*4 DAVIS, Before BARKSDALE DeMOSS, Judges. Circuit BARKSDALE, RHESA HAWKINS Judge: Circuit prod a arise out of appeals three These injuries diversity action for uct-liability, secondary collision of a sustained because manu Texas, involving a tractor-trailer (Mack). Trucks, Inc. by Mack factured law a matter of judgment as Mack seeks trial, alternative, and, claim a new in the alia, improper ing, inter district and ex testimony expert admitted ly both use, or concerning the cluded evidence Hodges nonuse, by James of his seatbelt of the truck. injured driver (Hodges), dollar ver a Hodges received multi-million e wife, Hodges Beverly his H and dict. (the being her not also Hodges), contest trial on seek a new damages and awarded Systems, Freight Finally, ABF that issue. and work (ABF), Hodges’ employer Inc. challenges provider, ers’-compensation subrogation rulings court’s district claim’s be ABF’s A trial and claim. new VACAT required. are ing reconsidered ED AND REMANDED.
I. 16-year-old TX, 1 November Russell, Dallas, R. On Carl Leon René on- of an path vehicle into drove her (argued), The Roth, Smith Michael Charles truck, coming Hodges, gust (Jury driven during selection was 34-year large driver of August.) veteran trucks. week of 16 trailers, pulling His cab was two and the 14 August, On Indiana Mills settled with right other vehicle hit the front wheel of Hodges on the seatbelt claim for $1.4 truck, Hodges’ causing damage. extensive million. provid- The settlement structure path The truck swerved into the of an Beverly Hodges ed for James and to each car, rail, oncoming guard breached a receive half of the settlement amount. Ac- jack-knifed down an It embankment. only cordingly, the defective-door-latch is- came to rest with the nose of tractor trial, sue remained for with Mack as the pointed up; passenger-side door was sole defendant. damaged but the door frame and the cab were not deformed. trial, On the eve of as a result of that settlement, Hodges moved to exclude ejected through passen- use, nonuse, all evidence of or ger side and sustained severe perma- seatbelt, pursuant 545.413(g) of (It injuries, including nent paraplegia. Code, the Texas Transportation claiming that, undisputed had he remained in the *5 proscribed the statute introducing such ev- cab, injuries would have been far less (seatbelt evidence). idence in civil trials serious.) ABF, Hodges’ employer, was The motion granted was without written and began paying Hodges self-insured being given. reasons compensation. workers’ trial, During Hodges the introduced ex- ABF owned the truck. Its seatbelts pert testimony by Syson. Steven He testi- by were manufactured Indiana &Mills failed; fied: the door latch and there was (Indiana Mills). Manufacturing Its door a safer design alternative available that latches, manufactured KSR Interna- would have substantially reduced the like- tional, were installed Mack. Hodges’ injuries. lihood of pretrial Mack’s 2003, May In Hodges the filed ac- this testimony motions to exclude this had been against Mack, tion Indiana Mills and denied. claiming design defect in the seatbelt August, following On 26 approximately (The Hodges ejected. caused to Hodg- be days two and one-half of testimony, the es had settled with 16-year-old the driver jury verdict, returned its finding Mack and $50,000.) for In early Hodges the liable, 16-year-old the driver-60% and 40% design-defect added a passen- claim for the respectively, Hodges’ injuries. for It latch, ger-side asserting door the defect awarded million in damages, but $7.9 caused the latch fail Hodges’ to after truck Hodges. awarded the entire amount to In June, was hit. That ABF intervened to short, jury Beverly Hodges awarded protect subrogation interests work- damages no for loss of household services compensation ers’ paid Hodges. to and consortium. trial, Prior to Mack repeatedly, and un- successfully, challenged Hodg- some of the September, That Mack judg- moved for proposed expert (as es’ being per- witnesses ment as a matter of it law had done trial) testify. mitted to Notwithstanding and, alternative, during in the a new judge’s district concomitant extensive in- Hodges trial. The for moved a new trial knowledge issues, volvement and about the Beverly Hodges’ damages claim. That the case was reassigned approximately November, motions, two the court denied those weeks before trial commenced on Au- providing without written reasons. subroga- around ABF’s to settle ment was interpled October, Mills had Indiana
In tion lien. funds into million settlement its $1.4 noted, under As registry.
court's A. terms, and Bev- James settlement agreed $700,000. receive testimony each Hodges Syson’s were to erly maintains: Mack entire to the excluded, entitled pursuant it was claimed should have been $700,000 Pharm., amount, Inc., just not Dow Daubert v. Merrell it compensation receive, 593-95, for workers’ 113 S.Ct. U.S. in the pay (1993); and, well as would if paid, as admissi- had even L.Ed.2d December, the district law, ble, failed, prove That future. as a matter of funds’ hearing on the evidentiary design an for alternative held safer requisite rulings, it de- Among other latch. Mack disbursement. door the Mack reapportionment request for ABF’s be rendered in judgment nied should contends alia, amount, holding, inter alternative, settlement it seeks a In the its favor. (In scheme the settlement intent of its opening a footnote to new trial. rights to subro- testimony of its deprive ABF brief, Mack also addresses have The funds credit. or future ex- gation accident-reconstruction ex- disbursed. have also been stating been it should pert, It is unclear Daubert. cluded under this as issue presents whether II. event, any we reverse appeal. action, diversity-jurisdiction this court’s exclusion For the district based on Texas, its *6 in evidence, necessary an accident arising out of is the seatbelt R.R. Co. Erie applies. testimony.) law expert’s that substantive address 817, 64, 82 58 S.Ct. U.S. Tompkins, 304 party “a has proper is when JML (1938). At issue is whether L.Ed. 1188 during jury on an fully heard issue been (1) Sy- admitting in: court erred district that a reasonable the court finds trial and (2) Mack testimony; denying expert son’s legally sufficient jury not have would (3) (JML); of law as a judgment matter party for that on evidentiary to find basis (4) evidence; failing excluding the seatbelt (as 50(a) ... Fed.R.CivP. issue Hodges’ Beverly on new trial grant a 2006); see 1 Dec. also effective amended (5) apportionment damages; approving 50(b) (as 1 effective amended Fed.R.Civ.P. amounts settlement Indiana Mills JML). 2006) An appellate (post-trial Dec. (6) assessing Hodges; between court, JML should deciding whether of expenses out litigation attorney fees and awarded, must first excise inad have been recovery and calculat- subrogation ABF’s evidence; “contrib evidence such missible credit. right to future ing its sufficient eviden- legally to a nothing utes Marley, Weisgram v. tiary basis”. hold, properly JML inter alia: We 1011, 454, 440, L.Ed.2d erred, 120 S.Ct. U.S. reversibly howev- denied; the court omitted). (2000) (internal quotations evidence; 958 er, excluding the seatbelt the contested first address we therefore, required. and, trial a new (Obvious testimony. Syson’s of Beverly admission not address Accordingly, we need should be JML deciding whether claim, ly, fully nor address damages is not Mack, evidence the seatbelt awarded claims are remand- claims. ABF’s ABF’s excluded, not admit it was alia, it, play inter district court to the ed Instead, play decid- it comes into ted. of the settle- the effect whether consider whether, alternative, ing in the Mack is the witness applied has the principles and trial.) entitled to a new reliably methods to the facts of the case”.
