NUMBER 13-09-00536-CV
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
ERNEST BELMAREZ, EDDIE GUAJARDO,
WILLIAM PHILLIPS, CHRIS SHANNON,
RAMICO RAMOS, AND NORMA MAYORGA, Appellants,
v.
FORMOSA PLASTICS CORPORATION, TEXAS,
FORMOSA PLASTICS CORPORATION, U.S.A., ET
AL., Appellees.
On appeal from the 135th District Court
of Calhoun County, Texas.
MEMORANDUM OPINION
Before Chief Justice Valdez and Justices Rodriguez and Benavides
Memorandum Opinion by Justice Benavides
This appeal arises from a take-nothing jury verdict on a personal injury lawsuit
resulting from a fire that occurred at the Formosa Plastics Corporation USA (―Formosa‖)
plant in Point Comfort, Texas. By five issues, appellants Ernest Belmarez, Eddie
Guajardo, William Phillips, Chris Shannon, Norma Mayorga, and Ramico Ramos
(collectively ―Plaintiffs‖),1 argue the trial court erred when it: (1) excluded the Taproot
Incident Report from evidence; (2) excluded OSHA Citations and Notices of Penalty
issued to Formosa from evidence; (3) admitted evidence regarding Plaintiffs’ failure to
file workers’ compensation claims; (4) excluded the Social Security disability findings for
Belmarez and Guajardo; and (5) allowed jury argument regarding Plaintiffs’ counsel’s
character, professional ethics, and integrity, which caused incurable error. We affirm.
I. BACKGROUND
On October 6, 2005, Defendant Fernando Rivera, a forklift operator, accidentally
hit a valve while driving a forklift and towing a trailer in the Olefins II unit at the Formosa
plant. The accident released liquid propylene into the air, causing a fire and several
explosions. Formosa ordered immediate evacuation of the plant.
Plaintiffs, persons who worked at the plant but were not employed by Formosa,
claimed they were injured while fleeing the incident. Their injuries consisted primarily of
back and shoulder problems. They also claimed to have developed post-traumatic
stress syndrome in response to this event. Plaintiffs sued five sets of defendants: (1)
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According to Plaintiffs, the Formosa explosion generated approximately sixty-five claims for
personal injury. The six Plaintiffs in the underlying case were chosen as a ―test case‖ to help manage the
overall litigation related to the Formosa plant incident.
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Formosa, the plant owner and operator; (2) Rivera, the forklift driver; (3) Rivera’s
employer, HP Services, L.P., and management by H&P LLC (―HP Services‖), a
contractor working at the Formosa plant; (4) U.S. Contractors, Ltd., U.S. Contractors
Management, LLC, and U.S. Contractors Merger, LLC (―U.S. Contractors‖), another
contractor working at the Formosa plant; and (5) Kellogg Brown & Root, LLC, and M.W.
Kellogg Constructors, Inc. (―KBR‖), the plant designer. After a trial that lasted over a
month in March 2009, the jury returned a taking-nothing verdict as to all six Plaintiffs.
Plaintiffs appealed.
II. EVIDENTIARY ISSUES
A. Standard of Review
The admission and exclusion of evidence is within the trial court's sound
discretion. See Bay Area Healthcare Group Ltd. v. McShane, 239 S.W.3d 231, 234
(Tex. 2007); City of Brownsville v. Alvarado, 897 S.W.2d 750, 753 (Tex. 1994). ―The
test for abuse of discretion is whether the trial court acted without reference to any
guiding rules or principles.‖ E.I. du Pont de Nemours & Co. v. Robinson, 923 S.W.2d
549, 556 (Tex. 1995). The trial court’s ruling should only be reversed if it was arbitrary
or unreasonable. See id.; Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238,
241–42 (Tex. 1985).
To constitute reversible error, this Court must find that the district court’s errors
probably caused the rendition of an improper judgment or prevented Plaintiffs from
properly presenting their case. See Bay Area Healthcare, 239 S.W.3d at 234; see also
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TEX. R. APP. P. 44.1. The complaining party must show that, when the record is
reviewed as a whole, the judgment turns on the particular piece of evidence excluded or
admitted. See City of Brownsville, 897 S.W.2d at 753-54. The reviewing court then
determines whether the case turns on the evidence excluded by reviewing the entire
record. Id. at 754. Error in exclusion of evidence does not require reversal if excluded
evidence is cumulative of other evidence. See Williams Distrib. Co. v. Franklin, 898
S.W.2d 816, 817 (Tex. 1995).
