Opinion
No. 01-05-01070-CV
Opinion issued December 18, 2008.
On Appeal from the 334th District Court, Harris County, Texas, Trial Court Cause No. 2002-17048.
Panel consists of Justices TAFT, KEYES, and ALCALA.
MEMORANDUM OPINION
Appellant Vanessa Sinegaure ("Sinegaure" or "Mrs. Sinegaure"), individually and as representative of the estate of Darnell Sinegaure ("Mr. Sineguare"), and appellant-intervenors Virginia Sinegaure (Mr. Sinegaure's mother), Darnell Jones, and Harold Moore (Mr. Sinegaure's adult children) (all three, collectively, "Intervenors") sued appellee, Bally Total Fitness Corporation ("Bally"), for negligence when Mr. Sinegaure became ill and later died following a workout at a Bally's facility. A jury trial resulted in Sinegaure's and Intervenors' taking nothing. They appealed.
The appeals were stayed effective July 31, 2007 pursuant to Bally's filing of bankruptcy. See 11 U.S.C.S. § 362(a)(1), (b)(2)(A)(iv) (Lexis 2005 Supp. 2008); TEX. R. APP. P. 8.2; Kalb v. Feuerstein, 308 U.S. 433, 440, 60 S. Ct.343, 346-347 (1940); Greenberg v. Fincher Son Real Estate, Inc., 753S.W.2d 506, 506 (Tex.App.-Houston [1st Dist.] 1988, no writ). The bankruptcy stay was lifted, and this appeal was reinstated, by order of this Court dated July 11, 2008. See TEX. R. APP. P. 8.3.
We determine (1) whether legal-and factual-sufficiency issues were preserved, (2) whether the evidence was factually sufficient, (3) whether the closing arguments of Bally's counsel were improper, (4) whether appellants preserved error regarding the admission of the health club membership contract, (5) whether the health club membership contract was erroneously admitted into evidence, and (6) whether the trial court properly allowed the testimony of Bally's expert witness, Dr. Van Camp. We affirm.
Background
On April 4, 2000, Mr. Sinegaure exercised at the Bally facility in Sugar Land, Texas. After about an hour, Mr. Sinegaure became sweaty, short of breath, dizzy, and fatigued. Another patron found him sitting slumped over in the locker room and notified Bally employees. Bally employees checked Mr. Sinegaure's vital signs and gave him water and an ice pack. Mr. Sinegaure told the employees that he believed that he had over-exerted himself. Bally employees then observed Mr. Sinegaure's medic alert bracelet and gave him a protein bar and sugar popsicle. Mr. Sinegaure was coherent at all times. When a Bally employee offered to call an ambulance, Mr. Sinegaure refused. When a Bally employee suggested contacting a relative to pick up Mr. Sinegaure, Mr. Sinegaure asked to have someone contact his wife, which a Bally employee did.
Mrs. Sinegaure told the Bally employee that she was an hour away, and she left work to pick up Mr. Sinegaure. While waiting for Mrs. Sinegaure to arrive, a Bally employee sat with Mr. Sinegaure, monitored his condition, and chatted with him. When Mrs. Sinegaure arrived, she noticed only that Mr. Sinegaure appeared pale. The Sinegaures walked to their car while a Bally employee carried Mr. Sinegaure's gym bag. The employee then shook hands with Mr. Sinegaure and watched him get into the car. After driving away from Bally, Mrs. Sinegaure suggested going to a hospital, but Mr. Sinegaure said that he just wanted to lie down. Mr. Sinegaure then vomited in the car. Mrs. Sinegaure pulled over. After a few minutes, they resumed driving, and Mrs. Sinegaure again suggested going to the emergency room; Mr. Sinegaure refused. Mr. Sinegaure then lost consciousness and died in the car. Mrs. Sinegaure drove to a hospital, where Dr. Gregory Starr attempted to resuscitate Mr. Sinegaure for about 20 minutes, to no avail.
