Robinson v. E.I. du Pont de Nemours and Co., Inc.

• Citation: 888 S.W.2d 490
• Decision Date: 06 July 1994
• Docket Number: No. 2-93-251-CV,2-93-251-CV
• Parties: C.R. ROBINSON and Shirley Robinson, Appellants, v. E.I. du PONT de NEMOURS AND CO., INC., Appellee.
• Court: Texas Court of Appeals

Page 490

888 S.W.2d 490

C.R. ROBINSON and Shirley Robinson, Appellants, v. E.I. du PONT de NEMOURS AND CO., INC., Appellee.

No. 2-93-251-CV.

Court of Appeals of Texas,

Fort Worth.

July 6, 1994.

Rehearing Overruled Aug. 9, 1994.

Charles Kennedy, Arlington, for appellants.

Larry E. Cotten, David A. Lowrance, Kirkley Schmidt & Cotten, Fort Worth, for appellee.

Before LATTIMORE, WEAVER and DAY, JJ.

OPINION

WEAVER, Justice.

C.R. and Shirley Robinson sued E.I. du Pont de Nemours and Co., Inc. ("DuPont") under the Deceptive Trade Practices Act and for strict products liability. The Robinsons alleged their pecan orchard suffered damage as a result of continued use of the fungicide Benlate 50 DF, produced by DuPont. Acting upon a motion made by DuPont, the trial court excluded the testimony of the Robinsons' only expert witness on causation, Dr. Carl Whitcomb. After this action, the parties agreed to try the case nonjury, with the stipulation that in the event of reversal, a subsequent trial would be to the jury. At trial, the Robinsons again sought to introduce Dr. Whitcomb's testimony. The court denied the testimony, choosing to abide by its previous ruling. The Robinsons offered an informal bill of exception, and now seek relief from this Court, claiming the trial court abused its discretion in excluding Dr. Whitcomb's testimony. We agree with the Robinsons, and after finding that error was properly preserved, reverse and remand this cause for a new trial.

At the original hearing on DuPont's motion to exclude Dr. Whitcomb's testimony, the trial court found, as contained in the findings of fact, that Dr. Whitcomb's testimony: 1) was not grounded upon careful scientific methods and procedures; 2) did not demonstrate a careful scientific investigation upon which reliable conclusions could be based; 3 & 4) was not shown to be based on scientifically valid reasoning and methodology or have a reliable basis in the knowledge and experience of his discipline (horticulture); 5 & 6) was not based on theories and techniques that had been properly subjected to peer review and publication, and that there was no showing that they would have received any degree of acceptance within the relevant scientific community. At trial, the Robinsons again offered Dr. Whitcomb's testimony and the trial court sustained DuPont's objection leaving in effect its previous ruling granting the motion to exclude. The Robinsons offered an informal bill of exception pursuant to Texas Rule of Appellate Procedure 52(b). See TEX.R.APP.P. 52(b). Upon completion, DuPont again urged the court to continue upholding its prior ruling. The court responded:

All right. As I'm reading Rule 52(b) here in the Rules of Appellate Procedure, it appears to me there's very little the court needs to say--or the judge needs to say at this point except that I would like to say that I am bearing in mind what Mr. Cotten has just referred to concerning objections, and that I feel like I do need to say something to the effect that as I have listened to the summarized version of the testimony by Dr. Whitcomb, to a certain extent it is inconsistent with his very specific testimony in the deposition.

And the--whoever's reading this record, such as the Court of Appeals, will have the opportunity to judge for themselves exactly what all the evidence is that's before the court and that's in the record. And I simply call attention to that fact.

DuPont claims this was not sufficient to preserve error on the bill because the court did not express a ruling on the bill; we disagree.

An informal bill of exception preserves error if: (1) an offer of proof is made before the court, the court reporter, and the opposing counsel, outside the presence of the jury ¹; (2) it is preserved as part of the statement of facts; (3) and it is made before the charge is read to the jury. 4M Linen & Uniform v. W.P. Ballard & Co., 793 S.W.2d 320, 323 (Tex.App.--Houston [1st Dist.] 1990, writ denied) (opinion on reh'g). All of these requirements were met. From reading the record, it is uncertain whether the trial court, in saying "all right," was simply acknowledging DuPont's request to uphold its prior ruling, or was in answer to it. But the statement that follows makes it very clear that the trial court was making every attempt to follow the appellate rule and preserve the bill of exception for the appellate record. Because of this, we assume by a common-sense reading of the objection and the court's ruling that the trial court necessarily overruled the bill in keeping with its prior ruling. Acord v. General Motors Corp., 669 S.W.2d 111, 114 (Tex.1984) and ...