Nabors Well Servs., LTD v. Romero

• Decision Date: 29 February 2016
• Docket Number: No. 08–09–00319–CV,08–09–00319–CV
• Citation: 508 S.W.3d 512
• Parties: NABORS WELL SERVICES, LTD, f/k/a Pool Company Texas, Ltd, and Lauro Bernal Garcia, Appellants, v. Asuncion ROMERO, Individually and as Representative of the Estate of Aide Romero, Deceased, and as Next Friend of Edgar Romero and Saul Romero, Esperanza Soto, Individually and as Next Friend of Esperanza Soto, Guadalupe Soto, Maria Elena Soto, and Martin Soto, Appellees.
• Court: Texas Court of Appeals

508 S.W.3d 512

NABORS WELL SERVICES, LTD, f/k/a Pool Company Texas, Ltd, and Lauro Bernal Garcia, Appellants,

v.Asuncion ROMERO, Individually and as Representative of the Estate of Aide Romero, Deceased, and as Next Friend of Edgar Romero and Saul Romero, Esperanza Soto, Individually and as Next Friend of Esperanza Soto, Guadalupe Soto, Maria Elena Soto, and Martin Soto, Appellees.

No. 08–09–00319–CV

Court of Appeals of Texas, El Paso.

February 29, 2016

Mauro F. Ruiz, Ruiz Law Firm, PLLC, McAllen, TX, Jeffrey R. Vaughan, Villalobos & Vaughan, PLLC, Richard J. Plezia, Richard J. Plezia & Associates, Scott McLamore, McLamore, Reddell, Ardoin & Story, PLLC, Houston, TX, for Appellees.

W. Bruce Williams, Cotton, Bledsoe, Tighe & Dawson, Midland, TX, for Appellants.

Before McClure, C.J., Rodriguez, and Hughes, JJ.

OPINION

ANN CRAWFORD McCLURE, Chief Justice

In this appeal we once again visit a tragic accident between a family traveling for the Christmas holidays and an oil field service vehicle. For the reasons noted below we reverse and remand in part, and affirm in part.

PROCEDURAL HISTORY

This case returns to us from the Texas Supreme Court. On initial review, we affirmed the trial court which had excluded evidence related to the alleged non-use of seat belts by most of the Appellees. Nabors Wells Services, Ltd. v. Romero, 408 S.W.3d 39, 41 (Tex.App.–El Paso 2013), rev'd, 456 S.W.3d 553 (Tex.2015). Appellants, who we collectively refer to as Nabors, sought to introduce evidence to show that the Appellees failed to use their seat belts, or failed to require others to use seat belts, which enhanced their injuries from the accident. We affirmed the trial court's exclusion of the evidence based on Carnation Co. v. Wong, 516 S.W.2d 116 (Tex.1974) which was the controlling law at the time.

On petition for review, however, the Texas Supreme Court concluded that the rationale of Carnation was no longer viable in light of intervening legislative and societal changes. 456 S.W.3d 563. In overruling Carnation, the court held: "relevant evidence of use or nonuse of seat belts, and relevant evidence of a plaintiff's pre-occurrence, injury-causing conduct generally, is admissible for the purpose of apportioning responsibility under our proportionate-responsibility statute, provided that the plaintiff's conduct caused or was a cause of his damages." Id. at 566–67. That still the leaves the question of whether this new rule requires a reversal in this case. The Texas Supreme remanded that issue for our consideration. Id. at 566.

We are generally faced with two questions in reviewing a trial court's decision to exclude evidence: was the exclusion error, and if so, was the exclusion harmful? Gee v. Liberty Mutual Fire Insurance Co., 765 S.W.2d 394, 396 (Tex.1989). The Texas Supreme Court's holding answers the first question for some of the excluded evidence in this case: if the evidence was excluded only on the basis of Carnation, the exclusion was error. But that leaves additional inquiries on remand: Was there any other valid basis for the exclusion of the evidence that the trial court relied on, and for any improperly excluded evidence, was the exclusion harmful? Appellees believe the first question is particularly relevant here, as the trial court excluded Nabors' biomechanical expert, at least in part, based on TEX. R. EVID. 702 grounds as articulated in E.I. du Pont de Nemours & Co. v. Robinson, 923 S.W.2d 549 (Tex.1995). Appellees also raise additional waiver issues which we did not address on first hearing the case. With that overview of the task before us, we turn to the evidence in the case.

FACTUAL BACKGROUND

On December 20, 2004, Martin Soto was driving his family from California to Mexico for the Christmas holidays. They were traveling in a 1993 Chevrolet Suburban. Martin did all the driving and his wife, Esperanza, was in the front passenger seat. Their nine-year-old daughter, Marielena Soto, was in an aftermarket seat that had been installed between the front driver and front passenger seats.