Sinegaure and Intervenors argued at trial that Bally's failure to call 9-1-1 delayed Mr. Sinegaure from obtaining medical help, reduced his survivability chances, and ultimately led to his death. They offered expert testimony by Dr. Starr regarding Mr. Sinegaure's medical condition, treatment, and survivability chances. Bally tendered its own expert, Dr. Van Camp, who discussed the nature of Mr. Sinegaure's medical condition, his survivability chances, and whether 9-1-1 should have been called. Bally also offered into evidence the contract between Mr. Sinegaure and Bally. Finally, Bally made its closing arguments, wherein Bally's counsel referred to his own father's death from lung cancer. The trial court admonished Bally's counsel to remain within the scope of the trial evidence. The jury found no negligence by any party.
Legal-and Factual-Sufficiency Challenges
In her issues one, two, and three, Sinegaure contends that the evidence is legally and factually insufficient to support the verdict.
A. Preservation
To preserve her legal-sufficiency complaint, Sinegaure had to raise it in (1) a motion for instructed verdict; (2) an objection to the charge; (3) a motion for judgment notwithstanding the verdict; (4) a motion to disregard the jury's answer to a vital fact issue; or (5) a motion for new trial. See Cecil v. Smith, 804 S.W.2d 509, 510-11 (Tex. 1991); Aero Energy, Inc. v. Circle C Drilling Co., 699 S.W.2d 821, 822 (Tex. 1985); Rosas v. Shafer, 415 S.W.2d 889, 889-90 (Tex. 1967); see also TEX. R. CIV. P. 324(b)(2). Sinegaure filed only a motion for new trial.
Sinegaure's motion challenged the jury's findings only as being against the great weight and preponderance of the evidence and did not assert a challenge to legal sufficiency. Even liberal construction of the motion does not suggest a legal sufficiency complaint. See TEX. R. CIV. P. 321; Barron v. James, 145 Tex. 283, 290, 198 S.W.2d 256, 260 (1946). Sinegaure's challenge is thus one of factual sufficiency alone. See Skains v. Torch Offshore, L.L.C., No. 01-07-00008-CV, 2008 WL 963039 at *1 n. 3 (Tex.App.-Houston [1st Dist.] Apr. 10, 2008, no pet.) (memo. op.) (citing Dow Chem. Co. v. Francis, 46 S.W.3d 237, 242 (Tex. 2001)). Consequently, Sinegaure's issue one as to legal sufficiency is not preserved. See City of Houston v. Precast Structures, Inc., 60 S.W.3d 331, 335 (Tex.App.-Houston [14th Dist.] 2001, pet. denied) (holding that motion for new trial fails to preserve legal-sufficiency challenge for review if argument urged on appeal was not raised in motion or otherwise during trial); see also TEX. R. APP. P. 33.1. In contrast, Sinegaure's challenge to the verdict as being contrary to the great weight and preponderance of the evidence properly preserved her issues two and three challenging factual insufficiency. See Skains, 2008 WL 963039, at *1 (holding that filing of motion for new trial is prerequisite to appellate complaint challenging factual sufficiency of evidence supporting jury finding); see also TEX. R. APP. P. 326(b)(2).
B. Standard of Review
When a party attacks the factual sufficiency of an adverse finding on an issue on which she had the burden of proof, she must demonstrate on appeal that the adverse finding is against the great weight and preponderance of the evidence. Francis, 46 S.W.3d at 242. In reviewing a "great weight and preponderance" issue, a court must consider and weigh all of the evidence and can set aside a verdict only if the evidence is so weak, or if the finding is so against the great weight and preponderance of the evidence, that it is clearly wrong and unjust. Id. (citing Pool v. Ford Motor Co., 715 S.W.2d 629, 635 (Tex. 1986)).
Sinegaure argues that when comparing the testimony of the competing expert witnesses, the weight of the evidence supports a finding for her. Nowhere does Sinegaure cite authority for her proposition that only expert testimony, and not the entire record, should be considered by a reviewing court. See TEX. R. APP. P. 38.1(i) ("The brief must contain a clear and concise argument for the contentions made, with appropriate citations to authorities and to the record.") (emphasis added). Indeed, a review of the entire record is proper. City of Keller v. Wilson,168 S.W.3d 802, 819, 822 (Tex. 2005).
