Court of Appeals of Texas, Fifth District, Dallas
Appeal from the 14th Judicial District Court Dallas County,
Texas Trial Court Cause No. DC-16-10773
Justices Schenck, Osborne, and Reichek
L. REICHEK, JUSTICE
Cooper Transportation and XTRA Lease, LLC appeal the trial
court's judgment awarding Olynthus M. Davis damages for
injuries he suffered while performing his job as a
warehouseman. Bringing five issues, appellants generally
contend (1) the trial court erred in submitting this case to
the jury using a general negligence question, (2) the trial
court abused its discretion in not excluding the testimony of
Davis's experts, and (3) the evidence is insufficient to
support the jury's answers to the charge questions
regarding liability and future medical expenses. We affirm
the trial court's judgment.
was a certified forklift driver employed as a warehouseman
for Ozburn Hessey Logistics (OHL). On May 25, 2015, Davis was
assigned to load pallets into a trailer that had been leased
by AAA Cooper from XTRA. The trailer was equipped with an
E-track system, which included a metal rail running
horizontally down the length of the trailer wall. The rail
had slots that provided tie-down points to strap cargo
securely in the trailer. The rail was attached to the wall
beginning the loading process, Davis inspected the trailer.
Davis stated he was primarily looking for holes in the
trailer's wall, ceilings, and floor. Davis did not
inspect the E-track system and said he had never been trained
to inspect the track or the rivets that affixed it to the
wall. After performing the inspection, Davis signed an
inspection report stating there was no damage to the
sidewalls or floors.
then began loading pallets into the trailer. After loading
four or five pallets, Davis began loading a large pallet that
was almost the size of the forklift. Because he could not see
over the cargo, Davis shifted the load to the side so he
could see forward while driving. Davis stated he looked down
the side of the wall to make sure he was not touching it. As
he was moving forward, Davis felt the forklift begin to
strain and slow down. When it came to a stop, Davis threw his
arm forward to prevent hitting his face and his arm struck
the knob on the forklift steering wheel. Davis stated he
immediately felt an aching and numbness sensation in his arm.
When one of his fellow employees asked what had happened, he
told her he had hurt his arm "really bad." She told
him to back the forklift out. After moving the forklift back,
his coworker exclaimed that Davis's leg had been torn
open. The E-track rail had detached from the wall and impaled
his leg. Davis looked down at his leg, saw "blood
everywhere," and passed out.
was taken by ambulance to the hospital where he stayed for
approximately a week. Davis ultimately had multiple surgeries
on both his leg and arm. Almost three years after the
accident, he stated he was still in pain every day and could
not fully bend his leg. He also suffered nerve damage to his
arm that caused his fingers to curl into a claw position.
following the accident, AAA Cooper submitted an incident
report. An initial report stated Davis had hit the wall of
the trailer. The final version of the report stated Davis
"hit the E-track on the side wall of the trailer and it
broke off the wall stabbing [Davis] in the leg."
Pictures taken of the inside of the trailer show a length of
the E-track pulled off the wall and a bent portion of the
rail lying on the floor.
brought this suit against appellants alleging they had
provided an unsafe trailer and were negligent in their
failure to properly inspect, repair, and maintain the
trailer. Prior to trial, Davis designated Peter Sullivan as
an expert witness to testify regarding the condition of the
trailer at the time of the accident and appellants'
failure to properly inspect and maintain the E-track system.
Appellants moved to exclude Sullivan's testimony arguing
his opinions were not based on a reliable foundation and he
was not qualified to opine on the specified matters.
