Mack Trucks, Inc. v. Tamez

• Citation: 206 S.W.3d 572
• Decision Date: 27 October 2006
• Docket Number: No. 03-0526.,03-0526.
• Parties: MACK TRUCKS, INC., Petitioner, v. Elizabeth TAMEZ et. al., Respondent.
• Court: Supreme Court of Texas

206 S.W.3d 572

MACK TRUCKS, INC., Petitioner, v. Elizabeth TAMEZ et. al., Respondent.

No. 03-0526.

Supreme Court of Texas.

Argued October 20, 2004.

Decided October 27, 2006.

Rehearing Denied December 22, 2006.

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Sean E. Breen, Randy Howry, Herman Howry & Breen, L.L.P., Austin, Robert Lee Galloway, Kellye Ruth Koehn, Thompson & Knight LLP, Houston, for petitioner.

John Blaise Gsanger, William R. Edwards, William R. Edwards III, The Edwards Law Firm, L.L.P., Corpus Christi, John Gonzales, John Gonzales & Associates, San Antonio, David O. Gonzalez, Law Offices of Baldemar Gutierrez, Alice, Glenn M. Boudreaux, Maryellen Hester, Boudreaux Leonard & Hammond, P.C., Houston, for for respondent.

Justice JOHNSON delivered the opinion of the Court.

In this truck accident case the trial court excluded expert testimony as to what caused a post-accident fire that burned the truck and the driver. After excluding the expert testimony because it was not reliable, the trial court granted summary judgment. The court of appeals reversed. We hold that the trial court did not err, reverse the court of appeals' judgment, and render judgment that the plaintiffs take nothing.

I. Background

On October 19, 1996, Abram Tamez was operating a Mack Truck tractor hauling a trailer of crude oil. Tamez was rounding a curve in the road when the tractor and trailer overturned. A fire erupted and burned the trailer, its cargo, and the tractor. Tamez was able to climb out of the tractor, but he was badly burned and died as a result of his injuries.

As a result of Tamez's death, suit was filed¹ against the tractor's manufacturer, Mack Trucks, Inc., and others.² The Tamezes alleged that Mack defectively designed, manufactured and marketed the tractor. They claimed that Mack was liable for negligence, gross negligence, strict products liability, breach of warranty, and misrepresentation. All five theories were based on the same complaint: diesel fuel from the truck's fuel system originated the fire that burned Abram Tamez. Specifically, the Tamezes alleged that the tractor had design and manufacturing defects because (1) the fuel system was unreasonably prone to fail and release diesel fuel in an environment conducive to ignition and fire; and (2) the tractor had ignition sources such as hot manifolds and electric batteries in areas likely to contain released flammable fluids. The Tamezes also alleged that Mack failed to provide warnings about the defects.

In connection with its claims against Mack, the Tamezes identified Ronald Elwell as an expert on post-collision, fuel-fed fires. Mack moved to exclude his testimony as unreliable and moved for summary judgment. Mack asserted multiple grounds for seeking summary judgment. Some grounds for its motion were directed at particular plaintiffs, while some grounds were directed at all the Tamezes. One part of Mack's motion directed at all the Tamezes was a Rule 166a(i) motion urging that the Tamezes could present no evidence that any alleged defects caused the fire. The Tamezes responded to the no-evidence part of Mack's motion, in part, by filing Elwell's deposition and his expert report. They also later submitted Elwell's testimony from a bill of exceptions.

Pretrial matters, including a Robinson³ hearing pursuant to Mack's motion to exclude Elwell's testimony, were scheduled and heard. During the Robinson hearing Elwell testified. He expressed the opinion that the fire was started by the tractor's battery, which was located too near the fuel tanks, igniting the tractor's diesel fuel, which in turn ignited the trailer's cargo of crude oil.

The trial court granted Mack's motion to exclude Elwell's testimony as to causation. The Tamezes later moved the trial court to reconsider its decision. The court denied the motion but allowed the Tamezes to have Elwell testify again to create a bill of exceptions.⁴ The court signed an order excluding the causation portion of Elwell's testimony from being considered as evidence at any trial or hearing because it was not sufficiently reliable. Mack's motion for summary judgment was granted.

The court of appeals reversed the summary judgment, concluding that the trial court abused its discretion in excluding Elwell's causation testimony,⁵ and also concluding that Elwell's testimony provided some evidence of causation. The court of appeals' opinion indicates that in reaching its decision it considered Elwell's testimony from both the Robinson hearing and the bill of exceptions. See 100 S.W.3d 549, 556, 559, 561.

