Juliann Castro v. Schlumberger Technology Corporation and Christopher Jones

Fourth Court of Appeals
San Antonio, Texas
OPINION
No. 04-21-00420-CV
Juliann CASTRO,
Appellant
v.
SCHLUMBERGER TECHNOLOGY CORPORATION and Christopher Jones,
Appellees
From the 454th Judicial District Court, Medina County, Texas
Trial Court No. 19-03-25646-CV
Honorable Daniel J. Kindred, Judge Presiding
Opinion by: Rebeca C. Martinez, Chief Justice
Sitting: Rebeca C. Martinez, Chief Justice
Patricia O. Alvarez, Justice
Beth Watkins, Justice
Delivered and Filed: May 31, 2023
AFFIRMED
Appellant Juliann Castro appeals from a take-nothing final judgment, rendered in
accordance with a jury verdict, in favor of appellees Schlumberger Technology Corporation
(“STC”) and Christopher Jones (collectively “Schlumberger”). In six issues, which we reorder
and broadly reclassify as three, Castro complains that: (1) the trial court abused its discretion in
four evidentiary rulings; (2) the evidence is factually insufficient to support the verdict; and (3)
the trial court abused its discretion in overruling her motion to equalize peremptory challenges.
We affirm.
04-21-00420-CV
I. BACKGROUND
On December 8, 2017, Jones, an employee of STC, was operating a tractor-trailer on State
Highway 173 in Devine, Texas. At the same time, Castro was operating a sedan that was traveling
in the same direction as Jones but to his right. After a red traffic light turned green, both drivers
began accelerating. Soon thereafter, Jones moved into Castro’s lane of travel. Consequently,
Jones’s vehicle sideswiped the driver’s side of Castro’s vehicle. Jones testified that he was
traveling between twenty and twenty-five miles per hour at the time of the accident.
Devine Police Department Officer Christopher Martinez prepared a crash report, which
lists Jones’s changing of lanes when it was unsafe to do so as a contributing factor to the accident.
An incident investigation report prepared by STC employees lists the “root cause” of the accident
as Jones’s failure to identify Castro’s vehicle “in [the] passenger side blind spot of [the] tractor.”
After the accident, Castro was taken by ambulance to the hospital. The emergency care
physician prescribed Castro pain medication and advised her to follow up with her primary care
physician. On April 24, 2018, Castro was evaluated by Howard Kagan, a physician assistant at
Interventional Pain Management, also known as Tricity Pain Associates. Kagan referred Castro
for a “stress test MRI” of her cervical spine at Brio San Antonio. Thereafter, Kagan referred Castro
to two orthopedic surgeons for evaluation regarding pain in her neck and left shoulder. On
September 6, 2018, Saqib Siddiqui, M.D., an orthopedic surgeon, examined Castro and reviewed
the MRI images of her cervical spine. Dr. Siddiqui appreciated a disc herniation at the C4–C5
level based on his review of the MRI images. At this same appointment, Dr. Siddiqui
recommended that Castro undergo a C4–C5 anterior cervical discectomy and fusion. On June 12,
2019, Castro underwent a cervical MRI at Touchstone Medical Imaging at Dr. Siddiqui’s request.
Harold Sonnier, M.D., a radiologist board certified in both diagnostic radiology and
neuroradiology, prepared a report in which his impression was a “[n]ormal MRI cervical spine.”
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Dr. Siddiqui performed a C4–C5 fusion surgery on Castro on June 17, 2019. On September 21,
2020, Dennis Gutzman, M.D., a board-certified orthopedic surgeon, evaluated Castro for pain
associated with her left shoulder. Castro testified that Dr. Gutzman recommended surgery to treat
her left shoulder pain.
Before trial, Schlumberger attacked the qualifications and foundational reliability of Dr.
Siddiqui’s and Dr. Gutzman’s causation opinions. Similarly, Castro attacked the qualifications of
Dr. Sonnier to render opinions related to the recommendation of surgical treatment. The trial court
limited the causation opinions of Dr. Siddiqui and Dr. Gutzman but not that of Dr. Sonnier.
At trial, Schlumberger defended against Castro’s claims by positing that the accident did
not proximately cause her any injuries that would have necessitated the medical care that she
received. It also posited that Castro suffered from preexisting neck and shoulder conditions.
Schlumberger retained Frank Garcia, M.D., a board-certified orthopedic surgeon, as a testifying
expert. On June 14, 2019, Dr. Garcia performed an independent medical examination of Castro.
Dr. Garcia testified that the June 12, 2019, MRI showed nothing that warranted the June 17, 2019,
surgical treatment performed by Dr. Siddiqui. Both Dr. Siddiqui and Dr. Garcia agreed that the
C4–C5 level of Castro’s cervical spine evidenced signs of disc degeneration and osteophytes,
which are bone spurs. Dr. Siddiqui acknowledged that an assault by Jeremy Lee Mata, Castro’s
boyfriend, on October 3, 2015, which broke one of Castro’s ribs, “potentially” could have caused
a disc herniation. As for Castro’s left shoulder, Dr. Garcia reviewed a July 28, 2017 note by an
emergency care physician, which provides, “Patient also is having some left shoulder pain which
she has intermittently. No history of trauma but does have four young children with her and she
is lifting one or more of the children most of the time.”