Fed.R.Evid. 702. 1. In analyzing the Mack latch at is expert The admission of testimony sue, Syson: reviewed relevant Mack cab is reviewed for an abuse discretion. designs; door examined numerous Achievement, E.g., Stott Ltd. v. Dredge patents for latches and door designs in (5th LINDHOLM, B.E. 447 F.3d provide order to a safer alternative design; Cir.2006). enjoy “District courts wide lati directed a third-party engineering firm tude determining admissibility latch; conduct force tests on the Mack expert testimony, and the discretion of analyzed the Federal Motor Safety Vehicle judge trial and his or her decision will not (FMVSS) Standards data published by the be disturbed appeal unless manifestly National Highway Safety Traffic Adminis Telsmith, Inc., erroneous.” Watkins v. tration to determine the strength of the (5th Cir.1997) (internal 121 F.3d Mack latch compared as to an alternate quotations omitted; citations and emphasis (In design. addition, he calculated the de added). formation to the Mack cab door frame and Daubert interpreted Federal Rule of its effect on the Mack latch in order to (admissibility Evidence 702 expert testi- analyze theory Mack’s concerning Hodges’ mony) and assigned the trial gatek- court a injuries that, after was outside — eeper role to ensure testimony such is both cab, body opened somehow Daubert, reliable and relevant. 509 U.S. passenger door. Mack abandoned this 113 S.Ct. determining theory here.) during oral argument proferred whether testimony is reli- challenges Syson’s testimony able, as the district court must first “assess[ ] unreliable for a reasons, number of includ- ... whether reasoning or methodology ing: he is not a specialist; door-latch he underlying the testimony is scientifically was previously found to be an unreliable Petroleum, valid”. Inc., Curtis v. M&S expert court; witness a Texas *7 he has 661, (5th Cir.1999). 174 F.3d 668 The published not any peer-reviewed articles court should “make certain that expert, an purporting to show the weaknesses in the basing testimony upon whether profession- latch; Mack and he did not conduct his al personal studies or experiences, employs own tests or force calculations on the in the courtroom the same level of intellec- latches, but instead upon relied third-party rigor tual that practice characterizes the of testing. an in expert the relevant field”. Kumho Carmichael,
Tire Co. v.
137, 152,
526 U.S.
course,
Of
whether a proposed expert
1167,
119
(1999).
S.Ct.
195
design.
a safer alternative
of
tes-
existence
and technical
complex
very
presented
by moving for
issue
this
preserved
it Mack
and how
latch
the
timony about
evidence,
Hodges’
close of
injured
at the
JML
Hodges was
opined:
He
failed.
evidence,
post-
and
all the
latch
close of
door
at the
passenger-side
Mack’s
v.
Sys., Inc.
latch
Food
trial. Unitherm
(Mack
dispute
does not
failed
Swift
980,
394,
-Eckrich, Inc.,
126 S.Ct.
alterna-
546 U.S.
a safer
and
point);
at some
failed
(2006) (holding appel
have 986, 163
974
would
L.Ed.2d
which
existed
design
tive
unless
prevented
JML claim
thus,
have
cannot review
and,
would
late court
broken
post-trial);
pre- and
requested both
injuries.
JML
Hodges’
Amendments);
(pre-2006
50
Fed.R.Civ.R
Mills
discussed,
Indiana
Mack and
As
on
*8
record, and
of the
our review
Based on
Miss.,
Detectives
v. Pendleton
Sur. Co.
of
manifestly
infra,
was
reflected
as
Cir.1999).
