Taylor v. American Fabritech, Inc., 14-02-00982-CV.

CourtCourt of Appeals of Texas
Citation132 S.W.3d 613
Docket NumberNo. 14-02-00982-CV.,14-02-00982-CV.
PartiesCatherine TAYLOR, Individually and as Next Friend of Charles D. Taylor, NCM, Appellant, v. AMERICAN FABRITECH, INC., Mike Hicks, Sr., and LMS Rentals, Inc., Appellees.
Decision Date23 March 2004

Robert Oberholtzer, David W. Holman, Robert Alan York, Houston, Daniel Defoe, Edward J. Hershewe, Joplin, for appellant.

Christopher William Carr, Steven L. Russell, Jerry Fazio, Dallas, Carl E. Clover, Sealy, for appellees.

Panel consists of Justices ANDERSON and SEYMORE and Senior Chief Justice



PAUL C. MURPHY, Senior Chief Justice (Assigned).

Catherine Taylor, individually and as next friend of Charles Taylor, NCM, sued American Fabritech, Inc., Mike Hicks, and LMS Rentals, Inc., for injuries Charles Taylor sustained when he fell through a skylight while working on a construction project. All parties appeal from a final judgment awarding damages to Taylor but awarding certain offsets to appellees.1

On appeal, appellees contend the trial court erred (1) in admitting testimony from several of the plaintiff's expert witnesses, (2) in permitting the jury to view the property where the accident occurred, (3) in permitting plaintiff's counsel to make improper jury argument, and (4) in refusing to declare a mistrial after insurance coverage was mentioned before the jury. Taylor contends that the trial court erred in awarding offsets against the judgment for payments from an employee benefit plan and for any governmental benefits received. The parties are familiar with the facts, so we will not recount them in detail here. We modify the judgment to remove the offset for future governmental benefits and, as modified, affirm.

The Experts

In their first issue, appellees contend the trial court erred in denying their motion to exclude various experts for Taylor.2 Stephen Estrin, a builder, testified regarding construction safety issues and OSHA requirements. Dr. Thomas Mayor, an economist, testified regarding Charles Taylor's lost earning capacity and the predicted costs of his care. Terry Winkler, M.D., testified about the "Life Care Plan" he prepared for Charles Taylor, which provided for medical care and living assistance. Lastly, Dr. William Havins, a psychologist, testified about Charles Taylor's nervous system injuries and his current and expected levels of function.

We review challenges to the admission of expert testimony under an abuse of discretion standard.3 The testimony of a qualified expert is generally admissible when scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact issue.4 The trial court has the gatekeeper function of ensuring that expert testimony is based on a reliable foundation and is relevant to the issues in the case.5 Once the party opposing the expert testimony specifically objects, the proponent bears the burden of demonstrating admissibility.6

Appellees attack the reliability of each of the experts' testimony.7 In Robinson, the Texas Supreme Court held that expert opinion of a scientific nature required an initial inquiry as to whether the testimony was based on a reliable scientific foundation, and the court went on to list certain factors it deemed useful in such inquiry.8 In Gammill, however, the court explained that although trial courts must assess the reliability of all expert testimony, the Robinson factors will not always be relevant to the inquiry, particularly when the proffered testimony is based not on scientific research or theories but on the expert's experience and knowledge in his or her field.9

Taylor's experts in the present case were not offering testimony of a scientific nature. Analyzing whether safety measures could have prevented an accident, calculating the costs of medical care, lost earnings, and living assistance, and explaining the severity of a person's injuries are not scientific inquiries under the Robinson/Gammill framework. In forming their opinions, these experts relied not on specific scientific research or studies but on their own experience, education, and review of the literature in their fields. Hence, the trial court was required to consider whether the testimony was based on a reliable foundation and whether it was relevant to issues in the case, but the court was not required to analyze all of the specific factors noted in Robinson.10

In cases involving nonscientific expert testimony, Gammill instructs us to consider whether there is an "analytical gap" between the experts' opinions and the bases on which they were founded.11 Thus, we will take a closer look at each of the experts' proffered testimony, the underlying foundation of that testimony, and appellees' specific complaints, if any, regarding the reliability of the testimony.

