Gammill v. Jack Williams Chevrolet, Inc.

• Decision Date: 19 December 1996
• Docket Number: No. 2-95-284-CV,2-95-284-CV
• Parties: James R. GAMMILL and Deborah Dianne Gammill, Individually and as next friends of Curtis Gammill, a minor, and Jaime Michelle Gammill, a minor, deceased, Appellants, v. JACK WILLIAMS CHEVROLET, INC. and American Isuzu Motors, Inc., Appellees.
• Court: Texas Court of Appeals

Page 1

983 S.W.2d 1

James R. GAMMILL and Deborah Dianne Gammill, Individually and as next friends of Curtis Gammill, a minor and Jaime Michelle Gammill, a minor deceased, Appellants, v. JACK WILLIAMS CHEVROLET, INC. and American Isuzu Motors Inc., Appellees.

No. 2-95-284-CV.

Court of Appeals of Texas Fort Worth.

Dec. 19, 1996.

Rehearing Overruled Jan. 30, 1997.

Johnson & McElroy, and B. Thomas McElroy, Dallas, Texas, Patrick Fleming, Weatherford, Texas, for appellant.

Maxwell & Power, and James S. Maxwell, Betsy K. Power, and Marlene D. Thompson, Dallas, Texas, for appellee.

OPINION

WEAVER, Justice.

Appellants, James R. Gammill and Deborah Dianne Gammill, individually, and as next friends of Curtis Gammill, a minor, and Jaime Michelle Gammill, a minor, deceased, the "Gammills", brought this products liability case seeking recovery of damages resulting from a one-automobile accident involving a 1988 Isuzu Trooper II. They appeal from a summary judgment granted in favor of appellees, Jack Williams Chevrolet, Inc. and American Isuzu Motors, Inc., the seller and manufacturer of the Trooper. We affirm.

The principal issue here presented is whether the trial court abused its discretion by disqualifying the Gammills' expert witnesses and by striking the controverting affidavits of two of their experts.

On July 5, 1988, at approximately 4:35 p.m., Deborah Dianne Gammill was driving her 1988 Isuzu Trooper II when it suddenly left the roadway and collided with a utility junction box and some trees. Her son, Curtis Gammill, was in the right front passenger seat, and her daughter, Jaime Gammill, was in the right rear seat. The Gammills alleged that as a result of the accident and impact Deborah Gammill and Curtis Gammill received incapacitating injuries and that Jaime received fatal injuries.

The Gammills' Third Amended Original Petition, filed on October 13, 1995, alleged: (1) the Trooper was defectively designed and uncrashworthy at the time it left the defendants' possession; (2) the restraint system for the right rear passenger seat of the Trooper was defectively designed and was unreasonably dangerous as designed; (3) Jaime's seat belt prematurely released during the impact of the accident in question; (4) design defects existed in the webbing loop at the buckle of the right rear seat belt and in the buckle release on the right rear seat belt of the Trooper; (5) an alternative safe design of the right rear passenger restraint system was available to Isuzu at little cost; (6) Jaime was wearing her seat belt and it failed to restrain her at the time of the accident; (7) the Trooper was designed with a wiring harness under the dashboard that was too close to the accelerator mechanism; (8) the design of placing the throttle pedal in close proximity to the steering column was defective and unreasonably dangerous in that suddenly and without warning the throttle would not return to the idle position after being released, causing a loss of vacuum to the brake system; (9) at the time defendants sold the Trooper to the plaintiffs, defendants failed to give adequate warnings of the dangers or adequate instructions for the Trooper's safe use; (10) defendants represented that the Trooper possessed safety of performance characteristics which it did not have; (11) defendants failed to explain how the design of the seat belt restraint system could cause, enhance or aggravate injuries sustained by a user or passenger in the Trooper; and (12) defendants were negligent in the design, manufacture, distribution and marketing of the Trooper.

Appellees filed their motion for summary judgment on September 8, 1995, together with supporting affidavits. Previously, on May 19, 1995, the Gammills had designated David Lowry and Dr. Ronald Huston as expert witnesses in the case. On July 28, 1995, in a supplemental answer to the defendants' interrogatories, they designated Robert Bell as an expert witness, and on October 9, 1995, they further designated Robert Bell and Robert Evans as persons who may be called to testify and render expert opinions.