(5th
In re
Inc.,
by a preponderance and, the evidence: sign; therefore, a as a matter of Texas (2) existed; safer design alternative and law, plaintiff the prove was unable to the the design injury. defect caused the ladder was defective. Id. at 520. The Tex. Civ. PraC. & Rem. 82.005. A safer alter- hand, however, action at differs. design native Ladder, Louisville expert the testified that product design other than the one proposed design “was a preliminary actually used that proba- reasonable concept” not currently in use and “not bility ready to [be] to a recommend[ed][ ] manu- (1) would prevented significant- have or Moreover, facturer”. Id. at 519. as noted ly reduced the risk claimant’s supra, expert never evaluated the risk personal injury ... substantially without associated with the proposed design and impairing product’s utility; and did not conduct a analysis. risk-benefit Id. (2) economically and technologically Ultimately, he opine was unable to wheth- feasible at the time product left the er proposed alternative would have control of the manufacturer or seller prevented injury question. Id. application of existing reasonably or achievable knowledge. scientific expert’s Unlike the testimony in §Id. 82.005. Ladder, Louisville Syson’s was not mere
A design speculation. Instead, if, is not safer alternative he described de circumstances, “under other how, [it im tail the would] latch at and why, issue pose equal greater an or risk of harm” the proposed latch alternative would be than the design Uniroyal at issue. Good Syson safer. examined several hundred Martinez, rich Tire 328, Co. v. 977 S.W.2d patents door-latch on file with the Patent (Tex.1998), denied, cert. 526 U.S. and Trademark Office to determine wheth 1336, 143 (1999); S.Ct. L.Ed.2d 500 see er suitable designs alternative existed. Costilla v. Crown Equip. Corp. d/b/a When he found possible alternative de Co., Crown Trucks 148 S.W.3d Lift signs, he they examined how performed 739 (Tex.App.2004). Similarly, plain compared to the Mack latch in the tiff must safety show “the benefits from test, FMVSS-206 which examines the proposed [the] design foreseeably are maximum! longitudinal and transverse greater costs, than resulting including forces a door latch will maintain before it any diminished or usefulness diminished breaks. Based on that information safety”. Uniroyal, 337; S.W.2d see analysis accident, Syson calculated Co., also Smith v. Ladder Louisville the maximum amount of force required (5th Cir.2001) F.3d (reversing ver before deformation of the Mack latch dict plaintiff where ... he “conceded made would break it. no analysis, risk-benefit including what ad ditional hazards” his design new would Syson concluded: the door latch used caused). have defective; Mack latch, and another latch, the Eberhard awas safer alternative upon Ladder, relies Louisville prevented would have Hodges’ inju- which concerned whether an extension lad- *9 ries. Among things, Syson der’s other assembly cable-hook noted mechanism was Co., defective. the Eberhard latch 25% Louisville Ladder 237 is thicker at the F.3d above, 515. point 12,000 As reflected stress provides our court and pounds held: of plaintiffs the expert’s testimony was additional holding insuf- strength compared to ficient to establish a latch, safer alternative de- the that, all factors in his
197 1985) (Vernon 6062 Law Serv. Tex. Sess. it from prevented would have opinion, (current at Tex. TraNSP. version Ann. Code in the accident. breaking 2006)). (Vernon person great- A § 545.413 his that, based testified also Syson a traffic of age guilty of is years 15 than er FMVSS-206 above-discussed of the review front in the riding “is if or she he violation the than was weaker tests, latch Mack’s vehicle is the car while passenger a seat of vehi- of similar by 75 to 80% used latches ... is not secured ... and operated being working experience on his Based cles. Transp. safety by belt”. a Code Tex. vehicles, Sy- for designing, parts with, and 545.413(a). provides defens- statute § The easy, inexpen- be it would testified son seatbelt, including, a to wear for failure es Eberhard to the switch sive, to for Mack by a alia, reason evidenced a medical inter that, at line, he noted Along that latch. 545.413(e)(1). §at note. Id. doctor’s accident, Eberhard the time the trucks. in fire used was latch existed issue, of (g) subsection to this Pertinent risk- requisite the a also conducted nonuse of Syson or “Use provided: § 545.413 a driver testified: He analysis. in a utility evidence admissible is not safety belt opens a door risk if significant a trial, faces under proceeding than a civil other not, and accident; do engineers 5, during B, Family Title Code”. A or Subtitle accident; (em- cannot, particular for one design (subsection (g)) 545.413(g) § Id. at impair latch would however, Eberhard added). 2003, and the Tex- the In phasis words, In other usefulness. door’s the See (g). repealed subsection legislature as keep ability to utility is its a latch’s 204, part 2003, Leg., ch. 78th 11 June Acts crash a vehicle during shut a door 863 Law Serv. 8.01, Sess. § 2003 Tex. not dimin- latch would the Eberhard using 2003). so, legislature (Vernon doing there utility. door’s ish the applicable (g) is not subsection specified: to find jury a evidence was sufficient 1, July after filed on or “action[s] to requisite testimony satisfied Syson’s 2003, 1, is July filed before action a]n [But risk-utility test. immediately in effect law governed law ... and that in law change required before analysis
Syson provided purpose.” effect for establish, is continued pre- Hodges’ to allow 204, ch. 2003, Leg., 78th 11 evidence, that, June under Acts ponderance Law Serv. 23.02(c), Tex. Sess. design exist- law, alternative a safer Texas 2003). (Vernon 584, Sanchez, 997 S.W.2d See GMC ed. (Tex.1999) more than (holding that
591-92 May filed in noted, action this As de- alternative that the assertion” a “bald July 2003 before a few weeks upon Based required). is sign safer of subsection repeal date for effective in- drawing all reasonable testimony, and appli- words, is not repeal In other (g). favor, the in the non-movant’s ferences Texas Accordingly, this action. cable ver- support sufficient evidence seat- the use of statutory proscribed law did Accordingly, the district dict. belt evidence. denying JML Mack. not err evi-
Nevertheless, such Mack contends B. ac- this admitted should be dence primary, not a secondary, involves a tion contesting the seat- Concerning Mack’s in- (A concerns collision primary collision. exclusion, began man- belt-evidence with anoth- collision in the sustained juries Act See in 1985. use seatbelt dating concerns vehicle; secondary collision er R.S., ch. Leg., 69th June *10 198 injuries
enhanced caused a collision where plaintiff product-liabili makes a with the interior of the vehicle or with an ty claim against a seatbelt manufacturer object, ejected.) exterior if interpre- This alleging a defective system restraint tation, claims, Mack is line awith Texas must introduce evidence of his seatbelt use Court of Appeals decision that seatbelt prove causation. See Bridgestone/Fire evidence is in secondary-colli- admissible stone, Glyn-Jones, Inc. v. 878 S.W.2d sion cases. Vasquez Hyundai See Mo- (Tex.1994). trial, 134-35 During the dis Co., (en tor 119 (Tex.App.2003) S.W.3d 848 trict court stated it had based its eve-of- banc). trial exclusion ruling on a similar under standing of provided Texas law:
Mack only
199
sources,
legal
alia,
as treatises and
com-
such
if,
it bases its decision
inter
discretion
mentaries.
