Opinion
No. 05-15-01551-CV
08-21-2017
JANETTE HAMPTON, Appellant v. BARBARA MISKELL, Appellee
On Appeal from the County Court at Law No. 5 Dallas County, Texas
Trial Court Cause No. CC-13-02076-E
MEMORANDUM OPINION
Before Justices Francis, Brown, Whitehill
Opinion by Justice Brown
Appellant Janette Hampton sued appellee Barbara Miskell to recover damages for injuries she sustained in a motor vehicle accident. A jury found Miskell's negligence proximately caused the accident, but awarded Hampton only a fraction of the damages she sought. In a single issue, Hampton contends the trial court abused its discretion by allowing expert testimony about the speed Miskell's vehicle was travelling at the time of impact. For the following reasons, we affirm.
On April 4, 2012, Hampton was stopped behind several cars on an exit ramp of Interstate 635 in Dallas when Miskell struck the rear of Hampton's vehicle. When asked to describe the impact, Hampton testified, "It was really hard, so I did think she hit me going pretty fast." Hampton acknowledged the only visible damage to her vehicle was a dent on her trunk and crackling paint on her bumper.
Hampton said the force of the impact caused her arm to fling back and her elbow to hit her car door. Hampton testified that after the accident, she began experiencing pain in her left shoulder and elbow. She underwent physical therapy, but it failed to alleviate the pain. As a result, Hampton went to Dr. Thomas Binzer, an orthopedic surgeon who diagnosed Hampton with a torn rotator cuff and a pinched ulnar nerve. Both of these injuries required Hampton to undergo several surgeries.
Hampton said that, in 2003, Binzer had also performed shoulder surgery on her left rotator cuff. She claimed that, after surgery, she had no problems with her rotator cuff until the 2012 accident. Hampton admitted that, at her deposition, she claimed she had never had any problems with her left shoulder until the 2012 accident. She also claimed Binzer had performed the 2003 surgery on an asymptomatic injury.
Hampton also acknowledged that, during her deposition, she testified that she did nothing from 2003 until the 2012 motor vehicle accident that would have stressed, strained, or injured her left shoulder. At trial, however, she admitted that, in 2009, she fell on her left side, after which she complained of left shoulder pain. In 2009, Hampton had an arthrogram that showed she had torn her left rotator cuff. Hampton denied the 2009 injury caused her any problems.
Hampton's orthopedic surgeon, Thomas Binzer, testified by deposition that he performed surgery on Hampton's left shoulder in 2003 to repair a torn rotator cuff. According to Binzer, he performed the surgery because the injury was causing Hampton pain.
Binzer testified that, in 2012, Hampton told him she had injured her shoulder in a low-impact car accident. In 2012, Binzer ordered another arthrogram, that showed Hampton had a torn rotator cuff. Binzer acknowledged that the tear shown on Hampton's 2012 arthrogram looked similar to the one shown on her 2009 arthrogram. Binzer testified that, in his opinion, Hampton's shoulder problems were related to the 2012 motor vehicle accident. Binzer said his opinion was based on what Hampton had told him.
Barbara Miskell testified and admitted that she rear-ended Hampton. Miskell said the accident was "just a bump" and there was no reason for Hampton to have suffered any injuries.
Miskell called Richard Baratta, a licensed engineer and certified accident reconstructionist, to provide expert testimony about the force of the collision. Before trial, Miskell designated Baratta to provide testimony that: (1) Hampton's vehicle experienced a forward speed of five miles per hour or less as a result of the accident; and (2) shoulder injuries were not consistent with the mechanics of the accident.
Hampton filed a motion to exclude Baratta's testimony. After a hearing, the trial court granted Hampton's motion to exclude only with respect to Baratta's opinion that a shoulder injury was not consistent with the mechanics of the collision.
At trial, the court summarily overruled Hampton's objection to Baratta testifying as an expert witness. Before the jury, Baratta testified that, in his opinion, Miskell was travelling less than five miles per hour at the time of the collision. Baratta said he based this opinion on: (1) photographs showing damage to both cars after the collision; (2) crash testing performed on a prior model of Hampton's vehicle; and (3) a comparison of the bumpers of the prior model and the model Hampton was driving at the time of the accident.
During closing arguments, Miskell reasoned that Hampton's claim her shoulder and elbow injuries were caused by the 2012 collision was not credible. Miskell argued that at most, Hampton suffered a minor strain as a result of the accident.
The jury awarded Hampton $4,758.38 in medical expenses and $500.00 for pain and suffering. Hampton appeals. In a single issue, Hampton contends the trial court erred in admitting Baratta's expert testimony about the speed at impact.