B. The Exclusion of the Taproot Incident Report
1. The Taproot Incident Report
The record shows that, following the plant fire and explosions, defendants
Formosa, U.S. Contractors, and HP Services (but not KBR) appointed various
employees to a group to conduct a post-accident investigation. According to the
testimony of Darrell Loewe, a lead supervisor at Formosa and the team leader of the
group, the purpose of this ten-member team was to investigate the causes of the
incident. Each team member had a different expertise to help determine the underlying
circumstances surrounding the fire and explosions.
Loewe testified that his team used Taproot software to generate a report
documenting their investigation. Taproot software is a computer program that is
commonly used in the petrochemical industry. Loewe stated that he, as well as other
members of his team, were trained and certified in using the software. He explained
that although the Taproot report indicates causal factors of the incident, these factors are
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determined by the team as a result of the information they gather. The Taproot
software also issues a ―Corrective Actions Report‖ with recommendations on how to
improve plant functions. He explained that ―we look into the incident in a way that we
could possibly eliminate it from happening again or at least mitigate a situation should it
ever develop again.‖
Plaintiffs sought to admit the final Taproot Incident Report, claiming it was
―undoubtedly [their] best item of evidence‖ because it would demonstrate that Formosa,
U.S. Contractors, and HP Services agreed with many of Plaintiffs’ theories of causation.
The trial court, however, excluded the report from evidence. In a hearing outside the
presence of the jury, the trial court explained its reasoning for the exclusion:
What I’m concerned about is the existence of a post-accident investigation
by a Defendant that includes recommendations, whether they are
implemented or not, which I think would be tantamount to subsequent
remedial measures. That doesn’t mean that those individuals that were
involved in this team, who have knowledge that is relevant to this case
either through, you know, direct experience with the actual fire or
explosion, or from working out at the plant, similar conditions. That
doesn’t mean that you can’t call them to testify and ask them about
procedures that were ongoing, for example, or opinions about causation
without a reference to the investigation. That’s what I’m concerned about
is the jury finding that or hearing that there was an investigation after the
accident and that the investigation had these findings and conclusions and
recommendations.
Plaintiffs claim the exclusion of the Taproot report was error for several reasons:
(1) the report was not a subsequent remedial measure; (2) assuming it was a
subsequent remedial measure, it should have been admitted to show that certain safety
measures were feasible; (3) it could have impeached the testimony of Formosa witness
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Leonard Tung; and (4) it did not unfairly prejudice the Defendants. We analyze these
issues in turn.
2. Analysis
a. Subsequent Remedial Measures
Texas Rule of Evidence 407 addresses subsequent remedial measures:
When, after an injury or harm allegedly caused by an event, measures are
taken that, if taken previously, would have made the injury or harm less
likely to occur, evidence of the subsequent remedial measures is not
admissible to prove negligence, culpable conduct, a defect in the product,
a defect in a product’s design, or a need for a warning or instruction. This
rule does not require the exclusion of evidence of subsequent remedial
measures when offered for another purpose, such as proving ownership,
control, or feasibility of precautionary measures, if controverted, or
impeachment.
TEX. R. EVID. 407(a). ―Rule 407(a) embodies the well-established policy that parties
should not be discouraged from making safety improvements after an accident because
those improvements may be used against them as evidence of their own negligence.‖
See Brookshire Bros. v. Lewis, 911 S.W.2d 791, 796 (Tex. App.—Tyler 1995, writ
denied).
Plaintiffs argue that the Taproot report is admissible because it is merely an
investigative report and does not indicate any remedial changes Formosa might make.
We disagree with Plaintiffs’ assessment. The testimony of Loewe indicated that the
Taproot Incident Report’s purpose was to remedy conditions so the accident would not
occur again. According to Loewe, the program did not determine fault, assign blame, or
assess percentages of responsibility. Further, the report issued eight specific
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Corrective Actions which can be considered subsequent remedial measures. Later in
the report, there are two tables which listed each proposed Corrective Action and the
department or persons responsible for implementing it and spaces for the
implementation due date and completion date.