v.
of law”. United States
error
on an
(5th Cir.),
483,
Smith, 417 F.3d
486-87
Co.,
Glyn-Jones stated it could apply not prohibi- that the usual rules of “contended] against just tion construction the use of to that seat belt evidence subsection but instead had to view it in apply products light [did] liability cases of the involving entire Id. statute. It then crashworthiness of an auto- stated: “While normally mobile. the context Alternatively, provides clarity she ... argue[d] that it ambiguity the statute here creates open about the pro- legisla- violate[d] courts vision purpose”. of the ture’s Id. Texas Constitution.” it it Glyn- ruled Inc., beyond Jones had to look Bridgestone/Firestone, language S.W.2d statute “to even (Tex.App.1993) pur- determine the true (emphasis added). pose court, provision”. As had of the (emphasis the trial Id. inter- court, original). appellate mediate held subsection (g) proscribed admission of such evidence. Concerning (g)’s subsection proscription Id. It did so on concluding (g) subsection evidence, against seatbelt the court stated is unambiguous and “does not differentiate the defendant between negligence actions products contends this sentence was intended to liability cases”. Id. abolish crashworthiness against actions hand,
On the other relief granted manufacturers of legis- seatbelts. If the open-courts under provision intend, lature did so unlikely seems Texas Constitution because (g) subsection it would utilize subsection of a “is arbitrary and unreasonable insofar as it traffic statute to effect change. such a prohibits the Instead, introduction of seat belt evi- read the context of the entire dence in a statute, crashworthiness case”. Id. at we hold that the legislature did added). 643-44 (emphasis Earlier, not intend (g)] preclude [subsection court noted: “Crashworthiness has been necessary evidence to a cause of action recognized cause of action in against Texas since” a seat belt manufacturer for in- analy- hand, contrary to the dissent’s other by a defective caused juries allegedly can sis, opinion Supreme Court’s the Texas seatbelt. suggest- even holding' as not be read added). it had —or As (emphasis at 134 Id. introduced cannot be ing evidence that subsec- stated —such Pool, court further defendant, as Mack. by a such forge “to new intended was not (g) tion *13 law, merely preserve to but in tort ground holding the Vasquez In reiterated Id. Carnation]”. quo status [under the (g) was in- that subsection Glyn-Jones in Carnation, to quo, pursuant That status concern- quo the preserve to status tended to being “permitted not was a defendant’s being a not failure to wear seatbelt ing to failure plaintiffs of a introduce evidence the Vasquez, contributory negligence. In of contributo- evidence a seat belt as wear by deploying air child killed a parents of a added). (emphasis Id. ry negligence”. pm-sued a bag in an automobile accident manu- against asserts “the action the product-liability The dissent at op- theory. ... had an excellent See on a crashworthiness Supreme Court facturer the Glyn-Jones adopt Although in to at 850. portunity” Vasquez, 119 S.W.3d banc, urged exception” decided Appeals, crashworthiness en “broad Texas Court appel- the intermediate by Glyn-Jones in and therefore grounds, on other the case cases, but declined for such court evidence late whether seatbelt did not reach prop- trials, This assertion overlooks the do so. it nonethe- in civil be allowed should the Texas Su- er, on which narrow basis intended the statute was never less noted: First, Glyn-Jones. preme Court decided use in “sec- evidence seatbelt exclude by construing the case deciding cases; in in Vasquez, ondary collision” as avoid the more statute, able to it was functionality passenger’s where the broad, (which constitutional basis open-courts included system restraint passive de- appellate seatbelt) issue, the intermediate which evidence is at seatbelt Supreme Court case. The Texas cided the and the causation proving relevant rule prudential longstanding, sys- followed the of the restraint ultimate effectiveness when issues deciding constitutional in of not interest tem; manufacturer’s another basis. be resolved on the case can to miti- evidence not offering seatbelt was liability for “product defendant’s gate the constitutional open-courts It was that support ... offered damages, [was] but basis, by the Texas Su- properly avoided conjunc- in bag, air that the defense [its] Court, the crashwor- involved preme that use, defective as was not seatbelt tion with law that was well-settled doctrine thiness (emphasis n. 2. at Id. designed”. statute, And, construing in in Texas. added). limited Supreme properly Court the Texas plain- it—a case before holding to its in dicta Vas- discussing the above in seatbelt evidence to introduce right the seatbelt at 207 states the dissent quez, tiff’s seat- against the action product-liability case, would have which in that evidence manufacturer. belt was defendant, by the been offered the Tex- admissible under ... arguably narrow Supreme Court’s The Texas in Glyn- Supreme exception Court’s as subsection Glyn-Jones supports holding alleged plaintiff intro- Jones because precluding the proscription not (g)’s the restraint bag component air in the evidence case of seatbelt duction defendant The system was defective. Mack, The Texas defendant. hand used with bag, air when that the argued did proscription held the Supreme Court So wheth- seatbelt, not defective. such evidence. On bar all use of (the certainly use was ment funds from Indiana er the seatbelt Mills seat- manufacturer). closely