C. Analysis
A review of the entire record reveals the following evidentiary support for the jury's verdict:
• After working out, Mr. Sinegaure felt dizzy, nauseated, and sweaty and had an elevated heart rate, which is common after over-exertion;
• Mr. Sinegaure was fully lucid, coherent, and conscious while at the health club;
• Mr. Sinegaure told the health club employees that he was okay and was just tired and felt a little sick to his stomach;
• Mr. Sinegaure explained his tiredness to Bally employees as being the result of having completed nearly an hour of cardiovascular exercise;
• Health club employees gave Mr. Sinegaure water, an ice pack, a popsicle, and a chair on which to sit and observed his vital signs;
• Mr. Sinegaure's speech was not slurred, and, after he sat, his symptoms and pulse rate returned to normal;
• Health club employees offered to call an ambulance for Mr. Sinegaure, which he refused, telling the employees that he wanted to go back to work;
• The non-specific signs and symptoms that Mr. Sinegaure exhibited did not reflect a medical crisis justifying calling 9-1-1;
• Mr. Sinegaure did not suffer an absolute medical emergency or serious medical crisis while at the health club;
• Health club employees suggested that they contact a relative for him, and Mr. Sinegaure asked them to call his wife, which they did;
• Health club employees sat and talked with Mr. Sinegaure until his wife arrived to pick him up;
• Mrs. Sinegaure said that Mr. Sineguare did not have any problems breathing when she arrived to pick him up and that his only symptom was that he appeared to be pale;
• When she arrived, Mrs. Sinegaure did not ask health club employees to call an ambulance, or 9-1-1, and did not ask for directions to a hospital;
• Mr. Sinegaure left the health club under his own power, and while in the car with his wife, Mr. Sinegaure refused to go to a hospital, insisting instead on just lying down; and
• No doctor could say for certain of what condition Mr. Sinegaure died because no autopsy was done.
Sinegaure argues that the testimony of her expert witnesses, Dr. Starr and Dr. Dougherty, outweighs this evidence. Dr. Starr testified that obtaining medical help may have increased Mr. Sinegaure's survivability chances, whereas Dr. Van Camp testified that Mr. Sinegaure's survivability was very low even if he had had medical help. However, Dr. Starr also testified that no medical emergency occurred at Bally, that the Bally employees acted appropriately in their care of Mr. Sinegaure's symptoms, that initial symptoms warrant the calling of EMS if there is no improvement within 20 minutes, that the subsidence of Mr. Sinegaure's symptoms after about 20 minutes indicated improvement, and that there was no way to know what sort of heart attack Mr. Sinegaure had or if he could have recovered from it.
For his part, Dr. Dougherty testified that Bally did everything properly except for failing to call 9-1-1. However, Bally's expert, Dr. Peterson, offered contradictory expert testimony that the non-specific symptoms did not signal a medical crisis justifying calling 9-1-1 and that Bally employees acted responsibly and appropriately.
Although Sinegaure argues that Dr. Peterson made conflicting statements in his testimony regarding his own professional qualifications and opinions and contends that the testimony of her experts outweighed that of Bally's experts, in our factual-sufficiency review, we defer to the fact finder as the sole judge of witnesses' credibility and the weight to be given their testimony. See Wilson, 168 S.W.3d at 761. It is the fact finder's province to resolve conflicting evidence, and we must assume that the fact finder resolved all evidentiary conflicts in accordance with its decision, if a reasonable person could have done so. See id. An appellate court may not impose its own opinion to the contrary of the fact finder's implicit credibility determinations. See id.
Applying this standard, we hold that the verdict is not against the great weight and preponderance of the evidence. See id. We overrule Sinegaure's issues one, two, and three.
Improper Jury Argument
In issue seven, Sineguare contends that the trial court erred in overruling her objection to Bally's closing argument.
In closing argument, trial counsel must confine their arguments "strictly to the evidence and to the arguments of opposing counsel." See TEX. R. CIV. P. 269(e). However, final argument is also designed to be persuasive in nature and so long as it is based upon the facts and issues raised by the evidence and not so inflammatory in nature as to influence the jurors to improperly render a verdict, the argument is not intrinsically improper. Louisiana Ark. Ry. Co. v. Capps, 766 S.W.2d 291, 296 (Tex.App.-Texarkana 1989, no writ); see also Standard Fire Ins. Co. v. Reese, 584 S.W.2d 835, 840 (Tex. 1979).
