Nieves E. Roman v. Cuprum S.A. De C v.

NUMBER 13-10-00165-CV
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI – EDINBURG
NIEVES E. ROMAN, Appellant,
v.
CUPRUM S.A. DE C.V., Appellee.
On appeal from the 284th District Court
of Montgomery County, Texas.
MEMORANDUM OPINION
Before Justices Garza, Benavides and Perkes
Memorandum Opinion by Justice Garza
Appellant, Nieves E. Roman, sued appellee Cuprum S.A. de C.V. (“Cuprum”),
alleging products liability and violations of the Texas Deceptive Trade Practices-
Consumer Protection Act (“DTPA”). See TEX. BUS. & COM. CODE ANN. §§ 17.41–.63
(West 2011). After a jury trial, a take-nothing judgment was rendered in Cuprum’s
favor. Roman now appeals the judgment, contending by three issues that the trial court
erred in admitting the testimony of three expert witnesses and related documentary
evidence. We affirm.
I. BACKGROUND
On November 27, 2002, Roman was cleaning a house owned by Bradley Baird.
In order to clean the house’s air vents, Roman used a step ladder that she found in
Baird’s garage. As Roman descended the ladder, she fell and sustained an ankle injury
which later required surgery. In 2004, Roman filed suit against Cuprum, which allegedly
designed, manufactured, marketed and sold the ladder.1 Roman alleged that the ladder
was unreasonably dangerous and defective and that Cuprum breached certain implied
warranties in violation of the DTPA.
The case proceeded to trial in 2009. A primary issue at trial was the strength of
the aluminum used by Cuprum in manufacturing the ladder. Two expert witnesses
testified on Roman’s behalf that the aluminum used in the ladder was too soft and did
not meet specifications for yield and tensile strengths. Roman argued that, because of
the inferior materials, the ladder weakened and buckled when she attempted to
descend it. In response, Cuprum contended that the ladder was not defective and that
Roman’s injuries were the result of her own negligence in misusing the ladder. Cuprum
also alleged that any damage to the ladder was caused by the accident and was not a
defect.
After trial, the jury found no manufacturing defect, no design defect, no marketing
1
Roman also sued Baird, Wal-Mart Stores, Inc. (where the ladder was allegedly purchased),
Louisville Ladder (another ladder manufacturer), and Grupo IMSA, S.A. de. C.V. (Cuprum’s parent
corporation), among other entities. All defendants other than Cuprum were eventually dismissed from the
case before trial and are not parties to this appeal.
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defect, no deceptive trade practices, and no negligence on Cuprum’s part. The trial
court rendered judgment on the verdict on November 19, 2009, and later denied a
motion for new trial presenting the same arguments that Roman makes on appeal. This
appeal followed.2
II. DISCUSSION
Roman argues by her three issues that the trial court erred in admitting the
testimony and related documentary evidence of three expert defense witnesses: Erick
H. Knox, Ph.D., P.E.; Thomas J. Schmitt, P.E.; and Michael E. Stevenson, Ph.D., P.E.
Specifically, Roman contends that Cuprum’s disclosures during the discovery process
did not provide her with sufficient notice of the substance of experts’ mental impressions
and opinions. In response, Cuprum contends: (1) Roman waived any complaint about
the adequacy of the disclosures by failing to object prior to trial; (2) the disclosures were
adequate and complied with Texas Rule of Civil Procedure 194; (3) if the disclosures
were incomplete, Roman was required to object prior to trial, which she did not do; (4)
Roman has not shown that the alleged deficiencies in the disclosures caused her unfair
surprise or prejudice; and (5) the admission of the expert evidence, even if error, was
harmless because it did not lead to an improper judgment.
A. Applicable Law and Standard of Review
Texas Rule of Civil Procedure 194.2 provides that a party may request disclosure
of any or all of the following for each testifying expert:
(1) the expert’s name, address, and telephone number;
(2) the subject matter on which the expert will testify;
2
This case was transferred from the Ninth Court of Appeals pursuant to a docket equalization
order issued by the Texas Supreme Court. See TEX. GOV’T CODE ANN. § 73.001 (West 2005).
