Tamez v. Mack Trucks, Inc., 13-00-00386-CV.

• Court: Court of Appeals of Texas
• Citation: 100 S.W.3d 549
• Docket Number: No. 13-00-00386-CV.,13-00-00386-CV.
• Parties: Elizabeth TAMEZ as Next Friend of Abram Joshua Tamez and Erica Roxanne Tamez, Minor Children, et al., Appellants, v. MACK TRUCKS, INC., Appellee.
• Decision Date: 27 February 2003

100 S.W.3d 549 Elizabeth TAMEZ as Next Friend of Abram Joshua Tamez and Erica Roxanne Tamez, Minor Children, et al., Appellants,
v.
MACK TRUCKS, INC., Appellee. No. 13-00-00386-CV. Court of Appeals of Texas, Corpus Christi-Edinburg. February 27, 2003. Rehearing Overruled April 17, 2003.

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John Blaise Gsanger, Edwards Law Firm, Michael G. Terry, Hartline, Dacus, Barger, Dreyer & Kern, Corpus Christi, David O. Gonzalez, Law Offices of Baldemar Gutierrez, Alice, for Appellant.

Charles B. Kirklin, Glen Boudreaux, Kirklin, Boudreaux & Leonard, Brock C. Akers, Phillips & Akers, Houston, Bruce D. Bain, Jerry Fazio, Dodge, Fazio, Anderson & Jones, Dallas, Baldemar Gutierrez, Alice, John Gonzales, John Gonzales & Assoc., Randy Howry, Sean E. Breen, Herman, Howry & Breen, Austin, William A. Abernathy, Meredith, Donnell & Abernathy, Corpus Christi, for Appellee.

Before Justices HINOJOSA, YAÑEZ, and DORSEY.¹

OPINION

Opinion by Justice HINOJOSA.

After excluding the expert witnesses of appellants, plaintiff² and intervenors³ below, the trial court granted the motion for summary judgment of appellee, Mack Trucks, Inc. ("Mack Trucks"). We reverse the trial court's summary judgment order and remand the case to the trial court for further proceedings.

A. BACKGROUND AND PROCEDURAL HISTORY

On October 19, 1996, Abram Tamez ("Tamez") was operating a tanker trailer hauling thousands of gallons of crude petroleum. The tractor was designed, manufactured and marketed by appellee Mack Trucks. The tractor and tanker were owned by Tamez's employer, Norco Crude Gathering, Inc. Tamez was delivering the

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crude petroleum to the Norco facility from a well site in rural Bee County.

At the time of the accident, Tamez was negotiating a curve in the road when his vehicle overturned. The vehicle subsequently burst into flames. Tamez was able to climb out of the cab; however, his body became engulfed in flames, and he suffered third-degree burns over ninety-six percent of his body. Tamez was airlifted to Brooke Army Medical Center's burn-unit, where he died on October 30, 1996, as a result of his injuries.

Appellants sued Norco Crude Gathering, Inc., Glitsch Canada Limited, Snyder Tank Corp., Freuhoff Trailer Corp., and Mack Trucks for negligence, strict liability, breach of implied warranty, and misrepresentation. Appellants eventually nonsuited Freuhoff Trailer Corp. and settled with Norco Crude Gathering, Inc., Glitsch Canada Limited and Snyder Tank Corp., leaving Mack Trucks as the sole defendant.

Appellants alleged that a defect in the fuel system of the Mack truck in question was the producing cause of the fire which injured Tamez. Appellants' expert, Ronald Elwell, arrived at this conclusion after reviewing the evidence in the case. Mack Trucks subsequently moved to exclude Elwell's expert testimony because it was not scientifically reliable. Following the requisite Daubert⁴ hearing, the trial court granted Mack Trucks' motion to exclude Elwell's testimony because his opinion was not sufficiently reliable. Appellants offered a bill of exception, clarifying their expert's testimony, and moved for reconsideration. The trial court denied the motion.

Mack Trucks then filed a supplemental⁵ no-evidence motion for summary judgment, asserting there was no evidence of causation because Elwell's testimony had been excluded. Appellants offered the affidavits of another expert, Douglas Holmes, to defeat the no-evidence motion for summary judgment, but the trial court also struck Holmes's testimony. The trial court then granted the motion for summary judgment on unspecified grounds. The settled claims were later severed from the case, and a final order granting summary judgment was signed on June 23, 2000. This appeal ensued.

B. ISSUES PRESENTED

In two issues, Elizabeth Tamez contends: (1) the trial court erred in granting Mack Trucks' motion for summary judgment because there is a genuine issue of material fact that the design defect at issue was the producing cause of Tamez's injuries and death; and (2) the trial court erred in excluding appellants' expert witnesses because these experts are highly qualified and their opinions are relevant and reliable.