The tradition of oral advocacy affords counsel some leeway in their closing rhetoric, which may include matters of personal experience, hyperbole, metaphors, history, politics, literature, analogy, jokes, and similar tools of persuasion. Lone Star Ford, Inc. v. Carter, 848 S.W.2d 850, 853 (Tex.App.-Houston [14th Dist.] 1993, no writ); Tex. Employer's Ins. v. Guerrero, 800 S.W.2d 859, 870 (Tex.App.-San Antonio 1990, writ denied); Louisiana Ark. Ry. Co. v. Mullins, 326 S.W.2d 263, 267-68 (Tex.Civ.App.-Texarkana 1959, writ ref'd n.r.e.); Sheffield v. Lewis, 287 S.W.2d 531, 539 (Tex.Civ.App.-Texarkana 1956, no writ); Fort Worth Hotel Co. v. Waggoman, 126 S.W.2d 578, 587 (Tex.Civ.App.-Fort Worth 1939, writ dism'd); Winnsboro Cotton Oil Co. v. Carson, 185 S.W. 1002, 1008 (Tex.Civ.App.-Dallas 1916, no writ); Beaumont Traction Co. v. Dilworth, 94 S.W. 352, 355 (Tex.Civ.App.-Beaumont 1906, no writ).
In issue seven, Sinegaure complains of the following portion of Bally's closing argument:
[Bally's Counsel]: . . . I wanted to talk to you about the one unspoken issue here. The who is responsible issue. The one that may be kicking around when you leave here at night and coming back and you stop and think about the case. Earlier this year, my father died of lung cancer. He smoked cigarettes for 44 years —
[Sinegaure's Counsel]: Excuse me, Your Honor, I think we are getting outside the scope of the argument and the evidence to support an argument.
The Court: Overruled.
[Bally's Counsel]: Very well. I didn't have an autopsy done, but I am betting that my father's lung cancer was somehow related to his 44 years of smoking cigarettes. There was no suit filed in his death.
[Sinegaure's Counsel]: Judge, I believe we have gone beyond the scope of argument, and we are getting into matters that are inappropriate for the jury to consider.
The Court: Try to keep to the evidence, if you can.
[Sinegaure's Counsel]: Thank you.
The Court: Try to keep to the evidence.
[Bally's Counsel]: . . . will it always be someone else's fault when we die? Will there always be a doctor to blame? Will there always be a drug company to blame for not testing enough? Will there always be a fast food company [to blame] for selling us fatty foods? Will there always be someone else to blame?
(Emphasis Sinegaure's.) Insofar as counsel used the reference as an analogy, the analogy was within the limits of persuasive argument, warranted by the pleadings of causation and contributory negligence, and not so inflammatory as to be intrinsically improper. See Capps, 766 S.W.2d at 296. We hold that the reference was not improper. Reese, 584 S.W.2d at 840. We overrule issue seven.
Admission of the Contract Documents
Sinegaure's issues four, five, and six and Intervenors' issues one, two, and three are the same. Both appellants' briefs assert that neither Exhibit 1 nor Exhibit 1A should have been admitted for failure of authentication as to each and for Exhibit 1A's improper use as an exemplar. Exhibit 1 was a microfiche copy of Mr. Sinegaure's membership contract with Bally. The pages of Exhibit 1, however, are only the front-facing pages of the membership contract. The back-facing pages of the membership contract were not stored on microfiche due to storage limitations. Copies of the back-facing pages of the contract were offered and admitted in Exhibit 1A, as an exemplar of the contract forms used at the time that Mr. Sinegaure became a member of the health club.