plaintiffs noted, ABF, related to the suit belt As against the manufacturer of the re- Hodges’ employer, ais certified self-in- system and even more relevant straint workers’-compensation sured under Texas’ bag to the air manufacturer’s defense. It began paying laws. such benefits to Hodges after the accident and intervened this concession that seatbelt Simply put, protect subrogation this action to “arguably evidence would be admissible” intervened, At rights. the time it it had why it Vasquez demonstrates is admissi- $500,000 already paid Hodges over in ben- ble here. efits. bag and air Just as the seatbelt were part system Vasquez, so of the restraint Post-trial, *14 in November ABF part latch are a seatbelt and door each of moved for disbursement of the million $1.4 noted, system here. As it is the restraint December, settlement. That it moved for that, undisputed Hodges had remained evidentiary an hearing regarding its work- cab, injuries, any, if would have lien, ers’-compensation attorney’s fees and far The been less severe. seat belt and expenses, and credit and against offset part system door latch are each of the for future benefits. hearing The was held on
keeping a driver the truck’s cab an By day, December. order the next accident. so, providing doing without its reasons for sum, Glyn-Jones, together Pool and the court disbursed the settlement funds in with are instructive. Vasquez, following Subsection ABF amounts: received (g) prohibits $187,709.67; the introduction seatbelt $512,290.33; Hodges, James plaintiff evidence to show the was contrib- $700,000. Beverly Hodges, hand, utorily other negligent. On the secondary-collision product-liability ac- tions, may such evidence be admissible to provides: Texas law “The net amount rebut, show, or, action, as in this the essen- by recovered a claimant in a third-party tial element of causation. Seatbelt evi- action shall be to in- used reimburse the necessary dence rebut the surance carrier for ... that benefits have essential element of causation —whether paid compensable injury”. been for the proximate its door latch was the cause 417.002(a). § Accord- Tex. Lab.Code Ann. Hodges’ injuries and, ultimately, to de- — ing to the pretrial agreement settlement feat a crashworthiness claim. Such evi- Hodges Mills, between the and Indiana by prohibited (g). dence is not subsection million was to equally be distributed $1.4
Arguably, this is also demonstrated Beverly between James Hodges. repeal (g), though of subsection even ABF claims that apportionment scheme applies subsection here. reimbursement, improperly reduced its Therefore, the district court abused its 417.002(a), pursuant to for past benefits categorically discretion when it excluded paid Hodges. seatbelt evidence. say, Needless to this error was not harmless. a new proper division of a “[T]he set trial required. tlement between beneficiaries and non- presents beneficiaries an issue for the trier
C.
of fact based on the relative merits and
bases, ABF challenges
On several
worth
claims involved.” United
Hernandez,
district court’s disbursement of the settle- States Fire Ins. Co. v.
$700,000.
awarding her
The
Because
scheme
(Tex.App.1996).
S.W.2d
correctly
the court
found
Hodges respond:
fact in
trier of
court was the
the district
attempt
was not an
to settle
settlement,
the settlement
review for
we
apportioning
lien;
52(a).
Beverly Hodges’
ABF’s
around
Fed.R.Civ.P.
clear error.
$700,000from the settlement was
award of
provides:
Texas law
Well-settled
fair and reasonable.
carrier has a
compensation
a “workers’
the 21
eviden-
Our review of
December
from the
statutory right to reimbursement
tiary-hearing record reveals the district
injured employee
paid to an
first monies
place
improper
court did
an
burden on
tortfeasor, up to the
third-party
...
aby
that,
settlement,
prove
can re
compensation paid, and
amount of
and Indiana Mills intended to
employee
from the
or
cover the amount
The
structure it to circumvent ABF’s lien.
Hernandez,
third-party tortfeasor”.
“I’m
began
hearing
stating:
(citing
at 578
918 S.W.2d
Tex.
Lab.Code
interested
the settle-
[whether]
more
417.002);
417.001,
Argonaut
§§
Ins.
Ann.
agreements
[Hodges
ment
between
(Tex.
Baker,
526, 530
Co. v.
87 S.W.3d
attempt
Mills
were]
and Indiana
2002).
injured employee
An
does not have
compensa-
settle around
worker’s
[ABF’s]
*15
from that
any right
payment
to receive
ABF:
tion carrier’s lien”.
It then asked
paid
until the carrier has been
tortfeasor
proof
you
do
have that at the time
“What
Fund v.
Comp. Ins.
in full. Tex. Workers’
made[,
was an at-
it]
that settlement
Travis,
(Tex.App
912 S.W.2d
897-98
around
lien?”
tempt
[ABF’s]
to settle
.995).
only
rights,
has
howev
The carrier
that
the court
responded
When
er,
award or set
portion
“over that
of an
apportion-
should look to the
of the
effect
... a workers’
represents
which
tlement
intent,
ment,
the
parties’
rather than the
beneficiary[’s
compensation
interest]”.
replied:
Hernandez,
at 579.
918 S.W.2d
But,
trying
get
you
I’m
to
at what
would
well settled that “[t]he
It is also
hang my
I can
hat on as a
tell me that
liability from a
right
carrier’s
to reduce its
fact,
I
that
Judge
say
to
that
find as a
must not be com
payment
third-party
of a
agreement at the time [it
the settlement
added).
(emphasis
Id. at 578
promised”.
...
to
attempt
entered into
was an
was]
arbitrarily compro
A
cannot
trial court
compensation
a worker’s
settle around
by structuring the settle
right
mise this
lien,
deny
rights to
[ABF its]
and [to]
recovers,
non-beneficiary
a
ment “so that
recovery of
lien?
[its]
full
[its]
beneficiary
not”.
Id. at 579.
a
does
but
added.)