Before the case was submitted to the jury, the trial court granted STC’s motion for directed
verdict on Castro’s theories of negligent hiring, training, and supervision and her claim for gross
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negligence. The first question in the jury charge asked: Did the negligence, if any, of Christopher
Jones proximately cause the injuries in question? The jury unanimously answered, “No.” The
trial court rendered a take nothing judgment in accordance with the jury’s verdict. Castro timely
appealed from the trial court’s judgment.
II. DISCUSSION
A. Evidentiary Rulings 1
Castro’s first issue consists of four sub-issues. Regarding the first two rulings, Castro
contends that the trial court erred by granting Schlumberger’s motion to limit the causation opinion
of Dr. Siddiqui and the causation opinion and surgical cost estimate of Dr. Gutzman. Third, Castro
contends that the trial court erred by denying her motion to limit the testimony of Dr. Sonnier.
Fourth, Castro contends that the trial court erred by sustaining Schlumberger’s objection to the
certified driving records of Jones.
We review a trial court’s decision to admit or exclude evidence — including expert
testimony — for an abuse of discretion. Fleming v. Wilson, 610 S.W.3d 18, 21 (Tex. 2020) (per
curiam); Helena Chem. Co. v. Wilkins, 47 S.W.3d 486, 499 (Tex. 2001).
1
Schlumberger contends that all of Castro’s appellate issues are moot because she did not object to the jury instruction
conditioning the damages question on an affirmative finding that Jones’s negligence proximately caused her injuries.
We overrule Schlumberger’s waiver challenge. See, e.g., Pennekamp v. C&J Air Conditioning & Heating Co., No.
04-98-00632-CV, 1999 WL 1073813, at *3 (Tex. App.—San Antonio Nov. 24, 1999, no pet.) (mem. op., not
designated for publication) (declining to find waiver of legal sufficiency challenge to liability answer where claimant
did not object to conditional submission of damages question). In support, Schlumberger relies on authority
concerning special issues. See, e.g., Little Rock Mfg. Co. v. Dunn, 222 S.W.2d 985, 989–91 (Tex. 1949), abrogated
by St. Paul Fire & Marine Ins. Co. v. Murphree, 357 S.W.2d 744, 749 (Tex. 1962). However, in 1973, the Texas
Rules of Civil Procedure were amended to permit broad-form submission of jury questions and, in 1987, to require
such submission. See H.E. Butt Groc. Co. v. Bilotto, 985 S.W.2d 22, 23 (Tex. 1998). The conditional jury instruction
given here comports with Rule 277 of the Texas Rules of Civil Procedure. TEX. R. CIV. P. 277. (“The court may
predicate the damage question or questions upon affirmative findings of liability.”). It also comports with Instruction
28.1 of the Texas Pattern Jury Charge, which is in turn premised on Rule 277. See State Bar of Texas, TEXAS PATTERN
JURY CHARGES: GENERAL NEGLIGENCE, INTENTIONAL TORTS & WORKER COMPENSATION PJC 28.1, cmt. (2020)
(“PJC 28.1 may be used to condition answers to personal injury damages questions on a finding of liability as permitted
by TEX. R. CIV. P. 277.”); see also H.E. Butt Groc. Co. v. Bilotto, 928 S.W.2d 197, 199 (Tex. App.—San Antonio
1996) (en banc) (“Although we are aware that the Texas Pattern Jury Charges are not ‘law’, they are heavily relied
upon by both the bench and bar.”), aff’d by, 985 S.W.2d 22 (Tex. 1998). Accordingly, we proceed to address the
merits of Castro’s issues.
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Causation is an essential element of Castro’s negligence claim. Nabors Drilling, U.S.A.,
Inc. v. Escoto, 288 S.W.3d 401, 404 (Tex. 2009) (stating that causation is an element of
negligence). To constitute evidence of causation, a medical expert’s opinion must rest in
reasonable medical probability. Burroughs Wellcome Co. v. Crye, 907 S.W.2d 497, 500 (Tex.
1995). In other words, “the ultimate standard of proof on the causation issue ‘is whether, by a
preponderance of the evidence, the negligent act or omission is shown to be a substantial factor in
bringing about the harm and without which the harm would not have occurred.’” Id. (quoting
Kramer v. Lewisville Mem’l Hosp., 858 S.W.2d 397, 400 (Tex. 1993)). We must look past an
expert’s use of magic words, like “based on reasonable medical probability,” to the substance of
the expert’s testimony in determining whether it qualifies as some evidence of causation. Merrell
Dow Pharm., Inc. v. Havner, 953 S.W.2d 706, 711–12 (Tex. 1997). Importantly, when the
evidence demonstrates that “there are other plausible causes of the injury or condition that could
be negated, the plaintiff must offer evidence excluding those causes with reasonable certainty.”
Id. at 720; see also Jelinek v. Casas, 328 S.W.3d 526, 536 (Tex. 2010).