A. Standard of Review
The admission or exclusion of evidence is a matter within the trial court's discretion. Owens-Corning Fiberglass Corp. v. Malone, 972 S.W.2d 35, 43 (Tex. 1998); City of Brownsville v. Alvarado, 897 S.W.2d 750, 753 (Tex. 1995). To obtain a reversal of a judgment based on error in the admission or exclusion of evidence, an appellant must show that the trial court's ruling was in error and that the error was calculated to cause and probably did cause the rendition of an improper judgment. Malone, 972 S.W.2d at 43; Alvarado, 897 S.W.2d at 753; Boothe v. Hausler, 766 S.W.2d 788, 789 (Tex. 1989); see TEX. R. APP. P. 44.1. The test for abuse of discretion is whether the ruling was unreasonable or arbitrary or made "without reference to any guiding rules or principles." Cire v. Cummings, 134 S.W.3d 835, 839 (Tex. 2004) (citing Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241 (Tex. 1985)).
B. Preservation of Error as to Exhibit 1
1. Lack of personal knowledge of microfiche process a. Preservation by Sinegaure
Bally's corporate representative offered testimony about the microfiche process and about the copy of the contract, Exhibit 1. Counsel for Sinegaure objected to the representative's lack of personal knowledge of the microfiche process and document. This objection received no ruling from the trial court by which to preserve error. See TEX. R. APP. P. 33.1. Sinegaure objected a second time as to personal knowledge and was overruled, preserving error. Id. Sinegaure objected a third time as to personal knowledge, took the representative on voir dire, and subsequently withdrew the objection. Any error as to the witness' lack of personal knowledge of the microfiche process and document was waived by the withdrawal of the objection thereto. Union Indem. Co. v. Drake, 42 S.W.2d 839, 841 (Tex.Civ.App.-Beaumont 1931, writ ref'd) (holding that, when counsel for appellant withdrew his objections, error complained of, if any, was waived by appellant). The failure to maintain an objection waives any appellate challenge as to the matters raised by the objection. Richardson v. Green, 677 S.W.2d 247, 501 (Tex. 1984). Accordingly, we hold that any error as to lack of authentication based on the representative's personal knowledge was waived by Sinegaure's later withdrawal of the objection.
b. Preservation by Intervenors
Neither appellant refers this Court to any agreement of counsel to reciprocating or mutual objections. A review of the record reveals no such agreement.
Intervenors did not object with regard to the representative's personal knowledge of the microfiche process, and thus Intervenors did not preserve this issue. See TEX. R. APP. P. 33.1.
2. Lack of personal knowledge of signature
Both Sinegaure and Intervenors lodged objections to the admission of Exhibit 1 on the basis that the corporate representative could not authenticate the signature on the contract. The trial court inquired whether there would be testimony contesting that the signature was Mr. Sinegaure's; counsel responded that there would be none. The trial court then overruled their objections. Both Sinegaure and Intervenor preserved the issue as to whether the representative's lack of knowledge regarding the signature's authenticity failed to authenticate Exhibit 1. See TEX. R. APP. P. 33.1.
C. Admission of Exhibit 1
Exhibit 1, a copy of Mr. Sinegaure's membership contract, had been retained by Bally in microfiche storage. Sinegaure and Intervenors argue that Bally's corporate representative could not authenticate Exhibit 1 for lack of personal knowledge that the signature was Mr. Sinegaure's. Sinegaure and Intervenors rely on Texas Rule of Evidence 901(b) and one case, In re G.F.O., as authority. See TEX. R. EVID. 901(b); In re G.F.O., 874 S.W.2d 729 (Tex.App.-Houston [1st Dist.] 1994, no writ). Their reliance is misplaced. Texas Rule of Evidence 901(a) requires authentication of evidence. TEX. R. EVID. 901(a). Texas Rule of Evidence 901(b) gives examples of authentication conforming with rule 901(a). TEX. R. EVID. 901(b). Rule 901(b), however, expressly states that the examples listed are not limitations on the ways an object can be authenticated to meet the requirements of 901(a). Id.
Under rule 901(a), the requirement of authentication "is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims." In Re J.P.B., 180 S.W.3d 570, 575 (Tex. 2005); Sanchez v. State Bd. of Med. Examiners, 229 S.W.3d 498, 508 (Tex.App.-Austin 2007, no pet.); see TEX. R. EVID. 901(a). Such evidence may include testimony by a witness with knowledge that a matter is what it is claimed to be, but the predicate for admissibility under Rule 901 may also be proved by circumstantial evidence. Sanchez, 229 S.W.3d at 509; In Re G.F.O., 874 S.W.2d at 731. This requirement may be met by "appearance, contents, substance, internal patterns, or other distinctive characteristics, taken in conjunction with circumstances." Am. Cas. Co. of Reading, PA v. Hill, 194 S.W.3d at 162, 167 (Tex.App.-Dallas 2006, no pet.); see TEX. R. EVID. 901(a)(4).
