal, not as evidence of judicial
49
bias. Id. at 87-88, citing Liteky, 510 U.S. at 555; Grider v. Boston Co., 773 S.W.2d 338, 346
(Tex.App.--Dallas 1989, writ denied) (“proper remedy was to assign error on the basis of the
adverse rulings”); see also Ellason v. Ellason, 162 S.W.3d 883, 887 (Tex.App.--Dallas 2005, no
pet.) (recognizing that rulings about which a party disagrees are “best brought as grounds for
appeal rather than evidence of judicial bias”).
While we recognize that a trial judge should refrain from verbally confronting or displaying
displeasure toward counsel, particularly in the presence of the jury, the Texas Supreme Court has
held that judges have broad discretion in conducting a trial and in expressing themselves in
exercising this discretion. Francis, 46 S.W.3d at 240; see also Holmes v. GMAC, Inc., 458 S.W.3d
85, 93 (Tex.App.--El Paso 2014, no pet.). Thus, remarks made by the judge “during the course of
a trial that are critical or disapproving of, or even hostile to, counsel, the parties, or their cases,
ordinarily do not support a bias or partiality challenge.” Francis, 46 S.W.3d at 240, quoting Liteky,
510 U.S. at 555 (internal quotation marks omitted). As well, the court has recognized that
“expressions of impatience, dissatisfaction, annoyance, and even anger” do not establish bias or
partiality,” and that even “a stern and short-tempered judge’s ordinary effort at courtroom
administration . . . remain immune” from a claim of bias. Id., citing Liteky, 510 U.S. at 555-56.
Instead, to warrant a finding of improper juridical bias, a judge’s comments must be so extreme
that they demonstrate “a deep-seated favoritism or antagonism that would make fair judgment
impossible.” Holmes, 458 S.W.3d at 93, quoting Francis, 46 S.W.3d at 240; see also Chappell,
414 S.W.3d at 329 n.5 (same). And when a party claims on appeal that a judge’s remarks reflect a
bias that warrants reversing a judgment, the appellate court must consider the trial court’s allegedly
improper comments in the context of the entire record, and determine whether the record reflects
such a bias. Francis, 46 S.W.3d at 240-41 (court found no evidence of judicial bias, as a matter of
50
law, after “carefully examining the judge’s allegedly improper comments in the context of the
entire record”).
In addition, the Texas Supreme Court has held that a party must preserve a complaint about
allegedly improper judicial comments by making an objection when the comments occur, and by
requesting a curative instruction—unless the conduct or comment is so prejudicial that it cannot
be rendered harmless by proper instruction. Id. at 241 (finding that the court of appeals erred in
sustaining party’s allegations of judicial bias where party failed to preserve error and did not
explain how the comments were incurable); see also Capellen v. Capellen, 888 S.W.2d 539, 546-
47 (Tex.App.--El Paso 1994, writ denied) (recognizing that absent an objection, ruling, and request
for an appropriate instruction, only a comment of such a prejudicial and harmful character as to be
considered incurable will be preserved). Thus, the party that is claiming bias, without making a
timely objection, has the burden to “explain how any comments made by the trial judge were
incurable or would excuse” the claimant’s “failure to preserve error.” In re Commitment of
Stuteville, 463 S.W.3d 543, 557 (Tex.App.--Houston [1st Dist.] 2015, pet. denied) (citation
omitted); see also Interest of B.A., No. 02-21-00278-CV, 2022 WL 247558, at *6 (Tex.App.--
Fort Worth Jan. 27, 2022, pet. denied) (mem. op.) (same).
B. Analysis
Arreola complains on appeal about both the trial judge’s rulings, and various comments
that the judge made when making her rulings. Yet as explained above, we have already concluded
that the judge did not err in the rulings challenged on appeal and we therefore can summarily reject
the argument that those rulings reflected a bias. In addition, Arreola never objected in the trial
court to any of the judge’s allegedly improper comments, and never sought a curative instruction
for the judge’s allegedly improper remarks. Thus, to demonstrate that the trial judge exhibited a
51
reversible bias against her, Arreola bore the burden of establishing that the remarks were so
prejudicial and harmful to her case that a curative instruction would not have cured any harm
caused by them. We examine each of the trial court’s complained of comments and rulings in turn.
First, Arreola points to an exchange that occurred after one of her attorneys became upset
when—as discussed above—he learned during trial that Union Pacific had not produced the
original horn for testing by Dr. Seidemann, and he referred to the Union Pacific employee
responsible for the alleged “deception”—or possibly its attorney—as being “a sneak.” In response,
the trial judge warned counsel—outside the presence of the jury—that she would not tolerate
name-calling or engaging in disparagement of others in her court. Shortly thereafter, when
Arreola’s attorney was questioning Dr. Seidemann, he suggested that Union Pacific’s attorney had
“not let” Dr. Seidemann review certain materials on cross-examination. Union Pacific objected
and in response, the judge then stated in the jury’s presence: “Didn’t we have a little talk about not
disparaging or making personal attacks on the other side?” Arreola did not object to the judge’s
comment at that time or request a curative instruction, and instead replied: “Yes, I can move on.”
