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explaining that there was no adverse ruling to review because court sustained objection to question
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No. 10-04-00262-CV
Opinion delivered and filed February 15, 2006.
Appeal from the 1-a District Court, Jasper County, Texas, Trial Court No. 24142.
Affirmed.
Before Cheif Justice GRAY, Justice VANCE, and, Justice REYNA. (Chief Justice GRAY concurring with note).
("Concurring note: In issue three, Shaw tries to link three complaints about violations of his motion in limine and argue cumulative effect. The problem with this issue is that Shaw did not present any issue, as such, about the alleged repeated violations of the motion in limine to the trial court. And it is well settled that a violation of a motion in limine, even repeated violations, is not trial court error. This is because it is not error until the trial court takes, or refuses to take, some action in response to a request from counsel. I would overrule the issue because, as presented, it presents nothing for review. The majority gratuitously reviews the three alleged violations, individually, which is unnecessary for a disposition of this issue. I concur only in the judgment affirming the trial court's judgment.")
MEMORANDUM OPINION
Marcus Reed Shaw filed suit for personal injuries he suffered in a collision with a tractor operated by Robert Edward Cochran and owned by Triple J Mowers, Inc. Cochran counterclaimed for personal injuries he suffered in the collision. A jury found in Cochran's and Triple J's favor. Shaw contends in three issues that: (1) the court abused its discretion by admitting the testimony of the defendants' expert witness; (2) the verdict is contrary to the great weight and preponderance of the evidence; and (3) the court failed to adequately address the defendants' "repeated violations" of Shaw's motion in limine. We will affirm.
Background
The collision occurred on F.M. 1004, a two-lane highway with unimproved shoulders, in September 2002. At the time, Triple J was under contract with the Texas Department of Transportation to mow the right-of-way along this highway. Cochran, a Triple J employee, was mowing the right-of-way on the date in question.
A number of warning signs were posted in the area, although the parties dispute the number and location of the warning signs. Shaw testified that he saw warning signs in the area but not in the immediate vicinity where his minivan collided with the tractor Cochran was driving.
It is not disputed that Cochran's tractor was in the southbound lane of F.M. 1004 at the time of the collision or that Shaw was driving in a southerly direction on the highway. The dispute centers on whether Cochran pulled out in front of Shaw who was driving 50 or 60 miles per hour or whether Cochran was in the road when Shaw crested a hill a sufficient distance away (about 1000 feet) that Shaw could have stopped in time to avoid the collision.
The DPS trooper who responded to the accident concluded that Cochran was at fault. The trooper's supervisor agreed with his conclusion. A Dallas police officer retained as an expert by the defendants reached the opposite conclusion.
The jury agreed with the defendants' expert, awarded Cochran $74,900 in damages, and found that Shaw should take nothing. The court rendered judgment in accordance with the jury's verdict.
Expert Testimony
Shaw contends in his first issue that the court abused its discretion by admitting the testimony of the defendants' expert witness, Dudley Marchetti, because Marchetti was not shown to be qualified and his opinion was not shown to be reliable.
An expert witness must be qualified, and the witness's opinion testimony must be relevant and reliable. Volkswagen of Am., Inc. v. Ramirez, 159 S.W.3d 897, 904 (Tex. 2004). We review a trial court's decision to admit or exclude an expert witness's testimony under an abuse-of-discretion standard. See Guadalupe-Blanco River Auth. v. Kraft, 77 S.W.3d 805, 807 (Tex. 2002); Tex. Elec. Coop. v. Dillard, 171 S.W.3d 201, 204 (Tex.App.-Tyler 2005, no pet.); In re J.B., 93 S.W.3d 609, 619 (Tex.App.-Waco 2002, pet. denied).
Generally, a law enforcement officer will not qualify as an expert witness solely because of the officer's position. Pilgrim's Pride Corp. v. Smoak, 134 S.W.3d 880, 891 (Tex.App.-Texarkana 2004, pet. denied); DeLarue v. State, 102 S.W.3d 388, 396 (Tex.App.-Houston [14th Dist.] 2003, pet. ref'd); Gainsco County Mut. Ins. Co. v. Martinez, 27 S.W.3d 97, 104 (Tex.App.-San Antonio 2000, pet. dism'd by agr.). To establish a witness's expert qualifications, the party calling the witness must show "that the expert has `knowledge, skill, experience, training, or education' regarding the specific issue before the court which would qualify the expert to give an opinion on that particular subject." Roberts v. Williamson, 111 S.W.3d 113, 121 (Tex. 2003) (quoting Broders v. Heise, 924 S.W.2d 148, 153 (Tex. 1996) (quoting TEX. R. EVID. 702))); see also Pilgrim's Pride, 134 S.W.3d at 891; DeLarue, 102 S.W.3d at 396; Gainsco County Mut., 27 S.W.3d at 104.