1. Dr. Siddiqui
Before trial, Schlumberger moved to limit Dr. Siddiqui from testifying that the December
8, 2017 motor vehicle accident proximately caused a cervical disc herniation, which in turn
necessitated a surgery to fuse the C4–C5 level disc. Schlumberger’s argument was twofold. First,
it argued that Dr. Siddiqui lacked the requisite biomechanical qualifications to render a causation
opinion. Second, it argued that Dr. Siddiqui’s causation opinion was unreliable because he had
not accounted for the 2015 assault and the specific forces produced by the December 8, 2017
accident. Castro responded by arguing that, although she was choked during the 2015 assault, she
suffered no injury to her neck from it as evidenced by the emergency department records from
eight days after the assault. Castro also argued that orthopedic surgeons opine “all the time” that
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“there was no acute complaint prior to this injury and she has an acute complaint after the injury.
Because of that, there’s no other cause that could have caused this herniation or pain other than
the trauma.” At the conclusion of the pretrial hearing, the trial court held:
I think it’s proper for [Dr. Siddiqui] to testify that [Castro] had this injury. In his
medical opinion he can I guess testify if he thinks it’s a new injury or not. Is this
injury years old from 2015 or is it, no, this looks like it’s fairly new. I think he’s
qualified to testify to those things . . . I don’t think it’s improper for him to say it is
consistent with someone who has been in a vehicle accident. But saying that
particular model of vehicle sustained this type of damage, that tells me that, yes,
this absolutely caused it, I don’t think that line of testimony is proper for him. So
that’s my ruling on that.
Before the jury, Dr. Siddiqui testified:
CASTRO’S COUNSEL: And based upon reasonable medical probability, do
you have an opinion —
DR. SIDDIQUI: Yes.
CASTRO’S COUNSEL: — as to whether or not the injuries you described to
Ms. Castro’s cervical spine are consistent with her
history of being struck by an 18-wheeler?
DR. SIDDIQUI: Yes.
CASTRO’S COUNSEL: What do you base that opinion on and what is that
opinion?
DR. SIDDIQUI: The opinion is just based on my clinical experience
of seeing a lot of patients with this type of injury and
that type of history, as well as the history she gave
me and the physical exam and the MRI findings.
CASTRO’S COUNSEL: Did you take into consideration the temporal
relationship between the pain and the crash?
DR. SIDDIQUI: Yes. She said that the pain began after the car
accident. It was not there before. And typically,
patients will have pain within a day or two and up to
a week or two later when the inflammation sets in.
Dr. Siddiqui also testified that in all his years as a practicing orthopedic surgeon, he had never
treated a patient who complained of pain in her neck as a result of domestic violence. On cross-
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examination by Schlumberger’s counsel, Dr. Siddiqui reviewed a Medina County Sheriff’s Office
report from October 3, 2015. On that date, Castro reported that Mata had assaulted her.
Schlumberger’s counsel highlighted for Dr. Siddiqui the report’s narrative and physical
assessment. In the narrative, Castro reported that Mata “got aggressive and strong physically when
he started throwing me at first then swinging his arms at me left and right and then got more in a
rage and there’s punching and choking and being drug into another room.” In the physical
assessment, Castro reported that she felt a ten-out-of-ten level of pain in the “left part of my chest
plus ribs, neck, head, my right hand and arm.” Dr. Siddiqui acknowledged that the assault
described in the report “potentially” could cause disc herniation “if there is enough force
involved.” Schlumberger’s counsel also elicited from Dr. Siddiqui:
SCHLUMBERGER’S COUNSEL: You talk about forces and you talk about sudden
forces and all that. You have no idea how this car
accident happened, do you?
DR. SIDDIQUI: Yeah, I don’t know the exact police report and
direction of forces and all that will.
SCHLUMBERGER’S COUNSEL: Or the magnitude of the forces, right?
DR. SIDDIQUI: Right.
Outside the jury’s presence and in Castro’s offer of proof, her counsel asked Dr. Siddiqui:
CASTRO’S COUNSEL: Dr. Siddiqui, do you have an opinion based upon
your MRI reading, the MRI report, the history and
physical, the neurological examination that you
performed on Ms. Castro, as to the cause of the disc
herniation in her neck?
DR. SIDDIQUI: Yes.
CASTRO’S COUNSEL: What is that opinion?
DR. SIDDIQUI: I think in all reasonable medical probability I still
believe it was the motor vehicle accident.
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CASTRO’S COUNSEL: And are you familiar with the forces of car crashes
that can cause twisting and whiplash and turning in
the neck?
DR. SIDDIQUI: Yes, I’m generally familiar because I see that a lot in
my practice.
CASTRO’S COUNSEL: And based upon the description of the car crash that
not only [Schlumberger’s counsel] but I have
described to you, are those the types of forces that
can cause a herniated disc in Ms. Castro’s spine?
DR. SIDDIQUI: Yes.
During the offer of proof, Schlumberger’s counsel cross-examined Dr. Siddiqui, asking:
SCHLUMBERGER’S COUNSEL: Now with regard to the automobile accident, you
testified earlier that it takes a certain amount of force
or trauma to herniate a disc as a result of a car
accident, right?
DR. SIDDIQUI: Yes.