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(3) the general substance of the expert’s mental impressions and
opinions and a brief summary of the basis for them, or if the expert
is not retained by, employed by, or otherwise subject to the control
of the responding party, documents reflecting such information;
(4) if the expert is retained by, employed by, or otherwise subject to the
control of the responding party:
(A) all documents, tangible things, reports, models, or
data compilations that have been provided to,
reviewed by, or prepared by or for the expert in
anticipation of the expert’s testimony; and
(B) the expert’s current resume and bibliography[.]
TEX. R. CIV. P. 194.2(f). The responding party must make a complete response based
on all information reasonably available to that party or its attorney at the time the
response is made. TEX. R. CIV. P. 193.1.
The purpose of Rule 194.2(f) is “to give the opposing party sufficient information
about the expert’s opinions to prepare to cross-examine the expert and to prepare
expert rebuttal evidence.” Miller v. Kennedy & Minshew, P.C., 142 S.W.3d 325, 348
(Tex. App.—Fort Worth 2003, pet. denied). A failure to properly designate expert
witnesses results in the automatic exclusion of the expert testimony unless the offering
party demonstrates either good cause for the failure or a lack of unfair surprise or unfair
prejudice. See TEX. R. CIV. P. 193.6(a); Perez v. Embree Constr. Group, Inc., 228
S.W.3d 875, 884 (Tex. App.—Austin 2007, pet. denied). The rule states, however, that
when answering a request for disclosure, “the responding party need not marshal all
evidence that may be offered at trial.” TEX. R. CIV. P. 194.2(c).
We review a trial court's decision to admit evidence for abuse of discretion. In re
J.P.B., 180 S.W.3d 570, 575 (Tex. 2005). A trial court abuses its discretion when it acts
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without reference to any guiding rules and principles. Downer v. Aquamarine
Operators, Inc., 701 S.W.2d 238, 241–42 (Tex. 1985). In determining whether there
was an abuse of discretion, “we must ascertain whether the trial court’s finding served
the purpose of thwarting legal gamesmanship and trial by ambush.” $27,877.00 Current
Money of the U.S. v. State, 331 S.W.3d 110, 120 (Tex. App.—Fort Worth 2010, pet.
denied) (internal quotation omitted).
B. Knox
With respect to the anticipated testimony of Dr. Knox, Cuprum’s Rule 194
response stated in relevant part as follows:
Dr. Knox is familiar with the design, manufacture, applicable standards,
and operation of the ladder model at issue in this case. Dr. Knox has
inspected and examined the ladder and accident scene at issue herein.
Dr. Knox is expected to testify about all aspects of the alleged ladder
accident at issue in this case including but not limited to the cause of the
accident, the use of the ladder, the cause of the damage now existing on
the ladder, the forces exerted on the ladder, the loading of the ladder, and
the cause of Plaintiff[’]s injuries. Dr. Knox is also expected to testify about
the design, testing, manufacture, assembly, and mechanics of the ladder
at issue, the materials used in the ladder at issue, the applicable
standards and specifications for the ladder at issue, and the testing
performed by Plaintiff’s expert on the ladder at issue. Dr. Kno[x] will also
respond to any testimony given by any expert or other witness for Plaintiff
or any other party relating to alleged defects in the design, manufacture,
marketing, labeling, and/or testing of the subject ladder or any other
issues related to the cause of the accident and Plaintiff’s injuries.
Based on Dr. Knox’s inspection of the subject ladder and the accident
scene, testing performed on the subject ladder and exemplar ladders, his
engineering background, experience in the manufacturing, design and
testing of ladders, and his review of the materials in this case that have
been provided to date, Dr. Knox has opined that there are not defects in
the manufacture or design of the subject ladder, the subject ladder is
reasonably safe in design, that the instructions and warnings are adequate
and in compliance with the applicable standards, and that the most likely
cause of Plaintiff[’]s accident was the improper set up, misuse, and/or
mishandling of the ladder at issue.