We hold that the trial court did not act without guiding rules or principles when it
determined that the Taproot Incident Report was inadmissible as a subsequent remedial
measure. See E.I. Du Pont, 923 S.W.2d at 556; see also TEX. R. EVID. 407.
b. Proof of Feasibility
In the alternative, Plaintiffs argued that the Taproot Incident Report should have
been admitted because it was offered for another purpose—to show the feasibility of
certain precautionary measures. See TEX. R. EVID. 407. Plaintiffs specifically mention
that ―Taproot would have directly undercut Defendants’ claims that protecting the
process piping was not feasible. . . .‖ They aver that the Taproot report was necessary
to counter the overwhelming testimony from Formosa employees who testified that the
implementation of such piping would be dangerous, complicated, or impractical.
However, our review of the Taproot Incident Report does not reveal that this
piping was mentioned, or that emergency isolation valves (EIV’s), remote control valves,
or any other changes to the process piping or valves were mentioned. Therefore, the
report cannot be used to show feasibility. Accordingly, we find that the trial court was
within its discretion to exclude the report for this reason. See Bay Area Healthcare, 239
S.W.3d at 234. It did not act unreasonably or arbitrarily. See Downer, 701 S.W.2d at
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241–42.
c. Impeachment Evidence Against Formosa Witness Leonard Tung
Leonard Tung, a Formosa Section Manager in the Olefins II unit and a member of
the Taproot investigation team, testified at trial that he had seen a forklift driver driving
―carelessly and erratically‖ before the date in question, but he denied knowing that this
forklift driver was Rivera. Plaintiffs argued that the Taproot report should have been
admissible for the limited purpose of impeaching Tung, as he apparently testified earlier
that he knew the careless driver was Rivera.
We find this argument unpersuasive for two reasons. First, Plaintiffs did not
attempt to offer the relevant page or pages of the Taproot report that might have
impeached Tung; instead, they insisted on offering the entire report. See TEX. R. EVID.
105(b) (―When evidence . . . is excluded, such exclusion shall not be a ground for
complaint on appeal unless the proponent expressly offers the evidence for its limited,
admissible purpose. . . .‖). The trial court was thus within its discretion to deny this
overbroad request. See Bay Area Healthcare, 239 S.W.3d at 234. Second, error in
excluding evidence is harmless where there is cumulative evidence to the same effect.
See Whitener v. Traders and Gen. Ins. Co., 155 Tex. 461, 289 S.W.2d 233, 236 (1956);
Bullard v. Universal Underwriters, Ins. Co., 609 S.W.2d 621, 626 (Tex. Civ.
App.—Amarillo 1980, no writ). Here, there was indirect testimony from Loewe which
brought Tung’s credibility as a witness into question:
Q. [Counsel] Mr. Loewe, did anybody from Formosa ever tell you
that they saw Mr. Rivera driving a forklift erratically
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prior to this October 6th, 2005 [incident]?
....
A. [Loewe] Yes.
Q. [Counsel] And that person that told you that he saw Mr. Rivera
driving erratically prior to October 6 th, 2005 was Mr.
Tung, Mr. Leonard Tung?
A. [Loewe] That’s correct.
In light of the foregoing, we conclude that the trial court did not act arbitrarily or
unreasonably when it denied the admission of the Taproot report to impeach Tung.
See Downer, 701 S.W.2d at 241–42.
d. No Unfair Prejudice
Plaintiffs also argued that the Taproot Incident Report was admissible because its
probative value outweighed the danger of unfair prejudice, confusion of the issues,
misleading the jury, undue delay, or needless presentation of cumulative evidence.
See TEX. R. EVID. 403. However, the record shows that KBR did not have any of its
employees on the Taproot investigative team. Admission of the report could have
misled the jury or caused confusion about KBR’s participation or liability in this regard.
Id. Further, the issue of cumulative evidence is relevant in light of the fact that the trial
court mentioned that the Taproot team members could be called as witnesses. The trial
court stated that the Taproot team participants could testify regarding their ―direct
experience with the actual fire or explosion, or from working out at the plant,‖
―procedures that were ongoing,‖ and their ―opinions about causation.‖ Four members of
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the ten-member team did testify at trial (Loewe, Tung, Eugene Rease, and Vince
Means), and two other team members (Matt Heibel and Bob Kotrla) had their depositions
read at trial. Because of these considerations, we hold that the trial court reasonably
excluded the Taproot Incident Report on this basis. See Bay Area Healthcare, 239
S.W.3d at 234
We overrule Plaintiffs’ first issue.
C. The Exclusion of the OSHA Citations and Notices of Penalty
By their second issue, Plaintiffs argue the trial court erred when it failed to admit
the OSHA Citations and Notices of Penalty against Formosa. Plaintiffs contend that the
OSHA citations should have been admitted because: they are generally admissible
under Texas Rule of Evidence 803(8); Defendants opened the door on their
cross-examination of Roger Craddock; their probative value outweighed the danger of
unfair prejudice; and this Court should hold to our precedent in Valenzuela v. Heldenfels.
