Summary
holding no abuse of discretion in admitting testimony of witnesses who were identified more than twenty months prior to trial and who were deposed before trial
Summary of this case from Walker v. VernonOpinion
No. 04-04-00224-CV
Delivered and Filed: July 27, 2005.
Appeal From the 229th Judicial District Court, Duval County, Trial Court No. Dc-01-35, Honorable Alex W. Gabert, Judge Presiding.
Affirmed.
Sitting: Karen ANGELINI, Justice, Sandee Bryan MARION, Justice, Phylis J. SPEEDLIN, Justice.
MEMORANDUM OPINION
Carmen Garza, Individually and as Executrix of the Estate of Guadalupe R. Garza, Jr., Guadalupe R. Garza, III, Petra Balboa, Rosa Garza and Jesse Garza, appeal the judgment rendered in favor of the Defendants Bernardo Perez and the Texas Mexican Railway Company. Appellants raise five issues for our review. We affirm the judgment of the trial court.
BACKGROUND
Guadalupe R. Garza, Jr., died due to injuries he sustained when his truck collided with a train at an unmarked railroad crossing. On the day of the accident, Garza was hired by Tony Canales to install a septic system on Canales's ranch in Duval County, Texas. After leaving the septic system work site at approximately 10:30 a.m. on April 5, 2000, Garza was driving his pickup truck along a ranch road when he arrived at the railroad crossing. A railroad locomotive owned and operated by the Texas Mexican Railway Company collided with Garza's truck. Garza died shortly after the collision.
As a result, Plaintiffs Carmen Garza, Individually and as Executrix of the Estate of Guadalupe R. Garza, Jr., Guadalupe R. Garza, III, Petra Balboa, Rosa Garza and Jesse Garza, sued Defendants Tony Canales, Bernardo Perez, and the Texas Mexican Railway Company for negligence, premises liability, wrongful death and survival for unsafe conditions at a crossing of railroad tracks and a private road. The Plaintiffs contend that Perez and the Texas Mexican Railway Company were negligent for the following reasons: (1) failing to construct, maintain, repair and replace, as needed, railroad control devices at the crossing; (2) failing to sound a whistle or horn in such proximity to the crossing as to give warning of the train's approach; (3) approaching and transiting the crossing at an unreasonably high rate of speed; (4) failing to maintain a proper lookout for crossing traffic; and (5) failing to maintain its right of way so as to allow a vehicle crossing the tracks an unrestricted view of oncoming trains. In addition, the Plaintiffs contend that Canales was negligent for the following reasons: (1) maintaining an unsafe condition in connection with the railroad; (2) failing to maintain a clear view of the railroad from his property; (3) failing to close the gate that was placed at the crossing; (4) failing to place any warning signs or signals at the crossing; and (5) failing to warn the decedent Garza of the existence and location of the railroad track.
On October 14, 2004, this case proceeded to trial. Prior to the conclusion of the evidence, Plaintiffs and Defendant Tony Canales announced that all matters in controversy between them had been settled and compromised under an agreement calling for the settling parties to bear their own costs of court. On January 23, 2004, the trial court rendered judgment in favor of the Defendants Bernardo Perez and the Texas Mexican Railway Company. The Plaintiffs appeal the judgment of the trial court.
OUT-OF-COURT VIDEO AND AUDIO RECORDINGS
In their first issue, Appellants contend that the trial court erred in admitting four (4) separate video and audio recordings of oncoming trains and sound studies because the recordings were not substantially similar to the parameters and events of the collision. We disagree. When an experiment is conducted out-of-court and in the absence of opposing counsel, there must be a substantial similarity between the conditions depicted on the videotape and the actual event that is the subject of litigation. Fort Worth Denver Ry. Co. v. Williams, 375 S.W.2d 279, 281-82 (Tex. 1964). However, the conditions need not be identical. Id. at 282. When there is dissimilarity in the conditions, the admission of the experiment is within the trial court's discretion if the differences are minor or are explained to the jury. Id. (holding that the test for exclusion is whether the experiment would tend to confuse rather than aid the jury); compare Sosa By and Through Grant v. Koshy, 961 S.W.2d 420, 430 (Tex.App.-Houston [1st Dist.] 1997, writ denied) (finding no abuse of discretion where expert testified that video was substantially similar to conditions existing at time of accident and was cross-examined regarding differences between video and the actual event), and Garza v. Cole, 753 S.W.2d 245, 247 (Tex.App.-Houston [14th Dist.] 1988, writ ref'd n.r.e.) (finding no abuse of discretion because there was testimony explaining the differences between the video and the actual event), with Lopez v. Foremost Paving, Inc., 796 S.W.2d 473, 481 (Tex.App.-San Antonio 1990, writ dism'd) (finding trial court abused its discretion where video could have been perceived as a simulated re-enactment of the accident and there was no explanation to the jury of differences between the experiment and actual events).