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At trial, Dr. Knox testified that, as part of his work in this case, he analyzed the actual
ladder used by Roman (the “subject ladder”) as well as exemplar ladders to determine
the cause of the accident. He also stated that he reviewed statements of Roman and
others involved in the case, as well as documents provided by counsel. He further
testified regarding his independent testing of exemplar ladders; demonstrative exhibits
containing video recordings of that testing were shown to the jury.
At trial,. Roman objected to Dr. Knox’s testimony on the basis that it exceeded
the scope of Cuprum’s Rule 194 disclosure. On appeal, she claims that “Cuprum
obviously did not disclose to Roman that Knox had performed independent testing
outside of Roman’s observations, nor did it disclose the results of his testing or his
theories regarding” those results.
We find Roman’s complaint meritless. Cuprum’s Rule 194 disclosure stated that
Dr. Knox was expected to testify about his “testing performed on the subject ladder and
exemplar ladders” and did not specify where, when, or in whose presence such testing
took place. While the disclosure did not specifically describe the results of this testing, it
did state that Dr. Knox concluded from all of his work on the case, including the
independent testing of exemplar ladders, that the subject ladder was “reasonably safe in
design.” Additionally, Cuprum’s Rule 194 disclosure stated that Dr. Knox was expected
to respond to any testimony given by Roman’s experts or other witnesses about defects
in the ladder or the cause of Roman’s accident. As Roman recognizes, part of Dr.
Knox’s testimony was elicited in an attempt to refute the theory previously presented by
one of Roman’s expert witnesses, Frank Johnson, that the subject ladder buckled due
to weakness and was unreasonably dangerous.
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We conclude that the disclosures provided by Cuprum were adequate to give
Roman “sufficient information” about Dr. Knox’s opinions to allow her to prepare to
cross-examine him and to prepare rebuttal testimony. See Miller, 142 S.W.3d at 348.
We note also that, if Roman believed that Cuprum’s disclosures were insufficiently
specific, she could have moved to compel additional disclosure, see Remington Arms
Co. v. Caldwell, 850 S.W.2d 167, 170 (Tex. 1993) (“the failure to obtain a pretrial ruling
on discovery disputes that exist before commencement of trial constitutes a waiver of
any claim for sanctions based on that conduct”), or she could have taken the
opportunity to depose Dr. Knox. Roman chose to do neither of those things.
We overrule Roman’s first issue.
C. Schmitt
Cuprum’s Rule 194 response stated the following with respect to the anticipated
testimony of Schmitt and another potential witness, Spencer Gross:
Mr. Schmitt and Mr. Gross are engineers employed by Louisville Ladder.
Mr. Schmitt and Mr. Gross are familiar with the design, manufacture,
mechanics, and operation of the ladder model at issue in this case. Mr.
Schmitt and Mr. Gross may provide testimony concerning Louisville
Ladder’s testing of and compliance with applicable standards of the
climbing products it designs, manufactures, tests, labels and markets,
including the ladder at issue in this lawsuit. Mr. Schmitt and Mr. Gross
may also provide testimony concerning the design, testing, manufacture,
and assembly of the ladder at issue and the materials used in the ladder
at issue. Mr. Schmitt and Mr. Gross may also provide testimony
concerning the alleged ladder accident at issue in this case including but
not limited to the cause of the accident, the cause of the damage now
existing on the ladder, and the cause of Plaintiff’s injuries. They are
expected to respond to any testimony given by any expert or other witness
for Plaintiff or any other party relating to alleged defects in the design,
manufacture, marketing, labeling, and/or testing of the subject ladder or
any other issues related to the cause of the accident and Plaintiff’s
injuries.
7
Schmitt’s curriculum vitae, which is one of the discoverable items under Rule 194, see
TEX. R. CIV. P. 194.2(f)(4)(B), was not produced by Cuprum until October 4, 2009, one
day before trial commenced and eight days before Schmitt was called to testify.
