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Fisher v. Kawasaki Heavy Industries, Ltd.

Court of Appeals of Texas, Thirteenth District, Corpus Christi-Edinburg

June 29, 2017

RICHARD H. FISHER, Appellant,
v.
KAWASAKI HEAVY INDUSTRIES, LTD., KAWASAKI MOTORS, CORP., USA, KAWASAKI MOTORS MANUFACTURING CORP., USA, Appellees.

         On appeal from the 28th District Court of Nueces County, Texas.

          Before Chief Justice Valdez and Justices Rodriguez and Benavides.

          MEMORANDUM OPINION

          GINA M. BENAVIDES, Justice.

         This is an appeal from a take-nothing judgment rendered in a products-liability jury trial. Appellant Richard Fisher challenges the take-nothing judgment rendered in favor of appellees Kawasaki Heavy Industries, Ltd., Kawasaki Motors Corporation, U.S.A., and Kawasaki Motors Manufacturing Corporation, U.S.A. (collectively Kawasaki unless otherwise noted). By five issues, which we construe as four, Fisher asserts that the trial court committed harmful error on four specific evidentiary rulings, or in the alternative and collectively, under the doctrine of cumulative error. We affirm.

         I. Background

         On the afternoon of November 18, 2010, then fifty-seven-year-old Richard Fisher visited his ranch in Refugio with the intention to go deer hunting. Prior to the hunt, Fisher purchased two 250-pound tubs of molasses that he aimed to use to distract his cattle and horses while he hunted in his deer blind. Fisher transported the tubs in the bed of his pickup from the store where he purchased them to his ranch. Upon arriving at the ranch, Fisher sought to transfer the tubs from the bed of his pickup to the cargo bed of his 2006-model Kawasaki Mule 610 4x4 side-by-side utility vehicle (the Mule).[1] The Mule's cargo bed had a dump feature that was secured by a manual over center latch located on the passenger's side, under the Mule's bench seat. Fisher had used the Mule in the past to transport miscellaneous items on his ranch.

         In preparing the transfer of the tubs from his pickup to the Mule, Fisher parked the Mule and his pickup "stern to stern" with "both tailgates down." The record shows that the height difference between the pickup tailgate and the Mule tailgate was five inches. Fisher, who (Image Omitted) weighed "around 220 [pounds]" at the time, then entered the cargo bed of the Mule and progressed to the back of the Mule, when the Mule's cargo bed "flipped up" and threw Fisher to the ground. As a result of the fall, which Fisher described as "violent, " Fisher sustained a tibial plateau fracture and lateral meniscus tear on the anterior horn of his right knee. While on the ground, he first called his wife Lucia for help. Fisher told jurors that he did not call 9-1-1 because he did not have his mailbox up and was worried that emergency workers would not be able to find his ranch.

         After speaking to his wife, Fisher then called his neighbor Ronald Lucich Sr. asking for help. Lucich Sr. testified that Fisher told him that the cargo bed of the Mule flipped because he did not latch it. Lucich Sr., who was at work at the time, then called his son Ronald Lucich Jr. to check on Fisher. Lucich Jr., who was age fifteen at the time of trial, testified that his father called him as he left school that afternoon and told him to check on Fisher at Fisher's ranch. Upon arriving at Fisher's ranch, Lucich Jr. observed the Mule and Fisher's pickup backed up to each other, Fisher leaning up against the Mule, and a tub of molasses on the ground. Lucich Jr. then told jurors that Fisher told him "I forgot to latch the goddang thing." Fisher denied making this statement to Lucich Jr. and told jurors that he "had no idea [the cargo bed] was unlatched" and had no reason to believe it was unlatched because he rarely used the Mule. Lucich Jr. stayed with Fisher until Lucia arrived to transport Fisher to Doctors Regional Hospital.

         At the time of his injury, Fisher was employed as a licensed harbor pilot at the Port of Houston earning an annual salary of slightly more than $500, 000. In order to obtain a pilot's license such as Fisher's, pilots must undergo a United States Coast Guard-mandated physical exam due to the physical demands of the job such as climbing rope ladders and boarding ships as large as "super tankers." Fisher testified that because of his injuries, however, he failed his 2011 annual physical and had his pilot's license revoked.

         Fisher subsequently sued Kawasaki for damages resulting from his injuries. In his petition, he alleged claims of strict products liability, negligence, and violations of the Texas Deceptive Trade Practices Act.

         At trial, Fisher presented testimony from Andrew Gilberg, P.E. who testified that the Mule's latching system was defective. Gilberg testified that Kawasaki failed to perform what engineers call a "failure mode effects analysis" to assess the risk of the Mule's latching system. Specifically, Gilberg stated that the Mule's over-center latching system as designed did not notify the user whether the latching system was engaged when the bench seat was down. Gilberg testified that the majority of other side-by-side utility vehicles on the market at the time utilized a slam latch system similar to the latches found on an automobile's hood or door. According to Gilberg, the slam latch is a cost-effective design to alert the user if the latch is not engaged. Gilberg showed jurors videotaped testing he ran on a modified Mule containing a slam latch system rather than the over-center latch found on the Mule at issue. The modified Mule withstood various weight tests.