See No. 13-04-241-CV, 2006 Tex. App. LEXIS 7122, at *7 (Tex. App.—Corpus Christi
Aug. 10, 2006, no pet.) (mem. op.).
Assuming without deciding that the trial court did not abuse its discretion, after a
careful review of the OSHA citations and notices of penalty, we find that the information
contained within them was cumulative of other evidence presented at trial. See
Williams Distrib. Co., 898 S.W.2d at 817. Accordingly, any possible error in the
exclusion of this evidence would have been harmless. See Whitener, 289 S.W.2d at
236. We overrule this issue.
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D. Evidence Regarding Failure to File Workers’ Compensation Claims
Plaintiffs, in their third issue, argue that the trial court erred when it admitted
evidence regarding their failures to file worker’s compensation claims. Plaintiffs initially
filed a motion in limine to prevent the parties from discussing this matter. The trial court
granted the motion, but clarified its ruling as follows:
I think at this time the way I want to handle this is to grant this motion as to
the language [―]worker’s comp claim[‖] or [―]worker’s comp insurance.[‖] I
think the defense can say, did you make a claim against your employer for
these injuries and leave it at that at this time. If the door is opened
because of, you know, financial inability to do this or that, then we can
revisit this and they can get into it.
The record shows, however, that most of the Plaintiffs cited financial difficulties as
the reason for not immediately seeking health care during their testimonies at trial. For
example, Shannon admitted, ―I’m poor. I can’t afford a doctor.‖ Mayorga testified, ―I
didn’t have the money to go see the doctor.‖ We thus hold that it was within the trial
court’s discretion to determine that the failure to file worker’s compensation claims
became relevant when Plaintiffs opened the door regarding their inability to seek health
care immediately. We overrule Plaintiff’s third issue.
E. The Exclusion of Social Security Disability Findings
By their fourth issue, Plaintiffs contend the trial court erred when it excluded the
social security disability findings for Plaintiffs Guajardo and Belmarez.
1. Guajardo Disability Finding
Plaintiffs argued that Guajardo’s Social Security disability finding should have
been admitted to counter Defendants’ assertions that Guajardo’s disability status was
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based on his diabetes and hypertension, not the injuries he sustained during the
Formosa plant incident.
A review of this document, however, shows that it is an uncertified copy of
Guajardo’s disability findings from the Social Security Administration. As such, it is
hearsay. See TEX. R. EVID. 801(d) (―hearsay is a statement . . . offered in evidence to
prove the truth of the matter asserted.‖). The record does not show, and we do not find,
any references to where Plaintiffs may have laid a proper predicate to show that the
proffered document could fit under a hearsay exception, such as a business record.
See id. at R. 803(8). In response to Plaintiffs’ contention that the document was not
hearsay but rather a prior consistent statement, we find nothing in the document
indicating that Guajardo was cross-examined at his disability hearing as required by
Texas Rule of Evidence 801(e)(1)(B) See id. at R. 801(e)(1) (holding that a statement
can be considered a prior consistent statement if ―the declarant testifies at the trial or
hearing and is subject to cross-examination concerning the statement . . . .‖). It is also
not clear whether the disability finding is Guajardo’s ―statement,‖ as it is a document
issued by a federal agency and not Guajardo himself. Finally, because the document
was not certified, its authenticity was at issue. See id. at R. 902(4).
For all of these reasons, the trial court was within its discretion to exclude the
foregoing document. See Bay Area Healthcare, 239 S.W.3d at 234.
2. Belmarez Disability Finding
Plaintiffs further argue that the trial erred in excluding the Belmarez disability
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finding, but this exhibit also proves problematic. The proffered exhibit consists of two
letters—one dated March 20, 2009, and the other dated April 21, 2009. Neither letter is
certified, which again calls into question the issue of authenticity. See TEX. R. EVID.
902(4). Furthermore, the second letter appears to be missing pages—pages two, four,
seven, and nine are absent from this nine page letter.
We hold that the trial court did not act arbitrarily or unreasonably in excluding both
the Guajardo and Belmarez disability findings. See E.I. du Pont, 923 S.W.2d at 556;
Downer, 701 S.W.2d at 241–42. We overrule Plaintiffs’ fourth issue.