Roman, who objected to Schmitt’s testimony at trial, complains now that the trial
court erred by admitting Schmitt’s curriculum vitae and by permitting Schmitt to testify
as to work he had done as a member of committees affiliated with Underwriters
Laboratories (“UL”) and the American National Standards Institute (“ANSI”). At trial,
Schmitt testified in part that the type of ladder used by Roman had been tested by UL
and determined to be in accordance with ANSI standards. According to Roman,
“[w]ithout Cuprum disclosing the CV prior to trial, there was no notice given to Roman of
Cuprum’s expert’s membership in the UL and ANSI committees and that Cuprum was
going to bolster that expert’s testimony with those memberships, as they, in fact, did.”
We note first that, contrary to Roman’s representation, Cuprum disclosed
Schmitt’s curriculum vitae, which contained information as to his UL and ANSI
memberships, one day prior to the commencement of trial. In any event, we find no
reversible error in the trial court’s decision to admit this evidence. Schmitt’s testimony
regarding the subject ladder’s compliance with ANSI standards was arguably
anticipated by the statement in Cuprum’s Rule 194 disclosure that Schmitt “may provide
testimony concerning Louisville Ladder’s testing of and compliance with applicable
standards of the climbing products it designs, manufactures, tests, labels and markets,
including the ladder at issue in this lawsuit.” Moreover, Roman has not explained how
the admission of this evidence probably led to the rendition of an improper judgment or
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probably prevented her from properly presenting her case on appeal. See TEX. R. CIV.
P. 44.1(a). Her second issue is overruled.
D. Stevenson
Finally, as to Dr. Stevenson’s anticipated testimony, Cuprum’s Rule 194
response stated:
Dr. Stevenson is familiar with the design, manufacture, applicable
standards, and operation of the ladder model at issue in this case. Dr.
Stevenson is expected to testify about all aspects of the alleged ladder
accident at issue in this case including but not limited to the cause of the
accident, the use of the ladder, the cause of the damage now existing on
the ladder, the forces exerted on the ladder, the loading of the ladder, and
the cause of Plaintiff’s injuries. Dr. Stevenson is also expected to testify
about the design, testing, manufacture, assembly, and mechanics of the
ladder at issue, the materials used in the ladder at issue, the applicable
standards and specifications for the ladder at issue, and the testing
performed by Plaintiff’s expert on the ladder at issue. Dr. Stevenson will
also respond to any testimony given by any expert or other witness for
Plaintiff or any other party relating to alleged defects in the design,
manufacture, marketing, labeling, and/or testing of the subject ladder or
any other issues related to the cause of the accident and Plaintiff’s
injuries.
Based on Dr. Stevenson’s review of the testing performed by Plaintiff,
review of the materials in this case that have been provided to date, his
engineering background, experience in the manufacturing, design, and
testing of ladders, Dr. Stevenson is expected to opine that there were not
defects in the manufacture or design of the subject ladder, the subject
ladder is reasonably safe in design, and that the most likely cause of the
Plaintiff’s accident was the improper set up, misuse, and/or mishandling of
the ladder at issue.
At trial, Dr. Stevenson testified that he reviewed reports of testing done by
Anderson & Associates (“Anderson”) and Metallurgical Technologies, Inc. (“MTI”) on the
subject ladder. Dr. Stevenson stated that Anderson tested the ladder by, among other
things: cutting a sample out of the ladder and pulling the sample apart to measure the
tensile strength of the alloy used to produce the ladder; performing scanning electron
9
microscopy of the fracture surfaces on the ladder; and performing other hardness
testing and metallographic testing.3 He stated that, though testing performed by MTI
revealed a “non-conformity” in terms of yield strength, the non-conformity did not mean
the ladder was defective because the ultimate tensile strength of the ladder met
specifications and a safety factor of four times the rated load was built in to the ladder
by the manufacturer.4
Defense counsel asked Dr. Stevenson if he reviewed photographs taken by Rex
McLellan, Ph.D., a metallurgy professor who had previously testified as one of Roman’s
expert witnesses. Dr. Stevenson replied that he had reviewed those photographs and
then testified as follows:
A. [Dr. Stevenson] I observed [in the photographs] a mixed mode
fracture . . . On those grain facets there’s
evidence of what is called dimple rupture or
ductile fracture. It’s the common and expected
fracture mode for this particular alloy. So this
is in my opinion consistent with ductile fracture.