Estrin's affidavit contained a lengthy explanation of the subjects he expected to testify regarding and the bases for his opinions. Generally, he expected to testify regarding Charles Taylor's fall from a height, the availability of fall prevention equipment and techniques, and the conditions at the construction site. He based his testimony on his own experience and his knowledge in the fields of construction safety and accident investigation.12 He stated that he had a master's degree in civil engineering and postgraduate certificates in occupational safety and health and public safety, and he has been qualified by the Workmen's Compensation Commission of Texas as a "professional safety source in construction." He has also taught courses on construction safety and specifically has taught on fall protection.13 He stated that his analysis was based on established principles of safety engineering and management and that his investigative technique was widely accepted in the field, namely "to establish the who, what, when, why, where, and how, to analyze the events based upon the best available testimony ... then to evaluate the building plans and documents...." He listed various regulations, articles, programs, product data sheets, and case documents he relied upon in deriving his conclusions. In sum, there appears to be no significant analytical gap between Estrin's proffered testimony and the stated basis therefore.14

Against Estrin, appellees further specifically complain that (1) he did not perform a site inspection or review the sheriff's accident report; (2) no affidavit or deposition testimony was attached to the response to the motion to exclude; (3) his testimony was not helpful as it was in the common knowledge; and (4) he was wrong about the requirements of OSHA15 regulations. Regarding the lack of a site inspection, Estrin indicated it was not necessary in light of the building plans and documents he was given. It should also be noted that he was shown, and allowed to review, the sheriff's report during his deposition, so by the time of trial he had, in fact, reviewed the accident report. Indeed, at the deposition he stated the report contained nothing that would make him change his conclusions regarding the incident. Appellees' second argument is based on an erroneous assertion because the record does actually contain both deposition testimony from Estrin and an affidavit signed by him.16 On the third argument, the subject of Estrin's testimony—the necessity and adequacy of fall protection around skylights in building construction—is clearly not a matter within the knowledge of the average juror.17 Estrin himself pointed out that he had taught courses involving fall protection. It also appears highly unlikely the average juror would know what was available for such construction work or what the standards for safety were in the industry.18

Lastly, appellees contend Estrin's testimony was unreliable because he erroneously stated that OSHA regulations are mandatory in Texas, citing Supreme Beef Packers, Inc. v. Maddox, 67 S.W.3d 453, 457 (Tex.App.-Texarkana 2002, pet. denied).19 However, appellees cite to no place in the record where they made this argument to the trial court, nor has our review found any such argument.20 Appellees cite to a portion of the record wherein they objected to the reading of OSHA regulations by Estrin before the jury, but this objection was premised solely on the argument that the law should be given to the jury only in the court's charge and not read into the record by a witness. The argument is not made at that point that Estrin's testimony was unreliable because he made erroneous statements regarding OSHA, nor is the objection made at the time Estrin repeatedly made the objectionable statements.21 Accordingly, appellees failed to preserve this argument for appellate review.22 In sum, we find the trial court did not abuse it's discretion in admitting Estrin's expert testimony.

Dr. Mayor expected to testify regarding his evaluation of economic losses suffered by Charles Taylor due to his impairment. Mayor has a Ph.D. in Economics, is a former chairman of the Department of Economics at the University of Houston, and has considerable experience in the analysis of personal injury damages. In his deposition, he stated that he based his evaluation on standardized principles in the field of economics that have been peer reviewed. He further stated he reviewed the Life Care Plan created by Dr. Winkler for Charles Taylor, as well as Taylor's medical and employment records and deposition testimony and interviews. Although he said he based his calculation, at least in part, on the level of care in the Life Care Plan, he also said he could adjust his figures accordingly if changes were made to that plan. He further stated he based his present value calculations on what has happened in the past, by looking at Taylor's earnings history, as well as statistics from the U.S. Bureau of Labor Statistics, the Census Bureau, and standardized life expectancy tables. He stated the...

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