SCHLUMBERGER’S COUNSEL: And you’ve done no evaluation, no analysis to try to
determine the amount of force that she was subjected
to, correct?
DR. SIDDIQUI: Correct.
SCHLUMBERGER’S COUNSEL: You made no attempt to determine the direction of
force that she was subjected to in the car accident,
correct?
DR. SIDDIQUI: Correct.
SCHLUMBERGER’S COUNSEL: You did not have access to a full medical history of
Ms. Castro, did you?
DR. SIDDIQUI: Not to the extent that’s being shown today.
SCHLUMBERGER’S COUNSEL: And you also testified that there can be multiple
causes of herniated disc, correct?
DR. SIDDIQUI: Yes.
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On appeal, Castro contends that the trial court abused its discretion by excluding the
testimony she elicited from Dr. Siddiqui during her offer of proof. Castro primarily relies on LMC
Complete Automotive, Inc. v. Burke, 229 S.W.3d 469, 477–79 (Tex. App.—Houston [1st Dist.]
2007, pet. denied), as support. In that case, an employee at an auto repair shop “heard a noise,”
and he then witnessed a vehicle rolling out of the shop with the driver’s side door open. Id. at 474.
A coworker was attempting to push a vehicle into the shop by himself, and he lost control. Id.The employee ran in front of the vehicle and stopped it by hand. Id. He immediately experienced
back pain and informed his manager. Id. The employee eventually sought medical treatment,
including two back surgeries, due to the injury. Id. At trial, the employee’s treating physician,
who participated in both back surgeries, testified as to causation. Id. at 477. The treating physician
testified that the employee told him that the incident at the auto shop might have caused his back
injury because he had never experienced back pain before the incident. Id. The treating physician
noted that an x-ray, taken post-incident, revealed a herniated disc in the employee’s lower back.
Id. A jury found the employer negligent, and the employer challenged the reliability of the treating
physician’s causation opinion on appeal. Id. at 478. The First Court of Appeals held that the
treating physician’s causation opinion was reliable because it was based on “the history the patient
presented” and “the results of medical tests and examination.” Id. at 479. Schlumberger contends
that Castro’s reliance on LMC Complete Automotive is misplaced because, among other things,
the employee in that case had not experienced prior neck trauma that resulted in severe pain, as
Castro did approximately two years before the accident in question.
We agree that Castro’s reliance on LMC Complete Automotive is misplaced. First, there is
no indication that the employee in that case experienced neck trauma that resulted in severe pain.
Second, after the First Court of Appeals issued LMC Complete Automotive, the Texas Supreme
Court issued Jelinek, 328 S.W.3d at 536, which reinforced the rules that govern the legal
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sufficiency analysis of causation opinions in cases involving circumstantial evidence. In Jelinek,
the expert testified that a hospital’s “negligence ‘in medical probability’ caused [a patient’s]
additional pain and suffering.” Id. at 535. The expert based this opinion on the presence of an
infection that could have been treated with certain antibiotics. Id. Circumstantial evidence of
infection existed, but there was no direct evidence of an infection. Id. The expert conceded that
the circumstantial evidence on which he relied to form his opinion that the patient suffered from
the specific infection was “equally consistent with two other infections cultured from” the patient’s
incision and blood — neither of which were treatable by the antibiotics in question. Id. The Texas
Supreme Court held:
When the only evidence of a vital fact is circumstantial, the expert cannot merely
draw possible inferences from the evidence and state that “in medical probability”
the injury was caused by the defendant’s negligence. The expert must explain why
the inferences drawn are medically preferable to competing inferences that are
equally consistent with the known facts.
Id. at 536.
In this case, Castro does not contend that Dr. Siddiqui has personal knowledge of when the
C4–C5 disc herniation occurred that was gained by contemporaneous observation. Cf. Goad v.
State, 354 S.W.3d 443, 451 n.1 (Tex. Crim. App. 2011) (Alcala, J. concurring) (citing BLACK’S
LAW DICTIONARY 595 (8th ed. 2004) (referring “to evidence that is based on inference and not on
personal knowledge or observation as ‘circumstantial evidence.’”)). Moreover, Dr. Siddiqui
testified that both the October 3, 2015 assault and the December 8, 2017 accident were potential
causes of the herniation that he observed, and he acknowledged that he did not know the forces
exerted in both. Accordingly, when the C4–C5 disc herniation occurred is akin to whether an
infection was present in Jelinek because only circumstantial evidence exists as to both. Dr.
Siddiqui’s reliance on the “MRI reading, the MRI report, the history and physical, [and] the
neurological examination” does not explain why the December 8, 2017 accident is medically
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preferable as a cause of the C4–C5 disc herniation to the 2015 assault. 2 See Jelinek, 328 S.W.3d
at 536. On this record, the trial court did not abuse its discretion in excluding Dr. Siddiqui’s
causation opinion because the trial court may have concluded that it was foundationally unreliable.