Once an expert's qualifications are established, the witness's opinion testimony must be shown to be relevant and reliable. The Supreme Court has identified six non-exclusive factors to consider in evaluating the reliability of an expert's testimony:
1. the extent to which the theory has been or can be tested;
2. the extent to which the technique relies upon the subjective interpretation of the expert;
3. whether the theory has been subjected to peer review and/or publication;
4. the technique's potential rate of error;
5. whether the underlying theory or technique has been generally accepted as valid by the relevant scientific community; and
6. the non-judicial uses which have been made of the theory or technique.
Volkswagen of Am., 159 S.W.3d at 905 (citing E.I. du Pont de Nemours Co. v. Robinson, 923 S.W.2d 549, 557 (Tex. 1995)).
As stated, these factors are "non-exclusive." They "cannot be used with certain kinds of expert testimony. However, there still must be some basis for the opinion offered to establish its reliability. In some situations, the witness's skill and experience alone may provide a sufficient basis for the expert's opinion." Id. (citations omitted).
According to the testimony, Marchetti is an accident investigator with the Dallas Police Department. He has been employed with the Dallas Police Department for twenty-three and a half years. He is currently assigned to the traffic division, where his duties include accident investigation and reconstruction. He has been assigned to that division for twenty years, and during his employment with the department has been involved in the investigation of more than 10,000 accidents.
Marchetti attended three different training courses for accident investigation and/or accident reconstruction. Two of the courses specifically involved accident reconstruction. The last one, sponsored by Texas AM University in conjunction with local law enforcement agencies, was a two-week course conducted in 1999. The other course involving accident reconstruction was in-house training with the Dallas Police Department. Marchetti has also taught about twenty courses involving accident reconstruction at the police academy conducted by the Dallas Police Department. Marchetti has testified as an expert in more than 500 trials on topics ranging from intoxilyzer operation to accident investigation. With regard to accident investigation and/or reconstruction, Marchetti has testified in approximately twenty-five civil trials about his investigation of an accident in which he had been the primary investigating officer and in approximately twenty-five civil trials in which he had been retained as an expert in accident reconstruction.
Shaw compares Marchetti's qualifications to those of the officer who was held to be not qualified to testify as an expert in Pilgrim's Pride. 134 S.W.3d at 891-92. In that case however, the officer "testified that he was not qualified to give an expert opinion on accident reconstruction." He had been a police officer for less than two years and had only a single one-week course on accident reconstruction. Id. at 892.
Unlike the officer in Pilgrim's Pride, Marchetti considers himself qualified to testify as an expert on accident reconstruction. His training and experience in accident reconstruction far outweigh the training and experience of the officer in Pilgrim's Pride. Accordingly, we cannot say that the court abused its discretion by concluding that Marchetti was qualified to provide expert testimony on accident reconstruction. See Tex. Elec. Coop., 171 S.W.3d at 205; Pena v. State, 155 S.W.3d 238, 245-46 (Tex.App.-El Paso 2004, no pet.); DeLarue, 102 S.W.3d at 396-97.
Shaw does not challenge the theory or technique underlying Marchetti's opinion. Rather, he contends that Marchetti's opinion is based on unreliable foundational data. See Helena Chem. Co. v. Wilkins, 47 S.W.3d 486, 499 (Tex. 2001); Tex. Elec. Coop., 171 S.W.3d at 204-05; Wiggs v. All Saints Health Sys., 124 S.W.3d 407, 412 (Tex.App.-Fort Worth 2003, pet. denied).
Shaw states that Marchetti's "methodology [is] unreliable" in the "Summary of the Argument" portion of his brief. However, it is clear that Shaw challenges the data on which Marchetti relied to draw his ultimate conclusion, rather than the methodology Marchetti employed.