Appellants also moved to exclude the testimony of Dr. Jason
Marchetti, Davis's expert witness on the issue of future
medical expenses, by similarly challenging his qualifications
and the basis of his testimony. Both motions were denied by
the trial court.
trial, Sullivan testified he inspected the trailer at issue
in March 2017. Although the inspection occurred almost two
years after the accident, Sullivan stated the trailer had
travelled only 8, 962 miles in that time, which amounted to
only 5% of its service mileage. According to Sullivan, the
portion of the E-track rail that had detached from the wall
during Davis's accident was still missing when he
inspected the trailer. His inspection showed that 38% of the
rivets used to hold the remaining rail in place were either
broken, loose, or missing and he testified that even one
missing rivet would compromise the system. He stated the rail
was supposed to be held tightly in place by the rivets, but
he could pull a portion of the rail away from the trailer
wall with his fingers. He further stated the E-track rail
only had to protrude 1/16 to 1/4 of an inch from the wall for
a forklift or cargo to catch on it. Additionally, the weight
of the forklift would cause the trailer to flex, and any
portion of the E-track rail that was not properly secured
could pop out.
Sullivan's opinion, Davis's accident was caused by
either the forklift or the cargo Davis was moving hitting the
protruding end of the E-track rail. As the forklift moved
forward, the rail pulled away from the trailer wall and
pierced Davis's thigh. Sullivan further opined that the
accident would not have occurred if the trailer had been
properly inspected, maintained, and repaired. Sullivan
acknowledged that Davis had performed an inspection of the
trailer prior to the accident. But he stated Davis's
inspection was conducted under a different standard of care
than required of appellants and Davis would not be expected
to examine the E-track system or the rivets holding it in
also hired an expert who examined the trailer two months
after Sullivan. Although appellants' expert did not
testify at trial, he created an expert report that was
admitted into evidence. The report concluded that Davis's
injuries were caused by the forklift impacting the wall of
the trailer with sufficient force to pull the E-track rail
off the wall. The report further concluded that, other than
the missing portion of the E-track, the trailer showed no
other damage and was in "excellent condition."
Sullivan testified he did not believe the accident was caused
by the E-track rail being forced off the wall following a
collision with the forklift because such an occurrence was
"nearly impossible" unless the E-track was
improperly secured, and there was no evidence to indicate a
collision of that force had occurred.
addition to Sullivan, Davis presented the testimony of
several AAA Cooper and XTRA employees responsible for the
inspection and maintenance of the trailer. Vincent Daniels
with AAA Cooper testified he inspected the trailer before
dropping it off at the warehouse to be loaded. Daniels
testified he saw no damage to the trailer or anything coming
off the walls. He conceded, however, that he did not
specifically inspect the rivets holding the E-track in place.
Porter, the director of equipment for XTRA, testified
regarding the trailer's inspections and repair history. A
company inspection report showed the trailer at issue was
inspected in May approximately two weeks before the accident,
and again three months later, in August 2015. During these
inspections, XTRA's procedures required the employees to
check the E-track system for damage. The report showed that
no damage to the E-track was reported either before or after
the accident despite the fact that a portion of the E-track
rail was missing during the August inspection. Porter stated
that a missing portion of the E-track would be considered
damage that should be repaired. Porter further stated that
missing or damaged rivets and the ability to pull the E-track
away from the wall would also be considered damage requiring
repair. The repair history for the trailer showed that the
only maintenance performed on the unit before and after the
accident was that it was swept out. Porter confirmed that no
rivets on the E-track system were repaired or replaced.
Bass, director of sales and operations with AAA Cooper,
stated that a missing portion of the E-track system is damage
that should have been reported and replaced. Although Bass
conceded that the E-track is not supposed to be loose, he
stated he would not consider "some protrusion" of
the E-track rail to be damage. Bass agreed that the trailer
was not in "excellent condition" as reported by
support of Davis's claim for future medical expenses, Dr.
Marchetti testified that he had examined Davis and reviewed
his medical records to develop a "life care plan."
The plan addressed Davis's future medical needs with
respect to the injuries he suffered to his arm and his leg.
According to Marchetti, all of the problems Davis was
experiencing with his arm and leg resulted from the trauma he
sustained in the accident. Marchetti opined the present value
of Davis's future medical expense needs was $223, 275.69.
Davis's treating physicians, Dr. David Zehr, diagnosed
Davis's arm and hand issues as resulting from a pinched
ulnar nerve. He also originally diagnosed Davis as having a
neuroma resulting from trauma to his arm. Dr. Zehr later
changed his diagnosis, stating Davis had a neurofibroma in
his arm and he did not find ...