Wal-Mart Stores, Inc. v. Garcia, WAL-MART

Decision Date25 February 1998
Docket NumberNo. 04-96-00592-CV,WAL-MART,04-96-00592-CV
Citation974 S.W.2d 83
PartiesSTORES, INC., Appellant, v. Enriqueta GARCIA, Appellee.
CourtTexas Court of Appeals

Charles R. Borchers, Cristina Gonzalez, Person, Whitworth, Ramos, Borchers & Morales, Laredo, for appellant.

Jose J. Ruiz, Ruiz & Herring, Eagle Pass, Sunny J. Jansma, Wallace B. Jefferson, Crofts, Callaway & Jefferson, P.C., San Antonio, for appellee.

Before STONE, GREEN and JOHN G. HILL, 1 JJ.

OPINION

JOHN G. HILL, Justice (Assigned).

Wal-Mart Stores, Inc. appeals from a judgment in favor of Enriqueta Garcia in the amount of $162,000 plus interest. Wal-Mart contends in three points of error that: (1) the trial court committed reversible error in admitting the testimony of Jack Larks, Garcia's expert, because the testimony does not meet the standards set forth in the Texas Supreme Court case of E.I. duPont de Nemours, Company, Inc. v. Robinson,and Texas Rules of Civil Evidence 403 and 702; (2) there is no evidence, or, alternatively, insufficient evidence, to support the jury award to Garcia for past and future physical pain and mental anguish; and (3) there is no evidence, or, alternatively, insufficient evidence, to support the jury's award to Garcia for past and future loss of earning capacity.

We affirm because the trial court did not abuse its discretion in admitting the testimony of Garcia's expert and because we may not consider evidentiary review as to individual elements of damages where the jury question called for a total amount as to all elements of damages and the amounts as to individual elements of damages solely reflect marginal notes of jurors.

Garcia was injured when struck by a sign that fell from the Wal-Mart ceiling as she was shopping in the store. The sign was dislodged from the ceiling when it was struck by two Wal-Mart employees who were moving a ladder through the store.

Wal-Mart contends in point of error number one that the trial court committed reversible error in admitting the testimony of Jack Larks, Garcia's expert, on the grounds that his testimony does not meet the standards set forth in the Texas Supreme Court case of E.I. du Pont de Nemours Company, Inc. v. Robinson and Texas Rules of Civil Evidence 403 and 702.

Rule 702 of the Texas Rules of Civil Evidence provides that if scientific, technical or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise. TEX.R. CIV. EVID. 702. Rule 403 provides that although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, misleading the jury or by considerations of undue delay, or needless presentation of cumulative evidence. TEX.R. CIV. EVID. 403.

In E.I. du Pont de Nemours & Co. v. Robinson, 923 S.W.2d 549, 556 (Tex.1995), the Texas Supreme Court held that in order to be admissible under Rule 702, scientific evidence must be both relevant and reliable. The Court said that the factors that the trial court may consider in determining admissibility include, but are not limited to:

(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 that have been made of the theory or technique.

Id. at 557.

Jack Larks testified that he is a licensed professional engineer in the State of Texas with Larks Engineering/Consulting Company. He indicated that courses in physics were a part of his basic course in getting his bachelor's degree and that this continued on throughout the entire educational sequence. He indicates that he has a master's degree in engineering from M.I.T. Additionally, he stated that he taught technical physics at the college level for one term. He testified that his opinions and conclusions regarding physics have been accepted by courts in the State of Texas, specifically with reference to the engineering analysis of certain situations using physics, mechanics, structures, and hydrology.

Larks also testified with regard to his expertise in the area of safety. He said that he had training with regard to safety on premises as a civil engineer and as a professor at the University of Houston teaching safety. He indicated that he had been involved with job safety, premises safety, and workplace safety. He stated that he is familiar with Texas statutes, OSHA regulations, and the OSHA law. He said that he is familiar with what is required of individuals working in a store when they are moving items such as a ladder through the store. He testified that there are rules and regulations regarding the transporting of ladders through stores, especially with regard to overhead clearance. He indicated that he had assisted businesses in writing safety manuals for their employees that would include things such as how to move a ladder safely.

The trial court ruled that Larks could testify as to his opinions and conclusions as to the degree of force caused by the sign that fell on Garcia. The trial court granted Wal-Mart's Motion To Strike as to whether such force would be capable of causing a physical injury such as a herniated disc. After hearing additional testimony, the trial court ruled that Larks could testify that the area where Garcia was struck by the sign should have been cleared of customers or should have been roped off while the ladder was being moved.

We must determine whether the trial court abused its discretion in permitting Larks to testify in these two basic areas. Id. at 558.

We first consider the issue of Larks' testimony as to the degree of force caused by the sign that fell on Garcia. His conclusions in this area are based upon well-recognized laws of physics that have been tested; use of those laws of physics involves little, if any, subjective interpretation by the expert; the theories involved are not novel; the technique has little, if any, potential rate of error; the laws of physics related by Larks are generally accepted as valid within the scientific community; and the laws of physics are routinely used in non-judicial uses such as engineering. We hold that the trial court did not abuse its discretion in allowing Larks' testimony in the area of physics and the degree of force caused by the sign that fell on Garcia.

We...

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8 cases
  • Helena Chem. Co.v Wilkins
    • United States
    • Texas Court of Appeals
    • March 8, 2000
    ...of discretion standard of review. See E. I. du Pont de Nemours and Co. v. Robinson, 923 S.W.2d 549, 558 (Tex. 1995); Wal-Mart Stores, Inc. v. Garcia, 974 S.W.2d 83, 86 (Tex. App.-San Antonio 1998, no pet.). We examine the entire substance of the expert's testimony "to determine if the opini......
  • In re Estate of Mask, No. 04-07-00667-CV (Tex. App. 7/23/2008)
    • United States
    • Texas Court of Appeals
    • July 23, 2008
    ...Ella's soundness of mind in January and April of 2006 "is not and does not purport to be scientific testimony." See Wal-Mart Stores, Inc. v. Garcia, 974 S.W.2d 83, 86 (Tex. App.-San Antonio 1998, no pet.). Because each doctor's testimony regarding Ella's soundness of mind during 2006 was no......
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    • United States
    • Texas Court of Appeals
    • October 15, 2008
    ...Ella's soundness of mind in January and April of 2006 "is not and does not purport to be scientific testimony." See Wal-Mart Stores, Inc. v. Garcia, 974 S.W.2d 83, 86 (Tex. App.-San Antonio 1998, no pet.). Because each doctor's testimony regarding Ella's soundness of mind during 2006 was no......
  • Wal-Mart Stores, Inc. v. Ard
    • United States
    • Texas Court of Appeals
    • June 10, 1999
    ...an individual element of damages where the jury question called for a total amount as to all elements of damages. See Wal-Mart Stores, Inc. v. Garcia, 974 S.W.2d 83, 85-87 (Tex.App.--San Antonio 1998, no pet.). The Supreme Court of Texas reached the same conclusion in the recent case of Tho......
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