In In re G.F.O., this Court held that a document is considered authentic if a sponsoring witness vouches for its authenticity. 874 S.W.2d at 731. That is essentially what happened when Bally's corporate representative testified that
• all Bally members have a contract;
• retail contracts with members are kept on "microfilm" [sic] and stored at Bally's service center in California;?
• she was familiar with the microfiche process;
• a contract from the time that Sinegaure joined the health club would have been sent to the California facility and stored on microfiche;
• the microfiche document was a copy of the contract between Mr. Sinegaure and Bally;
• she was unaware of any change in the microfiche process since Bally began microfiche storage; and
• no additional contracts needed to be signed, and the contract would have continued year to year.
This testimony and counsels' representations to the court that there would be no contest to the signature on the document were sufficient circumstances to establish the document's genuineness under rule 901(a). The trial court's ruling was thus not unreasonable or arbitrary or made "without reference to any guiding rules or principles." Cire, 134 S.W.3d at 839.
We hold that the trial court did not abuse its discretion in admitting Exhibit 1. We overrule Sinegaure's issue four and Intervenors' issue one.
D. Preservation of Error as to Exhibit 1A
1. Preservation of Sinegaure's Issues Five and Six
Sinegaure objected at trial to the introduction of Exhibit 1A, the back-facing pages of the contract, on two bases: (1) that there was no authentication of the document and (2) that the document was admitted improperly as an exemplar. The trial court overruled Sinegaure's objections, and thus her issues five and six as to the admission of Exhibit 1A are preserved for appellate review. See TEX. R. APP. P. 33.1.
2. Preservation of Intervenor's Issues Two and Three
Intervenors made no objection at trial to the admission of Exhibit 1A and thus waived any error. See TEX. R. APP. P. 33.1. We thus overrule their issues two and three.
E. Admission of Exhibit 1A
1. Sinegaure's Issue Five
Sinegaure's issue five, complaining that there was no authentication of the exemplar document, contains no authority. Kyle v. Countrywide Home Loans, Inc., 232 S.W.3d 355, 363 (Tex.App.-Dallas 2007, pet. denied) (overruling appellants' points of error when they cited no authority to support their argument that appellee could not attach unauthenticated exemplars to its summary judgment order, citing former TEX. R. APP. P. 38.1(h), now TEX. R. APP. P. 38.1(i) ("The brief must contain a clear and concise argument for the contentions made, with appropriate citations to authorities and to the record.")). Accordingly, we overrule Sinegaure's issue five.
2. Sinegaure's Issue Six
Sinegaure's issue six, that the documents were improperly admitted as an exemplar, discusses only handwriting exemplars and cites only cases pertaining to the same. However, the pages on Exhibit 1A were not admitted as a handwriting exemplar, but as exemplars of the contract form being used at the time that Mr. Sinegaure joined the health club.
Demonstrative evidence such as models and exemplars is used in trial when original evidence is unavailable. In most instances, models have been held admissible in evidence, or held properly used for purposes of demonstration or illustration, if the resemblance to the original is sufficient or if possible dissimilarity is pointed out to the jury. Davis v. Callen, 250 S.W. 305, 307 (Tex.Civ.App.-Beaumont 1923, no writ). Models and exemplars have been used in Texas courts for a variety of items from clothes dryers to documentation.
See Whirlpool Corp. v. Camacho, 251 S.W.3d 88, 99 (Tex.App.-CorpusChristi 2008, pet. filed).
See Kyle v. Countrywide Home Loans, Inc., 232 S.W.3d 355, 363 (Tex.App.-Dallas 2007, pet. denied). In Kyle, the trial court utilized exemplar documents in an order to illustrate the types of documents to be expunged from public records. Id.