Here, Appellants challenge the trial court's admission of videotapes sponsored into evidence by Dr. Marshek, an expert witness of the Appellees. Specifically, Appellants contend that the videos did not portray circumstances substantially similar to those of the collision because: (1) the train and surroundings in the video were different than those that Garza encountered on the day of the accident; and (2) the audio of the train horn in both the video and the sound tests was louder and clearer than what Garza would have been able to hear on the day of the accident. Appellants contend that the videotapes thus misled the jury and created a false impression that viewing and hearing the approaching train was unavoidable by the decedent.
The first two videotapes depict footage of a train approaching the crossing at which the accident took place. Both videotapes were taken from a position that Garza's vehicle would have traveled prior to the collision. One of the videotapes was taken at fifteen (15) feet from the crossing; the other was taken at thirty (30) feet from the crossing. The second two videotapes depict sound studies performed under Marshek's direction. The first of these tapes presents a view of a sound pressure gauge on the dashboard of a truck, with the engine running but the truck not moving, during which a horn was blown at varying distances from the test truck. The second tape depicts the train horn as heard from a truck traveling at 15 m.p.h. Marshek then explained the recorded measurements by referring to everyday examples, such as a factory, an orchestra and a conversation.
Here, we conclude that although the experimental conditions were not identical to those encountered by Garza, the trial court did not abuse its discretion in determining that they were substantially similar. The record further reflects that the dissimilarities between the video and audio recordings and the occurrence, which were minor, were explained to the jury. Here, Appellees' counsel testified that the videotaped experiment was not meant to be an exact duplication of the incident in which Garza was killed. Appellees' counsel explained to the jury that the train depicted in the videos was longer than the subject train. Appellees' counsel further explained that the surroundings were different in that the video did not depict a huisache bush that was present on the date of the accident With regard to Appellants' complaints concerning the audio in the tapes, Appellees' counsel explained to the jury that "we are going to turn the volume up," adding that in doing so, he was not attempting to simulate the volume of the horn. Thus, having sufficiently recognized and explained any dissimilarities between the experiments and the occurrence, the comparative differences raised by the Appellants affected the weight of the evidence, not its admissibility. See Garza, 753 S.W.2d at 247 (explaining that comparative differences go to the weight of the evidence rather than its admissibility).
Moreover, even assuming that the evidence was incorrectly admitted, we may reverse the judgment of the trial court only if the error was reasonably calculated to cause and probably did cause rendition of an improper judgment. See TEX. R. APP. P. 44.1(a); Gee v. Liberty Mut. Fire Ins. Co., 765 S.W.2d 394, 396 (Tex. 1989). Here, we do not find any purported error to be of such dimensions. At trial, Appellants were afforded the opportunity to cross-examine the witness on any dissimilarities in the video experiment. Moreover, the videotapes were not the only evidence bearing on the audibility and visibility of the train. Thus, having concluded that there was no harmful error, we overrule Appellants' first issue on appeal.
For example, passengers on the train testified that prior to the accident they heard the horn from inside the enclosed passenger cars. Similarly, both the Appellants and Appellees introduced into evidence scaled drawings and photographs of the intersection.
ADMISSION OF EVIDENCE
In their second issue, Appellants contend that the trial court abused its discretion by applying differing standards to the parties regarding the admission and exclusion of evidence. Specifically, Appellants complain that the trial court granted unreasonable leniency to the Appellees by permitting witnesses whom Appellees had failed to designate prior to the discovery deadline to testify despite no evidence of good cause; by granting Appellees leave to conduct discovery during trial; and by admitting the documents obtained from the discovery into evidence.