DPS Trooper Rick Reynolds, the officer who investigated the accident, concluded that Cochran was driving across the southbound lane of the highway at the time of the collision. Reynolds based this conclusion in part on (1) the fact that the tractor debris ended up on or near the shoulder of the northbound lane after the collision and (2) the absence of any gouge marks in the pavement where he determined the area of impact to be. As Reynolds explained, if Cochran had been stationary or backing up, the tractor would have been pushed to the right rather than to the left and "deep indentations" into the pavement would have been left at the point of impact.
The force of the impact broke the tractor in half and caused the mower to break loose from the rear of the tractor.
Marchetti essentially agreed with Reynolds that the location of the tractor after the collision and the existence of gouge marks in the pavement would indicate whether the tractor was moving at the point of impact and in what direction. Marchetti went to the scene of the collision twice during his investigation. On his first visit in December 2003, Marchetti found no sign of gouge marks in the pavement. Marchetti returned to the site in February 2004 and discovered two gouge marks in the area where the collision occurred.
Marchetti conceded that he could not state with certainty that the gouge marks resulted from the collision. Rather, Marchetti explained that their location was "consistent with where the accident occurred." Marchetti relied on these gouge marks and several other items of data to conclude that Cochran was in the process of backing the mower up to a culvert at the time of the collision. Other data Marchetti relied on included: testimony that the final resting point for the rear end of the tractor was near the centerline of the highway; testimony that a Triple J employee found the tractor gearshift to be in reverse after the collision; Trooper Reynolds's conclusion that the point of impact was about twenty feet south of the culvert; and the turning radius for the tractor and mowing implement.
Shaw challenges the reliability of Marchetti's foundational data because: (1) Reynolds never observed gouge marks in the area of impact; (2) Marchetti himself did not locate these gouge marks the first time he went to the site of the collision; (3) Marchetti could not say with certainty that the gouge marks were left by the collision in question; (4) even if the rear of the tractor was near the centerline, its position in the northbound lane contradicts Marchetti's conclusion that the tractor was backing; and (5) Marchetti's opinion changed at least twice between the time of his initial consultation and his testimony at trial.
Shaw compares Marchetti's testimony about the gouge marks to that of experts in Schaefer v. Texas Employers' Insurance Ass'n, 612 S.W.2d 199 (Tex. 1980), and in Burroughs Wellcome Co. v. Crye, 907 S.W.2d 497 (Tex. 1995). We hold that each of these cases is distinguishable on its facts.
In Schaefer, a physician testified that in his opinion the plaintiff contracted tuberculosis at work because the plaintiff worked in soil contaminated by bird droppings. 612 S.W.2d at 202-03. However, he acknowledged that no soil testing had been done to confirm the presence of "the specific strain of bacteria from which Schaefer suffer[ed]." Id. at 203. The physician also acknowledged that it was not known whether Schaefer suffered from an avian-borne bacterial infection. Id. at 203-04. The Court concluded that the physician's stated opinion that (1) Schaefer suffered from an avian-borne bacterial infection and (2) the soil was contaminated with the particular strain of bacteria with which the physician assumed Schaefer was infected was "not based upon reasonable medical probability but . . . on mere possibility, speculation, and surmise." Id. at 204-05.
In Burroughs Wellcome, a physician testified "that Polysporin spray caused Crye to suffer from frostbite." 907 S.W.2d at 499. The physician based his opinion on an assumption "that there was no redness on Crye's foot after the spray was applied." Id. However, the physician apparently never personally examined Crye, and all of Crye's witnesses who testified to this subject testified that her foot was red after the spray was applied. Id. The Court held, "When an expert's opinion is based on assumed facts that vary materially from the actual, undisputed facts, the opinion is without probative value and cannot support a verdict or judgment." Id.
Here however, Marchetti testified that he went to the scene of the collision and personally observed the gouge marks in question. He did not assume that gouge marks existed. Thus, there is evidence in the record that the gouge marks in fact existed. Therefore, the facts of this case are different than the facts presented in Schaefer and Burroughs Wellcome.
The fact that Reynolds never observed gouge marks in the area of impact and that Marchetti himself did not observe them on his first visit to the site and the fact that Marchetti could not say with absolute certainty that the gouge marks were left by the collision in question presented fact issues for the jury to resolve. Those fact issues were whether the gouge marks existed as claimed by Marchetti and if so, whether they were left by the collision in question. These issues go to the weight of Marchetti's testimony, not its admissibility. See Sosa v. Koshy, 961 S.W.2d 420, 430 (Tex.App.-Houston [1st Dist.] 1997, pet. denied). The jury apparently resolved these issues in the defendants' favor. See City of Keller v. Wilson, 168 S.W.3d 802, 820 (Tex. 2005) ("It is the province of the jury to resolve conflicts in the evidence.").
