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Greenwood Motor Lines, INC. v. Bush

Court of Appeals of Texas, Fifth District, Dallas

April 28, 2017


         On Appeal from the 298th Judicial District Court Trial Court Cause No. DC-11-16041-M

          Before Justices Bridges, Stoddart, and O'Neill [1] Opinion by Justice Bridges



         On the Court's own motion, we withdraw our opinion issued December 30, 2016 and vacate our judgment of that date. The following is now the opinion of the Court.

         Greenwood appeals the trial court's judgment, following a jury verdict, in favor of Bobbie Bush. In five issues, Greenwood argues the evidence is legally and factually insufficient to support the jury's findings and the trial court erred by (1) incorrectly handling spoliation allegations, (2) admitting certain expert testimony, (3) admitting evidence of Greenwood's preventability assessments, and (4) allowing the jury to hear allegations of Greenwood's net worth. In seven issues, Gaston argues the evidence is legally and factually insufficient to support the jury's findings and the trial court erred by (1) striking certain jurors for cause, (2) admitting certain expert testimony, (3) admitting a "summary" of Gaston's own testimony, (4) excluding certain evidence, (5) admitting evidence of Gaston's prior bad acts, and (6) allowing Bush's counsel to make certain improper and prejudicial arguments. We affirm the trial court's judgment.

         On December 5, 2011 at approximately 9:30 p.m., Bush was driving east on Interstate 20 near Weatherford when a tractor-trailer driven by Gaston struck Bush from behind. Gaston's vehicle flipped over multiple times, causing her physical and neurological injuries. On December 22, 2011, Bush filed a lawsuit against Gaston and his employer, Greenwood, alleging claims of negligence, negligence per se, and gross negligence. The lawsuit progressed, and, on May 15, 2013, Greenwood filed its original answer in which it argued Bush's own negligence was "the sole proximate cause or a proximate cause and/or the sole producing cause or a producing cause of the accident." In addition, Greenwood argued the accident was an unavoidable accident or the result of a sudden emergency; Bush's claim for punitive damages was insufficiently pled; and Greenwood could not be held liable for punitive damages because its actions were in compliance with regulatory or statutory standards, its actions did not cause Bush harm, Bush's injury was caused by someone else, and Bush was the sole cause of her injury or her negligence contributed to her injury. In the alternative, Greenwood argued any award of punitive damages was subject to a statutory cap or was barred by the Fourth, Fifth, Sixth, Eighth, and Fourteenth Amendments to the United States Constitution.

         Following numerous hearings on motions for sanctions, motions to exclude expert witnesses, and motions to compel, among others, the case proceeded to trial in March 2014. Bush testified that, on December 5, 2011, she was driving her 1994 Chevrolet pickup truck with boxes of household goods in the bed with a tarp covering them. Bush's two dogs were in a "doggy car seat" attached with the seat belt in the seat next to her. Bush was in the process of moving from Las Vegas to Mississippi. The boxes in the bed of the truck did not prevent Bush from seeing out of the rear sliding window or "both side windows." Neither "the stuff in [the truck] bed" nor the tarp covered the truck's taillights. Bush drove through a construction zone in Weatherford and was traveling "a few" below the speed limit in the right lane. Bush was "rear-ended" and described the accident as "like lights, screech, boom and literally three seconds." Bush's truck "started spinning and started to flip." Bush did not remember anything "from the flip . . . to seeing lights" and found herself hanging upside down with her seat belt choking her. As Bush was trying to get out of the truck, she saw "lights and sirens and realized it was the police and ambulance people." Bush remembered a female police officer asking if Bush was okay and taking her to an ambulance. Both of Bush's dogs died in the accident. Initially, Bush refused to go to the hospital, but she developed blurred vision, migraines, nausea, and painful bruises, so she went to the emergency room several days later. Bush received ongoing treatment and required surgery to her neck that required "six pins and two plates." At the time of trial, Bush was "never pain free, " and she required back surgery when her doctor cleared her following the neck surgery.