A. Witnesses Allowed to Testify
Appellants argue that the trial court erred in permitting the witnesses to testify over his objection that the Appellees failed to disclose their witnesses within the discovery deadline. See TEX. R. CIV. P. 193.6(a). The Appellees do not dispute that they failed formally to disclose their witnesses within the applicable time frame, but instead assert that the Appellants were not unfairly surprised by the identity of the witnesses. See TEX. R. CIV. P. 193.6(a)(2).
A party who fails timely to respond to a discovery request, or to supplement its response, shall not be entitled to offer testimony of a witness having knowledge of a discoverable matter unless the trial court (1) finds good cause sufficient to require admission, or (2) determines the other party will not be unfairly surprised or prejudiced. See TEX. R. CIV. P. 193.6(a). Whether the offering party met this burden is within the broad discretion of the trial court. Alvarado v. Farah Mfg. Co., 830 S.W.2d 911, 914 (Tex. 1992).
Here, implicit in the trial court's decision permitting the Appellees' witnesses to testify is a determination that there was good cause or no unfair surprise in the Appellees' late disclosure of witnesses. See Bellino v. Comm'n for Lawyer Discipline, 124 S.W.3d 380, 383-84 (Tex.App.-Dallas 2003, pet. denied) (holding that finding of unfair surprise was implicit in court's ruling). While Appellees did not formally disclose its list of witnesses until approximately two months after the deadline for discovery, the Appellants were informed of the identity of the Appellees' witnesses more than twenty months prior to their testimony being given. Further, Appellants deposed every such witness prior to trial and, in fact, had identified several of the witnesses as their own. Against this background, we conclude the record supports a finding that there was no unfair surprise in the admission of the evidence. Accordingly, the trial court did not abuse its discretion in permitting the Appellees' witnesses to testify, and we overrule this issue on appeal.
The record establishes that the deadline for discovery was February 15, 2002. Appellees formally disclosed its list of witnesses to the Appellants on April 11, 2002, and trial commenced on October 14, 2003.
B. Leave to Conduct Discovery
Appellants also argue that the trial court's decision to grant leave to the Appellees to conduct discovery during the trial was both unfair and unduly prejudicial. However, Appellants made no objection at trial and have complained of no error in the trial court's rulings on appeal. Instead, Appellants complain generally regarding what they perceive as the disparate treatment of the parties by the trial court. Having failed to show any error, we overrule this issue on appeal.
EXPERT TESTIMONY
In their third issue, Appellants contend that the trial court should not have admitted expert testimony at trial regarding Garza's state of consciousness following the accident because the opinion testimony ran contrary to nationally recognized medical standards. We disagree.
Here, the issue of consciousness was addressed by the parties in determining the pain and suffering, if any, Garza experienced following the collision. On this matter, the trial court admitted the videotaped deposition of Dr. Edward A. Metz, a medical doctor who also was a passenger on the train the day of the accident. In his deposition, Dr. Metz testified that he had examined Garza within moments of the collision. According to Metz, Garza was unresponsive to pain or verbal stimuli. In addition, Garza's eyes were closed and his arms were flaccid. Based upon his personal observation and professional experience, Dr. Metz concluded that Garza was not conscious and never regained consciousness following the initial impact with the train.
On appeal, Appellants argue that Dr. Metz's testimony violated Robinson standards for the admission of expert opinion testimony because Garza's vital signs following the accident did not conform to the classic signs of unconsciousness in medicine. See E.I. du Pont de Nemours Co. v. Robinson, 923 S.W.2d 549, 556-57 (Tex. 1995). However, as Metz explained, the signs of consciousness vary with the age of the person, and Garza showed signs of unconsciousness appropriate to his age. Furthermore, because other witnesses testified that Garza was unconscious following the accident and because the jury found no liability, the Appellants were not prejudiced by Metz's testimony regarding the decedent's pain and suffering.
Garza exhibited a decreasing pulse rate and decreasing blood pressure following the accident. Dr. Metz acknowledged that medical literature indicates that blood pressure typically increases as the intracranial pressure increases; however, he explained that these symptoms are usually only seen in children or persons younger than 20-25.