In Sinegaure's case, the trial court received testimony from the corporate representative as to the genuineness of the back-facing pages. See Tex. Mach. Supply Co. v. Ayers Ice Cream Co., 150 S.W. 750, 753 (Tex.Civ.App.-Dallas 1912, no writ) (holding that it is proper for witness to testify to correctness of model exhibit). Sinegaure had the opportunity on cross-examination to elicit testimony to dispute whether the exhibit was an exemplar of the contract that Mr. Sinegaure would have executed. See Whirlpool Corp. v. Camacho, 251 S.W.3d 88, 99 (Tex.App.-Corpus Christi 2008, pet. filed) (holding that Whirlpool did not present any evidence that exemplar dryer's air transport tube or heating element was substantially different from incident dryer's parts); Davis, 250 S.W. at 308. The record shows that neither Sinegaure nor Intervenors offered or elicited anything to show that the document was different from Mr. Sinegaure's contract. Id.
In admitting Exhibit 1A as an exemplar, the trial court did not decide that Exhibit 1A was the same as Mr. Sinegaure's contract, but expressly reserved that ultimate determination for the jury. In light of the testimony and representations relevant to the evidentiary ruling, we hold that the trial court's ruling was not unreasonable or arbitrary or made "without reference to any guiding rules or principles." Cire, 134 S.W.3d at 839. We hold that the trial court did not abuse its discretion in admitting Exhibit 1A, and we overrule Sinegaure's issue six.
Admission of Dr. Van Camp's Testimony
In their issue four, Intervenors assert that the trial court erred in overruling their objections and allowing the testimony of Bally's expert, Dr. Van Camp, regarding Mr. Sinegaure's survival probability. Intervenors objected three times below to the introduction of Dr. Van Camp's opinions regarding Mr. Sinegaure's survivability chances.
A. Preservation of Intervenors' First Objection
Intervenors' first objection sought to preclude Dr. Van Camp's testimony regarding survivability for the failure to supplement his deposition testimony. An adverse ruling was obtained, and error was preserved at that time. See TEX. R. APP. P. 33.1. Bally's examination of Dr. Van Camp continued, and the subject of Mr. Sinegaure's survivability repeatedly resurfaced. Intervenors, however, made no objection to this subsequent testimony:
A running objection was neither requested nor made at this time.
Q. And based upon reasonable medical probability, what is your opinion?
A. That he would not have survived even if he had reached the hospital at an earlier time on that day.
. . .
Q. You told us his chances of survival were very low; right?
A. Yes.
. . .
Q. You told us your opinion earlier that Mr. Sinegaure's chances of survival were very low. What does that mean, very low? What is that?
A. After he had his event — now, you are talking about if outside of the hospital, it is essentially nil. If he were to be in the hospital, there are things that could be attempted, but he basically was in cardiogenic shock.
Q. What is that?
A. Well, shock is low blood pressure. Shock is usually — in medical terms, shock is low blood pressure without adequate profusion of the body. And, cardiogenic means that it's due to the heart muscle problem. So, it is not just that he's dehydrated. It is — if the heart doesn't contract well enough, cardiogenic shock is the most severe form of heart failure and basically its outcome is very, very poor. It is most likely that that's what he manifested.
Q. Okay. And recognizing that, assume with me that he made it to the hospital. What do you believe his chances of survival would have been if he had made it to the hospital?
A. If — after it started or if he had made it to the hospital before it started?
Q. We did that earlier, went through the time line. Do you remember that?
A. Yes.
Q. I believe you told us his chances of survival were very low, regardless of when he got there.
A. Yes.
Q. Assume with me he got to the hospital. Okay? What do you believe his chances of survival would have been?
A. Well, they are very low either way, unfortunately.
. . .
Q. Dr. Van Camp, going back to the very low percentage or chance of survival, generally what do you mean by that? What percentages are you talking about?
A. Well, if we are talking about people in cardiogenic shock —
Q. No, we are talking about people like Mr. Sinegaure.
A. He would fit into the cardiogenic shock category, but he would be among the people with the worst aspects of cardiogenic shock. Cardiogenic shock, the mortality is over 90 percent, but some of those people are going to be healthier than he.