Arreola, however, now argues that this comment reflected such a high degree of bias against her
attorney that it constituted incurable error such that we should overlook her failure to object. We
disagree. The judge made the comment in the context of responding to Union Pacific’s objection,
and in an ongoing attempt to maintain control and decorum over the proceedings. The comment
was thus within the permissible scope of the judge’s discretion and did not reflect the type of
“deep-seated favoritism or antagonism that would make fair judgment impossible.” Francis, 46
S.W.3d at 240.
Second, Arreola points to a passage in the record in which her attorney was questioning
William Spaar about statements on Union Pacific’s website on horn protocol, which had had not
52
yet been admitted into evidence. Following Union Pacific’s objection, the trial court admonished
Arreola’s counsel not to read from the website until it was admitted into evidence, and when
counsel continued to question Spaar about the statements on the website, the following colloquy
ensured:
THE COURT: You’re reading from the document. Just for the record, you’re reading from
the document that I’ve not allowed to be admitted, correct? That’s what you’re doing?
MS. SCHERR: I’m asking about the language.
THE COURT: You’re reading from the document.
MS. SCHERR: I can rephrase.
THE COURT: But you’re reading from the document that I didn’t allow to be admitted.
MS. SCHERR: I’m using – yes, the language from the website.
THE COURT: Okay. All right.
Arreola now contends that the trial court improperly “admonished” her attorney during this
exchange and thereby “tainted” the jury’s view of both her and her attorney. However, we find
that the judge was simply expressing her view on the propriety of counsel’s line of questioning, a
matter clearly within her discretion, and we see nothing improper or prejudicial in this exchange.
Third, Arreola complains that the trial judge improperly “admonished” her attorney when
he tried to question William Spaar about matters that the judge had already determined were not
within the scope of his area of expertise. The record, however, reflects that the judge simply
informed counsel that she believed his question was outside the scope of Spaar’s designation and
advised counsel to ask Spaar “another question.” Subsequently, when the trial court later sustained
Union Pacific’s objection to a second question that Arreola’s attorney asked Spaar, the trial court
simply stated, “Sustained. Ask your next question.” We see nothing improper in the judge’s ruling
or in the way the judge expressed her ruling.
53
Fourth, Arreola complains that during the presentation of Dr. Seidemann’s testimony, the
trial judge made “multiple dismissive comments about [her] counsel before the jury.” Although
she does not specify which comments she finds offensive, she does cite several pages in the
reporter’s record that we have reviewed, which fail to support her claim of bias. At most, these
pages reflect that the trial court simply sustained a series of objections made by Union Pacific’s
counsel while Arreola’s attorney was questioning Dr. Seidemann. In particular, the judge sustained
two objections made by Union Pacific’s attorney that Arreola’s counsel was leading the witness.
The court also sustained two objections that Union Pacific made when Arreola’s counsel sought
to question Dr. Seidemann about the alleged spoliation of the horn and the train’s repair records.
While Arreola disagrees with the trial court’s limitation of Dr. Seidemann’s testimony, her
decision to limit his testimony was at best an appellate issue that we have already resolved. We
fail to see how it reflects any judicial bias on the court’s part.
Arreola cites no cases in which courts have found that comments similar to the ones she
challenges here rose to the level of uncurable judicial bias. On the contrary, in all but one of the
cases that she cites, the courts found the opposite—that the party claiming bias did not meet his
burden of establishing that the judge’s comments rose to that level. See Stuteville, 463 S.W.3d at
558 (holding that petitioner did not explain how the trial court’s comments were so “blatantly and
obviously prejudicial” that any confusion or damage caused by the comments could not have been
overcome by a curative instruction); Capellen, 888 S.W.2d at 547 (finding no incurable judicial
bias where judge made comments that were at best “mildly prejudicial” and which did not warrant
reversal). In the only case she cites in which a court found that a judge’s comments during trial
suggested an incurable bias, the trial judge in that case had commented on the weight of the
evidence in front of the jury, and “indicated a disbelief in appellant’s position, and implied
54
approval and support of the State’s position,” which deprived the criminal defendant of his right
to a fair trial. Simon v. State, 203 S.W.3d 581, 591-92 (Tex.App.--Houston [14th Dist.] 2006, no
pet.). Simon, however, does not apply, as Arreola does not contend that the trial judge in her case
ever commented on the weight of the evidence, or that the judge made any express comments of
approval or disapproval of the parties’ respective theories in the case.26
In short, we find that Arreola has failed to point to any rulings or comments that the trial
judge made to sustain her claim of judicial bias. We therefore conclude that she was not deprived
of her right to a fair trial in front of a neutral and detached judge.
Arreola’s Issue Seven is overruled.
XII. CONCLUSION
We affirm the trial court’s judgment.
JEFF ALLEY, Justice
October 19, 2022
Before Rodriguez, C.J., Palafox, and Alley, JJ.
26
Arreola also cites CNA Ins. Co. v. Scheffey, 828 S.W.2d 785, 792 (Tex.App.--Texarkana 1992, writ denied) in
support of her position, but we find this case to be inapt as well, as it involved a finding that the judge’s impartiality
was incurable because of an extrajudicial factor—his close relationship with one of the attorneys in the case, which
called his impartiality into question. Arreola has alleged no such extrajudicial bias in this case.
55