Under Robinson, in determining whether the evidence is reliable, the judge must decide whether the scientific evidence is grounded on methods and procedures of science, rather than mere conjecture. See E.I. du Pont de Nemours Co. v. Robinson, 923 S.W.2d 549, 557 (Tex. 1995). In making that decision, the Court offered a list of six non-exclusive factors: (1) the extent to which the theory has been tested; (2) the degree to which the technique depends upon the subjective interpretation of the expert; (3) whether the theory has been subjected to peer review or publication; (4) the potential rate of error; (5) whether the technique has been generally accepted in the relevant scientific community; and (6) the non-judicial uses which have been made of the technique or theory. Id.
JURY CHARGE
In their fourth and fifth issues, Appellants contend that the trial court erred in submitting its charge to the jury. To reverse on a jury charge error, the Appellants must show harmful error. See Boatland of Houston, Inc. v. Bailey, 609 S.W.2d 743, 749-50 (Tex. 1980). Error in the jury charge is reversible only if it probably caused the rendition of an improper judgment or probably prevented the appellant from properly presenting the case on appeal. See TEX. R. APP. P. 44.1(a); Timberwalk Apartments, Partners, Inc. v. Cain, 972 S.W.2d 749, 756 (Tex. 1998).
A. "Unwavering Approach" Instruction
In their fourth issue, Appellants contend that the trial court erred in failing to submit a jury instruction on an "unwavering approach" theory of liability. In order to challenge the trial court's failure to submit an instruction to the jury, however, the complaining party must request in writing and tender to the court a substantially correct wording of the instruction. See TEX. R. CIV. P. 278; Naegeli Transp. v. Gulf Electroquip, Inc., 853 S.W.2d 737, 739 (Tex.App.-Houston [14th Dist.] 1993, writ denied). When a party does not submit to the trial court requested instructions in substantially correct form, he waives error. Naegeli Transp., 853 S.W.2d at 739. Here, because Appellants failed to provide the trial court with the instruction they claim should have been submitted, they are precluded from raising such an objection on appeal. Accordingly, we overrule Appellants' fourth issue.
Appellants claim that because the decedent's truck was on an "unwavering approach" to the railroad crossing, the train had a "duty to slow or stop the train to avoid a specific, individual hazard." See CSX Transp., Inc. v. Easterwood, 507 U.S. 658 (1993).
B. Comment on the Weight of the Evidence
In their fifth issue, Appellants contend that the trial court committed harmful error by commenting on the evidence and the weight of the evidence. Specifically, Appellants complain about the trial court's instruction to the jury to disregard any implication that the train was operating at an excessive rate of speed when the accident occurred. However, this instruction was neither a comment on the evidence nor on the weight of the evidence. See Hogue v. Kroger Store No. 107, 875 S.W.2d 477, 481 (Tex.App.-Houston [1st Dist.] 1994, writ denied) (holding trial court's instruction to jury to disregard inadmissible evidence was proper). Rather, the statement was merely part of the ruling by the trial court with regard to the evidence the trial court properly ruled was inadmissible. Accordingly, we overrule Appellants' final issue on appeal.
In CSX Transportation, Inc. v. Easterwood, the United States Supreme Court held that speed limits imposed by federal regulation on freight and passenger trains preempted any common-law claim that the conductor, while operating train at speed within federal limits, was negligently proceeding too fast under circumstances so as to be liable for the motorist's death. Easterwood, 507 U.S. 658, 675-76 (1993). Here, because the train indisputably was operated within the federally imposed limits, any negligence claim based on the train's speed was preempted by federal law.
Nevertheless, Appellants violated the court's order that the parties not comment on the issue of speed when, during direct examination, Appellants' counsel asked Cristobal Perez whether he told Petra Balboa, Garza's daughter, following the accident that, "Yeah, I can't believe this happened. Those trains go through there like a bat out of hell." When Appellants revisited the issue, Appellees again objected to the improper argument of the Appellants, and the court indicated that it would give an instruction that the jury disregard the issue in reaching its verdict.
CONCLUSION
Having overruled all issues on appeal, we affirm the judgment of the trial court.