Shaw also contends that Marchetti's opinion was not reliable because, even if the rear of the tractor was near the centerline, its position in the northbound lane contradicts Marchetti's conclusion that the tractor was backing. Shaw cites General Motors Corp. v. Sanchez for the proposition that "when the only facts in evidence contradict the assumption of the expert upon which his opinion is based, his opinion is `without probative value and cannot support a verdict or judgment.'" 997 S.W.2d 584, 591 (Tex. 1999) (quoting Burroughs Wellcome, 907 S.W.2d at 499).
Here as in General Motors however, "there is more to the evidence than an expert's bald assertion that" Cochran's tractor was stationary or backing. Cf. id. Marchetti explained that his reconstruction of the accident began with Shaw's statement that the tractor was in the right-of-way and "right next to" the highway when Shaw came over the hill. Shaw testified that the tractor "suddenly" turned in front of him.
Marchetti rejected Shaw's version of the events for three primary reasons. First, Marchetti explained that the tractor drives too slowly (particularly with a batwing mower attached) to "suddenly" pull out on the highway. Second, Marchetti examined the combined length of the tractor and mower (29 feet), the distance between a culvert and the generally agreed point of impact (about 20 feet), and the turning radius of the tractor with batwing mower attached and concluded that the tractor could not turn so sharply or within such a short distance from the culvert. And third, the tractor was in reverse immediately after the collision.
Marchetti considered these factors along with the resting place of the cab portion of the tractor near the centerline of the highway (as testified to by a Triple J employee) and concluded that Cochran must have been backing the mower up to the south side of the culvert at the time of the collision rather than pulling out in front of Shaw. Marchetti's conclusion was also supported by a photograph taken by Trooper Reynolds which shows that a portion of the right-of-way immediately adjacent to the south side of the culvert had not yet been mowed.
Because Marchetti cited numerous facts to support his conclusion, we cannot say that "the only facts in evidence contradict the assumption of the expert upon which his opinion is based." See id.
Finally, Shaw contends that Marchetti's opinion was not reliable because his opinion changed. However, Marchetti explained why his opinion changed. This is essentially an issue of credibility which the jury apparently resolved in the defendants' favor. Wilson, 163 S.W.3d at 819 ("Jurors are the sole judges of the credibility of the witnesses and the weight to give their testimony.").
Accordingly, we cannot say that the court abused its discretion by permitting Marchetti to testify as an expert. Thus, we overrule Shaw's first issue.
Factual Insufficiency
Shaw contends in his second issue that the jury's failure to find that Cochran was negligent is against the great weight and preponderance of the evidence.
When we are called upon to review the factual sufficiency of the evidence to support a jury's failure to find a fact on which the challenging party bears the burden of proof we must sustain the failure to find unless, considering all the evidence, the finding is so contrary to the great weight and preponderance of the evidence as to be manifestly unjust. If we reverse a trial court's judgment for factual insufficiency, regardless of who had the burden of proof on the issue, we must detail all the evidence relevant to the issue and clearly state why the jury's finding is so against the great weight and preponderance of the evidence that it is manifestly unjust.
Checker Bag Co. v. Washington, 27 S.W.3d 625, 633-34 (Tex.App.-Waco 2000, pet. denied) (citations omitted).
Shaw argues that the jury's failure to find that Cochran pulled out in front of him is contrary to the great weight and preponderance of the evidence because:
• Shaw himself has consistently maintained that Cochran pulled out in front of him;
• Trooper Reynolds concluded that Cochran pulled out in front of Shaw;
• Reynolds's supervisor concluded that Cochran pulled out in front of Shaw;
• there were no other witnesses to the accident;
• it is undisputed that the tractor was in the road at the time of the collision;
• "[i]t is undisputed that Shaw was attempting to move left and avoid the tractor at the time of impact";
• there is no evidence that Shaw was speeding; and
• there is no evidence that Shaw "was tired, sleepy, or impaired" at the time.
However, we disagree with Shaw's one-sided assessment of the evidence. As discussed, Marchetti provided plausible expert opinion testimony which contradicted Shaw's version of the events and the opinions of Reynolds and his supervisor. If, as Marchetti opined, the tractor was in the road when Shaw came over the hill, then (as agreed by both sides' experts) Shaw would have had more than enough time to stop and avoid the collision.