Mack urges that the trial court correctly excluded Elwell's testimony on causation, did not abuse its discretion in refusing to reconsider that ruling, and properly granted summary judgment because the Tamezes presented no evidence of causation. Mack asserts, among other matters, that the court of appeals erred by (1) considering Elwell's causation testimony from both the Robinson hearing and the bill of exceptions; (2) reversing the trial court's ruling as to admissibility of Elwell's causation testimony; and (3) reversing the summary judgment.

We conclude that the trial court did not abuse its discretion in excluding Elwell's testimony on causation and that the court of appeals erred in considering testimony from the bill of exceptions in evaluating the trial court's exclusion of Elwell's causation testimony. We further conclude that the Tamezes presented no summary judgment evidence of causation and summary judgment was properly granted.

II. Elwell's Bill of Exceptions Testimony

Mack argues that the court of appeals erred by considering testimony admitted only for the bill when it reviewed the trial court's exclusion of Elwell's causation testimony. The Tamezes claim that whether Elwell's bill of exceptions testimony is considered is not relevant because his bill testimony added nothing to his Robinson hearing testimony. Further, in their brief and at oral argument the Tamezes disclaim having urged in the court of appeals that the trial court erred in (1) holding a Robinson hearing, (2) the manner in which the hearing was conducted, (3) the timing of the hearing, or (4) denying their motion for reconsideration. Our review of their briefs in the court of appeals confirms the Tamezes' position. They do not contend here either that the bill of exceptions testimony was improperly excluded or that the trial court erred in denying their motion to reconsider.

The purpose of a bill of exceptions is to allow a party to make a record for appellate review of matters that do not otherwise appear in the record, such as evidence that was excluded. TEX. R. APP. P. 33.2; TEX. R. EVID. 103(a)(2); see also In re Ford Motor Co., 988 S.W.2d 714, 721 (Tex.1998). The court of appeals' opinion indicates that it considered Elwell's bill of exceptions testimony in evaluating the admissibility of his opinions even though the trial court did not. See 100 S.W.3d at 556, 559. As one example, the court of appeals referenced Elwell's opinion that at least one of the tractor's side fuel tanks became displaced during the rollover and separated the balance line connecting the two fuel tanks. Id. at 557. The court pointed to Elwell's testimony interpreting photographic evidence of steel straps which held the tanks as support for his opinion. Id. The referenced testimony as to Elwell's opinion and interpretation of photographic evidence was given as part of his bill of exceptions testimony, but he did not give similar testimony during the Robinson hearing.

Except for fundamental error, appellate courts are not authorized to consider issues not properly raised by the parties. See In the Interest of B.L.D., 113 S.W.3d 340, 350-52 (Tex.2003). We have described fundamental error as those instances in which error directly and adversely affects the interest of the public generally, as that interest is declared by the statutes or Constitution of our State, or instances in which the record affirmatively and conclusively shows that the court rendering the judgment was without jurisdiction of the subject matter. See McCauley v. Consol. Underwriters, 157 Tex. 475, 304 S.W.2d 265, 266 (1957). The court of appeals did not classify the trial court's refusal to allow the Tamezes to present further evidence and to then reconsider its ruling to exclude Elwell's causation testimony as fundamental error, and neither do we. The court of appeals erred in considering Elwell's causation testimony from the bill of exceptions without having first determined, pursuant to properly assigned error, that the trial court erred in refusing to admit the testimony and reconsider its decision to exclude Elwell's causation opinions. Under the record and issues presented to us, we may not consider Elwell's testimony from the bill of exceptions in determining whether the trial court erred in excluding Elwell's causation testimony. See Exito Elecs. Co. v. Trejo, 142 S.W.3d 302, 304 n. 1 (Tex.2004).

III. Reliability of Elwell's Testimony

A. Standard of Review

An expert witness may testify regarding "scientific, technical, or other specialized" matters if the expert is qualified and if the expert's opinion is relevant and based on a reliable foundation. TEX. R. EVID. 702; Helena Chem. Co. v. Wilkins, 47 S.W.3d 486, 499 (Tex.2001); Robinson, 923 S.W.2d at 556. In determining whether expert testimony is reliable, a court should examine "the principles, research, and methodology underlying an expert's conclusions." Exxon Pipeline Co. v. Zwahr, 88 S.W.3d 623, 629 (Tex.2002). When the testimony involves scientific knowledge, the expert's conclusions must be "grounded `in the methods and procedures of science.'" Robinson, 923 S.W.2d at 557 (quoting Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 590, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993)). Otherwise, the testimony is "no more than `subjective belief or unsupported speculation.'" Id. (quoting Daubert, 509 U.S. at...