We, therefore, hold that the trial court did not abuse its discretion in limiting Dr. Siddiqui’s
testimony. 3
2. Dr. Gutzman
Before trial, Schlumberger moved to exclude Dr. Gutzman from testifying because, among
other things, Castro’s January 1, 2021 designation of him was past the December 27, 2019 deadline
for Castro to designate experts, and Dr. Guzman’s causation opinion was unreliable. At a pretrial
hearing, the trial court orally ruled, “I’m going to find that [Castro’s designation of Dr. Gutzman]
did not meet the deadline and I’m not going to let it in.” At trial, the trial court allowed Castro to
play parts of Dr. Gutzman’s pretrial deposition to the jury. However, consistent with its pretrial
rulings, it excluded Dr. Gutzman’s causation opinion and his estimate for the cost of a
recommended future shoulder surgery.
On appeal, Castro contends that the trial court abused its discretion in excluding Dr.
Gutzman’s opinion and estimate because he was qualified, and his opinion and estimate are based
on a reliable foundation. Schlumberger responds by arguing that, among other things, Castro’s
designation of Dr. Gutzman was untimely. We agree with Schlumberger.
2
Castro also relies on Hospadales v. McCoy, 513 S.W.3d 724, 737–40 (Tex. App.—Houston [1st Dist.] 2017, no pet.),
and Hayhoe v. Henegar, 172 S.W.3d 642, 644 (Tex. App.—Eastland 2005, no pet.). She references these opinions
for the proposition that a treating physician’s causation opinions are reliable if based on that physician’s “own
expertise and his own personal experiences as [a patient’s] treating physician.” Castro’s reliance on these two opinions
is misplaced. In Hospadales, the treating physician reviewed the patient’s past medical records, including MRIs from
before the accident in question, to formulate his causation opinion. 513 S.W.3d at 738–39. Notably, the treating
physician testified that the “MRI [from before the accident] showed [the patient] had a posterior annular tear at the
L5–S1 level in [the patient’s] lower back that was not present in the [pre-accident] MRI.” Id. at 738. The opinion in
Hayhoe makes no mention of whether the patient had previously sustained trauma to the same spinal region implicated
in the personal injury claim. 172 S.W.3d at 644–45. Hayhoe is, therefore, distinguishable from the instant case.
3
Given our disposition, we need not address whether Dr. Siddiqui was qualified to render a causation opinion.
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Under Texas Rule of Civil Procedure 193.6(a), when a party fails to supplement a
discovery response in a timely manner, the evidence may be excluded. See TEX. R. CIV. P.
193.6(a); see also Alvarado v. Farah Mfg. Co., 830 S.W.2d 911, 914 (Tex. 1992). The remedy is
mandatory and automatic unless the court finds there was good cause for the failure to amend or
supplement, or the failure will not unfairly surprise or prejudice the other party. See TEX. R. CIV.
P. 193.6(a); Morrow v. H.E.B., Inc., 714 S.W.2d 297, 297–98 (Tex. 1986); see also Cincinnati Ins.
Co. v. Villanueva, No. 04-20-00389-CV, 2022 WL 608962, *4 (Tex. App.—San Antonio Mar 2,
2022, pet. denied). Rule 193.6(b) provides, “[t]he burden of establishing good cause or the lack of
unfair surprise or unfair prejudice is on the party seeking to introduce the evidence or call the
witness.” TEX. R. CIV. P. 193.6(b). The trial court has discretion to determine whether the offering
party has met its burden of showing good cause or lack of unfair surprise, and the record must
support its findings. See Aluminum Co. of Am. v. Bullock, 870 S.W.2d 2, 3 (Tex. 1994); see also
Villanueva, 2022 WL 608962, at *4.
Similarly, trial courts have broad discretion to manage and control their dockets. See, e.g.,
Clanton v. Clark, 639 S.W.2d 929, 931 (Tex. 1982). Here, the docket control order provided that
Castro’s expert designations were due by December 27, 2019. Castro first designated Dr. Gutzman
on January 1, 2021. In a pre-trial hearing, the trial court concluded that Castro’s designation of
Dr. Gutzman was late and excluded Dr. Gutzman’s cost estimate and causation opinions for that
reason. We believe this decision was well within its discretion, and therefore conclude the trial
court did not clearly abuse its discretion in excluding Dr. Gutzman’s belatedly designated opinions
on causation and the cost of Castro’s future surgical care. We, therefore, overrule Castro’s
complaint about the exclusion of Dr. Gutzman’s causation opinion and cost estimate.
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3. Dr. Sonnier
Before trial, Castro moved to limit Dr. Sonnier from testifying that the condition of her
cervical spine did not necessitate the spinal fusion surgery performed by Dr. Siddiqui. At a pretrial
deposition on direct examination by Schlumberger’s counsel, Dr. Sonnier testified:
SCHLUMBERGER’S COUNSEL: And — but you were the actual treating physician or
one of the treating physicians for the Plaintiff in this
case, Juliann Castro; is that correct?
DR. SONNIER: I did read an MRI of hers.
SCHLUMBERGER’S COUNSEL: Did you see anything in this MRI that you believe
warranted surgery or surgical correction?
DR. SONNIER: I — no. I did not see anything on the one set of
images.