         Fisher played the video deposition of Kawasaki corporate representative, Hideotoshi Kaku, who was also one of the engineers in charge of designing the latch system in the Mule. Kaku testified that all Kawasaki Mule models had the same over-center latch system since 1988, and Kawasaki possessed no information or reports of problems related to this particular latch system to deem it unreliable. Kaku further testified that Kawasaki did not view the slam latch system as cost-prohibitive, but likewise did not believe that such a system was necessary.

         Fisher also presented expert testimony from Robert Cunitz, Ph.D., a psychologist who specializes in human factors. Dr. Cunitz defined the study of "human factors" as taking knowledge of human behavior and learning and how it interacts with the "things of various sorts in the real world in which we find" from something as simple as sitting in a chair to how controls are set up in jet aircraft. Dr. Cunitz evaluated the Mule and testified that the Mule "looks stable" despite being unlatched, which violates consumer expectations because "it doesn't work the way you think it does." Dr. Cunitz told jurors that the best way to design the Mule to warn users that the latch was disengaged was to have the bed pop up. Dr. Cunitz opined that as designed in this case, the Mule created a tipping hazard because the latch was not obvious, it was painted black and located in a dark area, and it was "not conspicuous" for the user to view. Finally, Dr. Cunitz testified that from a human factors perspective, he did not believe that Fisher failed to use ordinary care in his interaction with the Mule on November 18, 2010.

         Next, Fisher presented evidence from Andrew Hammond, who is an expert in ship pilot licenses. According to Hammond, as a result of the injuries that Fisher sustained in this case, he would be unable to obtain the necessary credentials from the United States Coast Guard to maintain his pilot's license. Occupational expert William L. Quintanilla testified that based on Fisher's past employment history, current physical condition, and lack of a pilot's license, Fisher is employable "in administrative sedentary jobs" in the water transportation industry with annual wages ranging from $47, 788 to $59, 840. Lastly, economist Thomas Mayor, Ph.D. testified about Fisher's economic outlook as a result of his injury, after reviewing Fisher's medical and occupational history. Dr. Mayor testified that had Fisher not been injured and maintained his harbor pilot position at his last net annual salary of $564, 997, Fisher would have earned $2, 504, 632 from the date of his injury until the date of trial. Furthermore, Dr. Mayor opined that if Fisher had retired at: (1) age 63, he would have lost future earnings of $952, 323; (2) age 65, he would have lost future earnings of $2, 075, 373; and (3) age 68, which is the mandatory retirement age for pilots, he would have lost future earnings of $3, 626, 009.

         After Fisher rested, Kawasaki presented testimony from two relevant expert witnesses. The first was John D. Olivas, Ph.D, an engineer and former NASA astronaut. Dr. Olivas testified that he was familiar with failure mode effects analysis as testified to by Gilberg, but did not believe that it was necessary in this case because such an analysis was "not applicable" for such a "small . . . single component" such as a latch. Dr. Olivas opined that the Mule's over-center latch "is visible to any operator" and "[the] ability to access it and manipulate it is easy." Dr. Olivas further testified that in his opinion, there was no failure with the latch, and it was designed to operate without having to raise the bench seat of the Mule. Dr. Olivas offered an opinion that Fisher was negligent in that he knew about the latch and how to use it but failed to operate it prior to climbing into the cargo bed.

         Lastly, engineer Kevin Breen testified on behalf of Kawasaki. Breen testified that he was the former chair of the Society of Automotive Engineers' Special Purpose Vehicle Committee, which developed standards and technical provisions for vehicles such as the Mule involved in this case. According to Breen, "more than 66, 000" Mules had been sold in the United States prior to 2006 and after searching records maintained by Kawasaki as well as the Consumer Product Safety Commission, he was unable to find any other record of incidents or injuries such as Fisher's. Breen opined that he did not believe that the design of the Mule's latching system caused or contributed to Fisher's injury. Breen testified that the latching mechanism is "a mechanism that works, [and] . . . it still . . . works properly today."

         After an eight-day trial, the jury returned a verdict finding Kawasaki not liable for any design defects of the Mule or any defects in the warnings or instructions on the Mule. In accordance with the verdict, the trial court signed a take-nothing judgment in Kawasaki's favor. Fisher filed a motion for new trial and asserted that: (1) the trial court committed error by admitting certain testimony from Breen; (2) the trial court committed error by admitting evidence regarding Fisher's net worth; (3) the trial court committed error by admitting testimony from Olivas regarding Fisher's negligence; and (4) the evidence was factually insufficient to support the verdict. After holding a hearing, the trial court denied Fisher's motion for new trial, and this appeal followed.

         II. Evidentiary Rulings

         By his first four issues, which we construe as three, Fisher asserts that the trial court committed reversible error by ...


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