Texas Rule of Evidence 702 requires expert testimony to be sufficiently reliable and relevant to assist the jury. TEX. R. EVID. 702. When an opposing party objects to proffered expert testimony, the proponent of expert testimony bears the burden of demonstrating its admissibility. E.I. du Pont de Nemours and Co. v. Robinson, 923 S.W.2d 549, 556 (Tex. 1995); Bufkin v. Bufkin, 259 S.W.3d 343, 351 (Tex. App.—Dallas 2008, pet. denied). Because jurors may place great weight on expert testimony, trial judges have a heightened responsibility to ensure expert testimony is both relevant and reliable. See Robinson, 923 S.W.2d at 553-54. Therefore, before admitting expert testimony, the proponent of the evidence must prove at a preliminary "gatekeeper" hearing, outside the presence of the jury, the expert testimony is relevant and reliable. Id; at 556-57; see also Mack Trucks, Inc. v. Tamez, 206 S.W.3d 572, 578 (Tex. 2006).
Here, the trial court conducted its gatekeeper hearing prior to trial. It was at this pretrial hearing that Miskell was required to persuade the trial court that Baratta's opinions were relevant and reliable. See Mack Trucks, 206 S.W.3d at 578 (party sponsoring expert bears the burden of presenting understandable evidence that will persuade the trial court the expert testimony is admissible).
On appeal, Hampton neither challenges the trial court's pretrial ruling on the admissibility of Barratta's testimony nor challenges the evidence on which the court's ruling was based. Instead, Hampton argues the trial court erred in admitting Baratta's testimony based on the testimony that was submitted to the jury. Because Hampton has failed to challenge the trial court's pretrial ruling, she has shown no abuse of discretion. Cf. In re S.M.V., 287 S.W.3d 435, 449 n.10 (Tex. App.—Dallas 2009, no pet) (we consider only the evidence before the trial court at the time it made the decision complained of); Hansen v. Starr, 123 S.W.3d 13, 18 (Tex. App.—Dallas 2003, pet. denied)(in reviewing trial court's judgment we may consider only what was before the trial court at the time it made its ruling).
Even if the trial court abused its discretion by allowing Baratta's testimony, reversal is warranted only if the error probably caused the rendition of an improper judgment. See TEX. R. APP. P. 44.1(a); Nissan Motor Co. Ltd. v. Armstrong, 145 S.W.3d 131, 144 (Tex. 2004); Gee v. Liberty Mut. Fire Ins. Co., 765 S.W.2d 394, 396 (Tex. 1989); Transcontinental Realty Inv'rs, Inc. v. Wicks, 442 S.W.3d 676, 681 (Tex. App.—Dallas 2014, pet. denied). To determine this, we review the entire record and require the complaining party to demonstrate that the judgment turns on the particular evidence admitted. Bay Area Healthcare Group, Ltd. v. McShane, 239 S.W.3d 231, 234 (Tex. 2007); Nissan Motor, 145 S.W.3d at 144. We ordinarily will not reverse if the evidence in question is cumulative or not controlling on a material issue dispositive to the case. Gee, 765 S.W.2d at 396; Bufkin, 259 S.W.3d at 352.
According to Hampton, she was harmed by Baratta's testimony because it suggested the force of the impact was too minimal to have caused the injuries Hampton claimed. The evidence at trial also showed the force of the impact caused only minor property damage. Binzer, Hampton's own causation expert, testified that damage to a vehicle is indicative of both the force of impact and the physical injuries that may have resulted. Moreover, Binzer also testified that Hampton told him she was injured in a low-impact collision. Nevertheless, Binzer opined that Hampton's symptoms were caused by the collision. Thus, Hampton's own causation evidence did not depend upon the force of impact.
We conclude Baratta's testimony was cumulative of other evidence showing a low-impact collision and was not material to an essential fact-in-dispute. We resolve the sole issue against Hampton and affirm the trial court's judgment.
/Ada Brown/
ADA BROWN
JUSTICE 151551F.P05
JUDGMENT
On Appeal from the County Court at Law No. 5, Dallas County, Texas
Trial Court Cause No. CC-13-02076-E.
Opinion delivered by Justice Brown. Justices Francis and Whitehill participating.
In accordance with this Court's opinion of this date, the judgment of the trial court is AFFIRMED.
It is ORDERED that appellee BARBARA MISKELL recover her costs of this appeal from appellant JANETTE HAMPTON. Judgment entered this 21st day of August, 2017.