Castro objected to this specific testimony because she contended that Dr. Sonnier was unqualified
to render opinions related to the recommendation of surgical treatment. Castro supported her
objection by highlighting part of her cross-examination of Dr. Sonnier, wherein he testified:
CASTRO’S COUNSEL: Okay, and in terms of a — a recommendation as to
whether a patient does or does not need surgery, you
haven’t recommended one way or the other that
Juliann Castro undergo surgery or not undergo
surgery; is that correct?
DR. SONNIER: I have not.
CASTRO’S COUNSEL: You have not made a recommendation either way; is
that —
DR. SONNIER: I have not.
CASTRO’S COUNSEL: Okay. So you’re not saying she doesn’t need
surgery, nor are you stating that she did need surgery;
is that —
DR. SONNIER: I am not stating either of those things.
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The trial court denied Castro’s motion to limit Dr. Sonnier’s testimony, and both of the
aforementioned deposition excerpts were played for the jury’s consideration.
On appeal, Castro contends that the trial court abused its discretion by denying her motion
to limit Dr. Sonnier’s testimony and that the error was harmful. Schlumberger counters that no
abuse of discretion occurred, and even if so, any such error was harmless. In support of its
harmless error contention, Schlumberger references State v. Dawmar Partners, Ltd., 267 S.W.3d
875, 881 (Tex. 2008) (per curiam), and contends that the complained of testimony by Dr. Sonnier
is cumulative of Dr. Garcia’s unchallenged testimony. At trial, Dr. Garcia testified:
SCHLUMBERGER’S COUNSEL: [A]nd then also is your opinion basically the same as
Dr. Sonnier’s as far as do — you know, does the
2019 MRI image show any indication, show any kind
of herniation, anything that warrants surgery?
DR. GARCIA: No.
SCHLUMBERGER’S COUNSEL: Okay, and that’s consistent with Dr. Sonnier’s?
DR. GARCIA: That’s correct.
On appeal, Castro challenges neither Dr. Garcia’s qualifications nor his opinion that the 2019 MRI
interpreted by Dr. Sonnier showed nothing that would warrant surgery.
In Dawmar Partners, the State challenged the qualifications of two experts that had been
called by an opposing party. Id. The Texas Supreme Court observed that the testimony of the two
experts was cumulative to that of a third expert, whose testimony had not been challenged on
appeal. Id. It then concluded that any error in admitting the two experts’ testimony was harmless.
Id. We conclude that the complained of testimony by Dr. Sonnier is cumulative of Dr. Garcia’s
unchallenged testimony. Under Dawmar Partners, we hold that the error, if any, of admitting the
complained of testimony by Dr. Sonnier is harmless.
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4. Jones’s Certified Driving Records
Castro sought to admit Jones’s certified driving records on three occasions. At a pretrial
hearing, Castro argued that the driving records were relevant to her negligent hiring claim against
STC and to undermine Jones’s credibility because he did not disclose contents of his driving record
on his job application. The trial court expressed concern that some events may be too remote in
time. It declined to pre-admit Jones’s driving records, and instead, it deferred a ruling. On cross-
examination, Castro’s counsel cross-examined Jones about a prior “crash” and a ticket for
operating an overweight commercial vehicle. 4 Castro again urged admission of Jones’s driving
records, even offering to redact all but the prior crash and ticket from them. The trial court
sustained Schlumberger’s relevancy objections. On direct examination, Schlumberger’s counsel
asked Jones: “What is your expectation that your lifelong driving history would have shown that
you gave [your prospective employer] permission to obtain when you were applying for a job with
them?” Jones responded that “they would have been in good standards.” Thereafter, Castro argued
that Schlumberger had waived its relevancy objection because it had opened the door to Jones’s
driving records. She again urged admission of Jones’s driving record based on a need to rebut the
false impression that had been made.
On appeal, Castro raises the same arguments that she presented below in support of her
contention that the trial court erred by sustaining Schlumberger’s relevancy objection.
Schlumberger responds by arguing, among other things, that the error, if any, was harmless. The
erroneous 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. Gunn v.
4
Jones’s driving records showed that, in the three years before the December 8, 2017 motor vehicle accident, Jones
had been involved in a “crash” and been “convicted” for operating an overweight commercial vehicle. The records
also showed four other events that had occurred between 1995 and 2011.
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McCoy, 554 S.W.3d 645, 668 (Tex. 2018). By contrast, exclusion of the evidence is likely harmful
if it was “crucial to a key issue.” Id. (quoting State v. Cent. Expressway Sign Assocs., 302 S.W.3d
866, 870 (Tex. 2009)).
A redacted version of Jones’s driving records — as Castro’s counsel offered for admission
during Jones’s examination — contained the prior crash and ticket that Jones discussed under
cross-examination. The excluded document was, therefore, cumulative of Jones’s testimony.
Gunn, 554 S.W.3d at 668. Moreover, Castro fails to explain how Jones’s driving records were
crucial to a key issue. Id.; see also TEX. R. APP. P. 38.1(i). The first jury question inquired whether
Jones’s negligence, if any, proximately caused Castro’s injuries; however, Castro has not
explained how Jones’s driving records would have guided the jury on the causation question that
it was tasked with answering. Assuming, without deciding, that the trial court erred in sustaining
Schlumberger’s relevancy objection, any error is harmless.