(Emphasis
regarding intent
inquiries
The court’s
Accordingly, at issue is whether
law,
the
were misdirected. Under
of half of the Indiana Mills
the allocation
not the set-
Beverly
apportionment,
the
Hodges,
a non-bene
settlement
effect of
at the time of set-
tling parties’
ABF’s
intent
ficiary,
improperly compromised
tlement,
when
controlling
the
factor
ABF contends: at the
is
subrogation rights.
com-
whether the settlement
hearing,
determining
district court erro
evidentiary
the
Hernandez, 918
ABF’s lien.
promised
it
burden to show
neously imposed on
the
(“[A
is not
settlement]
at 579
attempt
an
to “settle S.W.2d
the settlement was
because,
of
lien; and,
binding upon
purposes
the carrier
unlike
around” ABF’s
interest,
husband,
subrogation
re-
Beverly
recovery of its
jury
found
her
intent,
if
settling parties’
any damages,
gardless
Hodges was not entitled to
of
to cir-
apportionment
approve
error
settlement
effect
compromise
statute and to
third-party
pay
cumvent the
in a
action shall
a fee to
(em-
subrogation.”
right
attorney representing
the carrier’s
claimant in
added)); Travis,
phasis
agreed
912 S.W.2d at
the amount
on between the at-
(“It
appor-
torney
is not the intent
and the insurance carrier.
tionment,
appor-
but
the absence of an agreement, the court
effect of
tionment,
determining
that
is the
fac-
shall
attorney payable
award to the
out
added)).
(emphasis
tor.”
recovery:
insurance carrier’s
(1)
remand,
Accordingly, on
the district
recovery
reasonable fee for
court is to reconsider the reasonableness
the insurance carrier’s interest
that
Beverly Hodges’ apportion-
may
and fairness of
not exceed one-third of the insur-
by examining
ment amount
whether the
recovery;
ance carrier’s
agreement compro-
of the settlement
effect
(2) a proportionate
expenses.
share of
mises ABF’s lien.
remand makes it
This
417.003(a)
§
(emphasis
Tex. Lab.Code Ann.
unnecessary
any
to consider
of ABF’s re-
added).
maining
appointment-
contentions on this
To
Hodges’
determine whether
counsel
assertion,
point, including
of-settlement
fees,
is due such
we must first decide
for which
authority,
it cites no
ABF actively represented
whether
its own
verdict
apportionment.
should control that
in obtaining recovery
interest
from Mack
(ABF
and Indiana Mills.
claims it should
attorney’s
have been
pursu-
awarded
fees
ABF also claims the district court
417.003(c)
ant
(awarding attorney’s
(1) awarding
erred in:
counsel
fees where
actively
carrier is
represented).
attorney’s fees out of ABF’s subrogation
*16
(c)
short,
applicability
of subsection
(2)
recovery;
calculating the amount of
(a)
versus subsection
turns on whether
litigation expenses to be deducted from
ABF actively represented its own inter-
(3)
recovery;
calculating
and
ABF’s
ests.)
attorney
An
engages in
rep-
active
right
rulings
to future credit. Such
are
resentation in a third-party
by
action
an
reviewed for
abuse of discretion. See
“tak[ing] steps, adequate when measured
Accident & Indem. Co. v. Buck
Hartford
by
difficulty
ease,
of the
prose-
toward
land,
440,
882
447 (Tex.App.1994).
S.W.2d
Buckland,
cuting the claim”.
882 S.W.2d
at 447.
representation requires
a.
Active
filing
more than
pleadings asserting the
self-insurer,
aAs
certified
ABF is
subrogation
carrier’s
interest. See Hart-
(carrier)
an
carrier”
under
“[insurance
Mendelsohn,
Ins.
v.Co. Branton &
ford
compensation
workers’
laws.
Tex.
Inc.,
702 (Tex.App.1984).
S.W.2d
401.011(27)(B)
§
Lab.Code AnN.
(defining
“carrier” to include “a certified self-insurer
Buckland affirmed the trial court’s find
insurance”).
for
compensation
workers’
ing the carrier’s
“actively
counsel did not
Section 417.003 of the Texas Labor Code
represent”
Buckland,
its interest.
provides
attorney’s
representa
fees for
S.W.2d
447. The court noted the carri
tion of a
in third-party
carrier’s interest
only
er filed
papers
four
in in
plea
—“its
action. The
Hodg
district court awarded
tervention,
plea
its amended
in interven
attorney’s
es’ counsel
fees under subsec
tion, its
summary
motion for
judgment,
(a)
statute,
tion
of that
which states:
and its motion for reconsideration and
An insurance
interest
summary
carrier whose
is motion for
judgment seeking de
actively
not
represented by
attorney
claratory
an
Although
relief1’. Id.
carri
May
hearing had
com
and the 18
2004 Daubert
the claimant’s
reviewed
counsel
er’s
summary
upon.
partic-
and ruled
ABF’s
provided
been held
file
pensation
bills,
generate
or
mo-
ipation
primarily
filing
it “did
was limited
medical
any
discovery or take
protect
subrogation
tions
briefs to
its
any written
send
Id. Further
in the case”.
it claims to have estab-
depositions
Although
interest.
in the
more,
participate
not:
counsel did
lished at
trial
the amount of workers’-
or
hiring experts;
in
hearings;
assist
compensation
paid,
benefits it had
the rec-
expenses.
any
litigation
of the
share
any participation by ABF at
ord is void of
the trial
Accordingly, the court held
Rather,
Id.
of ABF’s
trial.
the amount
lien
its discretion
did not abuse
court
Finally,
trial.
stipulated
had been
before
attorney
claimant’s
one-third
awarding the
present
ABF does not claim to have been
recovery.
Id.
subrogation
of the carrier’s
agreement
when the settlement
between
and Indiana Mills was reached.
hand,
v. Am.
Brandon
On the other
(Tex.
Co., 880
S.W.2d
Sterilizer
417.003,
legisla
“By enacting section
trial court’s find
affirmed the
App.1994),
claimants
compensate
ture intended to
“actively participated”
the carrier
ing
of a
perform
who
work for the benefit
There,
recovery.
its counsel
obtaining its
subrogated
pro
insurance carrier and to
by,
alia: at
active role
inter
played an
compensation
hibit
the worker’s
carrier
tending depositions
responding
obtaining
from
a ‘free ride’ from the ef
ar
discovery requests;
time-consuming
attorney.”
claimant’s
Caesar
forts of the
evidence to be examined
ranging for
Bohacek,
(Tex.App
176 S.W.3d
ultimately reaching a
experts; and
various
(internal
omitted).