The Suburban had two rows for passenger seating. The Sotos' fifteen-year-old twins—Esperanza (who we will refer to by her nickname "Mino") and Guadalupe were in the middle row. Mino was most likely seated behind the driver's seat, and Guadalupe was seated behind the front passenger seat. In the back row, Martin Soto's stepdaughter, Aydee Romero, was in the middle seat. Her children, Edgar Romero and Saul Romero, were to either side of her. There is some dispute in the evidence as to which child was on the right and which on the left.

The Accident

At about 4:30 a.m. the Suburban was headed Southbound on U.S. 285 just outside of Fort Stockton, which at that point is a two lane highway. The Suburban was overtaking a Nabors oil field service truck being driven by Lauro Garcia, which was also southbound. Martin moved into the on-coming lane of traffic to pass the slower moving Nabors vehicle. As he was passing the Nabors truck, however, it began a left hand turn which caused the two vehicles to collide. Upon impact, the Suburban skidded to the side, rotated clockwise, and then began rolling over with driver's side leading the roll. It made three complete revolutions before coming to rest upright on its tires. A rollover with three complete revolutions would rank in the top 0.2 percent in terms of severity for such accidents.

Had the trial court allowed evidence about the use or non-use of seat belts, there would have been sharply disputed evidence about whether some of the occupants were belted. A Department of Public Safety report noted that all but Marielena and Esperanza Soto were unbelted at the time of the accident. Depositions taken in the case, however, yielded testimony that Esperanza, Marielena, and Mino were unbelted. There was also a dispute over who was ejected from the Suburban in the crash. The same DPS report concluded that only Aydee Romero was ejected. The DPS officer who completed the report, however, did not arrive on the scene until an hour and half after the accident. The EMTs on scene reported that one of the Appellees, likely Guadalupe, stated that all but one of the Appellees were ejected in the accident.

The Injuries, Evidence of Seat belt Use, and Ejection

We summarize each Appellee's injuries and the evidence about belt use and possible ejection from the Suburban.

Martin Soto

Martin Soto was belted and stayed in Suburban as it rolled over. Following the accident, he stayed at the scene until well after the other occupants of the Suburban were transported by ambulance. He later went to the Pecos County Hospital Emergency room and was evaluated for complaints of neck, rib, and shoulder pain. He was released that same day and introduced no evidence of follow up care.

Esperanza Soto

An EMT who arrived on the scene at 5:22 a.m. found Esperanza lying on the ground on her right side with multiple right side injuries. The EMT noted she was ejected from the vehicle and that she had "road rash" abrasions to her right side. The emergency room record states she was ejected from the vehicle, but she herself had no memory of the accident. Her husband testified that she was ejected. She fractured her pelvis

and hip, broke several ribs on her right side, perforated a lung, and had a hairline fracture to the right shoulder. Nabors could have presented direct testimony that she was unbelted at the time of the accident.

Marielena Soto

Marielena was the first priority patient at the scene. By the time EMTs arrived, the fire department already had her on a backboard. She was assessed with possible fractures and a closed head injury

; she was largely unresponsive. At Pecos Memorial Hospital, she was intubated and prepared for air transport to a pediatric ICU unit in Lubbock. She was still unresponsive by the time she arrived in Lubbock and remained on a ventilator for two days. She had a partially collapsed left lung. When she regained consciousness, she complained of left heel pain, which turned out to be a fractured calcaneus bone in her foot. Marielena had an orbital fracture from the head trauma which was sufficiently severe to cause a subdural hematoma and severe brain trauma. She lost vision in her right eye from the orbital fracture The resulting frontal orbital syndrome lead to a severe traumatic brain injury. Marielena was in the pediatric ICU unit in Lubbock for eleven days. Her medical record contains multiple references to an ejection after an automobile accident. Nabors could have presented some direct testimony that Marielena was unbelted.

Mino Soto

Mino was found by the EMTs lying on the street. She was minimally responsive and had a large abrasion on her right arm and shoulder. Her condition began to deteriorate while being transported to the local hospital. Once there, she was intubated and air-flighted to a pediatric ICU in Lubbock. She was diagnosed with a closed head injury

resulting in a small subdural hematoma. She on a ventilator for two days and remained in the hospital a total of eleven days. Her discharge summary from the hospital notes that she was ejected in the accident She had abrasions on both of her arms and face which a treating doctor agreed were consistent with road rash, which in turn is consistent with an ejection injury. She testified at trial to having a road rash scar. Multiple other medical records similarly recite that she was ejected. Nabors could have presented direct testimony that she was unbelted.

Guadalupe Soto

Guadalupe was found ambulatory at the scene by the EMTs. She had an avulsion injury

to her finger (her finger nail was detaching from the finger and was removed) and she had a few scratches and cuts. While the ER physician believed she had been ejected, as did Martin, she testified that she was belted at the time of the accident.

Aydee Romero

The DPS report and depositions of all the participants agree that Aydee Romero was ejected from the Suburban. She died at the scene. Photos show her body lying...