Having overruled all four of its sub-issues, we overrule Castro’s first issue.
B. Factual Sufficiency Challenge
In Castro’s second issue, she contends that the jury’s answer of “No” to the first question
is supported by factually insufficient evidence. The first question asked: Did the negligence, if
any, of Christopher Jones proximately cause the injuries in question? In support of Castro’s factual
sufficiency challenge, she points to: (1) Jones’s admission that he was “at fault”; (2) steps that
Jones could have taken to operate his vehicle in a safer manner; (3) Officer Martinez’s
determination that Jones contributed to the accident by making an improper lane change and by
not paying attention to the surrounding traffic; (4) and an internal investigation conducted by STC
that revealed that Jones’s conduct was either the root cause or a contributing cause of the accident.
Schlumberger responds by arguing, among other things, that Castro inadequately briefed
her factual sufficiency challenge by both focusing on the cause of the occurrence rather than the
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cause of Castro’s injuries and failing to address the evidence in favor of the jury’s answer to the
first question. It references two cases in support of its waiver argument. In Archer v. DDK
Holdings LLC, 463 S.W.3d 597, 603 (Tex. App.—Houston [14th Dist.] 2015, no pet.), the
appellants framed their issues as challenges to the legal and factual sufficiency of the evidence.
However, they did not address the evidence favorable to the opposing — and prevailing party —
and instead, they emphasized that the evidence favoring them was undisputed. Id. The Fourteenth
Court of Appeals held that they waived any challenge to the factual sufficiency of the evidence.
Id. In Norstrud v. Cicur, No. 02-14-00364-CV, 2015 WL 4878716, at *6 (Tex. App.—Fort Worth
Aug. 13, 2015, no pet.) (mem. op.), the Second Court of Appeals faced a similar situation, and it
reached the same holding.
“When a party attacks the factual sufficiency of an adverse finding on an issue on which
[the party] has the burden of proof, [the party] must demonstrate on appeal that the adverse finding
is against the great weight and preponderance of the evidence.” Dow Chem. Co. v. Francis, 46
S.W.3d 237, 242 (Tex. 2001). In our review, we “must consider and weigh all of the evidence,
and [we] can set aside a verdict only if . . . the finding is so against the great weight and
preponderance of the evidence that it is clearly wrong and unjust.” Id.In our analysis of Castro’s first issue, we addressed some of the evidence in favor of the
jury’s answer to the first question. As previously noted, Dr. Garcia testified that the 2019 MRI
interpreted by Dr. Sonnier showed no indication that would warrant the spinal surgery performed
by Dr. Siddiqui. Dr. Garcia also testified that Castro did not have a shoulder injury that would
require surgical treatment. None of the four pieces of evidence that Castro references speaks to
the causation question that the jury answered. Considering and weighing Dr. Garcia’s opinions
regarding the cause of Castro’s alleged injuries against the four pieces of evidence showcased by
Castro in her factual sufficiency challenge, we cannot say that the jury’s answer was so against the
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great weight and preponderance of the evidence that it is clearly wrong and unjust. See id.; see
also Gonzalez v. McAllen Med. Ctr., Inc., 195 S.W.3d 680, 681 (Tex. 2006) (per curiam) (noting
that “neither the appellate rules nor [the Texas Supreme Court] require detailed recitations of the
evidence when a factual sufficiency complaint is overruled.”).
We overrule Castro’s second issue.
C. Peremptory Challenges
In Castro’s third issue, she contends that the trial court abused its discretion by denying her
motion to equalize peremptory challenges. This ruling, according to Castro, led to a
disproportionate allocation of peremptory challenges among the two sides because there was no
antagonism between STC and Jones.
1. Standard of Review & Applicable Law
In a civil case tried in a district court, each party is entitled to six peremptory challenges
(sometimes referred to as “strikes”). TEX. R. CIV. P. 233. If there are multiple parties, the trial
court must decide before peremptory challenges are exercised whether the litigants aligned on the
same side are antagonistic with respect to issues that will be submitted to the jury. Id. If one of
the litigants makes a motion before peremptory challenges are exercised, the trial court must
“equalize the number of peremptory challenges so that no litigant or side is given an unfair
advantage as a result of the alignment of the litigants and the award of peremptory challenges.”
Id. Thus, the trial court must determine whether the litigants aligned on one side are antagonistic
to each other as to fact issues for the jury; if not, it should give each side the same number of
challenges. Garcia v. Cent. Power & Light Co., 704 S.W.2d 734, 736 (Tex. 1986).
Whether aligned parties are antagonistic to each other is a question of law that must be
determined after voir dire and before the parties exercise their strikes, based upon information
taken from the pleadings, pretrial discovery, voir dire, and other information brought to the court’s
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attention. Id. at 736–37. If the record supports a conclusion of antagonism between parties on one
side, the trial court must exercise its discretion and determine how to allocate strikes among the
parties. Patterson Dental Co. v. Dunn, 592 S.W.2d 914, 919 (Tex. 1979).