On September 20, 1995, the defendants moved to disqualify the Gammills' experts Lowry, Huston and Bell, claiming that the areas upon which those experts intended to testify and the opinions they had offered were either (1) not based on scientific knowledge grounded upon careful scientific methods and procedures; (2) not sufficiently tied to the facts of this case so that they would aid the jury in resolving a factual dispute; (3) not derived from scientific methods or supported by appropriate validation; (4) not based on scientifically valid reasoning and methodology; (5) not reliably based on the knowledge and experience of the expert's discipline; or (6) essentially subjective beliefs and unsupported speculations based on hearsay. They also claimed that Bell should be disqualified from testifying as an expert because he was not designated as an expert until after the court-imposed deadline for making such designation. In support of their motion to disqualify, the defendants relied in part upon excerpts from Lowry's and Huston's deposition testimony given on July 28, 1995, including their respective Curricula Vitae, together with Bell's December 15, 1992 affidavit.

The trial court held numerous pretrial hearings. One was a hearing on October 5th and 6th, 1995, during which the Gammills had Lowry and Huston testify regarding their qualifications as expert witnesses and about further tests they wanted to conduct on the Trooper.

The Gammills filed their response to the motion for summary judgment on October 12, 1995. They relied upon the testimony given by Lowry and Huston before the trial court on October 6, 1995, as showing that they were qualified as experts to testify in the case and as controverting the defendants' summary judgment proof. They said they also expected to file affidavits of Lowry and Huston in opposition to Isuzu's motion for summary judgment. On October 13, 1995, the Gammills did file affidavits signed by each Lowry and Huston, and on October 25, 1995, they filed a supplemental affidavit signed by Lowry. Also, on October 13, 1995, the trial court signed an order disqualifying plaintiffs' experts, Robert Bell and Robert Evans.

On October 18, 1995, the defendants moved to strike Lowry and Huston's October 13th affidavits. That motion incorporated by reference all arguments and legal support cited in the motion to disqualify the plaintiffs' experts filed by defendants on September 20, 1995.

On October 25, 1995, the trial court held a hearing on the Defendants' Motion for Summary Judgment. At the conclusion of that hearing the trial court signed the order granting summary judgment in favor of appellees and dismissing the Gammills' claims against the appellees in their entirety. At that hearing, the trial court also considered the defendants' motions to disqualify plaintiffs' experts, Lowry and Huston, and to strike their October 13th affidavits, in connection with which the trial court signed two additional orders.

One was an order granting defendants' motion to disqualify both of plaintiffs' experts, Lowry and Huston. That order was replaced by two orders signed by the trial court on November 24, 1995, one granting the motion to disqualify Lowry, and the other granting the motion to disqualify Huston. ¹ These two orders are the subject of point of error one.

The other order signed by the trial court on October 25, 1995, granted defendants' motion to strike the affidavits of both Lowry and Huston which were filed on October 13th. That order too was replaced by two orders signed by the trial court on November 24, 1995, one granting the motion to strike Lowry's affidavit, and the other granting the motion to strike Huston's affidavit. ² These two orders are the subject of point of error two.

A defendant moving for summary judgment assumes the burden of showing, as a matter of law, that the plaintiff has no cause of action. Lear Siegler, Inc. v. Perez, 819 S.W.2d 470, 471 (Tex.1991). This can be accomplished by disproving one element of the plaintiff's cause of action. Wornick Co. v. Casas, 856 S.W.2d 732, 735 (Tex.1993). To recover for harm caused by an allegedly defective product, a plaintiff in Texas must prove, together with other elements, that the product was defective. Rodriguez v. Ed Hicks Imports, 767 S.W.2d 187, 192 (Tex.App.--Corpus Christi 1989, no writ).

The appellees claim that their motion for summary judgment and the attached affidavits proved that the accident vehicle in this case was not defective, that the accident occurred because the driver lost control of the Trooper, and that Jaime Gammill was not wearing her seat belt at the time of the accident. Thus, appellees claim, based on their motion and summary judgment proof, that they were entitled to summary judgment unless the Gammills, through their response to the motion for summary judgment and controverting proof, raised a material fact issue as to whether the Trooper was defective.

Appellees further claim that because the trial court granted their motions to disqualify the Gammills' experts and to strike their affidavits, the Gammills failed to raise a material question of fact as to the existence of a defect and that summary judgment was properly granted.

The Gammills, by six points of error, claim the trial court erred in: (1) disqualifying Lowry and Huston; (2) striking their affidavits; (3) disqualifying Bell and Evans; (4) denying their motion to test and inspect the accident vehicle; (5) denying their motion for a meaningful examination of the vehicle; and (6) compelling a mental examination of Deborah Gammill.

We will first determine the propriety of the trial court's actions in disqualifying Gammills' experts Lowry and Huston and in striking their affidavits. Because of the similarity of the issues, we will review points of error one and two together.

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