III. JURY ARGUMENT ISSUE
A. Standard of Review and Applicable Law
By their fifth and final issue, Plaintiffs complained that the trial court erred when it
allowed jury argument regarding Plaintiffs’ counsel’s character, professional ethics, and
integrity, which caused incurable error.
During closing argument, attorneys may argue the facts and reasonable
inferences, may use hyperbole and other figures of speech, and may attack the
credibility of an opposing party’s witnesses, evidence, and positions. Standard Fire Ins.
Co. v. Reese, 584 S.W.2d 835, 838 (Tex. 1979). In the case of improper jury argument,
the complainant has the burden of proof to establish that an error: (1) occurred; (2) that
was not invited or provoked; (3) that was preserved by an objection, motion to instruct, or
motion for mistrial; and (4) was not curable by an instruction, prompt withdrawal of the
statement, or an admonishment from the judge. Id. at 839. The complainant must
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also prove that the argument by its nature, degree, and extent constituted reversibly
harmful error. Id. All the evidence must be examined to determine the argument’s
probable effect on a material finding. Id. From all these factors, the complainant must
show that the probability that the improper argument caused harm is greater than the
probability that the verdict was grounded on the proper proceedings and evidence. Id.
Incurable harm from improper argument is rare. Id.; Living Ctrs. of Tex., Inc. v.
Penalver, 256 S.W.3d 678, 681 (Tex. 2008). Argument is incurable only when it is so
far outside the record that the court determines that the jury more than likely decided the
case on prejudice rather than evidence. See Living Ctrs., 256 S.W.3d at 681. For
example, appeals to racial prejudice adversely affect the fairness and equality of justice
rendered by courts because they improperly induce consideration of a party's race to be
used as a factor in the jury's decision. See id.; TXI Transp. Co. v. Hughes, 306 S.W.3d
230, 243–45 (Tex. 2010). Further, accusing the opposing party of manipulating a
witness, without evidence of witness tampering, can be incurable, harmful argument.
See Howsley & Jacobs v. Kendall, 376 S.W.2d 562, 565–66 (Tex. 1964). However,
critical comments about opposing counsel are not necessarily improper or incurable.
See Casas v. Paradez, 267 S.W.3d 170, 184 (Tex. App.—San Antonio 2008, pet.
denied).
B. Analysis
Plaintiffs complain of several comments made by Defendants’ attorneys during
closing argument. For example, Plaintiffs’ counsel considered the following statement
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about their expert, Edward Ziegler, harmful: ―Ziegler is a jukebox expert . . . . But guess
what? He didn’t get paid all that money. What he did was he kept a stake in the
outcome of the litigation.‖ During trial, the jury heard evidence that a note on one of
Ziegler’s bills stated that he agreed to defer payment until the case settled or went to
trial, although Ziegler later denied this arrangement during his testimony. The jury also
learned that, at the time of trial, Ziegler had only been paid $35,000 out of the $221,000
billed for the case.
Plaintiffs further complained about Defendants’ repeated statements that
Plaintiffs’ counsel had sent their clients to Robert Moers, M.D. for medical examinations.
However, all of the Plaintiffs testified that they sought treatment from Dr. Moers because
their attorneys had referred them to him, and they also admitted that their attorneys paid
for their medical bills. We also note the following statement from Plaintiffs’ counsel’s
opening argument:
The evidence will show that over the past three years my firm has helped
our clients as much as we can. We’ve helped them manage their injuries.
We’ve helped them manage with their pain. We’ve helped them with their
suffering and all the things that go along with it.
Now, the evidence will show that we asked doctors, or a doctor to evaluate
these clients before we filed a lawsuit. Now the Defense, we suspect, are
going to try and point the finger. We wanted to make sure before these
clients were brought before you and before these clients filed a lawsuit that
these clients had legitimate injuries and the evidence will show that they
did.
Upon review of the record, we conclude that defense counsel’s arguments were
supported by the facts and inferences from the trial record, and did not cause incurable
15
harm. See Standard Fire Ins. Co., 584 S.W.2d at 838. Counsel is allowed great
latitude to discuss the facts and issues of a case, and that is what occurred here. See
Ramirez v. Acker, 138 S.W.2d 1054, 1055 (Tex. 1940). We overrule issue five.
IV. CONCLUSION
Having overruled all of Plaintiffs’ issues on appeal, we affirm the judgment of the
trial court.
GINA M. BENAVIDES
Justice
Delivered and filed the
30th day of September, 2011.
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