When Sinegaure also questioned Dr. Van Camp regarding Mr. Sinegaure's chances of survival, Intervenors did not object:
A. Now, the question is, is there a reason to [call 9-1-1] before he vomits, but if there's any possibility of saving him, it would be before he vomits.
Q. Thank you, sir, and he would have survived?
A. I said if there's any possibility.
Q. And whatever possibility was taken away; is that right?
A. Well, there's reasons to think that even if he were — he was treated, that he wouldn't have survived even under those circumstances, unfortunately.
Any error in admitting evidence is cured when the same evidence comes in elsewhere without objection. Schwartz v. Forest Pharms., Inc., 127 S.W.3d 118, 124 (Tex.App.-Houston [1st Dist.] 2003, pet. denied); Badger v. Symon, 661 S.W.2d 163, 164 (Tex.App.-Houston [1st Dist.] 1983, writ ref'd. n.r.e.). Any error in the admission of testimony is deemed harmless if the objecting party subsequently permits the same or similar evidence to be introduced without objection. Richardson, 677 S.W.2d at 501. We hold that any error that was preserved at the time that Intervenors objected to Dr. Van Camp's testimony on survivability was cured when they later allowed his testimony on the subject without objection.
B. Preservation of Intervenors' Second Objection
Intervenors' based their second objection to Dr. Van Camp's testimony upon the violation of a motion in limine. Intervenors' objection referred to the general violation of a motion in limine and was non-specific as to the basis of their objection. TEX. R. EVID. 103.
Intervenors' motion in limine is not part of the clerk's record, and the reporter's record of the hearing on the limine motion does not mention excluding Dr. Van Camp's testimony. Because Intervenors do not otherwise identify the basis of their objection and because there is no record of the trial court's placing any limitations on Dr. Van Camp's testimony, their objection is insufficient and waived. See Kyle, 232 S.W.3d at 360 (citing Tri-Steel Structures, Inc. v. Baptist Found., 166 S.W.3d 443, 449 (Tex.App.-Fort Worth 2005, pet. denied) (holding that objections were waived because they were non-specific, vague, and not presented with sufficient clarity for appellate court to consider them)); see TEX. R. APP. P. 38.1.
Additionally, Intervenors' arguments on appeal are only as to Texas Rule of Civil Procedure 195.6 discovery violations, not violations of a motion in limine. See TEX. R. CIV. P. 195.6. A party's challenge on appeal must be consistent with his objection at trial or the appellate court will generally not review its merits. Wohlfhart v. Holloway, 172 S.W.3d 630, 639-40 (Tex.App.-Houston [1st Dist.] 2005, pet. denied). Error is not preserved for review as to Intervenors' second objection. See TEX. R. APP. P. 33.1.
C. Preservation of Intervenors' Third Objection
Finally, Intervenors moved to strike the expert's testimony:
Mr. Anderson: No, I am not asking you to strike his entire testimony. I am asking you to strike his testimony with regard to the two issues that he said he relied his reports on, and he said: I relied on these reports in determining whether Darnell Sinegaure —
The Court: Do your best with him. . . .
Counsel did not receive an adverse ruling from the court sufficient to preserve a point of error. See TEX. R. APP. P. 33.1(a)(2)(A); One Call Sys., Inc. v. Houston Lighting Power, 936 S.W.2d 673, 677 (Tex.App.-Houston [14th Dist.] 1996, writ denied) (providing that, to preserve error when allegedly inadmissible evidence is put before jury, party must pursue adverse ruling from trial court, and absent such an adverse ruling, nothing is preserved for review). Intervenors did not preserve error as to their third objection. See TEX. R. APP. P. 33.1.
It is noteworthy that Intervenors' objection specifically stated that they did not seek to have the expert's testimony struck in its entirety. This is different from their argument on appeal, which asserts error in admitting all of the testimony of Dr. Van Camp from the time of their initial objection. To preserve error, a party's argument on appeal must comport with its argument in the trial court. Wohlfhart v. Holloway, 172 S.W.3d 630, 639-40 (Tex.App.-Houston [1stDist.] 2005, pet. denied).
We overrule Intervenors' issue four in its entirety.
Conclusion
We affirm the judgment of the trial court.