         Gaston testified he rear-ended Bush, and the impact from the collision caused Bush's truck to "flip off the roadway." Gaston testified Bush's taillights were not covered by a tarp, and "nothing about the tarp caused this collision." Gaston thought Bush "could be on the side of the road dead, " but he did not call 911 because he "could hear sirens already." Gaston "checked on" Bush and then used his cell phone to call Greenwood. Gaston "talked to a lady, " Misty Urton, at Greenwood for about ten minutes and then "started receiving phone calls from somebody else" at Greenwood. Urton created a "preliminary even report" within ten minutes of the accident. The report stated "snow" under weather conditions, "wet" under road conditions, and 65 miles per hour under driver's speed. Gaston testified he "did not tell anybody" he was going 65 miles per hour and denied there was snow on the road and denied that the road was wet. Bush's counsel asked Gaston if the mobile data terminal (MDT) on his truck could have told "somebody" at Greenwood his speed, and Gaston answered, "I assume." Gaston testified he knew the MDT records location, but he was "not sure about the speed." Gaston testified he was told the MDT "records location and your speed, " but he was "looking at other papers" and noticed "the speed that is showing is not correct." The MDT in Gaston's truck provided information on the truck's location and speed on the day of the accident up until approximately 3:00 p.m. and then the information stopped until approximately 1:00 or 2:00 a.m. Gaston testified the only way the data would not be recorded was if the MDT was unplugged, but it was not unplugged.

         Gaston testified he kept a logbook in which he recorded the times he drove, and Greenwood had an obligation to monitor his logbook and make sure he was complying with federal requirements concerning rest periods. In his logbook entry for the day of the accident, which Gaston filled out four days later, he did not record the accident. Gaston testified he "falsified the log." On the day of the accident, Gaston's truck was pulling "doubles, " two twenty-eight-feet-long trailers. The only training he received from Greenwood concerning doubles was "how to connect them." After that, Gaston "learn[ed] how to operate the Doubles by getting out on the road and getting experience."

         Bush introduced the deposition testimony of Thames Do, who testified that, on December 16, 2003, Gaston rear-ended him "on the rear of the left side and caused the damage on the left rear side, you know, in the signal lights." After the accident, Do stopped on the side of the freeway and waited for "the driver of the semi truck to stop it, " but the driver did not stop. Do followed the truck "for several miles at least" and recorded the license number of the truck. Meanwhile, Do was honking his horn and flashing his lights, but the truck did not stop. The next day, Do filed a police report and contacted Greenwood. After Do sent Greenwood an estimate for repair of the damage, pictures of the damage, "the serial number of the truck and everything, Greenwood denied Do's claim. Do sued Greenwood in Dallas small claims court, and Greenwood offered to settle his claim. Greenwood determined the accident between Gaston and Do was "preventable" and notified Gaston of this determination in February 2004.

         Oscar Reyna testified that, in April 2007, he was driving on a bridge on Interstate 20 when Gaston came up behind him, jackknifed his trailer, and hit Reyna from behind, causing Reyna to hit the vehicle in front of him. Gaston was ticketed for failure to control speed. Again, Greenwood notified Gaston the accident was ruled as "preventable" by Greenwood.

         Whitney Morgan testified he audited Gaston's logs "not only for what the logs say on the face of the log for completeness purposes but also against any time or date relevant operational documents of the motor carrier." Morgan described "pattern logging" as "a term of art in the industry that deals with information on the driver's log that is the same on each log, each day, day in and day out." Morgan reviewed Gaston's logs relating to a five-month period and found pattern logging was present: Gaston was "averaging the exact same speed every single day that he drove, 61 miles an hour." Morgan testified the presence of pattern logging was "a red flag" that "should give the carrier notice that there may be a problem with these logs."