If we determine that the trial court erred in concluding that there was antagonism or in how
it allocated the parties’ peremptory challenges, we must then determine, based on an examination
of the entire record, whether that error resulted in a “materially unfair” trial. Garcia, 704 S.W.2d
at 737. “[I]n a case in which the complaining party failed to prove his cause of action or defense,
an error in allocating or equalizing strikes could not be said to have resulted in a materially unfair
trial.” Patterson Dental Co., 592 S.W.2d at 921. “On the other hand, when the trial is contested
and the evidence is sharply conflicting, the error results in a materially unfair trial without showing
more.” Id. In formulating its test for whether a trial was materially unfair, the court in Patterson
Dental observed:
Here, we have no statement of facts of the testimony at the trial or of the [v]oir dire
examination of the jury panel. It is abundantly clear, however, from the [forty-four]
special issues submitted, the ten-to-two verdict, and the absence of any motion for
summary judgment or motion for instructed verdict in the record before us, that the
trial was hotly contested. In these circumstances we hold that in the absence of a
statement of facts that demonstrates that the non-complaining party would
otherwise have been entitled to a judgment or that the case was not seriously
disputed on its facts, a disparity of strikes between sides of as much as four-to-one
results in a materially unfair trial as a matter of law.
Id. Whether a jury deadlocks during the course of its deliberations may be a sign that the trial was
seriously contested and the evidence was sharply conflicting. Lopez v. Foremost Paving, Inc., 709
S.W.2d 643, 645 (Tex. 1986) (per curiam) (“[T]he fact that the jury was deadlocked at one point
shows that the jury believed there was a sharp conflict in the evidence and that the trial was
seriously contested.”).
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2. Analysis
Castro argues that the error in denying her motion to equalize peremptory challenges
resulted in a materially unfair trial. Specifically, she argues that reversal and remand are necessary
under the second Patterson Dental test because the trial was hotly contested and the evidence was
sharply conflicting. As support for her position, Castro points to the motions for summary
judgment filed by both parties, the motions for directed verdict lodged and obtained by
Schlumberger, the seven-day length of the jury trial, the “vigorous cross-examination” imposed
on some of the witnesses, and the “competing causation theories.”
Schlumberger responds by arguing that, even if the trial court erred, the error was harmless
under the first Patterson Dental test because Castro failed to prove her cause of action. In support
of its argument, Schlumberger points to Castro’s failure to: (1) appeal the trial court’s granting of
STC’s directed verdict; (2) present reliable evidence linking Jones’s conduct to the cause of her
alleged injuries in the trial court; and (3) convince us that the trial court erred in excluding the
causation opinions of Dr. Siddiqui and Dr. Gutzman. Schlumberger also highlights that the jury
deliberated for less than an hour before returning a unanimous verdict. Cf. Lopez, 709 S.W.2d at
645.
Assuming, without deciding, that the trial court erred in overruling Castro’s motion to
equalize peremptory challenges, Castro has failed to establish that the error, if any, resulted in a
materially unfair trial. Unlike in Patterson Dental, we have before us the reporter’s record of the
trial testimony and voir dire. Patterson Dental, 592 S.W.2d at 921. Beyond highlighting the
existence of motions for directed verdict, Castro fails to explain how the trial court erred in
granting STC’s motions for directed verdict on her gross negligence claim and theories of
negligent hiring, training, and supervision. See City of Keller v. Wilson, 168 S.W.3d 802, 823
(Tex. 2005) (holding that standard of review for legal sufficiency challenge applies to review of
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directed verdict). In light of the harm analysis formulated by Patterson Dental, the robust record
before us, and Castro’s failure to convincingly assail the directed verdicts that the trial court
granted against her, we cannot conclude that STC’s filing of motions for directed verdicts are an
indication that the evidence was sharply conflicting for the purposes of a harm analysis.
Castro’s reliance on the length of the jury trial, her general assertion that some of the
witnesses were subjected to “vigorous cross-examination,” and that the trial included “competing
causation theories” to demonstrate harm are all equally unavailing. The length of the trial alone
does not intrinsically indicate that the evidence was sharply conflicting. Relatedly, Castro does
not specifically reference any “vigorous cross-examination.” Lastly, Castro’s contention that the
trial included “competing causation theories” fails in light of our holding that the trial court did
not err in granting Schlumberger’s motions to limit the causation opinions of Dr. Siddiqui and Dr.
Gutzman and denying Castro’s motion to limit the testimony of Dr. Sonnier and Dr. Garcia. Cf.
Moore v. Altra Energy Tech., Inc., 321 S.W.3d 727 (Tex. App.—Houston [14th Dist.] 2010, pet.
denied) (rendering judgment on a claim that was supported by legally insufficient evidence and
remanding the remainder of the case for a new trial after concluding that trial court erred in finding
antagonism among the appellants’ opposing parties); “Y” Propane Serv., Inc. v. Garcia, 61
S.W.3d 559, 564–70 (Tex. App.—San Antonio 2001, no pet.) (denying appellant’s legal
sufficiency challenge and then remanding case for a new trial after concluding that trial court erred
in finding no antagonism between plaintiffs and a codefendant).
We overrule Castro’s third issue.
III. CONCLUSION
We affirm the trial court’s judgment.
Rebeca C. Martinez, Chief Justice
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