In five issues, the Guerrero appellants contend the trial court erred in granting Mack Trucks' motion for summary judgment: (1) because (a) there is some evidence of a producing cause, (b) the trial court abused its discretion in excluding the testimony of Douglas Holmes, and (c) the trial court abused its discretion in excluding the testimony of Ronald Elwell; (2) on

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their claims of negligence, manufacturing defect, and marketing defect by applying Hyundai Motor Co. v. Rodriguez, 995 S.W.2d 661 (Tex.1999); (3) on their claim of marketing defect because Tamez knew that his cargo was hazardous; (4) on the claims of Sarah Beth Guerrero and Gregory Alan Guerrero because they were not Tamez's natural children; and (5) on the claim of Donna Kim Cantu because she was not Tamez's child and that her claim was barred by limitations.

Elizabeth Tamez has incorporated, by reference, certain portions of the appellate brief of the Guerrero appellants. See TEX. R.APP. P. 9.7. Rosendo Tamez has incorporated and adopted the appellate briefs of Elizabeth Tamez and portions of the appellate briefs of the Guerrero appellants. Id. Consequently, Rosendo Tamez's claims will be included in our discussion of the issues presented by Elizabeth Tamez and the Guerrero appellants. Rosendo Tamez also contends the trial court erred in granting Mack Trucks' motion for summary judgment against the estate on the basis of limitations.

C. EXCLUSION OF EXPERT TESTIMONY

In the second issue of Elizabeth Tamez and Rosendo Tamez and the second and third sub-issues of the Guerrero appellants' first issue, appellants contend the trial court abused its discretion by excluding their expert witnesses, Elwell and Holmes. Appellants assert these witnesses were qualified as experts and their opinions were relevant and reliable.

Texas Rule of Evidence 702 provides: "[i]f 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. EVID. 702. To meet admissibility, the expert must be qualified, and the testimony must be relevant and be based on a reliable foundation. E.I. du Pont de Nemours & Co. v. Robinson, 923 S.W.2d 549, 556 (Tex.1995). Whether the expert and the proffered testimony meet these requirements is a preliminary question for the trial court. Id.; see also TEX.R. EVID. 104(a). The trial court has broad discretion to determine admissibility of expert testimony and the appellate court should reverse only if there is an abuse of that discretion. Helena Chem. Co. v. Wilkins, 47 S.W.3d 486, 499 (Tex.2001). The test for abuse of discretion is whether the trial court acted without reference to any guiding rules or principles. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex.1985). A reviewing court cannot conclude that a trial court abused its discretion simply because, in the same circumstances, it would have ruled differently, or if the trial court committed a mere error in judgment. Robinson, 923 S.W.2d at 558; Loftin v. Martin, 776 S.W.2d 145, 146 (Tex.1989). The party offering the expert's testimony bears the burden to prove that the witness is qualified under Rule 702. Broders v. Heise, 924 S.W.2d 148, 151 (Tex.1996); Boren v. Bullen, 972 S.W.2d 863, 865 (Tex.App.-Corpus Christi 1998, no pet.).

1. Ronald Elwell

Ronald Elwell attempted to testify as an expert in the field of post-collision fuel-fed fires. Elwell has a bachelor's degree in mechanical engineering. He worked for General Motors Corporation ("GM") for thirty years. During his employment, Elwell was GM's chief fire investigator on fuel tank systems in cars, trucks, buses and some stationary power plants. The types of trucks Elwell analyzed included heavy duty trucks like the tanker trailer

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involved in the instant case. From 1971 to 1987, he was assigned to GM's engineering analysis group. One of the responsibilities of this group was to monitor and study the performance of GM vehicles in the hands of GM customers, specifically, GM vehicles involved in collisions which gave rise to products liability lawsuits. Elwell was one of the engineers responsible for fuel system analysis who assisted GM in defending post-collision fire litigation. Elwell spent sixteen years analyzing. GM vehicles involved in post-collision fuel-fed fires. Elwell's duties at GM included: (1) consulting with design groups on fuel tank design; (2) testing competitors' products for fuel system security; (3) making presentations to management on issues impacting fuel system failures; and (4) evaluating outside experts in fuel design; fuel system design, fire causation analysis, accident reconstruction, and material performance. While at GM, Elwell investigated more than 300 post-collision fuel-fed fires. Since 1991, Elwell has been a self-employed consultant, conducting product integrity and accident reconstruction analysis, including fuel system component analysis and fire accident analysis.

In its motion to exclude, Mack Trucks did not challenge Elwell's testimony on the basis that he was unqualified to testify as an expert in post-collision fuel-fed fires. Mack Trucks only asserted that Elwell's opinions were not founded on scientifically reliable evidence.

When the reliability of an expert's testimony is challenged, the trial court must "evaluate the methods, analysis, and principles relied upon in reaching the opinion ... [in order to] ensure that the opinion comports with applicable professional standards outside the...