.2004)
ABF
citation
before trial with
agreement
settlement
benefited from the efforts
subrogation
its
claim. Id.
as to
defendant
counsel.
did not
(“[T]he
factor
not who aided
controlling
in proceeding
abuse its discretion
under
recovery,
rather who
[plaintiffs]
but
417.003(a). Likewise,
§
it was not
recovery.”).
carrier’s]
in [the
aided
charge
of discretion to
one-
abuse
fees,
as authorized
actively
third of those
represented
ABF claims it
417.003(a).
Mendelsohn,
recovery by filing: a mo-
See Branton &
interest
own
*17
Inc.,
that,
(stating
when
support,
in
to its tions, culmi- ultimately it contends which 417.003(a), § Pursuant Finally, ABF nated in the settlement. court erred in cal also claims the district trial es- participated by have claims to litigation expenses amount of culating the amount of workers’-com- tablishing the subrogation its recov to be deducted from Hodges had received pensation benefits 417.003(a)(2) § AnN. ery. Tex. Lab.Code from ABF. a court to award “out (authorizing recovery propor ... a carrier’s in this action insurance
ABF did not intervene calculating In expenses”). it tionate share of year one after until 15 June over expenses, of share point large por- proportionate ABF’s was filed and which Hodges’ total recov- discovery completed the court determined had been tion of ery pretrial determining pro-rata was the settlement amount of ABF’s share of $750,000, so, litigation expenses. doing which reflects his settlements it is to 16-year-old with Indiana Mills and the underlying state its reasons for ruling. calculation, driver. For that the district c. jury include the verdict for did not calcu-
Hodges. Under the district court’s Finally, ABF contends the district court (for lations, $577,213.83 ABF’s lien its calculating erred in right to a future compensation payments Hodges) com- discussed, credit. As net “[t]he amount $750,000 prised 76% of the total settlement recovered a claimant in a third-party amount; and, basis, pro- on that ABF’s action shall used to in- be reimburse the litigation expenses rata share benefits, surance carrier for including 76%. benefits, paid medical that have been for compensable injury”. Tex. Lab.Code
ABF contends: had the court instead 417.002(a). (b) § pro- Subsection Ann. considered both the settlement and the “Any vides: amount recovered that ex- Mack, judgement against its proportional ceeds the amount of reimbursement re- litigation expenses share of would much be 417.002(a)] § quired [by shall be treated as Restated, judg- lower. ABF claims the (future against advance future benefits” against ment Mack should have been con- credit). 417.002(b). §Id. sidered, along pretrial with the settlement $750,000. basis, On that it asserts its settlement, The million when com- $1.4 $577,213.83 lien of would comprised have verdict, bined with the awarded benefits only a percentage small of the total excess of subrogation ABF’s lien at the amount was to have recovered time of trial. ABF contests the district (prior vacating judgment). to our credits, court’s calculation of pursuant 417.002(b), against future benefits remand, determining
On when the total Hodges. owes say, Needless to by Hodges amount recovered for use we remand for proceedings, new we need calculating pro-rata Hodg- ABF’s share of remand, not decide any this issue. On costs, es’ litigation the district court should allocation, future-credit the district court is any consider example, verdict. For a sub- underlying state its reasons for that part stantial of the Hodges’ litigation ex- determination. penses, which at the date of the Indiana $372,220.37, Mills settlement totaled were III. expended only in reaching a settlement reasons, For foregoing Mills, judgment with Indiana in obtaining but also as to Mack and the order as to multi-million ABF’s now-vacated dollar ver- subrogation Indeed, amount are against dict VACATED and Mack. coun- *18 this matter is REMANDED for a new sel testified at the 21 December sub- trial and proceedings, other all rogation-claim consistent evidentiary hearing that it opinion. with this impossible was to separate litigation expenses between the against claims VACATEDAND REMANDED. Mills, against and those Indiana “many experts DAVIS, of the same work[ed] W. EUGENE Judge, Circuit both defects”. dissenting: trial, following I agree the new with the resolution of all the district court is to majority’s consider both the total issues in the opin- well-written pretrial settlement amount it except determines ion for its treatment of the seat belt any on remand is due verdict issue. support of the reasons this is a slender reed to plain language
I start with an safety exception exceedingly an to clear stat- or non-use of Texas statute: “Use First, Vasquez expressly ute. in a civil is not admissible evidence belt admissibility declined to reach the of the 545.413(g). Transp. ...” Tex. Code trial Also, arguably, seat belt evidence. Supreme to Texas Court we look When rule, evidence was admissible under the Texas exceptions law for to this broad case Supreme exception Glyn-Jones Court’s only narrowly exception drawn we find one plaintiff alleged because the that the air by occupant of a brought in a case bag component system of the restraint against a seat belt manufacturer. vehicle argued defective. The defendant that the sought manufacturer to ex The seat belt seatbelt, bag, air when used with a was not by proffered plaintiff clude evidence defective. So whether the seatbelt was that had her seat belt on. The Texas she certainly closely use was related to the legislature held that: “the Supreme Court against plaintiffs suit the manufacturer of 107C(j) preclude did not intend section system the restraint and even more rele- necessary of action evidence cause bag vant to the air manufacturer’s defense. inju against a seat belt manufacturer for caused a defective seat allegedly ries short, in the passing reference Inc. v. Bridgestone/Firestone, belt.” Vasquez enough is not for me to decision (Tex. 878 S.W.2d Glyn-Jones, language avoid the of the statute. I plain 1994). When this case before nothing factually dicta in this see about the Appeals, the Texas Court of Intermediate reasoning sug- dissimilar case or its that an plaintiff, Glyn-Jones, argued ex gests Supreme that the Texas Court would made to the statute for ception should be exception, particularly create such a broad the court de crash-worthiness cases and Supreme to do so since the Court declined adopt clined to this broad exception. opportunity. when it had the Inc., Bridgestone/Firestone, v. Glyn-Jones I respectfully For these reasons dissent (Tex.Ct.App.1993). 857 S.W.2d trial. grant from'the of a new Supreme The Texas Court also declined adopt exception. practical broad As a this
matter, in crash-worthiness cases where an
injured occupant of a vehicle sues various component parts
manufacturers of vehicle, to the statute creat exception Ray BREWER, Petitioner- Brent majority ed would allow the evi Appellee, all dence to be admitted almost crash- cases because causation is in worthiness QUARTERMAN, Director, Nathaniel Supreme If the variably at issue. Texas Department of Criminal Jus- to create such a ex Court wanted broad tice, Divi- Correctional Institutions ception, opportunity it had an excellent sion, Respondent-Appellant. do so and declined the invitation. No. 04-70034.