         The jury found (1) Gaston's negligence proximately caused the occurrence in question, and Bush's did not; (2) Gaston was 100% responsible for the occurrence; (3) Greenwood's negligence in entrusting a vehicle to an incompetent or reckless driver proximately caused the occurrence; (4) Greenwood's negligence in retaining or supervising an incompetent or unfit employee proximately caused the occurrence; (5) Greenwood was negligent in failing to provide training beyond that which was given, and such negligence was a proximate cause of the occurrence because the negligence of the driver whom Greenwood failed to properly train was a proximate cause of the collision; (6) the harm to Bush resulted from gross negligence attributable to Gaston; and (7) the harm to Bush resulted from gross negligence attributable to Greenwood. The jury charge did not contain a spoliation instruction. In accordance with the jury's verdict, the trial court entered judgment awarding Bush $4, 088, 669.28 in actual damages, $50, 000 in punitive damages, and interest. This appeal followed.

         In his first issue, Gaston argues the trial court erred by not allowing him a jury of his peers, which denied appellants their right to a fair trial. Specifically, Gaston argues the trial court "struck for cause all jurors who would not affirmatively commit to award limitless non-economic damages to Bush." In addition, Gaston complains other venire members were stricken because "they generally question lawsuits and favor tort reform" or because they "had sympathies toward trucking companies." Gaston complains the trial court erred in allowing Bush to "systematically remove from the panel dozens of venire members she found unfavorable to her before ever having to utilize a single peremptory strike." Gaston argues this violated his right to due process and to a jury trial under the United States Constitution and the Texas Constitution, "by denying Gaston his right to a jury selected from a fair and reasonable cross-section of the community." Gaston argues none of the jurors stricken for cause "expressed a bias or prejudice because of their lack of commitment to a damages award."

         Regarding the disqualification of jurors, the trial court stated the following:

The Court, I believe, made clear that with respect to the award of damages, that the Court was not considering those who had testified that they couldn't award millions of dollars for one thing or another as being disqualified, but that the Court was considering those who said they couldn't award, at all, certain types of damages, even if the evidence supported it, and they had an opportunity to have such a question. So, I do want to make clear that with respect to the cause challenges, that the Court did not consider any of those who said that they - to be disqualified, who said that they couldn't award hundreds of thousands of dollars, or whatever the question was, for certain types of - I think they were mental anguish and pain and suffering.

         The record further reflects that, during voir dire, some of the stricken venire members, when asked whether the amount of money someone can recover in a lawsuit should be limited, agreed "regardless of the evidence, the instructions of the Court, [they] would place [their] own cap on it." Other stricken venire members said they could not award damages for mental anguish or pain and suffering "regardless of the evidence or the instructions of the Court or the testimony and exhibits." Still others said they "could not award punitive damages regardless of whether the facts, evidence and the law allowed for it." Finally, one venireperson said he "generally d[id] not believe in lawsuits, " and another said he had strong connections to the trucking industry and financial relationships with the trucking industry, and he could not "set aside [his] positive connections and beliefs about the trucking industry." Thus, contrary to Gaston's argument, the record reflects the stricken members of the venire said they could not award any damages for certain types of claims, regardless of the evidence or the trial court's instructions.

         Further, Gaston did not object to the jury panel that was actually seated, only to the exclusion of the jurors stricken for cause. Even if challenges for cause are improperly sustained, no reversible error is presented unless appellant can show he or she was denied a trial by a fair and impartial jury. Solomon v. Steitler, 312 S.W.3d 46, 59 (Tex. App.-Texarkana 2010, no pet.); City of Hawkins v. E.B. Germany & Sons, 425 S.W.2d 23, 26 (Tex. Civ. App.-Tyler 1968, writ ref'd n.r.e.). Because Gaston did not object to any juror on the panel, it must be presumed that he was afforded a fair and impartial jury, and no harm could have resulted by reason of the court's dismissal of the jurors stricken for cause. Solomon, 312 S.W.3d at 59. We overrule Gaston's first issue.

         In his second issue, Gaston argues the trial court's judgment should be reversed because "the trial court abused its discretion in admitting purported expert testimony that tainted the jury throughout the course of trial." Specifically, Gaston argues the trial court erred in admitting the police report and testimony of Officer Angela McCrory regarding causation. Gaston argues McCrory was not qualified to render opinions regarding accidents, she had no specialized training or expertise in accident reconstruction, ...

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