Shaw testified that he had worked all night the night before the collision and had had less than two hours' sleep. Because of this, the defendants contend he was sleepy or inattentive as he drove. Thus, the record does contain evidence that Shaw "was tired, sleepy, or impaired." The defendants' theory that Shaw was sleepy or inattentive is just as consistent with the absence of skid marks and Shaw's conduct in suddenly turning to the left in an attempt to avoid the collision as is Shaw's explanation that Cochran "suddenly" pulled out in front of him.
For these reasons, we cannot say that the jury's failure to find that Cochran was negligent "is so contrary to the great weight and preponderance of the evidence as to be manifestly unjust." See Checker Bag Co., 27 S.W.3d at 633. Accordingly, we overrule Shaw's second issue.
Motion in Limine
Shaw contends in his third issue that the court failed to adequately address the defendants' "repeated violations" of his motion in limine.
Prior to trial, the court granted Shaw's motion in limine which among other things provided that the defendants should not offer any evidence regarding: (1) the Social Security Administration's denial of Shaw's application for disability benefits; (2) Shaw's blood sugar level; or (3) an alleged "near-miss" incident between Shaw and another tractor-mower earlier on the date in question without first approaching the bench and obtaining a ruling outside the presence of the jury.
Shaw references the defendants' question regarding the denial of his application for disability benefits and characterizes the question as a violation of the motion in limine in the statement of facts portion of his brief. However, Shaw does not refer to this alleged violation in the argument portion of his brief. Nevertheless, Appellees address the propriety of this question in their brief. Therefore, we shall do likewise.
It appears that the defendants broached the subject of the denial of Shaw's claim for disability benefits when cross-examining him regarding the extent of his injuries and a pre-existing back injury. However, the court sustained Shaw's objection to this question. Therefore, because Shaw failed to obtain an adverse ruling with regard to this question, he failed to preserve his complaint that this question violated the court's ruling on the motion in limine. See TEX. R. APP. P. 33.1(a)(2); Pilgrim's Pride, 134 S.W.3d at 897.
With regard to the defendants' questioning of Shaw regarding his elevated blood sugar level, Shaw did not object to these questions until after the defendants completed their cross examination, Shaw's counsel completed a redirect examination, and the defendants completed their re-cross examination. Therefore, because Shaw failed to make a prompt objection to these questions, he failed to preserve his complaint that these questions violated the court's ruling on the motion in limine. See TEX. R. APP. P. 33.1(a)(1).
Finally, Shaw complains that the court abused its discretion by overruling his hearsay objection when Cochran's co-worker testified that he told Trooper Reynolds "about [Shaw's] actions earlier." When the complained-of statement is viewed in context however, it appears that the defendants were trying to establish through this witness's testimony that Trooper Reynolds failed to conduct an adequate investigation and had already decided that Cochran was at fault before gathering all the pertinent information.
Although Shaw includes the testimony about which he objects as another example of the defendants' allegedly "repeated violations" of his motion in limine, he did not object to this testimony on this basis at trial. Therefore, we limit this discussion to the hearsay objection which Shaw made at trial and which he includes as a basis for reversal in his brief. See Hoxie Implement Co. v. Baker, 65 S.W.3d 140, 151 (Tex.App.-Amarillo 2001, pet. denied) (to preserve issue for appellate review, trial complaint must comport with appellate complaint).
A: He didn't want to hear anything we had to say.
Q: Did you offer that information to him?
A: No.
Q: Did you try to talk to him about it?
A: Yeah, I tried to talk to him about the scenario of the — of the wreck. He was gathering his information and was telling us that Robert had to pull in front of him, and I was going, no, he didn't. Doesn't mean that the guy was looking, you know, does not mean that he was looking down the road. We proceeded to tell him about this guy's actions earlier.
[hearsay objection]
Thus, the court may have determined that the complained-of testimony was offered to prove that this statement and others were made to Reynolds but ignored and not to prove the truth of the matters asserted therein. See TEX. R. EVID. 801(d); Ash v. Hack Branch Distrib. Co., 54 S.W.3d 401, 411 (Tex.App.-Waco 2001, pet. denied). Accordingly, we cannot say that the court abused its discretion by overruling the objection. Therefore, we overrule Shaw's third issue.
We affirm the judgment.