Support exception for the to the non- admissibility of use or non use of a seatbelt Appeals, United States Court *19 majority entirely creates rests on dicta Fifth Circuit. in single in a footnote intermediate Tex- 27, 2006. Dec. decision, Appeals Vasquez as Court of Co., Denton, TX, Hyundai Samonek, Motor S.W.3d Michael Dennis (Tex.Ct.App.2003). n. 2 For a number of for Brewer. Notes Advisory Committee see also prior motions Daubert numerous filed Amendments). 50(b) (2006 Fed.R.Civ.P. Hodges’ ex- some of challenging trial (In extremely brief Mack’s regard, this hearings held judge magistrate A perts. of at'the close motion conclusory JML and questioned evidentiary matters on best, was, barely suffi at Hpdges’ case to the challenge Mack’s counsel detail. worse, Mack sim To make cient. matters considered, ruling was judge’s magistrate points” it on the same ply “renew[ed] as- judge then denied, by the district Although we of the evidence. the close trial, before A case. month to the signed preserved that Mack conclude dubitante mo- Daubert additional judge denied that is appeal, for alternate-design issue Hodges’ and the concerning Syson tions perfunctory in such a man presented sues expert. accident-reconstruction See, being forfeited. the risk ner run challenges trial, many of Mack’s At Turkm., v. Gov’t S.A.P.I.C. e.g., Bridas by its developed testimony were Syson’s (5th Cir.2003); 347, n. 7 F.3d 356 345 him; judge cross-examination Berkowitz, F.2d States United credibility. to determine jury were able denied, (7th Cir.1991), 506 U.S. cert. Mack’s (second) denied judge The trial 122 L.Ed.2d 1083, 113 S.Ct. testimony that to exclude request renewed (1993).) dur- requests two Mack’s JML and denied challenge. that part ing trial based legal challenges A JML motion testimony, de- Syson’s extensive (During support the evidence sufficiency of challenges to numerous Mack’s spite Co., Ins. v. Cimarron E.g., Ford verdict. Along only once. it, objected bases Cir.2000). (5th Our F.3d continuously line, counsel novo, standard using the same de review leading questions.) extremely Syson asked Cas. & E.g., Aetna court. as the district
Notes
notes (g) subsection was repealed “one statutory only exception” to the approximately one seatbelt- month after the evidence prohibition; and, Hodges filed unless that this action and ex well before ception met, they neither added the side could offer defective-door-latch claim. use At or the time of nonuse of claim, trial on his seatbelt. that accord- ing Mack, the intent of the legis- addition, Hodges claim: had the lature evidence, was to allow seatbelt par- district court evidence, allowed seatbelt ticularly in a crashworthiness action such they would have offered “substantial evi- (Crashworthiness as this. involves a claim dence” that Hodges was at belted the time that a defect the automobile caused the of the accident. In that regard, prior to plaintiffs injuries, rather than the underly- claim, settlement the seatbelt they con- them.) ing accident causing According to tended the seatbelt was defective because Mack, without evidence, seatbelt jury it became unlatched during the accident. received a evidence, distorted view the The Hodges also insist Mack did not especially in light of the Hodges’ coun- make required proffer of its seatbelt telling sel’s jury: Hodges ejected evidence after it was excluded. See Fed. from the solely truck due to the defective 103(a)(2). did, however, R.Evid. do latch; door and he did nothing to contrib- so at trial: an investigating officer at the ute to injuries. scene the accident would have testified In addition, Mack also claims this circuit that Hodges was not wearing his seatbelt has affirmed introduction of such evi- time of the accident. dence laws, under other States’ despite For their final response, statutory prohibition. Hermann v. GM dispute, bases, on two claim Mack’s Corp., (5th Cir.1983) (Louisi- F.2d (g) subsection is applicable for second- law). ana Finally, Mack insists it is sound ary-collision First, actions. the statute’s public policy permit such be- evidence plain language support does not such an cause law federal mandates truck drivers’ interpretation. Second, the statement wearing seatbelts. Vasquez that such evidence was in- never that, Noting when they action, filed this tended to be excluded secondary colli- effective, subsection (g) was and remained dicta, sions is found in a footnote no less. effective for all actions filed prior to 1 July 2003, the Hodges the district contend Evidentiary rulings are reviewed properly excluded the seatbelt evidence for an abuse of E.g., discretion. United (g) subsection and Texas law case v. Ragsdale, (5th States 426 F.3d — mandate prohibition. They Cir.2005), maintain: denied, cert. U.S. -, law, under Texas seatbelt evidence ad S.Ct. (2006); L.Ed.2d 105 see missible only under one exception— rare Fed.R.Evid. 103. A trial court “abuses its