522 S.W.3d 565
Tex. App.2017Background
- On Oct. 15, 2010 a fire destroyed multiple plaintiffs’ properties; a CenterPoint light pole with a transformer stood between properties and the residence. The Harris County Fire Marshal concluded the fire likely resulted from an electrical anomaly.
- Plaintiffs sued CenterPoint for negligence (inspecting, maintaining, repairing, replacing transformer), claiming > $2 million in damages and lost profits.
- Plaintiffs designated Michael McGraw as their expert on transformer design/failure, causes of the fire, and applicable standards; CenterPoint moved to exclude his testimony under Tex. R. Evid. 702 and filed a no‑evidence summary‑judgment asserting plaintiffs lacked expert proof of the applicable standard of care and causation.
- The trial court excluded McGraw as unqualified to opine on a utility’s standard of care and granted CenterPoint’s no‑evidence summary judgment.
- On appeal the court considered whether CenterPoint’s tariff altered the common‑law standard, whether McGraw was qualified under Rule 702, and whether plaintiffs produced more than a scintilla of evidence to avoid no‑evidence summary judgment.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether McGraw was qualified under Tex. R. Evid. 702 to testify about transformer failure, causation, and a utility’s standard of care | McGraw’s long practical experience with medium‑voltage transformers, coursework in electrical engineering, inspections, reliance on industry codes, and affidavit show specialized knowledge sufficient under Rule 702 | McGraw lacks an engineering degree, PE license, formal origin‑and‑cause certification, and admitted in deposition he was not an expert on utility practices | Court reversed trial court: McGraw’s combined education, experience, study of standards, inspection of the scene, and affidavit show specialized knowledge that will assist the trier of fact; trial court abused its discretion excluding him |
| Whether CenterPoint’s filed tariff (Good Utility Practice) replaces or modifies ordinary negligence standard for retail customers | Plaintiffs: tariff does not materially alter common‑law duty (utility owes ordinary reasonable care commensurate with the danger) | CenterPoint: Good Utility Practice is the relevant and different standard | Court: tariff does not change common‑law standard for retail customers; Good Utility Practice merely helps define ordinary care under the circumstances; even if it created a different standard McGraw is qualified to opine on it |
| Whether plaintiffs presented more than a scintilla of evidence on breach/causation to defeat a no‑evidence summary judgment | McGraw’s affidavit and other evidence (Fire Marshal’s report, inspections, deposition) identify failed components (HV bushing, ground wire, external fuse) and opine on inadequate installation/maintenance, creating fact issues | CenterPoint: without a qualified expert plaintiffs cannot establish the standard of care or breach; McGraw is unqualified | Court: McGraw’s testimony (as admissible) and the other evidence constitute more than a scintilla; no‑evidence SJ was erroneous |
| Whether trial court’s exclusion and summary judgment should be reversed/remanded | Plaintiffs requested reversal and remand for further proceedings | CenterPoint maintained exclusion and SJ were proper | Court reversed exclusion and summary judgment and remanded for proceedings consistent with the opinion |
Key Cases Cited
- Gammill v. Jack Williams Chevrolet, Inc., 972 S.W.2d 713 (Tex. 1998) (trial court has broad discretion to admit/exclude expert testimony under Daubert/Gammill principles)
- Broders v. Heise, 924 S.W.2d 148 (Tex. 1996) (proponent must show expert has specialized knowledge on the specific matter)
- FFE Transp. Servs., Inc. v. Fulgham, 154 S.W.3d 84 (Tex. 2004) (expert testimony required when the negligence is not within lay experience)
- Mann Frankfort Stein & Lipp Advisors, Inc. v. Fielding, 289 S.W.3d 844 (Tex. 2009) (standard for de novo review of summary judgment)
- Horizon/CMS Healthcare Corp. v. Auld, 34 S.W.3d 887 (Tex. 2000) (more specific statutory provisions control over general ones)
- Forbes Inc. v. Granada Biosciences, Inc., 124 S.W.3d 167 (Tex. 2003) (more than a scintilla exists when reasonable minds could differ)
- Del Carmen Canas v. CenterPoint Energy Res. Corp., 418 S.W.3d 312 (Tex. App.—Houston [14th Dist.] 2013) (filed tariffs govern utility–customer relationship and have legal effect)