Q. [Cuprum’s counsel] And doesn’t this tell you that the alloy was
improperly treated?
A. No. It tells you the fracture mode and then
what type of fracture it is, if it’s overstress or
overload type of fracture.
Q. What type of fracture was this you observed?
A. I mean I think there’s two different ways. One
is overstress or overload essentially occurring
3
Metallography is defined as the study of the structure of metals, especially with a microscope.
MERRIAM-W EBSTER’S COLLEGIATE DICTIONARY 730 (10th ed.).
4
Dr. Stevenson testified that “there [are] two strength parameters, yield strength, which is the
point at which the metal begins to deform, and ultimate tensile strength, which is the ultimate strength of
the material.” He further stated that, although testing revealed that subject ladder’s yield strength
deviated by three percent from the applicable specification, the 400-percent safety factor (which
manufacturers generally build in to products “to anticipate things that are outside the scope of a design”)
would “absolutely” be enough to protect the end user.
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at time [sic] versus another type of fracture
mechanism that’s time dependent. But
specifically the features are intergranular with
ductile dimples, or evidence of ductile rupture
along the grain boundaries.
Q. Is that something that you see with aluminum?
A. Well, it’s something that you certainly see with
precipitation-hardened aluminum like this. It’s
well known in literature and something that I
have observed before in testing these types of
materials. So it’s fairly common.
Q. Did you see anything in there that would show
that the ladder had been fatigued over a period
of time?
A. No. None of the photographs that I reviewed
indicated any evidence of fatigue.
Roman objected to the testimony as exceeding the scope of Cuprum’s Rule 194
disclosures. Roman argues on appeal that “Cuprum failed to disclose to Roman . . .
that [Dr. Stevenson] would give testimony on the subject of grain boundary weakness or
grain boundary separation.”5
Again, we find no error in the trial court’s admission of this evidence. Rule 194
requires only the disclosure of “the general substance of the expert’s mental
impressions and opinions and a brief summary of the basis for them . . . .” TEX. R. CIV.
P. 194. Cuprum’s disclosure stated that Dr. Stevenson would testify as to the
“mechanics of the ladder at issue, the materials used in the ladder at issue,” as well as
“the cause of the damage now existing on the ladder.” Cuprum also disclosed that Dr.
Stevenson would testify that, as a result of his testing and review of case materials, he
5
A grain is a portion of a solid metal in which the atoms are arranged in an orderly pattern.
Allegheny Technologies, Inc., AL-6XN Glossary, http://www.al6xn.com/about_glossary.php (last visited
Feb. 14, 2012). The irregular junction of two adjacent grains is known as a grain boundary. Id.
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believed the ladder was not defective or unreasonably dangerous. This was sufficient
to convey the “general substance” of Dr. Stevenson’s testimony. See id. Moreover, Dr.
Stevenson’s testimony specifically regarding grain boundary weakness and grain
boundary separations was elicited in part in order to rebut the testimony of Dr. McLellan
that he observed grain boundary weakness in the subject ladder; and Cuprum’s
disclosure stated that Dr. Stevenson was expected to respond to testimony provided by
Roman’s experts.
We note again that, as with Dr. Knox, if Roman believed that Cuprum’s Rule 194
disclosure was insufficiently specific or otherwise inadequate, she could have either
moved to compel more specific disclosure or deposed the witness, yet she chose to do
neither. In light of this fact, we cannot say that Cuprum’s actions here amounted to
“legal gamesmanship” or “trial by ambush.” See $27,877.00 Current Money of the U.S.,
331 S.W.3d at 120.
We conclude that the trial court did not abuse its discretion in admitting Dr.
Stevenson’s testimony. Accordingly, Roman’s third issue is overruled.
III. CONCLUSION
We affirm the judgment of the trial court.
________________________
DORI CONTRERAS GARZA
Justice
Delivered and filed the
29th day of March, 2012.
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